DAILEY v. ORTIZ et al

Filing 4

OPINION. Signed by Judge Noel L. Hillman on 10/16/2020. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DANTÉ QAADIR DAILEY,

No. 20-cv-3542 (NLH) (AMD)

Plaintiff,
v.

OPINION

DAVID ORTIZ, et al.,
Defendants.

APPEARANCE:
Danté Qaadir Dailey
83713-083
Allenwood Low
Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 1000
White Deer, PA 17887-1000
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Danté Qaadir Dailey, a federal prisoner presently
incarcerated in FCI Allenwood, Pennsylvania, seeks to bring a
complaint pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).

See ECF No. 1.

At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. § 1915(e)(2) to determine whether it should be
dismissed as frivolous or malicious, for failure to state a
claim upon which relief may be granted, or because it seeks
monetary relief from a defendant who is immune from such relief.

1

For the reasons set forth below, the Court will dismiss the
complaint without prejudice for failure to state a claim.

The

Court will deny Plaintiff’s motion for the appointment of
counsel.
I.

ECF No. 2.

BACKGROUND
On May 17, 2019, Plaintiff was the Islamic Community Leader

at FCI Fort Dix, New Jersey.

ECF No. 1 at 8.

Plaintiff states

that Muslim inmates were not able to prepare their morning
Ramadan meals on May 25 and 26, 2019 due to an institutional
lockdown.

Id. at 8-9.

Plaintiff spoke with the staff members,

and Lieutenant Lampley confirmed that the Muslim inmates were
permitted to prepare the meals in spite of the lockdown.

An

argument ensued between Lt. Lampley and another corrections
officer when Lt. Lampley intervened on behalf of the inmates.
Id. at 9.
On June 19, 2019, Plaintiff was placed into administrative
detention pending an investigation into his alleged
participation in the assault of another inmate on May 23.

Id.

Four other Muslim inmates were also placed into administrative
detention during the investigation.

Id.

According to the

incident report filed by SIS Tech Reyes, the victim identified
Plaintiff as his attacker.

Id.

Disciplinary Hearing Officer.

The matter was referred to a
Id.

2

After being contacted by Plaintiff’s staff representation,
the victim submitted a statement denying that he had ever
identified Plaintiff as his attacker to the Disciplinary Hearing
Officer.

Id.

The victim stated Plaintiff was not present

during the assault and had nothing to do with it.

Id.

The

Disciplinary Hearing Officer expunged the incident report
against Plaintiff without conducting a hearing.

Id.

Warden

Ortiz, Lt. Atkinson, and Unit Manager R. Brinson all received
copies of the Disciplinary Hearing Officer’s report.

Id. at 9-

10.
Plaintiff was not sent back to general population after the
incident report was expunged.

Id. at 10.

Instead, he was

transferred from minimum security Fort Dix to low security FCI
Allenwood.

Id.

PTSD.

He seeks $10 million dollars in damages.

II.

Id.

Plaintiff alleges the transfer exacerbated his
Id. at 9.

STANDARD OF REVIEW
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,

§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e.

The

PLRA directs district courts to sua sponte dismiss any claim
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that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.

This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §
1915 because Plaintiff is a proceeding in forma pauperis.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

According

to the Supreme Court’s decision in Ashcroft v. Iqbal, “a
pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
To survive sua sponte screening for failure to state a
claim, 1 the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

Fowler v. UPMC
“‘A claim has

facial plausibility when the plaintiff pleads factual content

1

“[T]he legal standard for dismissing a complaint for failure to
state a claim . . . is identical to the legal standard employed
in ruling on 12(b)(6) motions.” Courteau v. United States, 287
F. App’x 159, 162 (3d Cir. 2008) (citing Allah v. Seiverling,
229 F.3d 220, 223 (3d Cir. 2000)).
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that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’”

Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678).

“[A] pleading that offers

‘labels or conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’”

Iqbal, 556 U.S. at

678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)).
III. DISCUSSION
Plaintiff alleges defendants retaliated against him for
advocating on behalf of the Muslim inmates, 2 falsely imprisoned
him in administrative detention, and intentionally inflicted
emotional distress by transferring him to a different prison.
A.

Retaliation
In Ziglar v. Abbasi, the Supreme Court concluded “that

expanding the Bivens remedy is now a ‘disfavored’ judicial
activity.”

137 S. Ct. 1843, 1857 (2017).

“The Supreme Court

has never implied a Bivens action under any clause of the First
Amendment.”

Vanderklok v. United States, 868 F.3d 189, 198 (3d

Cir. 2017); see also Reichle v. Howards, 566 U.S. 658, 663 n.4
(2012) (“We have never held that Bivens extends to First
Amendment claims.”).

2

The Third Circuit has thus far held that

Plaintiff does not raise any religious discrimination claims.
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Ziglar prevents First Amendment retaliation claims against
federal employees from going forward.

See Mack v. Yost, 968

F.3d 311 (3d Cir. 2020) (declining to extend Bivens to First
Amendment retaliation claims brought in the prison workplace
assignment context); Watlington on behalf of FCI Schuylkill
African Am. Inmates v. Reigel, 723 F. App'x 137, 140 n.3 (3d
Cir. 2018) (citing Vanderklok).

Because current Third Circuit

case law does not recognize a Bivens action for retaliation by
federal employees, the Court must dismiss the retaliation claim.
B.

False Imprisonment and Due Process
Plaintiff’s false imprisonment assertion is without merit.

“The Court is unaware of any cases in which a prisoner who was
lawfully incarcerated was permitted to proceed with a false
imprisonment claim . . . based on the conditions of his or her
confinement.”

Kornegey v. City of Philadelphia, 299 F. Supp. 3d

675, 682 (E.D. Pa. 2018); see also Brown v. United States, No.
11-4421, 2014 WL 1407398, at *5 (D.N.J. Apr. 11, 2014) (noting
prior decision that “a prisoner, such as Plaintiff, who is
already serving a federal sentence, has no viable claim for
false imprisonment in SHU pending an investigation of a prison
disturbance or the prisoner's involvement in the prison
disturbance.”); Goldhaber v. Higgins, 576 F. Supp. 2d 694, 718
(W.D. Pa. 2007) (“[T]he Court cannot conceive of a situation in
which an incarcerated inmate . . . could be subjected to a
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distinct Fourth Amendment seizure under the facts alleged in the
Amended Complaint.

It is not clear that a seizure in the prison

context could ever violate the Fourth Amendment, even if it is
assumed that it is somehow possible for an incarcerated prisoner
to be seized.”).

“Nonetheless, the Court need not decide

whether such a claim can ever proceed, because the elements of
detention and unlawfulness in this context would require, at the
very least, the deprivation of a cognizable liberty interest
without due process, and Plaintiff's allegations have failed to
meet that burden.”

Kornegey, 299 F. Supp. 3d at 682.

“[T]he Due Process Clause does not protect every change in
the conditions of confinement having a substantial adverse
impact on the prisoner.”
(1995).

Sandin v. Conner, 515 U.S. 472, 478

Liberty interests under the Due Process Clause are

“generally limited to freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give
rise to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Id. at 484 (internal citations omitted).

Plaintiff was

originally placed in administrative detention during the
investigation into an assault against another inmate.
“Discipline by prison officials in response to a wide range of
misconduct falls within the expected perimeters of the sentence
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imposed by a court of law.”

Id. at 485; see also Brown, 2014 WL

1407398, at *5.
To the extent Plaintiff asserts he remained in
administrative detention after the incident report was expunged,
he fails to state a constitutional claim on the facts alleged.
“In deciding whether a protected liberty interest exists under
Sandin, we consider the duration of the disciplinary confinement
and the conditions of that confinement in relation to other
prison conditions.”
Cir. 2003).

Mitchell v. Horn, 318 F.3d 523, 532 (3d

Plaintiff has not indicated how long he was in

administrative detention once his incident report was dismissed
or how administrative detention compares to other prison
conditions.

However, “[t]ransfers from lesser to more

restrictive units in a prison generally do not implicate a
protected liberty interest because some incursions on liberty
are to be expected within a prison.”

Robinson v. Norwood, 535

F. App'x 81, 83 (3d Cir. 2013) (per curiam).

Plaintiff has

therefore failed to allege either a false imprisonment or due
process claim.
Plaintiff also has not stated a claim based on his transfer
to FCI Allenwood.

The Bureau of Prisons is tasked with

determining the most suitable location for Plaintiff to serve
his federal sentence.

See 18 U.S.C. § 3621(b) (“The Bureau of

Prisons shall designate the place of the prisoner's imprisonment
8

....”).

It is well settled that an inmate “has no justifiable

expectation that he will be incarcerated in any particular
State.”

Olim v. Wakinekona, 461 U.S. 238, 245 (1983).

“That

life in one prison is much more disagreeable than in another
does not in itself signify that a Fourteenth Amendment liberty
interest is implicated when a prisoner is transferred to the
institution with the more severe rules.”
U.S. 215, 225 (1976).

Meachum v. Fano, 427

“There is no reason to apply a different

rule to the transfer of a prisoner from one location to another
within the federal system.”

Burke v. Romine, 85 F. Appx. 274,

277 (3d Cir. 2003).
C.

Intentional Infliction of Emotional Distress
Plaintiff also has not stated an intentional infliction of

emotional distress claim.

“[T]o establish a claim for

intentional infliction of emotional distress, the plaintiff must
establish intentional and outrageous conduct by the defendant,
proximate cause, and distress that is severe.”

Buckley v.

Trenton Saving Fund Soc., 544 A.2d 857, 863 (N.J. 1988).

“The

conduct must be ‘so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.’”

Id. (quoting Restatement (Second) of Torts, § 46

comment d (1965)).

The facts stated in the complaint could not

9

be characterized as atrocious or going beyond all possible
bounds of decency.
D.

Leave to Amend
Generally, “plaintiffs who file complaints subject to

dismissal under [the Prison Litigation Reform Act] should
receive leave to amend unless amendment would be inequitable or
futile.”

Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d

Cir. 2002).

The Court will grant Plaintiff leave to amend as it

is possible that he would be able to allege facts that could
state a claim for relief.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and cannot be utilized to cure defects in the amended
complaint, unless the relevant portion is specifically
incorporated in the new complaint.

6 Wright, Miller & Kane,

Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
omitted).

An amended complaint may adopt some or all of the

allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit.

Id.

To avoid confusion, the safer course is to file

an amended complaint that is complete in itself.
E.

Id.

Appointment of Counsel
Plaintiff also moves for the appointment of counsel.

No. 2.

ECF

Appointment of counsel is a privilege, not a statutory
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or constitutional right, Brightwell v. Lehman, 637 F.3d 187, 192
(3d Cir. 2011), and is governed by the factors enumerated in
Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993).

“As a threshold

matter, the indigent plaintiff's case must have some arguable
merit in fact and law.”

Cuevas v. United States, 422 F. App'x

142, 144 (3d Cir. 2011).
The Court will dismiss the complaint for failure to state a
claim.

Therefore, the motion will be denied.

Plaintiff may

reapply for counsel in the event he elects to submit an amended
complaint.
IV.

CONCLUSION
For the reasons stated above, the motion for the

appointment of counsel will be denied.

The complaint will be

dismissed without prejudice for failure to state a claim.

28

U.S.C. § 1915(e)(2)(B)(ii).
An appropriate order follows.

Dated: _October 16, 2020___
At Camden, New Jersey

___s/ Noel L. Hillman ______
NOEL L. HILLMAN, U.S.D.J.

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