KING v. X. PONCE et al

Filing 9

OPINION. Signed by Judge Renee Marie Bumb on 9/8/2021. (pr,n.m)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MARKIESE KING,
Plaintiff
v.
X. PONCA et al.,
Defendants

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CIV. NO. 21-5628 (RMB/KMW)
OPINION

BUMB, United States District Judge
Plaintiff Markiese King, a federal prisoner presently confined in the Federal
Correctional Institution in Pollock, Louisiana brings this pro se civil rights action pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388
(1971) for alleged unconstitutional conduct of prison employees at the Federal Correctional
Institution in Fort Dix, New Jersey (“FCI Fort Dix”). (Compl., Dkt. No. 1.) Plaintiff filed
an application to proceed in forma pauperis (“IFP”) which establishes his financial eligibility
to proceed without prepayment of fees under 28 U.S.C. § 1915. (Dkt. No. 4.) Plaintiff also
filed a motion to appoint pro bono counsel under 28 U.S.C. § 1915(e)(1). (Dkt. No. 5.)
When a prisoner is permitted to proceed without prepayment of the filing fee or
when the prisoner pays the filing fee for a civil action regarding prison conditions and seeks
redress from a governmental entity, officer or employee of a governmental entity, 28 U.S.C.
§§ 1915(e)(2)(B); 1915A(b) and 42 U.S.C. § 1997e(c)(1) require courts to review the
complaint and sua sponte dismiss any claims that are: (1) frivolous or malicious; (2) fail to
state a claim on which relief may be granted; or (3) seek monetary relief against a defendant

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who is immune from such relief. For the reasons discussed below, the Court will permit the
complaint to proceed in part.
I.

Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro se. Erickson v. Pardus, 551

U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se
complaint, however inartfully pleaded, must be held to ‘less stringent standards than formal
pleadings drafted by lawyers.’” Id. (internal quotation marks omitted). “Court personnel
reviewing pro se pleadings are charged with the responsibility of deciphering why the
submission was filed, what the litigant is seeking, and what claims she may be making.” See
Higgs v. Atty. Gen. of the U.S., 655 F.3d 333, 339–40 (3d Cir. 2011) (quoting Jonathan D.
Rosenbloom, Exploring Methods to Improve Management and Fairness in Pro Se Cases: A
Study of the Pro Se Docket in the Southern District of New York, 30 Fordham Urb. L.J.
305, 308 (2002)).
A pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he legal standard for dismissing a
complaint for failure to state a claim pursuant to § 1915A is identical to the legal standard
employed in ruling on 12(b)(6) motions.” Courteau v. United States, 287 Fed.Appx. 159,
162 (3d Cir.2008) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.2000)). Therefore,
the Court relies on precedent discussing the Rule 12(b)(6) motion to dismiss standard for
failure to state a claim. “[A] complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
(quoting Twombly, 550 U.S. at 556.) Legal conclusions, together with threadbare recitals of
the elements of a cause of action, do not suffice to state a claim. Id.
Thus, “a court considering a motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If a complaint can be
remedied by an amendment, a district court may not dismiss the complaint with prejudice
but must permit the amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
II.

DISCUSSION
A.

The Complaint

Plaintiff alleges the following facts in his complaint, accepted as true for purposes of
screening for dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B); 1915A(b)(1) and 42 U.S.C. §
1997e(c)(1). (Compl. at 1-6, Dkt. No. 1.) At the time of the incidents alleged in the
complaint, Plaintiff was confined in FCI Fort Dix. During this time, Plaintiff worked for
UNICOR, sewing clothes for the United States Army. He alleges sexual harassment and
retaliation by Defendant Officer X. Ponca (“Ponca”).
Specifically, Plaintiff alleges that while he was working one morning, Ponca called
him into his office. Plaintiff alleges Ponca “had a creepy grin on his face,” and to break the
silence, Plaintiff asked if there was a problem. Ponca responded that his sources told him
Plaintiff was in the TV room with a transgender person with the lights out. Plaintiff
contends he told Ponca not to disrespect him, left the office, and informed other inmates of

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the encounter. Plaintiff further alleges that Ponca told the entire UNICOR factory that
Plaintiff had been in a dark room with a transgender person.
Plaintiff approached Ponca and asked him to stop spreading misinformation. Ponca
allegedly called him into the office again, and asked if Plaintiff “knew what it felt like being
inside a man.” He allegedly told Plaintiff “there was nothing wrong with it” and “not to
knock it until you try it” because “it’s the same feeling as a woman.” Ponca then allegedly
asked Plaintiff if the tattoos on his hands were new, grabbed Plaintiff’s left hand, and began
caressing it “in a sexual manner….” Plaintiff immediately removed his hand, and upon
leaving the office, Ponca allegedly stated, “the world is changing, and you will one day
understand what I’m saying.”
The following day, Plaintiff went to the psychology office and filed a PREA
complaint. Plaintiff alleges that when Ponca discovered he had filed the PREA complaint,
he began harassing him with cell searches and writing him up for no reason. Plaintiff
reported Ponca’s behavior to the psychology office on multiple occasions, but he was told
there was nothing they could do.
Weeks after filing the PREA complaint, Plaintiff was sent to the Special Housing
Unit (“SHU”) from September 30, 2020 to October 21, 2020. Plaintiff alleges Ponca set this
up by having Inmate Ryker file a false PREA complaint against Plaintiff. While in the
SHU, Plaintiff was interviewed by the Special Investigation Section (“SIS”) and claims SIS
knew that a prison official had coerced Ryker to falsify a PREA complaint and wanted to
know who did it. Upon release from the SHU, Plaintiff spoke to staff in the psychology
department again, asking them to add information to his existing PREA complaint against
Ponca.

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Plaintiff alleges that he quit his UNICOR job on March 3, 2021, because he felt
unsafe and uncomfortable in the presence of Ponca. Plaintiff further alleges that he has felt
stressed, scared and suicidal. He filed a BP-8 remedy form and asked his unit team for an
administrative remedy, to no avail. Plaintiff filed this suit against Ponca, the Fort Dix
Psychology Department, Associate Warden Dr. Kodger, and the Federal Bureau of Prisons.
Plaintiff did not specify the relief sought.
B.

Bivens Claims
1.

Immunity

Plaintiff named as defendants the Federal Bureau of Prisons and the Fort Dix
Psychology Department. “Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994).
Congress has not waived sovereign immunity for damages claims based on constitutional
torts against federal agencies, in fact Congress has not created a statutory claim analogous
to 42 U.S.C. § 1983 for constitutional tort claims against federal actors. See generally
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). Therefore, the Court will dismiss the damages
claim against the Federal Bureau of Prisons, and the FCI Fort Dix Psychology Department,
which is a department within the Federal Bureau of Prisons. Dismissal of the damages
claims are with prejudice based on Eleventh Amendment immunity. Plaintiff is not
precluded from seeking prospective injunctive relief from the Bureau of Prisons, but he has
not requested injunctive relief in his complaint. Moreover, Plaintiff may bring damages
claims against individuals within the Fort Dix Psychology Department in their individual
capacity.

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2.

First Amendment Retaliation and Eighth Amendment Claims may proceed
against Officer Ponca and Dr. Kodger in their individual capacities

Plaintiff adequately pled a First Amendment retaliation claim. As to Plaintiff’s
Eighth Amendment claims against Ponca (for sexual harassment) and Kodger (for failure to
protect), the Third Circuit Court of Appeals recently held that where a transgender prisoner
allegedly informed prison officials repeatedly that the prisoner felt unsafe housed in a
minimum security cell with no lock (even though the minimum security facility had no
locks on any cells) due to the institution’s “violent morale,” and prison officials failed to
immediately transfer her, the court must accept the Plaintiff’s expressed fears at face value,
despite no specific threat or alleged pattern of sexual assaults at the facility. See Shorter v.
United States, No. 20-2554, 2021 WL 3891552 (3d Cir. Sept. 1, 2021) (reversing district
court’s dismissal without prejudice to amend, and rejecting Government argument that such
broad standard imposed a “strict liability rule” that all transgender inmates are at excessive
risk at all times.) Therefore, the Eighth Amendment claims may proceed.
B.

Motion to Appoint Pro Bono Counsel

Plaintiff seeks appointment of pro bono counsel. 28 U.S.C. § 1915(g) governs a
court’s discretionary appointment of pro bono counsel in civil cases. Prior to appointing
counsel, district courts must first determine if the plaintiff’s claims have arguable merit in
fact and law. Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). If so, courts should consider
additional factors including the plaintiff's ability to present his or her case, the difficulty of
the legal issues, the ability of the plaintiff to pursue a factual investigation, and whether the
case turns on credibility determinations or requires expert witness testimony. Id. at 156-57.
Plaintiff has demonstrated an adequate understanding of the law and the ability to
present the relevant facts by filing his pro se complaint in this matter. If Plaintiff encounters
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circumstances that inhibit his ability for self-representation as the case progresses, he may
renew his request for appointment of pro bono counsel. The Court will deny the motion to
appoint pro bono counsel without prejudice.
III.

CONCLUSION
For the reasons stated above, the Court allows the complaint to proceed in part and

dismisses the complaint in part. The Court denies Plaintiff’s request for pro bono counsel
without prejudice.

An appropriate order follows.

DATE: September 8, 2021
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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