Ward v. Kaminski et al

Filing 38

ORDER 1. The Report and Recommendation of Magistrate Judge Mannion (Doc.33) is ADOPTED in part and REJECTED in part to the extent reflected hereinabove. 2. The Defendants Motion to Dismiss (Doc. 21) is DENIED. 3. This matter is REMANDED to Magistrate Judge Mannion for further pre-trial management. (eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID JAMES WARD,

:
:
Plaintiff,
:
:
v.
:
:
WARDEN JERRY C. MARTINEZ, :
:
Defendant.
:

1:10-cv-1276
Hon. John E. Jones III
Hon. Malachy E. Mannion

MEMORANDUM AND ORDER
September 28, 2011
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Malachy E. Mannion (Doc. 33), filed on August 19,
2011, which recommends that we grant the Motion to Dismiss (Doc. 21) of
Defendants J. Kaminski, F. Passaniti, and Warden Martinez. Plaintiff filed
objections to the R&R (Doc. 34) on August 31, 2011. Defendants filed a response
to the objections (Doc. 35) on September 14, 2011 and on September 27, 2011,
Plaintiff filed a reply. (Doc. 37). Accordingly, this matter is ripe for disposition.
For the reasons set forth below, the Court will adopt in part and reject in part the
Magistrate Judge’s R&R, deny the Motion to Dismiss (Doc. 21) and remand this
matter to Magistrate Judge Mannion for further pre-trial management.
1

I.

PROCEDURAL/FACTUAL BACKGROUND
Pro se Plaintiff David James Ward (“Plaintiff” or “Ward”), formerly an

inmate at the United States Penitentiary at Allenwood1 filed the instant civil rights
action on June 18, 2010 pursuant to Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971). Ward claims that, on March 21, 2010, he signed an
Inmate Financial Responsibility Program (“IFRP”) contract in order to work in the
Unicor Factory. Plaintiff alleges that he received a copy of the signed contract the
next day, and upon reviewing the same, he realized that there were additional terms
below his signature line. He claims that these additional terms sought to deduct
money from his prison account for fine payments in an amount exceeding the total
amount permitted to be deducted from Unicor employees under the Bureau of
Prisons (“BOP”) Program Statement. Plaintiff alleges that he then terminated the
contract and requested a new contract be drafted that complied with the BOP’s
Program Statement regarding the permissible amount to be deducted from his
prison account.
Plaintiff claims that Defendant Kaminski, his case manager, refused to
provide him with a new IFRP contract, fired him from his Unicor job, and placed

1

Ward has since been transferred to the United States Penitentiary at Tuscon.
2

Plaintiff in “refusal” status. Ward claims that Unit Manager Passaniti and Warden
Martinez refused to take any corrective action.
As noted above, Plaintiff commenced this action on June 18, 2010 against
Defendants Kaminski, Passaniti and Martinez, seeking to be reinstated to his
Unicor job. Ward also seeks to be compensated for loss wages and that his name be
taken out of “refusal” status.
II.

STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district court

makes a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1);
United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept,
reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984). Anderson, 477
U.S. at 247-48.
III.

DISCUSSION
3

Magistrate Judge Mannion recommends that the Defendants’ Motion to
Dismiss be denied in part and granted in part. Specifically, Magistrate Judge
Mannion rejects the Defendants’ argument that this Bivens action must be dismissed
because Plaintiff can only assert this type of claim via a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. We agree with the Magistrate Judge that the
holding of McGee v. Martinez, 627 F. 3d 933 (3d Cir. 2010) does not require claims
of the type Ward asserts to be brought in a § 2241 petition, but only holds that these
claims may be brought in such a petition. Thus, we shall adopt the Magistrate
Judge’s recommendation to deny this portion of the Defendants’ Motion.
However, we disagree with the Magistrate Judge’s recommendation that this
action be dismissed because Plaintiff is merely asserting a breach of contract action,
which is not cognizable in a Bivens suit. As Plaintiff has noted, although somewhat
inarticulately, within his submissions on the Motion to Dismiss and within his
objections, he is asserting a denial of equal protection and due process with respect
to the terms set forth in his IFRP contract. In particular, Plaintiff asserts that he was
given a contract that violated the BOP’s Program Statement and when he requested
a contract that complied with the BOP’s Program Statement, he was denied such a
contract, fired from his job at Unicor and placed in “refusal” status. Thus, we find
that Plaintiff is not just claiming a breach of contract, he is actually claiming

4

constitutional due process and equal protection violations. Accordingly, we shall
reject the Magistrate Judge’s recommendation to grant the Motion on the basis that
Plaintiff only asserts an incognizable breach of contract claim.
IV.

CONCLUSION
Accordingly, based on all of the foregoing, the Magistrate Judge’s R&R shall

be adopted in part and rejected in part. The Defendants’ Motion to Dismiss shall be
denied. This matter shall be remanded to Magistrate Judge Mannion for further
pre-trial management.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation of Magistrate Judge Mannion (Doc.
33) is ADOPTED in part and REJECTED in part to the extent
reflected hereinabove.

2.

The Defendants’ Motion to Dismiss (Doc. 21) is DENIED.

3.

This matter is REMANDED to Magistrate Judge Mannion for further
pre-trial management.

s/ John E. Jones III
John E. Jones III
United States District Judge

5