Ward v. Kaminski et al

Filing 87

MEMORANDUM (eo)

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

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Plaintiff,
v.
J. KAMINSKI, et al.,
Defendants.

1:10-cv-1276

Hon. John E. Jones III
Hon. Martin C. Carlson

MEMORANDUM
March 5, 2013
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge Martin C. Carlson (Doc. 83), filed on February 13,
2013, which recommends that the Defendants’ Motion to Dismiss or for Summary
Judgment (Doc. 52) be granted and that this case be dismissed with prejudice. Pro
se Plaintiff David James Ward (“Plaintiff” or “Ward”) filed objections to the R&R
on March 1, 2013. (Doc. 86). Accordingly, this matter is ripe for our review. For
the reasons that follow, we shall adopt the R&R in its entirety, grant the
Defendants’ Motion to Dismiss or for Summary Judgment and dismiss this case
with prejudice.
I.

STANDARD OF REVIEW
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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).
II.

BACKGROUND
This is a Bivens1 civil rights action brought by Plaintiff, an inmate in the

custody of the Federal Bureau of Prisons, formerly incarcerated at the United
States Penitentiary at Allenwood (“USP-Allenwood”), in White Deer,
Pennsylvania. After he pleaded guilty to kidnaping in 1997, Ward was sentenced
to a 720 month term of imprisonment, was assessed a $50 fee and ordered to pay a
$5,000 fine. In order to ensure that inmates are working towards meeting

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Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388

(1971).
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outstanding restitution obligations and other financial commitments, the BOP has
developed the Inmate Financial Responsibility Program (“IFRP”), which requires
inmates to put a percentage of income earned from prison employments towards
their financial obligations. Those inmates who refuse to participate in the IFRP are
designated as “refusers” and are restricted from obtaining certain types of
employment within the prison. This action arises out of Ward’s interaction with
USP-Allenwood staff concerning the IFRP, and the institution’s resulting
designation of Ward as a refuser.2 Named as Defendants are Jonathan Kaminski,
Ward’s case manager; Frank J. Passaniti, Ward’s unit manager; and Ricardo
Martinez, the warden of USP-Allenwood.
Magistrate Judge Carlson makes the following recommendations within his
report:
1)

All claims against the Defendants in their official capacities be
dismissed because the Defendants enjoy sovereign immunity from
official capacity claims;

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Magistrate Judge Carlson undertook a thorough and careful review of the facts of this
matter at pages 1 to 17 of the instant R&R, thus we shall not endeavor to recite the same herein.
In brief, Ward contends that USP-Allenwood’s IFRP Plan (Supplement ALX-5380.08D), which
requires inmates to pay a minimum of $25.00 from their trust fund account in the event their
monthly pay from their UNICOR job is less than $50.00, is unlawful because it is placed below
the signature line on the IFRP agreement. (Doc. 86, p. 4).
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2)

All claims against Defendants Passaniti and Martinez be dismissed
because the complaint fails to allege actionable personal involvement
by either;

3)

The action be dismissed because Ward failed to exhaust his available
administrative remedies;

4)

Ward’s due process and equal protection claims be dismissed as
meritless; and

5)

Alternatively, even if Ward had adequately pled claims against the
Defendants for due process or equal protection violations, that they be
afforded qualified immunity.

As noted above, Ward filed objections to the R&R on March 1, 2013. Ward does
not dispute the Magistrate Judge’s recommendation that the official capacity
claims be dismissed, however he does contend that all three Defendants were
“aware” of Plaintiff’s main allegation - that the IFRP was “illegal” because
Supplement ALX-5380.08D was located below, and not above the signature line
on the document. Moreover, Ward maintains that Supplement ALX-5380.08D is
“illegal” because it does not comport with the BOP’s national policy and program
statements. Further, while Plaintiff does not exactly contend that he exhausted his
administrative remedies, he does indicate that he “attempted” to formally and
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informally resolve his concerns over the IFRP and Supplement ALX-5380.08D
with administrative grievances. We have reviewed Ward’s objections, and despite
his evident commitment to his position that USP-Allenwood’s IFRP and
Supplement ALX-5380.08D are “illegal,” we disagree. For the reasons that
follow, we shall adopt the Magistrate Judge’s recommendations.
III.

DISCUSSION
As a threshold matter, we shall adopt Magistrate Judge’s recommendation

that any official capacity claims against the Defendants be dismissed. It is wellestablished that a suit against a federal employee in his official capacity is a suit
against the United States, and that Bivens suits against the United States are barred
by the doctrine of sovereign immunity, absent an explicit waiver. See Kentucky v.
Graham, 473 U.S. 159, 167 (1985); United States v. Mitchell, 463 U.S. 206, 212
(1983). No such waiver exists here, and thus Plaintiff cannot maintain Bivens
claims against the individual Defendants in their official capacities.
Next, we agree with the Magistrate Judge’s conclusion Ward has not alleged
sufficient personal involvement of either Defendants Passaniti or Ramirez to state a
Bivens claim against either. It is clear that to state a constitutional tort claim, the
plaintiff must show that the supervisory defendants actively deprived him of a right
secured by the Constitution. See Morse v. Lower Merion Sch. Dist., 132 F. 3d 902
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(3d Cir. 1997). Constitutional tort liability is personal in nature and can only
follow personal involvement in the alleged wrongful conduct shown through
specific allegations of personal direction or of actual knowledge and acquiescence
in the challenged practice. See Robinson v. City of Pittsburgh, 120 F. 3d 1286 (3d
Cir. 1997). Ward claims that Warden Martinez was aware of his grievances
concerning the IFRP and of the fact that the IFRP and Supplement ALX-5380.08D
were unlawful and that Unit Manager Passaniti rejected Ward’s inmate request as
unacceptable. However, mere awareness of Ward’s circumstances is insufficient to
set forth a claim against supervisory officials like Martinez or Passaniti. See Rode
v. Dellarciprete, 845 F. 2d 1195, 1207 (3d Cir. 1988)(personal involvement must
be alleged and is only present where the supervisor directed the actions of
supervisees or actually knew of the actions and acquiesced in them). Neither of
these Defendants are alleged to have directed or participated in the alleged
unlawful actions in this case, and accordingly the claims against them fail as a
matter of law.
We further agree with the Magistrate Judge that Ward has failed to exhaust
his administrative remedies, which requires dismissal of this lawsuit. Pursuant to
the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions under . . . [42 U.S.C. § 1983] . . ., or any other Federal law, by a
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prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Federal courts have consistently determined that inmates who fail to fully, or
timely, complete the prison grievance process are barred from subsequently
litigating claims in federal court. See, e.g., Booth v. Churner, 206 F. 3d 289 (3d
Cir. 2000); Bolla v. Strickland, 304 Fed. Appx. 22 (3d Cir. 2008); Jetter v. Beard,
183 Fed. Appx. 178 (3d Cir. 2006). Inmate litigants may only avoid exhaustion
requirements in the rare, limited circumstance where actions of prison officials
directly caused the inmate’s procedural default or grievance. See Camp v.
Brennan, 219 F. 3d 279 (3d Cir. 2000). Here, Ward filed a series of procedurally
defective grievances, all of which were rejected by prison officials and Ward was
advised regarding the need to limit his grievances to a single issue per grievance.
Ward eventually complied with this directive on June 9, 2010, when he filed
administrative remedy 593322-F1, however failed to administratively appeal the
denial of this grievance prior to filing the instant lawsuit. This failure operates as a
bar to his efforts to bring his claims in this Court.
Finally, we agree with the Magistrate Judge that Plaintiff’s due process and
equal protection claims are, in any event, meritless. However, because we have

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found that this case is barred by Plaintiff’s failure to exhaust his administrative
remedies, we need not review the Magistrate Judge’s finding in this regard.
IV.

CONCLUSION
Accordingly, based on the foregoing analysis, we shall adopt the Magistrate

Judge’s R&R in its entirety. An appropriate Order shall issue.

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