Bower v. Rey et al

Filing 35

MEMORANDUM (Order to follow as separate docket entry). (sc)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES BOWER,
Plaintiff
vs.
J. REY, et al.,
Defendants

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No. 1:16-CV-00537
(Judge Kane)

----------------------------------------------------------------CHARLES BOWER,
Plaintiff
vs.
BETH ZALNO, et al.,
Defendants

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No. 1:16-CV-02048
(Judge Kane)

MEMORANDUM
I.

BACKGROUND
On October 11, 2016, Plaintiff Charles Bower, an inmate at

the Federal Correctional Institution at Allenwood (“FCIAllenwood”), White Deer, Pennsylvania filed a Bivens-styled
complaint, Civil No. 1:16-cv-02048 against thirteen individuals
employed at FCI-Allenwood. (Doc. No. 1.)

Bower’s complaint is a

16-page typewritten document that does not delineate how the named
defendants violated any of his constitutional rights.

Notably,

Bower fails to connect any of the named defendants to the conduct
alleged in the complaint. It appears the entire gist of his

complaint is that he was found guilty of misconduct for failing to
give a urine sample for drug testing.
In his complaint, Plaintiff sets forth in the complaint a
disjointed history of his medical and psychological problems.
Also, in the complaint Bower states that he has “an ongoing civil
case 1:16-CV-0537" raising the same claims. (Id. at 2.)
Previously, on March 22, 2016, Plaintiff had filed a Bivens-styled
complaint claiming relief for mental and emotional distress
resulting from the sanctions imposed due to his failure of the
drug test.

(Doc. No. 1 at 1-2; No. 16-cv-0537)

On October 25, 2016, Bower filed a motion for leave to
proceed in forma pauperis in the second action. (Doc. No. 6; No.
1:16-cv-02048.)

On December 6, 2016, Bower also filed a motion to

amend the complaint in which he requests leave to add five
defendants to the complaint.

(Doc. No. 14; No. 1:16-cv-02048.)

For the following reasons, the Court will grant motion to proceed
in forma pauperis (Doc. No. 6; No. 1:16-cv-02048), dismiss the
complaint pursuant 28 U.S.C. § 1915(e) of the Prison Litigation
Reform Act (“PLRA”)(Doc. No. 1; No. 1:16-cv-02048), and
consolidate the prior case Bower v. Rey, et al., 1:16-CV-00537
into Bower v. Zalno, et al., 1:16-CV-02048.
II.

LEGAL STANDARD
Section 1915(e)(2) of the PLRA applies to the above-captioned

actions given that Bower is complaining about prison conditions
and is a prisoner proceeding in forma pauperis.
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28 U.S.C. §

1915(e)(2).

The Court has an obligation to dismiss a complaint

under the PLRA screening provisions “at any time the court
determines” the complaint is frivolous or malicious, fails to
state a claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from suit.

See, e.g.,

Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir. 2000); 28
U.S.C. § 1915(e)(2)(B).
Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint
for “failure to state a claim upon which relief can be granted.”
Under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled
to relief.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231
(3d Cir.2008)).

While a complaint need only contain “a short and

plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), and detailed
factual allegations are not required, Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough
facts to state a claim to relief that is plausible on its face.”
Id. at 570.

“The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).
The Supreme Court’s decision in Bivens v. Six Unknown Named
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Agents of Fed. Bureau of Narcotics “established that a citizen
suffering a compensable injury to a constitutionally protected
interest could invoke the general federal question jurisdiction of
the district court to obtain an award of monetary damages against
the responsible federal official."

Butz v. Economou, 438 U.S.

478, 504 (1978) (citing Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 410 (1971)).

The

constitutional protected interests, include the right to adequate
medical care and a secure and livable environment under the Eighth
Amendment and the right to access to the courts under the First
Amendment.
A person seeking to recover damages under Bivens must satisfy
three requirements: the litigant must (1) assert that a
constitutionally protected right has been violated; (2) state a
cause of action sufficient to invoke the general federal question
jurisdiction of the district court; and (3) demonstrate why money
damages are the appropriate form of relief.
Carlson, 739 F.2d 122, 123-4 (3d Cir. 1984).

See Muhammad v.
Furthermore, in

addressing whether a viable Bivens claim has been stated against a
defendant the court must assess whether Plaintiff has sufficiently
alleged personal involvement of the defendant in the acts which he
claims violated his rights.

Liability may not be imposed under

Bivens on the traditional standards of respondeat superior. Capone
v. Marinelli, 868 F.2d 102, 106 (3d Cir. 1989).

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III.

DISCUSSION
A review of Bower’s complaint reveals that he has not

asserted any cognizable claims under Bivens.1

Bower’s claims are

vague and conclusory and fail to meet the pleading requirements of
Rules 8 and 12(b)(6) of the Federal Rules of Civil Procedure.
Bower does not specify the conduct violating his constitutional
rights, the time and place of that conduct, or the wrongful
conduct of any specific defendant.
Although the complaint as filed fails to state a cause of
action against the Defendants, it is possible that the
deficiencies may be remedied by filing an amended complaint.
Consequently, Bower will be granted such opportunity.

Bower is

also advised that the amended complaint must be complete in all
respects.

It must be a new pleading which stands by itself

without reference to the complaint or the other documents already
filed.

Such amended complaint should set forth his claims in

short, concise and plain statements.

It should specify which

actions are alleged as to which defendants.

If Bower fails to

file an amended complaint adhering to the standards set forth
above, this case will be closed.

An order consistent with this

memorandum follows.

1. To the extent Bowers raises a claim under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346(b), he also has not set
forth any cognizable claims.
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