Dickson v. USA, et al

Filing 13

MEMORANDUM (Order to follow as separate docket entry) (eo)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
BRYAN KERR DICKSON,
Plaintiffs

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vs.
UNITED STATES OF AMERICA,
et al.,
Defendants

No. 1:16-cv-01490
(Judge Kane)

MEMORANDUM
Background
On July 21, 2016, Plaintiff Bryan Kerr Dickson, an inmate at
the Federal Correctional Institution at Marianna, located in
Marianna, Florida (“FCI-Marianna”), filed pro se a civil action
against the United States and several unspecified individuals
under the Federal Tort Claims Act (“FTCA”) and Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1977).

In a separate document entitled “Clarification of

Defendants” Plaintiff appears to name the following individuals as
defendants but does not specify their conduct: (1)Loretta Lynch,
Attorney General of the United States; (2) Charles M. Samuels,
Jr., Director of the Federal Bureau of Prisons; (3) Michael D.
Tafelski, Regional Counsel of the Federal Bureau of Prisons; and
(4) Peter Smith, United States Attorney for the Middle District of
Pennsylvania.

(Doc. No. 2.)

In the so-called clarification of

defendants, Plaintiff also refers to a separate civil action, No.
1:14-cv-1784, which was dismissed by this court on September 12,

2016, and states that the present action is similar in nature to
that prior case.

(Id.)

Plaintiff’s claims are set forth in the following two
documents: (1) a form civil rights complaint (Doc. No. 1) in which
Plaintiff refers to an attached complaint and (2) what Plaintiff
entitles “Federal Tort Claim Act and Bivens Lawsuit.” (Doc. No.
4.)

Plaintiff’s action raises a hodgepodge of unrelated claims

and he fails to specify the individual defendants other than as
noted above. (Doc. No. 4 at 2-3, 6-10.)

He does not connect the

conduct alleged in these two documents with the Defendants
mentioned in the so-called clarification.

(Id.)

Plaintiff

alleges that on July 14, 2014, he was transferred by way of a bus
from the United States Penitentiary at Hazelton, located in
Bruceton Mills, West Virginia, to the United States Penitentiary
at Allenwood, White Deer, Pennsylvania (“USP-Allenwood”), and
while being transferred he was assaulted by other inmates.
at 6-10.)

(Id.

Plaintiff apparently contends that employees of the

Federal Bureau of Prisons were deliberately indifferent to his
safety concerns and that they acted in a negligent manner
resulting in him suffering injury at the hands of the other
inmates; he contends that at USP-Allenwood he was not only
assaulted by other inmates but also by correctional officers and
federal agents; he contends that Defendants withheld and delayed
providing him with his property and legal materials for eight
weeks; he alleges that he was forced to sleep on a “thin” mattress
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on a top bunk even though he had a bottom bunk restriction and
that this conduct amounted to battery by the United States; he
claims that Defendants refused to provide him with adequate
medical care for orthopedic conditions, including arthritis and
bone spurs in both knees, and he claims this was another incident
of battery; and finally he claims that he was provided with
inadequate dental care, i.e., Defendants lost and refused to
replace his dentures.

(Id.)

Plaintiff, as noted, names as a

Defendant the United States but does not specify by name the
individual Defendants other than in the so-called clarification.
(Id.)

Instead he names as Defendants all federal employees,

including employees of the Federal Bureau of Prisons and employees
of the center that designated him to USP-Allenwood, the Central
Office and the Northeast Regional Office of the Bureau of Prisons,
and USP-Allenwood.

(Id. at 2-3.)

Plaintiff allegations are

conclusory and as noted fail to specify the responsible
correctional officers or federal agents at USP-Allenwood.
Furthermore, other than with respect to the incident of July 14,
2014, he does not specify any dates or a range of time during
which the conduct which he contends violated his rights occurred.
As relief Plaintiff requests that (1) he be placed in a safe
environment; (2) he be referred to an outside dentist who
specializes in dentures and a specialist in orthopedic medicine so
that he can undergo double knee replacement; (3) he be released
from the custody of the Federal Bureau of Prisons; and (4) he be
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awarded monetary damages in the total amount of $6,800,000.00.
(Doc. No. 4 at 9-10.)
Along with his complaint, Plaintiff submitted a motion for
leave to proceed in forma pauperis under 28 U.S.C. § 1915 and an
authorization to have funds deducted from his prison account to
have the filing fee paid in installments.

(Doc. No. 5.)

However,

because the forms submitted were not the forms used by this court,
an Administrative Order was issued on July 22, 2016, directing
Plaintiff to file the proper forms within thirty days. (Doc. No.
7.)

On August 9, 2016, Plaintiff submitted the proper forms (Doc.

Nos. 10, 11), and on September 19, 2016, a motion for appointment
of counsel (Doc. No. 12).
For the reasons set forth below, Plaintiff’s motions to
proceed in forma pauperis will be construed as a motion to proceed
without full pre-payment of the filing fee and granted, and the
complaint will be dismissed pursuant to the screening provisions
of the 28 U.S.C. § 1915(e), of the Prison Litigation Reform Act
(“PLRA”) for failure to state a claim upon which relief may be
granted with leave to file an amended complaint with respect to
some of the claims.

Furthermore, Plaintiff’s motion for

appointment of counsel will be denied.
Discussion
A.

PLRA Screening

Because Plaintiff complains about “prison conditions,” the
screening provisions,

28 U.S.C. § 1915(e)(2), of the PLRA apply,
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given that Plaintiff is a prisoner proceeding in forma pauperis.
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).
Federal Rule of Civil Procedure 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), we 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,129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at
556.)

“[L]abels and conclusions” are not enough, Twombly, 550
5

U.S. at 555, and a court “‘is not bound to accept as true a legal
conclusion couched as a factual allegation.’”

Id., 127 S.Ct. at

1965 (quoted case omitted).
In resolving the question of whether a complaint states a
claim, we thus “conduct a two-part analysis.” Fowler, 578 F.3d at
210.

First, we separate the factual elements from the legal

elements and disregard the legal conclusions. Id. at 210-11.
Second, we “determine whether the facts alleged in the complaint
are sufficient to show that the plaintiff has a “‘plausible claim
for relief.’”

Id. at 211 (quoted case omitted).

Furthermore, pro se parties are accorded substantial
deference and liberality in federal court.

Haines v. Kerner, 404

U.S. 519 (1972); Hughes v. Rowe, 449 U.S. 5 (1980).

They are not,

however, free to ignore the Federal Rules of Civil Procedure.
Federal Rule of Civil Procedure 8 requires that a complaint
contain a short and plain statement setting forth (1) the grounds
upon which the court's jurisdiction rests, (2) the claim showing
that the pleader is entitled to relief, and (3) a demand for
judgment for the relief sought by the pleader.
The FTCA provides a remedy in damages for “injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of any employee of [the United States]
while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place
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where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see
also Toole v. United States, 588 F.2d 403, 406 (3d Cir. 1978);
O'Neal v. Department of Army, 852 F. Supp. 327, 334-35 (M.D. Pa.
1994); Turner v. Miller, 679 F. Supp. 441, 443 (M.D. Pa. 1987).

A

claim against a department or agency of the United States is not
cognizable under the Federal Tort Claims Act. 28 U.S.C. § 2679(a).
Furthermore, as long as the officials or employees of the United
States were acting within the scope of their duties or employment
they cannot be named as defendants and only the United States can
be so named. 28 U.S.C. § 2679(b);

Smith v. United States, 499

U.S. 160 (1991).
In cases involving federal prisoners, the courts have
recognized that the government's duty of care is one of ordinary
diligence.

See 18 U.S.C. § 4042; Turner, 679 F. Supp. at 443.

In

presenting a FTCA claim in this jurisdiction, a plaintiff must
show: (1) that a duty was owed to him by a defendant; (2) a
negligent breach of said duty; and (3) that the negligent breach
was the proximate cause of the plaintiff's injury or loss.

Mahler

v. United States, 196 F. Supp. 362, 364 (W.D. Pa. 1961), aff'd 306
F.2d 713 (3d Cir. 1962), cert. denied, 371 U.S. 923 (1962).
Bivens stands for the proposition 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,
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504 (1978).

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; he 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.

See Muhammad v.

Carlson, 739 F.2d 122, 123-4 (3d Cir. 1984).
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)(citing Hampton v. Holmesburg Prison
Officials, 546 F.2d 1017, 1082 (3d Cir. 1976)).

In Capone, the

court noted "that supervisory personnel are only liable for the
[civil rights] violations of their subordinates if they knew of,
participated in or acquiesced in such conduct."

868 F.2d at 106

n.7.
Initially, the court will address Plaintiff’s claim for
injunctive relief and release from confinement.
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It is well

recognized that the adjudicatory power of a federal court depends
upon the continuing existence of a live and acute controversy.
Steffel v. Thompson, 415 U.S. 452, 459 (1974) (emphasis in
original).

"The rule in federal cases is that an actual

controversy must be extant at all stages of review, not merely at
the time the complaint is filed."

Id. at n.10.

"Past exposure to

illegal conduct is insufficient to sustain a present case or
controversy regarding injunctive relief if unaccompanied by
continuing, present adverse effects."

Rosenberg v. Meese, 622 F.

Supp. 1451, 1462 (S.D.N.Y. 1985) (citations omitted).
Furthermore, "[a]bsent class certification, an inmate's claim
for injunctive and declaratory relief in a [civil rights action]
fails to present a case or controversy once the inmate has been
transferred."

Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.

1985) (citation omitted).

Plaintiff’s claim for injunctive relief

against individuals employed at USP-Allenwood will be dismissed as
moot because Plaintiff is no longer incarcerated at that facility.
Also, injunctive relief is not authorized under the FTCA and
to the extent that Plaintiff seeks release from the custody of the
Bureau of Prisons, it is well settled that inmates may not use
civil rights actions to challenged the fact or duration of their
confinement or to seek earlier or speedier release.

Maxwell v.

United States, No. 08-1300, 2008 WL 4609996, at *1 (M.D.Pa. Oct.
14, 2008)(“[T]he FTCA would not be an appropriate vehicle by which
Maxwell could obtain injunctive relief[.]”)
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(Jones, J.); Moon v. Takisaki, 501 F.2d 389, 390 (9th Cir.
1974)(“The Tort Claims Act makes the United States liable in money
damages for the torts of its agents under specified conditions,
but the Act does not submit the United States to injunctive
relief.”); Preiseer v. Rodriguez, 411 U.S. 475 (1975).
Consequently, the claims for injunctive relief and release from
confinement will be dismissed without leave to file an amended
complaint.
A review of Plaintiff’s claims reveals that he has not
asserted any cognizable claims under either the FTCA or Bivens.
The claims relating to being assaulted by federal agents and
correctional officers, the medical claims, the condition of
confinement claims and the claim relating to the withholding of
property and legal material are conclusory and fail to meet the
pleading requirements of Rule 8 and 12(b)(6) of the Federal Rules
of Civil Procedure.

Plaintiff fails to identify the correctional

officers or federal agents at USP-Allenwood and his Bivens claims
against those he did identify are not viable because he has not
alleged any personal involvement.

As for his FTCA claims,

Plaintiff has not alleged that any individual defendant was acting
outside the scope of his employment and there are no allegations
from which a fact-finder could conclude that any defendant
breached a duty of care which was owed to Plaintiff and that a
negligent breach of a duty of care was the proximate cause of any
injury or loss suffered by Plaintiff.
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Furthermore, it is well-

recognized that the Bureau of Prisons, its Regional Counsel’s
Office and Central Office and USP-Allenwood are not entities
subject to suit under the FTCA or Bivens.1
In light of the above, the instant complaint will be
dismissed, without prejudice, for failure to state a claim upon
which relief can be granted pursuant 28 U.S.C. §
1915(e)(2)(B)(ii).

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 amendment.

Consequently,

Plaintiff will be granted such opportunity other than with respect
to the claim for injunctive relief, the claim to be released from
confinement and the claim against the Bureau of Prisons, Regional
Counsel’s Office, the Central Office and USP-Allenwood and the socalled designation center.

Plaintiff 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 Plaintiff fails to file an amended complaint

1. Also, the so-called designation center referred to by
Plaintiff is not an entity subject to suit under the FTCA or
Bivens.
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adhering to the standards set forth above, this case will be
closed.
B.

Motion for Appointment of Counsel

Although prisoners have no constitutional or statutory rights
to appointment of counsel in civil case, a court does have broad
discretionary power to appoint counsel under 28 U.S.C. § 1915(e).
Tabron v. Grace, 6 F.3d 147, 153 155-57 (3d Cir. 1993)(setting
forth a non-exhaustive list of factors to be considered in ruling
on a motion for appointment of counsel, including the merits of
the claims and the difficulty of the legal issues), cert. denied,
114 S.Ct. 1306 (1994); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.
1981).

The United States Court of Appeals for the Third Circuit

has stated that appointment of counsel for an indigent litigant
should be made when circumstances indicate "the likelihood of
substantial prejudice to him resulting, for example, from his
probable inability without such assistance to present the facts
and legal issues to the court in a complex but arguably
meritorious case."
1984).

Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.

But no part of the discussion in Smith-Bey of

circumstances warranting appointment of counsel should be
interpreted to mean that "appointment is permissible only in
exceptional circumstances and that, in the absence of such

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circumstances, the court has no discretion to appoint counsel."
Tabron, 6 F.3d at 155.
Plaintiff fails to set forth sufficient special circumstances
warranting appointment of counsel. As an initial matter, Plaintiff
has not identified any individual defendants other than in the socalled clarification or how the defendants had personal
involvement in the alleged wrongful conduct.

Furthermore, the

legal and factual issues are relatively uncomplicated, and the
court cannot say, at least at this point, that Plaintiff will
suffer substantial prejudice if he is forced to prosecute this
case on his own.

Moreover, Plaintiff is a frequent litigation in

federal court2 and this Court’s duty to construe pro se pleadings
liberally, Haines v. Kerner, 404 U.S. 519 (1972), coupled with
Plaintiff’s apparent ability to litigate this action, militate
against the appointment of counsel.

Hence, the court will deny

Plaintiff’s motions for appointment of counsel.

In the event,

however, that future proceedings demonstrate the need for counsel,
the matter may be reconsidered either sua sponte or upon motion of
petitioner.
An appropriate order will be entered.

2. In the complaint Plaintiff refers to prior actions filed in
this district as well as in district courts in Texas, Arizona,
California, Oklahoma, Kentucky, West Virginia and Florida. (Doc.
No. 1, at 3-7.)
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