Fields v. Federal Bureau of Prisons et al

Filing 6

MEMORANDUM (Order to follow as separate docket entry)Since Field's Complaint is "based on an indisputably meritless legal theory," his pending claims will be dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 5/4/15. (cc)

IN THE UNITED STATES DISTRIC T COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

FILED
SCRANTON
MAY 0 4 2015

LEONIDAS R.

FIELDS ,

e ]\.

PER

Plaintiff

DEPUTY CLERK

CIVIL NO . 3 : CV-15-575

v.

(Judge Conaboy)

FEDERAL BUREAU OF PRISONS,
ET AL.,
Defendants

MEMORANDUM

Background

Leonidas R.

Fields (Plaintiff) , an inmate present l y confined

at the Allenwood United States Penitentiary, White Deer ,
Pennsylvania (SP-Allenwood) , initiated this pro se civil rights
action pursuant to 42 U.S.C . § 1983 .

The Plaintiff has also

submitted an in forma pauperis application . 1
Named as Defendants are the Federal Bureau of Prisons
the United States Parole Commission

(Parole Commission)

(BOP) ;

and three

of i ts employees Chairman I ssac Fullwood , General Counsel Sharon
Gervasoni, and Examiner Tanner.

Other Defendants include Assistant

United States Attorneys Dennis pfannenschmidt and Michael Butler as
well as Paralega l Cynthia Roman of the United States Attorney ' s
Office for the Middle District of Pennsylvania .
1.
Fie l ds completed this Court ' s form app l ication to proceed in
forma pauperis and authorization to have funds deducted from his
prison account.
The Court then issued an Administrative Order
directing the Warden at his present place of confinement to
c ommence dedu c ting the fu ll filing fee from Plaintiff ' s prison
trust fund account.
1

against the following USP­

Plaintiff is also proceedi

lenwood officials: ex-Warden Ricardo Martinez; Warden Donna
Zickefoose; Attorney Michael Sullivan; Paralegal Dominic Desanto;
Captain Felton; CMCs Whittmer and Michael Castagnolia; SIS Heath;
Case Managers Sheehan and Dewalt; and Unit Manager Farley.
Ids describes himself as being a 67 year old inmate who
kil

a correctional officer 43 years

not a threat to institutional security.
he has

crime, Plaintiff states
hourly security check.

PIa

but maintains that

is

As a result of t
classifi

as requiring an

iff contends that there is no

rational basis for the hourly check designation and t
retaliatory, unwarranted, punitive measure.

it is a

Fields notes that a

former Warden stopped the hourly checks but they were restarted by
ex-Warden Martinez after Plaintiff filed a federal habeas corpus
action.
Complaint adds that the USP-Allenwood Defendants have
subjected him to verbal abuse, failed to assist him

seeking

halfway house placement, compassionate release, and formulating a
post release plan, and will not reduce
classificat

3

It is

s maximum custody

so asserted that the Parole Commission

2.
Plaintiff was convicted of bank robbery and jeopardy of li
with a dangerous weapon in
United States District Court for
Northern District of Indiana.
While serving that resulting
sentence he killed a correctional officer
was sentenced to life
isonment on June 17, 1975.
Fiel
also assaulted correctional
icers in 1976 and 1977.
See Doc. 1, pp. 22-23.
3.
Since there is no claim that Plaintiff has been determined to
be el ible for
lfway house placement, parole, or compassionate
release, the basis for t
se allegations is unclear.
2

and Attorney General ' s Office Defendants acted improperly in
denying his request for release on parole and have allowed him to
be unlawfully detained past his maximum release date .

Plaintiff

seeks compensatory and punitive damages.
Discussion

28 U. S.C .

§

1915 imposes obligations on prisoners who file

civil actions in federal court and wish to proceed in forma
pauperis under 28 U. S . C. § 1915 ,

~. ,

that the full fil i ng fee

ultimately must be paid (at least in a non-habeas suit)

§

1915(e) (2)provides :
(2) Notwithstanding any filing fee , or any portion
thereof , that may have been paid, the court shall
dismiss the case at any time if the court determines
that (A) the allegation of poverty is untrue; or (8)
the action or appeal (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
granted ; or (iii) seeks monetary relief against a
defendant who is immune from such relief.
When considering a complaint accompanied by a motion to
proceed in forma pauperis, a district court may rule that process
should not be issued if the complaint is malicious , presents an
indisputably meritless legal theory , or is predicated on clearly
baseless factual contentions .
327 - 28
1989) .

Neitzke v . Williams ,

(1989); Wilson v . Rackmill , 878 f.2d 772,

774

490 u.s . 319,
(3d Cir.

Indisputably meritless legal theories are those "in which

either it is readily apparent that the plaintiff's complaint lacks

an arguable basis in l a w or that the defendants are clearly
entitled to immunity from suit .. .

3

"

Roman v . Jeffes ,

904 F . 2d

192, 194
1278

(3d Cir. 1990)

(quoting Sultenfuss v. Snow, 894 F.2d 1277,

(11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has

added that "the plain meaning of 'frivolous' authorizes the
dismissal of

pauperis cIa

t

. are of little or

no weight, value, or importance, not worthy of serious
67 F.3d

consideration, or trivial."
1080, 1083 (3d Cir. 1995).

It also has been determined that "the

frivolousness determination is a discretionary one," and trial
courts "are

the best position" to

ermine when an indigent

litigant's complaint is appropriate for summary
..:!.....'-~~~~::..!::!,

smissal.

Denton

504 U.S. 25, 33 (1992).

BOP/Parole Commission

It is well sett

that the Uni

governmental entities are not

States and other

sons and therefore not proper

defendants in a federal civil rights action.

Accardi v. United

r. 1970); see

435 F. 2d 1239, 1241 (3d

F.D:I.C., 137 F.3d 148, 159 (3d Cir. 1998); Figueroa-Garay v.
Muncipality of Rio Grande, 364 F. Supp.2d 117, 128 (D. P. R.
2005).
In

, supra, the Court of Appeals

held that a federal agency is not a
~iability,

actors.

r

Third Circu

rson" subject to

§

1983

whether or not it is in an alleged conspiracy with state

Hindes, 137 F.3d at 158.

Similarly, in

Parole Commission, 1998 WL 557584 *3 (S.D.N.Y. Sept. 2, 1998), the
district court stated that

",=,-=..::..=.:..:..:::.

4

claims may not be maintained

against federal agencies."
1995 WL 708427 *2

See also Duarte v. Bureau of Prisons ,

(D . Kan. Nov . 3, 1995 ) (the BOP "is not a proper

defendant in a Bivens action. ") .

Based on an application of the

above standards , the BOP and Parole Commission are not properly
named defendants and therefore entitled to entry of dismissal .
Parole Denial/Illegal Confinement

According to the Comp laint, the Parole Commission and
Attorney General ' s Office Defendants acted impr operly in denying
Plaintiff's request for parole and have allowed him to be
unlawfully detained past his maximum release date.
Federal inmates challenging the duration of their
confinement or seeking earlier or speedier release must assert such
claims in a properly filed habeas corpus action under 28 U. S ..
224l.

Preiser v . Rodriguez, 411 U. S . 475

Heoting , 980 F.2d 745 , 748
(1993) .

(1975), Telford v.

(3d Cir.) , cert. denied 510 u.S.

Habeas corpus review under

§

prisoner to challenge the 'exe cution '

§

920

2241 "allows a federal
of his sentence ."

Federal Bureau of Prisons, 432 F . 3d 235 , 241

Woodall v .

(3d Cir . 2005).

Review is avai lable "where the deprivation of rights is such that
it necessarily impacts the fac t or length of detention."
Fauver , 288 F . 3d 532, 540

Leamer v .

(3d Cir. 2002) .

Inmates may not use civil rights actions to cha llenge the
fact or duration of their confinement or to seek earlier or
speedier release .

The United States Court of Appeals for the Third

Circ uit has similarly recognized that civil rights claims seeking
release from confineme nt sounded in habeas corpus .
5

See Georgevich

772 F.2d 1078, 1086 (3d Cir. 1985).

United States

520 U.S. 641, 646 (1997),
concl
on all

ions

t

necessarily

y the invali

Id. at 646.

raised

not

announced in

Pursuant to the standa

Plaintiff's

ty of the

a civil rights action.

imposed, is not cognizable"

punis

reme Court

declaratory relief "based

1 rights claim

that a

In

and

sent claims of excessive conf

nt are

a civil rights complaint. 4

The United States Supreme Court in
U.S. 477
dama

(1994),

that a constitutional cause

action for

s does not accrue "for allegedly unconstitutional conviction
sonment, or

or
unlawfu
a

the
revers
inval

ss would

other harm caus
r a convict

by actions whose
or sentence

I

," until

iff proves that the "conviction or sentence has been
on direct

1, expunged by executive order, declared

by a state tribunal authorized to make such

or called into quest
habeas corpus."
Based on

rmination,

by a federal court's issuance of a writ of
at 486-87.
nature of PIa

iff's allegations of improper

parole denial and excessive confinement, a finding in his favor
imply the invalidity of the continued service of his ongoing
f

ral confinement.

successfully chall

cation that

There is no

elds has

his failure to be releas

4.
It
is noted that
Ids recently filed a § 2241 action with
this Court regarding his pending contentions of excessive
ration.
of that
ition has been
red.
6

Consequently, pursuant to Heck,
Complaint to

intiff's instant

extent that it seeks an award of monetary dama

on the basis of excess

confinement is premature

s

cause he

imprisonment until

cannot maintain a cause of action for excess

the basis for the continued imprisonment is overturned.
Verbal Abuse

PIa

rally alleges that some of the USP-Allenwood

iff

Defendants subjected him to verbal threats that he would not
granted release and racial slurs.
The use of words generally cannot constitute an ass
actionable under

§

1983.

t

Johnson v. Glick, 481 F.2d 1028, 1033 n.7

(2d Cir.);

876 F. Supp. 695, 698-99 (E.O. Pa.

1995); Murray v. Woodburn, 809 F. Supp. 383, 384
("Mean harassment . . . is

(E.O. Pa. 1993)

ufficient to state a constitutional

deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp.
185, 189 (O.N.J. 1993)

("[V]erbal harassment

a constitutional violation enforceable under
Mere threatening language and

s not give rise to
§

1983.").

stures of a custodial

officer do not, even if true, amount to constitutional violations.
Balliet v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.)
("[v]erbal abuse is not a civil rights vio
800 F.2d 1130 (3d

r. 1986)

(Mem.).

." ) ,

ion .

A constitutional claim based
rdless of whether

only on verbal threats will fail

is

asserted under the Eighth Amendment's cruel and unusual punishment
clause, see Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under
the Fifth Amendment's substantive due process c
7

se.

Ve

1 harassment or threats, with some rein

accompanying them, however, may state a const
example, a viable c
defe

utional claim.

escalated the threat beyond mere words.

the inmate's head

For

im has been found if some action taken by the

v. Jackson, 973 F.2d 1518 (10

Cir. 1992)

Northington

(guard put a revolver to

threatened to shoot); Douglas v. Marino,

F. Supp. 395 (D.N.J. 1988)
threatened an inmate with a
ve

rcing act

(involving a prison empl
fel.

684

who

Moreover, alleged instances of

1 harassment which are not accompanied by any physical contact

are constitutionally insufficient.

Hart v. Whalen, 2008 WL

4107651 *10 (M.D. Pa. July 29, 2008);
1793018 *7

, 2004 WL

(E.D. Pa. 2004) (correctional officer's words and

gestures, including lunging at prisoner with a c
constitutionally insuffic

cause t

d fist were

was no physical

contact) .
There is no i
allegedly

against

act involving a
Douglas.
alleged

cation that any of the ve

ssment

1

was accompanied by a re

y weapon as contemplated

More importantly, it is not alleged

forcing

Northinaton and
t any of the

1 abuse was accompanied by any physically

behavior or made by any of the named Defendants.
circumstances descr

rusive

Given t

vague

by Plaintiff, any verbal remarks whi

have been made by any of the Defendants were not of t

magnitude

to shock the conscience as contemplated by this Court in
Lakeland School District, 148 F.

.2d 542, 547-48

8

may

(M.D. Pa.

2001) and thus, did not rise to the level of a constitutional
violation.
Classification

Pla

iff alleges that the reinstatement of hourly security

checks violat

his constitutional rights.

Supreme Court has held that a

ral inmate has "no legitimate

statutory or constitutional ent
assi

custodial

The United States

lement" to any particular

cation even if a new classi

cation would cause

that inmate to suffer a "grievous loss." Moody v. Daggett,
78,

88 n.9 (1976); James v. Reno,

1999) (citat

omitted)

(a

39 F. Supp. 2d 37,

ral inmate"

(D.D.C.

s no liberty interest

y classification") .

in his se

se, it has been recognized t

Li

justifiable expectation that he will be
particular prison.

that his

has not all

llenged custody

significant hardship necessary to establi
violation

rcerated in any

(1976).

y security checks resulted in

imposed

an inmate has no

Olim v. Wakinekona, 461 U.S. 238, 245 (1983);

Montayne v. Haymes, 427 U.S. 236, 242

James,

40

429 U.S.

Moreover,

ssification
type of at

calor

a constitutional

515 U.S. 472, 484

r

Plaintiff

(1995).

See

39 F. Supp. 2d at 40.

e

simply has no due process

erest in a certain

custodial classification which can be pursued in a civil rights
action.

~==~==~~~==~,

921 F. Supp. 291-92, 1051 (E.D. Pa.
Civil No.4: CV-Ol­

1996);
2008, sl

op. at 5 (M. D. Pa. October 30, 2001) (McClure, J.).
9

Retaliation

se of a constitutional right is

"Retaliation for the exe

itself a violation of rights secured by the Constitution.
v. Napoleon, 897 F.2d 103, 111-12

(3d Cir. 1990); Allah v.

Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000) (a
liti

tion claim ne

ing a retal

independent I

u

soner

not prove that he had an

erest in the privileges that he was deni

rty

only that the challenged actions were motivated in substantial part
by a desire to punish him for the exercise of a constitutional
right) .
In Rauser v. Horn, 241 F.3d 330, 333

(2001), the Third

Circuit Court of Appeals held that a prisoner must prove that the
conduct which led to the alleged retaliat
protected.

was constitutionally

prisoner satisfies that requirement he must then

If

show he suffered some "adverse action u at the hands of prison
Allah de

officials.

to deter a person of
[constitutional]

adverse action as being "sufficient
nary firmness from exercising his

0

ghts."

Allah, 229 F.3d at 225.

Next, the prisoner must prove a causal I
exercise
him.

the constitutional right

P

the adverse action against

Under Rauser, once a prisoner demonstrates that his exercise

of a constitutional
t

k between the

challenged
ng

ght was a substantial or motivating factor in

ision, the

ison officials may still prevail by

they would have made the same decision absent the

protected conduct
penological interest.

reasons reasonably related to a Ie
. at 334.
10

timate

A review of

Compla

shows that it is simply devoid of

any facts which could support a claim that the reinstatement of the
hourly checks occurred because Fie
ition.
desi

filed a habeas co

s

It is noted that Plaintiff acknowledges that said

ion was initiat

because he kill

Although the measure was allegedly

a correctional officer.

scontinued by a prior Warden,

it was reinstated by subsequently appointed Warden Martinez and
remains in

under current Warden Zic

foose.

Moreover, there

are simply no facts presented which could support a claim that
ision to reinstate the security measure was taken in

Martinez's
response to

intiff's prior unsuccessful filing of a habeas

corpus action.
PIa

iff has not presented any facts which could establish

a retaliatory motive by any of the Defendants.

Thus, Fields'

vague, speculative, wholly conclusory claim of being s

ected to

retaliation fails to satisfy the requirements of Sprouse and
Rauser.
Emotional Injury

Finally, Plaintiff is not entitled to recover compensatory
dama

s for mental anguish or emotional i

ury.

42 U.S.C.

1997e(e) provides that "[nJo federal civil action may

§

brought by

a prisoner confined in a jail, prison or other correctional
facility,

for mental or emotional injury s

without a prior showing of physical injury."
226 F.3d 247,250 (3d Cir. 2000), the

fered while in custody
In Allah v. Al­
States Court of

Appeals for the Third Circuit recognized that where a pIa
11

iff

fails to allege actual injury, Section 1997e{e) bars recovery of
compensatory damages.

However, the Third Circuit Court of Appeals

added that an inmate alleging a violation of his constitutional
rights may still pursue the action to recover nominal and/or
punitive damages even in the absence of compensable harm.
Under the standa

announced in Allah, Plaintiff's request

for monetary relief to the extent that it seeks compensatory
damages for emotional and mental injuries for

olation of his

constitutional rights is barred by Section 1997e(e).
Conclusion

Ids' Complaint is "based on an indisputably

Since

meritless legal theory," his pending claims will be dismissed,
without prejudice, as legally frivolous.

Wilson, 878 F.2d at 774.

An appropriate Order will enter.

~CHARD

Unit

iC

DATED: MAY!f, 1015

12

P. CONABOY
States District