The opinion of the court was delivered by: Irenas, Senior District Judge
Defendants move to dismiss Plaintiff's Bivens claim pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, for summary judgment. For the reasons set forth below, the Defendants motion is granted.
Plaintiff David A. Kaiser, an inmate presently incarcerated at the Federal Correctional Institution in Fort Dix, New Jersey ("Fort Dix"), brings this action in forma pauperis, alleging violations of his constitutional rights under the First and Eighth Amendments. He seeks an award of monetary damages and injunctive relief.
Plaintiff claims that in May 2001, he became aware of certain federal crimes being committed by Bureau of Prison ("BOP") guards at Fort Dix. (Pl.'s Compl. ¶ 3). On August 2, 2001, he brought the relevant facts to U.S. Attorney's office (Pl.'s Compl. ¶ 3) and agreed to provide further information and testimony in return for transfer to a halfway house and the submission of a motion on his behalf under Fed. R. Crim. P. 35(b). (Pl.'s Compl. ¶ 4). Plaintiff contends that from August 9, 2001, through November 15, 2001, he met with Defendants Blackman, Odell, Maoriana, Cooney, Hernandez, Hubbard-Engels, Shreck, Bailey, and Reiser, and another prisoner, who was their accomplice, in excess of fifty times at great risk of discovery and danger to himself. (Pl.'s Compl. ¶ 5-7).
On September 14, 2001, Plaintiff alleges "that it became obvious . . . that the defendants were conspiring to obstruct justice," so he complained to Sgt. Pearce of the Department of Defense ("DOD") police station at Fort Dix, where he worked at the time. On that same day, Defendants Odell and Captain Charles Maoriana allegedly confronted Plaintiff and threatened him after the DOD questioned them as to why the BOP was not acting on information Plaintiff provided regarding security breaches at Fort Dix. (Pl.'s Compl. ¶ 10-11).
Thereafter, Plaintiff contends that the Defendants retaliated against him by failing to transfer him to a halfway house as agreed and placing him in administrative detention. Defendants allegedly further retaliated against Plaintiff by denying him permission to attend religious observances, removing him from his job, and making false disciplinary charges against him, resulting in placement in segregation, loss of telephone privileges, loss of visitation, and an increase in security classification. (Pl.'s Compl. ¶ 5-21).
On January 14, 2002, Plaintiff brought this action in forma pauperis, pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), claiming violations of his constitutional rights. The Court construed Plaintiff's Complaint as alleging a denial of due process for breach of agreement in violation of the Fifth Amendment, a claim of retaliation for exercising his right to communicate grievances in violation of the First Amendment, and an Eighth Amendment claim for Defendants' deliberate indifference to Plaintiff's safety by labeling him a "snitch." (Opinion, p. 9, filed Oct. 4, 2001). An Order, dated January 14, 2002, granted Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). In the same order, the Court dismissed Plaintiff's Complaint without prejudice for failure to exhaust administrative remedies.
On July 1, 2002, Plaintiff wrote a letter informing the Court that he exhausted administrative remedies to no avail and seeking to reinstate his complaint. The Court determined from the face of the July 1, 2002, letter that there appeared to be substantial compliance with the administrative remedy scheme, and reinstated Plaintiff's Complaint. At the same time, the Court dismissed Plaintiff's breach of agreement claim for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and allowed Plaintiff's First Amendment retaliation claim and his Eighth Amendment deliberate indifference claim to proceed. (Order, filed Oct. 4, 2002; Opinion, P. 2, filed Oct.4, 2002).
Pursuant to Fed. R. Civ. P. 12(b)(6), Defendants move to dismiss Plaintiff's claim, or in the alternative, for summary judgment. Defendants argue that Plaintiff's claim must be dismissed because he did not exhaust the available administrative remedies prior to bringing suit as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).
The purpose of a motion to dismiss for failure to state a claim is to test the legal sufficiency of the allegations contained in the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Fed. R. Civ. P. 12(b)(6), the court must determine whether the allegations contained in the complaint, construed in the light most favorable to the plaintiff, show a set of circumstances which, if true, would entitle the plaintiff to the relief he requests. Gibbs v. Roman, 116 F.3d 83, 86 (3d Cir. 1997)(citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). A complaint will be dismissed only if the plaintiff could not prove any set of facts which would entitle him to relief. Nami, 82 F.3d at 65 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). If, on a motion to dismiss matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Fed. R. Civ. P. 12(b).
"Summary judgment is appropriate when, after considering the evidence in the light most favorable to the nonmoving party, no genuine issue of material fact remains in dispute and 'the moving party is entitled to judgment as a matter of law.'" Hines v. Consolidated Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991) (citations omitted). "The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party carries the initial burden of demonstrating the absence of any genuine issues of material fact. Big Apple BMW, Inc. v. BMW of North Am., Inc., 974 F.2d 1358, 1362 (3d Cir. 1992). Once the moving party has produced evidence in support of summary judgment, the nonmoving party must go beyond the allegations set forth in its pleadings and counter with evidence that demonstrates there is a genuine issue of fact for trial. Id. at 1362-63.
Summary judgment must be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). While pro se complaints are entitled to liberal construction, the plaintiff must still set forth facts sufficient to survive summary judgment. Shabazz ...