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Cracolici v. Bureau of Prisons

August 3, 2010

BENEDICT CRACOLICI, PLAINTIFF,
v.
BUREAU OF PRISONS ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jerome B. Simandle United States District Judge

MEMORANDUM OPINION & ORDER

It appearing that:

1. Plaintiff Benedict Cracolici ("Plaintiff"), an inmate currently confined at the F.C.I. Fort Dix, seeks to bring this action in forma pauperis, pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights. See Docket Entry No. 1. Based on his affidavit of indigence, see Docket Entry No. 2, and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant Plaintiff's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), and will order the Clerk of the Court to file the complaint.

2. Plaintiff submitted the total of four documents: (a) his civil complaint, see Docket Entry No. 1; (b) his in forma pauperis application, see Docket Entry No. 2; (c) an exhibit to his complaint, see Docket Entry No. 3; and (d) an application for appointment of pro bono counsel. See Docket Entry No. 4.

3. Plaintiff's complaint named, as Defendants in this matter, the following persons and entities: (a) the Bureau of Prisons ("BOP"); (b) Ms. Hood (who, according to the Complaint, is a "counselor [and] laision [sic] to other departments"); (c) Mr. Herbik (who, according to the Complaint, is a "Unit Manager and Ms. Hood's supervisor"); (d) Mr. Rayes (who, according to the Complaint, is another "counselor"); (e) Scott Rodrill (who, according to the Complaint, is a "Regional Director");*fn1 (f) Warden Grondolsky (the former warden of F.C.I. Fort Dix); and (g) Warden Zickerfoose (the current warden at the F.C.I. Fort Dix).*fn2 See Docket Entry No. 1, at 1 and 3-5.

4. Plaintiff's allegations with regard to the above-named Defendants are as follows:

a. Plaintiff makes no allegations against the BOP. In light of this fact, and also in light of the fact that the BOP is not a "person" within a meaning of a civil suit asserting jurisdiction under Bivens,*fn3 Plaintiff's claims against the BOP will be dismissed, with prejudice.

b. With regard to Hood, Plaintiff asserts that she violated Plaintiff' rights because she "denied [Plaintiff] access to the proper forms to attempt administrative remedy." Id. at 4.

c. As to Herbik, Plaintiff asserts that Herbik violated his rights because Herbik "did not answer [Plaintiff's] BP-8 denying [Plaintiff] access to the [a]dministrative [r]emedy [p]rocess."*fn4 Id.

d. With regard to Rayes, Plaintiff similarly asserts that Rayes violated his rights because he "denied [Plaintiff] administrative remedy forms when [Plaintiff] requested them." Id.

e. Addressing his claims against Rodrill, Plaintiff states that Rodrill violated his constitutional rights when "[Plaintiff] sent him a hand written BP-10 explaining how [Plaintiff's] right were being violated and all he did was reject it because it wasn't on the proper form." Id. at 5.

f. Proceeding to Warden Grondolsky, Plaintiff asserts that he "sent [Grondolsky] an ersatz BP-9 telling him that Hood and Herbik would not assist [Plaintiff] with [Plaintiff's] administrative remedies, and neither did Grondolsky after [Plaintiff] asked him to."*fn5 Id.

g. Finally, with regard to Warden Zickerfoose, Plaintiff maintains that Zickerfoose, too, violated his rights because "[s]he sent [Plaintiff] a 'Response' stating that [Plaintiff] was afforded [an o]pportunity to resolve [his] complaints which [in Plaintiff's opinion, was] about as far from the truth as it gets."*fn6 Id.

5. Switching to the substance of his claims, Plaintiff asserts that, after having a quadruple bypass surgery, Plaintiff returned to the F.C.I. Fort Dix and requested various accommodations (such as daily living assistance, bathing, dressing, obtaining a wheelchair, getting in and out of the wheelchair, having the wheelchair propelled to assist Plaintiff in his transportation needs, etc). See id. at 6. The "Statement of Claim" portion of the complaint focuses solely on the events associated with Plaintiff's wheelchair: it appears that Plaintiff was provided with one, but that device -- in Plaintiff's opinion -- was suited only for indoor rather than outdoor usage and, in addition, Plaintiff was provided with no prison officials' assistance as to getting in and out of the wheelchair (that is, short of one instance when Plaintiff was allegedly assisted by an officer who pushed Plaintiff's wheelchair from the medical unit to Plaintiff's cell). See id. (asserting that, in all other instances, Plaintiff had to "beg other prisoner to push" his wheelchair, and this ...


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