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Cracolici v. Bureau of Prisons


August 3, 2010


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


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 process felt very demeaning to him). Plaintiff also asserts that the physical efforts associated with placing himself in and out of the wheelchair, as well as the situations when Plaintiff had to propel himself around the facility, caused him excruciating pain. See id. at 6-7.

6. While the substance of Plaintiff's allegations seems to suggest that Plaintiff is aiming to allege a violation of his Eighth Amendment rights (on the grounds of alleged denial of medical after-care in the form of an appropriate wheelchair and/or a person assisting Plaintiff with regard to getting in and out of that wheelchair, and also propelling Plaintiff),*fn7 the allegations stated in Plaintiff's complaint with regard to the particular persons named as Defendants state facts qualitatively different -- if not wholly divorced -- from the issue of the alleged denial of medical care: indeed, these allegations are limited to denial of administrative remedy forms.

7. To the extent Plaintiff is seeking to avoid dismissal of his complaint on the grounds of Plaintiff's failure to exhaust his administrative remedies, this Court presumes -- for the purposes of this Order only -- that Plaintiff duly exhausted his administrative remedies by submitting his "ersatz" grievances.*fn8 However, that presumptively established due exhaustion cannot be utilized in lieu of a substantive claim, with regard to which Plaintiff has to first assert all facts related to that claim and then connect each named Defendant to that claim (indicating that particular Defendant's personal involvement in the alleged substantive wrong).*fn9 In other words, in the event some of the named Defendants (or all of them, or government officials other than Defendants named in the complaint at bar) were the persons whom Plaintiff alleges to have denied him such medical care/accommodations, Plaintiff shall identify those persons as defendants, and he must also assert facts related to these medical requests and deprivations: when and what Plaintiff specifically requested, and whom from, and who denied Plaintiff's request, and in what terms (or actions) that denial was made, and whether Plaintiff was provided with any alternative accommodations, and what these alternative accommodations were, etc.*fn10

9. Conversely, in the event Plaintiff's factual allegations are limited to denial of administrative forms, these allegations pertain solely to a procedural bar and fail to state a substantive claim. See, e.g., Baldauf v. Garoutte, 137 Fed. App'x 137, 141 (10th Cir. 2005) ("administrative remedies are not 'available' when prison officials refuse to provide prisoners with grievance forms"), cert. denied, 546 U.S. 1183 (2006); see also Johnson v. Wackenhut Corrections Corp., 130 Fed. App'x 947, 950 (10th Cir. 2005)(stating "[c]courts have held that refusing a prisoner grievance forms could raise an inference that the prisoner has exhausted 'available' administrative remedies") (citing Miller v. Norris, 247 F.3d 736, 738, 740 (8th Cir. 2001)); compare Watley v. Goodman, 31 Fed. App'x 169, 170 (6th Cir. 2002) (dismissal proper in that prisoner was refused grievance forms because he did not follow procedure for requesting such forms, he did receive forms when he followed proper procedure, and he did "not allege that there was no other source for obtaining a grievance form or that he made any other attempt to obtain a form or to file a grievance without a form"). Therefore, as drafted, the complaint is subject to dismissal even with regard to all Defendants other than the BOP, Herbik, Grondolsky and Zickerfoose.

10. However, it appears that Plaintiff, if given an opportunity to amend his pleading, might cure the deficiencies of his instant submission. Therefore, the Court finds it warranted and in the interests of justice to provide Plaintiff with an opportunity to file an amended complaint.

IT IS, therefore,on this 3rdday of August, 2010,

ORDERED that Plaintiff's application to proceed in forma pauperis is hereby granted, and the Clerk shall file the Complaint without prepayment of the filing fee; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b), the Clerk shall serve a copy of this Memorandum Opinion & Order, by regular mail, upon the United States Attorney for the District of New Jersey and upon the Warden of Plaintiff's place of confinement; and it is further

ORDERED that Plaintiff is assessed a filing fee of $350.00 which shall be deducted from his prison account pursuant to 28 U.S.C. § 1915(b)(2) in the manner set forth below, regardless of the outcome of the litigation; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(1)(A), Plaintiff is assessed an initial partial filing fee equal to 20% of the average monthly deposits to the Plaintiff's prison account for the six month period immediately preceding the filing of the Complaint; when funds exist, the New Jersey Department of Corrections shall deduct said initial fee from Plaintiff's prison account and forward it to the Clerk; and it is further

ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), until the $350.00 filing fee is paid, each subsequent month that the amount in Plaintiff's prison account exceeds $10.00, the New Jersey Department of Corrections shall assess, deduct from the Plaintiff's account, and forward to the Clerk payments equal to 20% of the preceding month's income credited to Plaintiff's prison account, with each payment referencing the docket number of this action; and it is further

ORDERED that the Clerk shall serve this Memorandum Opinion & Order upon Plaintiff by certified mail, return receipt requested; and it is further

ORDERED that the complaint, Docket Entry No. 1, is dismissed. Such dismissal is with prejudice as to Plaintiff's claims the Bureau of Prisons, but without prejudice as to Plaintiff's claims against the remaining Defendants; and it is further

ORDERED that Plaintiff may file an amended complaint clarifying his claims against the remaining Defendants or any other persons/entities whom Plaintiff believes to be liable to him for denial of medical care; Plaintiff's submission of his amended complaint shall be made within thirty days from the date of entry of this Order; and it is further

ORDERED that Plaintiff's application for appointment of pro bono counsel is denied, as premature at the instant juncture. Such denial is without prejudice to renewal of Plaintiff's motion in the event the Court screens Plaintiff's amended pleading and, upon proceeding it past the sua sponte dismissal, directs service of the amended complaint; and it is finally

ORDERED that the Clerk shall close the file on this matter subject to reopening in the event of the Clerk's receipt of Plaintiff's timely submitted amended pleading.

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