United States District Court, D. New Jersey
ROBERT B. KUGLER, District Judge.
Plaintiff is a federal prisoner currently incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 42 U.S.C. §§ 1981 & 1985. On January 21, 2014, the Court dismissed the complaint without prejudice. The Court gave plaintiff thirty days in which to move to reopen this case and instructed him that he should attach to any such motion to reopen a proposed amended complaint that corrected the deficiencies noted in the January 21, 2014 Opinion. On July 29, 2014, the Court received plaintiff's motion to reopen along with a proposed amended complaint. While plaintiff's motion to reopen is plainly untimely, in the interest of justice, the Court will grant the motion to reopen and the Clerk will be ordered to file the amended complaint. For the reasons that follow, this action will be transferred to the United States District Court for the Eastern District of Arkansas.
The Court dismissed plaintiff's original complaint without prejudice on January 21, 2014. Plaintiff named only Jordan Hollingsworth, the warden at F.C.I. Dix, as a defendant in his original complaint. The Court detailed plaintiff's allegations in his original complaint as follows:
Plaintiff states that he began serving his federal sentence for a controlled substance violation in 2008 in Kansas City, Missouri. At that time, plaintiff learned that he had been labeled as a MS-13 gang member. As a result, he was harassed and threatened by other inmates. Plaintiff was subsequently transferred to F.C.I. Forrest City in Arkansas after a few months. However, while at Forrest City, the MS-13 designation followed plaintiff and he was placed in a special housing unit for his safety for five-and-one-half months.
In 2010, plaintiff states that he was transferred to F.C.I. Fort Dix. He states that he has not been harassed by fellow inmates for his purported gang affiliation. Plaintiff claims that he is concerned about going home to El Salvador upon his currently scheduled release date in 2018 due to being labeled an MS-13 gang member. He states that he fears for the safety of his family members in El Salvador as well due to the MS-13 designation and that he will never secure employment after he is released from prison due to this classification.
(Dkt. No. 7 at p. 2.) The Court construed plaintiff's original complaint as attempting to allege a failure to protect claim against Hollingsworth due to plaintiff being designated as a member of the MS-13 gang. Ultimately, the Court dismissed the original complaint without prejudice because plaintiff failed to allege that Hollingsworth subjectively knew of any substantial risk of harm that plaintiff could face as a result of his purported MS-13 affiliation. Furthermore, the Court noted that the complaint was devoid of any allegations that Hollingsworth was aware that plaintiff had been so designated as a member of the MS-13 gang. Indeed, the Court further explained that plaintiff admitted that he had not been harassed by fellow inmates for his MS-13 designation since his arrival at F.C.I. Fort Dix in 2010. Accordingly, the Court dismissed the complaint without prejudice, giving plaintiff leave to file an amended complaint if he elected to do so.
Plaintiff has now submitted an amended complaint. Plaintiff names six defendants in his amended complaint: (1) Robert Mueller - Director of the Federal Bureau of Investigation ("FBI"); (2) Gregory Beninato - Special Agent at the FBI; (3) Robert Sigler - Assistant United States Attorney; (4) Warden - U.S. Penitentiary, Leavenworth, Kansas; (5) Warden # 2 - FCI Forrest City, Forrest City, Arkansas; and (6) John Does 1-10.
Plaintiff states that in 2007, government informants, on orders from Beninato, deliberately and intentionally set out to smear, taint and tarnish the name of plaintiff by telling plaintiff's neighbors that he was a member of the MS-13 gang. During 2007, the defendants were complicit in the knowledge and conduct of government informants who threatened to blackmail plaintiff by disseminating this false gang affiliation information. Defendants failed to deter or report on this behavior and actually encouraged or acted in concert with the informants.
Plaintiff was arrested in 2007 on federal drug conspiracy charges. He claims that the plan to disseminate the false information about him being a member of the MS-13 gang spilled into his 2008 trial. He specifically alleges that defendant Sigler and witnesses deliberately mentioned the MS-13 gang no less than seventy-seven times, thereby intentionally disregarding the knowledge that plaintiff was never a member of the gang. This trial testimony purportedly tainted the pre-sentence report which in turn was used to classify and categorize plaintiff within the Federal Bureau of Prisons ("BOP") system. Plaintiff states that the BOP system penalizes inmates for their gang affiliation.
Plaintiff also states that in 2008 he was in a maximum security prison in Kansas City. Plaintiff alleges that he knew at that time that prison staff had disseminated to the prison population that he was an alleged member of the MS-13 gang. This led to assaults and threats to plaintiff by inmate gang members. When plaintiff complained to prison staff about this issue, he was told that court papers classified him as a MS-13 member and that it did not matter how inmates had discovered the information since they would hear about it "sooner or later."
Plaintiff was then transferred to a low security prison in Forrest City, Arkansas. While at that prison, plaintiff again received threats and assaults from his alleged MS-13 gang membership. Plaintiff was then placed in segregated punitive confinement in the Special Housing Unit ("SHU"). Plaintiff was told by prison staff members that he would likely to be transferred to another facility in light of intelligence received regarding past and impending threats of violations related to his alleged MS-13 gang affiliation. Plaintiff was also told by inmates that he had now become targeted by MS-13 gang members for purported trying to "get out" of the gang. Plaintiff was forced to seek refuge within the protection of another prison gang. Nevertheless, plaintiff states that he has learned that there are MS-13 members outside of prison and in El Salvador that have marked him for death.
Plaintiff asserts his claims under Bivens as well as 42 U.S.C. § 1981 and § 1985. Plaintiff demands ...