United States District Court, D. New Jersey
ROBERT B. KUGLER, District Judge.
Plaintiff is a former federal prisoner who was previously incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. Plaintiff has been released from federal incarceration since initially filing this action. He is proceeding pro se with a proposed second amended complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). His original complaint was dismissed predominantly with prejudice for failure to state a claim upon which relief could be granted except for a few claims that were dismissed without prejudice. Plaintiff's first amended complaint was also dismissed, but plaintiff was given the opportunity to file a second amended complaint on the claims that were dismissed without prejudice.
Plaintiff has filed an application to reopen this action and has included a proposed second amended complaint. Therefore, the Clerk will be ordered to reopen this case and file the second amended complaint. At this time, the Court must review the proposed complaint pursuant to 28 U.S.C. § 1915A to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from suit. For the following reasons, the complaint will be permitted to proceed in part.
The allegations of the second amended complaint will be construed as true for purposes of this screening. Plaintiff names Donna Zickefoose, the former warden of F.C.I. Fort Dix, as a defendant in this case as well as unknown other Federal Bureau of Prisons ("BOP") officials.
On December 21, 2009, this Court dismissed a habeas petition that plaintiff had filed pursuant to 28 U.S.C. § 2241. See Brown v. Grondolsky, No. 08-6367, 2009 WL 5206131 (D.N.J. Dec. 21, 2009). This Court determined that plaintiff's habeas action should be brought as a § 2255 motion in the District of Minnesota such that this Court lacked jurisdiction to consider the § 2241 petition. On January 25, 2009, the Clerk docketed plaintiff's notice of appeal in his § 2241 habeas case.
On January 29, 2009, plaintiff alleges that he was taken into administrative detention at F.C.I. Fort Dix, and then subsequently transferred on February 4, 2010 to MDC - Brooklyn. Plaintiff states that this transfer was contrary to Federal Rule of Appellate Procedure 23(a). Plaintiff alleges that this rule disallowed inmate transfers while an appeal is pending. He further claims that he was denied access to his legal materials to prepare his appeal. Plaintiff argues that he would have won his appeal in the Third Circuit had he had access to his legal materials.
Plaintiff raises three claims in his second amended complaint: (1) retaliation; (2) denial of access to courts; and (3) conspiracy. He requests monetary damages and injunctive relief.
III. STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
District courts must review complaints in civil actions in which a prisoner seeks redress against a governmental employee or entity. See 28 U.S.C. § 1915A(a). Section 1915A(b) directs district courts to dismiss sua sponte any claim that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See id. § 1915A(b).
Under Ashcroft v. Iqbal, "a pleading that offers labels or conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure to state a claim,  the complaint must allege "sufficient factual matter" to show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that ...