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Bower v. Cannon

United States District Court, D. New Jersey

August 30, 2018

MR. CANNON, et al., Defendants.




         Plaintiff, Charles Bower, is a federal prisoner currently incarcerated at the Federal Transfer Center in Oklahoma City. He is proceeding pro se with a civil complaint filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (See ECF No. 1). Plaintiff has also filed a motion for preliminary injunction. (ECF No. 5). For the reasons stated in this opinion, the Court will dismiss Plaintiff's complaint without prejudice and will dismiss Plaintiff's motion for preliminary injunction as moot.


         The allegations of the complaint will be construed as true for the purpose of this opinion. Plaintiff has filed this complaint against several employees and corrections officers at FCI Fairton, including Corrections Officer Mr. Cannon, Property Officer F. Repice, and Case Manager C. Cordero. Plaintiff alleges that Defendants violated his rights to due process by confiscating his personal belongings and depriving him of access to adequate legal materials and the prison law library. (See ECF No. 1 at pp. 3-7).

         On September 7, 2017, while incarcerated at FCI Fairton, Plaintiff claims he received multiple bags of his personal property transferred from FCI Schuylkill. (See Id. at p. 4). While reviewing the contents of his belongings, Defendant Cannon asked Plaintiff to step away so that he could search the bags for contraband. (See id.). Plaintiff alleges that Defendant Cannon confiscated certain belongings previously approved by Receiving & Discharge. (See id.). Hours later, Defendant Repice returned to Plaintiff a four-page list of his property and some, but not all, of his belongings. (See id.). Specifically, Plaintiff claims the returned property did not include his postage stamps and legal workbooks.[1] (See id.).

         Following the receipt of his personal items, Plaintiff claims that he was denied access to adequate legal material and the prison law library. (See p. 5). Specifically, Plaintiff alleges that he was denied access to the prison law library for one month. (See id.). When he was eventually permitted access to the law library, it was only during his recreation hour. (See id.). Further, Plaintiff alleges that the law library lacked adequate materials for legal work, amounting to a deprivation of his constitutional rights. (See id.).

         On January 26, 2018, Plaintiff filed a motion for preliminary injunction requesting an order restraining Defendants from making threats and destroying his property. (See ECF No. 5 at p. 2). On May 14, 2018., Plaintiff wrote to the Court to advise that he is in the process of being transferred to a different federal correctional facility and is currently being held at the Federal Transfer Center in Oklahoma City. (See ECF No. 8).


         Under the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte dismiss 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 28 U.S.C. § 1915(e)(2)(B).

         In determining the sufficiency of a complaint, the court must be mindful to construe it liberally in favor of the plaintiff. See United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The court should “accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn there from, and view them in the light most favorable to the plaintiff.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Thus, “[a] pro se complaint may be dismissed for failure to state a claim only if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Milhouse v. Carlson, 652 F.2d 371, 373 (3d Cir. 1981) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).


         Section 1983 of Title 42 created a remedy for monetary damages for those injured by persons acting under color of state law, but “Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). The Supreme Court created an implied cause of action in Bivens based on a violation of the Fourth Amendment by federal officers. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). The Court extended the Bivens remedy twice more: Davis v. Passman, 442 U.S. 228 (1979) (holding administrative assistant fired by Congressman had a Bivens remedy for her Fifth Amendment gender discrimination claim), and Carlson v. Green, 446 U.S. 14 (1980) (holding prisoner's estate had Bivens remedy against federal jailers for failure to treat his asthma). “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” Ziglar, 137 S.Ct. at 1855.

         The Supreme Court recently concluded in Ziglar “that expanding the Bivens remedy is now a ‘disfavored' judicial activity.” Id. at 1857. Ziglar created a funnel through which plaintiffs alleging constitutional violations by federal officials must pass. First, federal courts must determine whether the cause of action presents a “new context” for Bivens cases. If it does, courts must then determine whether alternative remedies exist. Finally and most critically, courts must determine whether there are special factors counselling against extending the Bivens remedy to the new cause of action. This ...

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