United States District Court, D. New Jersey
B. KUGLER, UNITED STATES DISTRICT JUDGE
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.
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).
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. (See id.).
the receipt of his personal items, Plaintiff claims that he
was denied access to adequate legal material and the prison
law library. (See id.at 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.).
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).
STANDARD OF REVIEW
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).
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)).
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.
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