United States District Court, D. New Jersey
David Plaintiff Pro se
L. HILLMAN, U.S.D.J.
John David Baker, a prisoner presently incarcerated at
Federal Correctional Institution (“FCI”) Fort Dix
in Fort Dix, New Jersey, seeks to bring a civil rights
complaint pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971),
against Thomas Kane, the acting Director for the Federal
Bureau of Prisons, and David Ortiz, the Warden of FCI Fort
Dix. Plaintiff alleges claims of mail tampering and
retaliation. ECF No. 34.
time, the Court must review the Complaint, pursuant to 28
U.S.C. §§ 1915(e)(2) and 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
such relief. For the reasons set forth below, the Court will
dismiss the Complaint without prejudice for failure to state
a claim, with leave to amend. 28 U.S.C. §§
1915(e)(2)(b)(ii) and 1915A(b)(1).
initiated this matter by filing an emergency motion for a
temporary restraining order in the U.S. District Court for
the District of South Carolina, without also filing a
complaint. ECF No. 1. The Court there denied the motion and
directed Plaintiff to bring his action into proper form by
filing a complaint to comply with Federal Rule of Civil
Procedure 3. ECF No. 30. Thereafter, Plaintiff filed the
Complaint. ECF No. 34.
allegations contained in the Complaint are sparse. Plaintiff
describes his claims as mail tampering and retaliation, and
“[a] multitude of retaliatory acts including mail
tampering, retaliatory shakedowns and intimidation.”
Id. at 6, 7. Plaintiff states that he is asserting
claims under the First Amendment regarding access to the
courts and the Eighth Amendment for cruel and unusual
punishment. Id. at 34. He provides no factual detail
to support his claims.
lists as defendants Thomas Kane, the acting director of the
Federal Bureau of Prisons, David Ortiz, the Warden of FCI
Fort Dix, Officer Ruffin, a counselor at FCI Fort Dix, and
Officer Halterman, also a counselor at FCI Fort Dix.
Id. at 2-3. He seeks to sue these defendants all in
their official and not individual capacities. Id. As
for the relief he requests, Plaintiff would like the Court to
“sanction the BOP as it deems necessary.”
Id. at 6.
1915(e)(2) and 1915A require a court to review complaints
prior to service in cases in which a plaintiff is proceeding
in forma pauperis and in which a plaintiff is
incarcerated. The Court must 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. This action
is subject to sua sponte screening for dismissal
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A because
Plaintiff is proceeding in forma pauperis and is
also incarcerated. See ECF No. 45 (granting in
forma pauperis application).
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.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009). “‘A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “[A] pleading that offers ‘labels or
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Complaint, Plaintiff states that he wishes to sue the
defendants in their official capacities only. An action
against government officials in their official capacities
constitutes an action against the United States, and
Bivens claims against the United States are barred
by sovereign immunity, absent an explicit waiver. See
FDIC v. Meyer, 510 U.S. 471, 483 (1994); Jaffee v.
United States, 592 F.2d 712, 717 (3d Cir. 1979);
Lewal v. Ali, 289 Fed.Appx. 515, 516 (3d Cir. 2008)
(noting that a Bivens action can be maintained
against a defendant in his or her individual capacity only).
As such, Plaintiff fails to state any claim upon which relief
may be granted, and the Complaint must be dismissed.
“plaintiffs who file complaints subject to dismissal
under [§ 1915] should receive leave to amend unless
amendment would be inequitable or futile.” Grayson
v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002). The Court will grant leave to amend in order to allow
Plaintiff an opportunity to replead his claims ...