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Bower v. Cannon

United States District Court, D. New Jersey

December 5, 2018

CHARLES BOWER, Plaintiff,
v.
MR. CANNON, et al., Defendants.

          MEMORANDUM OPINION

          ROBERT B. KUGLER, U.S.D.J.

         Plaintiff, Charles Bower, is a federal prisoner currently incarcerated at the Federal Transfer Center in Oklahoma City. He is proceeding pro se and seeks to amend his 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). As discussed in the Court's September 9, 2018, screening Opinion, Plaintiff alleges that on September 7, 2017, while incarcerated at FCI Fairton, he received some but not all of his belongings when the Bureau of Prisons transferred him from FCI Schuylkill to FCI Fairton. (See id. at 4).

         Following receipt of his personal items, Plaintiff claims that Defendants denied him access to adequate legal materials and the prison law library. (Id.at 5). Specifically, Plaintiff alleges that he was denied access to the prison law library for one month and that when he regained access, it was only during his recreation hour. (Id.). Further, Plaintiff alleges that the law library lacked adequate materials for legal work, amounting to a deprivation of his constitutional rights. (Id.).

         The Court screened Plaintiff's original complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A and dismissed it without prejudice for failure to state a claim. (See ECF Nos. 9, 10). The Court found that a prisoner must, “pursue all avenues of relief available within the prison grievance system before bringing a federal civil rights action concerning prison conditions, ” which applies to “all inmate suits about prison life.” See Pena-Ruiz v. Solorzano, 281 Fed.Appx. 110, 112- 13 (3d Cir. 2008). Because Plaintiff did not allege that he sought any form of remedy through the BOP administrative remedy program or that it was otherwise unavailable, the Court dismissed Plaintiff's due process deprivation of property claim.

         As to Plaintiff's denial of access to the courts claim, Plaintiff failed to allege an actual injury and in turn failed to satisfy the constitutional standing requirement. See Lewis v. Casey, 518 U.S. 343, 349 (1996); (ECF No. 9, at 5). Because Plaintiff failed to set forth any facts indicating that officials thwarted litigation efforts in any particular case or that he suffered any actual injury due to the temporary confiscation of his legal property and access to the law library, the Court dismissed his denial of access claim. (ECF No. 9, at 6). After dismissing the complaint without prejudice, the Court denied Plaintiff's motions for a preliminary injunction as moot.

         Now before the Court is Plaintiff's motion to amend the complaint (ECF No. 7). The Court must review the proposed amended pleading and 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 his submission, Plaintiff does not elaborate on his deprivation of property or denial of access to the courts claims. Instead, Plaintiff seeks to add a new party, Warden Young, and add new claims against Defendant Catherine Cordero.

         I. Availability of Bivens Remedy

         Section 1983 of Title 42 created a remedy for monetary damages when a person acting under color of state law injures another, 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 when federal officers violated a person's Fourth Amendment rights. Bivens, 403 U.S. at 397. The Court extended the Bivens remedy twice more in: 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 that prisoner's estate had a Bivens remedy against federal jailers for failure to treat his asthma under the Eighth Amendment). “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.

         In the present case, Plaintiff's Fourteenth Amendment equal protection claim, and Eighth Amendment sexual harassment claim discussed below are “new Bivens contexts, subject to the analysis set forth in Ziglar.” Belt v. Fed. Bureau of Prisons, No. 17-13582, 2018 WL 4404707, at *8 (D.N.J. Sept. 17, 2018). This Court, however, need not reach the Ziglar issue because even if the Court implied a Bivens remedy, Plaintiff has failed to state a claim upon which relief can be granted. Consequently, the Court will, for purposes of screening only, assume “arguendo that a remedy under Bivens is available to Plaintiff for these . . . claims.” Id.

         II. Claims Against Warden Young

         Turning first to Warden Young, Plaintiff's claims are vague and conclusory and fail to meet the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. While a plaintiff need not plead facts so long as the complaint meets the notice pleading requirements of Rule 8, see Alston v. Parker, 363 F.3d 229, 233-34 and n. 6 (3d Cir. 2004), a complaint must plead facts sufficient at least to “suggest” a basis for liability. See Spruill v. Gillis, 372 F.3d 218, 236 n. 12 (3d Cir. 2004) (clarifying Alston); see also In re Tower Air, Inc., 416 F.3d 229, 236-38 (3d Cir. 2005) (finding that a plaintiff should plead “basic facts, ” for those are necessary to provide the defendant fair notice of the plaintiff's claims and the grounds upon which it rests).

         Here, the proposed pleading fails to suggest or give notice as to how Plaintiff “is entitled to relief, ” or for that matter, contain any “demand for . . . relief.” Fed.R.Civ.P. 8. Plaintiff criticizes Warden Young's leadership and proficiency “in all areas, ” contending that the Warden's leadership lead to the death of an unspecified inmate and a failure to properly maintain a certain computer and phone in the prison generally but fails to suggest how such conduct affected Plaintiff or violated Plaintiff's constitutional rights. (ECF No. 7, at 4).

         Plaintiff also alleges that the Warden's incompetence allowed his employees to write false incident reports and place prisoners “under investigation without due process.” (Id.). Even if the Court construed the pleading to suggest that one of those false reports lead to Plaintiff's “wrongful imprisonment” in solitary confinement (Id. at 2-3), Plaintiff fails to provide any information as to which incident or investigation affected him, when it occurred, how it violated his rights, how it was false or wrongful, who was involved, or even if Warden Young was ...


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