United States District Court, D. New Jersey
David Baker, No. 57359-018 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 by Amended Complaint
a civil rights claim pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971),
against defendants Thomas Kane, acting director of the
Federal Bureau of Prisons, David Ortiz, warden of FCI Fort
Dix, Warden Joiner of FCI Estill, Lieutenant T. Brown of FCI
Fort Dix, and Counselor G. Ruffin of FCI Fort Dix, all in
their personal capacities. ECF No. 48 at 3-9. Plaintiff
alleges claims of mail tampering, staff threats, and
time, the Court must review the Amended 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 Amended 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, which was dismissed without prejudice
because Plaintiff sought to only sue the defendants in their
official, not personal capacities. See ECF Nos. 46
(op.), 47 (order).
has now filed an Amended Complaint that sues the defendants
in their personal capacity. ECF No. 48 at 3-9. Plaintiff
explains in the Amended Complaint that he “was placed
in transit by the Bureau of Prisons as a retaliatory act, and
then transferred to FCI Fort Dix in New Jersey.”
Id. at 6. While at Fort Dix, Plaintiff says that
prison officials have made threats against him and that his
mail has been tampered with. Id. At FCI Fort Dix,
Plaintiff says that has been “repeatedly
threatened” by staff to refrain from reporting any
misconduct and to drop this litigation. Id.
According to Plaintiff, these actions have been occurring
under the BOP Director and the wardens of FCI Estill and FCI
Fort Dix. Id. Plaintiff also alleges that Defendants
Brown and Ruffin have each made threats against him with
reference to this lawsuit. Id.
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)).
Court will dismiss without prejudice Defendants Director
Kane, Warden Ortiz, and Warden Joiner, against whom there are
no allegations of knowledge of or involvement in the alleged
wrongful conduct. “A defendant in a civil rights action
must have personal involvement in the alleged wrongs;
liability cannot be predicated solely on the operation of
respondeat superior.” Rode v. Dellarciprete,
845 F.2d 1195 (3d Cir. 1988) (citing Parratt v.
Taylor, 451 U.S. 527, 537 n. 3 (1981); Hampton v.
Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d
Cir. 1976)). See also Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009) (“Because vicarious liability is
inapplicable to . . . § 1983 suits, a plaintiff must
plead that each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.). “Personal involvement can be shown
through allegations of personal direction or of actual
knowledge and acquiescence.” Id. Here,
Plaintiff alleges neither personal direction, participation,
or actual knowledge and acquiescence by these defendants.
Instead, he states only that the misconduct occurred
“under” them. This is insufficient to establish
personal involvement required for a civil rights
Bivens claim. As such, these defendants must be
allegations regarding verbal threats against Defendants Brown
and Ruffin will also be dismissed without prejudice for
failure to state a claim. Allegations of verbal abuse or
threats, unaccompanied by injury or damage, are not
cognizable in a civil rights action. See Verbanik v.
Harlow, 512 Fed.Appx. 120, 123 (3d Cir. Jan. 28, 2013)
(per curiam); Brown v. Deparlos, 492 Fed.Appx. 211,
215 (3d Cir. 2012). Here, there is no allegation that either
defendant took any action that would, coupled with a threat,
create a cognizable claim. Plaintiff does not allege, for
example, that these defendants have tampered with his mail or
retaliated against him in some other way. Absent additional
action beyond a verbal threat, Plaintiff cannot state a claim
against these defendants, and they 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). Although Plaintiff has been afforded one previous
opportunity to amend, the Court will grant, in a exercise of
caution, one additional opportunity to replead his ...