The opinion
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
KEVIN T. BALDWIN, : CIV. NO. 18-16213 (RMB)
:
Plaintiff :
:
v. : OPINION
:
OFFICER T. BROWN et al., :
:
Defendants :
BUMB, DISTRICT JUDGE
Plaintiff Kevin T. Baldwin, a prisoner confined in LSCI
Allenwood in Pennsylvania and formerly confined in the Federal
Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”)
initiated this civil rights action. (Compl., ECF No. 1.) The Court
denied Plaintiff’s application to proceed in forma pauperis status
and pre-screened the complaint pursuant to 28 U.S.C. § 1915A(b)
and 42 U.S.C. § 1997e(c)(1). (Opinion, ECF No. 10, Order, ECF No.
11.) Plaintiff then paid the filing fee and filed an amended
complaint, asserting jurisdiction under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, (“Bivens”) 403 U.S.
388 (1971) and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
2671 et seq. (Am. Compl., ECF No. 13.) The Court will reopen this
action and screen the amended complaint pursuant to 28 U.S.C. §
1915A(b) and 42 U.S.C. § 1997e(c)(1).
I. Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro
se. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se complaint,
however inartfully pleaded, must be held to ‘less stringent
standards than formal pleadings drafted by lawyers.’” Id.
(internal quotation marks omitted). “Court personnel reviewing pro
se pleadings are charged with the responsibility of deciphering
why the submission was filed, what the litigant is seeking, and
what claims she may be making.” See Higgs v. Atty. Gen. of the
U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D.
Rosenbloom, Exploring Methods to Improve Management and Fairness
in Pro Se Cases: A Study of the Pro Se Docket in the Southern
District of New York, 30 Fordham Urb. L.J. 305, 308 (2002)).
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “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
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misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
U.S. at 556.) Legal conclusions, together with threadbare recitals
of the elements of a cause of action, do not suffice to state a
claim. Id.
Thus, “a court considering a motion to dismiss can choose to
begin by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).
II. DISCUSSION
A. The Amended Complaint
The Court incorporates herein the factual allegations from
Plaintiff’s original complaint, as summarized in the Court’s
opinion dated April 12, 2019, and repeated in the amended
complaint. (Opinion, ECF No. 10.) In summary, Plaintiff alleges he
was a victim of excessive force by Officer Brown at FCI Fort Dix
on January 20, 2018, that he received inadequate medical care for
his head injuries resulting from the excessive force, and certain
of the defendants retaliated against him for filing grievances.
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The defendants named in the amended complaint are United States of
America, Warden David Ortiz, Associate Warden Grissom, Deputy
Captain Frazier, Lieutenant Tucker, Health Services Administrator
J. Wilks, Unit Manager Byrd, Medical Director/Clinical Director N.
Turner, Physician Assistant Ibe Chigozie, Physician Assistant E.
Fletcher, NREMT-P G. Martin, Corrections Officer Meredith,
Corrections Officer T. Brown, Corrections Officer E. Evans,
Discipline Hearing Officer J. Potter (at FDC-Philadelphia), and
Corrections Officer Giordano. (Am. Compl., ECF No. 13, ¶¶4-25.)
Plaintiff alleges few new facts in the amended complaint. He
alleges that on January 20, 2018, after he was beaten about the
head and face with a flashlight by Defendant Brown, photos and
video were taken of his injuries but he did not receive any medical
evaluation or treatment. (Am. Compl., ECF No. 13, ¶¶42-44.)
Plaintiff’s head was x-rayed on January 25, 2018, and the doctor
who performed the x-ray diagnosed post-concussion syndrome,
prescribed Dexamethasone Acetate and recommended that Plaintiff’s
blood pressure be checked in a day or two. (Am. Compl., ECF No.
13, ¶48.) Plaintiff alleges that between January 26 and 29, 2018,
he received no follow up medical treatment despite complaining of
severe pain. (Id., ¶52.)
The counts in the amended complaint are mis-numbered because
two of the counts were not numbered. Plaintiff’s FTCA claim for
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negligent medical care is unnumbered and will be referred to as
Count IV. Therefore, the Court shall refer to the FTCA claim for
negligent, supervision, hiring and training as Count IV(a) and the
unnumbered Bivens claim for violation of Plaintiff’s First
Amendment right to freedom of speech as Count IV(b). The remainder
of the counts will be referred to by the numbers assigned in the
amended complaint.
Counts I through IV(b) of the amended complaint are brought
under the FTCA, 28 U.S.C. § 2671 et seq., based on misconduct
alleged against federal employees, including claims of assault and
battery, malicious prosecution, negligence in protecting Plaintiff
from Officer Brown, medical negligence, and negligent supervision,
hiring and training. (Am. Compl., ECF No. 13, ¶¶120-146.)
For Count IV(b) of the amended complaint, Plaintiff alleges
a Bivens violation under the First Amendment right to freedom of
speech by Deputy Captain Frazier and Lieutenant Tucker, whom he
alleges refused to provide him with publications such as the prison
litigation manual, magazines and newspapers while he was in the
special housing unit. (Id., ¶¶147-150.)
For Count Five, assertefd as a Bivens claim, Plaintiff alleges
that Lieutenant Tucker, Officer Brandon1, Officer Giordano and Unit
1 Officer Brandon is not listed as a defendant in the caption of
the amended complaint or as a party under the heading “Parties” in
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Manager Byrd retaliated against him in violation of his First
Amendment right to seek redress for grievances. (Am Compl., ECF
No. 13, ¶¶151-53.) He alleges that Tucker, Brandon and Giordano
“trashed” his cell on April 30, 2018, because he filed a grievance
against Officer Giordano on April 27, 2018. Unit Manager Byrd
intentionally lost Plaintiff’s grievance form to protect Officer
Giordano. (Id., ¶154.) Lieutenant Tucker and Officer Giordano also
trashed Plaintiff’s legal work and other property as a means of
deterring him from filing prison grievances. (Id., ¶156.)
Lieutenant Tucker repeatedly trashed Plaintiff’s room. (Id.,
¶155.)
Count VI is an Eighth Amendment failure to protect claim
brought under Bivens against Assistant Warden Grissom and Warden
Ortiz for failing to protect Plaintiff from Officer Brown’s
assault. (Id., ¶¶157-60.) Plaintiff alleges Assistant Warden
Grissom and Warden Ortiz knew Officer Brown posed a serious risk
to Plaintiff and others based on similar complaints about Officer
Brown but did nothing to prevent the attack on Plaintiff. Count
VII is an Eighth Amendment excessive force claim against Officer
Brown. (Id., ¶¶161-63.)
the amended complaint. The Court assumes he is not a defendant to
a Bivens claim but that the allegations against him are alleged in
support of an FTCA claim against the United States.
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Count VIII is an Eighth Amendment claim under Bivens for
deliberate indifference to Plaintiff’s serious medical needs. (Am.
Compl., ECF No. 13, ¶¶164-67.) Plaintiff incorporates the
allegations in the body of the amended complaint and further
alleges:
165. After Plaintiff was assaulted and taken
to medical for examination, no care was
provided to Plaintiff, he was simply placed in
the SHU.
166. Between January 20, 2018 through January
30, 2018, Plaintiff repeatedly submitted
requests, made staff aware of[,] by verbally
advising them[,] that he was suffering in pain
and agony from the injuries as a result of the
assault and battery by Officer Brown, despite
all these pleas, Plaintiff was simply ignored.
167. The refusal of Defendants Chigozie,
Martin, Fletcher, Turner, Wilks, Evans,
Frazier and Ortiz to not provide any medical
care, refer the matter to outside medical, or
to prescribe any medication for the injuries
was wanton, reckless, sadistic[], malicious
and in violation of the Eighth [Amendment].
(Am. Compl., ECF No. 13.)
Plaintiff also makes allegations against certain defendants
who are not mentioned in the Bivens counts of the amended
complaint, including Officer Meredith, Officer Brandon (who is not
named as a party in the amended complaint) and DHO Potter. The
Court will assume this is intentional and that the allegations
pertain to Plaintiff’s FTCA claims against the United States.
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Because the United States is the only proper defendant to an FTCA
claim, the Court will administratively terminate, without
prejudice, Officer Meredith, Assistant Warden Grissom2 and DHO
Potter as defendants in this action.
B. FTCA Claims
The FTCA provides a limited waiver of the federal government's
sovereign immunity for the tortious acts of government employees
acting within the scope of their employment. Rinaldi v. United
States, 460 F. App'x 80, 81 (3d Cir. 2012) (per curiam) (citing 28
U.S.C. § 2671, et seq.)) Therefore, under some circumstances,
prisoners may invoke the FTCA to seek damages for injuries received
while in confinement. Rinaldi, 460 F. App’x at 81 (citing United
States v. Muniz, 374 U.S. 150, 153 (1963)). A plaintiff must allege
a physical injury that resulted from the tortious conduct of a
federal employee acting in the scope of his employment; mental or
emotional injuries are insufficient to state a claim. Michtavi v.
U.S., 345 F. App’x 727, 729-30 (3d Cir. 2009) (per curiam) (quoting
28 U.S.C. § 1346(b)(2) (“No person convicted of a felony who is
incarcerated … while serving a sentence may bring a civil action
2 Assistant Warden Grissom is named in Count VI of the Amended
Complaint, but the Court will terminate him as a defendant because
Count VI is dismissed without prejudice.
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against the United States … for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”)
Count II, Plaintiff’s FTCA claim based on alleged malicious
prosecution for false disciplinary reports, fails to state an FTCA
claim because Plaintiff does not allege a physical injury resulting
from the alleged tort. This claim will be dismissed with prejudice
because amendment is futile given the nature of the claim. West v.
United States, 729 F. App’x 145, 148-49 (3d Cir. 2018) (per
curiam); see also 28 U.S.C. § 2680(h) (exceptions to waiver of
sovereign immunity under 28 U.S.C. § 1346(b) include any claim
arising out of malicious prosecution.) The remainder of the FTCA
claims may proceed. Defendant United States of America is not
precluded from raising any immunity claims it may have.
C. Bivens Claims
The Court reserves ruling on whether any of Plaintiff’s Bivens
claims should be dismissed pursuant to the Supreme Court’s decision
in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).
1. Eighth Amendment Failure to Protect Claims against
Warden Ortiz and Assistant Warden Grissom (Count
VI)
For an Eighth Amendment claim “based on a failure to prevent
harm, the inmate must show that he is incarcerated under conditions
posing a substantial risk of serious harm.” Farmer v. Brennan, 511
U.S. 825, 834 (1994) (citing Helling v. McKinney, 509 U.S. 25, 35
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(1993)). For liability, the defendant must exhibit deliberate
indifference to inmate health or safety. Farmer, 511 U.S. at 834.
“[T]he official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Id. at 837.
Plaintiff alleges Warden Ortiz and Assistant Warden Grissom
knew Officer Brown posed a serious risk to Plaintiff and others
based on similar complaints about Officer Brown. “[T]he risk that
an inmate with a history of violence might attack another inmate
for an unknown reason” is insufficient to state an Eighth Amendment
claim for failure to protect. Bistrian v. Levi, 696 F.3d 352, 371
(3d Cir. 2012). The Court will dismiss this claim without
prejudice.
3. Eighth Amendment Claims for Deliberate Indifference
to Serious Medical Needs (Count VIII)
The Court will permit Plaintiff’s Eighth Amendment claims for
deliberate indifference to serious medical needs to proceed
against Physician Assistant Chigozie, NREMT-P Martin, Physician
Assistant Fletcher, Dr. Turner, Health Services Administrator
Wilks, Lieutenant Tucker, Officer Evans, Deputy Captain Frazier
and Warden Ortiz. The Court notes that Plaintiff alleges he
received no treatment or evaluation between January 20 to January
30, 2018, despite his pleas to the defendants. However, he also
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inconsistently alleges that his head was x-rayed on January 25,
2018, and he was prescribed medication for post-concussion
syndrome. Therefore, for the period beginning January 26, 2018,
the allegations in the amended complaint support only an Eighth
Amendment claim for delay in providing prescribed treatment or
medical malpractice under the FTCA.
4. First Amendment Retaliation Claims (Count V)
a. Tucker, Brandon, Giordano and Byrd
To establish illegal retaliation for engaging in
constitutionally protected conduct, a plaintiff must allege facts
indicating that: “(1) his conduct was constitutionally protected;
(2) he suffered an adverse action at the hands of prison officials;
and (3) his constitutionally protected conduct was a substantial
or motivating factor in the decision to discipline him.” Watson v.
Rozum, 834 F.3d 417, 422 (3d Cir. 2016). Filing inmate grievances
is constitutionally protected conduct. Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003) (citing Babcock v. White, 102 F.3d 267,
275-76 (7th Cir. 1996)).
An adverse action must be “‘sufficient to deter a person of
ordinary firmness from exercising his [constitutional] rights.’”
Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quoting Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)). The third element
of a retaliation claim may be established with evidence of “(1) an
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unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of
antagonism coupled with timing to establish a causal link.” Watson,
834 F.3d at 424. “[W]here the temporal proximity is not so close
as to be ‘unduly suggestive,’” the appropriate test is “timing
plus other evidence.” Id. (quoting Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 280 (3d Cir. 2000)).
Plaintiff asserts Lieutenant Tucker, Officer Brandon and
Officer Giordano retaliated against him by trashing his room and
his legal mail on April 30, 2018, and that they did so because he
filed a grievance against Officer Giordano on April 27, 2018. In
the body of the amended complaint, Plaintiff further alleged that
Lieutenant Tucker trashed Plaintiff’s room four times in seven
days, and trashed it twice again over three days in May 2018.
Plaintiff alleges that Unit Manager Byrd intentionally lost his
grievance form against Officer Meredith and his grievance form
concerning violation of his First Amendment rights.
Loss of two grievance forms, even though alleged to be
intentional, is not an adverse action sufficient to deter a person
of ordinary firmness from exercising his First Amendment rights.
The claim against Unit Manager Byrd will be dismissed without
prejudice.
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Plaintiff does not describe what he means by “trashed.” The
Court assumes, for purposes of screening only, that Plaintiff means
his cell was searched and his property was treated carelessly and
not returned to where it had been. Absent an allegation that
Plaintiff’s property and legal mail were destroyed, Plaintiff has
not alleged an adverse action sufficient to deter a person of
ordinary firmness from asserting his constitutional rights. Under
the objective standard, cell searches typically do not dissuade
prisoners from exercising their First Amendment rights. See
Kokinda v. Pennsylvania Dep’t of Corrections, Civ. Action No. 16-
0005, 2016 WL 7029385, at *4-5 (W.D. Pa. Oct. 31, 2016) (collecting
cases). The Court will dismiss the First Amendment retaliation
claims against Lieutenant Tucker, Officer Giordano and Unit
Manager Byrd without prejudice.
IV. APPOINTMENT OF PRO BONO COUNSEL
The Court initially denied Plaintiff’s request for pro bono
counsel without prejudice. (Opinion, ECF No. 10; Order, ECF No.
11.) The Court now finds that the factors described in Tabron v.
Grace, 6 F.3d 147, 157-58 (3d Cir. 1993) favor appointment of
counsel, specifically the degree to which factual investigation
will be required, the likelihood that some claims will turn on
credibility determinations, and the potential need for an expert
witness.
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V. CONCLUSION
For the reasons stated above, the amended complaint is
dismissed in part and may proceed in part. Counts I, III, IV,
IV(a), IV(b), VII, and VIII may proceed. Count II is dismissed
with prejudice. Counts V and VI are dismissed without prejudice.
Defendants Meredith and DHO Potter will be administratively
terminated as defendants. The Court will appoint pro bono counsel
to Plaintiff.
An appropriate order follows.
DATE: September 4, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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