Opinion

BALDWIN v. OFFICER T. BROWN

Court
District Court, D. New Jersey
Filed
Sep 4, 2019
Cited by
0 cases
Authority
More cited than 25.1%

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NOT FOR PUBLICATION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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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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