Baker v. Kane

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOHN DAVID BAKER, No. 18-cv-3820 (NLH) (AMD)

Plaintiff,

v. OPINION

THOMAS KANE, et al.,

Defendants.

APPEARANCE:

John David Baker, No. 57359-018

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Plaintiff Pro se

HILLMAN, District Judge

Plaintiff John David Baker, a prisoner presently

incarcerated at FCI Fort Dix in Fort Dix, New Jersey, seeks to

bring by second amended complaint a civil rights claim pursuant

to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), against defendants Thomas Kane, former 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. 54.

At this time, the Court must review the second 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 permit the second amended complaint to

proceed on Plaintiff’s mail tampering claims. His retaliation

claim is dismissed for failure to state a claim.

BACKGROUND

Plaintiff 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).

Plaintiff thereafter filed an amended complaint. ECF No.

48. Plaintiff alleged 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 tampered with his mail. Id.

Plaintiff stated 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.

The Court dismissed the amended complaint without prejudice

on August 22, 2019 for failure to state a claim. ECF No. 53.

It permitted Plaintiff to file a second amended complaint

addressing the factual deficiencies. Id. This motion to file

an all-inclusive complaint followed. ECF No. 54.

STANDARD OF REVIEW

Sections 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).

To 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)).

DISCUSSION

Plaintiff is a citizen of the United Kingdom. His second

amended complaint alleges that the Bureau of Prisons (“BOP”)

officials intercepted a report from the United Kingdom’s Foreign

and Commonwealth Office Mistreatment Panel (“the Tuck/Schaapveld

Report”) investigating his treatment at FCI Estill, South

Carolina. ECF No. 54 at 2-3. According to Plaintiff, the

Tuck/Schaapveld Report was intercepted on May 11, 2017 and a

request to transfer him from FCI Estill was signed by Warden

Joyner five days later. Id. at 3.

Plaintiff was interviewed on May 19, 2017 by an

unidentified SIS officer who had a copy of the Tuck/Schaapveld

Report in his possession. Id. at 4. Plaintiff states the

officer told him that “he was being ‘shipped’” and that “if he

co-operated with the SIS investigation and explained the nature,

origin, and proliferation of the Tuck/Schaapveld Report he would

be sent ‘close to home’” and “if he refused to provide more

details of his home Government’s investigations, he would be

moved elsewhere, further away from family.” Id. Plaintiff’s

family resides in Orlando, Florida, and he had been designated

for transfer to FCI Coleman in Sumterville, Florida. Id. On

May 25, 2017, his designated place of confinement was changed to

FCI Fort Dix, New Jersey. Id.

After arriving at Fort Dix, Plaintiff “was threatened by

Counselor Ruffin; shown the copy of the Tuck/Schaapveld Report,

and told not to pursue further legal and/or consular action

against the BOP or else there would be reprisals.” Id. at 6.

Counselor Ruffin told Plaintiff his transfer to Fort Dix had

been disciplinary, but Plaintiff states there was no

disciplinary action against him. Id.

Plaintiff alleges that he suffered various retaliatory acts

while confined at Fort Dix, “including mail tampering and the

willful withholding of legal filings sufficient to miss

deadline; retaliatory shakedowns during which evidence against

the BOP was seized; consular interference which included blocked

consular phone calls, withheld, interrupted, opened and seized

consular correspondence; and the deliberate blocking and

obstruction of legal phone calls.” Id. at 6-7.

Plaintiff asserts all of the actions against him are

retaliation for his participating in an investigation conducted

by the British Consulate into the BOP’s mistreatment of

Plaintiff. “[T]he prison officials ordered the transfer the

same week that the incriminating Tuck/Schaapveld Report was

opened and read by BOP Investigators . . . and it is ultimately

proven by the Plaintiff’s current location in New Jersey, a

state with which the Plaintiff has no connections or ties, in a

prison over 1,000 miles away from his family.” Id. at 10.

The Court is constrained to dismiss Plaintiff’s retaliation

claims for failure to state a claim. “The Supreme Court has

never implied a Bivens action under any clause of the First

Amendment.” Vanderklok v. United States, 868 F.3d 189, 198 (3d

Cir. 2017); see also Reichle v. Howards, 566 U.S. 658, 663 n.4

(2012) (“We have never held that Bivens extends to First

Amendment claims.”). In Ziglar v. Abbasi, the Supreme Court

concluded “that expanding the Bivens remedy is now a

‘disfavored’ judicial activity.” 137 S. Ct. 1843, 1857 (2017).

The Third Circuit has thus far held that Ziglar prevents First

Amendment retaliation claims against federal employees from

going forward. See Watlington on behalf of FCI Schuylkill

African Am. Inmates v. Reigel, 723 F. App’x 137, 140 n.3 (3d

Cir. 2018) (citing Vanderklok). Because current Third Circuit

case law does not recognize a Bivens action for retaliation by

federal employees, the Court must dismiss the retaliation

claims.

However, the Court will permit the second amended complaint

to proceed to the extent it raises interference with mail

claims, as opposed to alleging the interference was solely an

act of retaliation. Thomas Kane, the former acting director of

the BOP, and David Ortiz must be dismissed. “Bivens is not

designed to hold officers responsible for acts of their

subordinates.” Ziglar, 137 S. Ct. at 1860. Plaintiff concedes

he is unable to identify the persons responsible for interfering

with his mail, see ECF No. 1 at 11-12, and any link between the

persons responsible for the mail tampering and the named

defendants is speculative at this point in time. Therefore, the

Court will instruct the Clerk to add John Doe defendants to the

caption.

The U.S. Marshals cannot serve John Doe defendants;

Plaintiff must be able to identify defendants before the

Marshals can serve the second amended complaint. “[A]n

appropriate method for the plaintiff to seek the identity of the

John Doe defendants is through the use of a subpoena directed to

officials” at FCI Fort Dix. Gerber v. Various Other Prison

Officials, No. 1:06CV01358, 2007 WL 1847582, at *2 (M.D. Pa. May

10, 2007) (report and recommendation adopted June 25, 2007).

Subpoenas are governed by Federal Rule of Civil Procedure 45.

CONCLUSION

For the reasons stated above, Plaintiff’s motion to file an

all-inclusive complaint is granted. Plaintiff’s retaliation

claim is dismissed for failure to state a claim. All defendants

other than the John Doe defendants are dismissed. Plaintiff

shall submit an amended complaint within 45 days of this Opinion

and Order identifying John Doe defendants whom he claims are

liable for his interference with mail claims. An appropriate

order follows.

Dated: _April 21, 2020 ___s/ Noel L. Hillman_____

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J