# Baker v. Kane

> District Court, D. New Jersey · April 21, 2020

URL: https://www.frixlaw.com/law-library/cases/10268097

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** April 21, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10268097

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268097. Public record. Not legal advice.