SALOME v. ADMINISTRATIVE REMEDY COORDINATOR

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

______________________________

ALBERTO SALOME, :

:

Plaintiff : Civ. No. 20-6569 (RMB-SAK)

:

v. :

: OPINION

ADMINISTRATIVE REMEDY :

COORDINATOR, et al., :

:

Defendants :

______________________________:

BUMB, District Judge

This matter comes before the Court for screening of Plaintiff

Alberto Salome’s pro se prisoner civil rights amended complaint

for sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b) and 42

U.S.C. § 1997e(c); Plaintiff’s motion to appoint pro bono counsel

(Dkt. No. 5), and Plaintiff’s motions for an injunction. (Dkt.

Nos. 4, 9.) Plaintiff has not yet paid the filing fee or filed a

properly completed application to proceed without prepayment of

the fee under 28 U.S.C. § 1915(a) (“IFP application”). Therefore,

the Court will administratively terminate this case, subject to

reopening upon submission of the filing fee or a properly completed

IFP application.

I. Sua Sponte Dismissal

When a prisoner files a civil action regarding prison

conditions and seeks redress from a governmental entity, officer

or employee of a governmental entity, 28 U.S.C. § 1915A(b) and 42

U.S.C. § 1997e(c) require courts to review the complaint and sua

sponte dismiss any claims that are (1) frivolous or malicious; (2)

fail to state a claim on which relief may be granted; or (3) seek

monetary relief against a defendant who is immune from such relief.

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). 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 misconduct alleged.”

Id. (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

In a lengthy amended complaint, Plaintiff alleges a variety

of Bivens claims against seventeen defendants at FCI Fort Dix for

incidents between the dates of September 2018 and October 2020.

With so many claims against so many defendants, the amended

complaint is difficult to construe. Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim

showing that the pleader is entitled to relief.” All litigants,

especially those appearing pro se, are best served by following

this rule. In any event, the Court construes the amended complaint

as raising Bivens claims based on failure to respond to

administrative remedies, improper custody classification,

retaliation, inadequate medical and dental care, due process

violations with respect to a disciplinary hearing, excessive

confinement in the segregated housing unit (“SHU”) and related

procedural due process violations, and unsafe conditions in the

SHU. (Am. Compl., Dkt. No. 3.)

For relief, Plaintiff seeks damages and injunctive relief

including expunging his incident report, ordering defendants to

respond to his administrative remedies or alternatively find that

he exhausted his administrative remedies, correct his custody

classification and transfer him to a camp, and provide dental

surgery.

B. Bivens Claims

A Bivens claim1 provides an implied damages remedy as the

federal analog to a constitutional tort claim brought against state

actors under 42 U.S.C. § 1983. Ziglar v. Abbasi, 137 S. Ct. 1843,

1854 (2017). Implying a damages remedy is, however, “now a

‘disfavored’ judicial activity.” Id. at 1857 (quoting Iqbal, 556

U.S. at 675)). “[A] Bivens remedy will not be available [in a new

Bivens context] if there are “‘special factors counselling

hesitation in the absence of affirmative action by Congress.’” Id.

(alterations added) (quoting Carlson v. Green, 446 U.S. 14, 18

(1980) (quoting Bivens, 403 U.S., at 396)). Claims for

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971).

constitutional violations by federal actors solely for injunctive

relief under 28 U.S.C. § 1331 are not subject to the special

factors analysis described in Abbasi. Id. at 1862-63 (discussing

availability of injunctive relief for conditions of confinement as

a factor counseling hesitation in extending a damages remedy.) For

purposes of this screening, the Court will assume without deciding

that an implied damages remedy exists for Plaintiff’s

constitutional tort claims.

1. Failure to respond to administrative grievances

Plaintiff alleges Warden David Ortiz, Assistant Warden

Kroger, BOP Northeast Regional Director David Paul, the unnamed

Administrative Remedy Coordinator of the BOP’s Office of the

General Counsel, and Lieutenant McCool failed to respond to his

administrative grievances about prison conditions and/or failed to

respond to his appeal of a disciplinary hearing report.

“[O]bstruction of prison grievance procedures does not give rise

to an independent claim[,]” under 42 U.S.C. § 1983. Heleva v.

Kramer, 214 F. App'x 244, 247 (3d Cir. 2007). Therefore,

Plaintiff’s Bivens claims for failure to respond to his grievances

are dismissed with prejudice. These issues may be raised, not for

independent relief, but in opposition to any future motion by

defendants to dismiss Plaintiff’s claims for failure to exhaust

administrative remedies. See Hardy v. Shaikh, 959 F.3d 578, 584

(3d Cir. 2020) (describing prisoner’s burden of proof in opposing

dismissal of claims based on failure to exhaust administrative

remedies).

2. Claims regarding improper custody classification

Mrs. Macavoy is Plaintiff’s case manager. (A. Compl., Dkt. No.

3 at 6.) Plaintiff seeks to hold her liable for improperly scoring

his custody classification on more than one occasion, which

prevented his transfer to a minimum security camp and resulted in

him not getting credit for programs he completed. (Id. at 12-13.)

Plaintiff’s case manager is Mr. Reiser, whom Plaintiff seeks to

hold liable for allowing Plaintiff’s unit team to improperly score

his custody classification (Am. Compl., Dkt. No. 3 at 14.)

Plaintiff further seeks to hold his unit manager, Mr. Robinson,

and Warden Ortiz, Assistant Warden Kroger and Northeast Regional

Director David Paul liable for permitting Mrs. Macavoy to

improperly score Plaintiff’s custody classification. (Id. at 6-

8.)

For relief, Plaintiff seeks transfer to a prison camp upon

correction of his custody classification. Inmates, however, do not

have a protected liberty interest under the Due Process Clause to

be assigned to a particular place of confinement, a prerequisite

for a procedural due process challenge to the methods used to

determine where a prisoner is housed based on his/her custody

classification. Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005);

Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (in due process

challenge to prison regulations governing transfers, explaining

that “[p]rocess is not an end in itself. Its constitutional purpose

is to protect a substantive interest to which the individual has

a legitimate claim of entitlement.”) Furthermore, “prisoners have

no constitutional right to a particular classification[.]” Levi v.

Ebbert, 353 F. App'x 681, 682 (3d Cir. 2009); see also Marti v.

Nash, 227 F. App'x 148, 150 (3d Cir. 2007) (citing Moody v.

Daggett, 429 U.S. 78, 88 n. 9 (1976)). Therefore, prisoners may

not bring challenges to their custody classification under the Due

Process Clause, and Plaintiff fails to state a Bivens claim against

Mrs. Macavoy or any prison official or employee who failed to

correct her alleged improper custody classification scoring.

Amendment of these claims is futile because Plaintiff does not

have a protected liberty interest in a particular custody

classification, therefore, the claims will be dismissed with

prejudice.

3. Eighth Amendment Conditions of Confinement Claims

a. Allegations

On August 21, 2020, Plaintiff sat at the metal desk in his

cell in the SHU, and the desk broke off the wall and landed on top

of Plaintiff on the floor. (Am. Compl., Dkt. No. 3 at 13.)

Plaintiff was taken to a hospital for pain in his back and chest.

(Id.) Plaintiff alleges Captain Baez “is responsible to enforce

that prison officials working in S.H.U. provide safe living

conditions and protect inmates from unreasonably hazardous

conditions.” (Id. at 5.)

b. Standard of law

“It is undisputed that the treatment a prisoner receives in

prison and the conditions under which he is confined are subject

to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509

U.S. 25, 31 (1993)). “The Constitution ‘does not mandate

comfortable prisons….” Farmer v. Brennan, 511 U.S. 825, 832 (1994)

(quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)), but it

requires that prison officials provide “adequate food, clothing,

shelter, and medical care, and must ‘take reasonable measures to

guarantee the safety of the inmates[.]’” Farmer, 511 U.S. at 832

(quoting Hudson v. Palmer, 468 U.S. 517, 526–527 (1984). To succeed

on an Eighth Amendment conditions of confinement claim, a plaintiff

must establish a defendant’s deliberate indifference to inmate

health or safety. Id. at 834 (citations omitted).

[A] prison official cannot be found liable

under the Eighth Amendment for denying an

inmate humane conditions of confinement unless

the official knows of and disregards an

excessive risk to inmate health or safety; the

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. … [I]t is

enough that the official acted or failed to

act despite his knowledge of a substantial

risk of serious harm.

Farmer, 511 U.S. at 837, 42.2

There is no vicarious liability under 42 U.S.C. § 1983, “a

plaintiff must plead that each Government-official defendant,

through the official's own individual actions, has violated the

Constitution.” Iqbal, 556 U.S. at 676.

“[T]here are two theories of supervisory

liability,” one under which supervisors can be

liable if they “established and maintained a

policy, practice or custom which directly

caused [the] constitutional harm,” and another

under which they can be liable if they

“participated in violating plaintiff's

rights, directed others to violate them, or,

as the person[s] in charge, had knowledge of

and acquiesced in [their] subordinates'

violations.” A.M. ex rel. J.M.K. v. Luzerne

Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586

(3d Cir.2004) (second alteration in original).

Santiago v. Warminster Twp., 629 F.3d 121, 129 (3d Cir. 2010).

c. Analysis

Plaintiff alleges that Captain Baez should have directed the

employees under his supervision in the SHU to inspect the cell for

safety. (Am. Compl., Dkt. No. 3 at 13.) Plaintiff, however, did

not plead any facts to indicate Baez had any reason to believe the

desk presented a danger of collapsing, nor did he plead Baez was

aware of prior incidents of inmates being injured by collapsing

desks. “The knowledge element of deliberate indifference is

2 The Court reserves the issue of whether to imply a damages remedy

under Bivens to an Eighth Amendment conditions of confinement

claim. See Abbasi, 137 S. Ct. 1843.

subjective … meaning that the official must actually be aware of

the existence of the excessive risk; it is not sufficient that the

official should have been aware.” Beers-Capitol v. Whetzel, 256

F.3d 120, 133 (3d Cir. 2001) (quoting Farmer, 811 U.S. at 837–38.)

Therefore, the Court will dismiss this claim without prejudice.

The Court also dismisses Plaintiff’s claims against supervisory

prison officials whom Plaintiff made aware of his complaint,

because supervisory officials are not liable when there has been

no underlying constitutional violation. Chavarriaga v. New Jersey

Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (“The first step

in evaluating a section 1983 claim is to … determine ‘whether the

plaintiff has alleged a deprivation of a constitutional right at

all’”) (quoting Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000)

(quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5

(1998)).

4. Eighth Amendment inadequate medical care claims

against Dentist Asao, Mr. Wilk, and Nurse Brian

Taege

a. Allegations

Dr. Jeffrey Asao is a dentist at FCI Fort Dix. (Am. Compl.,

Dkt. No. 3 at 8.) Plaintiff seeks to hold him liable for failing

to provide proper treatment for a serious dental need. (Id.) On

June 2, 2020, Dr. Asao examined Plaintiff and determined that he

had a tooth infection and prescribed antibiotics and pain

medication. (Id. at 18.) Plaintiff’s prescriptions were refilled

when he complained of severe tooth pain on June 16, 2020. (Id. at

19.) On June 29, 2020, Plaintiff was advised that he needed oral

surgery. (Id.) On July 17, 2020, Dr. Asao x-rayed Plaintiff’s tooth

and told Plaintiff “you do need surgery but we don’t have one yet

and where [sic] waiting a response from regional dentist.” (Id.)

Plaintiff alleges he believes that Dr. Asao is capable of

performing the surgery. (Id.)

Mr. Wilk is the medical administrator at FCI Fort Dix. (Id.

at 7.) Plaintiff seeks to hold him liable for failing to respond

to Plaintiff’s administrative remedy requests concerning improper

medical and dental care, and falsification of a medical record.

(Id.) On October 23, 2019, Plaintiff requested dental care in a

“cop out” directed to Mr. Wilk and received no response. (Id. at

18.) On February 2, 2020, Plaintiff mailed a letter to Mr. Wilk,

stating that he needed dental care for a tooth infection, and that

he had lost one tooth and another tooth was black. (Am. Compl.,

Dkt. No. 3 at 18.) Plaintiff did not see a dentist until June 2,

2020. (Id.) Plaintiff was informed by the medical department, on

June 29, 2020, that he needed oral surgery. (Id. at 19.) When

Plaintiff’s infected tooth broke apart and he asked Mr. Wilk for

help, Wilk told him it was “up to region.” (Id.) Plaintiff also

complained to Mr. Wilk about the delay in receiving his arthritis

medication. (Id.)

Brian Taege is a nurse at FCI Fort Dix. (Am. Compl., Dkt. No.

3 at 7.) Plaintiff alleges Nurse Taege created a false medical

record on August 22, 2020, indicating that a follow-up examination

was performed after Plaintiff’s emergency room visit on August 21,

2020, but Plaintiff states neither Nurse Taege nor anyone else

provided him with a follow-up examination. (Id. at 12, 13, 19.)

b. Standard of law

“[D]eliberate indifference to serious medical needs of

prisoners” is “proscribed by the Eighth Amendment.” Estelle v.

Gamble, 429 U.S. 97, 104–05 (1976)). Deliberate indifference can

be shown when prison officials intentionally deny or delay access

to medical care for nonmedical reasons or intentionally interfere

with the treatment once prescribed. Id.; see also Natale v. Camden

Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quotation

omitted)). Negligence in diagnosis or treatment “does not state a

valid claim of medical mistreatment under the Eighth Amendment.”

Estelle, 429 U.S. at 106. “[A]bsent a reason to believe (or actual

knowledge) that prison doctors or their assistants are mistreating

(or not treating) a prisoner, a non-medical prison official … will

not be chargeable with the Eighth Amendment … requirement of

deliberate indifference.” Spruill v. Gillis, 372 F.3d 218, 236 (3d

Cir. 2004).

c. Dental treatment claims

Plaintiff has not stated an Eighth Amendment claim against

Dr. Asao, who provided Plaintiff with evaluation and treatment for

his tooth infection and referred Plaintiff for oral surgery.

Plaintiff has not alleged any facts to indicate Dr. Asao knew of

Plaintiff’s need for dental evaluation sooner but delayed the

evaluation for nonmedical reasons. Further, Dr. Asao is not liable

for failing to perform oral surgery because Plaintiff has not

alleged any basis for his belief that Dr. Asao is qualified to

perform the surgery or responsible for scheduling the surgery with

an oral surgeon. See Casilla v. New Jersey State Prison, 381 F.

App'x 234, 236 (3d Cir. 2010) (dismissing 1983 claim for delay in

scheduling surgery where the record contained nothing “concerning

the process for scheduling surgeries, why the delay occurred, or

how any of the appellees were responsible for the delay.”)

Plaintiff’s Eighth Amendment claims against Wilk may proceed

based on his alleged knowledge of and acquiescence in the delay in

providing Plaintiff with a dental evaluation and treatment between

October 2019 and June 2020, when Dr. Asao diagnosed a tooth

infection and prescribed antibiotics and pain medication.

Plaintiff has also alleged that on June 29, 2020, he submitted

a remedy to Warden Ortiz concerning the delay in providing oral

surgery after he lost a tooth due to infection, and the warden

told him an appointment was not available, so proceed with your

administrative remedies. (Am. Compl., Dkt. No. 3 at 11.) Plaintiff

also alleges that when he asked Wilk when he would be scheduled

for surgery, Wilk said “it’s up to region.” (Am. Compl., Dkt. No.

3 at 19.) It is not clear from the amended complaint whether the

oral surgery was approved as medically necessary, and the delay

was in scheduling with a regional dentist, or alternatively whether

the Fort Dix medical department had determined that surgery was

appropriate but not medically necessary; therefore, regional

administrative BOP approval was required. If it is the latter,

Plaintiff’s claim sounds in negligence rather than deliberate

indifference to a serious medical need for surgery. The Court will

dismiss these Eighth Amendment claims against Wilk and Warden Ortiz

without prejudice.

d. Arthritis medication claims

Plaintiff has not alleged sufficient facts concerning the

delay in refilling his medications for arthritis to state a

cognizable Eighth Amendment claim because he has not alleged there

was a nonmedical reason for the delay, how long the delay lasted,

or that he had a serious medical need for immediate refills or

suffered any injury as a result of delay. Therefore, Plaintiff

failed to state an Eighth Amendment claim against any defendant on

this claim.

e. Falsification of medical record claim

Plaintiff also seeks to hold Nurse Brian Taege liable for

falsifying a medical record to show that Plaintiff received the

follow-up examination prescribed by an emergency room doctor after

treatment for injuries when a metal desk fell on him. The Court

will dismiss this claim without prejudice against Taege and the

prison officials, including Wilk, to whom Plaintiff reported the

alleged false medical record because Plaintiff did not allege any

injury caused by the lack of a follow-up examination.

5. Failure to reveal basis for SIS Investigation,

failure to provide 30-day SHU assignment review,

and excessive SHU assignment

a. Allegations

In February 2020, Plaintiff asked Mr. Akinson, an SIS

lieutenant, the basis for the SIS investigation of Plaintiff. (Am.

Compl., Dkt. No. 3 at 14.) Akinson said that he had nothing to do

with the investigation, it was Plaintiff’s unit team, but Akinson

could get Plaintiff released from the SHU if Plaintiff agreed to

act as a confidential informant. (Id.) When Plaintiff refused,

Akinson did not release Plaintiff. (Id.) Mr. Aldujar is also an

SIS lieutenant. (Id. at 5.) Plaintiff seeks to hold Mr. Alduhar

liable for not assessing Plaintiff for continued SHU placement

every thirty days, as required during an SIS investigation. (Id.)

b. Standard of law

“In Sandin v. Conner, 515 U.S. 472 … (1995), the United States

Supreme Court acknowledged that state prison regulations may

create liberty interests protected by the Due Process Clause.”

Wilson v. Hogsten, 269 F. App'x 193, 195 (3d Cir. 2008). The Third

Circuit Court of Appeals held that “the federal government may

conceivably also confer such liberty interests on prisoners.” Id.

(citing Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1996)).

Protected liberty interests are limited to impositions by prison

officials of “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484. “When considering whether an inmate's

placement in segregated housing triggers a legally cognizable

interest courts should consider: (1) the amount of time spent in

segregation; and (2) whether the conditions of segregation were

significantly more restrictive than those imposed on other inmates

in segregation.” Allah v. Bartkowski, 574 F. App'x 135, 139 (3d

Cir. 2014) (citing Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000)

(citing Sandin, 515 U.S. at 486)).

c. Analysis

In his amended complaint, Plaintiff alleges he was in the SHU

for various reasons including an SIS investigation, as a sanction

for a prison disciplinary infraction, and upon his request for

protective custody. This Court cannot discern from the amended

complaint how long Plaintiff was in the SHU based on the SIS

investigation or what conditions Plaintiff was subjected to in the

SHU. Without this information, the Court cannot determine whether

the conditions Plaintiff was subjected to as a result of the SIS

investigation triggered a liberty interest protected by the Due

Process Clause. Therefore the Court will dismiss these Due Process

claims without prejudice.

6. Due process violations in connection with

disciplinary hearing

a. Allegations

K. Hampton is a disciplinary hearing officer (“DHO”) at FCI

Fort Dix, who conducted Plaintiff’s disciplinary hearing on

October 24, 2020. (Am. Compl., Dkt. No. 3 at 8, 20.) Plaintiff

alleges Hampton denied his request to see the evidence against

him, lied in the report by stating that Plaintiff had pled guilty,

and amended the report without a hearing, after correcting the

discrepancies that Plaintiff complained of in his appeal to the

regional director. (Id. at 20.) The only sanction Plaintiff alleges

the DHO imposed was fifteen days in the SHU. (Id. at 15.) He seeks

expungement of the incident report.

b. Standard of law

The Court construes the amended complaint as challenging only

the conditions of confinement during Plaintiff’s fifteen-day

period in the SHU, because Plaintiff did not allege additional

sanctions or that he lost good conduct time credit and seeks to

have it restored. See Arango v. Winstead, 352 F. App'x 664, 665–

66 (3d Cir. 2009) (where prisoner did not allege that sanctions

altered the length of incarceration, claim was cognizable under §

1983.) “Due process applies only where the conditions of

confinement impose ‘atypical and significant hardship [s] on the

inmate in relation to the ordinary incidents of prison life.’” Id.

(quoting Sandin, 515 U.S. at 484)). “Placement in administrative

segregation for days or months at a time … do not implicate a

protected liberty interest.” Arango, 352 F. App’x at 665-66 (citing

Torres v. Fauver, 292 F.3d 141, 150 (3d Cir. 2002); Fraise v.

Terhune, 283 F.3d 506, 522-23 (3d Cir. 2002)).

c. Analysis

Fifteen days in disciplinary detention is not an atypical and

significant hardship in relation to the ordinary incidents of

prison life. See e.g. Jones v. Davidson, 666 F. App'x 143, 147 (3d

Cir. 2016) (holding thirty days in restricted housing unit was not

atypical and significant hardship that created protected liberty

interest). The Court will dismiss this claim without prejudice

because Plaintiff has not alleged a cognizable liberty interest

that provides him protection under the Due Process Clause.

7. First Amendment retaliation claims against Jones,

Castellano, Macavoy and Robinson

a. Allegations

Mr. Castellano and Mr. Jones are Plaintiff’s unit counselors.

(Id. at 7.) Plaintiff seeks to hold them liable for their alleged

harassing and intimidating behavior. (Id.) More specifically, in

September 2018, when Plaintiff arrived at FCI Fort Dix, he met

with Mr. Castellano, who asked him if he was happy with his cell

assignment. (Id. at 17.) Plaintiff asked for a lower bunk due to

his medical conditions. (Id.) Castellano told Plaintiff he could

arrange it, but he wanted Plaintiff to work as a confidential

informant. (Am. Compl., Dkt. No. 3 at 17.) Plaintiff refused, and

the next week he was transferred to a new cell by Jones and

Castellano. (Id.) Plaintiff asked why he was transferred and

Castellano told him they already had that conversation. (Id.)

Plaintiff was moved to another cell later that month. (Id.) Around

the end of October 2018, Castellano and Jones began shaking down

Plaintiff’s section of a twelve-man cell, at least twice a month.

(Id.) In August 2019, they confiscated his commissary items and

prayer rug. (Id.) After Plaintiff asked Castellano for a

confiscation form, Castellano said “we’re not done with Alberto

Salome.” (Id.) That night, Plaintiff was transferred to another

cell. (Id.)

On October 10, 2019, Plaintiff was assaulted while sleeping

and the assailant could not be identified. (Id. at 18.) Jones and

Castellano stopped harassing Plaintiff after the assault, causing

Plaintiff to believe they had arranged it. (Id.) Plaintiff talked

to a lieutenant from another complex about the harassment by

Castellano and Jones, and she recommended that Plaintiff seek

protective custody, which Plaintiff did. (Am. Compl., Dkt. No. 3

at 17.) Plaintiff submits that the harassment by Jones and

Castellano occurred from September 2018 through October 2019.

(Id.) On October 18, 2019, Castellano went to Plaintiff’s cell for

a UDC hearing and told him “yeah we got you where you belong, don’t

even think your [sic] placing another foot in my unit.” (Id. at

18.)

Plaintiff alleges that his case manager, Mrs. Macavoy, teased

him by telling him to pack his things for his release from the

SHU, but then he was not released. (Id. at 11.) In March 2020, he

alleges that she visited him in the SHU and asked “what is your

problem, don’t you want to go back?” (Id. at 15.) Plaintiff asked

why he was still in the SHU. (Id.) She shouted, within the hearing

range of other inmates, “stop crying, you are the one who asked

for protective custody.” (Id. at 11, 15-16.) Inmates then harassed

and bullied Plaintiff. (Id.)

Mr. Robinson is Plaintiff’s unit manager. (Id. at 6.)

Plaintiff seeks to hold Robinson liable for teasing him by asking

Plaintiff if he wanted to be released from the SHU and return to

the compound, knowing he was not going to release him. (Id. at 14-

15.)

b. Standard of law

The Court construes Plaintiff’s claims of harassment as

retaliation in violation of the First Amendment.

To state a prima facie case of First Amendment

retaliation, a claimant must allege that (1)

he engaged in constitutionally protected

conduct; (2) he suffered an adverse action

“sufficient to deter a person of ordinary

firmness from exercising his [constitutional]

rights”; and (3) the constitutionally

protected conduct was “a substantial or

motivating factor” for the adverse action.

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001) (alteration in original) (first quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d

Cir. 2000); and then quoting Mt. Healthy City

Sch. Dist. Bd. of Educ. V. Doyle, 429 U.S.

274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977)).

Palmore v. Hornberger, 813 F. App’x 68, 70 (3d Cir. 2020).

c. Analysis

Plaintiff does not allege that harassment by Macavoy or

Robinson was in retaliation for his constitutionally protected

conduct. Therefore, he fails to state a First Amendment retaliation

claim against them. See e.g. Iwanicki v. Pennsylvania Dep't of

Corr., 582 F. App'x 75, 79 (3d Cir. 2014) (noting it was

questionable whether the correspondence at issue was

constitutionally protected to support a First Amendment

retaliation claim). Furthermore, teasing or verbal harassment3 does

3 The Court notes Plaintiff did not allege Macavoy accused him of

being in a snitch in front of other inmates, but rather that he

had asked for protective custody.

not constitute an adverse action sufficient to deter a person of

ordinary firmness from exercising a constitutional right. See e.g.

Marten v. Hunt, 479 F. App'x 436, 439 (3d Cir. 2012) (affirming

dismissal of First Amendment retaliation claim because verbal

threats are not sufficient to constitute an adverse action.)

Amendment of the retaliation claims against Macavoy and Robinson

is futile because the conduct alleged did not constitute an adverse

action. Thus, the claims will be dismissed with prejudice.

The Court turns to the claims against Jones and Castellano,

allegedly based on their conduct in retaliation for Plaintiff

refusing to act as a confidential informant. Assuming without

deciding that Petitioner has a First Amendment right not to speak,4

which protects his conduct of refusing to act as a confidential

informant, transferring Plaintiff to a different cell on two or

three occasions, without more, is not sufficient to deter a person

of ordinary circumstances from exercising his constitutional

right.5 Verbanik v. Harlow, 512 F. App'x 120, 122 (3d Cir. 2013)

4 It does not appear that the Third Circuit has found a right not

to act as a confidential informant in the prison setting that is

protected by the First Amendment. See Nelson v. Stevens, No. 18-

CV-238-WMC, 2020 WL 2112270, at *15-16 (W.D. Wis. May 4, 2020)

(noting Second Circuit found a prisoner has a First Amendment right

to refuse to act as a confidential informant, but Fifth and Ninth

Circuits held there is no First Amendment right “not to snitch,”

and the Seventh Circuit has not decided the issue.)

5 The Court also reserves the issue of whether to imply a Bivens

remedy for First Amendment retaliation by prison employees when a

prisoner refuses to serve as a confidential information.

(holding that housing transfer, without allegations concerning

adverse living conditions, did not constitute adverse action to

support First Amendment retaliation claim.) Arranging for an

inmate on inmate assault is certainly sufficient to constitute an

adverse action, but Plaintiff has not alleged any facts supporting

his belief that Jones and Castellano had anything to do with the

assault, apart from his allegation that they did not harass him

after the assault. Additionally, the assault occurred nearly a

year after Plaintiff refused to act as a confidential informant,

precluding a reasonable inference that the assault was

substantially motivated by Plaintiff’s constitutionally protected

conduct.

Plaintiff also alleges Jones and Castellano conducted cell

searches6 and confiscated his property in retaliation for his

refusal to work as a confidential informant. Plaintiff alleges he

refused Castellano’s request in September 2018. The cell searches

are alleged to have occurred bi-weekly beginning around the end of

October 2018, with the confiscation of Plaintiff’s property

occurring in August 2019. Under the circumstances, it is

implausible that the cell searches and confiscation of property

6 The Court does not construe the allegations concerning the cell

searches as a Fourth Amendment claim because “the Fourth Amendment

proscription against unreasonable searches does not apply within

the confines of the prison cell.” Hudson v. Palmer, 468 U.S. 517,

526 (1984).

were the result of Plaintiff’s refusal to act as a confidential

informant. See e.g. Burton v. Giroux, 794 F. App'x 196, 198 (3d

Cir. 2019) (affirming dismissal of claim where prisoner failed to

allege a “reason to believe that his threat to file a complaint

played any role in [corrections officer’s] decision to charge him

with misconduct.”)

8. RLUIPA and First Amendment free exercise

of religion claims against Jones and

Castellano

Plaintiff alleged that his unit counselors, Jones and

Castellano, confiscated his prayer rug during a cell search. (Am.

Compl., Dkt. No. 3 at 17.) The Court construes this allegation as

raising a claim under the Protection of Religious Exercise in Land

Use and by Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.A.

§ 2000cc et seq., and under the First Amendment Free Exercise

Clause. The provision of RLUIPA relevant here “provides that ‘[n]o

government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution ...

even if the burden results from a rule of general applicability

unless the government demonstrates that imposition of the burden

on that person—(1) is in furtherance of a compelling governmental

interest; and (2) is the least restrictive means of furthering

that compelling governmental interest.’” Holt v. Hobbs, 574 U.S.

352, 357–58 (2015) (quoting 42 U.S.C. § 2000cc(a)(1)).

Plaintiff has not alleged how long he was deprived of his

prayer rug or how the loss of his prayer rug placed a substantial

burden on his exercise of religion. Thus, Plaintiff has failed to

state a claim under RLUIPA, and he has also failed to allege a

more demanding First Amendment free exercise of religion claim.

See Robinson v. Superintendent Houtzdale SCI, 693 F. App'x 111,

117 (3d Cir. 2017) (quoting Cutter v. Wilkinson, 544 U.S. 709, 717

(2005)) (“RLUIPA is broader than the First Amendment and requires

the ‘compelling government interest’ and ‘least restrictive means’

test of strict scrutiny[.])” These claims will be dismissed without

prejudice.

9. Fourteenth Amendment deprivation of property claims

against Jones and Castellano

Plaintiff alleges that Jones and Castellano confiscated his

prayer rug and items he had purchased from the commissary when

they searched his cell. (Am. Compl., Dkt. No. 11 at 6.) Although

prisoners have a procedural due process interest in their property,

the protection extends only so far that prisoners must be afforded

a meaningful post-deprivation remedy. Cruz v. SCI-SMR Dietary

Servs., 566 F. App'x 158, 160 (3d Cir. 2014) (citing Parratt v.

Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds,

Daniels v. Williams, 474 U.S. 327 (1986); Hudson v. Palmer, 468

U.S. 517, 533 (1984). A prison’s internal grievance system and the

New Jersey Tort Claims Act may provide adequate post-deprivation

remedies. See e.g., Ragland v. Comm'r New Jersey Dep't of Corr.,

717 F. App'x 175, 178 (3d Cir. 2017). Plaintiff has not alleged

that he was not provided an adequate post-deprivation remedy.

Therefore, the Court will dismiss the Fourteenth Amendment due

process claims without prejudice.

C. Motion for Appointment of Pro Bono Counsel

Plaintiff filed a motion for appointment of pro bono counsel

under 28 U.S.C. § 1915. (Mot. for Appointment of Counsel, Dkt. No.

5.) Plaintiff seeks appointment of counsel because is unable to

afford counsel, the issues presented here are complex, he has a

limited opportunity to use the law library because he is in the

SHU, he lacks legal knowledge, and he has been unable to find

counsel willing to take his case. (Id.)

28 U.S.C. § 1915(e)(1) provides that a “court may request an

attorney to represent any person unable to afford counsel.” Before

appointing counsel, the Court must determine whether the plaintiff

presents of claim of arguable merit. Tabron v. Grace, 6 F.3d 147,

155 (3d Cir. 1993). If there is a claim of arguable merit in fact

and law, the Court should consider the following factors in its

discretionary decision to appoint pro bono counsel: the

plaintiff’s ability to present the case, the difficulty of the

legal issues, plaintiff’s to pursue factual investigation,

complexity of discovery, importance of credibility determinations,

and need for expert witnesses. Id. at 155-57.

Plaintiff, in the amended complaint, states a cognizable §

1983 claim under the Eighth Amendment solely for delay in providing

dental treatment. The claim is not complex, and Plaintiff has

demonstrated sufficient legal knowledge to pursue the claim at

this early stage of the proceeding. See Tabron, 6 F.3d at 156

(“[t]he plaintiff's ability to present his or her case is, of

course, a significant factor that must be considered in determining

whether to appoint counsel.”) The Court will deny, without

prejudice, Plaintiff’s motion for appointment of counsel.

D. First Motion for Injunction

Plaintiff filed a motion for an injunction on October 26,

2020, alleging that his unit team and SHU officials have denied

him access to a copier to make copies of legal documents. (Mot.

for Injunction, Dkt. No. 4.) Plaintiff has not alleged a claim of

denial of access to the courts in the amended complaint. He must

do so before he can seek injunctive relief, because to succeed on

a claim for preliminary injunctive relief, a plaintiff must “show

as a prerequisite{:] (1) a reasonable probability of eventual

success in the litigation, and (2) that it will be irreparably

injured ... if relief is not granted….” Reilly v. City of

Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017), as amended (June 26,

2017) (quoting Del. River Port Auth. v. Transamerican Trailer

Transport, Inc., 501 F.2d 917, 919–20 (3d Cir. 1974) (citations

omitted)). Plaintiff cannot establish a reasonable probability of

eventual success on a claim that he has not raised in the amended

complaint. The Court also notes that amendment of the complaint to

bring a First Amendment denial of access to the courts claim is

futile unless Plaintiff can allege that the refusal to make copies

of legal documents precluded him from bringing a nonfrivolous legal

claim. See e.g. Prater v. Wetzel, No. 15-2433, 2015 WL 8020801 (3d

Cir. Dec. 7, 2015) (citing Monroe v. Beard, 536 F.3d 198, 205 (3d

Cir. 2008)). For example, if a court permits a plaintiff to proceed

without submitting additional copies, he has not been denied access

to the courts. The Court will deny Plaintiff’s first motion for

injunction.

E. Second Motion for Injunction

In his second motion for injunction, filed on December 18,

2020, Plaintiff seeks an order directing the BOP Central Office to

accept his administrative appeals; alternatively, he asks the

Court find that he has exhausted the administrative remedies on

the claims raised in his amended complaint. (Mot. for Injunction,

Dkt. No. 9.) As discussed above, Plaintiff does not have a

constitutional right to a prison administrative remedy program.

Therefore, he cannot establish that he is likely to succeed on his

claim that defendants violated the Constitution by failing to

address his administrative remedy requests and appeals. If

Defendants raise failure to exhaust administrative remedies as an

affirmative defense, Plaintiff will then have the burden to

demonstrate he exhausted the remedies that were available to him.

See Hardy, 959 F.3d 578, 584 (3d Cir. 2020) (describing prisoner’s

burden of proof in opposing dismissal of claims based on failure

to exhaust administrative remedies). It is premature for the Court

to determine whether Plaintiff has met that burden because

defendants have not yet responded to the claims in the amended

complaint. Therefore, the Court will deny Plaintiff’s second

motion for injunction.

III. CONCLUSION

For the reasons stated above, the Court dismisses all § 1983

claims, with the exception of the Eighth Amendment claims against

Mr. Wilk and Warden Ortiz for delay in providing dental treatment.

The Court denies without prejudice Plaintiff’s motion for

appointment of pro bono counsel, and denies Plaintiff’s first and

second motions for injunction. The Court will administratively

terminate this matter, subject to reopening if Plaintiff timely

pays the $400 filing fee or submits a properly completed

application to proceed in forma pauperis under 28 U.S.C. § 1915(a).

An appropriate Order follows.

DATE: May 14, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge