Allah v. Beasely

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RATEEK ALLAH, :

:

Plaintiff :

: CIVIL ACTION NO. 3:18-CV-2047

v. :

: (Judge Caputo)

WARDEN BEASELY, et al., :

:

Defendants :

M E M O R A N D U M

On October 12, 2018, Rateek Allah, a federal prisoner formerly held at Allenwood

Federal Correctional Complex (FCC-Allenwood), in White Deer, Pennsylvania, filed a pro

se civil rights action pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S.

388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 (ECF No. 1.) He seeks leave to proceed

without prepayment of the filing fee. (ECF Nos. 2 and 10.) He asserts seven claims

against ten Bureau of Prisons (BOP) FCC-Allenwood employees: Warden Beasely; Unit

Manager Rodarmel; Dr. Stahl; Dr. Bushman; Pamela Cook; Mr. Constant; Ms. Holtzapple;

Mr. Shaffer; Captain Han and Mr. Veigh. (ECF No. 1.) He challenges his placement at

FCC-Allenwood; the denial of a medical transfer; the cost of commissary items; the

retaliatory denial of a portable urinal while temporarily housed in the Special Housing Unit

(SHU); his SHU conditions of confinement; the lack of variety and nutritional content of

the institution’s menu; and the loss of outgoing legal mail. (Id.)

1 According to the Bureau of Prisons’ Inmate Locator, Mr. Allah is currently held at the

Coleman II United States Penitentiary (USP Coleman-2), in Sumterville, Florida. See

https://www.bop.gov/inmateloc/ (last visited Sept. 19, 2019).

The Court proceeds to screen the Complaint pursuant to 28 U.S.C. § 1915(e)(2)

and § 1915A. Mr. Allah’s request for leave to proceed in forma pauperis will be granted.

However, for the reasons set forth below, the Complaint will be dismissed with leave to

amend. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

Also pending before the Court are two motions for preliminary injunction. (ECF

Nos. 7 and 8.) The Court will deny these motions as moot due to Mr. Allah’s to transfer

from FCC-Allenwood.

II. Standard of Review for Screening Pro Se In Forma

Pauperis Complaints

When a litigant seeks to proceed in forma pauperis, without payment of fees, 28

U.S.C. § 1915 requires the court to screen the complaint. See 28 U.S.C. § 1915(e)(2)(B).

Likewise, when a prisoner seeks redress from a government defendant in a civil action,

whether proceeding in forma pauperis or not, the court must screen the complaint. See

28 U.S.C. § 1915A(a). Both 28 U.S.C. § 1915(e)(2)(B) and § 1915(A) give the court the

authority to dismiss a complaint if it is frivolous, malicious, fails to state a claim on which

relief may be granted, or seeks monetary relief from a defendant who is immune from

such relief. See 28 U.S.C. § 1915(e)(2)(B)(i) - (iii); 28 U.S.C. § 1915A(b)(1) – (2); Ball v.

Famiglio, 726 F.3d 448, 452 (3d Cir. 2013).

A complaint is frivolous if it lacks an arguable basis either in law or fact. See

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (citing Neitzke v. Williams, 490 U.S.

319, 327-28, 109 S.Ct. 1827, 1832 - 33, 104 L.Ed.2d 338 (1989)). In deciding whether

the complaint fails to state a claim on which relief may be granted, the court employs the

standard used to analyze motions to dismiss under Fed. R. Civ. P. 12(b)(6). See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Under Rule 12(b)(6), the court “must accept

all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 - 11 (3d Cir. 2009) (citing Ashcroft v.

Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1949 - 50, 173 L.Ed.2d 868 (2009)). The

court may also rely on exhibits attached to the complaint and matters of public record.

Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

A complaint 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). A complaint is required to

provide “the defendant fair notice of what the . . . claim is and the grounds upon which it

rests.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007)).

To test the sufficiency of the complaint, the court “must take three steps.” Connelly

v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, a court must “take note of

the elements a plaintiff must plead to state a claim.” Id. (internal quotations and brackets

omitted). Second, the court must identify allegations that are merely legal conclusions

“because they . . . are not entitled to the assumption of truth.” Id. While detailed factual

allegations are not required, “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678, 129

S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S.Ct. at 1964). Third, a court should

assume the veracity of all well-pleaded factual allegations and “then determine whether

they plausibly give rise to an entitlement to relief.” Connelly, 809 F.3d at 787 (quoting

Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949).

A complaint filed by a pro se plaintiff must be liberally construed and “held ‘to less

stringent standards than formal pleadings drafted by lawyers.’” Fantone v. Latini, 780

F.3d 184, 193 (3d Cir. 2015) (citing Haines v. Kerner, 404 U.S. 519, 520 - 21, 92 S.Ct.

594, 596, 30 L.Ed.2d 652 (1972)); see also Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.

2197, 2200, 167 L.Ed.2d 1081 (2007). Yet, even a pro se plaintiff “must allege sufficient

facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 245 (3d Cir. 2013) (citation omitted). Pro se litigants are to be granted leave to file

a curative amended complaint even when a plaintiff does not seek leave to amend, unless

such an amendment would be inequitable or futile. See Estate of Lagano v. Bergen Cty.

Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir. 2014). A complaint that sets forth facts

which affirmatively demonstrate that the plaintiff has no right to recover is properly

dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d 103, 106

(3d Cir. 2002).

With these principles in mind, the Court sets forth the background to this litigation,

as Plaintiff alleges it in his Complaint.

III. Allegations of the Complaint

Prior to his transfer to FCC-Allenwood, Mr. Allah was housed at FCI-Estill were

staff “maliciously” “overscored” him and accused him of assaulting a staff member. FCI-

Estill staff “overscored” him in effort “to railroad Mr. Allah to the penitentiary.” (ECF No.

1 at 7.) Once at FCC-Allenwood, Mr. Allah complained to Warden Beasely and his Unit

Manager, Mr. Rodarmel, that he was erroneously over classified and should be housed

in a medium security prison. (Id.)

Next, Mr. Allah who suffers from HIV and AIDS, argues he “is in his last stage of

life.” (Id. at 8.) He suffers from an incurable brain infection and is extremely fragile

requiring his placement in a medical facility where he can receive 24-hour nursing care in

a long-term care unit. (Id. at 8-9.) These ailments are chronic and incurable. Plaintiff

claims that Dr. Stahl, Dr. Bushman and Pamela Cook denied his transfer request for

monetary reasons and are “intentionally to try and kill [him and] let him die in prison.” (Id.

at 8-9.) Dr. Bushman falsified portions of the medical transfer request when he stated

Mr. Allah was non-compliant with his medication and did not have dementia. (Id. at 8.)

Dr. Bushman denied Mr. Allah’s request for a transfer without ever examining him. (Id.

at 9.) Drs. Bushman and Stahl cosigned fraudulent medical entries by a former staff

member who reported seeing Mr. Allah walking when he is confined to a wheelchair. (Id.

at 8-9.) Mr. Allah raised these concerns with Dr. Stahl, Dr. Bushman and Pamela Cook

to no avail. (Id.)

In his third claim, Mr. Allah asserts that the institution’s commissary, run by Mr.

Constant, overcharges for items, and does not have the same television services, video

rental practices, and does not ““give out prizes for holidays” like other facilities. (Id. at

10.) Mr. Allah accuses Mr. Constant of stealing money from the Inmate Trust Fund. (Id.)

Next, on an unspecified date, while in the SHU, Mr. Allah asked Ms. Holtzapple for

“a urinal the SHU Lieutenant approved for him to have … in his possession.” (Id. at 11.)

Ms. Holtzapple asked if Mr. Allah was suing Ms. Martinez (non-defendant). When he

responded affirmatively, Ms. Holtzapple discontinued his use of a urinal. (Id.) Mr. Allah

used other containers as a portable urinal while in the SHU. Without a urinal, Mr. Allah

frequently smelled of urine and soiled his bed linens. (Id.) Ms. Holtzapple discontinued

Mr. Allah’s use of a urinal in retaliation for his lawsuit against Ms. Martinez. (Id.)

Mr. Allah’s fifth claim argues that per Captain Han and Warden Beasley, SHU

inmates do not receive the same amenities as general population inmates. (Id. at 15.)

SHU inmates may not possess radios or purchase commissary food items. Staff may

take away an inmate’s recreation time for having a piece of paper on the floor. (Id.) The

books available to SHU inmates are tattered and worn. (Id.) Mr. Allah also claims he

was denied a copy of his “contact list,” the name and address of his friends and family,

while in the SHU. (Id.)

Next, Mr. Allah claims that Mr. Shaffer, the institution’s Food Service Director, does

not follow the national menu and fails to serve nutritionally adequate meals. Additionally,

he serves the same meals every week. Mr. Shaffer also does not provide sweet desserts

at lunch and serves inmates processed meats. (Id. at 12-13.) Mr. Shaffer does not survey

the inmate population to see which meals they prefer or dislike. (Id. at 12.) Mr. Allah

believes Mr. Shaffer economizes on the menu and portions to save money. He claims

Mr. Shaffer is “stealing the money sent to feed the prisoners.” (Id.) “The current menu

can be considered cruel and unusual punishment.” (Id. at 12.)

In his final claim, Mr. Allah alleges that several pieces of Mr. Allah’s outgoing legal

mail never reached the Court. (Id. at 14.) Mr. Veigh, the Mailroom Supervisor, told Mr.

Allah to send his mail certified so it could be tracked. One of Mr. Allah’s cases was

dismissed by the Court because it failed to receive his in forma pauperis motion. (Id.) Mr.

Allah claims that Mr. “Veigh is liable for the actions of his department.” (Id.)

Mr. Allah seeks compensatory and punitive damages from each Defendants. (Id.

at 16.)

IV. Discussion

A. Warden Beasley and Unit Manager Rodarmel’s Alleged

Failure to Correct Mr. Allah’s Misclassification Fails to

State a Claim

Here, Mr. Allah alleges Warden Beasley and Unit Manager Rodarmel failed to take

any action on his erroneous classification to a penitentiary rather than a medium security

facility. “[A]n allegation of a failure to investigate, without another recognizable

constitutional right, is not sufficient to sustain” a civil rights claim. Graw v. Fantasky, 68

F. App’x 378, 383 (3d Cir. 2003) (citation omitted).

It is well-settled that a prisoner has no right or legally enforceable expectation to

be assigned to, or to remain at, any prison. Pursuant to 18 U.S.C. § 3621(b), the BOP

may confine a prisoner in any facility and transfer him at any time. McKune v. Lile, 536

U.S. 24, 39, 122 S.Ct. 2017, 2027-28, 153 L.Ed.2d 47 (2002) ("It is well established that

the decision where to house inmates is at the core of prison administrators' expertise.");

Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983) (an inmate

does not have a due process right to remain in or be transferred to any prison).

As Mr. Allah does not have a constitutional right or liberty interest in his placement

in any particular facility, he fails to state a claim against Warden Beasley or Unit Manager

Rodarmel based on their alleged failure to investigate or satisfactorily resolve the issue

of his alleged “overscoring” issue. For these reasons, Mr. Allah’s claims against Warden

Beasley and Unit Manager Rodarmel will be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim.

B. The Denial of a Medical Transfer does not Rise to the

Level of an Eighth Amendment Violation.

The Eighth Amendment prohibits the “ ‘unnecessary and wanton infliction of pain

contrary to contemporary standards of decency.’ ” Rouse v. Plantier, 182 F.3d 192, 197

(3d Cir. 1999) (quoting Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480, 125

L.Ed.2d 22, 31 (1993)). In the context of prison medical care, to show a violation of the

Eighth Amendment an inmate plaintiff must allege two things. First, he must demonstrate

that the defendant prison officials or employees had a subjective state of mind indicating

they were deliberately indifferent to his medical needs. Second, he must prove that those

medical needs were objectively serious. Pearson v. Prison Health Serv., 850 F.3d 526,

534 (3d Cir. 2017). “[T]the Eighth Amendment does not apply to every deprivation, or

even every unnecessary deprivation suffered by a prisoner, but only that narrow class of

deprivations involving ‘serious’ injury inflicted by prison officials acting with a culpable

state of mind.” Hudson v. McMillan, 503 U.S. 1, 20, 112 S.Ct. 995, 1006, 117 L.Ed.2d

156 (1970) (emphasis original). Without the requisite mental state, a prison official’s

conduct alone will not constitute deliberate indifference. See Farmer v. Brennan, 511

U.S. 825, 837-39, 114 S.Ct. 1970, 1979-80, 128 L.Ed.2d 811 (1994). Disagreements

between an inmate and a physician over the inmate’s proper medical care does not rise

to the level of an Eighth Amendment claim for the denial of medical care. See Durmer v.

O'Carroll, 991 F.2d 64, 68 (3d. Cir. 1993) (citing Monmouth Cty. Corr. Inst. Inmates v.

Lanzaro, 834 F.2d 326, 346–47 (3d Cir.1987)).

Taking the allegations of Mr. Allah’s Complaint as true, he “is in his last stage of

life … [and] was given until this year life expectancy to live.” (ECF No. 1 at 8.) However,

the chronic and incurable nature of Mr. Allah’s illnesses do not elevate Dr. Bushman, Dr.

Stahl, and Ms. Cook’s decision to deny his request for a medical transfer to a

constitutional violation. According to Mr. Allah, his physicians believe he is “faking” the

severity of his medical limitations and is non-compliant with his medication. Mr. Allah

contends “the standard … level [of] care” for his medical condition “is [to] transfer [him] to

a medical center,” id. at 8-9. His treating physicians disagree. This medical disagreement

does not assert an Eighth Amendment claim. Moreover, the fact that Mr. Allah was

previously housed at a medical facility or suffered injuries while housed at non-medical

facilities (other than FCC-Allenwood), also does not suggest how Dr. Stahl, Dr. Bushman

or Ms. Cook were deliberately indifferent to his serious medical needs. (Id. at 9.) Mr.

Allah’s claims the Defendants’ alleged desire to “cash in” on the government money paid

to them “for treating [him]” rather than transfer him also does not state an Eighth

Amendment claim as he does not allege these monetary considerations prevented him

from receiving necessary medical care. To the extent Plaintiff claims Defendants denied

his transfer request in retaliation for his filing of medical grievances, as discussed infra,

this claim fails to state a cognizable Bivens action.

Mr. Allah’s disagreement with the Defendants’ reasoning for denying his transfer

to a medical facility does not rise to the level of an Eighth Amendment claim. Accordingly,

Mr. Allah’s claims against Dr. Stahl, Dr. Bushman and Ms. Cook will be dismissed

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

C. Allegations of High-Priced Commissary Fails to state a Claim

The Eighth Amendment requires that convicted prisoners be provided “the minimal

civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct.

2392, 69 L.Ed.2d 59 (1981). Life's necessities consist of shelter, sanitation, food,

personal safety, medical care, and clothing. Farmer, 511 U.S. at 832, 114 S.Ct. at 1976.

“[N]ot every governmental action affecting the interests or well-being of a prisoner is

subject to Eighth Amendment scrutiny. After incarceration, only the unnecessary and

wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth

Amendment.” Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000).

Mr. Allah argues that “Mr. Constant needs to be put under audit” due to the higher

than normal prices charged for FCC Allenwood commissary items when compared to

other facilities. (ECF No. 1 at 10.) He also complains that FCC Allenwood does not offer

the same cable channel line-up or “give[s] prizes for holidays” like other facilities. (Id.)

These allegations do not state an Eighth Amendment violation as courts have consistently

held that prisoners have no constitutional right to purchase products at a certain price or

at a price comparable to that offered at a retail store. See McCall v. Keefe Supply Co.,

71 F. App’x 779, 780 (10th Cir. 2003) (claim that prisoner was overcharged for

commissary goods failed to state a constitutional claim); French v. Butterworth, 614 F.2d

23, 24 (1st Cir. 1980) (prisoners do not have constitutionally protected right to be able to

purchase commissary items at or near cost); Bullock v. Cohen, No. 17-271, 2018 WL

2411604, at * 7 (D.N.J. May 29, 2018) (same). Hence, Mr. Allah’s claim against Mr.

Constant will be dismissed pursuant to 28 U.S.C. § 1915 (e)(2)(B)(ii).

D. Bivens Fails to Provide a Remedy for Mr. Allah’s First

Amendment Retaliation claim against Ms. Holtzapple.

“[T]he First Amendment prohibits government officials from subjecting an

individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett,

_____ U.S. _____, _____, 139 S.Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (quoting Hartman

v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 1701, 164 L.Ed.2d 441 (2006)). “Official

reprisal for protected speech ‘offends the Constitution [because] it threatens to inhibit

exercise of the protected right.’” Hartman, 547 U.S. at 256, 126 S.Ct. at 1701 (quoting

Crawford-El v. Britton, 523 U.S. 574, 588, n. 10, 118 S.Ct. 1584, 1592, n. 10, 140 L.Ed.2d

759 (1998)). A prisoner alleging a retaliation claim must demonstrate (1) participation in

constitutionally protected conduct; (2) an adverse action by prison officials that is

sufficient to deter a person of ordinary firmness from exercising his constitutional rights;

and (3) a causal link between the exercise of his constitutional rights and the adverse

action taken against him. Mitchell, 318 F.3d at 530 (internal quotation marks and brackets

omitted).

Here, Mr. Allah claims Ms. Holtzapple discontinued his medically authorized

portable urinal because he filed a lawsuit against another employee. (ECF No. 1 at 11.)

Guided by the above cases, Mr. Allah has asserted a First Amendment retaliation claim

against Ms. Holtzapple. However, the Court must now assess whether Bivens provides

a remedy for such a claim.

To date, the Supreme Court has only recognized a Bivens remedy in the context

of the Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388, 91 S.Ct. 1999

(Fourth Amendment prohibition against unreasonable searches and seizures); Davis v.

Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Fifth Amendment gender-

discrimination in the employment context); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468,

64 L.Ed.2d 15 (1980) (Eighth Amendment Cruel and Unusual Punishment Clause for

failure to provide inmate adequate medical treatment). The Supreme Court recently held

that “expanding the Bivens remedy is now a disfavored judicial activity,” and has

“consistently refused to extend Bivens to any new context or new category of defendants.

Ziglar v. Abbasi, _____ U.S. _____, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017)

(citations omitted).

Post-Ziglar, courts must conduct a two-part test to determine a claim for relief

expands the Bivens remedy to a new context or category of defendants. Id. at _____,

137 S.Ct. at 1859, 1864. The context is new if it is different in a “meaningful” way from

the three established Bivens cases. (Id.) “Meaningful” differences can be based on:

the rank of the officers involved; the constitutional right at

issue; the generality or specificity of the official action the

extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory

or other legal mandate under which the officer was operating;

the risk of disruptive intrusion by the Judiciary into the

functioning of other branches; or the presence of potential

special factors that previous Bivens cases did not consider.

Id. at _____, 137 S. Ct. at 1860. Second, if the case presents a new context, the court

must consider whether “special factors counsel hesitation” against extending Bivens into

this area in the absence of affirmative action by Congress. Id. at _____, 137 S. Ct. at

1857-58. Thus, “the inquiry must concentrate on whether the Judiciary is well suited,

absent congressional action or instruction, to consider and weigh the costs and benefits

of allowing a damages action to proceed.” (Id.) “[I]f there are sound reasons to think

Congress might doubt the efficacy or necessity of a damages remedy,” then the Judiciary

should defer and allow Congress to play its proper role. Id. at _____, 137 S. Ct. at 1858.

This analysis requires the Court to assess the impact on governmental operations

system-wide, including the burdens on government employees who are sued personally,

as well as the projected cost and consequences to the government itself. Id. Additionally,

the court must consider “the existence of alternative remedies usually precludes a court

from authorizing a Bivens action.” Id. at _____, 137 S. Ct. at 1865. In the prison context,

the Supreme Court noted that:

Some 15 years after Carlson was decided, Congress passed

the Prison Litigation Reform Act of 1995, which made

comprehensive changes to the way prisoner abuse claims

must be brought in federal court. See 42 U.S.C. § 1997e. So

it seems clear that Congress had specific occasion to consider

the matter of prisoner abuse and to consider the proper way

to remedy those wrongs … [T]he Act itself does not provide

for a standalone damages remedy against federal jailers. It

could be argued that this suggests Congress chose not to

extend the Carlson damages remedy to cases involving other

types of prisoner mistreatment.

Id. at _____, 137 S. Ct. at 1865.2

Turning to Mr. Allah’s First Amendment claim, the Court notes that the Third Circuit

Court of Appeals has held that the “recognition of a cause of action under a constitutional

amendment does not mean that such an action can vindicate every violation of the rights

afforded by that particular amendment.” Vanderklok v. United States 868 F.3d 189, 199

(3d Cir. 2017). That is the case here. The Supreme “Court has declined to create an

implied damages remedy” in the context of a First Amendment claim. Id. at _____, 137

S. Ct. at 1857 (citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648

(1983)). The Third Circuit Court of Appeals held:

[i]n Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018), [the Third

Circuit Court of Appeals] observed that “[t]he Supreme Court

has never recognized a Bivens remedy under the First

Amendment,” id. at 95, and concluded that special factors

militated against recognizing such a remedy in the prison

context because the prisoner’s “retaliation claim involves

executive policies, implicates separation-of-power concerns,

2 Claims redressable via the Prison Litigation Reform Act’s (PLRA) covers “all inmate

suits about prison life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532,

122 S.Ct. 983, 992, 152 L.Ed.2d 12 (2002).

and threatens a large burden to both the judiciary and prison

officials,” id. at 96.

Jones v. Sposato, No. 17-3335, 2019 WL 3546470 (3d Cir. Aug. 5, 2019); see also

Vanderklok v. United States 868 F.3d 189, 199 (3d Cir. 2017) (declining to extend Bivens

to First Amendment retaliation claim filed against a Transportation Safety Administration

screener); Watlington on behalf of FCI Schuylkill African Am. Inmates v. Reigel, 723 F.

App’x 137, 140 n. 3 (3d Cir. Jan 22, 2018) (affirmance of district court’s dismissal of

federal prisoner’s First Amendment retaliation claim against BOP staff as non-cognizable

Bivens claim).

As noted above, Mr. Allah adequately pleads a First Amendment retaliation claim

against Ms. Holtzapple, however, after Ziglar, he fails to state a cognizable Bivens claim.

Additionally, based on the special factors that counsel hesitation and the existence of

alternative remedies, the Court declines to find an implied Bivens cause of action with

respect to Mr. Allah’s First Amendment retaliation claim against Ms. Holtzapple.

Accordingly, the Court will dismiss Mr. Allah’s First Amendment retaliation claim against

Ms. Holtzapple. This claim will be dismissed with prejudice as leave to amend would be

futile in light of Ziglar, Jones, Vanderklok and Watlington.

E. Mr. Allah Fails to State an Eighth Amendment Conditions

of Confinement Claim

The Eighth Amendment's prohibition of cruel and unusual punishment imposes

duties on prison officials to provide prisoners with the basic necessities of life, such as

food, clothing, shelter, sanitation, medical care, and personal safety. See Farmer v.

Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976, 128 L.Ed.2d 811 (1994); Helling v.

McKinney, 509 U.S. 25, 31-32, 113 S.Ct. 2475, 2480, 125 L.Ed.2d 22 (1993). Prison

conditions constitute cruel and unusual punishment if they result in serious deprivations

of basic human needs. See Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410 (3d Cir.

2000). A condition of confinement implicates the Eighth Amendment if it is so

reprehensible as to be deemed inhumane under contemporary standards or deprives an

inmate of minimal civilized measures of the necessities of life. See Hudson v. McMillian,

503 U.S. 1, 8, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992); Wilson v. Seiter, 501 U.S.

294, 298-99, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991). Moreover, the fact that one

or more conditions would not independently constitute an Eighth Amendment violation is

not dispositive when the conditions, in combination, have a “mutually enforcing effect” of

producing an unconstitutional deprivation. Wilson, 501 U.S. at 304, 111 S.Ct. at 2327.

However, the Eighth Amendment does not mandate that prisons be free of discomfort.

Farmer, 511 U.S. at 832, 114 S.Ct. at 1976 (quoting Rhodes v. Chapman, 452 U.S. 337,

349, 101 S.Ct. 2392, 2400, 69 L.Ed.2d 59 (1981) ). “[C]onditions that cannot be said to

be cruel and unusual under contemporary standards are not unconstitutional. To the

extent that such conditions are restrictive and even harsh, they are part of the penalty

that criminal offenders pay for their offenses against society.” Rhodes, 452 U.S. at 347,

101 S.Ct. at 2399. Thus, “extreme deprivations are required to make out a conditions-of-

confinement claim.” Hudson, 503 U.S. at 9, 112 S.Ct. at 1000.

An Eighth Amendment conditions of confinement claim requires both objective and

subjective proof. A prisoner must demonstrate: first, that he or she has been subjected

to an objectively “serious” deprivation of life's basic needs or a “substantial risk of serious

harm” to his or her health; and, second, that defendants knew of and were deliberately

indifferent to that deprivation or risk. Farmer, 511 U.S. at 834, 114 S.Ct. at 1977; Tillman,

221 F.3d at 418. Deliberate indifference requires that a prison official acted with actual

awareness of excessive risks to the plaintiff’s safety. Beers-Capitol v. Whetzel, 256 F.3d

120, 133 (3d Cir. 2001).

Mr. Allah contends the rules put in place by Warden Beasley and Captain Hall that

restrict a SHU inmate’s possession of a radio, limit commissary purchases, unit rules

which if violated may result in the loss of recreation, constitute cruel and unusual

conditions of confinement. (ECF No. 1 at 15.) The Court disagrees because Mr. Allah

does not contend that while in the SHU, he was deprived of adequate food to thrive,

clothing, shelter, sanitation, medical care, or personal safety, he fails to satisfy the

objective element pertinent to an Eighth Amendment claim. Additionally, Mr. Allah does

not allege he suffered any harm as a result of his SHU conditions of confinement. Rather,

he disagrees with the austere environment of the SHU when compared to the privileges

enjoyed by general population inmates. Taking the allegations of the Complaint as true,

Mr. Allah’s conditions of confinement claim fails to rise to the level of an Eighth

Amendment violation. The Court will dismiss this claim with leave to amend.

F. Mr. Allah Fails to State an Access to Courts Claim

Prisoners have a constitutional right of access to the courts. See Lewis v. Casey,

518 U.S. 343, 346, 116 S.Ct. 2174, 2177, 135 L.Ed.2d 606 (1996). “Where prisoners

assert that defendants’ actions have inhibited their opportunity to present a past legal

claim, they must show (1) that they suffered an ‘actual injury’—that they lost a chance to

pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that they have no other

‘remedy that may be awarded as recompense’ for the lost claim other than in the present

denial of access suit.” Monroe v. Beard, 536 F.3d 198, 205–06 (3d Cir. 2008) (citing

Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 2186-87, 153 L.Ed.2d 413

(2002)). Prisoners bringing an access to the court claim “must satisfy certain pleading

requirements: The complaint must describe the underlying arguable claim well enough to

show that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205-

06 (citing Christopher, 536 U.S. at 416–17, 122 S.Ct. at 2187); see also Schreane v. Holt,

482 F. App’x. 674, 676 (3d Cir. 2012) (A plaintiff does not establish a constitutional

violation when he establishes only that he had a “mere hope” that he would prevail on the

underlying claim.). Finally, because government officials may not be held liable for the

alleged unconstitutional acts of others, plaintiff must demonstrate that each named

government defendant personally participated in the deprivation of his rights. Iqbal, 556

U.S. at 676, 129 S.Ct. 1948. A plaintiff must establish that a defendant personally directed

or had “actual knowledge and acquiescence” of the alleged unconstitutional conduct.

Rode, 845 F.2d at 1207.

Considering the above case law, Mr. Allah has failed to allege facts establishing

an access-to-the-courts claim against Mr. Veigh. First, as noted above, Mr. Allah cannot

sue Mr. Veigh under a theory of respondeat superior. Plaintiff specifically states he seeks

to hold Mr. Veigh “liable for the actions of his department”. (ECF No. 1 at 14.) Second,

Mr. Allah states that his lawsuit was dismissed because his in forma pauperis application

failed to reach the Court. However, he was not actually harmed as a result of this event

as he successfully refiled his action without incident. 3 Mr. Allah’s access-to-the-courts

claim against Mr. Veigh will be dismissed.

3 The Court takes judicial notice of the docket in the case to which Mr. Allah refers: Allah

v. Martinez, 3:18-cv-1114 (M.D. Pa.). On July 9, 2018, this Court dismissed that action without

prejudice due to Mr. Allah’s failure to timely submit an application to proceed in forma pauperis

and Authorization forms. In dismissing the action, the Court was careful to note that the actions

which served the basis for that Complaint took place in March 2018. Thus, Mr. Allah was not

harmed by the dismissal of the action. In fact, Mr. Allah filed a new complaint against Ms. Martinez

shortly thereafter. See Allah v. Martinez, 3:18-CV-1547 (M.D. Pa.).

G. Leave to File an Amended Complaint

The Court will grant Mr. Allah twenty-one days to file an amended complaint to

replead all claims except for his retaliation claim against Ms. Holtzapple. If Mr. Allah

decides to file an amended complaint, he must clearly label it, on the face of the

document, “Amended Complaint.” It must bear the docket number assigned to this case

and must be retyped (double spaced) or legibly rewritten (double spaced) in its entirety,

on the court-approved form.4 In addition, any amended complaint filed by Mr. Allah

supersedes (replaces) the original complaint already filed. It must be “retyped or reprinted

so that it will be complete in itself including exhibits.” M.D. Pa. LR 15.1; see also W. Run

Student Hous. Assocs. v. Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013). Mr.

Allah may not reassert his retaliation claim against Ms. Holtzapple or add new claims

against new Defendants in his amended complaint. He may only augment his factual

pleading concerning his existing claims.

Additionally, the Court cautions Mr. Allah that his amended complaint must be

concise and direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in

individually numbered paragraphs in short, concise, and simple statements. Id. The

allegations in the amended complaint may not be conclusory. Instead, Plaintiff must

plead facts to show how each defendant named is personally involved or responsible for

the alleged harm. In other words, the allegations should be specific enough as to time

and place of the alleged violations and must identify the specific person or persons

4 In the “Caption” section of the amended complaint, Plaintiff must state the first and last

name, to the extent he knows it, of each defendant he wishes to sue. Plaintiff should also indicate

whether he intends to sue each defendant in his or her individual capacity, official capacity, or

both.

responsible for the deprivation of his constitutional rights and what each defendant did to

harm him. Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948.

If Plaintiff fails to file an amended complaint on the Court’s form within twenty-one

days, and in compliance with the Court’s instructions, the Court will dismiss his complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B).

Finally, the Court reminds Plaintiff of his obligation to advise the Court of any

change of address. See M.D. Pa. LR 83.18. His failure to do so will be deemed as his

abandonment of the lawsuit resulting in the dismissal of the action.

H. Mr. Allah’s Motions for Preliminary Injunction will be Denied.

“Preliminary injunctive relief is an extraordinary remedy and should be granted only

in limited circumstances.” Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.

2004). In determining whether to grant a preliminary injunction, a court must consider

whether the party seeking the injunction has satisfied four factors: “1) a likelihood of

success on the merits; 2) he or she will suffer irreparable harm if the injunction is denied;

3) granting relief will not result in even greater harm to the nonmoving party; and 4) the

public interest favors such relief.” Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102,

109 (3d Cir. 2010) quoting Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010); see also

Fed. R. Civ. P. 65. It is the moving party who bears the burden of satisfying these factors.

If the movant fails to carry this burden on either of these elements, the motion should be

denied since a party seeking such relief must “demonstrate both a likelihood of success

on the merits and the probability of irreparable harm if relief is not granted.” Hohe v.

Casey, 868 F.2d 69. 72 (3d Cir. 1989) (emphasis in original), quoting Morton v. Beyer,

822 F.2d 364 (3d Cir. 1987).

A preliminary injunction maintains the status quo pending a final decision on the

merits whereas a “mandatory injunction” alters the status quo by granting injunctive relief,

before trial, and as such is appropriate only in extraordinary circumstances. Acierno v.

New Castle Cty., 40 F.3d 645, 653 (3d Cir. 1994) (“A party seeking mandatory preliminary

injunction that will alter the status quo bears a particularly heavy burden in demonstrating

its necessity.”)

Mr. Allah has filed a motion for leave to file a motion for preliminary injunction and

a motion for preliminary injunction. (ECF Nos. 7 and 8.) Due to his chronic and incurable

illnesses, and short life expectancy, he seeks the Court to issue an order directing FCC-

Allenwood officials to transfer him to a medical facility. (ECF No. 8.) Based on the Court’s

dismissal of the Complaint for failure to state a claim, Mr. Allah has not demonstrated a

likelihood of success on the merits. Furthermore, as Mr. Allah not housed at FCC-

Allenwood, his motions are moot. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.

2003) (inmate’s transfer to another prison rendered moot his request for preliminary

injunctive relief related to his conditions of confinement).

An appropriate order will issue.

Date: September 19, 2019 /s/ A. Richard Caputo

A. RICHARD CAPUTO

United States District Judge