Parra v. Finley

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JORGE PARRA : Civil No. 1:21-CV-0973

:

Plaintiff, :

:

v. :

:

SCOTT FINLEY, WARDEN, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Presently before the court is self-represented Plaintiff Jorge Parra’s motion

for leave to supplement the complaint, Doc. 23, and his first request for production

of documents, Doc. 24. For the reasons that follow, Parra’s motion to amend will

be denied pursuant to 28 U.S.C. § 1915(e)(2)(B), and the court will not take action

on his discovery request as it is improperly filed.

FACTUAL BACKGROUND1 AND PROCEDURAL HISTORY

On May 25, 2021, Jorge Parra (“Plaintiff” or “Parra”), a federal inmate,

formally housed at the Schuylkill Federal Correctional Institution (“FCI

Schuylkill”), in Minersville, Pennsylvania,2 filed this lawsuit after he was injured

while changing a light fixture. (Doc. 1.) Parra alleges that on August 17, 2019,

1 Under Rule 12(b)(6), the court must accept all well pleaded allegations as true and construe all

reasonable inferences in favor of the nonmoving party. Doe v. Univ. of Scis., 961 F.3d 203, 208

(3d Cir. 2020).

2 Parra is currently housed at FCI Petersburg Medium, in Hopewell, Virginia.

staff failed to cut the electrical power to the unit he was directed to repair, resulting

in his electrocution. (Id., p. 2.)3 As a result of the electrical shock, Parra suffered

second degree burns to his hands, and continues to endure unrelenting migraines

and post-traumatic nightmares. (Id., p. 3.) As relief, he seeks monetary damages

from Warden Scott Finley and Corrections Officer Radle. Defendants have until

November 15, 2021 to file a response to the complaint. (Doc. 22.)

On October 17, 2021, Parra sought leave to file a supplemental complaint

pursuant to Fed. R. Civ. P. 15(d) based on unrelated events that transpired

following the filing of this action. (Doc. 23.) In the supplement, Parra alleges he

was placed in administrative segregation on March 10, 2021 for safety reasons.

(Id., p. 2.) Even though SIS Officer Trojan investigated and determined that

Plaintiff’s reason for seeking administrative segregation were not verifiable,

Parra’s administrative detention in the Special Housing Unit continued for an

additional six months pending his eventual transfer to another facility. Parra also

claims that Ms. White “at the behest of Scott Finley,” opened and copies all of his

legal and special mail, including correspondence from this court, thus interfering

with his access to the courts. Parra alleges these actions occurred “due to his civil

suit against the FCI Schuylkill higher ups and done in retaliation.” (Id.) He seeks

3 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

to add these claims and proposed defendants (White and Trojan) to his existing

lawsuit. (Id., p. 3.)

STANDARDS OF REVIEW

A. Screening and Dismissal of Prisoner Complaints

Under 28 U.S.C. § 1915A(a), the court must conduct an initial review of a

“complaint in a civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” See also 28 U.S.C.

§ 1915(e)(2) (requiring court, in a case where plaintiff is proceeding in forma

pauperis, to dismiss the case if, for example, it is frivolous or fails to state a claim

for which relief may be granted). The legal standard for dismissing a complaint for

failure to state a claim pursuant to 28 U.S.C. § 1915 is identical to the legal

standard used when ruling on Fed. R. Civ. P. 12(b)(6) motions. See Tate v.

Wiggins, 805 F. App’x 159, 162 (3d Cir. 2020).

In order “[t]o 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 Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “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). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019), cert. denied, 140 S.Ct. 1611 (2020) (quoting Iqbal, 556 U.S. at 678–79). To

determine whether a complaint survives a motion to dismiss, a court identifies “the

elements a plaintiff must plead to state a claim for relief,” disregards the

allegations “that are no more than conclusions and thus not entitled to the

assumption of truth,” and determines whether the remaining factual allegations

“plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365

(3d Cir. 2012).

B. Bivens Action

Under 42 U.S.C. § 1983, an injured individual is entitled to “money

damages if a state official violates his or her constitutional rights.” Ziglar v.

Abbasi, 137 S.Ct. 1843, 1854 (2017). While § 1983 protects against violations of

constitutional rights at the hands of state officials, the Supreme Court in Bivens v.

Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389

(1971), recognized in limited situations, a monetary remedy designed to vindicate

constitutional violations committed by federal officials in their individual

capacities. To state a Bivens claim, a plaintiff must allege that he was deprived of

a federal right by a person acting under color of federal law. See Brown v. Phillip

Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001).

DISCUSSION

A. Parra’s Proposed Supplemental Complaint

Parra requests to supplement his complaint pursuant to Federal Rule of Civil

Procedure 15(d). This rule governs supplemental complaints and provides, in part,

that “[o]n motion and reasonable notice, the court may, on just terms permit a party

to serve a supplemental pleading setting out any transaction, occurrence, or event

that happened after the date of the pleading to be supplemented.” Fed. R. Civ. P.

15(d). In this situation, because the issues Parra proposes to add to his complaint

are subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B), the amendment will

be denied as futile.

1. Parra’s access to court claim against Ms. Smith

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

Casey, 518 U.S. 343, 346 (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 (2002)). “[P]risoners

may only proceed on access-to-courts claims in two types of cases, challenges

(direct or collateral) to their sentences and conditions of confinement.” Id. at 205.

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); 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.).

Considering the above case law, Parra fails to allege sufficient facts to

establish an access-to-the-courts claim against Ms. Smith for her alleged

interference with his legal mail. Parra fails to describe in any detail the actual

injury because of Ms. Smith’s alleged actions that hindered his ability to pursue a

nonfrivolous or arguable legal claim. Christopher, 536 U.S. at 416. As such, he

has not identified the claim for relief underlying his access to courts claim. To the

extent Ms. Smith is alleged to have withheld “special mail” Parra received from

this court, he does not demonstrate that the mail was anything more than

documents in this case that are available to the public through the United States

Public Access to Court Electronic Records (“PACER”) website,

https://pacer.login.uscourts.gov/ csologin/login.jsf. Accordingly, Parra fails to

allege an access to courts claim against Ms. Smith.

2. Parra’s detention in the SHU pending transfer

Parra’s claim that SIS Officer Trojan’s actions of detaining him in

administrative detention pending his transfer to another facility does not survive

this review. Parra’s placement in the SHU does not implicate his due process

rights because no liberty interest was triggered by his SHU detention. See Sandin

v. Conner, 515 U.S. 472, 486 (1995) (holding that routine transfers to

administrative segregation do not impinge on liberty interest protected by the due

process clause unless the conditions in administrative segregation present an

atypical and significant hardship in relation to the ordinary incidents of prison life).

A determination of what is “atypical and significant” is based on the range of

conditions an inmate “may reasonably expect to encounter as a result of his or her

conviction.” Asquith v. Dep’t of Corr., 186 F.3d 407, 412 (3d Cir. 1999) (internal

citation omitted). “[C]onfinement in administrative or punitive segregation will

rarely be sufficient, without more, to establish the kind of ‘atypical’ deprivation of

prison life necessary to implicate a liberty interest.” Smith v. Mensinger, 293 F.3d

641, 653 (3d Cir. 2002) (quoting Sandin, 515 U.S. at 486). Parra’s six-month

placement in administrative segregation, alone, does not give rise to a due process

claim. See Griffin v. Vaughn, 112 F.3d 703, 706–09 (3d Cir. 1997) (15 months in

administrative detention, which imposes strict restrictions on outside contact and

personal conveniences, did not implicate a protected liberty interest). Accordingly,

Parra fails to state a claim of which relief can be granted.

3. Parra’s retaliation claims against Smith and Trojan

Parra claims Ms. Smith and SIS Officer Trojan’s action were taken in

retaliation for his filing of this lawsuit. To prevail on a retaliation claim, Parra

must demonstrate that: (1) he engaged in constitutionally protected conducted; (2)

he suffered an adverse action at the hands of prison officials; and (3) his

constitutionally protected conduct was a substantial or motivating factor in the

decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir.

2016) (citing Rouser v. Horn, 241 F.3d 330, 333–34 (3d Cir. 2001)). Even if the

court construed Parra’s retaliation claims as plausible, they would be subject to

dismissal because Bivens does not provide relief for such claims.

In Bivens, the Supreme Court recognized an implied damages remedy for

plaintiff’s claim that federal officers violated his Fourth Amendment rights against

unreasonable searches and seizures. Bivens, 403 U.S. at 397. Since that decision,

the Supreme Court only recognized an implied damages remedy against a federal

official in two other cases: (1) Davis v. Passman, 442 U.S. 228 (1979)

(recognizing an implied cause of action for gender-discrimination under the Fifth

Amendment), and (2) Carlson v. Green, 446 U.S. 14, 18–23 (1980) (recognizing

an implied cause of action for inadequate medical care under the Eighth

Amendment). See Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017) (“These three

cases-Bivens, Davis, and Carlson-represent the only instances in which the Court

has approved of an implied damages remedy under the Constitution itself.”). Over

the years, the Court has “consistently refused to extend Bivens to any new context

or new category of defendants” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001); see also Ziglar, 137 S.Ct. at 1857 (collecting cases where Court declined to

expand implied Bivens remedy beyond three recognized contexts).

With Ziglar, “the Court has made clear that expanding the Bivens remedy is

now a ‘disfavored’ judicial activity.” Ziglar, 137 S.Ct. at 1857. The Court

established a two-part test to determine whether Bivens provides a remedy for an

alleged constitutional tort committed by a federal officer. First, the district court

must determine whether the claim presents a “new context” different from

previously recognized Bivens remedies. If not, Bivens is an available remedy to

redress plaintiff’s claims against a federal officer. However, if so, the court must

proceed to the second step of the Ziglar test, and the court must analyze whether

“special factors counsel hesitation” in judicially expanding Bivens in the absence

of congressional action. Id., 137 S.Ct. at 1857–59. Where the court encounters

such special factors causing such hesitation, “a Bivens remedy will not be

available.” Id.

To date, the Supreme Court has not recognized a Bivens remedy for First

Amendment retaliation claims. Reichle v. Howards, 566 U.S. 658, 663 n. 4 (2012).

Likewise, the Third Circuit Court of Appeals has held that “First Amendment

retaliation claims brought in the prison context” represents a new Bivens context.

Mack v. Yost, 968 F.3d 311, 320 (3d Cir. 2020); see also Vanderklok v. United

States, 868 F.3d 189, 199 (3d Cir. 2017) (holding that “Bivens does not afford a

remedy against airport security screeners who allegedly retaliated against a traveler

who exercises First Amendment right.”). As Parra’s retaliation claim presents a

new Bivens context, the court must address the second prong of the test to

determine the existence of Bivens as an available remedy.

Under the “specials factors” inquiry, the court must determine whether

“there are special factors counselling hesitation in the absence of affirmative action

by Congress.” Ziglar, 137 S.Ct. at 1857. The focus of this inquiry is on whether

courts are well suited, absent congressional action or instruction, to consider and

weight the costs and benefits of allowing a damages action to proceed. Id., 137

S.Ct. at 1858. While there may be many special factors, two are “‘particularly

weighty’: the availability of an alternative remedial structure and separation-of-

powers concerns.” Mack, 968 F.3d at 320 (quoting Bistrian v. Levi, 912 F.3d 79,

90 (3d Cir. 2018)). The existence of an alternative remedy “alone may limit the

power of the Judiciary to infer a new Bivens cause of action.” In other words,

“when alternative methods of relief are available, a Bivens remedy usually is not.”

Id., 137 S.Ct. at 1863. Additionally, the Third Circuit Court of Appeals has held

that the Bureau of Prisons’ administrative remedy process and availability of

injunctive relief counsel against the expansion of Bivens to an inmate’s First

Amendment retaliation claim. See Mack, 968 F.3d at 321. The Supreme Court has

held that an “administrative review mechanism can provide meaningful redress -

such as internal investigations and employee discipline - even if [it does] not fully

remedy the constitutional violation.” Ziglar, 137 S.Ct. at 1859–60. Likewise,

courts have “afforded a level of deference to the decision making of prison

officials,” recognizing “day-to-day administrative decisions have been committed

solely to the province of the BOP.” See Mack, 968 F.3d at 323; see also Railey v.

Ebbert, 407 F. Supp. 3d 510, 523 (M.D. Pa. 2019), appeal dismissed, No. 19-3889,

2020 WL 3414760 (3d Cir. Feb. 19, 2020) (noting that “the judicial restraint

exercised in cases implicating the administrative of prisons is another factor

weighing against extension of the Bivens remedy”).

Based on the above, Parra’s First Amendment retaliation claim presents a

new context to which Bivens has not previously applied. The deference this court

affords prison officials in the administration of their facilities as well as the

availability of an alternative administrative remedy counsel against extending

Bivens to provide a remedy for Parra’s retaliation claim. Accordingly, Parra’s

retaliation claim will be dismissed as non-cognizable under Bivens.

B. Discovery

On October 21, 2021, Parra filed a copy of his first request for production of

documents. (Doc. 24.) The court will not take action with respect to this

discovery document as it is improperly filed with the court. Plaintiff is advised

that discovery requests, and discovery responses, should not be filed with the court

unless in connection with a discovery dispute, such as a motion to compel or

motion for a protective order. See Fed. R. Civ. P. 5(d) and Pa. M.D. Local 5.4(b).4

Discovery requests must be properly served upon Defendants, or in this case where

Defendants are represented by counsel, on defense counsel. (Id.)

4 The court sent Parra excerpts of the local rules on May 28, 2021. See Doc. 4-3.

CONCLUSION

Parra’s motion to supplement his complaint, Doc. 23, will be denied as he

fails to state a claim for which relief may be granted. The court will not take any

action on his improperly filed request for production of documents, Doc. 24. An

appropriate order will follow.

s/ Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Dated: November 12, 2021 Middle District of Pennsylvania