# WRIGHT v. ALLISEN

> District Court, W.D. Pennsylvania · February 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10419477

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419477

## How later opinions describe it (automated extraction)

- noting that “over the course of nearly four decades, the Supreme Court has repeatedly refused to recognize Bivens actions in any new contexts”
- noting that “over the course of nearly four decades, the Supreme Court has repeatedly refused to recognize Bivens actions in any new contexts”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ERIE DIVISION
WILLIAM HAROLD WRIGHT, JR., )
) 1:22-CV-00150-RAL
Plaintiff )
) RICHARD A. LANZILLO
VS. ) Chief United States Magistrate Judge
CMC ALLEN, COUNSELOR EZZOLO, CASE MEMORANDUM OPINION ON
MANAGER GABRIEL, ) DEFENDANTS’ MOTION TO DISMISS
Defendants ECF NO. 28

I. BACKGROUND
Plaintiff William Wright, an inmate in the custody of federal Bureau of Prisons (BOP),
commenced this action against Defendants Allen, Ezzolo, and Gabriel—three staff members at the
Federal Correctional Institution at McKean, Pennsylvania (FCI-McKean), where Wright was previously
incarcerated. Wright’s Second Amended Complaint—the operative pleading before the Court—alleges
that the Defendants violated BOP policies and his Fifth Amendment right to due process and subjected
him to intentional infliction of mental distress and “libel/slander” under Pennsylvania state law when they
refused to remove an erroneous Sex Offender Public Safety Factor (PSF) from his inmate file. See ECF
No. 17. He seeks redress of the BOP policy and Fifth Amendment violations by means of a cause of
action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971) (Bivens), and he
pursues his state law claims under the Court’s supplemental jurisdiction. Id.

Defendants have moved to dismiss Wright’s claims pursuant to Fed. R. Civ. P 12(b)(6) and,
alternatively, for summary judgment pursuant to Fed. R. Civ. P56. See ECF Nos. 28 (motion), 29
(supporting brief and exhibits). They argue that Wright’s Fifth Amendment due process claim must be
dismissed because (1) he failed to exhaust his administrative remedies as to this claim; (2) the Supreme
Court has not recognized a Fifth Amendment due process claim based on inmate misclassification as

appropriate for an implied cause of action under Bivens, and extension of Bivens to such a claim in this
case is unsupported; and, alternatively, (3) all Defendants are entitled to qualified immunity because no
“clearly established” right to a particular inmate classification or procedure for assigning PSFs existed at
the time of their actions. Defendants argue that Wright’s state law tort claims also fail because (1)
Defendants are immune from such claims; (2) Wright did not exhaust his administrative remedies on any
tort claim; and (3) the Federal Tort Claims Act bars claims for libel or slander and claims arising out of
alleged libel or slander against the United States or its employees acting within the scope of their
employment. See ECF No. 29.

In directing Wright to respond to Defendants’ motion, the Court notified him that the motion
“may be treated, either in whole or in part, as a motion for summary judgment under Federal Rule of Civil
Procedure 56” and advised him of the requirements of Rule 56. ECF No. 30 (citing Renchenski v.
Williams, 622 F.3d 315 (3d Cir. 2010)). Wright has since filed numerous submissions in response to
Defendants’ motion.! See ECF Nos. 33, 33-1-33-6, 36, 41, 43. Defendants have also filed a Reply Brief
in support of their motion. See ECF No. 35. The motion has been thoroughly brief and is ready for
decision.”

1 Wright labeled one of his submissions as a “Motion to Present Supplemental Legal Authority and Additional
Arguments.” See ECF No. 41. In addition to citing cases in support of his due process Bivens claim, that filing
included, for the first time, a reference to a “failure to protect” claim based on an alleged assault by another inmate.
See id. at p. 2. Wright filed his Supplemental Legal Authority and Additional Arguments more than four months
after Defendants filed their motion to dismiss and approximately eleven months after Wright had filed his Second
Amended Complaint in this action. Wright has not requested leave to file a third amended complaint. To the extent
Wright believes the new factual assertions raised in his filing support a distinct claim, he may raise them in a
separate lawsuit, but his supplemental authority and additional arguments are irrelevant to the Fifth Amendment due
process, intentional infliction of emotional distress, and defamation claims asserted in the Second Amended
Complaint.
2 The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge to conduct all
proceedings in this case, including the entry of final judgment, as authorized by 28 U.S.C. § 636.

I. FACTUAL ALLEGATIONS
The following facts are accepted as true for purposes of Defendants’ motion to dismiss. When
Wright arrived at FCI-McKean on March 9, 2022, he told Defendant Allen that the BOP had
“misclassified” him as a “sex offender” and wrongly assigned a Sex Offender PSF to his inmate file.
ECF No. 17, p. 2. This classification was based solely — and improperly — on a 1981 arrest for “rape by
threat,” which did not result in a criminal charge or conviction. Jd. Wright asked Defendant Allen to
“immediately remove” the “false allegation” from his prison file, but Defendant Allen refused to do so?
Id.

On March 10, 2022, an officer in FCI-McKean’s Special Housing Unit (SHU) told other inmates
that Wright was a “sex offender” and a “child molester.” Jd. at 3. Plaintiff claims that he filed three
grievances regarding the matter and described the officer’s comments as “slander.” Id. On March 17,
2022, Wright spoke with a Unit Disciplinary Coordinator regarding the SHU officer’s statements. See id.
He then told Defendants Ezzolo and Gabriel that they “must reclassify” him and remove the “false
allegation.” Jd. at 4. Ezzolo and Gabriel told Wright that they had spoken with Defendant Allen and
would not remove that allegation. See id. Wright claims that Defendants’ refusal to remove the “false
allegation” from his file violates BOP policy, which Wright claims does not allow for inclusion of
charges that were “dismissed” or “nolle prosequi,” as well as his constitutional right to due process. Id. at
2,4. Furthermore, Plaintiff claims that Defendants’ actions constitute “intentional infliction of mental
distress” and “libel/slander.” Jd. at 4.

3 Although the Court must accept all well-pled allegations at the motion to dismiss stage (see Sec. IIL, infra), the
Court may also consider matters of public record upon which the plaintiff relies in his complaint. Under the BOP
policy at issue, a Sex Offender PSF may be applied even if the underlying charge was dismissed. For example, the
policy makes clear that a Sex Offender PSF should be applied if the inmate accepted a plea bargain after being
charged with an offense that includes, as an element: “[e]ngaging in sexual contact with another person without
obtaining permission to do so (forcible rape, sexual assault or sexual battery)”; “[a]ny sexual contact with a minor or
other person physically or mentally incapable of granting consent”; or “[a]ny sexual act or contact ... that is
aggressive or abusive in nature (e.g., rape by instrument, encouraging use of a minor for prostitution purposes,
incest, etc.) ....” BOP Program Statement 5100.08, Inmate Security Designation & Custody Classification, at 49,
available at https://www.bop.gov/policy/progstat/5100_008.pdf (last visited January 18, 2024).

i. STANDARD OF REVIEW
Defendants’ motion implicates two standards of review. To the extent Defendants’ motion relies
on an affidavit and administrative records beyond the scope of the Second Amended Complaint, it is
subject to the requirements and standard of Fed. R. Civ. P 56. Rule 56(a) requires the district court to
enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard “the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if
proof of its existence or nonexistence would affect the outcome under applicable substantive law.
Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue
of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and
Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether a genuine issue of material fact remains for trial, the court must view
the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v.
Tartler, 986 F.2d 682, 685 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir.
1992); White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment,
however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings.
Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a
genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits,
depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that
give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). On a motion for
summary judgment, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil
Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion

...” Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017) (citation omitted). Put another way, pro
se status does not relieve a non-moving party of his “obligation under Rule 56(c) to produce evidence that
raises a genuine issue of material fact.” Jd. (quoting Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402,
408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012 WL 4343176, at *1 (W.D. Pa. Sept. 21,
2012).
All other arguments raised in Defendants’ motion are presented as a motion to dismiss for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Such a motion tests the legal sufficiency of the
complaint on its face. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to
dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the
plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative
level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller,
Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S.
662 (2009). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough
facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. In making this
determination, the court must accept as true all well-pled factual allegations in the complaint and view
them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388
(3d Cir. 2002).
To survive a motion to dismiss, a complaint must provide more than labels and conclusions. See
Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id.
(citing Papasan vy. Attain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn
by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub.
Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion
Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as
factual allegations. See Twombly, 550 U.S. at 555 (citing Papasan, 478 U.S. at 286). See also McTernan

v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

Finally, because Wright is proceeding pro se, the allegations of his Second Amended Complaint
will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404
U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant’s pleadings to state a valid
claim upon which relief could be granted, it will do so despite the litigant’s failure to cite proper legal
authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with
pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery
y. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
IV. ANALYSIS
Defendants argue that Wright has failed to exhaust his administrative remedies as to any of his
claims as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (PLRA). In broad
brush, the PLRA requires a prisoner to exhaust available administrative remedies before he may bring an
action challenging the conditions of his confinement. See 42 U.S.C. § 1997e(a). This exhaustion
requirement applies to all claims relating to prison life which do not implicate the duration of the
prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the statute requires “proper
exhaustion,” meaning that a prisoner’s completion of the administrative review process must also satisfy
the applicable procedural rules of the prison’s grievance system. Fennell v. Cambria County Prison, 607
Fed. Appx. 145, 149 (3d Cir. 2015). A procedurally defective administrative grievance, even if pursued to
final review, precludes action in federal court. Jd. Failure to exhaust administrative remedies under the
PLRA is an affirmative defense that the defendants must plead and prove. Ray v. Kertes, 285 F.3d 287,
295 (3d Cir. 2002).
The Federal Bureau of Prisons (“BOP”) has a four-step administrative-remedies process federal
inmates must complete to satisfy the PLRA’s exhaustion requirement. See 28 C.F.R. §§ 542.10-542.19.
First, an inmate must informally present an issue of concern to the staff for collaborative resolution. See

28 CER. § 542.13(a). Second, if the inmate is dissatisfied with the informal resolution of the issue, the
inmate must submit a formal, written Administrative Remedy Request on a BP-9 form for resolution by
the Warden within 20 days following the date on which the basis for the Request occurred. See 28 C.F.R.
§ 542.14. Third, an inmate who is not satisfied with the Warden’s response may submit an appeal on a
BP-10 form to the Regional Director within 20 days from the date that the Warden signed the response.
See 28 C.F.R. § 542.15. Fourth, an inmate who is not satisfied with the Regional Director’s response may
submit a final appeal on a BP—11 form to the General Counsel at the Central Office of Appeals within 30
calendar days of the Regional Director’s signed response. See id.

In support of their PLRA exhaustion affirmative defense, Defendants have submitted the affidavit
of Eva Baker-Dykstra (Baker-Dykstra), a Paralegal Specialist employed by the BOP, Northeast Regional
Office (NERO), Philadelphia, Pennsylvania. See ECF No. 29-1, { 1. Baker-Dykstra attests that she is
familiar with the BOP’s administrative remedy process and its computerized system for recording and
tracking federal inmates’ administrative remedy requests. See id., 1-2. She further attests that she is
familiar with the claims and allegations raised by Wright in this lawsuit and that BOP records show he
has never filed a request for administrative remedy at any level concerning the issues he raises in this
case. See id., Jf 4-6. Finally, she produces and attests to the authenticity of the BOP records upon which
she relies. See id., J7 and Exhibit C to ECF No. 29-1.

Based on these submissions, Defendants have met their threshold burden of demonstrating
through record evidence that Wright has not filed any Administrative Remedy Request related to the
claims asserted in his Second Amended Complaint. Wright does not dispute this failure. Instead, he
broadly asserts that the Defendants denied him the ability “to grieve,” arguing at length that his
administrative remedies were “unavailable” within the meaning of the PLRA. See ECF No. 33, pp. 8-14
(pp. 7-12 using Wright’s page numbering).

As Wright correctly observes, the PLRA only requires an inmate to exhaust “available”
administrative remedies. See Shiflett v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019). The United States

Supreme Court has identified “three kinds of circumstances in which an administrative remedy, although
officially on the books, is not capable of use to obtain relief.” Ross v. Blake, 578 U.S. 632, 643 (2016).
First, an administrative procedure is not available “when (despite what regulations or guidance materials
may promise) it operates as a simple dead end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates.” Jd. Second, a procedure is not available when it is “so opaque that it
becomes, practically speaking, incapable of use.” Jd. at 643-44. Finally, a procedure is unavailable when
“prison administrators thwart inmates from taking advantage of a grievance process through machination,
misinterpretation, or intimidation.” Jd. at 644.

Although Wright accurately recites this standard, he provides no factual record to support that
BOP administrative remedies were unavailable to him. To the contrary, the record reflects that Wright
raised his concerns using a BP-8 “informal resolution” form and that BOP personnel responded
specifically and substantively to the issues raised by Wright. See ECF No. 33-3. Although his attempt at
informal resolution was unsuccessful, Wright never took the next step of filing a formal Administrative
Remedy Request regarding his PSF designation. Instead, he argues in conclusory fashion that BOP
officials “repeatedly either refuse[d] to address or resolve the matter,” citing the denial of his informal
resolution request as evidence of their obfuscation. ECF No 45 at p. 3.

“Once the defendant has established that the inmate failed to resort to administrative remedies,
the onus falls on the inmate to show that such remedies were unavailable to him.” Kendrick v. CO Hann,
2021 WL 2914986, at *5 (M.D. Pa. July 12, 2021) (citing Rinaldi v. United States, 904 F.3d 257, 268 3d
Cir. 2018)). Here, Wright’s unsupported assertion that the Defendants denied him the ability to grieve is
insufficient to create a genuine issue of material fact on an issue concerning which he bears the ultimate
burden of proof. “Where the party opposing a motion for summary judgment bears the ultimate burden of
proof, the moving party may discharge its initial burden of showing that there is no genuine issue of
material fact ‘by showing — that is, pointing out to the district court — that there is an absence of evidence
to support the nonmoving party’s case.’” Player v. Motiva Enterprises, LLC, 240 Fed. Appx. 513, 522 n.

4 (3d Cir. 2007), quoting UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). If
the moving party has satisfied its initial burden, the nonmoving party must, in their opposition to the
motion, identify evidence of record that creates a genuine issue of material fact. See Childers v. Joseph,
842 F.2d 689, 694-95 (3d Cir. 1988); Marmolejos v. Glob. Tel*Link Corp., 2019 WL 981882, at *2 (W.D.
Pa. Jan. 9, 2019), report and recommendation adopted, 2019 WL 977888 (W.D. Pa. Feb. 28, 2019).
Wright has failed to do so here. Accordingly, Defendants are entitled to judgment as a matter of law on
all claims asserted by Wright in his Second Amended Complaint.‘
V. CONCLUSION

For the reasons stated herein, Defendants’ Motion for Summary Judgment is granted. A separate
judgment will follow.

DATED this 23 day of February, 2024.

BY THE COURT:
A. Ls
CHIEF UNITED STATES MAGISTRATE JUDGE

4 Even if Wright had properly exhausted his claim, the Court notes that the implied right of action against federal
government actors recognized by the United States Supreme Court in Bivens is extremely limited. In addition to the
original Bivens context of an illegal search and seizure, Bivens has only been extended twice: in Davis v. Passman,
442 U.S. 228 (1979), where the Court held that an administrative assistant fired by a congressman had a Bivens
remedy for her Fifth Amendment gender discrimination claim, and, a year later, in Carlson v. Green, 446 U.S. 14
(1980), where the Court permitted a Bivens remedy against federal prison officials for failure to treat a prisoner’s
serious medical condition. Since these decisions, the Supreme Court has expressly confined Bivens actions to the
limited types of claims previously recognized. See Corr. Srvs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (referring
to Bivens as a “limited holding.”). See also Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir. 2017) (noting
that “over the course of nearly four decades, the Supreme Court has repeatedly refused to recognize Bivens actions
in any new contexts”). Wright has not cited any caselaw for the proposition that his procedural due process claim
falls into any of the existing Bivens categories.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419477. Public record. Not legal advice.