MCGRATH v. BENTON<font color="red">DO NOT DOCKET IN THIS CASE</font>

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

MICHAEL MCGRATH, Jr., :

:

Plaintiff, : Civ. No. 23-13006 (RBK) (MJS)

:

v. :

:

C.O BENTON, et al., : OPINION

:

Defendants. :

____________________________________:

ROBERT B. KUGLER, U.S.D.J.

I. INTRODUCTION

Plaintiff, Michael McGrath, Jr. (“Plaintiff’ or “McGrath”), is a federal prisoner currently

incarcerated at U.S.P. Terre Haute in Terre Haute, Indiana. He is proceeding pro se with a civil

complaint filed pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). (See ECF 1). Plaintiff has also filed a motion for the

appointment of pro bono counsel. (See ECF 6). Previously, this Court granted Plaintiff’s

application to proceed in forma pauperis. (See ECF 7).

In addition to deciding Plaintiff’s outstanding motion for the appointment of pro bono

counsel, this Court must screen Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A to determine whether the complaint is frivolous or malicious, fails to state a claim upon

which relief may be granted, or whether Plaintiff seeks monetary relief from a defendant who is

immune from suit. For the following reasons the complaint is proceeded in part and dismissed in

part. The motion for pro bono counsel is denied without prejudice.

II. FACTUAL AND PROCEDRUAL BACKGROUND

The allegations stated in the complaint will be construed as true for purposes of this

screening opinion. The events giving rise to this civil complaint occurred while Plaintiff was

incarcerated at F.C.I. Fairton in Fairton, New Jersey. He names the following individuals as

Defendants in this action:

1. Correctional Officer Benton;

2. Correctional Officer Hernandez;

3. Lieutenant Marrugo;

4. Nurse Practitioner Hanson;

5. Clinical Director DeMonte;

6. Doctor Lopez;

7. Medical Administrator Martin;

8. S.I.S. Lieutenant Wilder;

9. S.I.S. Investigator Kopistici;

10. C-Unit Counselor Brooks;

11. C-Unit Case Manager Defoney; and

12. C-Unit Case Manager Gibson.

Plaintiff’s complaint centers around two separate issues that occurred during his

incarceration at F.C.I. Fairton. The first involves the medication (or lack thereof) he received at

F.C.I. Fairton regarding his mental health and night tremor symptoms. The second involves the

initial care he received and subsequent circumstances arising from an assault on Plaintiff by

other inmates that occurred on March 19, 2023. For purposes of this opinion, the first claim will

be referred to as Plaintiff’s “medication related claims” and the second will be referred to as

Plaintiff’s “assault related claims.” Defendants Clinical Director Demonte and Doctor Lopez are

the Defendants Plaintiff names as those involved in his “medication related claims.” Defendants

Officer Benton, Officer Hernandez, Lieutenant Marrugo, Medical Administrator Martin, S.I.S.

Investigator Wilder and S.I.S. Investigator Kopistici are those involved in Plaintiff’s “assault

related claims.” Defendants Nurse Hanson, C-Unit Counselor Brooks, C-Unit Case Manager

Defoney and C-Unit Case Manager Gibson are related to both Plaintiff’s “medication related

claims” and Plaintiff’s “assault related claims.”

A. Allegations Regarding “Medication Related Claims”

Plaintiff states that he was previously incarcerated at U.S.P. Lewisburg prior to his

transfer to F.C.I. Fairton. (See ECF 1 at 9). He had previously been taken off a medication named

Oxycarbazepine while incarcerated at U.S.P. Lewisburg. (See id.). When Plaintiff arrived at

F.C.I. Fairton, he was seen by Defendant Nurse Hanson. (See id.). Plaintiff told her that he had

nerve damage to his face as there is plate in his jaw due to it previously being broken and that he

also has nerve damage to his arms, elbows and hands. (See id.). He requested to be re-prescribed

Oxycarbazepine even though he admitted to the Nurse that it did not really work but that it “was

better than nothing.” (See id.). However, Defendant Nurse Hanson told Plaintiff that she would

not re-prescribe that medication and neither would Defendant Doctor Demonte. (See id.).

Next, Plaintiff alleges he was seen by Defendant Doctor Lopez. (See id.). Plaintiff states

that he was taking “Rimron” for his mental health as he suffered from night tremors. (See id.).

Plaintiff though states that Defendant Doctor Lopez indicated that “Rimron” caused erectile

dysfunction and thereby discontinued Plaintiff’s “Rimron” medication. (See id.).

Plaintiff next asserts that he submitted sick call requests and was eventually seen by

Nurse Knowles. (See id.). Nurse Knowles is not named as a Defendant in this action. Plaintiff

talked to Nurse Knowles about his nerve damage and night tremors. (See id.). She started

Plaintiff on Amitriptyline to treat those disorders as he was previously on this medication. (See

id.). Plaintiff next states that he “submitted cop-outs” to Defendant Doctor Demonte about his

nerve pain and night tremors but received no response such that he was left to deal with his night

tremors and nerve pain for months. (See id.).

Plaintiff subsequently states that he had an EMG for his nerve pain. When the results

indicated that he did have nerve damage, Plaintiff was re-prescribed Oxycarbazepine, albeit at a

lower 600 mg dose rather than his previous 900 mg dose. (See id.). This still left Plaintiff in pain.

(See id.).

B. Allegations Regarding “Assault Related Claims

Plaintiff next describes an incident that occurred on March 19, 2023. He was jumped by

three inmates and stabbed thirty-six times. (See id. at 10). Defendant Officer Benton grabbed two

of the inmates while another inmate chased Plaintiff and continued to stab Plaintiff. (See id.).

Plaintiff states that Defendant Officer Benton should have sprayed that inmate who was chasing

him with “O.C. spray.” (See id.).

Defendant Officer Hernandez also responded to the incident and placed Plaintiff in hand

restraints. (See id.). There was blood all over the room and Plaintiff alleges it was obvious he had

severe blood loss. (See id.). Nevertheless, Defendant Officer Hernandez pulled Plaintiff into the

laundry room. (See id.). Defendant Officer Hernandez then got a call from Defendant Lieutenant

Marrugo to take Plaintiff to the medical department. (See id.). Despite Plaintiff telling Defendant

Officer Hernandez that he could not walk, Defendant Hernandez dragged Plaintiff out of the unit.

(See id.). Plaintiff told Defendant Officer Hernandez he could not see or breath but was still

dragged to the EMT and medivac helicopter. (See id.). Plaintiff states Defendant Officer

Hernandez and Defendant Lieutenant Marrugo’s reckless disregard and deliberate indifference

caused him to walk to the helicopter rather than have medical attention be brought to Plaintiff

due to his blood loss. (See id.). Plaintiff states that Defendant Lieutenant Marrugo was not in the

building at the time of the incident. (See id. at 10-11).

Plaintiff further states that Defendant Nurse Hanson did not respond to the medical call.

(See id. at 11). The medical cart that was used to try and take Plaintiff away broke down at the

center gate. (See id.). According to Plaintiff, Defendant Nurse Hanson could have brought an

“LT cart,” wheelchair or stretcher for Plaintiff and that her failure to respond to Plaintiff’s

medical emergency put his life at risk when he was forced to walk to the helicopter. (See id.).

When Plaintiff returned to F.C.I. Fairton five days after the assault, Defendant Medical

Administrator Martin brought him medication. (See id.). Plaintiff asked Defendant Medical

Administrator Martin about the medical cart. (See id.). Plaintiff states that Defendant Medical

Administrator Martin should not have had a broken medical cart outside of the medical

department. (See id.).

Plaintiff states that he submitted grievances to Defendants Brooks, Gibson and Defoney.

Plaintiff states that because of these grievances, he was targeted by staff. This targeting included,

amongst other things, facing recreation restrictions, having property taken from him and

receiving multiple disciplinary actions. (See id. at 11-12).

Plaintiff also alleges that the scissors used in the assault against him were not issued by

the prison. (See id. at 12). Thus, they were either provided to the inmate by staff or stolen from

the staff but never reported to security. (See id.).

Plaintiff states he was placed in the Special Housing Unit (“SHU”) for 150 days while

other victims were released. (See id.). Plaintiff states due to the long time he was placed in the

SHU, he suffered from post-traumatic stress disorder (“PTSD”) and had mental health problems.

(See id.). Plaintiff states that he submitted grievances to Defendants Brooks, Gibson and Defoney

but they did not answer his grievances.

Plaintiff seeks declaratory relief and monetary damages. (See id. at 15).

III. LEGAL STANDARD

Under the Prison Litigation Reform Act, Pub.L. 104-134, §§ 801-810, 110 Stat. 1321-66

to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil

actions in which a prisoner is proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). The

PLRA directs district courts to sua sponte dismiss any claim that is frivolous or malicious, fails

to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who

is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B).

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App'x 120, 122 (3d Cir. 2012)

(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); see also Courteau v. United States,

287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)). That standard is set

forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), as explicated by the United States Court of Appeals for the Third Circuit. To survive a

court's screening for failure to state a claim, the complaint must allege sufficient factual matter to

show that the claim is facially plausible. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d

Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)

(quoting Iqbal, 556 U.S. at 678). “[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ ” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555).

Pro se pleadings are liberally construed. See Haines v. Kerner, 404 U.S. 519 (1972).

Nevertheless, “pro se litigants still 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).

IV. DISCUSSION

A. “Medication Related Claims”

a. Claims Against Defendant Nurse Hanson

Plaintiff’s complaint raises two separate issues with respect to Defendant Nurse Hanson.

First, as described above, Plaintiff saw her when he arrived at F.C.I. Fairton purportedly seeking

to be re-prescribed Oxycarbazapine which Plaintiff had previously been taken off of while at

U.S.P. Lewisburg. Second, Plaintiff alleges that Defendant Nurse Hanson should have responded

to the medical call when the March 2023 assault occurred.

Initially, as all the Defendants in this case appear to be federal employees as they work at

F.C.I. Fairton, Plaintiff’s claims are brought under Bivens v. Six Unknown Named Agents of the

Fed. Bureau of Narcotics, 403 U.S. 388 (1971). “In order to state a claim under Bivens, a

claimant must show: (1) a deprivation of a right secured by the Constitution and laws of the

United States; and (2) that the deprivation of the right was caused by an official acting under

color of federal law.” Doty v. United States, Civ. No. 15-3016, 2016 WL 3398579, at *6 (D. N.J.

June 15, 2016) (citations omitted).

“In order for liability to attach under [Bivens], a plaintiff must show that a defendant was

personally involved in the deprivation of his federal rights.” Fears v. Beard, 532 F. App'x 78, 81

(3d Cir. 2013) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). “[L]iability

cannot be predicated solely on the operation of respondeat superior. Personal involvement can be

shown through allegations of personal direction or of actual knowledge and acquiescence.”

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted); see also Iqbal, 556 U.S.

at 676 (stating that respondeat superior cannot form the basis of a Bivens claim).

The Supreme Court has recognized, in limited situations, a private cause of action against

federal officials. See Bivens, 403 U.S. at 389; see also Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir.

2018) (stating “Bivens is the short-hand name given to causes of action against federal officials

for alleged constitutional violations.”). “In order to state a claim under Bivens, a claimant must

show: (1) a deprivation of a right secured by the Constitution and laws of the United States; and

(2) that the deprivation of the right was caused by an official acting under color of federal law.”

Doty v. United States, Civ. No. 15-3016, 2016 WL 3398579, at *6 (D. N.J. June 15, 2016)

(citations omitted).

Bivens permits a damages remedy “to compensate persons injured by federal officers who

violated the prohibition against unreasonable search and seizures.” Ziglar v. Abbasi, 582 U.S.

120, 131 (2017). The Supreme Court has extended Bivens to only a few other limited

constitutional violations. See id. For example, in Davis v. Passman, 442 U.S. 228 (1979), the

Supreme Court held that the Fifth Amendment Due Process Clause gave an administrative

assistant a damages remedy against a Congressman for firing her due to gender. See Ziglar, 582

U.S. at 131. In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court held the Eighth

Amendment gave a prisoner's estate a damages remedy against prison officials for failing to

provide adequate medical treatment. See Ziglar, 582 U.S. at 131; see also Dongarra v. Smith, 27

F.4th 174, 180 (3d Cir. 2022) (noting the Supreme Court has only recognized implied causes of

action in Bivens, Davis and Carlson).

Plaintiff’s Bivens’ claims against Defendant Nurse Hanson fall within its purview since

Plaintiff seeks relief for Defendant Nurse Handson’s purported deliberate indifference to

Plainitff’s serious medical needs.

For the delay or denial of medical care to rise to a violation of the

Eighth Amendment’s prohibition against cruel and unusual

punishment, a prisoner must demonstrate “(1) that defendants were

deliberately indifferent to [his] medical needs and (2) that those

needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999). Deliberate indifference requires proof that the official

“knows of and disregards an excessive risk to inmate health or

safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582

(3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837,

114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). We have found

deliberate indifference where a prison official: “(1) knows of a

prisoner’s need for medical treatment but intentionally refuses to

provide it; (2) delays necessary medical treatment based on a

nonmedical reason; or (3) prevents a prisoner from receiving

needed or recommended treatment.” Rouse, 182 F.3d at 197.

Deference is given to prison medical authorities in the diagnosis

and treatment of patients, and courts “disavow any attempt to

second-guess the propriety or adequacy of a particular course of

treatment ... (which) remains a question of sound professional

judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d

754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44,

48 (4th Cir. 1977)). Allegations of negligent treatment or medical

malpractice do not trigger constitutional protections. Estelle v.

Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976).

Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir. 2013). Deliberate indifference can also be found

“where the prison official persists in a course of treatment in the face of resultant pain and risk of

permanent injury.” See McCluskey v. Vincent, 505 F. App'x 199, 202 (3d Cir. 2012) (internal

quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a

physician as requiring treatment,’ or if it ‘is so obvious that a lay person would easily recognize

the necessity for a doctor’s attention.’” See Mitchell v. Beard, 492 F. App'x 230, 236 (3d Cir.

2012) (quoting Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth

Cnty. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).

Plaintiff’s claim regarding being taken off Oxycarbazapine is belied by his own

allegations in his complaint. Indeed, Plaintiff admits that after the results of his EMG came back,

he was placed back on Oxycarbazapine, albeit, at a lower dose. Plaintiff’s disagreement with the

amount of dosage of his medication amounts to a mere disagreement in his treatment, which does

not give rise to a claim as alleged against Defendant Nurse Hanson. See, e.g., Korn v. Marrero,

No. 15-338, 2016 WL 3676395, at *4 (E.D. Ky. July 7, 2016) (prisoner's “mere disagreement

with the dosage of methadone, a potentially-addictive opiod pain medication, is insufficient to

indicate deliberate indifference to his medical needs” where prisoner was prescribed lower

dosage of methadone and “numerous other medications ... to address a plethora of health

conditions”); Tuck v. Maiorana, No. 15–2556, 2016 WL 3469945, at *3 (W.D. La. Apr. 26,

2016) (recommending dismissal of Bivens claim where plaintiff's “complaint shows that he

received a massive amount medical treatment, albeit not to his liking or in his preferred time

frame,” and merely “state[s] a disagreement with the medical staff regarding the procedures

necessary to treat his medical issues”), report and recommendation adopted, 2016 WL 3466917

(W.D. La. June 21, 2016).

Plaintiff also fails to state a claim against Defendant Nurse Hanson related to her

purported failure to respond to the medical call when Plaintiff was assaulted. As indicated above,

for liability to potential attach to a defendant, there must be some personal knowledge alleged.

There is nothing in the complaint whatsoever that Defendant Nurse Hanson was made aware of

the assault that occurred against Plaintiff. Furthermore, Plaintiff’s complaint indicates he was

rushed to a medivac helicopter. Accordingly, Plaintiff’s claims against Defendant Nurse Hanson

are dismissed without prejudice for failure to state a claim upon which relief may be granted.

b. Claims Against Defendant Clinical Director DeMonte

Plaintiff’s sole allegation against Defendant Clinical Director DeMonte is that once

Plaintiff was put back on Antiriptilean by Nurse Knowles for his nerve damage and night

tremors, Plaintiff submitted “cop-outs” to Defendant Clinical Director Demonte about his nerve

pain. He received no response such that he was left to deal with his night tremors and nerve pain

for months. Clearly, Plaintiff admits he was getting treatment for his nerve pain and night

tremors, although, at least initially, not the type of medication to his liking. However, such

claims regarding prescribing a different medication provided by prison medical staff is the type

of disagreement between an inmate and medical personnel that falls short of alleging a

constitutional violation. See, e.g., Whooten v. Bussanich, 248 F. App'x 324, 326-27 (3d Cir.

2007) (upholding grant of summary judgment that medical staff was not deliberately indifferent

for treating migraine headaches with other medicines and only occasionally with the plaintiffs

preferred drug); Ascenzi v. Diaz, 247 F. App'x 390, 391 (3d Cir. 2007) (upholding grant of

motion to dismiss for failure to state a claim, finding no deliberate indifference where plaintiff

was provided pain medication and antibiotics instead of narcotic pain relievers for his herniated

cervical discs). These allegations against this Defendant are simply not enough to rise to the level

of a constitutional violation as courts will not second guess whether a particular course of

treatment is adequate or proper. See Parham v. Johnson, 126 F.3d 454, 458 n.7 (3d Cir. 1997)

(quoting Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)). Thus,

Plaintiff’s claims against Defendant Clinical Director DeMonte are dismissed without prejudice

for failure to state a claim upon which relief may be granted.

c. Claims Against Defendant Doctor Lopez

Plaintiff makes one allegation against Defendant Doctor Lopez in the complaint. As

detailed in supra Part II, Plaintiff alleges that Defendant Doctor Lopez stopped his Rimron

medication for his mental health and night tremors because it caused erectile dysfunction. These

allegations appear to indicate that Plaintiff was taken off this particular medication based on its

medical side effects. Plaintiff’s sparse allegations against Defendant Doctor Lopez fail to state a

claim upon which relief may be granted. Indeed, Plaintiff’s allegations appear to make clear that

he was taken off of a particular medication based on its medical side effects. Accordingly, the

claims as alleged against Defendant Doctor Lopez are dismissed without prejudice.

B. “Assault Related Claims”

a. Claims Against Defendant Officer Hernandez

As described above, after being stabbed thirty-six times, Defendant Officer Hernandez

responded to Plaintiff’s unit. He placed Plaintiff in hand restraints, and, despite, the obvious

blood and injuries, made Plaintiff walk to the medivac helicopter rather than seeking alternative

modes of transport, or providing care on site. Given the early stages of these proceedings, this

Court will permit Plaintiff’s claims against Defendant Officer Hernandez to proceed past

screening.

b. Claims Against Defendant Lieutenant Marrugo

Plaintiff’s allegations against Defendant Lieutenant Marrugo were that he told Defendant

Officer Hernandez over the radio to bring Plaintiff to the medical department. Later in the

complaint, Plaintiff admits that Defendant Lieutenant Murrugo was not in the building at the

time of the assault.

Plaintiff fails to state a claim against Defendant Lieutenant Marrugo. Indeed, he fails to

state that Defendant Lieutenant Marrugo had any personal involvement in being deliberately

indifferent to Plaintiff’s medical care. He told Defendant Officer Hernandez to send Plaintiff to

the medical department after the assault. Furthermore, he was not even “in the building” as

admitted by Plaintiff at the time. This Court fails to see how the allegations as written in the

complaint state a claim against this Defendant. Accordingly, Plaintiff’s claims against Defendant

Lieutenant Marrugo are dismissed without prejudice for failure to state a claim upon which relief

may be granted.

c. Claims Against Defendant Officer Benton

Plaintiff next sues Defendant Officer Benton. To reiterate, Plaintiff alleges he was

jumped by three inmates and stabbed thirty-six times. Defendant Officer Benton called in the

code for a fight and grabbed two of the inmate perpetrators. However, Plaintiff alleges while

Defendant Officer Benton did that, the third inmate continued to chase him and stab him.

The Third Circuit has held “that a corrections officer’s failure to intervene in a beating

can be the basis of liability . . . if the corrections officer had a reasonable opportunity to

intervene and simply refused to do so.”1 Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002).

In this case though, Defendant Officer Benton did intervene. He called in the code for a fight and

grabbed two of the purported assaulters. Given these alleged facts by Plaintiff, this Court finds

Plaintiff has failed to state a claim against Defendant Officer Benton. See, e.g., Armstrong v.

New Jersey Dep’t of Corr., No. 20-5125, 2023 WL 2728733, at *9 (D.N.J. Mar. 31, 2023)

(granting summary judgment for Defendants on failure to intervene claim when they did

1 At this screening stage, this Court expresses no opinion whether such a failure to intervene

claim can proceed under Bivens after Ziglar, 582 U.S. 120.

intervene to the extent they could separate the two individuals). Accordingly, Plaintiff’s claims

against this Defendant are dismissed without prejudice.

d. Claims Against Defendant Medical Administrator Martin

Plaintiff makes one allegation against Defendant Medical Administrator Martin. Plaintiff

states that upon returning to F.C.I. Fairton, this Defendant told him that “they” knew that the

medical cart was broken as a new one was supposed to be delivered on March 1, 2023, but had

not yet arrived.

Plaintiff’s allegations fail to state a claim against this Defendant. First, Plaintiff admits

that Defendant Medical Administrator Martin understood that there was a problem with the

medical cart, and that a new one had been ordered. It just had not yet arrived. Furthermore, and

perhaps more importantly, Plaintiff fails to state that there were no other modes of transport such

as a wheelchair or stretcher to be used to transport him to the medivac helicopter. Thus, the mere

fact that there was an inoperable “medical cart,” does not in and of itself, rise to the level of a

constitutional violation against this Defendant for being deliberately indifferent to a serious

medical need of Plaintiff. Indeed, it is not alleged that Defendant Medical Administrator Martin

would have had knowledge that Plaintiff was going to need a medical cart or that no other mode

of transportation to the medivac helicopter was available as an alternative. Accordingly,

Plaintiff’s claims against this Defendant are dismissed without prejudice for failure to state a

claim upon which relief may be granted.

e. Claims Against Defendants S.I.S. Lieutenant Wilder & S.I.S. Investigator

Kopistici

Plaintiff next states that Defendants S.I.S. Lieutenant Wilder and S.I.S. Investigator

Kopistici are liable to him because he was placed in the SHU for 150 days. For the following

reasons, Plaintiff’s claims against these two Defendants will be dismissed with prejudice for

failure to state a claim.

Courts within this Circuit have found that a Plaintiff’s claim regarding placement in the

SHU while incarcerated fails to state a claim under Bivens. For example, in Eads v. United

States, No. 21-17369, 2024 WL 278720, at *4-5 (D.N.J. Jan. 25, 2024), the plaintiff sought to

amend his complaint with a claim that he was improperly placed in the SHU at F.C.I. Fairton.

The Court examined whether the proposed amendment would be futile as constituting something

meaningfully different from Carlson. Ultimately, the Court held as follows:

In Carlson, an inmate’s estate alleged that prison officials failed to

provide the inmate with competent medical care following an

asthma attack, which ultimately resulted in the inmate's death. 446

U.S. at 16 n.1. In that regard, the constitutional violation

recognized in Carlson arose out of deliberate indifference to a

serious medical need. Here, however, Count V of the proposed

second amended complaint alleges, essentially, a violation arising

out of allegedly unconstitutional conditions of confinement. See

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (recognizing that the

Eighth Amendment requires prison officials to “provide humane

conditions of confinement”). The Supreme Court has not

recognized a Bivens cause of action for conditions of confinement

claims. Berry, 2023 WL 2424181, at *4-5. Accordingly, the Court

finds that Plaintiff's retaliation claims present a new Bivens

context. See Hernandez [v. Mesa], 140 S. Ct. [735,] 743 [(2020)]

(“A claim may arise in a new context even if it is based on the

same constitutional provision as a claim in a case in which a

damages remedy was previously recognized.”).

Because Count V concerns a new Bivens context, the Court next

considers “whether any ‘special factors counsel[ ] hesitation’ in

extending a Bivens remedy to [this] context.” Shorter, 12 F.4th at

372 (alteration in original) (quoting Ziglar, 582 U.S. at 135).

“There may be many such factors, but two are particularly

weighty: the existence of an alternative remedial structure and

separation-of-powers principles.” Bistrian v. Levi, 912 F.3d 79, 90

(3d Cir. 2018).

Here, both factors would suggest that a Bivens remedy is

unavailable as to Plaintiff's claim in Count V. First, “[t]he Supreme

Court has held that ‘a court may not fashion a Bivens remedy if

Congress already has provided, or has authorized the Executive to

provide, “an alternative remedial structure,”’” and has concluded

“that the BOP's Administrative Remedy program satisfies this

requirement.” Berry [v. Fitgerald], [No. 17-4904] 2023 WL

2424181, at *6 [(D.N.J. Mar. 9, 2023)] (quoting Egbert [v. Boule],

596 U.S. [482,] 493 [(2022)]).

Separate from the availability of administrative remedies, the Third

Circuit has already concluded in similar cases that separation-of-

powers concerns likewise foreclose a Bivens remedy for this type

of claim. In Mammana v. Barben, 856 F. App’x 411 (3d Cir. 2021)

(Mammana II), prison staff punished an inmate for seeking

medical care by placing him into administrative segregation, where

the inmate was “deprived of his clothing, provided only ‘paper

like’ coverings instead, denied bedding, and exposed to low cell

temperatures and constant bright lighting for four days.”

Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 370-374 (3d

Cir. 2019) (footnote omitted) (Mammana I). The Third Circuit

found that the plaintiff's claims presented a new Bivens context,

and “significant separation-of-powers concerns” militated against

permitting a Bivens action to proceed. Mammana II, 856 F. App'x

at 415. The Third Circuit reasoned:

Candidly, [Mammana] asks for a new implied cause

of action to sue federal prison officials for

unconstitutional conditions of confinement, a step

never taken by the Supreme Court nor any circuit

court. “Heeding the reasoning in Abbasi, we must

be reluctant to ‘establish whole categories of cases

in which federal officers must defend against

personal liability claims in the complex sphere of

litigation.’” Bistrian, 912 F.3d at 95 (quoting

Abbasi, [582 U.S. at 136]). Recognizing such a

broad new category of claims would step well into

the lawmaking privilege delegated only to

Congress, and well over the bounds of our limited

constitutional power. . . .

That is a special factor counseling hesitation to

expand Bivens. Because we pause, we must “reject

the request” to recognize this new Bivens context.

Id. at 415-16 (footnote omitted).

The Mammana II court's reasoning carries equal force here. The

Court further notes that Plaintiff's claims regarding his placement

in the SHU implicate “executive policies” regarding inmate

discipline, which “threatens a large burden to both the judiciary

and prison officials.” Bistrian, 912 F.3d at 96 (declining to extend

Bivens remedy to claim brought under First Amendment for

placement in SHU as retaliation for inmate's lodging complaints

about officers’ conduct). “If there is even a single ‘reason to pause

before applying Bivens in a new context,’ a court may not

recognize a Bivens remedy.” Berry, 2023 WL 2424181, at *5

(quoting Egbert, 596 U.S. at 492). Because there are many reasons

to pause before extending Bivens in this case, the Court finds that

Plaintiff's amendment as to Count V is futile, and will therefore

DENY Plaintiff leave to amend as to that count.

Eads, 2024 WL 278720, at *5.

Similarly, in Styles v. Ortiz, No. 23-3755, 2023 WL 8096902, at *3-4 (D.N.J. Nov. 21,

2023), the United States District Court for the Eastern District of Pennsylvania analyzed a claim

from a plaintiff involving his placement in the SHU and whether the plaintiff could proceed on

such a claim at screening. In dismissing the claim with prejudice, the Eastern District of

Pennsylvania stated as follows:

[t]he crux of Mr. Styles's claim is that his placement in the SHU at

FDC for nearly 40 months over the time period from January 2013

to July of 2018 violated his due process rights. Mr. Styles’ claim

must be dismissed because there is no Bivens remedy available

based on these allegations. In Bistrian, the Third Circuit held that

no Bivens claim exists for an alleged Fifth Amendment violation

based on placement of a pretrial detainee in punitive detention.

Bistrian, 912 F.3d at 94. In denying Bistrian’s claim, the Third

Circuit concluded that special factors did not warrant an extension

of Bivens to the context of punitive detention in SHU because it

“calls in question broad policies pertaining to the reasoning,

manner, and extent of prison discipline.” Bistrian, 912 F.3d at 94.

The Third Circuit further reasoned that because “courts are ill

equipped to deal with the increasingly urgent problems in prison

administration and reform,” and because the “Bureau of Prisons,

not the judiciary, has the expertise, planning and the commitment

of resources necessary for the difficult task of running a

correctional facility ... separation-of-powers concerns counsel a

policy of judicial restraint.” Id. at 94-95 (cleaned up).

Mr. Styles's constitutional claim challenging his placement and

time spent in the SHU are indistinguishable in any meaningful way

from the claims at issue in Bistrian. Accordingly, Bivens does not

provide a cause of action for Mr. Styles to challenge the

constitutionality of his time in the SHU from January 2013 to July

2018, or on any other date.9 See id.; see also Rowland v. Pistro,

2021 WL 5631692, at *6 (E.D. Pa. Nov. 29, 2021) (relying on

Bistrian for conclusion that “Bivens does not provide a cause of

action for [the plaintiff] to challenge the constitutionality his

placements in the SHU”); Gary v. Rocks, 2022 WL 704644, at *6

(E.D. Pa. Mar. 8, 2022) (dismissing Bivens claim based on six-

month stay in the SHU). Since Mr. Style's claim is not cognizable

under Bivens, we will dismiss it with prejudice because Mr. Styles

cannot cure the defects in this claim.

Styles, 2023 WL 8096902, at *3–4.

The reasoning in Eads and Styles is persuasive in finding that Plaintiff cannot proceed

with a Bivens claim against these two Defendants for his placement in the SHU. The landscape

of a plaintiff’s ability to bring different types of Bivens claims has changed drastically post-

Ziglar as illustrated above. Plaintiff’s claims against these two Defendants shall therefore be

dismissed with prejudice for failure to state a claim upon which relief may be granted.

C. Claims Against Defendants C-Unit Counselor Brooks and C-Unit Case Managers

Defoney & Gibson

Plaintiff’s claims against Defendants C-Unit Counselor Brooks and Defendants C-Unit

Case Managers Defoney and Gibson relate to their purported failure to respond to Plaintiff’s

grievances. “The filing of grievances, alone, is insufficient to show the actual knowledge

necessary for personal involvement.” Miller v. Trometter, No. 11–811, 2012 WL 5933015, at

*13 (M.D. Pa. Nov. 27, 2012) (citing Rode, 845 F.2d at 1207). Thus, “prison officials cannot be

held liable based solely on their failure to take corrective action when grievances or

investigations were referred to them.” Miller, 2012 WL 5933015, at *13 (citing Pressley v.

Beard, 266 F. App'x 216 (3d Cir. 2008) (per curiam); Hughes v. Smith, 237 F. App'x 756, 758

(3d Cir. 2007) (per curiam)) (other citations omitted); see also Robinson v. Green, No. 12–1212,

2012 WL 5401079, at *3 (E.D. Pa. Nov. 5, 2012); Mercado v. Ellis, No. 11–6756, 2012 WL

1636164, at *3 (D.N.J. May 9, 2012) (“It appears that Plaintiffs only claims against the named

defendants are based on their failure to investigate or respond to Plaintiffs letters and grievances.

These claims fail to rise to the level of a constitutional deprivation sufficient to state a claim

under § 1983. Indeed, an allegation of a failure to investigate, without another recognizable

constitutional right, is not sufficient to sustain a section 1983 claim.”) (internal quotation marks

and citations omitted); see also Dinkins v. Potope, No. 19-1460, 2020 WL 4504428, at *8 (M.D.

Pa. Aug. 5, 2020) (stating “involvement limited to responding to grievances is insufficient to

establish Bivens liability”).

Based on the above, to the extent Plaintiff relies on these three Defendants’ failure to

respond to his grievances, that alone is insufficient to state a claim.

Plaintiff also alludes to being targeted by unnamed SHU staff members for filing

grievances. He states he has been retaliated by having his recreation restricted and his property

taken as well as had multiple disciplinary actions taken against him. “A prisoner alleging

retaliation must show: (1) constitutionally protected conduct, (2) an adverse action by prison

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

rights, and (3) a causal connection between the exercise of his constitutional rights and the

adverse action taken against him.” Mack v. Yost, 427 F. App'x 70, 72 (3d Cir. 2011) (quoting

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003)).

Prior to the United States Supreme Court decision in Ziglar, the United States Court of

Appeals for the Third Circuit implied a Bivens remedy for an inmate's claim a prison official

retaliated against him for exercising his First Amendment rights. See Mack v. Warden Loretto

FCI, 839 F.3d 286, 296-97 (3d Cir. 2016). However, post-Ziglar, the Supreme Court has made it

clear that “there is no Bivens action for First Amendment retaliation.” Egbert, 596 U.S. at 498-

99; see also Gilmore v. McGann, No. 23-1467, 2023 WL 6141606, at *1 (3d Cir. Sept. 20, 2023)

(affirming District Court's dismissal of Plaintiff's First Amendment retaliation claim because

Bivens does not encompass such an action); Bistrian v. Levi, 912 F.3d 79, 96 (3d Cir. 2018)

(“[T]he retaliation claim is not a recognized Bivens remedy[.]”); King v. Ponce, No. 21-5628,

2023 WL 8253060, at *4 (D.N.J. Nov. 29, 2023) (citing approvingly to Egbert in granting

Defendants’ motion to dismiss prisoner plaintiff's Bivens First Amendment retaliation claim).

Thus, to the extent Plaintiff is attempting to assert a First Amendment retaliation claim under

Bivens, it is dismissed with prejudice for failure to state a claim upon which relief may be

granted.

V. MOTION TO APPPOINT PRO BONO COUNSEL

Plaintiff has filed a motion to appoint pro bono counsel. (See ECF 6). Indigent persons

raising civil rights claims have no absolute right to counsel. See Parham v. Johnson, 126 F.3d

454, 456-57 (3d Cir. 1997). To appoint pro bono counsel, there must be some merit in fact or law

to the claims the plaintiff is attempting to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.

1993). Furthermore, in determining whether to appoint counsel, a court considers the following:

(1) the plaintiff's ability to present his or her own case; (2) the complexity of the legal issues; (3)

the degree to which factual investigation will be necessary and the ability of the plaintiff to

pursue such investigation; (4) the amount a case is likely to turn on credibility determinations;

(5) whether the case will require the testimony of expert witnesses; and (6) whether the plaintiff

can attain and afford counsel on his own behalf. See id. at 155–56, 157 n.5; see also Cuevas v.

United States, 422 F. App'x 142, 144–45 (3d Cir. 2011) (reiterating the Tabron factors).

Additionally, the power to grant appointment of counsel lies solely with the discretion of this

Court. See Tabron, 6 F.3d at 155.

Upon analyzing these factors, this Court will deny Plaintiff's motion to appoint pro bono

counsel without prejudice at this time. For example, this case does not seem necessarily

complex. Plaintiff should be able to pursue this case on his own, at least at this early screening

stage. If, however, circumstances change, Plaintiff may file another motion to appoint pro bono

counsel for reconsideration anew by the Magistrate Judge.

VI. CONCLUSION

For the foregoing reasons, Plaintiff’s complaint is proceeded in part. Plaintiff’s claims

against Defendant Officer Hernandez shall proceed. The remainder of Plaintiff’s claims are

dismissed. Plaintiff’s claims against Defendant S.I.S. Lieutenant Wilder and S.I.S. Investigator

Kopistici are dismissed with prejudice as are Plaintiff’s claims related to First Amendment

retaliation. The remainder of the claims are dismissed without prejudice for failure to state a

claim upon which relief may be granted. Plaintiff’s motion for the appointment of pro bono

counsel is denied. An appropriate order will be entered.

DATED: May 1, 2024 s/ Robert B. Kugler

ROBERT B. KUGLER

United States District Judge