Opinion
CIVIL 3:22-CV-808
02-20-2024
HUGO PALENCIA, Plaintiff, v. NEW FBOP DIRECTOR, COLETTE S. PETERS, et al., Defendants.
Mehalchick, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Background
On February 4, 2024, a number of related cases, including the instant case, were reassigned to the undersigned for pretrial management. By way of background, in May 2022, several dozen cases were initiated in this Court involving members of the MS-13 gang confined at the United States Penitentiary Lewisburg (USP Lewisburg) alleging that a January 31, 2022, “national lock down” of MS-13 members led to their unlawful transfer to USP Lewisburg and unconstitutional confinement to a “Special Management Unit” (SMU) status. This group of plaintiffs named the United States, the Federal Bureau of Prisons (FBOP), two departments within that agency and J. Meyers, all in their official capacity, seeking punitive damages, declaratory judgment, and injunctive relief pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346. Each of these pro se plaintiffs, including the plaintiff in the instant case, Hugo Palencia, filed essentially the same civil complaint form listing MS-13 inmates and Jose Bran as the plaintiffs. Many of these cases have since been abandoned by the individual plaintiffs. See Garcia v. United States, No. 3:22-CV-00763; Portillo v. United States, No. 3:22-CV-00766; Trejo v. United States, No. 3:22-CV-00772; Chach v. United States, No. 3:22-CV-00773; Cruz-Flores v. United States, No. 3:22-CV-00781; Amaya v. United States, No. 3:22-CV-00782; Reyes v. United States, No. 3:22-CV-00787; Lopez v. United States, No. 3:22-CV-00789; Chavez v. United States, No. 3:22-CV-00796; Sorto v. United States, No. 3:22-CV-00798; Rodriguez v. United States, No. 3:22-CV-00800; Mejia-Ramos v. United States, No. 3:22-CV-00802; Rivera v. United States, No. 3:22-CV-00805; Velasquez-Cruz v. United States, No. 3:22-CV-00810. Others of these complaints were dismissed for failure to state a claim upon which relief could be granted. See Parada-Mendoza v. United States, No. 3:22-CV-00771, 2023 WL 5919300 (M.D. Pa. June 21, 2023), report and recommendation adopted, No. CV 3:22-771, 2023 WL 5608401 (M.D. Pa. Aug. 30, 2023); Rubio v. United States, No. 3:22-CV-00779, 2022 WL 4080247 (M.D. Pa. Sept. 6, 2022); Rodriguez v. United States, No. 3:22-CV-00780, 2022 WL 4080767, at *1 (M.D. Pa. Sept. 6, 2022); Luis v. United States, No. 3:22-CV-00786; Alfaro v. United States, No. 3:22-CV-00791; Manjivar v. United States, No. 3:22-CV-00807; Paiz-Cornejo v. United States, No. 3:22-CV-00756; Bonilla v. United States, No. 3:22-CV-00815.
Interestingly, the plaintiff who seemingly initiated this slew of litigation on behalf of the MS-13 inmates, Jose Bran, voluntarily dismissed his case, “due to the settlement of the FTC and the starting of transfers and designations are [sic] commencing by the FBOP.” Bran v. United States, No. 3:22-CV-00755, (Doc. 103). Indeed, it appears several of the initial plaintiffs in this case have been transferred to other prison facilities or released since the inception of this litigation. See Argueta v. United States, No. 3:22-CV-00758; Ramirez v. United States, No. 3:22-CV-00797; Ramos-Jimenez v. United States, No. 3:22-CV-00799; Garcia v. United States, No. 3:22-CV-00817.
The instant pro se plaintiff, Hugo Palencia, was transferred to USP Lewisburg on March 8, 2022, and is serving a life sentence for racketeering and firearms offenses. (Doc. 31, 1-2). He filed the initial form complaint bearing the name Jose
Bran on May 23, 2022. (Doc. 1). On March 16, 2023, the defendants filed a motion to dismiss the complaint or, in the alternative, for summary judgment. (Docs. 1517). Palencia failed to timely file a brief in opposition to the defendants' motion, prompting the Court to issue an order directing him to do so on or before June 19, 2023. (Doc. 18). On June 13, 2023, Palencia instead filed an amended complaint, naming Defendants the United States, the Federal Bureau of Prisons FBOP, and FBOP Director Collette S. Peters. (Doc. 19). Finding that, although Palencia had not sought leave to amend until several months after the motion to dismiss was filed, since he filed the amended complaint within the last deadline set by the Court for filing his response to the motion to dismiss, and in light of his pro se status and the justifiably delay in his response due to his incarceration, the court deemed his amended complaint filed and struck the defendants' first motion to dismiss as moot.(Doc. 20). Thus, this amended complaint is the operative pleading in this case.
The court also terminated Defendants J. Meyers, the National Gang Unit Agency, and the Special Investigative Supervisor who were not named in the plaintiff's amended complaint.
In his amended complaint, Palencia argues that his assignment to a Security Threat Group (STG) has subjected him to prolonged restricted confinement with “not fully restored privileges” including limited phone calls, no video calls, restricted movement, no air conditioning, and no educational programs. (Doc. 19, at 2). He alleges that this prolonged restricted confinement, despite him never being found guilty of creating any disturbance which would cause his placement in the SHU, violates his due process rights under the Constitution. Palencia is seeking compensatory damages and injunctive relief, in the form of a restoration of all privileges and, seemingly, a transfer from USP Lewisburg and that the prison be altogether shut down. (Doc. 19, at 5). He also enigmatically alleges that his confinement in the SHU is an ethics violation by the FBOP amounting to either breach of contract or professional negligence. (Id., at 1).
The exact nature of this cause of action is unclear. It appears the plaintiff concedes that ethical violations cannot form the basis of a federal complaint, however he asks the court to consider these ethical violations in the context of professional negligence and breach of contract claims against the defendants. However, beyond his conclusory statements that he is alleging breach of contract and negligence against the defendants, his complaint is devoid of any factual averments pleading the elements of either cause of action. Further, as the court found in a related case, under the FTCA, we lack jurisdiction over any claim by Palencia sounding in tort, such as negligence, for which the plaintiff has not filed any administrative tort claims. See 28 U.S.C. § 2675(a); see also Alfaro v. United States, No. 3:22-CV-00791. Accordingly, any negligence or breach of contract claims asserted by the plaintiff should be dismissed.
The defendants have now filed a motion to dismiss this amended complaint, or in the alternative, for summary judgment. (Doc. 27). The defendants argue that this amended complaint is deficient on multiple scores, including failure to exhaust administrative remedies, failure under Bivens, and failure to state a claim. This motion is fully briefed and is ripe for resolution. (Docs. 31, 32, 34, 36). Guided by the Court's analysis in the related cases to this cause of action, we recommend the defendants' motion be granted.
II. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, BU.S-, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.'”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Motion for Summary Judgment - Standard of Review
The defendants have also moved for summary judgment on some of Johnson's claims pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla”
threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
C. The Plaintiff's Claims Are Unexhausted and Barred by the Federal Prison Litigation Reform Act (PLRA)
As we have explained, Palencia asserts violations of his due process rights, alleging that he was confined to the SHU based on his MS-13 membership, despite him never having been found guilty of creating any disturbance. The defendants contend that the plaintiff's Bivens claims are entirely unexhausted because, although he did file a grievance claiming improper administrative detention and conditions of confinement, he failed to complete the appeals process through all levels and never received a response on the merits from the Central Office.
As the defendants point out, under the Prison Litigation Reform Act (“PLRA”), a prisoner must pursue all avenues of relief available within a prison's grievance system before bringing a federal civil rights action concerning prison conditions. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This “exhaustion requirement applies to 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 (2002). The exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). Moreover, “it is beyond the power of [any] court ... to excuse compliance with the exhaustion requirement.” Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies, an inmate must comply with all applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only technical exhaustion of administrative remedies, but also substantial compliance with procedural requirements. Id. at 22732; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
On this score, “[t]o properly exhaust the BOP's administrative remedies, an inmate must generally: (1) attempt an informal resolution with staff at the institution; (2) file a formal complaint with the institution; (3) file an appeal to the appropriate regional director; and (4) file an appeal to the General Counsel at the Central Office.” Bakhtiari v. Spaulding, 779 Fed.Appx. 129, 133 n.3 (3d Cir. 2019) (citing 28 C.F.R. § 542.10-.15). An inmate's failure to comply with the exhaustion requirement prescribed by the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and the burden of proving a failure to exhaust rests with the defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
In support of their motion for summary judgment, the defendants complied with Local Rule 56.1 by filing a statement of facts that they asserted were undisputed, focused solely on the issue of exhaustion, pointing to evidence of Palencia's use of the BOP grievance system. (Doc. 31). Local Rule 56.1 also requires that “[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.” LR 56.1. Failure to comply with this rule has real consequences for litigants, since “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.” Doe v. Winter, No. 04-CV-2170, 2007 U.S. Dist. LEXIS 25517, *2 n. 2, 2007 WL 1074206 (M.D.Pa. Apr. 5, 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Palencia did not file a counterstatement of facts in accordance with M.D. Pa. Local Rule 56.1, but instead filed an affidavit simply reaffirming his legal arguments without responding to the factual allegations regarding the exhaustion of his claims. Thus, the facts averred by the defendants with regard to the grievances filed by Palencia are undisputed, or where disputed, reflect Palencia's version of the facts pursuant to this court's duty to view all facts and reasonable inferences in the light most favorable to the nonmoving party.
Although Palencia has not responded to the defendants' argument that he failed to fully exhaust his administrative remedies, his amended complaint does state that he petitioned the defendants for redress of his grievances and tried to fully exhaust is administrative remedies, but some of his grievances were lost or misplaced and made unavailable. (Doc. 19, at 1). The evidence presented by the defendants, including a sworn declaration by Jennifer Knepper, Supervisory Attorney at USP Lewisburg and custodian of the administrative remedies, as well as a record of filed administrative remedies at USP Lewisburg, demonstrates that Palencia did file a grievance regarding improper administrative detention and confinement on September 30, 2022. (Doc. 31, | 4). It appears this grievance, Remedy 1135632-F2, was initially rejected for failure to date his filing and then refiled by Palencia within the five days allotted. (Id., ¶¶ 5-6). This Remedy was denied on October 13th, 2022. (Id., | 6). Palencia appealed this denial to the Regional Director on October 31st, 2022, but his appeal was rejected because multiple pages were not legible. (Id., | 7). He was given ten days to resubmit but failed to do so. (Id.) Palencia then filed Remedy 1168627-F1 on July 17, 2023, requesting a transfer to active yard and a lifting of his restrictions, which was denied and never appealed. (Doc. 31-2, | 6).
Thus, while Palencia makes the bare assertion that some of his grievances were lost or misplaced or made unavailable, in our view he has fallen far short of his burden to show that the administrative remedies were somehow unavailable to him. Rather, the record affirmatively indicates that he knew how to take advantage of the prison remedy system but failed to refile his illegible remedy and properly exhaust his appeals. Accordingly, we conclude that Palencia has entirely failed to exhaust his administrative remedies with respect to his Bivens claims, and these claims should be dismissed.
D. The Plaintiff's Constitutional Claims Fail as a Matter of Law.
Moreover, setting aside the plaintiff's failure to exhaust his administrative remedies which has resulted in him being wholly barred from pursuing these Bivens claims against the defendants, the plaintiff's complaint fails to state a claim of a constitutional dimension demonstrating he is entitled to relief. Broadly construed,
Palencia asserts that the FBOP and Director Peters violated his due process rights under the Fifth and Fourteenth Amendments and right to be free of cruel and unusual punishment under the Eighth Amendment after the national lockdown of MS-13 gang members when he was assigned to STG and subjected to restricted confinement.
The amended complaint alleges a deprivation of privileges and rights under the First, Fifth, Eight, and Fourteenth Amendments but makes no argument or averment as to the basis of the plaintiff's First Amendment cause of action so we do not address its merits here, especially given the unexhausted nature of the plaintiff's claims.
As to Palencia's claims that he was subjected to extreme conditions of confinement in violation of the Eighth Amendment due to lack of air conditioning, restricted phone access, and no access to educational opportunities, it is well settled that “[w]hen an Eighth Amendment claim arises in the context of a challenge to conditions of confinement, we must determine if prison officials acted with ‘deliberate indifference' to the inmate's health. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). The objective inquiry is whether the inmate was ‘denied the minimal civilized measure of life's necessities.' Hudson, 503 U.S. at 9, 112 S.Ct. 995.” Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000). In this setting, it is clear that:
The Eighth Amendment prohibits punishments inconsistent with “evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)
(quoting Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)). Conditions of prison confinement violate the Eighth Amendment only if they “deprive inmates of 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)Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003).
Thus, these claims also require proof of a both culpable state of mind, and objective proof of physical conditions of confinement which shock the conscience and depart from minimal civilized standards of life's necessities.
At the same time, it is clear that “the Constitution ‘does not mandate comfortable prisons.'” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). Instead, in order to establish an Eighth Amendment claim, a plaintiff must show that he has been deprived of “the minimal civilized measure of life's necessities.” Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997) (quoting Young v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1991)). This includes showing that the conditions of confinement pose “a substantial risk of serious harm” to an inmate's health or safety. Farmer, 511 U.S. at 834. In considering such claims, courts emphasize the duration of the complainant's exposure to the allegedly unconstitutional conditions and the “totality of the circumstances” as critical to a finding of cruel and inhumane treatment. Rhodes, 452 U.S. at 362-63.
Here, Palencia states only that he is subjected to limited phone calls (five phone calls of nine minutes a month), no video calls, restricted movement, no educational programs, and no air conditioning. This simply is not sufficient to allege atypical or significant hardship in the prison context, especially since the plaintiff has not alleged he suffered any physical harm due to the lack of air conditioning or that any of the defendants were deliberately indifferent to his health or safety or, for that matter, had any direct involvement in these restrictions.
With regard to placement in restrictive housing, without in any way diminishing these stark conditions of confinement, which are compelled by security concerns stemming from the nature of the inmate population housed in these units, we note that any general constitutional challenge to conditions at these restricted housing units fails because courts have repeatedly found that administrative segregation, without more, is not an Eight Amendment violation. See, e.g., Griffin v. Vaughn, 112 F.3d 703 (3d Cir.1997) (holding that the restrictive conditions in administrative custody in the Pennsylvania state correctional institutions, in and of themselves, do not violate the Eighth Amendment); Pressley v. Johnson, 268 Fed.Appx. 181, 183 (3d Cir.2008) (same); Walker v. Campbell, Civ. No. 09-282, 2010 WL 2891488 (W.D. Pa. May 4, 2010) (same); Fortson v. Kelchner, Civ. No. 08532, 2009 WL 693247, at *3 (W.D. Pa. Mar. 13, 2009) (granting defendants' motion to dismiss as to plaintiff's eighth amendment claim regarding confinement in the RHU and SMU); Milhouse v. Arbasak, Civ. No. 07-01442, 2009 WL 1119488, 3 (E.D.Pa. April 27, 2009) (holding that mere placement in SHU did not violate the Eighth Amendment); Pressley v. Blaine, 544 F.Supp.2d 446, 453 (W.D. Pa. 2008) (holding that 1080 days of disciplinary confinement did not implicate the Eighth Amendment); Dantzler v. Beard, Civ. No. 05-1727, 2007 WL 5018184, at * 11-12 (W.D. Pa. Dec.6, 2007) (holding that the conditions of confinement in the SMU and LTSU did not amount to cruel and unusual punishment in violation of the Eighth Amendment); Woods v. Abrams, Civ. No. 06-757, 2007 WL 2852525, 14 (W.D. Pa. Sep. 27, 2007) (holding that the conditions of confinement in the LTSU did not satisfy the objective component of an Eighth Amendment claim); [Gary] Banks v. Beard, Civ. No. 03-659, 2006 WL 2192015, at *11 (W.D. Pa. Aug.1, 2006) (same).
Further, in a similar case, the Third Circuit found that placement in SMU at USP-Lewisburg based on designation in a STG did not rise to the level of a due process or Eight Amendment violation. The court explained:
[T]o the extent that [the plaintiff] is alleging a violation of the Due Process Clause of the Fourteenth Amendment, Robinson's placement in the SMU did not constitute a dramatic departure from the accepted standards for conditions of confinement such that due process was implicated. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Transfers from lesser to more restrictive units in a prison generally do not implicate a protected liberty interest because some incursions on liberty are to be expected within a prison. Sandin, 515 U.S. at 485, 115 S.Ct. 2293. See also Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002) (transfer to Security Threat Group Management Unit (“STGMU”), through which gang leaders are identified and isolated, taught non-violent conflict resolution, and released back into the general population upon successful completion of the program, does not implicate protected liberty interest). Due process concerns arise when the conditions of confinement impose
“atypical and significant hardship[s] on the inmate in relation to the ordinary incidents of prison life.” Id. Placement in administrative segregation for days or months at a time does not implicate a protected liberty interest. See Torres v. Fauver, 292 F.3d 141 (3d Cir.2002) (no liberty interest in avoiding 120 days of administrative custody); Griffin, 112 F.3d at 706 (conditions in administrative segregation do not impose “atypical or significant hardship”).
Here, there is nothing in the record that the BOP's basis to transfer Robinson to the SMU was improper, nor are there any facts to suggest that Robinson's placement in the SMU subjected him to “atypical or significant hardship.” See Sandin, 515 U.S. at 484, 115 S.Ct. 2293. Robinson's placement in the SHU at USP-Lewisburg was within “the ordinary incidents of prison life” and, thus, did not violate his constitutional rights. See Torres v. Fauver, 292 F.3d 141, 150-51 (3d Cir.2002); Griffin v. Vaughn, 112 F.3d 703, 706-08 (3d Cir. 1997).
Additionally, to the extent that Robinson alleges a violation of his Eighth Amendment rights, he has not demonstrated (1) that his placement in the SMU resulted in the denial of any basic human need, (2) that he was “incarcerated under conditions posing a substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), or (3) that prison officials demonstrated a “deliberate indifference” to his health or safety. Id. Accordingly, there is no basis for relief and summary judgment was proper.Robinson v. Norwood, 535 Fed.Appx. 81, 83-84 (3d Cir. 2013).
Thus, in our view, even if the plaintiff had exhausted his administrative remedies and was entitled to pursue this federal cause of action, his complaint falls short of alleging wrongdoings that rise to a constitutional dimension.
The defendants have also asked us to find in their favor as a matter of law because no Bivens remedy exists for the plaintiff's constitutional claims and argues we should decline to extend Bivens to this new context. In a related case, this court declined to reach this question after finding the plaintiff had failed to exhaust his administrative remedies. Similarly here, since we find the amended complaint fails on a number of other scores, we decline to address the defendants' additional arguments for dismissal of Palencia's Bivens claims.
E. The Plaintiff's Is Not Entitled To Compensatory Damages or Injunctive Relief.
The plaintiff's prayers for relief similarly fail as a matter of law. First, with respect to his request for compensatory damages, the Prison Litigation Reform Act (PRLA) would seem to bar such claims for purely emotional distress damages in the absence of any physical injury. Rather:
The PLRA states that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e); see also Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003)..... Accordingly, [where an inmate-plaintiff claims damages for emotional or mental injury] § 1997e(e) bars him from recovering compensatory damages on his federal claims. See Herman v. Holiday, 238 F.3d 660, 666 (5th Cir. 2001) (holding that § 1997e(e) barred damages claims based on emotional distress stemming from fear of asbestos exposure); Davis v. Dist. of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (holding that § 1997e(e) barred claims for emotional injury despite physical manifestations of weight loss, appetite loss, and insomnia).Michel v. Levinson, 437 Fed.Appx. 160, 163-64 (3d Cir. 2011). Palencia has not alleged he has suffered any physical harm as a result of his confinement. To the extent that Palencia is attempting in this complaint to plead a claim for compensatory damages based upon emotional distress alone his failure to plead any physical injury resulting from this alleged constitutional infraction precludes any recovery for these damages under the PLRA.
Further, to the extent that the plaintiff seeks injunctive relief in the form of a transfer from USP Lewisburg or a change in his security designation, well-settled law establishes that prisoners have no inherent constitutional right to placement in any particular prison, to any security classification, or to any particular housing assignment. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 225 (1976); Montanye v. Haymes, 427 U.S. 236, 242 (1976); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48 (5th Cir. 1995); Marchesani v. McCune, 531 F.2d 459 (10th Cir.), cert. denied, 429 U.S. 846, 97 S.Ct. 127, 50 L.Ed.2d 117 (1976). Simply put, as a legal matter Palencia has no constitutional right to choose his prison.
F. The Amended Complaint Should Be Dismissed With Prejudice.
Rule 15 of the Federal Rules of Civil Procedure allows a party to amend its pleading once as a matter of course, if amended within a specified time period, or with the opposing party's consent or leave of court. Fed.R.Civ.P. 15(a). A court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Yet, while Rule 15 provides that leave to amend should be freely given when justice so requires, the district court still retains broad discretion when ruling upon a motion to amend and may deny a request for leave to amend. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008); Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267 (3d Cir. 2001). The Third Circuit has adopted a liberal policy favoring the amendment of pleadings to ensure that claims are resolved on their merits rather than on technicalities. Dole v. Arco Chem. Co., 921 F.2d 484, 487 (3d Cir. 1990); see also ICU Medical, inc. v. RyMed Technologies, Inc., 674 F.Supp.2d 574, 577 (D. Del. 2009). Under this standard, amendment of pleadings ordinarily should be allowed absent a showing of “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, given the repeated failures by the plaintiff to state a claim of a constitutional dimension, and the obstacles faced due to his failure to properly exhaust his administrative remedies, in our view, granting the plaintiff leave to present yet another amended complaint would be futile. Accordingly, we recommend the amended complaint be dismissed with prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendants' motion to dismiss and/or for summary judgment, (Doc. 27), be GRANTED.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.
Submitted this 20th day of February 2024.