so, Veteto submitted a "brief regarding pretrial hearing."
Though the court permitted Veteto to use the brief as a vehicle to clearly define the nature of his claims against the defendants, he stated very little, if anything, about the specific nature of his alleged injuries or how he attempted to prove them. Like many of Veteto's submissions, the brief is a rambling, confusing document, riddled with bitter language, legal conclusions and misstatements of fact. Five full pages are devoted to subject matter jurisdiction, which is not an issue. The brief also describes incidents of retaliation, none of which are either legally compelling or related to the allegations made in any of Veteto's three complaints. Veteto argues in the brief, as he has throughout this lawsuit, that his discovery efforts have been unsuccessful because the defendants are evasive and refuse to respond to reasonable discovery requests in a manner consistent with the Federal Rules of Civil Procedure. He claims that even though he "has not been able to get any of the prison guards and employees to admit involvement in their answer to the interrogatories, this does not translate into being unable to show their involvement." Document 135 of record, page 9.
Motion to Dismiss for Failure to State a Claim
When considering a motion to dismiss for failure to state a claim, the court is obligated to construe the allegations in the plaintiff's complaint liberally in favor of the plaintiff and draw all reasonable inferences in the plaintiff's favor. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); United States v. Mississippi, 380 U.S. 128, 143 (1965); Sturm v. Clark, 835 F.2d 1009 (3d Cir. 1987). Therefore, a complaint should never be dismissed for failure to state a claim unless the court is convinced beyond a doubt that the plaintiff can not prove any set of facts to support a claim which would permit a recovery. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); District Counsel 47 v. Bradley, 795 F.2d 310 (3d Cir. 1986). Furthermore, uncounseled litigants like Mr. Veteto are entitled to an even greater degree of deference when the sufficiency of their pleadings is called into question. Haines v. Kerner, 404 U.S. 519, 520 (1972); Hughes v. Rowe, 449 U.S. 5 (1980).
I. Warden Miller
The defendants argue that Miller must be dismissed because there are no specific allegations against him in the second amended complaint and the doctrine of respondeat superior is an insufficient basis to hold a defendant liable for constitutional rights violations. Though neither the Supreme Court nor the Third Circuit has ruled specifically on the applicability of respondeat superior to Bivens suits, most courts considering the issue have borrowed principles from litigation arising under 42 U.S.C. § 1983 and not recognized vicarious liability in Bivens cases. See Dean v. Gladney, 621 F.2d 1331, 1334 (5th Cir. 1980) (citing cases). It appears highly unlikely that the Third Circuit would allow Bivens plaintiffs to use theories of recovery unavailable in § 1983 litigation;
thus, until a court of binding authority directs otherwise, § 1983 principles will be applied to Bivens claims filed in this court.
Accordingly, the argument that Veteto can not recover against Miller solely on the basis of his status as Lewisburg warden during the time period in question is well-taken. Even if the other defendants were identified and a verdict were returned against them, Miller's mere failure to act in the face of an unconstitutional act committed by one or more of his subordinates can not be a basis for the imposition of civil rights liability. See Rizzo v. Goode, 423 U.S. 362, 376 (1976). And while a supervisory official "may not with impunity maintain a custom, practice or usage that communicate[s] condonation or authorization of" unconstitutional behavior, see Stoneking v. Bradford Area School District, 882 F.2d 720, 730 (3d Cir. 1989), there are no allegations in the second amended complaint from which one could reasonably infer that the acts allegedly committed against Veteto were part of an established practice at Lewisburg to deprive inmates of access to the courts or otherwise subject them to unconstitutional conditions. Likewise, there is no specific information in the complaint that indicates Miller knew about and acquiesced in the conduct attributed to the unidentified defendants, whether such conduct is characterized as established practice or an isolated, unconstitutional event. See Gay v. Petsock, 917 F.2d 768, 771 (3d Cir. 1990).
The only portion of the second amended complaint that implicates Miller in any actual conduct states that "Veteto repeatedly requested administrative remedy forms from the defendant-respondent Miller and other defendants-respondents with no response or success." Document 66 of record, page 3. This is not a viable claim in and of itself, however, as federal regulations providing for an administrative remedy procedure do not create a protected liberty interest in access to that procedure. Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Flanagan v. Warden, United States Penitentiary, 784 F.Supp. 178, 181 (M.D.Pa 1992). Therefore, the defendants' motion to dismiss for failure to state a claim against defendant Miller will be granted.
II. The Unidentified Defendants
The substantive allegations in the second amended complaint are as follows:
While confined in the Administrative Detention and Disciplinary Segregation Units in the U.S. Penitentiary, Lewisburg, Pennsylvania, from May 29, 1985, until July 29, 1985, Veteto suffered the following injuries, torts and violations of his civil and constitutional rights. The defendants-respondents conspired together and did deprive Veteto of his right to petition the government for redress of grievances and of effective access to the courts by denying him pencil, pen, typewriter, paper, envelopes, stamps, access to the Federal Supplements (West), Federal Reporter, 2nd Series (West), Supreme Court Reports (Lawyers Cooperative) and legal research aids such as the Federal practice Digest and Shepards Citations, Black's Law Dictionary, Webster's Dictionary, Federal Practice Digest (West), Moore's Federal Practice and the Criminal Law Reporter, all of which are available at the U.S. Penitentiary, Lewisburg, Pennsylvania, by confining him in the AD/DS Unit and refusing to either provide him with the above or else allowing him to go to where the above were located. Veteto had to borrow pencil, paper, stamps and envelopes for writing and sending the original complaint. Veteto had an appellant brief that was due June 22, 1985, in the United States Court of Appeals for the Eleventh Circuit that he could neither research nor type due to the illegal confinement and denial of legal research materials.