MEMORANDUM AND ORDER
Anita B. Brody, J.
February 14, 1995
Plaintiff, through appointed counsel, brings this action pursuant to the doctrine announced in the Supreme Court's decision in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), alleging that defendants, two correctional officers at the Federal Correctional Institution ("FCI") -Schuylkill, violated his constitutional rights while he was an inmate there. Specifically, plaintiff alleges that defendants violated his Fifth Amendment and Eighth Amendment rights by verbally threatening him (Counts I & III) and violated his Fifth Amendment rights by confining him to administrative detention for 19 days without a valid reason (Count II). Plaintiff also asserts a claim for intentional infliction of emotional distress based on these allegations (Count IV).
Before me now is defendants' motion to dismiss or, in the alternative, for summary judgment. Defendants' motion argues both the facial inadequacy of plaintiff's claims and the defendants' qualified immunity from suit on these claims. I will treat this motion as one for summary judgment because I must consider matters outside the pleadings. Fed. R. Civ. P. 12(b). I find that plaintiff's Fifth Amendment and Eighth Amendment claims based on defendants' alleged verbal threats do not raise claims of constitutional magnitude. Accordingly, I will enter summary judgment in favor of defendants on these claims. As to plaintiff's Fifth Amendment claim based on his confinement in administrative detention, I find that plaintiff enjoys a liberty interest in a timely hearing to consider the propriety of his detention but that, as this liberty interest was not clearly established at the time of his confinement, defendants are entitled to qualified immunity. Consequently, I will grant summary judgment for defendants on that claim as well. Finally, I will enter summary judgment for defendants on plaintiff's intentional infliction of emotional distress claim because that claim is governed -- and here defeated -- by the Federal Tort Claims Act.
I. STATEMENT OF FACTS
The following facts are either undisputed or drawn from plaintiff's version of events. Plaintiff, now an inmate at the Arizona Department of Corrections, was incarcerated at FCI Schuylkill in Minersville, Pennsylvania, from August 21, 1992, to May 17, 1993. Prior to his incarceration at FCI Schuylkill, plaintiff was an inmate at FCI Tucson, in Arizona, but was transferred to FCI Schuylkill when his personal security was jeopardized by the circulation among the FCI Tucson population of an article in "People" magazine identifying plaintiff as the notorious "Gentle Rapist."
On February 11, 1993, plaintiff was called into the office of defendant Pat McNabb, a Captain at FCI Schuylkill. There, plaintiff was accused of having violated federal Bureau of Prisons ("BOP") regulations by writing a letter to a female prison staff member that addressed her as "Goldilocks," and was interrogated about that alleged rules violation. Defendant T.J. Secor, a Lieutenant at FCI Schuylkill, was present in McNabb's office when plaintiff was thus confronted. After being accused of having written the "Goldilocks" letter, plaintiff alleges that he was verbally threatened and abused by McNabb and Secor, who told him, in effect, that because he was a known sex offender he need fear for his physical safety for the duration of his incarceration anywhere within the federal BOP system. As alleged by plaintiff, McNabb told plaintiff, "Everyone here knows all about you and what a piece of s--- you are, a real scumbag." Pl.'s Resp. to Defs.' Mot. for Summ. J. at 3. Secor is alleged to have added, "We've got prisons for scum like you and we're going to see to it you're sent to Lewisburg or ELReno [sic] or someplace where pieces of s--- like you belong. I'm going to see to it that you are taken care of." Id. at 3-4.
At the end of this altercation in McNabb's office, Secor handcuffed plaintiff and placed him in administrative detention pending an investigation into the "Goldilocks" incident. According to plaintiff, Secor at this point admitted to plaintiff that there was no valid reason for confining plaintiff to administrative detention, declaring, "I [Secor] don't even have a 'shot' [prison parlance for an incident report] for this piece of s/--, but I'll come up with something." Id. at 8 n.11. Four days later, on February 15, Secor filed an incident report charging plaintiff with "Making a Sexual Proposal to Staff/Female," a violation of BOP regulations. Thereafter, the matter was referred to the prison's Unit Disciplinary Committee ("UDC") for an initial hearing pursuant to BOP regulations. After the hearing, the UDC expunged the incident report filed against plaintiff because the report had not been authored by the prison official who witnessed the alleged violation. On March 1, 1993, some 19 calendar days after being placed in administrative detention, plaintiff was released back into the general prison population at FCI Schuylkill. On May 17, 1993, plaintiff was transferred to FCI Raybrook, New York, because his safety at FCI Schuylkill had been jeopardized by circulation there of the same "People" magazine article that had resulted in his transfer from FCI Tucson.
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Plaintiff instituted this suit by filing his original complaint pro se. Defendants responded with their first motion to dismiss or, in the alternative, for summary judgment. Because I believed plaintiff might have meritorious claims, I appointed counsel for him. Through appointed counsel, plaintiff filed an amended complaint, to which defendants responded with the instant motion. This motion has now been fully briefed and is ready for adjudication.
Based on the foregoing facts, plaintiff asserts what boil down to the following three claims against defendants: (i) defendants' verbal threats to plaintiff's physical security violated his Fifth Amendment due process rights and constituted cruel and unusual punishment in violation of his Eighth Amendment rights (Counts I & III); (ii) defendants, by confining plaintiff to administrative detention for no valid reason for 19 days, violated plaintiff's Fifth Amendment due process rights (Count II); and (iii) defendants' actions in threatening and improperly confining plaintiff constitute the tort of intentional infliction of emotional distress (Count IV). I address these claims seriatim. Because there is no dispute of material fact about any of these claims, summary judgment is proper here. Fed. R. Civ. P. 56(c).
A. Verbal Threats
It is well established that verbal harassment or threats of the sort detailed above will not, without some reinforcing act accompanying them, state a constitutional claim. See Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) ("Mean harassment . . . is insufficient to state a constitutional deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) ("Verbal harassment does not give rise to a constitutional violation enforceable under § 1983."); Collins v. Cundy, 603 F.2d 825, 826 (10th Cir. 1979) (allegations that sheriff laughed at prisoner and threatened to hang him did not state claim for constitutional violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (allegations of vulgarity did not state constitutional claim).
A constitutional claim based only on verbal threats will fail, moreover, whether it is asserted under the Eighth Amendment's ban on cruel and unusual punishment or under the Fifth Amendment's substantive due process clause. See Prisoners' Legal Ass'n, 822 F. Supp. at 189 (cruel and unusual punishment theory); Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.) (substantive due process theory), cert. denied, 502 U.S. 879, 112 S. Ct. 226, 116 L. Ed. 2d 183 (1991).
Plaintiff appears to concede in his papers that "mere" verbal threats do not state a constitutional claim. Rather, he contends that his special status as a known sex offender converted defendants' verbal threats against him into something actionable. Plaintiff, however, has cited no authority that carves out a distinction for sex offenders or any other class of convicts, and I have been unable to locate any. Furthermore, at least one court has held that an inmate's particular vulnerability to verbal harassment could not be considered a sufficient basis for overlooking the established doctrine rejecting constitutional claims based solely on such harassment. See Murray v. Woodburn, 809 F. Supp. at 384 (examining whether, "given [plaintiff's] vulnerabilities, provoking him [with laughter] to punch a prison official in the nose and then using the incident as a basis for committing him stated a claim against a prison official," and finding that it did not). If plaintiff's allegations are true -- and defendants deny that they are -- defendants' conduct in verbally threatening him is certainly reprehensible. Nonetheless, the above-cited authorities make clear that it is not actionable under the Constitution.
B. Administrative Detention
Next, plaintiff asserts that defendants improperly confined him to administrative detention and thereby violated his Fifth Amendment due process rights. Specifically, the relevant portion of the complaint alleges: "McNabb and Secor denied MacLean his rights to due process under the Fifth Amendment of the United States Constitution by confining him to Administrative Detention for 19 days for no valid reason." Am. Compl. P 30. This allegation can be read as asserting either of two possible claims: (i) that the asserted basis for plaintiff's confinement -- investigation into plaintiff's "Goldilocks" letter -- amounted to a mere pretext or trumped-up charge, or (ii) that plaintiff was confined for an undue length of time, 19 calendar days, without the hearing required by applicable BOP regulations. I address each possibility in turn.
1. Trumped-Up Basis for Confinement
Insofar as plaintiff's claim alleges that defendants fabricated the "Goldilocks" charge against him as a pretext for confining him to administrative detention, it can be disposed of quickly. As long as an inmate charged with misconduct has been afforded the procedural due process protections required by the Supreme Court's decision in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), an allegation that he was falsely accused does not state a claim for violation of his constitutional rights, at least where, as here, the false charges are not alleged to have been filed in retaliation for the inmate's exercise of a constitutional right. Flanagan v. Shively, 783 F. Supp. 922, 931-32 (M.D. Pa.), aff'd, 980 F.2d 722 (3d Cir. 1992), cert. denied, 114 S. Ct. 95, 126 L. Ed. 2d 62 (1993); Wilson v. Maben, 676 F. Supp. 581, 584 (M.D. Pa. 1987); Vines v. Howard, 658 F. Supp. 34, 37 (E.D. Pa. 1987); Freeman v. Rideout, 808 F.2d 949, 952-54 (2d Cir. 1986), cert. denied, 485 U.S. 982, 108 S. Ct. 1273, 99 L. Ed. 2d 484 (1988). The procedural protections that must be afforded an inmate under Wolff are: written notice of the charges at least 24 hours in advance of the hearing; a hearing before an impartial tribunal; a limited opportunity to call witnesses and present documentary evidence; and a written statement by the factfinders of the reasons for any decision on the charges. Wolff, 418 U.S. at 563-71; Vines, 658 F. Supp. at 35.
These principles dictate dismissal of plaintiff's claim here to the extent that it accuses defendants of filing false charges against him. Plaintiff does not suggest here that defendants charged him with "Making a Sexual Proposal to Staff/Female" in retaliation for his exercise of a constitutional right. Plaintiff also does not allege that the procedures applied at his initial hearing before the UDC did not comport with the requirements of Wolff. While plaintiff does contend that he should have been accorded the Wolff procedures prior to his initial hearing on the charges, see Pl.'s Resp. to Defs.' Mot. to Dismiss or for Summ J. at 10, that contention is without merit. The Constitution does not require that prison officials refrain from confining a prisoner to administrative detention until the hearing at which the Wolff procedures apply. It demands only that such a hearing be held within a reasonable time after administrative detention has been ordered. See Layton v. Beyer, 953 F.2d 839, 847 (3d Cir. 1992) ("Not every deprivation of liberty requires a pre-revocation hearing. . . . The liberty interest in remaining part of the general prison population requires a post-revocation hearing only" within a reasonable time after confinement) (citing Hewitt v. Helms, 459 U.S. 460, 472, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983)).
Because plaintiff alleges neither that the charges against him were filed in retaliation for his exercise of a constitutional right nor that his initial hearing before the UDC failed to comport with the requirements of due process, his administrative detention claim cannot survive to the extent it alleges that the charges against him were fabricated. Accordingly, this possible reading of his administrative detention claim is rejected.
2. Untimely Hearing
The other possible interpretation of plaintiff's administrative detention claim is that plaintiff was not afforded an initial hearing within a constitutionally permissible length of time after his confinement. As detailed below, I conclude that the applicable regulations governing plaintiff's administrative detention give rise to a liberty interest in a timely hearing. Defendants, however, are entitled to qualified immunity on this claim because, at the time plaintiff was detained, this liberty interest was not a "clearly established" right.
As I construe his complaint, plaintiff alleges that he was confined to administrative detention for 19 calendar days without a hearing. Whether plaintiff's due process rights were violated by a delay of this length depends on two subsidiary inquiries: (i) whether, as a threshold matter, plaintiff enjoys a cognizable liberty interest in remaining outside administrative detention, and (ii) if so, what process is due. Layton, 953 F.2d at 842, 849.
There is no liberty interest conferred directly by the Constitution in remaining outside administrative detention and part of the general prison population, Hewitt, 459 U.S. at 466-68, but such an interest can be conferred by regulations having the force of law. Cf. Layton, 953 F.2d at 845-47 (New Jersey prison regulations created liberty interest in remaining outside administrative segregation). In the Third Circuit, a liberty interest in remaining outside administrative detention will arise from a regulation if: the regulation uses language of unmistakably mandatory character, such as "shall," "will," or "must"; the regulation provides that detention will not be ordered absent "specified substantive predicates," e.g., a finding of a "need for control" or order; and the regulation deprives the decisionmaker of discretion to order detention in situations other than those falling within the specified substantive predicates. Layton, 953 F.2d at 846-48; Banks v. Fauver, 801 F. Supp. 1422, 1424-26 (D.N.J. 1992).
Applying this test to New Jersey's regulations governing administrative confinement in the "Prehearing Management Control Unit" of a state prison, the Third Circuit in Layton found a liberty interest on the part of inmates in remaining free of such confinement absent a finding that one of the regulations' predicates had been satisfied. Layton, 953 F.2d at 846-47. The features of the New Jersey regulations deemed to give rise to such an interest included: (i) the predicate requiring that detention decisions be based on "reasonable evidence" that the inmate presented an "immediate threat" to the safety of others, to the integrity of property, or to the "safe, secure and orderly operation" of the prison; (ii) the regulations' language providing that the inmate "shall" be given a hearing within five working days of confinement; and (iii) the language providing that the inmate "shall" be given notice of the hearing within 24 hours of confinement. Id. at 843. Furthermore, the court observed that the absence of a regulatory provision allowing prison officials to detain the inmate in the Prehearing Management Control Unit beyond the time allotted for a hearing was sufficient, as a matter of statutory construction, to deprive the prison officials of the discretion to do so. Id. at 846 n.13.
The Layton analysis compels a similar conclusion here. The applicable regulations in this case are the federal BOP regulations governing procedures for placement and hearings in administrative detention, codified at 28 C.F.R. §§ 541.22 (administrative detention) and 541.15 (initial hearing). These regulations detail the predicates necessary to support a determination that an inmate may be placed in segregation, and they establish the procedures triggered by such a determination. The operative predicates for a segregation decision under these regulations include the situations where the inmate is pending transfer, is a new commitment awaiting classification, or where
"the inmate's continued presence in the general [prison] population poses a serious threat to life, property, self, staff, other inmates or to the security or orderly running of the institution and [where] the inmate:
(1) is pending a hearing for violation of [BOP] regulations;