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JOHNSTONE v. UNITED STATES

November 3, 1997

DONALD JOHNSTONE, Plaintiff
v.
UNITED STATES OF AMERICA, ET AL., Defendants



The opinion of the court was delivered by: POLLAK

 Before the court is pro se litigant Donald Johnstone's amended complaint. Plaintiff Johnstone, a former federal inmate, filed his original complaint in September of 1995. By order dated September 29, 1995, this court granted Johnstone leave to proceed in forma pauperis and dismissed his complaint while granting leave to file an amended complaint within thirty days. On October 27, 1995, Johnstone filed an amended complaint attempting to correct the infirmities in his original complaint. This memorandum will address whether Johnstone can proceed on the claims in his amended complaint.

 Reading the amended complaint liberally, it appears to assert two types of claims: (1) claims under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), alleging denial of medical treatment at various federal correctional institutions and the Greater Philadelphia Center for Community Corrections (referred to in the amended complaint as the "Greater Philadelphia Correctional Center"), to which Johnstone was assigned for completion of his sentence, and (2) a claim for judicial review of a determination under the federal Inmate Accident Compensation regime established in 18 U.S.C. § 4126 et seq. For the reasons set forth below, plaintiff's civil rights claims will be dismissed, and only his workers' compensation claim may go forward.

 Discussion

 A. Applicable Law

 The Prison Litigation Reform Act (PLRA), which Congress passed in 1996, has amended the in forma pauperis statute in ways relevant to the decision in this case. These amendments have expanded the grounds upon which a trial court may dismiss a complaint sua sponte, even before the summons issues. Formerly, 28 U.S.C. § 1915(d) allowed a court to dismiss a complaint only if it found that the allegation of poverty was untrue or if it was "satisfied that the action is frivolous or malicious." As the Supreme Court held in Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989), the "frivolous" standard does not draw all actions dismissible upon Rule 12(b)(6) grounds within its ambit. As amended in 1996, however, § 1915 directs the court to dismiss a case at any time if it appears that the action "(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

 As a preliminary matter, it is necessary to determine whether these 1996 amendments apply to Johnstone's amended complaint, which was filed in 1995. In Keener v. Pennsylvania Bd. of Probation & Parole, 128 F.3d 143, 1997 WL 638794 (3d Cir. 1997), the Third Circuit has recently joined those circuits holding that the 'three strikes' provision of § 1915(g) *fn1" is applicable to actions filed before passage of the amendments. See, e.g., Green v. Nottingham, 90 F.3d 415 (10th Cir. 1996); Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Because these decisions deal with a different subsection of the statute, resolution of the retroactivity issue with respect to § 1915(e)(2)(B) is warranted.

 The question of whether a statute will be applied to litigation pending on the date of enactment is determined under the test the Supreme Court articulated in Landgraf v. USI Film Prods., 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Under Landgraf, if Congress has not prescribed the temporal compass of a statute's application, the court is required to determine whether application to events preceding passage "would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Id. at 280. It is only when such consequences would ensue that Landgraf operates to preclude application of a new statute to pending litigation. Id.

 As the Court noted in Landgraf, "changes in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity. . . . Because rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make application of the rule at trial retroactive." Id. at 275. This is true even if the change operates to the detriment of a party to the litigation. Id.

 It is apparent that the 1996 amendments to the in forma pauperis statute, as they relate to this case, effectuate a rule change that does not impair any right that Johnstone possessed before enactment, and that does not increase liability or impose a new duty. The 1996 amendments simply direct a trial court to consider certain issues on the court's own initiative rather than await a motion to dismiss, as was the practice before the amendments. Accordingly, in line with Keener and the other cases applying § 1915(g) to litigation initiated prior to the amendments, I conclude that § 1915(e)(2)(B) effectuates a change which has no deleterious substantive consequences for Johnstone and hence applies to pending litigation. I turn now to the question whether Johnstone's claims can go forward under § 1915 as amended.

 B. Johnstone's Claims

 1. Bivens Claims against the United States and Various Federal Agencies

 Johnstone's amended complaint purports to bring constitutional claims under the aegis of Bivens against the United States and several federal agencies. Bivens actions, however, may only be maintained against federal officers; sovereign immunity bars such actions against the United States or agencies thereof. FDIC v. Meyer, 510 U.S. 471, 485-86, 127 L. Ed. 2d 308, 114 S. Ct. 996 (1994). Consequently, Johnstone's claims against the United States, the Justice Department, the Bureau of Prisons, the Bureau of Prison Industries, Inc., UNICOR, and the Department of Health Services of the Bureau of Prisons will be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii).

 2. Bivens Claims against Steve Schwalb

 Johnstone's amended complaint names as a defendant the Director of Federal Prison Industries, Steve Schwalb. Although the amended complaint is not entirely clear, it appears to include Schwalb as a defendant with respect to constitutional claims as well as the plaintiff's workers' compensation claims (which are discussed below in section B.5). To the extent that the amended complaint may be read to assert civil rights claims against Schwalb, Johnstone's action may not go forward for the reasons given below.

 Reading the amended complaint liberally and assuming all allegations are true, there is no indication that Schwalb had any personal involvement in the alleged constitutional deprivations. On the contrary, the allegations of the complaint relate to a specific work assignment in a correctional facility in Texas, and the denial of medical assistance at various federal prisons in Texas, Connecticut, and Pennsylvania. Hence, no inference can be raised, consistent with Johnstone's amended complaint, that Schwalb had any involvement with the actions of ...


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