United States District Court, M.D. Pennsylvania
November 8, 2005.
LARRY KINGSBURY, Plaintiff
MS. EDWARDS, Unit 3-B Manager, Defendant.
The opinion of the court was delivered by: JOHN JONES III, District Judge
MEMORANDUM AND ORDER
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Plaintiff, Larry Kingsbury ("Plaintiff" or "Kingsbury"), an
inmate at the Federal Correctional Institution at Schuylkill
("FCI-Schuylkill"), filed this Bivens v. Six Unknown Names
Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971) ("Bivens
action"), proceeding pro se, pursuant to 28 U.S.C. § 1331 on
August 15, 2005. (See Rec. Doc. 1).
This case was referred to Magistrate Judge Thomas M. Blewitt
for preliminary review. On September 22, 2005, Magistrate Judge
Blewitt issued a report and recommendation within which he
concluded that all of Plaintiff's claims against Defendant should
be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and he
specifically recommended that Plaintiff's Eighth Amendment
claims, First Amendment retaliation claim, and Fifth Amendment due process
claim be dismissed.
Objections to the Magistrate Judge's Report were due on October
6, 2005 and to date none have been filed. This matter is now ripe
As the Magistrate Judge provided a detailed summary of the
factual background and procedure history of the case sub
judice, we will provide a brief summary at this juncture.
Plaintiff alleges that during 2004-2005, while incarcerated at
FCI-Schuylkill and while Defendant was his Unit Manager,
Defendant continuously exhibited "egregious, unprofessional, and
reprehensible behavior in a biased and vindictive form" against
him and that Defendant has exposed him to "undue ridicule,
negative conditions," hardships, "fright, intimidation" and a
hostile prison environment. (Rec. Doc. 1, at 2, ¶ IV; see
also Rep. & Rec. at 4). Plaintiff's action is based upon his
removal from a prison job and upon Defendant's stated behavior
towards him over time.
As the Magistrate Judge explained, Plaintiff is essentially
claiming that his conditions of confinement at FCI-Schuylkill
violate the Eighth Amendment, that Defendant retaliated against
him in violation of the First Amendment, and that his Fifth
Amendment due process rights were violated by Defendant's alleged arbitrary acts.
STANDARD OF REVIEW:
When no objections are made to a magistrate's report, the
district court is not statutorily required to review a magistrate
judge's report before accepting it. See Thomas v. Arn,
474 U.S. 140, 149-50 (1985). According to the Third Circuit, however,
"the better practice is to afford some level of review to
dispositive legal issues raised by the report." Henderson v.
Carlson, 812 F.2d 874, 878 (3d Cir. 1987). When a district court
accepts a magistrate judge's report, the report becomes the
judgment of the court. Id.
Our review of this case confirms Magistrate Judge Blewitt's
determinations and well-reasoned analysis, and while we have not
been presented with any reason to revisit them, we do reiterate
the salient aspects of the Magistrate Judge's report.
First, the Supreme Court has instructed that conditions of
confinement will violate the Eighth Amendment if the following
two-prong test is satisfied: (1) the deprivation is sufficiently
serious; and (2) deliberate indifference by the prison official
defendants. Farmer v. Brennan, 511 U.S. 825, 832-4 (1994). We
are in agreement with the Magistrate Judge that Plaintiff has not
sufficiently alleged a constitutional violation with respect to
the alleged prison conditions as he has asserted that he suffered only mental anguish and stress as a
result of Defendant's alleged behavior, which does not constitute
the type of wanton and unnecessary infliction of pain as required
by the Eighth Amendment's prohibition of cruel and unusual
punishment. (Rep. & Rec. at 9). In addition, Plaintiff has not
asserted that Defendant was deliberately indifferent to his basic
human needs. Accordingly, Plaintiff has failed to establish a
viable Eighth Amendment cause of action against Defendant
Second, with regard to Plaintiff's First Amendment retaliation
claim, an inmate must prove that the conduct which led to the
alleged retaliation was constitutionally protected, that he
suffered adverse action at the hands of the prison officials, and
that a causal connection existed between the adverse action and
the constitutional right. Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001). As the Magistrate Judge submits, although Plaintiff
claims that Defendant's alleged behavior violates his First
Amendment free speech rights and that he cannot complain about
her conduct for fear of retaliation by her, he readily admits and
his exhibits demonstrate that he has filed both grievances and
this civil action against Defendant. (Rep. & Rec. at 14).
Importantly however, Plaintiff does not allege any adverse action
by Defendant as a result of his filing of such grievances and
this civil action against her. Therefore, we agree with the
Magistrate Judge that since there is no claim that Defendant Edwards retaliated against
Plaintiff due to his grievances and civil action, Plaintiff's
pleading is insufficient as a matter of law to show that this
alleged conduct constituted adverse action against him. In
addition, the alleged conduct of Defendant which Plaintiff
asserts made him fearful of exercising his First Amendment
rights, namely harassment, intimidation, and verbal abuse, does
not rise to the level of a constitutional violation. Id. at 15.
Consequently, Plaintiff's First Amendment retaliation claim shall
Finally, Plaintiff has asserted Fifth and Fourteenth Amendment
due process claims against Defendant. Plaintiff argues that
Defendant had him removed from his prison orderly job in Unit 3-B
even though the DHO did not authorized this as a sanction for his
misconduct violation and he seeks reinstatement to such position.
We are in agreement with the Magistrate Judge that Plaintiff
lacked a protected liberty interest in his former prison job.
Wolfe v. Pa. Dep't of Corr., 334 F.Supp.2d 762, 773 (E.D. Pa.
2004) ("To prevail on a non-legislative substantive due process
claim, a plaintiff must establish as a threshold matter that he
has a protected property [or liberty] interest to which the
Fourteenth Amendment's due process protection applies.")
(internal citations omitted). As there is no Fifth Amendment
right implicated in the removal of Plaintiff from his prison job,
Plaintiff's Fifth and Fourteenth Amendment due process claims
shall be dismissed. Our review of this case confirms Magistrate Judge Blewitt's
determinations and we have not been presented with any reason to
revisit them. Because we find no error in Magistrate Judge
Blewitt's Report and Recommendation and because no objections
have been filed, we will adopt it as our own for the reasons
NOW, THEREFORE, IT IS ORDERED THAT:
1. Magistrate Judge Blewitt's Report and
Recommendation (doc. 7) is adopted in its entirety.
2. Plaintiff's Eighth Amendment claims, First
Amendment retaliation claim, and Fifth Amendment due
process claim shall be dismissed with prejudice.
3. The Clerk shall close the file on this case.
© 1992-2005 VersusLaw Inc.