United States District Court, M.D. Pennsylvania
November 14, 2005.
EVARISTUS MacKEY, Plaintiff,
JOSEPH SMITH, Defendant.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Plaintiff, Evaristus Mackey, an inmate at the United States
Penitentiary in Lewisburg ("USP-Lewisburg"), Pennsylvania,
commenced this pro se action with a Bivens*fn1 civil
rights complaint (Doc. 1).*fn2 Plaintiff has also filed two
applications to proceed in forma pauperis (Docs. 2 and 8).
Named as Defendant is USP-Lewisburg Warden Joseph Smith.
Plaintiff alleges that while he was previously incarcerated at
"USP-Pollock" he was placed in disciplinary custody as a
punishment for an "incident on 10-9-03." Subsequently, Plaintiff
was transferred to USP-Lewisburg; he claims that he is being
punished again for the prior incident, and the punishment is
excessive. Plaintiff seeks transfer to another institution,
monetary damages, such other relief as the Court deems
appropriate, and he asks the Defendant to "restore [sic] all
sanctions." (Doc. 1 at 2.) For the following reasons, the complaint will be dismissed pursuant to the provisions of
28 U.S.C. § 1915A.
A. Screening Requirements
The Prison Litigation Reform Act (the "Act") established new
procedures for prisoners' civil rights actions filed in federal
court. Section 1915A(b) of the Act requires courts to screen
complaints in civil actions in which a prisoner is seeking
redress from a governmental entity or officer or employee of a
governmental entity, and ". . . dismiss the complaint . . . if
the complaint (1) fails to state a claim upon which relief may
be granted. . . ." 28 U.S.C. § 1915A(b)(1). Similarly, under §
1915(e)(2) of the Act, the Court shall dismiss claims by
parties seeking to proceed in forma pauperis "if the court
determines that (B) the action or appeal (ii) fails to state
a claim on which relief may be granted. . . ."
28 U.S.C. § 1915(e)(2)(B)(ii).
B. Bivens Claim
A Bivens action, the federal equivalent of the § 1983 cause
of action, will lie where (1) the defendant, acting under color
of federal law, (2) has deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States. Brown v. Philip Morris, Inc., 250 F.3d 789, 800
(3d Cir. 2001) Both elements must be present, and Plaintiff fails
to satisfy the second. Plaintiff claims that he is being punished
a second time for an "incident on 10-9-03," and therefore his
current punishment is excessive, and violates his right to due
process and the proscription of double jeopardy. (Doc. 1 at 2.)
Plaintiff alleges that he was found guilty of a misconduct on
October 9, 2003, and he is being held in disciplinary confinement
to the present time as a result of this prior offense. He claims that he "must endure this excessive punishment from
[an] incident on 10-9-03 at USP Pollock . . . The punishment is
excessive and the Defendant is violating plaintiff's
constitutional rights for cruel and unusual punishment, mental
and physical anguish." (Doc. 1 at 2.) However, Plaintiff's
characterization of the facts is contradicted by the exhibits
attached to his complaint. Contrary to his allegations, the
attachments demonstrate that Plaintiff is being punished for a
more recent misconduct.
Attached to Plaintiff's complaint are various exhibits, which
incorporate a response to Administrative Remedy No. 367709-A2
("response") by National Appeals Administrator Harrell Watts
(Doc. 1 at 6.) In the response, dated July 22, 2005, Watts
verifies that Plaintiff protests his "placement in the Special
Housing Unit (SHU) for an extended period of time. [Plaintiff
requests] to not be assigned to the SMU Program and to be
transferred." (Id.) However, Watts explains:
Placement into the SMU Program is appropriate for
inmates who have participated or played a leadership
role in a geographical group- and/or gang-related
disturbance. You have been identified as holding a
leadership role in a disturbance at your previous
prison . . . You have refused to participate in the
SMU Program and, as a result, you have received
incident reports. These incident reports warrant your
placement in the SHU. You must maintain a period of
clear conduct before transfer may be considered. Your
last misconduct occurred on June 30, 2005.
(Id.) Thus, Plaintiff is being detained for a recent offense,
and not the 10-9-03 incident as he claims. Therefore, Plaintiff
is not being punished excessively, he is not being punished twice
for the same offense, and he fails to state a claim upon which
relief may be granted. Moreover, any attempt to amend the
complaint would be futile, and the case will be dismissed under
the provisions of 28 U.S.C. § 1915A(b)(1), without leave to
amend. An appropriate Order follows. ORDER
AND NOW, THIS 14th DAY OF NOVEMBER, 2005, in accordance
with the foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Plaintiff's applications for leave to proceed in
forma pauperis (Docs. 2 and 8) are GRANTED for the
limited purpose of filing this complaint.
2. Plaintiff's complaint (Doc. 1) is dismissed
pursuant to the provisions of
28 U.S.C. § 1915A(b)(1).
3. The Clerk of Court is directed to close this case.
4. Any appeal from this order shall be deemed
frivolous, without probable cause, and not taken in
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