The opinion of the court was delivered by: Chief Judge Vanaskie
Plaintiff, Felix Oriakhi, an inmate currently confined at FCI-Fort Dix, Fort Dix, New Jersey, initiated this combined Federal Tort Claims Act ("FTCA") and Bivens-type*fn1 civil rights action on January 10, 2005. Oriakhi complains of an allegedly retaliatory "search and confiscation" of his legal materials at FCI-Schuylkill, his former place of incarceration. Oriakhi has been granted leave to proceed in forma pauperis. Oriakhi names as Defendants the United States of America along with FCI-Schuylkill staff members Timothy Wood and Linda Edwards. Plaintiff seeks compensatory and punitive damages.
Following service of the Complaint, Defendants filed a Motion to Dismiss, or in the alternative, for Summary Judgment. (Dkt. Entry 25.) The motion has been briefed and is ripe for consideration. For the reasons discussed in this memorandum, the motion for summary judgment will be granted.
Defendants' motion is based on:
(1) the doctrine of sovereign immunity;
(2) failure to state a viable Bivens claim;
(3) failure to state a suitable FTCA claim; and
(4) the unavailability of monetary damages under either Bivens or the FTCA due to the absence of physical injury. In support, defendants have submitted a statement of facts, brief, reply brief and exhibits, including the unsworn declaration of defendant Wood.
Oriakhi filed an opposition brief, a surreply brief, and exhibits. In addition to his own declaration, Oriakhi has submitted a statement from another inmate who was in FCI-Schuylkill's law library on February 4, 2004, when defendant Wood searched Oriakhi and confiscated the legal materials in his possession. Oriakhi did not file a separate response to Defendants' Statement of Material Facts.
III. Statement of Relevant Facts
On February 4, 2004, between the hours of 5:30 p.m. and 8:30 p.m., Oriakhi was conducting legal research in FCI-Schuylkill's law library. At approximately 6:00 p.m., Oriakhi approached defendant Wood, the staff member in charge of the law library at the time, to complain that a particular book he needed had been missing for a period of time and requested information as to when it would be replaced. (Dkt. Entry 1, Complaint.) Dissatisfied with defendant Wood's answer, Oriakhi requested a "cop out," or institutional grievance form, from defendant Wood. At this point defendant Wood ordered Plaintiff out of his office. (Id.)
At approximately 7:45 p.m. defendant Wood conducted a search of Oriakhi and the legal materials in his possession for contraband. (Wood Aff. at ¶ 3.) Wood found the following unauthorized items in Oriakhi's pockets: cooked collard greens and an unknown rubber substance. (Id. at ¶ 4.) Wood also found in Oriakhi's possession legal materials that belonged to inmates Riddick, Okafor, and Mendez. (Id.) The perishable items were confiscated and discarded. (Id. at ¶ 5.) Because the law library was scheduled to close soon, Wood collected the legal materials of the other inmates from Oriahki and retained them in anticipation of the owners retrieving them prior to the library closing. (Id. at ¶ 6.) Riddick, Okafor and Mendez did not retrieve their legal documents prior to the library closing that night at 8:30 p.m. (Id. at ¶ 7.) Wood took the confiscated legal materials to the Lieutenant's Office for retention and security purposes. (Id.) Wood issued Oriakhi an incident report due to his possession of contraband. (Id. at ¶ 8.)
The incident report was heard by Oriakhi's Unit Discipline Committee ("UDC"). (Dkt. Entries 1, Complaint and 34, Plaintiff's Opposition Brief, Exhibit V, February 4, 2004-Incident Report.) Defendant Edwards, Oriakhi's Unit Manager, was a member of the UDC. The UDC determined that Plaintiff had committed the prohibited act charged and directed that he perform 10 hours of extra duty.
The parties dispute whether any of Oriakhi's personal legal materials were confiscated by Wood on February 4, 2004. Wood contends that he did not confiscate or seize any of Oriakhi's personal legal materials during the search. (Wood Aff. at ¶ 9.) Oriakhi claims that, in addition to the legal papers of the three identified inmates (Riddick, Okafor, Mendez), his legal materials and those of inmate Scantlebury were also confiscated. Oriakhi submits that his legal materials for "two federal pending cases" and a "family case" were confiscated and never returned to him. (Dkt. Entry 34, Plaintiff's Opposition Brief, Exhibit III, Plaintiff's Declaration.) Oriakhi asserts that "the legal materials contained in the confiscated envelopes was vital ...