The opinion of the court was delivered by: (Judge Munley)
Presently before the Court for disposition is a Report and Recommendation ("R&R") issued by United States Magistrate Judge Thomas M. Blewitt. He suggests that we dismiss Plaintiff Sherwyn Freeman, Jr.'s complaint because it fails to state a claim upon which relief may be granted. Freeman has filed objections. For the following reasons, we will adopt the R&R.
Plaintiff Sherwyn D. Freeman is an inmate at the United States Penitentiary at Allenwood ("USP-Allenwood"), Pennsylvania. Defendants, Officer Guy Fleck and Lieutenant Daniel Womeldorf are both employed by the Federal Bureau of Prisons at USP-Allenwood.
Freeman was placed on Disciplinary Segregation ("D/S") status in the Segregated Housing Unit ("SHU") at USP-Allenwood after getting into a fight with another inmate. In May 2004, while housed in the SHU, Womeldorf told Freeman that his current D/S time would be placed "on the shelf" once the inmate with whom Freeman fought was released from the prison. Subsequently, on June 1, 2004, Freeman was released into the general prison population, with the remainder of his approximately 600 D/S time placed "on the shelf." Womeldorf told Freeman that if he had additional disciplinary problems, his remaining D/S time would be reinstated.
On June 7, 2004, Freeman requested Warden Williamson to change his work detail from clerk to yard worker. Williamson construed this request as a refusal to work. Freeman was returned to the SHU and his D/S time was reinstated. Freeman remained on D/S in the SHU until October 19, 2004. Freeman claims his right to due process was violated as a result of his return to D/S status without an incident report or a DHO hearing. Freeman suffered extreme depression and mental anguish due to his D/S status.
Freeman claims that D/S time may never be placed "on the shelf." He argues that when an inmate is released into the general prison population before serving all of their D/S time, the remaining D/S time must be erased and it cannot be suspended and reinstated without a DHO hearing.
Freeman filed his complaint in the United States District Court for the Middle District of Pennsylvania on December 16, 2005. United States Magistrate Judge Thomas M. Blewitt reviewed his complaint pursuant to 28 U.S.C. § 1919(e)(2) and proposed, in his R&R, that Freeman's claim be dismissed for failing to state a claim. Magistrate Judge Blewitt construed Freeman's claim, "as a Fifth Amendment due process claim against two individual defendants." (R&R p. 3.) The R&R suggested that the plaintiff's claims pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)*fn2 be dismissed for failure to state a claim. Magistrate Judge Blewitt also informed Freeman that he cannot maintain his Bivens claim in the same case as his FTCA claim and directed him to file a separate FTCA action against the United States.
Because the cause of action arises under both the Constitution and a law of the United States, original jurisdiction in this Court is conferred pursuant to 28 U.S.C. § 1331.
In disposing of objections to a magistrate's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The ...