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Banks v. Green

December 11, 2007

FREDERICK BANKS, PLAINTIFF
v.
GREEN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently pending before the court is a motion to dismiss the complaint of plaintiff Frederick Banks ("Banks"), filed on behalf of several prison officials from the Federal Prison Camp at Canaan ("FPC-Canaan" or "USP-Canaan") in Waymart, Pennsylvania and the Low Security Correctional Institution in Butner, North Carolina ("LSCI-Butner") (collectively, "defendants").*fn1 (Doc. 27.) Banks alleges that the named defendants have conspired to deprive him of his constitutional rights. For the reasons set forth below, the motion to dismiss will be granted.

I. Statement of Facts

Banks' complaint contains forty-seven (47) counts against defendants, set forth as Bivens*fn2 claims, conspiracy claims, a claim under the False Claims Act, and a claim for negligence.*fn3 The allegations in Banks' complaint relate to events occurring during his confinement in 2006 at both USP-Canaan and LSCI-Butner.*fn4

A. Bivens claims / Conspiracy

Banks first contends that FPC-Canaan defendants violated his "rights to equal treatment, religious freedom, right to privacy, due process and the right to be free from cruel and unusual punishment and the right to equal protection," (Doc. 1 at 3), by transferring him from FPC-Canaan to USP-Canaan's special housing unit ("SHU"), and subsequently to LSCI-Butner, because of his race and religion. In support, Banks asserts that FPC-Canaan defendant Johnson did not recognize his religion, Thelema. Rather, defendant Johnson informed him that he must submit an application for Thelema materials to "prison officials." (Id. at 2.) Banks claims that officials never responded to his application. (Id.)

In support of his conspiracy claim, Banks argues that these "unconstitutional activities" continued once he arrived at LSCI-Butner. He contends that LSCI-Butner defendants, acting as "partners in crime" with FPC-Canaan defendants, violated his constitutional rights by verbally harassing Banks. He asserts that this harassment was "done under racial and religious discrimination by a hungry pack of christians to intimidate, disparage and deny Banks his rights under equal protection and Banks' right to religious freedom and privacy." (Id.) Further, he claims that, like FPC-Canaan defendants, LSCI-Butner defendants refused to recognize his religion of Thelema. (Id.)

Additionally, Banks claims that all defendants conspired against him by deducting more than the court-ordered twenty-percent (20%) payments of filing fees under the PLRA. (Id.) He also contends that LSCI-Butner defendants prevented mail from being sent to his mother, refused to allow him to attend her funeral, refused to pay him wages equal to those of other inmates, and failed to treat him for a back injury suffered while on work detail. (Id. at 2-3.) Banks contends that being subjected to such "punishment" constitutes slavery under the Thirteenth Amendment. (Id. at 3.)

B. False Claims Act

Banks asserts count forty-one (41) under the False Claims Act ("FCA"), see 31 U.S.C. § 3729 et seq. Specifically, he claims that defendants "used abused and misused the monies paid to them by the United States under false pretenses when they knowingly and willfully took the money under sworn oath to uphold the laws and constitution of the United States . . . ." (Id.) Under this count Banks also claims that defendants "failed miserably when they damaged Banks pursuant to the above cited [constitutional] violations." (Id.)

C. Negligence

Banks asserts count forty-seven (47) under negligence. In the complaint, he contends that defendants "damaged Banks' duty of care when they retaliated by denying him religion and discriminated against him because of his religion and race." (Id. at 4.)

To the extent that Banks is seeking damages for the negligence of Bureau of Prisons ("BOP") employees with regard to their protection of him as a federal inmate, it is the Federal Tort Claims Act ("FTCA") which confers on district courts subject matter jurisdiction over negligence actions against the United States. See 28 U.S.C. § 1346(b)(1). Further, it is well-established that a complaint filed pursuant to the FTCA must be brought against the United States. 28 U.S.C. § 2679(b)(1). An agency or employee of the United States is not a proper defendant in such an action. 28 U.S.C. § 2679(b); Sprecher v. Graber, 716 F.2d 968, 973 (2d Cir. 1983); Scheimer v. Nat'l Capital Region, Nat'l Park Services, 737 F. Supp. 3, 4 (D.D.C. 1990); Stewart v. United States, 503 F. Supp. 59, 61 (N.D. Ill. 1980).

Here, Banks' negligence claim fails in two respects. First, Banks has not set forth an action under the FTCA with respect to this claim. Furthermore, the court cannot consider the claim under Bivens, because negligence is not the basis of a constitutional claim. See Bivens, 403 U.S. at 392 (recognizing an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights). Second, should the court construe Banks' negligence claim under the FTCA, the claim fails because Banks has not named the United States as a defendant. The individual defendants are not proper parties under the FTCA. Because the FTCA authorizes suits only against the United ...


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