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Banks v. One or More Unknown Named Confidential Informants of Federal Prison Camp Canaan


June 24, 2008


The opinion of the court was delivered by: Judge Conner


Presently before the court is the motion to dismiss or, in the alternative, for summary judgment (Doc. 51), with respect to the amended complaint filed by pro se plaintiff Frederick Banks ("Banks"), a former inmate of the Federal Prison Camp and United States Penitentiary at Canaan ("FPC/USP-Canaan"). Defendants include the United States, the Federal Bureau of Prisons ("BOP") and several of its officials, and a number of individuals associated with FPC/USP-Canaan.*fn1 For the reasons that follow, the motion will be granted in part and denied in part.

I. Statement of Facts*fn2

This action arises from events that occurred in April and May of 2006 while Banks was incarcerated at FPC/USP-Canaan. (See Doc. 38.) In Banks' amended complaint, he asserts Bivens,*fn3 Federal Tort Claims Act ("FTCA"), and 42 U.S.C. § 1985 conspiracy claims against defendants.*fn4 (See id.) The factual allegations underlying Banks' claims follow.

On April 17, 2006, Banks was transferred to FPC/USP-Canaan and was placed in administrative detention in the Special Housing Unit ("SHU"). (Doc. 38 ¶ 26; Doc. 54-2 ¶ 3.) Banks alleges that he was forced to remain in the SHU during "a two month wait for bedspace." (Doc. 38 ¶ 26.) "Once Banks realized he would be spending a significant amount of time in [the SHU]," he began to request access to the law library, his legal papers, several individuals' mailing addresses, a telephone, and stamps. (Id. ¶¶ 27, 30.) He alleges that he needed each of these items because he was a litigant in at least four pending cases during the time he was incarcerated in the SHU. Banks claims that his requests were not answered for weeks, if at all, while other inmates confined in the SHU were granted similar requests. (Id. ¶ 27.) Banks also claims that on the morning of April 19, 2006, a corrections officer informed him that he would be permitted to visit the law library later that day. However, that promise did not come to fruition because no prison personnel ever arrived to escort him to the library.*fn5 (Id. ¶¶ 28-29.) As a result of this pattern of denials, Banks purportedly missed multiple deadlines in his sundry court cases. (Id. ¶ 33.)*fn6

Banks also claims that he was subjected to unfavorable conditions while in the SHU. Specifically, he alleges that he was denied his one hour of daily recreation time and that his cell was filled with "mites and must" which caused him to "cough[] chronically choking on his own vomit and gagging." (Id. ¶ 27.) At some point, Banks allegedly became unable to breath, so he "slammed his stomach and back onto his bunkbed" to "force air into his poisoned lungs." (Id.) This caused injuries to his back and torso for which he allegedly requested but did not receive medical care. (Id.)

Banks further claims that defendant BOP Director Harley Lappin ("Lappin") established a "de facto policy" to punish inmates who file or attempt to file grievances. (Id. ¶ 9.) Pursuant to this policy, Lappin allegedly instructed defendants Case Manager Marc Renda ("Renda"), Counselor Art Roberts ("Roberts"), Camp Administrator Julie Nicklin ("Nicklin"), and FPC/USP-Canaan Warden Cameron Lindsey ("Lindsey") to "curtail Banks' access to the courts by obstructing the remedy process and stamps, telephone and mail." (Id.) Defendants also allegedly committed the following retaliatory acts: (1) "throwing [Banks] from the camp into the [SHU]," (2) "denying Banks religious materials,"*fn7 (3) subjecting Banks to "racial and religious discrimination," (4) "concocting lies" to transfer Banks "from a lower to a higher security status," (5) employing "an inmate police force to spy on inmates and violate their constitutional rights," (6) "obstruct[ing] the outgoing mail process," and (7) denying him access to a job with compensation.*fn8

(Id. ¶¶ 5, 8-9.)

Finally, Banks claims that, on May 29, 2006, he was "literally seized" into a meeting with Renda, Roberts, and Nicklin to discuss a grievance he had filed with respect to stamps for legal mail. (Id. ¶¶ 3-4.) At the meeting, Renda, Roberts, and Nicklin allegedly "pressured him under duress" to withdraw his grievance and offered to provide him stamps if he complied. (Id. ¶ 5.) Banks "reluctantly agreed" but was still denied stamps and placed in the SHU. (Id.) In addition, Banks was later reprimanded for using stamps he received from another inmate. (Id. ¶ 6.)*fn9

II. Standards of Review

A. Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice pleading rules require the complaint to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, ___ U.S. ___, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, ___ U.S. at ___, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane, 213 F.3d at 116-17.

B. Motion for Summary Judgment

Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). It places the burden on the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

Banks asserts Bivens, FTCA, and § 1985 conspiracy claimsagainst all defendants.Defendants assert that Banks failed to exhaust his administrative remedies with respect to all of his claims. In the alternative, defendants argue that, even if Banks had properly exhausted, his Bivens and § 1985 claims would still fail on the merits. The court will address defendants' exhaustion arguments before turning to the merits of Banks' Bivens and § 1985 claims.

A. Exhaustion of Administrative Remedies

Defendants seek entry of judgment in their favor because Banks failed to exhaust his administrative remedies.*fn10 The Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), requires prisoners to present their claims through an administrative grievance process before seeking redress in federal court. The Act specifically provides as follows:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). A prisoner must comply with the PLRA exhaustion requirement as to any claim that arises in the prison setting, regardless of the nature of the claim or of the relief sought. See Porter v. Nussle, 534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong."); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."). "[I]t is beyond the power of [any] court . . . to excuse compliance with the exhaustion requirement."

Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). Accordingly, the PLRA exhaustion requirement applies to each of Banks' claims.

The FTCA adds an additional level of review that must be complied with before a claim is considered properly exhausted. Before a plaintiff may assert an FTCA claim in federal court, he or she must have "presented the claim to the appropriate Federal agency and his [or her] claim shall have been finally denied by the agency in writing and sent by certified or registered mail." 28 U.S.C. § 2675. Because PLRA exhaustion applies to each of Banks' claims, the court will discuss it before turning to the additional exhaustion requirements of the FTCA.

1. PLRA Exhaustion

The PLRA mandates that a prisoner "properly" exhaust his or her administrative remedies before commencing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Id. at 90. Such requirements "eliminate unwarranted federal-court interference with the administration of prisons, and thus seek[] to 'affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Id. at 93 (quoting Porter, 534 U.S. at 525). Failure to comply with procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004) ("[P]rison grievance procedures supply the yardstick for measuring procedural default."). Procedural default is a question of law. Id. at 232. A procedural default, "either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim." Gallego v. United States, No. 02-1157, 2005 WL 1653166, at *2 (M.D. Pa. July 8, 2005).

The exhaustion procedure to be utilized by federal inmates like Banks is the administrative remedy protocol established by the BOP and set forth at 28 C.F.R. §§ 542.10 - 542.19. Pursuant to this protocol, an inmate must first present his complaint to a staff member, who must attempt to informally resolve the issues asserted before the inmate files a request for administrative relief. Id. § 542.13(a). If informal resolution fails, the inmate may raise his complaint with the warden of the institution where he is confined. Id. § 542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the regional and the central offices of the BOP. Id. §§ 542.15(a), 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP central office. Id. § 542.15.

The BOP maintains a computerized index of all inmate grievances and appeals. This indexing system is referred to as SENTRY. See Gallego, 2005 WL 1653166, at *2. Relevant SENTRY records indicate that Banks filed twenty-four requests for administrative remedy while incarcerated at FPC/USP-Canaan.

(Doc. 55 ¶ 9; see also Doc. 54-2 ¶ 7; Doc. 54-2 at 6-19, 23-43.)*fn11 The requests range in date from May 26, 2006 to August 3, 2006 and address numerous alleged deficiencies in prison conditions. (See Doc. 54-2 at 8-19.) Banks filed regional-level appeals with respect to five of his grievances. These appeals were filed on July 5, July 7, July 21, July 25, and August 3, 2006. (Doc. 54-2 at 24-34; see also Doc. 55 ¶ 27.) Banks did not file any appeals to the BOP central office during the relevant period. (Doc. 54-2 at 24-34.)

Of Banks' twenty-four requests for administrative remedy, only five tangentially relate to claims he asserts in the instant ligation.*fn12 Banks failed to appeal any of these grievances to the regional or central office levels. (Id.) Accordingly, defendants contend that Banks procedurally defaulted his claims by failing to file grievances regarding the majority of his claims*fn13 and by failing to appeal the remainder to the regional and central office levels. Banks concedes that he failed to file and/or appeal a number of his grievances, but argues that his failure should be excused because no administrative remedies were "available"*fn14 to him at the time of the filing deadlines. See 42 U.S.C. § 1997e(a); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (asserting that under the PLRA, a prisoner need only exhaust such administrative remedies as are "available"); Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (same). Banks argues that no administrative remedies were available to him because prison officials "obstructed the exhaustion process" and "refused to provide [him] with remedies" while he was in the SHU.*fn15 (Doc. 57 at 1.) Banks further avers that any complaints logged into the SENTRY system and answered by FPC/USP-Canaan officials related to requests that he had made before he entered the SHU. (Id.)

Courts have invariably held that affirmative misconduct by prison officials -- designed to impede or prevent an inmate's attempts to exhaust -- may render administrative remedies unavailable. See Todd v. Benning, 173 F. App'x 980, 982-83 (3d Cir. 2006) (expressing approval of Eighth Circuit's holding in Miller v. Norris, 247 F.3d 736 (8th Cir. 2001) that administrative remedies were not available where prison officials "purportedly prevented prisoner from employing the prison's grievance system"). Examples of affirmative misconduct on the part of prison officials include: (1) threatening a prisoner in an attempt to thwart the prisoner's attempts to exhaust, see, e.g., Harcum v. Shaffer, No. 06-5326, 2007 WL 4167161, at *5 (E.D. Pa. Nov. 21, 2007) (finding administrative remedies unavailable where prison officials threatened plaintiff with "opposition to his future prerelease application, parole, or outside work detail if he did not withdraw his grievance"), (2) refusing to provide appropriate grievance forms in response to inmate inquiries, see, e.g., Mitchell, 318 F.3d at 529, (3) advising an inmate that his or her situation does not require a grievance, see, e.g., Brown, 312 F.3d at 111 (finding that administrative remedies were unavailable to plaintiff who had been advised by prison official that he must wait until the end of the prison's investigation before filing a grievance), and (4) failing to file or respond to a prisoner's grievances, see, e.g., Camp, 219 F.3d at 280-81 (finding that administrative remedies were unavailable where prison officials refused to file plaintiff's grievances regarding their co-workers). While Banks does not identify the exact type of affirmative misconduct involved here, he clearly alleges that defendants engaged in conduct that was designed to impede or prevent his attempts to exhaust. SeeTodd, 173 F. App'x at 982-83. He repeatedly states that defendants "obstructed" the grievance procedure and "refused" to provide him with the materials needed to complete the exhaustion process. (See Doc. 57 at 1-2.) Accordingly, the court finds that Banks has set forth a compelling reason to excuse compliance with the exhaustion requirement for a number of his claims.

The court notes, however, that the grievance process apparently became available to Banks on May 26, 2006, the day that he filed the first of his twenty-four grievances. BOP protocol provides an inmate twenty calendar days from the date on which the basis for a remedy request occurred to initiate that remedy request with the warden of the institution where the inmate is confined. 28 C.F.R. § 542.14; see also Jetter v. Beard, 183 F. App'x 178, 180 (3d Cir. 2006) (finding procedural default where prisoner failed to timely file his initial grievance). Subtracting the twenty day exhaustion period from the date that the grievance process apparently became available to Banks results in a date of May 6, 2006. The court finds that, to the extent that any of Banks' claims accrued on or after May 6, 2006, his failure to exhaust is not excused because the administrative grievance process became available to him within the twenty day period dictated by the PLRA. While Banks' amended complaint is largely devoid of allegations of temporality, the claims that accrued during or after the May 29, 2006 meeting*fn16 clearly fall within the postMay 6, 2006 period for which all claims are procedurally defaulted. Accordingly, the court will grant defendants' motion with respect to these claims. See Spruill, 372 F.3d at 227-32. Because the record is currently devoid of evidence regarding the temporality of Banks' remaining claims, the court must deny defendants' motion with respect to these claims.*fn17

2. FTCA Exhaustion*fn18

Turning to Banks' FTCA claims, defendants contend that the claims should be dismissed because Banks has not fulfilled the additional exhaustion requirements mandated by the FTCA. After a careful review of the record, the court agrees.

The FTCA confers on district courts subject matter jurisdiction over negligence actions against the United States. See 28 U.S.C. § 1346(b)(1) ("[D]istrict courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment . . . ."). The FTCA applies to claims alleging personal injuries occasioned by the negligence of government employees. Id.; Dolan v. U.S. Postal Service, 546 U.S. 481, 484-85 (2006). However, a prerequisite to filing an FTCA action is exhaustion of the administrative remedies available, which requires an FTCA plaintiff to first present his claim in writing to the appropriate federal agency as an administrative tort claim. 28 U.S.C. § 2675(a). The statute of limitations for submitting an administrative tort claim to the agency is two years. Id. § 2401(b). The plaintiff may sue in federal court only after receiving a "final denial" by the agency. Id. § 2675(a). The requirement of receiving a "final denial" by the administrative agency on an FTCA claim "is jurisdictional and cannot be waived." Bialowes v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971). The purpose of the "exhaustion requirement is [. . .] to provide notice to the agency so that it can investigate the claim," Barnes v. United States, 137 F. App'x 184, 188 (10th Cir. 2005), and to enable the agency "to resolve claims informally without burdening the courts with unnecessary litigation," Bansal v. Russ, 513 F. Supp. 2d 264, 286 (E.D. Pa. 2007).

While incarcerated at FPC/USP-Canaan, Banks filed three administrative FTCA claims. (Doc. 55 ¶ 29.) Only one is relevant to the instant action.*fn19 On June 14, 2006, Banks filed a claim numbered TRT-NER-2006-04679, in which he complains about the BOP policy regarding the number of stamps given to indigent inmates at FPC/USP-Canaan and other federal facilities. (Doc. 54-2 at 36-37; Doc. 55 ¶ 30.) The BOP rejected this claim on September 8, 2006, because Banks had not "described, with specificity, any personal injury, nor loss/damage to personal property." (Doc. 54-2 at 36; Doc. 55 ¶ 33.) As a result, Banks was informed that his claim was being returned to him for either correction and resubmission or for withdrawal. (Doc. 54-2 at 36.) Banks took no further action with respect to this claim. (Doc. 55 ¶ 34.)

Banks has not received a "final denial" from an administrative agency with respect to this claim. See 28 U.S.C. § 2675(a). He was told to resubmit the claim and elected to take no action. Moreover, Banks failed to initiate the exhaustion process with respect to the additional FTCA claims contained in the instant complaint. These failures are jurisdictional, and the court is not permitted to excuse them. See Bialowes, 443 F.2d at 1049. Accordingly, the court will grant defendants' motion for summary judgment with respect to Banks' FTCA claims.

B. The Merits of Banks' Bivens Claims

"A Bivens action, which is the federal equivalent of the § 1983 cause of action against state actors, will lie where the defendant has violated the plaintiff's rights under the color of federal law."*fn20 Brown v. Philip Morris, 250 F.3d 789, 800 (3d Cir. 2001); see also Egervary v. Young, 366 F.3d 238, 246 (3d Cir. 2004). "[C]courts have generally relied upon the principles developed in the case law applying section 1983 to establish the outer perimeters of a Bivens claim against federal officials." Schrob v. Catterson, 948 F.2d 1402, 1409 (3d Cir. 1991).

In the instant case, Banks' Bivens claims are premised upon violations of his First, Fourth, Fifth, and Eighth Amendment rights. Defendants allege that none of Banks' claims rises to the level of a constitutional violation and that, even if a constitutional violation occurred, defendants are entitled to qualified immunity.*fn21

The court will discuss Banks' constitutional claims seriatim before applying the doctrine of qualified immunity.

1. First Amendment Retaliation

In order to establish a retaliation claim under the First Amendment, a plaintiff must prove: (1) conduct or speech protected by the First Amendment; (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his First Amendment rights; and (3) a causal link between the constitutionally protected conduct or speech and the retaliatory action. Thomas v. Independence Twp., 463 F.3d 285, 296 (2006); see also, e.g., Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282 (3d Cir. 2004); Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Defendants argue that Banks has failed to assert a protected activity sufficient to trigger First Amendment protections. (See Doc. 54 at 19.) However, to the extent that Banks' retaliation claim is premised on his filing of inmate grievances, Banks has clearly alleged that he engaged in a protected activity. See Thomas v. SCI-Dallas, No. 06-1839, 2007 WL 2319805, at *4 (M.D. Pa. Aug. 13, 2007) ("Plaintiff's filing a prisoner grievance clearly falls within the ambit of the First Amendment's protections."); see also Robinson v. Taylor, No. 05-4492, 2006 WL 3203900 (3d Cir. Nov. 7, 2006) (same); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (same). Accordingly, the court will deny defendants' motion to dismiss with respect to this claim.

2. First Amendment Access to Courts

"[P]risoners have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977). In order to state a claim for denial of this right, a prisoner must plead that he or she has suffered an "actual injury" arising from the challenged conduct of the defendants. See Lewis v. Casey, 518 U.S. 343, 349-50 (1996). Defendants argue that Banks has alleged no such injury in the instant case. However, Banks clearly avers that he missed multiple deadlines in his sundry court cases as a result of defendants' actions. (See Doc. 38 ¶ 33); see also Allebach v. Sherrer, No. 04-287, 2005 WL 1793726, at *5 (D.N.J. July 27, 2005) (citing Roman v. Jeffes, 904 F.2d 192, 198 (3d Cir. 1990) (deeming an allegation of missed court-imposed deadlines sufficient to satisfy the actual injury requirement)). Accordingly, the court will deny defendants' motion to dismiss with respect to this claim.

3. Fourth Amendment Unlawful Search

Unlawful search claims require proof of an unconstitutional invasion of a plaintiff's "reasonable expectation of privacy" or a deprivation of his or her interest in property. See Soldal v. Cook County, 506 U.S. 56, 62-64 (1992); Rakas v. Illinois, 439 U.S. 128, 133-35 (1978) (citing Alderman v. United States, 394 U.S. 165, 174 (1969)). In the prison setting, an inmate's reasonable expectation of privacy "necessarily is of diminished scope." See United States v. Solomon, No. 05-385, 2007 WL 1099097, at *3 (W.D. Pa. 2007) (citing Bell v. Wolfish, 441 U.S. 520, 557 (1979)).

In the instant case, Banks alleges that his expectation of privacy was infringed upon when defendants read his legal and personal mail. Longstanding Supreme Court precedent holds that the Fourth Amendment is not violated when letters containing incriminating material are intercepted by prison personnel pursuant to an "established practice, reasonably designed to promote the discipline of the institution." See Stroud v. United States, 251 U.S. 15, 21-22 (1919). Building upon this precedent, numerous circuit courts have held that prison officials do not violate an inmate's Fourth Amendment rights when they inspect an inmate's mail. See Bates v. MHM Correctional Servs., No. 05-2285, 2008 WL 396225, at *5 (M.D. Pa. Feb. 11, 2008) (citing Stow v. Grimaldi, 993 F.2d 1002, 1004-05 (1st Cir. 1993) (holding that a prison practice of requiring non-privileged outgoing mail to be submitted for inspection in unsealed envelopes did not violate prisoners' constitutional rights); Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (stating that prison officials are justified in screening outgoing non-legal mail for escape plans, contraband, threats, or evidence of illegal activity); United States v. Whalen, 940 F.2d 1027, 1034-35 (7th Cir.), cert. denied, 502 U.S. 951 (1991) (holding that because prison officials are permitted to examine inmate mail to ensure that the mail does not interfere with the orderly running of the prison, contain threats, or facilitate criminal activity, there is no expectation of privacy in mail that inmates are required to leave unsealed); United States v. Kelton, 791 F.2d 101, 103 (8th Cir. 1986) (stating that a prisoner's Fourth Amendment rights were not violated when prison official inspected and copied prisoner's outgoing mail); Smith v. Shimp, 562 F.2d 423, 426-27 (7th Cir. 1977) (reasoning that when a pretrial detainee sends non-privileged mail, he knowingly exposes same to possible inspection by jail officials and consequently yields to reasonable search and seizure); United States v. Baumgarten, 517 F.2d 1020, 1028 (8th Cir.), cert. denied, 423 U.S. 878 (1975) (holding that, under circumstances where prisoner knew of official policy of reading prisoners' outgoing and unsealed mail, prisoner cannot say the state gained access to contents of a letter by unlawful search and seizure)). However, the aforementioned decisions turn on facts such as: (1) the existence of an institutional policy informing inmates that their mail will be inspected, (2) whether the mail was non-legal and/or non-privileged, (3) whether the mail was sealed or unsealed, and (4) whether the mail was incoming or outgoing. Because these fact-intensive inquiries can influence whether a prisoner possesses a reasonable expectation of privacy in his or her mail, this issue is better suited for resolution in the context of a motion for summary judgment. Accordingly, defendants' motion to dismiss will be denied with respect to this claim.

4. Fifth Amendment Equal Protection

The Equal Protection Clause of the Fourteenth Amendment requires all persons "similarly situated" to be treated alike by state actors. See City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 439 (1985). While the Fifth Amendment does not contain an equal protection clause applicable to federal actors, the Fifth Amendment's Due Process Clause has been interpreted to contain an equal protection element, which proscribes racial discrimination to the same extent as the Fourteenth Amendment's Equal Protection Clause. See Washington v. Davis, 426 U.S. 229, 239 (1976). Therefore, the court will analyze Banks' Fifth Amendment equal protection claim by utilizing the analytical framework established under the Fourteenth Amendment.

To state an equal protection claim, a plaintiff must allege that: (1) he or she was a member of a protected class, (2) he or she was treated differently from similarly situated persons outside of his or her protected class, and (3) the resultant discrimination was purposeful or intentional rather than incidental. Id.; Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423-24 (3d Cir. 2000). Mere harassment based on protected-class status without identification of similarly situated individuals outside the class will not support an equal protection claim. See Hudson v. Coxon, 149 F. App'x 118, 121 (3d Cir. 2005) (upholding dismissal of equal protection claims for failure to allege differential treatment of others similarly situated); Pollack v. City of Phila., No. 06-4089, 2007 WL 576264, at *4 (E.D. Pa. Feb. 16, 2007) (dismissing plaintiff's equal protection claim despite his allegations of racial harassment because he failed to allege that he received treatment different from that given to other individuals). When alleging the existence of individuals outside the protected class, a plaintiff "cannot use allegations . . . that amount to nothing more than 'conclusory, boilerplate language' to show that he may be entitled to relief," and "bald assertion[s] that other[s] . . . were treated in a dissimilar manner" will not survive dismissal. Young v. New Sewickley Twp., 160 F. App'x 236, 266 (3d Cir. 2006) (citing Evancho v. Fisher, 423 F.3d 347, 354-55 (3d Cir. 2005)). Instead, the plaintiff must allege "occasions or circumstances" of differential treatment. Young, 160 F. App'x at 266.

In the instant case, Banks contends that defendants' unconstitutional actions were motivated by his "class based status as an African-American and American Indian citizen of Pennsylvania." (See Doc. 38 ¶ 16.) Banks therefore alleges membership in a protected class. See Bradley v. United States, 299 F.3d 197, 206 (2002). However, Banks fails to allege the existence of similarly situated individuals, and merely states that defendants' actions were "done under racial and religious discrimination since Banks is Black and Lakota Sioux Indian and his religion is based on ancient Egypt." (Doc. 38 ¶ 9.) These allegations are little more than "bald assertions" and do not allege "occasions and circumstances" of differential treatment. Young v. New Sewickley Twp., 160 F. App'x 236, 266 (3d Cir. 2005). Without alleging the existence of individuals outside of his protected class whom defendants treated differently, Banks has not pleaded facts sufficient to allege a protected-class equal protection claim. See id.; Pollack, 2007 WL 576264, at *4. Accordingly, the court will grant defendants' motion for summary judgment with respect to this claim. However, the court will grant Banks leave to file an amended complaint with respect to this claim. See Grayson, 293 F.3d at 108.

5. Eighth Amendment Cruel and Unusual Punishment

The Eighth Amendment guarantees that individuals will not be subjected to "cruel and unusual punishments." U.S. CONST. amend. VIII. In the prison setting, this provision prohibits officials from acting with "deliberate indifference" towards a "substantial risk of serious harm to an inmate." Farmer v. Brennan, 511 U.S. 825, 828, 832-34 (1994). In the action sub judice, Banks alleges that he was subjected to cruel and unusual punishment in three forms. First, he was denied access to medical treatment for a back injury. Second, his cell was inadequately ventilated. Finally, he was denied daily recreation time outside of his SHU cell.

Turning first to the issue of a denial of medical care, a violation of the Eighth Amendment is established by showing that a prison official acted with "deliberate indifference" to the prisoner's "serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Spruill, 372 F.3d at 235. A serious medical need is a condition requiring treatment as diagnosed by a doctor or a condition "so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). A prison official acts with deliberate indifference when the official, inter alia, "den[ies] reasonable requests for medical treatment . . . [which] exposes the inmate to 'undue suffering or the threat of tangible residual injury.'" Id. In the instant case, Banks alleges that he requested medical treatment for his back injuries, but that the requested treatment was not received. (See Doc. 38 ¶ 27.) Because resolution of Banks' Eighth Amendment denial of medical care claim requires the court to engage in a fact-intensive inquiry regarding the seriousness of his condition and the mental state of the implicated prison officials, Banks' claim is more appropriately reserved for summary judgment. Accordingly, the court will deny defendants' motion to dismiss with respect to this claim.

Banks also claims that while he was confined in the SHU, he was denied recreation time and subjected to an unclean ventilation system that spread "mites and must" throughout his cell." (See Doc. 38 ¶ 27.) Confinement in isolation cells, such as the SHU, is "not per se violative of the Eighth Amendment." See Imprisoned Citizens Union v. Shapp, 451 F. Supp. 893, 897 (E.D. Pa. June 7, 1978) (citing United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1202 (3d Cir. 1973)). However, confinement in isolation cells that provide "inadequate space, heating, ventilation, lighting or sanitary conditions . . . has been declared to be cruel and unusual punishment." Id. In addition, courts have considered an inmate's "limited opportunities for recreation" outside of his or her isolation cell as a factor in the Eighth Amendment cruel and unusual punishment inquiry. Tillery v. Owens, 907 F.2d 418, 427-28 (3d Cir. 1990). The court finds Banks' allegations that his isolation cell provided inadequate ventilation and that he was denied recreation time outside of his cell sufficient to state a cruel and unusual punishment claim. Accordingly, the court will deny defendants' motion to dismiss with respect to this claim.

6. Qualified Immunity

The doctrine of qualified immunity provides that government officials performing "discretionary functions," are shielded from suit if their conduct did not violate a "clearly established statutory or constitutional right[ ] of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999); Saucier v. Katz, 533 U.S. 194, 200-01 (2001). This doctrine provides not only a defense to liability, but "immunity from suit." Hunter v. Bryant, 502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). To gain the protection of the doctrine, the defendant must show either that: (1) the plaintiff has not demonstrated "a deprivation of an actual constitutional right," or (2) the right at issue was not "clearly established at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999); see also Doe v. Groody, 361 F.3d 232, 237-38 (3d Cir. 2004); accord Wright v. City of Phila., 409 F.3d 595, 600 (3d Cir. 2005) (noting that six Courts of Appeals have ruled that the first step in qualified immunity analysis is whether a constitutional violation has occurred). A right is clearly established if "it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202.

In the instant case, Banks has failed to demonstrate a deprivation of his Fifth Amendment right to equal protection. See supra Part III.B.3. Therefore, the doctrine of qualified immunity shields defendants from liability for this claim. However, Banks has demonstrated deprivations of his First, Fourth, and Eighth Amendment rights sufficient to survive a motion to dismiss. See supra Parts III.B.1-3, 5. To successfully assert a defense of qualified immunity with respect to these claims, defendants would be required to prove that the aforementioned rights were not "clearly established" at the time of the alleged violations. See Conn, 526 U.S. at 290. Given the fact-sensitive nature of the constitutional inquiries that remain, see supra Parts III.B.1-3, 5, the court cannot determine at this preliminary stage of the proceeding whether defendants are entitled to qualified immunity with respect to Banks' remaining claims. Accordingly, the court will deny defendants' motion to dismiss to the extent that it asserts a qualified immunity defense.

C. The Merits of Banks' § 1985 Conspiracy Claims

Banks alleges that defendants engaged in a conspiracy to violate his constitutional rights in contravention of 42 U.S.C. § 1985. Specifically, Banks claims that defendant Lappin created a de facto policy which aims to punish inmates for filing or attempting to file grievances. Banks asserts that by following that policy, all defendants "conspired together . . . to violate Banks' constitutional rights." (Doc. 38 at 5.)

Section 1985(3) provides a cause of action against a person who conspires "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3).*fn22 To establish a prima facie case under § 1985(3), a plaintiff must allege: "(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons . . . [of] the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States." Ridgewood Bridgeport. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253-54 (3d Cir. 1999); see also Farber v. City of Patterson, 440 F.3d 131, 134 (3d Cir. 2006); Griffin v. Breckenridge, 403 U.S. 88, 102- 03 (1971); Brown v. Philip Morris Inc., 250 F.3d 789, 805 (3d Cir. 2001); Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997).

In the matter sub judice, the complaint is devoid of allegations sufficient to state a § 1985 claim. In order to state a cognizable § 1985 claim,

[t]he plaintiff's allegations must be supported by facts bearing out the existence of the conspiracy and indicating its broad objectives and the role each defendant allegedly played in carrying out those objectives. Bare conclusory allegations of 'conspiracy' or 'concerted action' will not suffice to allege a conspiracy. The plaintiff must expressly allege an agreement or make averments of communication, consultation, cooperation, or command from which such an agreement can be inferred.

Flanagan v. Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). The essence of a conspiracy is an agreement or concerted action between individuals. See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377 (3d Cir. 1992). Consequently, a plaintiff must allege with particularity and present material facts which show that the purported conspirators reached some understanding or agreement or plotted, planned and conspired together to deprive the plaintiff of a protected federal right. Rose v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989). Where a civil rights conspiracy is alleged, there must be specific facts in the complaint which tend to show a meeting of the minds and some type of concerted action. Deck v. Leftridge, 771 F.2d 1168, 1170 (8th Cir. 1985). "[T]he factual basis need not be extensive, but it must be enough to avoid a finding that the suit is frivolous." Id. (citations omitted). A plaintiff cannot rely on subjective suspicions and unsupported speculation. Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991).

In the instant case, viewing the amended complaint in the light most favorable to Banks, it is clear that Banks has failed to state a viable conspiracy claim against defendants. Banks makes no averments of fact that support his claim that Lappin created a de facto policy of retaliation, let alone any averments that support his claim that all other defendants followed the policy in order to "punish" Banks. Nor is there anything in the amended complaint that reasonably suggests the presence of an agreement or concerted activity between defendants to violate Banks' constitutional rights. Banks' allegations of conspiracy are bare conclusions and unsupported speculations at best. See Flanagan, 783 F. Supp. at 928.

Moreover, the complaint does not allege that "any 'racial or class based discriminatory animus'" motivated defendants' conduct. See Cranbury Brook Farms v. Twp. of Cranbury, 226 F. App'x 92, 95 (3d Cir. 2007) (citing Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)). While Banks states in a conclusory fashion that defendants' actions were motivated by his "status as an African American and American Indian" and by his "Egyptian based religion" (Doc. 38 ¶ 16), his factual allegations regarding the alleged conspiracy indicate that defendants' actions were targeted toward all inmates "who file or attempt to file grievances." (Id. ¶ 9.) If the conspiratorial acts were not motivated by class-based animus, Banks' mere membership in a protected class is insufficient to give rise a § 1985 claim.

Having found that Banks has failed to allege the existence of a class-based conspiracy, the court will grant defendants' motion to dismiss with respect to Banks' § 1985 claims. However, the court will grant Banks leave to file an amended complaint with respect to this claim. See Grayson, 293 F.3d at 108.

IV. Conclusion

Viewing the evidence in the light most favorable to Banks, the court finds that Banks has adequately alleged that the grievance process was unavailable while he was housed in the SHU. The evidence of record also suggests that Banks was released from the SHU at some point during his period of incarceration at FPC/USP-Canaan and that the grievance process became available to him no later than May 26, 2006. This evidence suggests that Banks procedurally defaulted a number of his claims. Given the absence of temporality evidence in the current record, the court is only able to determine that Banks procedurally defaulted those claims that accrued during or after the May 29, 2006 meeting. The court will grant the motion for summary judgment with respect to these claims, but must deny it with respect to the remaining claims. Moreover, Banks has failed to satisfy the additional exhaustion requirements of the FTCA; therefore, the court will grant defendants' motion for summary judgment with respect to these claims.

Turning to the merits of Banks' claims, the court finds that Banks' allegations are sufficient to state Bivens claims for violations of the First, Fourth, and Eighth Amendments. However, his allegations are insufficient to establish a Fifth Amendment violation. Finally, the court will dismiss Banks' § 1985 claims for failure to allege the existence of a class-based conspiracy. Leave to amend will be granted, as noted.

An appropriate order will issue.

CHRISTOPHER C. CONNER United States District Judge


AND NOW, this 24th day of June, 2008, upon consideration of defendants' motion to dismiss or, in the alternative, for summary judgment (Doc. 51), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that the motion (Doc. 51) is GRANTED in part and DENIED in part as follows:

1. The motion (Doc. 51) is GRANTED in part as follows:

a. All claims against defendants "One or More Unknown Named Confidential Informants of Federal Prison Camp Canaan" and "Six or More Unknown Named Lt's and Correctional Officers of USP-Canaan" are DISMISSED.

b. All Bivens claims against defendants the Federal Bureau of Prisons and the United States of America are DISMISSED.

c. All claims for injunctive relief are DISMISSED as moot.

d. Judgment will be entered in favor of defendants and against plaintiff with respect to all claims pursuant to the Federal Tort Claims Act, all Bivens claims that accrued during or after the May 29, 2006 meeting, and all Bivens claims relating to the denial of access to religious materials and to plaintiff's prison work status.

e. All claims of conspiracy pursuant to 42 U.S.C. § 1985 and all Bivens equal protection claims are DISMISSED. Plaintiff is granted leave to file an amended complaint with respect to the claims contained in Paragraph 1.e on or before July 9, 2008.*fn23 See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

2. The motion (Doc. 51) is otherwise DENIED.

3. The Clerk of Court is directed to DEFER the entry of judgment until the conclusion of this case.

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