The opinion of the court was delivered by: Judge McClure
On September 8, 2008, plaintiff, Brian E. Ratigan, currently an inmate at the United States Penitentiary at Pollock, Pollock, Louisiana ("USP-Pollock"), and formerly an inmate at the United States Penitentiary at Allenwood, White Deer, Pennsylvania ("USP-Allenwood"), filed this Bivens*fn1 civil rights action, pro se, under 28 U.S.C. § 1331. (Rec. Doc. No. 1). In addition, plaintiff moved to proceed in forma pauperis. An amended complaint was filed on September 16, 2008. (Rec. Doc. No. 7). Plaintiff attached a twenty-eight-page, 100-paragraph, typed Amended Complaint, to the filed form Amended Complaint. The twenty-eight-page typed Amended Complaint shall be referred to as Record Document 7A.
Plaintiff levies a plethora of claims against Bureau of Prisons' ("BOP") employees at USP-Allenwood - Maria Trogvac, Psychologist; Todd Cerney, Disciplinary Hearing Office; and Chris McConnell, Special Investigative Service Lieutenant. Specifically, plaintiff's Count I asserts Racketeer Influenced and Corrupt Organizations Act ("RICO") claims against the three defendants under 18 U.S.C. §§ 1961-1965 for employing their official positions to obstruct justice, tamper with a witness, provide false inculpatory statements, conceal exculpatory evidence, illegally detain him, retaliate against him, try to "maliciously prosecute [him] for extortion," and violate his Constitutional rights. (Rec. Doc. No. 7A, pp. 18-19).
Plaintiff's Count II raises a Fifth Amendment Due Process claim, alleging that Trogvac made false statements, falsified documents and concealed exculpatory evidence in order to obtain a criminal prosecution of the plaintiff and a misconduct conviction against him which resulted in his confinement in the Special Housing Unit ("SHU") and his eventual transfer to USP-Pollock. (Id. at pp. 20-22). Plaintiff also claims that Cerney convicted him of a misconduct offense without an adequate charge or supporting evidence, that McConnell conducted an improper investigation into the incident between plaintiff and Trgovac regarding plaintiff's letter to her, and that McConnell had a conflict of interest and covered up the defendants' improper conduct because of his intimate relationship with Trgovac. (Id.).
In Count III, plaintiff claims that Trgovac violated his First Amendment right to freedom of expression by refusing to allow him to communicate with the woman he believed was their adult daughter. (Id. at 22-23). Plaintiff also claims that McConnell violated his First Amendment right to access to the courts by holding him in USP-Allenwood's SHU under false pretenses. (Id.)
In Count IV, plaintiff avers that his Fourth Amendment rights were violated by McConnell when he seized and detained the plaintiff in the SHU without probable cause and under false pretenses. (Id. at 23).
In Count V, plaintiff claims that the defendants violated his Sixth Amendment right to effective assistance of counsel by conspiring to ensure that his pro se representation was inadequate during prison disciplinary hearings and appeals. (Id. at 23-24).
Plaintiff's Count VI raises an Eighth Amendment claim, alleging that the defendants acted "with intend and deliberate indifference to inflict severe psychological torment, [and] distress" on him. (Id. at 24-25). It also appears that plaintiff raises a Pennsylvania state law claim for intentional infliction of emotional distress. (Id.).
Plaintiff's Count VII asserts that BOP supervisors failed to "properly instruct, supervise, control and discipline" their employees, (id. at 25-26), and that this lapse enabled the defendants to make false statements, file false charges against the plaintiff, conceal evidence, obstruct criminal investigations, and retaliate, coerce and defame the plaintiff. (Id.). Additionally, plaintiff claims that BOP officials were aware of the intimate relationship between Trogvac and McConnell and that the failure to neutralize this conflict of interest through instruction, training and supervision enabled the defendants to violate his constitutional rights.(Id.).
In the typed amended complaint's final count, Count VIII, plaintiff asserts a Ninth Amendment claim and a Pennsylvania state law claim for invasion of privacy. Plaintiff avers that defendants forced him "to reveal private and personal information, (the past sexual encounter with Trgovac that produced a child, out of wedlock, in order to prove [his] innocence...." (Id. at 27). Plaintiff also contends that the defendants conspired with one another to "prohibit [him] from having contact, expression and communication with [his] biological child...." (Id.). In addition, plaintiff alleges that defendants "sought to embarrass, humiliate and intimidate [him] through unlawful searches by forcing strip-searches for their inspection that they might glory in his flesh." (Id.).
Plaintiff requests judgment against the defendants for compensatory damages in an amount exceeding $6,750,000 and punitive damages in excess of $1,000,000. (Id.). Plaintiff also demands attorney fees, costs of the action and any other relief we "deem just, proper and equitable." (Id.).
This matter was initially referred to United States Magistrate Judge Blewitt. On October 30, 2008, Magistrate Judge Blewitt filed a fifty-seven page Report and Recommendation ("R&R"). (Rec. Doc. No. 10). In his report, the magistrate judge concluded that: (1) no conspiracy claim was asserted under 42 U.S.C. § 1985(3), (id. at 19-20); (2) plaintiff's Count I RICO claim is improper under 19 U.S.C. § 1962 and should be dismissed for failure to state a claim because plaintiff failed to demonstrate that RICO activity substantially caused an injury to his business or property, defendants' activities are not the predicate acts of racketeering required under 18 U.S.C. §§ 1961 and 1962, and defendants are not distinct and separate from the alleged enterprise as required by law, (id. at 19-26); (3) plaintiff's Count II Fifth Amendment Due Process claim, insofar as it involves the fifteen (15) days he spent in disciplinary segregation in the SHU for an overturned disciplinary violation and the sixty-eight (68) days he spent in the SHU under the Administrative Detention Order of October 10, 2006, is proper and may proceed against the defendants, (id. at 26-29); (4) plaintiff's Count III First Amendment claim should be dismissed for failure to state a claim because, inter alia, plaintiff had no right to associate with his alleged daughter or send this type of correspondence to a BOP female staff member working at the prison in which the plaintiff is incarcerated. Additionally, plaintiff, inter alia, did not allege that ongoing litigation was frustrated by McConnell's activities, nor did he claim that there are underlying claims in the current action that were hindered. Consequently, plaintiff has failed to state a claim upon which relief can be granted because he has not alleged that he suffered an actual injury, (id. at 30-38); (5) plaintiff's Count IV Fourth Amendment claim should be dismissed for failure to state a claim upon which relief can be granted because Ratigan's significantly limited reasonable expectation of privacy was not violated by a physical seizure that occurred while he was already incarcerated, (id. at 39-42); (6) plaintiff's Count V Sixth Amendment claim should be dismissed for failure to state a claim upon which relief can be granted because Ratigan was successful in his appeal and he may not "raise an ineffective assistance of counsel claim when he [is] representing himself in the context of a prison disciplinary hearing and appears for which he is not entitled to counsel," (id. at 43-44); (7) plaintiff's Count VI Eight Amendment claim should be dismissed for failure to state a claim upon which relief can be granted because, inter alia, Ratigan did not allege that the defendants denied him the "minimal civilized measure of life's necessities." (Id. at 47-48). Additionally, plaintiff's state law intentional inflict of emotional distress claim is improper in this Bivens action because the Federal Tort Claim Act ("FTCA"), not a Bivens action, is the trigger for tort claims against employees of the United States for money damages and the plaintiff has failed to demonstrate that he exhausted the BOP's administrative remedies prior to filing under the FTCA, (id. at 44-47); (8) plaintiff's Count VII failure to properly instruct, supervise, control and discipline claim should be dismissed for failure to state a claim upon which relief can be granted because, inter alia, plaintiff did not state the personal involvement of the defendants with respect to this claim, (id. at 50); (9) plaintiff's Count VIII Ninth Amendment claim should be dismissed for failure to state a claim upon which relief can be granted because the alleged First and Fourth Amendment violations upon which the Ninth Amendment claim is based were not violations of Ratigan's constitutional rights. (Id. at 51). Moreover, Ratigan may not raise the state law invasion of privacy claim here for aforementioned reasons, (id. at 52); (10) plaintiff's motion to proceed in forma pauperis should be granted and plaintiff should be ordered to pay a partial filing fee of $28.19, (id. at 55); and, (11) the case should be remanded to Judge Blewitt for further proceedings.
On January 5, 2009, plaintiff filed twenty-seven pages of objections to Judge Blewitt's R&R. (Rec. Doc. No. 18). Following a careful review of this document, it is clear that a majority of the plaintiff's objections are statements or claims which appeared in the typed amended complaint.
A district court reviews de novo those portions of a magistrate judge's R&R to which a party objects. L.R. 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
After de novo review of the complaint and documents in the case, including the R&R and plaintiff's objections to the R&R, and applicable law, we have concluded that we agree with a majority of the magistrate judge's thorough analysis and recommendations, and will therefore adopt the R&R in part. (Rec. Doc. No. 10) Therefore, we will dismiss all of the plaintiff's counts except Count III and VII, allowing plaintiff to amend Count VII, and remand the case to Judge Blewitt for further proceedings consistent with this Order.
It should be noted that, for the purposes of judicial economy, we will not rehash the sound reasoning employed by the magistrate judge or address plaintiff's attempts to rehash the amended complaint. Instead, we will only respond to new, proper objections.
1. Magistrate Judge Blewitt's Authority To Preside Over ...