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Conway v. Lindsay

July 6, 2009


The opinion of the court was delivered by: Chief Judge Kane


This Bivens*fn1 action pursuant to 28 U.S.C. § 1331 proceeds on a complaint filed by Robert Conway, III, ("Plaintiff"), an inmate incarcerated at the United States Penitentiary at Canaan (USP-Canaan), Pennsylvania. Named as Defendants are Senior United States Judge Richard A. Ensled, the Bureau of Prisons ("BOP"), D. Scott Dodrill, BOP Regional Director, and the following USP-Canaan employees: Cameron Lindsay, Warden; Kyle Lindsay, Unit Manager; Lieutenant Robert Kaszuba; and Harrell Watts, Prison Administrator.*fn2 Also named as Defendants are Jeffery Nickerson, a manager with the UCC Division of the Michigan Department of State, and Special Agents Belmarsh, Cole and DeAnda.*fn3 The claims in the complaint stem from Plaintiff's attempts to collect "government bonds," which he contends are his property. He contends that his constitutional rights were violated when he was placed in the SHU pending an investigation to recover the bonds. He also alleges that Defendants interfered with his attempts to make filings with the government. Presently before the Court is a motion filed by Defendant Kyle Lindsay to strike a document filed by Plaintiff on November 13, 2008, entitled "Addendum - Formal Complaint" (Doc. No. 35). Also pending is a motion to dismiss the complaint filed on behalf of Defendants Lindsay, Lindsay, Watts, Kaszuba and Dodrill. (Doc. No. 42.) For the reasons that follow, both motions will be granted.


In the complaint Plaintiff sets forth his attempts in or about January of 2007, to contact by letter Defendant Ensled and other public officials involved in his underlying criminal case. In the letters, Plaintiff requests said officials to file certain tax forms including their 1040 and 1099 OID and 1096 forms, as well as provide him with their tax ID Numbers so he can provide this information to the Internal Revenue Service to collect government bonds which Plaintiff claims are his property. On or about January 26, 2007, Ensled mailed Plaintiff an "Order Rejecting Pleading." (Doc. No. 1, Compl. at 2.)

On or about February 14, 2007, Plaintiff was directed to report to Defendant Kaszuba in the Lieutenant's Office at USP-Canaan. Upon his arrival, Defendant K. Lindsay questioned Plaintiff with respect to the letter received from Defendant Ensled concerning IRS forms, and asked him to explain what was going on. Plaintiff states that he tried to explain how he was attempting to collect on bonds related to his underlying criminal action which he claims are his property, and total an amount of $4,550,000.00. (Id. at 3.)

After speaking with Defendant and Dr. DiPala, Plaintiff was placed in the SHU by Defendant Kaszuba of the Special Investigative Service ("SIS"), pending an investigation for fraudulent mail activities with respect to the recovery of the bonds. Plaintiff states that such confinement was a violation of his constitutional rights. He further claims that Defendant Lindsay threatened to prosecute Plaintiff to the fullest extent of the law due to such illegitimate UCC lien filing activity.

On or about March 30, 2007, Plaintiff states he filed a BP-9 Administrative Remedy to Defendant Warden Lindsay challenging his confinement in the SHU because he believed he had not violated any rules. Lindsay denied the request stating that an SIS investigation was taking place. About a month later, Plaintiff states he received a "frivolous filing form" from the IRS stating that no penalty would be assessed against him if he would drop his claim within thirty (30) days. (Id.) Plaintiff alleges he was later denied immediate release from the SHU by Defendant Dodrill pursuant to a BP-10 appeal he pursued.

On or about May 8, 2007, Plaintiff was issued an incident report charging him with Extortion/Fraud, Threatening Staff, Counterfeiting or Forging any Documentation & Mail Abuse. The following day, Plaintiff states he mailed a UCC-3 Financing Statement Amendment to Defendant Nickerson, requesting that security interest be registered with respect to all property belonging to "DEBTOR CONWAY, ROBERT." (Id.) When he did not hear back from the UCC Department, Plaintiff made an inquiry to Defendant Kaszuba. It is Plaintiff's position that the SIS held his UCC paperwork, and therefore prevented it from being mailed out. Plaintiff asserts that the UCC forms are important in protecting his property.

Based on the foregoing, Plaintiff contends Defendants have violated his constitutional rights to due process and to be free from cruel and unusual punishment when they confined him in the SHU for exercising his right to free speech. He claims that Defendants Nickerson, Kaszuba and the government agents denied him access to the courts when they impeded his UCC filings. Plaintiff seeks declaratory, injunctive, compensatory and punitive relief.


A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the claims alleged in the complaint. In reviewing a motion to dismiss, the court must "accept all factual allegations as true, construe the complaint in the light most favorable to plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). Although the court is generally limited in its review to the face of 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. 1997); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Although the moving party bears the burden of showing that no claim has been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2007), the plaintiff has an obligation to allege facts sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (internal citations omitted). Furthermore, "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, Id. at 1960. When evaluating a motion to dismiss, a court need not "credit a complaint's 'bald assertions' or 'legal conclusions.'" Evancho v. Fisher, 423 F.3d 347, 354-55 (3d Cir. 2005). Finally, when a plaintiff fails to plead "enough facts to state a claim to relief that is plausible on its face," Twombly, 127 S.Ct. at 1960, the complaint should be dismissed.


A. Motion to Strike Addendum

On November 13, 2008, Plaintiff submitted a document entitled "Addendum - Formal Complaint." (Doc. No. 31.) In this document it appears Plaintiff seeks to raise new claims with respect to a separate incident arising after the filing of the original complaint against Defendant Kyle Lindsay, as well ...

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