The opinion of the court was delivered by: Eduardo C. Robreno, J.
Plaintiff Hitham Abuhouran ("Plaintiff") brings this pro se suit
against the United States and seventeen current or former employees of
the Federal Bureau of Prisons ("Defendants"). Plaintiff's complaint
contains seven counts relating to his incarceration from August 2001
to June 2007. Counts One and Two plead Federal Tort Claims Act
("FTCA") claims against Defendants for subjecting Plaintiff to
excessive exposure to environmental tobacco smoke and inadequate
ventilation. (See First Am. Compl. ¶¶ 112-25.) Counts Three, Four, and Five are Bivens*fn1
claims seeking redress for the same environmental tobacco
smoke and inadequate ventilation that Counts One and Two are
on.*fn2 (See id. ¶¶ 126-48.) Count Six is a Fifth
Amendment Bivens claim alleging "invidious discrimination by all
defendants due to [Plaintiff's] ethnicity and/or national origin."
(Id. ¶¶ 150, 152-55.) Finally, Count Seven is a Bivens claim alleging
that Defendants violated the First Amendment by requiring incoming and
outgoing written correspondence to be in English. (See id. ¶¶ 156-60.)
In accordance with this Court's Order requiring the same, (see doc.
no. 53), Defendants moved for judgment on the pleadings or, in the
alternative, summary judgment. Plaintiff responded in opposition, and
has since asked the Court to appoint counsel.
As discussed below, Defendants' motion will be granted. Therefore, Plaintiff's motion for appointment of counsel will be denied.
Plaintiff, a "Jordanian by birth" who has been a United States citizen since 1988, (see First Am. Compl. ¶ 23), is a federal inmate who is currently housed at Camp Canaan in Waymart, PA, (id. ¶ 3.) Plaintiff's claims stem from Defendants' allegedacts and omissions from August 2001 to June 2007. (See id. ¶ 22; see also id. ¶¶ 113, 122, 133, 150, 157.) During this time, Plaintiff was incarcerated at two federal facilities: the Federal Detention Center in Philadelphia, Pennsylvania ("FDC") and the Federal Correctional Institution in Elkton, Ohio ("FCI"). Plaintiff was housed at the FCI from August 2001 to July 2002, and then again from March 2004 to June 2007. (See id. ¶¶ 27; 51; 70.) Plaintiff was at the FDC during the intervening period of July 2002 to March 2004. (See id.) At both institutions, Plaintiff was exposed to environmental tobacco smoke which, according to Plaintiff, has contributed to his failing health. (See, e.g., id. ¶¶ 98-99.) Plaintiff was also subject to correspondence restrictions during the relevant time period. Specifically, Plaintiff was neither permitted to send nor receive letters written in any language other than English. (Id. ¶¶ 86-88.)
On March 24, 2006, Plaintiff filed his first suit relevant to the instant proceedings in the United States District Court for the District of Columbia, whereupon it was transferred to the United States District Court for the Northern District of Ohio. The complaint in that case, which turns out to be the initial iteration of the complaint presently before the Court, pled two causes of action: (1) an Eighth Amendment Bivens claim for injuries sustained due to environmental tobacco smoke and poor ventilation at the FDC and FCI; and (2) a Fifth Amendment Bivens claim for race-based discrimination.
Judge Adams of the Northern District of Ohio dismissed with prejudice Plaintiff's claims arising out of his incarceration at the FCI for failure to state a claim, and dismissed without prejudice Plaintiff's claims arising out of his incarceration at the FDC for failure to exhaust administrative remedies. See Abuhouran v. Morrison, No. 06-1207, 2006 WL 2334748, at *7 (N.D. Oh. Aug. 10, 2006) [hereinafter Abuhouran
I]. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the dismissal of the FCI claims, but remanded the FDC claims based on Jones v. Bock, 549 U.S. 199 (2007), which held that exhaustion was an affirmative defense under the Prison Litigation Reform Act ("PLRA"). Following remand, the Northern District of Ohio transferred the case to this Court. Thereafter, Plaintiff filed the first amended complaint presently at issue.
Shortly after filing the above-mentioned case, Plaintiff brought a second suit in the Northern District of Ohio. The complaint in this second suit contained nearly identical facts to those averred in the earlier suit and subsequently raised in Plaintiff's first amended complaint. This time, however, Plaintiff's complaint contained only one FTCA count against the United States for environmental tobacco smoke and poor ventilation at the FDC and FCI. Citing the preclusive effect of Plaintiff's prior case which was, at the time, on appeal with the Sixth Circuit, Judge Economus dismissed with prejudice Plaintiff's FTCA claim to the extent it involved conduct at the FCI. See Abuhouran v. United States, No. 06-2505, 2007 WL 128908, at *4 (N.D. Oh. Jan. 12, 2007) [hereinafter Abuhouran
Recognizing that Plaintiff's claims pertaining to the FDC had been dismissed without prejudice in Abuhouran I, Judge Economus permitted Plaintiff to proceed "solely on [his] claim concerning the ventilation at FDC-Philadelphia."*fn3 Id. The case was subsequently transferred to this Court, which considered the remaining claim of inadequate ventilation at the FDC and granted summary judgment for the defendant because Plaintiff could not "raise a genuine issue of material fact that inadequate ventilation led to [environmental tobacco smoke] exposure, which was the causal connection for his injuries." Abuhouran v. United States, 595 F. Supp. 2d 588, 595 (E.D. Pa. 2009) [hereinafter Abuhouran III]. The Third Circuit affirmed this Court's grant of summary judgment. See Abuhouran v. United States, 389 F. App'x 179 (3d Cir. 2010).
Standard Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "A motion for summary judgment will not be defeated by 'the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, the non-moving party "may not rely merely on allegations or denials in its own pleading; rather, its response must-by affidavits or as otherwise provided in [Rule 56]-set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
B. Judgment on the Pleadings
Standard Rule 12(c) permits a party to move for judgment on the pleadings "[a]fter the pleadings are closed-but early enough not to delay trial." Fed. R. Civ. P. 12(c). Where, as here, a Rule 12(c) motion challenges the plaintiff's failure to state a claim upon which relief can be granted, the court evaluates the motion under the same standard as a motion to dismiss pursuant to Rule 12(b)(6). See Turbe v. Gov't of the V.I., 938 F.2d 427, 428 (3d Cir. 1991).
Under this standard, the court must "accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 215 (3d Cir. 2007) (internal citations omitted). In order to withstand a motion to dismiss, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007). This "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (internal citation omitted). Although a plaintiff is entitled to all reasonable inferences from the facts alleged, a plaintiff's legal conclusions are not ...