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Zwick v. Department of Justice

United States District Court, M.D. Pennsylvania

March 10, 2014

JAMES R. ZWICK, Plaintiff,
v.
DEPARTMENT OF JUSTICE, et al., Defendants.

MEMORANDUM

WILLIAM W. CALDWELL, District Judge.

I. Introduction

James Zwick, an inmate at the Allenwood United States Penitentiary (USP Allenwood), in Allenwood, Pennsylvania, filed this Bivens action concerning events that occurred in 2012 while housed at USP Canaan, in Waymart, Pennsylvania.[1] Named as defendants are the following Bureau of Prisons (BOP) USP Canaan employees: Donald Altenhofen, Jr., Supervisor of Industries; Joseph Dunstone, Case Manager; David J. Ebbert, Warden; Jason Hunter, Senior Corrections Officer; and Michael Sample, Unit Manager.

In his Complaint Zwick alleges that he was unfairly removed from his Federal Prison Industries job and threatened with a transfer to another facility in retaliation for filing grievances about a reduction in pay, lack of timely promotion, and delayed reinstatement to a prison industries position. (Doc. 1, Compl.)

The Defendants have filed an uncontested motion to dismiss and motion for summary judgment. (Doc. 28, Mot. to Dismiss and Mot. for Summ. J.) Defendants seek judgment on the basis of sovereign immunity; lack of personal involvement of defendants Hunter and Dunstone; and Zwick's failure to exhaust his administrative remedies as to any claim except for his February 2012 termination from UNICOR. On the latter claim, they assert it fails on the merits. Defendants filed a statement of undisputed material facts, a brief and exhibits in support of their motion. ( See Docs. 29 and 30). Zwick has neither responded to the motion nor sought an enlargement of time to do so.

For the reasons the follow, Defendants unopposed motion to dismiss and motion for summary judgment will be granted.

II. Standards of Review

A. Motion to Dismiss

"The test in reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6) is whether, under any plausible' reading of the pleadings, the plaintiff would be entitled to relief." Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764 (3d Cir. 2013)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). Rule 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim, " Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965). "[L]abels and conclusions" are not enough, and a court is "not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555, 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 2944, 92 L.Ed.2d 209 (1986)).

B. Motion for Summary Judgment

We will examine the motion for summary judgment under the well-established standard. Guidotti v. Legal Helpers Debt Resolution, LLC, 716 F.3d 764, 772-73 (3d Cir. 2013). Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In making this evaluation, the court must determine "whether the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and whether the moving party is therefore entitled to judgment as a matter of law." MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir. 2012)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). "Material facts are those that could affect the outcome' of the proceeding, and a dispute about a material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party.'" Roth v. Norfalco, 651 F.3d 367, 373 (3d Cir. 2011)(citing Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)).

"[S]ummary judgment is essentially put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party's favor. Liberty Lobby, 477 U.S. at 256-57, 106 S.Ct. at 2514. Allegations made without evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000).

III. Discussion

A. Motion to Dismiss

1. Allegations of the Complaint

In his Complaint and exhibits attached thereto, Zwick alleges the following. On February 6, 2012, Zwick approached Donald Altenhofen, Supervisor of Industries (SOI) "to correct his pay grade that was taken [from him] in 2011." (Doc. 1, Compl., ECF p. 3). When SOI Altenhofen told Plaintiff "go back to work, " Zwick responded "I'll put in a cop-out." ( Id. ) Zwick then went to get a cop-out, or administrative remedy form from the office. When SOI Altenhofen saw what Zwick was doing, he asked "writing me up?" ( Id., ECF p. 4). Zwick claims he was "fired from his job a few days later... for disobeying an order and for insolence towards staff." ( Id. ) Zwick avers that SOI Altenhofen can only remove him from his prison industry, or UNICOR, job if he poses "a serious threat to the orderly and safe operation of federal prison industries." ( Id. ) Zwick believes he does not fall into this category as he never received an incident report for insolence toward staff or disobeying an order. As such, he was wrongfully terminated and not treated "in an equal manner... as other inmates." ( Id., ECF p. 5). Zwick claims that SOI Altenhofen fired him in retaliation "for exercising his right to use the grievance process." ( Id. )

On February 6, 2012, Zwick completed an informal administrative remedy request form regarding his loss of employment. ( Id., ECF p. 17). SOI Altenhofen responded the following day. ( Id., ECF p. 18). SOI Altenhofen recounted that Zwick approached him, complaining that he should have received a warning in December 2011, rather than a pay cut, for doing handstands at work. Zwick argued this point, as well as when he would be eligible for a pay raise, with SOI Altenhofen. After a period of time, SOI Altenhofen told him to walk away but Zwick continued to argue. SOI Altenhofen then ordered Zwick to report to his supervisor. ( Id. ) Instead, Zwick went to get a copout from the floor clerk. ( Id. ) When confronted again, Zwick continued to say it was unfair for SOI Altenhofen "to take his grade in December and that the SOI was abusing his power toward him." ( Id. ) SOI Altenhofen terminated Zwick for disobeying an order and for insolence toward staff. ( Id. ) "The SOI has authority to remove an inmate who, in the judgment of the SOI, would constitute a serious threat to the orderly and safe operation of the FPI factory. And in [SOI Altenhofen's] judgment that by Inmate Zwick refusing [an] order and for insolence toward staff constituted these findings." ( Id. )

On February 22, 2012, Zwick sent a request to staff form to Warden Ebbert and SOI Altenhofen stating he was wrongfully terminated from his prison industries job in the absence of an incident report. ( Id., ECF pp. 19-20). On February 24, 2012, Zwick filed a formal administrative remedy concerning his alleged firing by SOI ...


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