United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
Jack Ferranti ("Ferranti"), a inmate currently
confined at the Allenwood Low Security Federal Correctional
Institution ("LSCI-Allenwood"), located in White
Deer, Pennsylvania, initiated this action pursuant to
Bivens, 28 U.S.C. § 1331. (Doc. 1). Named as
Defendants are Bureau of Prisons ("BOP") Director
Thomas Kane, Northeast Regional Director M.D. Carvajal, and
LSCI-Allenwood Warden Kathy Lane. (Id.). In the
complaint, Ferranti alleges that Defendants improperly
categorized his arson offense as greater security and
assigned him a Public Safety Factor ("PSF"), which
precluded him from several liberty interests, including
designation to a lower security institution. (Doc. 1, ¶
15). Ferranti argues that the United States Supreme Court
decision in Johnson v. United States, ___ U.S. ___
135 S.Ct. 2551 (2015), rendered this classification invalid.
(Id. at ¶¶ 16, 30). He further argues that
the classification violates due process, the ex post facto
clause, the equal protection clause, the Fifth Amendment, and
the Fourteenth Amendment. (Id. at ¶¶
32-37). For relief, Ferranti requests that Defendants
"authorize the waiver of the public safety factor, and
reduction of Plaintiff's offense severity level
commensurate to the requirements of the Johnson
ruling." (Doc. 1, p. 13). He also requests modernization
of the BOP classification policies and procedures.
(Id. at p. 14).
pending before the Court is Defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b) or, in the
alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56. (Doc. 13). The motion is ripe for
disposition and, for the reasons set forth below, the Court
will grant Defendants' motion for summary judgment.
Summary Judgment Standard of Review
party moves to dismiss, but where "matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56." Fed.R.Civ.P. 12(d). Typically, when a court
converts a motion to dismiss into a motion for summary
judgment under Rule 56, notice must be given to all parties
of the court's intent to do so. Id:, Garcia v.
Newtown Twp., 2010 WL 785808, at *3 (E.D. Pa. 2010).
However, if a motion to dismiss has been filed with an
alternative request for summary judgment, the Third Circuit
Court of Appeals has found that the alternative filing is
sufficient to "place the parties on notice that summary
judgment might be entered." Latham v. United
States, 306 Fed.Appx. 716, 718 (3d Cir. 2009) (citing
Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.
1996)). Accordingly, the Court will treat Defendants'
filing as a motion for summary judgment.
summary adjudication, the court may dispose of those claims
that do not present a "genuine dispute as to any
material fact." Fed.R.Civ.P. 56(a). "As to
materiality, ... [o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has
been made, the non-moving party must offer specific facts
contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888 (1990). Therefore,
the non-moving party may not oppose summary judgment simply
on the basis of the pleadings, or on conclusory statements
that a factual issue exists. Anderson, 497 U.S. at
248. "A party asserting that a fact cannot be or is
genuinely disputed must support the assertion by citing to
particular parts of materials in the record ... or showing
that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact."
Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary
judgment should be granted, "[t]he court need consider
only the cited materials, but it may consider other materials
in the record." Fed.R.Civ.P. 56(c)(3). "Inferences
should be drawn in the light most favorable to the non-moving
party, and where the non-moving party's evidence
contradicts the movant's, then the non-movant's must
be taken as true." Big Apple BMW, Inc. v. BMW of N.
Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992),
cert, denied 507 U.S. 912 (1993).
"facts must be viewed in the light most favorable to the
nonmoving party only if there is a 'genuine' dispute
as to those facts." Scott v. Harris, 550 U.S.
372, 380, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). If a
party has carried its burden under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The 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. When
opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary
Id. (internal quotations, citations, and alterations
Bivens action is the federal counterpart to an
action filed under 42 U.S.C. § 1983. See Paton v.
LaPrade, 524 F.2d 82 (3d Cir.1975); Farmer v.
Carlson, 685 F.Supp. 1335, 1338 (M.D. Pa. 1988). Section
1983 of Title 42 of the United States Code offers private
citizens a cause of action for violations of federal law by
state officials. See 42 U.S.C. § 1983. The
statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
Id.; see also Gonzaga Univ. v. Doe,
536 U.S. 273,
284-85 (2002); Kneipp v. Tedder,95 F.3d 1199, 1204
(3d Cir. 1996). To state a claim under § 1983, a
plaintiff must allege "the violation of a right secured
by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person