Opinion
Civil Action 3:22-CV-00806
01-29-2024
JOSE MANUEL ROMERO PARADA, Plaintiff, v. UNITED STATES, et al., Defendants.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion to dismiss and for summary judgment filed by Defendants the United States, the Federal Bureau of Prisons (“BOP”), the National Gang Unit Agency (“NGU”), Security Investigation Service (“S.I.S.”), and J. Meyers (collectively, “Defendants”). (Doc. 17). Pro se prisoner-Plaintiff Jose Manuel Romero Parada (“Parada”) has neither filed a response to Defendants' motion to dismiss and for summary judgment nor a motion seeking an extension of time to do so. Accordingly, because the time for filing a response has expired, Defendants' motion is ripe for disposition.
I. BACKGROUND AND PROCEDURAL HISTORY
This pro se civil rights action was initiated on May 23, 2022, pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, by the filing of a complaint in the related action, Bran v. United States, on behalf a purported class of prisoners. (Doc. 1). On June 16, 2022, Parada, a prisoner incarcerated in the United States Penitentiary Lewisburg, Pennsylvania (“USP Lewisburg”), elected to proceed with this civil rights action by filing a motion for leave to proceed in forma pauperis, his Prisoner Trust Fund Account Statement, and a motion to appoint counsel. (Doc. 4; Doc. 5; Doc. 6). On July 15, 2022, the Court denied Parada's motion to appoint counsel. (Doc. 7). On July 18, 2022, the Court granted Parada's motion for leave to proceed in forma pauperis and directed the Clerk's Office to serve the complaint. (Doc. 8). The Clerk's Office issued summons to Defendants on the same day. (Doc. 9).
On July 7, 2023, Defendants filed a motion to dismiss and for summary judgment, as well as a brief in support of the motion and a statement of material facts. (Doc. 17; Doc. 18; Doc. 19). Therein, Defendants argue that: (1) Parada's Bivens claims for monetary damages against Defendants in their official capacity are barred by sovereign immunity; (2) Parada failed to satisfy the FTCA's jurisdictional tort claim requirement of 28 U.S.C. § 2401(b); (3) Parada's claims for compensatory damages based on mental or emotional injury fail under U.S.C. § 1997(e) because Parada does not allege a physical injury; (4) Defendants are entitled to judgment on the Bivens claims because Parada has failed to exhaust administrative remedies; (5) the Court should dismiss J. Meyers' as a Defendant for lack of personal involvement; (6) Parada's claims for injunctive relief fail because inmates are not entitled to a particular security or custody classification or to be placed in the institution of their choosing; and (7) the Court should dismiss the complaint because inmate Bran lacks standing to bring this lawsuit on Parada's behalf and cannot serve as his layman representative. (Doc. 19, at 4-5).
Parada has not responded to this motion. The time for Parada to respond to these motions has passed. See L.R. 7.6 (“Any party opposing any motion, other than a motion for summary judgment, shall file a brief in opposition within fourteen (14) days after service of the movant's brief . . . A brief in opposition to a motion for summary judgment and LR 56.1 responsive statement, together with any transcripts, affidavits or other relevant documentation, shall be filed within twenty-one (21) days after service of the movant's brief.”); see also Fed.R.Civ.P. 6(a), (d). On September 20, 2023, this Court filed an order directing Parada to file his brief in opposition and responsive statement of material facts to the Defendants' motion to dismiss and for summary judgment (Doc. 17) on or before Wednesday, October 4, 2023. (Doc. 20). Because Parada did not timely file an opposition brief and/or statement of material facts, Parada is deemed not to oppose the motion to dismiss and for summary judgment. See L.R. 7.6. For the reasons provided herein, the undersigned respectively recommends that Defendants' motion to dismiss and motion for summary judgment be granted. (Doc. 17).
II. STATEMENT OF UNDISPUTED MATERIAL FACTS
Parada is a federal inmate who arrived at the USP Lewisburg on March 8, 2022. (Doc. 18, ¶ 1; Doc. 18-1, at 2). He was transferred from United States Penitentiary Canaan. (Doc. 18, ¶ 1; Doc. 18-1, at 9). He is serving a 480-month sentence imposed by the United States District Court for the Southern District of Ohio for racketeering. (Doc. 18, ¶ 1; Doc. 18-1, at 2). The BOP's computerized record system shows Parada has filed three administrative remedies during his federal imprisonment. (Doc. 18, ¶ 2; Doc. 18-1, at 11). Parada filed Remedy 1127292-F1 on July 20, 2022, which alleges “discrimination and restrictive housing.” (Doc. 18, ¶ 3; Doc. 18-1, at 12). Remedy 1127292-F1 was rejected for failing to first attempt an informal resolution. (Doc. 18, ¶ 4; Doc. 18-1, at 12). Parada next filed Remedy 1136668-F1 on October 11, 2022, alleging “illegal STG assignment.” (Doc. 18, ¶ 5; Doc. 181, at 12). Remedy 1136668-FI was rejected as illegible. (Doc. 18, ¶ 6; Doc. 18-1, at 12). Parada was given an opportunity to re-file within five days. (Doc. 18, ¶ 6; Doc. 18-1, at 12). Last, on May 1, 2023, Parada filed Remedy 1159855-FI appealing phone call monitoring and requesting mail. (Doc. 18, ¶ 7; Doc. 18-1, at 13). Remedy 1159855-FI was denied the day after it was filed. (Doc. 18, ¶ 8; Doc. 18-1, at 13). Parada failed to file any administrative remedies through all levels of the remedy process as required. (Doc. 18, ¶ 9; Doc. 18-1, at 23, 12-13). The BOP maintains a computerized database of all administrative claims filed pursuant to FTAC. (Doc. 18, ¶ 10; Doc. 18-1, at 3). This computer program is called Content Manager. (Doc. 18, ¶ 10; Doc. 18-1, at 3). Content Manager reveals Parada has not filed any administrative tort claims. (Doc. 18, ¶ 11; Doc. 18-1, at 3).
III. LEGAL STANDARDS
A. UNOPPOSED MOTION
Pursuant to Rule 7.6 of the Local Rules of Court for the Middle District of pennsylvania, a party who fails to submit a brief opposing a motion is deemed not to oppose the motion. The Court of Appeals for the Third Circuit has held that dismissal of a case for failure to comply with a local rule is a “drastic sanction” which should, with few exceptions, follow a merits analysis. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); see also Shuey v. Schwab, 350 Fed.Appx. 630, 632-33 (3d Cir. 2009) (not precedential). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Further, a plaintiff's failure to respond “is not alone a sufficient basis for the entry of a summary judgment.” Anchorage Assocs. v. V. I. Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). The Court must still determine, even for an unopposed summary judgment motion, whether the motion for summary judgment has been properly made and supported and whether granting summary judgment is appropriate. Anchorage Assocs., 922 F.2d at 175.
In this case, Parada has failed to submit any opposition to Defendants' motion for summary judgment. Therefore, the motion will be deemed unopposed. (Doc. 17). Moreover, because Parada has failed to file a separate statement of material facts controverting the statement filed by Defendants, all materials set forth in Defendants' statement of material facts will be deemed admitted pursuant to Local Rule 56.1. (Doc. 18). Although Parada is deemed not to have opposed this pending dispositive motion, the Court must nevertheless satisfy itself that Defendants have met their burden of production and therefore are entitled to summary judgment as a matter of law. See Lorenzo v. Griffith, 12 F.3d 23, 38 (3d Cir. 1993); Anchorage Assocs., 922 F.2d at 174-75.
B. MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions which are not entitled to the assumption of truth, and finally determine whether the complaint's factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). in deciding a Rule 12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.s. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff must provide some factual ground for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Thus, courts “need not credit a complaint's ‘bald assertions' or ‘legal conclusions' ....” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen .Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK MetalsCorp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in the complaint, and any reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). The plausibility determination is context-specific and does not impose a heightened pleading requirement. Schuchardt, 839 F.3d at 347.
With the aforementioned standards in mind, a document filed pro se is “to be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however in artfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Graysonv. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
A. MOTION FOR SUMMARY JUDGMENT
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “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). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 u.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 Fed.Appx. 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); Nat'l Labor Rel. Bd. v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff's] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant's burden of proof on summary judgment.”).
IV. DISCUSSION
A. SOVEREIGN IMMUNITY
A Bivens civil rights action asserted under 28 U.S.C. § 1331 is evaluated using the same standards applicable to a 42 U.S.C. § 1983 civil rights action. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D. Pa. 1992). To state a claim under Bivens, a plaintiff must allege that he was deprived of a federal right by a person acting under color of federal law. See Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992). As a sovereign, the United States is immune from suit unless it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)); see FDIC v. Meyer, 510 U.S. 471, 483 (1994). Its consent to be sued must be “unequivocally expressed,” and the terms of such consent define the court's subject matter jurisdiction. Sherwood, 312 U.S. at 586 (quotations omitted). Sovereign immunity extends to individual officers acting in their official capacities, absent an explicit waiver. See Treasurer of N.J. v. U.S. Dep't of Treasury, 684 F.3d 382, 395 (3d Cir. 2012). “Bivens, however, does not waive sovereign immunity with respect to claims brought against federal employees sued in their official capacities.” Gomez v. Cullen, No. 1:20-CV-01637, 2021 WL 2312779, at *8 (M.D. Pa. June 7, 2021), aff'd, No. 21-2776, 2022 WL 1183713 (3d Cir. Apr. 21, 2022) (citation omitted). Specifically, the Third Circuit has concluded that “[t]he United States, FBOP, and the individual FBOP employees in their official capacity . . . are barred from suit by the doctrine of sovereign immunity.” Perez-Barron v. United States, 480 Fed.Appx. 688, 691 (3d Cir. 2012) (citing Meyer, 510 U.S. at 486; Chinchello v. Fenton, 805 F.2d 126, 130 n.4 (3d Cir. 1986)). The Defendants in this case consist of the United States and BOP employees. (Doc. 1). This considered, Parada's official capacity claims against Defendants are subject to dismissal because they are barred sovereign immunity. See Brooks v. Bledsoe, 682 Fed.Appx. 164, 169 (3d Cir. 2017). Accordingly, it is recommended that Parada's Bivens claims against Defendants in their official capacity be dismissed with prejudice.
B. FTCA CLAIMS
Moving to dismiss the complaint, Defendants assert the Court lacks lack of jurisdiction over Parada's FTCA claims because he failed to satisfy the requirement set forth in 28 U.S.C. § 2401(b), which provides that a claimant must: (1) file an administrative claim within two years of the tort; and (2) the FTCA lawsuit must be initiated within six months of the federal agency's denial of the administrative claim. (Doc. 19, at 6) (citing Doe v. United States, 842 Fed.Appx. 719, 721 (3d Cir. 2021)).
An FTCA action may not be instituted against the United States “unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). The claimant “must file an administrative claim within two years of the tort; and second, the FTCA lawsuit must be initiated within six months of the federal agency's denial of the administrative claim.” Doe, 842 Fed.Appx. at 721 (citing 28 U.S.C. § 2401(b)). “Both conditions must be met for the FTCA action to be viable.” Doe, 842 Fed.Appx. at 721; see Sconiers v. United States, 896 F.3d 595, 598 (3d Cir. 2018) (noting that the FTCA constitutes a waiver of sovereign immunity, and the statutory requirements are strictly construed).
In support of the motion to dismiss, Defendants provided evidence showing that Parada never submitted an administrative tort claim to the BOP for any claims alleged in the instant complaint, which pertain to USP Lewisburg. (Doc. 18, ¶ 11; Doc. 18-1, at 3; Doc. 19, at 6). Parada has not responded to Defendants' motion. Nothing in the record before the Court suggests that Parada ever submitted an administrative tort claim to a federal agency regarding his confinement at or transfer to USP Lewisburg. Parada, therefore, has not refuted the defense that he failed to properly exhaust his FTCA claims prior to filing suit in this Court. Accordingly, because the FTCA requires strict compliance with the statutory requirements prior to the initiation of an action in federal court, and this Court cannot excuse compliance with those requirements, it is recommended that Defendants' motion be granted on the basis that this court lacks jurisdiction to hear Parada's FTAC claims. See Holton v. United States, No. 4:22-CV-0070, 2023 WL 6787436, at *8 (M.D. Pa. Aug. 31, 2023), report and recommendation adopted, No. CV 4:22-70, 2023 WL 6214027 (M.D. Pa. Sept. 25, 2023) (dismissing FTAC claims where plaintiff had failed to exhaust stating the court did not have jurisdiction to hear the claims).
C. COMPENSATORY DAMAGES
Defendants assert Parada's claims for compensatory damages are barred by 42 U.S.C. § 1997e(e) because Parada alleges no physical injury. (Doc. 19, at 7). section 1997e(e) provides that “[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). More than a de minimis physical injury must be alleged as a predicate to allegations of mental or emotional injury. See Mitchellv. Horn, 318 F.3d 523, 536 (3d Cir. 2003). In Allah v. Al-Hafeez, 226 F.3d 247, 250 (3d Cir. 2000), the United states Court of Appeals for the Third Circuit recognized that where a plaintiff fails to allege actual injury, section 1997e(e) bars recovery of compensatory damages. However, the Court added that an inmate alleging a violation of his constitutional rights may still pursue the action to recover nominal and/or punitive damages even in the absence of compensable harm. See Allah, 226 F.3d at 250.
Because Parada did not allege a physical injury resulting from Defendants' alleged unlawful transfer of himself and other members of the MS-13 gang to USP Lewisburg in his complaint, he is not entitled to pursue compensatory damages on these claims. (Doc. 1); 42 U.S.C. § 1997e(e). Accordingly, it is recommended that Defendants' motion be granted as to Parada's claim for compensatory damages.
D. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Moving to dismiss the amended complaint, Defendants assert that Parada has failed to exhaust his administrative remedies prior to initiating this action. (Doc. 19, at 8-10). Defendants contend that while Parada did submit three administrative remedies, he failed to follow them through all levels of the appeal process, as required by the Prison Litigation Reform Act (“PRLA”), 42 U.S.C. § 1997(e). (Doc. 19, at 9-10).
Pursuant to the PLRA, a prisoner must pursue all available avenues of relief through the applicable grievance system before initiating a federal civil rights action. See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). section 1997e provides, in relevant part, that “[n]o action shall be brought with respect to prison conditions under [s]ection 1983 of this title, or any other [f]ederal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at 742 (holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”).
The Third Circuit has further provided that there is no futility exception to Section 1997e's exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts have typically required across-the-board exhaustion by inmates seeking to pursue claims in federal court. See Nyhuis, 204 F.3d at 75-76. Additionally, courts have interpreted this exhaustion requirement as including a procedural default component, holding that inmates must fully satisfy the administrative requirements of the inmate grievance process before proceeding with a claim in federal court. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); see also Oriakhi v. United States, 165 Fed.Appx. 991, 993 (3d Cir. 2006) (providing that “there appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court”). Courts have also concluded that inmates who fail to complete the prison grievance process in a full and timely manner are barred from subsequently litigating claims in federal court. See, e.g.,Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bollav. Strickland, 304 Fed.Appx. 22 (3d Cir. 2008).
This broad rule favoring full exhaustion allows for a narrowly defined exception; if the actions of prison officials directly caused the inmate's procedural default as to a grievance, the inmate will not be required to comply strictly with this exhaustion requirement. See Campv. Brennan, 219 F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires.” See Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will be excused only “under certain limited circumstances,” see Harris v. Armstrong, 149 F. App'x 58, 59 (3d Cir. 2005), and an inmate may defeat a claim of failure to exhaust only by showing “he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate.” See Warman, 49 Fed.Appx. at 368.
“In the absence of competent proof that an inmate was misled by corrections officials, or some other extraordinary circumstances warranting a departure from strict compliance with the exhaustion requirement, courts frequently reject inmate requests for their failure to exhaust to be excused.” Rodney X. v. United States, No. 1:18-CV-00903, 2021 WL 4844010, at *7 (M.D. Pa. Oct. 18, 2021). An inmate, therefore, may not excuse a failure to comply with these grievance procedures in a timely manner by simply claiming that his efforts constituted “substantial compliance” with this statutory exhaustion requirement. See Harris, 149 Fed.Appx. at 59. Furthermore, an inmate may not avoid this exhaustion requirement by merely alleging that the administrative policies were not clearly explained to him. See Warman, 49 Fed.Appx. at 368. Consequently, an inmate's confusion regarding these grievance procedures does not, alone, excuse a failure to exhaust. See Casey v. Smith, 71 Fed.Appx. 916 (3d Cir. 2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ‘ignorance of the law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.'” (citations omitted)). Moreover, an inmate cannot cite to alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it also appears that the prisoner did not pursue a proper grievance once those impediments were removed. Oliver v. Moore, 145 Fed.Appx. 731 (3d Cir. 2005) (failure to exhaust not excused if, after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on grievance).
The Supreme Court has considered what renders administrative remedies unavailable to an inmate such that a failure to exhaust may be excused. SeeRoss v. Blake, 136 S.Ct. 1850 (2016). The Court noted, “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” See Ross, 136 S.Ct. at 1859. First, an administrative procedure is not available “when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.” See Ross, 136 S.Ct. at 1859. Second, a procedure is not available when it is “so opaque that it becomes, practically speaking, incapable of use.” See Ross, 136 S.Ct. at 1859. Finally, a procedure is unavailable when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misinterpretation, or intimidation.” See Ross, 136 S.Ct. at 1860. However, “once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third Circuit recently established that:
to defeat a failure-to-exhaust defense based on a misrepresentation by prison staff, an inmate must show (1) that the misrepresentation is one which a reasonable inmate would be entitled to rely on and sufficiently misleading to interfere with a reasonable inmate's use of the grievance process, and (2) that the inmate was actually misled by the misrepresentation.See Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).
In this case, Defendants explain:
The BOP has a multi-tiered administrative process for an inmate to seek review of any aspect of his confinement. An inmate must initially attempt informal resolution of the matter. 28 C.F.R. § 542.13(a). If informal resolution fails, the inmate may then present the issue to the warden (the institution) within 20 days of the events giving rise to the complaint. 28 C.F.R. § 542.14. If dissatisfied with the warden's response, the inmate may appeal to the Regional Office within 20 days. 28 C.F.R. §542.15(a). If dissatisfied with the Regional Office's response, the inmate may appeal to the Central Office within 30 days. 28 C.F.R. § 5 42.15(a). An appeal to the Central Office is the final administrative appeal. 28 C.F.R. § 5 42.15(a).(Doc. 19, at 9).
The exhaustion requirement is an affirmative defense to be pleaded by Defendants. A prisoner-plaintiff need not plead and prove compliance with the exhaustion requirement in his complaint. Jones v. Bock, 549 U.S. 199, 216 (2007); Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). As the Third Circuit Court of Appeals stated, inmates “need only exhaust such administrative remedies as ‘are available,'” Camp, 219 F.3d at 281 (quoting 42 U.S.C. § 1997e(a)), and “[a]ffirmative misconduct by prison officials designed to impede or prevent an inmate's attempts to exhaust may render administrative remedies unavailable.” Beaton v.Tennis, No. 07-1526, 2010 WL 2696857, at *3 (M.D. Pa. May 10, 2010).
Parada has failed to contest Defendants' motion for summary judgment due to Parada's failure to exhaust administrative remedies, to provide evidence of exhaustion, or otherwise argue administrative remedies were unavailable to him. Accordingly, because the PLRA requires full and proper exhaustion prior to the initiation of Parada's claims in federal court, and the Court cannot excuse compliance with those requirements, it is recommended that Defendants' motion be granted on the basis that Parada failed to properly exhaust his administrative remedies with respect to his Bivens claims.
E. INJUNCTIVE RELIEF
Defendants move to dismiss Parada's claim for injunctive relief, arguing that Parada has no right to any particular security classification or to be placed in any particular prison. (Doc. 18, at 7-8). An inmate does not have a liberty interest in assignment to a particular institution or security classification, so long as the conditions and degree of the inmate's confinement fall within the sentence imposed and do not otherwise violate the Constitution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montayne v. Haymes, 427 U.S. 236, 243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (noting classification and eligibility for rehabilitative programs in federal prison system are matters delegated by Congress to “full discretion” of federal prison officials and thus implicate “no legitimate statutory or constitutional entitlement sufficient to invoke due process”); see also Sandin v. Connor, 515 U.S. 472, 484-86 (1995) (holding that liberty interest is implicated only where action creates “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” or creates “major disruption in his environment”); Marti v. Nash, 227 Fed.Appx. 148, 150 (3d Cir. 2007) (inmate has no due process right to any particular security classification); Day v. Nash, 191 Fed.Appx. 137, 139-40 (3d Cir. 2006) (upholding application of public safety factor to inmate's custody classification which prevented inmate's placement in a minimum security camp). Furthermore, the placement of prisoners within the federal prison system is among the “wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum, 427 U.S. at 225.
Parada does not have a constitutional right to any particular security classification or right to the housing facility of his choice. See Wilkinson v. Austin, 125 S.Ct. 2384, 2393 (2005) (stating that the Constitution does not give rise to a liberty interest in avoiding transfers to more adverse conditions of confinement); Marti, 227 Fed.Appx. at 150 (an inmate cannot challenge a “Greatest Severity” PSF assignment because “no due process right[ ] to any particular security classification” exists) (citing Moody, 429 U.S. at 88 n.9). To the extent that Parada claims his confinement in the special housing units at USP Lewisburg violated his constitutional rights by subjecting him to harsher conditions of confinement, he has failed to establish a violation of his constitutional rights. See Mundo-Violante v. Warden Loretto FCI, 654 Fed.Appx. 49, 51 (3d Cir. 2016) (“neither BOP policy nor the Due Process Clause gives a prisoner a liberty interest in a particular housing location or custody level while under the jurisdiction of correctional authorities”) (citations omitted). Parada's placement was within the BOP's broad discretion with respect to internal operating decisions that served to preserve the order, security, and discipline within the prison facility. Therefore, Parada's request for injunctive relief in the form of a transfer to a general-population prison fails as it appears to be an attempt to usurp the BOP's broad discretion to manage its inmate population.
Accordingly, it is recommended that Defendants' motion to dismiss be granted and Parada's request for injunctive relief be denied.
F. PERSONAL INVOLVEMENT
Defendants argue Parada has failed to allege the personal involvement of J. Meyers in the alleged Bivens claims. (Doc. 19, at 10-11). Liability in a Bivens action is personal in nature, and to be liable, a defendant must have been personally involved in the wrongful conduct. In other words, defendants are “liable only for their own unconstitutional conduct.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds sub nom. Taylor v.Barkes, 135 S.Ct. 2042 (2015). And so respondeat superior cannot form the basis of liability. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). Thus, a constitutional deprivation cannot be premised merely on the fact that the defendant was a prison supervisor when the incidents set forth in the complaint occurred. See Alexander v. Forr, 297 Fed.Appx. 102, 104-05 (3d Cir. 2008). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The Third Circuit has “recognized that ‘there are two theories of supervisory liability, one under which supervisors can be liable if they established and maintained a policy, practice or custom which directly caused the constitutional harm, and another under which they can be liable if they participated in violating plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of and acquiesced in their subordinates' violations.'” Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)).
“Where a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the fact finder may usually infer that the supervisor ‘acquiesced' in (i.e., tacitly assented to or accepted) the subordinate's conduct.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) (footnote omitted), abrogated on other grounds,Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). “A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct.” Chavarriaga v. New Jersey Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
To set forth a claim for supervisory liability under the policy and practice strand of supervisory liability, an inmate must
(1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling's violation resulted from the supervisor's failure to employ that supervisory practice or procedure.
Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)).“Put another way, the inmate must identify the supervisor's specific acts or omissions demonstrating the supervisor's deliberate indifference to the inmate's risk of injury and must establish a link between the supervisor, the act, and the injury.” Chavarriaga, 806 F.3d at 227.
Throughout his amended complaint, Parada does not allege any facts that connect J. Meyers with the alleged constitutional violations. (Doc. 1) Parada also fails to allege facts describing J. Meyers's involvement within this lawsuit. (Doc. 1). Without any mention J. Meyer's personal involvement, Parada's complaint fails to state a Bivens claim upon which relief can be granted against J. Meyers. (Doc. 1). Accordingly, it is recommended that Plaintiff's Bivens claims against J. Meyers be dismissed for lack of personal involvement. See Richardson v. Fed. Bureau of Investigation, No. 3:22-CV-00434, 2023 WL 4397433, at *5-6 (M.D. Pa. June 8, 2023), report and recommendation adopted, No. 3:22-CV-434, 2023 WL 4374405 (M.D. Pa. July 6, 2023) (dismissing Bivens claims because plaintiff failed to allege personal involvement).
G. STANDING
Lastly, Defendants move to dismiss the complaint because inmate Jose Bran lacks standing to bring claims on Parada's behalf or to serve as his layman representative. (Doc. 19, at 13-14). In relevant part, the complaint identifies the plaintiff as “MS-13 inmates/Bran, Jose #80679-083.” (Doc. 1, at 1). The complaint also makes several averments specific to inmate Bran, not Parada, and discusses Bran's attempts to exhaust administrative remedies and FTCA tort claim procedures, alleged fraudulent COVID-19 tests upon his arrival at USP Lewisburg, and tampering with his mail, a failure to treat Bran for high cholesterol and for hot temperatures at USP Lewisburg, which caused Bran to experience heat rashes and dry, cracked feet. (Doc. 1, at 5, 8). Moving to dismiss the complaint, Defendants argue that Bran lacks standing to bring a lawsuit on Parada's behalf or to serve as his layman attorney. (Doc. 18, at 9).
“[T]he prudential rules of standing are judicially created doctrines based on policy judgments about the proper role of the courts.” Williams v. Clark, No. CV 3:19-1083, 2021 WL 1430443, at *3 (M.D. Pa. Apr. 15, 2021). “One such rule is that a litigant ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'” Williams, 2021 WL 1430443, at *3 (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)). In view of this rule, “courts have held consistently that an inmate does not have standing to sue on behalf of his fellow prisoners.” Williams, 2021 WL 1430443, at *3 (citing Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981) (collecting cases)).
To the extent Bran is attempting to act as the representative of other MS-13 inmates at USP Lewisburg as a class, “[p]ro se litigants are generally not appropriate as class representatives.” See Hagan v. Rogers, 570 F.3d 146, 158-59 (3d Cir. 2009) (citation omitted). The Third Circuit has explained that “it is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.” Lewis v. City of Trenton Police Dep't, 175 Fed.Appx. 552, 554 (3d Cir. 2006) (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975)). Even though Parada may represent himself as a pro se litigant in this action, Bran may not pursue claims on Parada's behalf. Aside from Bran's assertions, Parada pleads no facts showing he himself has been injured as a result of the alleged conduct. (Doc. 1). Accordingly, it is recommended that Defendants' motion to dismiss be granted and the complaint be dismissed without prejudice for lack of standing. See Moz-Aguilar v. United States, No. 3:22-CV-00804, 2023 WL 4753767, at *6 (M.D. Pa. June 21, 2023), report and recommendation adopted, No. 3:22-CV-804, 2023 WL 4748185 (M.D. Pa. July 25, 2023).
V. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to amend.'” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 Fed.Appx. 672, 673 (3d Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)).
Keeping in mind that a document filed pro se is “to be liberally construed,” leave to amend would be futile in this case. Because the undersigned recommends dismissal of Parada's claims because they are plagued with jurisdictional issues and barred by sovereign immunity, curative amendment would be futile. See Agedah v. U.S. Dep't of Homeland Sec., No. 3:20-CV-00868, 2021 WL 6845247 (M.D. Pa. Dec. 20, 2021), report and recommendation adopted, No. 3:20-CV-868, 2022 WL 386093 (M.D. Pa. Feb. 8, 2022) (denying leave to amend where claims were dismissed for lack of jurisdiction); see also Donahue v. Superior Ct. of Pennsylvania, No. 3:18-CV-01531, 2019 WL 923786, at *13 (M.D. Pa. Jan. 24, 2019), report and recommendation adopted, No. CV 3:18-1531, 2019 WL 913812 (M.D. Pa. Feb. 25, 2019) (denying leave to amend where claims were barred by immunity). Additionally, Parada's remaining allegations give rise to no valid claim. See Mawson v. Lecadre, No. 3:21-CV-01443, 2021 WL 7907232, at *3 (M.D. Pa. Aug. 26, 2021), report and recommendation adopted, No. 3:21-CV-1443, 2022 WL 992958 (M.D. Pa. Apr. 1, 2022) (denying plaintiff leave to amend because their allegations gave “rise to no valid claim”). It is recommended that leave to amend not be provided in this case.
VI. RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss and for summary judgment be GRANTED and leave to amend be DENIED. (Doc. 17). In addition, it is recommended that the Clerk of Court be directed to CLOSE this action.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated January 29, 2024. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.