Gedeon v. Attorney Gen.

1

PASCAL GEDEON, Plaintiff v. THE ATTORNEY GENERAL, et al., Defendants

Civil Action No. 22-CV-3595

United States District Court, E.D. Pennsylvania

October 12, 2022

MEMORANDUM

GENE E.K. PRATTER, J.

Pascal Gedeon, a pretrial detainee^[1] in custody at the Federal Detention Center Philadelphia ("FDCP"), has filed this civil rights action asserting claims against the Bureau of Prisons, FDCP, officials of the United States Department of Justice and various officials employed at FDCP.^[2] Mr. Gedeon also filed a Motion to Proceed In Forma Pauperis. For the following reasons, the Motion to Proceed In Forma Pauperis will be granted certain claims will be dismissed with prejudice and the balance of Mr. Gedeon's claims will be dismissed without prejudice.

I.FACTUAL ALLEGATIONS

Mr Gedeon asserts that he has been detained at FDCP since May 25,2021 where he has been requesting unspecified medical treatment but has been told there is nothing wrong with him (Compl. (ECF No. 2) at 2.)^[3] He states that he has experienced headaches, palpitation, shortness of breath, bloating sleepiness even after sleeping 12 hours, chest pain dizziness, constant nasal congestion, and he has lost consciousness. (Id.)

Unrelatedly, he asserts that on January 25, 2022, he was "locked in the yard" when it was cold. He complained to Defendant Ms. Freeman who allegedly became angry and pressed her body alarm "to send me to the SHU." (Id.) It appears that at some point during Mr. Gedeon's interaction with Ms. Freeman, he broke a window to "[e]scape from the cold." (Id. at 3.) Freeman prepared an incident report claiming she told Mr. Gedeon to wait while she tried to get help, and falsely stated she gave him an order to stop banging on the window after hearing him do so, and that Mr. Gedeon ignored her. (Id. at 2.) According to Mr. Gedeon, this is the second time Freeman locked inmates in the yard during cold weather. (Id.) Ms. Freeman allegedly took all of Mr. Gedeon's property when he was sent to the SHU and, when he returned to his usual cell, several items were missing. (Id. at 2-3.)

At the healing for disciplinary charges for refusing to obey an order and destroying property over $100, Mr. Gedeon claims the witnesses he identified to testify about Ms. Freeman's acts were not provided. (Id. at 3-4.) Defendant Officer Valentine, who appears to be the Disciplinary Hearing Officer ("DHO") who conducted the hearing,^[4] allegedly "modified" his statements and "made it seem as [Mr. Gedeon] was not providing any relevant defense." (Id. at 3.) When Officer Valentine allegedly realized that Ms. Freeman had made a false statement, "he excused by finding it 'too repetitive'" and did not report the false statement. (Id.) Mr. Gedeon asserts he was denied the right to present a "necessity" defense to the disciplinary charges, which he alleges "allow[s] breaking the law when there is no reasonable alternative." (Id.) As a result of being found guilty of the charges, Mr. Gedeon was denied access to the prison commissary for 90 days and could not buy a new comb and hair ties, which he claims are "basic necessities of [a] black inmate with long, natural, kinky hair."^[5] (Id.)

On the first day he was housed in the SHU, a female staff member asked him "why I broke the window" - apparently a reference to conduct reported by Ms. Freeman that resulted in Mr. Gedeon's disciplinary charge. (Id.) Mr, Gedeon concedes that he told the staff member that it is against his rights to be detained in cold conditions and he was trying "to get Ms. Freeman on the matter [but] all she did was send[] me to the SHU before she relized [sic] the window was broken." (Id.) A different unidentified staff member allegedly then told Mr. Gedeon "you think we violated your rights, more violation is about to happen here (in the SHU)." (Id. (parenthetical in original).) Once he was assigned to a cell in the SHU, an unidentified staff member refused him food stating that he had been offered and refused food earlier, which was allegedly untrue. (Id.) The same officer showed him two mattresses and then given the thinner of the two. (Id.) Mi'. Gedeon contends he was denied access to his defense counsel for about six weeks, his requests to use the law library were denied, and a computer used to view discovery in his criminal case had not been working for a month. (Id.) He claims he is assigned to a cell without a sink and has to wash and brush his teeth over the toilet, he is not allowed out of his cell for long periods, and has no water to drink, (Id.)

Attached to the Complaint is the incident report signed by Defendant Freeman charging Mr. Gedeon with destruction of property in which she asserted that Mr. Gedeon broke a window. (Id. at 4.)^[6] The report of DHO Valentine, also attached to the Complaint, recites that Mr. Gedeon received written notice of the charge on January 25,2022, the date of the incident, and a hearing was conducted on February 16,2022, at which Mr. Gedeon requested the help of a staff representative. (Id. at 5,) Non-defendant Dr. Daniels appeared as his representative and stated she had the opportunity to review video evidence, which was also reviewed by DHO Valentine, and she had the opportunity to speak with Mr. Gedeon prior to the hearing, (Id.) She reported that Mr. Gedeon opted to speak on his own behalf at the hearing. (Id.) Mr, Gedeon testified that Ms, Freeman never gave him an order to stop, and stated he was knocking on the window because he was cold. (Id.) His statement was found to lack credibility based on the video evidence and he was found guilty of the charge. (Id. at 6.) Mr. Gedeon seeks money damages for his claims.^[7]

II. STANDARD OF REVIEW

Mr. Gedeon is granted leave to proceed in forma pauperis.^[8] Accordingly, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the Court to dismiss the complaint if it fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quotations omitted). "At this early stage of the litigation,' '[the Court will] accept the facts alleged in [the pro se] complaint as true,' 'draw[] all reasonable inferences in [the plaintiffs] favor,' and 'ask only whether [that] complaint, liberally construed,... contains facts sufficient to state a plausible [] claim." Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. Because Mr. Gedeon is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

Mr. Gedeon asserts claims for violation of his civil rights by federal officials. The basis for federal actor liability for constitutional claims is the United States Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392 (1971) (holding that a remedy is available for a federal agent's violation of a citizen's Fourth Amendment right to be free from warrantless searches and seizures); Corr, Servs, Corp. v. Malesko, 534 U.S. 61, 70 (2001) (stating that the "purpose of Bivens is to deter individual federal officers from committing constitutional violations" by subjecting them to personal liability). However, the availability of Bivens as a cause of action is limited and "the Supreme Court has plainly counseled against creating new Bivens causes of action." Vanderklok v. United States, 868 F.3d 189,199 n.8 (3d Cir. 2017) (citing Minneci v. Pollard, 565 U.S. 118 (2012) (refusing to extend Eighth Amendment Bivens action to individuals working at a private prison); FDIC v. Meyer, 510 U.S. 471 (1994) (refusing to extend Bivens claim to federal agency defendant); see also Hernandez v. Mesa, 140 S.Ct. 735,742-43 (2020) (stating that the "expansion of Bivens is a disfavored judicial activity," that "it is doubtful" that the outcome of Bivens would be the same if it were decided today, and that "for almost 40 years, [the Supreme Court] ha[s] consistently rebuffed requests to add to the claims allowed under Bivens" Id. at 472-73 (internal quotations marks and citations omitted)).

Since the 1971 Bivens decision, the Supreme Court "has repeatedly refused to extend Bivens actions beyond the specific clauses of the specific amendments [of the Constitution] for which a cause of action has already been implied, or even to other classes of defendants facing liability under those same clauses." Vanderklok, 868 F.3d at 200. The Supreme Court has recognized an implied private action against federal officials in only three cases: (1) Bivens itself- "a claim against FBI agents for handcuffing a man in his own home without a warrant" under the Fourth Amendment; (2) "a claim against a Congressman for firing his female secretary" under the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979); and, (3) "a claim against prison officials for failure to treat an inmate's asthma" under the Eighth Amendment, Carlson, 446 U.S. 14. But see also Shorter v. United States, 12 F.4th 366, 372 n.4 (3d Cir. 2021) (noting that the Supreme Court decision in Farmer v. Brennan, 511 U.S. 825, 830 (1994), involving a claim against federal prison officials who failed to keep a transgender prisoner safe from sexual assault, had also "recognized" a...