UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

KEITH JENNINGS, :

:

Plaintiff : No. 4:CV-03-2408

:

vs. : (Complaint Filed 12/30/03)

:

FEDERAL BUREAU OF PRISONS, : (Judge Muir)

et al., :

:

Defendants :

MEMORANDUM AND ORDER

September 2, 2005

Background

On December 30, 2003, Plaintiff, Keith Jennings, an inmate

presently confined in the Allenwood United States Penitentiary,

White Deer, Pennsylvania, (“USP-Allenwood”), filed the above

captioned action pursuant to the Federal Tort Claims Act

(“FTCA”), Bivens vs. Six Unknown Fed. Narcotics Agents, 403 U.S.

388 (1971), 42 U.S.C. §§ 1983, 1985 et seq., and Pennsylvania

state law. He alleges that defendants retaliated against him

for filing a Federal Tort Action against United States Marshals

in the United States District Court for the Northern District of

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1. On January 4, 2001, plaintiff served the United States

Marshals Service with an administrative tort claim in the

amount of $2,500,000,66 (sic) for personal injury arising out

of an alleged assault by two Deputy U.S. Marshals on January

4, 2000, after having been ordered out of the courtroom by the

judge presiding over his action. (Doc. No. 47, Ex. A). 

Plaintiff's administrative tort claim was never adjudicated. 

Id.

2

New York1 by restricting his telephone privileges. He names as

defendants, the United States; the Federal Bureau of Prisons

(“BOP); BOP Director Harvey Lappins; Assistant U.S. Attorney

John Katko; Assistant U.S. Attorney Charles Roberts; Former

Warden Jake Mendez; Warden Michael V. Pugh; Special

Investigative Agent J. Feeney; BOP Regional Director M.E. Ray;

and Unit Manager Noone. 

By Order dated February 12, 2004, this action was dismissed,

without prejudice, for plaintiff's failure to pay the filing

fee. (Doc. No. 9). On February 18, 2004, plaintiff filed a

motion for reconsideration of the Court's February 12, 2004,

Order. (Doc. No. 10). On March 8, 2004, plaintiff's motion for

reconsideration was granted and his case was reopened. (Doc.

No. 12). By Order dated March 17, 2004, the Court dismissed

plaintiff's FTCA claims against the individual defendants and

the Federal Bureau of Prisons, dismissed the respondeat superior

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3

claims contained in Count VII of the complaint, and directed

that plaintiff's action be served on the defendants. (Doc. No.

17). 

On July 23, 2004, Jennings filed an amended complaint in

which he sought to add the Director of the United States

Marshals Service and unknown U.S. Marshals as defendants to his

action. (Doc. No. 28). He also sought to add new claims

regarding these defendants. Id. 

On December 2, 2004, defendants filed a motion to dismiss

the claims raised in plaintiff's original complaint and his

amended complaint. (Doc. No. 42). On February 22, 2005, Jennings

filed a motion to voluntarily dismiss his amended complaint and

only proceed on those claims, and against those defendants,

named in his original complaint. (Doc. No. 53). The Court will

grant this motion. 

Presently before the Court is defendants' motion to dismiss

plaintiff's original complaint. This motion is fully briefed

and is ripe for disposition. For the reasons set forth below,

the Court will grant the defendants' motion to dismiss. 

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2. The statement of factual background is derived from the

complaint and the numerous documents submitted in support of

the complaint. (Doc Nos. 1,4). 

4

Statement of Facts2

On March 17, 1999, Jennings was convicted of the following:

(1) engaging as a supervisor or manager in a continuing criminal

enterprise (CCE), in violation of 18 U.S.C. §§ 841(a)(1), 846

and 853; (2) multiple counts of conspiring to distribute and

possession with intent to distribute cocaine, cocaine base and

marijuana in violation of 18 U.S.C. § 841(a)(1); and (3)

conspiracy to commit money laundering in violation of 18 U.S.C.

§ 841(a)(1); and (3) conspiracy to commit money laundering in

violation of 18 U.S.C. § 1956(a)(1)(A)(i). (Doc. No. 4

Affidavit of John M. Katko, Assistant United States Attorney,

attached as exhibit). Defendant, John Katko, was the Assistant

United States Attorney for the Northern District of New York,

who prosecuted Jennings. Id.

After Jennings was convicted, and while he was awaiting

sentencing, defendant Katko was advised by members of the United

States Marshals Service and other federal agents that Jennings

had repeatedly threatened to kill Katko. Id. The United States

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Attorney's Office also received information that Jennings had

made plans to escape. Based on these threats, the United States

Marshals Service arranged for Jennings to be transferred from

the Onondaga Count Justice Center in Syracuse, pending

sentencing, to the Federal Correctional Institution, Ray Brook,

New York, a more secure facility. Id. 

On March 20, 2000, Jennings was sentenced to life

imprisonment. Id. He was then committed to the custody of the

Bureau or Prisons. 

By Memorandum dated February 12, 2001, Jennings was notified

by Special Investigative Agent, J. Feeney, that his telephone

usage was limited to one telephone call per day. (Doc. No. 4,

Exhibit 1). On February 13, 2001, Jennings submitted an

Informal Resolution Form with his Unit Manager, challenging the

limited usage of the telephone and “requesting a copy of the

date and time that this miss used (sic) telephone conversation

take place, also a copy of the receiving party with a coy of

[plaintiff's] phone list.” (Doc. No. 4, Ex. 2). Plaintiff's

unit manager responded that:

“the Special Investigative Agent informed you of the

reason why you were placed on limited telephone

privileges. This is a result of you using the

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telephone to further criminal activity. You may

present any documentation on your behalf to the SIA for

further review of your current telephone restriction.”

(Doc. No. 4, Ex. 2). 

On February 14, 2001, plaintiff filed a Request for

Administrative Remedy with the Warden, challenging the telephone

restriction. (Doc. No. 4, Ex. 3). In a response dated March 8,

2001, Warden Mendez informed Jennings of the following:

“Due to the fact you used the telephone or phone like

communicating devices to conduct narcotic trafficking

extensively in the commission of your offense, you have

been placed on a telephone monitoring status. On

February 17, 2001, you received a memorandum stating

you are authorized to conduct one telephone call per

day.

This decision is based on information obtained through

your Presentence Investigation and not a review of a

pre-recorded telephone conversation conducted within

the United States Penitentiary (USP), Allenwood.

Therefore, your request to receive a copy, date and

time of the specific conversation where you misused the

telephone is not maintained by staff at USP-Allenwood.

With respect to your request for a copy of your

telephone list, you may contact your Unit Counselor and

request his through use of an Inmate Request to Staff

Member Form, 'Cop-Out'.

Accordingly, your Request for Administrative Remedy has

been denied. If you are not satisfied with this

response, you may appeal to the Regional Director

within 20 calendar days of this response.” 

(Doc. No. 4, Ex. 4). 

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 On March 11, 2001, Jennings filed a Regional Administrative

Remedy Appeal to the Regional Director. (Doc. No. 4, Ex. 5). 

In a response dated April 11, 2001, the Regional Director denied

Jennings' appeal, finding that:

Program Statement 5264.07, Telephone Regulations for

Inmates, and the implementing regulation at 28 C.F.R.

§ 540.100, authorize the Warden to make those

limitations to inmates telephone use as “are necessary

to ensure the security or good order, including

discipline, of the institution or to protect the

public.” The Program Statement also provides that “the

Warden shall permit an inmate who has not been

restricted from telephone use as the result of a

specific institutional disciplinary sanction to make at

least one telephone call each month.” Records indicate

your current offense is Continuing Criminal Enterprise,

Possession with Intent to Distribute Cocaine and

Cocaine Base and Money Laundering. Your records

further reveal you conducted financial transactions by

means of wire transfers and used wire communications to

conceal the trafficking of drugs. Based on this type

of offense, you have been appropriately limited to one

social telephone call per day. Ths limitation assists

staff in maintaining the security and good order of the

institution and to protect the public. 

A review of the notification memorandum you received

from the SIA revealed the wording on the notification

is inaccurate. The Warden properly advised you that

the telephone limitation was a result of your current

offense and information obtained in your Pre-sentence

Investigative report, not as a result of prison

telephone abuse. You will receive the correct

notification regarding your telephone limitation.

Accordingly, your appeal is denied. 

(Doc. No. 4, Ex. 7). 

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On April 19, 2001, Jennings filed a Central Office

Administrative Remedy Appeal to the General Counsel. (Doc. No.

4, Ex. 8). In a response dated June 19, 2001, Jennings' appeal

was denied. (Doc. No. 4, Ex. 9). 

Jennings then attempted a second challenge to the telephone

restriction, claiming that the restriction was unlawful because

it was issued by a Special Investigative Agent and that

according to 28 C.F.R. § 546.100, the Warden is the only

authority to suspend/restrict telephone privileges. (Doc. No.

4, Exs. 10-12). In a June 22, 2001, response to his Request for

Administrative Remedy, Warden Mendez, upheld the restriction,

but granted plaintiff's Request for Administrative Remedy, in

part, to the extent that the only authority to suspend/restrict

an inmate's telephone use is the Warden. (Doc. No. 4, Ex. 13).

Thus, Jennings' Request for Administrative Remedy was granted to

the extent that a new memo was to be issued to reflect the

Warden's authorization to restrict Jennings' telephone

privileges. Id. On June 21, 2002, the Warden issued a

memorandum limiting Jennings' telephone use to 120 minutes per

month. (Doc. No. 4, Ex. 14). 

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On October 25, 2002, Jennings again attempted to challenge

the telephone restriction, claiming that it was based on a 1999

Memorandum that stated that plaintiff made three way phone calls

to make threats against an Assistant United States Attorney

while incarcerated at the Onondaga County Justice, Center,

Syracuse, New York. (Doc. No. 4, Ex. 22). On November 1, 2002,

Jennings' Unit Manager responded to Jennings that there was “no

disclosure information in [his] central file pertaining to [his]

making a 3 way telephone call to make threats against a AUSA.”

(Doc. No. 4, Ex. 22). 

On November 1, 2002, plaintiff filed a Request for

Administrative Remedy, seeking to have the 1999 Memorandum

removed from his file, and his telephone privileges reinstated.

(Doc. No. 4, Ex. 24). Finding justification for the phone

restriction, independent of the 1999 Memorandum, plaintiff's

Request for Administrative Remedy and appeals of same were

denied. (Doc. No. 4, Exs. 25, 27). 

On August 22, 2003, Jennings filed an Request for

Administrative Remedy, claiming that the issuance of the 1999

Memorandum is a “conspiracy to retaliate against [him] without

due process or a disciplinary report filed in support of

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accusations that [he] threatened assistant U.S. Attorney

(Katko). (Doc. No. 4, Ex. 45). 

In a response dated September 17, 2003, Warden Pugh denied

Jennings' Request for Administrative Remedy, finding that:

A memorandum dated July 21, 1999, indicates that you

used a three-way telephone call to make threats to the

Assistant United States Attorney who prosecuted your

case. The United States Marshals Service has requested

that you have limited telephone usage and that all

calls be closely monitored. The United States

Attorneys Office, Northern District of New York was

contacted and verified the above information to be

accurate. Although no formal disciplinary action was

taken, you were transferred to the Federal Correctional

Institution in Ray Brook, New York, for security

reasons and to protect the Assistant United States

Attorney who prosecuted your case. Therefore, no

evidence exists that staff conspired to retaliate

against you. 

(Doc. No. 4, Ex. 46). 

On September 20, 2003, Jennings filed a Regional

Administrative Remedy Appeal with the Regional Director,

challenging the Warden's denial of his Administrative Remedy.

(Doc. No. 4, Ex. 47). In a response dated October 29, 2003,

Jennings' appeal was denied. The Regional Director found no

evidence of retaliation or conspiracy, as there was no

indication that the information received was erroneous and, that

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the Bureau has broad discretion to consider information in

making classification decisions. (Doc. No. 4, Ex. 48). 

On December 30, 2003, Jennings filed the instant action

pursuant to the Federal Tort Claims Act (“FTCA”); Bivens vs. Six

Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971); 42 U.S.C. §§

1983, 1985 et seq. and Pennsylvania state law. He seeks

compensatory and punitive damages for defendants' negligent and

conspiratorial acts of depriving him of his constitutional

rights, by limiting his telephone privileges. (Doc. No. 1). 

Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6),

courts generally consider only the allegations in the complaint,

exhibits attached to the complaint, matters of public record,

and documents that form the basis of a claim. See In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d

Cir.1997). All material allegations of the complaint must be

accepted by the Court as true and construed in favor of the

plaintiff. Allah vs. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000); Shaev vs. Saper, 320 F.3d 373, 375 (3d Cir. 2003).

Claims may be dismissed pursuant to a Rule 12(b)(6) motion only

if the plaintiff cannot demonstrate any set of facts that would

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entitle him to relief. Conley vs. Gibson, 355 U.S. 41, 45-46

(1957); Lum vs. Bank of America, 361 F.3d 217, 223 (3d Cir.

2004). However, the Court is not required to accept legal

conclusions, either alleged or inferred, from the pleaded facts.

Morse vs. Lower Merion School District, 132 F.3d 902, 906 (3d

Cir. 1997). In Nami vs. Fauver, 82 F.3d 63, 65 (3d Cir. 1996),

the Court of Appeals for the Third Circuit added that when

considering a motion to dismiss based on failure to state a

claim, a court should “not inquire whether the plaintiffs will

ultimately prevail, only whether they are entitled to offer

evidence to support their claims.” When an unrepresented party

is confronted by a motion to dismiss, the deciding court must be

mindful of the well-settled principle that pro se complaints

should be liberally construed, Haines vs. Kerner, 404 U.S. 519,

520 (1972), and that pro se litigants are to be granted leave to

file a curative amended complaint “even when a plaintiff does

not seek leave to amend,” unless such an amendment would be

inequitable or futile. Alston vs. Parker, 363 F.3d 229, 235 (3d

Cir. 2004). However, a complaint that sets forth facts which

affirmatively demonstrate that the plaintiff has no right to

recover is properly dismissed without leave to amend. Grayson

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vs. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002);

see also Estelle vs. Gamble, 429 U.S. 97, 107-108 (1976).

With these principles in mind the Court will address the

defendants' motion to dismiss. 

Discussion

A. Restricted Telephone Privileges

In accordance with BOP Program Statement 5264.07, Telephone

Regulations for Inmates, codified at 28 C.F.R. § 540.100(a):

The Bureau of Prisons extends telephone privileges to

inmates as part of its overall correctional management.

Telephone privileges are a supplemental means of

maintaining community and family ties that will

contribute to an inmate's personal development. An

inmate may request to call a person of his or her

choice outside the institution on a telephone provided

for that purpose. However, limitations and conditions

may be imposed upon an inmate's telephone privileges to

ensure that these are consistent with other aspects of

the Bureau's correctional management responsibilities.

In addition to the procedures set forth in this

subpart, inmate telephone use is subject to those

limitations which the Warden determines are necessary

to ensure the security or good order, including

discipline, of the institution or to protect the

public. Restrictions on inmate telephone use may also

be imposed as a disciplinary sanction (see 28 CFR part

541).

The only frequency requirement indicated by this regulation

is that an inmate who has not been restricted from telephone use

due to a discipline infraction be permitted “ to make at least

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one telephone call each month.” 28 C.F.R. § 540.100(b)(emphasis

added). 

The regulations also specify a Warden may not apply a

frequency limitation on the number of calls an inmate may place

to his attorney. However, the inmate must demonstrate other

means of communication with their attorney, i.e., correspondence

or visiting, are inadequate. See 28 C.F.R. § 540.103. In these

cases, the inmate must demonstrate a pressing legal need or

court deadline in order to receive an unmonitored “legal call.”

Nevertheless, “inmate telephone use is subject to those

limitations which the Warden determines are necessary to ensure

the security or good order, including discipline, of the

institution or to protect the public.” 28 C.F.R. § 540.100.

Because restriction of an inmate's use of telephones is wholly

within the discretion of BOP officials, Jennings' has no liberty

interest in having telephone privileges. See, e.g., Valdez vs.

Rosenbaum, 302 F.3d 1039 (9th Cir. 2002); Benzel vs. Grammar, 869

F.2d 1105, 1108(8th Cir.), cert denied, 493 U.S. 895 (1989)(an

inmate “has no right to unlimited telephone use”). 

Even if a prison regulation impinges on an inmate's

constitutional rights, the regulation is valid if it is

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nonetheless “reasonably related to legitimate penolgical

interests.” Turner vs. Safley, 482 U.S. 78, 89 (1987). In the

instant case, Jennings' telephone use was limited due to the

fact that he conducted financial transactions by means of wire

transfers and used wire communications to conceal the

trafficking of drugs and that he used a three-way telephone call

to make threats to the Assistant United States Attorney who

prosecuted his case. Thus, limiting Jennings' telephone

privileges was clearly reasonably related to legitimate

penological interests and, consequently, does not violate his

constitutional rights. 

Moreover, the restriction placed upon Jennings' telephone

privileges was wholly in accordance with BOP policy, which

permits an inmate's access to the telephone to be restricted if

necessary to ensure the institution's safety, security, or good

order, or to protect the public. Furthermore, plaintiff was

only restricted to one call per day, which is more than

consistent with 28 C.F.R. § 540.100(b), which permits the Warden

to limit an inmate who has not been restricted from telephone

use due to a discipline infraction be permitted “ to make at

least one telephone call each month.” 28 C.F.R. §

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540.100(b)(emphasis added). Finally, Jennings can show no

prejudice from the Warden's limitation on his telephone use. An

agency must comply with its own regulations, but a person

aggrieved by its failure to do so must at least show prejudice.

Lee Moi Chong. vs. INS, 264 F.3d 378, 390 (3d Cir. 2001). Here,

plaintiff cannot show any prejudice from the telephone

restriction. For instance, Plaintiff has not shown that his

phone limitation has caused him any interference with his access

to the courts. See Lewis vs. Casey, 518 U.S. 343, 349

(1996)(holding that an inmate alleging that a prison violated

his right to access the courts must show actual prejudice).

Thus, the plaintiff has not suffered a constitutional violation

as a result of the restriction, and the defendants' motion to

dismiss will be granted. 

B. Retaliation

To establish a Section 1983 retaliation claim, a plaintiff

bears the burden of satisfying three elements. First, a

plaintiff must prove that he was engaged in a constitutionally

protected activity. Rauser vs. Horn, 241 F.3d 330, 333 (2001).

Second, a prisoner must demonstrate that he “suffered some

‘adverse action’ at the hands of prison officials.” Id.

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(quoting Allah vs. Seiverling, 229 F.3d 220, 225 (3d Cir.

2000)). This requirement is satisfied upon showing that “the

action ‘was sufficient to deter a person of ordinary firmness

from exercising his First Amendment rights.’” Id. (quoting

Allah, 229 F.3d at 225). Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or

motivating factor’ in the decision to discipline him.” Id.

(quoting Mount Healthy Bd. of Educ. vs. Doyle, 429 U.S. 274, 287

(1977). Once a prisoner demonstrates that his exercise of a

constitutional right was a substantial or motivating factor in

the challenged decision, the prison officials may still prevail

by proving that they would have made the same decision absent

the protected conduct for reasons reasonably related to a

legitimate penological interest. Id. at 334.

Jennings alleges that as a result of his filing a January

4, 2001, administrative tort claim against the U.S. Marshals

Service, the named defendants in this action retaliated against

him by restricting his telephone privileges. (Doc. No. 1 at p.

4). 

Because Jennings cannot demonstrate that “his

constitutionally protected conduct was ‘a substantial or

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motivating factor’ in the decision to discipline him,” the Court

will assume the first two elements arguendo and will proceed

directly to the causation element.

Jennings' proof of causation depends solely on the close

temporal proximity between the filing of his administrative tort

claim and the limitation on his telephone privileges. Indeed,

temporal proximity can be evidence of causation. See Rauser,

241 F.3d at 334. Plaintiff's telephone privileges were limited

on February 12, 2001, more than one month after serving the U.S.

Marshals service with his tort claim. Such proximity, at best,

is tenuous to prove that the filing of the tort claim was a

motivating factor in defendants’ restricting plaintiff's

telephone privileges. 

 Moreover, the Court has already found that a legitimate

penological reason existed for restricting plaintiff's telephone

privileges. Jennings' conducted financial transactions by means

of wire transfers and used wire communications to conceal the

trafficking of drugs and he used a three-way telephone call to

make threats to the Assistant United States Attorney who

prosecuted his case. Thus, the complaint, and its many exhibits

attached thereto, are devoid of any evidence that draw into

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question the propriety or sincerity of defendants’ determination

to restrict Jennings' telephone privileges. Thus, even if

Jennings could prove causation, the voluminous documentation in

support of his complaint establish that defendants’ “would have

taken the same disciplinary action even in the absence of the

protected activity.” Rauser, 241 F.3d at 333. Thus,

defendants' motion to dismiss will be granted. 

C. FTCA Claim

The FTCA provides a cause of action against the United

States for common law torts. 28 U.S.C. § 2674. It establishes

that the United States, except in limited circumstances, can be

held liable for negligence to the same extent as a private

individual. Id.; United States vs. Muniz, 374 U.S. 150, 153

(1963). Included among cognizable claims under the FTCA are

claims by federal prisoners if they receive injuries by reason

of negligence of government employees. 28 U.S.C. § 1346(b);

Muniz, 374 U.S. at 150. Here, plaintiff does not state a cause

of action under the FTCA because the asserted prison regulation

and program statement do not create a legal right enforceable in

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3. The Court notes that even if plaintiff had pled a cause of

action under the FTCA, he has failed to exhaust his

administrative remedies prior to bringing suit in the district 

court. Under the FTCA, the district court's jurisdiction does

not take effect until there has been compliance with the

administrative claims provision of the FTCA. McNeil vs. United

States, 508 U.S. 106 (1993); Deutsch vs. United States, 67

F.3d 1080, 1091 (3d Cir. 1995). No where in the instant action

does plaintiff assert that he has exhausted his administrative

remedies. Because the FTCA bars claimants from bringing suit

in federal court until they have exhausted their

administrative remedies, and there is no evidence of record

that such administrative exhaustion has occurred, there exists

an alternative ground for granting defendant's motion to

dismiss.

20

an action for damages, and Jennings provides no other

substantive, viable source for his FTCA claim.3

The regulation at issue here, 28 C.F.R. § 540.100, relates

to the institutional management of the Bureau of Prisons. On

its face, it does not provide for a private right of action and

there is no indication that Congress intended it to create an

implied private right of action. See Bonano vs. East Caribbean

Airline Corp., 365 F.3d 81, 84 (1st Cir. 2004)(“[A] regulation,

on its own, cannot create a private right of action.”). See

also, 18 U.S.C. §§ 4001, 4042. Jennings' putative

constitutional tort claims are also not actionable under the

FTCA, and he has failed to plead and prove a source of

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substantive liability under state tort law. F.D.I.C. vs. Meyer,

510 U.S. 471, 477-78 (1994). Defendants' motion to dismiss will

be granted. 

D. Jennings' 42 U.S.C. §§ 1985, 1986 claims

1. Section 1985

Jennings' complaint alleges that, in addition to 28 U.S.C.

§ 1331 and 42 U.S.C. § 1983, his action arises under 42 U.S.C.

§§ 1985, 1986. Section 1985(1) creates a cause of action

against those who conspire to prevent officials from performing

their duties. Section 1985(2) creates a cause of action against

those who conspire to obstruct justice, intimidate a party,

witness or jurors to a suit. Section 1985(3) creates a cause of

action against those who conspire deprive persons of their

rights or liberties. The court assumes that Jennings' claim is

brought under § 1985(3).

In order to establish a § 1985(3) violation, the plaintiff

must prove the following five elements:

1) A conspiracy;

2) motivated by racial or perhaps otherwise class-based

invidious discrimination;

3) for the purpose of depriving either directly or

indirectly, any person or class of persons of equal

protection of the laws, or equal privileges and

immunities under the laws;

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4) an act in furtherance of the conspiracy; and

5) that the plaintiff was injured in his person or

property or was deprived of having and exercising any

right or privilege of a citizen of the United States.

Griffin vs. Breckenridge, 403 U.S. 88, 102-03 (1971); Hudson vs.

Thornburgh, 770 F.Supp. 1030 (W.D.Pa. Aug. 12, 1991).

A claim for conspiracy under the under § 1985(3) must show

that the alleged conspirators did in fact violate the

constitutional rights of the plaintiff. Dells, Inc. vs. Mundt,

400 F.Supp. 1293, 1298 (S.D.N.Y.1975). The court has already

indicated that Jennings has failed to state a violation of his

constitutional rights as a consequence of his telephone

restriction. As such, Jennings has failed to establish the

third prong of the Supreme Court's test. His complaint fails to

establish a required element of an action brought pursuant to 42

U.S.C. § 1985. Accordingly, defendants' motion to dismiss will

be granted on this claim.

2. § 1986

Liability under 42 U.S.C. § 1986, which provides a cause of

action for neglect to prevent conspiracy to interfere with a

person's civil rights, is derivative of liability under 42

U.S.C. § 1985(3); without violation of the latter, there can be

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no violation of the former. Grimes vs. Smith, 776 F.2d 1359

(7th Cir.1985); Trerice vs. Pedersen, 769 F.2d 1398 (9th

Cir.1985); Rogin vs. Bensalem Township, 616 F.2d 680 (3d

Cir.1980), cert denied, 450 U.S. 1029 (1981); Rourke vs. United

States, 744 F.Supp. 100 (E.D.Pa.1988). As such, the court will

grant defendants' motion to dismiss this claim.

E. State law claims

To the extent that plaintiff seeks to raise state law claims

of negligence or intentional infliction of emotional distress,

the court declines to exercise supplemental jurisdiction over

the pendent state law claims. 28 U.S.C. § 1367(c)(3). Those

claims will be dismissed to any right Jennings may have to purse

them in state court. In so holding, we express no opinion as to

the merits of any such claims. 

An appropriate order will issue. 

 s/Malcolm Muir

 

MUIR

United States District Judge

Case 4:03-cv-02408-MM-DB Document 56 Filed 09/02/05 Page 23 of 24
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

KEITH JENNINGS, :

:

Plaintiff : No. 4:CV-03-2408

:

vs. : (Complaint Filed 12/30/03)

:

FEDERAL BUREAU OF PRISONS, : (Judge Muir)

et al., :

:

Defendants :

ORDER

September 2, 2005

For the reasons set forth in the foregoing Memorandum, IT

IS HEREBY ORDERED THAT:

1. The plaintiff's motion to dismiss his amended

complaint (Doc. No. 53) is GRANTED. The claims

raised in the plaintiff's amended complaint (Doc.

No. 28) and the defendants named therein are

dismissed from this action. 

2. Defendants' motion to dismiss plaintiff's

action (Doc. No. 41) is GRANTED. 

3. The Clerk of Court shall CLOSE this case.

4. Any appeal taken from this order will be

deemed frivolous, without probable cause, and

not taken in good faith.

 s/Malcolm Muir 

MUIR

United States District Judge

Case 4:03-cv-02408-MM-DB Document 56 Filed 09/02/05 Page 24 of 24