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Section1331 provides federal courts with original jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of the United States.” 42 U.S.C. §1331. This

statute provides federal courts with jurisdiction over actions brought by plaintiffs who claim that

their civil rights have been violated by federal officers. See Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 403-05(1971)(Harlan, J., Concurring). 

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IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT SMITH, : No. 4:CV-05-1599

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Smyser)

:

D. PRICE, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

September 20, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The plaintiff, Robert Smith (“Plaintiff” or “Smith”), a federal prisoner

incarcerated at the Federal Correctional Institute, Schuylkill, Pennsylvania (“FCISchuylkill”), proceeding pro se, initiated this Bivens action pursuant to 28 U.S.C.

§13311

 by filing a complaint in the United States District Court for the Middle

District of Pennsylvania on August 8, 2005. 

Plaintiff alleges that on February 18, 2005, Defendant Price conducted a

search of Plaintiff’s cell and found a seven and a half inch shank located in the

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lighting fixture of the desk light in Plaintiff’s cell. (Rep. & Rec. at 2). As a result,

Plaintiff was found guilty of possession of a weapon and sanctioned with 60 days

of disciplinary segregation, disallowance of 54 days of good conduct time,

forfeiture of 135 days of non-vested good conduct time, and loss of telephone and

visiting privileges for one year. Id. Plaintiff submits a series of arguments

concerning this incident, including the following: the knife did not belong to him;

the knife was found in the fixture of the desk light in the cell that he shared with

another inmate; he did not have control over the fixture and that special tools,

which he did not possess, were required to open the fixture; and Defendants failed

to properly investigate the matter. Id. Plaintiff alleges that Defendants violated his

Fifth, Sixth, and Eighth Amendment rights by finding him guilty of possession of a

weapon. 

Named as Defendants in the complaint are the following: Ronnie Holt,

Warden at FCI-Schuylkill; D. Price, an officer at FCI-Schuylkill; Kevin

Bittenbender, a Bureau of Prisons (“BOP”) Disciplinary Hearing Officer; and

Harrell Watts, the National Inmate Appeals Administrator for the BOP.

This case was referred to Magistrate Judge J. Andrew Smyser for

preliminary review pursuant to 28 U.S.C. § 1915A(b)(1). On August 26, 2005,

Magistrate Judge Smyser issued a Report and Recommendation within which he 

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concludes that the complaint fails to state a Bivens claim upon which relief can be

granted and that granting Plaintiff leave to amend his complaint would be futile. 

The Magistrate Judge therefore recommends that the complaint be dismissed and

the case file closed. Id. at 8-9. 

Plaintiff filed objections to the Magistrate’s Report on September 8, 2005.

This matter is now ripe for disposition. 

STANDARD OF REVIEW:

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (l980); see also 28 U.S.C. § 636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

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DISCUSSION:

A careful review of Plaintiff’s objections to the Report and Recommendation

reveal that they are nothing more than a restatement of the arguments asserted in

his complaint concerning alleged Fifth, Sixth, and Eighth Amendment violations,

as well as unclear assertions that the Magistrate Judge erred in his Report. (See

Rec. Doc. 10). We will address Plaintiff’s objections as necessary in this narrative.

As the Magistrate Judge explained, the Supreme Court held in Preiser v.

Rodriguez, 411 U.S. 475 (1973), that when a prisoner “is challenging the very fact

or duration of his physical imprisonment, and the relief he seeks is a determination

that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500. 

Accordingly, to the extent that Plaintiff is seeking the return of good conduct time

credits, he is seeking a speedier release from custody. He must therefore pursue

that claim in a habeas corpus case, and not in the Bivens action which Plaintiff has

asserted here. 

Plaintiff is also seeking compensatory and punitive damages, as well as

declaratory relief. In both his complaint and objections, Plaintiff has asserted

violations of his due process rights under the Fifth Amendment, as well as Sixth 

and Eighth Amendment violations. We will address these claims in turn.

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 In his objections, Plaintiff asserts an alleged, but unsupported, phenomenon concerning

a “rash” of “knife in the lamp fixture” occurrences at FCI-Schuylkill and appears to imply an

institutional motive to be the reason for such a phenomenon. (Rec. Doc. 10, at 3-4).

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 We initially note that in Heck v. Humphrey, 512 U.S. 477 (1994), as submitted by the

Magistrate Judge, the plaintiff filed a 42 U.S.C. § 1983 action against two county prosecutors

and an Indiana state police investigator. The Supreme Court held that in order to recover

damages for allegedly unconstitutional conviction or imprisonment, “or for other harm caused by

actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff

must prove that the conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such [a] determination,

or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. §

2254.” Id. at 486-87. Moreover, the Supreme Court stated that even if a plaintiff has exhausted

available state remedies, the plaintiff has no cause of action under §1983 unless and until the

conviction or sentence is reversed, expunged, invalidated, or impugned by the granting of a writ

of habeas corpus. Id. at 489. 

Second, in Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court applied the

reasoning of Heck to a claim for damages and declaratory relief based upon allegedly improper

procedures used during a prison disciplinary hearing that resulted in the loss of good time

credits. The Supreme Court held that the procedural defects alleged by the prisoner would, if

established, necessarily imply the invalidity of the deprivation of his good time credits and that

the prisoner’s claims are not cognizable in a § 1983 action. Id. at 648. 

Finally, as the Magistrate Judge submits, although Plaintiff is a federal prisoner, the

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 Plaintiff asserts that Defendants violated his Fifth Amendment right to due

process by finding him guilty of possession of a weapon and by subsequently

upholding that finding.2

 We are in agreement with the Magistrate Judge’s

explanation that success on that claim would necessarily imply the invalidity of the

disciplinary sanctions imposed on Plaintiff, including the loss of good conduct

time. Such a claim is not cognizable as a Bivens claim for monetary damages

unless or until Plaintiff’s disciplinary sentence is reversed or expunged by prison

officials, or called into question by a federal court’s issuance of a writ of habeas

corpus.3

 See Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v. Balisok, 520

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reasoning of Heck and Edwards is applicable to federal prisoners’ Bivens claims. See Williams

v. Hill, 74 F.3d 1339, 1341 (D.C. Cir. 1996); Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.

1995); Zolicoffer v. Federal Bureau of Investigation, 884 F. Supp. 173, 175-76 (M.D. Pa. 1995).

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U.S. 641 (1997). 

With regard to Plaintiff’s Eighth Amendment claim, we note that an Eighth

Amendment claim of cruel and unusual punishment must contain allegations which

“involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429

U.S. 97 (1976). The two prong analysis of Eighth Amendment claims involves an

objective component, the deprivation must be sufficiently serious, and a subjective

component, the defendant must have been deliberately indifferent. Young v.

Quinlan, 960 F.2d 351, 359-60 (3d Cir. 1992). We agree with the Magistrate

Judge’s determination that merely finding Plaintiff guilty of possession of a

weapon and sentencing him to 60 days disciplinary segregation does not rise to the

level of an Eighth Amendment violation. (Rep. & Rec. at 7-8). Plaintiff therefore

fails to state an Eighth Amendment claim upon which relief can be granted.

Finally, Plaintiff alleges that his Sixth Amendment rights were violated as he

was found guilty of possession of a knife. However, the Sixth Amendment

guarantees apply only to criminal prosecutions, Kirby v. Illinois, 406 U.S. 682, 690

(1972), and prison disciplinary proceedings are not criminal prosecutions within

the meaning of the Sixth Amendment. Wolff v. McDonnell, 418 U.S. 539, 556

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(1974). Plaintiff accordingly fails to state a Sixth Amendment claim upon which

relief can be granted. 

After a careful review of the record, including Plaintiff’s objections to the

Report and Recommendation, we are in agreement with the Magistrate Judge that

Plaintiff’s complaint fails to state a Bivens claim upon which relief can be granted. 

We also find that granting Plaintiff leave to amend his complaint would be futile as

this is not a case in which Plaintiff’s allegations are unclear or where Plaintiff

failed to include specific allegations necessary to support his claim. See 28 U.S.C.

§ 1915A; see also Grayson v. Mayview State Hospital, 293 F.3d 103, 113-14 (3d

Cir. 2002). Instead, as the Magistrate Judge accurately submits, Plaintiff’s claims

in the case sub judice are not cognizable claims. 

For the reasons set forth in Magistrate Judge Smyser’s Report and

Recommendation, Plaintiff’s objections are without merit. Plaintiff’s complaint

will be dismissed and the case closed. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Smyser’s Report and Recommendation (doc. 9) is

adopted in its entirety. 

2. Plaintiff’s complaint is hereby dismissed.

3. The Clerk shall close the file on this case.

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s/ John E. Jones III

John E. Jones III

United States District Judge

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