1Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388, 91 S.Ct.

1999 (1971). Plaintiff has recently filed four other actions with this Court, namely 06-1698, 06-

1665, 06-1697 and 06-2022, M.D. Pa. 

Plaintiff incorrectly styles his present action as being also under § 1983. (Doc. 1, p. 1). 

However, a § 1983 civil rights suit is against state officials and not federal officials of the Bureau

of Prisons (“BOP”), as Plaintiff is naming in this case. See Holocheck v. Luzerne County Head

Start, Inc., 385 F. Supp. 2d 491, 498-499 (M. D. Pa.). 

 

2We shall recommend that Plaintiff‘s Motions for in forma pauperis be granted for

purposes of filing this action. (Docs. 2 and 5). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 3:CV-06-2052 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA and : 

KAREN F. HOGSTEN, et al., :

 :

Defendants : 

 REPORT AND RECOMMENDATION 

I. Background. 

Plaintiff, Johnny Cyrus, an inmate at the Federal Correctional Institution at Allenwood, White

Deer, Pennsylvania (“FCI-Allenwood”), filed, pro se, the instant civil rights action under Bivens,1

pursuant to 28 U.S.C. § 1331, on October 19, 2006. The Plaintiff has also filed two applications

for leave to proceed in forma pauperis. (Docs. 2 & 5).2 The Complaint consists of five handwritten

pages, including two pages of the Statement of Facts. 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 1 of 20
3

In his handwritten Complaint, the Plaintiff indicates that he has not fully exhausted the

grievance procedure available at FCI-Allenwood. (Doc. 1, p. 1). It is well-settled that the

Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. In Porter v.

Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion

requirement under § 1997e(a) applies to all actions regarding prisons conditions, including 

§ 1983 actions or actions brought pursuant to any other federal law. The Porter Court held that

“the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive force or

some other wrong.” Id.; Woodford v. Ngo, 126 S Ct. 2378 (2006); Fortune v. Bitner, 2006 WL

2769158, *7 (M.D. Pa.)(“The PLRA mandates that inmates ‘properly’ exhaust administrative

remedies before filing suit in federal court.”)(citation omitted). Further, the Defendants have

the burden to plead exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295

(3d Cir. 2002); Fortune v. Bitner, 2006 WL 2769158, *7. 

 Plaintiff‘s claim arose on August 8, 2006. He admits that he did not exhaust all of his

available BOP Administrative remedies before he filed this action. Plaintiff is well aware of the

PLRA exhaustion requirement based on our screening of his four prior cases he has filed with

this Court. 

2

As stated, Plaintiff’s Complaint is made up of five handwritten pages. See Doc. 1.3 The

Complaint alleges that on August 3, 2006, Plaintiff was sent to the SHU. He avers that he packed

three full bags with his personal property. His cell door was then locked by a Corrections Officer

(“CO”). Plaintiff was taken to the SHU, where he remained confined until August 8, 2006. (Doc.

1, p. 2). Plaintiff avers that “[i]n retaliation, these [unnamed] officers gave me a half of a bag of [my]

property. No forms to sign for my property.” Plaintiff avers that he asked where the remainder of

his property was and “the officer stated, ‘just get hell out of here, asshole.” Plaintiff states that after

he left the SHU, everything he owned was gone from his bag. Plaintiff claims that ‘the officers

deliberately lost or threw my personal property away.” (Id.). 

Plaintiff avers that on the day of his release from the SHU and discovery of his missing

property, i.e. August 8, 2006, he went to Defendant Warden Hogsten and “gave her a filing

[grievance] on my property.” (Id.,pp. 2-3). Plaintiff states that Warden Hogsten gave his filing to

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 2 of 20
3

Captain Feltman, and he gave it to the SHU Lieutenant, Defendant Wolmendorf. Plaintiff then

states that he never heard from anyone about his missing personal property or his grievance.

Plaintiff filed three tort claims pursuant to the FTCA, and states that he never received an answer.

Plaintiff admits that “not too long ago, I received my property from another jail.” Plaintiff

states that he never left FCI-Allenwoood and seems to inquire how his property could have been

sent to another prison. Plaintiff indicates that he received all of his missing personal property back

except for his family photos and his album book. Plaintiff seems to conclude that his photos and

album book were thrown away by unnamed prison staff as retaliation. (Id., pp. 3-4). Plaintiff states

that prison staff deliberately lost or threw away his photos and photo album book. Thus, Plaintiff

raises a First Amendment retaliation claim and a Fifth Amendment due process deprivation of

property claim. 

Plaintiff avers that retaliation was the reason why his personal property was missing from

August 8, 2006, until just recently, and why his photos and album book were thrown away. 

Plaintiff does not name the staff members who allegedly threw away his stated property as

Defendants herein, and he does not specifically state why they were retaliating against him. 

Plaintiff names as Defendants the United States, Warden Hogsten and Lt. Wolmendorf. The

stated two individual Defendants are both employed at FCI-Allenwood. 

Defendants Hogsten and Wolmendorf are not alleged to have played any role in the losing

or throwing away of any of Plaintiff‘s personal property on August 8, 2006, or to have engaged in

any conduct amounting to a violation of Plaintiff‘s First and Fifth Amendment Constitutional rights.

Plaintiff only claims that he gave Defendant Hogsten his grievance and she gave it to the Captain,

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 3 of 20
4

who in turn gave it to Lt. Wolmendorf, and that he received no response. Also, as to Defendant

Warden Hogsten, Plaintiff only avers that he gave this Defendant his grievance, that she passed it

on to her subordinates, and that he received no response. Plaintiff does not state the personal

involvement of either Defendant Hogsten or Defendant Wolmendorf with respect to his Fifth

Amendment due process deprivation of property claim or with respect to his First Amendment

retaliation claim. Rather, both of these Defendants appeared to be named in this case based on

respondeat superior. Further, as we have repeatedly indicated in our prior Reports and

Recommendations screening Plaintiff’s other recently filed cases, the United States is not a proper

Defendant in a Bivens action. 

The Complaint does not sufficiently specify any conduct, wrongful or otherwise, of

Defendants Wolmendorf and Hogsten. These Defendants are not alleged to have played any role

in the alleged retaliatory losing and throwing away of Plaintiff’s personal property or to have played

any role in the deprivation of his album book and photos after the return of his other property. 

Nor are these Defendants alleged to have been aware at the time of the incident that the prison

staff was deliberately taking and losing or throwing Plaintiff’s personal property. Plaintiff alleges only

that he gave his grievance about his missing property to Defendant Hogsten and that it was then

given to Defendant Wolmendorf, and that they did not respond to it. Of course, Plaintiff admits

that he received all of his property back except for the photos and album book. Plaintiff does not

state that Defendants Wolmendorf and Hogsten were ever aware that the other prison staff

members were retaliating against him by losing or throwing away his personal property at any time.

 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 4 of 20
4Plaintiff only alleges mental injury. However, damages for this claim are precluded

since he has not alleged physical injury. See 42 U.S.C. § 1997e(e). The law is clear that an

inmate may not file a federal civil rights action based on a claim of mental or emotional injury

seeking compensatory damages without any prior showing of physical injury. Here, the Plaintiff

fails to claim physical injury. Thus, a claim for money damages for mental anguish is precluded. 

Allah v. Al-Hafeez, 226 F.3d 247, 250-251( 3d Cir. 2000). 

 

5As we have noted in Plaintiff‘s previous actions, Plaintiff‘s request for a specific amount

of monetary damages should be stricken. Since Plaintiff seeks unliquidated damages, he cannot

claim a specific sum of relief. Pursuant to Local Rule 8.1, M.D. Pa., Plaintiff‘s requests for

specific monetary damages of “$10,000,00", “$5,000,00" and $2,000,00" should be stricken

from his Complaint. See Stuckey v. Ross, Civil No. 05-2354, M.D. Pa., 1-9-06 Order, J.

McClure. 

5

As relief, Plaintiff seeks compensatory damages in the amount of “$10,000,00. (Sic)” 

Plaintiff also seeks money damages for pain and suffering and mental anguish4, or “$5,000,00. (sic)

and his property back, or “$2,000,00. (Sic)” and his photo album back. (Id., p. 5).5 

II. PLRA. 

We now review the Plaintiff‘s pleading and find that it contains fatal deficiencies as to the

Defendants, namely the failure to state Fifth Amendment due process deprivation of property 

claim and a First Amendment retaliation claim against Defendants Wolmendorf and Hogsten. We

find that the Defendant United States cannot be named in this Bivens action. We also find that it

would be futile to allow Plaintiff to amend his Bivens Complaint to name the staff members whom

he alleges deliberately threw away or lost his personal property on August 8, 2006, and to state the

staff members at the prison whom he alleges are retaliating against him, since he fails to state a

constitutional claim. Plaintiff‘s claim for his lost property should be filed as an action under the

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 5 of 20
6Pub. L. No. 104-134, 110 Stat. 1321 (April 26, 1996).

7The Plaintiff completed two applications to proceed in forma pauperis and authorization

to have funds deducted from his prison accounts. The court then issued an administrative order

directing the warden to commence deduction of the full filing fee due the court from the

Plaintiff’s prison trust fund account. (Docs. 2, 5, 6 and 7). 

6

FTCA, 28 U.S.C. §§ 1346, 2671, et seq., against the United States after he exhausts his tort claim

(SF-95) with the BOP.

As stated, the Plaintiff has filed two applications to proceed in forma pauperis pursuant to

28 U.S.C. § 1915. The Prison Litigation Reform Act of 1995,6 (the “PLRA”), obligates the Court to

engage in a screening process when a prisoner wishes to proceed in forma pauperis pursuant to 28

U.S.C. § 1915.7 Specifically, Section 1915(e)(2), which was created by § 805(a)(5) of the Act,

provides: 

(2) Notwithstanding any filing fee, or any

portion thereof, that may have been paid, the

court shall dismiss the case at any time if the

court determines that (A) the allegation of

poverty is untrue; or (B) the action or appeal

(i) is frivolous or malicious; (ii) fails to

state a claim on which relief may be granted;

or (iii) seeks monetary relief against a

defendant who is immune from such relief.

In reviewing the Complaint under 28 U.S.C. §1915(e)(2)(B), we have determined that the

Plaintiff is unable to maintain this Bivens action as against Defendants United States, Wolmendorf

and Hogsten. We find that Plaintiff should file an FTCA action against the United States for money

damages for his lost album book and photos. 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 6 of 20
7

III. Section 1331 Standard. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent

of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held

to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp.

1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992).

In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him

of a federal right, and that the person who caused the deprivation acted under color of federal law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa.

1992). 

IV. Motion to Dismiss Standard. 

In considering whether a pleading states an actionable claim, the court must accept all

material allegations of the complaint as true and construe all inferences in the light most favorable

to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed

for failure to state a claim unless it appears “beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 44-46

(1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 7 of 20
8While Plaintiff states that he did not receive a response to his August 8, 2006 grievance,

he does acknowledge that he received all of his personal property back except for his photos

and album book.

8

which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed

without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976). 

V. Discussion. 

In his Complaint, as stated, Plaintiff does not allege any involvement of Defendants

Wolmendorf and Hogsten with respect to his lost personal property on August 8, 2006, and with

respect to the retaliation being taken against him seemingly as a result of his previous civil rights

actions he filed. As to both Defendants Wolmendorf and Hogsten, Plaintiff only states that they

were given his grievance about his missing property and that he received no response from them.

Plaintiff does not indicate that either of these two stated supervisory Defendants were involved with

the taking and losing or throwing away of his personal property, or that they were involved with the

retaliation against him. As stated, Plaintiff states that all of his property was returned to him except

for his photos and album book.8 Plaintiff’s allegations do not indicate that Defendants Wolmendorf

and Hogsten were deliberately losing or throwing away his property or that they were involved in

the retaliatory conduct to do so. Nor do Plaintiff’s allegations indicate that either stated Defendant

had a causal connection to the claimed retaliatory acts being taken against him. 

Also, Plaintiff does not claim that Defendants Wolmendorf and Hogsten retaliated against

him or that they threw away his photos and album book. Plaintiff does not claim that he told

Defendants Wolmendorf and Hogsten he was being retaliated against by the staff, and that the staff

threw his property away. In fact, Plaintiff states that he recently received all of his property back

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 8 of 20
9

except for the stated items. (Doc. 1, p. 4). Plaintiff does not claim that Defendants Wolmendorf

and Hogsten caused him to be deprived of any of his property or that they refused to return any

property to him. Plaintiff does not claim that these two Defendants were aware at any time that

he was being retaliated against or that they had any knowledge that any of the staff was throwing

away or losing his property. The allegations in Plaintiff‘s Complaint do not support Plaintiff‘s

present Fifth Amendment due process deprivation of property claim and First Amendment

retaliation claim as against Defendants Wolmendorf and Hogsten. Further, Plaintiff‘s allegations do

not show that these Defendants were part of the retaliatory actions being taken against him. 

Finally, the Plaintiff has not properly named the responsible prison personnel who were

personally involved with his First Amendment claim. He has also improperly named the United

States as a Defendant in this Bivens case. In fact, Plaintiff‘s claim should be filed as a tort claim

under the FTCA after he exhausts his BOP tort claim administrative remedies. 

Consequently, based on the present pleading, the Plaintiff has failed to allege a

Constitutional violation by Defendants Wolmendorf and Hogsten. Plaintiff’s case as to these

Defendants should be dismissed. 

Moreover, Plaintiff does not allege with sufficient specificity the personal involvement of

Defendants Wolmendorf and Hogsten, who admittedly did not participate in the retaliatory

throwing away of Plaintiff’s property, with respect to his First Amendment retaliation claim. As

discussed, Plaintiff does not adequately state what these two Defendants did to violate any of his

Constitutional rights. Liability may only be based upon the Defendant’s personal involvement in

conduct amounting to a constitutional violation. Hampton v. Holmesburg Prison Officials, 546 F.2d

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 9 of 20
10

1077 (3d Cir. 1976); Sutton v. Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). It is also well settled

in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations

is a requirement in a civil rights case and that a complaint must allege such personal involvement.

Id. Each named defendant must be shown, through the complaint’s allegations, to have been

personally involved in the events or occurrences upon which Plaintiff’s claims are based. Id. As the

Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998): 

A defendant in a civil rights action must have personal involvement

in the alleged wrongs . . . . [P]ersonal involvement can be shown

through allegations of personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual knowledge

and acquiescence, however, must be made with appropriate

particularity. (Citations omitted).

Here, Plaintiff does not allege to have suffered any loss of property as a result of the actions

of Defendants Wolmendorf and Hogsten. Plaintiff does not allege that the stated two Defendants

retaliated against him or that they were involved in the staff’s throwing away of his photos and

album book. Thus, the alleged conduct of these two Defendants does not amount to deliberate

taking of Plaintiff‘s personal property and is not sufficient to constitute an Fifth Amendment

violation. Nor is the conduct of these two Defendants with respect to their alleged failure to

respond to Plaintiff‘s grievance sufficient to hold them liable in this action. Pursuant to Rode, supra,

the supervisory Defendants cannot be held liable based on respondeat superior in this case. Thus,

Defendants Hogsten and Wolmendorf should be dismissed from this case. 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 10 of 20
11

Additionally, a prison official’s response or lack thereof to an inmate’s Administrative

remedies is not sufficient alone to hold the official liable in a civil rights action. The law is wellsettled that there is no constitutional right to a grievance procedure. See Jones v. North Carolina

Prisoners’ Labor Union, Inc. 433 U.S. 119, 137-138 (1977). This very Court has also recognized

that grievance procedures are not constitutionally mandated. See Chimenti v. Kimber, Civil No.

3:CV-01-0273, slip op. at p. 18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No.

03-2056 (3d Cir. June 8, 2005)(Non-Precedential). Even if the prison provides for a grievance

procedure, as the BOP does, violations of those procedures do not amount to a civil rights cause

of action. Mann v. Adams, 855 F. 2d 639, 640 (9th Cir 1988), cert denied, 488 U.S. 898 (1988);

Hoover v. Watson, 886 F. Supp. 410, 418 (D. Del. 1995), aff’d 74 F. 3d 1226 (3d Cir. 1995). See

also Burnside v. Moser, Civil No. 04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the

state elects to provide a grievance mechanism, violations of its procedures do not ... give rise to a

[constitutional] claim.”) (citations omitted). Thus, even if the prison official allegedly failed to

process the prisoner’s grievances, no constitutional claim is stated. Burnside, supra. 

As the Court stated in Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.1985) (per curiam) a

mere "linkage in the prison chain of command" is not sufficient to demonstrate personal

involvement for purposes of a civil rights action. Permitting supervisory liability where a defendant,

after being informed of the violation through the filing of grievances, reports or appeals, failed to

take action to remedy the alleged wrong is not enough to show that the defendant has the

necessary personal involvement. Rode, supra. Allowing only a letter sent to an official to be

sufficient to impose supervisory liability would permit an inmate to subject defendants to potential

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 11 of 20
12

liability in any case in which the prisoner merely transmitted correspondence to the official. Id.

 Thus, several courts have held that "it is well-established that an allegation that an official

ignored a prisoner's letter of protest and request for an investigation of allegations made therein is

insufficient to hold that official liable for the alleged violations." Greenwaldt v. Coughlin, 1995 WL

232736, at *4 (S.D.N.Y. Apr.19, 1995) (citations omitted); accord Rivera v. Goord, 119 F.Supp.2d

327, 344 (S.D.N.Y. 2000) (allegations that inmate wrote to prison officials and was ignored

insufficient to hold those officials liable under section 1983); Woods v. Goord, 1998 WL 740782,

at *6 (S.D.N.Y. Oct. 23, 1998) ("Receiving letters or complaints ... does not render [prison officials]

personally liable under § 1983."); Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y. 1997) ("The

law is clear that allegations that an official ignored a prisoner's letter are insufficient to establish

liability.") (citations omitted). The Second Circuit Court has stated that "if mere receipt of a letter

or similar complaint were enough, without more, to constitute personal involvement, it would result

in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does

not impose respondeat superior liability."Walker v. Pataro, 2002 WL 664040, at *12 (S.D.N.Y. Apr.

23, 2002). 

Nor has Plaintiff stated a First Amendment retaliation claim against Defendants Hogsten and

Wolmendorf. Plaintiff only alleges that unnamed staff, who are not named as Defendants herein,

deliberately lost or threw away his personal property, seemingly in retaliation for his lawsuits. (Doc.

1, pp. 2-4). In Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001), the Court stated that “a prisoner

litigating a retaliation claim must show that he suffered some ‘adverse action’ at the hands of the

prison officials.” To establish a retaliation claim, the Plaintiff must also show that there exists a

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 12 of 20
9As this Court stated in Arrington v. Inch, 2006 WL 860961, * 4 (M.D. Pa.): 

“The doctrine of sovereign immunity precludes a plaintiff from 

bringing a Bivens action against a federal agency, See FDIC v. Meyer,

510 U.S. 471, 484-86 114, --- S.Ct. ----, ---- - ---- ----, --- L.Ed.2d ----, 

---- - ---- ----(1994). Suits brought against federal officials in 

their official capacities are to be treated as suits against the 

employing government agency. Will v. Mich. Dep't of State Police,

491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (cited 

with approval in Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140, 

1143 n. 3 (3d Cir.1995)). As a result, a Bivens suit brought against 

an individual federal official acting in his official capacity is barred 

by the doctrine of sovereign immunity, See also Chinchello v. 

13

causal nexus between the Plaintiff’s constitutionally protected conduct and the adverse action.

Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). We find that this nexus does not exist with

respect to either of our two supervisory Defendants, Hogsten and Wolmendorf. 

Further, the United States is not a Defendant. While the United States has waived sovereign

immunity for an FTCA action, it has not waived sovereign immunity for a Bivens action. See Jaffee

v. U.S., 592 F.2d 712, 717-18 (3d Cir.), cert. denied, 441 U.S. 961 (1979) (no waiver of United

States’ sovereign immunity for suits alleging constitutional violations). Thus, Plaintiff improperly 

named the United States with respect to his Bivens Complaint. 

The United States has not waived its sovereign immunity for a Bivens action, and it is not

a proper Defendant in a Bivens action. See FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 999

(1994); Alexander v. Hargrove, 1995 WL 144636, E.D. Pa.; Howard v. U.S., 2000 WL 128701, E.D.

Pa.; see also Jaffee, supra.; Aladiem v. HUD, 199 WL 718069, E.D. Pa. Further, to the extent that

Plaintiff’s Bivens action is against any federal prison official in his official capacity and seeks

monetary damages, it is basically a claim against the United States.9 Thus, Defendant United States

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 13 of 20
Fenton, 805 F.2d 126, 130 n. 4 (3d Cir.1986) (affirming district 

court's conclusion that sovereign immunity barred an 

official-capacity Bivens claim), and the court lacks jurisdiction to

hear the claim. See Kabakjian v. United States, 267 F.3d 208, 

211 (3d Cir.2001) (holding that district courts lack jurisdiction to 

hear claims brought against the United States unless Congress 

has explicitly waived sovereign immunity).” 

10Notwithstanding the Plaintiff’s pro se status and our finding that his § 1331 claim is

insufficient as to Defendants Wolmendorf and Hogsten, we do not recommend that he be

permitted to amend his Complaint to include more specific facts against any prison staff, since

we find that the Plaintiff‘s allegations fail to state a constitutional violation under the First

Amendment and the Fifth Amendment. Also, Defendant United States cannot be named in a

Bivens action. Thus, we find futility of any amendment of this Complaint, and we shall not

14

should be dismissed from this action. Defendants Hogsten and Wolmendorf should be dismissed,

and Plaintiff should file his claim with respect to his missing property in an FTCA Complaint against

the United States after he exhausts his tort claim with the BOP. 

Under even the most liberal construction, we find that Plaintiff’s present Complaint fails to

allege any Fifth Amendment and First Amendment violations by Defendants Wolmendorf and

Hogsten. Even taking into account the fact that Plaintiff is proceeding pro se, his Complaint fails

to allege sufficient personal involvement of the stated two Defendants in any Fifth Amendment and

First Amendment violations. 

Plaintiff fails to make a claim showing that Defendants Wolmendorf and Hogsten’s alleged

conduct violates either the First Amendment or the Fifth Amendment based on the standards

discussed above. Accordingly, we shall recommend that this case be dismissed as to Defendants

United Sates, Wolmendorf and Hogsten, and that Plaintiff be directed to file an FTCA action as

against the United States.10 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 14 of 20
recommend Plaintiff be granted leave to amend his pleading. See Forman v. Davis, 371 U.S.

178, 182 (1982); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (The futility exception

means that a complaint, as amended, would fail to state a claim upon which relief can be

granted). 

15

 In Campbell v. Chaves, 402 F. Supp. 2d 1101 (D. Ariz. 2005), Plaintiff inmate filed a

Bivens action for damages alleging violation of his Fifth and Fourteenth Amendment rights since

Defendant BOP staff members lost some of his property during his transfer from one federal prison

to another. The Campbell Court stated, “not all property losses implicate the due Process Clause

of the Constitution. Mere negligence does not amount to a constitutional deprivation.” Id. at 1102

(citation omitted). The Court then stated: 

The Constitution requires some kind of a hearing before the 

State deprives a person of liberty or property. Zinermon v. Burch, 494 U.S. 

113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). When property deprivations 

are effected through random and unauthorized conduct of a state 

employee, pre-deprivation procedures are simply impracticable since the State 

cannot know when such a deprivation will occur. Hudson v. Palmer, 468 U.S. 517, 

533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). Even where a state employee 

intentionally and without authorization deprives a person of his 

property, the employee does not violate the Due Process Clause if a 

meaningful post-deprivation remedy for the loss is available. Id.

Id. at 1102-1103. 

 In McEachin v. Beard, 319 F. Supp. 2d 510, 514 (E. D. Pa. 2004), the Court stated:

[T]he Supreme Court has held that due process is satisfied

when the state provides adequate postdeprivation remedies

following the destruction of an inmate’s personal property.

Hudson v. Palmer, 468 U.S. 517, 536, 104 S.Ct. 3194,

82 L.Ed.2d 393 (1984). It is not disputed by the parties

that a postdeprivation process in the form of a prison grievance

system was in place and made available to plaintiff.

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 15 of 20
16

The McEachin Court quoted the Hudson case as follows:

If negligent deprivations of property do not violate the Due 

Process Clause because predeprivation process is impracticable, it

follows that intentional deprivations do not violate that Clause

provided, of course, that adequate state postdeprivation remedies

are available. Accordingly, we hold that an unauthorized intentional

deprivation of property does not constitute a violation of the

procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy

for the loss is available. Id. at 533, 104 S.Ct. 3194.

Id.

The McEachin Court concluded as follows: 

To the extent that plaintiff’s claim rests on the contention

that defendants confiscated his property without a prior hearing,

his claims are without merit. Whether the confiscation was the

result of negligent or intentional acts, Hudson holds that plaintiff’s

due process rights are not violated provided that adequate and

meaningful postdeprivation process is available.

Id.

As with the PA DOC prison grievance system being found by Courts in the Third Circuit to

afford inmates with an adequate postdeprivation process with respect to lost property claims, we

find that the BOP Administrative remedies provide federal inmates with an adequate

postdeprivation process for the return of their lost property, whether it was deliberately thrown

away or negligently lost. See McEachin, supra at 515. Our Plaintiff had due process in the BOP

grievance procedure which he admittedly utilized, and has not yet even exhausted. As the

McEachin Court stated, simply because Plaintiff inmate had difficulty in having his grievance heard

does not show that the prison grievance process was inadequate. Id. at 515. In fact, our Plaintiff

admits that after his grievance, he did receive all of his property back except for his album book and

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 16 of 20
17

photos. 

 Thus, we do not find that Plaintiff has stated a Fifth Amendment due process claim. 

We also do not find that Plaintiff states a First Amendment retaliation claim. As this Court stated

in Oriakhi v. Wood, 2006 WL 859543, * 4 (M. D. Pa.), 

A plaintiff alleging retaliation bears the initial burden of showing

that: (1) he was engaged in a constitutionally protected activity;

(2) that he suffered an “adverse action” at the hands of prison

officials; and (3) that his constitutionally protected activity was

the substantial or motivating factor in the prison officials’ decision

to discipline the plaintiff. Mitchell v. Horn, 318 F.3d 523, 530

(3d Cir. 2003) (citing Allah v. Seiverling, 229 F.3d 220, 225

(3d Cir. 2000). The burden then shifts to the defendant to show

by a preponderance of the evidence that the plaintiff would have

received the same punishment, or alternatively stated, that

defendant would have taken the same action, absent the retaliatory

motive for reasons reasonably related to a legitimate penological

interest. Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001).

In our case, Plaintiff seems to claim that prison staff deliberately sent his personal property

to another prison as retaliation for his lawsuits. Plaintiff states that all of his property was returned

except for his album book and photos, which he claims were intentionally thrown away. Plaintiff‘s

filing of a lawsuit is deemed a protected activity under the First Amendment. Id. *5. Thus, Plaintiff

has met the first requirement of a retaliation claim. However, Plaintiff does not sufficiently state

allegations to meet the second prong, i.e. the alleged retaliatory throwing away of his photos and

album book as a result of his lawsuits. While Plaintiff has suffered harm in the sense that his photos

and album book are gone and he has emotionally suffered from their loss (Doc. 1, p.4), he has not

claimed to have suffered a sufficient adverse action as a result of the retaliatory throwing away of

his belongings. Simply stated, Plaintiff does not demonstrate that he suffered a sufficient harm as

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 17 of 20
18

a result of the loss of his property. Plaintiff has the remedy of a tort claim with the BOP and of an

FTCA action with this Court after his administrative remedies are exhausted with respect to his tort

claim. Further, Plaintiff has not sufficiently stated that the filing of his lawsuits was a motivating

factor in the staff’s alleged throwing away of his album book and photos. 

VI. Recommendation. 

Based on the above, it is respectfully recommended that this case be dismissed as to

Defendants Wolmendorf and Hogsten, as the Plaintiff has failed to state a retaliation claim under

the First Amendment and a due process claim under the Fifth Amendment against these

Defendants. It is recommended that this Bivens case be dismissed as against Defendant United

States. It is further recommended that Plaintiff be directed to file an FTCA action against the United

States with respect to his lost property claim after he exhausts his administrative remedies with the

BOP. Finally, we recommend that Plaintiff’s in forma pauperis applications be granted solely for

the purpose of filing this action. 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: November 29, 2006 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 18 of 20
19

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 4:CV-06-2052 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

UNITED STATES OF AMERICA, et al., :

 :

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated November 29, 2006. 

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 ten (10)

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

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 19 of 20
20

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.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: November 29, 2006 

Case 4:06-cv-02052-JFM Document 8 Filed 11/29/06 Page 20 of 20