NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

MANUEL D. PEGUERO, :

 :

Plaintiff, :

 :

v. :

 :

MR. MEYER, et al., : 

 :

Defendants. :

 :

Civil No. 11-1476 (RMB)

OPINION

APPEARANCES:

MANUEL D. PEGUERO, Plaintiff pro se

Reg. No. # 06524-067

FCI Beckley

P.O. Box 350

Beaver, West Virginia 25813

BUMB, District Judge

Plaintiff, Manuel D. Peguero, a federal inmate presently

confined at the FCI Beckley in Beaver, West Virginia, seeks to

re-open this action that was administratively terminated by

Memorandum Order issued on March 28, 2011, for Plaintiff’s

failure to either pay the requisite filing fee or submit a

complete application to proceed in forma pauperis (“IFP”). 

(Docket entry no. 2). Plaintiff paid the $350.00 filing fee on

or about April 15, 2011, and thereafter requested this Court to

re-open his case accordingly. (Docket entry no. 3).

This Court will direct the Clerk of the Court to re-open

this matter and file the Complaint. At this time, this Court

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must review the Complaint, pursuant to 28 U.S.C. § 1915A, to

determine whether the Complaint should be dismissed as frivolous

or malicious, for failure to state a claim upon which relief may

be granted, or because it seeks monetary relief from a defendant

who is immune from such relief. For the reasons set forth below,

the Court concludes that the Complaint should be dismissed

without prejudice.

I. BACKGROUND

Plaintiff, Manuel D. Peguero, brings this civil action,

seeking compensation for a work-related injury he allegedly

sustained while working at the Unicor Recycling when he was

confined at FCI Fort Dix in 2005. In particular, Plaintiff

alleges that he used to work on the bailer machine, and the room

next to the bailer machine was “constructed without safety.” 

(Complaint, Section IV, Statement of Claim). In the room,

inmates would break the glass from the monitors to salvage it,

and the chemical fumes that leaked from the broken monitors

allegedly damaged Plaintiff’s eyes. (Id.). 

Plaintiff alleges that after he was elevated to USP

Lewisburg, he was diagnosed with glaucoma. He does not have

diabetes and did not have vision problems before his exposure to

the chemical fumes when he was an inmate employee at Unicor

Recycling in FCI Fort Dix. Plaintiff claims that he needs

treatment/medication for the rest of his life, and future surgery

for his glaucoma. (Id.).

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Plaintiff brings this action against the Unicor Correctional

Office, Mr. Meyer, and UNICOR, Inc. (Complaint, Caption, Section

III.C). He seeks $37,000.00 in damages to cover his medication,

treatment and surgery. (Compl., Section V).

Plaintiff attaches several letters he sent to prison

officials regarding his claim. First, Plaintiff attaches a

letter, dated June 27, 2007, he wrote to the FCI Fort Dix Safety

Manager in which Plaintiff asks for the proper forms to file a

claim for inmate compensation regarding his alleged eye injury. 

In this letter, Plaintiff relates that he had filed a tort claim

notice on May 11, 2007 for a medical claim.

Next, Plaintiff attaches medical records relating to his eye

injury. Specifically, the Inmate Injury Assessment and Follow-Up

Form shows that Plaintiff’s eye injury occurred on July 18, 2002,

while he was working at Unicor 5713. It states that Plaintiff

was taking out stickers from the computer with a knife and part

of the stickers flew into Plaintiff’s left eye.

Plaintiff also attaches the FCI Fort Dix Warden’s Part B

Response to Plaintiff’s Administrative Remedy No. 403030-F2,

dated March 6, 2006. The Warden’s response relates that

Plaintiff has complained of pain in his eyes and head for nine

months, and requested to see an ophthalmologist or neurologist. 

Plaintiff’s medical records revealed that he had been seen by an

eye specialist on June 29, 2005, and that he received a new

prescription for glasses in August 2005. On December 7, 2005, 

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Plaintiff was examined by the Consultant Optometry Specialist and

no abnormalities were found. However, he was prescribed

artificial tears eye drops.

On August 7, 2007, the FCI Fort Dix Safety Manager responded

to Plaintiff’s earlier letter, enclosing the necessary forms for

an Inmate Claim for Compensation Resulting From Work Injury, and

the Inmate Accident Compensation Procedures Handbook in both

English and Spanish. The Safety Manager informed Plaintiff that

Plaintiff needed to file the form no more than 45 days before his

release from prison, and no less than 15 days beforehand, and

that the form needed to be submitted to the Safety Manager at the

institution from which Plaintiff is released.

Finally, Plaintiff attaches three letters dated November 1,

2010, August 10, 2010, and March 9, 2010, addressed to the Claims

Examiner at the Federal Bureau of Prisons in Washington, D.C. and

the Central Safety Committee at FCI Fort Dix. These letters

reiterate Plaintiff’s alleged work injury, ask for compensation,

and complain that he has not received any response. Plaintiff’s

November 10, 2010 letter to the Claims Examiner also states that

Plaintiff will be released from prison and promptly deported on

or about February 14, 2014. 

II. STANDARDS FOR A SUA SPONTE DISMISSAL

The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-

134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),

requires a district court to review a complaint in a civil action

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in which a prisoner is proceeding in forma pauperis or seeks

redress against a governmental employee or entity. The Court is

required to identify cognizable claims and to sua sponte dismiss

any claim that is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a

defendant who is immune from such relief. 28 U.S.C. §§

1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under 28 U.S.C. § 1915A.

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). See also United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court

need not, however, credit a pro se plaintiff’s “bald assertions”

or “legal conclusions.” Id. 

A complaint is frivolous if it “lacks an arguable basis

either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,

325 (1989) (interpreting the predecessor of § 1915(e)(2), the

former § 1915(d)). The standard for evaluating whether a

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complaint is “frivolous” is an objective one. Deutsch v. United

States, 67 F.3d 1080, 1086-87 (3d Cir. 1995).

A pro se complaint may be dismissed for failure to state a

claim only if it appears “‘beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.’” Haines, 404 U.S. at 521 (quoting Conley v.

Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S.

at 93-94 (In a pro se prisoner civil rights complaint, the Court

reviewed whether the complaint complied with the pleading

requirements of Rule 8(a)(2)).

However, recently, the Supreme Court revised this standard

for summary dismissal of a Complaint that fails to state a claim

in Ashcroft v. Iqbal, 556 U.S. 662 (2009). The issue before the

Supreme Court was whether Iqbal’s civil rights complaint

adequately alleged defendants’ personal involvement in

discriminatory decisions regarding Iqbal’s treatment during

detention at the Metropolitan Detention Center which, if true,

violated his constitutional rights. Id. The Court examined Rule

8(a)(2) of the Federal Rules of Civil Procedure which provides

that a complaint must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” 

Fed.R.Civ.P. 8(a)(2). Citing its recent opinion in Bell 1

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the

 Rule 8(d)(1) provides that “[e]ach allegation must be 1

simple, concise, and direct. No technical form is required.”

Fed.R.Civ.P. 8(d).

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proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’ “Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not

permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged-but it has not

“show[n]”-“that the pleader is entitled to relief.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 556 U.S. at 678-79 (citations omitted).

The Court further explained that

a court considering a motion to dismiss can choose to begin

by identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 679.

Thus, to prevent a summary dismissal, civil complaints must

now allege “sufficient factual matter” to show that a claim is

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facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678. The Supreme Court’s ruling in

Iqbal emphasizes that a plaintiff must demonstrate that the

allegations of his complaint are plausible. Id. at 678-79; see

also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside,

578 F.3d 203, 210(3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin for the ‘no set of facts’ standard”

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. Fowler, 578 F.3d

at 210. The Third Circuit now requires that a district court

must conduct the two-part analysis set forth in Iqbal when

presented with a motion to dismiss:

First, the factual and legal elements of a claim should be

separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard

any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. 

Second, a District Court must then determine whether the

facts alleged in the complaint are sufficient to show that

the plaintiff has a “plausible claim for relief.” [Id.] In

other words, a complaint must do more than allege the

plaintiff’s entitlement to relief. A complaint has to

“show” such an entitlement with its facts. See Phillips,

515 F.3d at 234-35. As the Supreme Court instructed in

Iqbal, “[w]here the well-pleaded facts do not permit the

 In Conley, as stated above, a district court was 2

permitted to summarily dismiss a complaint for failure to state a

claim only if “it appear[ed] beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief. Id., 355 U.S. at 45-46. Under this “no set of

facts” standard, a complaint could effectively survive a motion

to dismiss so long as it contained a bare recitation of the

claim’s legal elements.

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court to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not ‘show [n]’-‘that

the pleader is entitled to relief.’” Iqbal, [556 U.S. at

678-79]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

Fowler, 578 F.3d at 210-211.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

III. ANALYSIS

A. Eighth Amendment Bivens Claim

It is not entirely clear from the Complaint whether

Plaintiff is seeking monetary relief from the named defendants

under Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). 

In Bivens, the Supreme Court held that one is entitled to

recover monetary damages for injuries suffered as a result of

federal officials’ violations of the Fourth Amendment. In doing

so, the Supreme Court created a new tort as it applied to federal

officers, and a federal counterpart to the remedy created by 42

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U.S.C. § 1983. The Supreme Court has also implied Bivens damages

remedies directly under the Eighth Amendment, see Carlson v.

Green, 446 U.S. 14 (1980), and the Fifth Amendment, see Davis v.

Passman, 442 U.S. 228 (1979).

Bivens actions are simply the federal counterpart to 

§ 1983 actions brought against state officials who violate

federal constitutional or statutory rights. Egervary v. Young,

366 F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049

(2005). Both are designed to provide redress for constitutional

violations. Thus, while the two bodies of law are not “precisely

parallel”, there is a “general trend” to incorporate § 1983 law

into Bivens suits. Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.

1987)).

In order to state a claim under Bivens, a claimant must show

(1) a deprivation of a right secured by the Constitution and laws

of the United States; and (2) that the deprivation of the right

was caused by an official acting under color of federal law. See

Mahoney v. Nat’l Org. For Women, 681 F. Supp. 129, 132 (D. Conn.

1987)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56

(1978)).

The United States has sovereign immunity except where it

consents to be sued. United States v. Mitchell, 463 U.S. 206,

212 (1983). In the absence of such a waiver of immunity,

plaintiff cannot proceed in an action for damages against the

United States or an agency of the federal government for alleged

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deprivation of a constitutional right, see FDIC v. Meyer, 510

U.S. 471, 484-87 (1994), or against any of the individual

defendants in their official capacities, see Kentucky v. Graham,

473 U.S. 159, 166 (1985) (a suit against a government officer in

his or her official capacity is a suit against the government).

To the extent that Plaintiff is seeking relief under Bivens,

his claim is subject to dismissal for failure to state a claim. 

The Complaint asserts an alleged work injury where Plaintiff was

exposed to chemical fumes while working. These allegations may

be construed as an Eighth Amendment claim alleging that

defendants failed to protect Plaintiff from unnecessary harm in

violation of his Eighth Amendment right to be free from cruel and

unusual punishment.

In the context of a failure-to-protect claim, the inmate

must show that he is “incarcerated under conditions posing a

substantial risk of harm,” Farmer v. Brennan, 511 U.S. 825, 833

(1994), and that prison officials knew of and disregarded the

excessive risk to inmate safety, Id. at 837. “A pervasive risk

of harm may not ordinarily be shown by pointing to a single

incident or isolated incidents, but it may be established by much

less than proof of a reign of violence and terror.” Riley v.

Jeffes, 777 F.2d 143, 147 (3d Cir. 1985). “Whether ... prison

official[s] had the requisite knowledge of a substantial risk is

a question of fact subject to demonstration in the usual ways,

including inference from circumstantial evidence, and a fact

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finder may conclude that ... prison official[s] knew of a

substantial risk from the very fact that the risk was obvious.” 

Farmer, 511 U.S. at 842. Deliberate indifference is more than a

mere lack of ordinary due care, however; it is a state of mind

equivalent to a reckless disregard of a known risk of harm. 

Farmer, 511 U.S. at 834; Wilson v. Seiter, 501 U.S. 294, 303

(1991). An inmate may fulfill the subjective element of such a

claim by demonstrating that prison officials knew of such

substandard conditions and “acted or failed to act with

deliberate indifference to a substantial risk of harm to inmate

health or safety.” Ingalls v. Florio, 968 F. Supp. 193, 198

(D.N.J. 1997).

Here, the Complaint fails to allege any facts to support a

claim of deliberate indifference on the part of defendants. 

Plaintiff simply alleges that the room was open next to him. 

Moreover, this Court notes from the medical attachments to the

Complaint that Plaintiff had sustained an eye injury in 2002 when

he was using a knife to scrape stickers from computers and a

piece flew into his eye. Under these limited facts, as presently

alleged in the Complaint, there is no factual support for an

Eighth Amendment claim of deliberate indifference. Therefore,

Plaintiff’s Eighth Amendment claim will be dismissed without

prejudice for failure to support a claim at this time.

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B. The Inmate Accident Compensation Act

Plaintiff seems to assert a claim for compensation under the

Inmate Accident Compensation Act, 18 U.S.C. § 4126. The Inmate

Accident Compensation Act (“IACA”), and the regulations

promulgated thereunder, provide two types of compensation for a

federal inmate who suffers a work-related injury in prison. The

first type of compensation is available only when the inmate is

ready to be released from prison and re-enter the workforce. 28

C.F.R. §§ 301.101(a), 301.301-319. If the inmate still suffers a

residual physical impairment as a result of the work-related

injury, then within forty-five days of his release date, he can

submit a claim for compensation. Id. § 301.303(a). If, however,

he has fully recovered from his injuries while incarcerated, he

is not entitled to any compensation. Id. § 301.314(a). The

second type of compensation is for wages the inmate actually

loses while he is prevented from doing his work assignment due to

his injury. Id. §§ 301.101(b), 301.201-205. Only the first type

of compensation is at issue here.

The IACA is the exclusive remedy for a federal prisoner who

is injured on the job, and it precludes recovery under the

Federal Tort Claims Act (“FTCA”) for a prisoner’s work-related

injuries. 18 U.S.C. § 4126(c)(4); see also 28 C.F.R. § 301.319;

United States v. Demko, 385 U.S. 149, 152-53 (1966); Vaccaro v.

Dobre, 81 F.3d 854, 857 (9 Cir. 1996)(“[Section 4126] is a th

prisoner’s exclusive remedy against the United States for work[-

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]related injuries and bars a prisoner from suit under the [FTCA]

for work[-]related injuries”); Fishman v. United States, 2011 WL

2618897, *2 (E.D.N.C. July 1, 2011). The IACA regulations define

“work-related injury” as “any injury, including occupational

disease or illness, proximately caused by the actual performance

of the inmate’s work assignment.” 28 C.F.R. § 301.102(a). “The

cause of the injury is irrelevant so long as the injury itself

occurred while the prisoner was on the job.” Aston v. United

States, 625 F.2d 1210, 1211 (5 Cir. 1980)(per curiam); “Section th

4126 [also] provides the exclusive remedy where a prisoner with a

pre-existing medical problem is subsequently injured in a workrelated incident.” Wooten v. United States, 825 F.2d 1039, 1044

(6 Cir. 1987). th

Here, it would appear from the allegations in the Complaint

that Plaintiff’s eye injury was work-related and that he may be

entitled to compensation under the IACA. However, because

Plaintiff is not scheduled for release from prison until February

2014, his claim under the Inmate Accident Compensation Act is

premature. Accordingly, the Complaint will be dismissed without

prejudice with respect to this claim.

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IV. CONCLUSION

For the reasons set forth above, Plaintiff’s Complaint will

be dismissed without prejudice, pursuant to 28 U.S.C. §

1915A(b)(1), for failure to state a claim upon which relief may

be granted at this time. An appropriate order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: September 28, 2012

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