NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

CESAR VELAZQUEZ, :

:

Plaintiff, :

:

v. :

:

DONNA ZICKEFOOSE, et al., :

:

Defendants. :

 :

Civil No. 11-2459 (RMB)

OPINION

APPEARANCES:

CESAR VELAZQUEZ, #10272-067

FCI Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

Plaintiff Pro Se

BUMB, District Judge

Cesar Velazquez, an inmate who is confined at FCI Fort Dix,

filed a paid Complaint against the Warden and several other

officials at FCI Fort Dix. This Court has screened the Complaint

for dismissal, as required by 28 U.S.C. § 1915A, and, for the

reasons set forth below, will dismiss the Complaint, without

prejudice to the filing of an amended complaint.1

 

1 Plaintiff should note that once an amended complaint is

filed, the original complaint no longer performs any function in

the case and “cannot be utilized to cure defects in the amended

[complaint], unless the relevant portion is specifically

incorporated in the new [complaint]. 6 Wright, Miller & Kane,

Federal Practice and Procedure: Civil 2d § 1476 (1990)

(footnotes omitted). An amended complaint may adopt some or all

of the allegations in the original complaint, but the

identification of the particular allegations to be adopted must

(continued...)

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I. BACKGROUND

Plaintiff brings this action pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971). The named defendants are FCI Fort Dix Warden Donna

Zickefoose; Associate Warden Jacqueline B. Nichols; Captain Janel

Fitzgerald; Special Investigative Agent D. Adams; former Unit

Manager, Jennifer Knox; and Counselor Battiste. Plaintiff’s

submissions consist of a Complaint, Plaintiff’s affidavit,

administrative decisions, and Inmate Investigative Report of

Disruption of Normal Operations East Side Housing Units 5703,

5711, & 5702, at FCI Fort Dix, dated March 2010. This Court will

construe the Complaint as incorporating Plaintiff’s affidavit and

the attached documents. (Dkt. 1.) So construed, Plaintiff’s

Complaint sets forth the following factual allegations.

Plaintiff began serving a 240-month sentence imposed for

conspiracy to distribute cocaine on June 5, 2001. From June 5,

2001, until January 20, 2009, Plaintiff was confined at FCI

McKean. On January 20, 2009, he arrived at FCI Fort Dix, a lower

security institution, and officials placed him in general

population Unit 5702. In March 2009, officials allegedly placed

1

(...continued)

be clear and explicit. Id. To avoid confusion, this Court

instructs Plaintiff to file an amended complaint that is complete

in and of itself. Plaintiff may attach documents to the amended

complaint, but all factual allegations regarding the liability of

each defendant must be set forth in the amended complaint. 

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him in the Special Housing Unit (“SHU”) to investigate his

potential involvement in a gang-related fight. (Dkt. 1 at 46-

52.) Plaintiff alleges that his mother frequently telephoned

Unit Manager Jennifer Knox, “[b]ut, after awhile Ms. Knox had

become so annoyed and furious by the calls that she rebuked me

because of them. Ms. Knox had denounced the calls and even

denied them. She had, thus, personally become filled with

disgust and rage toward me that it became unbearable for me to

handle any of my affairs with the Unit Team.” (Dkt. 1 at 47.) 

Plaintiff asserts that officials discharged him from the SHU

after one month without a hearing or any finding that he had been

involved in the gang fight. Id. 

The Investigative Report states that in early December 2009,

“the entire Fort Dix inmate population was notified in writing

and via town hall meeting that due to the unprecedented amount of

contraband (most notably, cell phones and tobacco) recovered

throughout the institution, unit-wide restrictions would be

enforced on a progressive basis when contraband was recovered.” 

(Dkt. 1 at 30.) The report states that by January 22, 2010, Unit

5703 had reached Level 4 of the unit-wide restrictions due to the

recovery of cell phones and other contraband on the unit; on

January 26, 2010, inmates in Unit 5703 activated multiple pullstation fire alarms in the housing unit, disrupting normal

operations. Id. at 31. After a mass shakedown, five cell phones

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and six chargers were recovered from Unit 5703 and several

inmates were placed in the SHU. Id. The next day, 315 inmates

at the satellite camp boycotted the noon meal and at least 42

inmates were identified for placement in the SHU pending transfer

to MDC Brooklyn. Id. at 32. On January 28, 2010, inmates

activated fire alarm pull-stations in Units 5702 (Plaintiff’s

Unit), 5703 and 5711; well over 100 inmates from these units were

sent to SHU by February 3, 2010. Id. at 33-35. “[T]o relieve

overcrowding in the SHU,” hundreds of inmates were bussed to FMC

Devens, MA, and MDC Brooklyn. Id. at 35-36. The report states

that over 700 inmates housed in Units 5702, 5703, and 5711 were

interviewed:

The tone of the information gathered was

consistent - inmates were dissatisfied with

the unit-wide restrictions imposed following

contraband recoveries. Many inmates stated

they felt the restrictions were “unfair” and

that it was unjust to penalize all inmates

for the actions of a few. Over 700 inmates

were interviewed and all were afforded the

opportunity to identify individuals

responsible for the introduction of

contraband and/or the repeated activation of

the fire alarms. Few offered information of

any specificity or of use. Those inmates

identified by one or more sources (inmate or

staff) as being involved in either contraband

trafficking or disruptive activity were

placed in the SHU. Also placed in the SHU

were inmates who boisterously resisted the

interview or shakedown processes.

A significant number of inmates interviewed

suggested the disruptive activities occurring

in Units 5702, 5703, and 5711 were a

coordinated effort. It was further suggested

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that after the initial fire alarms were

activated in Unit 5703 on Tuesday, January

26, 2010, Units 5702 and 5711 were to follow

suit. No explanation as to why they did not

was offered; however, the subsequent

activation of numerous false fire alarms in

those two units later in the week lends

credence to existence of an organized plot

intended to interrupt normal operations.

(Dkt. 1 at 36.) 

Plaintiff asserts in his affidavit that in the early morning

hours on February 3, 2010, armed officials raided Plaintiff’s

room (222), handcuffed Plaintiff, escorted him onto a bus, and

placed him in the SHU. (Dkt. 1 at 48.) Plaintiff alleges that

he remained in the SHU at FCI Fort Dix for two weeks, where he

slept on a bare floor without bedding in the middle of February

in a room without heat. He alleges that 

the Warden, Captain, Unit Team members and an

entourage of others made their rounds to the

SHU. While there, the Captain . . .

approached my cell. As she did, I asked the

Captain concerning my situation and whether

there was a Detention Order because I had not

received one. I then stated that I must be

released into general population without a

“Lock-Up Order” and that I shouldn’t be

punished because I would not

“inform”/cooperate. The Captain refused to

answer any of my questions and basically

refused to speak to me. The others touring

the SHU, aware of my ranting, simply avoided

my cell.

(Dkt. 1 at 49.) 

Plaintiff asserts that on February 18, 2010, officials

transported him to MDC Brooklyn and housed him 

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in 5 South “The Old Building” for residence. 

Officially, the housing in 5 South had been

declared condemned and unlivable. The

building contained asbestos and lead paint. 

The lights remained on 24 hours a day and the

units were overcrowded with 120 inmates on an

open dorm floor.

The Unit remained unsanitary; very dirty with

only two toilets for the 120 inmates. I was

given a bed roll that contained sheets and

clothing which were soiled with dirt and

bodily fluids. I was not provided eating

utensils for almost 2 weeks. I had to eat

with my hands not to mention the food being

horribly bad and insufficient in

portions/calorie intake. I even cracked a

tooth on a piece of hard rice.

***

I was deprived of visitation. My family

attempted a visitation for their first time

while I was in MDC Brooklyn but, was forced

to turn around because they were told I

wasn’t there . . .

I was deprived of medical attention. While

in MDC Brooklyn, I was diagnosed with high

blood pressure due to the incident of the

kidnapping by Bureau of Prison officials. I

had a constant nose bleed. I had also been

scheduled for a follow-up eye exam before I

left FCI Fort Dix but cold not have the exam

because of my departure. The exam was

delayed and during which I was experiencing

exceeding pain. I had fluid build up in my

eye and a bump behind the retina . . .

I was also deprived recreation. I had no

ability or means for which to achieve

recreation. I was housed in an enclosed

environment without fresh air or sunlight. 

There was no where to walk or run. I could

not perform even calisthenics due to the

overcrowded facility. But, if I could, a low

calorie diet, designed for sedentary persons,

would not have allowed me to do much.

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In was in addition deprived of sleep0. I

could not sleep in a room crowded with 120

inmates who, half of them, were up all night

making loud noises and disturbing the peace. 

I could not sleep in a rat and insect

infested environment not knowing whether I

would be harmed. I also could not sleep in

an environment where the lights remained on

at high intensity 24 hours a day and seven

days a week. I’ve suffered much stress and

anxieties due to lack of sleep. And, I

suffered with the additional strain my eyes

had to go through which made my eye condition

much worse.

I had to deal with all of these hardships for

approximately five months until July 7, 2010

when I was able to return to Fort Dix’s

general population.

(Dkt. 1 at 49-51.) 

Plaintiff further asserts that he was deprived of his

personal property while he was confined at MDC Brooklyn, and,

when he got back to FCI Fort Dix on July 7, 2010, his personal

property was missing.

Plaintiff asserts that on March 25, 2010, he submitted an

administrative remedy to the Warden of MDC Brooklyn. (Dkt. 1 at

22-23.) On May 11, 2010, Warden Duke Terrell denied

administrative relief:

A review of your case reveals, on or about

January 25, 2010, a group of inmates at FCI

Fort Dix attempted to disrupt the

institution’s activities. As a result, the

Disturbance Control Team was activated and

you were escorted to the Special Housing

pending further investigation. On February

3, 2010, you were transferred to MDC

Brooklyn, New York, from FCI Fort Dix, New

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Jersey, to alleviate overcrowding in their

Special Housing Unit.

You received no disciplinary infraction

regarding the incident, therefore, alleging a

violation of due process is unfounded . . .

In regards to your statement about losing

weight and having increased blood pressure,

you were seen in the Health Services

Department on March 12, 2010. Medical

records indicate that you expressed no

medical concerns at that time, and you were

advised to return to sick call if any medical

symptoms should arise.

Finally, MDC Brooklyn is an Administrative

facility, and does not make any determination

regarding any inmate’s specific designation.

(Dkt. 1 at 23.)

The Regional Director denied Plaintiff’s appeal on July 9,

2010, and on January 25, 2011, Harrell Watts, Administrator of

National Inmate Appeals denied the final administrative appeal: 

Our review of the matter reveals the Warden

and the Regional Director adequately

responded to this issue. You arrived at Fort

Dix in January 2009, as a result of a lesser

security transfer. You were notified that

you were placed in the Special Housing Unit

there in February 2010, as a result of an

open investigation. During the pendency of

this investigation, you were temporarily

transferred to the Metropolitan Detention

Center in Brooklyn, New York. Once the

investigation closed, you were transferred

back to FCI Fort Dix in July 2010. In this

appeal, you present no evidence showing that

you have been violated in any way, or that

staff have acted contrary to Bureau of

Prisons policy. You are encouraged to

dialogue with your Unit Team. If you have

safety concerns, inform your Unit Team.

8

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(Dkt. 1 at 27.)

Plaintiff maintains that defendants “did knowingly and

intentionally conspire to invidiously discriminate and to deprive

Cesar Velazquez equal protection of the laws . . . by

Administratively Detaining him;” “did knowingly and intentionally

without notice and hearing cause the deprivation of property,

punishment, and atypical hardship of Cesar Velazquez leading up

to and during his Administrative Detention due to his failure to

‘inform’/cooperate during an investigation of regulation

violations without Due Process of Law;” “did knowingly and

intentionally without authority/order and with deliberate

indifference cause the cruel and unusual punishment of Cesar

Velazquez leading up to and during his Administrative Detention

due to his failure to ‘inform’/cooperate during an investigation

of regulation violations.” (Dkt. 1 at 14-17.) He seeks

declaratory relief, injunctive relief, and damages for violation

of his constitutional rights.

II. STANDARD FOR 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 the Court to review a complaint in a civil action in

which a prisoner seeks redress against a governmental employee or

entity. See 28 U.S.C. § 1915A(a). The PLRA requires the Court

to sua sponte dismiss any claim if the Court determines that it

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is frivolous, malicious, fails to state a claim on which relief

may be granted, or seeks monetary relief from a defendant who is

immune from such relief. See 28 U.S.C. § 1915A(b). A claim is

frivolous if it "lacks even an arguable basis in law" or its

factual allegations describe "fantastic or delusional scenarios." 

Neitzke v. Williams, 490 U.S. 319, 328 (1989); see also Roman v.

Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). 

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), hammered 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),2 which was

previously applied to determine if a federal complaint stated a

claim. See Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.

2009). To survive dismissal under Iqbal, “a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim for relief that is plausible on its face.’ A claim has

facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.' ” Iqbal, 129 S.

Ct. at 1949 (citation omitted). The plausibility standard “asks

for more than a sheer possibility that a defendant has acted

unlawfully. Where a complaint pleads facts that are merely

2

 The Conley court held that a district court was permitted

to 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.”

Conley v. Gibson, 355 U.S. at 45-46. 

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consistent with a defendant’s liability, it stops short of the

line between possibility and plausibility of entitlement to

relief”, and will be dismissed. Id. (citations and internal

quotation marks omitted). 

The Third Circuit instructs that, to determine the

sufficiency of a complaint under the pleading regime established

by Iqbal, 

a court must take three steps: First, the

court must “tak[e] note of the elements a

plaintiff must plead to state a claim.” 

Iqbal, 129 S. Ct. at 1947. Second, the court

should identify allegations that, “because

they are no more than conclusions, are not

entitled to the assumption of truth.” Id. at

1950. Finally, “where there are well-pleaded

factual allegations, a court should assume

their veracity and then determine whether

they plausibly give rise to an entitlement

for relief.” Id.

Santiago v. Warminster Township, 629 F. 3d 121, 130 (3d Cir.

2010); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211

(3d Cir. 2009) (“a complaint must do more than allege the

plaintiff's entitlement to relief. A complaint has to “show”

such an entitlement with its facts”) (emphasis supplied). The

Court is mindful, however, that the sufficiency of this pro se

pleading must be construed liberally in favor of the plaintiff,

even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007).

III. DISCUSSION

A court’s initial task is to “tak[e] note of the elements

[Plaintiff] must plead” in order to state a claim of liability. 

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See Iqbal, 129 S Ct. at 1947-48. In Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the

Supreme Court “recognized for the first time an implied private

action for damages against federal officers alleged to have

violated a citizen’s constitutional rights.” Correctional

Services Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme

Court found an implied damages remedy available under the Fourth

Amendment. Bivens, 403 U.S. at 397. The Supreme Court has

recognized an implied damages remedy under the Due Process clause

of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 (1979),

and the Cruel and Unusual Punishment clause of the Eighth

Amendment, Carlson v. Green, 446 U.S. 14 (1980). To state a

claim for damages under Bivens, a plaintiff must show that

federal officers violated his constitutional rights. See

Malesko, 534 U.S. at 66. 

This Court reads the Complaint, when combined with

Plaintiff’s affidavit and the documents attached to the

Complaint, as attempting to assert the following claims under

Bivens: (a) deprivation of Plaintiff’s personal property

violated due process, and (b) Plaintiff’s conditions of

confinement from February 3, 2010, through July 7, 2010, imposed

atypical and significant hardship in relation to the ordinary

incidents of prison life without due process, see Sandin v.

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Conner, 515 U.S. 472, 484 (1995), and inflicted cruel and unusual

punishment in violation of the Eighth Amendment.

A. Due Process - Property Loss

Plaintiff asserts that he was deprived of personal property

when he was sent to the SHU. However, property loss caused by

the intentional or negligent unauthorized act of a prison

official, as alleged in the instant Complaint, does not give rise

to a procedural due process claim where a post-deprivation remedy

satisfying minimum procedural due process requirements is

available for the loss. See Parratt v. Taylor, 451 U.S. 527

(1981) (overruled in part on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986)); see also Zinermon v. Burch, 494

U.S. 113, 115 (1990); Hudson v. Palmer, 468 U.S. 517 (1984);

Holman, 712 F.2d at 856. The Federal Tort Claims Act (“FTCA”),

28 U.S.C. §§ 1346(b), 2671-80, provides a post-deprivation

judicial remedy to persons who believe they were deprived of

property at the hands of government officials. The Court finds

that the FTCA was available to Plaintiff as a remedy for his

alleged property loss at the hands of prison officials.3

 See

Akervik v. Ray, 24 Fed. App’x. 865, 2001 WL 1429413 (10th Cir.

2001) (dismissing due process claim by federal prisoner against

3 Plaintiff’s due process claim fails as a matter of law

even if he is presently time-barred from pursuing his claim under

the FTCA. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 437

(1982); Holman, 712 F.2d at 857 & n.3.

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prison officials for loss of art work because the FTCA provides

an adequate post-deprivation remedy); Slade v. Petrovsky, 528 F.

Supp. 99 (M.D. Pa. 1981) (same); see also Holman, 712 F.2d at 857

(finding no due process violation for state prisoner's property

loss under Fourteenth Amendment because state tort claims act

provided adequate post-deprivation remedy); Asquith v. Volunteers

of America, 1 F. Supp.2d 405, 419 (D.N.J. 1998), aff'd 186 F.3d

407 (3d Cir. 1999) (same). Because the FTCA provided all the

process that was due for Plaintiff’s alleged property loss, this

Court will dismiss Plaintiff’s due process deprivation of

property claim with prejudice for failure to state a claim upon

which relief may be granted. See 28 U.S.C. § 1915A(b)(1).

B. Conditions of Confinement

Plaintiff alleges that his due process and Eighth Amendment

rights were violated while he was in administrative detention at

FCI Fort Dix from February 3 to 17, 2010, and MDC Brooklyn from

February 18, 2010, through July 7, 2010. 

A prisoner is deprived of a liberty interest protected by

the Due Process Clause when the conditions of confinement

“impose[] atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484 (1995). In considering whether the

conditions impose atypical and significant hardship in relation

to the ordinary incidents of prison life, a court must consider

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“two factors: 1) the amount of time the prisoner was placed into

. . . segregation; and 2) whether the conditions of his

confinement . . . were significantly more restrictive than those

imposed upon other inmates in solitary confinement.” Shoats v.

Horn, 213 F. 3d 140, 144 (3d Cir. 2000). 

To state an Eighth Amendment conditions of confinement

claim, an inmate must allege facts plausibly showing (1)

objectively, his conditions were so severe that they deprived him

of an identifiable, basic human need, e.g, food, clothing,

shelter, sleep, recreation, medical care, and reasonable safety,

see Farmer v. Brennan, 511 U.S. 825, 834 (1994); Helling v.

McKinney, 509 U.S. 25, 32 (1993); Wilson v. Seiter, 501 U.S. 294,

305 (1991), and (2) defendant was deliberately indifferent to the

risk of harm to the plaintiff’s health or safety. See Farmer,

511 U.S. at 837. 

Here, the allegations in this Complaint, when read with

those in Plaintiff’s affidavit, plausibly satisfy the first

prong. However, Plaintiff’s allegations do not satisfy the

subjective component of a conditions of confinement claim. An

individual defendant in a civil rights action must participate in

the alleged wrongdoing. See Iqbal, 129 S. Ct. at 1948 (“Because

vicarious liability is inapplicable to Bivens and § 1983 suits, a

plaintiff must plead that each Government-official defendant,

through the official’s own individual actions, has violated the

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Constitution”); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d

Cir. 1988) (“A defendant in a civil rights action must have

personal involvement in the alleged wrongs”). A supervisory

defendant cannot be found liable under Bivens solely on the basis

of knowledge and acquiescence in a subordinate’s misconduct. 

Iqbal, 129 S. Ct. at 1949. Here, Plaintiff does not assert

sufficient factual matter in his submissions to show that each

defendant knowingly placed him in allegedly unconstitutional

conditions or knowingly decided to house him under these

conditions. 

Similarly, Plaintiff does not assert facts showing that each

named individual defendant was deliberately indifferent to his

health or safety. To establish deliberate indifference, a

plaintiff must set forth facts “show[ing] that the official was

subjectively aware” of the allegedly substandard conditions. See

Farmer v. Brennan, 511 U.S. 825, 829 (1994). “The knowledge

element of deliberate indifference is subjective, not objective

knowledge, meaning that the official must actually be aware of

the existence of the excessive risk; it is not sufficient that

the official should have been aware.” Beers-Capitol v. Whetzel,

256 F.3d 120, 133 (3d Cir. 2001). Here, Plaintiff makes no

allegations whatsoever plausibly showing that each defendant was

deliberately indifferent. Because the Complaint makes no factual

allegations showing the subjective liability of each named

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defendant, and because vicarious liability does not apply under

Bivens, the Complaint fails to satisfy the subjective component

of a conditions of confinement claim under the Eighth Amendment

and the Due Process Clause. 

However, because it is conceivable that Plaintiff simply

neglected to specify facts that could make out a conditions of

confinement claim, this Court will grant him leave to file an

amended complaint that is complete on its face stating a

conditions of confinement claim under the Due Process Clause

and/or the Eighth Amendment against defendants.4 

III. CONCLUSION

For the reasons set forth above, the Court grants

Plaintiff’s application to proceed in forma pauperis and

dismisses the Complaint. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: December 19, 2011

4

 If Plaintiff elects to file an amended complaint, this

amended complaint should be complete on its face, in that the

amended complaint itself should include all relevant factual

allegations which are presently in the Complaint and Plaintiff’s

affidavit, as well as allegations which are not in those

documents showing that each named defendant is liable. 

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