NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROGELIO MIRANDA, :

: Civil Action No. 11-2629 (RMB)

Plaintiff, :

:

v. : OPINION

:

WARDEN DONNA ZICKEFOOSE, :

et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Rogelio Miranda

LSCI - Butner

P.O. Box 999

Butner, NC 27509

BUMB, District Judge

Plaintiff Rogelio Miranda, a convicted and sentenced federal

prisoner previously confined at the Federal Correctional

Institution at Fort Dix, New Jersey, seeks to bring this action

in forma pauperis pursuant to Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his

constitutional rights. Based on his affidavit of indigence and

the absence of three qualifying dismissals within 28 U.S.C.

§1915(g), the Court will grant Plaintiff’s application to proceed

in forma pauperis pursuant to 28 U.S.C. § 1915(a) and order the

Clerk of the Court to file the Complaint.

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At this time, the Court must review the Complaint to

determine whether it 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.

I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

On January 26, 2011, a Discipline Hearing Officer at the

Federal Correctional Institution at Fort Dix, New Jersey, found

that Plaintiff had committed the prohibited act of Engaging in a

Sexual Act, Code 205. (Incident Report No. 2101036.) Sanctions

imposed included disallowance of 15 days good conduct time, 27

days disciplinary segregation, and 30 days loss of commissary

privileges. Plaintiff’s administrative appeals were denied.

In his Complaint, Plaintiff asserts that various defendants

violated his constitutional rights in connection with his

conviction of the Code 205 charge, which he characterizes as

“bogus.” He alleges that he was not permitted to present a

defense, that certain witnesses presented perjured testimony,

that investigators misconstrued his statements to make them

incriminating, etc. He also alleges defects in the processing of

his appeals. Plaintiff names as defendants FCI Fort Dix Warden

Donna Zickefoose and nine other correctional employees.

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By this action, Plaintiff explicitly seeks restoration of

the 15 days of disallowed good conduct time, as well as

compensatory and punitive damages.

II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

Moreover, no action may be brought by a prisoner with

respect to prison conditions unless the prisoner has exhausted

available administrative remedies. 42 U.S.C. § 1997e(a). 

“[T]he ... 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002)

(citation omitted). Although failure to exhaust is an

affirmative defense which must be pled by the defendant, a

district court has inherent power to dismiss a complaint which

facially violates this bar to suit. See Ray v. Kertes, 285 F.3d

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287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d 65 (3d Cir.

2000).

In determining the sufficiency of a pro se complaint, the

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

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); 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).

III. Bivens v. Six Unknown Agents

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

Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that

a violation of the Fourth Amendment by a federal agent acting

under color of his authority gives rise to a cause of action

against that agent, individually, for damages. The Supreme Court

has also implied damages remedies directly under the Eighth

Amendment, see Carlson v. Green, 446 U.S. 14 (1980), and under

the equal protection component of the Fifth Amendment’s Due

Process Clause, see Davis v. Passman, 442 U.S. 228 (1979). But

“the absence of statutory relief for a constitutional violation

does not necessarily mean that courts should create a damages

remedy against the officer responsible for the violation.” 

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Schreiber v. Mastrogiovanni, 214 F.3d 148, 152 (3d Cir. 2000)

(citing Schweiker v. Chilicky, 487 U.S. 412 (1988).

Relying upon Bivens, several courts have implied a damages cause

of action against federal officers, under the Due Process Clause

of the Fifth Amendment, for claims by federal pre-trial detainees

alleging inadequate medical care or unconstitutional conditions

of confinement. See, e.g., Lyons v. U.S. Marshals, 840 F.2d 202

(3d Cir. 1988); Magluta v. Samples, 375 F.3d 1269 (11th Cir.

2004); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978), cert.

denied, 446 U.S. 928 (1980).

The Supreme Court has not addressed whether supervisors in

Bivens actions may be held liable on a theory of respondeat

superior. Most courts to address the issue, however, have held

that liability may not be based on respondeat superior. See,

e.g., Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.

2000)(collecting cases); Laswell v. Brown, 683 F.2d 261, 268 &

n.11 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983) (basing

its conclusion on the fact that the Supreme Court has looked to

42 U.S.C. § 1983 cases in evaluating the nature of defendant

officials’ qualified immunity); Kite v. Kelly, 546 F.2d 334,

337-38 (10th Cir. 1976). See also Parker v. U.S., 197 Fed.Appx.

171, 173 n.1 (3d Cir. 2006) (not precedential); Balter v. U.S.,

172 Fed.Appx. 401, 403 (3d Cir. 2006) (not precedential). This

Court finds persuasive the reasoning of those courts that have

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declined to impose respondeat superior liability in Bivens

actions.

IV. ANALYSIS

In a series of cases beginning with Preiser v. Rodriguez,

411 U.S. 475 (1973), the Supreme Court has analyzed the

intersection of federal civil rights actions and the federal

habeas corpus statute, 28 U.S.C. § 2254. In Preiser, state

prisoners who had been deprived of good-conduct-time credits by

the New York State Department of Correctional Services as a

result of disciplinary proceedings brought a civil rights action

under 42 U.S.C. § 1983, seeking injunctive relief to compel

restoration of the credits, which would have resulted in their

immediate release. 411 U.S. at 476. The prisoners did not seek

compensatory damages for the loss of their credits. 411 U.S. at

494. The Court held that “when a state 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.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Court

addressed a corollary question to that presented in Preiser,

whether a prisoner could challenge the constitutionality of his

conviction in a suit for damages only under § 1983, a form of

relief not available through a habeas corpus proceeding. Again,

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the Court rejected § 1983 as a vehicle to challenge the

lawfulness of a criminal judgment.

[I]n 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 determination, or called into

question by a federal court’s issuance of a writ of

habeas corpus, 28 U.S.C. § 2254. A claim for damages

bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable

under § 1983.

512 U.S. at 486-87 (footnote omitted). The Court further

instructed district courts, in determining whether a complaint

states a claim under § 1983, to evaluate whether a favorable

outcome would necessarily imply the invalidity of a criminal

judgment.

Thus, when a state prisoner seeks damages in a § 1983

suit, the district court must consider whether a

judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence; if

it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or

sentence has already been invalidated. But if the

district court determines that the plaintiff’s action,

even if successful, will not demonstrate the invalidity

of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in

the absence of some other bar to the suit.

512 U.S. at 487 (footnotes omitted). The Court further held that

“a § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the

conviction or sentence has been invalidated.” Id. at 489-90.

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In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme

Court applied the lessons of Preiser and Heck to a state prisoner

action, seeking compensatory and punitive damages, challenging

the constitutionality of procedures used in a prison disciplinary

proceeding that resulted in the loss of good-time credits, but

not necessarily challenging the result and not seeking the

restoration of the good-time credits. Again, the Court

emphasized that such a claim is not cognizable under § 1983 if a

favorable outcome would necessarily imply the invalidity of the

challenged judgment, there the disciplinary finding and

punishment. 520 U.S. at 646-8.

“Considering Heck and summarizing the interplay between

habeas and § 1983 claims, the Supreme Court recently explained

that, ‘a state prisoner's § 1983 action is barred (absent prior

invalidation) - no matter the relief sought (damages or equitable

relief), no matter the target of the prisoner's suit (state

conduct leading to conviction or internal prison proceedings) -

if success in that action would necessarily demonstrate the

invalidity of the confinement or its duration.’” Williams v.

Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (quoting Wilkinson v.

Dotson, 544 U.S. 74, 81-82 (2005)) (emphasis in original).

The doctrine of Preiser, Heck and their progeny, decided in

the context of § 1983 civil rights actions against state actors,

applies to Bivens-type actions against federal officers. See,

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e.g., Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir. 1998);

Messer v. Kelly, 129 F.3d 1259, 1997 WL 712811 (4th Cir. 1997)

(unpubl.); Pandey v. Freedman, 66 F.3d 306, 1995 WL 568490 (1st

Cir. 1995) (unpubl.); Abella v. Rubino, 63 F.3d 1063, 1065 (11th

Cir. 1995); Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995);

Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994).

Here, Plaintiff’s challenge to the validity of the

disciplinary proceeding, which resulted in the disallowance of 15

days good time credits, is a challenge to the duration of his

confinement and must be brought as a habeas action under 28

U.S.C. § 2241, following exhaustion of his administrative

remedies. His related action for damages for any allegedly

unconstitutional confinement has not yet accrued, as it has not

yet been otherwise determined that the disciplinary proceeding

violated his constitutional rights.

V. CONCLUSION

For the reasons set forth above, the Complaint will be

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

§§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a

claim. It does not appear that Plaintiff can cure the defects of

his Complaint at this time. An appropriate order follows.

s/Renée Marie Bumb 

Renée Marie Bumb

United States District Judge

Dated: January 31, 2012 

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