NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE 

________________________________

:

CESAR VELAZQUEZ, :

: Civil Action No. 11-2459 (RMB)

Plaintiff, :

:

 v. :

:

DONNA ZICKERFOOSE, et al., :

: OPINION

Defendants. :

_______________________________________ :

BUMB, District Judge:

This matter is before the Court upon the Clerk’s receipt of

Plaintiff’s second amended complaint, see Docket Entry No. 10

(“Complaint-III”). The Clerk restored this matter to the Court’s

active docket. See Docket Entry No. 13.

I. FACTUAL BACKGROUND

On May 10, 2001, [Plaintiff,] a [felon with] prior drug

trafficking and robbery convictions, [pled guilty to

and] was sentenced for his role in [a] large-scale

distribution of cocaine base, [i.e.,] “crack” cocaine,

in York, Pennsylvania, which resulted in the delivery

of more than 1 kilo of crack cocaine into [that]

community. As a result of the large drug weights

involved, and [Plaintiff’s] . . . prior convictions for

drug and robbery offenses, [he was, upon being]

qualified as a Career Offender[,] . . . sentenced [by

United States District Court for the Middle District of

Pennsylvania] to 240 months imprisonment. 

United States v. Velazquez, et al., Crim. Action No. 00-0290

(YK0 (M.D. Pa.), Docket Entry No. 88, at 1.

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Plaintiff’s judgment of conviction was entered on May 10,

2001, see id., Docket Entry No. 73, and he began serving his term

shortly thereafter at a federal facility in Pennsylvania. See

Instant Matter, Docket Entry No. 10, at 9. He was transferred

from that facility to the FCI Fort Dix eight years later, i.e.,

on January 20, 2009. See id. at 2.1 Two and a half years after

that transfer, he commenced this matter. See Docket Entry No. 1.

 Plaintiff named six Fort Dix officials as defendants: the

warden, the associate warden, the facility’s captain, the

facility’s investigative agent and the unit manager and Unit

counselor of the housing unit where Plaintiff resided during his

Fort Dix stay. See id. at 2-6. As to the warden, Plaintiff

alleged that she was liable to him because “[s]he [was] the Chief

Executive Officer of [Fort Dix] responsible for . . . management

of the [facility].” Id. at 2. As to the associate warden,

Plaintiff asserted that she was liable to him because “she [was]

an assistant, next in line, to the [w]arden.” Id. at 3. As to

the captain, Plaintiff states that she was liable to him because

“[s]he ha[d] charge over all Correctional Officers . . . and

[was] in charge of all matters dealing with security of the

institution.” Id. at 4. 

1 In August 2012, Plaintiff notified this Court of his retransfer to a federal facility in West Virginia, and – in

September 2013, – he informed this Court of his re-re-transfer to

a federal facility in Texas. See Docket Entries Nos. 11 and 12.

2

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With regard to the investigative agent, Plaintiff alleged

that he was liable to Plaintiff because “[h]e [was] a Special

Investigator . . . of inmates and inmate matters, and matters

occurring between inmates and staff.” Id. Finally, as to the

Unit Manager and Unit Counselor, Plaintiff stated that they were

liable to him because the former “direct[ed] and manage[d] the

housing unit [where Plaintiff resided when he was in Fort Dix

general population] and [was] responsible for the unit’s

operation and security,” while the latter “handles phone call

requests, special concerns and requests of inmates, and requests

for administrative remedy form[s].” Id. at 5-6.

The events underlying Plaintiff’s claims are, unfortunately,

described with a such rhetoric that makes understanding the

alleged facts a difficult task.2 The best this Court can

surmise, the alleged events were as follows:

In March 2009, there was a series of violent altercations

between certain members of the Bloods (a predominantly African2 For instance, describing correctional officers who

executed his transfer from Fort Dix general prison population to

the facility’s Special Housing Unit (“SHU”), Plaintiff asserted

that he was “kidnapped by armed gunmen,” Docket Entry No. 10, at

6, 14. The Court notes that Plaintiff’s “‘poetic license’

[statements] are not a basis for relief. Simply put, dry facts

stated in a clear and concise pleading speak volumes for the

purposes of any legal proceeding, while eloquent poetic

‘nothings’ are invariably dismissed as pure rhetoric.” Clauso v.

Glover, 2012 U.S. Dist. LEXIS 139205, at *21-22 (D.N.J. Sept. 26,

2012). 

3

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American street gang) and the Latin Kings (a predominantly

Hispanic-American street gang) who were confined at Fort Dix. 

See id. at 9. In response to those altercations, the Fort Dix

officials: (a) enabled the facility’s emergency protocol (a socalled “lock-down”) that restricted the inmates’ daily operations

and their mobility around the facility; and (b) commenced an

investigation of this chain of disciplinary infractions. See id.

In connection with that investigation, numerous inmates were

transferred from the general population to the SHU. See id.

Plaintiff, who was of Hispanic origin, was among the inmates

transferred to the SHU; he states that the officers advised him

that the transfer was executed for his own protection since the

officers were concerned that, if Plaintiff remained in general

prison population, he could have been perceived as an “informant”

and, thus, might have been hurt by other inmates. See id.3

Plaintiff asserts that he was housed at the SHU for about

one month in connection with that investigation and, during that

month, developed an antagonistic relationship with a certain

inmate whom Plaintiff thought to be an informant. See id. at 10.

3

 Plaintiff, however, believes that he was placed in

jeopardy because of being housed at the SHU, since he speculates

that the members of the Bloods gang confined at the SHU could

have perceived him as a member of the Latin Kings and hurt him. 

See Docket Entry No. 10, at 10. His pleadings, however, make it

abundantly clear that Plaintiff’s speculations were wholly

unfounded and he was neither attacked nor harmed in any way

during his stay at the SHU. See, generally, Docket Entry No. 10. 

4

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Upon expiration of that month, Plaintiff was transferred

back to Fort Dix general population. See id. at 9-10. Plaintiff

then alleges that, on January 26, 2010 (i.e., about ten months

later), he was among the inmates who became subject to another

Fort Dix investigation. That second investigation was based on

an introduction of certain contraband items into Fort Dix and, in

addition, on a mass violation of BOP regulations by numerous

inmates who were housed in three housing units, one of which was

Plaintiff’s, since the inmates in those units activated the

facility’s fire alarms hoping to disrupt Fort Dix operations.4

See id. at 11. The inmates subject to that second investigation

were also transferred to the SHU, and Plaintiff was one of those

inmates.5 See id. at 14. 

4 The inmates activated the fire alarms in order to protest

the possibility of being transferred to a federal facility in

Massachusetts (which transfer the Fort Dix officials contemplated

to relieve overcrowding at Fort Dix). See Docket Entry No. 10,

at 11-14. Plaintiff, however, speculates that, as to him, this

second investigation could have been retaliatory in the sense

that it could have been based upon: (a) the alleged informant’s

dislike of Plaintiff; and/or (b) the numerous phone calls

Plaintiff’s family members were placing to Fort Dix officials ten

months ago, i.e., during the first investigation (that was based

on the altercations between the Bloods and Latin Kings) since,

during that first investigation, Fort Dix officials shared with

Plaintiff their concern with the excessive number and undue

frequency of those phone calls. See id. at 11.

5

 Since the SHU became overcrowded during that second

investigation, many SHU inmates had to triple-cell; Plaintiff

asserts that had to triple-cell, too. See Docket Entry No. 10 at

14. A number of other inmates (who were not subject to that

second investigation) were transferred to the Massachusetts

5

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The bulk of Plaintiff’s claims, hence, derives from the

events related to that second investigation/second confinement at

the SHU, as well as Plaintiff’s transfer to the Brooklyn facility

performed once he was released from the SHU. See id. at 14-35. 

Specifically, Plaintiff asserts that, when he was moved to

the SHU in connection with this second investigation, he was

directed to place his gold chain and hand watch into his locker. 

See id. at 14-15.6 He also asserts that the SHU cell where he

was placed (and where he triple-celled) was cold because the

heating system at the SHU was broken, and Plaintiff learned that

the Fort Dix officials – while working to fix the heating problem

– could not resolve the heating issue fast enough to prevent the

SHU cells from being cold during Plaintiff’s SHU stay. See id.

at 15-16. 

Since, after spending a brief period at the SHU, Plaintiff

was transferred to the Brooklyn facility, his second SHU stay was

only two-weeks. See id. at 16. He, however, extensively

facility or to another facility (located in Brooklyn) to relieve

overcrowding at Fort Dix. Also, as this second investigation

progressed, those inmates who were released from the Fort Dix SHU

were also transferred to Brooklyn, again, with an express purpose

to relieve overcrowding at Fort Dix. See id. at 14-16.

6 Although Plaintiff asserts that he had to sleep on a

“bare floor” during his two weeks at the SHU, it appears that he

might have been sleeping on a mattress placed on the floor, and

the sole accommodation missing was the bed linens. See Docket

Entry No. 10, at 15 (asserting that Plaintiff was sleeping

“without bedding”).

6

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elaborates on his displeasures with his transfer to Brooklyn and

on his Brooklyn conditions of confinement. See id. at 16-18

(raising challenges about his bedding, meals, medical care,

visitation privileges, recreation activities, etc. in Brooklyn). 

He states that he wrote to Fort Dix officials complaining about

his Brooklyn conditions of confinement and was advised that his

claims had to be filed and litigated locally. See id. at 18

(expressing Plaintiff’s disappointment with that response because

Plaintiff preferred to considered himself, “technically[,] on

papers[,] an inmate at FCI Fort Dix”).

Plaintiff states that he was transferred from Brooklyn back

to Fort Dix general population on July 7, 2010, i.e., when the

overcrowding at Fort Dix subsided. See id. at 19. He asserts

that, upon his return, he discovered that his work boots were

missing, as well as his watch, a pair of sneakers and a teeshirt.7

 See id. 

7

 The Complaint-III is silent as to whether Plaintiff put

his boots, sneakers and tee-shirt into his locker prior to his

transfer to the SHU and/or to Brooklyn. It is unclear whether

the watch he placed in his locker was the very watch allegedly

missing. See generally, Complaint-III. The Complaint-III,

however, suggests that the gold chain he placed in the locker

remained safe. See id. This Court, thus, presumes – without

making a finding to that effect – that all these items, i.e., the

chain, the watch, the boots, the sneakers and the tee-shirt, were

fitted into Plaintiff’s locker, but only the gold chain remained

safe. However, as discussed below – and as this Court’s prior

opinion has already detailed – such presumption is of no import

for the purposes of the analysis involved here.

7

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Maintaining that Defendants conspired to violate and did

violate his constitutional rights by the subjecting him to the

above-detailed events, Plaintiff commenced the instant matter

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

Narcotics, 403 U.S. 388 (1971). See id. at 1 and 19-32. 

He seeks $1,016,809.65 in damages. See id. at 32-33.

II. PROCEDURAL BACKGROUND

Since Plaintiff’s original complaint (“Complaint-I”) stated

virtually identical claims, compare Docket Entry No. 1 to Docket

Entry No. 10, this Court screened the original complaint and

dismissed some of Plaintiff’s claims with prejudice and others

without prejudice. See Docket Entries Nos. 1 and 2. For

instance, addressing Plaintiff’s alleged loss of the boots,

sneakers, watch and tee-shirt, this Court explained that

property loss caused by the intentional or negligent

unauthorized act of a prison official . . . 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 [v. Hilton], 712 F.2d [854], 856 [(3d Cir.

1983)]. 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. [An action under] the FTCA was available to

Plaintiff as a remedy for his alleged property loss at

the hands of prison officials [but he elected not to

pursue that readily-available remedy]. See Akervik v.

Ray, 24 F. App’x 865, (10th Cir. 2001) (dismissing a

8

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Bivens due process claim by federal prisoner against

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); . .

. . 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 . . . . See 28 U.S.C. §

1915A(b)(1).

Velazquez v. Zickefoose, 2011 U.S. Dist. LEXIS 145623, at *16-17

(D.N.J. Dec. 19, 2011) (footnote omitted).

Then, switching to Plaintiff’s conditions of confinement

challenges, this Court explained that a prisoner states a viable

conditions-of-confinement claim only if the facts he alleges: (a)

show personal involvement of each named defendant in the alleged

events; and (b) establish that the alleged events

“impose[d an] 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 “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). [Thus, 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

[a] basic human need . . . , 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) [the named] defendant[s were] deliberately

indifferent to the risk of [particular] harm [the

inmate suffered]. See Farmer, 511 U.S. at 837.

Id. at *18-19.

9

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Pointing out that “Plaintiff [failed to] assert facts

showing that each named individual [D]efendant was [personally

involved in the alleged events and] deliberately indifferent to

his health or safety,” this Court dismissed Plaintiff’s

conditions of confinement claims with leave to replead. Id. at

*20; see also Docket Entry No. 2.Brooklyn

In response, Plaintiff filed his first amended complaint. 

See Docket Entry No. 4 (“Complaint-II”). The Complaint-II,

albeit injected with additional and, unfortunately, equally

conclusory allegations, substantively repeated the facts asserted

in the Complaint-I. Compare Docket Entry No. 1 to Docket Entry

No. 4. Thus, this Court dismissed the Complaint-II upon again

explaining to Plaintiff that he was obligated to plead facts

showing each defendant’s personal involvement in the events

amounting to a plausible legal wrong and, out of an abundance of

caution, the Court again granted Plaintiff leave to amend. See

Docket Entries Nos. 5 and 6. The Complaint-III at bar followed,

reciting the same challenges the third time and even repeating

Plaintiff’s loss of property claims that were dismissed with

prejudice upon this Court’s screening of the Complaint-I. See

Docket Entry No. 10.

III. DISCUSSION

A. DUE PROCESS CLAIMS

10

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While the Complaint-III recites Plaintiff’s loss of property

claims, this recital does not change the outcome of this Court’s

analysis. As this Court already pointed out, those claims had to

be exhausted and litigated under the FTCA. 

“The FTCA ‘was designed primarily to remove the sovereign

immunity of the United States from suits in tort, with certain

specific exceptions, to render the Government liable in tort as a

private individual would be under like circumstances.’” Sosa v.

Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting Richards v.

United States, 369 U.S. 1, 6 (1962)); CNA v. United States, 535

F.3d 132, 138 (3d Cir. 2008). Federal district courts have

jurisdiction over civil actions against the United States for

damages “for injury or loss of property, or personal injury or

death caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of

his[/her] office or employment, under the circumstance where the

United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or

omission occurred.” 28 U.S.C. § 1346(b)(1). 

Thus, an inmate may sue the United States – under the FTCA –

to recover damages for loss of property he suffered during

confinement in a federal prison that resulted from negligence or

intentional wrong of a government employee. See Rinaldi v.

United States, 2010 U.S. Dist. LEXIS 66024, at *11 (M.D. Pa. July

11

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1, 2010) (relying on United States v. Muniz, 374 U.S. 150

(1963)).8 In contrast to FTCA actions, which must be brought

against the United States, Bivens constitutional tort lawsuits

can only be lodged against government officials acting in their

individual capacities. Thus, a Bivens action cannot be brought

against the United States, or a federal agency or its agents,

like Fort Dix officials, in their official capacities: such

claims are barred by the doctrine of sovereign immunity. See FDIC

v. Meyer, 510 U.S. 471, 483 (1994); Huberty v. United States

Ambassador to Costa Rica, 316 F. App’x 120 (3d Cir. Aug. 21,

2008); Douglas v. United States, 285 F. App’x 955 (3d Cir. 2008). 

Thus, to recover for his alleged loss of property, Plaintiff

had to commence a timely and duly-exhausted-administratively FTCA

action against the United States. He did not. He cannot now

cure that oversight by raising his loss of property claims

against Defendants named in the instant Bivens matter. That is

why this Court dismissed Plaintiff’s loss of property claims when

it initially screened the Complaint-I and, because this oversight

could not be cured by repleading, this Court dismissed those

claims with prejudice and then again dismissed them addressing

8 Due to the exclusive nature of the remedy available under

the FTCA, and its jurisdictional prerequisites, a court may not

entertain a civil suit for a claim cognizable under 28 U.S.C. §

1346(b) against “any employee of the Government while acting

within the scope of his office or employment.” 28 U.S.C. §

2679(b)(1). 

12

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Plaintiff’s Complaint-II. And that is why these claims will have

to be again dismissed now with prejudice.9

B. FIRST AND EIGHTH AMENDMENT CLAIMS

The remainder of Plaintiff’s challenges suggests his

interest in raising claims asserting violations of his First and

Eighth Amendment rights, not due process rights.10

9

 This Court cannot rule out that Plaintiff, being a pro se

litigant, failed to appreciate the meaning of a “dismissal with

prejudice.” A “dismissal with prejudice” means that a claim is

conclusively dismissed, and the court denies the litigant an

opportunity to re-plead that claim. See, e.g., Maydak v. United

States Dep’t of Educ., 150 F. App’x 136, 138 (3d Cir. Pa. 2005)

(“The dismissal with prejudice means that [the plaintiff] may not

seek to reinstate this [claim]”). 

10 In addition to Plaintiff’s loss of property claims, two

barely fleshed out allegations could be construed as Plaintiff’s

due process challenges: (a) his expression of displeasure with

Fort Dix officials’ decision to transfer him to Brooklyn; and (b)

his passim conclusion that his Equal Protection rights could have

been violated. However, if such due process allegations were

intended, both are subject to dismissal as meritless. It is well

established that no inmate has a Due Process liberty interest in

being assigned to or remaining in the correctional institution of

his/her choice. See Wilkinson v. Austin, 545 U.S. 209 (2005)

(noting that the Constitution does not give rise to a liberty

interest in avoiding transfers to more adverse conditions of

confinement); Olim v. Wakinekona, 461 U.S. 238 (1983) (same);

Meachum v. Fano, 427 U.S. 215, 224-25 (1976) (same); Walker v.

Hughes, 558 F.2d 1247, 1252 (6th Cir. 1977) (“Federal statutory

law gives federal prison officials full discretion in the

treatment of prisoners and does not restrict the authority of

prison officials over the inmates as to placement in more

restrictive living status, transfer to other prisons”). Indeed,

the matters of placement of prisoners are among the “wide

spectrum of discretionary actions that traditionally have been

the business of prison administrators rather than of the federal

courts.” Meachum, 427 U.S. 225. In fact, the Supreme Court has

expressly pointed out that:

13

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1. Personal Involvement Requirement

To properly plead Defendants’ liability, Plaintiff must

assert facts personally implicating each named Defendant in the

events that amount to plausible constitutional wrongs. It has

been long established that claims based solely on the theory of

respondeat superior are facially deficient. See Ashcroft v.

 The initial decision to assign the convict to a

particular institution is not subject to audit under

the Due Process Clause, although the degree of

confinement in one prison may be quite different from

that in another. . . . Neither, in our view, does the

Due Process Clause in and of itself protect a duly

convicted prisoner against transfer from one

institution to another within the . . . prison system.

Confinement in any . . . institution [] is within the

normal limits or range of custody which the conviction

has authorized . . . to impose.

Id. at 224-25 (1976). Plaintiff’s equal protection allegations

fare even worse. The Equal Protection Clause protects similarly

situated individuals from unequal treatment under the law. See

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985); Kuhar v. Greensburg-Salem Sch. Dist., 616 F.2d 676, 677

(3d Cir. 1980). “The central purpose of the Equal Protection

Clause is the prevention of official conduct discriminating on

the basis of race,” Washington v. Davis, 426 U.S. 229, 239

(1976), or any other suspect classification. Thus, Plaintiff had

to establish that Defendants’ actions had a discriminatory effect

and were motivated by a discriminatory purpose. See Bradley v.

United States, 299 F.3d 197, 205-06 (3d Cir. 2002). To show the

former, Plaintiff had to plead facts establishing that he was a

member of a protected class treated differently from those who

were similarly situated but not in that protected class. See

id.; see also PG Publ. Co. v. Aichele, 705 F.3d 91, 115 (3d Cir.

2013). Here, the Complaint-III indicates that a massive amount

of Fort Dix ineach Plaintiff’s pleading unambiguously indicates

that the inmates of all races were investigated/placed at the SHU

during the second Fort Dix investigation and/or transferred to

Massachusetts and Brooklyn. Hence, Plaintiff’s equal protection

challenges are facially meritless. 

14

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Iqbal, 556 U.S. 662, 676-77 (2009); see also Colburn v. Upper

Darby Twp., 946 F.2d 1017, 1027 (3d Cir. 1991); accord Solan v.

Ranck, 326 F. App’x 97, 100-01 (3d Cir. 2009) (“A defendant in a

civil rights action must have personal involvement in the alleged

wrongs; liability cannot be predicated solely on the operation of

respondeat superior”), cert. denied, 558 U.S. 884 (2009). 

Thus, Plaintiff’s reliance on supervisory positions of the

warden, associate warden and captain cannot support a viable

claim, and there are no facts alleged to personally implicated

the investigative agent, the Unit Manager or the Unit Counselor

in any cognizable wrong. Plaintiff, seemingly mindful of this

core deficiency, aims to stitch his claims to Defendants by

asserting that he was subjected to unconstitutional conditions of

confinement at the Brooklyn facility. However, none of the Fort

Dix officials – including all Defendants named in this matter —

could have been personally involved in the administration of the

Brooklyn facility. Correspondingly, Plaintiff’s claims based on

the events that transpired in Brooklyn should have been, upon due

administrative exhaustion, litigated in a separate Bivens matter

filed with the United States District Court for the Eastern

District of New York, as Plaintiff was advised by Fort Dix

officials. In fact, a virtually identical claim was recently

addressed and dismissed as facially deficient in Brown v. United

15

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States, 2014 U.S. Dist. LEXIS 50309 (D.N.J. Apr. 11, 2014), where

the Brown court stated: 

[P]laintiff fails to show that any of the [D]efendants

were responsible for [P]laintiff’s conditions of

confinement while at [the Brooklyn] facility. 

Accordingly, to the extent the claims in the amended

complaint relate to his conditions of confinement at

MDC — Brooklyn, they will again be dismissed.

Id. at *20.11 

Therefore, all Plaintiff’s challenges against each named

Defendant will be dismissed with prejudice for failure to assert

facts establishing these Defendants’ personal involvement in

conduct that could qualify as a plausible constitutional wrong.12

11 Moreover, this Court is not in the position to reach the

issue of whether Plaintiff’s rights were violated by the events

that allegedly transpired at the Brooklyn facility since this

Court has no in personam jurisdiction over the officials who

might have wronged Plaintiff during his Brooklyn stay. No

statement in this Opinion shall be construed as barring Plaintiff

from raising these claims in the proper forum, i.e., the United

States District Court for the Eastern District of New York. 

Analogously, no statement in this Opinion shall be construed as

expressing this Court’s opinion that Plaintiff’s claims against

the Brooklyn officials should be deemed timely (or untimely),

properly exhausted (or unexhausted) and meritorious (or

meritless) in the event Plaintiff commences such a civil action. 

12 Generally, a plaintiff may be granted “leave [to amend,]

. . . when justice so requires.” Foman v. Davis, 371 U.S. 178,

182 (1962); Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir.

1993). Indeed, “[t]he Federal Rules reject the approach that

pleading is a game of skill in which one misstep . . . may be

decisive to the outcome and accept the principle that the purpose

of pleading is to facilitate a proper decision on the merits.”

Foman, 371 U.S. at 182-83. However, where the plaintiff had

already amended plaintiff’s complaint and yet failed to allege

sufficient facts, the courts may find that “[t]hree bites at the

apple is enough,” and conclude that it is proper to deny leave to

16

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However, mindful that Plaintiff might be able to cure the

aforesaid deficiency by naming defendants personally involved in

constitutional torts that might have transpired at Fort Dix, this

Court finds it prudent not to end its analysis at this juncture. 

Rather, this Court finds it warranted to examine all of

Plaintiff’s First and Eighth Amendment claims, provided that they

were raised in connection with Plaintiff’s Fort Dix stay, on the

merits.

2. Conspiracy Claim

Plaintiff’s overarching claim is his speculation that Fort

Dix officials could have conspired to violate his constitutional

rights. That allegation, however, fail to state a plausible

claim.

42 U.S.C. § 1985 provides:

 If two or more persons in any State . . . conspire [to]

depriv[e], either directly or indirectly, any person or

class of persons of the equal protection of the laws,

or of equal privileges and immunities under the laws;

or for the purpose of preventing or hindering the

constituted authorities of any State . . . , the party

so injured or deprived may have an action for the

recovery of damages occasioned by such injury or

deprivation, against any one or more of the

conspirators.

42 U.S.C. § 1986 states:

replead. Salinger v. Projectavision, Inc., 972 F. Supp. 222, 236

(S.D.N.Y. 1997) (citing Olkey v. Hyperion 1999 Term Trust, Inc.,

98 F.3d 2 (2d Cir. 1996)).

17

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 Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in [S]ection

1985 of this title, are about to be committed, and

having power to prevent or aid in preventing the

commission of the same, neglects or refuses so to do,

if such wrongful act be committed, shall be liable to

the party injured . . . for all damages caused by such

wrongful act, which such person by reasonable diligence

could have prevented.

 Thus, to properly state a § 1983 conspiracy claim,13

Plaintiff must allege facts showing that persons acting under

color of law conspired to deprive him of a federally protected

right, see Perano v. Twp. of Tilden, 423 F. App’x 234 (3d Cir.

2011), i.e., his facts must establish that the defendants he had

in mind reached a “‘meeting of the minds’” toward that goal. 

Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183,

205 (3d Cir. 2008) (quoting Adickes v. S.H. Kress & Co., 398 U.S.

144, 158 (1970)). Here, Plaintiff merely states, in a conclusive

and speculative manner, that there must have been a conspiracy

against him. No statement made in the Complaint-I, Complaint-II

or Complaint-III indicates that any Fort Dix officials reached a

meeting of minds so as to deprive him of his constitutional

rights. Since – having three opportunities to plead that

conspiracy claim – Plaintiff has stated no facts in support of

13 “A Bivens action . . . is the federal equivalent of the

§ 1983 cause of action against state actors, [it] will lie where

the defendant has violated the plaintiff’s rights under color of

federal law.” Brown v. Philip Morris, Inc., 250 F.3d 789, 801

(3d Cir. 2001).

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that claim, it will be dismissed with prejudice as deficient

regardless of whether it was raised against the named Defendants

or Plaintiff had other Fort Dix officials in mind. 

As the Court of Appeals observed:

[Plaintiff] based his civil conspiracy claim upon the

conclusory allegation that prison officials agreed to

act against him. Without more, the bare allegation of

an agreement is insufficient to sustain a conspiracy

claim. See Abbott v. Latshaw, 164 F.3d 141, 148 (3d

Cir. 1998) (conclusory allegations of concerted action

are insufficient for a § 1983 conspiracy claim); Rose

v. Bartle, 871 F.2d 331, 366 (3d Cir. 1989)

(allegations supporting a conspiracy claim . . . must

be sufficiently specific). Dismissal [is] therefore

appropriate.

Michtavi v. United States, 345 F. App’x 727, 731 (3d Cir. 2009).

3. Substantive Claims Related to Fort Dix

In addition to his key conspiracy claim, Plaintiff also

alleged that his constitutional rights were, in fact, violated

by the events that transpired at Fort Dix. Plaintiff errs. 

a. First Amendment Claim

Here, Plaintiff speculates that his second confinement at

the SHU (in connection with the second investigation based on

contraband and fire alarms) might have been “retaliatory”

because, during the first investigation/first SHU confinement

(based on the altercations between the Bloods and Latin Kings):

(a) Plaintiff had developed an antagonistic relationship with an

inmate whom he believed to be an informant, and Plaintiff

speculates that the informant might have had made less-than19

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flattering comments about him to Fort Dix officials; and/or (b)

Fort Dix officials shared with Plaintiff their concern with the

undue number and frequency of the phone calls placed by

Plaintiff’s relatives. 

 “A prisoner alleging retaliation must show (1)

constitutionally protected conduct, (2) an adverse

action by prison officials sufficient to deter a person

of ordinary firmness from exercising his constitutional

rights, and (3) a causal link between the exercise of

his constitutional rights and the adverse action taken

against him.”

Mack v. Yost, 427 F. App'x 70, 72 (3d Cir. 2011) (per curiam)

(quoting Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003),

emphasis supplied). Here, Plaintiff’s allegations facially fail

to meet these requirements, since neither Plaintiff’s act of

developing an adverse relationship with the alleged informant

nor the numerous frequent phone calls Plaintiff’s relatives

placed to Fort Dix officials inquiring about Plaintiff’s safety

at the SHU could qualify as Plaintiff’s constitutionally

protected speech.14

14 In addition, the ten-month period between the first and

second investigations suggest the absence of a causal link. To

establish a causal connection, Plaintiff must show that the

conduct at issue was a substantial or motivating factor for the

adverse response. See Velasquez v. Diguglielmo, 516 F. App’x 91,

95 (3d Cir. 2013) (per curiam) (citing Carter v. McGrady, 292

F.3d 152, 157, 158 (3d Cir. 2002)). 

 [T]he plaintiff (here, a prisoner) usually has to prove

one of two things: (1) an unusually suggestive time

proximity between the protected activity and the

allegedly retaliatory action; or (2) a pattern of

20

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Since Plaintiff’s allegations unambiguously indicate that

he has no viable retaliation claim, and that deficiency cannot

be cured by repleading, his First Amendment challenges will be

dismissed with prejudice regardless of whether or not they were

raised against the named Defendants or Plaintiff had some other

Fort Dix officials in mind. 

b. Eighth Amendment Claims

Plaintiff also asserted that Fort Dix officials were liable

to him for overcrowding at Fort Dix, as well as for exposing him

to what Plaintiff speculates could have been a risk of injury

during the first investigation, and for housing him at a cold

antagonism coupled with timing to establish a causal

link. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d

Cir. 2007). “If neither of these showings is made,

then the plaintiff must show that, from the evidence in

the record as a whole, the trier of fact should infer

causation.” Id.

DeFranco v. Wolfe, 387 F. App’x 147, 154 (3d Cir. 2010). If a

few months expired between the alleged events, such passage of

time is usually too great to warrant a finding of a causal

connection. Accord Garcia v. New Jersey State Prison, 2007 U.S.

Dist. LEXIS 65779 (D.N.J. Sept. 6, 2007) (seven months are too

great a delay between the events to support an inference of

causality). Here, Plaintiff asserted a ten-month gap between the

first and second investigation. Moreover, he verifies that Fort

Dix officials commenced the second investigation on the basis of

contraband and the disruptive pulling of fire alarms performed by

the inmates in three housing units, one of which was Plaintiff’s. 

In light of this record, no reasonable trier of fact could infer

the required causation for the purposes of Plaintiff’s

retaliation claim.

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SHU cell during the second investigation and for subjecting him

to triple-celling during that second SHU stay. 

None of these allegations states a viable claim. As this

Court already twice explained to Plaintiff, to state an Eighth

Amendment conditions of confinement claim, Plaintiff must allege

facts plausibly showing that his conditions were objectively so

severe that they deprived him of a basic human need and that the

defendants were deliberately indifferent to the risk of the

particular harm that Plaintiff suffered. See Farmer, 511 U.S.

at 834-37; Helling, 509 U.S. at 32; Wilson, 501 U.S. at 305.

Plaintiff’s first assertion is based on the overcrowding at

Fort Dix. However, Plaintiff’s pleadings are filled with

statements verifying that Fort Dix officials did indeed take

continuous actions aimed at relieving overcrowding at Fort Dix

in general and at the facility’s SHU in particular: by

transferring the Fort Dix inmates to the Massachusetts and

Brooklyn facilities. Therefore, it is self-evident that Fort

Dix officials were not deliberately indifferent to overcrowding. 

Hence, Plaintiff’s overcrowding allegations are contradicted by

his own factual predicate and will be dismissed with prejudice

for failure to state a claim upon which relief can be granted.

Plaintiff’s next assertion is based on his speculation that

he might have been exposed to a danger of harm when he was

transferred to the SHU during the first Fort Dix investigation,

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even though Plaintiff’s pleadings made it abundantly clear that

his speculative fears were unfounded. Speculations as to what

might have had happened – but did not happen – cannot amount to

a viable claim, since such challenges are merely hypotheticals.

See Brooks v. City of Pine Knot, 2009 U.S. Dist. LEXIS 97870, at

*15 (E.D. Ky. Oct. 21, 2009) (mere speculations that the inmate

might have been exposed to and contracted swine flu are subject

to dismissal); see also Dawson v. Frias, 2010 U.S. Dist. LEXIS

30513 at *8 (D.N.J. Mar. 30, 2010) (“speculation as to what

might or might not happen in the future” cannot serve as a basis

for a valid claim) (citing Rouse v. Pauliilo, 2006 U.S. Dist.

LEXIS 17225 (D.N.J. Apr. 5, 2006) (dismissing speculative claim

as to hypothetical future events and citing Kirby v. Siegelman,

195 F.3d 1285 (11th Cir. 1999)); Pilkey v. Lappin, 2006 U.S.

Dist. LEXIS 44418, at *45 (D.N.J. June 26, 2006) (“Plaintiff’s

[anxieties] fail to state a claim upon which relief may be

granted”); Patterson v. Lilley, 2003 U.S. Dist. LEXIS 11097

(S.D.N.Y. June 20, 2003) (defendants could only be found liable

to violations ensuing from an existing condition, not to a

speculative future injury). Since Plaintiff’s self-serving

hypotheticals were proven wrong by the actual events, his

speculative claims will be dismissed with prejudice regardless

of whether they were raised against the named Defendants or

Plaintiff had other Fort Dix officials in mind. 

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Plaintiff’s third and fourth claims relate to his SHU

confinement in connection with the second investigation. On the

one hand, Plaintiff asserts that his rights were violated

because he was housed in a cell that had no heating; on the

other hand, he asserts that his rights were violated because he

had to triple-cell. Neither one of these claims is viable.

Plaintiff expressly asserts that the SHU cells during the

two-week period of his second SHU confinement were cold because

of the failure of the heating system at the SHU. He also

expressly asserts that Fort Dix officials were indeed working 

toward fixing that maintenance problem but, in spite of their

efforts, the problem could not have been resolved fast enough to

ensure that the SHU inmates, Plaintiff included, had their cells

properly heated. Since Plaintiff concedes that Fort Dix

officials were continuously working toward fixing the heating

problem, they could not have been deliberately indifferent to

that problem. Correspondingly, Plaintiff’s allegations based on

the cold in the SHU cells are contradicted by his own factual

predicate and will be dismissed for failure to state a claim

upon which relief can be granted. 

Plaintiff’s triple-celling challenges fare no better. 

Being housed in a cell with two other inmates, or having one’s

mattress placed on the floor, is not a violation of one’s Eighth

Amendment rights. 

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The Court of Appeals expressly stresed that inmates do not

have a right to be free from being housed with other inmates. 

See Hubbard v. Taylor, 538 F.3d 229, 236 (3d Cir. 2008); see

also North v. White, 152 F. App’x 111, 113 (3d Cir. 2005) (per

curiam) (relying on Union Cty. Jail Inmates v. DiBuono, 713 F.2d

984, 1000 (3d Cir. 1983)); Gibase v. George W. Hill Corr.

Facility, 2014 U.S. Dist. LEXIS 820862 (E.D. Pa. June 16, 2014)

(“housing multiple inmates in a cell does not alone establish a

constitutional violation”).15 Also, the inmates have no right

“to be free . . . from sleeping on a mattress placed on the

floor." Hubbard, 538 F.3d at 236. Thus, Plaintiff’s claims

that he was housed in a SHU cell with two cell-mates and had his

mattress (if he was given a mattress) placed on the floor for

two weeks should be dismissed for failure to state a claim

regardless of whether or not these allegations were raised

against the named Defendants or Plaintiff had some other Fort

Dix officials in mind. 

That being said, a slight ambiguity in Plaintiff’s language

as to this latter claim warrants a further review.

15 Notably, the Court of Appeals’ cases addressing

challenges based on triple-celling were based on the claims of

pre-trial detainees, which are governed by the due process

analysis and entitled to more protection than the rights of

convicted prisoners whose claims are governed by the Eighth

Amendment. In other words, if the rights of pre-trial detainees

cannot be violated by triple-celling, the rights of convicted

prisoners cannot, a fortiori, be offended by such conditions. 

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4. Leave to Replead

As detailed supra, Plaintiff asserted that he was sleeping

on a “bare floor” but simultaneously stated that he was sleeping

only “without bedding.” See this Opinion, note 6. Thus, this

Court cannot establish with a sufficient degree of certainty

whether Plaintiff was sleeping, for two weeks, without bed

linens or without the linens and a mattress. See id.; see also,

id., note 2 (Plaintiff’s allegations are, unfortunately, heavily

laden with resort to poetic license that obstructs clear

understanding of his claims). 

While the absence of bedding over a mattress for a period

of two weeks cannot amount to a viable conditions of confinement

claim under the test articulated in Sandin, see Beverati v.

Smith, 120 F.3d 500, 504 (4th Cir. 1997) (six months of

administrative segregation was not atypical compared with the

general prison population, even though segregated inmates did

not receive clean clothing, linen or bedding as often as

required); an absence of a mattress might, potentially, amount

to a viable claim in the event Plaintiff literally had to sleep

on a bare floor without any mattress and bedding while his SHU

cell was without heat.16 

16 

The law was not clearly established . . . with regards

to mattress deprivation . . . . We had held that

mattress deprivation “for only one night was

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Therefore, solely out of an abundance of caution, this

Court will grant Plaintiff the final – and narrowly-tailored –

leave to amend, so Plaintiff would have an opportunity to: (a)

clarify, without any resort to poetic license, whether he had to

insufficient to state an Eighth Amendment violation,”

Hernandez v. Denton, 861 F.2d 1421, 1424 (9th Cir.

1988), vacated on other grounds, 493 U.S. 801 (1989),

but had not made clear whether mattress deprivation for

longer could state an Eighth Amendment claim. Although

we had indicated . . . that a prisoner who was “forced

to sleep on the floor, without a mattress, next to

broken toilets and overflowing showers” for an

unspecified period of time and “had to wear the same

clothes for 45 days” might have an Eighth Amendment

claim, Seagrave v. Hennessey, 1994 U.S. App. LEXIS

4321, at *4-6 (9th Cir. Mar. 2, 1994), we had also

explained that the Supreme Court’s observation that “a

condition of confinement which does not violate the

Eighth Amendment when it exists for just a few days may

constitute a violation when it exists for ‘weeks or

months,’ did not provide clear guidance to prison

officials as to how much time must pass before

requiring a prisoner to sleep on the floor of a cell

without a mattress may constitute an Eighth Amendment

violation.” Schroeder v. Kaplan, 60 F.3d 834 (9th Cir.

1995) (quoting Hutto v. Finney, 437 U.S. 678, 686-87

(1978)). We also held in Schroeder that, where a

prisoner was forced to sleep on a cold concrete floor

for most of a month, the law was not clearly

established on whether mattress deprivation was an

Eighth Amendment violation. [See] 60 F.3d 834. We

concluded that there was no binding precedent in our

circuit, that decisional law in other jurisdictions was

inconsistent, and that those courts that found a

constitutional violation had additional egregious facts

supporting an Eighth Amendment claim. [See] 60 F.3d

834 (citing cases that included additional factors such

as “extreme cold, lack of sanitary conditions, solitary 

confinement, inadequate clothing, or improper diet”).

Chappell v. Mandeville, 706 F.3d 1052, 1060 (9th Cir. 2013).

27

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sleep on a bare floor without any mattress and bedding during

his two weeks stay in a cold SHU cell during his second SHU

confinement; and (b) to name, as the defendant(s) in this

matter, the particular Fort Dix officer(s) whom Plaintiff

expressly asked for at least a mattress to be placed on the

floor in light of the cold in Plaintiff’s SHU cell and who

expressly denied Plaintiff’s request to as to the mattress.17 

IV. CONCLUSION 

For the foregoing reasons, all allegations raised in

Plaintiff’s Complaint-III, short of his statement that he was

forced to sleep on a “bare floor,” will be dismissed with

prejudice. Plaintiff will be allowed an opportunity to clarify,

in good faith and without any resort to poetic license, his

claim that he was forced to sleep on a “bare floor.”

An appropriate Order follows.

s/Renée Marie Bumb 

RENÉE MARIE BUMB 

United States District Judge

Dated: November 21, 2014

17 This Court stresses that Plaintiff’s amended complaint

shall not raise or recite any other claim, and Plaintiff’s

failure to reduce his challenges based on his alleged sleeping on

“a bare floor” to simple, clear and unambiguous terms would be

construed as Plaintiff’s statement that he was provided with a

mattress, and his claim will be dismissed accordingly. 

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