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January 22, 1997

TED W. GLEAVE, Plaintiff,

The opinion of the court was delivered by: FOSCHIO




 The parties to this action executed a consent to proceed before the undersigned, pursuant to 28 U.S.C. § 636(c), which was filed on October 17, 1995. The matter is presently before the court on Defendants' motion for judgment on the pleadings and for attorney's fees, filed November 1, 1995.


 Gleave completed his sentence on August 11, 1995 having paid a total of $ 1380. He claims damages for this loss of his property and mental anguish as well as punitive damages.

 For their answer, Defendants denied only the Complaint's allegations insofar as it asserts the required payments are illegal and Gleave's damage claims. Defendants stated as affirmative defenses a lack of subject matter jurisdiction over the Complaint, that the Complaint failed to state any federal claim, and that the payments in question were required pursuant to a contract between the Buffalo Halfway House, Inc., ("the Halfway House"), a non-profit entity, and the federal Bureau of Prisons ("BOP"), a copy of which was attached to the Answer.

 In their motion, filed November 1, 1995, Defendants seek dismissal pursuant to Fed.R.Civ.P. 12(c), and attorneys fees. *fn3" Responding to the motion, Gleave filed on November 8, 1995, an Affirmation in Opposition to which Defendants replied on December 27, 1995. However, as the court does not treat the motion as one for summary judgment, only the uncontravened allegations of the pleadings will be considered. No oral argument was conducted.

 For the reasons which follow, Defendants' motion for judgment on the pleadings is GRANTED. Defendants' motion for attorneys' fees is DENIED.


 1. Subject Matter Jurisdiction and Bivens Action

 As the Complaint alleges a claim for damages based on an asserted violation of the Fifth Amendment due process clause this court has subject matter jurisdiction under 28 U.S.C. §§ 1331. Although not specifically stated in the Complaint, Gleave's cause of action, if any, must be construed as predicated upon Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) which held that a federal cause of action for violation of a federally protected constitutional right, in Bivens a Fourth Amendment violation, was implied by the specific constitutional protection at issue allowing recovery of money damages against federal officers acting under color of federal law. The Supreme Court has also approved Bivens actions for violations of the Fifth Amendment. Davis v. Passman, 442 U.S. 228, 248-49, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1970). As the Supreme Court has directed that pro se pleadings should be considered under less stringent standards than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519 at 519-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), the court therefore construes Gleave's Complaint as a Bivens action for a violation of his Fifth Amendment constitutional right to due process of law.

 Here, Gleave alleges he was deprived of his property without due process when Defendants, employees of the Halfway House, collected subsistence payments to offset the costs of his confinement at the Halfway House. Gleave also claims a violation of his due process rights based upon the Defendants' alleged threats that he would be incarcerated in a federal prison if he failed to make the payments. Although Gleave describes this claim as arising under the Fifth Amendment, the court will also construe this element of the Complaint generously, as it must, and finds that it asserts a violation of Gleave's First Amendment right to object to the required payments. Bivens actions have also been allowed in the case of First Amendment claims. Jensen v. Farrell Lines, Inc., 625 F.2d 379, 384 (2d Cir. 1980).

 The lower federal courts are not in accord as to whether a Bivens action lies against persons who are not federal officers but, rather, as alleged in the Complaint, employees of a federal contractor. DeVargas v. Mason & Hanger-Silas Mason & Hanger-Silas Mason Co., Inc., 844 F.2d 714, 720, n.5 (10th Cir. 1988). The issue has not been addressed squarely by the Supreme Court, see Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1055 (D.C. Cir. 1984), nor has the issue been addressed by the Second Circuit. Although one district court in this circuit has dealt with the question, Mahoney v. National Organization for Women, 681 F. Supp. 129, 132 (D. Conn. 1987) (stating that "plaintiff must show the defendant's actions were commanded or encouraged by the federal government, or that the defendants were so intertwined with the government as to become painted with the color of state action"), the court need not resolve this issue as it finds the uncontroverted allegations of the pleadings demonstrate that Gleave has failed to establish a violation of either his Fifth or First Amendment rights.

 However, the fact that a complaint may upon a motion to dismiss be found to fail to state a federal claim does not deprive the court of subject matter jurisdiction where, as in this case, the Complaint clearly alleges that a defendant's actions violated the plaintiff's constitutional rights. "In cases where the asserted basis for subject matter jurisdiction is also an element of the plaintiff's allegedly federal cause of action, we ask only whether - on its face - the complaint is drawn so as to seek recovery under federal law or the Constitution. If so, then we assume or find a sufficient basis for [subject matter] jurisdiction, and reserve further scrutiny for an inquiry on the merits." Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1189 (2d. Cir. 1996). As 28 U.S.C. § 1331 grants original jurisdiction to district courts for "all civil actions arising under the Constitution . . . of the United States" and as Gleave's Complaint explicitly asserts the Fifth Amendment due process clause as a basis for relief, Defendants' motion to dismiss for lack of jurisdiction must be denied. Davis v. Passman, 442 U.S. 228, 234, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979). See also Bivens, supra. Jurisdiction for Gleave's claim being properly found under Section 1331(a), it is not necessary to consider whether subject matter jurisdiction is also available under 28 U.S.C. § 1343.

 2. Motion for Judgment on the Pleadings

 Upon motion for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c)), the court must follow the same standards applicable to a motion under Rule 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1993), cert. denied, 513 U.S. 816, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994).

 In determining whether dismissal is proper for a plaintiff's failure to state a claim upon which relief may be granted, the court must accept all allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant. Shechter v. Comptroller of the City of New York, 79 F.3d 265, 270 (2d Cir. 1996). A court should not dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Sheppard, supra, at 150 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). This standard is "applied with particular strictness when the plaintiff complains of a civil rights violation." Sheppard, supra, 18 F.3d at 150 (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)).

 Matters of which judicial notice may be taken are appropriately considered in ruling on a motion to dismiss under Rule 12(b)(6). Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d. Cir. 1993). As the standard for determining whether to grant a motion for judgment on the pleadings under Rule 12(c) is the same as that employed in deciding a motion under Rule 12(b)(6), the court may also consider matters for which judicial notice is appropriate on a Rule 12(c) motion. Diaz v. Coughlin, 909 F. Supp. 146, 147-48 (S.D.N.Y. 1995).

 To establish a Bivens claim for relief, Gleave must show "(1) that the challenged action was attributable at least in part to a person acting under color of federal law, and (2) that such conduct deprived the Plaintiff of a right, privilege or immunity secured by the Constitution or laws of the United States." Flagg Bros. Inc. v. Brooks, 436 U.S. 149, 155-56, 56 L. Ed. 2d 185, 98 S. Ct. 1729 (1979). As noted, Defendants in this motion primarily contend that Gleave has not alleged any federal constitutional violation without specifically addressing whether Defendants may be considered federal actors. As the first, and equally dispositive, issue can be determined on the face of the pleadings, it will be the focus of the court's analysis.

 3. Gleave's Claim Based upon a Due Process Violation under the Fifth Amendment.

 a. The requirement that a federal prisoner pay the costs of incarceration does not ...

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