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 violate due process
The gravamen of Gleave's complaint is that the fee payments collected from him based on his wages and veterans' disability benefits by Defendants are illegal and that, in response to his objection to pay such fees, Defendants threatened him with incarceration in a prison. The court finds that neither allegation, even presuming its truth, would constitute a violation of the Fifth Amendment. As noted, whether any of Gleave's constitutional rights could be violated by Defendants' alleged threats will be addressed separately. See Discussion infra at p. 20. Although neither the Complaint nor the Answer provides the details of the sentence underlying Gleave's complaint, the court finds that the exact sentence imposed on Gleave by this court is relevant to a proper analysis of this case. Thus, the court takes judicial notice of the sentence which precipitated Gleave's challenge.
The court also takes judicial notice of the BOP's Program Statement Numbers 7300.08 and 7310.03 which set forth the BOP's official internal agency guidelines that are specifically applied to the challenged fees and thus relevant to a thorough discussion of this matter.
United States v. Penn Foundry and Mfg. Co., Inc., 337 U.S. 198, 215, 93 L. Ed. 1308, 69 S. Ct. 1009 (1949)(Douglas, J., concurring)(official communications which disclose policy, like reports, rules and regulations of agencies or other communications to Congress are equally reliable and authoritative and need no further proof); Antonelli v. Ralston, 609 F.2d 340, 341, n.1 (8th Cir. 1979)(judicial notice was taken of a Bureau of Prison's Program Statement).
In this case, Gleave was convicted of two counts of bankruptcy fraud in criminal case number 90-CR-33S-002, for which Judge Skretny imposed the following sentence:
Defendant is sentenced to the custody of the Attorney General of the United States for a period of 27 months on each count to run concurrently. Imposition of all but three months of the sentence is suspended and the balance of the sentence (2 years) is probation. The 3 months shall be served in a halfway house as soon as a spot becomes available. Probation is to begin immediately but will be interrupted for 3 months upon surrender to the halfway house. . . . [emphasis added].