Because the plaintiffs have failed to allege that they have
exhausted the administrative remedies available to them, the
complaints fail to state a claim on which relief may be granted.
Moreover, according to the Owen declarations, the plaintiffs in
fact have not exhausted the available administrative remedies.
Therefore, the claims must be dismissed. See e.g., Beeson v.
Fishkill Correctional Facility, 28 F. Supp.2d 884, 887 (S.D.N Y
1998) (dismissing complaint for failure to exhaust administrative
remedies, and noting that § 1997e(a) applies regardless of the
relief sought by a plaintiff).
The defendants have advanced several other arguments in support
of their motion to dismiss, each of which must be addressed in
order to narrow the issues should the defendants return to Court
at a later date with properly exhausted claims. First, to the
extent that the plaintiffs' claims request injunctive relief,
those claims must be dismissed as moot because it is conceded
that neither plaintiff is presently incarcerated at MDC-Brooklyn.
See Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996) (holding
that plaintiff prisoner's transfer from a particular facility
moots a claim for injunctive relief against that facility).
Second, the claims for money damages against defendant Holder
must be dismissed because the complaints fail to allege Holder's
personal involvement in the facts of which plaintiffs complain.
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (holding
that a defendant's personal involvement in the alleged
constitutional deprivation is an essential element of a Section
1983 action). Third, the claims against defendant Bureau of
Prisons must be dismissed because the Bureau, as an agency of the
United States, is not a proper defendant in a Bivens-type
action. See FDIC v. Meyer, 510 U.S. 471, 484-86, 114 S.Ct. 996,
127 L.Ed.2d 308 (1994); Keene Corp. v. United States,
700 F.2d 836, 845 & n. 13 (2d Cir. 1983).
Finally, Dixon's mishandling of legal mail claim must be
dismissed for failure to state a claim on which relief can be
granted. A mishandling of legal mail claim is a subspecies of the
fundamental constitutional right of access to the courts. Bounds
v.. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). As
a derivative of such a claim, to survive a motion to dismiss a
plaintiff must allege not only that the alleged interference with
his legal mail prevented him from presenting a meaningful case to
the Court, but also that the defendant's actions resulted in
actual injury, such as the denial of a legal claim. Lewis v.
Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)
(stressing actual injury requirement of right of court access
Here, Dixon does not allege any prejudice arising from the
alleged mishandling of his legal mail. Indeed, the undersigned
presided over Dixon's criminal action, docket number 97-CR-0543.
The present complaint is the first indication the Court ever
received that Dixon's efforts to communicate with his assigned
counsel or with the Court somehow were being hampered by
MDC-Brooklyn. The Court cannot possibly perceive how an isolated
incident of interference with his legal mail — construing the
claim broadly and assuming the truth of the allegations — could
have prejudiced Dixon's defense. For this reason, the mishandling
of mail claim is dismissed with prejudice for failure to state a
claim. The Court has considered and rejected the parties'
C. The Restrictions on Future Filings
Dixon has a history of civil litigation in this district.
Because of the statutory filing restrictions found in the Prison
Litigation Reform Act, the Court is obligated to point out that,
to this Court's knowledge, this complaint represents the third
time that one of Dixon's complaints has been dismissed for
frivolousness or for failure to state a claim. By way of review,
the Court issued a Memorandum and Order dated
October 22, 1998, which dismissed Dixon's complaint in civil
action 98-CV-6105. By Memorandum and Order dated November 24,
1998, the Court dismissed Dixon's complaint in civil action
98-CV-6915. In each of those two prior cases, as in this case,
Dixon had been granted in forma pauperis status under
28 U.S.C. § 1915(a)(1).
Notwithstanding the fact that Dixon actually filed two
complaints in this action, the actions were consolidated into
one. The dismissal of the claim brought under docket number
99-CV-3702 is the third civil action dismissed by the Court in
the past twenty months. Therefore, the Court places Dixon on
notice of the restriction found in 28 U.S.C. § 1915(g):
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more
prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court
of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of
serious physical injury.
Dixon has now attained his third "strike" under § 1915(g) of the
Prison Litigation Reform Act.
For the abovementioned reasons, the defendants' motion to
dismiss is GRANTED, and it is hereby
ORDERED that plaintiff Dixon's mishandling of mail claim is
DISMISSED with prejudice for failure to state a claim upon which
relief may be granted, and it is further
ORDERED that the claims seeking injunctive relief are DISMISSED
as moot, and it is further
ORDERED that the claims against defendant Holder are dismissed
without prejudice for failure to allege his personal involvement
in the alleged constitutional deprivations, and it is further
ORDERED that the claims against the Federal Bureau of Prisons
are DISMISSED with prejudice because the Bureau is immune from
suit, and it is further
ORDERED that the Eighth Amendment claims seeking money damages
are dismissed without prejudice for failure to exhaust
The Court certifies that any appeal from this matter would not
be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The
Clerk of the Court is directed to close the above-captioned
© 1992-2003 VersusLaw Inc.