Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

February 27, 2004.


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


Plaintiff Fred Brown a/k/a James Mallard ("Brown") has brought this action pro se alleging that the defendants interfered with his mail during his incarceration at the Metropolitan Correctional Center ("MCC"). Brown seeks compensatory damages arising from the loss of his motorcycle, which was allegedly sold as a result of the delay or obstruction of his mail. He also seeks monetary compensation for mental anguish. Defendants have moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(5), and 12(b)(6). In response, Brown has moved to amend his complaint a second time. For the following reasons, leave to amend should be denied and defendants' motion should be granted.


  A. Facts

  From January 24, 2000 to June 22, 2000, Brown was a state inmate temporarily housed at the MCC on a Writ of Habeas Corpus Ad Testificandum in conjunction with a previous case Page 2 Brown had brought in the Southern District of New York. Declaration of Adam M. Johnson, filed October 10, 2003 (Docket #14) ("Johnson Decl."), ¶ 2; Writ of Habeas Corpus Ad Testificandum, dated January 5, 2000 (annexed as Ex. 1 to Johnson Decl.).

  On February 2, 2000, Brown placed correspondence in the outgoing mail which contained a power of attorney form. Affidavit in Support of Amended Complaint, filed February 19, 2003 (Docket #4) ("Am. Compl."), ¶ 6. According to Brown, he was sending the power of attorney form to Phil Higgs, the President of the Southern Christian Leadership Conference, in order to prevent the sale of his Harley-Davidson motorcycle in North Carolina. Id. ¶¶ 8, 26, 28. Correction Officer Jorge Jarama opened this correspondence and brought it to Brown, explaining that the correspondence could not be sent because there was no return address on the outside of the envelope and that Jarama had opened the envelope to identify the sender. Id. ¶¶ 7, 9-12. Jarama asked Brown to sign a form for the return of the correspondence, which Brown refused to sign. Id. ¶¶ 14-15. Jarama then threw the envelope in the garbage can. Id. ¶ 16. Brown retrieved the envelope from the garbage. Id. ¶ 17. When Brown asked Jarama to return the contents of the correspondence, however, Jarama refused and advised Brown that he would have to submit a special form requesting that Jarama return the correspondence. Id. ¶¶ 18-20. Brown did so but only the letter was returned to him. Id. ¶ 21. The power of attorney form was never returned. Id. ¶ 22.

  On February 5, 2000, Brown asked Ken Haas, a Unit Manager at MCC, for postage to send correspondence. Am. Compl. ¶ 29. Brown alleges that he did not have funds or postage stamps and needed to send legal correspondence to the North Carolina courts regarding an injunction to block the sale of his motorcycle. Id. ¶ 28. Haas refused Brown's request. Id. ¶ 30. Page 3

  Brown filed a Request for Administrative Remedy on February 7, 2000 regarding Jarama's opening of his mail and refusal to return portions of the correspondence. Am. Compl. ¶ 31; see also Request for Administrative Remedy, dated February 7, 2000 (annexed as Ex. B to Am. Compl.). Dennis W. Hasty, the Warden, responded on February 11, 2000, Am. Compl.

  ¶ 35, stating that an investigation had been conducted and that Brown's letter had been opened in an attempt to identify the sender since the letter had an incomplete return address, Response to Request for Administrative Remedy, dated February 11, 2000 (annexed as Ex. C to Am. Compl.). Further, Warden Hasty stated that correspondence addressed to the Southern Christian Leadership Conference did not qualify as legal mail. Id.

  With respect to Haas's refusal to provide postage, Brown submitted an "Inmate Request to Staff Member" form to Warden Hasty on February 11, 2000. Inmate Request to Staff Member, dated February 11, 2000 ("Inmate Request") (annexed as Ex. B to Am. Compl.). Brown explained that he was indigent and detailed his attempts to obtain stamps for legal mail from various MCC personnel. Id. He claimed that the Unit Manager (Haas) told him on February 11, 2000 "[t]hat he would have to check out my account to find out if I qualify." Id. Warden Hasty responded on February 22, 2000, informing Brown that he "ha[d] not requested stamps for legal mail use via the Inmate Request to Staff Member." Response to Inmate Request to Staff Member, dated February 22, 2000 (annexed as Ex. C to Am. Compl.). Warden Hasty further stated that the unit team must verify the amount available in Brown's inmate account and if funds are not available he will be issued up to five stamps for legal correspondence. Id. Brown alleges that he gave a copy of Warden Hasty's response to Haas and that Haas, in turn, immediately transferred Brown out of the unit without providing him with postage stamps. Am. Page 4 Compl. ¶¶ 37-38. Prison records indicate that Brown was transferred to another unit within MCC on February 25, 2000. See Johnson Decl. ¶ 21.

  On March 28, 2000, Brown executed a second Request for Administrative Remedy seeking relief in the amount of $100,000.99 for Jarama opening his mail without legal authorization and $50,000 for Haas failing to provide postage and transferring Brown in retaliation for his complaint to Warden Hasty. See Request for Administrative Remedy, dated March 28, 2000 ("Second Request") (annexed as Ex. 5 to Johnson Decl.). By notice dated May 24, 2000, Brown's second request was rejected and Brown was instructed to submit his claim on a Tort Claim Form and to forward it to the Northeast Regional Office of the Federal Bureau of Prisons ("BOP"). See Rejection Notice — Administrative Remedy, dated May 24, 2000 ("Rejection Notice") (annexed as Ex. 6 to Johnson Decl.).

  Brown filed an administrative tort claim with the BOP on April 7, 2000. Am. Compl. ¶ 44; see also Claim for Damage, Injury, or Death, TRT-NER-2000-01643, stamped June 12, 2000 ("BOP Claim") (annexed as Ex. 7 to Johnson Decl.). This claim again sought monetary compensation for Jarama's and Haas's actions in February 2000. See BOP Claim. By letter dated November 20, 2001, Brown was informed that no settlement would be offered on his claims. Am. Compl. ¶ 45; Letter from Henry J. Sadowski to Brown, dated November 20, 2001 ("Nov. 2001 Sadowski Ltr.") (annexed as Ex. 8 to Johnson Decl.). The letter noted that the rejection was originally mailed to Brown on November 14, 2000 but apparently Brown did not receive it. See Nov. 2001 Sadowski Ltr. The letter explained that MCC staff had complied with BOP policies in opening and inspecting Brown's outgoing mail. Id. It further stated, "The mail in question was not special mail, and you were attempting to use government envelopes with pre-paid Page 5 postage, without authorization." Id. Also, Sadowski noted that Brown had failed to show that he actually experienced any loss. Id.

  By letter dated November 28, 2001, Brown requested a "Rehearing En Bane" on his claims for money damages. He explained that his unauthorized use of government envelopes was an unrelated incident which occurred long after February 2000 and that Jarama had no authorization to open his mail. Letter from Brown to Sadowski, dated November 28, 2001 (annexed as Ex. 9 to Johnson Decl.), at 1-2. The BOP reconsidered the claim and again decided not to offer any settlement because "the contents of [outgoing social mail written by pretrial inmates] may be read and inspected by staff." Letter from Henry J. Sadowski to Brown, dated April 16, 2002 (annexed as Ex. 10 to Johnson Decl.). Again, Brown was informed that he had failed to show either a loss of personal property or a personal injury resulting from the negligence of any BOP employee. See id.

  B. Procedural History

  Brown originally filed the complaint in this action under 42 U.S.C. § 1983 against the BOP, Warden Hasty, Jarama, and Haas. See Jury Trial Demanded Affidavit and Complaint Pursuant to [42] U.S.C. § 1983, filed December 27, 2002 (Docket #2). Chief Judge Michael B. Mukasey dismissed Brown's claims for damages against the BOP and Warden Hasty because such claims are barred by the doctrine of sovereign immunity. See Order, filed December 27, 2002 (Docket #3) ("Order"), at 2-3. Because the individual defendants were federal officials acting under the color of federal law, Judge Mukasey construed Brown's complaint as being brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Order at 1 n. 1. Judge Mukasey construed Brown's allegations as raising a claim that he was Page 6 denied access to the courts but held that the complaint failed to establish that Jarama or Haas had deprived him of his right of access. Id. at 3-4. Brown was directed to submit an amended complaint (1) alleging "how defendant's conduct adversely affected his legal efforts or prejudiced an existing legal action" and (2) "stat[ing] whether his letters were eventually mailed out and specifically describ[ing] all of his legal efforts to obtain his motorcycle from North Carolina," including "his efforts to present his claims in the courts of North Carolina and . . . the date the motorcycle was sold." Id. at 4. Furthermore, Brown was advised that he "must allege that he has fully exhausted his administrative remedies . . . as to each claim he seeks to raise in the instant complaint" as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). Id. at 4-5. The Order outlined the procedural steps necessary for exhaustion. Id. at 5-6.

  Thereafter, Brown submitted an amended complaint which omitted Warden Hasty as a defendant and documented his efforts to exhaust his claims. In all other respects, the factual allegations contained in the amended complaint were substantially the same as those in the original complaint.

  C. The Instant Motions to Dismiss and to Amend

  Defendants have moved to dismiss the amended complaint on three grounds: (1) the Court lacks subject matter jurisdiction over Brown's claims, Memorandum of Law in Support of Defendants' Motion to Dismiss, filed October 10, 2003 (Docket #5) ("Def. Mem."), at 5-12; Page 7

  (2) Brown has failed to state a cause of action under Bivens, id. at 12-20; and (3) defendants are entitled to qualified immunity, id. at 20-21.*fn1

  In response, Brown has moved for leave to file a second amended complaint. See Notice of Motion to Amend Complaint, filed November 5, 2003 (Docket #17). The proposed second amended complaint identifies two new legal bases for relief: the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, 2671-2680, and the Uniform Commercial Code. See Affidavit in Support of Motion to Amend Complaint from 1983 to FTCA, filed November 5, 2003 (Docket #17) ("Proposed Second Am. Compl."), ¶¶ 2-6. Brown also adds legal arguments in support of his claims. See id. ¶¶ 7-18, 56-70. The proposed second amended complaint does not, however, make new factual allegations of any consequence. Instead, it repeats the facts set forth in the first amended complaint, see id. ¶¶ 19-55, and adds that Brown's name and inmate number were on the outside of the envelope Jarama opened on February 2, 2000, see id. ¶ 24. The copy of the envelope provided by Brown shows the words "No Return Address" in the upper-left-hand corner crossed out and written over by Brown's name, number, and address. See Photocopy of Envelope (annexed as Ex. A to Proposed Second Am. Compl.).

  In response, defendants argue that leave to submit a second amended complaint should be denied on the ground that the proposed amendment is fufile because it cannot withstand a motion to dismiss. Reply Memorandum of Law in Further Support of Defendants' Motion to Dismiss Page 8 and in Opposition to Plaintiff's Motion to Amend, filed December 24, 2003 (Docket #19), at 2-3. Indeed, in their original moving papers, defendants anticipated that Brown's first amended complaint could be construed as seeking relief under the FTCA and provided arguments why such a claim for relief should be dismissed. See Def. Mem. at 6-8.

  For the reasons stated below, neither the existing amended complaint nor the proposed second amended complaint can survive the defendants' motion — either based on the sovereign immunity defense or Brown's failure to exhaust his administrative remedies. Thus, leave to replead should be denied and the defendants' motion should be granted.


  A. Motion to Dismiss

  In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(1) or 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). A complaint should not be dismissed for failure to state a claim "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." Conley v. Gibson, 355 U.S. 41, 45-6 (1957). In making this evaluation, complaints drafted by pro se plaintiffs are held "`to less stringent standards than formal pleadings drafted by lawyers,'" Boddie v. Schnieder. 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)), and they should be interpreted "`to raise the strongest arguments that they suggest,'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Page 9

  B. Converting a Motion to Dismiss into a Motion for Summary Judgment

  In this case, the defendants have presented material outside of the amended complaint on the issue of exhaustion of remedies. While these submissions do not contradict any of the allegations of the amended complaint or the proposed second amended complaint on this point, they provide additional factual background — particularly with respect to whether Brown filed any appeals from his initial complaints to prison authorities, see Johnson Decl. ¶ 5. Indeed, the existence vel non of such appeals are the only facts introduced by the defendants that have any bearing on the disposition of this motion.

  Fed.R.Civ.P. 12(b) provides that "[i]f . . . matters outside the pleading are presented to and not excluded by the court, [a] motion [to dismiss under 12(b)(6)] shall be treated as one for summary judgment." Still, "parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Fed.R.Civ.P. 12(b). Because Brown is proceeding pro se, affording him notice and an opportunity to respond is a particular concern. See, e.g., Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983). "The essential inquiry is whether the [plaintiff] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." In re G. & A. Books. Inc., 770 F.2d 288, 295 (2d Cir. 1985), cert. denied, 475 U.S. 1015 (1986). Here, Brown was given ample opportunity to meet the facts outside the pleadings relating to exhaustion. Judge Mukasey alerted Brown to this potential defect in his claim and specifically required Brown to "show that he has completely exhausted the above administrative remedies through the highest level for each claim he seeks to present." Order at 6 (emphasis added); see Page 10 also id., at 5 ("[Brown's] instant action can only proceed after he has exhausted any available administrative remedies on each claim, including all appellate remedies provided within the BOP system."). Brown was warned that a failure to amend his complaint in compliance with the Order would result in dismissal. See id. at 7. Brown obviously understood his obligations on this score as he submitted an affidavit in support of his amended complaint that annexed documentation regarding his pursuit of administrative remedies. See Am. Compl.

  Furthermore, defendants moved to dismiss specifically on the exhaustion issue, raising the issue of Brown's failure to file appeals, see Def. Mem. at 9-12, and Brown again had the opportunity to allege exhaustion in response to that motion.

  Because Brown has been given "notice and an opportunity to respond" to the allegation of non-exhaustion, Mojias v. Johnson, 351 F.3d 606, 610-11 (2d Cir. 2003), the defendants' motion to dismiss should be converted to one for summary judgment on this limited issue. See, e.g., Scott v. Gardner, 287 F. Supp.2d 477, 485-86 (S.D.N.Y. 2003) (converting motion to dismiss under 12(b)(6) for failure to exhaust into motion for summary judgment on the issue of exhaustion).

  C. Motion for Summary Judgment

  Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c): see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material issue is a "dispute[] over facts that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). A genuine issue of Page 11 material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. Thus, "`[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).

  Brown has not contested the accuracy of any of the allegations or documents submitted by the defendants on the issue of exhaustion.

  D. Motion to Amend

  Leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "`Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend.'" Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)).

  When a plaintiff has submitted a proposed amended complaint, the court "may review that pleading for adequacy and need not allow its filing if it does not state a claim upon which relief can be granted." Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); accord Lucente, 310 F.3d at 258 ("An amendment to a pleading is fufile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)."); Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (same).

  In this case, the motion for leave to amend was made in response to what is for all intents and purposes a motion for summary judgment. In such a situation, a court may look outside the pleadings in order to determine whether a proposed amended complaint is fufile. See, e.g., Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001) (summary judgment Page 12 standard applied where motion for leave to amend was made in response to summary judgment motion); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (same).


  Brown's claims may be divided as follows: (1) those against the United States or its officers in their official capacities and (2) those against the officers in their individual capacities. Each is discussed separately.

  A. Claims Against the United States or Its Officers in Their Official Capacities

  The United States of America enjoys sovereign immunity from suit and thus cannot be sued without its consent. E.g., United States v. Lee. 106 U.S. 196, 204 (1882); Coulthurst v. United States. 214 F.3d 106, 108 (2d Cir. 2000). Claims asserted against agencies of the United States government, such as the BOP, or federal officers in their official capacities are considered to be asserted against the United States and are also barred under the doctrine of sovereign immunity. E.g., Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994) (citing FDIC v. Meyer, 510 U.S. 471, 484-86 (1994)). Congress may waive the sovereign immunity of the United States but may do so only through unequivocal statutory language. E.g., Lane v. Pena, 518 U.S. 187, 192 (1996) ("A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied." (citations omitted)). Congress may define the terms and conditions of such a waiver and "the terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 586 (1941): accord Meyer, 510 U.S. at 475. Thus, if the United States has not waived its sovereign immunity, or if the conditions of such a waiver have not been met, the Court lacks subject matter jurisdiction over the claim. See, e.g., Page 13 Meyer, 510 U.S. at 475; Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991), cert. denied, 504 U.S. 942 (1992).

  Brown's amended complaint and proposed second amended complaint may be liberally construed as suggesting three potential bases on which he seeks to sue the United States or the defendants in their official capacities: for constitutional violations, for non-constitutional torts, and under the Uniform Commercial Code. Each is discussed in turn.

  1. Constitutional Claims

  Under Bivens, an individual injured by a federal agent's violation of his or her federal constitutional rights may bring an action for damages against the agent in his or her individual capacity. 403 U.S. at 397. However, such an action cannot be brought against the United States, a federal agency, or a federal officer in his or her official capacity. Meyer, 510 U.S. at 484-86. In other words, the United States has not consented to suit under Bivens and such suits are routinely dismissed for lack of subject matter jurisdiction. See, e.g., Robinson. 21 F.3d at 510; Keene Corp. v. United States. 700 F.2d 836, 845 n. 13 (2d Cir.), cert. denied, 464 U.S. 864 (1983). Thus, to the extent that Brown seeks to hold the United States, the BOP, or the individual defendants in their official capacities liable for constitutional violations, there is no jurisdiction over such claims. See, e.g., Mever, 510 U.S. at 478 ("the United States simply has not rendered itself liable under [28 U.S.C.] § 1346(b) for constitutional tort claims"); Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994) ("the United States has not waived its sovereign immunity with respect to claims that its employees have committed constitutional torts"). Page 14

  2. Non-Constitutional Torts

  The United States has consented to suit with respect to certain non-constitutional tort claims by virtue of the FTCA. The FTCA states generally that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The remedy against the United States provided by the FTCA is exclusive of any other remedy for money damages against a federal employee acting within the scope of his or her employment. Id. § 2679(a).

  Nonetheless, the liability of the United States is limited by a number of exceptions. One of these exceptions is for "[a]ny claim arising in respect of . . . the detention of any goods, merchandise, or other property by . . . any other law enforcement officer." 28 U.S.C. § 2680(c) (emphasis added). The term "law enforcement officer" has been consistently interpreted as encompassing BOP employees. See, e.g., Chapa v. United States Dep't of Justice. 339 F.3d 388, 389-91 (5th Cir. 2003) (no subject matter jurisdiction over inmate's claim that a box of his belongings was not returned to him after transferring facilities); Crawford v. United States Dep't of Justice, 123 F. Supp.2d 1012, 1014-15 (S.D. Miss. 2000) (no subject matter jurisdiction over inmate's claim that his property was wrongfully seized and destroyed by BOP employee); Dennison v. United States. 2000 WL 206317, at *3 (D. Kan. Jan. 14, 2000) (no subject matter jurisdiction where BOP official did not return property seized in a criminal investigation); Hernandez v. Hawks, 1995 WL 692982, at *4-*6 (D. Minn. Sept. 28, 1995) (no subject matter jurisdiction over inmate's claim that BOP employees lost certain items of his personal property). The allegations that the BOP officers improperly opened Brown's mail and/or failed to transmit Page 15 the materials Brown wanted mailed fall within this exception. Because any of the acts alleged by Brown that might constitute torts "aris[e] in respect of the alleged detention of his mail, they are barred by this provision, see 28 U.S.C. § 2680(c).

  In addition, the FTCA contains a separate exception barring suits for "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." 28 U.S.C. § 2680(b); see Ruiz v. United States. 160 F.3d 273, 275 (5th Cir. 1998) (inmate's claim for damages based on his failure to receive incoming mail dismissed as statutorily barred); Lucas v. United States, 228 Ct. Cl. 860, 860 (Ct. C1. 1981) (no jurisdiction over inmate's claim regarding a delay in delivering a certified letter addressed to district court seeking some form of relief); Rogers v. United States Postal Serv., 1999 WL 58852, at *2 (N.D. Tex. Feb. 3, 1999) (court lacks jurisdiction over inmate's claim against the Postal Service for negligently losing a certified mail package containing a lawsuit to be filed in federal court). This provision, which was designed to shield the government from "liability arising from loss of . . . the mail itself," Raila v. United States, 335 F.3d 118, 122 (2d Cir. 2004), also bars Brown's claims.

  Brown's proposed second amended complaint contains no allegations that would bring this case outside the FTCA's exceptions. Where, as here, a case is brought against the United States that is barred by one of the exceptions to the FTCA, a court lacks subject matter jurisdiction to consider such claims. See, e.g., Adeleke v. United States, 355 F.3d 144, 153-54 (2d Cir. 2004); see also Meyer, 510 U.S. at 475 ("the terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit" (internal quotation marks and citation omitted)). Thus, any claims asserted against the United States of America, the BOP, and the individual defendants under the FTCA are dismissable under Fed.R.Civ.P. 12(b)(1). Page 16

  3. Claims Under the Uniform Commercial Code

  Brown states generally that he is entitled to relief under the Uniform Commercial Code. See Proposed Second Am. Compl. ¶¶ 6-10, 18a, 56-59, 64-69. Brown's premise appears to be that his claim is in fact one for "contract" and that he is entitled to compensation because the BOP has failed to produce any contract authorizing it to open his outgoing mail. See id. ¶¶ 7-8, 18a, 57-58.

  This claim fails because there is no express or implied contractual relationship between Brown and any governmental party regarding the sending of his mail — let alone a contract supported by consideration. Brown does submit an acknowledgment form he signed stating that he understood that incoming correspondence would be examined by prison officials. See Acknowledgements [sic] of Inmate, dated January 24, 2000 (annexed as Ex. A (second) to Am. Compl.). But this document is irrelevant to the claims here, which involve outgoing correspondence. In addition, the Court is unaware of any case suggesting that the Uniform Commercial Code or the common law of contracts governs the relationship between inmates and correction officers with respect to the transmission of mail. Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), a case cited by Brown in various submissions, is irrelevant because Clearfield Trust was a case brought by the United States to recover for a payment on a check that had been fraudulently endorsed, id. at 364-65. It says nothing about whether the United States has waived its sovereign immunity with respect to a suit regarding mail-related dealings between an inmate and prison officials.

  Finally, because the claim made by Brown is for more than $10,000, jurisdiction over any claim even properly brought under a contract theory would exist only in the United States Court Page 17 of Federal Claims, see 28 U.S.C. § 1491, not a district court. See, e.g., Adeleke. 355 F.3d at 151-52.

  B. Claims Against the Officers in Their Individual Capacities

  While the point is contested by defendants, see Def. Mem. at 12-20, the Court will assume arguendo that Brown's allegations against Jarama and Haas in their individual capacities state a constitutional claim for damages under Bivens. See 403 U.S. at 397. A Bivens action filed by an inmate in federal court concerning prison conditions, however, may only proceed after the inmate has exhausted all available administrative remedies. See 42 U.S.C. § 1997e(a); see also Order at 4-6. The PLRA provides:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Accordingly, a prisoner "must pursue his challenge to the conditions in question through the highest level of administrative review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2 (S.D.N.Y. Jan. 29, 2002); see also Porter v. Nussle, 534 U.S. 516, 524 (2002) ("All `available' remedies must now be exhausted; those remedies need not meet federal standards, nor must they be `plain, speedy, and effective.'" (citations omitted)). The Supreme Court has clarified that "PLRA's 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, 534 U.S. at 532. The PLRA's exhaustion requirement applies to actions brought under Bivens, Id. at 524; accord Owusu v. Fed. Bureau of Prisons, 2003 WL 68031, at *1 (S.D.N.Y. Jan. 7, 2003) (inmate must exhaust all Page 18 remedies under the BOP's Administrative Remedy Program prior to filing a Bivens claim); Phillips v. Carrasquillo, 268 F. Supp.2d 127, 129 (D. Conn. 2002) (same); Indelicato v. Suarez, F. Supp.2d 216, 218-19 (S.D.N.Y. 2002) (same).

  The exhaustion procedures under the FTCA and the PLRA differ, and "fulfillment of one does not constitute satisfaction of the other." Owusu, 2003 WL 68031, at *2 (citations omitted). Compare 28 C.F.R. § 543.30-.32 (exhaustion procedure for FTCA claims), with 28 C.F.R. § 542.10-.19 (exhaustion procedure for claims governed by the PLRA). Thus, whether or not Brown has exhausted his administrative remedies under the FTCA is irrelevant to the determination of whether he exhausted his remedies for the purposes of filing suit against Jarama and Haas under Bivens.

  The BOP's Administrative Remedy Program, 28 C.F.R. § 542.10-.19, requires an inmate to seek administrative relief through its four-step grievance and appeal procedure. See Owusu, 2003 WL 68031, at *2 n.2; Indelicato, 207 F. Supp.2d at 218-19. First, an inmate must present the issue of concern to prison staff, who must attempt to resolve the issue informally. 28 C.F.R. § 542.13(a). Second, if the issue has not been resolved informally, the inmate must file an Administrative Remedy Request with the Warden within 20 calendar days of the alleged event. Id. § 542.14(a). The Warden must then respond within 20 days. Id. § 542.18. Next, the inmate must appeal the Warden's decision to the Regional Director within 20 days. Id. § 542.15(a). The Regional Director has 30 days to respond. Id. § 542.18. Finally, the inmate must appeal the decision of the Regional Director to the General Counsel within 30 days. Id. § 542.15(a). The General Counsel's response is due within 40 days. Id. § 542.18. If at any point the inmate does not receive a response within the allotted time period, the inmate may consider the absence of a Page 19 response to be a denial and proceed to the next level of review. Id. The inmate's complaint is exhausted once the General Counsel denies the final appeal. See id. § 542.15(a) ("Appeal to the General Counsel is the final administrative appeal."); accord Phillips. 268 F. Supp.2d at 129 ("Only after a decision has been rendered at each level can an inmate satisfy the exhaustion requirement."); Indelicato, 207 F. Supp.2d at 219 ("The inmate may file an action in federal court only after these four steps have been completed.").

  The Administrative Remedy Program allows "an inmate to seek formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). The only exceptions provided by the regulations are for tort claims, Inmate Accident Compensation claims, and Freedom of Information Act or Privacy Act requests, where statutorily-mandated exhaustion procedures are in place. Id. § 542.10(c). Thus, the administrative review process outlined above was "available" to Brown for purposes of the PLRA. It is irrelevant that the Administrative Remedy Program does not allow an inmate to seek monetary relief. See Rejection Notice. As stated in Booth v. Churner, 532 U.S. 731, 740-41 (2001), the PLRA still requires an inmate to exhaust his remedies even though he seeks money damages not available in those proceedings. Here, it is undisputed that Brown filed a Request for Administrative Remedy on the appropriate form on February 7, 2000 complaining that Jarama had opened Brown's outgoing mail and had refused to return portions of the correspondence. Am. Compl. ¶ 31; Johnson Decl. ¶¶ 5-6. Although Brown's Request for Administrative Remedy was denied by Warden Hasty within four days, Am. Compl. ¶ 35; Johnson Decl. ¶ 7, Brown did not appeal this decision to the Regional Director or to the General Counsel, see Johnson Decl. ¶¶ 3-5, as is required under the Administrative Remedy Program, 28 C.F.R. § 542.15(a). Page 20

  Brown executed a second Request for Administrative Remedy on March 28, 2000 seeking monetary relief for injuries caused by the actions of both Jarama and Haas. See Second Request; Johnson Decl. ¶ 8. The last event complained of in Brown's second request occurred on February 25, 2000. See id. (complaining that Haas transferred Brown to another unit when presented with Warden Hasty's letter regarding the provision of stamps to indigent inmates); Johnson Decl. ¶ 21 (Brown was transferred to another unit on February 25, 2000). Under the Administrative Remedy Program, an inmate is required to file a Request for Administrative Remedy within 20 days of the alleged event. 28 C.F.R. § 542.14(a). Brown's second request failed to comply with this requirement. In any event, even if this request could be considered timely, Brown again failed to appeal Warden Hasty's rejection of his request, see Johnson Decl. ¶¶ 3-5, as required by the Administrative Remedy Program, 28 C.F.R. § 542.15(a). Brown has offered evidence that, in addition to the two Request for Administrative Remedy forms, he also submitted an "Inmate Request to Staff Member" form to Warden Hasty on February 11, 2000 regarding Haas's failure to provide him with postage. See Inmate Request.

  This submission does not show exhaustion, however, since submitting such a form is not part of the Administrative Remedy Program except insofar as it constitutes an attempt at informal resolution, see 28 C.F.R. § 542.13(a). See Quinn v. Menifee, 2000 WL 680360, at *3 (S.D.N.Y. May 25, 2000) (correspondence does not constitute exhaustion merely because it reaches the BOP since inmate "is required to exhaust the remedies in accordance with the procedures set out in the BOP regulations"). In any event, Brown undertook none of the appeals mandated by the Administrative Remedy Program. Page 21

  In failing to advance his complaints past the initial level of review, Brown has failed to exhaust his administrative remedies prior to filing suit in federal court with respect to his Bivens claims. Brown's proposed second amended complaint does not add any new factual allegations suggesting that he properly exhausted his claims. Thus, leave to amend the complaint should be denied as fufile and summary judgment should be granted in favor of Jarama and Haas.


  For the foregoing reasons, Brown's motion to amend his complaint a second time should be denied and judgment should be entered in favor of the defendants dismissing the amended complaint.


  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Kimba M. Wood, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Wood. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140 (1985).

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.