The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
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.
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
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.
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.
¶ 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
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
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
postage, without authorization." Id. Also, Sadowski
noted that Brown had failed to show that he actually experienced any
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
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  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
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;
(2) Brown has failed to state a cause of action under Bivens,
id. at 12-20; and (3) defendants are entitled to ...