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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 ...

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