United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, UNITED STATES DISTRICT JUDGE.
a federal inmate, filed this civil rights action pro
se pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), and
the Federal Tort Claims Act (‘FTCA”), 28 U.S.C.
§§ 2671-2680. The matter is before the court for
frivolity review pursuant to 28 U.S.C. § 1915. Also
before the court are plaintiff's motion to amend (DE 9)
and motion to compel production of documents (DE 10).
Motion to Amend
court first addresses plaintiff's motions to amend his
complaint. A party may amend its pleading once as a matter of
right. See Fed.R.Civ.P. 15(a). Therefore, the court
GRANTS plaintiff's motion to amend.
Motion to Compel Production of Documents
the court turns to plaintiff's motion to compel.
Plaintiff's motion to compel is not a model of clarity,
but it appears he seeks the production of documents related
to the exhaustion of his administrative remedies. This motion
to compel was filed before the court completed its frivolity
review, and no defendant has been served. Therefore, the
motion is premature. Moreover, discovery requests must be
made directly to defendants rather than filed with this
court. Finally, plaintiff's discovery requests appear
overbroad and unduly burdensome on their face. Accordingly,
plaintiff's motion to compel discovery is DENIED.
court now conducts a frivolity review of plaintiff's
complaint and amended complaint. A complaint may be found
frivolous because of either legal or factual deficiencies.
First, a complaint is frivolous where “it lacks an
arguable basis . . . in law.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Legally frivolous
claims are based on an “indisputably meritless legal
theory” and include “claims of infringement of a
legal interest which clearly does not exist.” Adams
v. Rice, 40 F.3d 72, 74 (4th Cir. 1994) (quoting
Neitzke, 490 U.S. at 327). Under this standard,
complaints may be dismissed for failure to state a claim
cognizable in law, although frivolity is a more lenient
standard than that for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). Neitzke, 490 U.S.
at 328. Second, a complaint may be frivolous where it
“lacks an arguable basis . . . in fact.”
Id. at 325. Section 1915 permits federal courts
“to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” See Denton v.
Hernandez, 504 U.S. 25, 32 (1992) (citing
Neitzke, 490 U.S. at 327).
contends that he was denied due process when he was
terminated from his prison work assignment. (See,
e.g., Compl. (DE 1), pp. 8-10). As an initial
matter, that court notes that plaintiff's allegations are
not a model of clarity, and fail to meet the requirements of
notice pleading. See Fed.R.Civ.P. 8. Specifically,
plaintiff lists nine defendants, including a John Doe
defendant. Plaintiff's allegations are rambling and
disjointed, and fail to coherently connect specific
defendants to specific behavior and specific injuries. In
sum, plaintiff's filings have not given any defendant
fair notice of his claims or the factual basis upon which
they rest, and his claims could be dismissed for that reason
alone. See, e.g., Swierkiewicz v.
Sorema N. A., 534 U.S. 506, 512 (2002); Burnette v.
Fahey, 687 F.3d 171, 182-84 (4th Cir. 2012).
plaintiff's filings met the requirements of notice
pleading, his allegations fail to state a viable claim.
First, Bivens creates a private right of action
against federal officers sued in their individual capacities
for certain constitutional violations. Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 66-68 (2001). However,
plaintiff has no constitutionally protected interest in
obtaining a prison work assignment. See,
e.g., McKune v. Lile, 536 U.S. 24, 38
(2002) (a prisoner has no constitutional right to the
opportunity to participate in vocational, educational,
recreational, and rehabilitative programs); O'Bar v.
Pinion, 953 F.2d 74, 84 (4th Cir. 1991); Backus v.
Ward, No. 98-6331, 1998 WL 372377, at *1 (4th Cir. June
8, 1998) (per curiam) (unpublished) (citing Sandin v.
Conner, 515 U.S. 472, 486-87 (1995); Bulger v. U.S.
Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995)
(finding that federal prisoner did not have a legitimate
claim of entitlement to continuing his Federal Prison
Industries employment); Laroque v. Beck, No.
5:09-CT-3025-H, 2009 WL 6617608, at *1 (E.D. N.C. Mar. 3,
2009) (rejecting prisoner's § 1983 “claim
that because he does not have a job assignment, he has lost
14 days ‘earned time credit' which would have been
deducted from his maximum sentence”). Accordingly,
plaintiff's Bivens claim is frivolous.
regard to plaintiff's FTCA claim, the United States
waives sovereign immunity for “the negligent or
wrongful act or omission of any employee of the Government
while acting within the scope of his office or
employment.” 28 U.S.C. § 2675(a). A prisoner
“can sue under the [FTCA] to recover damages from the
United States Government for personal injuries sustained
during confinement in a federal prison, by reason of the
negligence of a government employee.” United States
v. Muniz, 374 U.S. 150, 150 (1963).
FTCA does not allow recovery, however, for “[a]ny claim
. . . based upon the exercise or performance or the failure
to exercise or perform a discretionary function, ” even
if “the discretion involved [is] abused.” 28
U.S.C. § 2680(a). “The discretionary function
exception ‘marks the boundary between Congress'
willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities
from exposure to suit by private individuals.'”
Holbrook v. United States, 673 F.3d 341, 345 (4th
Cir. 2012) (quoting United States v. S.A. Empresa de
Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 808 (1984)). Courts have consistently held that the
decision to assign or remove an inmate from a prison job is
subject to the discretionary function exception. See
Middleton v. United States Federal Bureau of Prisons,
658 Fed.Appx. 167, 170 (3rd Cir. 2016)(finding that the act
of assigning an inmate to a prison job is covered by the
discretionary function exception); Santana-Rosa v. United
States, 335 F.3d 39, 44 (1st Cir. 2003) (same);
Vickers v. United States, 228 F.3d 944, 950-51 (9th
Cir. 2000)(noting various courts have held that decisions
relating to the hiring, training, and supervision of
employees usually involve policy judgments of the type
Congress intended the discretionary function exception to
shield); Richman v. Straley, 48 F.3d 1139, 1146
(10th Cir. 1995) (“Decisions regarding employment and
termination are inherently discretionary.”);
Tonelli v. United States, 60 F.3d 492, 496 (8th
Cir.1995) (“Issues of employee supervision and
retention generally involve the permissible exercise of
policy judgment and fall within the discretionary function
exception.”); Radford v. United States, 264
F.2d 709, 711 (5th Cir.1959) (“It is well settled that
the federal government has the unquestioned right to choose
its own employees and is therefore not liable for acts done
in the exercise of that right.”); West v. United
States, No. 5:17-CV-04241, 2018 WL 3384909, at *9 (S.D.
W.Va. June 13, 2018) (“Decisions concerning inmate
classification, inmate placement, and allocation of staff
involve an element of judgment or choice”), report
and recommendation adopted sub nom. West v. United
States, No. 5:17-CV-04241, 2018 WL 3381418 (S.D. W.Va.
July 11, 2018). Accordingly, plaintiffs FTCA claim is also
plaintiffs motions (DE 9, 10) are DENIED, and plaintiffs
action is DISMISSED as frivolous. The clerk of court is
DIRECTED to close this ...