Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-15-2005
Hoffenberg v. Provost
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2354
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Hoffenberg v. Provost" (2005). 2005 Decisions. Paper 228.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/228
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
CPS-378 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2354
STEVEN JUDE HOFFENBERG, Acting to benefit over
100,000 Restitution Victims Owners of Securities in Towers
Financial Corp., pursuant to court ordered restitution,
Appellant
v.
HAROLD PROVOST, LT.; BERNIE ELLIS; DURAN SHEETS; LOU MORELLO;
JOHN MINER; KARL BELFONTI, MR.; CINDY BILLISITS;
HENRY J. SADOWSKI; KIM WOODRING; CAMERON LINDSAY; ELLEN NICH;
ARISMAN, MS.; REOME, MR.; JAY KHAMM; ERIC RIPOLL, LT.;
REICH, CAPTAIN; DAVID RARDIN; CHRISTOPHER ERLEWINE;
KLAIBER, MR.; CLARK, MR.; FAIRBANKS, MS.; FULGER, MR.;
FLATT, MR.; BRIAN REYNOLDS; GEORGE HAYES; MAXWELL, MR.;
HARELL WATTS; ROY, MS.; BARRETT, MR.; STRADDE, MR.;
GREGORY, MR.; STEVEN HOUSLER; MAINES, MR.; DOORIAN, MR.;
GLORIA POPOUR; SOME SIXTY (60) JOHN DOE BOP STAFF DEFENDANTS
On Appeal From the United States District Court
For the Western District of Pennsylvania
(Civ. No. 02-00007-E)
District Judge: Honorable Sean J. McLaughlin
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
September 22, 2005
Before: ALITO, MCKEE and AMBRO, Circuit Judges
(Filed November 15, 2005 )
OPINION
PER CURIAM
Steven Jude Hoffenberg appeals pro se from two orders of the United States
District Court for the Western District of Pennsylvania granting Appellees’ motions for
dismissal and summary judgment. For the reasons that follow, we will summarily affirm
the orders of the District Court.
Hoffenberg was incarcerated at the Federal Correctional Institution in McKean,
Pennsylvania (“FCI-McKean”), from March 1999 through July 2001.1 In 2002,
Hoffenberg filed this action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2671 (the
Federal Tort Claims Act, hereinafter “FTCA”) against Appellees, who were Bureau of
Prisons (“BOP”) employees during Hoffenberg’s incarceration at FCI-McKean.
Hoffenberg’s amended complaint alleges numerous violations of his constitutional rights
under the First, Fifth, and Eighth Amendments, as well as an FTCA claim. The amended
complaint also asserts that, as part of his sentence, Hoffenberg was ordered to pay
restitution totaling $475 million to the 100,000 victims of his financial crimes. Many of
Hoffenberg’s claims are related to his contention that Appellees frustrated his efforts to
1
As the parties are familiar with the facts, we recite them here only as necessary to
our discussion.
2
fulfill this court-ordered obligation by impeding his attempts to conduct collections
litigation from within prison. Hoffenberg seeks over one billion dollars in damages.
Appellees filed a motion to dismiss Hoffenberg’s amended complaint for failure to
state a claim, or, in the alternative, for summary judgment, arguing that many of
Hoffenberg’s claims were not administratively exhausted as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). Appellees further argue that the
few exhausted claims failed to state a claim for which relief could be granted. Adopting
the Magistrate Judge’s Report and Recommendation, the District Court dismissed all but
Hoffenberg’s retaliation claims in an order entered March 5, 2004.2 Hoffenberg then
filed a second amended complaint which addressed his retaliation claims in more detail.
Appellees again moved for dismissal or summary judgment, on the same grounds. In an
order entered March 18, 2005, the District Court adopted the Magistrate Judge’s second
Report and Recommendation and granted summary judgment to Appellees on the
retaliation claims. Hoffenberg timely filed this appeal. Appellees have filed a motion for
summary affirmance, which Hoffenberg opposes.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and
1346(b)(1). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Hoffenberg’s
notice of appeal brings up for review both of the District Court’s dismissal orders. See
2
Hoffenberg’s appeal from this order was dismissed for lack of jurisdiction,
pursuant to 28 U.S.C. § 1291, as his retaliation claims were still pending. Hoffenberg v.
Provost, C.A. No. 04-1680 (order entered on June 30, 2004).
3
Pacitti v. Macy’s, 193 F.3d 766, 777 (3d Cir. 1999). Our review of these orders is
plenary. See id. at 772; Weiner v. Quaker Oats Co., 129 F.3d 310, 315 (3d Cir. 1997).
The District Court dismissed Hoffenberg’s first amended complaint in part, for
failure to state a claim. The court held that Hoffenberg’s collections litigation cannot
form the basis of a First Amendment access to courts claim, as it does not challenge either
the validity of Hoffenberg’s sentence or conviction or his conditions of confinement.3
See Lewis v. Casey, 518 U.S. 343, 355 (1996). As to the claim that Appellees violated
Hoffenberg’s due process rights by placing him in disciplinary confinement, the court
held that Hoffenberg failed to show that this placement constituted an “atypical and
significant hardship” under Sandin v. Conner, 515 U.S. 472 (1995).4 We agree with the
District Court’s dismissal of these claims on the merits, based on our review of the
record. See First Report and Recommendation (Docket # 96) at 14, 20-21.
The District Court dismissed Hoffenberg’s FTCA claim as unexhausted, as this
claim was still pending before the BOP when Hoffenberg filed this suit in the District
Court. See 28 U.S.C. § 2675(a). In his objections to the Report and Recommendation,
Hoffenberg argues that, by amending his complaint after the conclusion of the BOP
3
In his motion opposing summary affirmance, Hoffenberg asserts that Appellees’
actions damaged two of his prison lawsuits as well as five actions attacking his
conviction. We decline to consider these arguments, as Hoffenberg raises them for the
first time on appeal. See Union Pacific R.R. Co. v. Greentree Transp. Trucking Co., 293
F.3d 120, 126 (3d Cir. 2002).
4
The District Court properly held that these allegations did not form the basis of an
Eighth Amendment claim.
4
proceedings, he had essentially re-filed his federal suit, thus fulfilling the FTCA’s
exhaustion requirement. The District Court properly rejected this argument, as the date of
the amended complaint cannot serve as the date the federal suit was “instituted.” See
McNeil v. United States, 508 U.S. 106, 111-12 (1993).
Hoffenberg raises numerous claims under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971), including that various Appellees
participated in cover-ups of BOP staff misconduct, instituted baseless disciplinary
proceedings against him, and twice physically assaulted him. We have reviewed the
record, including exhibits consisting of BOP records detailing Hoffenberg’s
administrative remedy filings, and agree with the District Court that Hoffenberg failed to
exhaust these claims as required by 42 U.S.C. § 1997e(a). See First Report and
Recommendation at 10-14; Decl. of Joyce Horikawa, Defendants’ Exhibits Filed in
Support of their Motion to Dismiss (Docket # 133), Exhibit 1. Hoffenberg’s conclusory
statements to the contrary are insufficient to overcome Appellees’ well-supported motion
for summary judgment. See Fed. R. Civ. P. 56(c); Pastore v. Bell Tel. Co. of Pa., 24 F.3d
508, 511-12 (3d Cir. 1994).
Hoffenberg asserts that Appellees retaliated against him for filing civil rights
lawsuits against BOP staff at both FCI-McKean and FCI-Allenwood, where he was
previously incarcerated. According to Hoffenberg, this retaliation occurred when
Appellees seized and restricted his access to his legal files, restricted his access to the
5
administrative remedy process, and carried out unjustified disciplinary actions against
him. For the reasons given by the District Court, the evidence in the record supports
summary judgment in favor of Appellees on the merits of these retaliation claims. See
Second Report and Recommendation (Docket # 136) at 15-20.
As to Hoffenberg’s retaliation claim based on Appellees’ alleged denial of daily,
full-time use of the law library, we agree with the District Court’s alternative holding that
Hoffenberg fails to state a claim, as the evidence in the record shows that he was, in fact,
granted access to the law library through his ability to request and receive materials. See
Second Report and Recommendation at 22; Strade Declaration, Defendants’ Exhibits
Filed in Support of Their Motion to Dismiss, Exhibit 6.
Hoffenberg also alleges retaliation based on allegations that Appellees Morello
and Kahm physically assaulted him and that various Appellees verbally threatened him
with violence and with obstruction of access to the courts and denied him access to legal
photocopies, pencils and paper. We agree with the District Court that, although some of
the underlying claims were exhausted, the retaliation component of these claims was not,
and the claims are therefore procedurally defaulted. See Second Report and
Recommendation at 20-23; Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); White v.
Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990) (retaliation itself constitutes a separate
claim).
In his opposition to Appellees’ motion for summary affirmance, Hoffenberg
argues that Appellees are responsible for the procedural default of his claims because they
6
“lost” many of his administrative remedy forms. To the extent that this argument restates
Hoffenberg’s claim that Appellees restricted his access to the administrative remedy
process, we agree with the District Court that Appellees are entitled to summary judgment
on this claim. See Second Report and Recommendation at 20 n.10. We further observe
that the record evidence indicates that these allegedly “lost” forms were rejected as
incorrectly completed, and that Hoffenberg was given instructions on how to file the
forms correctly and an opportunity to re-file, if appropriate, in accordance with the
provisions of 28 C.F.R. § 542.17(a). See Second Amended Complaint (Docket # 102),
Exhibit 1. To the extent that Hoffenberg argues that he “substantially complied” with the
BOP’s administrative remedy system merely by filing an endless stream of improperly
completed administrative remedies, his argument fails. See e.g., Ahmed v. Dragovich,
297 F.3d 201, 209 (3d Cir. 2002).
Summary action is appropriate if there is no substantial question on appeal. See
Third Circuit LAR 27.4.; I.O.P. 10.6. For essentially the same reasons set forth by the
District Court, we will grant Appellees’ motion for summary affirmance of the District
Court’s orders dismissing Hoffenberg’s first amended complaint, in part, for failure to
state a claim and granting summary judgment in favor of Appellees as to the claims raised
in the second amended complaint. See id.
Hoffenberg’s motion for appointment of counsel is DENIED.
7