KEVIN McNULTY, District Judge.
This case comes before the court on the motion of the plaintiff, James Polidoro, for a default judgment in this legal malpractice case. (ECF Nos. 43, 44, 55) Though unopposed, the case has been delayed by a stay in bankruptcy, changes of counsel, and multiple requests for adjournments. Indeed, this motion for a default judgment was filed only after one dismissal for failure to prosecute the case, and a second threatened dismissal.
Polidoro essentially alleges that his attorney failed to file a civil rights action within the statute of limitations. I will enter a default judgment that compensates Polidoro for $12,820.13 in fees and expenditures occasioned by his attorney's deficient representation. I find, however, that the underlying civil rights action had little or no chance of success. I assign it a value of $5000. Judgment will be entered in a total amount of $17,820.13.
In 1999, Polidoro pled guilty in this District to certain federal charges. See Crim. No. 98-560. (What charges, he says, are at issue; I'll explain below.) He was sentenced to a term of imprisonment of 21 months. Released from custody on December 21, 2000, he began serving a three year term of supervised release.
Polidoro alleges that he met with an attorney, defendant Gerald Saluti,
On April 5, 2003, Polidoro and Saluti came to an agreement on the terms of Saluti's retention, and Polidoro gave Saluti a check for $1000. (AC ¶¶ 9-10; id. ¶ 17 ("Gerald M. Saluti accepted James J. Polidoro's written offer on April 5
Polidoro filed this legal malpractice action pro se on December 18, 2009.
The gist of the damages claim is that, if Saluti had filed the action against the federal defendants, Polidoro would have received damages or a settlement. Saluti's malpractice allegedly deprived Polidoro of such an award, and also resulted in out of pocket expenses that Polidoro seeks to recoup.
"[T]he entry of a default judgment is left primarily to the discretion of the district court." Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)). Because the entry of a default judgment prevents the resolution of claims on the merits, "this court does not favor entry of defaults and default judgments." United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984). Thus, before entering default judgment, the Court must determine whether the "unchallenged facts constitute a legitimate cause of action" so that default judgment would be permissible. DirecTV, Inc. v. Asher, 2006 WL 680533, at * 1 (D.N.J. Mar. 14, 2006) (citing 10A Wright, Miller, Kane, Fed. Prac. & P. Civil 3d § 2688, at 58-59, 63).
Before a court may enter default judgment against a defendant, the plaintiff must have properly served the summons and complaint. In addition, the defendant must have failed to file an answer or otherwise respond to the complaint within the time provided by the Federal Rules, which is ordinarily twenty-one days. See Gold Kist, Inc. v. Laurinburg Oil Co., Inc., 756 F.2d 14, 18-19 (3d Cir. 1985); Fed. R. Civ. P. 12(a).
Service of an individual may be made under the Federal Rules by doing any of the following:
Fed. R. Civ. P. 4(e)(2).
The record contains an affidavit of service for both the original and the amended complaint. According to those affidavits: (1) the original complaint was served personally on Mr. Saluti by a professional process server on February 12, 2010 (ECF No. 6), and (2) the amended complaint was served on Saluti's authorized agent by a professional process server on September 3, 2014 (ECF No. 41).
Neither complaint has been answered. No one has entered an appearance on behalf of the defendant, Mr. Saluti. On December 29, 2014, the Clerk entered default as to Mr. Saluti for failure to plead or otherwise defend the action. (Unnumbered Docket entry following ECF No. 45)
The prerequisites for a default judgment have therefore been met.
After the prerequisites have been satisfied, a court must evaluate the following three factors: "(1) whether the party subject to default has a meritorious defense, (2) the prejudice suffered by the party seeking default, and (3) the culpability of the party subject to default." Doug Brady, Inc. v. N.J. Bldg. Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). Those factors, considered in light of the record of this case, weigh in favor of entry of a default judgment.
The legal malpractice claims pled in the amended complaint appear to have legal merit.
No extensive legal discussion is required. Under New Jersey law, the elements of a breach of contract are that (1) the parties entered into a valid contract; (2) the defendant failed to perform its contractual obligation; and as a result, (3) the plaintiff sustained damages. Sheet Metal Workers Int'l Ass'n Local Union No. 27, AFL-CIO v. E.P. Donnelly, Inc., 737 F.3d 879, 900 (3d Cir. 2013) (citing Coyle v. .Englander's, 488 A.2d 1088 (N.J. Super. Ct. App. Div. 1985)). Considered as a claim of negligence, legal malpractice has three essential elements: "(1) the existence of an attorney-client relationship creating a duty of care upon the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin v. Hannoch Weisman, 678 A.2d 1060, 1070 (N.J. 1996) (quoting Lovett v. Estate of Lovett, 593 A.2d 382 (N.J. Super. Ch. Div. 1991)).
The second and third factors—prejudice to Polidoro, and the culpability of Saluti for the default—also weigh in favor of a default judgment.
Polidoro has been prejudiced by Saluti's failure to participate because he has been "prevented from prosecuting [the] case, engaging in discovery, and seeking relief in the normal fashion." See Teamsters Pension Fund of Philadelphia & Vicinity v. Am. Helper, Inc., 2011 WL 4729023, at *4 (D.N.J. Oct. 5, 2011) (finding that a defendant's failure to answer prejudices the plaintiff); see also Gowan v. Cont'l Airlines, Inc., 2012 WL 2838924, at *2 (D.N.J. Jul. 9, 2012) ("Plaintiff will suffer prejudice if the Court does not enter default judgment as Plaintiff has no other means of seeking damages for the harm allegedly caused by Defendant."). The prejudice factor, then, weighs in favor of a default judgment.
The culpability factor, too, weighs in favor of a default judgment. Absent any evidence to the contrary, "the Defendant's failure to answer evinces the Defendant's culpability in [the] default." Teamsters, 2011 WL 4729023 at *4• Here, as in Teamsters, "there is nothing before the Court to show that the Defendant's failure to file an answer was not willfully negligent." Id. (citing Prudential Ins. Co. of America v. Taylor, 2009 WL 536043, at *1 (D.N.J. Feb. 27, 2009) (finding that when there is no evidence that the defendant's failure to answer the complaint was due to something other than its own willful negligence, the defendant's conduct is culpable and default judgment is warranted)).
Indeed, Saluti's failure to answer seems to have stemmed from something more than mere negligence or inattention. According to the uncontradicted affidavits of service, Saluti was properly served with the original and amended complaints. It further appears that Saluti has declared bankruptcy. Records attached by Polidoro demonstrate that Saluti had actual notice of this malpractice action and consented to lift the stay in bankruptcy so that Polidoro could pursue his claims against Saluti's malpractice carrier. The carrier, however, disclaimed coverage. (ECF No. 55-2 at pp. 2, 6) In short, there is every reason to think that Saluti's failure to answer was purposeful and calculated—a cost-benefit analysis in light of his insolvency.
For the foregoing reasons, I find that entry of a default judgment is appropriate and justified.
As to liability, the allegations of the complaint are deemed true. Not so as to damages. "[D]efendants are deemed to have admitted the factual allegations of the Complaint by virtue of their default, except those factual allegations related to the amount of damages." Doe, 2013 WL 3772532 at *2. While "courts must accept the plaintiff's well-pleaded factual allegations as true," they "need not accept the plaintiffs factual allegations regarding damages as true." Id. (citing Chanel, Inc., 558 F. Supp. 2d at 536).
Further, if a court finds evidentiary support to be lacking, it may order or permit a plaintiff seeking a default judgment to provide additional evidence. Doe, 2013 WL 3772532 at *2. In this case, I did request that counsel document the damages requested by submitting affidavits in lieu of direct testimony. Counsel has submitted a 22-page affidavit of Mr. Polidoro, with 28 exhibits attached. (ECF No. 55)
Polidoro seeks two categories of damages, one documented and "liquidated," and the other general and "unliquidated."
The liquidated damages are appropriately awarded here. These consist largely of legal fees: $1000 paid to Saluti, as well as fees and expenses in connection with this case and the lifting of the automatic stay in Saluti's bankruptcy case. New Jersey has been quite liberal, perhaps uniquely so, in permitting legal malpractice plaintiffs to recover attorneys' fees. See Saffer v. Willoughby, 670 A.2d 527, 534 (N.J. 1996); see also R. Israel, D. Dugan, B. Gladis, "Legal Malpractice Claims Can Be Brought By Nonclients," 219 N.J.L.J. 148 (special section, p. S-4) (Jan. 19, 2015) (observing that Saffer rule is unique to New Jersey). Polidoro has documented these expenditures, attaching relevant statements of account and correspondence. (ECF No. 55-9 at pp. 30-37) I will award these liquidated damages, which total $12,820.13.
Here is the theory behind the "unliquidated" component of damages: If Saluti had timely filed Polidoro's action against the court, the prosecutors, and the prison system, Polidoro would have received an award of damages or a cash settlement. Polidoro cites assurances by Saluti that his case was worth at least $2 million. Even if he had appeared in this action, however, Saluti would not have been in a position to "admit" that third parties wronged plaintiff and were liable in damages. I must therefore scrutinize such hypothetical claims closely, and make an independent assessment as to their viability.
For legal malpractice claims, New Jersey has employed the "suit-within-a-suit" method of ascertaining damages. That is, the court in the malpractice action must attempt to determine the amount of the award plaintiff would have obtained if his claim had been pursued by a competent attorney:
Kranz v. Tiger, 914 A.2d 854, 860 (N.J. Super. Ct. App. Div. 2007). The cited Hoppe case applied that suit-within-a-suit methodology to a malpractice claim, like this one, that an attorney had blown the statute of limitations. I find that methodology to be appropriate here.
I here summarize the hypothetical allegations that Polidoro intended to include in the civil rights action he wanted Saluti to file. For context, I have supplemented Polidoro's account with certain indisputable facts of public record from the Court's docket, particularly with regard to the underlying criminal case against Polidoro.
Count 1 of the Indictment alleges a racketeering conspiracy in violation of 18 U.S.C. § 1962(d). The alleged criminal enterprise consists of members of the North Jersey Faction of the Bruno-Scarfo Organized Crime Family. It further alleges that Polidoro, an associate of that crime family, "collected extortionate loans" for a codefendant named Oliveri. (Indictment, copy at ECF No. 55-6 at p. 6) Other counts that name Polidoro as a defendant are Count 2 (racketeering, 18 U.S.C. § 1962(c)); Count 3 (conspiracy to collect extensions of credit by extortionate means, 18 U.S.C. § 894); Counts 6-10 (collection of extensions of credit by extortionate means, 18 U.S.C. § 894); and Count 21 (illegal gambling business, 18 U.S.C. § 1955).
Polidoro alleges that he pled guilty in 1999 to "one (1) count of Collection of Extension of Credit by Extortionate Measures at a level 15 [of the Federal Sentencing Guidelines for 1998]." (Affidavit of James J. Polidoro ("PA"), ECF No. 55-1, ¶ 27) At all times, he says, he was adamant that he picked up gambling proceeds, but never threatened anyone. And the Court's Judgment, he says, should have reflected that benign fact: this was, he says, a plea to "1 count of extortionate extension of credit' which should have fallen under either Count 3 or Counts 6-10 which related to Section 18:894." (PA ¶ 30)
The notion that the guilty plea "should have fallen" under some count other than Count 1 is impossible to square with the record. The Court has obtained copies of the plea agreement and the transcript of the plea. (Neither was attached to Polidoro's papers.)
The rest of Polidoro's allegations largely stem from this alleged inconsistency between his guilty plea and the Court's Judgment. In summary, those factual allegations are:
I temporarily set aside some miscellaneous claims, which are discussed in section III.C, infra.
Polidoro's affidavit refers to the "civil rights" laws without further elaboration, and also lists a number of state-law torts.
A Bivens-style civil rights action against individual officers might have been intended. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). A Bivens action based on certain violations of the Fourth, Fifth, and Eighth Amendments may lie against individual federal officers, but not against the government or its agencies. Corr. Sen's. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001).
Although Polidoro does not name the United States as a potential defendant, he might also have been considering a tort claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80. The FTCA, a limited waiver of sovereign immunity, provides a vehicle for bringing state tort claims against the United States.
I quickly set aside defendants that are not amenable to suit: the District Court itself, the U.S. Attorney's Office, and the Bureau of Prisons. They are not themselves the United States, which is the only proper defendant in a FTCA action. See FDIC v. Meyer, 510 U.S. 471, 484-85 (1994). They are not suable as individual federal "officers" under Bivens. See Malesko, supra. Nor does plaintiff identify any other waiver of sovereign immunity that would permit him to sue these governmental entities. Polidoro does not suggest any basis for imposing vicarious liability on the government or supervisory personnel not directly involved in the actions of which he complains. As to any constitutional claim, that is a particularly problematic omission, because respondeat superior does not apply to a Bivens claim. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
Furthermore, individual defendants acting in their official capacities are not subject to suit under Section 1983 or Bivens. See Chavarriaga v. New Jersey Dep't of Corr., ___ F.3d ___, 2015 WL 7171306, at *6 n.9 (3d Cir. Nov. 16, 2015) ("[Section] 1983 does not create a cause of action against states or state officials acting in their official capacities.") (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 71 (1989)); Blanchard v. Gallick, 448 F. App'x 173, 175 (3d Cir. 2011) ("An action against government officials in their official capacities constitutes an action against the United States; and claims against the United States are barred by sovereign immunity, absent an explicit waiver."). Such suits may be brought only against officers in their individual capacities. See FDIC, 510 U.S. at 485.
As to individual defendants, immunity poses an additional barrier to suit. (I here address the Bivens aspect; individuals cannot be sued under the FTCA.) The presiding District Judge and the Assistant United States Attorney are absolutely immune for acts performed in their official capacities. See generally Mireles v. Waco, 502 U.S. 9, 11(1991) (absolute judicial immunity for judge acting in judicial capacity); Stump v. Sparkman, 435 U.S. 349, 362 (1978) (same); Imbler v. Pachtman, 424 U.S. 409, 410 (1976) (prosecutorial immunity); Bums v. Reed, 500 U.S. 478, 492 (1991) (same).
Other individuals, such as prison personnel, enjoy a lesser, qualified immunity. Government officials performing discretionary functions are generally "shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The CIM segregation of Mr. Polidoro, his belated transfer out of Fort Dix, his security classification in prison, and the denial of admission to a boot camp or halfway house program, do not violate any clearly established right:
Jamison v. Wetzel, 2015 WL 791444, at *7 (M.D. Pa. Feb. 25, 2015) (adopting Report & Recommendation of Magistrate Judge). Recently, the United States Court of Appeals for the Third Circuit reaffirmed those principles:
Chavarriaga, 2015 WL 7171306 at *6.
Absolute immunity as to the judge and prosecutor, and qualified immunity as to the prison personnel, would very likely have posed an insuperable barrier to relief as to the Bivens claims against them.
Assuming that Polidoro's complaint could have overcome those threshold barriers, his suit would have faced further, substantive obstacles. These potential causes of action are seriously flawed, both factually and legally.
By Polidoro's own account, the majority of his claims—e.g., that he should not have been segregated, or that he should have been admitted to a boot camp or halfway house—flow from a single error. These events happened, he says, primarily because prison officials relied on the Judgment in his criminal case. (ECF No. 55-5, p. 14) That Judgment, according to Polidoro, reflects the wrong offense of conviction. He says that he never pled guilty to Count 1, or at least that he never intended to. The decisions of which he complains were all based on the various officials' having taken that Count 1 conspiracy conviction at face value; had they recognized that he was at worst guilty of Count 3, they would not have considered Polidoro a danger, segregated him, or denied him boot camp or halfway house status.
Every step of that argument is belied by the record. Consider, for example, the guilty plea itself.
Polidoro does not attach the plea agreement or the transcript of the guilty plea to his papers. Instead, he attaches his application to plead guilty (commonly known as a "Rule 11 form"). (ECF No. 55-5, pp. 4-11) In answer to Question 20 of the Rule 11 form, Polidoro acknowledged that there was a written plea agreement and that he had discussed it with his counsel. (Id. at p. 8) In answer to Question 20A ("The substance of the plea agreement is:"), Polidoro wrote "plea to 1 count of extortionate extension of credit and be sentenced at a level 15." (Id.)
Based on this, his own handwritten notation, Polidoro argues that he did not actually plead guilty to Count 1, the racketeering conspiracy. The full record of the plea, however, makes it crystal clear that he did.
Start with the written plea agreement, which is embodied in a letter dated February 10, 1999, and filed with the Court on February 24, 1999. (Crim. No. 98-560, ECF No. 66).
On February 24, 1999, at the entry of the guilty plea, the Court initially confirmed with counsel that this was a plea to Count 1:
(Transcript of guilty plea, Feb. 24, 1999 ("Plea Tr."), p. 3)
The Court directly addressed Polidoro, and confirmed that Polidoro had "read Count 1 of the indictment as well as the respective Racketeering Acts that refer to you as an individual"; that Polidoro did "understand the Racketeering Acts and the conspiracy with which [he is] charged"; that Polidoro had had "an opportunity to discuss the indictment with . . . counsel"; and that counsel had explained to Polidoro "what the Government would have to prove in order to find [him] guilty of the offense or offenses charged beyond a reasonable doubt." (Plea Tr. 7-8) To each query, Polidoro answered "Yes, sir." (Id.)
The Court then discussed with Polidoro the Rule 11 form, containing Polidoro's own handwritten description of the charge. Polidoro discussed the Rule 11 form with the Court, but expanded on that handwritten notation. Polidoro acknowledged that he fully understood that he was pleading guilty to Count 1, the racketeering conspiracy:
(Plea Tr. p. 13)
Judge Wolin again confirmed that this was a plea to Count 1:
(Plea Tr. p. 14)
(Plea Tr. p. 15)
And again:
(Plea Tr. pp. 18-19)
The transcript reflects that Polidoro and the United States executed a written agreement to plead guilty to Count 1, the racketeering conspiracy. And in open Court, Polidoro repeatedly states under oath that he understands he is pleading guilty to Count 1. Although he now claims that his plea should properly be understood as a plea to Counts 3 or 6-10, he acknowledged on the record, again under oath, that those very counts would be dismissed as part of his plea bargain.
There is no chance that a fact finder could be persuaded that Mr. Polidoro knowingly pled guilty to anything but Count 1.
Polidoro makes a related argument that he merely collected gambling proceeds, and never threatened anyone. It follows, he says, that his segregated status and ineligibility for halfway house or boot camp programs were wrongful, and that he should receive an award of damages.
Once again, the record renders any such claim highly problematic. Under oath, Polidoro acknowledged that he was pleading guilty to Count 1, specifically in relation to certain racketeering acts: numbers 2, 6, 7, 8 and 21. Racketeering Act 2 was charged as a conspiracy to collect credit by "extortionate means." Racketeering Acts 6, 7, and 8 were substantive collections of credit by extortionate means, in violation of 18 U.S.C. § 894. Racketeering Act 21 was the conducting of an illegal sports bookmaking business. (Indictment, ECF No. 55-6, pp. 12-14)
To begin with, there is nothing benign about the use of "extortionate means," as Polidoro seems to imply. "Extortionate means" is defined in 18 U.S.C. § 891(7) as "any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any other person."
Polidoro himself removed all doubt. In stating the factual basis for the plea, Polidoro admitted that his collections of payments from bettors at a 45% interest rate were backed by the express or implied threat of violence or criminality:
(Plea Tr. p. 33) (emphasis added) True, there was no proffer that each collection of money was accompanied by a formal repetition of the threat of violence. But that was the understanding, as defendant himself admitted. (And it is hard to imagine a debtor paying 45% interest on any but the strongest compulsion.)
Polidoro further admitted that he was no incidental participant in the extortion conspiracy and illegal sports bookmaking operation for which the debts were collected. He was a full conspirator with these organized crime figures, and an equity participant in the profits. (Plea Tr. pp. 31-34)
In short, the Judgment in this case accurately reflected the Count 1 offense to which Polidoro pled guilty. Nothing about the charge or the guilty plea required the prison authorities to treat Polidoro as a harmless participant.
In light of these facts of public record and the applicable law, Polidoro's claims in relation to his guilty plea, his prison security status, and his prison transfer could not have succeeded. The facts simply do not support them. The law bars them. And these were all non-actionable exercises of judicial or administrative discretion.
Judge Wolin and his clerk committed no actionable wrong when they declined to "correct" the Judgment to reflect Polidoro's position that he did not plead guilty to the Count 1 conspiracy. That is precisely what he did plead guilty to.
Facts aside, there is an insurmountable legal barrier to pursuing any claim that would require challenging or setting aside a criminal conviction. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court rejected the use of Section 1983 as an indirect means of challenging the underlying criminal judgment:
Heck, 512 U.S. at 486-87; see also McKinney v. Prosecutor's Office, 2014 WL 2574414, at *3 (D.N.J. June 4, 2014), reconsideration denied, 2015 WL 1954460 (D.N.J. Apr. 29, 2015).
Polidoro's claim that his plea to Count 1 was "really" a plea to Count 3, or Counts 6-10, is just such a claim. Heck bars that claim. Heck likewise cuts off all claims against downstream defendants, to the extent such claims are premised on the invalidity of Polidoro's plea to Count 1. Before proceeding with any such claim, Polidoro would need to have successfully challenged the accuracy or validity of that conviction. That he did not and could not do. For the reasons expressed above, he had no basis to attack his guilty plea, or to file a motion to "correct" it. See Fed. R. Crim. P. 35, 36. Moreover, by the time he approached Saluti to represent him, the time to appeal that conviction had expired, as had the deadline to file a motion under 28 U.S.C. § 2255. See Fed. R. App. P. 4(b) (14 days to appeal); 28 U.S.C. § 2255(f) (one year statute of limitations); see also Gilles v. Davis, 427 F.3d 197, 209-10 (3d Cir. 2005) (Heck favorable-termination rule applies even when the plaintiff is no longer in custody and cannot pursue habeas relief).
And factually, there can be no viable claim that arises from alleged misidentification of the offense of conviction. There is and could be no showing, for example, that the AUSA misinformed the Bureau of Prisons as to the nature of Polidoro's conviction. It was and is a conviction of the Count 1 conspiracy.
In light of that fact, the downstream participants in the prison system committed no wrong in relying on Polidoro's plea of guilty to this serious RICO conspiracy offense, in which the relevant enterprise was an organized crime faction. The prison authorities committed no error as to the identity or seriousness of the offense of conviction. No error as to the offense of conviction caused them to misclassify Polidoro or deny him a lower security level of imprisonment.
That being the case, it is extremely doubtful whether such security classifications or administrative segregation, even if substantively erroneous, would give rise to a civil rights claim. See cases cited at pp. 13-16, supra; see also Sandin v. Conner, 515 U.S. 472, 484 (1995) (denying due process claim based on separate confinement, requiring "atypical and significant hardship" in relation to ordinary burdens of prison life and segregated confinement); Chavarriaga, 2015 WL 7171306 at *7 ("[T]he Due Process Clause do[es] not give an inmate a liberty interest in being housed in a particular institution or at a particular custody level."); Smith v. Mensinger, 293 F.3d 641, 654 (3d Cir. 2002) (7 months' disciplinary confinement does not in itself infringe a protected liberty interest). But see Allah v. Bartkowski, 574 F. App'x 135 (3d Cir. 2014) (overturning dismissal of Eighth and Fourteenth Amendment claims of prisoner allegedly placed in solitary confinement for six years, denied adequate exercise, deprived of sleep and basic sanitation).
Assuming the truth of Polidoro's allegations, the warden would nevertheless have acted within the proper bounds of discretion in concluding that Polidoro should be denied halfway house confinement as a "threat to the community" based on his "instant offense and associations." No flaw in the decision-making or appeal procedure has been identified. Polidoro has identified no cause of action under which that decision, even if erroneous, could give rise to an award of damages. See Chavarriaga, 2015 WL 7171306 at *6 ("But an inmate does not have the right to `be placed in any particular prison,' including halfway homes and community release programs . . . Thus, courts recognize that a state's authority to place inmates anywhere within the prison system is among `a wide spectrum of discretionary actions[.]w) (citing Meachum v. Fano, 427 U.S. 215, 224-25 (1976)); Asquith v. Dep't of Corr., 186 F.3d 407, 410 (3d Cir. 1999) ("[A] prisoner does not have a liberty interest in remaining in a preferred facility within a state's prison system.").
Viewed as FTCA tort claims, these are likewise matters of broad administrative discretion, subject to the discretionary function exception. See Santana-Rosa v. United States, 335 F.3d 39, 44 (1st Cir. 2003) ("[Decisions with regard to classification of prisoners, assignment to particular institutions or units, and allocation of guards and other correctional staff must be viewed as falling within the discretionary function exception to the FTCA, if penal institutions are to have the flexibility to operate.") (citing Cohen v. United States, 151 F.3d 1338, 1344 (11th Cir. 1998) and Calderon v. United States, 123 F.3d 947, 949-50 (7th Cir. 1997)); Huff v. Neal, 555 F. App'x 289, 298-99 n.9 (5th Cir. 2014) (placement of prisoner in particular unit fell into exception regardless of whether plaintiff brought claim on negligence or intentional tort theory); Donaldson v. United States, 281 F. App'x 75, 78 (3d Cir. 2008) (BOP decisions regarding protection of inmates, including returning inmate to general population, fell within exception). I note in passing that, of course, failure to segregate an inmate in response to potential danger might likewise be wrongful. See generally Farmer v. Brennan, 511 U.S. 825 (1994) [Bivens claim under Eighth Amendment for failure to protect prisoner from known substantial risk of violence from fellow inmates). Balancing such considerations is essentially an exercise of administrative discretion.
Polidoro cites no basis for what seems to be his legal position—that the prison authorities' security and classification decisions must be based solely on the prisoner's admissions in open court at his guilty plea.
In short, Polidoro's hypothetical claims that a misunderstanding about his offense of conviction led to onerous conditions of confinement would not have survived a motion to dismiss, let alone summary judgment. It is therefore unlikely that any of the potential defendants would have regarded these claims as possessing more than nuisance value.
Polidoro additionally alleges that he wanted Saluti to include in his lawsuit certain miscellaneous claims based on alleged abuse and arbitrary behavior by prison personnel, including
I set aside the threshold barriers outlined in Section III.B.2, supra. I nevertheless conclude that these miscellaneous claims, too, have few indicia of viability or significant dollar value.
The Jamison case, cited above, while not binding on this Court, once again usefully summarizes the applicable law. As to verbal harassment and an isolated incident of touching, established law does not suggest that Polidoro has a valuable, or even viable, claim:
Jamison, 2015 WL 791444 at *8.
No more hospitable to Polidoro's claims are the standards governing general complaints about conditions of confinement:
Id. at* 10.
The necessary showing, then, is twofold, and it contains both an objective and a subjective component:
Chavarriaga, 2015 WL 7171306 at *7.
Prisoners may thus be expected to endure hardships short of the Eighth Amendment threshold of cruel and unusual punishment. Sporadic deprivations and discomforts, even if quite significant, do not rise to the level of a viable constitutional claim:
Jamison, 2015 WL 791444 at *11.
Polidoro's miscellaneous allegations, taken separately or together, do not approach the severity of those that have been found not actionable under settled case law. In addition, he specifies no particular damages. These allegations—an isolated insult, interference with mail, and the like—by their nature did not create substantial injury and would not furnish a basis for substantial damages.
And again, viewed as tort claims, most of Polidoro's complaints would fall within the discretionary function exception to FTCA. They relate to the running of the prison. The genital squeezing incident and ethnic slurs, which could conceivably be intentional torts (carrying them outside the discretionary-function exception), could not have resulted in significant damages.
In short, Polidoro's miscellaneous allegations would be unlikely to survive dispositive motion practice. And even if they did, there is no showing that they would support a significant award of damages.
I will enter a default money judgment in favor of Polidoro, and against Saluti. That judgment will consist of the full amount of the claimed liquidated damages, $12,820.13. (See Section III .A, supra.) For the reasons expressed above, I estimate, based on the "suit-within-a-suit" analysis, that a defendant would not have assigned the remaining claims anything more than nuisance value; as to them, I award the sum of $5,000. (See Sections III.B & C, supra.) Judgment will be entered in a total amount of $17,820.13.
Priovolos v. FBI, 2015 WL 6851547, at *2 n.2 (3d Cir. Nov. 9, 2015).
