Opinion
Civil Action 3:22-CV-00804
06-21-2023
JULIAN MOZ-AGUILAR, Plaintiff, v. UNITED STATES, et al., Defendants.
CONNER, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK CHIEF UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion to dismiss and for summary judgment filed by Defendants the United States, the Federal Bureau of Prisons (“BOP”), the National Gang Unit Agency, Security Investigation Service (“S.I.S.”), and J. Meyers (collectively, “Defendants”). (Doc. 16). Pro se prisoner-Plaintiff Julian Moz-Aguilar (“Moz-Aguilar”) has neither filed a response nor a motion seeking an extension of time to do so. Accordingly, because the time for filing a response has expired, Defendants' motion is ripe for disposition.
For the following reasons, it is respectfully recommended that the motion to dismiss and for summary judgment shall be GRANTED.
I. Background and Procedural History
This pro se civil rights action was initiated on May 23, 2022, pursuant to 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346, by the filing of a complaint in the related action, Bran v. United States, on behalf a purported class of prisoners. (Doc. 1). On June 9, 2022, Moz-Aguilar, a prisoner incarcerated in the United States Penitentiary Lewisburg, Pennsylvania (“USP Lewisburg”), elected to proceed with this civil rights action by filing a motion for leave to proceed in forma pauperis, his Prisoner Trust Fund Account Statement, and a motion to appoint counsel. (Doc. 5, Doc. 6; Doc. 7). On July 15, 2022, the Court denied Moz-Aguilar's motion to appoint counsel. (Doc. 8). On July 18, 2022, the Court granted Moz-Aguilar's motion for leave to proceed in forma pauperis, and directed the Clerk's Office to serve the complaint. (Doc. 9). The Clerk's Office issued summons as to Defendants on the same day. (Doc. 10). Defendants the United States, the BOP, and the Attorney General of the United States filed returns of service indicating service was effectuated. (Doc. 11; Doc. 12; Doc. 13). On September 20, 2022, Defendants filed a motion for an extension of time to respond to the complaint either by November 28, 2022, or 60 days after Defendant J. Meyers receives service, whichever is later. (Doc. 14). On September 23, 2022, the Court granted Defendants' motion. (Doc. 15).
On March 13, 2023, Defendants filed the motion to dismiss and for summary judgment, as well as a statement of facts and brief in support. (Doc. 16; Doc. 17; Doc. 18). Defendants argue that: (1) Moz-Aguilar's Bivens claims for monetary damages against Defendants in their official capacity are barred by sovereign immunity; (2) Moz-Aguilar failed to satisfy the FTCA's jurisdictional tort claim requirement of 28 U.S.C. § 2401(b); (3) Moz-Aguilar's claims for compensatory damages based on mental or emotional injury fail under U.S.C. § 1997e(e) because Moz-Aguilar does not allege a physical injury; (4) Moz-Aguilar's claims for injunctive relief fail because inmates are not entitled to a particular security or custody classification or to be placed in the institution of their choosing; and (5) the Court should dismiss the complaint because inmate Bran lacks standing to bring this lawsuit on Moz-Aguilar's behalf and cannot serve as his layman representative. (Doc. 18). On April 24, 2023, the Court directed Moz-Aguilar to file his brief in opposition to Defendants' motion to dismiss on or before May 8, 2023. (Doc. 19). As noted supra, Moz-Aguilar has not filed an opposition brief or otherwise communicated with the Court.
The fact that Defendants alternatively moved for summary judgment is sufficient to notify Moz-Aguilar that the Court may convert Defendants' motion to one for summary judgment. See Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996) overruled on other grounds by Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 791 (3d Cir. 2000) (holding that opposing parties have “adequate notice” of potential conversion when the moving party frames its motion to dismiss or “in the alternative as [a] motion[ ] for summary judgment”).
A. Statement of Material Facts
The Local Rules provide that in addition to the requirement that a party file a brief in opposition to the moving party's brief in support of its motion, “[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of material facts responding to the numbered paragraphs set forth in the statement [of material facts filed by the moving party] . . . as to which it is contended that there exists a genuine issue to be tried.” See M.D. Pa. L.R. 56.1. The Rule further requires the inclusion of references to the parts of the record that support the statements. See M.D. Pa. L.R. 56.1. Finally, the Rule states that the statement of material facts required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party. See M.D. Pa. L.R. 56.1. Unless otherwise noted, the background herein is derived from Defendants' Rule 56.1 statement of facts. (Doc. 17). Moz-Aguilar has not filed a response to Defendants' statement of material facts in compliance with Local Rule 56.1. Accordingly, the Court deems the facts set forth by Defendants to be undisputed. See Fed.R.Civ.P. 56(e)(2); M.D. Pa. L.R. 56.1; United States v. Alberto, No. 3:18-CV-1014, 2020 WL 730316, at *2 (M.D. Pa. Feb. 13, 2020) (concluding that the “[f]ailure to file this [responsive statement of material facts] results in admission of the moving party's statement of facts”).
Plaintiff Moz-Aguilar is a federal inmate who arrived at USP Lewisburg on March 27, 2022, having been transferred from the United States Penitentiary Atwater (“USP Atwater”). (Doc. 17, ¶ 1; Doc. 17-1, ¶¶ 3-4, at 3-6). Moz-Aguilar is serving a life sentence imposed by the United States District Court for New Jersey for racketeering and firearms offenses. (Doc. 17, ¶ 1; Doc. 17-1, ¶¶ 3-4, at 3-6). The BOP maintains a computerized database of administrative claims filed pursuant to the FTCA called Content Manager. (Doc. 17, ¶ 2; Doc. 17-1, ¶ 5). Content Manager catalogs all administrative claims filed with the BOP since 2007. (Doc. 17, ¶ 2; Doc. 17-1, ¶ 5). Content Manager indicates that Moz-Aguilar has filed one administrative tort claim, which the BOP received on March 12, 2021, for events occurring at USP Atwater. (Doc. 17, ¶ 3; Doc. 17-1, ¶ 5). Moz-Aguilar has not filed any administrative tort claims concerning the issues he raises in the instant complaint. (Doc. 17, ¶ 3; Doc. 17-1, ¶ 5).
II. LEGAL STANDARDS
A. MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(1)
The United States moves for dismissal of Moz-Aguilar's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the Court lacks subject-matter jurisdiction over Moz-Aguilar's FTCA claims. (Doc. 18, at 6). The plaintiff bears the burden of demonstrating that subject-matter jurisdiction exists. SeeLightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009). When ruling on a Rule 12(b)(1) motion, the Court “must accept as true the allegations contained in the plaintiff's complaint, except to the extent federal jurisdiction is dependent on certain facts.” See Fed. Realty Inv. Trust v. Juniper Props. Grp., No. 99-3389, 2000 WL 45996, at *3 (E.D. Pa. Jan. 21, 2000) (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir. 1987)).
B. MOTION FOR SUMMARY JUDGMENT
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 u.s. 242, 248 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 u.s. at 248. in deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994). However, a party opposing a summary judgment motion must comply with Local Rule 56.1, which specifically directs the oppositional party to submit a “statement of the material facts, responding to the numbered paragraphs set forth in the statement required [to be filed by the movant], as to which it is contended that there exists a genuine issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted.” See M.D. Pa. L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se litigant. These rules apply with equal force to all parties. Morrison v. United States, No. 1:20-CV-01571, 2021 WL 4192086, at *3 (M.D. Pa. Sept. 15, 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot flout procedural rules-they must abide by the same rules that apply to all other litigants”)).
A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories, or the like to demonstrate specific material facts which give rise to a genuine issue. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. SeeLujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware State Univ., 626 Fed.Appx. 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); Nat'l Labor Rel. Bd.v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff's] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant's burden of proof on summary judgment.”).
C. Bivens Action
A Bivens civil rights action asserted under 28 U.S.C. § 1331 is evaluated using the same standards applicable to a 42 U.S.C. § 1983 civil rights action. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp. 1486, 1492 (M.D. Pa. 1992). To state a claim under Bivens, a plaintiff must allege that he was deprived of a federal right by a person acting under color of federal law. See Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa. 1992).
III. DISCUSSION
Defendants assert that the Court should grant its motion to dismiss and for summary judgment because (1) any official capacity Bivens claims for monetary damages against are barred by the doctrine of sovereign immunity; (2) the FLMA claims fail because Moz-Aguilar failed to satisfy the FTCA's jurisdictional tort claim requirement of 28 U.S.C. § 2401(b); (3) claims for compensatory damages based on a mental or emotional injury fail under 42 U.S.C. § 1997e(e) because Moz-Aguilar does not allege physical injury; (4) claims for injunctive relief fail because inmates are not entitled to a particular security or custody classification or to be placed in the institution of their choosing; and (5) the Court should dismiss the complaint because inmate Bran lacks standing to bring this lawsuit on Moz-Aguilar's behalf and cannot serve as his layman representative. (Doc. 18, at 4-10).
A. SOVEREIGN IMMUNITY
Moz-Aguilar states that he asserting Bivens-style constitutional claims against all Defendants in their official capacities for monetary damages. (Doc. 1, at 8, ¶ 5). The doctrine of sovereign immunity, however, bars suits against the United States unless the Government has waived that immunity. See FDIC v. Meyer, 510 U.S. 471, 483 (1994). Sovereign immunity extends to individual officers acting in their official capacities, absent an explicit waiver. See Treasurer of N.J. v. U.S. Dep't of Treasury, 684 F.3d 382, 395 (3d Cir. 2012). “Bivens, however, does not waive sovereign immunity with respect to claims brought against federal employees sued in their official capacities.” Gomez v. Cullen, No. 1:20-CV-01637, 2021 WL 2312779, at *8 (M.D. Pa. June 7, 2021), aff'd, No. 21-2776, 2022 WL 1183713 (3d Cir. Apr. 21, 2022) (citation omitted). Specifically, the Third Circuit has concluded that “[t]he United States, FBOP, and the individual FBOP employees in their official capacity . . . are barred from suit by the doctrine of sovereign immunity.” Perez-Barron v. United States, 480 Fed.Appx. 688, 691 (3d Cir. 2012) (citing Meyer, 510 U.S. at 486; Chinchello v. Fenton, 805 F.2d 126, 130 n.4 (3d Cir. 1986)). Thus, Moz-Aguilar's official capacity claims against Defendants are essentially claims against the United States that are subject to dismissal because of sovereign immunity. See Brooks v. Bledsoe, 682 Fed.Appx. 164, 169 (3d Cir. 2017).
Accordingly, Moz-Aguilar's official-capacity Bivens claims are dismissed as Defendants are entitled to sovereign immunity.
B. FTCA CLAIMS
Moving to dismiss the complaint, Defendants assert that the United States should be dismissed for lack of jurisdiction over Moz-Aguilar's FTCA claims because Moz-Aguilar failed to satisfy the requirement set forth in 28 U.S.C. § 2401(b), which provides that a claimant must: (1) file an administrative claim within two years of the tort; and (2) the FTCA lawsuit must be initiated within six months of the federal agency's denial of the administrative claim. (Doc. 18, at 6) (citing Doe v. United States, 842 Fed.Appx. 719, 721 (3d Cir. 2021)).
An FTCA action may not be instituted against the United States “unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.” 28 U.S.C. § 2675(a). The claimant “must file an administrative claim within two years of the tort; and second, the FTCA lawsuit must be initiated within six months of the federal agency's denial of the administrative claim.” Doe, 842 Fed.Appx. at 721 (citing 28 U.S.C. § 2401(b)). “Both conditions must be met for the FTCA action to be viable.” Doe, 842 Fed.Appx. at 721; see Sconiers v. United States, 896 F.3d 595, 598 (3d Cir. 2018) (noting that the FTCA constitutes a waiver of sovereign immunity, and the statutory requirements are strictly construed).
In support of the motion to dismiss, Defendants provided evidence showing that Moz-Aguilar has never submitted an administrative tort claim to the BOP for any claims alleged in the instant complaint, which pertain to USP Lewisburg. (Doc. 17, ¶¶ 2-4; Doc. 17-1, ¶ 5). Moz-Aguilar has not responded to Defendants' motion. Nothing in the record before the Court suggests that Moz-Aguilar ever submitted an administrative tort claim to a federal agency regarding his confinement in the SHU or transfer to USP Lewisburg. Moz-Aguilar, therefore, has not refuted the defense that he failed to properly exhaust his FTCA claims prior to filing suit in this Court. Based on Defendants' statements of material facts and the evidentiary materials and the lack of opposing evidentiary materials, the Court concludes that there are no triable issues of material fact regarding the issue of exhaustion of administrative remedies and that Defendants are entitled to judgment as a matter of law.
Accordingly, because the FTCA requires strict compliance with the statutory requirements prior to the initiation of an action in federal court, and this Court cannot excuse compliance with those requirements, it is recommended that Defendants' motion be granted on the basis that summary judgment is appropriate because Moz-Aguilar failed to file an administrative claim prior to initiating this action.
C. Compensatory Damages
Defendants argue Moz-Aguilar's claims for compensatory damages for mental or emotional injuries are barred by the Prisoner Litigation Reform Act (“PLRA”), 42 U.s.C. § 1997e(e), as he alleges no physical injury. (Doc. 18, at 6-7). Because Moz-Aguilar is incarcerated, the PLRA applies to his claims under the FTCA. See Merchenthaler v. United States, No. 4:19-CV-00471, 2020 WL 1244471, at *4 (M.D. Pa. Mar. 16, 2020). The PLRA provides, in pertinent part: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.” 42 U.S.C. § 1997e(e). The Third Circuit has analyzed the physical injury requirement in § 1997e(e) to require more than a de minimis physical injury. Mitchell v. Horn, 318 F.3d 523, 535 (3d Cir. 2003). In Mitchell, the Third Circuit stated:
We believe that reading 1997e(e) to allow a plaintiff to allege any physical injury, no matter how minor, would produce an unintended (indeed absurd) result. Were we not to read 1997e(e) as requiring more than a de minimis physical injury, we would turn its physical injury prerequisite into a mere pleading requirement, thereby rendering the requirement meaningless as a practical matter .... We therefore follow the approach of the Fifth, Ninth, and Eleventh Circuits in requiring a less-than-significant-but-more-than-de-minimis physical injury as a predicate to allegations of emotional injury.Mitchell, 318 F.3d at 535-36.
In this instance, Moz-Aguilar does not allege that Defendants, through their alleged unconstitutional conduct, caused him any kind of more-than-de-minimis physical injury. To the extent that Moz-Aguilar alleges that he experienced “pain, suffering, physical injury and emotional distress” based upon prison conditions at USP Lewisburg, Moz-Aguilar does not allege that he was physically injured in any way as a result of the alleged conduct, apart from a claim of heat rash and dry, cracked feet. (Doc. 1).
Accordingly, it is recommended that Defendants' motion to dismiss be granted and Moz-Aguilar's request for compensatory damages be denied.
D. Injunctive Relief
Defendants move to dismiss Moz-Aguilar's claim for injunctive relief, arguing that Moz-Aguilar has no right to any particular security classification or to be placed in any particular prison. (Doc. 18, at 7-8).
An inmate does not have a liberty interest in assignment to a particular institution or security classification, so long as the conditions and degree of the inmate's confinement fall within the sentence imposed and do not otherwise violate the Constitution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Montayne v. Haymes, 427 U.S. 236, 243 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976) (noting classification and eligibility for rehabilitative programs in federal prison system are matters delegated by Congress to “full discretion” of federal prison officials and thus implicate “no legitimate statutory or constitutional entitlement sufficient to invoke due process”); see also Sandin v. Connor, 515 U.S. 472, 484-86 (1995) (holding that liberty interest is implicated only where action creates “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” or creates “major disruption in his environment”); Marti v.Nash, 227 Fed.Appx. 148, 150 (3d Cir. 2007) (inmate has no due process right to any particular security classification); Day v. Nash, 191 Fed.Appx. 137, 139-40 (3d Cir. 2006) (upholding application of public safety factor to inmate's custody classification which prevented inmate's placement in a minimum security camp). Furthermore, the placement of prisoners within the federal prison system is among the “wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts.” Meachum, 427 U.S. at 225.
Moz-Aguilar does not have a constitutional right to any particular security classification or right to the housing facility of his choice. See Wilkinson v. Austin, 125 S.Ct. 2384, 2393 (2005) (stating that the Constitution does not give rise to a liberty interest in avoiding transfers to more adverse conditions of confinement); Marti, 227 Fed.Appx. at 150 (an inmate cannot challenge a “Greatest Severity” PSF assignment because “no due process right[ ] to any particular security classification” exists) (citing Moody, 429 U.S. at 88 n.9). To the extent that Moz-Aguilar claims that the alleged error in his transfer to USP Lewisburg violated his constitutional rights by subjecting him to harsher conditions of confinement, he has failed to establish a violation of his constitutional rights. See Mundo-Violante v. Warden Loretto FCI, 654 Fed.Appx. 49, 51 (3d Cir. 2016) (“neither BOP policy nor the Due Process Clause gives a prisoner a liberty interest in a particular housing location or custody level while under the jurisdiction of correctional authorities”) (citations omitted). Moz-Aguilar's transfer was within the BOP's broad discretion with respect to internal operating decisions that served to preserve the order, security, and discipline within the prison facility. Therefore, Moz-Aguilar's request for injunctive relief in the form of a transfer to a general-population prison fails as it appears to be an attempt to usurp the BOP's broad discretion to manage its inmate population.
Accordingly, it is recommended that Defendants' motion to dismiss be granted and Moz-Aguilar's request for injunctive relief be denied.
E. CLASS ACTION
Lastly, Defendants move to dismiss the complaint because inmate Jose Bran lacks standing to bring claims on Moz-Aguilar's behalf or to serve as his layman representative. (Doc. 18, at 9-10). In relevant part, the complaint identifies Moz-Aguilar as “Ms-13 inmates/Bran, Jose #80679-083.” (Doc. 1, at 1). The complaint also makes several averments specific to inmate Bran, not Moz-Aguilar, and discusses Bran's attempts to exhaust administrative remedies and FTCA tort claim procedures, alleged fraudulent COVID-19 tests upon his arrival at UsP Lewisburg, and tampering with his mail, a failure to treat Bran for high cholesterol and for hot temperatures at UsP Lewisburg, which caused Bran to experience heat rashes and dry, cracked feet. (Doc. 1, at 5, 8). Moving to dismiss the complaint, Defendants argue that Bran lacks standing to bring a lawsuit on Moz-Aguilar's behalf or to serve as his layman attorney. (Doc. 18, at 9).
“[T]he prudential rules of standing are judicially created doctrines based on policy judgments about the proper role of the courts.” Williams v. Clark, No. CV 3:19-1083, 2021 WL 1430443, at *3 (M.D. Pa. Apr. 15, 2021). “One such rule is that a litigant ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.'” Williams, 2021 WL 1430443, at *3 (citing Warth v. Seldin, 422 U.S. 490, 499 (1975)). In view of this rule, “courts have held consistently that an inmate does not have standing to sue on behalf of his fellow prisoners.” Williams, 2021 WL 1430443, at *3 (citing Weaver v. Wilcox, 650 F.2d 22, 27 (3d Cir. 1981) (collecting cases)).
To the extent Bran is attempting to act as the representative of other MS-13 inmates at USP Lewisburg as a class, “[p]ro se litigants are generally not appropriate as class representatives.” See Hagan v. Rogers, 570 F.3d 146, 158-59 (3d Cir. 2009) (citation omitted). The Third Circuit has explained that “it is plain error to permit [an] imprisoned litigant who is unassisted by counsel to represent his fellow inmates in a class action.” Lewis v. City of Trenton Police Dep't, 175 Fed.Appx. 552, 554 (3d Cir. 2006) (quoting Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975). Even though Moz-Aguilar may represent himself as a pro se litigant in this action, Bran may not pursue Section 1983 claims on Moz-Aguilar's behalf. Aside from Bran's assertions, Moz-Aguilar pleads no facts showing he himself has been injured as a result of the alleged conduct.
Accordingly, it is recommended that Defendants' motion to dismiss be granted and the complaint be dismissed without prejudice for lack of standing.
IV. RECOMMENDATION
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss and for summary judgment be GRANTED. (Doc. 16). In addition, it is recommended that the Clerk of Court be directed to Close this action.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 21, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.