United States District Court, D. Connecticut
GERALD J. SILVA, Plaintiff,
D.K. WILLIAMS, Defendant.
RULING ON AMENDED COMPLAINT (ECF No. 9)
MICHAEL P. SHEA, UNITED STATES DISTRICT JUDGE
October 26, 2018, the plaintiff, Gerald J. Silva, a pro
se inmate currently confined at the Federal Correctional
Institution in Danbury (“FCI Danbury”),
Connecticut, brought a civil rights action under Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971), against the warden of FCI Danbury, D.K.
Williams. Compl. (ECF No. 1) at 1-2. The complaint seeks
monetary and injunctive relief against the defendant for
“garnishing inmates' wages” and “price
gouging” items in the prison commissary. Id.
at 5-6. The Court dismissed the complaint without prejudice
because (1) the plaintiff failed to allege facts showing that
he had standing to bring the wage garnishing claim, and (2)
his “price gouging” claim was not cognizable.
Initial Review Order (ECF No. 7) at 3-4. In doing so, the
Court permitted the plaintiff to file an amended complaint
alleging facts showing that he had standing to bring the wage
garnishing claim against the defendant. Id. at 4, 8.
March 18, 2019, the plaintiff filed an amended complaint
alleging that the Bureau of Prisons garnished wages he earned
at FCI Danbury in 2018. Am. Compl. (ECF No. 9) at 1;
Pl.'s Attach. 1 (ECF No. 9-1) at 1-5. Specifically, he
alleges that he was promised a monthly pay of $70.00 but only
received $58.15. Pl.'s Attach. 1 at 5.
plaintiff now adequately pleads standing, even construing his
allegations liberally, the Court would be inclined to dismiss
the plaintiff's amended complaint for the following
reasons. Plaintiff's Fifth Amendment due process claim
for garnishing of his wages against the defendant in his
individual capacity for damages may not be cognizable under
Bivens. See Ziglar v. Abbasi, 137 S.Ct.
1843, 1859-60 (2017) (holding that “[i]f the case is
different in a meaningful way from previous Bivens
cases decided by this Court, ” a special factors
analysis is required to determine whether a Bivens
cause of action can be implied). Plaintiff is also precluded
from recovering injunctive relief against the defendant in
his official capacity under Bivens. See Polanco
v. U.S. Drug Enf't Admin., 158 F.3d 647, 652 (2d
Cir.1998) (stating that “a Bivens action . . .
[is] . . . (by definition) a claim for money damages, whereas
[plaintiff] seeks equitable relief.”); Robinson v.
Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir.
1994) (affirming dismissal of Bivens action against
federal officers in their official capacities). Nonetheless,
plaintiff may be able to obtain such injunctive
relief under a different cause of action, such as 28 U.S.C.
§ 2241, the Administrative Procedure Act, or a writ of
mandamus. See, e.g., Thompson v.
Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (recognizing
the availability of 28 U.S.C. § 2241 as a vehicle for
prisoner's claim for injunctive relief challenging
federal conditions of confinement); Polanco, 158
F.3d at 652 (“[The APA] waives sovereign immunity in an
action seeking equitable relief from wrongful agency action,
except where (i) the action also seeks monetary relief; (ii)
there is an adequate remedy at law; or (iii) the action is
precluded from judicial review by statute or committed by law
to agency discretion.”).
plaintiff, through his amended complaint, also takes issue
with the Court's dismissal of his “price
gouging” claim, contending that the inflation of prices
for necessary items such as hygiene products, deprives him
and other FCI Danbury inmates of basic human needs.
See Am. Compl. at 6-7. However, the plaintiff has
not shown that the defendant is depriving him of food,
clothing, medical care, or reasonable safety simply because
he cannot afford to purchase several hygiene products through
commissary. See Alster v. Goord, 745 F.Supp.2d 317,
335 (S.D.N.Y. 2010) (discussing standard for inhumane
conditions of confinement claim under Eighth Amendment). As
the Court stated in its Initial Review Order, the plaintiff
does not have a constitutional right to access a commissary;
Initial Review Order at 4 (quoting Montalvo v. Lamy,
139 F.Supp.3d 597, 606 (W.D.N.Y. 2015)); and the plaintiff
has not cited any authority that the Court has overlooked or
failed to address.
for the reasons stated in the Initial Review Order, the Court
believes plaintiff's Fifth Amendment due process claim
for garnishing of his wages may have merit, but turns on
complex legal issues that are difficult for plaintiff to
adequately present. Accordingly, the Court will appoint
counsel under Hodge v. Police Officers, 802 F.2d 58,
60-61 (2d Cir. 1986). Counsel shall confer with plaintiff
and, within 45 days from counsel's
appointment, file a second amended complaint that attempts to
rectify the flaws identified in this order.
 The plaintiff has indicated that he
wishes to bring this claim on behalf of himself and all
“[a]ffected inmates” at FCI Danbury and,
therefore, requests that this Court designate this case as a
class action lawsuit. Am. Compl. at 3. He adds, however, that
if this Court decides that this case cannot move forward as a
class action suit, he still wishes to proceed with the
complaint “on an individual basis.” Id.
Courts in this Circuit have held that a pro se
plaintiff cannot adequately represent absent class members
and thus cannot bring a class action. See, e.g., Jaffe v.
Capital One Bank, No. 09 CIV. 4106 (PGG), 2010 WL
691639, at *10-11 (S.D.N.Y. Mar. 1, 2010). In any event, the
plaintiff's effort to demonstrate compliance with Rule 23