2004 | Cited 0 times | D. Massachusetts | September 14, 2004


This matter was referred to the Chief Magistrate Judge for areport and recommendation on the defendants' motion to dismissor, in the alternative, for summary judgment. After review, I amsatisfied that the Chief Magistrate Judge correctly resolved theissues addressed and I therefore adopt her report andrecommendation to the extent it allowed the defendants' motion inpart. After careful consideration of the parties' briefssubmitted in response to the report and recommendation, I alsoconclude that judgment ought to be granted for the defendants onthe plaintiff's remaining claims, as identified by the ChiefMagistrate Judge, namely: (i) the Bivens1 claims incauses of action two and three, (ii) the Federal Tort Claims Act("FTCA")2 claims in causes of action one, two, three andfour, and (iii) claims for violation of 28 C.F.R. §§ 540.103 and545.10. A. The Bivens Claims

The only constitutional rights even remotely implicated in theplaintiff's second and third causes of action appear to be theright to counsel and the right of access to the courts, neitherof which provides any basis for a claim in the circumstancespleaded. The right to counsel under the Sixth Amendment islimited to the defense of criminal prosecutions and is notapplicable to the plaintiff's pursuit of civil actions fordamages. The constitutional right of access to the courts is alsonarrow in scope and does not give the plaintiff a constitutionalright to the assistance of counsel in civil cases. Boivin v.Black, 225 F.3d 36, 42 (1st Cir. 2000). Rather, it is limited toappeals from criminal convictions, petitions for habeas corpus,and civil rights actions. Lewis v. Casey, 518 U.S. 343, 354(1996). Furthermore, the right of access to courts "does notguarantee inmates the wherewithal to transform themselves intolitigating engines capable of filing everything from shareholderderivative actions to slip-and-fall claims." Id. at 355. Nordoes it enable prisoners to "litigate with maximum effectivenessonce in court." Boivin, 225 F.3d at 42.

Hoffenberg does not here challenge either his sentence or thephysical conditions of his confinement. Instead he claims thatlimiting the extent of his telephone calls within any given monthprevents him from retaining and using his attorney's services tohelp him collect, via various lawsuits, money he could use to paythe restitution imposed by his criminal judgment. Assumingarguendo that the limitation on Hoffenberg's telephonic accessto counsel could be a considered a "condition of confinement," itis nonetheless far too insubstantial a limitation to amount to aconstitutional deprivation remediable under Bivens. At the veryleast, such a proposition has not been "clearly established," andthe defendants would be entitled to qualified immunity as to sucha claim. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). B. The FTCA Claims

Giving Hoffenberg the full benefit of the doubt on the issue ofexhaustion, he still does not state a cause of action under theFTCA because the asserted prison regulations and policystatements do not create a legal right enforceable in an actionfor damages and Hoffenberg provides no other substantive, viablesource for his FTCA claims.

The regulations at issue here, 28 C.F.R. §§ 540.103, 543.12,and 545.10, relate to the institutional management of the Bureauof Prisons and regulate the conduct of its employees. On theirface, they do not provide for a private right of action and thereis no indication that Congress intended them to create an impliedprivate right of action. See Bonano v. East Caribbean AirlineCorp., 365 F.3d 81, 84 (1st Cir. 2004) ("[A] regulation, on itsown, cannot create a private right of action."). See also,18 U.S.C. §§ 4001, 4042. Hoffenberg's putative constitutional tortclaims are also not actionable under the FTCA, and he has failedto plead and prove a source of substantive liability under statetort law. F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994).

C. The Claims for Violations of 28 C.F.R. §§ 540.103 and545.10

As noted above, Hoffenberg has no cause of action forviolations of the asserted Bureau of Prison regulations. To theextent such claims were allowed by the Chief Magistrate Judge toremain in the action, they are now dismissed.

D. Conclusion

For the foregoing reasons, I adopt the report andrecommendation of the Chief Magistrate Judge to the extent itrecommended dismissal of claims, but not otherwise. I grantjudgment for the defendants dismissing all of the plaintiff'sclaims against them.


1. Bivens v. Six Unknown Named Agents of the Federal Bureauof Narcotics, 403 U.S. 388 (1971).

2. 28 U.S.C. §§ 1346(b) and 2671-2680.

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