                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-2008

Vernon Douglas v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1967




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Recommended Citation
"Vernon Douglas v. USA" (2008). 2008 Decisions. Paper 815.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/815


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ALD-239                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 08-1967
                                   ___________

                              VERNON DOUGLAS,
                               a/k/a Leverne Douglas,
                               a/k/a Spider
                                        v.

                        UNITED STATES OF AMERICA

                             VERNON DOUGLAS,
                                          Appellant
                    ____________________________________

                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                             (D.C. Civil No. 08-00140)
                   District Judge: Honorable Sylvia H. Rambo
                   ____________________________________

          Submitted for Possible Summary Action Pursuant to Third Circuit
                             LAR 27.4 and I.O.P. 10.6
                                   July 3, 2008

          Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                           (Opinion filed: July 22, 2008)
                                    _________

                                     OPINION
                                    _________

PER CURIAM



                                         1
       Vernon Douglas, a federal prisoner proceeding pro se, appeals from an order of the

United States District Court for the Middle District of Pennsylvania dismissing his Bivens

complaint under 28 U.S.C. § 1915(e)(2)(B). We will summarily vacate in part and

summarily affirm in part.

       Douglas sued the Bureau of Prisons (“BOP”) and individual officers for violating

his civil rights. Douglas alleges that he was convicted in federal court for an unspecified

offense, and that the sentencing judge imposed a sentence of imprisonment, but no fine.

He alleges that J. Kaminski, a Correctional Treatment Specialist at USP-Allenwood,

coerced him into signing an Inmate Financial Responsibility Plan (“IFRP”) contract, even

though Douglas did not owe any “fine.” Douglas alleges that Kaminski unlawfully

deducted $14 from his prison account six days before his payment was due under the

IFRP. Douglas further alleges that Acting Warden William Ey, Warden R. Martinez, D.

Scott Dodrill, of the BOP Northeast Regional Office, and H. Watts, Administrator at the

Central Office, denied or failed to respond to his grievances, and failed to rectify the

premature deduction of funds from his account. Douglas also alleges that this Court

vacated his sentence on June 14, 2007, and the docket of the sentencing court indicates

that Douglas has not yet been resentenced.

       The Magistrate Judge screened Douglas’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and recommended dismissal without leave to amend. Douglas sought an

extension of time to file objections to the Magistrate Judge’s report and recommendation,



                                              2
as well as leave to file an amended complaint, but the District Court adopted the report

and recommendation and denied those motions in its order of dismissal. Douglas moved

for reconsideration, again asking to amend his complaint. The District Court denied

Douglas the opportunity to amend on the ground that amendment would be futile.1

       We do not believe that amendment would be futile. Contrary to the Magistrate

Judge’s report, Douglas’s sentence has been vacated, and he has not been resentenced.2

As such, Douglas’s current sentence does not include a fine or special assessment, and

Douglas asserts that certain BOP defendants failed to refund his money after his sentence

was vacated. The Magistrate Judge also noted that Douglas did not name the correct

parties, and that a claim under the Federal Tort Claims Act might be appropriate. Under

these circumstances, the District Court should have allowed Douglas to amend his

complaint. Therefore, we will summarily vacate the District Court’s order, except to the

extent it dismissed Douglas’s Bivens claim against the BOP, as Douglas may not bring a

Bivens action against the agency. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). We will

affirm the District Court’s dismissal of his Bivens claim against the BOP.



   1
    Under Rule 15(a), Fed. R. Civ. P., a plaintiff may amend his complaint “once as a
matter of course at any time before a responsive pleading has been served.” Instead of
simply filing an amended complaint, Douglas filed a motion for leave to amend his
complaint. Under these circumstances, the District Court had discretion to deny leave to
amend if such amendment would be futile. Centifanti v. Nix, 865 F.2d 1422, 1431 (3d
Cir. 1989).
   2
  According to the docket, Douglas is scheduled to be resentenced on July 30, 2008.
USA v. Douglas, E.D. Pa. Crim. No. 05-00038-RBS-1.

                                             3
