Opinion
C. A. 1:20-3907-BHH-SVH
07-28-2021
Le'Andre Earl, #41262-424, Plaintiff, v. Stephan Hoey, DO, Doctor, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Le'Andre Earl (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action alleging a violation of his constitutional rights against Doctor Stephan Hoey (“defendant”) while Plaintiff was incarcerated at the Federal Correctional Institution Williamsburg located in Salters, South Carolina (“FCI-Williamsburg”), a facility of the Bureau of Prisons (“BOP”). Plaintiff's constitutional claim is construed as brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
This case is before the court on Defendant's motion to dismiss, or in the alternative, motion for summary judgment [ECF No. 22]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the applicable procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 23, see also ECF No. 28]. The motion having been fully briefed [ECF Nos. 41], it is ripe for disposition.
Because the court has considered matters outside of the pleadings, the undersigned considers the motion as one for summary judgment. Fed.R.Civ.P. 12(d).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendant's motion.
I. Factual Background
A. Plaintiff's Medical Care at FCI-Talladega
Prior to being assigned to FCI-Williamsburg, Plaintiff was housed at FCI-Talladega in Alabama from October 30, 2017, until November 26, 2018. [ECF No. 22-2]. While there, Plaintiff had an MRI in March 2018 and a neurosurgical consultation on his lower back, which revealed a disc protrusion with bulge on his lumbar spine. [ECF No. 22-3 at 109]. Plaintiff had a lumbar microdiscectomy on July 13, 2018, performed by a neurosurgeon. Id. at 56-59, see also Id. at 222-23. He was treated at a hospital and released with post-operative instructions to get up and walk with a rolling walker following the surgery. Id. at 52.
On July 16, 2018, Plaintiff was seen in health services for a follow-up appointment to evaluate his progress after his recent surgery. Id. At 40-52. During the evaluation, Plaintiff was able to stand up without assistance, but he refused to take any steps despite the neurosurgeon's recommendation that he use a rolling walker to assist with the healing process. Id. Medical staff stated that Plaintiff “refuses to walk and insist[s] on using [wheelchair].” Id. Medical staff also noted that Plaintiff let go of the walker and dropped to the floor when encouraged to walk by medical staff. Id. at 52.
On July 24, 2018, at Plaintiff's ten-day post-operative medical evaluation, the neurosurgeon indicated there were no problems following his microdiscectomy surgery and no other signs of any other pathology in his lumbar spine that could contribute to his complaints of lower back pain. Id. at 222-223. The neurosurgeon notified Plaintiff that he needed to start walking 30 minutes every day to assist with the healing process and become more independent. Id. at 223.
B. Plaintiff's Medical Care at FCI-Williamsburg
Plaintiff was transferred to FCI-Williamsburg on November 30, 2018. [ECF No. 22-2]. Defendant evaluated Plaintiff during his Chronic Care Clinic (“CCC”) physician intake evaluation on December 7, 2018. [ECF No. 22-3 at 1-5]. Plaintiff reported a history of seizures, lower back pain, neurology, and orthopedic/rheumatology issues. Id. Plaintiff stated he was completely unable to bear weight on his right leg following what he described as a “failed microdiscectomy” on July 13, 2018. Id. During the intake evaluation, Defendant observed that Plaintiff appeared to have weakness and muscular atrophy in his right leg and referred him for a neurology consultation. Id. Plaintiff's medical records revealed that a postoperative MRI on his lower back dated July 24, 2018, was within normal limits. Id.
Defendant ordered a new neurology consultation based on Plaintiff's reports of right leg pain and renewed his medication orders for low back pain and a seizure disorder. Id. Plaintiff was instructed to follow up at sick call, as needed, and was counseled on the importance of compliance with his treatment. Id. Defendant also noted that Plaintiff was previously referred for physical therapy but “referral . . .was denied . . . due to lack of ‘cooperation' with therapist.” Id.
During the intake evaluation, Defendant noted that Plaintiff also demanded an extra mattress and a back brace and refused to give up his wheelchair for mobility. Id. Defendant noted that these requests would need to be discussed with the Assistant Health Services Administrator D. Brown (“Brown”). Id.
On January 10, 2019, Plaintiff met with Brown to address his requests for a wheelchair, physical therapy, an extra mattress, and a back brace. [ECF No. 22-4 at 112-113]. Plaintiff was issued a new wheelchair at FCI-Williamsburg after his initial intake screenings. [ECF No. 22-4 at 112-113, see also ECF No. 41-1 at 2-3]. Plaintiff was also referred for telehealth physical therapy by Brown, as physical therapy was not available onsite at FCI-Williamsburg. [See ECF No. 22-4 at 89, 111-113]. However, Plaintiff indicated he did not want to participate in telehealth physical therapy and wanted in-person physical therapy. Id. at 111. Defendant entered an administrative order on February 21, 2019, updating Plaintiff's medication orders and noting Plaintiff was pending a neurology appointment to evaluate his complaints of back and right leg pain. Id. at 95-97.
On March 5, 2019, an electrophysiology study was completed on Plaintiff's right lower extremity showing “borderline slow motor conductions and normal late responses.” [ECF No. 41-1 at 13]. The impression is as follows: “Chronic neuropathic changes in the right peroneal and posterior tibial nerves. This may be demyelinating and clinical correlation is necessary. No. evidence of radiculopathy or plexopathy.” Id.
On April 5, 2019, Plaintiff met with Lt. Commander C. Davis, Nurse Practitioner (“Davis”), for complaints of pain in his lower back going down his right leg. [ECF No. 22-4 at 71-74]. Davis noted that Plaintiff saw a neurosurgeon in July 2018 who reported there was “nothing wrong with him, ” and Plaintiff had been advised by the specialist to walk using an assistive device following his surgery. Id. During this visit, Plaintiff stated he refused a physical therapy consult, stating “this is a situation being addressed and that he is going to refuse unless sent daily to PT.” Id. On June 28, 2019, Defendant entered an administrative note requesting physical therapy be approved offsite for Plaintiff based on his refusal to participate in telehealth physical therapy. Id. at 54.
Defendant referred Plaintiff to see a new neurosurgeon, Doctor Davidson (“Davidson”) in Florence, South Carolina, on July 12, 2019. Id. at 52-53, 191-193. Davidson found no evidence of any recurrent disc herniation or injury, only some degenerative disc space changes. Id. He noted there was no anatomical explanation for Plaintiff's complaints of weakness in all muscle groups in his right lower extremity. Id. He further stated that there was no need for neurosurgical/spinal surgical intervention or a follow-up appointment with Plaintiff to address any medical condition. Id.
Next, Defendant referred Plaintiff for a physical therapy evaluation at the local regional hospital on August 23, 2019. Id. at 47-48, 183-188. The physical therapist found inconsistencies in Plaintiff's reporting of pain and his ability to ambulate, but assessed that, because of his blood pressure and profuse perspiring after walking 100 feet, he “believed[d] he has pain as described in subjective assessment.” Id. Therapist recommended physical therapy two times a week for six weeks. Id. Defendant reviewed the recommendations from the physical therapist. Id.
Plaintiff has submitted evidence that he complained his medical treatment was being interfered with because he was not allowed physical therapy as ordered by the physical therapist. [ECF No. 41-1 at 1, 22-24]. He was informed on October 1, 2019, that even if it had been recommended that he received physical therapy a certain number of times for a certain number of weeks, the BOP is “not obligated to follow the recommendations” and that “[t]he plan is to meet with you to discuss the PT evaluation, ” apparently referencing the October 12, 2019 meeting with Defendant. See Id.
Defendant represents that as Clinical Director, he cosigned and reviewed medical records created by other medical staff during encounters with Plaintiff. [See ECF No. 22 at 7, ECF No. 22-7 at 1-140].
On October 11 or 12, 2019, Defendant met with Plaintiff “to review objective findings of studies & consults, ” including a neurosurgical consultation, EMG/NCT, an MRI of his spine, and physical therapy evaluation and recommendations, “obtained to assist [Plaintiff] in transitioning from wheelchair to rolling walker with seat.” Id. at 41-45. Defendant noted all the evidence from Plaintiff's medical findings strongly suggested he did not have any medical pathology that would preclude him from ambulating, and he did not require the assistance of a wheelchair. Id. Defendant offered Plaintiff assistance in transitioning from a wheelchair to a rolling walker with a seat, as well as physical therapy, to help Plaintiff become more independent and mobile. Id. Defendant also provided Plaintiff with medical duty status restrictions noting that he must be housed in a cell on the first floor with a lower bunk bed assignment to assist him in navigating his housing unit. Id. at 145-49. Further, Defendant noted Plaintiff's medical records and specialist evaluations indicated committing Plaintiff to a wheelchair would be “medically and ethically inappropriate.” Id. at 41-45.
Plaintiff responded to Defendant's medical recommendations by refusing to walk or ambulate on his own and stated that he would only use the wheelchair. Id. Defendant advised Plaintiff a wheelchair would no longer be available to him and any attempt to circumvent or sabotage his clinical progress would be considered malingering behavior. Id. Defendant noted in the medical records that Plaintiff was very argumentative and confrontational during this medical appointment and he was not cooperative with the medical care recommendations. Id.
It appears following this meeting, Plaintiff was told to return to his housing unit without his wheelchair. [See ECF No. 41-1 at 4-5]. Plaintiff refused and was placed in the Special Housing Unit (“SHU”). See id. Plaintiff attests he was unable to return to his housing unit on his own [ECF No. 41 at 1], and while in SHU, he “was unable to move on his own to the food slot to retrieve his food, medication, water, or use the restroom without any medical assistive devices, simply confined to his mattress.” Id. at 1-2.
Plaintiff has submitted evidence of a memo written by Davis in which she reports Plaintiff asked to be placed in “SHU because he was not going to walk.” [ECF No. 41-1 at 5]. Plaintiff denies he requested to be placed in SHU. See id.
Plaintiff attests that while he was still in SHU, around October 15, 2019, “the Plaintiff was placed on hunger strike by the defendant” and that Defendant, due to the hunger strike, discontinued his blood pressure and pain medications, but not his seizure medication. [ECF No. 41 at 2, ECF No. 41-1 at 6, 8].
Defendant, on the other hand, has put forth evidence that on October 15, 2019, Plaintiff went on a hunger strike and refused to eat any meals in protest of staff taking away his wheelchair. [ECF No. 22-4 at 31-40]. The records indicate that standard practice was during a hunger strike “medication may require [discontinue] due to risks posed to fasting individuals”: therefore, Plaintiff's blood pressure and pain medications were suspended, but his seizure medication would be continued “for now.” Id. at 34. Plaintiff was placed in SHU to monitor his health while he was on the hunger strike. Id. at 31-38. On October 15, 2019, “psychology services were notified that [Plaintiff] had declared a hunger strike, ” and he “was assessed by psychology services individually in SHU.” [ECF No. 22-5 at 18].
During the evaluation, the psychologist observed Plaintiff “voiced complaints that medical staff had taken his wheelchair and he had not received a double mattress since his arrival in SHU.” Id. He denied any mental health concerns. Id.
On October 18, 2019, Defendant noted as follows: “Informed by Nursing that pt had eaten, and had been released to Compound. Apparently, wheelchair was provided, but remains not medically indicated, ” indicating that other staff at FCI-Williamsburg returned Plaintiff's wheelchair, without seeking Defendant's medical opinion or agreement. [ECF No. 22-4 at 27-30, see also Id. at 21-23].
On November 8, 2019, Plaintiff was referred to psychology services by health services staff after he reportedly “refused to walk.” [ECF No. 22-5 at 16-17]. A BOP psychologist evaluated Plaintiff to assess his mental status. Id. The psychologist noted Plaintiff's prior risk assessments were “preceded by perceived mistreatment or threats by staff, usually, denial of delayed fulfillments of some desired outcome (e.g., a cell change, bed roll items).” Id. Plaintiff demonstrated and reported no signs of distress or evidence of a mood or psychotic disorder. Plaintiff had previously been diagnosed with a “Personality Disorder, NOS [not otherwise specified], and Anxiety State.” Id. The psychologist determined:
Inmate EARL did not report current mental health symptoms or concerns, nor did he express a desire for psychology services. Due to a lack of significant mental health symptoms, functional impairment, or ongoing distress, CARE1- MH [mental health status] remains appropriate. No. follow-up is deemed necessary at this time. The inmate will be seen by psychology services upon request.Id.
On November 15, 2019, Defendant met with Plaintiff at CCC to evaluate Plaintiff's neurology and orthopedic chronic care issues. [ECF No. 22-4 at 8-16]. During the evaluation, Defendant observed Plaintiff's demeanor was flat and there was no evidence he was experiencing pain. Id. Defendant informed Plaintiff again that a review of all of Plaintiff's medical tests concluded he did not have a neurological deficit significant enough to require a wheelchair and his actions were consistent with malingering for secondary gain. Id. Defendant encouraged Plaintiff to get out of his wheelchair to be weighed during the medical assessment. Id. Plaintiff refused to get out of the wheelchair or cooperate with Defendant's medical exam. Id. He left health services in a wheelchair under his own power and was in no visible distress. Id. Plaintiff was advised to follow up at sick call as needed. Id.
Defendant has not had any additional encounters with Plaintiff since November 15, 2019, as Plaintiff is now being treated by another medical officer at FCI-Williamsburg, Dr. Dominici, as his Primary Care Physician. [See ECF No. 22-6 at 1-91].
Plaintiff argues that because Defendant review all records, he is aware of Plaintiff's ongoing medical difficulties, such as limited movement of toes, and that his ongoing medical issues are a result of Defendant's delay in treating him. [ECF No. 41-1 at 11, 20-21, 25].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Exhaustion of Administrative Remedies
Defendant argues Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original)). Thus, “it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendant has the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
The BOP has a three-tiered formal administrative grievance process, although there is also an informal resolution process. See 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. 28 C.F.R. § 542.14. The matter will be investigated, and a written response provided to the inmate. See Id. If dissatisfied with the response, the inmate may appeal to the regional director within 20 days of the date of the warden's response. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the general counsel within 30 days of the regional director's response. Id. Appeal to the general counsel is the final level of agency review. 28 C.F.R. § 542.15(a).
The applicable regulations also provide as follows:
Once filed, response shall be made by the Warden or CCM within 20 calendar days; by the Regional Director within 30 calendar days; and by the General Counsel within 40 calendar days. If the Request is determined to be of an emergency nature which threatens the inmate's immediate health or welfare, the Warden shall respond not later than the third calendar day after filing. If the time period for response to a Request or Appeal is insufficient to make an appropriate decision, the time for response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level. Staff shall inform the inmate of this extension in writing. Staff shall respond in writing to all filed Requests or Appeals. If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.
Here, Defendant has put forth evidence that Plaintiff filed Remedy #1002781-F1 dated January 7, 2020, with the Warden at FCI-Williamsburg. [ECF No. 22-7 at 22-23, 26-33]. Plaintiff claimed Defendant violated the standards of employee conduct by retaliating against him and that Defendant confiscated his wheelchair, stating there was nothing wrong with Plaintiff. Id. About January 16, 2020, the Warden provided a response for informational purposes, noting the BOP would review his allegations of staff misconduct and provide medical care under BOP policy. Id.
Defendant has also submitted evidence that Plaintiff filed multiple other complaints unrelated to the instant case, including a request for physical therapy at FCI-Williamsburg on February 20, 2019, prior to the allegations concerning Defendant beginning October 11, 2019, and a July 28, 2020 complaint about pain in his toe and a canceled appointment with a physician's assistant concerning it. [See, e.g., ECF No. 22 at 17 & n.9, 18-19].
On February 4, 2020, Plaintiff filed Remedy #1002781-R1 with the Southeast Regional Office (“SERO”), appealing the Warden's response. [ECF No. 22-7 at 22-23, 26-33, see also ECF No. 8-1 at 7]. Remedy #1002781-R1 was rejected by the SERO on March 26, 2020 for the following reasons:
ONE: You may submit up to one letter-size (8 ½” x 11”) continuation page;
CPG: You did not submit proper number of continuation pages with your request/appeal;
RSR: You may resubmit your appeal in proper form within 10 days of the date of this rejection notice.[ECF No. 22-7 at 22-23, see also ECF No. 22 at 18]. Defendant has submitted evidence that BOP records reveal Plaintiff did not re-submit to correct the errors identified.
Plaintiff, however, has submitted evidence that he inquired about the results of his Remedy #1002781-R1 and was told it could not be located in the system. [ECF No. 8-1 at 7]. Plaintiff requested “to know where my Remedy #1002781-R1 or can I [proceed] to the next level BP-11.” Id. In response, dated June 23, 2020, Plaintiff was informed the “Southeast Regional Office received administrative Remedy #1002781-R1 on 2-4-2020. Response due date has not been set yet. Check with your unit team on updates.” Id. Plaintiff has provided further evidence that the next day, June 24, 2020, he submitted a request for administrative remedy complaining, in part, that “[t]here is a persistent pattern pertaining to administrative Remedy #1002781-R1, ” further complaining he had received multiple and conflicting messages concerning the status of the complaint. Id. at 8.
Additionally, Plaintiff provides argument and limited additional documentation indicating he had difficulties submitting additional complaints concerning Defendant, not discussed by Defendant, and predating Remedy #1002781-F1. [See, e.g., ECF No. 41-1 at 26 (dated November 7, 2019)]. Plaintiff argues that due to interference by staff at FCI-Williamsburg, the administrative process was unavailable to him. [ECF No. 41 at 5-6].
In Ross, the Supreme Court set forth three scenarios where the administrative process is considered “unavailable”: (1) the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the administrative process is so opaque that no ordinary prisoner can discern or navigate through the process; and (3) the “administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation.” 136 S.Ct. at 1859-60.
Given the inconsistencies in the record before the court and Plaintiff's evidence and argument presented, the undersigned declines to recommend dismissal of Plaintiff's claims based on his failure to exhaust his administrative remedy. Notwithstanding, because Plaintiff's Bivens claims fail on the merits, as discussed below, the undersigned still recommends dismissal of his claims.
2. Bivens Claims-Deliberate Indifference
In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the federal government. In 1971, the Supreme Court in Bivens recognized an implied damages action to compensate persons injured by federal officers who violate the Fourth Amendment's prohibition against unreasonable searches and seizures. 403 U.S. at 397. The Court acknowledged the Fourth Amendment does not provide for money damages “in so many words.” Id. at 396. The Court noted, however, Congress had not foreclosed a damages remedy in “explicit” terms and no “special factors” suggested the Judiciary should “hesitat[e]” in the face of congressional silence. Id. at 396-97. The Court, accordingly, held it could authorize a remedy under general principles of federal jurisdiction. Id. at 392.
Since Bivens, the Court has only expanded this implied cause of action twice. In Davis v. Passman, 442 U.S. 228 (1979), the Court provided a Bivens remedy under the Fifth Amendment's Due Process Clause for gender discrimination. In Carlson v. Green, 446 U.S. 14 (1980), the Court expanded Bivens under the Eighth Amendment's cruel and unusual punishments clause for failure to provide adequate medical treatment to a prisoner. Otherwise, the Court has consistently declined to expand this limited remedy.
On June 19, 2017, the Supreme Court provided a framework for determining whether a claim for a constitutional violation by federal officials presents a “new Bivens context” necessitating the above inquiry. Ziglar v. Abbasi, 137 S.Ct. 1843, 1859-60 (2017). The Ziglar Court “made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity” and reiterated the Court has “‘consistently refused to extend Bivens to any new context or new category of defendants.'” Id. at 1857 (citing Iqbal, 556 U.S. at 675). The Ziglar Court held a claim presents a new Bivens context “[i]f the case is different in a meaningful way from [the three] previous Bivens cases decided by this Court.” Id. at 1859. Differences meaningful enough to give rise to a new Bivens context may include “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” Id. at 1859-60.
As stated, the Supreme Court has previously recognized an implied right of action for an Eighth Amendment claim based on deliberate indifference to serious medical needs in Carlson. The facts at hand may present meaningful differences such that Plaintiff's claim presents a new context; however, the court need not engage in a lengthy Ziglar analysis, because Plaintiff has failed to present sufficient evidence to support his claim.
Regarding Plaintiff's claim of inadequate medical care, to establish an Eighth Amendment violation, Plaintiff must show Defendant exhibited “deliberate indifference” to his “serious medical needs.” Farmer, 511 U.S. at 835; Wilson v. Seiter, 501 U.S. 294, 297 (1991). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle v. Gamble, 429 U.S. 97, 105-106 (1976), and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The Fourth Circuit has noted treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted).
The record indicates medical personnel repeatedly assessed that Plaintiff's back surgery performed by a neurologist in July 2018 was successful and that Plaintiff's ongoing complaints thereafter that he could not walk were inaccurate. For example, Plaintiff's neurological consult in July 2019 found no “anatomical explanation for his complaint of weakness of all muscle groups of the right lower extremity, ” recommending no “further neurosurgical/spinal intervention” or follow-up. [ECF No. 22-4 at 191-92]. Notwithstanding, the record is clear that Plaintiff has consistently argued he is in pain and unable to walk.
The court need not resolve this issue. Even assuming Plaintiff has serious medical needs, he has failed to show Defendant was deliberately indifferent to those needs. Here, there is no indication in the record that Defendant acted with a sufficiently culpable state of mind, that he knew of a risk to Plaintiff's health or safety, and consciously disregarded that risk. See Farmer, 511 U.S. at 836; see also Whitley, 475 U.S. at 319 (defining subjective component of “deliberate indifference, ” stating “obduracy and wantonness, not inadvertence or error in good faith, . . . characterize[s] the conduct prohibited by the Cruel and Unusual Punishment Clause.”).
Instead, the record reveals, as summarized above, that Defendant responded to Plaintiff's complaints, sought multiple consults from other experts as well as medical tests, and made medical decisions concerning Plaintiff's treatment, including disallowing Plaintiff from using a wheelchair in October 2019, based on the information received as well as his own interactions with Plaintiff. [See also ECF No. 22 at 26-29 (summarizing treatment received by Plaintiff)].
Plaintiff does not address the evidence in the record, from multiple sources, that supports Defendant's treatment decisions. However, Plaintiff argues that (1) the March 5, 2019 electrophysiology study impression indicating the possibility that Plaintiff's problem in his right lower extremity may be demyelinating and (2) the August 23, 2019 physical therapy evaluation recommending physical therapy two times a week for six weeks both show that he “is being deprived of receiving the appropriate medical care based on the defendant's . . . opinion.” [See ECF No. 41 at 4].
To the extent these evaluations conflict with the treatment Plaintiff received, in the context of prisoner medical care, the Constitution requires only that prisoners receive adequate medical care; a prisoner is not guaranteed his choice of treatment. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988); see Russe l v. She fer, 528 F.2d 318, 318 (4th Cir. 1975) (“Prisoners are entitled to reasonable medical care.”). The fact that Plaintiff personally believed he had a more serious injury than what was assessed by multiple medical professionals or that he required different treatment than he received where his treatment was constitutionally adequate does not establish a constitutional violation. See, e.g., Bridges v. Ke ler, 519 Fed.Appx. 786, 787 (4th Cir. 2013) (“Disagreement regarding the proper course of treatment provides no basis for relief.”) (citing Russell, 528 F.2d at 319)).
Plaintiff also appears to argue Defendant incorrectly classified his medical needs as “care level 2” instead of “care level 3, ” causing him to be housed at the wrong institution for his medical needs. [See ECF No. 8 at 4, 6, ECF No. 41 at 4 (Plaintiff arguing that while he was in SHU, following the removal of his wheelchair, he “became a care level 3, unstable inmate”), ECF No. 41-1 at 9-11 (indicating that Plaintiff's request for “care level 3” was denied)]. It appears that in support, Plaintiff argues Defendant has been contradictory regarding Plaintiff's condition and selectively quotes from his medical record, cosigned by Defendant, which reads in full as follows:
Inmate is upset about having his [wheelchair] taken away last week. We again stressed that we believe he has a medical condition. However, he has to make efforts to move and to get out
of the [wheelchair] in order to progress.
[ECF No. 41-1 at 6-7, see also ECF No. 41 at 2 (citing ECF No. 41-1 at 5 (“It is not the position of myself or the medical department that the inmate can walk without assistive devices . . . . It is my professional medical opinion that the inmate does not require a wheelchair at this time . . . . He has been offered assistive device[]s which he has refused.”))].
The records cited by Plaintiff indicate no contractions in Defendant's assessment of Plaintiff. To the extent this is an additional argument requesting a certain choice of treatment, the court discerns no constitutional violation regarding Plaintiff's classification.
Defendant argues that “[t]o the extent Plaintiff asserts a violation of his due process rights under the 4th, 5th and 14th Amendments based on his care level and housing assignment, he fails to state a valid constitutional claim against Defendant Hoey.” [See ECF No. 22 at 31-34]. However, the court does not discern that Plaintiff is bringing any such claim, particularly when considering Plaintiff's response to Defendant's motion for summary judgment. [See ECF No. 8 at 5 (amended complaint referencing violations of his Fourth, Fifth, and Fourteenth Amendment rights), ECF No. 41 at 4 (“The Plaintiff asks that the court deny the defendant's Summary of Judgment Motion, due to negligence, deliberate[] indifference, and gross negligence.”)]. Additionally, Defendant has put forth evidence not addressed by Plaintiff that Plaintiff's care level has been reviewed and is properly designated. [See ECF No. 22 at 32-33].
Based on the record before the court, there is no triable issue of fact as to whether Defendant exhibited deliberate indifference to Plaintiff's serious medical needs. Accordingly, the undersigned recommends granting Defendant's motion as to this claim.
3. Qualified Immunity
Under the qualified immunity defense, “government officials performing discretionary functions generally are 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). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Ca lahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
The court has determined Defendant's conduct did not violate Plaintiff's constitutional rights. Because there is no constitutional violation, much less a clear constitutional violation, Defendant is entitled to qualified immunity.
4. Claims Against Defendant in his Official Capacity
Additionally, Plaintiff's claims against Defendant in his official capacity fail, to the extent he makes such claims. Plaintiff's claims for monetary damages because of constitutional wrongdoing by federal agents fall under Bivens, 403 U.S. at 397. A Bivens action is a judicially-created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Id. at 395-97. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Thus, a Bivens action will not lie against either federal agencies or officials in their official capacity. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994)).
Accordingly, the undersigned recommends dismissal of Plaintiffs claims against Defendant in his official capacity.[
As stated above, Plaintiff references negligence-based claims. [See ECF No. 8 at 5, ECF 41 at 4, see also ECF No. 8-1 (acceptance of Plaintiffs administrative tort claim by the BOP on April 22, 2020]. It is well settled that negligence does not support a claim for deprivation of Constitutional rights pursuant to Bivens, such as for deliberate indifference. See, e.g., Estelle, 429 U.S. at 105-106, Ruefly v. Landon, 825 F.2d 792, 793-94 (4th Cir. 1987). In as much as the complaint could be construed to bring a claim under the Federal Tort Claims Act (“FTCA”), Plaintiff has not indicated compliance with the applicable procedural requirements. Under the FTCA, “[a]n action shall not be instituted upon a claim 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 . . . .”); Erway v. United States Transportation Sec. Admin., C/A No. 5:20-00141-M, 2020 WL 6370981, at *3 (E.D. N.C. Oct. 29, 2020) (“Until the claimant (1) properly presents their claim to the agency and (2) the claim is expressly or constructively denied, federal courts lack the jurisdiction to consider tort claims brought against the federal government, and must dismiss such claims for the claimant's failure to exhaust administrative remedies”).
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant Defendant's motion for summary judgment. [ECF Nos. 22].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “ Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).