Opinion
2:22-cv-01368-MGL-MGB
10-21-2022
Farid Fata, Plaintiff, v. Brian K. Dobbs, A. Mendoza, Dr. Stephen Hoey, HSA K. Nolte, Defendants.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff, proceeding pro se and in forma pauperis, brings this civil action alleging violations of his Eighth Amendment rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).0F This matter is before the Court upon a Motion to Dismiss filed by Defendants Brian K. Dobbs, A. Mendoza, Dr. Stephen Hoey, and HSA K. Nolte. (Dkt. No. 23.) For the reasons set forth herein, the undersigned recommends granting Defendants' motion and dismissing this action.
Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration.
BACKGROUND
In the instant action, Plaintiff complains about events that occurred while he was in federal custody at Federal Correctional Institution-Williamsburg (“FCI”) from approximately November 2020 through June 2021. (Dkt. No. 1.) Specifically, Plaintiff alleges that Defendants Warden Brian K. Dobbs, Associate Warden A. Mendoza, Medical Director of Health Services Dr. Stephen Hoey, and Health Services Administrator K. Nolte failed to take adequate precautions to protect the inmates from the spread of COVID-19, resulting in Plaintiff contracting the virus. (Dkt. No. 1 at 7.)
According to Plaintiff,
Between November 1, 2020 and December 18, 2020, at least three inmates in [Plaintiff's] housing unit became sick and tested positive for COVID-19. Beginning December 2020, [Plaintiff] had asked health workers during mainline to initiate contact tracing and test the inmates in his housing unit as inmate gatherings and group activities were still ongoing, absent physical distancing, but no intervention was taken and no surveillance testing was implemented in his housing unit.(Dkt. No. 1-1 at 5.) Plaintiff tested positive for COVID-19 on December 18, 2020. (Id.)
Plaintiff alleges that Defendants “Warden Brian K. Dobbs and health workers Dr. Hoey and K. Nolte ignored to fulfill their duty as gatekeepers to follow prison policies that adopted the standard CDC guidelines to mitigate the spread of the virus and protect the lives of staff and inmates, including those with pre-existing medical conditions.” (Id. at 6.) Plaintiff further alleges that following a “new outbreak of COVID-19,” Defendant Associate Warden Mendoza ignored Plaintiff's emails in May and June of 2021, asking that health services implement the CDC guidelines for contact tracing and testing to mitigate the spread of the virus. (Id. at 7-8.)
Plaintiff alleges that from June 10 through June 16, 2021, he “had daily direct exposure to inmate B.P.,” who had tested positive for COVID-19. (Id. at 8.) Plaintiff received “the Pfizer COVID vaccine” on June 16, 2021, two days after he discovered a “local skin infection.” (Id. at 8-9.) According to Plaintiff, the timing of his “first dose of the Pfizer COVID vaccine” defied “the CDC recommendation that the COVID vaccine should not be given concurrently with acute illness or infection.” (Id. at 9.) Plaintiff alleges that he “experienced the symptoms of fatigue, muscle and joint pains with diarrhea” from June 17 through June 20, 2021, and he did not know “whether these symptoms were due to new COVID-19 infection secondary to his known exposure to inmate B.P. or whether these symptoms represented potential side effects to the Pfizer COVID vaccine.” (Id. at 8.) Plaintiff alleges he treated his symptoms with Tylenol and Ibuprofen from the commissary, as recommended by a health care worker. (Id.)
According to Plaintiff, Defendants “Dr. Hoey, Mrs. K. Nolte, and the warden Mr. A. Mendoza . . . failed to answer” Plaintiff's grievances “as to why the prison administration failed to protect the inmates and implement contact tracing and surveillance testing that they were made aware repeatedly numerous times.” (Id. at 10.) Plaintiff alleges that “[b]y disregarding and repeatedly omitting contact tracing and testing and quarantining the inmates at risk after exposure to COVID-19 inmate in [Plaintiff's] housing unit, Defendants Dr. Hoey (CD) and K. Nolte (HSA), have breached their duty for infectious disease control and management under BOP Program Statement 6190.04.” (Id. at 12.) According to Plaintiff, “Mr. A. Mendoza and health workers subjectively knew of and repeatedly disregarded the emails notifications and requests that [Plaintiff] was at serious risk of harm from COVID-19, even knowing that he falls under a CDC recognized category to develop serious illness from COVID-19, being diabetic and immunocompromised.” (Id. at 14.)
Plaintiff has attached to his Complaint portions of his medical record as well as portions of the medical records of other inmates. The record shows as follows:
On March 26, 2021, Plaintiff had a follow up visit with Health Services. Notes from this visit state, inter alia,
Inmate is post COVID 19 and continues to complain of fatigue muscle pain, brain fog. Reports new since COVID 19.... Headache daily for about 2 hours of r side of head. No associated nv, vision changes, etc....Can't feel portions of toes on left foot. No skin breakdown or areas of concern....COVID 19 vaccine discussion w/ inmate..... Advised him that the BOP's position is that he should have the vaccine. Did discuss concerns that it may make him feel worse. Also discussed antidotal cases of the COVID vaccine helping overcome “long COVID.” At this point he is leaning towards not taking the vaccine. I'm ok w/ this for now. . . As more vaccines are distributed safely, he may desire it.... Educated inmate on Tylenol. I can provide short term to aid w/ post COVID 19 symptoms. . . Will also provide short term steroid dose pack. Aim would be for some reduction in pain. Long, very honest discussion about nature of life post covid. As a novel virus, we are not sure how long this will last or if it will resolve. This may be new normal, or it may go away soon.(Dkt. No. 1-13 at 2-3.) Notes from this visit show that a “mid level provider” prescribed Plaintiff medication, ordered lab tests, and requested consultations for neurology, radiology, and gastroenterology. (Id. at 2-5.)
On April 27, 2021, Plaintiff presented at Health Services complaining “of a skin infection on his left upper arm.” (Dkt. No. 1-15 at 2.) Notes from this visit state that Plaintiff was prescribed an antibiotic, with a follow up visit scheduled. A mid level provider notes “There is no signs of drainage in order to culture the area. Due to increased cases of staph infection, abx therapy will be initiated. He can follow up with his reported covid symptoms at his next visit with NP Davis.” (Id. at 3.)
On July 9, 2021, Plaintiff presented at Health Services “to be seen for an ‘infection in my arm.'” (Dkt. No. 1-16 at 2.) Notes from the visit state, inter alia,
This does not appear on physical exam to be cellulitis or an infection. Since he has had a rash on his head similar to this in the past, I will treat it as a yeast or fungal infection. He is pending a follow up appointment with his provider already, so this skin issue can be addressed at that visit as well if it is not better by then.
(Id. at 3.) Plaintiff was prescribed a topical cream as treatment for the rash and labs were ordered. (Id.)
On October 8, 2021, Plaintiff presented at Health Services. Notes from this visit state:
56 year old male seen during COVID-19 RESTRICTIONS AND MODIFIED OPERATIONS PLAN. He has a PMH of DMI and neuropathy of feet, hyperlipidemia, mild neutropenia, and confirmed COVID-19 in 2020. For the past 3-4 weeks he reported that his urine has a bad odor and he has discomfort with sitting. He denied a h/o prostatitis or kidney stones, but he reported that he has had nocturia of approx. 6x/night for the past 6 months. He reported that his neuropathy of his feet is worsening despite HgA1c less than 6 since 2016. He also reported that he has had several symptoms since he had COVID-19 in Dec. 2020, including fatigue, daytime somnolence and poor memory. He reported that some days are worse than others. All chronic care clinic issues were discussed at length. Previous labs and records were reviewed. Patient appears to be doing fairly well clinically. Medications were reviewed and discussed. Patient reported compliance with medication. Plan of therapy was discussed with patient. Appropriate counseling
about medications, exercise/activity, diet and recommended follow-up were also given to the patient.(Dkt. No. 1-17 at 2.) Plaintiff was prescribed several medications at this visit for his various issues. (Id. at 2-7.)
On December 17, 2021, Plaintiff presented at Health Services complaining of “continued prostate pain and cloudy urine. U/A positive for infection with clinical symptoms of prostatitis present. Start Bactrim for prostatitis.” (Dkt. No. 1-18 at 2.) Notes from this visit state, “Counseled about starting a new antibiotic. Counseled about starting low dose ACEI for proteinuria. Counseled about possible side effects including angioedema, dry cough, and orthostatic side effects. He verbalized understanding.” (Id. at 3.) The record shows Plaintiff had blood drawn for lab work on November 30, 2021 and February 24, 2022. (Dkt. No. 1-19.)
Plaintiff filed this action on April 28, 2022. (Dkt. No. 1.) On September 13, 2022, Defendants filed a Motion to Dismiss. (Dkt. No. 23.) By Order filed September 14, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 24.) Plaintiff filed a response in opposition on October 3, 2022, and attached over 300 pages of exhibits. (Dkt. No. 26.) Defendants did not file a reply brief. Defendants' motion is ripe for review.
STANDARDS
A. Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
B. Rule 12(b)(6) Dismissal Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
DISCUSSION
In their Motion to Dismiss, Defendants contend that Plaintiff failed to exhaust his administrative remedies “regarding requests to mitigate the spread of COVID-19.” (Dkt. No. 23 at 9.) Defendants further argue that Plaintiff's allegations do not give rise to an actionable claim under Bivens. (Id. at 11-24.) Defendants also assert that Plaintiff has failed to state an Eighth Amendment deliberate indifference claim. (Id. at 25-28.)
A. Exhaustion
The Complaint asserts constitutional violations under the Eighth Amendment arising from Defendants' alleged failure to enact proper precautions to protect inmates from COVID-19, resulting in Plaintiff contracting the virus. (Dkt. No. 1.) Defendant assert that Plaintiff's claims against them must be dismissed for failure to exhaust. (Dkt. No. 23.)
Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997(e)(a). Exhaustion as provided in § 1997(e)(a) is mandatory. Booth v. Churner, 532 U.S. 731, 741 (2001). A Bivens action, like an action under § 1983, is subject to the exhaustion of administrative remedies. Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion of administrative remedies “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes,” and is required even when the relief sought is not available. Booth, 532 U.S. at 741. Because exhaustion is a prerequisite to suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Porter, 534 U.S. at 524 (citing Booth, 532 U.S. at 741). 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).
To fully exhaust a Bivens claim, a federal prisoner first must properly raise his grievance through all levels of the BOP's Administrative Remedy Program. 28 C.F.R. §§ 542.10, et seq. The grievance procedure is a multi-step process. The first step requires the inmate to file a formal written complaint with the Warden of the prison on a Form BP-9. The inmate's complaint must be filed with the Warden within twenty calendar days from the date of the offending event. 28 C.F.R. § 542.14(a) (emphasis added). If the inmate is not satisfied with the Warden's response, at step two, the inmate may appeal (using a Form BP-10) to the Regional Director of the BOP within twenty (20) calendar days of the date the Warden signed the response. If the inmate remains dissatisfied with the response, thereafter, an inmate may appeal the Regional Office's response to the General Counsel of the Bureau by completing a Form BP-11 within thirty (30) calendar days of the date the Regional Director signed the response. 28 C.F.R. §§ 542.14 and 542.15. Appeal to the General Counsel is the final level of agency review. 28 C.F.R. § 542.15(a).
In their Motion, Defendants argue Plaintiff has failed to exhaust his administrative remedies “regarding requests to mitigate the spread of COVID-19.” (Dkt. No. 23 at 9.) They assert that although Plaintiff appealed his administrative remedies on this issue all the way up to “the central office level,. . . it was rejected on April 18, 2022, for including one continuation page and for not containing the correct number of copies.” (Dkt. No. 23 at 10.) According to Defendants, “Plaintiff was notified he could correct these issues and resubmit the appeal within 10 days.” (Id.) Defendants assert that Plaintiff failed to exhaust his administrative remedies because he “never refiled at the central office level or any level correcting or addressing these issues.” (Id.)
In support, Defendants have submitted the affidavit of D. Piland, the Paralegal for the South Carolina Consolidated Legal Center. (Dkt. No. 23-1.) D. Piland echoes Defendants' version of events and notes that Plaintiff's appeal to the central office level was an appeal of Remedy ID No. 1088897-R2. (Id. at 3.) D. Piland avers that “[o]n May 11, 2022, after filing the Complaint, Plaintiff filed administrative remedy 1088897-A2, which was rejected for the reason that Plaintiff had not corrected and refiled at the regional level concerning the issues in the rejected Remedy ID No. 1088897-R2. Plaintiff never refiled at any level correcting or addressing these issues.” (Id.)
Plaintiff asserts that he attempted to comply with “the General Counsel's April 18, 2022 decision” and that, to the extent he failed to exhaust his administrative remedies, it was because the administrative process was made unavailable to him. (Dkt. No. 26 at 10.) More specifically, he “asserts that his housing unit has no counselor available to have access to the BP-10 and BP-11 forms” which are needed to re-appeal at the regional level. (Id.) In support, Plaintiff has attached his grievances and the administrative responses to those grievances. (Dkt. No. 26-1 at 22-43.) Most relevant here, Plaintiff has submitted: (1) an April 18, 2022 “Rejection Notice” from the Central Office, which shows it was given to Plaintiff on May 2, 2022; (2) Plaintiff's “Central Office Administrative Remedy Appeal” dated May 3, 2022, which shows it was received May 11, 2022; (3) a May 26, 2022 “Rejection Notice” from the Southeast Regional Office, stating the appeal was rejected because it raises different issues in the institutional-level remedy and the regional-level remedy; (4) a June 2, 2022 “Rejection Notice” from the Central Office, which states “Address regional denial then re-appeal at the regional level”; and (5) Plaintiff's requests to staff dated May, June, and September of 2022, in which Plaintiff asks for a unit counselor to access the administrative remedies forms needed for him to complete the administrative remedy process. (Id.)
Upon careful review, the undersigned finds that Plaintiff has put forth sufficient evidence that his administrative remedy was not available to him.1F The record shows that Plaintiff appealed his administrative remedies to the central office level and then made every attempt to resubmit the appeal when it was rejected. Defendants have not refuted Plaintiff's assertions that the necessary administrative remedy forms were unavailable to him. Accordingly, the undersigned recommends dismissal is not warranted on this basis. See Ross, 136 S.Ct. at 1859-60 (explaining that administrative remedies may be deemed “unavailable” when the administrative process “operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”); Moreno v. Hoey, No. 1:19-cv-2756-DCC-SVH, 2020 WL 5986214, at *3 (D.S.C. Apr. 22, 2020) (finding administrative remedy was not available to federal inmate where his appeal to central office was rejected for being filed at the wrong level, and where plaintiff alleged he did not receive responses to his lower level remedy requests), adopted sub nom. Nicacio Moreno v. Hoey, 2020 WL 3638126 (D.S.C. July 6, 2020); Wilson v. Eagleton, No. 1:18-cv-0050-RMG, 2018 WL 4908277, at *3 (D.S.C. Oct. 10, 2018) (finding administrative remedies were unavailable to the plaintiff where “the record supports finding that Defendants were ‘consistently unwilling' to engage with Plaintiff's grievances, which Defendants were empowered to consider, but nonetheless ‘declined [ ] to exercise' their authority to review”); Mann v. Scott, No. 0:14-cv-3474-RMG, 2015 WL 5165198, at *5 (D.S.C. Sept. 1, 2015) (“The Court finds that the prison's failure to respond to Plaintiff's RTS's made an administrative remedy unavailable in this case, excusing his resulting failure to exhaust prior to filing suit. The Motion for Summary Judgment is denied as to its administrative exhaustion grounds.”).
The parties have both submitted evidence outside of the pleadings to resolve the issue of exhaustion, thereby converting this portion of Defendants' motion into one for summary judgment. See Fed.R.Civ.P. 12(d).
B. Availability of Bivens Claim
Defendants next assert that Plaintiff's constitutional claims cannot proceed pursuant to Bivens. (Dkt. No. 23.) Here, some clarification of Plaintiff's claims is necessary. The Complaint does not expressly complain of Plaintiff's medical treatment for his symptoms of COVID-19. Rather, the allegations focus on Defendants' policies pertaining to preventing the spread of COVID-19, both before and after Plaintiff contracted the virus. Accordingly, the undersigned construes the Complaint as alleging a conditions of confinement claim. See Zellers v. Northam, No. 7:21-cv-393, 2022 WL 3711892, at *7 (W.D. Va. Aug. 29, 2022) (construing state inmate's claims concerning “defendants policies at the beginning of the COVID-19 pandemic” as Eighth Amendment conditions of confinement claims).
In Plaintiff's response in opposition to the Motion to Dismiss, he alleges for the first time that “Defendants completely ignored the severity of [Plaintiff's] post-Covid physical injuries.” (Dkt. No. 26 at 31.) In support, Plaintiff asserts that although he was referred to see an “outside specialist (urologist)” on November 17, 2021, he did not see a urologist until August 1, 2022. (Id. at 32-33.) Plaintiff further asserts he has not yet received a “hematological work-up.” (Id. at 33.)
To the extent Plaintiff intends to allege a claim for deliberate indifference to serious medical needs, this claim is not properly before the Court. “[I]t is well-established that a plaintiff cannot amend the complaint by alleging new claims in his response to a motion for summary judgment.” Smith v. Demory, No. 9:19-CV-1771-HMH-MHC, 2020 WL 8413565, at *7 (D.S.C. Dec. 15, 2020) (citing S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184-85 (4th Cir. 2013) (“It is well-established that parties cannot amend their complaint through briefing[.]”)), adopted in part, 2021 WL 222354 (D.S.C. Jan. 22, 2021), aff'd, 2022 WL 2702572 (4th Cir. July 12, 2022). However, even if Plaintiff had properly alleged this claim, it would still fail under Bivens along with the conditions of confinement claim.
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the United States Supreme Court established a cause of action under the United States Constitution against federal officials in their individual capacities for the violation of federal constitutional rights.2F See Carlson v. Green, 446 U.S. 14, 18 (1980); Holly v. Scott, 434 F.3d 287, 289 (4th Cir.), cert. denied, 547 U.S. 1168 (2006). In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Hernandez v. Mesa, 137 S.Ct. 2003, 2006, 198 L.Ed.2d 625 (2017). Specifically, the Bivens Court found, in the absence of statutory authority, an action for damages for individuals injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Bivens, 407 U.S. at 397.
A Bivens claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983, and case precedent pertaining to § 1983 claims generally applies to Bivens actions. Harlow v. Fitzgerald, 457 U.S. 800, 814-20, n.30 (1982); Farmer v. Brennan, 511 U.S. 825, 839 (1994).
Since the ruling in Bivens, the Supreme Court has recognized implied causes of action against federal actors in only two additional situations. In Davis v. Passman, the Court provided an implied remedy under the Fifth Amendment's Due Process Clause for gender discrimination in the employment context. 442 U.S. 228 (1979). In Carlson v. Green, the Court further expanded Bivens under the Eighth Amendment's Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment to a prisoner. 446 U.S. 14 (1980). “These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved an implied damages remedy under the Constitution itself.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1855, 198 L.Ed.2d 290 (2017).
The U.S. Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), reemphasized the limited circumstances under which an individual may bring an implied cause of action against a federal official by clarifying that any expansion of Bivens outside of the three cases described above “is now a ‘disfavored' judicial activity.” Id. at 1857. In keeping with this narrow application, the Ziglar Court set forth a rigorous test for recognizing a new “implied cause of action” for a constitutional violation by a federal actor. First, the court must determine whether the plaintiff seeks to extend Bivens to a new context by evaluating whether the case is “different in a meaningful way from previous Bivens cases.” Id. at 1859. If the plaintiff's claim presents a new Bivens context, the court must then evaluate whether any “special factors counsel[] hesitation” in recognizing a new remedy “in the absence of affirmative action by Congress.” Id. at 1857.
In the recent decision, Egbert v. Boule, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022), the Supreme Court clarified this analytical framework in a manner that made it even more rigorous, in effect making it significantly more unlikely that an implied cause of action will be recognized. In Egbert, the Supreme Court considered two Bivens claims: (1) a Fourth Amendment excessive force claim that presented “‘almost parallel circumstances'” and a similar “‘mechanism of injury'” to Bivens itself, 142 S.Ct. at 1805 (quoting Ziglar, 137 S.Ct. at 1859), and (2) a novel First Amendment retaliation claim, 142 S.Ct. at 1807-08. Both claims arose out of the plaintiff's interactions with the U.S. Border Patrol. Id. at 1799-1802. The Egbert court acknowledged that its precedents “describe two steps,” but explained that these steps “often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” 142 S.Ct. at 1803; see also Silva v. United States, 2022 WL 3023684, at *3 (10th Cir. Aug. 1, 2022) (recognizing that Egbert “appeared to alter the existing two-step Bivens framework”). The Court instructed that if there is “even a single” rational reason to defer to Congress to create a remedy for relief, “a court may not recognize a Bivens remedy.” Id. at 1803 (citing Hernandez, 140 S.Ct. at 741, 743). Moreover, Egbert rejected the petitioner's Fourth Amendment claim despite its extremely close factual and legal parallels with Bivens itself, affirming that the plaintiff's Fourth Amendment claim presented a new Bivens context despite the fact that, as in Bivens, the alleged excessive force arose in the setting of the plaintiff's arrest by a law enforcement officer. Id. at 1800-01, 1804. The Court spelled out the takeaway from this demanding approach: a Bivens remedy will be unavailable “in most every case.” Id. at 1803 (“If there is a rational reason to think that [Congress is better situated than the courts to decide whether to provide for a damages remedy]-as it will be in most every case-no Bivens action may lie. Our cases instruct that, absent utmost deference to Congress' preeminent authority in this area, the courts arrogate legislative power.” (cleaned up)). As the Tenth Circuit recently stated, “[t]he Supreme Court's message could not be clearer-lower courts expand Bivens claims at their own peril.” Silva, 2022 WL 3023684, at *1.
Applying the framework articulated in Egbert, another court in this district recently found that a plaintiff's Eighth Amendment claim, asserting deliberate indifference to his serious medical needs, could not proceed under Bivens. See Washington v. Fed. Bureau of Prisons, No. 5:16-cv-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022). Relevant here, in Washington, the court found that Plaintiff's Eighth Amendment claim presented a new context:
Plaintiff's Bivens claims do not involve a medical emergency, as did Carlson, but rather focus on a long term and ongoing course of medical treatment of Plaintiff's chronic, non-fatal condition. This difference is significant for multiple reasons, including that administrative and injunctive relief would have a completely different application to Plaintiff's claims than to the claims in Carlson, where the failure to properly address a medical emergency proved fatal. See Egbert, 142 S.Ct. at 1803 (explaining that “a new context arises when there are ‘potential special factors that previous Bivens cases did not consider'” (quoting Ziglar, 137 S.Ct. at 1864)). Whereas the Court in Carlson fashioned a Bivens-type remedy to make right a grave constitutional wrong, Plaintiff's Bivens claims here risk transforming this Court into an ad hoc medical review board tasked with deciding, with little to no judicial guidance, which medical errors, if any, cross the threshold into constitutional injury. If the plaintiff's claims in Egbert implicated a new context as to Fourth Amendment excessive force theory, then Plaintiff's claims here implicate a new context as to Eighth Amendment deliberate indifference theory. It is of no moment that Plaintiff's claims parallel those in Carlson to the degree they are brought under the Eighth Amendment and relate to medical care in the prison setting generally. After Egbert, such broad similarities with Bivens, Passman, or Carlson are not sufficient on their own to authorize a claim. See 142 S.Ct. at 180405 (affirming a finding of a new context despite “almost parallel circumstances”). Rather, the Court finds that Plaintiff's Bivens claims arise in a new context and proceeds to the special factors analysis.Washington, 2022 WL 3701577, at *5.
Having found the Washington plaintiff's claim presented a new Bivens context, the court then considered whether “there is [e]ven a single sound reason for a court to defer to Congress rather than create an implied damages remedy.” Id. (omitting internal quotations). The court found several “sound reasons” to defer to Congress, including: “(1) Congress is better positioned to create remedies in the context of chronic medical care in federal prisons; (2) the Government has already provided alternative remedies that protect claimants like Plaintiff, including processes for administrative and injunctive relief; and (3) Congress' passage of the Prison Litigation Reform Act (‘PLRA').” Id. at *6.
Here, the undersigned finds the court's analysis in Washington is applicable to the instant matter. As in Washington, the undersigned finds Plaintiff's Eighth Amendment claims arise in a new Bivens context. Unlike in Carlson, Plaintiff's claims do not involve an acute medical emergency, where the failure to properly address the medical emergency proved fatal.3F Also, unlike in Bivens and its progeny, Plaintiff's claims risk transforming this Court into an ad hoc review board tasked with deciding which errors, if any, pertaining to policies on COVID-19 measures or Plaintiff's medical care, cross the threshold into constitutional injury.
While COVID-19 has proved fatal in some circumstances, there is no evidence Plaintiff's condition has ever been life-threatening.
Further, special factors indicate that Congress is better suited than the Judiciary to “weigh the costs and benefits” of creating a new damages remedy. Egbert, 142 S.Ct. at 1803 (quoting Ziglar, 137 S.Ct. at 1858). First, “the Judiciary is not undoubtedly better positioned than Congress to authorize a damages action” in the context of novel worldwide pandemic and its impact on federal prisons. See Egbert, 142 S.Ct. at 1805 (holding the same as to border security context because it implicates national security considerations). Second, as the Washington court noted, the Government has already provided alternative remedies that protect claimants like Plaintiff, including processes for administrative and injunctive relief. See Ziglar, 137 S.Ct. at 1862 (observing that the ability to pursue injunctive relief for abuses in the prison setting is a special factor).
For the foregoing reasons, the undersigned recommends the Court decline to extend a Bivens remedy to Plaintiff's Eighth Amendment claims and grant Defendants' motion to dismiss on this basis.4F
The Fourth Circuit may soon provide precedent on this issue. On October 25, 2022, it is scheduled to hear oral argument in Tate v. Harmon, No. 21-6109, as to whether a Bivens remedy “presently exists for Eighth Amendment claims alleging unlawful conditions of confinement.” See Oral Argument Calendar for October 25-28, 2022, available at https://www.ca4.uscourts.gov/oral-argument/oral-argument-calendar; see also Tate v. Harmon, No. 7:19-cv-00609, 2020 WL 7212578 (W.D. Va. Dec. 7, 2020).
C. Plaintiff's Claim for Deliberate Indifference to Serious Medical Needs
Finally, Defendants argue that should the Court find a Bivens remedy exists as to Plaintiff's claim for deliberate indifference to serious medical needs,5F Plaintiff has failed to sufficiently allege such a claim. (Dkt. No. 23 at 25.) As discussed above, the undersigned does not believe this claim has been put forth in the Complaint. Defendants' arguments are considered here in an abundance of caution.
Here, Defendants state that they do not “concede that Plaintiff has properly alleged a deliberate indifference claim.” (Dkt. No. 23 at 25.)
To demonstrate that Defendants violated Plaintiff's Eighth Amendment right to adequate medical treatment, the Complaint must establish that, objectively, Plaintiff had a serious medical need and, subjectively, Defendants acted with deliberate indifference to that need. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Scinto v. Stansberry, 841 F.3d 219, 225-26 (4th Cir. 2016). As to the first prong, a “serious medical need” is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). As to the second prong, a claim of deliberate indifference requires a showing that the official knew of and disregarded an excessive risk to the inmate's health. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). An assertion of mere negligence or even malpractice is not sufficient to state a constitutional violation. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
As discussed above, Plaintiff alleges that “Defendants completely ignored the severity of [Plaintiff's] post-Covid physical injuries.” (Dkt. No. 26 at 31.) He appears to base this claim on an alleged eight month delay in seeing a urologist and Defendants' failure to provide a “hematological work-up.” (Dkt. No. 26 at 32-33.) However, Plaintiff's own exhibits, attached to his Complaint, belie his assertion that he has not received a hematological work-up. Plaintiff has attached to his Complaint the results of his hematology lab results that were collected on November 30, 2021 and February 24, 2022. (Dkt. No. 19-1.) It is unclear what a “hematological work-up” would contain, if not lab results. Similarly, Plaintiff has attached to the Complaint portions of his medical record, which show that medical staff routinely considered Plaintiff's medical concerns and treated him during the period at issue.6F
Plaintiff has attached additional medical records to his response brief, including notes from his visit to McLeod Urology Associates on August 1, 2022. (Dkt. No. 26-3.) While the undersigned has not considered these records in association with the instant motion, they further indicate Plaintiff has received consistent medical treatment. For example, the August 1, 2022 records from the urologist state, inter alia, Plaintiff has “received adequate antibiotic treatment [for his prostatitis] and is now asymptomatic”; and “Patient's microscopic hematuria appears to be related to onset of his infections. Currently is resolved as he is without infection.” (Id. at 97.)
Plaintiff's allegations, when construed with the exhibits attached to his Complaint, do not amount to deliberate indifference to Plaintiff's serious medical needs. See Simons, 762 F.2d at 31 (considering “complaint with its attachments” on a 12(b)(6) motion to dismiss). To the extent Plaintiff disagrees with the course of his treatment, such claims do not constitute deliberate indifference. See Estelle, 429 U.S. at 106 (explaining that negligence in diagnosing or treating a medical condition does not state a valid constitutional violation); Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (holding that “[d]isagreements between an inmate and a physician over the inmate's proper medical care” are not sufficient to raise an Eighth Amendment claim pursuant to § 1983); Stovall v. Parsons, No. 3:12-cv-676-RJC, 2013 WL 3466903, at *3 (W.D. N.C. July 10, 2013) (finding no deliberate indifference where plaintiff “failed to demonstrate anything other than that he was not progressing to his satisfaction or that he disagreed with the course of his medical treatment”); Thomas v. Anderson City Jail, No. 6:10-cv-3270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011) (finding the Constitution requires prisoners be provided with a certain minimum level of medical treatment, but it does not guarantee to a prisoner the treatment of his choice).
Based on the foregoing, the undersigned recommends that Plaintiff has failed to allege an actionable Eighth Amendment violation for deliberate indifference to his serious medical needs and this claim should therefore be dismissed.
CONCLUSION
It is therefore RECOMMENDED, for the foregoing reasons, that Defendants' Motion to Dismiss (Dkt. No. 23) be GRANTED and this action be dismissed.
IT IS SO RECOMMENDED.
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
Post Office Box 835
Charleston, South Carolina 29402
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).