Opinion
C. A. 4:23-3631-SAL-TER
09-14-2023
Bernardo Ford, Jr., Plaintiff, v. Warden Jansen, C/O Johnson, Lt. Bates, Dr. M. Taylor, A. Julian, L. Newcombe, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges that he brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In August 2023, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. The court specifically pointed to said deficiencies. (ECF No. 4). Plaintiff filed an Amended Complaint but deficiencies remain. (ECF No. 7).
Plaintiff has not indicated that he is seeking to pursue an FTCA claim. Even if Plaintiff was seeking relief under the FTCA, he must have filed an administrative claim directly with the appropriate agency and obtain a final ruling. The exhaustion requirement under the FTCA is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990). Moreover, the United States is the only proper defendant in a FTCA claim. See 28 U.S.C. § 1346(b)(1) ; see 28 U.S.C. § 2679(b)(1) (personal capacity suits against employees are not cognizable under the FTCA). Here, Plaintiff did not indicate that he filed an administrative claim with the proper agency or sue a proper party under the FTCA.
Plaintiff alleges he is pursuing an “Eighth Amendment violation of due process;” liberally construed, Plaintiff appears to be pursuing medical care claims. (ECF No. 7 at 4). Plaintiff alleges: “I basically have a heart condition that needs to be checked out by a specialist.” (ECF No. 7 at 4). “I'm just in limbo with my health and I'm at high risk because I already suffer from asthma with respiratory lung infection.” (ECF No. 7 at 5-6). Plaintiff alleges as injuries “n/a”. (ECF No. 7 at 6). As request for relief, Plaintiff states “Plaintiff had been negligence with proper medical malpractice and medical treatment since Plaintiff has been waiting a year and some months to see proper medical treatment from proper medical specialist.” (ECF No. 7 at 6). Plaintiff later alleges that in April he was taken to the hospital and admitted for several days for chest pain. (ECF No. 7 at 7). Plaintiff alleges there was one hospital test he could not do because he had shackles. (ECF No. 7 at 7). Plaintiff alleges he could not get “proper tests” and did not have a follow up with a cardiologist and that this was a violation of the Eighth Amendment. Plaintiff alleges he did get transferred to a higher level care correctional institution. (ECF No. 7 at 7). Plaintiff alleges he has been receiving EKG tests. (ECF No. 7 at 7). Plaintiff alleges Dr. Taylor is not a specialist and he wants to see a heart specailist. Plaintiff alleges he is thirty-two years old. (ECF No. 7 at 8). Plaintiff alleges generally as to exhaustion that he sent forms and in order to go higher, administration has to process the form which had not happened. (ECF No. 7 at 10). It is unclear if Plaintiff even filed a BP-8.
Bivens “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eight Amendments only in certain limited contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979); Ziglar v. Abbasi, 137 S.Ct. 1843, 1859 (2017). Whether Plaintiff can state a claim under Bivens is highly in doubt. See Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022).
As to Plaintiff's allegations regarding a specialist and more tests as to his heart and generally alleging “medical negligence” and allegations of receiving medical care just not his preferred manner of care, mere negligence, mistake or difference of medical opinion in the provision of medical care to prisoners do not rise to an Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Lee v. Downs, 470 F.Supp. 188, 192 (E.D. Va.1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976)(“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). Plaintiff has failed to state a Bivens claim under the Eighth Amendment.
Plaintiff alleges there is generally mold and clogged vents. (ECF No. 7 at 8). Plaintiff's claims as to conditions are new Bivens contexts and extending Bivens to conditions claims has been previously rejected. The Supreme Court has not recognized an implied cause of action under Bivens for alleged violations of the Eighth or Fourteenth Amendment based on conditions of confinement claims. Other courts also have found a Bivens cause of action does not exist for a conditions of confinement claim. Bulger v. Hurwitz, 2022 WL 340594, at *6 (N.D. W.Va. Jan. 12, 2022)(collecting cases). Plaintiff has failed to state a claim upon which relief may be granted as to Plaintiff's conditions of confinement claims.
Plaintiff has failed to state a claim upon which relief can be granted as to all the federal defendants here.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action with prejudice and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Plaintiff's attention is directed to the important notice on the next page.
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 2317
Florence, South Carolina 29503
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).