Opinion
C/A 6:22-cv-00796-JFA-KFM
08-12-2022
Philip A. Giordano, Plaintiff, v. United States of America, Corrections Officer Roberts, Corrections Officer Davis, Corrections Officer Farmer, Lt. Davis, Nurse Brock, Corrections Officer Graham, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999) and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) alleging violations of his constitutional rights (doc. 7). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's amended complaint was entered on the docket on April 14, 2022 (doc. 7). On May 18, 2022, the undersigned issued an order informing the plaintiff that his amended complaint was subject to dismissal as drafted and providing him with time to file a second amended complaint to correct the deficiencies noted in the order (doc. 16). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 18). The plaintiff failed to file a second amended complaint within the time provided, so on June 10, 2022, the undersigned issued a report and recommendation recommending that this case be dismissed without further leave for amendment (doc. 20). On June 21, 2022, the plaintiff responded to the report and recommendation and moved for 30 additional days to file a second amended complaint (doc. 23). On June 29, 2022, the Honorable Joseph F. Anderson, Jr., Senior United States District Judge, entered an order declining to adopt the report and recommendation, and providing the plaintiff with 30 additional days to file a second amended complaint (doc. 24). To date, the plaintiff has failed to file a second amended complaint within the additional time provided by Judge Anderson; accordingly, the undersigned recommends that the case be dismissed.
ALLEGATIONS
The plaintiff, a federal prisoner in the custody of the Bureau of Prisons (“BOP”) and currently located at Yazoo City Low Federal Correctional Institution, brings this action pursuant to the FTCA and Bivens alleging violations of his rights by the defendants (doc. 7). The plaintiff alleges that when he was in the quarantine area of the special housing unit (“SHU”) at Federal Correctional Institution Bennettsville (“FCI Bennettsville”) preparing to be transferred, he asked Ofc. Graham about his legal documents that had not been packed in his property, but Ofc. Graham indicated that they would be destroyed if they had not been packed (id. at 4). The plaintiff requested to see another BOP officer about his property, but none ever came to his cell (id.).
Later that day, when Ofc. Roberts brought food trays to the plaintiff's cell, the plaintiff asked Ofc. Roberts about his property, but Ofc. Roberts closed the food slot (id.). The closing of the food slot shocked the plaintiff and he put his hand up to protect his face from the food slot and the food slot cut his middle finger (id.). Ofc. Roberts indicated that the plaintiff assaulted him and then left the plaintiff there with a bloody finger (id.). Ofc. Davis and Ofc. Farmer were with Ofc. Roberts, but did not protect the plaintiff from the slammed food slot and failed to obtain medical attention for the plaintiff despite his bleeding finger (id. at 4-5). An unknown BOP employee came to the cell a little later and indicated that the plaintiff would be taken to medical, but he was not taken to medical (id. at 5). Other officers came by the cell and told the plaintiff to get ready to go to medical, but he was never taken (id.).
During count, the plaintiff showed Lt. Davis his injury and Lt. Davis indicated that he would take the plaintiff to medical after count, but the plaintiff was never taken to medical (id.). Nurse Brock also indicated that she could treat the plaintiff's hand after pill line, but never treated it (id.). The next day, prior to transport, the plaintiff and a transport officer reached out to Nurse Brock for a bandaid for the plaintiff's hand, but she never brought one (id.). The plaintiff also contends that he requested medical treatment while temporarily housed in an Atlanta federal corrections facility, but was never provided any treatment (id.).
For relief, the plaintiff seeks to have the defendants found liable for negligence and deliberate indifference, and the United States responsible for negligent training of BOP officers (id. at 6). The plaintiff also seeks money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c)), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). 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 cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to the FTCA and Bivens, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, to the extent the plaintiff's amended complaint references allegations of medical indifference while he was a prisoner in Atlanta, Georgia, such claims cannot be pursued as part of this action because the actions giving rise to the claim and the defendants involved would be located outside of this district and the jurisdiction of this court. However, the plaintiff's claims regarding events that occurred while in South Carolina (and at FCI Bennettsville) are evaluated in more detail below.
FTCA Claims
The FTCA sets forth situations in which the United States has waived the sovereign immunity it otherwise enjoys. 28 U.S.C. § 1346. The FTCA vests the district courts with:
exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). FTCA claims may only lie against the United States-not individuals. Hui v. Castaneda, 559 U.S. 799, 805-06 (2010). Nevertheless, the United States Attorney for the District of South Carolina, as the designee of the United States Attorney General, may certify that individual federal employee defendants were acting within the scope of their employment under the Westfall Act amendment to the FTCA. 28 U.S.C. § 2679. Hui, 559 U.S. at 807. The Westfall Act amendment to the FTCA provides that upon such certification, “any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). Although certification may be refused, the employee may petition the court for certification. Here, however, the record reflects no such request for certification or refusal by the government to issue the certification. Absent this certification, the court lacks jurisdiction over the plaintiff's FTCA claims against the individual defendants (other than the United States) and they are subject to dismissal.
Nevertheless, the plaintiff has named the United States as a defendant, and his FTCA claims will be evaluated as to the United States. As an initial matter, since the plaintiff's amended complaint involves actions that purportedly occurred while the plaintiff was housed at FCI Bennettsville, a BOP facility located in South Carolina, the substantive law of South Carolina applies to his FTCA claim. Miller v. United States, 932 F.2d 301,303 (4th Cir. 1991); Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009). The FTCA claims in the plaintiff's amended complaint have been liberally construed as follows: (1) negligent training and supervision; (2) personal injury; (3) negligent medical treatment; (4) deprivation of property; and (5) failure to protect (see generally doc. 7).
Negligent Training and Supervision
The plaintiff seeks damages under the FTCA based upon alleged negligent training and supervision of employees at FCI Bennettsville (doc. 7 at 4-5). However, while the FTCA allows a plaintiff to recover money damages for negligent or wrongful acts or omissions by federal employees, there are exceptions to the waiver of sovereign immunity, including for federal employees performing discretionary functions. See Williams v. United States, 50 F.3d 299, 308 (4th Cir. 1995) (recognizing that the discretionary function exception “insulates the United States from liability for its agents and employees' performance of duties involving discretionary decisions.”). The discretionary function exception involves a two-prong inquiry - first, whether the challenged conduct involved an element of judgment or choice and second, whether the judgment exercised was based upon considerations of public policy. Peake v. United States, C/A No. 1:20-cv-01450-CMC-SVH, 2020 WL 7249875, at *4 (D.S.C. Sept. 14, 2020) (internal citations omitted), Report and Recommendation adopted by 2020 WL 6390664 (D.S.C. Nov. 2, 2020), aff'd 851 Fed.Appx. 441 (4th Cir. 2021). As noted by the Fourth Circuit Court of Appeals, the two-prong inquiry balances Congress' desire to allow redress of injuries suffered by individuals due to the negligence of government actors against the need to protect the government from being hobbled from doing its duty because of tort suits. Id. (quoting Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993)). In the Fourth Circuit, decisions regarding the hiring, supervision, and retention of employees are protected under the discretionary function exception to the FTCA. See Suter v. United States, 441 F.3d 306, 312 n.6 (4th Cir. 2006) (recognizing that “[c]ourts have repeatedly held that government employers' hiring and supervisory decisions are discretionary functions”); see also LeRose v. United States, 285 Fed.Appx. 93, 97 (4th Cir. 2008) (unpublished) (“The BOP's decisions regarding the hiring, supervision and retention [of BOP employees/alleged tortfeasors] are precisely the type of decisions that are protected under the discretionary function exception.”). Although the Fourth Circuit in Lins v. United States held that there are circumstances where the discretionary function does not apply to negligent hiring and supervision claims, that case involved the organization acting contrary to a mandatory policy, which is distinguishable from the plaintiff's general allegations that the BOP failed to supervise and train its employees because of the circumstances giving rise to this action. See Lins, 847 Fed.Appx. 159 (4th Cir. 2021). As such, the plaintiff's negligent training, supervision, and hiring claims in this action are barred by the discretionary function exception to FTCA liability and should be dismissed.
Personal Injury
To the extent the plaintiff seeks relief for the injury caused to his finger by Ofc. Roberts, his claim also fails. The FTCA allows a plaintiff to recover money damages for negligent or wrongful acts or omissions by federal employees, however, there are exceptions to the waiver of sovereign immunity, including for “[a]ny claim arising out of assault, battery” or other intentional torts. See Sheridan v. United States, 487 U.S. 392, 398 (1988). As such, to the extent the plaintiff seeks damages from the United States for the alleged intentional assault by Ofc. Roberts, the FTCA does not waive sovereign immunity with respect to this claim; thus, the Court lacks jurisdiction to consider it. See Billups v. United States, 433 F.Supp.3d 916, 921 (E.D. Va. 2020) (citations omitted). Accordingly, the plaintiff's personal injury claim under the FTCA is subject to summary dismissal.
Of note, the plaintiff's amended complaint also appears to seek damages for excessive use of force under Bivens (doc. 7 at 4-5).
Negligent Medical Treatment
Liberally construed, the plaintiff also contends that he was deprived appropriate medical care for his finger after it was cut in the food slot (doc. 7 at 4-5). Because the plaintiff's claims arise in the context of requesting and being denied treatment for his injury, his claim is akin to regular negligence, not medical malpractice. Under South Carolina Law, a negligence claim requires three elements (1) that the defendant had a legal duty of care, (2) the defendant failed to discharge that duty, and (3) the failure by the defendant proximately caused the plaintiff an injury. See Bloom v. Ravoira, 529 S.E.2d 710, 712 (S.C. 2000). Here, although the defendants had a duty to provide the plaintiff with medical care, the plaintiff's amended complaint - alleging that they failed to treat a cut on his finger - fails to allege that the defendants breached that duty because it does not appear that the plaintiff's finger necessarily required medical care. Moreover, the plaintiff has not alleged how the lack of treatment for a cut on his finger caused him an actionable injury - and the cut finger itself cannot be the basis for the plaintiff's damages in a negligent medical treatment claim. As such, the plaintiff's negligent medical treatment claim under the FTCA is subject to summary dismissal.
Deprivation of Property
The plaintiff also seeks damages under the FTCA based upon the property he contends was destroyed and not packed upon his move from FCI Bennettsville (doc. 7 at 4-5). However, as recognized by the United States Supreme Court in Ali v. Fed. Bureau of Prisons, 28 U.S.C. § 2680(c) provides an exception to the FTCA's waiver of sovereign immunity with respect to claims arising from the detention of property by any law enforcement officer, including BOP employees. Ali, 552 U.S. 214, 228 (2008). As such, FTCA actions involving the detention or mishandling of personal property by prison officials are subject to dismissal. Id.; see Perkins v. Deboo, C/A No. 1:08-cv-00225, 2009 WL 1650443 (N.D. W.Va. June 11,2009) (dismissing FTCA claim for loss of personal property based upon Ali and 28 U.S.C. § 2680(c)); Mathis v. United States, C/A No. 8:05-cv-03000-MBS, 2008 WL 2922798 (D.S.C. July 24, 2008) (same). Accordingly, the plaintiff's FTCA property claim is also subject to summary dismissal.
Failure to Protect
Liberally construed, the plaintiff also seeks damages under the FTCA based upon the U.S.A.'s failure to protect him from being injured by Ofc. Roberts (doc. 7 at 4-5). As noted above, there are exceptions to the exercise of jurisdiction allowed under the FTCA, such as for discretionary functions. See Williams, 50 F.3d at 308 (recognizing that the discretionary function exception “insulates the United States from liability for its agents' performance of duties involving discretionary decisions.”). Here, the BOP is directed by statute to “provide suitable quarters and provide for the safekeeping, care, and subsistence of all persons” in the custody of the BOP, 18 U.S.C. § 4042(a)(2), and has discretion in making housing determinations for BOP inmates, 18 U.S.C. § 3621(b). Here, even presuming, arguendo, that the BOP was on notice that Ofc. Roberts posed some sort of risk to the plaintiff, the discretionary function exception to FTCA liability bars this claim. As recognized by the Fourth Circuit, the BOP is required to provide for the care of all inmates, but the statute provides the BOP with broad discretion to determine where to house and when to separate inmates from others. See Rich v. United States, 811 F.3d 140, 145-46 (4th Cir. 2015). As such, the plaintiff's failure to protect claim under the FTCA is subject to dismissal.
Bivens Claims
The amended complaint is also filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. Bivens, 403 U.S. at 388. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). To state a claim under Bivens, a plaintiff must plausibly allege two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301,310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”).
In Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a plaintiff's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the plaintiff in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has only recognized Bivens claims in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to treat an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). Nevertheless, Bivens is a judicially created remedy, and further extension of Bivens is disfavored. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (citation omitted). Thus, prior to examining the merits of the plaintiff's claims, the court must examine whether the case presents a new Bivens context (and if so, the court must conduct a “special factors” analysis to determine whether to extend Bivens to said context). The context is considered new “[i]f the case is different in a meaningful way from previous Bivens cases decided” by the Supreme Court. Abbasi, 137 S.Ct. at 1859. When the context is new, the Bivens remedy should not be expanded “if there are special factors counseling hesitation in the absence of affirmative action by Congress.” Id. at 1857 (quoting Carlson, 446 U.S. at 18) (internal quotation marks omitted). The court's special factors inquiry “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. Here, liberally construed, the plaintiff alleges (1) a failure to protect claim under the Eighth Amendment; (2) a Fourteenth Amendment due process claim; (3) an excessive force claim under the Eighth Amendment; and (4) a medical indifference claim under the Eighth Amendment. The court addresses each claim in turn.
Failure to Protect Claim
Liberally construed, the plaintiff asserts that his Eighth Amendment rights were violated when the defendants (specifically Ofc. Davis and Ofc. Farmer) failed to protect him from the actions of Ofc. Roberts (doc. 7 at 4-5). As noted above, Bivens claims have been recognized on three occasions; however, the plaintiff's failure to protect claim presents a new Bivens context because it is not analogous to the facts of any of the three Bivens cases previously set out by the Supreme Court. Nevertheless, the Supreme Court may have recognized a fourth Bivens context in Farmer v. Brennan, 511 U.S. 825 (1994), which sustained a prisoner's Eighth Amendment claim for damages against federal prison officials for failure to protect. Farmer, 511 U.S. at 834. Although the Abbasi court did not include Farmer in its list of recognized Bivens contexts, some circuits have held that a prisoner's failure to protect claim did not present a new Bivens context in light of Farmer. Attkisson v. Holder, 925 F.3d 606, 621 n.6 (4th Cir. 2019). Nevertheless, assuming, arguendo, that the plaintiff's failure to protect claim does not present a new Bivens context (and is thus available to him), his claim is still subject to summary dismissal.
To plausibly state a failure to protect claim, a plaintiff must make sufficient factual allegations to show that a prison official had actual knowledge of a substantial risk of harm to an inmate and disregarded that substantial risk. Farmer, 511 U.S. at 847; see also Parrish v. Cleveland, 372 F.3d 294, 302-03 (4th Cir. 2004) (stating the standard of deliberate indifference requires actual knowledge and disregard of a substantial risk of serious injury). Here, the plaintiff's allegations do not meet that standard, as he presents no specific claims of personal threat or risk of harm. Likewise, the plaintiff has not alleged that a risk of harm to him by Ofc. Roberts was disregarded by another defendant. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (noting that “[A] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”) (citing Twombly v. Bell Atl. Corp., 550 U.S. 544, 556-57 (2007)). As such, even presuming this is a context where Bivens has been extended, the plaintiff's failure to protect claim is subject to summary dismissal.
Due Process Claim
To the extent the plaintiff asserts that his due process rights were violated when his property was not packed to travel with him, such claim is also subject to summary dismissal. As noted above, Bivens claims have been recognized on three occasions; however, the plaintiff's due process claim presents a new Bivens context because it is not analogous to the facts of any of the three Bivens cases previously set out by the Supreme Court. For example, while Davis involved due process violations, it involved gender discrimination in the employment context. Davis, 442 U.S. 228. The instant matter, however, involves the deprivation of an inmate's personal property (see doc. 7 at 4-5). As such, the plaintiff's due process claim herein is meaningfully different from the claim presented in Davis; thus, it presents a new Bivens context. Abbasi, 137 S.Ct. at 1860.
Since the context is new, the Court must examine if “there are special factors counseling hesitation in the absence of affirmative action by Congress” including whether the plaintiff has access to alternative remedies. Id. at 1857 (internal quotation marks and citation omitted). Here, as an initial matter, the plaintiff has alternative remedies available to him, including the BOP administrative grievance process as well as an FTCA claim. Corr. Servs. Corp. v. Malesko, 534 U.S. 61,69 (2001) (noting that “[s]o long as the plaintiff had an avenue for some redress,” a court may decline to provide a new Bivens remedy). But see Bush v. Lucas, 462 U.S. 367, 378 (1983) (finding that the Federal Tort Claims Act and Bivens parallel and complementary (not a substitute one for the other)). Nevertheless, irrespective of whether an alternative remedy exists, as noted, a special factors analysis must be performed. Abbasi, 137 S.Ct. at 1857. As noted by the Supreme Court:
Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.Id. at 1865 (internal citations omitted). Congress has been active in the area of prisoners' rights, but its actions do not support the extension of a new Bivens claim in this matter. Following the guidance in Abbasi, the undersigned finds Congress is better suited to determine whether to provide a damages remedy for the plaintiff's claims. For example, the Supreme Court has noted that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform,” as well as that “running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84 (1987) (citation omitted). Because prison administration is a task that has been committed to the responsibility of the legislative and executive branches of government, the Supreme Court has stated that “separation of powers concerns counsel a policy of judicial restraint.” Id. at 85. Special factors counsel against extending Bivens in this context; thus, the plaintiff's deprivation of personal property claim is subject to summary dismissal.
Nevertheless, even presuming, arguendo, that extension of a Bivens deprivation of personal property claim were appropriate, the plaintiff's claim still fails. The United States Supreme Court has explicitly recognized that deprivations of an inmate's personal property do not rise to the level of a constitutional violation so long as there are adequate post-deprivation remedies. See Daniels v. Williams, 474 U.S. 327 (1986); Mora v. City of Gaithersburg, 519 F.3d 216, 230-31 (4th Cir. 2008) (holding that deprivations of personal property by corrections officials are not constitutional violations so long as there are post-deprivation remedies). The BOP's Administrative Remedies Program provides such procedures. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (noting that whether a government employee intentionally or negligently deprived an inmate of his or her property, the deprivation does not violate the due process clause as long as the inmate has adequate post-deprivation remedies). As such, even presuming that Bivens extended to the plaintiff's due process claim, his claim is still subject to summary dismissal.
Excessive Force Claim
Liberally construed, the plaintiff further asserts that his Eighth Amendment rights were violated when Ofc. Roberts closed the food flap on his cell and ended up injuring the plaintiff's hand. As noted above, Bivens claims have been recognized on three occasions, the plaintiff's excessive force claim presents a new Bivens context because it is not analogous to the facts of any of the three Bivens cases previously set out by the Supreme Court. Nevertheless, courts in this circuit have found it appropriate to extend Bivens to excessive force claims. See Wise v. Maruka, C/A No. 1:20-00056, 2021 WL 1603819, at *15 (S.D. W.Va. Jan. 5, 2021) (collecting cases finding excessive force claims an appropriate extension of Bivens), Report and Recommendation adopted by 2021 WL 1146002 (S.D. W.Va. Mar. 25, 2021). But see Egbert v. Boule, ___ U.S. ___, 2022 WL 2056291 (2022) (declining to extend Bivens to a Fourth Amendment excessive force claim). Nevertheless, even extending Bivens to apply to the plaintiff's excessive force claim, it is still subject to summary dismissal.
The Eighth Amendment expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. In order to state a plausible Eighth Amendment excessive force claim, a plaintiff must allege that the “prison official acted with a sufficiently culpable state of mind (subjective component) and [that] the deprivation suffered or injury inflicted on the inmate was sufficiently serious (objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996)). Thus, courts must analyze both subjective and objective components. “[T]he ‘core judicial inquiry' regarding the subjective component of an excessive force claim is ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.'” Parker v. Stevenson, 625 F. App'x. 196, 198 (4th Cir. 2015) (quoting Iko, 535 F.3d at 238, 239). The Fourth Circuit has identified the following four factors to consider when determining whether a prison official's actions were carried out “maliciously and sadistically” to cause harm:
(1) the need for the application of force; (2) the relationship between the need and the amount of force that was used; (3) the extent of any reasonably perceived threat that the application of force was intended to quell; and (4) any efforts made to temper the severity of a forceful response.Id. (quoting Iko, 535 F.3d at 239); see also Whitley Albers, 475 U.S. 312, 321 (1986). To establish the objective component, a plaintiff must allege “the alleged wrongdoing is objectively ‘harmful enough' to establish a constitutional violation” in the context of “‘contemporary standards of decency.'” Hudson v. McMillian, 503 U.S. 1,8 (1992) (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). When prison officials maliciously and sadistically use force to cause harm, there always exists a constitutional violation regardless of how significant a plaintiff's injury may be. Id. at 9; see also Wilkins v. Gaddy, 559 U.S. 34, 37 (2010). Here, even liberally construed, the plaintiff's excessive force claim fails to state a claim for relief. The plaintiff alleges that Ofc. Roberts intentionally closed the food slot and that because it surprised him, he put his hand up, and the closing food slot cut his middle finger (doc. 7 at 4). However, the plaintiff's amended complaint does not plausibly allege the subjective component of an excessive force claim - in that the plaintiff's allegations do not indicate that Ofc. Roberts intentionally closed the flap on his finger. See Iko, 535 F.3d at 238. Instead, at best, the plaintiff contends that Ofc. Roberts intentionally closed the flap, but there is no indication that he saw the plaintiff's hand in the way and then intentionally closed the flap. Indeed, the plaintiff's allegations indicate that his own actions - putting his hand up - caused the injury to his finger, not the actions of Ofc. Roberts. As such, even presuming extension of Bivens to the plaintiff's Eighth Amendment excessive force claim is appropriate, it is still subject to summary dismissal.
Deliberate Indifference Claim
The plaintiff's deliberate indifference claim, based upon the Eighth Amendment, is a context in which Bivens has been expanded to apply. See Carlson v. Green, 446 U.S. 14 (1980). Nevertheless, it is also subject to summary dismissal. “Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice.” Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir.1969); Hirons v. Director, 351 F.2d 613 (4th Cir.1965)) (“Prisoners are entitled to reasonable medical care”). The government is “obligated] to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97,103 (1976). This obligation arises from an inmate's complete dependency upon prison medical staff to provide essential medical services. Id. The duty to attend to prisoners' medical needs, however, does not presuppose “that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Id. at 105. Instead, it is only when prison officials have exhibited “deliberate indifference” to a prisoner's “serious medical needs” that the Eighth Amendment is offended. Id. at 106. As such, “an inadvertent failure to provide adequate medical care” will not comprise an Eighth Amendment breach. Id. at 105-06.
In order to state a claim, “[a] plaintiff must satisfy two elements . . . he must show a serious medical need and he must prove the defendant's purposeful indifference thereto.” Workman v. Bodiford, C/A No. 6:18-cv-00355-RBH-KFM, 2018 WL 6933427, at *3 (D.S.C. Oct. 9, 2018), Report and Recommendation adopted by 2018 WL 6829015 (D.S.C. Dec. 28, 2018), aff'd 766 Fed.Appx. 1 (4th Cir. 2019) (quoting Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987)). A medical need is “serious” if it is “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.” Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994) (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. As an initial matter, the plaintiff's alleged injury - a cut to his finger - does not appear to be a serious medical need. Moreover, the plaintiff's allegations do not indicate deliberate indifference to the plaintiff's injury. For example, the plaintiff alleges that several individuals indicated that they would get him a bandage or take him to medical, but did not do so - but the plaintiff has not alleged that these defendants acted intentionally in failing to return to take the plaintiff to medical. Indeed, at best, the defendants may have been negligent in failing to follow through to obtain a bandage for the plaintiff or take him to medical, but negligent actions cannot form the basis of a deliberate indifference claim. See Daniels v. Williams, 474 U.S. 327, 328-36 & n.3 (1986); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (finding that deliberate indifference is a high standard that requires a showing of more than mere negligence); Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995). As such, the plaintiff's deliberate indifference claim is subject to summary dismissal.
RECOMMENDATION
By orders issued May 18, 2022, and June 29, 2022, the plaintiff was provided with an opportunity to correct the defects identified in his amended complaint (docs. 16; 24). The plaintiff was further cautioned that if he failed to timely file a second amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 16). The plaintiff failed to file a second amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 Fed.Appx. 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, directing the district court on remand to “in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order”) (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)); see also Bing v. Brivo Sys., LLC, 959 F.3d 605 (4th Cir. 2020). The attention of the parties is directed to the important notice on the following page.
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).