Opinion
C/A No.: 9:19-1770-MBS-BM
02-03-2020
Tekoa Tobias Glover, a/k/a Toby Glover, Plaintiff, v. Josev Brewer, Assistant United States Attorney; Chuck Wright, Sheriff of Spartanburg County; Major Freeman, Spartanburg Detention Center; Captain C. Hayes, Lt. Freeman; T. Medueder; Director Bodiford; Deputy Director Hollister, Major Stowers; Lieutenant McCombs; Sergeant Norris, Defendants.
REPORT AND RECOMMENDATION
(partial summary dismissal)
The Plaintiff, Tekoa Tobias Glover, also known as Toby Glover, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). At the time he filed this action he was a federal pretrial detainee being held at the Spartanburg County Detention Center (SCDC). He is currently a federal inmate housed at FCI-Williamsburg.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915 and § 1915A, the Prison Litigation Reform Act, Pub.L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a pro se complaint to allow for the development of a potentially meritorious case. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Cruz v. Beto, 405 U.S. 319 (1972); Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).
However, even when considered pursuant to this liberal standard, Defendant Brewer is entitled to summary dismissal. Plaintiff's claims for injunctive and declaratory relief and his claims concerning a lack of a law library at the detention centers where he was held are also subject to summary dismissal, as discussed below. 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 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009) [outlining pleading requirements under the Federal Rules of Civil Procedure].
Discussion
The alleged incidents occurred while Plaintiff was a federal pretrial detainee being held at the SCDC or at the Greenville County Detention Center (GCDC). He alleges that his constitutional (1st, 4th, 5th, 6th, and 14th Amendment) rights have been violated. Specifically, Plaintiff asserts that his access to the courts was violated because allegedly there was no law library at the SCDC, he was limited to the use of postcards for non-legal mail, some of his legal mail was not sent, some of his legal mail was opened outside of his presence, and the government was given some of his legal mail. He also claims he was impermissibly punished by being placed in more restrictive custody without due process. Plaintiff requests declaratory and injunctive relief as well as monetary damages.
First, Plaintiff's claims for declaratory and injunctive relief against all Defendants should be dismissed because Plaintiff is no longer confined at either the SCDC or the GCDC. See Rendelman v. Rouse, 569 F.3d 182, 186 (4th Cir. 2009) ["[A] prisoner's transfer or release from a particular prison moots his claims for injunctive and declaratory relief with respect to his incarceration there."](citing Incumaa v. Ozmint, 507 F.3d 281, 286-87 (4th Cir. 2007)); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991)[The transfer of a prisoner renders moot his claims for injunctive and declaratory relief.].
Second, to the extent that Plaintiff claims he was denied access to a law library at the SCDC and/or at the GCDC, those claims should also be dismissed. The Constitution does not guarantee Plaintiff an adequate law library; rather, it guarantees a right to reasonable access to the courts. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Bounds v. Smith, 430 U.S. 817, 838 (1977); see also Jones v. Lexington Cty. Det. Ctr., 586 F. Supp. 2d 444, 448 (D.S.C. 2008)["The law is quite clear that those being temporarily detained in county facilities awaiting criminal trials do not have a constitutional right to a law library."]. In order to establish a claim of denial of access to the courts, an inmate cannot rely on conclusory allegations, but must instead allege an actual injury or specific harm or prejudice that has resulted from the denial. Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (en banc); see also Harden v. Bodiford, 442 F. App'x 893, 896 (4th Cir. 2011). Here, a review of the docket of Plaintiff's criminal case reveals that he was represented by counsel. See United States v. Glover, 6:18-cr-00588-TMC-1 (D.S.C.). Therefore, his contentions relating to the lack of law library access do not raise a cognizable § 1983 claim because he had legal representation in his case, and there are no allegations of any specific injury Plaintiff suffered or is likely to suffer as a result of his alleged inadequate access to legal materials while he was in pretrial detention. See Lewis v. Casey, 518 U.S. at 351 [a plaintiff must allege actual injury resulting from allegedly inadequate jail library in order to state a claim under section 1983]; Magee v. Waters, 810 F.2d 451 (4th Cir. 1987)[actual injury required of city jail inmate who received books after delay and was allowed one hour of library time a week]. Although Plaintiff may believe that he would have fared better if he had had a law library at the jail where he was housed, since he was represented by counsel he has failed to establish a plausible claim of lack of access to the Courts. "[A]ctual injury cannot be established merely by conclusory statements that the inmate would have fared better in litigation had he or she had more or better access to legal research materials." Jones, 586 F.Supp.2d at 448.
A federal court may take judicial notice of the contents of its own records. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970).
Plaintiff also seeks to bring a Bivens claim against Defendant Brewer. However, as a Bivens claim for damages is not available against the United States, its agencies or public officials in their official capacities, Plaintiff's claims for monetary damages against Defendant Brewer in his official capacity should be dismissed. See FDIC v. Meyer, 510 U.S. 471, 486 (1994)[declining to extend a Bivens remedy to federal agencies]; Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002)[noting that a Bivens action does not lie against either agencies or officials in their official capacity]. As for Plaintiff's claims against Defendant Brewer in his individual capacity, Defendant Brewer is entitled to absolute prosecutorial immunity as to any allegations that relate solely to his actions taken as an Assistant United States Attorney. See Nivens v. Gilchrist, 444 F.3d 237, 250 (4th Cir. 2006), citing Imbler v. Pachtman, 424 U.S. 409 (1976). Further, Plaintiff fails to allege what Defendant Brewer personally did to violate his federal constitutional or statutory rights. Rather, he merely alleges that Brewer was the "orchestrator" of the events and was " the supervisory person dictating over the custody and control of Plaintiff." ECF No. 1-2 at 5. However, public officials "may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Iqbal, 556 U.S. at 676; see Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001)[finding no respondeat superior liability in a Bivens suit] "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. Plaintiff has failed to do so as to Defendant Brewer.
Bivens established a direct cause of action under the United States Constitution against federal officials for the violation of federal constitutional rights. See Carlson v. Green, 446 U.S. 14, 18 (1980); see also Holly v. Scott, 434 F.3d 287, 289 (4th Cir. 2006). A Bivens claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983; therefore, caselaw involving a § 1983 claim is applicable in a Bivens action, and vice versa. See Harlow v. Fitzgerald, 457 U.S. 800, 818 n. 30 (1982).
Additionally, to the extent that Plaintiff is attempting to assert a First or Sixth Amendment claim against Defendant Brewer pursuant to Bivens, he has not alleged any facts or made any argument that Bivens should be extended to apply to such claims. See Sebolt v. Samuels, 749 F. App'x 458, 459 (7th Cir. 2018)[finding that the Supreme Court has not yet declared First and Sixth Amendment violations actionable under Bivens]. The Supreme Court has "never held that Bivens extends to First Amendment claims." Reichle v. Howards, 566 U.S. 658 (2012). Nor has the Supreme Court recognized an implied cause of action under Bivens for alleged violations of the Sixth Amendment. See Sharratt v. Murtha, 437 F. App'x 167, 170 (3rd Cir. 2011)[expressing doubt as to whether alleged violation of Sixth Amendment was a cognizable Bivens cause of action] (citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)); Reyes v. Sedillo, 222 F. App'x 753, 754 n. 2 (10th Cir. 2007)[noting without deciding the issue of whether plaintiff can assert a cognizable Bivens cause of action for alleged violation of the Sixth Amendment](citing Malesko, 534 U.S. at 66-68 [explaining that the Supreme Court has recognized Bivens causes of action only in Fourth, Fifth, and Eighth Amendment cases]).
The Supreme Court made clear the very limited scope of Bivens actions and that "expanding the Bivens remedy is now a disfavored judicial activity." Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017).
Recommendation
Based on the foregoing, it is recommended that the Court dismiss Defendant Brewer as a party Defendant in this case. It is further recommended that the Court dismiss Plaintiff's claims for injunctive and/or declaratory relief, and that Plaintiff's claims that relate to the a lack of a law library at the detention centers also be dismissed. The Complaint should then be served on the remaining Defendants as to Plaintiff's remaining claims.
Plaintiff's attention is also directed to the important notice on the next page.
/s/_________
Bristow Marchant
United States Magistrate Judge February 3, 2020
Charleston, South Carolina
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).