Opinion
Case No. 2:18-cv-326-BHH-MGB
11-29-2018
Darrell L. Goss., # 305517, Plaintiff, v. Bryan P. Stirling, et al, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner, has filed this action pursuant to 42 U.S.C. § 1983. He is proceeding pro se and in forma pauperis. One of the Defendants, Cindy Deer (Postmaster of the U.S. Post Office in Fairfax, South Carolina), has filed a "Motion to Dismiss For Failure to State a Claim and Lack of Jurisdiction" pursuant to Fed. R. Civ. P. Rule 12 (DE# 81). The motion pertains only to the claims against her. The other Defendants indicate they do not oppose the motion (DE#91, 104). Plaintiff has not filed a response and the time for responding has passed. Pursuant to the provisions of 28 U.S.C. §636(b)(1) and Local Civil Rule 73.02(B)(2)(D.S.C.), the assigned United States Magistrate Judge is authorized to submit proposed findings of fact and conclusions of law to the United States District Judge. After careful review, the Magistrate Judge recommends that the Defendant Postmaster's unopposed "Motion to Dismiss" (DE#81) should be granted , and that Defendant Postmaster should be dismissed from this case, for the following reasons:
Although Plaintiff lists the Defendant Postmaster's name as "Cindy Beer," the Defendant indicates her true and correct name is Cindy Deer. (DE# 81 at 1, n.1). The Court will use the Defendant's correct name.
I. Standard of Review
Rule 12(b)(1) provides for dismissal for lack of subject matter jurisdiction. Fed. R. Civ. P. Rule 12(b)(1). To invoke federal question subject matter jurisdiction under 28 U.S.C. § 1331, a plaintiff need only plead "a colorable claim arising under' the Constitution or laws of the United States." Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). However, deficiencies in the statement of a federal cause of action are usually addressed by a motion under rules challenging the sufficiency of the complaint. Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012).
With respect to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the United States Supreme Court has held that a "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. Rule 12(b)(6) "authorizes a court to dismiss a claim on the basis of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319, 326 (1989). "Unless otherwise specified, a dismissal for failure to state a claim under Rule 12(b)(6) is presumed to be both a judgment on the merits and to be rendered with prejudice." McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009).
Pro se pleadings are given liberal construction and are held to a less stringent standard than formal pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). However, "[t]he 'special judicial solicitude' with which a district court should view ... pro se filings does not transform the court into an advocate. United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012), cert. denied, 133 S.Ct. 2401 (2013). Only those questions which are squarely presented to a court may properly be addressed." Weller v. Dept. of Soc. Servs., City of Baltimore., 901 F.2d 387, 391 (4th Cir. 1990). Giving "liberal construction" does not mean that the Court can ignore a prisoner's clear failure to allege facts that set forth a cognizable claim. "Principles requiring generous construction of pro se complaints ... [do] not require ... courts to conjure up questions never squarely presented to them." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert. denied, 475 U.S. 1088 (1986).
II. Discussion
A. Sovereign Immunity
Plaintiff filed a "Supplemental Complaint" which was filed in the docket as an attachment to his Second Amended Complaint (DE#68-3). In such attached document, Plaintiff names a federal postal official (U.S. Postmaster Cindy Deer) as a defendant. He complains that he did not receive his issues of U.S. Today newspaper while he was in "lock-up" (i.e. administrative segregation) in state prison. According to Plaintiff, the postal service delivered his newspaper to the prison, but the prison returned it to the U.S. Post Office, which disposed of the returned newspaper. Plaintiff alleges that Postmaster Deer thereby violated his constitutional rights under the First Amendment.
Defendant's motion refers to the Supplemental Complaint (DE#68-3) as the Third Amended Complaint.
Plaintiff appears to be asserting a constitutional claim pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397(1971), which established a 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); Holly v. Scott, 434 F.3d 287, 289 (4th Cir.), cert. denied, 547 U.S. 1168 (2006). 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, 814-820, n. 30 (1982); Farmer v. Brennan, 511 U.S. 825, 839 (1994).
Under the well-established principle of sovereign immunity, Plaintiff may not sue the United States or its officials without their consent. See Global Mail Ltd. v. United States Postal Service, 142 F.3d 208, 210 (4th Cir. 1998) (holding that federal governmental entity is entitled to sovereign immunity unless Congress waives immunity and consents to suit); FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (declining to extend Bivens to permit suit against a federal agency).
Although Plaintiff seeks monetary damages, the Fourth Circuit Court of Appeals has held that "Bivens does not allow for recovery of money damages, or suits in general, against the government itself." Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999). The same is true for actions brought against federal officials in their official capacities. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002). In other words, Plaintiff may not maintain a Bivens action against Postmaster Deer in her official capacity. Id. ("a Bivens action does not lie against ... officials in their official capacity"); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (same), cert. denied, 519 U.S. 1150 (1997); and see, e.g., Estate of Riopedre v. United States, 2015 WL 505584 (D.S.C. Feb. 6, 2015) ("Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities"). Thus, any Bivens claim against Postmaster Deer in her official capacity is subject to dismissal based on sovereign immunity.
Sovereign immunity deprives a court of jurisdiction. See Global Mail Ltd., 142 F.3d at 210; United States v. Jones, 225 F.3d 468, 469 (4th Cir. 2000), cert. denied, 532 U.S. 1053 (2001). Such legal deficiency cannot be remedied through more specific factual pleading. Generally, dismissal with prejudice is appropriate where the Complaint's deficiencies cannot be remedied. Adams v. Rice, 40 F.3d 72, 76 n.1 (4th Cir. 1994).
B. Failure to State a Claim
Even if the court were to construe Plaintiff's conclusory allegations as sufficient to confer subject matter jurisdiction for purposes of Bivens, Plaintiff's Supplemental Complaint fails to state a plausible claim of violation of his First Amendment rights by Postmaster Deer. Plaintiff indicates that he is not allowed to receive a newspaper while in lock-up and acknowledges that upon postal delivery of the newspaper to Allendale Correctional Institution, the prison returned the newspaper to the United States Post Office in Fairfax, South Carolina. As Defendant Deer correctly points out, the United States Supreme Court has never recognized a cause of action in the context urged by Plaintiff. (DE#81 at 2, 6). Defendant Deer correctly asserts that "[t]he constitutional claim that Plaintiffs seek to advance - that a Postmaster can be personally liable under the First Amendment when a state prison has in place an institutional policy that prohibits delivery of periodicals to inmates in administrative segregation - does not fit within any of the three contexts in which the Supreme Court has recognized a Bivens-type remedy." (Id. at 7). In fact, the United States Supreme Court has specifically observed that it has "never held that Bivens extends to First Amendment claims." Reichle v. Howard, 566 U.S. 658, 663 n.4 (2012); see also, e.g., Clemmons v. United States, Case No. 0:16-CV-1305-DCC-PJG, 2018 WL 4959093, *4 (D.S.C. Oct. 15, 2018) (citing Bush v. Lucas, 462 U.S. 367, 390 (1983)).
Essentially, Plaintiff is complaining of a prison policy. Postmaster Deer points out that she is not a prison official and was not involved in the development or enforcement of the prison policy at issue. (DE# 81 at 8). Plaintiff's conclusory statements are insufficient to state a claim against Postmaster Deer. The United States Supreme Court has made it clear that a plaintiff must do more than make conclusory statements to state a plausible claim. Iqbal, 556 U.S. at 677-79; Bell Atlantic Corp., 550 U.S. at 555. The United States Supreme Court has instructed that a complaint "must plead facts sufficient to show that [a] claim has substantive plausibility." Johnson v. City of Shelby, 135 S.Ct. 346, 347 (2015) (citing Iqbal, 556 U.S. at 662). Plaintiff's pleading fails to do so.
Although Plaintiff makes the conclusory allegation that Postmaster Deer violated his First Amendment rights, such allegation is legally baseless and frivolous. See Denton, 504 U.S. at 31 (a finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact); Neitzke, 490 U.S. at 319 (same); Evans v. Allbrooks, 1989 WL 100776, 884 F.2d 1388 (4th Cir. 1989) (affirming district court's dismissal of frivolous claims); Carter v. Ervin, Case No. 0:14-cv-00865-TLW-PJG, 2014 WL 2468351, *5 (D.S.C. June 2, 2014) (dismissing legally frivolous claims), appeal dism'd, 585 F.App'x 98 (4th Cir. 2014). Plaintiff's Supplemental Complaint fails to state a plausible claim for relief against Postmaster Deer.
C. Qualified Immunity
Postmaster Deer also correctly asserts (DE#81 at 13) that she is entitled to qualified immunity in her individual capacity. Qualified immunity protects government officials so long as their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quotations and citation omitted). Courts consider the alleged conduct at issue and determine the question within the "specific context" of the case. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). Qualified immunity requires dismissal of individual-capacity claims "unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A court "may grant qualified immunity on the ground that a purported right was not 'clearly established' by prior case law, without resolving the often more difficult question whether the purported right exists at all." Reichle, 566 U.S. at 664.
With respect to Postmaster Deer, Plaintiff's allegations fail to satisfy either prong of Pearson, 555 U.S. at 231. Plaintiff alleges that the postal service delivered his newspaper to Allendale Correctional Institution, but complains that the prison returned the mail to the Post Office pursuant to the prison's established policy for inmates in administrative segregation. Defendant Deer correctly asserts that under the doctrine of qualified immunity, she is not liable for the actions of others. She can be liable only for her own actions. (DE# 81 at 15). As already discussed, the allegations against Postmaster Deer fail to state a plausible claim for violation of Plaintiff's constitutional rights under the First Amendment. Plaintiff has not alleged facts suggesting that Postmaster Deer violated any constitutional right, much less that such right was clearly established in this context. In fact, Postmaster Deer suggests that Plaintiff's characterization is conclusory and inaccurate:
Plaintiff labels his claim as a First Amendment constitutional violation, but the base of Plaintiff's complaint against Defendant Deer is that his paper was allegedly thrown away by the Postal Service after the state prison rejected the newspaper and returned it to the Fairfax Office. The true nature of Plaintiff's claim against Defendant Deer is a service-related complaint pertaining to the mail delivery. As to Defendant Deer, it is not a constitutional claim.(DE#81 at 20). In other words, Plaintiff complains of mail delivery and seeks to blame the local postmaster. At most, this would amount to an unexhausted administrative customer complaint regarding mail service, not a federal constitutional question for purposes of Bivens. See e.g., Lewis v. Lewis, Case No. 1:12-2072-TLW-PJG, 2012 WL 5384822 (D.S.C. Sept. 12, 2012) ("although Plaintiff expressly references the Constitution and its Amendments, merely invoking the Constitution is insufficient when there are no facts alleged to support a federal claim"), adopted, 2012 WL 5381646 (D.S.C. Oct. 31, 2012).
Moreover, to the extent Plaintiff seeks to blame Postmaster Deer in her supervisory position, respondeat superior is generally not applicable in Bivens or § 1983 actions. See Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own actions, has violated the Constitution."); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (observing that in such actions, "liability is personal, based upon each defendant's own constitutional violations").
For all these reasons, Plaintiff's allegation that Postmaster Deer violated his First Amendment rights fails to set forth a plausible constitutional claim.
III. Conclusion
In conclusion, Plaintiff's Supplemental Complaint (DE#68-3) attempts to sue a federal official who is protected by sovereign and qualified immunity. Additionally, even with liberal construction, and even taking non-conclusory factual allegations as true for purposes of Rule 12(b)(6), Plaintiff's Supplemental Complaint fails to state a plausible claim for relief against Postmaster Deer. Plaintiff's allegations against such Defendant are legally baseless. This deficiency cannot be remedied through more specific factual pleading. "[D]ismissal under Rule 12(b)(6) is . . . with prejudice unless it specifically orders dismissal without prejudice." Carter v. Norfolk Cmty. Hosp. Ass'n, Inc., 761 F.2d 970, 974 (4th Cir. 1985). "That determination is within the district court's discretion." Id.
IV. Recommendation
Accordingly, the Magistrate Judge recommends that: 1) Defendant Deer's "Motion to Dismiss" (DE#81) should be granted; 2) Plaintiff's First Amendment claim against Defendant Cindy Deer should be dismissed with prejudice ; and 3) Defendant Cindy Deer should be dismissed as a party from this action.
IT IS SO RECOMMENDED.
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE November 29, 2018
Charleston, South Carolina
Petitioner's attention is directed to the important notice on the following 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 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).