Opinion
CIV-22-717-SLP
10-14-2022
EDMOND HORMIZI, Plaintiff, v. UNITED STATES OF AMERICA, et. al., Defendants.
REPORT AND RECOMMENDATION
GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE
Plaintiff, a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act (“FTCA”). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons explained below, the undersigned recommends Plaintiff's Bivens claim be dismissed without prejudice and Defendant Michael Carvajal be dismissed from this lawsuit.
I. Factual Allegations
Plaintiff is currently incarcerated at the United States Penitentiary located in Atlanta, Georgia. Doc. No. 1 at 3. Plaintiff was previously incarcerated at the Federal Transfer Center (“FTC”) located in Oklahoma City, Oklahoma. Id. at 2. Plaintiff has named the United States of America and Michael Carvajal, Director of the Federal Bureau of Prisons, as Defendants in this matter.
Plaintiff asserts that throughout the COVID pandemic, Defendants failed to maintain a safe environment, develop an appropriate method of testing employees, and despite a moratorium on transfers, transferred Plaintiff to the FTC during the height of the pandemic, placing him “in a congregable intake setting contrary to [Center for Disease Control] guidelines.” Id. Plaintiff also asserts that Defendant Carvajal ordered the transfer of non-citizen criminals, putting them at greater risk of contracting COVID-19, while placing a moratorium on the transfer of citizen prisoners. Id. As a result of these conditions, Plaintiff contracted COVID-19 and sustained permanent damage to his lungs. Id.
By this action, Plaintiff asserts a claim under the Eighth Amendment pursuant to Bivens, alleging Defendants exhibited deliberate indifference to his health and safety. He also asserts a claim under the FTCA.
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners proceeding in forma pauperis and/or seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). After conducting said review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).
In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).
III. Availability of a Bivens Claim
As set forth above, pursuant to Bivens, Plaintiff asserts an Eighth Amendment claim arising from his transfer to, and conditions of confinement in, the FTC resulting in his contracting COVID-19. Bivens and its progeny permit a damages claim against a federal officer in his individual capacity for a deprivation of constitutional civil rights. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“In Bivens - proceeding on the theory that a right suggests a remedy - [the United States Supreme] Court ‘recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.'” (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 68 (2001)). Specifically, the Supreme Court “held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures” under the Fourth Amendment. Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1854 (2017). Since Bivens, the Supreme Court has recognized a Bivens remedy in only two additional types of cases: Fifth Amendment violations of the equal protection component of the Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979), and Eighth Amendment violations of the Cruel and Unusual Punishment Clause. Carlson v. Green, 446 U.S. 14 (1980).
In recent years, however, the Supreme Court has made it clear that expanding the Bivens remedy beyond the already recognized contexts is a “disfavored judicial activity.” Abbasi, 137 S.Ct. at 1857 (quotations omitted). Therefore, a plaintiff may carry forward a Bivens action only so long as a court determines the action can satisfy a two-step set of screening/limiting factors before considering the merits. To decide whether a damages claim may be brought under Bivens, a court must determine whether the claim arises under a new Bivens context, and if so, whether “special factors counsel[] hesitation [in expanding the Bivens remedy] in the absence of affirmative action by Congress.” Id. at 1857, 1863-64. See also Malesko, 534 U.S. at 68 (“Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.”).
The first step in determining whether a Bivens claim can proceed is to determine whether the case presents a new Bivens context. Abbasi, 137 S.Ct. at 1859-60. The proper test for determining whether a case presents a new context requires a court to first consider whether “the case is different in a meaningful way from previous Bivens cases decided by [the United States Supreme] Court[.]” Id. at 1859. If so, “then the context is new.” Id. In other words, courts should determine whether the claims at issue differ meaningfully from “a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary [based on her gender]; and a claim against prison officials for failure to treat an inmate's asthma [resulting in his death].” Id. at 1860.
To be clear, the test is more than simply determining “whether the asserted constitutional right was at issue in a previous Bivens case,” and, if so, “whether the mechanism of injury was the same mechanism of injury in a previous Bivens case.” Id. at 1859; see also Hernandez v. Mesa, __ U.S. __, 140 S.Ct. 735, 743 (2020) (“A claim may arise in a new [Bivens] context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.”). In other words, the analysis goes deeper than asking whether plaintiffs are merely proceeding under the same constitutional amendment as the Bivens trio. Id. Courts are instructed to consider whether
[a] case might differ in a meaningful [enough] way [to make a given context a new one] because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Abbasi, 137 S.Ct. at 1860.
Plaintiff's Eighth Amendment claim against Defendants alleges that his transfer to, and conditions of confinement within, FTC constituted cruel and unusual punishment because they failed to mitigate exposure to COVID-19. Because the Court concludes that Plaintiff's claim against Defendants differ significantly from the Bivens trilogy of actions sanctioned by the Supreme Court, the Court further concludes those claims arise in a new context. Compare Bivens, 403 U.S. at 389-90 (manacling the plaintiff in front of his family in his home and strip-searching him in violation of the Fourth Amendment); Carlson, 446 U.S. at 16-18 (recognizing a Bivens cause of action under the Eighth Amendment for a deceased prisoner who was deprived medical attention by prison officers who knew of his serious medical condition); Davis, 442 U.S. at 229-34 (recognizing a Bivens cause of action under the Due Process Clause of the Fifth Amendment for a female employee who was terminated based on her gender).
Although Plaintiff asserts an Eighth Amendment claim, as did the plaintiff in Carlson, Plaintiff's Eighth Amendment conditions of confinement claim differs significantly from that asserted in Carlson. There, the Court recognized a Bivens cause of action under the Eighth Amendment in a case involving an alleged failure to provide medical treatment for an inmate with a “serious[ ]” and “chronic asthmatic condition” known to prison officials. Carlson, 446 U.S. at 16 n.1. Plaintiff's Eighth Amendment claim does not concern an alleged delay or deprivation in medical care, but rather raises challenges to his transfer to, and conditions of confinement within, FTC regarding mitigating exposure to COVID-19.
Any other conclusion as to Plaintiff's claim is foreclosed by Abbasi, as there, the Court confined Carlson to its facts. Relying in part on its holding in Malesko, the Abbasi Court held that Carlson had only recognized an implied damages remedy under the Eighth Amendment for “failure to provide medical treatment.” Abbasi, 137 S.Ct. at 1859. Other courts, post-Abbasi, have held that Bivens will not be extended to reach “non-medical care conditions of confinement” claims. See Menard v. Mansi, No. 21-CV-2130, 2021 WL 2156366, *4 (E.D. Pa. May 27, 2021) (citing various judicial decisions wherein courts declined to extend Bivens to Eighth Amendment conditions of confinement claims); see also Hill v. Lappin, 561 F.Supp.3d 481, 487 (M.D. Pa. 2021) (noting that although courts “[i]n the wake of Abbasi” initially did not sua sponte consider whether conditions-of-confinement claims remained viable, “[a]s the dust settles . . . and courts begin to appreciate Abbasi's watershed scope, the better-reasoned authority has declined to recognize a Bivens remedy for Eighth Amendment conditions-of-confinement . . . claims.”); Richardson v. United States, No. CIV-18-763-D, 2019 WL 4038223, at *7 (W.D. Okla. June 28, 2019) (finding that an Eighth amendment conditions of confinement claim constituted a new context under Bivens).
The Court must also examine whether any special factors exist to counsel against the creation of a Bivens remedy in the context of Plaintiff's claims. The Court may create a new Bivens remedy only if there are no special factors counseling hesitation against the creation of such a remedy. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). “[T]he 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.” Abbasi, 137 S.Ct. at 1857-58. “Thus, to be a ‘special factor counselling hesitation,' a factor must cause a court to hesitate before answering that question in the affirmative. Id. at 1858. The plain meaning of the language suggests that the threshold for finding special factors is quite low:
“The only relevant threshold-that a factor ‘counsels hesitation'-is remarkably low. It is at the opposite end of the continuum from the unflagging duty to exercise jurisdiction. Hesitation is a pause, not a full stop, or an abstention; and to counsel is not to require. ‘Hesitation' is ‘counseled' whenever thoughtful discretion would pause even to consider.”Huerta v. Oliver, No. 17-cv-00988-RBJ-KLM, 2019 WL 399229, at *16 (D. Colo. Jan. 31, 2019) (quoting Arar v. Ashcroft, 585 F.3d 559, 574 (2d Cir. 2009)).
When performing the special-factors analysis, courts must consider “‘who should decide' whether to provide for a damages remedy, Congress or the courts?” Abbasi, 137 S.Ct. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). In light of this consideration, the Supreme Court has decreed that “if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Abbasi, 137 S.Ct. at 1858. “[W]hen alternative methods of relief are available, a Bivens remedy usually is not.” Id. at 1863.
As a special factor counseling against extending a Bivens remedy to conditions of confinement claims, several courts have noted that Congress legislated prisoner litigation through the Prisoner Litigation Reform Act and did not provide a damages claim against federal prison officials. Courts have reasoned that Congress likely would have included such a remedy if it had intended to provide one. Abbasi, 137 S.Ct. at 1865; Curry v. Olberding, No. 1:21-1300-HMH-SVH, 2022 WL 791925, at *6 (D.S.C. Feb. 3, 2022); Jones v. Fedo, No. 20-cv-2168 (WMW/HB), 2021 WL 7287670, at *6 (D. Minn. Dec. 31, 2021); Blanding v. Fed. Bureau of Prisons, No. 21-1115, 2021 WL 5139912, at *6 (E.D. Penn. Nov. 4, 2021); Hand v. Young, No. 1:20-cv-00784-BAM (PC), 2021 WL 3206833, at *7 (E.D. Cal. July 29, 2021); Carey v. Von Blanckensee, 515 F.Supp.3d 1051, 1058-59 (D. Ariz. 2021).
Additionally, Plaintiff had alternative remedies available to him because, at a minimum, the Bureau of Prisons (“BOP”) has established an administrative remedy process permitting an inmate to seek review of an issue relating to “any aspect of his/her own confinement.” 28 C.F.R. Ch. V, subch. C, pt. 542, subpt. B, §§ 542.10-542.19 (BOP Administrative Remedy Program through which prisoner can seek formal review of any aspect of confinement); 28 C.F.R. § 542.10(a) (explaining the purpose of this program as providing a process through which “an inmate [may] seek formal review of an issue relating to any aspect of his/her own confinement.”). See also Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018) (finding the plaintiff had alternative means of relief under 28 C.F.R. §§ 541.7 and 542.10(a)); Custard v. Armijo, No. 15-cv-00448-GPG, 2015 WL 2407103, at *6 (D. Colo. May 19, 2015) (holding that alternative remedies existed which militated against extending Bivens damages, in part because the plaintiff could “also pursue administrative relief through the BOP's administrative remedy program ....”). This method has the added benefit of limiting judicial interference with prison management while maintaining a method of redress for valid constitutional claims. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 566-67 (1974) (“The operation of a correctional institution is at best an extraordinarily difficult undertaking .... [Correctional officers] must have the necessary discretion without being subject to unduly crippling constitutional impediments.”). See also, e.g., Abbasi, 137 S.Ct. at 1865 (“And there might have been alternative remedies available here, for example, a writ of habeas corpus, an injunction requiring the warden to bring his prison into compliance with the regulations discussed above; or some other form of equitable relief.” (citation omitted)); Schwarz v. Meinberg, 761 Fed.Appx. 732, 734-35 (9th Cir. 2019) (finding alternative remedies available under the Federal Tort Claims Act or through injunctive remedies). “[T]here is no reason to rely on a court-created remedy, like Bivens, when Congress has created an adequate means for obtaining legal redress.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231 (10th Cir. 2005).
A Bivens damages remedy “is not an automatic entitlement . . . and in most instances we have found a Bivens remedy unjustified.” Wilkie, 551 U.S. at 550. As the factors to be considered weigh against extending Bivens to Plaintiff's claims, the undersigned concludes there is no legal basis to recognize any claim for damages against Defendants based upon Plaintiff's underlying allegations.
IV. FTCA Claim
The United States is immune from tort suits, except to the extent it waives that immunity. Union Pacific R.R. Co. v. United States ex rel. U.S. Army Corps of Eng'rs, 591 F.3d 1311, 1313 (10th Cir. 2010). One such waiver is the FTCA, 28 U.S.C. § 2671 et seq., which provides the exclusive remedy for damages for injury, death, or loss of property “resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment[.]” 28 U.S.C. § 2679(b)(1). Accordingly, a plaintiff seeking relief under the FTCA files his tort claims directly against the United States, rather than the individual government actor. See Carlson, 446 U.S. at 19-23 (distinguishing between an FTCA action and a Bivens suit).
Here, in addition to naming the United States, Plaintiff names Defendant Carvajal, Director of the Federal Bureau of Prisons. Defendant Carvajal is not a proper defendant to a claim under the FTCA. Tolbert v. Gallup Indian Med. Ctr., 555 F.Supp.3d 1133, 1149 (D.N.M. 2021) (“[T]he only proper party in an action under the FTCA is the United States.” (citing 28 U.S.C. § 2679(a)). Accordingly, Plaintiff's FTCA claim against Defendant Carvajal should be dismissed with prejudice.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's claim brought pursuant to Bivens be dismissed without prejudice for failure to state a claim upon which relief can be granted. Additionally, the undersigned recommends Plaintiff's FTCA claim against Defendant Carvajal be dismissed with prejudice and Defendant Carvajal be dismissed as a party to this lawsuit. Plaintiff's FTCA claim against the United States should proceed at this time.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by November 3rd , 2022, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.”).
This Report and Recommendation does not dispose of all issues referred to the undersigned Magistrate Judge in the captioned matter.