Opinion
C/A No.: 1:18-995-HMH-SVH
02-14-2019
Steve Jenkins, #07390-104, Plaintiff, v. J. Smith, Case Manager; J. Jenkins, Case Manager, Designation and Computation Center (DSCC), Defendants.
REPORT AND RECOMMENDATION
Steve Jenkins ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action alleging a violation of his constitutional rights against the above-named defendants ("Defendants") while incarcerated at the Federal Correctional Institution in Estill, South Carolina ("FCI-Estill"), a facility of the Bureau of Prisons ("BOP"). Plaintiff's constitutional claims are construed as brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). Plaintiff also brings claims pursuant to the Federal Tort Claims Act, 18 U.S.C. § 1346(b) ("FTCA").
This matter comes before the court on Defendants' motion to dismiss. [ECF No. 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the dismissal procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No. 22]. Plaintiff having filed a response [ECF No. 27], the motion is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion to dismiss, but allow Plaintiff 21 days to file an amended complaint. I. Factual Background
The crux of Plaintiff's complaint is that Defendants have improperly applied the BOP's custody classification procedure, which has adversely affected his custody level, housing, and programming. Plaintiff also claims due to his improper custody classification, he was involved in a fight with another inmate that would not have occurred if his custody classification had been properly determined.
Specifically, Plaintiff alleges an incorrect escape charge appeared on his record causing a detainer. According to the exhibits Plaintiff submitted, the BOP received notice on December 21, 2016, that the detainer for the escape charge had been removed. [ECF No. 1-1 at 36-37]. The responsible BOP employees updated Plaintiff's custody classification within three months, instead of waiting for the yearly review, and recommended Plaintiff be transferred to a low-security facility. Id. at 37. However, according to BOP attorney Tami Cassaro, even if the error had been discovered earlier, it would have not changed Plaintiff's custody classification score enough to enable him to have been transferred to a low-security institution. II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed. R. Civ. P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "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)). The court is "not required to accept as true the legal conclusions set forth in a plaintiff's complaint." Edwards, 178 F.3d at 244. Indeed, "[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion." Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
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). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean 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).
B. Analysis
1. Bivens Claims
In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the federal government. In 1971, the Supreme Court in Bivens recognized an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. 403 U.S. at 397. The Court acknowledged the Fourth Amendment does not provide for money damages "in so many words." Id. at 396. The Court noted, however, that Congress had not foreclosed a damages remedy in "explicit" terms and no "special factors" suggested the Judiciary should "hesitat[e]" in the face of congressional silence. Id. at 396-97. The Court, accordingly, held it could authorize a remedy under general principles of federal jurisdiction. Id. at 392.
Since Bivens, the Court has only expanded this implied cause of action twice. In Davis v. Passman, 442 U.S. 228 (1979), the Court provided a Bivens remedy under the Fifth Amendment's Due Process Clause for gender discrimination. In Carlson v. Green, 446 U.S. 14 (1980), the Court expanded Bivens under the Eighth Amendment's cruel and unusual punishments clause for failure to provide adequate medical treatment to a prisoner. Otherwise, the Court has consistently declined to expand the limited remedy.
On June 19, 2017, the Supreme Court provided a framework for determining whether a claim for a constitutional violation by federal officials presents a "new Bivens context" necessitating the above inquiry. Ziglar v. Abbasi, 137 S.Ct. 1843, 1859-60 (2017). The Ziglar Court "made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity" and reiterated the Court has "'consistently refused to extend Bivens to any new context or new category of defendants.'" Id. at 1857 (citing Iqbal, 556 U.S. at 675). The Ziglar Court held a claim presents a new Bivens context "[i]f the case is different in a meaningful way from [the three] previous Bivens cases decided by this Court." Id. at 1859 (emphasis added). Differences meaningful enough to give rise to a new Bivens context may include "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." Id. at 1859-60.
If a party seeks to assert an implied cause of action in a new Bivens context, the court should determine whether any special factors counsel hesitation before providing a new Bivens remedy. Id. at 1859. The Ziglar Court held the special factor "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." The Court further noted:
It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case.Id. at 1858. Additionally, the existence of an alternative remedial structure to address the party's claim may alone limit the power of the judiciary to infer a Bivens claim. Id. The Court cautioned that in assessing whether Congress or the courts should determine whether to provide a damages remedy, "[t]he answer most often will be Congress." Id. at 1857.
Using the Ziglar analysis, Plaintiff's claims present a new Bivens context, as they are not analogous to the facts of any of the three Bivens cases decided by the Supreme Court. While the Court did provide a Bivens remedy for a gender discrimination case under the Fifth Amendment in Davis, the undersigned finds there are meaningful differences between Plaintiff's claims and the claims in Davis. For instance, Plaintiff's claims arose in the prison context, for which Congress has already provided substantial governing legislation. In addition, the Ziglar Court noted specific substantive and procedural due process cases in which the Court declined to create an implied damages remedy. Ziglar at 1857 (noting the following cases: "a substantive due process suit against military officers, United States v. Stanley, 483 U.S. 669, 671-672, 683-684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471, 473-474 (1994)").
Having determined Plaintiff's claims present new Bivens contexts, the undersigned must determine if there are special factors counseling hesitation before implying a remedy. Here, Plaintiff has alternative remedies available to him, including the BOP administrative grievance process and a federal tort claims action, both of which he has utilized. Moreover, "legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation." Id. 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. (internal citations omitted). Congress has been active in the area of prisoners' rights, and its actions do not support the creation of a new Bivens claim. Following the guidance in Ziglar, the undersigned finds Congress is better suited to determine whether to provide a damages remedy for Plaintiff's claims. Therefore, the undersigned recommends Plaintiff's Bivens claims be dismissed.
2. FTCA Claims
Defendants argue Plaintiff's FTCA claims must be dismissed for lack of subject matter jurisdiction, as a suit pursuant to the FTCA lies only against the United States. The undersigned agrees. However, typically the United States Attorney for the District of South Carolina, as the designee of the United States Attorney General, certifies that individual federal employee defendants were acting within the scope of their employment. The Federal Employee Liability Reform and Tort Compensation Act of 1988, §§ 5, 6, Pub. L. No. 100-694, 102 Stat. 4563 (1988) (codified at 28 U.S.C. § 2679), commonly known as the Westfall Act amendment to the Federal Tort Claims Act, 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. The record reflects no such certification, and it is not clear in this case whether the government has refused certification.
Although Defendants have made arguments of sovereign immunity and qualified immunity, the court cannot address such claims if it lacks subject matter jurisdiction.
As the court lacks jurisdiction over a FTCA claim against defendants other than the United States, the undersigned is constrained to find that Plaintiff's claim, in its current stature, is subject to dismissal. However, as a dismissal for lack of subject matter jurisdiction is without prejudice, the undersigned recommends Plaintiff be permitted 21 days to amend his complaint to assert a FTCA claim against the United States. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendant's motion to dismiss be granted, but that Plaintiff be permitted 21 days from the district judge's order to file an amended complaint asserting a FTCA claim against the United States.
IT IS SO RECOMMENDED. February 14, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
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
901 Richland Street
Columbia, South Carolina 29201
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).