Opinion
CIV-22-321-F
05-13-2022
ISAAC D. MOSLEY, Plaintiff, v. UNITED STATES, et. al., Defendants.
REPORT AND RECOMMENDATION
GRAY 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). 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 this action be dismissed without prejudice.
Although Plaintiff purports to bring this action pursuant to 42 U.S.C. § 1983, a § 1983 action is properly brought against defendants acting under color of state law. “A Bivens claim is a constitutional tort claim . . . against federal officers that is the counterpart to a claim against state officers under 42 U.S.C. § 1983.” Howard v. Mendez, 304 F.Supp.2d 632, 633 n.2 (M.D. Pa. 2004). As established herein, during the time period relevant to the Complaint, Plaintiff was a federal prisoner confined in a federal institution and Defendants were federal employees. Thus, this action is properly brought pursuant to Bivens rather than § 1983.
I. Factual Allegations
Plaintiff is currently incarcerated at the United States Penitentiary located in Atwater, California. Doc. No. 1 at 8. Plaintiff was previously incarcerated at the Federal Transfer Center (“FTC”) located in Oklahoma City, Oklahoma. Id. at 4. Plaintiff asserts that since January 4, 2020, the “Covid-19 outbreaks ha[ve] spread throughout [the] general inmate population” at FTC, “[D]efendants did not enforce 6 ft. social distance between inmates and staff, ” “Covid-19 positive . . . and negative inmates/staff were interactive with each other without social distance procedures in place.” Id. at 4-5. Plaintiff tested positive for COVID-19 on March 10, 2021. Doc. No. 1 at 5; Doc. No. 1-3 at 2. Plaintiff contends that he continues to experience headaches, coughing/sneezing, muscle pain, and difficulty breathing. Id. at 5.
In his Complaint, Plaintiff refers to the relevant facility as the Oklahoma City Transit Center. Construing Plaintiff's Complaint liberally, the Court recognizes that he intended to identify the FTC.
By this action, Plaintiff asserts claims under the Fifth and Eighth Amendments. Id. at 2. He seeks compensatory and punitive damages. Id. at 4. As Defendants, Plaintiff has named the United States, the FTC, FTC “medical staff known and unknown, ” FTC Warden Samantha Moss, and multiple individual medical staff members. Id. at 1, 2, 8.
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 Fifth and Eighth Amendment claims related to his conditions of confinement at FTC that he contends resulted 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 that 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 conditions of confinement at FTC constituted cruel and unusual punishment in allowing the spread of COVID-19 by failing to maintain social distancing, failing to separate COVID-19 positive inmates and staff from the general inmate population, and otherwise mitigate exposure to COVID-19. Doc. No. 1 at 2, 4-5. Based on the same allegations, he asserts Defendants violated his right “not to be deprived of health/safety guaranteed by due process” under the Fifth Amendment. Id. at 2.
Because the Court concludes that Plaintiff's claims 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 conditions of confinement at FTC regarding mitigating exposure to COVID-19. Any other conclusion as to these claims is foreclosed by Abbasi, as the Court there 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, 1865. 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, __ F.Supp.3d __, 2021 WL 2222725, *3 (M.D. Pa. Jun. 2, 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).
Similarly, although the plaintiff in Davis asserted a Fifth Amendment due process claim, Plaintiff's Fifth Amendment claim differs significantly from that asserted in Davis. “Davis concerned alleged sex discrimination on Capitol Hill, 442 U.S. at 230 []. There is a world of difference between those claims and” Plaintiff's claim regarding Defendants' alleged failure to adequately mitigate the risks of a world-wide pandemic. Hernandez, 140 S.Ct. at 744; see also, e.g., Id. (finding “a world of difference” between Fifth Amendment claims brought by the parents of a Mexican child shot across the United States-Mexico border by Border Patrol agents, and the Fifth Amendment claims asserted in Davis). Additionally, Plaintiff's Fifth Amendment claim is, like his Eighth Amendment claim, based upon conditions of confinement, and courts have not extended a Bivens remedy to such claims. See, supra.
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.” (citations 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. Statute of Limitations
The statute of limitations period for claims brought under Bivens is two years. Gallegos v. Cnty. Jail/Facility Loncolton, No. CIV-18-734-R, 2018 WL 5118589, *2 (W.D. Okla. Oct. 22, 2018). “The Tenth Circuit has held that the discovery rule applies to judicially-created Bivens actions. ‘A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence.'” Id. (quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994)). “Under this accrual rule, it is the ‘discovery of the injury, not discovery of the other elements of a claim [that] starts the clock.'” Gallegos, 2018 WL 5118589, at *2 (quoting Rotella v. Wood, 528 U.S. 549, 555, (2000)).
Plaintiff contends Defendants were failing to follow COVID-19 mitigation measures as early as January 4, 2020. Doc. No. 1 at 4. Additionally, he asserts their failure in this regard resulted in his contracting COVID-19 by March 10, 2020, when he tested positive for the same. Doc. No. 1 at 5; Doc. No. 1-3 at 2. Plaintiff did not initiate this action until April 18, 2022. Accordingly, Plaintiff's suit is barred by the statute of limitations unless Plaintiff shows a basis for tolling the statute of limitations.
Federal statutes of limitations “are generally subject to equitable principles of tolling.” Rotella, 528 U.S. at 560. However, equitable tolling is employed as an “exception, not the rule.” Id. at 561. Additionally, “state law governs the application of tolling in a civil rights action.” Alexander v. Oklahoma, 382 F.3d 1206, 1217 (10th Cir. 2004); see also Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995) (applying state law tolling rules in § 1983 context).
In general, Oklahoma permits the tolling of a statute of limitations in two circumstances. First, the existence of a “legal disability” provides proper grounds for equitable tolling. See Okla. Stat. tit. 12 § 96 (West 2000). Although the exact definition of this term remains unclear, Oklahoma courts have applied this provision only for plaintiffs whose competency is impaired or who have not reached the age of majority. See, e.g., Lovelace v. Keohane, 831 P.2d 624, 629 (Okla. 1992) (finding that those who could conduct their own business affairs over time are sufficiently competent to render them ineligible for “legal disability” tolling) ....
Second, the Oklahoma discovery rule tolls the statute of limitations “until an injured party knows of, or in the exercise of reasonable diligence, should have known of or discovered the injury, and resulting cause of action.” Id. Therefore, if defendants engage in “false, fraudulent or misleading conduct” calculated to lull plaintiffs into sitting on their rights, the limitations period may not be triggered. Jarvis v. City of Stillwater, 732 P.2d 470, 473 (Okla. 1987); see also Hurt v. Garrison, [] 133 P.2d 547, 550 (1942) (holding a statute of limitations tolled during a period of fraudulent concealment).Alexander, 382 F.3d at 1217.
The allegations in Plaintiff's Complaint “do not fit within any of these circumstances.” See Young v. Davis, 554 F.3d 1254, 1258 (10th Cir. 2009) (affirming dismissal of Bivens claim on screening as barred by the statute of limitations). Plaintiff does not allege he was under a “legal disability” or that Defendant engaged in “false, fraudulent[, ] or misleading conduct” to lull Plaintiff into sitting on his rights. Id. (quotations omitted); Breedlove v. Costner, 405 Fed.Appx. 338, 342 (10th Cir. 2010). Accordingly, presuming a Bivens remedy was available to Plaintiff, his claims should be dismissed as untimely.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice for failure to state a claim upon which relief can be granted. Alternatively, presuming Plaintiff could present viable federal claims under Bivens, his claims should be dismissed without prejudice as untimely.
Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by June 2, 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); cf. 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 disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.