Opinion
C. A. 9:23-cv-4033-MGL-MHC
03-13-2024
Matthew Daniel Myers, Plaintiff, v. Dr. Thompson, Does 1-10, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
Plaintiff, proceeding pro se, filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging a violation of his constitutional rights. Presently before the Court is a Motion to Dismiss (“Motion”) filed by Defendant Dr. Thomason. ECF No. 21. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advised Plaintiff of the importance of a dispositive motion and the possible consequences if he failed to respond adequately to Defendant's Motion. ECF No. 23. Plaintiff filed a Response in Opposition to the Motion, ECF No. 25, and Defendant filed a Reply, ECF No. 26. The Motion is ripe for review.
Defendant has indicated the proper spelling of his last name is Thomason, not “Thompson” as Plaintiff has identified him in the caption. ECF No. 21 at 1.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), D.S.C., this matter has been assigned to the undersigned for all pretrial proceedings. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that the Motion be granted.
PLAINTIFF'S ALLEGATIONS
Plaintiff is a federal inmate incarcerated at Federal Corrections Institution (“FCI”) Williamsburg in Salters, South Carolina. ECF No. 7 at 2. He alleges that Defendant Dr. Thomason (“ophthalmologist”) and Defendants Does 1-10 (“medical personnel that may be involved”) violated his Eighth Amendment rights by denying him medical treatment for his eye/vision problems. Id. at 8. Specifically, when describing the facts underlying his claim, Plaintiff alleges that he has “been denied medical treatment. (see attached).” ECF No. 7 at 5. There is nothing attached to the Amended Complaint. In describing a grievance he previously submitted regarding his claim, Plaintiff alleges “medical treatment not being received for issue with eye/vision problems.” Id. at 6.
LEGAL STANDARD
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to evaluate the complaint in its entirety, accept the factual allegations in the pleading as true, and draw all reasonable factual inferences in favor of the non-moving party. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440, 448 (4th Cir. 2011). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks omitted).
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, 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). Giving liberal construction does not mean that the court can ignore a pro se plaintiff's clear failure to allege facts that set forth a cognizable claim. See Weller v. Dept. of Soc. Servs., City of Baltimore, 901 F.2d 387, 391 (4th Cir. 1990) (“Only those questions which are squarely presented to a court may properly be addressed.”). Thus, even under this less stringent standard, a pro se complaint is still subject to summary dismissal. Estelle, 429 U.S. at 106-07.
DISCUSSION
Defendant argues that Plaintiff's Complaint should be dismissed under Rule 12(b)(6) for failure to state a claim. The undersigned agrees.
A. Bivens claim
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999), the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Curtis v. Fed. Bureau of Prisons, No. 6:23-CV-03017-JFA-KFM, 2023 WL 9523029, at *4 (D.S.C. Nov. 21, 2023), report and recommendation adopted, No. 6:23-CV-3017-JFA-KFM, 2024 WL 243470 (D.S.C. Jan. 23, 2024)). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id. (citing Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
To state a claim under Bivens, a plaintiff must plausibly allege two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. Id.; see Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Fourth Amendment to the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”).
Specifically, in Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a plaintiff's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the plaintiff in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has recognized Bivens claims only in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to provide emergency medical care for an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). Curtis, 2023 WL 9523029, at *4. However, as recognized by the United States Supreme Court in Egbert v. Boule, during the last 42 years, the court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” 596 U.S. 482, 486 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 491 (internal citation omitted).
As recognized by the Fourth Circuit, although the Supreme Court has not overruled any of the Bivens cases, the Supreme Court has demonstrated not only regret over the Bivens cases, but also demonstrated hostility to any expansion of them. See Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022). Thus, the Supreme Court has imposed a highly restrictive analysis for Bivens cases by “(1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Id. at 844.
The Supreme Court framed the inquiry as a two-step process: (1) first asking whether the case presents a new Bivens context, and (2) if the claim arises in a new context, doing a special factors analysis to determine whether the judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492 (quoting Ziglar v. Abbasi, 582 U.S. 120, 135-38 (2017) (citation omitted)). In Egbert, the Supreme Court decided that “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id. If there is even a single “reason to pause before applying Bivens in a new context,” a court must not recognize a Bivens remedy. Id.; Mays v. Smith, 70 F.4th 198, 202-03 (4th Cir. 2023) (“If there is any reason to think that Congress might be better equipped to create a damages remedy, then the court must decline to extend Bivens to a new context.”).
Here, Plaintiff's Bivens claim, deliberate indifference to medical needs, initially appears to be a context to which Bivens has been extended under the Eighth Amendment. See Carlson, supra. However, because Plaintiff's deliberate indifference claim in this action presents more than “trivial” differences with Carlson, it presents a new context to which Bivens has not been extended. See Egbert, 596 U.S. at 495 (affirming a finding of a new context despite “almost parallel circumstances”). For example, unlike the medical indifference claim in Carlson, Plaintiff's claim, as alleged here, does not involve a medical emergency, but focuses on treatment for Plaintiff's eye, which is not alleged to be fatal. ECF No. 7 at 5-8; see Carlson, 446 U.S. at 16 n.1. As such, Plaintiff's claim in this case does not involve a deliberate indifference to the provision of emergent care (as Bivens was extended in Carlson); thus, Plaintiff's claim involves a new Bivens context.
Because Plaintiff's claims involve a new Bivens context, this Court must examine whether special factors exist that require the Court to hesitate before extending Bivens to this situation absent action from Congress. Here, the undersigned finds, as set forth in Egbert, that there is reason to think that Congress might be better equipped to create a damages remedy in this instance, such that special factors exist requiring the Court to hesitate before extending a Bivens condition in this situation. Egbert, 596 U.S. at 483; see Curtis, 2023 WL 9523029, at *4 (finding that deliberate indifference claim involving non-emergent medical care was a new Bivens context and special factors counseled against extending Bivens to this context); Alvarado v. Fed. Bureau of Prisons, C/A No. 0:22-cv-01723-JD-PJG, 2023 WL 4089490, at *7 (D.S.C. May 10, 2023) (same), report and recommendation adopted by 2023 WL 4088829 (D.S.C. June 20, 2023). Accordingly, because Plaintiff's claim would expand Bivens to a “new context” and because there are “special factors” counseling against doing so, Plaintiff's Bivens claim based on non-emergent care is not cognizable. See Mays, 70 F.4th at 206.
Defendant also argues he is not a federal official subject to liability under Bivens. ECF No. 21 at 4; 21-1. Plaintiff alleges that Defendant Dr. Thomason is an employee of FCI Williamsburg. ECF No. 7 at 2, 4. However, in his Response, Plaintiff “does not dispute Defendant's status as a BOP contractor.” ECF No. 25 at 2. Nevertheless, determining whether Defendant Dr. Thomason is an independent contractor and not a federal official would require the Court to consider documents outside the pleadings, including the independent contractor agreement referenced by Defendant. ECF No. 21-2. “Considering extrinsic documents during the pleading stage improperly converts a motion to dismiss into a motion for summary judgment,” and this conversion “‘is not appropriate when the parties have not had an opportunity to conduct reasonable discovery.'” Defs. of Wildlife v. Boyles, 608 F.Supp.3d 336, 344 (D.S.C. 2022) (quoting Zak v. Chelsea Therapeutics Intern., Ltd., 780 F.3d 597, 606-07 (4th Cir. 2015)); see Kolon Indus., Inc., 637 F.3d at 448; Fed.R.Civ.P. 12(b), 12(d), and 56.
Even if Plaintiff's claim were not an expansion of Bivens, it would still be subject to dismissal under Rule 12(b)(6) for failure to comply with Rule 8's command that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief,” such that Defendant would have “fair notice of what the claim is and the grounds upon which it rests.” See Twombly, 550 U.S. at 555 (cleaned up) (internal quotation marks omitted).
To state a claim for deliberate indifference, a plaintiff must allege a serious medical need as well as that the prison official “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)).
In the Amended Complaint, Plaintiff alleges in conclusory fashion that Defendant Dr. Thomason violated his Eighth Amendment rights by denying him medical treatment of his eye/vision problems. ECF No. 7 at 4, 8. Specifically, when describing the facts underlying his claim, Plaintiff alleges that he has “been denied medical treatment. (see attached).” Id. at 5. There is nothing attached to the Amended Complaint. In describing a grievance previously submitted regarding his claim, Plaintiff alleges “medical treatment not being received for issue with eye/vision problems.” Id. at 6. There are no other material facts set forth in the Amended Complaint regarding Plaintiff's claim.
Under these circumstances, construing the allegations in Plaintiff's Amended Complaint liberally, as this Court must, the allegations fall short of the pleading requirements announced in Iqbal/Twombly, as set forth above. Indeed, the Amended Complaint contains only a legal conclusion-that Plaintiff's Eighth Amendment rights were violated-with little factual allegations, other than denial of treatment for Plaintiff's eye/vision problems. There are no allegations that Plaintiff has a serious medical condition or that Defendant Dr. Thomason was deliberately indifferent to that serious medical need. Such a complaint is insufficient under the standards set forth in Twombly/Iqbal. See Robertson v. Sea Pines Real Est. Companies, Inc., 679 F.3d 278, 288 (4th Cir. 2012) (“[A] complaint must contain factual allegations in addition to legal conclusions.”); see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). Accordingly, Plaintiff's Amended Complaint should be dismissed.
Defendant also references the allegations in Plaintiff's initial Complaint, ECF No. 2, arguing even those allegations fall short of the pleading requirements of Rule 8 and, as such, should be dismissed pursuant to Rule 12(b)(6). ECF No. 21 at 6. While the undersigned agrees, it is well-settled that Plaintiff's Amended Complaint supersedes the initial complaint and becomes the operative complaint moving forward, such that any prior complaint no longer performs any function in the case. Fawzy v. Wauquiez Boats SNC, 873 F.3d 451, 455 (4th Cir. 2017) (“Because a properly filed amended complaint supersedes the original one and becomes the operative complaint in the case, it renders the original complaint ‘of no effect.'” (citation omitted)); Wellin v. Wellin, 430 F.Supp.3d 84, 90 (D.S.C. 2019) (“It is well settled federal law that an amended pleading supersedes the original pleading, renders the original pleading of no effect, and the original pleadings perform no function in deciding the amended pleading.”).
RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Defendant's Motion to Dismiss, ECF No. 21, be GRANTED, and that Plaintiff's Complaint be dismissed.
Plaintiff has not yet sufficiently identified the unknown Defendants Does 1-10, nor has he provided fully completed service documents for these Defendants. See ECF No. 12 at 2. Plaintiff was advised that an unserved Defendant may be dismissed as a party to the case, pursuant to Fed. R.Civ.P. 4(m). ECF No. 10 at 3. Notwithstanding Plaintiff's failure to properly identify and serve Defendant Does 1-10, for the reasons set forth above, the undersigned recommends dismissal of this case in its entirety.
The parties are referred to the Notice Page attached hereto.
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).