Opinion
3:21-cv-1817-JR
12-21-2022
ALTERICK PRAYLOW, Plaintiff, v. UNITED STATES; THE UNITED STATES DEPARTMENT OF JUSTICE; JOSIAS SALAZAR in his individual capacity, CHASE SEXTON, in his individual capacity; JENNIFER BAUMEISTER in her individual capacity; CHARLES WILSON, in his individual capacity; JAMES GALBERTH, in his individual capacity, Defendants.
FINDINGS and RECOMMENDATION
JOLIE A. RUSSO, MAGISTRATE JUDGE
Plaintiff Alterick Praylow brings this action alleging violations of his Fifth, Eighth, and Fourteenth Amendment rights in addition to negligence and violation of the Rehabilitation Act.
Defendants move to dismiss and for summary judgment. For the reasons stated below, the motion to dismiss should be granted.
ALLEGATIONS
Plaintiff is in the custody of the Federal Correctional Institution (FCI) in Sheridan, Oregon operated by the United States Bureau of Prisons (BOP). First Amended Complaint (ECF 12) at ¶¶ 4, 10.Plaintiff alleges that on August 13, 2020, he suffered a seizure while in custody, was transported to Willamette Valley Medical Center, and treated there for “medical issues relating to a seizure, a suspected stroke, or Todd's paralysis.” Id. at ¶¶ 12-13. On August 18, 2021, plaintiff was transported back to FCI Sheridan. Id. at ¶ 14.
After the filing of the complaint, the BOP transferred plaintiff to the FCI Beckley in West Virginia
Plaintiff asserts that as a result of the seizure, he suffers from weakness in his left arm and left leg, loss of balance, and limited mobility such that he requires the use of a wheelchair which the BOP provided. Id. at ¶¶ 15-17, 20. On August 18, 2020, plaintiff received “a new Medical Duty Status (MDS) requiring him to be housed in a ‘cell on the first floor,' and assigned to a lower bunk.” Id. at ¶ 19.
Plaintiff alleges that within his unit at FCI Sheridan, there are cells on the lower level with the common area and inmate showers. Id. at ¶ 22. Plaintiff asserts that in September 2020 defendant case manager Charles Wilson ordered plaintiff to be moved from his lower-level cell to another cell requiring the use of stairs to access the showers and common area. Id. at ¶ 25. Accordingly, plaintiff alleges he was forced to obtain assistance from other inmates to get himself and his wheelchair up and down the stairs resulting in physical and emotional exhaustion. Id.at ¶ 30, 32.
Plaintiff alleges that on October 11, 2020, while attempting to get to his cell from the common area, he fell down the stairs. Plaintiff asserts the fall “caused a T-8 to T9 disc herniation in his back which resulted in a spinal cord injury and associated deficit (T12 Asia C injury). This has caused him severe lower limb weakness, severe limited mobility, and limited sensation in his lower extremities and rendered him a paraplegic.” Id. at ¶¶ 40-41. Plaintiff contends that his back injury made him “more vulnerable, caused him fear, isolation, embarrassment, frustration, loss of sleep, pain, suffering, and emotional damage.” Id. at ¶ 42.
Plaintiff alleges the BOP was negligent in numerous respects including assigning him to a cell requiring the use of stairs, failure to aid with the stairs, and failure to train officers with respect to inmates with wheelchairs. Id. at ¶ 45 (a-r). Plaintiff further alleges various individual BOP employees violated his Eighth Amendment right, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Defendants failed to address his serious medical needs when they disregarded instruction to house plaintiff on the lower level of the facility, moved him to a cell requiring him to exit his wheelchair to negotiate stairs, and failed to provide adequate shelter for his condition. Plaintiff further alleges certain BOP employees neglected his serious medical needs by failing to provide necessary therapy to address his spinal cord injury. Id. at ¶¶ 48-77. Finally, plaintiff alleges the defendant United States violated the Rehabilitation Act by refusing to accommodate his disability by placing him in a cell on the lower level. Id. ¶ 78-93.
Defendants seek summary judgment as to the Bivens claims and the Rehabilitation Act claim asserting plaintiff failed to exhaust his administrative remedies for these claims. Alternatively, defendants move to dismiss the Bivens claims for failure to state a claim and due to their asserted entitlement to qualified immunity. Finally, defendants move to dismiss the Rehabilitation Act claim asserting plaintiff fails to allege specific injunctive relief aimed at addressing the purported violation. Plaintiff has withdrawn his claim under the Rehabilitation Act and, therefore, the Court should dismiss that claim and defendants' motions directed at that claim should be denied as moot.
Defendants do not seek dismissal of plaintiff's negligence claim brought under the Federal Tort Claims Act.
DISCUSSION
A. Exhaustion of Administration Remedies
The individual defendants seek summary judgment as to the Bivens claims asserting plaintiff has failed to exhaust his administrative remedies.
No action may be brought under federal law by a prisoner until available administrative remedies are exhausted. 42 U.S.C. § 1997e. The burden is on defendants to prove an available administrative remedy and that plaintiff did not exhaust such remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If defendants meet this burden, plaintiff then must come forward with evidence showing there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him. Id. Nonetheless, the ultimate burden of proof remains with the defendants. Id.
The BOP has established an administrative remedy procedure through which an inmate can seek review of a complaint regarding his imprisonment. 28 C.F.R. §§ 542.10-542.19. Pursuant to the administrative remedy program, an inmate shall first present an issue informally to prison staff and the staff shall attempt to resolve the issue. 42 C.F.R. § 542.13(a). However, an inmate is not required to seek informal resolution, but may first submit a “formal written Administrative Remedy Request, on the appropriate form (BP-9), in 20 calendar days following the date on which the basis for the Request occurred.” 28 C.F.R. § 542.14(a). “An inmate who is not satisfied with the Warden's response may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response. An inmate who is not satisfied with the Regional Director's response may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” 28 C.F.R. § 542.15(a).
Where the inmate demonstrates a valid reason for delay, an extension in filing time may be allowed. 28 C.F.R. § 542.14(b)
Upon arrival, inmates at FCI Sheridan receive information about the Administrative Remedy Program in their Admission and Orientation Handbook. Declaration of Shannon Soldati (ECF 31) at ¶ 4. Plaintiff received a copy of the handbook upon his arrival at FCI Sheridan in March 2020 and was permitted to keep his copy with him in his cell. Id.
Defendants note that plaintiff has previously filed three remedy requests while incarcerated with the BOP: (1) a staff complaint received on February 10, 2021; (2) a February 17, 2022, appeal from the decision of a Unit Disciplinary Committee hearing that occurred at FCI Beckley in West Virginia; and (3) a March 21, 2022, appeal from a Unit Disciplinary Committee hearing at FCI Beckley. Declaration of Erin Stennett (ECF 21) at ¶ 11. Plaintiff has not initiated or exhausted any of the complaints raised in his Bivens claims. Id. at ¶¶ 11-12. Accordingly, defendants have met their burden to show remedies were available and plaintiff did not exhaust them.
Plaintiff asserts, under the circumstances of his incarceration, administrative remedies were not actually available to him. Administrative remedies are unavailable if the procedures simply operate as a dead end, are too opaque to discern, or when prison administrators thwart inmates from taking advantage of the grievance process. Ross v. Blake, 578 U.S. 632, 643-44 (2016).
Plaintiff asserts:
In 2020 and 2021 there was a skeleton crew of correctional officers and caseworkers. The only way to obtain a grievance form is to request one from a correctional officer, the officer then will inform your case worker. The caseworker
would then determine if you need one, and bring you one if they think you have a legitimate grievance. The forms were not readily available.
... The law library and library were closed, so I did not have regular access to the Admission and Orientation handbook because that was my understanding of where they were kept. The usual six-month meetings with my caseworker did not happen, and prison programs were not offered. It was unclear what rules were in effect and what rules were not and when certain rules or procedures were in effect, relaxed, or changed. It was also terrifying because I did not want to upset Bureau of Prison employees because there was little, if any, contact with persons outside the prison and conditions were so terrible for so long that I feared I would be unable to handle anything worse. Sheridan Staff constantly informed me they could not help me or other inmates.
Due to the internal chaos in the prison during 2020 and 2021, It was also unclear who to complain to and how to file a grievance. Based on what I was told a Tort Claim Notice was the required document to be filed for the actions and inactions of the FCI Staff which caused me to be injured. It was my understanding that would satisfy the grievance process. Without the aid of an attorney, I filed a Tort Claim..
Prior to the October 2020 fall I attempted to file a formal grievance regarding prison staff interfering with my ability to use my medically necessary wheelchair by housing me in violation of the MDS. Defendant Baumeister told me that I don't need a grievance because I was just requesting a cell transfer and that was to be handled in house. A grievance would take too long to process.
In February 2021, I filed a grievance with the Bureau of Prisons at FCI Sheridan, due to staff repeatedly searching me and demanding I get up from my wheelchair. I was unaware what happened with that grievance, and I am unable to locate that grievance form.Declaration of Alterick Praylow (ECF 26) at ¶¶ 11-17.
To the extent plaintiff alleges lack of access to the law library, the record demonstrates that he was given his own copy of the handbook which explains the grievance procedure. Additionally, plaintiff himself indicates he knew about the process because he requested a grievance form related to the alleged failure to comply with the MDS. Moreover, at no time during the COVID-19 pandemic was the administrative remedy process suspended at FCI Sheridan. Declaration of Shannon Soldati (ECF 31) at ¶ 6.
Plaintiff raised the MDS issue with defendant Baumeister who offered an informal solution which is in line with the administrative remedy procedure instituted by the BOP. To the extent plaintiff asserts he was thwarted in his attempt to file a grievance, plaintiff does not offer sufficient evidence that prison officials refused to process any grievance. Plaintiff does not provide any evidence that he attempted to request a cell transfer as suggested or that he determined that he should in fact file a grievance and was prevented from doing so. Indeed, plaintiff notes he was able to file a grievance regarding another matter at FCI Sheridan. Nonetheless, defendants do not provide any evidence as to what happened with that complaint (only that it was received) and plaintiff asserts he is unaware of any decision regarding that grievance. Plaintiff further states staff constantly informed him that they were unable to help him. Plaintiff further supports his fear of reprisals by noting that he was transferred to West Virginia after filing this lawsuit.
The record is insufficiently developed to fully evaluate whether administrative remedies were, in practice, unavailable to plaintiff at the time he suffered the purported Bivens violations. Indeed, plaintiff notes that defendants have refused to respond to any of his discovery requests pending a determination of this motion. The record could benefit from statements from defendant Baumeister, evidence regarding what happened with the grievances plaintiff did file, and any other evidence that FCI Sheridan continued the administrative remedy process during the pandemic. Moreover, although defendants present evidence that plaintiff was provided a copy of the handbook including a description of the remedy procedures, it is unclear if plaintiff retained the handbook at the time of the purported MDS violation. Plaintiff's declaration sufficiently shows he cannot present facts essential to the motion to determine whether exhaustion was, as a practical matter, available. Accordingly, the Court should deny the motion for summary judgment without prejudice to allow discovery to take place in order to fully develop the record on the issue. See Fed. R. Civ. P 56(d)(1-3).
B. Recognition of a Bivens Remedy
Defendants move to dismiss plaintiff's Bivens claims asserting such claims are not recognizable in the circumstances alleged in the complaint.
In enacting 42 U.S.C. § 1983, Congress created a cause of action for money damages if a state official violates a person's constitutional rights. Congress did not create an analogous cause of action to remedy violations of constitutional rights by federal officials. In Bivens, 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. See 403 U.S. at 397. In 1980, the Supreme Court extended Bivens to violations of the Eighth Amendment for failure to provide adequate medical treatment to an inmate. Carlson v. Green, 446 U.S. 14, 18-19 (1980).
However, the Supreme Court has since scaled back Bivens and restricted remedies for new claims and contexts. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (expanding the Bivens remedy is now a disfavored judicial activity and courts should refuse to extend Bivens to any new context or new category of defendants). Indeed, the Court noted that its previous decisions in Bivens cases, such as the Carlson case, might have been different if they were decided in 2017. Id. at 1856 (“the Court's three Bivens cases might have been different if they were decided today”).
The Ziglar Court described the test for determining whether a case presents a new context:
If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. A case might differ in a meaningful way 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.Ziglar, 137 S.Ct. at 1859-60.
Accordingly, a Bivens remedy will not be available if there are special factors counselling hesitation in the absence of affirmative action by Congress. Id. at 1857.
Subsequent to Ziglar, another judge of this Court determined that a Bivens claim is available for failure to provide medically necessary care by refusing to consider or approve a request for gender confirmation surgery for an inmate who suffers from severe gender dysphoria. Lewis v. Ives, 2020 WL 2761024, at *5 (D. Or. Feb. 12, 2020), report and recommendation adopted, 2020 WL 2747397 (D. Or. May 27, 2020), appeal dismissed, 2020 WL 6038332 (9th Cir. July 23, 2020). In that case, a plaintiff asserted that absent gender confirmation surgery, she suffers such severe distress and depression that she twice attempted self-surgery. Id. at *1. The Lewis Court found that although the nature of plaintiff's medical need was different, the context was similar to Carlson. Id. at *4. In addition, the Lewis Court determined that none of the allegations suggested a challenge to agency-wide policy, only a challenge to a specific request for treatment, and the fact that Carlson involved “emergent” care was not a significant differentiation. Id. at *5. Accordingly, the Lewis Court did not discuss whether there were any special factors counseling hesitation in the absence of action by Congress because it found the case did not present a new context.
In Carlson, a deceased inmate's mother brought suit and alleged that federal prison officials had violated the inmate's Eighth Amendment rights by providing inadequate medical care after the inmate suffered a severe asthma attack, leading to his death. Specifically, the plaintiff alleged that, despite knowing about the prisoner's serious chronic asthma, defendants housed him in a facility with inadequate medical facilities, failed to treat him for hours after an asthma attack, and delayed his transfer to a hospital. Carlson 446 U.S. at 16, n.1.
Since the Lewis decision, the Supreme Court again weighed in to clarify that:
To inform a court's analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps.... First, we ask whether the case presents “a new Bivens context”-i.e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action.. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” . If there
is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy....
While 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. For example, we have explained that a new context arises when there are “potential special factors that previous Bivens cases did not consider.” . And we have identified several examples of new contexts-e.g., a case that involves a “new category of defendants,” . largely because they represent situations in which a court is not undoubtedly better positioned than Congress to create a damages action. We have never offered an “exhaustive” accounting of such scenarios, however, because no court could forecast every factor that might “counse[l] hesitation.” . Even in a particular case, a court likely cannot predict the “systemwide” consequences of recognizing a cause of action under Bivens.
Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, “an alternative remedial structure.” . If there are alternative remedial structures in place, “that alone,” like any special factor, is reason enough to “limit the power of the Judiciary to infer a new Bivens cause of action.” . Importantly, the relevant question is not whether a Bivens action would “disrup[t]” a remedial scheme, ., or whether the court “should provide for a wrong that would otherwise go unredressed,” ... Nor does it matter that “existing remedies do not provide complete relief.” . Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies “should be augmented by the creation of a new judicial remedy.”Egbert v. Boule, 142 S.Ct. 1793, 1803-04 (2022) (emphasis added).
Here, plaintiff seeks a remedy for a failure to essentially provide him accessibility to showers and the common areas without risk of falling. Certainly, the realization of that risk may have and did have serious consequences, but that purported failure to address a medical need is qualitatively different from that faced in Carlson where the inmate suffered an acute medical emergency which was not addressed and resulted in death. Had plaintiff alleged that defendants ignored him or provided grossly incompetent care after the fall resulting in permanent paralysis, the context may be closer to Carlson. Even with such allegations, the complaint would likely be insufficient to match the Carlson context. See Egbert, 142 S.Ct. at 1805 (“While Bivens and this case do involve similar allegations of excessive force and thus arguably present almost parallel circumstances or a similar mechanism of injury, these superficial similarities are not enough to support the judicial creation of a cause of action.”). The issue for the Court is whether the Court, rather than Congress, is better equipped to redress the alleged Eighth Amendment violation.
Congress and the Executive branch have drafted a remedial structure to address and deter violations for improper denial of medical care. The BOP has an administrative remedy process and Congress enacted the Federal Tort Claims Act through which plaintiff can bring his negligence action. Cf. id. at 1806-07 (Border patrol grievance procedures sufficient to deter violations and as long as Congress or the Executive branch has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that determination). That the relief may be incomplete is insufficient to allow a Bivens action to go forward. See id. at 1808 (the absence of relief does not by any means necessarily imply that courts should award money damages). Here, plaintiff could have first filed a grievance asserting that his cell placement violated his MDS and if that failed after the required appeal process-he could have then come to this Court seeking an injunction. Moreover, the Rehabilitation Act provide an avenue to deter defendants from failing to accommodate disability. Finally, the FTCA provides an avenue to seek money damages. This Court cannot second guess these avenues to redress the harms alleged by plaintiff in this case and supply a court-made remedy under Bivens.
Finally, Congress has mandated adequate medical facilities for inmates, 18 U.S.C. § 3621(b), and required provision for safekeeping and care. 18 U.S.C. § 4042(a)(2). Given that Congress has legislated in this area, the silence on money damages is significant and determinative of intent. See Ziglar, 137 S.Ct. at 1862. (When Congress fails to provide a damages remedy in circumstances like these, it is much more difficult to believe that inaction was inadvertent.). The Court should decline to recognize a Bivens action in the context alleged in plaintiff's complaint. Accordingly, the Court should grant defendants' motion to dismiss plaintiff's Bivens claims. C. Qualified Immunity
Defendants also seek dismissal asserting plaintiff does not allege sufficient facts supporting the plausible inference that the individual defendants personally engaged in conduct that violated the Constitution. To the extent the Court does recognize a Bivens action, plaintiff should be permitted to amend to more specifically allege each defendant's conduct leading to the alleged constitutional violation.
The individual defendants also seek dismissal based on qualified immunity.
Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection afforded by qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)).
There is generally a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether plaintiff's alleged facts violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001) (receded by Pearson v. Callahan, 555 U.S. 223 (2009) (finding Saucier step beneficial, but not mandatory)). Second, the court must decide whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. Id.
Because Carlson should not be extended to provide a Bivens claim in this case, plaintiff's asserted Eighth Amendment rights were not clearly established such that defendants would be on notice that their conduct violated the Eighth Amendment. Moreover, plaintiff does not allege that any of the defendants failed to respond to a medical emergency, but rather failed to appreciate the risks of inadequate wheelchair accessibility. Thus, while it may be clearly established that failure to treat a serious medical need is a violation of an inmate's Eighth Amendment rights, the facts of this case are such that defendants were not on notice that plaintiff's cell placement was tantamount to a failure to provide necessary medical care. It is also unclear if the individual defendants were even responsible for providing medical care. Accordingly, the Bivens claims should also be dismissed for this reason.
CONCLUSION
Defendants' motion to dismiss (ECF 20) should be granted and plaintiff's Bivens claims, and Rehabilitation Act claim should be dismissed. Defendants' motion for summary judgment (ECF 20) should be denied without prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.