Opinion
3:20-cv-181-SLH-KAP
02-23-2024
VICTOR DARNELL THOMAS, Plaintiff, v. R.N. MARTYNUSKA, Medical Contractor, F.C.I. Loretto, et al., Defendants
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto United States Magistrate Judge
Defendants' motion at ECF no. 49 to dismiss plaintiff's complaint, considered in part as a motion for summary judgment, should be granted.
Report
Plaintiff Thomas filed a complaint subject to the Prison Litigation Reform Act dated August 26, 2020, when he was an inmate at F.C.I. Berlin, alleging nine causes of action, most of which were based on complaints about the adequacy of Thomas' medical treatment from July to September 2018, when he was an inmate at F.C.I. Loretto. Thomas amended the complaint several times: the version that is operative is the third amended complaint (Complaint) at ECF no. 23. It alleges that Thomas had episodes of epididymitis in 2006, 2012 and 2013, while serving his sentence in other prisons. Complaint ¶¶ 20, 23, 24. Thomas came to Loretto in 2016, and had another attack of epididymitis in July 2018. Despite Thomas' description of it as similar to his previous attacks (and medical records available to defendants) Thomas was initially diagnosed as having a simple urinary tract infection. Complaint ¶¶ 34-35. Thomas was prescribed antibiotics for two weeks, but after a second urinalysis on August 5, 2018, was not given any more antibiotics. Complaint ¶ 38. On September 2, 2018, Thomas found himself in extreme pain. Fellow inmates attracted the attention of prison personnel who were allegedly skeptical of, to disbelieving of, Thomas's complaints. After Thomas vomited his breakfast on corrections officers, Thomas was taken to the nearest outside hospital in “septic shock,” where he was treated for 25 days. Complaint, Preliminary Statement and ¶¶ 38-40. Thomas seeks compensatory damages for his past pain and suffering, and both compensatory and injunctive relief for what he alleges are permanent injuries. Because Thomas is no longer an inmate and there is no reasonable claim that these defendants will ever again be responsible for his medical care, Thomas has no standing to seek injunctive relief against them. Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir. 2019), citing City of Los Angeles v. Lyons, 461 U.S. 95, 111-12 (1983).
All of Thomas' damages claims are based on the assumed existence of causes of action directly against federal employees or agents by analogy with the claim recognized by the Supreme Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which authorized a damages action against federal officials for violations of the Fourth Amendment. After I screened the operative version of the complaint under the PLRA and the Court reviewed Thomas' objections, what was left was a claim of deliberate indifference to Thomas' serious medical needs against defendants Swindell, Martynuska, and Robinson based on the alleged inadequacy of care provided to Thomas in the summer of 2018, and an excessive use of force claim and a retaliation claim against defendant Robinson, based on an alleged single punch thrown by Robinson that was accompanied by racist verbal abuse while Robinson and Thomas were alone awaiting Thomas' transport to the hospital on September 2, 2018. Complaint ¶40. See ECF no. 33.
Once the remaining defendants were served, they filed the pending motion to dismiss at ECF no. 49, with a Brief at ECF no. 50 that had an attachment that belonged to another case, and Thomas' medical records at ECF no. 51. Counsel for the defendants filed a corrected Brief at ECF no. 52. I advised the parties that I intended to treat the motion where appropriate as a motion for summary judgment. ECF no. 53. Thomas' timely response to the motion, at ECF no. 54, was a “Motion to Strike Defendant's Errata ...” alleging that the defendants' correction of their clerical error violated Fed.R.Civ.P. 30. Thomas made no argument in opposition to the substance of the defendants' motion.
Defendants' arguments can be summed up as follows: 1) Thomas' causes of action have been gutted by the Supreme Court's decision in Egbert v. Boule, 596 U.S. 482, 486 (2022), that there is no Bivens claim for retaliation and that “in all but the most unusual circumstances” courts should not extend Bivens to new contexts; and 2) defendants are protected by qualified immunity, both because (a) the lack of any Bivens claim necessarily means defendants could not violate “clearly established” law, a necessary element to expose them to damages liability, see Reichle v. Howards, 566 U.S. 658, 664 (2012), and because (b)(1) as a matter of fact the medical department at F.C.I. Loretto was actively treating Thomas at all times relevant to the Eighth Amendment deliberate indifference claims and the alleged inadequacy of defendants' treatment does not rise to the level of a Bivens claim and (b)(2) the alleged excessive use of force was not a matter that would rise to the level of a Bivens claim.
The PLRA requires me to consider “at any time” whether the defendants are immune. “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012). A qualified immunity analysis involves two questions: whether the official violated a statutory or constitutional right, and whether that right was clearly established at the time of the challenged conduct. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). That does not require a case directly on point, but does require that “existing precedent must have placed the statutory or constitutional question beyond debate,” al-Kidd, 563 U.S. at 741, when the “violative nature of particular conduct” is considered. al-Kidd, 563 U.S. at 742 (my emphasis). The inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition,” Mullenix v. Luna, 577 U.S. 7, 12 (2015), so that government officials can reasonably anticipate when their conduct may give rise to liability.
There is no doubt that a First Amendment retaliation claim does not exist after Egbert v. Boule. The Supreme Court clearly held in Egbert v. Boule, despite not overruling Bivens or the other two Supreme Court cases after Bivens directly implying tort claims from the Bill of Rights, see Davis v. Passman, 442 U.S. 228 (1979)(employment discrimination, Fifth Amendment), Carlson v. Green, 446 U.S. 14 (198o)(deliberate indifference to serious medical needs, Eighth Amendment), that lower courts are not to imply Bivens claims if “there is a rational reason to think that” Congress should decide whether a damages remedy is available, and that means there is no Bivens claim “in most every case.” Egbert v. Boule, 596 U.S. at 492. The Supreme Court drove the point home by stating: “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert v. Boule, 596 U.S. at 498. Any retaliation claim based on Robinson's alleged conduct does not have a remedy in this court.
Egbert v Boule forecloses a Bivens excessive force claim as well. “On its face” it is rational to think Congress should and does regulate the liability of federal employees, and “as applied” the Executive branch has in fact created a remedial process in the Bureau of Prisons' Administrative Remedy Program that it finds adequate. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022). At the very least, the lack of a clearly established Bivens claim means that Robinson's alleged use of force, a single punch causing no alleged injury beyond the affront to human dignity that occurs whenever a public official takes advantage of a position of authority to demean a person by physical abuse, does not have a remedy in this court.
It is less certain that Egbert v Boule forecloses all Bivens deliberate indifference claims created in Carlson v. Green, 446 U.S. 14 (1980). Carlson v. Green expressly paralleled the Section 1983 claim created in Estelle v. Gamble, 429 U.S. 97 (1976), which very much continues to exist. As the defendants cite, however, lower courts around the country have been dismissing Bivens complaints about inadequate care in federal prisons since Egbert v. Boule, because any such claim would be a forbidden extension of Bivens to a new context if the facts alleged differ in nature and severity from the cascading tragedy of indifference alleged in Carlson v. Green. See e.g. Lu v. Kwon, 660 F.Supp.3d 977 (D. Haw.2023). I am less convinced that the rules for medical care liability in federal prison have been rewritten so divergently from those applying to state prisons, but if the strong interpretation of Egbert v. Boule urged by defendants applies Thomas has no claim because his claim does not parallel Carlson v. Green.
Almost no medical care claim I have seen parallels Carlson v. Green. In Carlson v. Green, defendants disregarded a treating physician's recommendation that an asthmatic inmate be transferred, and when the inmate went to the prison hospital with an asthmatic attack, he was not seen by a doctor for eight hours, the non-licensed nurse in charge left the inmate to distribute medication elsewhere, and on returning attempted to use a broken respirator and administered two doses of a drug contraindicated for an asthmatic attack. When that caused respiratory arrest, defendants attempted to use a defibrillator they did not know how to operate before taking the inmate to a hospital, where he was pronounced dead.
Even if only a weak interpretation of Egbert v. Boule applies, however, Thomas has no claim, and if he did it would not survive summary judgment. Thomas, though adding his characterizations of defendants' bedside manner, competence, and motivations, acknowledges in the complaint itself (and for purposes of summary judgment does not offer anything to refute the defendants' proffered medical records as a partial record of his treatment at Loretto) that he was seen on multiple occasions between July and September 2018 for his complaints of pain, that he was treated for a urinary tract infection, including with pain medication, and that on September 2, 2018, he was sent to an outside hospital in a matter of hours after reporting a crisis and received extensive treatment there for his epididymitis.
I expressly add, as an additional basis for summary judgment, that Thomas has defaulted any claim by not opposing defendants' motion in any proper way. It has been a settled rule for decades, see Lunderstadt v. Colafella, 885 F.2d 66, 78 (3d Cir. 1989), and there is no special exception for persons proceeding pro se, that to preserve an argument (particularly one based on an issue of fact) a party must actually present it, and where appropriate the argument must be supported with citations to the authorities and the record. Rowe v. Roberts, No. 21-1489, 2022 WL 964005, at *1 (3d Cir. Mar. 30, 2022), cert. denied, 143 S.Ct. 2439 (2023), citing inter alia Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017). See also Rufo v. Fox, No. 213318, 2022 WL 16646689, at *2 (3d Cir. Nov. 3, 2022). Thomas fails to make any argument, legal or factual, why his claim is one of the rare Bivens claims that can exist under Carlson v Green after Egbert v. Boule, or why defendants would not be immune in light of the “specific context,” Mullenix v. Luna, supra, of this case.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).