Opinion
C. A. 4:22-3101-HMH-TER
10-25-2022
Ulysses Williams, #06296-025, Plaintiff, v. Warden Janson, C. Jones, A/W Operations, C. Mayson, Facilities Supervisor, Ms. Newcomb, Health Services Administrator, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III, MAGISTRATE JUDGE
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding that the action “fails to state a claim on which relief may be granted,” “is frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). The requirement of liberal construction does not mean that 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) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges that he brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). On September 22, 2022, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. The court specifically pointed to said deficiencies. (ECF No. 6). Plaintiff filed an Amended Complaint but failed to cure deficiencies. (ECF No. 14).
Plaintiff has not indicated that he is seeking to pursue an FTCA claim and was previously informed of requirements to garner jurisdiction under the FTCA. (ECF No. 6). Even if Plaintiff was seeking relief under the FTCA, he must have filed an administrative claim directly with the appropriate agency and obtain a final ruling. The exhaustion requirement under the FTCA is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990). Moreover, the United States is the only proper defendant in a FTCA claim. See 28 U.S.C. § 1346(b)(1) ; see 28 U.S.C. § 2679(b)(1) (personal capacity suits against employees are not cognizable under the FTCA). Here, Plaintiff did not indicate that he filed an administrative claim with the proper agency or sue a proper party under the FTCA.
Plaintiff alleges he is pursuing two claims for monetary damages. (ECF No. 14). First, Plaintiff alleges he is pursuing a conditions of confinement claim for 35 days in a cell flooded with feces. Bivens “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eight Amendments only in certain contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979); Ziglar v. Abbasi, 198 L.Ed.2d 290, 137 S.Ct. 1843, 1859 (2017). The Supreme Court has not recognized an implied cause of action under Bivens for alleged violations of the Eighth or Fourteenth Amendment based on conditions of confinement claims. Other courts also have found a Bivens cause of action does not exist for a conditions of confinement claim. Bulger v. Hurwitz, No. 3:20-CV-206, 2022 WL 340594, at *6 (N.D. W.Va. Jan. 12, 2022)(collecting cases). Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff's conditions of confinement claim is subject to summary dismissal.
Plaintiff alleges after he slipped and fell, “medical staff” did nothing for his pain and only did an x-ray; Plaintiff thinks he needs an MRI. (ECF No. 9 at 6). Plaintiff makes no personal allegations as to the Defendants and this claim. Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Moreover, mere negligence, mistake or difference of medical opinion in the provision of medical care to prisoners do not rise to an Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Lee v. Downs, 470 F.Supp. 188, 192 (E.D. Va. 1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976)(“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”) Plaintiff has failed to state a claim upon which relief may be granted.
A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under § 1983, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 & n.30 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988) (abrogated on other grounds in Johnson v. Jones, 515 U.S. 304 (1995)).
Further, all Defendants named are in supervisory positions(Warden, Assistant Warden, Facilities Supervisor, and Health Services Administrator) and Plaintiff only alleges he sent grievances/messages to them and they did not respond. (ECF No. 9 at 10). To the extent Plaintiff sues the warden and other figures in authority under Bivens because they are supervisors over others, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009)(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). Bivens is not designed to hold officers responsible for acts of their subordinates. Ziglar v. Abbasi, 137 S.Ct. 1843, 1860 (2017). See also Green v. Beck, No.12-7279, 2013 WL 4517028, *2 (4th Cir. Aug.27, 2013) (failure of supervisor to respond to inmate grievance, without additional personal involvement in grieved situation, not sufficient to establish supervisor's liability).
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action with prejudice and without issuance and service of process.
It is recommended that this action be dismissed without further leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
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 2317
Florence, South Carolina 29503
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).