Opinion
C. A. 3:19-3486-MGL-TER
11-22-2022
ALFRED DOMENICK WRIGHT, Plaintiff, v. JOSH LOOMIS, UNKNOWN FEDERAL AGENTS, UNKNOWN UNITED STATES MARSHALS, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge.
This is a civil action filed pro se by Alfred D. Wright (“Plaintiff”/ “Wright”) on December 16, 2019. Plaintiff filed this civil action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that Defendant Loomis violated his rights due to excessive force during an arrest. Plaintiff filed an amended complaint on February 24, 2021, and a second amended complaint on March 16, 2021. Plaintiff currently is housed at the USP Lewisburg in Lewisburg, Pennsylvania. Plaintiff was located in South Carolina at the time of the filing of the alleged claims. This matter currently is before the court on Defendant Loomis's motion for summary judgment filed July 11, 2022. (ECF No. 179). As the Plaintiff is proceeding pro se, the court issued an order on or about July 12, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response in opposition on April 22, 2021. (ECF No. 122). Defendant Loomis filed a reply on April 29, 2021. (ECF No. 126). Plaintiff filed a sur-reply on May 14, 2021. (ECF No. 128).
A Bivens claim is essentially the federal counterpart to a claim brought against a state official pursuant to 42 U.S.C. § 1983. See Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982); Farmer v. Brennan, 511 U.S. 825, 839 (1994); see also Hoffman v. Tuten, 446 F.Supp.2d 455, 459 (D.S.C. 2006) (noting that case law pertaining to § 1983 claims generally applies to Bivens claims). Thus, to establish a claim under Bivens, a plaintiff must 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. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (setting forth requirements for § 1983 claim under color of state law). But see Egbert v. Boule, 142 S.Ct. 1793 (2022) (declining to extend Bivens to a Fourth Amendment excessive force claim). Defendant did not brief the issue asserting that he is entitled to summary judgment in his favor without relying on Egbert but preserved his right to raise an Egbert defense pursuant to Federal Rules of Civil Procedure 12(c) should the court deny his motion for summary judgment. Even without considering if Bivens extends to a Fourth Amendment excessive force case, it is recommended that summary judgment be granted for failure to show personal involvement.
It is recommended that Defendants Unknown Federal Agents and Unknown United States Marshals be dismissed. Plaintiff cannot bring a Bivens claim against a federal official in his or her official capacity. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens action does not lie against either agencies or officials in their official capacity.”). These Defendants remain unnamed by the Plaintiff.
Defendants Griffin, Lexington County Detention Center, and Correct Care Solutions have been dismissed from this action. (ECF Nos. 151 and 161). The claims against Defendant Loomis were dismissed in part. Specifically, Plaintiff's claims against Defendant Loomis with regard to medical indifference, Fourth Amendment violation with regard to search and seizure, and the Bivens claim in his official capacity were dismissed. (ECF No. 156).
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d),DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
Neither the Federal Rules of Civil Procedure nor the Local Rules provide for the ability to file a sur-reply as a matter of right. Therefore, the sur-reply will not be considered.
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
ALLEGATIONS
In the second amended complaint filed March 16, 2021, Plaintiff alleges that on December 6, 2017, he was pulled off of his porch while naked and restrained by agents causing him to incur injuries. Plaintiff asserts that “the initial injury was caused by Josh Loomis and several other agents, due to an unnecessarily injuring of a naked (posed no threat or resistence) Alfred Domenick Wright.” (ECF No. 98 at 5 of 15). Plaintiff alleges injuries to his right ankle with unusual bone growths from a break that healed improperly, a slipped disk in lower back, right shoulder pain, fracture of his right wrist which healed improperly, and has lack of normal mobility. Plaintiff requests damages in the amount of $250,000.00 “[d]ue to crippling and hindering injuries, which will prevent proper work load in my work field, with also including the years of unnecessary pain and suffering.” (ECF No. 98 at 7 of 15).
ANALYSIS
In the second amended complaint, Plaintiff alleges that “[t]he initial injury was caused by Josh Loomis and several other agents, due to an unnecessarily injuring of a naked (posed no threat or resistance) Alfred Domenick Wright. . . Loomis, as the head agent assured Wright that his injuries would be treated at Lex. Co. Det. Ctr.” (ECF No. 98 at 5 of 15). Additionally, Plaintiff alleges again that “Wright was hurt (while restraint and not resisting or threatening) by Loomis and several unknown Federal Agents when Wright was pulled by several agents off his porch and he hit the ground. This injured Wright's right ankle, right wrist, lower back and right shoulder. There is body camera footage available, as well Wright's (at the time) girlfriend, Ebony Sada Morris was there to wittness[sic].” (Id. at 8 of 15).
Defendant's previous motion to dismiss was denied concluding that Plaintiff made sufficient factual allegations as to excessive force with questions that only discovery could reveal thereby surviving the motion to dismiss the claim. (ECF No. 156). Therefore, a scheduling order was entered to allow discovery. Defendant Loomis took the deposition of the Plaintiff.
Defendant Loomis argues that while taking Plaintiff's deposition, Plaintiff testified that “a female agent pulled him down the porch stairs and an African-American male cuffed him at the top of the stairs.” (Loomis citing to Wright's deposition at ECF No. 179-1). Loomis asserts that he is not a female or an African-American. Loomis argues that according to Plaintiff's own testimony at his deposition, there is no dispute that Loomis did not personally use any kind of excessive force, or any force for that matter, in the arrest of Plaintiff. Therefore, Loomis asserts that the court should grant summary judgment.
Plaintiff here has not demonstrated that Loomis personally caused or played a role in causing the deprivation of a federal right. Based on a review of Plaintiff's testimony at his deposition, he fails to provide any facts that show how Defendant Loomis was personally involved in violating his rights by the use of excessive force. A his deposition, Plaintiff testified that an African-American male placed handcuffs on him while at the top of his porch and was behind him. He testified that a female agent put her hand on his shoulder and then he “got pulled and in the process of getting pulled, I slipped, fell, foot got stuck in the step and hit the ground hard.” (ECF 179-1 at 10 of 15). Plaintiff testified that he is not sure if the officer on the porch pushed him down the stairs or not but he remembers getting pulled from the front. Id. Plaintiff testified that when he opened the door to the house and came out on the porch, the African-American male officer “was the only person that was there. As you can see it's not a big porch. He was the only person on the porch, period.” (ECF No. 179-1 at 13 of 15). When asked “what other agents do you remember?”, Plaintiff responded, “I remember a woman and I remember seeing Loomis. I don't know if he was in that - - that's why I keep saying that in the complaint I can't be sure if he was in the initial group that the incident happened from or if he was just right there because I know I met him shortly after. But he was in charge of this whole search. He was the head agent.” (Id. at 8). Plaintiff testified that he came down the stairs face first after remembering the “woman putting her hand on my shoulder and I'm not sure if it was multiple people pulling me, but it's like I was - - because I'm not resisting. I mean I've turned around. . .” (Id. at 9). When asked if the officer on the porch pushed him down the stairs, Plaintiff responded “I'm not sure . . . It's possible, but the main thing I remember is being pulled” (Id. at 10). When asked if he remembered any officers off the porch standing around, Plaintiff responded “absolutely. I want to say there was 20 plus officers at my home that day.” (Id. at 10-11). Plaintiff testified that he did not know Loomis before this alleged incident and the first time he saw Loomis was when he talked to him after being taken into custody. (Id. at 12). Therefore, even though Defendant Loomis was present at the scene of the arrest, Plaintiff testified that a female agent touched his shoulder and he was pulled down the stairs. Id. Plaintiff testified that he remembers talking to Loomis after being taken into custody but does not recall whether or not he was involved in pulling him down the stairs. Thus, the record does not demonstrate any personal involvement on the part of Defendant Loomis with regard to Plaintiff's allegations of excessive force during his arrest. Therefore, it is recommended that summary judgment be granted for Defendant Loomis.
Any claims Plaintiff asserts against Loomis in his capacity as a supervisor fails where there is no allegation or evidence that Loomis was personally involved in, deliberately indifferent to, or tacitly authorized the alleged constitutional violation of Plaintiffs rights. See Wood v. Moss, 572 U.S. 744, 763-64 (2014) (quoting Iqbal, 556 U.S. at 683) (“[Individual government officials ‘cannot be held liable' in a Bivens suit ‘unless they themselves acted [unconstitutionally].”); Baker v. United States, 645 Fed.Appx. 266, 269 (4th Cir. 2016) (citing Wilkins v. Montgomery, 751 F.3d 214, 226-27 (4th Cir. 2014)) (“In order to succeed on a supervisory liability claim under Bivens, a plaintiff may not rely on respondeat superior, but must show ‘that the supervisor had actual or constructive knowledge that her subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff,' and that the supervisor's response showed ‘deliberate indifference to or tacit authorization of the alleged offensive practices,' and caused the plaintiff's injury.”).
In his deposition, Plaintiff refers to the fact that he has asked to see the body camera footage. However, Defendant asserts that “Wright never submitted any request for production to Loomis. Moreover, the events over which Wright complains occurred on December 6, 2017. A Department of Justice Office of Public Affairs headline nearly four years later, on September 1, 2021, reads ‘Justice Department Announces First Federal Agents to Use Body-Worn Cameras.' available at https://www.justice.gov/opa/pr/justice-department-announces-first-federal-agents-use-body-worn-cameras. In any event, Plaintiff has not identified any evidence that supports his claim that body camera footage is available.” (ECF No. 184 at 2). The court docket reflects that Plaintiff filed a motion to compel discovery requests on September 4, 2020 (ECF No. 67) and Defendant Loomis file a response in opposition asserting that Plaintiff had not served any discovery requests upon the Defendants and had no basis to compel them to produce documents. An order was issued on September 25, 2020, denying the motion to compel based on the fact “the court does not enter the discovery process, which is governed by the Federal Rules of Civil Procedure. Plaintiff may seek discovery from the Defendants in accordance with the Federal Rules of Civil Procedure. See Rules 26 through 37, 45 generally.” (ECF No. 73).
Any attempt by Plaintiff to argue in his reply that Defendant Loomis was involved based on a failure to protect, fails. See Bulger v. Hurwitz, No. 3:20-cv-00206, 2022 WL 340594 at *3, 2022 U.S. Dist. LEXIS 21833 at *7 (N.D. W.Va. Jan. 12, 2022) (concluding that “failure to protect and failure to intervene claims are not cognizable under Bivens”). It is noted that this issue is currently on appeal in the Fourth Circuit. See Tate v. Harmon, No. 7:19-CV-00609, 2020 WL 7212578, (W.D. Va. Dec. 7, 2020) (Appeal filed by Raymond Tate v. D.J. Harmon, 4th Cir., January 21, 2021). Additionally, it does not appear that Plaintiff raised a claim for failure to protect in his second amended complaint.
As the court recommends summary judgment be granted for Defendant Loomis on the basis of a lack of personal involvement, the court need not address Defendant's remaining arguments.
CONCLUSION
Based on the above reasoning, it is recommended that the motion for summary judgment filed by Defendant Loomis (ECF No. 179) be granted and this action dismissed. Further, it is recommended that Defendants Unknown Federal Agents and Unknown United States Marshals be dismissed.
The parties' attention is directed to the important notice on the next page.