Opinion
Case No. 8:20-cv-01063-HMH-JDA
03-02-2021
Timothy W. Arthur formerly 31255-171, Plaintiff, v. Ms M. Hawks, RN; Officer Patina Walton-Battle; Warden S. W. Phelps; H. Lopez, Physician; Officer A. Alicia-Rodriguez; Officer L. Newcomb, HSA Medical Services, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss, or in the alternative, for summary judgment filed by Defendants. [Doc. 39.] Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review such petitions for relief and submit findings and recommendations to the District Court.
Plaintiff, proceeding pro se, filed this action on February 24, 2020, alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). [Doc. 1.] On October 27, 2020, Defendants filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 39.] The next day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Docs. 40.] The Clerk docketed a response from Plaintiff opposing the motion on January 19, 2021. [Doc. 50.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on February 24, 2020. [Doc. 1 at 18 (Complaint signed by Plaintiff on February 24, 2020).]
BACKGROUND
At the time Plaintiff filed this action, he was incarcerated at the Edgefield Federal Correctional Institution ("FCI Edgefield"). [Doc. 1 at 3.] Plaintiff filed this action pro se, alleging that Defendants Hawkes and Walton-Battle refused to provide him prescriptions based on his then-current diagnosis and medical history while he was at FCI Edgefield, that Defendant Lopez oversaw health services at FCI Edgefield, and that S.W. Phelps handled his grievance. [Id. at 6.] Defendant Alicea-Rodriguez was a therapist at FCI Edgefield's psychology department. [Id. at 5.] Plaintiff claims that Defendants' conduct violated his rights under the Eighth Amendment to the United States Constitution. [Id. at 6.] Plaintiff also alleges that he is a disabled person and that Defendants' conduct violated his rights under the Americans with Disabilities Act and the Rehabilitation Act of 1973, § 504. [Id. at 7-8.]
The caption notwithstanding, the Court uses the spelling names of Defendants Hawkes and Alicea-Rodriguez that these Defendants use in their declarations. [Docs. 39-2; 39-6.]
For his injuries, Plaintiff alleges that he has experienced pain and suffering and heightened mental disorders and that he did not receive a needed CPAP and was not provided adequate sleeping arrangements to accommodate his severe spinal and radiculopathy conditions. [Id. at 8.] For his relief, Plaintiff seeks monetary damages. [Id.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. The mandated liberal construction means only that if the Court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Requirements for a Cause of Action Under Bivens
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. 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. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must prove 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) (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 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.").
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
DISCUSSION
Defendants argue that they are entitled to summary judgment because Plaintiff has not properly exhausted his claims against them. [Doc. 39 at 12-15.] The Court agrees.
The Prison Litigation Reform Act ("PLRA") provides, in pertinent part, that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is an affirmative defense; a prisoner need not plead exhaustion in his complaint. Jones v. Bock, 549 U.S. 199, 216 (2007). However, to survive a motion for summary judgment asserting a failure to exhaust, a prisoner is required to produce in response to the motion that refutes the claim that he failed to exhaust. Hill v. Haynes, 380 F. App'x 268, 270 (4th Cir. 2010)
That Plaintiff was released from custody after filing this action has no bearing on the applicability of the PLRA's exhaustion requirement, it is his status at the time he filed his Complaint that controls the PLRA's applicability. Cofield v. Bowser, 247 F. App'x 413, 414 (4th Cir. 2007); Cabbagestalk v. Ozmint, No. 9:06-3005-MBS, 2007 WL 2822927, at *1 (D.S.C. Sept. 27, 2007).
Exhaustion is defined by each prison's grievance procedure, not the PLRA; a prisoner must comply with his prison's grievance procedure to exhaust his administrative remedies. Jones, 549 U.S. at 218. "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules . . . ." Woodford v. Ngo, 548 U.S. 81, 90 (2006).
The Bureau of Prison's Administrative Remedy Program is found at 28 C.F.R. §§ 542.10 through 542.19. The grievance process consists of three levels of review: institutional, regional, and national. See id. First, an inmate must seek to informally resolve any complaint relating to his confinement. Id. § 542.13. Next, if the complaint cannot be resolved informally, the inmate may file a formal written complaint with the institution's warden; complaints must be filed within twenty days of the incident giving rise to the complaint. Id. § 542.14. Then, if the inmate is dissatisfied with the response, he may appeal to the Regional Director; appeals to the Regional Director must be submitted within twenty days of the date the warden signed his response. Id. § 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director's response, the inmate may appeal to the General Counsel; appeals to the General Counsel must be submitted within thirty days of the date the Regional Director signed his response. Id.
In this case, the record reflects that Plaintiff filed only a single request to staff—complaining of negligent medical care concerning sleep apnea and lumbar conditions—and he received a response from the warden. [Doc. 1-2 at 11-12.] However, that is only the first step, which precedes the administrative grievance process. 28 C.F.R. § 542.13. Plaintiff did not follow up this informal resolution attempt by then filing a written complaint to the warden, nor did he exhaust the subsequent appeals process. [Doc. 39-8 ¶ 5.] And Plaintiff has not shown that these administrative remedies were not available to him for purposes of the PLRA's exhaustion doctrine.
As the Court has stated, to survive a motion for summary judgment asserting he failed to exhaust, an inmate is required to produce competent evidence to refute the contention that he failed to exhaust. See Hill, 380 F. App'x at 270. Plaintiff has failed to meet his burden with regard to any of his claims. Accordingly, Defendants are entitled to summary judgment because of Plaintiff's failure to exhaust his administrative remedies.
Even if Plaintiff had exhausted his administrative remedies, Defendants would have been entitled to dismissal of his official-capacity Bivens claims and claims under the Rehabilitation Act. Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (declining to extend a Bivens remedy to federal agencies); see also Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (noting "a Bivens action does not lie against either agencies or officials in their official capacity"). The same is true of actions under the Rehabilitation Act. Nolan v. Hamidullah, No. 4:07-1141-JFA-TER, 2009 WL 2982746, at *5 (D.S.C. Sept. 10, 2009). And Defendants are entitled to summary judgment on Plaintiff's ADA claims as well because "[i]t is well established that the ADA does not apply to the federal government, its agencies, or employees." Hopper v. Federal Bureau of Prisons, No. 5:18-cv-01223-MGL-KDW, 2018 WL 3750553 (D.S.C. July 5, 2018), Report and Recommendation adopted by 2018 WL 3938076 (D.S.C. Aug. 7, 2018). Because the undersigned concludes that Defendants are entitled to summary judgment for the reasons discussed, the Court declines to address Defendants' additional alternative arguments in support of its motion.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion to dismiss, or in the alternative, for summary judgment [Doc. 39] be GRANTED.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge March 2, 2021
Greenville, South Carolina