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finding that plaintiff s COVID-19 prison conditions claim arose in a new Bivens context
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No. CV 20-00491-TUC-RCC
2021-01-26
Joshua Aaron CAREY, Plaintiff, v. Warden B. VON BLANCKENSEE, et al., Defendants.
Joshua Carey, Tucson, AZ, pro se.
Joshua Carey, Tucson, AZ, pro se.
ORDER
Raner C. Collins, Senior United States District Judge
On November 6, 2020, Plaintiff Joshua Aaron Carey, who is confined in the United States Penitentiary-Tucson (USP-Tucson) in Tucson, Arizona, filed a pro se civil rights Complaint (Doc. 1) pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In a November 12, 2020 Order, the Court gave Plaintiff thirty days to either pay the filing and administrative fees or file a complete Application to Proceed In Forma Pauperis.
On December 16, 2020, Plaintiff filed a "Verified Motion for Assistance and Order From the Court." In a December 23, 2020 Order, the Court partially granted the Verified Motion and gave Plaintiff thirty days to either pay the filing and administrative fees or file an Application to Proceed In Forma Pauperis. On January 4, 2021, Plaintiff filed an Application to Proceed In Forma Pauperis (Doc. 6). The Court will grant the Application to Proceed, dismiss Count Two of the Complaint, and order Defendants to answer Count One.
I. Application to Proceed In Forma Pauperis and Filing Fee
The Court will grant Plaintiff's Application to Proceed In Forma Pauperis. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will assess an initial partial filing fee of $31.83. The remainder of the fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)–(2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681, 129 S.Ct. 1937.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] ‘must be held to less stringent standards than formal pleadings drafted by lawyers.’ " Id. (quoting Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam)).
III. Complaint
In his two-count Complaint, Plaintiff names as Defendants USP-Tucson Complex Warden B. Von Blanckensee and Associate Warden M. Segal. In his Request for Relief, he seeks declaratory and injunctive relief, monetary damages, and his costs and attorney's fees.
In Count One , Plaintiff alleges he was subjected to a threat to his safety, in violation of his Eighth Amendment rights. He contends that in March 2020, the Centers for Disease Control and the Bureau of Prisons advised Defendants that the Coronavirus Disease 2019 (COVID-19) was "at the prison door steps and what[ ] steps were to be taken to [ ]ensure staff entering the facility daily[ ] did not bring the deadly disease in[ ]to inmates at USP/Tucson." Plaintiff asserts Defendants "chose to ignore [those] steps" and did "nothing[,] allowing a multitude of staff to enter the prison and to have full access to all inmates throughout USP/Tucson." Plaintiff contends that in July 2020, Defendants had "all inmate workers" moved to one unit in the prison, tested these inmate workers for COVID-19, but did not test inmates in other units and then allowed the inmate workers to have full access to all the units, inmates, and staff at USP-Tucson. He also claims that from late July through October 15, 2020, inmates who complained that they were sick and had known symptoms of COVID-19, such as fevers, chills, headaches, vomiting, and diarrhea, were ignored, and no medical treatment was provided.
Plaintiff alleges inmate Mulligain "advised he was si[ck]" on October 19, 2020, and tested positive for COVID-19 two days later. Plaintiff claims his cellmate was complaining of COVID-19 symptoms similar to those inmate Mulligain had experienced, but "nothing was done." On October 22, 2020, Plaintiff and his cellmate were given rapid COVID-19 tests. Plaintiff contends he tested negative, but his cellmate tested positive for COVID-19. Plaintiff alleges Defendants then had Plaintiff's cellmate placed back in the cell with Plaintiff, despite knowing the cellmate had tested positive for COVID-19 and Plaintiff had tested negative. He claims Defendants kept the two individuals in the same cell for eight days, during which Plaintiff was infected by his cellmate. Plaintiff asserts medical staff told him on October 31, 2020, that he had tested positive for COVID-19. Plaintiff states that he is experiencing chest pains, fever, chills, headaches, diarrhea, an inability to "breath[e] freely," and an inability to "keep food down."
Plaintiff contends Defendants failed to immediately separate him from a known COVID-19 positive inmate and allowed the inmate to infect him. He asserts this constitutes deliberate indifference. Plaintiff also alleges he became sick because of Defendants’ inaction, claiming Defendants were deliberately indifferent because of their "knowledge of issues and persistent failure to reasonably respond to complaints and inmate [ ]symptoms[ ] and failure to take p[re]cautions."
In Count Two , Plaintiff alleges Defendant Segal is denying him access to the courts. He claims that on October 22, 2020, Defendant Segal discontinued allowing Plaintiff to purchase stamps or writing materials to use to access the courts and "completely disallows [Plaintiff from having access to the] law library[ ] and to call attorneys or any legal visits." Plaintiff asserts he is "completely shut off to litigate these non-frivolous issues, staff refuse to make legal copies [or] to mail out legal mail to courts or attorneys," and Defendant Segal "has instructed [the prison] counselor NOT to issue administrative remedies." He claims this has "completely shut access to the courts" and caused a "delay of non-frivolous issues."
IV. Discussion
Although pro se pleadings are liberally construed, Haines v. Kerner , 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), conclusory and vague allegations will not support a cause of action. Ivey v. Bd. of Regents , 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled. Id.
A. Count One – Threat to Safety
Liberally construed, Plaintiff has stated an Eighth Amendment threat-to-safety claim in Count One against Defendants Von Blanckensee and Segal. As explained below, the Court will require Defendants Von Blanckensee and Segal to answer the portion of Count One seeking injunctive relief, but will dismiss the portion of Count One seeking monetary damages.
1. Damages
In Bivens , the Supreme Court recognized an implied cause of action for damages for persons injured by federal officers who violated the Fourth Amendment prohibition against unreasonable searches and seizures. In Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017), the Supreme Court cautioned that "expanding the Bivens remedy is now a ‘disfavored’ judicial activity" and set forth a two-part test to determine whether a Bivens claim may proceed. 137 S. Ct. at 1857 (quoting Iqbal , 556 U.S. at 675, 129 S.Ct. 1937 ). A court first must consider whether the claim at issue extends Bivens in a new context from previously established Bivens cases, and, if so, a court must then apply a "special factors analysis" to determine whether there are "special factors counselling hesitation" in expanding Bivens . Id. at 1857, 1859-60.
a. Plaintiff's Threat-to-Safety Claim Extends Bivens in a New Context
It is immaterial whether this Court, the Ninth Circuit Court of Appeals, or other district and appellate courts have recognized a particular Bivens claim; the Supreme Court has clearly stated that "[t]he proper test for determining whether a case presents a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court , then the context is new." Id. at 1859 (emphasis added).
The Supreme Court explained that
[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.
Id. at 1860. This list is not exhaustive, and the "new-context inquiry is easily satisfied." Id. at 1865.
After Bivens , the Supreme Court has only recognized a Bivens damages remedy under the Fifth Amendment Due Process Clause by an administrative assistant who claimed a Congressman had discriminated against her because of her sex, Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and under the Eighth Amendment prohibition against cruel and unusual punishment by a prisoner who claimed federal prison officials had failed to treat his asthma, Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). "These three cases—Bivens, Davis , and Carlson —represent the only instances in which the [Supreme] Court has approved of an implied damages remedy under the Constitution itself." Ziglar , 137 S. Ct. at 1855.
Although the Supreme Court may have assumed for analytical purposes that a Bivens cause of action exists under the Eighth Amendment for failing to protect an inmate, see Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), it has never specifically concluded that such a cause of action exists. Thus, Plaintiff's Eighth Amendment claim arises in a new context because it is substantially and meaningfully different from the three types of cases in which the Supreme Court has recognized a Bivens remedy. See Schwarz v. Meinberg , 761 F. App'x 732, 734 (9th Cir.) (Eighth Amendment conditions-of-confinement claim "presents a new Bivens context"), cert. denied , ––– U.S. ––––, 140 S. Ct. 468, 205 L.Ed.2d 278 (2019) ; Smith v. Shartle , 2019 WL 2717097, at *2-3 (D. Ariz. June 28, 2019) (claim that wardens failed to create a policy that protected sex offenders from other inmates presents a new Bivens context); see also Dudley v. United States , 2020 WL 532338, at *6 (N.D. Tex. Feb. 3, 2020) (Eighth Amendment claim for failing to protect inmate from "abuse, threats, and harassment from both officers and inmates, presents a new Bivens context"); Hoffman v. Preston , 2020 WL 58039, at *2 (E.D. Cal. Jan. 6, 2020) ("Plaintiff's Eighth Amendment failure-to-protect claim is a new Bivens context."); Michelson v. Duncan , 2018 WL 4474661, at *4 (W.D.N.C. Sept. 18, 2018) (claim alleging failure-to-protect from physical assault was new Bivens context); but see Bistrian v. Levi , 912 F.3d 79, 90-92 (3d Cir. 2018) (prisoner's failure-to-protect claim did not present a new Bivens context in light of Farmer ).
b. The Court Declines to Find an Implied Cause of Action Under Bivens For Plaintiff's Threat-to-Safety Claim
If the claim at issue extends Bivens in a new context, a court must analyze whether there are "special factors counselling hesitation" in expanding Bivens . Ziglar , 137 S. Ct. at 1857. When performing the special-factors analysis, courts must consider " ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?" Id. (quoting Bush v. Lucas , 462 U.S. 367, 380, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) ). "The answer most often will be Congress. When an issue ‘involves a host of considerations that must be weighed and appraised,’ it should be committed to ‘those who write the laws’ rather than ‘those who interpret them.’ " Id. (quoting Bush , 462 U.S. at 380, 103 S.Ct. 2404 ).
In conducting the special factors inquiry, the court "must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Id.
[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system of enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.
Id. at 1858. This requires courts to assess the impact on governmental operations systemwide, including "the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself ...." Id.
"Congress has been active in the area of prisoners’ rights, and its actions do not support the creation of a new Bivens claim." Buenrostro v. Fajardo , 2017 WL 6033469, at *3 (E.D. Cal. 2017), aff'd sub nom. Luis Buenrostro v. Fajardo , 770 F. App'x 807 (9th Cir. 2019). Congress passed the Prison Litigation Reform Act ("PLRA"), which "suggests that Congress does not want a damages remedy, which is itself a factor counseling hesitation." Rager v. Augustine , 2017 WL 6627416, at *18 (N.D. Fla. 2017), report and recommendation adopted , 2017 WL 6627784 (N.D. Fla. 2017) ; see also Luis Buenrostro v. Fajardo , 770 F. App'x at 808 ("special factors counsel against extending Bivens ...; for example, Congress has addressed the question of prisoners’ remedies in the Prison Litigation Reform Act."). Indeed, the Supreme Court noted:
Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy
those wrongs.... [T]he Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.
Ziglar , 137 S. Ct. at 1865 (citation omitted).
Additionally, "if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action." Ziglar , 137 S. Ct. at 1858. "[W]hen alternative methods of relief are available, a Bivens remedy usually is not." Id. at 1863. Plaintiff has alternative remedies available to him because, at a minimum, the Bureau of Prisons has established an administrative remedy process permitting an inmate to seek review of an issue relating to "any aspect of his/her own confinement." 28 C.F.R. § 542.10(a). See Vega v. United States , 881 F.3d 1146, 1154 (9th Cir. 2018) (finding the plaintiff had alternative means of relief under 28 C.F.R. §§ 541.7 and 542.10(a) ); see also Ziglar , 137 S. Ct. at 1865 ("And there might have been alternative remedies available here, for example, a writ of habeas corpus, an injunction requiring the warden to bring his prison into compliance with the regulations discussed above; or some other form of equitable relief."); Schwarz , 761 F. App'x at 734-35 (alternative remedies under the FTCA, PLRA, or through injunctive remedies).
Based on special factors that counsel hesitation and the existence of alternative remedies, the Court declines to find an implied Bivens cause of action for Plaintiff's failure-to-protect claim. Accordingly, the Court will dismiss Plaintiff's damages claim in Count One.
2. Injunctive Relief
" Section 1331 [, 28 U.S.C.,] provides jurisdiction for the exercise of the traditional powers of equity in actions arising under federal law. No more specific statutory basis is required." Simmat v. United States Bureau of Prisons , 413 F.3d 1225, 1232 (10th Cir. 2005) ; see also Bell v. Hood , 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939 (1946) (recognizing the "jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution"). Accordingly, although Plaintiff cannot seek monetary damages pursuant to Bivens for the failure-to-protect/threat-to-safety claim in Count One, he may still seek injunctive relief pursuant to 28 U.S.C. § 1331. The Court will therefore require Defendants Von Blanckensee and Segal to answer the injunctive relief claim in Count One.
B. Count Two – Access to Courts
Prisoners have a right under the First and Fourteenth Amendments to litigate their claims "without active interference by prison officials." Silva v. Di Vittorio , 658 F.3d 1090, 1103 (9th Cir. 2011) (emphasis in original), overruled on other grounds as stated in Richey v. Dahne , 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). The right of access to the courts is only a right to bring petitions or complaints to federal court and not a right to discover such claims or even to ligate them effectively once filed with a court. Lewis v. Casey , 518 U.S. 343, 354, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The right "guarantees no particular methodology but rather the conferral of a capability–the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts." Id. at 356, 116 S.Ct. 2174.
As a matter of standing for an access-to-courts claim, a plaintiff must show that he suffered an "actual injury"—i.e., "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim." Id. at 348, 116 S.Ct. 2174 (citation omitted); see also Davis v. Goord , 320 F.3d 346, 352 (2d Cir. 2003) ("Mere ‘delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation.’ ") (citations omitted); cf. Silva , 658 F.3d at 1104 (actual injury alleged where plaintiff claimed pending lawsuits had been dismissed as the result of defendants’ actions). A prisoner must demonstrate that defendants’ conduct frustrated or impeded him from bringing to court a nonfrivolous or arguable claim he wished to present. Lewis , 518 U.S. at 353 and n.3, 116 S.Ct. 2174.
However, "the injury requirement is not satisfied by just any type of frustrated legal claim." Id. at 354, 116 S.Ct. 2174. The right of access to the courts "does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." Id. at 355, 116 S.Ct. 2174. The nonfrivolous claim must be a direct or collateral attack on the inmate's sentence or a challenge to the conditions of his confinement. Id. "Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration." Id. (emphasis in original).
Plaintiff has failed to state an access-to-courts claim because he has not alleged that he has suffered an actual injury as the result of being prevented from purchasing stamps and writing supplies and having copies made, from being able to call an attorney, or from having access to the legal library. Although Plaintiff makes the conclusory statement that he has been prevented from litigating a non-frivolous claim, Plaintiff does not describe the claim, when he attempted to file such claim, or what specific actions by Defendant Segal prevented him from filing the claim. The Court will dismiss Count Two for failure to state a claim.
V. Warnings
A. Release
If Plaintiff is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
C. Copies
Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet , 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED:
(1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 6) is granted .
(2) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $31.83.
(3) Count Two is dismissed without prejudice.
(4) Defendants Von Blanckensee and Segal must answer Count One.
(5) The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and summons forms for Defendants Von Blanckensee and Segal.
(6) Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
(7) If Plaintiff does not complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m) ; LRCiv 16.2(b)(2)(B)(ii).
(8) The United States Marshal must retain the Summons, a copy of the Complaint, and a copy of this Order for future use.
(9) The United States Marshal must for the individual Defendants Von Blanckensee and Segal, personally serve a copy of the Summons, Complaint, and this Order at Government expense, pursuant to Rule 4(e)(2) and (i)(3) of the Federal Rules of Civil Procedure.
(10) Upon receipt of the service packet, the Clerk of Court must send by certified mail a copy of the Summons for each individual Defendant, the Complaint, and this Order to (1) the civil process clerk at the office of the United States Attorney for the District of Arizona and (2) the Attorney General of the United States, pursuant to Rule 4(i)(1) of the Federal Rules of Civil Procedure.
(11) Defendants must answer Count One of the Complaint or otherwise respond by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure.
(12) Any answer or response must state the specific Defendant by name on whose behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed.