Opinion
C/A 8:20-cv-01377-MGL-JDA
12-10-2021
Marcos Padilla Chavez, Plaintiff, v. Christopher Davis, Holly Harrell, Defendants.
AMENDED REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on a motion to dismiss or, in the alternative, for summary judgment filed by Defendants. [Doc. 78.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff brought this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 1.] On August 25, 2021, Defendants filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. [Doc. 78.] By Order of this Court the same day pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Doc. 79.] The time for a response from Plaintiff to Defendants' motion has expired [Doc. 82], and the motion is now ripe for review. 1
BACKGROUND
At the time Plaintiff brought this action, he was a prisoner at Williamsburg Federal Correctional Institution ("FCI Williamsburg"). [Doc. 1 at 2.] Plaintiff alleges that "Doctor Christopher Davis . . . misdiagnosed [Plaintiff's] condition on several occa[s]ions, and implemented cheaper forms of treatment." [Id. at 5; see also id. at 6 ("After several visits to the medical facility at FCI WILLIAMSBURG, I was misdiagnosed by Doctor Christopher Davis and was issued several forms of incorrect treatment.").] Plaintiff also alleges that "Holly Harrell in an attempt to save money wrongfully injected [Plaintiff] with Ketorolac injection 30 MG/ML, contrary to the outside doctors['] recommended treatment" and that "as a result of her action [Plaintiff is] now blind." [Id.; see also id. at 6-7.]
Defendants attached to their motion a declaration from Davis stating that he is actually a nurse practitioner. [Doc. 78-8 ¶ 1.]
Plaintiff alleges that Defendants violated his Fifth and Eighth Amendment rights. [Id. at 3.] As his relief, Plaintiff requests $2 million in actual damages and $25 million in punitive damages. [Id. at 7.]
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 2 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.”). 3
Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(1)A motion to dismiss under Rule 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. Fed.R.Civ.P. 12(b)(1). The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (internal quotation marks omitted).
Generally, challenges to jurisdiction under Rule 12(b)(1) may be raised in two ways: “facial attacks” and “factual attacks.” See Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th Cir. 1986), overruled on other grounds by Sheridan v. United States, 487 U.S. 392 (1988). A facial attack questions whether the allegations in the complaint are sufficient to sustain the court's jurisdiction; the court analyzes a facial attack as it would a motion to dismiss under Rule 12(b)(6) such that “[t]he allegations in the complaint are taken as true, and materials outside the pleadings are not considered.” Id. A “factual attack” challenges the truthfulness of the jurisdictional allegations in the complaint, id., and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment, ” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To prevent dismissal, “the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists.” 4 Id.; see also Dira v. Deutch, 149 F.3d 1167, 1998 WL 276236, at *1 (4th Cir. 1998) (unpublished table decision) (“When such ‘factual' challenges are asserted, a trial court may go beyond the allegations of the complaint, weigh the evidence, and satisfy itself as to its jurisdiction to hear the case.”). A dismissal should only be granted in those instances in which “the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg, 945 F.2d at 768. Defendant's challenge is facial because it relies on the facts alleged in Plaintiff's Complaint.
Federal Rule of Civil Procedure 12(b)(6)Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the [petition] in a light most favorable to the [petitioner].” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the [petition's] allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly: 5
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief, ” in order to “give the [respondent] fair notice of what the . . . claim is and the grounds upon which it rests.” While a [petition] attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a [petitioner's] obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the [petition] are true (even if doubtful in fact).550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“A claim has facial plausibility when the [petitioner] pleads factual content that allows the court to draw the reasonable inference that the [respondent] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a [respondent] has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the [respondent's] liability. Twombly, 550 U.S. at 557 (quoting Fed. R. Civ.
P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (Where a petition pleads facts that are merely consistent with a respondent's liability, it “stops short of the line between possibility and plausibility of entitlement to relief.” (internal quotation marks omitted)). Accordingly, the 6 plausibility standard requires a petitioner to articulate facts that, when accepted as true, demonstrate that the petitioner has stated a claim that makes it plausible the petitioner is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Dismissal of Plaintiff's Case for Failure to Prosecute
As noted, on August 25, 2021, Defendants filed a motion to dismiss for failure to state a claim or, in the alternative, for summary judgment. [Doc. 78.] The same day, this Court issued a second Roseboro Order informing Plaintiff again of the summary judgment/dismissal procedure and the possible consequences if he failed to respond adequately. [Doc. 79.] Nonetheless, Plaintiff failed to respond to the motion to dismiss or, in the alternative, for summary judgment.
This is actually the Court's second attempt to address a motion to dismiss filed by Defendants. Plaintiff failed to respond to the Defendant's first motion to dismiss filed in August 2020 [Doc. 24], until after the undersigned had issued a Report and Recommendation to the District Judge [Doc. 49], as well as an Amended Report and Recommendation [Doc. 52] granting the motion. The Honorable Mary Geiger Lewis adopted the undersigned's Report and Recommendations and entered an Order dismissing the case with prejudice. [Doc. 57] Upon receiving correspondence from Plaintiff that he was in the Honduras [Docs. 60;61], the Order was vacated [Doc. 62] and the case reopened [Doc. 63].
As Plaintiff is proceeding pro se, the Court filed an Order on October 5, 2021, giving Plaintiff through October 25, 2021, to respond to the motion. [Doc. 82.] Plaintiff was again advised that if he failed to respond, this action would be dismissed for failure to prosecute. [Id.] However, despite having been grated this extension, Plaintiff has failed again to respond to the motion to dismiss or, in the alternative, for summary judgment.
Based on the foregoing, it appears again to the undersigned that Plaintiff no longer wishes to proceed with this action. “The Federal Rules of Civil Procedure recognize that 7 courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders.” Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed.R.Civ.P. 41(b)). “Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte.” Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962); White v. Raymark Indus., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cty., Va., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).
The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:
(1) the degree of personal responsibility on the part of the plaintiff;
(2) the amount of prejudice to the defendant caused by the delay;
(3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and
(4) the effectiveness of sanctions less drastic than dismissal.588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). Subsequently, however, the Fourth Circuit noted that “the four factors . . . are not a rigid four-pronged test, ” and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that “the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant. . . . In view of the warning, the district court had little alternative to dismissal. Any other 8 course would have placed the credibility of the court in doubt and invited abuse.” Id. at 95-96.
As Plaintiff is proceeding pro se, he is personally responsible for his failure to file a response to the motion to dismiss. Plaintiff has had over two months to respond to the motion. Plaintiff's initial response was due by September 27, 2021; despite being advised of the possible consequences if he failed to adequately respond, Plaintiff elected not to respond to the motion. The Court filed another Order, reminding Plaintiff that a response was due and giving him additional time-until October 25, 2021-to respond. The Court has warned Plaintiff that the case would be dismissed pursuant to Rule 41(b) if Plaintiff failed to file a response. Despite these explanations, Plaintiff has elected not to respond. Because Plaintiff has already ignored Court Orders and deadlines, sanctions less drastic than dismissal would not be effective.
Wherefore, based upon the foregoing, the Court recommends that the case be dismissed for failure to prosecute under Federal Rule of Civil Procedure 41.
The Merits of Defendants' Motion
Given this case's unusual procedural history, the Court will also address several of the arguments Defendants present in their motion.
Sovereign Immunity as to both Defendants Davis and Harrell
Defendants first argue that, to the extent Plaintiff seeks damages against Defendants in their official capacities, Plaintiff's claims should be dismissed on the basis of sovereign immunity. The Court agrees. 9
The Court notes that 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”). However, sovereign immunity does not bar damages actions against a federal officer in his individual capacity for violation of an individual's constitutional rights. Gilbert v. Da Grossa, 756 F.2d 1455, 1459 (9th Cir. 1985)). Further, sovereign immunity is not a bar to actions seeking equitable relief. Singletary v. Fallen, No. 0:11-543-CMC-PJG, 2012 WL 368375, at *2-3 (D.S.C. Jan. 17, 2012) (discussing relevant case and statutory law), Report and Recommendation adopted by 2012 WL 368364 (D.S.C. Feb. 3, 2012). Accordingly, to the extent Plaintiff asserts claims under Bivens for damages against Defendants in their official capacities, those claims should be dismissed, but the Court will consider Plaintiff's Bivens claims to the extent they are asserted against Defendants in their individual capacities.
Whether Plaintiff Plausibly States an Eighth Amendment Claim
Defendants also maintain that Plaintiff has not alleged facts sufficient to state a deliberate indifference claim against the Defendants. The Court agrees.
Because a Bivens claim is analogous to a claim brought against state officials under 42 U.S.C. § 1983, case law involving § 1983 claims is applicable in Bivens actions, and vice versa. See Harlow v. Fitzgerald, 457 U.S. 800, 814-820, n. 30 (1982). See also Farmer v. Brennan, 511 U.S. 825 (1994). Thus, to state an Eighth Amendment claim regarding his course of medical care, Plaintiff must show, objectively, that he had a serious 10 medical need for different treatment than he received, and subjectively, that the defendant knew of a substantial risk of harm that the medical need presented and responded unreasonably to it. Farmer v. Brennan, 511 U.S. at 834-37. Under the subjective prong of this analysis, “officials evince deliberate indifference by acting intentionally to delay or deny the prisoner access to adequate medical care or by ignoring an inmate's known serious medical needs.” Sharpe v. S.C. Dep't of Corr., 621 Fed.Appx. 732, 733 (4th Cir. 2015).
Even assuming the Plaintiff had a serious medical need, he failed to allege facts sufficient to demonstrate a constitutional violation or that Defendants knew of a substantial risk of harm that his medical need presented and responded unreasonably to it. Neither did Plaintiff allege that the Defendants acted intentionally to delay or deny him access to adequate medical care or ignore his known serious medical needs. Plaintiff merely asserts that he was misdiagnosed and improperly treated by Davis, and that Harrell gave him a Ketorolac (Toradol) injection, which caused his blindness. [Doc. 1 at 5-7.] Even assuming the facts as alleged are true, Plaintiff has alleged only negligence, and a complaint which alleges negligent treatment of a medical condition does not state a valid constitutional claim. De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003); Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999); see also Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.").
Accordingly, Defendants are entitled to dismissal of Plaintiff's Complaint under Rule 12(b)(6) for failure to state a claim. 11
Absolute Immunity for Defendant Davis under the Public Health Service Act
Defendants argue that Davis is entitled to summary judgment as to claims against him because he is entitled to absolute immunity under the terms of the Public Health Service Act, 42 U.S.C. § 233(a). The Court agrees.
Section 233(a) makes the Federal Tort Claims Act the exclusive remedy for legal actions against members of the Public Health Service “for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office of employment.” Hui v. Castaneda, 559 U.S. 799, 805 (2010). As the Supreme Court observed in Hui, “proof of scope is in most § 233(a) cases established by a declaration affirming that the defendant was a [Public Health Service] official during the relevant time period.” Id. at 811. Davis avers he is a commissioned officer in the United States Public Health Service. [Doc. 78-8 ¶ 3.] Accordingly, Davis is entitled to absolute immunity, and he is entitled to summary judgment on this basis.
RECOMMENDATION
In light of all the foregoing, it is recommended that Plaintiff's case be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b). In the alternative, it is recommended that Defendants' motion to dismiss or, in the alternative, for summary judgment [Doc. 78] be GRANTED.
IT IS SO RECOMMENDED. 12