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Cicchiello v. Slinka

United States District Court, Northern District of West Virginia
May 22, 2024
Civil Action 3:23-CV-88 (GROH) (N.D.W. Va. May. 22, 2024)

Opinion

Civil Action 3:23-CV-88 (GROH)

05-22-2024

JOAN CICCHIELLO, Plaintiff, v. MS. SLINKA, Defendant.


REPORT AND RECOMMENDATION

ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

On March 30, 2023, the pro se Plaintiff, who was previously a federal prisoner incarcerated at SFF Hazelton, initiated this case by filing an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming her Constitutional rights were violated. ECF No. 1. The Plaintiff paid the filing fee on May 1, 2023. ECF No. 16. On May 22, 2023, the Plaintiff filed an amended complaint which is now before the Court. ECF No. 22.

During the pendency of this proceeding the Plaintiff filed a Notice of Change of Address on August 9, 2023, which listed her new address as a private residence in Mt. Carmel, Pennsylvania. That address remains the address listed on the docket. However, a review of the inmate locator page for the Bureau of Prisons shows that the Plaintiff is currently incarcerated at Danbury FCI, in Danbury, Connecticut, with a projected release date of November 4, 2024. https://www.bop.gov/inmateloc/.

All CM/ECF numbers cited herein are from the instant case, 3:23-CV-88, unless otherwise noted.

The matter is before the undersigned for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the complaint be denied and dismissed with prejudice.

II. FACTUAL AND PROCEDURAL HISTORY

The Plaintiff initiated this litigation on March 30, 2023, by filing a complaint with attachments. ECF Nos. 1, 1-1 through 1-3. The initial complaint named seven defendants, including Ms. Slinka (“Slinka”). ECF No. 1 at 1-4. The Plaintiff filed an amended complaint on May 22, 2023, with additional attachments. ECF Nos. 22, 22-1, 22-2. The amended complaint named only Ms. Slinka, and the previously named Defendants were terminated as parties. ECF No. 22. See unnumbered docket entry May 22, 2023.

Construed liberally, the claims asserted in the amended complaint are that: (1) she was subjected to Cruel and Unusual Punishment in violation of the Eighth Amendment because she was exposed to raw sewage in her cell over a period of months [ECF No. 22 at 7]; (2) her First Amendment rights were violated when she was denied access to the Courts [Id. at 8]; (3) her Eighth Amendment rights were violated based on her conditions of confinement which were insufficient because of the Plaintiff's medical conditions [Id.]; (4) her Eighth Amendment rights were violated when the Defendant neglected the Plaintiff's age was incompatible with “very angry/aggressive” cellmate [Id. at 8-9]; and (5) her Eighth Amendment rights were violated when the Defendant was deliberately indifferent to the Plaintiff's age and medical conditions and incompatibility with her top tier cell assignment, and top bunk bed assignment [Id. at 9].

As a result of these actions, the Plaintiff contends that she “torqued” her left shoulder,” her health deteriorated, she is “almost blind,” is “unable to gain weight” because of vomiting, experiences headaches, has a “loss of enjoyment,” and was “not moved per medical requests.” Id. at 9.

In her request for relief, the Plaintiff asks the court to award her punitive damages in the amount of three million five hundred thousand dollars ($3,500,000.00), and requests immediate release from custody. Id. at 9.

The undersigned notes that release from custody is not a remedy available under Bivens.

In her amended complaint, the Plaintiff claimed she was prevented from exhausting her administrative remedies prior to filing her amended complaint, and no copies of the administrative remedy process are attached. The Plaintiff provided the following exhibits to her amended complaint:

(1) Undated “Affidavit of Andrew C. Phillips,” which is not notarized, and which addresses Mr. Phillips' difficulty obtaining administrative remedy forms from Ms. Slinka [ECF No. 22-1 at 1];
(2) Undated “Affidavit of Katie Salinas,” which is not notarized, and which addresses Ms. Salinas' difficulty in starting the administrative remedy process [Id. at 2];
(3) Undated statement of Nichole A. Pittman, which is not notarized, and which addresses Ms. Pittman's difficulty obtaining administrative remedy forms from Ms. Slinka [Id. at 3-4];
(4) TRULINCS correspondence between the Plaintiff and SFF Warden, dated
May 16, 2023, concerning delayed receipt of legal mail [ECF No. 22-2 at 1];
(5) TRULINCS correspondence between the Plaintiff and SFF Administrator, dated May 16, 2023, concerning delayed receipt of legal mail [Id. at 2]; and
(6) TRULINCS correspondence between another inmate and SFF Warden,
dated January 30, 2023, concerning attempts to file administrative remedies which were thwarted by staff [Id. at 3].

Because the Plaintiff paid the full filing fee and was not proceeding in forma pauperis, she was directed to either effect service of process on the Defendant pursuant to the Federal Rules of Civil Procedure, or to pay an additional fee for the Court to assist her in service of process. ECF No. 28. The Plaintiff served the Defendant on July 28, 2023. ECF No. 39. On September 20, 2023, the Court granted the Defendant an extension of time to respond to answer or respond to the complaint. ECF No. 42.

On October 30, 2023, Defendant Slinka filed a Motion to Dismiss the amended Bivens complaint, and a memo and exhibits in support thereof. ECF Nos. 45, 46, 46-1 through 46-5. The Defendant argues that the Plaintiff failed to state a claim because: (1) the claims in the Plaintiff's amended complaint presents a new context not authorized under a Bivens complaint [ECF No. 46 at 5]; (2) the Plaintiff's claims, including First Amendment violation for denial of access to the Courts, Eighth Amendment violation for cruel and unusual punishment based on the conditions of confinement, and Eighth Amendment violation for deliberate indifference to the Plaintiff's need for medical care, arise in a new context [Id. at 7]; (3) this case presents special factors which indicate that Congress is better suited than the Judiciary to “weigh the costs and benefits” of creating a new damages remedy [Id. at 11]; (4) the Defendant is entitled to qualified immunity from liability [Id. at 17]; and (5) the Plaintiff failed to exhaust her administrative remedies [Id. at 18]. Attached thereto are the following exhibits:

(1) A Declaration of Misty Shaw, a paralegal with the Mid-Atlantic Regional Office of the BOP, dated October 30, 2023 [ECF No. 46-1];
(2) “Public Information Inmate Data” dated September 11, 2023, for the Petitioner, which among other information, lists her release date as July 12, 2023, and expiration full term date as August 5, 2025 [ECF No. 46-2];
(3) “Inmate History: Adm-Rel” [sic], dated October 26, 2023 [ECF No. 46-3];
(4) “Administrative Remedy Generalized Retrieval” dated October 26, 2023, which lists the following thirty-one administrative remedies filed by the Plaintiff, and the disposition of each:
a. Remedy ID 1016647-F1, seeking email access, which was filed April 30, 2020, and rejected April 30, 2020 [ECF No. 46-4 at 2];
b. Remedy ID 1016648-F1, seeking to use the law library from 2:00 a.m. to 5:00 a.m., which was filed on April 30, 2020, and rejected on April 30, 2020 [Id.];
c. Remedy ID 1024141-F1, seeking “RIS Appeal”, which was filed on June 3, 2020, and closed on June 29, 2020 [Id.];
d. Remedy ID 1136701-F1, requesting home confinement, which was filed on October 11,2022, and closed on November 4, 2022 [Id.];
e. Remedy ID 1136708-F1, requesting home confinement, which was filed on October 11,2022, and rejected on October 11,2022 [Id.];
f. Remedy ID 1136716-F1, claiming her individual needs assessment is wrong, which was filed October 11, 2022, and rejected on October 11, 2022 [Id.];
g. Remedy ID 1136718-F1, requesting home confinement, which was filed on October 11,2022, and rejected on October 11,2022 [Id.];
h. Remedy ID 1136716-F2, claiming her individual needs assessment is wrong, which was filed October 24, 2022, and rejected on October 24, 2022 [Id.];
i. Remedy ID 1140686-F1, requesting her medical records from August 24, 2022, to the time of filing, which was filed on November 9, 2022, and closed on December 27, 2022 [Id.];
j. Remedy ID 1136701-R1, requesting home confinement, which was filed on November 14, 2022, and closed on January 17, 2023 [Id.];
k. Remedy ID 1142920-F1, requesting RIS reconsideration, which was filed on November 29, 2022, and rejected on November 29, 2022 [Id.];
l. Remedy ID 1142920-A1, requesting RIS reconsideration, which was filed on December 27, 2022, and rejected on January 9, 2023 [Id.];
m. Remedy ID 1148988-F1, requesting to earn First Step Act credits while in FRP Deny Status, which was filed on January 25, 2023, and rejected on January 25, 2023 [Id.];
n. Remedy ID 1149618-F1, claiming her First Step Act credit calculation is wrong, filed on January 31,2023, and closed on March 2, 2023 [Id.];
o. Remedy ID 1148988-F2, requesting to earn First Step Act credits while in FRP Deny Status, which was filed on February 13, 2023, and rejected on February 13, 2023 [Id.];
p. Remedy ID 1151356-F1, claiming her First Step Act credit calculation is
wrong, which was filed on February 14, 2023, and rejected on February 14, 2023 [Id.];
q. Remedy ID 1149618-R1, claiming her First Step Act credit calculation is wrong, which was filed on March 10, 2023, and closed on April 21,2023 [Id. at 3];
r. Remedy ID 1155061-F1, requesting 151 additional days of First Step Act credit, which was filed on March 21, 2023, and rejected on March 21,2023 [Id.];
s. Remedy ID 1155061-F2, requesting 151 days of First Step Act credit, which was filed on March 30, 2023, and closed on April 13, 2023 [Id.];
t. Remedy ID 1158036-R1, seeking First Step Act relief, which was filed on April 10, 2023, and rejected on April 14, 2023 [Id.];
u. Remedy ID 1149618-A1, claiming that her First Step Act credit calculation is wrong, which was filed on April 13, 2023, and rejected on May 9, 2023 [Id.];
v. Remedy ID 1136701-R2, requesting home confinement, which was filed on April 17, 2023, and rejected on April 19, 2023 [Id.];
w. Remedy ID 1155061-R1, requesting 151 days of First Step Act credit, which was filed on April 27, 2023, and closed on June 6, 2023 [Id.];
x. Remedy ID 1149618-A2, claiming that her First Step Act credit calculation is wrong, which was filed on May 4, 2023, and closed on July 5, 2023 [Id.];
y. Remedy ID 1161241-F1, requesting Residential Reentry Center (RRC)
Placement, which was filed on May 11, 2023, and rejected on May 11, 2023 [Id.];
z. Remedy ID 1161241-R1, requesting Residential Reentry Center (RRC) Placement, which was filed on May 12, 2023, and rejected on May 12, 2023 [Id.];
aa. Remedy ID 1136701-A1, seeking First Step Act credits and requesting home confinement, which was filed on June 1, 2023, and rejected on June 7, 2023 [Id.];
bb. Remedy ID 1161241-F2, requesting Residential Reentry Center Placement, which was filed on June 5, 2023, and rejected on June 22, 2023 [Id.];
cc. Remedy ID 1158036-A1, seeking First Step Act relief, which was filed on June 6, 2023, and rejected on June 8, 2023 [Id.];
dd. Remedy ID 1155061-A1, requesting 151 days of First Step Act credit, which was filed on June 20, 2023, and closed on June 29, 2023 [Id.]; and
ee. Remedy ID 1161241-R2, requesting Residential Reentry Center Placement, which was filed on June 27, 2023, and rejected on August 21,2023 [Id.].
(5) “Declaration of Tammylee Slinka” dated October 30, 2023, stating that as a Correctional Counselor at SFF Hazelton she is “responsible for the day-today tasks of the housing unit, including cell assignments, distribution of administrative remedy forms, and maintenance . of the unit's sanitation,” but
does “not work in the Health Services Department at SFF Hazelton nor do I provide medical treatment for inmates.” [ECF No. 46-5].

Twenty-eight of those administrative remedies were filed while the Plaintiff was at Hazelton. ECF No. 46-4 at 2. The first three listed administrative remedies were filed when the Plaintiff was incarcerated at another facility. Id.

Following the October 31, 2023, issuance of a Roseboro notice [ECF No. 47], the Plaintiff filed a response on November 9, 2023. ECF No. 48. In her response, the Plaintiff argues that: (1) although she filed twenty-eight administrative remedies at various levels of the administrative remedy process, that “at various levels of the administrative process Counselor Slinka refused to allow Plaintiff to continue” [Id. at 1]; (2) the Plaintiff was confined in a cell “contaminated with fecal material,” that Slinka was responsible for Plaintiff's assignment to that contaminated cell, and that the Plaintiff “was confined to a cell suffering from dysentery” [Id. at 2]; (3) that “Medical gave orders for bottom bunk, bottom tier which Ms. Slinka refused to comply,” but that eventually the Plaintiff was moved a bottom bunk, bottom floor cell,” [Id. at 3]; (4) when the Plaintiff was transferred to her bottom bunk, bottom floor cell, her cellmate, Andrew Phillips, was male, but the Plaintiff could not refuse housing without receiving segregation or solitary confinement [Id.]; (5) the Plaintiff was subjected to cruel and inhumane treatment through her placement with her cellmate, and that Defendant Slinka did not “consider[ ] the effects [of the Plaintiff] being in a cell with a man” after divorcing an abusive husband thirty years previously, in 1990, and that Slinka should have been aware of the Plaintiff's court-ordered “psychological counseling and courses to deal with the trauma” [Id.]. The Plaintiff does not address the Defendant's legal argument that a Bivens claim should not be recognized in the context of Plaintiff's alleged injuries. Critically, the Plaintiff does not address the impact of Egbert on her claims. Further, although the Plaintiff asserts that the Defendant “refused” to allow her to continue the administrative remedy process, the Plaintiff also acknowledges that “[b]etween August 24, 2022, and July 12, 2023, Plaintiff filed 28 administrative remedies.” Id. at 1.

An exhibit submitted by the Plaintiff purports to be an affidavit of Andrew C. Phillips, inmate number 93742-007. A review of the BOP Inmate Locator lists that individual, as a Female. https://www.bop.gov/inmateloc/.

On November 20, 2023, the Defendant filed a reply, which contends that:

Instead of responding to Defendant's arguments, Plaintiff seems to newly raise or reiterate four positions which she claims merit survival of her Bivens claims: (1) her administrative remedy process was frustrated; (2) there was “raw sewage” in her cell; (3) deliberate indifference by not placing Plaintiff on the bottom bunk; and (4) deliberate indifference because her cellmate was “a man.”
ECF No. 49 at 1-2. The Defendant argues that the Supreme Court “has never recognized a Bivens remedy to include access to court claims.” Id. at 2. Further, the Defendant asserts that the presence of raw sewage in an inmate's cell is not a recognized Bivens action. Id. Finally, the Defendant asserts that the Plaintiff's claims of deliberate indifference as to the Plaintiff's bunk and cellmate assignment should be dismissed because “[t]here is no Bivens claims even remotely similar to allegations of being placed on the wrong bunk or being placed with a cellmate whom the inmate does not wish to reside with.” Id. at 3.

III. LEGAL STANDARD

A. Pro Se Litigants

Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:

Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.
490 U.S. at 327. Frivolity dismissals should only be ordered when the legal theories are “indisputably meritless.” Id.

The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."

B. Failure to State a Claim

The Federal Rules of Civil Procedure require only “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41,47, 78 S.Ct. 99 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.

Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1, 92 S.Ct. 594, 596 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). While pro se pleadings are held to a less stringent standard than those drafted by attorneys, even under this less stringent standard, a pro se complaint is still subject to dismissal. Haines, 404 U.S. at 520-21. “[T]he 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 the petitioner could prevail, it should do so.'” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999). However, “judges are [ ] not required to construct a party's legal arguments for him.” Small v. Endicott, 998 F.2d 411, 417 - 8 (7th Cir.1993).

Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.

C. Civil Rights Actions Under Bivens.

In Bivens, supra, the Supreme Court recognized that claimants may assert a cause of action for damages caused by federal agents. In FDIC v. Meyer, 510 U.S. 471, 484 - 86 (1994), the Court held that federal agencies may not be held liable in a Bivens claim, writing, “Bivens from its inception has been based . . . on the deterrence of individual officers who commit unconstitutional acts.” Id. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 (2001).

Pursuant to Bivens, an individual federal agent may be found liable for actions “in excess of the authority delegated to him.” 403 U.S. at 397. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Supreme Court further explained in Malesko:

If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual.
534 U.S. at 72. Further, in a Bivens case, the Plaintiff must specify the acts taken by each defendant which violate his Constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994); See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988) (“section 1983 claims [have] the additional pleading requirement that the ‘complaint contain a modicum of factual specificity identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs'”).

The Court notes that Bivens actions and § 1983 actions are both civil rights actions, and that Bivens actions regarding deprivation of civil rights have long been considered as the federal counterpart to state actions authorized by 42 U.S.C. § 1983. As discussed below, Egbert v. Boule, 142 S.Ct. 1793 (2022), explains the difference between the statutorily created remedy under § 1983, and the judicially created remedies established by Bivens and its progeny.

In Bivens, the Supreme Court held that it had the authority, “under general principles of jurisdiction” to “create ‘a cause of action under the Fourth Amendment' against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for narcotics violations.” Egbert, 142 S.Ct. at 1802. After Bivens was decided, the Supreme Court twice, “fashioned new causes of action under the Constitution-first, for a former congressional staffer's Fifth Amendment sexdiscrimination claim, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and second, for a federal prisoner's inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).” Egbert, 142 S.Ct. at 1802.

However, the Supreme Court has cautioned that implied remedies have been found in limited circumstances, and the judiciary should not “assume[ ] common-law powers to create causes of action.” Egbert v. Boule, 142 S.Ct. 1793, 1802 (2022) (quoting Malesko, 534 U.S. at 75). In Egbert, the Supreme Court held that, “[a]t bottom, creating a cause of action is a legislative endeavor. Courts engaged in that unenviable task must evaluate a ‘range of policy considerations . . . at least as broad as the range . . . a legislature would consider.'” 142 S.Ct. at 1802, quoting Hernandez v. Mesa, 589 U.S. at 93, 140 S.Ct. at 741 (2020).

The Supreme Court in Egbert, 142 S.Ct. at 1799 - 1800, noted that it has declined to imply a similar cause of action for alleged constitutional violations in the following instances: Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (race discrimination suit brought by enlisted naval men); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (aerospace engineer's First Amendment defamation and retaliation suit against director of federal space flight center); United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (military veteran who volunteered for chemical warfare testing program sued for being unknowingly being administered LSD which caused psychological and personality changes); Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) (improper denial of Social Security benefits, allegedly as result of due process violations); FDIC v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (terminated employee's Fifth Amendment suit claiming deprivation of a property right without due process); Correctional Services Corp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate with a heart condition who was assigned to a Community Correctional Center's fifth floor bedroom suffered a heart attack and fell, after defendant's employee required inmate to use the stairs instead of the elevator to reach his bedroom); Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (commercial rancher's Racketeer Influences and Corrupt Organizations Act (RICO) and Bivens claims against Bureau of Land Management (BLM) for allegedly using extortion to force rancher to grant an easement to BLM was without merit); Hui v. Castaneda, 559 U.S. 799, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010) (survivors of immigration detainee sued after detainee persistently sought, but was denied medical treatment, and later died of metastatic cancer, based on immunity for U.S. Public Health Service employees); Minneci v. Pollard, 565 U.S. 118, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012) (federal inmate sued for denial of adequate medical care by employees at privately run federal prison, was without relief under Bivens because state tort law authorized adequate alternative damages actions); Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017) (alien detained after September 11 terrorist attack filed suit alleging harsh and punitive pre-trial conditions in violation of Fifth Amendment); Hernandez v. Mesa, 589 U.S. 93, 140 S.Ct. 735, 206 L.Ed.2d 29 (2020) (parents of 15-year old Mexican child shot and killed by United States Border Patrol agent across US-Mexico border after child crossed into U.S. territory and returned to Mexico, not entitled to relief under theory of Bivens liability for violations of Fourth or Fifth Amendments).

Further, the Egbert court explained that to recognize new Bivens remedies, a court must make a two-step inquiry to determine if: (1) the case presents a new Bivens context which is meaningfully different from the three cases in which the Supreme Court has implied a damages action; and (2) if the claim does arise in such a new context, whether there are special factors which indicate that Congress is better equipped than the judiciary to weigh the costs and benefits of allowing a damages action. Significantly, the Supreme Court wrote that, [i]f there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy.” 142 S.Ct. at 1803, quoting Hernandez, 589 U.S., at 102, 140 S.Ct., at 743. The Supreme Court further explained:

Finally, our cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, an alternative remedial structure. If there are alternative remedial structures in place, that alone, like any special factor, is reason enough to limit the
power of the Judiciary to infer a new Bivens cause of action. Importantly, the relevant question is not whether a Bivens action would disrupt a remedial scheme, or whether the court should provide for a wrong that would otherwise go unredressed. Nor does it matter that existing remedies do not provide complete relief. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.
142 S.Ct. at 1803-04 (emphasis added) (cleaned up).

D. Motions to Dismiss

Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require only, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.

Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that, “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.

“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has acted unlawfully,” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.

IV. ANALYSIS

A. Failure to Exhaust Administrative Remedies

Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action with respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). “Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to exhaust may only be excused upon a showing of cause and prejudice.” McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (citing Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634-35 (2d Cir.2001), Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.1981)). Exhaustion as provided in § 1997e(a) is mandatory, regardless of the relief offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001). Because exhaustion is a prerequisite to suit, all available administrative remedies must be exhausted prior to filing a complaint in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002) (citing Booth, 532 U.S. at 741). “Those remedies need not meet federal standards, nor must they be ‘plain, speedy, and effective.'” Porter, 534 U.S. at 524.

In the amended complaint, the Plaintiff asserts that she filed a grievance concerning the facts in her complaint through the prisoner grievance procedure. ECF No. 22 at 4. However, she states that Defendant Slinka “denied process post BP-9 [and] held [the Petitioner's] administrative remedy hostage.” Id. at 5.

The Plaintiff's contention that she was denied access to the administrative remedy system is inconsistent with the numerous administrative remedies she filed related to other issues. None of the twenty-eight administrative remedies filed by the Plaintiff while incarcerated at Hazelton seek relief to correct the conditions of confinement related to raw sewage in her cell, the identity of her cellmate, her medical needs in her cell, deliberate indifference to her medical condition, or denial of access to the Courts. Rather, the Plaintiff's administrative remedies filed at Hazelton related to the following categories of claims: (1) six requests for home confinement; (2) three claims that her Individual Needs Assessment was wrong; (3) one request for her medical records; (4) two requests for RIS reconsideration; (5) two requests to earn First Step Act credit while in FRP Deny Status; (6) four claims that her First Step Act credit calculation was wrong; (7) one request for 151 days of “additional days” First Step Act credits; (8) three requests seeking 151 days of First Step Act credits; (9) three requests for First Step Act relief; and (10) four requests for placement in a Residential Reentry Center. ECF No. 46-4 at 2-3.

The Plaintiff attached to her initial complaint copies of documents related to her claims regarding a cracked toilet and resultant leaking raw sewage, including an “Inmate Request to Staff” dated September 11,2022 [ECF No. 1-2 at 2], multiple TRULINCS messages [Id. at 3-4, 6], and a “Request for Administrative Remedy” assigned Case Number 1136708-F1, dated October 5, 2022, and received October 11, 2022. However, the Plaintiff sought home confinement to resolve this issue. Id. at 5. Further, Administrative Remedy, 1136708-F1, seeking home confinement, was rejected on October 11,2022. ECF No. 46-4 at 2. Moreover, neither the Plaintiff nor the Defendant have produced any records to reflect that an appeal was pursued to the Regional or Central Offices, which is necessary to exhaust that claim. Id. at 2-3. Accordingly, to the extent that the issue of raw sewage from a leaking toilet as a basis for seeking home confinement was raised in an Administrative Remedy, no appeal was pursued.

One claim, Remedy ID 1136701-A1, filed on June 1, 2023, and rejected on June 7, 2023, sought both home confinement, and First Step Act relief. ECF No. 46-4 at 3.

As recognized in Carmona, supra, which was cited by the Fourth Circuit in its opinion in McClung:

[T]he interests of judicial economy and accuracy are served by requiring that, absent a showing of cause and prejudice, appeals proceed in the first instance through the federal agency review process. Following the administrative procedures could potentially obviate the need for judicial review, or at a minimum, develop the factual record at the agency level at a time when the disputed events are still relatively fresh in witnesses' minds. In this sense, it is the analogue of the exhaustion of state remedies requirement for a state prisoner seeking federal habeas review, and the
results governing failure to take this path should be the same.
Administrative autonomy is also served by requiring that a federal prisoner justify his failure to exhaust his intra-Bureau remedies. When, however, legitimate circumstances beyond the prisoner's control preclude him from fully pursuing his administrative remedies, the standard we adopt excuses this failure to exhaust.
Carmona, 243 F.3d at 634 (internal citations omitted).

The Bureau of Prisons' Program Statement (BOP PS) 1330.18 § 542.10 et seq.,addresses the Bureau's Administrative Remedy Program, and directs inmates on the processes necessary to exhaust their administrative remedies by filing four mandatoryremedies: (1) an informal resolution (BP-8); (2) an administrative remedy at the facility (BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central office (BP-11). The Plaintiff failed to complete all four mandatory administrative remedies, although she contends that the Defendant is to blame for her failure to exhaust because Slinka denied the Plaintiff access to the necessary administrative remedy forms. However, this claim does not square with the Plaintiff's filing of twenty-eight separate administrative remedies on other topics.

See https://www.bop.gov/policy/progstat/1330 018.pdf.

Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to attempt informal resolution. BOP PS 1330.18 § 542.13.b.

Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:

1. FCI Waseca https://www.bop.gov/locations/institutions/was/was ao handbook eng 031517.pdf;
2. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF aohandbook.pdf;
3. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH camp aohandbook.pdf;
4. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg ao handbook050917.pdf;
5. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW smu aohandbook.pdf;
6. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL fdc aohandbook.pdf;
7. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD aohandbook.pdf; and
8. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR aohandbook.pdf.

The Plaintiff's failure to exhaust administrative remedies ignores the standard recognized by the Fourth Circuit in Hill v. Haynes, 380 Fed.Appx. 268, 269, n.1 (4th Cir. 2010). Regardless of whether the Plaintiff first, presented her complaint informally to prison staff using a BP-8 form, or second, filed an “Administrative Remedy Request” to the prison Warden using a BP-9 form, she did not take the third and fourth steps necessary to exhaust her claims. The Plaintiff failed to take the third step by filing an appeal with the Regional Director using a BP-10 form to an adverse decision on the BP-9 from the warden. Fourth, the Plaintiff failed to appeal any adverse decision by the Regional Director to the Central Office of the BOP using a BP-11 form.

However, the Plaintiff alleges that she was prevented by the Defendant from filing certain levels of her administrative remedy. The Plaintiff contends that the Defendant prevented her from doing so, or refused to provide her with the necessary forms to file the mandatory administrative remedies at any level of the process, or that she was otherwise denied the opportunity to do so. But during the period of October 11, 2022, through June 27, 2023, while housed at Hazelton, the Plaintiff filed twenty-eight separate administrative remedies. That rate of filing equates to approximately one administrative remedy filed by the Plaintiff every twelve days for nearly eleven months. It strains credibility to believe the Plaintiff's claims that she was denied administrative remedy forms for the five claims asserted in her Amended Complaint, but was regularly provided administrative remedy forms for twenty-eight unrelated claims during the same time period. The Plaintiff's claims that she was denied access to the administrative remedy process by the Defendant's actions is unsupported by the Plaintiff's copious filings, several of which were filed on the same date, or the day after a prior administrative remedy was denied. ECF No. 46-4 at 2-3. Further, there is no record that an administrative remedy relating to the issues asserted in her amended complaint was ever filed, from which the Defendant could have refused to process an appeal to the next level.

By her own admission the Plaintiff concedes that she filed at least twenty-eight administrative remedies between August 24, 2022, and July 12, 2023, a 322-day period. ECF No. 48 at 1.

The administrative remedies the Plaintiff pursued were nearly all related to the calculation of her sentence under the First Step Act, and release to either home incarceration or a Residential Reentry Center. ECF No. 46-4 at 2-3. This election to pursue some administrative remedies related to release and not pursue administrative remedies related to alleged First and Eighth Amendment violations is insufficient to excuse the exhaustion requirement. Nevertheless, because the Plaintiff's contention that her administrative remedy forms were rejected and/or not processed by the Defendant are not rebutted, the undersigned will address the merits of her claims.

B. Failure to State a Deliberate Indifference to Medical Needs Claim Against Slinka

Notwithstanding any failure to exhaust, the complaint filed by the Plaintiff does not allege that the Defendant ever provided, or was capable of providing medical treatment to her. ECF Nos. 22. The amended complaint alleges that the Defendant “was responsible to allow paperwork for Administrative Remedy Process, Room[mate] moves from cell to cells, institutional adjustments, personal difficulties leading role with day to day activities, cell inspections, conditions of cells, maintenance issues, repairs and work orders for repairs.” ECF No. 22 at 2. Although the Amended Complaint claims that the Defendant was deliberately indifferent to the Plaintiff's medical conditions, nothing in the Amended Complaint indicates the Defendant was responsible for denying the Plaintiff medical care, or was present, or involved with any alleged denial of her medical care. Id. at 9. The Plaintiff's only claim against the Defendants is that Slinka were deliberately indifferent to her medical needs. However, the Plaintiff's complaint acknowledges that the Defendant was not a medical provider at SFF Hazelton. ECF No. 22 at 2. Further, the Plaintiff's medical needs were not sufficiently serious or apparent to require a lay person to seek medical assistance for the Plaintiff. Therefore, the Defendant cannot be found to be deliberately indifferent to the Plaintiff's alleged medical needs.

The Defendant was a Correctional Counselor during the Plaintiff's incarceration at Hazleton. ECF No. 46-5. She was not a doctor, physician's assistant, nurse, or other medical technician. The Plaintiff does not contend in her amended complaint that the Defendant was a medical provider. ECF No. 22 at 2. Accordingly, the Defendant did not provide, nor was she required, to provide medical treatment. As a Counselor, the Defendant would have a duty to recognize a severe medical need and seek treatment for the Plaintiff by the appropriate medical provider.

“A ‘serious medical need' is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention. Heyer v. United States Bureau of Prisons, 849 F.3d 202, 210 (4th Cir. 2017) (quoting Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)).

Accordingly, it appears that the Plaintiff has failed to comply with the Federal Rules of Civil Procedure requirement that only a short and plain statement of the claim showing that the pleader is entitled to relief as related to the Defendant, as required by Twombly. For all of these reasons, the Plaintiff's claim against the Defendant should be dismissed with prejudice for failure to state a claim upon which relief may be granted.

C. Failure to State a Bivens Claim Against Defendant Slinka

A review of the amended complaint pursuant to 28 U.S.C. § 1915A(b), reveals that the Plaintiff fails to present a claim upon which relief can be granted as to Defendant Slinka. The Plaintiff seeks monetary damages for alleged violations of her First and Eighth Amendment rights, asserting she is entitled to relief based on the holding of Bivens. ECF No. 22. However, in Egbert, the Supreme Court explicitly instructed lower courts that Bivens remedies should be expanded in only limited circumstances.

After Egbert, the Fourth Circuit declined to extend a Bivens remedy to a plaintiff who alleged his Eighth Amendment rights were violated when “Federal prison officials exposed him to conditions that posed a constitutionally unacceptable risk to his health and safety and took deliberate actions that exposed him to a substantial risk of serious physical harm.” Tate v. Harmon, 54 F.4th 839, 842 - 843 (4th Cir. 2022). In Tate, the Fourth Circuit defined the issues presented as, “(1) whether Tate's conditions-of-confinement claim falls within the context of Bivens and its progeny and, if not, (2) whether the district court erred in refusing to extend Bivens to provide a damages remedy for his claim.” Id. Echoing the Supreme Court in Egbert, the Fourth Circuit in Tate recognized that, “in the 42 years following Carlson, which was decided in 1980, the Court has ‘consistently rebuffed' every request-12 of them now-to find implied causes of action against federal officials for money damages under the Constitution. 54 F.4th at 843. “Against this now critical condition of Bivens jurisprudence and the caution that the Court has mandated when applying it, courts are clearly warned to act with utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis, or Carlson.” Id. at 845. The Fourth Circuit concluded:

In short, courts' authority now to create new causes of action for money damages under the Constitution is most limited, for “if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for 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.” Ziglar, 137
S.Ct. at 1858. And even “uncertainty alone” in this regard “forecloses relief.” Egbert, 142 S.Ct. at 1804.
54 F.4th at 845.

The Plaintiff's Amended Complaint fails to allege that Defendant Slinka took specific actions which constitute civil rights violations as recognized by Bivens, Davis, or Carlson. Accordingly, this Court must conduct the two-part Egbert analysis to determine if the action should proceed, by determining:

(1) if Plaintiff's case presents a new Bivens context, which is meaningfully different from the three cases in which the Court has implied a damages action; and
(2) if Plaintiff's claim does arise in a new context, whether there are special factors present which indicate the Judiciary is less equipped than Congress to weigh the costs and benefits of allowing the damages action to proceed.
142 S.Ct. at 1803.

1. The Plaintiff's Case Presents a New Bivens Context

As argued by the Defendant, the Plaintiff's claims-that her First Amendment rights were violated by the Defendant who refused to give the Plaintiff administrative remedy forms, and that her Eighth Amendment rights were violated by the Defendant by (a) the conditions of confinement in her cell; (b) because of her medical conditions which required different cell and bunk assignment; (c) her cellmate assignment; and (d) when the Defendant was deliberately indifferent to the Plaintiff's medical conditions-all constitute new contexts that were not previously recognized by Bivens, Davis, or Carlson. A review shows that all three of those cases are distinguishable from Plaintiff's claims, consistent with the arguments made by the Defendant in her memorandum in support of her motion to dismiss. ECF No. 46 at 7-17.

Construed liberally, the Plaintiff asserts that her First and Eighth Amendment rights were violated by the Defendant's actions. However, only one of the three judicially created causes of action is arguably comparable to Plaintiff's claims. Bivens recognized a cause of action under the Fourth Amendment, and thus is not comparable to Plaintiff's claims. Davis recognized a cause of action under the Fifth Amendment, and again, is not comparable to Plaintiff's claims. Only Carlson recognized a civil rights action under the Eighth Amendment based on failure to provide sufficient medical care. However, Carlson is distinguishable from Plaintiff's claims.

Carlson was brought by a mother on behalf of her deceased son's estate, “alleging that he suffered personal injuries from which he died because the petitioners, federal prison officials, violated his due process, equal protection, and Eighth Amendment rights.” 446 U.S. at 14. Note 1 of Carlson more fully explains the claims raised:

More specifically, respondent alleged that petitioners, being fully apprised of the gross inadequacy of medical facilities and staff at the Federal Correction Center in Terre Haute, Ind., and of the seriousness of Jones' chronic asthmatic condition, nonetheless kept him in that facility against the advice of doctors, failed to give him competent medical attention for some eight hours after he had an asthmatic attack, administered contra-indicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital. The complaint further alleges that Jones' death resulted from these acts and omissions, that petitioners were deliberately indifferent to Jones' serious medical needs, and that their indifference was in part attributable to racial prejudice.
446 U.S. at 16, n.1.

By contrast, the Plaintiff here claims that the Defendant was deliberately indifferent to the Plaintiff's medical condition. ECF No. 22 at 9. The Plaintiff does not explain how the alleged actions of the Defendant caused any of her alleged injuries. Nor does the Plaintiff claim that the Defendant denied or prevented the Plaintiff from receiving medical care.

It is clear that the Plaintiff's complaint concerning her alleged medical conditions is that her health “deteriorated,” as a result of the complained-of conditions of confinement. ECF No. 22 at 9. However, that claim is in no way equivalent to the allegations in Carlson of: (1) a pre-existing chronic and life-threatening illness, asthma; (2) inadequate access to medical treatment and medical providers; (3) delay in treatment for more than eight hours after an acute onset of illness; (4) administration of contra-indicated medication which worsened the patient's condition; (5) the use of machinery known to be inoperable to attempt to treat the patient; and (6) failure to transport the patient for outside treatment for the acute onset of illness. The specificity of such injuries and actions of Defendants in Carlson differ dramatically from the situation presented by the Plaintiff.

The Fourth Circuit has cautioned that:

The Supreme Court has instructed not only that “new context” must be understood broadly but also that a new context may arise if even one distinguishing fact has the potential to implicate separation-of-powers considerations. While not providing an exhaustive list of distinguishing factors, the Court has noted examples that would support finding a new context, such as (1) uncertainty alone as to whether allowing a Bivens claim would have systemwide consequences; (2) a new category of defendants; (3) a difference as small as the rank of the officers involved; (4) the statutory or other legal mandate under which the officer was operating; (5) a potential effect on foreign relations and national security; (6) Congress's repeatedly declining to authorize the award of damages in the relevant context; and (7) the risk that the burden and demand of litigation would prevent Executive Officials from devoting the time and effort required for the proper discharge of their duties.
54 F.4th at 846 (cleaned up).

The Plaintiff's alleged injuries occurred in a different context than the injuries incurred in Carlson. Further, Congress has never authorized a suit for damages under similar claims as those raised by the Plaintiff. Moreover, the Plaintiff does not claim she was injured as a result of the actions of the Defendant. Instead, she contends that her health deteriorated as a result of the Plaintiff's actions. The Court notes that according to the Plaintiff, she is a 72-year-old woman with poor vision, cardiology issues, diabetes, and poor circulation. There is a distinct possibility that if the Plaintiff's health did deteriorate during her incarceration, that the deterioration was the result of the passing of time, rather than the conditions of her confinement, or any action by the Defendant.

Thus, Plaintiff's claim arises in a new Bivens context. Accordingly, the Court must conduct the Egbert special factors analysis before allowing Plaintiff's suit to proceed.

2. There are special factors counselling hesitation and which indicate the Judiciary is less equipped than Congress to weigh the costs and benefits of allowing the damages action to proceed

As recognized by the Fourth Circuit in Tate, the Supreme Court has directed that the “special factors” inquiry “must center on “separation-of-powers principles.” 54 F.4th at 844 (quoting Ziglar, 137 S.Ct. 1843, 1857 (2017)). The Fourth Court further explained the importance of the separation of powers principle:

We thus consider the risk of interfering with the authority of other branches, and we ask whether “there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy,” and “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.”
54 F.4th at 844-45 (quoting Ziglar, 137 S.Ct.at 1857). Further, in Tate the Fourth Circuit recognized that, “[a]gainst this now critical condition of Bivens jurisprudence and the caution that the Court has mandated when applying it, courts are clearly warned to act with utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis, or Carlson.54 F.4th at 845. The Supreme Court in Ziglar previously recognized that:
When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is “who should decide” whether to provide for a damages remedy, Congress or the courts?
Ziglar v. Abbasi, 137 S.Ct. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct. 2404, 2413 (1983)).

In Tate, the Fourth Circuit recognized the directive of the Supreme Court in Egbert that, “the absence of a remedy for a wrong is ordinarily for Congress to fix, not the courts.” 54 F.4th at 847. In Egbert, the Supreme Court wrote:

The Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action. A court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed.
Egbert, 142 S.Ct. at 1805 (cleaned up). Following the directive of Egbert, the Fourth Circuit in Tate concluded:
[I]n this context, the political branches are indeed “better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.” [142 S.Ct. ] at 1804 (cleaned up). This is especially so because we are ill-suited to “predict the systemwide consequences of recognizing a cause of action under Bivens,” and even our “uncertainty” on that question “forecloses relief.” Id. at 1803, 1804 (cleaned up).
In short, the “special factors” counseling hesitation here in providing a new cause of action are similar in kind to the factors distinguishing Tate's claim from the claim in Carlson. Heeding the Supreme Court's warning that courts should not be in the business of creating causes of action and that they must give the legislative branch “utmost deference” in considering whether to do so, our uncertainty is itself sufficient to resolve Tate's claims.
54 F.4th at 848. In reviewing the Plaintiff's claims, the undersigned finds that the same factors which counseled hesitation in Tate, are present here. This Court is ill-suited to predict the systemwide consequences of recognizing a cause of action under Bivens. As the Supreme Court in Egbert noted, ‘[t]hat uncertainty alone is a special factor that forecloses [Bivens] relief.” 596 U.S. at 493. While uncertain whether allowing the Plaintiff's Bivens claim to proceed would have systemwide consequences, the undersigned recognizes that where one prisoner's action is successful, other prisoners often raise similar claims in separate suits for damages. Thus, such uncertainty on the question of systemwide consequences as a result of recognizing a new Bivens action forecloses relief here, as it did in Tate. Accordingly, the Court finds that the Plaintiff has failed to state a claim upon which relief may be granted, and her claims should be dismissed with prejudice.

D. Failure to Respond to Defendant's Legal Arguments

Finally, in addition to the reasons cited above, although the Plaintiff filed a response to the motion to dismiss, she failed to address any of the legal arguments raised by the Defendant. Instead, Plaintiff addressed only factual issues, repeating many of the arguments made in her Amended Complaint, apparently relying upon the equities of his alleged claims to merit relief. However, as noted above, the Supreme Court in Egbert, and the Fourth Circuit in Tate, have held that extension of Bivens remedies in new contexts should be considered with extreme caution and deference to Congress. The Court declines to address the equities argued by Plaintiff because the law so clearly supports Defendants' motion to dismiss.

As noted above, because “only those questions which are squarely presented to a court may properly be addressed,” this Court may not construct Plaintiff's arguments for her. Weller, 901 F.2d at 391. Even when liberally construing the Plaintiff's allegations, she fails to assert any claims that the named defendant subjected, or caused her to be subjected, to the deprivation of any rights, privileges, or immunities which are secured by the Constitution and laws. Instead, the Plaintiff urges this Court to judicially expand civil rights remedies, in direct contravention of the holdings of superior courts. The Court declines to do so. Accordingly, for all of the above reasons, the Plaintiff has failed to state a claim for monetary relief, and her claims must be dismissed with prejudice.

V. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that the amended complaint [ECF No. 22] be DISMISSED WITH PREJUDICE, based on the Plaintiff's failure to state a claim upon which relief can be granted. It is further RECOMMENDED that the Defendants' Motion [ECF No. 45] to Dismiss be GRANTED.

Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.

Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).

This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.

The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se Plaintiff by certified mail, return receipt requested, to his last known address as reflected on the docket sheet and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.


Summaries of

Cicchiello v. Slinka

United States District Court, Northern District of West Virginia
May 22, 2024
Civil Action 3:23-CV-88 (GROH) (N.D.W. Va. May. 22, 2024)
Case details for

Cicchiello v. Slinka

Case Details

Full title:JOAN CICCHIELLO, Plaintiff, v. MS. SLINKA, Defendant.

Court:United States District Court, Northern District of West Virginia

Date published: May 22, 2024

Citations

Civil Action 3:23-CV-88 (GROH) (N.D.W. Va. May. 22, 2024)