Opinion
C/A 1:21-3712-MGL-SVH
12-28-2021
Brian J. Coll, Plaintiff, v. Hank Alamia; CO Thomas; CO Brown; CO Williams; Lt. McCoy; Lt. Tucker; Lt. Hankerson; Capt. Goodman; AW Mendosa; AW Acting Warden Winfield; Regional Director; Director of BOP; BOP; U.S. Attorney General; and United States, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Brian J. Coll (“Plaintiff”), proceeding pro se and in forma pauperis, filed this complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Hank Alamia, CO Thomas, CO Brown, CO Williams, Lt. McCoy, Lt. Tucker, Lt. Hankerson, Capt. Goodman, AW Mendosa, AW Acting Warden Winfield, Bureau of Prisons (“BOP”), Regional Director of BOP; Director of BOP, U.S. Attorney General, and the United States (collectively “Defendants”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends this matter be summarily dismissed.
Bivens established that victims of a constitutional violation perpetuated by a federal actor may sue the offender for damages in federal court despite the absence of explicit statutory authorization for such suits.
I. Factual Background
Plaintiff alleges Defendants placed Alamia, who he alleges was known to be dangerous, in Plaintiff's cell. [ECF No. 1 at 8]. Plaintiff states he told “staff” and “3 COs” to move Alamia from his cell, but was told that McCoy did not want Alamia alone. Id. He alleges that on October 14, 2020 at approximately 4:55 a.m., Alamia struck him 30 times with the power-pack to his CPAP machine, including 15 times to his head. Id. at 12. Plaintiff states he received stiches and x-rays and sustained injuries. He alleges he has severe headaches, hears voices, ringing in his ears, and cannot sleep well. Id. at 13.
On November 22, 2021, the undersigned issued an order advising Plaintiff of the deficiencies of his complaint and permitting him an opportunity to amend his complaint by December 13, 2021. [ECF No. 8]. Also on November 22, 2021, the undersigned issued an order directing Plaintiff to provide service documents necessary to bring this case into proper form. [ECF No. 7]. Although Plaintiff complied with the order to provide service documents [ECF Nos. 11, 12], he failed to submit an amended complaint.
II. Discussion
A. Standard of Review
Plaintiff filed his complaint pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss a case upon a finding that the action fails to state a claim on which relief may be granted or is frivolous or malicious. 28 U.S.C. § 1915(e)(2)(B)(i), (ii). A finding of frivolity can be made where the complaint lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). A claim based on a meritless legal theory may be dismissed sua sponte under 28 U.S.C. § 1915(e)(2)(B). See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
A complaint 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). Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The 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 plaintiff could prevail, it should do so. A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990). Although the court must liberally construe a pro se complaint, the United States Supreme Court has made it clear a plaintiff must do more than make conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79.
B. Analysis
1. Insufficient allegations as to individual defendants
Plaintiff's complaint contains no factual allegations against the individual defendants. Plaintiff claims he asked different correctional officers to move Alamia, but he does not state their names. Although he alleges he was told McCoy did not want Alamia alone, he does not provide any allegations that McCoy knew of a specific danger to Plaintiff. Therefore, Plaintiff has not alleged sufficient facts allowing the court to find any particular individual is potentially liable to him.
2. No supervisory liability
To the extent Plaintiff has sued any defendant in their supervisory capacity, such as a warden, acting warden, regional or general director of the BOP, or United States Attorney General, he has failed to state a claim under Bivens. The doctrine of supervisory liability is generally inapplicable to Bivens suits, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom that results in illegal action. See Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1142-43 (4th Cir. 1982). The Supreme Court explains that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see Slakan v. Porter, 737 F.2d 368, 372-74 (4th Cir. 1984) (finding officials may be held liable for the acts of their subordinates, if the official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization).
3. Sovereign Immunity
Under the principle of sovereign immunity, individuals may not sue the United States or its agencies, such as the BOP, without their consent. See FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (declining to extend Bivens to permit suit against a federal agency); Global Mail Ltd. v. United States Postal Service, 142 F.3d 208, 210 (4th Cir. 1998) (federal governmental entity entitled to sovereign immunity unless Congress waives that immunity and consents to suit); see also Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (“If a federal prisoner in a [Federal Bureau of Prisons (“BOP”)] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer.... The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP.”). “[T]he United States has not waived sovereign immunity in suits claiming constitutional torts.” Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999); see also Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (“Bivens did not abolish the doctrine of sovereign immunity of the United States. Any remedy under Bivens is against federal officials individually, not the federal government.”). Therefore, the BOP and the United States are subject to summary dismissal.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends this matter be dismissed. As Plaintiff has had an opportunity to amend his complaint, the undersigned recommends the dismissal be with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); 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).