Opinion
C. A. 6:23-cv-03017-JFA-KFM
11-21-2023
Jamil Kaari Curtis, Plaintiff, v. Federal Bureau of Prisons, FCI Williamsburg, C. Davis, Defendants.
REPORT OF MAGISTRATE JUDGE
KEVIN F. MCDONALD, UNITED STATES MAGISTRATE JUDGE
The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999) and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) alleging violations of his constitutional rights (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's complaint was entered on the docket on June 26, 2023 (doc. 1). On October 26, 2023, the undersigned issued an order informing the plaintiff that his complaint was subject to dismissal as drafted and providing him with time to file an amended complaint to correct the deficiencies noted in the order (doc. 22). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 12-13). The plaintiff has failed to file an amended complaint within the time provided; accordingly, the undersigned recommends that the instant matter be dismissed.
ALLEGATIONS
The plaintiff, a federal prisoner in the custody of the Federal Bureau of Prisons (“FBOP”) and currently located at Hazelton Penitentiary brings this action pursuant to the FTCA and Bivens alleging violations of his rights by the defendants while he was incarcerated at Williamsburg Federal Correctional Institution (“FCI Williamsburg”) (doc. 1). The plaintiff alleges that on June 13, 2022, while climbing from his top bunk for count at 9:00 p.m., he started to fall and when he caught himself, he ended up cutting the back of his right leg (id. at 5-6, 7). After he fell, the plaintiff requested medical care, but there was no medical personnel working, so the cut on his leg was not treated until the next morning (id. at 7). The next day, Nurse Davis examined the plaintiff's wound and put in stitches to close it, but only provided ibuprofen for pain and an antibiotic (id.). The plaintiff alleges that he should have been issued crutches or a wheelchair, but he was told they could not be utilized in the special housing unit (“SHU”) where he was incarcerated (id.).
When the plaintiff's stitches were removed on July 1,2022, the plaintiff alleges that Nurse Davis indicated that he rushed putting in the stitches and should have put the plaintiff in a cast or boot (id.). The plaintiff contends that he signed a form saying his medical claim had been resolved after seeing Nurse Davis on July 14, 2022, because his medical providers were changed and he stopped seeing Nurse Davis, and because Nurse Davis apologized to the plaintiff (id.). The plaintiff contends that he still has pain in his Achilles tendon and that his leg will never be the same (id. at 8). He contends that he attempted to file his administrative remedies to exhaust his claims, but that he was given the runaround (id.). The plaintiff concedes that - as noted in the medical records provided to the court - he did not follow the instructions from the medical professionals about leaving the bandage on his wound because it looked to him as if it needed to be changed (docs. 1 at 8; 1-1).
The plaintiff's alleged injuries include a cut on his leg that ended up becoming infected (doc. 1 at 6). For relief, the plaintiff seeks an order requiring the FBOP to put ladders in all cells for top bunks and money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it 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. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to the FTCA and Bivens, seeking damages and injunctive relief from the defendants. However, the plaintiff's complaint is subject to summary dismissal.
FTCA Claims
The FTCA sets forth situations in which the United States has waived the sovereign immunity it otherwise enjoys. 28 U.S.C. § 1346. The FTCA vests the district courts with:
exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). FTCA claims may only lie against the United States-not individuals. Hui v. Castaneda, 559 U.S. 799, 805-06 (2010). Nevertheless, the United States Attorney for the District of South Carolina, as the designee of the United States Attorney General, may certify that individual federal employee defendants were acting within the scope of their employment under the Westfall Act amendment to the FTCA. 28 U.S.C. § 2679. Hui, 559 U.S. at 807. The Westfall Act amendment to the FTCA provides that upon such certification, “any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). Although certification may be refused, the employee may petition the court for certification. Here, however, the record reflects no such request for certification or refusal by the government to issue the certification. Absent this certification, the court lacks jurisdiction over the plaintiff's FTCA claims against the defendants and they are subject to dismissal.
Nevertheless, the plaintiff's FTCA claims will be evaluated as if the United States was named as a defendant. As an initial matter, since the plaintiff's complaint involves actions that purportedly occurred while the plaintiff was housed at FCI Williamsburg, an FBOP facility located in South Carolina, the substantive law of South Carolina applies to his FTCA claim. Miller v. U.S., 932 F.2d 301,303 (4th Cir. 1991); Kerns v. U.S., 585 F.3d 187, 194 (4th Cir. 2009). The FTCA claims in the plaintiff's complaint have been liberally construed as follows: (1) personal injury and (2) negligent medical treatment (see generally doc. 1).
Personal Injury
To the extent the plaintiff seeks relief for the injury caused when he fell out of his bunk, his claim fails under the FTCA. While the FTCA allows a plaintiff to recover money damages for negligent or wrongful acts or omissions by federal employees, there are exceptions to the waiver of sovereign immunity, including for federal employees performing discretionary functions. See Williams v. U.S., 50 F.3d 299, 308 (4th Cir. 1995) (recognizing that the discretionary function exception “insulates the United States from liability for its agents and employees' performance of duties involving discretionary decisions.”). The discretionary function exception involves a two-prong inquiry: first, whether the challenged conduct involved an element of judgment or choice, and second whether the judgment exercised was based upon considerations of public policy. Peake v. U.S., C/A No. 1:20-cv-01450-CMC-SVH, 2020 WL 7249875, at *4 (D.S.C. Sept. 14, 2020) (internal citations omitted), Report and Recommendation adopted by 2020 WL 6390664 (D.S.C. Nov. 2, 2020), aff'd 851 Fed.Appx. 441 (4th Cir. 2021). As noted by the Fourth Circuit Court of Appeals, the two-prong inquiry balances Congress' desire to allow redress of injuries suffered by individuals due to the negligence of government actors against the need to protect the government from being hobbled from doing its duty because of tort suits. Id. (quoting Baum v. U.S., 986 F.2d 716, 720 (4th Cir. 1993)). Here, as noted, the plaintiff alleges that the defendants were negligent because they did not have ladders attached to the bunk beds in the SHU (doc. 1 at 5-6). Case law has held, however, that there are no mandatory duties or regulations regarding the manufacture of or maintenance of bunk beds in FBOP facilities and that placement (or non-placement) of ladders or railings on bunk beds is a discretionary function. See DeOrio v. U.S., C/A No. 0:20-cv-004129-RMG-PJG, 2021 WL 4054960, at *4 (D.S.C. Aug. 12, 2021), Report and Recommendation adopted by 2021 WL 3856207 (D.S.C. Aug. 30, 2021) (citing Bultema v. U.S., 359 F.3d 379 (6th Cir. 2004) (holding that claims regarding FBOP's decision to not place ladders or guard rails on top bunks were barred by the discretionary function exception); Mangum v. U.S., C/A No. 2:16-cv-00077, 2017 WL 2982335, at *4-6 (N.D. W.Va. June 5, 2017) (determining that “the addition of a third bed to an existing two tier bunk and installation of a ladder or railings on the bunk bed is a matter of discretion”), Report and Recommendation adopted by 2017 WL 2981224 (N.D. W.Va. July 12, 2017); Lee v. U.S., C/A 5:10-cv-00016, 2010 WL 3910062, at *4 (N.D. W.Va. Oct. 4, 2010) (finding that “the discretionary function exception applies and that valid safety and security reasons exist for the FBOP's decision to refuse to install ladders on the bunk beds in the SHU.”)). Accordingly, the plaintiff's personal injury claim under the FTCA is barred by the discretionary function exception to FTCA liability and should be dismissed.
Negligent Medical Treatment
Liberally construed, the plaintiff also contends that he was deprived appropriate medical care for the cut on his leg (doc. 1 at 5-6, 7, 8). Because the plaintiff's claims arise in the context of requesting and being denied treatment for his injury, his claim is akin to regular negligence, not medical malpractice. Under South Carolina Law, a negligence claim requires three elements: (1) that the defendant had a legal duty of care, (2) the defendant failed to discharge that duty, and (3) the failure by the defendant proximately caused the plaintiff an injury. See Bloom v. Ravoira, 529 S.E.2d 710, 712 (S.C. 2000). Here, although FBOP employees and medical personnel had a duty to provide the plaintiff with medical care, the plaintiff's complaint fails to allege that the defendants breached that duty to provide medical care because he concedes that care was provided-just not the care he preferred. Further, the plaintiff has not alleged an injury with respect to the lack of preferred treatment for the cut on his leg - and the cut on his leg alone cannot be the basis for the plaintiff's damages request in a negligent medical treatment claim. As such, the plaintiff's negligent medical treatment claim under the FTCA is subject to summary dismissal.
Bivens Claims
The complaint is also filed pursuant to Bivens. In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). 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, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). To state a claim under Bivens, a plaintiff must plausibly allege 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.”).
As noted, in Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a plaintiff's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the plaintiff in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has only recognized Bivens claims in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to provide emergency medical care for an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). However, as recognized by the United States Supreme Court in Egbert v. Boule, during the last 42 years, the court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” 142 S.Ct. 1793, 1799-1800 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 1803 (internal citation omitted). As recognized recently by the Fourth Circuit in a published opinion, although the Supreme Court has not overruled any of the Bivens cases, the Supreme Court has demonstrated not only regret over the Bivens cases, but also demonstrated hostility to any expansion of them. See Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022). Thus, the Supreme Court has imposed a highly restrictive analysis for Bivens cases by “(1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Id. Under Ziglar v. Abbasi, the Supreme Court framed the inquiry as a two step process: (1) first asking whether the case presents a new Bivens context and (2) if the claim arises in a new context, doing a special factors analysis to determine whether to extend Bivens to said context. Ziglar v. Abbasi, 582 U.S. 120, 135-38 (2017) (citation omitted). In Egbert, the Supreme Court decided that “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803.
The plaintiff's Bivens claim, deliberate indifference to medical needs, at first blush, appears to be a context to which Bivens has been extended under Carlson. However, because the plaintiff's deliberate indifference claim in this action presents more than “trivial” differences with Carlson, it does present a new context to which Bivens has not been extended. See Egbert, 142 S.Ct. at 1804-05 (affirming a finding of a new context despite “almost parallel circumstances.”). For example, unlike the medical indifference claim in Carson, the plaintiff's claim in this action does not involve a medical emergency, but focuses on long term and ongoing treatment for the cut the plaintiff sustained on his leg, which was non-fatal. As such, the plaintiff's claims do not involve a deliberate indifference to the provision of emergent care (as Bivens was extended in Carlson); thus, the plaintiff's claims involve a new Bivens context. Because the plaintiff's claims involve a new Bivens context, the court must examine whether special factors exist that require the court to hesitate before extending Bivens to this situation absent action from Congress. Here, the undersigned finds, as set forth in Egbert, that special factors exist requiring the court to hesitate before extending a Bivens condition in this situation absent action from Congress. Egbert, 142 S.Ct. at 1803; see Alvarado v. Fed. Bureau of Prisons, C/A No. 0:22-cv-01723-JD-PJG, 2023 WL 4089490, at *7 (D.S.C. May 10, 2023), Report and Recommendation adopted by 2023 WL 4088829 (D.S.C. June 20, 2023) (finding that deliberate indifference claim involving non-emergent medical care was a new Bivens context and special factors counseled against extending Bivens to this context in light of the Supreme Court's hostility to extend Bivens as set forth in Egbert), Report and Recommendation adopted by 2023 WL 4088829 (D.S.C. June 20, 2023). As such, the plaintiff's Bivens claim is subject to summary dismissal because extension of Bivens to this context has been rejected. Nevertheless, even presuming that the plaintiff's claim was not an expansion of Bivens, it would still be subject to dismissal.
Not a Person
The plaintiff's Bivens claims against the FBOP and FCI Williamsburg, a federal agency and the prison where the events giving rise to this action occurred, are subject to dismissal because these defendants are not persons for purposes of Bivens. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (noting that, under Bivens, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002 (noting that a Bivens action “does not lie against either agencies or officials in their official capacity” (emphasis omitted)), aff'd540 U.S. 614 (2004). As such, the plaintiff's Bivens claim against these defendants is subject to dismissal.
Deliberate Indifference to Medical Needs Claims
The plaintiff has named one individual defendant in this action for purposes of his Bivens claim, Nurse Davis. As noted, the plaintiff contends that Nurse Davis failed to provide appropriate medical care for the cut on his leg (doc. 1 at 5-6, 7-8). Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the [Constitution].” Estelle v. Gamble, 429 U.S. 97, 105 (1976). The government is required to provide medical care for incarcerated individuals. Id. at 103. However, to establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer, 511 U.S. at 837.
In order to state a claim, a plaintiff must show a serious medical need as well as that the prison official “knowingly disregarded that need and the substantial risk it posed.” DePaola v. Clarke, 884 F.3d 481, 486 (4th Cir. 2018) (citing King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Heyer v. U.S. Bureau of Prisons, 849 F.3d 202, 209-11 (4th Cir. 2017)). A “serious medical need” is a condition “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, 849 F.3d at 210 (citation omitted). “Deliberate indifference may be demonstrated by either actual intent or reckless disregard. A defendant acts recklessly by disregarding a substantial risk of danger that is either known to the defendant or which would be apparent to a reasonable person in the defendant's position.” Miltier, 896 F.2d at 851-52 (citation omitted). “It is only such indifference that can offend ‘evolving standards of decency' in violation of the Eighth Amendment.” Estelle, 429 U.S. at 106. Mere negligence or malpractice does not violate the Eighth Amendment. Id. Moreover, disagreements between an inmate and a physician over the inmate's proper medical care do not state a Section 1983 claim unless exceptional circumstances are alleged. Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985).
Here, the plaintiff has failed to state a claim for deliberate indifference to medical needs. First, in seeking relief based on improper medical care under the FTCA, the plaintiff has alleged that the medical care he received was negligent in nature; however, as noted, mere negligence or malpractice does not violate the Eighth Amendment. Estelle, 429 U.S. at 106. Further, the plaintiff's own allegations (and the three hundred pages of medical records included with his complaint (see doc. 1-1)) undermine his allegations that Nurse Davis was deliberately indifferent to his medical needs. For example, the plaintiff's allegations make clear that Nurse Davis provided him with medical care after he cut his leg including stitches, antibiotics, and pain medicine (doc. 1 at 7-8); the plaintiff just preferred different or more frequent treatment than he received. However, the plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))). As such, even presuming Bivens extended to include the plaintiff's medical indifference claim against Nurse Davis, it is subject to summary dismissal.
Request for Injunctive Relief
To the extent the plaintiff requests that this court order the FBOP to provide ladders for all bunk beds, his request for injunctive relief does not implicate the new context evaluation as required when seeking money damages under Bivens. However, “a Bivens action is not ‘a proper vehicle for altering an entity's policy.'” Ziglar, 582 U.S. at 140 (internal quotation omitted). Further, “courts are not in the business of running prisons.” Taylorv. Freeman, 34 F.3d 266, 268 (4th Cir. 1994) (internal citations and quotation marks omitted). As such, the plaintiff's claim seeking to have FBOP policy regarding ladders changed is also subject to summary dismissal.
RECOMMENDATION
By order issued October 26, 2023, the undersigned provided the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to timely file an amended complaint or failed to cure the identified deficiencies, the undersigned would recommend to the district court that the action be dismissed with prejudice and without leave for further amendment (doc. 22). The plaintiff failed to file an amended complaint within the time provided. Accordingly, in addition to the reasons discussed herein, this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. Therefore, the undersigned recommends that the district court dismiss this action with prejudice, without further leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
The plaintiff is warned that if the United States District Judge assigned to this matter adopts this report and recommendation, the dismissal of this action for failure to state a claim could later be deemed a strike under the three-strikes rule. See Pitts v. South Carolina, 65 F.4th 141 (4th Cir. 2023).
IT IS SO RECOMMENDED.
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 committees 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
250 East North Street, Room 2300
Greenville, South Carolina 29601
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).