Opinion
Civil Action No. 1:03CV193.
July 30, 2004
REPORT AND RECOMMENDATION
I. PROCEDURAL HISTORY
On September 9, 2003, the plaintiff, Alonzo D. Dabney ["Dabney"], an inmate at FCI — Morgantown, Morgantown, West Virginia, filed a pro se complaint against Warden Bledsoe, Warden Al Haynes, Gorge Buigge, Assistance Warden Jeff Bullard, Bonita Redman-Lynch, and Heikkinen Gortz.
Dabney asserts that on February 6, 2002, he suffered a heart attack while working for UNICOR at FCI-Morgantown. Dabney alleges the hazardous work place at UNICOR "contributed and probably caused the heart attack." According to Dabney, his medical problems were exacerbated by the chemicals used that day at UNICOR and that such chemicals "are not listed in the hazardous materials, safety related institutional statements," nor "part of the required safety orientation program." (Complaint p. 8). Dabney also alleges that he was exposed to a hazardous work place because there was little ventilation in the warehouse because the warehouse contained too many boxes, the windows would not open, the inside and outside doors were locked closed, the fans were inoperable, there were no safety emergency phones on the job site and there were no chemical automatic alarms.
Dabney states that the physician at the hospital advised him the chemical fumes triggered his heart attack.
Dabney asserts that "the chemicals which caused [his] heart attack were not normally on premises. They were purchased at a local store and there was no safety sheet for them at the time." (Complaint p. 9).
Dabney further alleges as follows:
the failure to supervise, the failure to provide safe working condition[s], the refusal to follow known safety procedures evidence deliberate indifference to [his] health and welfare. Forcing [him] to work in these inhumane and known unsafe condition under threat of additional punishment was no only deliberate indifference to my health and safety it was cruel and unusual punishment.
Dabney attached to his complaint a September 27, 2002 response from Harley G. Lappin, Regional Director, Mid-Atlantic Regional Office in which Dabney's request for Adminstrative Remedy Regional Appeal was denied. Dabney was advised that "this incident will be considered under the Inmate Accident Compensation System as you were informed by the warden. Should you wish to pursue monetary damages, you may file a claim under the Federal Tort Claims Act." Dabney then filed a Central Office Administrative Remedy Appeal. On December 3, 2002, he was advised that "as monetary compensation is not available through the Administrative Remedy Program, you may file a tort claim per the Federal Tort Claims Act if you believe staff acted negligently."
In December 2002, Dabney filed a Claim for Damage, Injury or Death regarding the heart attack he suffered while working for UNICOR. On March 11, 2003, Bill Burlington, Regional Counsel, Federal Bureau of Prisons, advised Dabney that his claim had been considered under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. According to Mr. Burlington, Dabney sustained a myocardial infarction. Mr. Burlington stated that "there is no indication that the worksite was a factor in your cardiac condition, nor is there any evidence that any act or omission of a Bureau of Prisons employee was a factor in any injury you may have suffered." Dabney was further advised as follows:
work-related injuries are covered exclusively by the inmate accident compensation system as authorized by 18 U.S.C. § 4126, and Title 28 CFR, Part 301. This section provides a person who sustains a work-related injury while incarcerated, a means to seek compensation after release from prison for continuing impairment resulting from the injury. The United States Supreme Court held in U.S. v. Demko, 395 U.S. 149 (1965) that this compensation system is an inmate's sole means of recovery for work-related injuries. This claim is not cognizable under the Federal Tort Claims Act. Accordingly, the claim is denied.
Dabney was further advised that if he was dissatisfied with the decision, he had six months "from the date of mailing of this notification in which to bring suit in the appropriate U.S. District Court." Subsequently, on September 9, 2003, Dabney filed suit in this Court. Dabney requests that he "be compensated for pain and suffering and complications that may arise in the future, due to this chemically induced accident. Including medical treatment and further testing if necessary."
This matter is pending before me for initial review and report and recommendation pursuant to LR PL P83.02. Having screened Dabney's complaint in accord with the standing order of this Court and in accord with the provisions of 28 U.S.C. §§ 1915(e) and 1915A, the undersigned concludes that Dabney is not entitled to the relief he requests and recommend that his complaint be dismissed with prejudice.
28 U.S.C. § 1915A provides, in pertinent part, that:
(a) Screening. — The court shall review . . . a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for dismissal. — 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.28 U.S.C. § 1915(e)(2)(B) states:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . .
(B) the action or appeal —
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
II. ANALYSIS
The undersigned has determined that Dabney is seeking remedy in this Court pursuant to the Federal Tort Claims Act ["FTCA"] andBivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). The FTCA does not preclude a Bivens action because only monetary damages are available under the FTCA. See Carlson v. Green, 446 U.S. 14, 19-23 (1980); Dunbar Corp. v. Lindsey, 905 F.2d 754, 762 (4th Cir. 1990).Based on the information presented Dabney has exhausted his administrative remedies regarding his claims under the FTCA.
The Supreme Court has held that "a person can sue under the Federal Tort Claims Act to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee." United States v. Muniz, 374 U.S. 150 (1963).
However, Dabney's claims under the FTCA do not make it past the screening process because the Inmate Accident Compensation System, 18 U.S.C. § 4126, is the exclusive remedy against the Government for a federal prisoner's work-related injuries, and bars a suit for damages for such injuries under the FTCA. See United States v. Demko, 385 U.S. 149, 152 (1966).
Pursuant to 28 C.F.R. § 301.102(a) "the term `work-related injury' shall be defined to include any injury including occupational disease or illness proximately caused by the actual performance of the inmate's work assignment." "The cause of the injury is irrelevant so long as the injury itself occurred while the prisoner was on the job." Aston v. United States, 625 F.2d 1210, 1211 (5th Cir. 1980).
Dabney states that the definition under 28 C.F.R. § 301.102(a) applies to him. He alleges his heart attack, which occurred while he was working at UNICOR, was caused by the chemicals to which he was exposed in the workplace. Thus, Dabney's complaint under the FTCA should be dismissed for lack of subject matter jurisdiction as his exclusive remedy is under the Inmate Accident Compensation System.
However, 18 U.S.C. § 4126 "does not preclude Bivens suits against prison officials." Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Bagola v. Kindt, 39 F.3d 779, 780 (7th Cir. 1994). Dabney's Bivens action will be addressed below.
Dabney has exhausted him administrative remedies.
The Supreme Court has created a counterpart to § 1983 so that individuals may bring a suit against a federal actor for violating a right guaranteed by the Constitution or federal law. In Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that "a cause of action arises under the Constitution when Fourth Amendment rights are violated" by federal actors. The Supreme Court has extended the Bivens holding to Eighth Amendment rights. Carlson v. Green, 446 U.S.14 (1980).
Liberally construing Dabney's complaint as required by Haines v. Kerner, 404 U.S. 519, 520 (1972) and Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978), the undersigned has interpreted Dabney's complaint as raising a claim that the defendants violated his Eighth Amendment Rights.
To succeed on an Eighth Amendment "cruel and unusual punishment" claim, a prisoner must prove two elements: (1) that objectively the deprivation of a basic human need was "sufficiently serious," and (2) that subjectively the prison official acted with a "sufficiently culpable state of mind."Wilson v. Seiter, 501 U.S. 294, 298 (1991).
The subjective component of a "cruel and unusual punishment" claim is satisfied by showing deliberate indifference by prison officials. Wilson, 501 U.S. at 303. "[D]eliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Farmer v. Brennan, 511 U.S. 825, 835 (1994). Basically, a prison official "must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. A prison official is not liable if he "knew the underlying facts but believed (albeit unsoundly) that the risk to which the fact gave rise was insubstantial or nonexistent." Id. at 844.
In Dabney's complaint, he asserts that "the failure to supervise, the failure to provide safe working condition, the refusal to follow known safety procedures evidence deliberate indifference to [his] health and welfare. Forcing [him] to work in these inhumane and known unsafe condition under threat of additional punishment was no only deliberate indifference to my health and safety it was cruel and unusual punishment." (Complaint p. 9).
First, there is no indication in the complaint, regarding what, if any, involvement, Warden Haynes, Warden Bledsoe and "Assistance Warden" Bullard had with the use of the chemicals at issue. "In a Bivens suit, there is no respondeat superior liability. Instead, liability is personal, based upon each defendant's own constitutional violations." Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001) (internal citation omitted).
However, when a supervisor is not personally involved in the alleged wrongdoing, but has knowledge of a subordinate's actions, the supervisor may be liable under § 1983 on the basis of supervisory liability. Three elements are necessary in order to establish supervisory liability under § 1983: "(1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a `pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff; (2) the supervisor's response to that knowledge was so inadequate as to show `deliberate indifference to or tacit authorization of the alleged offensive practices,' and (3) there was an `affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.), cert. denied, 513 U.S. 813 (1994).
"Establishing a `pervasive' and `unreasonable' risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm or constitutional injury." Id. "A plaintiff may establish deliberate indifference by demonstrating a supervisor's `continued inaction in the face of documented widespread abuses."' Id.
Dabney's allegations do not reveal the elements necessary to state a claim for supervisory liability. Thus, the complaint against Warden Haynes, Warden Bledsoe and "Assistance Warden" Bullard should be dismissed for failure to state a claim upon which relief may be granted.
With regard to the remaining defendants, Buigge, Redman-Lynch and Gortz, Dabney does not make any allegations against them. Instead, Dabney makes a conclusory allegation without setting forth how each of the defendants were involved in subjecting him to cruel and unusual punishment. There is nothing in the complaint which reveals that they were deliberately indifferent to Dabney's medical condition. Dabney alleges that the day he had a heart attack chemicals were being used at UNICOR which "were not normally on premises." Dabney does not allege that the defendants knew of the alleged risk the new chemical would cause and disregarded that risk. Thus, the complaint against Defendants Buigge, Redman-Lynch, and Gortz should be dismissed for failure to state a claim upon which relief may be granted.
III. RECOMMENDATION
In consideration of the foregoing, the undersigned recommends that Dabney's complaint be dismissed with prejudice and dismissed from the docket.
Any party may file within ten (10) days after being served with a copy of this Recommendation, with the Clerk of the Court written objections identifying the portions of the Recommendation to which objections are made, and the basis for such objections. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Judge. Failure to timely file objections to the Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1);United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 right to appeal from a judgment of this Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);Thomas v. Arn, 474 U.S. 140 (1985).
The Clerk of the Court is directed to mail a copy of this Report and Recommendation to the pro se plaintiff.