Opinion
C. A. 9:23-cv-01877-SAL-MHC
06-13-2024
Kenneth Garcia, Plaintiff, v. Nannette F. Barnes, Warden; Ms. Benson, Correctional Officer; Lieutenant Lugo; D. Taylor, Correctional Officer; C. Leary, Correctional Officer; T. Oxidon, Correctional Officer; Thompson, Correctional Officer; Johnson, Correctional Officer, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff Kenneth Garcia (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights while incarcerated at the Federal Correctional Institution (“FCI”) Bennettsville. ECF Nos. 1. Before the Court is Defendants' Motion to Dismiss, or in the alternative, for Summary Judgment (“Motion”). ECF No. 31. After the Court issued an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedures and the possible consequences if he failed to adequately respond to Defendants' Motion, Plaintiff filed a Response in Opposition to the Motion. See ECF Nos. 32, 45, 48. Defendants filed a Reply. ECF No. 49. The matter is ripe for review.
Plaintiff's Response documents arrived in two separate mailings, totaling 61 pages of argument and numerous exhibits, all of which the undersigned has considered in ruling on the Motion. See ECF Nos. 45, 46, and 48.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Civil Rule 73.02(B)(2) (D.S.C.). Because Defendants' Motion is dispositive, this Report and Recommendation is entered for review by the District Judge. For the reasons that follow, the undersigned recommends granting Defendants' Motion.
The facts, and all inferences therefrom, are construed in the light most favorable to Plaintiff, as the non-moving party. See E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (motion to dismiss); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (motion for summary judgment).
Plaintiff is a federal inmate who is currently confined at the United States Penitentiary #1 (“USP”) in Coleman, Florida, and was housed previously at FCI Bennettsville in South Carolina, from March 7, 2019, through November 12, 2020. ECF Nos. 1 at ¶ 3; 31-1, Declaration of Mr. Gurns, attachment A.
In his verified Complaint, Plaintiff names eight current and former FCI Bennettsville staff as Defendants in their individual and official capacities, including (1) former Warden Barnes; (2) former Associate Warden Benson; (3) Lieutenant Lugo; (4) Correctional Officer Taylor; (5) Correctional Officer Leary; (6) Correctional Officer Oxendine; (7) Correctional Officer Thompson; and (8) Correctional Officer Johnson. ECF Nos. 1 at ¶¶ 5- 6; 31-1 at 1-2. The events giving rise to Plaintiff's claims occurred generally between April 10, 2020, and approximately June 19, 2020. ECF No. 1 at 3-20. Specifically, Plaintiff alleges he was attacked by staff on April 10, 2020, not provided medical treatment, ridiculed and verbally harassed by staff, left in an unsanitary cell, threatened, left naked in a cell, and not provided mail. Id.
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
A. April 10, 2020 Incident
On April 10, 2020, at approximately 3:20 p.m., Defendant Taylor and other officers entered Plaintiff's cell and asked him if he had been drinking because the room smelled like alcohol. ECF No. 1 at ¶¶ 7-9. Plaintiff admitted that he had a few drinks earlier and contends he was laying down to get some rest. Id. at ¶ 9. Plaintiff was then handcuffed and escorted downstairs and out of the unit. Id. at ¶¶ 12-13.
Plaintiff alleges that he was passed off to Defendant Officer Leary, who escorted Plaintiff to the Special Housing Unit (SHU), which is where inmates are housed awaiting a disciplinary hearing for an alleged violation of a prison rule. Id. at ¶ 13. Plaintiff contends that Defendant Officer Leary proceeded to disrespect Plaintiff verbally, then slammed Plaintiff on the pavement, at which time Defendant Officer Leary began to “knee and hit plaintiff in his back, arms, ribs and legs.” Id. at ¶ 16. According to Plaintiff, soon other unidentified officers joined in on the assault by “kicking plaintiff multiple times in his back, ribs, arms and legs.” Id. at ¶ 17. Plaintiff contends the officers began to “stomp on plaintiffs [sic] legs and feet extremely hard,” restrained his legs and continued to assault him. Id. at ¶¶ 18-20. He contends that he blacked out and that, when he woke up, he was soaked in his own urine with Defendant Officers Johnson, Leary, T. Oxendine, Lt. Lugo and others all standing above him laughing. Id. at ¶ 21.
Though Plaintiff has identified this Correctional Officer's last name as “Oxidon” in the Complaint, Defendants have explained that the correct spelling is “Oxendine.” ECF No. 31 at 4, n.3.
B. June 19, 2020 Incident
Plaintiff alleges that Defendants Officer Johnson, Lt. Lopez and Officer Oxendine took him out of his cell on June 19, 2020, and that he was left “naked” in a cell for hours. ECF No. 1 at 8-9, ¶ 29. He contends that Defendants Officers Johnson and Oxendine then placed on “paper clothing” and put him in a freezing hard cell for 3 days but had no authority to do so. ECF No. 1 at 8-9, ¶ 30.
C. Incidents Alleged to have Occurred During Unspecified Times
Plaintiff alleges that after April 10, 2020, Defendant Officer Thompson and other officers, including Officers Jacobs and Davis, used harassing and racial language toward him. ECF No. 1 at 6-7, ¶¶ 24-25.
Plaintiff alleges “on another morning,” urine and feces “exploded” from the toilet in his cell, and Defendant Thompson did not immediately act to correct the issue. ECF No. 1 at 7-8, ¶ 26.
Plaintiff alleges that Defendant Thomson verbally abused inmates “throughout [Plaintiff's] seven months stay in [the] SHU.” ECF No. 1 at 8, ¶ 28.
Plaintiff also alleges that many times his incoming and outgoing mail came up missing, would not go out or was purposefully given to another inmate. ECF No. 1 at 11, ¶ 34.
He contends that he was denied his “mandated” medication, treatment and medical equipment for his medical condition. ECF No. 1 at 11, ¶ 39. He contends he filed complaints and spoke to medical personnel, Doctor O and Ms. Benson. ECF No. 1 at 11-12, ¶¶ 40-41.
II. LEGAL STANDARDS
Defendants argue they are entitled to dismissal under Rule 12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for failure to state a claim; or, alternatively, that summary judgment is appropriate pursuant to Rule 56.
A. Rule 12(b)(1)
A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). Pursuant to Rule 12(h)(3), “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3). “Lack of subject-matter jurisdiction may be raised at any time by a party or the court.” Hoblick v. United States, 526 F.Supp.3d 130, 132 (D.S.C. 2021), aff'd, No. 22-1430, 2023 WL 5275907 (4th Cir. Aug. 16, 2023).
Generally, a defendant may challenge subject matter jurisdiction in one of two ways: “(1) by contending that a complaint fails to allege facts upon which subject matter jurisdiction can be based (a ‘facial challenge') or (2) by contending that the jurisdictional allegations made in the complaint are not true (a ‘factual challenge').” Lutfi v. United States, 527 Fed.Appx. 236, 241 (4th Cir. 2013) (citing Kerns v. United States, 585 F.3d 187, 192-93 (4th Cir. 2009)). In a facial challenge, the plaintiff is given the same procedural protections he would normally receive when faced with a motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. “Namely, all alleged facts are taken as true and the motion will be denied if the complaint alleges facts that, if proven, would be sufficient to sustain jurisdiction.” Id.
On the other hand, in a factual challenge, a court may “go beyond the allegations of the complaint and in an evidentiary hearing determine if there are facts to support the jurisdictional allegations.” Id. (citation omitted). “In that situation, the presumption of truthfulness normally accorded a complaint's allegations does not apply, and the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Kerns, 585 F.3d at 192.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading 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), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This plausibility standard is not analogous to a “probability requirement,” rather “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
C. Rule 56
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). This “[l]iberal construction of the pleadings is particularly appropriate where, as here, there is a pro se complaint raising civil rights issues.” Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) (citation omitted); Williamson v. Stirling, 912 F.3d 154, 173 (4th Cir. 2018) (noting “we are obliged to construe [a complaint's] allegations liberally and with the intent of doing justice”). However, the requirement of liberal construction does not mean that the court can assume the existence of a genuine issue of material fact when none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
III. DISCUSSION
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court established a direct cause of action for damages against federal officials for violations of federal constitutional rights. Id. at 389 (“In [a previous case], we reserved the question whether violation of [the Fourth Amendment to 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.”); see Carlson v. Green, 446 U.S. 14, 18 (1980). 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. Curtis v. Fed. Bureau of Prisons, No. 6:23-CV-03017-JFA-KFM, 2023 WL 9523029, at *4 (D.S.C. Nov. 21, 2023), report and recommendation adopted, No. 6:23-CV-3017-JFA-KFM, 2024 WL 243470 (D.S.C. Jan. 23, 2024)). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Id. (citing 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. Id.; 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 his Complaint, Plaintiff alleges that Defendants, all of whom are current or former employees at FCI Bennettsville, were acting under color of federal law to deprive him of his constitutional rights. ECF No. 1 at 1-3. Defendants argue that all of Plaintiff's claims are subject to dismissal. For the reasons that follow, the undersigned agrees.
1. Official Capacity Claims
As an initial matter, Plaintiff has brought his Bivens action against Defendants “individually and in his or her official capacity.” ECF No. 1 at 3, ¶ 6. Defendants maintain that, to the extent Plaintiff's Bivens claims are brought against them in their official capacities, those claims are barred by the doctrine of sovereign immunity. ECF No. 31 at 14. Defendants are correct.
Under the principle of sovereign immunity, individuals may not sue the United States or its agencies 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). Moreover, a suit against a public employee in his or her official capacity is a suit against the public employer. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). Thus, a claim against a BOP employee in his or her official capacity - such as Defendants here - is a claim against the United States itself, as the entity that employs the official.
“[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, a Bivens action against federal employees in their official capacities for money damages based on alleged constitutional violations is barred by the doctrine of sovereign immunity. Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (“[A] Bivens action does not lie against either agencies or officials in their official capacity.”); Howard v. Fed. Bureau of Prisons, C. A. No. 99-6708, 1999 WL 798883, at *1 (4th Cir. 1999) (“Bivens will not support an action against officials sued in their official capacity only.”); Funches v. Wright, C. A. No. 86-7204, 1986 WL 17980, at *1 (4th Cir. Nov. 6, 1986) (in Bivens complaint, plaintiff must sue federal officials in their individual not official capacities); Hunter v. United States Gov't, No. CV 0:20-2695-RMG-PJG, 2021 WL 1845081, at *2 (D.S.C. Feb. 23, 2021) (“[T]o the extent [Plaintiff] seeks monetary damages [pursuant to Bivens] against the individual defendants in their official capacities, they are protected by sovereign immunity.”), report and recommendation adopted, No. 0:20-CV-2695-RMG, 2021 WL 1560444 (D.S.C. Apr. 21, 2021).
Therefore, Plaintiff's Bivens claims against Defendants in their official capacities should be dismissed.
2. Individual Capacity Claims
Defendants argue that Plaintiff's claims against them in their individual capacities should be dismissed under Rule 12(b)(6) for failure to state a claim. ECF No. 31 at 16-28. Specifically, Defendants contend that no Bivens remedy is available for the conduct alleged by Plaintiff. Plaintiff disagrees, setting forth arguments in support of his claims against Defendants in their individual capacities. ECF No. 48 at 35-43. For the following reasons, the undersigned agrees with Defendants.
a. Bivens Framework
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 recognized Bivens claims only 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)). Curtis, 2023 WL 9523029, at *4. 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.” 596 U.S. 482, 486 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 491.
As recognized by the Fourth Circuit, 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. at 844.
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 the judiciary is at least arguably less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492 (quoting 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.” Id. If there is even a single “reason to pause before applying Bivens in a new context,” a court must not recognize a Bivens remedy. Id.; Mays v. Smith, 70 F.4th 198, 202-03 (4th Cir. 2023) (“If there is any reason to think that Congress might be better equipped to create a damages remedy, then the court must decline to extend Bivens to a new context.”).
b. Plaintiff's claims present a new Bivens context
Defendants contend Plaintiff's Bivens claims present a new context because they diverge factually from the Court's three Bivens cases and because they raise potential special factors that the Supreme Court has not considered in the past. ECF No. 31 at 19-22. Plaintiff disagrees, arguing that he has raised Eighth Amendment claims, including inadequate medical care and deliberate indifference, like the claims recognized in Carlson, and that he does not have a remedy available under the Federal Tort Claims Act or elsewhere, such that special factors dictate recognition of his claims. ECF No. 48 at 36-44.
In this case, Plaintiff alleges he was attacked by staff on April 10, 2020, not provided medical treatment, not provided his prescribed medical equipment, ridiculed and verbally harassed by staff, left in an unsanitary cell, threatened, left naked in a cell, and had mail mishandled, lost or not provided. ECF No. 1 at 3-20. He contends that the deliberate indifference to his medical needs, humiliation, discrimination and constant harassment violated his rights and constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution. ECF No. 1 at 16, ¶ 50.
i. First and Fifth Amendment
As an initial matter, Plaintiff has only referenced claims under the Eighth Amendment to the Constitution. However, to the extent Plaintiff may be alleging a First Amendment claim regarding the handling of his mail, such claims bear no resemblance to any of the previous Bivens cases. Powers v. United States, No. 2:18-2227-HMH-MGB, 2019 WL 2223385, at *2, 7-9 (D.S.C. May 23, 2019) (granting motion to dismiss upon finding that plaintiff's First Amendment free exercise and retaliation claims present a new context and that special factors counseled against implying a remedy under Bivens). The Supreme Court has not extended Bivens to First Amendment claims in any context. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”); Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to extend Bivens to a First Amendment speech claim involving federal employment); Doe v. Meron, 929 F.3d 153, 169 (4th Cir. 2019) (explaining that the “Supreme Court has not recognized a Bivens remedy for an alleged violation of the First Amendment,” determining that special factors counsel against extending the Bivens remedy, and affirming dismissal of plaintiff's First Amendment claim). Thus, any First Amendment claim Plaintiff may be alleging presents a new Bivens context.
Moreover, to the extent Plaintiff may be alleging a claim under the Fifth Amendment for alleged verbal harassment, mere verbal harassment does not give rise to a constitutional violation. Wagner v. Wheeler, 13. F.3d 86, 92-93 (4th Cir. 1993) (rejecting plaintiff's claim that verbal harassment would amount to a constitutional deprivation); see also Lancaster v. Todd, No. 1:16CV200, 2017 WL 4278785, at *2 (N.D. W.Va. Sept. 27, 2017) (holding mere verbal harassment in the form of cursing and racial slurs does not state a constitutional violation), aff'd, 710 Fed.Appx. 168 (4th Cir. 2018). Plaintiff's allegations of racial discrimination appear based upon verbal harassment within the prison but, in any event, the claim differs significantly from the Fifth Amendment claim in Davis, in which the Supreme Court recognized an implied damages remedy under the Fifth Amendment Due Process Clause for gender discrimination in an employment context where an administrative assistant sued a congressman for firing her because of her gender. See 442 U.S. at 230-33. The undersigned thus finds that any Fifth Amendment claim alleged by Plaintiff also presents a new Bivens context.
ii. Eighth Amendment
Plaintiff specifically alleges violations of the Eighth Amendment. ECF No. 1. His allegations generally concern deliberate indifference to his medical needs, excessive force, and conditions of confinement. Id.
Plaintiff argues that his claim of deliberate indifference to medical needs is a context to which Bivens has been extended under the Eighth Amendment. ECF No. 48 at 40 (citing Carlson, supra.) However, Plaintiff's claim in this action presents more than “trivial” differences with Carlson and, thus, presents a new context to which Bivens has not been extended. See Egbert, 596 U.S. at 495 (affirming a finding of a new context despite “almost parallel circumstances”).
In Carlson, the prison officials “kept [the inmate] in [an inadequate] 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,” resulting in the inmate's death. 446 U.S. at 16 n.1. In other words, Carlson involved a medical emergency and fatal medical incompetence.
Here, unlike Carlson, Plaintiff's claim, as alleged, does not involve a medical emergency. Instead, the genesis of Plaintiff's claim is severe pain and damage, including nerve damage, to his right foot, as well as a scar on his left knee. ECF No. 1 at 6, ¶ 22. He also alleges denial of prescribed medication and equipment, which caused him sleepless nights, chest pain and respiratory complications while he was in the SHU. ECF No. 1 at 11-12, ¶¶ 39, 41. None of these issues is alleged to be emergent, life-threatening or fatal, as in Carlson. See 446 U.S. at 16 n.1.
This Court and others have found a new context in Eighth Amendment cases where the medical condition and care at issue were this different from Carlson. See, e.g., Alvarado v. Fed. Bureau of Prisons, No. CV 0:22-1723-JD-PJG, 2023 WL 4089490, at *7 (D.S.C. May 10, 2023) (finding case distinguishable from Carlson because plaintiff did “not present an acute injury that is a serious threat to his life, but rather a degenerative back condition that causes pain”), report and recommendation adopted, No. 0:22-CV-1723-JD-PJG, 2023 WL 4088829 (D.S.C. June 20, 2023); Washington v. Fed. Bureau of Prisons, C. A. No. 5: 16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (finding new context where plaintiff did not allege a medical emergency as in Carlson); Moreno v. Hoey, C. A. No. 1:19-2756-DCC-SVH, 2020 WL 5986214, at *1 (D.S.C. Apr. 22, 2020) (observing that alleged deliberate indifference to “sleep apnea, back pain, prostate issues, and a lump on [the plaintiff's] testicle” may present different context from Carlson, but dismissing on other grounds); Martinez v. U.S. Bureau of Prisons, C. A. No. 5:15cv2160-TJH, 2019 WL 5432052, at *8 (C.D. Cal. 2019) (finding failure to treat hypertension was “demonstrably different in kind and severity” from Carlson), report and recommendation adopted, No. 515CV02160TJHAFM, 2019 WL 5424414 (C.D. Cal. Oct. 22, 2019), aff'd, 830 Fed.Appx. 234 (9th Cir. 2020); Gonzalez v. Hasty, 269 F.Supp.3d 45, 65 (E.D.N.Y. 2017) (finding new context where plaintiff alleged that officials failed to provide dental hygiene supplies and supportive shoes), aff'd, 755 Fed.Appx. 67 (2d Cir. 2018).
Moreover, Plaintiff's claims under the Eighth Amendment pertaining to excessive force or conditions of confinement contain contexts in which Bivens has not been extended. See Williams v. Lynch, Case No. 1:16-cv-3043-DCC, 2018 WL 4140667, at *3 (D.S.C. August 30, 2018) (noting specifically that courts have not expanded the Bivens remedy to Eighth Amendment claims for unconstitutional conditions of confinement.)
iii. Special Factors
Because Plaintiff's claims involve a new Bivens context, this Court must examine whether special factors exist that require the Court to hesitate before extending Bivens to this situation absent action from Congress. The special factors inquiry is broad-ranging and simply asks “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, 596 U.S. at 496 (quoting Abbasi, 582 U.S. at 136). If Congress has created “any alternative, existing process for protecting the [injured party's] interest,” that itself may “amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Abassi, 582 U.S. at 137 (citing Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). “So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 596 U.S. at 498.
Here, there are “alternative remedies for aggrieved parties in [Plaintiff's] position that independently foreclose a Bivens action.” Id. at 497. The Bureau of Prison's (“BOP's) Administrative Remedies Program (ARP) allows an inmate to file a grievance on issues related to their own conferment, including receipt of inadequate medical care or otherwise suffering a threat to his welfare, to correct the issue. 28 C.F.R. § 542.10 et seq.; see also Egbert, 596 U.S. at 497 (holding that the U.S. Border Patrol's grievance procedure “independently foreclose[d] a Bivens action” and citing BOP's ARP as a special factor that made a Bivens claim unavailable in Correctional Services Corp. v. Malesko, 534 U.S. 61, 74 (2001)). “The [ARP] process is substantial; it contains its own statutes of limitations, filing procedures, and appeals process .... And prisoners may retain attorneys for assistance with the process.” Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020). For situations determined to “threaten[] the inmate's immediate health or welfare,” the warden must respond to a grievance within three days. 28 C.F.R. § 542.18. Notably, with respect to federal incarcerated persons, by adding an administrative exhaustion requirement to the Prison Litigation Reform Act (“PLRA”), see 42 U.S.C. § 1997e(a), Congress has incorporated the ARP into its scheme for resolving inmate disputes and decreasing the amount of litigation emanating from prisons. The ARP thus bears the endorsement of both the BOP and Congress as the proper means of addressing the complaints of federal inmates.
The Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. (“FTCA), provides another alternative process that allows inmates to remedy past harm related to medical care by seeking damages from the United States. In fact, a negligence claim under the FTCA will often provide an inmate's best option to recover damages. While Bivens found that the interests protected by “state laws regulating trespass and the invasion of privacy” were “inconsistent or even hostile” to the Fourth Amendment's protections, 403 U.S. at 394, the Court explained in Malesko that “such logic does not apply” when a plaintiff can assert negligence in lieu of an Eighth Amendment claim, 534 U.S. at 73-74. Indeed, “the heightened ‘deliberate indifference' standard of Eighth Amendment liability . . . would make it considerably more difficult for [a plaintiff] to prevail than on a theory of ordinary negligence.” Id. at 73 (internal citation omitted). Between the ARP and the FTCA, inmates in Plaintiff's position have alternative processes to protect their interest in addressing threats to their wellbeing and obtaining adequate medical care.
Plaintiff argues, however, that these mechanisms do not provide a remedy to him because, among other things, the FTCA primarily pertains to negligence, where his case “involves issues pertaining to inhumane conditions, discrimination, racial slander, humiliation, retaliation, mail tampering, mental anguish, emotional distress and the recovery of compensatory and punitive damages, some of which are not covered under the FTCA such as punitive damages. ECF No. 36 at 61. However, these arguments as to the type of claims ignore the remedies available under the BOP ARP.
Moreover, as to the issue of availability of damages, punitive or otherwise, “legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation.” Abbasi, 582 U.S. at 148. As noted by the Supreme Court:
Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.Id. at 148-49 (internal citations omitted); see also Montcalm Pub. Corp. v. Commonwealth of Va., 199 F.3d 168, 171 (4th Cir. 1999) (Congress passed the PLRA in 1995 to “limit litigation brought by prisoners”); Cagle v. Hutto, 177 F.3d 253, 257 (4th Cir. 1999) (explaining that the PLRA is intended to “remove the federal district courts from the business of supervising the day-to-day operation” of prisons).
“Congress's action in this area in light of the Prison Litigation Reform Act and otherwise not only demonstrates the existence of alternative remedies, but also causes pause for the judicial creation of additional damage remedies.” Williams v. Lynch, No. 1:16-CV-3043-DCC, 2018 WL 4140667, at *4 (D.S.C. Aug. 30, 2018), on reconsideration in part sub nom. Williams v. Bennett, No. 1:16-CV-3043-DCC, 2019 WL 1614829 (D.S.C. Apr. 16, 2019). Because “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 court[] 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.” Abbasi, 582 U.S. at 137.
Because Plaintiff's claims would expand Bivens to a “new context” and because there are “special factors” counseling against doing so, Plaintiff's Bivens claims as set forth in the Complaint are not cognizable. See Mays, 70 F.4th at 206. Accordingly, the undersigned recommends that Defendants' Motion be granted and Plaintiff's Complaint dismissed.
Because the undersigned recommends dismissal of Plaintiff's Bivens claims for failure to state a plausible claim under Rule 12(b)(6), Defendants' assertion that Defendants Barnes and Benson are entitled to qualified immunity will not be addressed. See DiMeglio v. Haines, 45 F.3d 790, 799 (4th Cir. 1995) (“In many cases where a defendant has asserted qualified immunity, dismissal or even an award of summary judgment may be obviously warranted, based upon existing law, without the court ever ruling on the qualified immunity question.”). Regarding the remaining arguments by Defendants for failure to exhaust and statute of limitations, those are more appropriately made at summary judgment. Although Defendants have moved, in the alternative, for summary judgment, Plaintiff argues that he has not had a meaningful opportunity to gather evidence through discovery. ECF No. 48 at 1-2. Accordingly, any summary judgment argument is premature and, thus, the issues of failure to exhaust and statute of limitations are not addressed herein.
IV. CONCLUSION
It is RECOMMENDED that Defendants' Motion to Dismiss, ECF No. 31, be GRANTED and that this case be DISMISSED without prejudice.
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
Post Office Box 835
Charleston, South Carolina 29402
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).