Opinion
C/A No. 6:19-2117-TMC-KFM
10-29-2019
Robin Jean Guillaume, Plaintiff, v. Medical Staff Administrator Bradley, Nurse Chambers, Nurse Lloyd, Nurse S. Edwards, Physician R. Lepiane, Defendants.
REPORT OF 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 July 29, 2019 (doc. 1). By order filed July 31, 2019, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (doc. 7). The plaintiff complied with the Court's order, bringing the case into proper form for judicial screening. By order filed August 30, 2019, the plaintiff was informed that his complaint was subject to summary dismissal because it failed to state a claim upon which relief may be granted, and that he could attempt to cure the defects identified in his complaint by filing an amended complaint within 14 days (doc. 13). The plaintiff was informed that if he failed to file an amended complaint or otherwise cure the deficiencies outlined in the order, the undersigned would recommend that his case be dismissed (id. at 8-9). On September 25, 2019, the plaintiff filed a motion seeking an additional thirty days to provide an amended complaint, which the undersigned granted on September 30, 2019 (docs. 16; 17). On October 23, 2019, the plaintiff's amended complaint (doc. 19) was entered on the docket. However, because the amended complaint likewise fails to state a claim upon which relief may be granted, the undersigned recommends dismissal of the case.
BACKGROUND
The plaintiff brought this action regarding medical treatment received after he injured his arm in a basketball game sponsored by Federal Corrections Institution Estill ("FCI Estill") (doc. 19). The plaintiff alleges that he was initially seen by an outside physician and scheduled for additional treatment, but that the defendants failed to transport him for the scheduled treatment (id. at 6). The plaintiff contends that his treatment at the Medical University of South Carolina ("MUSC") was appropriate, but alleges that the defendants intentionally failed to take the plaintiff for scheduled follow-up treatment with MUSC in retaliation for grievances he filed (id. at 6-7). The plaintiff alleges that the defendants' actions have caused him to suffer permanent disfigurement to his arm (id. at 7). The plaintiff seeks $495,000.00 in damages (id.).
In the plaintiff's original complaint, he alleged that he was injured during an institutionally sponsored softball game (see doc. 1 at 6).
Attached to his amended complaint, the plaintiff has provided a "notice" indicating that he does not need an expert affidavit because he is not seeking relief for medical malpractice (doc. 19-1).
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 Bivens and the FTCA, seeking damages from the defendants. For the reasons that follow, the plaintiff's amended complaint is subject to summary dismissal.
FTCA Claim
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 claim and it is subject to dismissal.
Moreover, even assuming arguendo that the plaintiff had named a proper party for FTCA purposes in his amended complaint, his claim would still be subject to summary dismissal. Since the plaintiff's complaint involves actions that purportedly occurred while he was housed at FCI Estill, a Bureau of Prisons ("BOP") facility located in South Carolina, the substantive law of South Carolina applies to his FTCA claim. Miller v. United States, 932 F.2d 301, 303 (4th Cir. 1991); Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009). Under South Carolina law, claims arising from alleged negligent medical treatment, as raised by the plaintiff herein, are for medical malpractice. Delaney v. United States, 260 F. Supp. 3d 505, 509-12 (D.S.C. 2017). In order to pursue a malpractice claim in South Carolina, a plaintiff is first required to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim . . . ." See S.C.Code Ann. § 15-36-100(B). South Carolina law requires dismissal for actions filed without such an affidavit. See Rotureau v. Chaplin, C/A No. 2:09-1388-DCN, 2009 WL 5195968, at * 6 (D.S.C. Dec. 21, 2009). This requirement is part of the substantive law of South Carolina; thus, it applies to the instant action. Grant v. United States, C/A No. 3:17-377-CMC, 2017 WL 2265956, at *9 (D.S.C. May 24, 2017).; Rodgers v. Glenn, C/A No. 1:16-16-RMG, 2017 WL 1051011, at *4 (D.S.C. Mar. 20, 2017) (internal citations omitted). In his amended complaint, the plaintiff specifically asserts that his FTCA claim is based in negligence for failure to transport, and not a medical malpractice claim about the treatment of his arm—and does not attach an affidavit as required by S.C. Code § 15-36-100(B) (doc. 19-1). This assertion appears to be an attempt by the plaintiff to pursue his FTCA claim against the defendants even though he has not complied with the requirements of S.C. Code § 15-36-100(B). Nevertheless, the plaintiff's allegations that his arm is permanently disfigured because the defendants, all medical staff members, refused to transport him to MUSC for follow-up care, is based in alleged negligent medical treatment because the allegations rest on knowledge possessed by medical professionals about the effective treatment of the plaintiff's injury, including when intervention outside of the BOP would be necessary. See Delaney, 260 F. Supp. 3d at 509-12 (noting that claims involving allegedly negligent professional medical care fall under the scope of medical malpractice). Indeed, even a negligence claim—wherein the plaintiff must plausibly allege a duty owed, a breach of that duty, causation, and damages—would necessarily rely on the duty of medical professionals at FCI Estill to treat the plaintiff's injured arm by sending him for outside care, a decision which necessarily relies upon the opinion of a medical professional and thus is based in medical malpractice. See S.C. Code § 15-36-100(B) (noting that actions for medical malpractice include any action "for damages alleging professional negligence against a [health care] professional . . . based upon the action or inaction of a health care professional"). As such, the plaintiff cannot attempt to circumvent the affidavit requirement set forth in South Carolina law by asserting that his claim is based in negligence and not medical malpractice. As such, in light of the foregoing, any purported FTCA claim based upon medical malpractice and/or negligence for failing to transport the plaintiff for outside medical treatment must be dismissed. Bivens Claim
This amended 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 certain federal constitutional rights. Bivens, 403 U.S. at 388. 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."). Nevertheless, because a Bivens claim is an implied cause of action, the Supreme Court has cautioned expanding the Bivens remedy to new contexts or categories of defendants. See generally Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). As such, prior to analysis of the allegations included in the amended complaint, the court must determine if the claim presents a new Bivens context. Id. at 1859. Here, liberally construed, the plaintiff's amended complaint asserts Bivens claims based upon retaliation under the First Amendment and failure to provide adequate medical treatment under the Eighth Amendment (see doc. 19).
First Amendment Claim
The plaintiff's retaliation claim, based upon the First Amendment, is subject to summary dismissal because the Bivens context has not been extended to include First Amendment claims. See Kirtman v. Helbig, C/A No. 4:16-2839-AMQ, 2018 WL 3611344, at *3-5 (D.S.C. July 27, 2018) (examining a Bivens First Amendment retaliation claim and finding no justification for extending Bivens to address a First Amendment retaliation claim in light of the special factors consideration directed by Ziglar); see also Reichle v. Howards, 566 U.S. 658, 663 n.4 ("We have never held that Bivens extends to First Amendment claims."); Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) ("For while we have allowed a Bivens action to redress a violation of the equal protection component of the Due Process Clause of the Fifth Amendment, we have not found an implied damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a claim sounding in the First Amendment." (internal citations omitted)). Indeed, although some courts have addressed Bivens claims brought pursuant to the First Amendment, those cases assumed a Bivens claim was proper, and did not perform the Supreme Court's special factors analysis, as set forth in Ziglar. See Kirtman, 2018 WL 3611344, at *4. Nevertheless, to the extent the plaintiff's First Amendment retaliation claim relies upon access to the BOP grievance system, or asserts retaliation by the defendants to prevent future grievances by the plaintiff, the plaintiff's claim must fail because access to the grievance procedure is not a constitutionally protected right. See Adams v. Rice, 40 F.3d 72, 74 (4th Cir. 1994). As such, the plaintiff's First Amendment retaliation claim pursuant to Bivens is subject to summary dismissal.
Eighth Amendment Claim
The plaintiff's deliberate indifference claim, based upon the Eighth Amendment, however, is a context in which Bivens has been expanded to apply. See Carlson v. Green, 446 U.S. 14 (1980). Nevertheless, it is also subject to summary dismissal because the plaintiff's amended complaint fails to state a claim for relief. "Although the Constitution does require that prisoners be provided with a certain minimum level of medical treatment, it does not guarantee to a prisoner the treatment of his choice." Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988) (citing Layne v. Vinzant, 657 F.2d 468, 471 (1st Cir. 1981)); see Russell v. Sheffer, 528 F.2d 318, 318 (4th Cir. 1975) (citing Blanks v. Cunningham, 409 F.2d 220 (4th Cir.1969); Hirons v. Director, 351 F.2d 613 (4th Cir.1965)) ("Prisoners are entitled to reasonable medical care"). The government is "obligat[ed] to provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97,103 (1976). This obligation arises from an inmate's complete dependency upon prison medical staff to provide essential medical services. Id. The duty to attend to prisoners' medical needs, however, does not presuppose "that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment." Id. at 105. Instead, it is only when prison officials have exhibited "deliberate indifference" to a prisoner's "serious medical needs" that the Eighth Amendment is offended. Id. at 106. As such, "an inadvertent failure to provide adequate medical care" will not comprise an Eighth Amendment breach. Id. at 105-06.
In order to state a claim, "[a] plaintiff must satisfy two elements . . . he must show a serious medical need and he must prove the defendant's purposeful indifference thereto." Workman v. Bodiford, C/A No. 6:18-355-RBH-KFM, 2018 WL 6933427, at *3 (D.S.C. Oct. 9, 2018), Report and Recommendation adopted by 2018 WL 6829015 (D.S.C. Dec. 28, 2018), aff'd 766 F. App'x 1 (4th Cir. 2019) (quoting Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987)). A medical need is "serious" if it is "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." Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990). "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 v. Beorn, 896 F.2d 848, 851-52 (4th Cir. 1990), overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825, 837 (1994) (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. As an initial matter, the plaintiff claims that failing to transport him to MUSC for follow-up treatment was negligent—and negligent actions cannot form the basis of a deliberate indifference claim (see doc. 19 at 6-7). See Daniels v. Williams, 474 U.S. 327, 328-36 & n.3 (1986); Estelle v. Gamble, 429 U.S. 97, 105-06 (1976) (finding that deliberate indifference is a high standard that requires a showing of more than mere negligence); Pink v. Lester, 52 F.3d 73, 78 (4th Cir. 1995). Additionally, the plaintiff has failed to include any specific allegations regarding personal involvement of (or wrongdoing by) the named defendants in his amended complaint; instead, the amended complaint relies on vague and conclusory allegations against the "defendants." See Griffith v. State Farm Fire and Cas. Co., C/A No. 2:12-239-DCN, 2012 WL 2048200, at *1 (D.S.C. June 6, 2012) (noting that the plausibility standard requires more than "'an unadorned, the-defendant-unlawfully-harmed-me accusation.'" (quoting Iqbal, 556 U.S. 662, 678 (2009))). Indeed, it is unclear what types of treatment the plaintiff was prevented from receiving at MUSC, why those treatments could not have been performed at FCI Estill, how those treatments would have prevented the plaintiff's arm from becoming disfigured, or what role (if any) these defendants had in the plaintiff's medical treatment. As such, the plaintiff's vague and conclusory allegations fail to state a claim for relief and the plaintiff's deliberate indifference claim is subject to summary dismissal.
RECOMMENDATION
By order issued August 30, 2019, the undersigned gave the plaintiff an opportunity to correct the defects identified in his complaint and further warned the plaintiff that if he failed to 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. Despite filing an amended complaint, the plaintiff has not cured the deficiencies identified in the Order dated August 30, 2019 (doc. 13). Therefore, the undersigned recommends that the district court dismiss this action with prejudice and without issuance and service of process. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (in a case where the district court had already afforded the plaintiff an opportunity to amend, the district court was directed on remand to "in its discretion, either afford [the plaintiff] another opportunity to file an amended complaint or dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order") (citing Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 630 (4th Cir. 2015)). The plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge October 29, 2019
Greenville, South Carolina
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
300 East Washington Street, Room 239
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); Un i ted States v. Schronce, 727 F.2d 91 (4th Cir. 1984).