Opinion
C/A 4:23-2106-TMC-TER
10-10-2023
Demetrius Hunter, #01451-120, Plaintiff, v. Federal Correctional Institution Medical Director, Defendant.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff commenced this action with a filing lacking information and was ordered to complete a complaint form. (ECF Nos. 1, 5). Plaintiff was instructed as to various deficiencies and given an opportunity to file a complaint form to allege facts to state an actionable claim. (ECF No. 5). Plaintiff filed a complaint form but left the name blank of Defendant on both the caption and the body of the complaint form but completed just the title of Medical Director. (ECF No. 1-2 at 1-2). The prior order had included information about defendant-name deficiencies. Plaintiff left blank all the questions concerning basis for jurisdiction, whether the claim was under Bivens or § 1983, and what constitutional rights Plaintiff alleged were being violated. (ECF No. 1-2 at 4). Under statement of claim, as to facts underlying the claim, Plaintiff states refer to Exhibit A. (ECF No. 1-2 at 5). Plaintiff alleges his injury is not receiving outside medical for various physical and mental issues. (ECF No. 1-2 at 6). Plaintiff's request for relief is only injunctive relief, requesting medical treatment. (ECF No. 1-2 at 6). Plaintiff alleges he filed a grievance, received no result, took no steps to appeal, and did not describe any efforts. (ECF No. 1-2 at 8). Under the question about any other information regarding exhaustion, Plaintiff simply stated Eighth and Fourteenth Amendments. (ECF No. 1-2 at 9).
Plaintiff's original filing requested monetary relief as well as injunctive relief. (ECF No. 1 at 3).
The attachment listed as Exhibit A -which is alleged to contain the facts of the event that occurred to Plaintiff-is a copy of a text book about the elements of a claim for denial or delay of medical treatment; the attachment does not contain any facts relating to what Defendant allegedly did to Plaintiff. (ECF No. 1-2 at 14). In Plaintiff's original filing, Plaintiff stated he was deprived of a second opinion of outside medical personnel. (ECF No. 1 at 2). The remainder of attachments are three May 2023 requests to staff where Plaintiff complains of pain, medication that he was given was not working, and a request to see outside medical. None of these requests to staff are to Defendant “Medical Director.” (ECF No. 1-2 at 15-17).
Under a liberal construction, Plaintiff's action appears to sound in Bivens as he only sues an individual person, who is a federal employee, as a defendant.
Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right” under limited specific circumstances. Carlson v. Green, 446 U.S. 14, 18 (1980). Whether Plaintiff can state a claim under Bivens is highly in doubt. See Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022).
Plaintiff's action is subject to summary dismissal for failure to state a claim upon which relief can be granted.
Plaintiff does not allege specific personal involvement or causal connection of the named individual Defendant for any Bivens claim. Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). “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). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id.
To the extent Plaintiff sues a figure in authority under Bivens because he or she is a supervisor over others, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009)(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”). Bivens is not designed to hold officers responsible for acts of their subordinates. Ziglar v. Abbasi, 137 S.Ct. 1843, 1860 (2017).
While the facts are nearly absent here, Plaintiff has failed to state a claim of constitutional magnitude as to claims regarding medical care. Mere negligence, mistake or difference of medical opinion in the provision of medical care to prisoners do not rise to an Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Lee v. Downs, 470 F.Supp. 188, 192 (E.D. Va.1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976)(“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”).
Further, Plaintiff has not alleged he has completed the exhaustion process for a Bivens claim, In order to assert a Bivens claim in federal court, inmates are first required to exhaust all inmate grievance procedures. See Porter v. Nussle, 534 U.S. 516, 524 (2002). The BOP provides a four-step grievance procedure. 28 C.F.R. § 542.10 et seq. First, an inmate must attempt to informally resolve the issue with staff.28 C.F.R. § 542.13(a). If that is unsuccessful, the inmate must then submit “a formal written Administrative Remedy Request, on the appropriate form (BP-9),” within 20 days of the “date on which the basis for the Request occurred.” 28 C.F.R. § 542.14(a). “An inmate who is not satisfied with the Warden's response [to his Administrative Remedy Request] may submit an Appeal on the appropriate form (BP-10) to the appropriate Regional Director within 20 calendar days of the date the Warden signed the response.” 28 C.F.R. § 542.15(a). Then, as a final avenue for relief, “[a]n inmate ... may submit an Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar days of the date the Regional Director signed the response.” Id. Exhaustion of a Bivens claim requires a prisoner to fully comply with all four stages of the internal prison grievance procedure. Moore v. Rife, 2023 WL 2674860, at *2 (S.D. W.Va. Mar. 29, 2023). Plaintiff alleges he has only submitted requests to staff in May 2023 and not completed exhaustion.
For all the above reasons, Plaintiff has failed to state a Bivens claim upon which relief can be granted.
RECOMMENDATION
Accordingly, it is recommended that the District Court dismiss this action with prejudice and without issuance and service of process.
It is recommended that this action be dismissed without leave to amend. See Britt v. DeJoy, 45 F.4th 790 (4th Cir. 2022).
Plaintiff's attention is directed to the important notice on the next page.
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 2317
Florence, South Carolina 29503
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).