Opinion
CIV-22-824-G
04-11-2024
OTIS MAYS, Plaintiff, v. BUREAU OF PRISONS et al., Defendants.
REPORT AND RECOMMENDATION
SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Otis Mays, a federal pretrial detainee appearing 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 civil rights. (ECF No. 1).United States District Judge Charles B. Goodwin has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. § 1915(e)(2)(B). Based on that review, the Court should DISMISS the Complaint.
“An action arising under Bivens . . . provides a means by which a prisoner may challenge the conditions of his or her confinement.” Powell v. Fleming, 27 F. Appx' 970, 973 (10th Cir. 2001) (citing McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811-12 (10th Cir. 1997)).
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against a governmental entity, officer, or employee and each case in which a plaintiff proceeds in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint or any portion of the complaint that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b); see also Kay v. Bemis, 500 F.3d 1214, 121718 (10th Cir. 2007) (indicating that court uses same analysis for complaint's sufficiency whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Mays' allegations as true and construe them, and any reasonable inferences to be drawn from them, in the light most favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Since Mr. Mays is proceeding pro se, his Complaint must be construed liberally. See id. at 1218. The Court “review[s] the complaint for plausibility; that is, to determine whether the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct,” then the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves not only to weed out claims that do not (in the absence of additional allegations) have a reasonable prospect of success, but also to inform the defendants of the actual grounds of the claim against them.” Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Whether a complaint contains sufficient facts to avoid dismissal is context-specific and is determined through a court's application of “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. PLAINTIFF'S COMPLAINT
Mr. Mays alleges a violation of his constitutional rights while incarcerated at the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma. (ECF No. 1). The basis of Plaintiff's Complaint concerns prison officials' alleged failure to place him on a bottom bunk, due to his proclivity for seizures. (ECF No. 1-1:3-5). According to Mr. Mays, he was placed on a top bunk instead of a bottom bunk, and a seizure caused him to fall out of bed and injure his shoulder-resulting in pain, headaches, vision issues, loss of sensation in his arm, and the urination of blood. (ECF No. 1-1:3-5).
As Defendants, Mr. Mays names: (1) John Doe #1-FTC correctional officer; (2) John Doe #2-FTC unit team member; (3) John Doe #3-the FTC lieutenant who “responded to medical;” (4) Jane Doe #1-FTC medical personnel; (5) John Doe #4- FTC correctional officer who “responded to medical;” (6) John Doe #5-FTC correctional officer and housing unit officer; (7) the FTC Warden; (8) Jane Doe #2-FTC medical provider; (9) unknown medical person who answered “medical kites;” (10) John Doe #6-FTC lieutenant who “came around during rounds;” (11) unknown unit manager; (12) the Bureau of Prisons; and (13) the FTC. (ECF No. 1-1:1-2). Plaintiff sues the Defendants in their official and individual capacities, and seeks monetary damages and injunctive relief. (ECF Nos. 1:6; 1-1:5).
IV. DEFENDANT NUMBERS TWO, THREE, FOUR, FIVE, SIX, SEVEN, EIGHT, TWELVE AND THIRTEEN
In the style of the Complaint and when listing the Defendants, Plaintiff names Defendants which he enumerates 1-13, as listed above. See ECF No. 1-1:3-4. But in the body of the Complaint, Mr. Mays fails to allege any wrongdoing committed by the Defendants listed as Defendants two, three, four, five, six, seven, eight, twelve and thirteen. See ECF No. 1-1:3-4. Instead, Mr. Mays lists two claims-the first claim is asserted against “Defendant John Doe #1” and the second claim is asserted against “Defendants John Doe #2, Warden, #9 unknown, #11 unknown, [and] #10 leutenit [sic].” (ECF No. 1-1:3-4).
Mr. Mays' failure to link Defendants two, three, four, five, six, seven, eight, twelve and thirteen with any alleged constitutional violations, renders the Complaint legally deficient as to these Defendants. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) ("to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff believes the defendant violated.”); see also Adams v. GEO Group Inc., 2022 WL 2392878, at *4 (W.D. Okla. May 25, 2022) (recommending dismissal of defendants named in the style of the complaint only), adopted, 2022 WL 2392644 (W.D. Okla. July 1, 2022). Thus, the Court should dismiss any claim against these Defendants, without prejudice.
V. THE REMAINING DEFENDANTS
In Claims #1 and #2, asserted against John Doe #1, John Doe #2, the FTC Warden, and Defendants 9-11, Mr. Mays alleges violations of the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments, as well as negligence under state law. (ECF No. 11:3-4). As to John Doe #1, Plaintiff states that he informed this Defendant that he had a “medical pass” which restricted him to a bottom bunk, but this Defendant ignored it and told Mr. Mays he “needed to work that out with [his] cell mate.” (ECF No. 1-1:3). Plaintiff alleges that this Defendant's actions put him “at risk of injury” for falling off the top bunk due to Plaintiff's seizures. (ECF No. 1-1:3). Subsequently, Plaintiff alleges that he did have a seizure, fell off the top bunk, and suffered injuries. (ECF No. 1-1:3). Plaintiff asserts similar claims of liability against John Doe #2, the FTC Warden, and Defendants 9-11, alleging that he informed these Defendants regarding his need for a bottom bunk, but that “non [sic] of the def responded or did anything to have [him] moved from [his] top bunk to a lower bunk.” (ECF No. 1-1:4).
Plaintiff's allegations are akin to that of a claim for failure to protect under the Fourteenth Amendment, which may be raised in the context of a lawsuit against state actors under 42 U.S.C. § 1983. See Turner v. Oklahoma County Board of County Commissioner, 804 Fed.Appx. 921, 925 (10th Cir. 2020) (citing Burke v. Regalad, 935 F.3d 960, 991 (10th Cir. 2019)). However, The United States Supreme Court “has made clear that expanding the Bivens remedy is now a disfavored judicial activity.” Zglar v. Abbas,, 137 S.Ct. 1843, 1857 (2017) (quotation omitted). Indeed, courts in this Circuit have rejected the expansion of Bivens to include claims in similar contexts based on a failure to protect. See Mibrook v. United States, No. 18-cv-1962-RM-NRN, 2023 WL 1927986, at *1 (D. Colo. Feb. 10, 2023); Ahmed v. Donley, No. 22-3199-JWL-JPO, 2022 WL 16854279, at *3 (D. Kan. Nov. 10, 2022) (“Because Bivens does not create a private right of action for a federal agent's unconstitutional failure to protect an inmate, it appears that no private cause of action currently exists under which Plaintiff may seek [relief].”); Ajai v. United State., No. 15-cv-02849-RM-KLM, 2020 WL 5758521, at *9-10 (D. Colo. Sept. 28, 2020) (dismissing Bivens claims alleging failure to protect based on lack of a Bivens remedy). As a result, the Court should dismiss Plaintiff's "failure to protect” claims asserted against the remaining Defendants for failure to state a claim.
VI. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should dismiss all claims against all Defendants. Plaintiff is hereby advised of his right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by February 13, 2024. See 28 U.S.C. § 636(b)(1); and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal questions contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
VII. STATUS OF THE REFERRAL
This Report and Recommendation terminates the referral to the undersigned magistrate judge in the captioned matter.