Opinion
C. A. 9:23-04665-DCC-MHC
06-27-2024
Michael Moore, Plaintiff, v. Warden Janson, United States of America, Defendants.
REPORT AND RECOMMENDATION (PARTIAL SUMMARY DISMISSAL)
This is a civil action filed by Plaintiff, Michael Moore, proceeding pro se and in forma pauperis. Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. An Amended Complaint (ECF No. 8) was filed on December 6, 2023, and a Second Amended Complaint (ECF No. 22) was filed on June 26, 2024.
I. BACKGROUND
Plaintiff is an inmate at Federal Correctional Institution in Edgefield, South Carolina (FCI-Edgefield). He states that he brings Eighth Amendment claims under 42 U.S.C. § 1983 (§ 1983) and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680. ECF No. 22 at 7.
With his Complaint, Plaintiff submitted a letter from the United States Department of Justice denying Plaintiff's administrative tort claim and informing him that he was afforded six months from the date of the mailing of the communication (July 24, 2023) to file an action in the appropriate United States District Court. Plaintiff filed this action on September 19, 2023. See ECF Nos. 1 and 1-1.
Plaintiff alleges he began having serious medical issues, that he describes as “having odor of feces coming from [his] mouth[,]” on approximately February 4, 2019. He claims he complained repeatedly about his condition for nineteen months “without any significant medical attention.”
He asserts he was diagnosed with gastroesophageal reflux disease on June 7, 2022. Plaintiff alleges he made several formal requests to be seen by a gastroenterologist but his requests and his substantial problems were ignored by a medical contractor. Although Plaintiff admits that medication was prescribed, he claims it was not effective. ECF No. 22 at 10.
After allegedly suffering with pain for three and one-half years, Plaintiff claims he was referred to a specialist who recommended hiatal hernia repair on September 28, 2022. Plaintiff contends that he has been refused the recommended surgery for over two and one-half years. He asserts that he currently suffers pain and anxiety from his ongoing serious medical condition which allegedly is being deliberately ignored by Defendants.
Plaintiff asserts:
The United States through and by Warden Janson at FCI Edgefield has a recognized duty to provide adequate and timely medical treatment to Plaintiff. Warden Janson, through the medical contractor at FCI Edgefield has neglected to provide that medical care. Furthermore, acted with deliberate indifference to the medical condition causing needless pain and suffering constituting a violation of the Eighth Amendment's protection against cruel and usual punishment.
Of equal importance, the failure to provide adequate and recommended treatment in a reasonable, timely fashion constitutes medical malpractice by the medical contractor and the United States is liable through failure to properly ensure the needed medical treatment.ECF No. 22, at 11 (errors in original). He requests declaratory and injunctive relief and monetary damages. Id. at 7, 12.
II. STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the
Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
III. DISCUSSION
For the reasons discussed below, it is recommended that Defendant Warden Janson be dismissed as a Defendant to this action and that Plaintiff's Eighth Amendment claims be dismissed.
A. Claims under § 1983 Subject to Summary Dismissal
As noted above, Plaintiff states that he brings his Eighth Amendment claims under § 1983. However, any claims under § 1983 should be summarily dismissed because this statute only permits suit against “state actors” and does not permit suit against the federal government or any of its officers. See District of Columbia v. Carter, 409 U.S. 418, 424-25 (1973) (“[A]ctions of the Federal Government and its officers are at least facially exempt from [§ 1983's] proscriptions.”); see also Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir. 1976) (“No claim lies under § 1983, however, for actions taken under color of federal law.”). Instead, Plaintiff appears to bring Eighth Amendment claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999). In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of some federal constitutional rights. 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); see also Tun-Cos v. Perrotte, 922 F.3d 514, 520 (4th Cir. 2019) (noting that § 1983 does not provide a cause of action against federal officials). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Curtis, 2023 WL 9523029, at *4 (citing Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)).
To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added).
B. Bivens Claims Against the United States and Against Defendant Janson in his Official Capacity Should be Dismissed
To the extent Plaintiff may be attempting to bring his Eighth Amendment claims under Bivens against the United States or against Defendant Janson in his official capacity, he may not do so. Although Bivens actions allow for recovery of money damages as to some claims against federal officials who violate the United States Constitution in their individual capacities, Bivens “did not abolish the doctrine of sovereign immunity of the United States.” Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996). That is, any “remedy under Bivens is against federal officials individually, not the federal government.” Id. (emphasis added); see also Starling v. United States, 664 F.Supp.2d 558, 563 (D.S.C. 2009) (“The purpose of Bivens in allowing suit against federal officers in their individual capacity is to deter the individual officer from committing constitutional violations, not to deter the agency.”). Thus, federal agencies or federal officials acting in their official capacities are protected from a Bivens action under the traditional principal of sovereign immunity. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (noting a Bivens action will “not lie against either agencies or officials in their official capacity” (emphasis omitted)). Thus, any Bivens claims against the United States and against Janson in his official capacity should be dismissed.
C. Bivens not an Available Remedy for Plaintiffs Eighth Amendment Medical Claims
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)). See 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 (internal citation omitted).
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.”).
Here, Plaintiff's Bivens claim, to the extent he is alleging a claim for deliberate indifference to medical needs, initially appears to be a context to which Bivens has been extended under the Eighth Amendment. See Carlson, supra. However, because Plaintiff's deliberate indifference claim in this action presents more than “trivial” differences with Carlson, it 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”). For example, unlike the medical indifference claim in Carlson, Plaintiff's claim, as alleged here, does not involve a medical emergency, but focuses on treatment for Plaintiff's gastrointestinal problems, which are not alleged to be fatal. ECF No. 22 at 10; see Carlson, 446 U.S. at 16 n.1. As such, Plaintiff's claim in this case does not involve a deliberate indifference to the provision of emergent care (as Bivens was extended in Carlson); thus, Plaintiff's claim involves a new Bivens context.
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. Here, the undersigned finds, as set forth in Egbert, that there is reason to think that Congress might be better equipped to create a damages remedy in this instance, such that special factors exist requiring the Court to hesitate before extending a Bivens condition in this situation. Egbert, 596 U.S. at 483; see Curtis, 2023 WL 9523029, at *4 (finding that deliberate indifference claim involving non-emergent medical care was a new Bivens context and special factors counseled against extending Bivens to this context); Alvarado v. Fed. Bureau of Prisons, C/A No. 0:22-cv-01723-JD-PJG, 2023 WL 4089490, at *7 (D.S.C. May 10, 2023) (same), report and recommendation adopted, 2023 WL 4088829 (D.S.C. June 20, 2023). Accordingly, because Plaintiff's claim would expand Bivens to a “new context” and because there are “special factors” counseling against doing so, Plaintiff's Bivens claim based on non-emergent care is not cognizable. See Mays, 70 F.4th at 206.
D. Failure to State Eighth Amendment Claim Against Defendant Janson
Even if Plaintiff can bring a claim under Bivens, he fails to state an Eighth Amendment claim against Defendant Janson. To state a claim for deliberate indifference to a serious medical need, a plaintiff must allege that he had a serious medical need and that the defendant acted with deliberate indifference to that need. See Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209-210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)); see also King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Estelle v. Gamble, 429 U.S. 97, 104 (1976). A “serious medical need” is “one that has been 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.” Iko, 535 F.3d at 241 (internal quotation marks omitted). To constitute deliberate indifference to a serious medical need, “the treatment [a prisoner receives] must be so grossly incompetent, inadequate, or excessive to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990), overruled on other grounds by Farmer v. Brennan, 511 U.S. at 837. Unless medical needs were serious or life threatening, and the defendants were deliberately indifferent to those needs of which he was aware at the time, a plaintiff may not prevail. Estelle v. Gamble, 429 U.S. at 105; Farmer v. Brennan, 511 U.S. at 837; Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986). Plaintiff has not alleged that Warden Janson, who he has not alleged is a medical caregiver, had any role or direct responsibility regarding Plaintiff's medical care. There is no indication that Janson had any personal involvement in Plaintiff's medical care, interfered with the medical care provided, or prevented Plaintiff from receiving care.
To the extent that Plaintiff is attempting to allege claims for negligence or malpractice, such claims do not rise to the level of deliberate medical indifference. In seeking relief based on improper medical care under the FTCA, Plaintiff has alleged that the medical care he received or did not receive was negligent in nature; however, mere negligence or malpractice does not violate the Eighth Amendment. Estelle, 429 U.S. at 105-106. If Plaintiff's claim is instead a disagreement as to the proper treatment to be received, such an allegation does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F.2d 112 (10th Cir.1976); Lamb v. Maschner, 633 F.Supp. 351, 353 (D. Kan.1986). Plaintiff appears to admit he received medical treatment, but claims he did not receive the treatment he desired. However, Plaintiff is not constitutionally entitled to the treatment of his choice. See Sharpe v. S.C. Dep't of Corrs., 621 Fed.Appx. 732, 733 (4th Cir. 2015) (unpublished per curiam opinion) (noting that “mere disagreement between an inmate and medical staff regarding the proper course of treatment provides no basis for relief” under § 1983 (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975))).
Additionally, to the extent that Plaintiff may be attempting to bring claims against Defendant Janson based on a theory of supervisory liability, such claims are subject to summary dismissal. To state a § 1983 claim for supervisory liability, a plaintiff must allege:
(1) that the supervisor had actual or constructive knowledge that [his or her] subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that 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) that there was an “affirmative causal link” between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.Wilkins v. Montgomery, 751 F.3d 214, 226 (4th Cir. 2014) (quoting Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)). Here, Plaintiff has not alleged any facts to establish supervisory liability as to Defendant Janson.
E. FTCA Claims against Defendant Janson
As noted above, Plaintiff also brings claims under the FTCA. Although Plaintiff may bring a claim against Defendant the United States under FTCA, he may not bring an FTCA claim against
Defendant Janson. A suit under the FTCA lies only against the United States and a federal district court lacks subject matter jurisdiction over claims asserted against federal agencies or individual federal employees such as Defendant Janson. See Sheridan v. Rendell, 465 F.Supp.2d 528, 531 (D.S.C. 2006). Thus, any FTCA claims against Defendant Janson should be dismissed.
IV. RECOMMENDATION
Based on the foregoing, it is recommended that the Court dismiss Defendant Warden Janson and Plaintiff's claims under § 1983 and Bivens without prejudice. The Second Amended Complaint should be served on Defendant the United States.
Thus, if this report and recommendation is adopted, Plaintiff's remaining claims will be his claims under the FTCA against Defendant the United States.