Opinion
C. A. 4:23-3558-SAL-TER
09-14-2023
LaShawn LaMont Johnson, #52978-074, Plaintiff, v. U/M Thompson, U/M Danforth, Unknown, Warden Jansen, Lt. Williams, Lt. Hamilton, C/O Taylor Dr. Anderson, Psych. Department, C. Smith, Defendants.
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 alleges that he brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In August 2023, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. The court specifically pointed to said deficiencies. (ECF No. 8). Plaintiff filed an Amended Complaint but deficiencies remain. (ECF No. 11).
Plaintiff has not indicated that he is seeking to pursue an FTCA claim. Even if Plaintiff was seeking relief under the FTCA, he must have filed an administrative claim directly with the appropriate agency and obtain a final ruling. The exhaustion requirement under the FTCA is jurisdictional and may not be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir. 1990). Moreover, the United States is the only proper defendant in a FTCA claim. See 28 U.S.C. § 1346(b)(1) ; see 28 U.S.C. § 2679(b)(1) (personal capacity suits against employees are not cognizable under the FTCA). Here, Plaintiff did not indicate that he filed an administrative claim with the proper agency or sue a proper party under the FTCA.
Plaintiff alleges he is pursuing a plethora of claims under Bivens: “failure to protect, official oppression, official misconduct, civil conspiracy, 1985, 1986, retaliation, due process violation, equal protection clause, cruel and unusual punishment, poor living conditions, PREA violation, [and] 1st Amendment violation.” (ECF No. 11 at 5). Plaintiff's filing is disorganized and difficult to follow at times. It appears Plaintiff's allegations are in regard to threats from other inmates, officers' lack of reaction to Plaintiff's complaints, access to grievance forms, access to property, access to court, cell conditions, classification, a strip search, calculation/access to RDAP in relation to his sentence, and medical. (ECF No. 11).
Bivens “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.” Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eight Amendments only in certain limited contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979); Ziglar v. Abbasi, 137 S.Ct. 1843, 1859 (2017). Whether Plaintiff can state a claim under Bivens is highly in doubt. See Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022).
Plaintiff alleges he was given a cell with a ripped mattress, wet floor, molding cloth smell, and insects. (ECF No. 11 at 16, 19). Plaintiff's claims as to conditions are new Bivens contexts and extending Bivens to conditions claims has been previously rejected. The Supreme Court has not recognized an implied cause of action under Bivens for alleged violations of the Eighth or Fourteenth Amendment based on conditions of confinement claims. Other courts also have found a Bivens cause of action does not exist for a conditions of confinement claim. Bulger v. Hurwitz, 2022 WL 340594, at *6 (N.D. W.Va. Jan. 12, 2022)(collecting cases). Plaintiff has failed to state a claim upon which relief may be granted as to Plaintiff's conditions of confinement claims.
Plaintiff alleges when he complained to one officer about another officer, his property was taken and he was told bad things happen to people who file complaints, then told to submit to a strip search. (ECF No. 11 at 15-16). As to retaliation, “there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S.Ct. 1793, 1807 (2022); Earle v. Shreves, 990 F.3d 774, 776 (4th Cir. 2021) (rejecting request to extend Bivens to claims of unlawful retaliation by prison officials for filing grievances in violation of the First Amendment). Plaintiff has failed to state a cognizable retaliation claim.
Plaintiff alleges he has enough time to go to RDAP. (ECF No. 11 at 18). The denial of RDAP is not a violation of the Eighth Amendment and there is no protected liberty interest in RDAP. See Robinson v. Gonzales, 493 F.Supp.2d 758, 764 (D. Md. 2007). Plaintiff has failed to state a claim in regard to RDAP.
Plaintiff alleges he requested protective custody. (ECF No. 11 at 14). Plaintiff alleges he was given a cellmate who was a general population inmate while Plaintiff was a protective custody inmate. (ECF No. 11 at 16-17). Plaintiff alleges he told Defendants he was not to be housed with inmates from Tennessee. (ECF No. 11 at 28). As to Plaintiff's allegations regarding classification/custody placement, “a federal inmate's challenge to his security classification cannot support a viable Bivens claim because a federal inmate has no constitutional right to any particular custody classification.” Thuan Minh Pham v. Saad, 2018 WL 1377395, at *7 (N.D. W.Va. Mar. 19, 2018). Plaintiff has failed to state a claim upon which relief can be granted as to his custody/classification.
Plaintiff alleges he was strip searched once in May 2023. (ECF No. 11 at 16). In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme Court declined to extend Bivens where prison employees subjected detainees to punitive strip searches. After Ziglar, federal prison strip searches have been examined by this court and found to have arisen in a meaningfully different context from the claim presented in Bivens; thus the context was new but special factors-including plaintiff's access to other remedies like FTCA and BOP administrative process-counseled hesitation in extending Bivens in the absence of congressional action. Jones v. Antonelli, No. 6:19-cv-3036-MBS-KFM, 2020 WL 6292486, at *4 (D.S.C. Jan. 15, 2020), report and recommendation adopted, 2020 WL 5557841 (D.S.C. Sept. 17, 2020)(“Special factors counsel against extending Bivens in this context; thus, the plaintiff's unreasonable search and seizure claim is subject to summary dismissal.”). There is no supported reason to stray from this analysis. See also Ball v. Streeval, __F.Supp.3d__, 2023 WL 1930003, at *6 (W.D. Va. Feb. 9, 2023) (collecting cases recognizing that claims of excessive force, harassment and threats by officers, sexual harassment, and sexual assault all presented new Bivens contexts to which Bivens should not be extended (internal citations omitted)). Plaintiff has failed to state a claim upon which relief can be granted as related to the strip search.
Plaintiff alleges he was “jumped” and running from other inmates with knives and a defendant just watched. (ECF No. 11). As to Plaintiff's allegations of failure to protect from other inmates, this year the Fourth Circuit Court of Appeals found in a case involving a fatality that failure to protect claims arise in a new context and special factors counseled against any extension of Bivens. Bulger v. Hurwitz, 62 F.4th 127, 138-142 (4th Cir. 2023). Plaintiff has failed to state a claim upon which relief could be granted as to failure to protect allegations.
As to Plaintiff's allegations of loss of property, claims alleging a loss of personal property are not actionable under Bivens. See Nogales v. Criwell, No. 2:18-cv-1334-JMC-MGB, 2019 WL 2619906, at *9 (D.S.C. Apr. 1, 2019), report and recommendation adopted, 2019 WL 2082491 (D.S.C. May 13, 2019), appeal dismissed, 2019 WL 7489150 (4th Cir. Oct. 7, 2019) (explaining that there can be no implied cause of action under Bivens for the detention of personal property because Congress explicitly legislated a private cause of action for such claims through the Federal Tort Claims Act (“FTCA”)); Giordano v. United States, No. 6:22-cv-796-JFA-KFM, 2022 WL 4540961, at *6 (D.S.C. Aug. 12, 2022), report and recommendation adopted, 2022 WL 4540409 (D.S.C. Sept. 28, 2022) (finding that special factors counseled against recognizing a Bivens action for the deprivation of an inmate's personal property because plaintiff had alternative remedies available, including an FTCA claim).
Plaintiff alleges property was taken that was related to cases and that he experienced problems with court mail. (ECF No. 11 at 15-16, 18). As to Plaintiff's liberally construed allegations of denial of access to court, “Congress and the courts have not expanded the Bivens remedy to include claims for denial of access to courts.” Clemmons v. United States, No. 0:16-cv-1305-DCC, 2018 WL 4959093, * 2 (D.S.C. Oct. 15, 2018). Plaintiff has failed to state a claim upon which relief can be granted as to denial of access to court allegations.
Plaintiff alleges “simply agreeing to a plot is conspiracy, you don't have to do anything else but say yes.” (ECF No. 11 at 21). As to Plaintiff's allegations of conspiracy, the Fourth Circuit Court of Appeals has “never recognized a “Bivens conspiracy claim” as a substantive cause of action.” Unus v. Kane, 565 F.3d 103, 126 n.26 (4th Cir. 2009).
Plaintiff alleges as a result of his classification that his privileges have been suspended without any disciplinaries and that this is a due process violation. (ECF No. 11 at 21). Plaintiff conclusorily alleges he is pursuing equal protection claims as well. (ECF No. 11 at 5). As to Plaintiff's allegations of due process and equal protection violations, the Fourth Circuit recently found that a Bivens remedy was foreclosed where a federal prisoner attempted to bring claims for money damages against federal prison employees for violations of due process and equal protection. Mays v. Smith, 70 F.4th 198, 200 (4th Cir. 2023)(noting the only recognized Fifth Amendment-based Bivens claim is in Davis, Davis concerned alleged sex discrimination on Capitol Hill, and that Davis does not mean that the entirety of the Fifth Amendment is “fair game”). The Fourth Circuit found that the claims arose in a new context and factors counseled against extension of Bivens, noting the existence of the administrative remedy program and that the statutory scheme delegated authority to BOP for housing decisions and prison discipline. Id. at 205-206; see also Curry v. Olberding, No. 1:21-cv-1300-HMH-SVH, 2022 WL 791925, at *7 (D.S.C. Feb. 3, 2022)(noting that Fifth Amendment due process and equal protection claims are new contexts to which Bivens should not be extended), adopted by 2022 WL 788874 (D.S.C. Mar. 15, 2022).
Plaintiff alleges generally he is pursuing a § 1985 claim and generally states defendants are ganging together against him. (ECF No. 11). To state a claim under § 1985, a plaintiff must allege “concrete facts” showing that defendants entered a conspiracy which deprived the plaintiff of his civil rights. Francis v. Giacomelli, 588 F.3d 186, 196-97 (4th Cir. 2009). Courts reject “section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory manner, in the absence of concrete supporting facts.” Simmons v. Poe, 47 F.3d 1370, 1377 (4th Cir. 1995)). The Fourth Circuit has “rarely, if ever, found that a plaintiff has set forth sufficient facts to establish a section 1985 conspiracy.” Id. at 1377. Plaintiff has failed to state a claim upon which relief can be granted as to claims under § 1985.
To the extent Plaintiff alleges “left foot injury no treatment til 6/21/23,” Plaintiff later alleges a nurse looked at his foot right after the May incident. (ECF No. 11 at 7, 14). To the extent Plaintiff alleges he has had no mental health treatment even though he has requested it multiple times, Plaintiff later alleged he was on seroquel and it was switched to Zyprexa without Plaintiff being consulted. (ECF No. 11 at 7, 23). 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.”). Plaintiff has failed to state a Bivens claim under the Eighth Amendment. Additionally, Plaintiff did not causally connect any defendants to these allegations, has already been given an opportunity to amend, and availed himself of that opportunity without correction of this deficiency.
Despite Plaintiff's many allegations, he has failed to state a claim upon which relief can be granted as to all the federal defendants here.
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 further 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).