Opinion
C. A. 8:22-cv-00550-DCN-JDA
06-10-2022
Leonard Brown, Plaintiff, v. Nanette F. Barnes, Lt. Gillard, Lt. Byrd, Unit Manager Perez, Counselor Kapusta, Unicor Foreman Scott, L. Jarret, Health Service Administrator Warren, Medical Doctor Doctor O., Assistant Warden Melissa E. Benton, Food Service Administrator Chandler, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin, United States Magistrate Judge
Leonard Brown (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action purportedly challenging various conditions of his confinement under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (a “Bivens claim”). Plaintiff is an inmate in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated at the Bennettsville Federal Correctional Institution (“FCI Bennettsville”) in South Carolina.
Plaintiff is a “frequent filer,” having filed at least 20 cases in various federal courts around the country. The Court takes judicial notice of Plaintiff's numerous actions. See Philips v. Pitt Cty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining that courts “may properly take judicial notice of matters of public record”); Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”). In the past two years, Plaintiff has filed five cases in this Court at case numbers 8:20-cv-00002, 8:20-cv-01995, 8:20-cv-02925, 8:21-cv-01418, and 8:22-cv-00550. Additionally, Plaintiff has filed the following cases in other courts: case numbers 1:04-cv-2135, 1:16-cv-2388, 2:17-cv-0224, and 1:20-cv-2369 in the Northing District of Georgia; case numbers 5:07-cv-0223, 6:07-cv-0886, 5:07-cv-0460, and 5:08-cv-0339 in the Middle District of Florida; case number 1:13-cv-0458 in the Western District of Louisiana; case numbers 3:16-cv-0262 and 3:18-cv-0624 in the Southern District of Mississippi; case number 2:19-cv-0234 in the Southern District of Indiana; and appellate case numbers 16-14029, 21-11789, and 22-11427 in the Eleventh Circuit Court of Appeals. The undersigned notes that many of Plaintiff's prior cases involved issues and claims similar to those raised in the present case.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02, D.S.C., the undersigned Magistrate Judge is authorized to review such complaints for relief and to submit findings and recommendations to the District Court. Upon review, the undersigned finds that certain claims and Defendants in this action are subject to summary dismissal. Specifically, Claims 1, 2, 4, 5, 6, and 7, and Defendants Barnes, Perez, Benton, Chandler, Byrd, Kapusta, Gillard, Jarret, O'Conner, and Scott are subject to dismissal. Claim 3, which is asserted against only Defendants Warren and Dr. O, remains pending. Contemporaneously with this Report and Recommendation, the undersigned will enter an order authorizing service of process of Claim 3 against Defendants Warren and Dr. O.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a motion for temporary restraining order and/or preliminary or permanent restraining order. [Doc. 1.] By Order dated March 1, 2022, the undersigned directed Plaintiff to file a Complaint on the standard court form. [Doc. 8.] Thereafter, Plaintiff filed a 61-page Complaint pursuant to Bivens, asserting 16 claims against 33 Defendants. [Doc. 1-5.]
Additionally, the undersigned issued a Report on March 1, 2022, recommending that the District Court deny Plaintiff's motion for temporary restraining order and/or preliminary injunction. [Doc. 9.] By Order dated March 31, 2022, the Honorable David C. Norton adopted the Report and Recommendation and denied Plaintiff's motion. [Doc. 18.].
On March 23, 2022, upon review of the pro se Complaint, the undersigned entered an Order to notify Plaintiff that this action was subject to summary dismissal for reasons identified by the Court in its Order. [Doc. 15.] The Court noted, however, that Plaintiff may be able to cure the pleading deficiencies of his Complaint and granted Plaintiff twenty-one days to file an amended complaint. [ Id. at 2, 34-35.] Plaintiff was warned as follows:
If Plaintiff fails to file an amended complaint that corrects those deficiencies identified [in the Court's Order], this action will be recommended for summary dismissal . . .[Id. at 36.] On April 8, 2020, Plaintiff filed a hand-written Amended Complaint [Doc. 20] and service documents for the Defendants named in the Amended Complaint [Docs. 22; 22-1]. Additionally, Plaintiff has filed another motion for temporary restraining order and/or preliminary injunction. [Doc. 25.]
Accordingly, this matter is before the undersigned for a review of the Amended Complaint as well as the pending motion for temporary restraining order and/or preliminary injunction.
Plaintiff's Amended Complaint replaces his original Complaint and is considered to be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.”) (citation and internal quotation marks omitted); see also 6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2017) (“A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case ....”). As such, the undersigned considers only the allegations in Plaintiff's Amended Complaint.
Factual Allegations from the Amended Complaint
Claims
Plaintiff makes the following allegations in his Amended Complaint, which he organizes into seven distinct claims. [Doc. 20.]
Although Plaintiff wrote “Claim 8” on the top of page 8 of his Amended Complaint, it appears that the paragraph on that page relates to Claim 7 on the prior page. The allegations in the paragraph on page 7 under the “Claim 7” heading and in the paragraph on page 8 under the “Claim 8” heading are asserted against Defendant Scott and are related to Plaintiff's retaliation claim arising from the denial of a prison job. Thus, the undersigned concludes that Plaintiff intended to assert only 7 claims and not 8 and will treat the allegations in the paragraph on page 7 under the “Claim 7” heading and in the paragraph on page 8 under the “Claim 8” heading as one claim referred to herein as “Claim 7.” In any case, the Court has considered all of Plaintiff's allegations.
Claim 1 is asserted against Defendant Barnes, the Warden at FCI Bennettsville. [ Id. at 1-2.] Plaintiff contends that, upon his arrival at the prison, he noticed a “high level of contraband at the prison” and so he emailed the Warden and asked her to stop prison staff from bringing contraband into the prison. [Id. at 2.] However, Defendant Barnes did nothing to stop the prison staff from bringing contraband and instead retaliated against Plaintiff for filing grievances concerning the issue. [Id.] Plaintiff fails to allege facts regarding the alleged retaliation.
Claim 2 is asserted against Defendants Barnes and Unit Manager Perez. [Id. at 2-3.] Plaintiff alleges that these two Defendants facilitated a consensual relationship between a transgender inmate and a homosexual inmate in violation of the Prison Rape Elimination Act (“PREA”). [Id.] Plaintiff contends the two inmates were having sex and that Defendants knew they were having sex. [Id. at 3.] Plaintiff further contends that “[t]here is no consensual sex in the BOP. All sex is rape. Someone should be charged.” [Id.]
Claim 3 is asserted against Defendants Health Service Administrator Warren and Doctor O. [ Id. at 3-4.] Plaintiff alleges that, in 2020, he fell while attempting to get into the top bunk of his cell, which caused extreme pain in his left hip, left knee, and left hand. [Id. at 3.] Plaintiff's left hand was swollen and his palm was purple. [Id.] He was not seen by medical until February 3, 2021, after he filed a tort claim. [Id.] According to Plaintiff, Defendant Warren stated the BOP would not spend money on Plaintiff for an MRI or a specialist and that Plaintiff should learn to live with the pain. [Id. at 4.] Doctor O saw Plaintiff one time for the pain and told him that the ball joint had popped out of his hip socket and that the socket was too narrow for the ball to go back in, resulting in the two bones scraping against each other. [Id.] Plaintiff alleges the only treatment provided was Tylenol that he must buy at the commissary. [Id.]
Claim 4 is asserted against Defendants A.W. Benton, Food Service Administrator Chandler, and Lt. Byrd. [Id.] Plaintiff contends these three Defendants conspired to punish him for filing a complaint against them for serving spoiled and expired food. [Id.] Plaintiff alleges that, in August 2020, he took an unopened box lunch to Defendant Benton to show her that a package of humus inside the box had burst open and the rancid contents had soiled all of the other food in the box. [Id.] Plaintiff contends that Defendant Chandler said the humus was good. [Id. at 5.] Plaintiff showed Defendants Benton and Chandler that the humus had a use by date of June 2020. [Id.] Plaintiff notified these Defendants that this was the fourth complaint about food he had made with no resolution and that he would be filing a complaint with the Office of the Inspector General. [Id.] Defendant Benton then ordered Plaintiff to go to the “Bench.” [Id.] Defendant Byrd said they would make an example out of Plaintiff for the way he spoke to them. [Id.] Plaintiff was in full uniform in 100 degree weather, sitting directly in the sun, without access to water, for over 4 hours. [Id.] Plaintiff claims he was dehydrated, dizzy, suffered a headache, and was hungry and thirsty. [Id.] Plaintiff contends this “intimidation and torture was orchestrated to block [his] access to legal redress.” [Id.]
Claim 5 is asserted against Defendant Counselor Kapusta. [Id.] According to Plaintiff, Defendant Kapusta “is racist towards blacks,” she discriminates against black inmates, and “[s]he blatantly displays her disgust of blacks.” [Id.] Plaintiff contends inmates of different races receive different treatment when it comes to cell changes, job placements, and day-to-day interactions. [Id.]
Claim 6 is asserted against Defendants Officer Jarret, Officer O'Connor, and Lt. Gillard. [ Id. at 6-7.] Plaintiff contends these Defendants retaliated against him in violation of his First Amendment rights to free speech and legal redress. [Id. at 6.] Plaintiff contends that, on August 22 and August 23, inmates had to wait over 15 hours between the evening meals and breakfast meals in violation of BOP policy. [Id.] Petitioner asked Defendant Jarret to intervene on both days, but she said it was not her job. [Id.] Plaintiff “filed a grievance in response to Jarret's indifference” and informed her that he had filed a complaint against her. [Id.] According to Plaintiff, Defendant Jarret sent Plaintiff to the Lieutenant's office out of fear of her exposure for having a romantic relationship with Officer O'Connor and in retaliation for Plaintiff's filing of a grievance. [Id.] Plaintiff contends that Officer Jarret falsified an incident report stating they had a verbal conflict over masks, which Plaintiff contends is a fabrication of the truth. [Id.] When Plaintiff entered the Lieutenant's office, he noticed 8 officers inside the room. [Id.] Lt. Gillard stated they had heard about Plaintiff's proclivity for filing complaints against staff and that they were not going to tolerate it at FCI Bennettsville. [Id.] Defendant Gillard instructed Plaintiff never to speak to another staff member. [Id.] Plaintiff advised Defendant Gillard that he was a veteran and earned the right to free speech and that he would continue to talk to staff and file complaints if needed. [Id.] Defendant Gillard then ordered officers to lock Plaintiff in the SHU. [Id.] When Plaintiff was cuffed, he started yelling and screaming. [Id.] Plaintiff told Defendant Gillard that he would initiate a hunger strike. [Id.] Defendant Gillard then yelled “you bucking” and charged aggressively at Plaintiff. [Id. at 7.] Plaintiff had to turn his body to avoid being hit. [Id.] Plaintiff was placed in the SHU and was not allowed to review his property as required by the CFR. [Id.] After he was released from the SHU, Plaintiff was given a property bag and instructed to sign a property sheet receipt. [Id.] He was not allowed to review his property until he arrived in his cell. [Id.] At that time, he noticed that his commissary food, postage stamps, batteries, and several other items of personal property were missing, totaling $680. [Id.] Plaintiff contends that Defendants Jarret and O'Connor took his property in retaliation for Plaintiff's legal redress. [Id.] Plaintiff contends he then filed a tort claim and grievances. [Id.]
Claim 7 is asserted against Defendant UNICOR Foreman Scott. [Id.] According to Plaintiff, Defendant Scott blocked his access to a UNICOR job in violation of his First Amendment rights. [Id.] Specifically, Plaintiff contends that Defendant Scott hired individuals for jobs based on his friendships with them and inmates who would pay for a position rather than based on the hiring policy set forth in the Code of Federal Regulations (“CFR”). [Id. at 8.] Plaintiff contends that, under the CFR, he should have been hired based on his priority status as a veteran. [Id.]
Relief
Based on these claims, Plaintiff requests the following relief. As to Claim 1, Plaintiff requests that the United States Attorney's Office conduct a full criminal investigation into the staff and inmates at FCI Bennettsville. [Id.] Additionally, Plaintiff seeks punitive damages in the amount of $1 million to be paid to the Shriner's Children Hospital and for the immediate removal of Defendant Barnes and SIS Gurnes. [Id.] As to Claim 2, he requests that the United States Attorney's Office conduct a criminal investigation into the conspiracy to commit sexual abuse at FCI Bennettsville, that punitive damages in the amount of $1 million be paid to the Shriner's Children Hospital, and for the immediate removal of Defendant Barnes and Unit Manager Perez from their positions. [Id. at 9.] As to Claim 3, he requests treatment and surgery for his injured hip, knee, and left hand, and for an immediate transfer to a care level 2 prison. [Id.] As to Claim 4, he requests a criminal investigation against Defendants Benton, Chandler, and Byrd for torture; for their immediate removal from their positions; and for a full audit of the food services department. [Id.] As to Claim 5, he requests the immediate removal of Kapusta from her position. [Id.] As to Claim 6, he requests the immediate removal of Defendants Jarret, Gillard, and O'Connor from their positions; for the expungement of incident report number 3538778; for a payment of $680 in damages caused by Defendant Jarret; and for sanctions to be imposed against the staff involved in the altercation related to Claim 6. [Id.] Finally, as to Claim 7, he requests to be immediately hired in UNICOR, for the immediate removal of Foreman Scott and Willis from their positions, and for an audit of all new hires at UNICOR. [Id. at 10.]
APPLICABLE LAW
Review under 28 U.S.C. §§ 1915 and 1915A
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).
Plaintiff filed this action 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).
Further, Plaintiff is a prisoner under the definition in 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 Plaintiff had prepaid the full filing fee, this Court would be charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the action if (1) it were frivolous, malicious, or failed to state a claim upon which relief may be granted, or (2) if it sought monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Liberal Construction of Pro Se Pleadings
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Although the Court must liberally construe the pro se pleadings and a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in his pleadings, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact); cf. Skinner v. Switzer, 562 U.S. 521, 530 (2011) (holding that plaintiff need not pin his claim for relief to precise legal theory). “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.'” Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). As noted, although the Court must liberally construe the pro se complaint, a plaintiff must do more than make conclusory statements to state a claim for relief. See Iqbal, 556 U.S. at 677; Twombly, 550 U.S. at 555. Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face, and the reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678-79; see also Adams v. Rice, 40 F.3d 72, 74-75 (4th Cir. 1994) (explaining that, although the court must liberally construe the pro se complaint, a plaintiff must do more than make mere conclusory statements to state a claim); White v. White, 886 F.2d 721, 723-74 (4th Cir.1989) (dismissing complaint dismissed because it “failed to contain any factual allegations tending to support his bare assertion”). Thus, although a plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the complaint, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
Rule 8 Pleading Requirements
Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose behind Rule 8 is “to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation and quotation omitted). Further, the plaintiff is obligated to provide “more than labels and conclusions[;] a formulaic recitation of the elements of a cause of action will not do . . .” Id. Even though a pro se plaintiff's pleadings are to be liberally construed, a pro se complaint must still contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Id. at 555, 570; see also Slade v. Hampton Roads Reg'l Jail, 407 F.3d 243, 252 (4th Cir. 2005). “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. A defendant will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” Twombly, 550 U.S. at 565 n. 10. Therefore, a complaint should contain facts in regard to who did what to whom and when. Id.
Requirements for a Cause of Action Under Bivens
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for the violation of federal constitutional rights. 403 U.S. at 389. 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 a § 1983 claim is applicable in a Bivens action and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988). To establish a claim under Bivens, a plaintiff must prove 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.”).
Eighth Amendment
The Eighth Amendment's prohibition on “cruel and unusual punishments” imposes certain basic duties on prison officials. Farmer, 511 U.S. at 832. These include maintaining humane conditions of confinement, including the provision of adequate medical care and “reasonable measures to guarantee the safety of the inmates.” Id. (internal quotation marks omitted). And, while corrections officers have “a duty to protect prisoners,” id. at 833, 834 (internal quotation marks and alterations omitted), “not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety,” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation marks omitted). Instead, to establish a Bivens claim such as that asserted here, Plaintiff must allege facts showing deliberate indifference, constituting unnecessary and wanton infliction of pain proscribed by the Constitution. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Summary dismissal is appropriate, however, when no viable claim has been stated, as deliberate indifference is a very high standard, which requires more than a showing of mere negligence. Id. at 106-08. Deliberate indifference requires “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986).
Specifically, in making a claim for deliberate indifference, a plaintiff must satisfy a two-part test consisting of both an objective and a subjective inquiry for liability to attach. First, the inmate “must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury,” or a substantial risk thereof. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (internal quotation marks omitted); see Farmer, 511 U.S. at 834. This objective inquiry “requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Second, an inmate must show that the prison official had a “sufficiently culpable state of mind,” which, in this context, consists of “deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks omitted); see Odom v. SCDC, 349 F.3d 765, 770 (4th Cir. 2003). This subjective inquiry requires “evidence suggesting that the prison official had actual knowledge of an excessive risk to the plaintiff's safety.” Danser, 772 F.3d at 347. The defendant must “be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Likewise, a claim for deliberate indifference to medical care arises from the Eighth Amendment. Iko, 535 F.3d at 241. Plaintiff must show that officials acted with deliberate indifference to the prisoner's serious medical needs. Id. (citing Estelle v. Gamble, 429 U.S. 97 (1976)). “[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain” prohibited by the Eighth Amendment. Estelle, 429 U.S. at 104. 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 v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008). “A delay in treatment may constitute deliberate indifference if the delay exacerbated the injury or unnecessarily prolonged an inmate's pain.” Abraham v. McDonald, 493 Fed.Appx. 465, 466 (4th Cir. 2012) (citations omitted).
DISCUSSION
Upon review, the undersigned finds that many of Plaintiff's allegations in the Amended Complaint are frivolous and/or fail to state a claim for relief under Bivens, that certain claims are therefore subject to summary dismissal, and that certain Defendants are subject to dismissal. The Court will briefly evaluate the claims presented in the Amended Complaint as a whole and then will evaluate the specific claims identified by Plaintiff.
Evaluation of the Amended Complaint as a Whole
Plaintiff's allegations are frivolous
As an initial matter, the undersigned finds that many of the claims presented in the Amended Complaint should be dismissed because the allegations are patently frivolous. The crux of this action involves Plaintiff's contention that he has been subjected to ongoing unconstitutional conduct by numerous Defendants named in this action. The Court need not address each and every frivolous allegation, but concludes that, as a whole, this action presents a patently frivolous attack on his present confinement using the “proverbial ‘kitchen sink'” approach. Crouchman v. Pickens Cnty. Council, No. 9:16-cv-0804-CMC-BM, 2017 WL 767185, at *11 (D.S.C. Feb. 3, 2017), Report and Recommendation adopted by 2017 WL 749393 (D.S.C. Feb. 27, 2017); see also Alexander v. Parks, No. 7:17-cv-00524, 2019 WL 346426, at *2 (W.D. Va. Jan. 28, 2019) (citing cases and noting “Plaintiffs complaint belongs to the everything-but-the-kitchen sink school of thought. The complaint is extremely difficult to follow because of its extreme length and purported factual detail. The factual allegations are often repetitive, inconsistent, and contradicted by documents referenced in the complaint.” (internal quotation marks omitted)).
As to many of the claims, Plaintiff's cursory allegations are not rooted in any specific conduct by individual Defendants. Rather, Plaintiff makes sweeping allegations that do not appear to be based on any facts or specific circumstances involving Plaintiff. For example, Plaintiff presents various allegations that Defendants are engaging in conspiracies, promoting sexual relationships among inmates, introducing contraband into the prison, refusing to perform their duties, and retaliating against Plaintiff on a routine basis. Such allegations should be treated with skepticism where a “complaint charge[s] that every single action by prison officials represent[s] either a conspiracy or a retaliation.” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996). Allegations like those in the present case suggesting a “litany of conspiratorial activity casts serious doubts on [a plaintiff's] claims” particularly where “[t]he assortment of vague accusations also fails to demonstrate, as is required, that each retaliatory act violate some constitutional right of an inmate or constitute punishment for the exercise of a constitutional right.” Id. Here, Plaintiff's conclusory assertions do just that. As such, “Plaintiff's naked assertion of a conspiracy [and retaliation] fails to state a claim and [should be dismissed] as frivolous.” Duncan v. Solomon, No. 5:06-ct-3001-H, 2006 WL 4006133, at *2 (E.D. N.C. Apr. 19, 2006), aff'd, 202 Fed.Appx. 603 (4th Cir. 2006).
Failure to state a claim under Bivens
Further, to the extent the Court is able to ascertain any specific causes of action from the individual claims asserted in the Amended Complaint, many of those claims are subject to dismissal as they are not cognizable under Bivens as a matter of law or because Plaintiff has failed to allege facts to state a claim for relief that is plausible. The Court briefly pauses to address the viability of claims under Bivens.
In evaluating a Bivens claim, the Supreme Court recently explained:
In Bivens[], this Court authorized a damages action against federal officials for alleged violations of the Fourth Amendment. Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations. See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012);
Ziglar v. Abbasi, 582 U.S. ___ (2017); Hernández v. Mesa, 589 U.S. ___ (2020).Egbert v. Boule, ___ U.S. ___, No. 21-147, 2022 WL 2056291, at *3 (U.S. June 8, 2022) (parallel citations omitted). The Court went on to explain as follows:
In Bivens, the Court held that it had authority to create “a cause of action under the Fourth Amendment” against federal agents who allegedly manacled the plaintiff and threatened his family while arresting him for narcotics violations. 403 U.S., at 397. Although “the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages,” id., at 396, the Court “held that it could authorize a remedy under general principles of federal jurisdiction,” Ziglar, 582 U.S., at (citing Bivens, 403 U.S., at 392). Over the following decade, the Court twice again fashioned new causes of action under the Constitution-first, for a former congressional staffer's Fifth Amendment sex-discrimination claim, see Davis v. Passman, 442 U.S. 228 (1979); and second, for a federal prisoner's inadequate-care claim under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).
Since these cases, the Court has not implied additional causes of action under the Constitution.Id. at *5 (parallel citations omitted). The Supreme Court has expressed hesitancy and caution in finding new causes of action under Bivens, noting “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” Id. at *3. It is against this backdrop that the Court must evaluate whether Plaintiff's claims in the present case are cognizable under Bivens.
The Supreme Court has foreclosed nearly every claim for relief under Bivens that Plaintiff asserts in this action. And, although the Court will address each individual claim asserted by Plaintiff in the section below, the undersigned notes that most of those claims are premised on Plaintiff's contention that Defendants have engaged in retaliation against him in violation of his First Amendment rights. [See, e.g., Doc. 20 at 2 (alleging under Claim 1 that Defendant Barnes denied Plaintiff access to legal redress, jobs, and programs by way of retaliation in violation of the First Amendment); Id. at 4 (alleging under Claim 4 that Defendants Benton, Chandler, and Byrd violated his constitutional rights to free speech and legal redress by conspiring together to punish him for filing a complaint); id. at 6-7 (alleging under Claim 6 that Defendants Jarret, O'Connor, and Gillard retaliated against him in violation of his First Amendment rights to free speech and legal redress); id. at 7-8 (alleging under Claim 7 that Defendant Scott denied him a prison job as retaliation in violation of his First Amendment rights to free speech and legal redress).] However, the Supreme Court has held “that there is no Bivens action for First Amendment retaliation.” Egbert, 2022 WL 2056291, at *9. Thus, each of Plaintiff's claims that are premised on a cause of action for First Amendment retaliation must be dismissed as a matter of law. And, Plaintiff's other causes of action suffer the same defect.
The Court will now address the individual claims asserted in the Amended Complaint.
The Court does not address Claim 3 in this section. As noted, Claim 3 is asserted against Defendants Warren and Dr. O and involves their treatment of Plaintiff's injury to his hip, knee, and leg when he fell while getting into his bunk. [Doc. 20 at 3-4.] The Court finds that Plaintiff's allegations as to Claim 3 are sufficient to survive initial review.
Claim 1
As noted, Claim 1 is asserted against Defendant Barnes and involves the presence of contraband at FCI Bennettsville. [Doc. 20 at 1-2.] Claim 1 is subject to dismissal because Plaintiff has not identified the deprivation of any right under the Constitution or federal law. See, e.g., Norris v. Ms. Debbie, No. 6:10-753-MBS-WMC, 2010 WL 1727900, at *2 (D.S.C. Apr. 2, 2010) (recommending dismissal of a complaint that failed to identify a right secured by the Constitution or laws of the United States that is alleged to have been violated), Report and Recommendation adopted by 2010 WL 1727899 (D.S.C. Apr. 27, 2010).
Additionally, although Plaintiff alleges that he notified Defendant Barnes about the presence of contraband in the prison and that Defendant Barnes did nothing to remedy that issue, Plaintiff has failed to allege facts showing that Defendant Barnes was personally involved in the deprivation of any right under the Constitution or federal law as it pertains to the presence of contraband in the prison. Instead, Plaintiff makes only general, vague allegations. “However, such general allegations, absent any specific facts of personal involvement in the events giving rise to this case, are insufficient to state a cognizable [Bivens] claim.” Tracey v. Nelson, No. 1:12-cv-1614-JMC-SVH, 2012 WL 4583107, at *2 (D.S.C. Aug. 31, 2012), Report and Recommendation adopted by 2012 WL 4588205 (D.S.C. Oct. 1, 2012). Because Plaintiff makes no factual allegations in the Complaint of personal involvement against Defendant Barnes, she is entitled to summary dismissal as to any claim regarding the presence of contraband in the prison. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (“Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed.”); Newkirk v. Circuit Court of City of Hampton, No. 3:14-cv-372-HEH, 2014 WL 4072212, at *2 (E.D. Va. Aug. 14, 2014) (finding the complaint was subject to summary dismissal where plaintiff made no factual allegations against the named defendants within the body of the pleading).
Further, to the extent that Plaintiff's claims against Defendant Barnes, or any other supervisory official, are based on supervisory liability, the undersigned notes that the doctrine of respondeat superior is generally not applicable in a Bivens action. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). For a supervisory official to be held liable for constitutional injuries inflicted by his subordinates, certain criteria must be established. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). Specifically, a plaintiff must show that the supervisory official was (1) actually or constructively aware of a risk of constitutional injury, (2) deliberately indifferent to that risk, and (3) that an affirmative causal link exists between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff. Carter, 164 F.3d at 221. Here, the Amended Complaint contains no plausible allegations against Defendant Barnes to demonstrate that she was aware of, or deliberately indifferent to, any risk of constitutional injury to Plaintiff. As such, the Amended Complaint fails to state a claim upon which relief may be granted against Defendant Barnes, or any other supervisory official, and they should be dismissed from this action on that basis. See Ford v. Stirling, No. 2:17-cv-02390-MGL, 2017 WL 4803648, at *2 (D.S.C. Oct. 25, 2017).
Finally, Plaintiff asserts, without further explanation, that Defendant Barnes “retaliated against [him] for writing the President, Senators, Congressman and FBI as it pertains to corrupt officers in this prison in violation of my constitutional rights.” [Doc. 20 at 2.] Plaintiff's cursory allegation that Defendant Barnes engaged in retaliation is legally insufficient to state a claim for relief. Further, as noted in Egbert, there is no Bivens remedy for First Amendment retaliation claims. Likewise, the Fourth Circuit Court of Appeals has declined to expand the Bivens remedy to include a First Amendment retaliation claim asserted by a BOP inmate for filing grievances. Earle v. Shreves, 990 F.3d 774, 781 (4th Cir. 2021). As such, Claim 1 of the Amended Complaint is subject to dismissal.
Claim 2
Claim 2 is asserted against Defendants Barnes and Unit Manager Perez and involves a purported sexual relationship between two inmates. [Doc. 20 at 2-3.] Claim 2 is subject to dismissal because Plaintiff has not identified the deprivation of any right under the Constitution or federal law. Additionally, despite Plaintiff's allegations that Defendants have facilitated or permitted a sexual relationship between two inmates, those actions have not caused Plaintiff any legally cognizable injury. See Bass, 324 F.3d at 765. Although Plaintiff contends that all sex in prison constitutes rape under the PREA, he has not alleged any facts suggesting any injury to him. The Court finds that Claim 2 is both frivolous and fails to state a claim for relief under Bivens.
Because Plaintiff has failed to state a cognizable Bivens claim for both Claims 1 and 2, Defendants Barnes and Perez are both entitled to dismissal from this action as they are not involved in any of the other claims asserted in the Amended Complaint.
Claim 4
Claim 4 is asserted against Defendants Benton, Chandler, and Byrd and involves a purported conspiracy to punish Plaintiff because he made complaints about spoiled food. [Doc. 20 at 4-5.] Claim 4 is subject to dismissal because it is premised on a claim for retaliation in violation of the First Amendment. [Id. at 4 (“Claim #4: In violation of my constitutional rights to free speech and legal redress A.W. Melissa E. Benton and Food Service Administrator Chandler conspired with Lt. Byrd to punish me for filing a complaint against them for serving spoiled and expired food.”).] Such claims are not cognizable under Bivens for the reasons already stated.
Claim 5
Claim 5 is asserted against Defendant Kapusta and involves her purported racist and discriminatory conduct towards black inmates. [Id. at 5.] Claim 5 is subject to dismissal because Plaintiff has failed to allege any facts to support a claim for relief and has failed to identify any cognizable injury that he himself has suffered. To the extent Plaintiff is attempting to assert a claim for retaliation [id. (“All attempts to report [Defendant Kapusta] and seek accountability by black inmates at FCI Bennettsville were met with retaliation by other white staff members.”)], any such claim is not cognizable under Bivens. Further, although Plaintiff asserts that Defendant Kapusta has violated the equal protection clause of the Fourteenth Amendment, he provides no specific allegations of wrongdoing against him by this Defendant to support a claim for relief. Instead, Plaintiff simply asserts she “regularly discriminates toward blacks.” [Id.] Thus, “[P]laintiff's complaints of race discrimination against [Defendant Kapusta] fall squarely within the category of conclusory allegations described in Iqbal, which conclusory allegations the court does not accept as true for purposes” of this review under 28 U.S.C. §§ 1915 and 1915A. Burke v. Hill, No. 2:17-cv-1-FL, 2017 WL 4969687, at *4 (E.D. N.C. Oct. 31, 2017).
Claim 6
Claim 6 is asserted against Defendants Gillard, Jarret, and O'Conner and involves purported retaliation against Plaintiff because he filed grievances and complaints. [Doc. 20 at 6 (“In violation of Plaintiff's First Amendment rights to free speech and legal redress several Bennettsville staff retaliated against him.”).] Claim 6 is subject to dismissal because, as previously discussed, Bivens has not been extended to retaliation claims under the First Amendment.
To the extent Plaintiff is also asserting a claim for the loss of his personal property in Claim 6, any such claim is also not cognizable. Plaintiff alleges that Defendants Jarret and O'Connor took his property, including his commissary food, postage stamps, batteries, and several other items, and that they did so “[i]n retaliation for Plaintiff's legal redress.” [Id. at 7.] However, claims alleging the loss of personal property do not rise to the level of a constitutional deprivation sufficient to state a claim for relief under Bivens. See McCoy v. McCall, No. 9:12-cv-474-MGL, 2013 WL 5467327, at *5-6 (D.S.C. Sept. 30, 2013) (dismissing property loss claim); Hemphill v. Cramer, No. 5:16-cv-104-TLW-KDW, 2016 WL 8540312, at *3 (D.S.C. Apr. 26, 2016) (same), Report and Recommendation adopted by 2017 WL 1036009 (D.S.C. Mar. 17, 2017); Foster v. Riley, No. 9:15-3787-TMC-BM, 2016 WL 1622870, at *3 (D.S.C. Feb. 3, 2016) (dismissing loss of property claim as unactionable under § 1983), Report and Recommendation adopted by 2016 WL 1614173 (D.S.C. Apr. 22, 2016). “Plaintiff had meaningful post-deprivation remedies through the BOP's Administrative Remedies Program,” and his Amended Complaint lacks allegations that he has not been afforded the opportunity to pursue his remedies through that program. Abdullah v. Anderson, No. 5:05-cv-00568, 2008 WL 4103980, at *11 (S.D. W.Va. Sept. 2, 2008). Indeed, Plaintiff alleges that he “filed a tort claim and grievances.” [Doc. 20 at 7.] Because Plaintiff has an alternative remedy to file grievances though the BOP's Administrative Remedies Program, Bivens relief is not available to him for his deprivation of property claim. See Egbert, 2022 WL 2056291, at * 8; Malesko, 534 U.S. at 74. Accordingly, Claim 6 is not cognizable under Bivens and Defendants Jarret, O'Connor, and Gillard are entitled to dismissal from this action.
Claim 7
Finally, Claim 7 is asserted against Defendant Scott and involves his purported refusal to provide Plaintiff with a UNICOR job based on retaliation in violation of the First Amendment. [Doc. 20 at 7-8.] Claim 7 is subject to dismissal because Plaintiff has failed to identify the deprivation of a right under the Constitution or federal law and because a First Amendment claim is not cognizable under Bivens.
To state a claim under Bivens, a plaintiff must allege a violation of a right secured by the Constitution. The law is well settled, however, that “prison inmates have no federally protected right or interest in any job while incarcerated.” Cunningham v. Drew, No. 9:12-cv-2596-RMG, 2013 WL 6834599, at *1 (D.S.C. Dec. 23, 2013), aff'd, 570 Fed.Appx. 323 (4th Cir. 2014). As such, Plaintiff has failed to state a claim for relief.
Further, Plaintiff appears to premise Claim 7 on a First Amendment retaliation claim. [See Doc. 20 at 7 (“Claim #7 In violation of my 1st Amendment rights to free speech and my constitutional rights to legal redress Unicor Foreman Scott has blocked my access to a Unicor job.”); Id. at 8 (“The only logical reason for Plaintiff not working in Unicor is retaliation.”).] However, as noted, Bivens does not extend to claims of First Amendment retaliation. Accordingly, Claim 7 is subject to summary dismissal and Defendant Scott is entitled to dismissal from this action as a result.
Motion for Temporary Restraining Order and Preliminary Injunction
As noted, Plaintiff has filed a second motion for temporary restraining order and preliminary injunction. [Doc. 25.] In the motion, Plaintiff asks the Court to “intercede on his behalf to stop Warden Barnes and Staff from retaliating against him for exercising his constitutional right to legal redress.” [Id. at 1.]
A plaintiff seeking a preliminary injunction or temporary restraining order must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reinstated in relevant part on remand by 607 F.3d 355 (4th Cir. 2010). A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46. Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47. Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Id. at 347 (quoting Winter, 555 U.S. at 24).
Here Plaintiff has failed to meet the standard for issuance of a preliminary injunction or temporary restraining order in this matter. At this stage of the proceedings, Plaintiff has not shown that he is likely to succeed on the merits of his claims nor that he is likely to be irreparably harmed absent injunctive relief. Critically, although Plaintiff contends he needs the Court's help in preventing the prison staff at FCI Bennettsville from retaliating against him for exercising his constitutional right to legal redress, First Amendment claims for retaliation are not cognizable under Bivens. In light of the foregoing, Plaintiff's allegations against Defendants do not indicate a likelihood that he will succeed on the merits at this time. As such, Plaintiff has not met the standard for issuance of a preliminary injunction or TRO and his motion should be denied.
CONCLUSION AND RECOMMENDATION
Consequently, for the reasons stated above, the undersigned recommends that the
District Court DISMISS Claims 1, 2, 4, 5, 6, and 7 from the Amended Complaint filed in this action. Additionally, the undersigned recommends that the District Court DISMISS Defendants Barnes, Perez, Benton, Chandler, Byrd, Kapusta, Gillard, Jarret, O'Conner, and Scott from this action. Finally, the undersigned recommends that Plaintiff's motion [Doc. 25] for temporary restraining order and preliminary injunction be DENIED. If the Court adopts the above recommendations, the action will remain pending against Defendants Warren and Dr. O as to Claim 3 of the Amended Complaint.
Because Plaintiff has already had an opportunity to amend his pleadings and in light of the analysis above, the undersigned recommends that the Court dismiss the claims subject to dismissal noted above without affording Plaintiff an additional opportunity to amend his Amended Complaint. See Thomas v. Drive Auto. Indus. of Am., Inc., No. 6:18-cv-169-AMQ, 2018 WL 5258811, at *2 (D.S.C. July 25, 2018) (declining to automatically give plaintiff leave to amend because plaintiff could not cure the defects in his claims against defendant by mere amendment), Report and Recommendation adopted by 2018 WL 5255183 (D.S.C. Oct. 22, 2018); Workman v. Kernell, No. 6:18-cv-00355-RBH-KFM, 2018 WL 4826535, at *2 (D.S.C. Oct. 2, 2018) (declining to give plaintiff leave to amend because it would be futile for plaintiff to amend his complaint against the defendants being dismissed), aff'd, 766 Fed.Appx. 1 (4th Cir. 2019).
IT IS SO RECOMMENDED.
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 Court250 East North Street, Suite 2300 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); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).