Opinion
C/A No. 0:16-1305-DCC-PJG
12-13-2018
Sean Christopher Clemmons, Plaintiff, v. United States of America; Warden Travis Bragg; Captain Hicks; Health Services Administrator Canada; Lieutenant Dunbar; Officer Strictland; Mays; Mills; Doctor Berrios; M.L.P. H. Hansen; K. Robinson; Officer Godbey; Officer Legett, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Sean Christopher Clemmons, a self-represented federal prisoner, filed this action against the defendants asserting a wide variety of alleged constitutional violations and federal tort claims while housed at three different federal institutions. This matter was recommitted to the assigned magistrate judge to address the following claims against Defendants Bragg, Hicks, and Canada: (1) Clemmons's Bivens claim that these three defendants are liable in their roles as supervisors for alleged Eighth Amendment violations regarding Clemmons's medical needs, and (2) negligent supervision pursuant to the Federal Tort Claims Act ("FTCA"). Having reviewed the record presented and the applicable law, the court finds the defendants are entitled to summary judgment on Clemmons's Bivens claim based on supervisory liability, and that Clemmons's FTCA claim of negligent supervision should be dismissed for lack of subject matter jurisdiction.
On July 17, 2018 the court dismissed Clemmons's claims against several individual defendants on the basis that it lacked personal jurisdiction over those defendants. (ECF No. 210.) Additionally, on October 15, 2018 the court granted in part and denied in part the defendants' motion for summary judgment. (ECF No. 230.)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
RELEVANT BACKGROUND
The only claims addressed in this Report and Recommendation relate to Clemmons's claims that he was allegedly denied medical care while housed in SHU from January 2015 through March 2015 at FCI Bennettsville, despite his numerous requests to obtain such care. (See generally 2d Am. Compl., ECF No. 81-1 at 12-21.) Clemmons alleges that on January 17, 2015, he wrote a request to staff to Dr. Berrios complaining that his hemorrhoids were painful and bleeding. (Id. at 12.) He further alleges that, over the next two months, he sent written requests to multiple individuals—including Defendants Canada and Bragg—complaining of his hemorrhoids or attempting to get medication from the commissary. (Id. at 12-17.) Medical records indicate that Clemmons was ultimately examined by Dr. Berrios on March 24, 2015. (Berrios Decl. ¶ 45, ECF No. 131-12 at 12; Med. Records, ECF No. 132 at 76-80.)
This matter was recommitted to the assigned magistrate only as to Clemmons's claim that Defendants Bragg, Hicks, and Canada were liable in their roles as supervisors for alleged Eighth Amendment violations constituting deliberate indifference to Clemmons's medical needs and for negligent supervision pursuant to the Federal Tort Claims Act ("FTCA") that may have occurred during the time period described above.
DISCUSSION
A. Applicable Standards
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to "regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). Moreover, the court may sua sponte dismiss an action for lack of subject matter jurisdiction. See Davis v. Pak, 856 F.2d 648, 650 (4th Cir. 1988) ("[I]t is always incumbent upon a federal court to evaluate its jurisdiction sua sponte, to ensure that it does not decide controversies beyond its authority.").
Summary judgment under Rule 56 is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). B. Bivens Claim
At issue here is whether Defendants Bragg and Canada were liable in their capacity as supervisors for the purported violation of Clemmons's Eighth Amendment rights by employees under their supervision during the time period when Clemmons was housed in SHU.
1. Defendant Canada
During the relevant time period, Defendant Nikki L. Canada was employed as a Lt. Commander in the United States Public Health Service and was assigned as the Health Services Administrator at FCI Bennettsville. Accordingly, any Bivens claims brought against her are barred by the absolute immunity provided to Public Health Service officers and employees under 42 U.S.C. § 233(a), which states:
The remedy against the United States provided by sections 1346(b) and 2672 of Title 28 . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.42 U.S.C. § 233(a). As stated by the United States Supreme Court, '[b]ased on the plain language of § 233(a), . . . [Public Health Service] officers and employees are not personally subject to Bivens actions for harms arising out of such conduct" but rather are granted "absolute immunity . . . for actions arising out of the performance of medical or related functions within the scope of their employment." Hui v. Castaneda, 559 U.S. 799, 802, 806 (2010). Instead, the exclusive remedy for such conduct is limited to suit against the United States pursuant to the FTCA. Id. at 806; see, e.g., Carlson v. Green, 446 U.S. 14, 20 (1980) (citing § 233(a), in the Bivens context, as an example of Congress's intent to establish the FTCA as an exclusive remedy for damages for medical functions by certain Government health personnel).
Thus, Defendant Canada is entitled to absolute immunity for any claim pursuant to Bivens, and such claims against her in her individual capacity should be dismissed.
The court previously recommended that any claims pursuant to Bivens against the individual defendants in their official capacities should be dismissed because they are protected by sovereign immunity. (See Report and Recommendation, ECF No. 215 at 6.)
2. Defendant Bragg
The law is clear that personal participation of a defendant is a necessary element of a Bivens claim against a government official in his or her individual capacity. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). Moreover, a claim based upon the doctrine of respondeat superior does not give rise to a Bivens claim. Iqbal, 556 U.S. at 676. "Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Id. As the Iqbal Court observed, because masters do not answer for the torts of their servants in Bivens cases, "the term 'supervisory liability' is a misnomer." Id. at 677.
While Fourth Circuit precedent recognizes that supervisory officials may be held liable in some circumstances for constitutional injuries directly inflicted by their subordinates, Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), certain criteria must be demonstrated to trigger such liability. A plaintiff must show that the supervisory official (1) was actually or constructively aware of a risk of constitutional injury, (2) was 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 v. Morris, 164 F.3d 215, 221 (4th Cir. 1999). As pointed out by the United States Court of Appeals for the Fourth Circuit,
[t]he plaintiff . . . assumes a heavy burden of proof in supervisory liability cases. He not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor's corrective inaction amounts to deliberate indifference or tacit authorization of the offensive [practices]. Ordinarily, he cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct. A supervisor's continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates.Slakan v. Porter, 737 F.2d 368, 373 (4th Cir. 1984) (internal quotations marks and citations omitted; alteration in original).
In the instant case, Clemmons has provided evidence and affidavit testimony that he informed Defendant Bragg—the Warden of FCI Bennettsville during the relevant time period—via an inmate request to staff dated February 26, 2015 of his hemorrhoid condition and lack of over-the-counter medication. (ECF No. 153-3 at 82-84; Clemmons Aff. ¶ 16, ECF No. 153-1 at 23.) As the assigned district judge previously denied the defendants' motion with regard to Clemmons's claim of deliberate indifference to his medical needs during the time he was housed in SHU, it appears the court has found that Clemmons presented sufficient evidence to allow a jury to conclude that Warden Bragg was actually or constructively aware of a risk of constitutional injury. Carter, 164 F.3d at 221.
However, on this record, Clemmons has failed to show that, after being made aware of this risk, Warden Bragg was deliberately indifferent to that risk. Id. Bragg has provided sworn testimony in which he declares that he received the February inmate request from Clemmons and that Clemmons's request was then forwarded to the Health Service Department so that medical personnel could check into the matter. (Bragg Decl. ¶ 20, ECF No. 132-5 at 4.) Bragg further declares that Clemmons was evaluated by Doctor Berrios on March 25, 2015, and that Bragg wrote a response to Clemmons's request on March 26, 2015 to let Clemmons know that his concerns had been addressed. (Id.) Additionally, Bragg declares that he does not provide medical care to inmates, that he was not involved in the everyday decisions that impacted Clemmons's medical care for his hemorrhoids, and that he relied on the professional judgment of the medical staff at FCI Bennettsville in determining the appropriate medical care for Clemmons. (Id. ¶¶ 23, 25, 26, ECF No. 132-5 at 5.)
The defendants point out that Defendant Bragg is not a medical professional. To establish a claim for denial of medical care against a non-medical official, a prisoner must show that that official failed to promptly provide needed medical treatment, deliberately interfered with prison doctors' treatment, or tacitly authorized or were indifferent to the prison physicians' misconduct. Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990). Further, because most prison officials are not trained medical personnel, they are entitled to rely on the opinions, judgment, and expertise of medical personnel concerning the course of treatment which the medical personnel deemed necessary and appropriate for the prisoner. See id. Clemmons has failed to make this showing. Rather, the record shows that Bragg received only one inmate request from Clemmons and acted on it by forwarding the request to appropriate medical personnel upon whose opinions he relied. Such conduct clearly falls short of the "continued inaction in the face of documented widespread abuses" that Clemmons must show to prove that Bragg was "deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates." Slaken, 737 F.2d at 373. Accordingly, Bragg is entitled to summary judgment on this claim.
3. Defendant Hicks
As an initial matter, while Clemmons raised claims against Defendant Hicks in his supervisory capacity with regard to Clemmons's medical care generally, Clemmons does not appear to raise any specific allegations against this defendant with regard to his medical care during the period of time Clemmons was housed in SHU. Rather, the claims Clemmons raises against Defendant Hicks relate to his medical condition prior to being housed in SHU or to other purported constitutional violations that occurred throughout Clemmons's time at FCI Bennettsville that have been previously adjudicated by the court. (See, e.g., 2d Am. Compl., ECF No. 80-1 at 11, 25, 31, 33, 35, 37, 41, 62, 79-81; see also Hicks Decl., ECF No. 130-6.) Moreover, Clemmons does not provide any evidence that Defendant Hicks was made aware of Clemmons's hemorrhoid condition during the time Clemmons was housed in SHU. (Cf. Correspondence from Clemmons while in SHU, ECF No. 153-3 at 73-94; Clemmons Aff., ECF No. 153-1 at 21-26.) Accordingly, even if Clemmons intended to raise such a claim against Defendant Hicks, on this record he has not met his burden to show that Defendant Hicks was actually or constructively aware of a risk of constitutional injury to Clemmons during the time period at issue. Carter, 164 F.3d at 221. Therefore, Defendant Hicks is entitled to summary judgment on this claim.
C. Claims Pursuant to the Federal Tort Claims Act
1. FTCA Generally
The FTCA provides for a limited waiver of the United States's sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because the FTCA includes a limited waiver of the Government's immunity as a sovereign, the statute is to be strictly construed and its requirements strictly met. See Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005); see also Lane v. Pena, 518 U.S. 187, 192 (1996) (stating that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign"). The United States may be held liable only "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The court, when determining liability, must apply "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (holding that the FTCA "permits the United States to be held liable in tort in the same respect as a private person would be held liable under the law of the place where the act occurred").
2. The Discretionary Function Exception
As described above, Clemmons raises a claim of negligent supervision that certain FCI Bennettsville defendants in supervisory positions were notified of his lack of medical care while housed in SHU. The United States's waiver of immunity under the FTCA is subject to exceptions. See 28 U.S.C. § 2680 (providing exceptions to the provisions of the tort claims procedure statutes and to § 1346(b)'s waiver of sovereign immunity). The most important of these is the "discretionary function exception." See McMellon v. United States, 387 F.3d 329, 335 (4th Cir. 2004) (en banc) (describing § 2680(a)'s exception as "the most important"). This exception provides that the United States is not liable for "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government." 28 U.S.C. § 2680(a). The discretionary function exception preserves sovereign immunity even if the Government was negligent, see Blakey v. U.S.S. Iowa, 991 F.2d 148, 152 (4th Cir. 1993), and even if the government employee abused his or her discretion. 28 U.S.C. § 2680(a).
The discretionary function exception does not apply, however, when the conduct at issue violates the constitution. See Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001) (In "determin[ing] the bounds of the discretionary function exception . . . we begin with the principle that federal officials do not possess discretion to violate constitutional rights or federal statutes.") (internal quotation marks, alterations, and citations omitted). However, as discussed above, Clemmons has failed to establish a constitutional violation by these three defendants.
If the discretionary function exception applies, then the claim is outside the limited waiver of immunity created by the FTCA and the district court is without subject matter jurisdiction to adjudicate it. See Medina, 259 F.3d at 223-24 (finding statutory exceptions to the FTCA's waiver of immunity to be jurisdictional). The burden is on the plaintiff to show that the FTCA's waiver of immunity applies and that the statutory exceptions do not. Welch, 409 F.3d at 651. Further, the Act's limited waiver of sovereign immunity and its exceptions must be strictly construed in favor of the sovereign. Id. at 650-51; see also Lane, 518 U.S. at 192.
In Berkovitz v. United States and United States v. Gaubert, the United States Supreme Court established a two-part test to determine whether the discretionary function exception applies. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz, 486 U.S. 531, 536-37 (1988). First, the allegedly negligent act or failure to act must not have been subject to a statute, regulation, or policy that prescribed a specific course of action for the government employee to follow. Gaubert, 499 U.S. at 322; Berkovitz, 486 U.S. at 536. If the conduct at issue was governed by such a provision, then the government employee's action cannot have been discretionary. See Williams v. United States, 50 F.3d 299, 309 (4th Cir. 1995). Second, assuming that the employee had discretion because no statute, regulation, or policy required a particular action, then the employee's conduct must be susceptible to an analysis involving social, economic, or political policy considerations. Gaubert, 499 U.S. at 322-23. This prong is designed to ensure that courts apply the exception only to the type of discretionary conduct that Congress sought to protect through § 2680(a). United States v. Varig Airlines, 467 U.S. 797, 813 (1984).
The focus of the inquiry must be on the "nature of the conduct" and not the "status of the actor." Gaubert, 499 U.S. at 322 (quoting Varig Airlines, 467 U.S. at 813); see also Baum v. United States, 986 F.2d 716, 720-21 (4th Cir. 1993) (holding that the court should look to the nature of the challenged decision and determine whether it is inherently grounded in policy considerations). The discretionary function exception not only protects high-level planning or policy activities, but also applies to discretionary activities of government employees that are not characterized as "operational" or "planning" decisions, as long as the activities are grounded in policy considerations. Gaubert, 499 U.S. at 325-26. Thus, "day-to-day operational decisions of government [employees] are entitled to immunity under the FTCA so long as the choices are 'susceptible to policy analysis.' " Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 208 (4th Cir. 2002) (quoting Gaubert, 499 U.S. at 325).
Moreover, for the exception to apply, the employee need not have actually conducted a policy analysis in connection with the challenged action or inaction. See Gaubert, 499 U.S. at 325 ("The focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."). The court must analyze the conduct at issue objectively, with an inquiry as to whether the employee's decision is one in which the court would expect inherently to be grounded in considerations of policy, rather than a subjective, fact-based focus on the circumstances surrounding the employee's exercise of a particular discretionary function. Baum, 986 F.2d at 720-21. When the employee is acting pursuant to a discretionary statute, regulation, or guideline, there is a strong presumption that the employee's conduct is grounded in the policies underlying that provision. Gaubert, 499 U.S. at 324; see also Bernaldes v. United States, 81 F.3d 428, 429 (4th Cir. 1996).
That presumption applies here, as prison administrators are given discretion regarding the provision of medical care for inmates. See, e.g., BOP Program Statement 6031.04 (Patient Care), available at http://www.bop.gov/policy/progstat/6031_004.pdf; see also 18 U.S.C. § 4042(a)(2). Moreover, no policy, statute, or regulation appears to specifically curtail these defendants' discretion or dictate any particular action to address Clemmons's circumstances. See Williams, 50 F.3d at 309; see also Gaubert, 499 U.S. at 322; Berkovitz, 486 U.S. at 536. Accordingly, the defendants' decisions on how to handle Clemmons's complaints with regard to his hemorrhoid condition were clearly discretionary in their roles as administrators. Cf. Keahl v. United States, Case No. 4:15-cv-15-RH-GRJ, 2017 WL 1017811, at *5 (N.D. Fl. Feb. 17, 2017) (noting that while "[t]he BOP has a general duty of care to prisoners of the BOP[,] . . . [t]hat general duty of care . . . is a discretionary one") (citing 18 U.S.C. § 4042(a)(2)). The court therefore finds that the discretionary function applies to Clemmons's FTCA claim regarding these administrators' action, and the court thus lacks subject matter jurisdiction to adjudicate it.
RECOMMENDATION
For all of the foregoing reasons, the court recommends the defendants' motion for summary judgment be granted as to Clemmons's remaining Bivens claim and that Clemmons's FTCA claim of negligent supervision should be dismissed for lack of subject matter jurisdiction. (ECF No. 130.)
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE December 13, 2018
Columbia, South Carolina
The parties' 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
901 Richland Street
Columbia, South Carolina 29201
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).