Opinion
C. A. 8:22-cv-01169-BHH-JDA
07-18-2022
Gary Daivon Cutright, Plaintiff, v. Monty Allen, O.C. Martin, Richard Evans, Travis Oliver, Christopher Suell, Derek Adams, Defendants.
REPORT AND RECOMMENDATION
Jacquelyn D. Austin United States Magistrate Judge
Gary Daivon Cutright (“Plaintiff”), proceeding pro se and in forma pauperis, brings this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (a “Bivens claim”), against the above-named Defendants. Plaintiff is an inmate in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated at the Edgefield Federal Correctional Institution (“FCI Edgefield”) in South Carolina.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the pleadings filed in this case and submit findings and recommendations to the District Court. Having reviewed the pleadings in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
BACKGROUND
Procedural History
Plaintiff commenced this action by filing a handwritten pleading in the United States District Court for the Eastern District of Texas at case number 1:22-cv-00116. [Doc. 1.] By Order dated March 22, 2022, the Honorable Zack Hawthorn transferred the action to this Court. [Doc. 2.] By Order dated April 11, 2022, the undersig ned directed Plaintiff to complete a standard complaint form and otherwise bring the case into proper form. [Doc. 7.] Plaintiff then filed a standard complaint form, which was entered on the docket in this Court on April 29, 2022. [Doc. 1-2.]
By Order dated May 4, 2022, the undersigned notified Plaintiff that the Court construed both the original handwritten pleading and the standard complaint form together as the Complaint in this action and that this action was subject to summary dismissal for the reasons identified by the Court in its Order. [Doc. 16.] 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 10-11.] Further, Plaintiff was specifically 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 pursuant to 28 U.S.C. §1915A.[ Id. at 11.] Plaintiff did not file an Amended Complaint within the time permitted under that Order. Accordingly, on June 9, 2022, the undersigned issued a Report, recommending summary dismissal of this action (the “R&R”). [Doc. 20.]
Then, on June 13, 2022, Plaintiff filed his Amended Complaint. [Doc. 22.] On July 15, 2022, the Honorable Bruce Howe Hendricks entered an Order recommitting this case to the undersigned for further pretrial handling in light of Plaintiff's untimely Amended Complaint with instructions to consider “whether the identified deficiencies have been cured” and to “issue a Report and Recommendation in due course.” [Doc. 25.]
As such, this matter is before the undersigned for a review of the Amended Complaint under 28 U.S.C. §§ 1915 and 1915A. Upon review, the undersigned concludes that Plaintiff has failed to cure the deficiencies identified by the Court in its Order regarding amendment. Therefore, the case is subject to summary dismissal.
An amended complaint replaces all prior complaints and should 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 . . . .”).
Plaintiff's Amended Complaint presents factual allegations that are nearly identical to those made in his original Complaint. Plaintiff contends Defendants have violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. [Doc. 22 at 5.] The events giving rise to Plaintiff's claims occurred from October 2021 through March 2022. [ Id. at 6.] Plaintiff alleges that Defendants Allen and Adams removed him from his permanent work detail on January 13, 2022. [ Id. at 6, 10.] Further, Defendants Martin and Evans threatened to send him to the Special Housing Unit (“SHU”) and have SIS harass him. [ Id. at 6, 8.] Defendants Oliver and Suell removed him from sentry count, harassed him, and gossiped about him with other inmates and officers. [ Id. at 8.] Plaintiff alleges that A. Williams, an African American female, experienced “male dominance [and] bullying” an can corroborate the events underlying Plaintiff's claims. [ Id. at 7-8.]
For his injuries, Plaintiff contends he has suffered major mental suffering to include depression, loss of sleep, anger, appetite loss, and helplessness. [ Id. at 8.] For his relief, Plaintiff requests the termination of all Defendants, money damages in the amount of $600,000, or an order requiring Defendants to correct the deprivation of his constitutional rights. [Id.]
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 pleadings 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).
This action was 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).
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 pleading 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 pleadings, 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 pleading 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 pleading'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 his pleadings, he must allege facts that support a claim for relief. Bass v. DuPont, 324 F.3d 761, 765 (4th Cir. 2003).
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.”).
DISCUSSION
This action is subject to dismissal because Plaintiff has failed to state a claim for relief that is plausible under Bivens. As noted, a plaintiff must do more than make conclusory statements to state a claim for relief that is plausible. See Iqbal, 556 U.S. at 677-78; Twombly, 550 U.S. at 555. Rather, the pleadings 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.
Plaintiff fails to provide a factual basis for the claims in either the Complaint or Amended Complaint, and his cursory allegations that Defendants harassed him, defamed him, conspired against him, and removed him from his work detail, without more, fail to state a claim for relief that is plausible. Indeed, although Plaintiff contends that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments, he fails to provide facts to support such claims. Therefore, because Plaintiff's pleadings fail to state the factual basis for holding Defendants liable, the Court is unable to determine whether any cause of action is plausible against Defendants. See Addahoumi v. Pastides, No. 3:16-cv-1571-CMC-SVH, 2017 WL 9275168, at *2 (D.S.C. Nov. 9, 2017), Report and Recommendation adopted by 2018 WL 636122 (D.S.C. Jan. 30, 2018), aff'd, 745 Fed.Appx. 478 (4th Cir. 2018); Avila v. Edgefield Fed. Prison, No. 0:10-cv-2370-HMH-PJG, 2011 WL 2973617, at *4 (D.S.C. June 30, 2011) (noting that, to the extent the complaint attempted to raise claims of cruel and unusual punishment, denial of due process, and denial of access to the courts, the complaint failed to contain sufficient factual allegations of personal involvement by any of the defendants to state a plausible claim), Report and Recommendation adopted by 2011 WL 2938216 (D.S.C. July 21,2011), aff'd, 463 Fed.Appx. 231 (4th Cir. 2012). Although pro se litigants are entitled to liberal construction of their pleadings, “[t]he ‘special judicial solicitude' with which a district court should view . . . pro se complaints does not transform the court into an advocate. Only those questions which are squarely presented to a court may properly be addressed.” Weller, 901 F.2d at 391.
Further, Plaintiff's purported causes of action have no remedy under Bivens . Although Plaintiff has failed to provide facts to support any cause of action, the undersigned notes that he may be asserting claims for defamation and/or other torts arising under state law and retaliation related to the loss of his prison job. However, neither claim is cognizable under Bivens.
The undersigned notes that, even if Plaintiff cannot seek relief for his claims under Bivens in this Court, he is not without a remedy. As the Fourth Circuit recently explained:
[Federal inmates have] “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP's Administrative Remedy Program.” While these alternate remedies do not permit an award of money damages, they nonetheless offer the possibility of meaningful relief.Earle v. Shreves, 990 F.3d 774, 780 (4th Cir. 2021) (citations omitted).
First, a claim arising under state tort law fails to rise to the level of a constitutional violation that would entitle Plaintiff to monetary relief. Plaintiff alleges, without explanation, that Defendants gossiped and spread rumors about him, insulted him personally, conspired to defame his character, and harassed him. Each of these assertions sounds in state tort law. However, such claims are not cognizable under Bivens. The law is well settled that Bivens, like a claim under 42 U.S.C. § 1983, does not impose liability for violations of duties of care arising under state law, including claims for defamation of character and harassment. See, e.g., Sibley v. S.C. Dep't of Corr., No. 0:09-cv-2964-TLW-PJG, 2009 WL 5195951, at *3 (D.S.C. Dec. 21,2009) (collecting cases); Brunson v. U.S. Dist. Ct., No. 3:11-cv-2313-JFA-PJG, 2011 WL 6122630, at *4 (D.S.C. Sept. 30, 2011) (“An alleged act of defamation of character or injury to reputation is not actionable under 42 U.S.C. § 1983 or under the Bivens doctrine.”), Report and Recommendation adopted by No. 3:11-cv-2313-JFA, 2011 WL 6122578 (D.S.C. Dec. 9, 2011); Tate v. Harmon, No. 7:19-cv-00609, 2020 WL 7212578, at *7 (W.D. Va. Dec. 7, 2020) (explaining “verbal harassment by correctional officers alone-while abhorrent and unprofessional-does not violate the Eighth Amendment” and cannot support a Bivens claim).
Second, Plaintiff's First Amendment retaliation claim, apparently related to the loss of his prison job, is not cognizable. This is so because “there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S.Ct. 1793, 1807 (U.S. 2022); see also Earle, 990 F.3d at 781 (“[W]e decline to expand the Bivens remedy to include the First Amendment retaliation claim asserted by [Plaintiff].”); Curry v. Olberding, No. 1:21-cv-1300-HMH-SVH, 2022 WL 791925, at *4-6 (D.S.C. Feb. 3, 2022) (discussing cases and noting that Bivens has not been extended to First Amendment retaliation claims), Report and Recommendation adopted by 2022 WL 788874 (D.S.C. Mar. 15, 2022). Indeed, courts have specifically refused to recognize a Bivens remedy for an inmate's First Amendment claim of retaliation in the prison workplace context. See, e.g., Mack v. Yost, 968 F.3d 311, 325 (3d Cir. 2020) (“[W]e decline to extend a Bivens remedy for First Amendment retaliation claims brought in the prison workplace assignment context.”).
CONCLUSION AND RECOMMENDATION
In light of the foregoing, it is recommended that the District Court DISMISS this action without further leave to amend and without issuance and service of process pursuant to 28 U.S.C. § 1915A for failure to state a claim.
As noted, Plaintiff has filed an Amended Complaint to cure the deficiencies noted by the Court in its Order dated May 4, 2022. [Docs. 16; 22.] Nevertheless, for the reasons stated herein, Plaintiff has failed to cure the deficiencies of his original pleadings in his Amended Complaint. Accordingly, the undersigned recommends dismissal without further leave to amend. See Workman v. Morrison Healthcare, No. 17-7621, 2018 WL 2472069, at *1 (4th Cir. June 4, 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice).
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 Court 250 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).