Opinion
C. A. 1:20-3896-JMC-SVH
08-18-2021
Joshua T. Hampton, 31575-160, Plaintiff, v. Warden Barnes, Correctional Officer Knight, and Executive Assistant Fletcher, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge.
In this case, a prisoner became high after smoking an unknown substance and injured himself after running head-first into a wall. He seeks to shift the blame for his injuries onto a correctional officer who had confiscated his altered eyeglasses two days earlier.
Joshua T. Hampton (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action alleging a violation of his constitutional rights against Warden Barnes (“Barnes”), correctional officer Knight, and executive assistant Fletcher (“Fletcher”) while incarcerated at the Federal Correctional Institution in Bennettsville, South Carolina (“FCI-Bennettsville”), a facility of the Bureau of Prisons (“BOP”). Plaintiff's constitutional claims are construed as brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971).
This matter comes before the court on a motion to dismiss, or in the alternative, motion for summary judgment, filed by correctional officer Knight (“Defendant”). [ECF No. 27]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment procedures and the possible consequences if he failed to respond adequately to Defendant's motion. [ECF No. 28]. The motion having been fully briefed [ECF Nos. 43, 54], it is ripe for disposition.
Because the court has considered matters outside of the pleadings, the undersigned considers the motion as one for summary judgment. Fed.R.Civ.P. 12(d).
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this matter has been assigned to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff's original complaint claimed Defendant improperly confiscated evidence Plaintiff needed for summary judgment in his case pending in the Middle District of Pennsylvania, Hampton v. Jones, C/A No. 1:19-751-JEJ-EBC (“Hampton I”). [ECF No. 1 at 5]. He further alleged Barnes and Fletcher will not properly follow BOP policy regarding administrative remedies. Id. at 5-6. On November 20, 2020, the undersigned issued an order and notice detailing the defects in Plaintiff's complaint and permitting him until December 11, 2020, to file an amended complaint.
On November 30, 2020, Plaintiff filed an amended complaint containing similar allegations regarding Defendant's alleged confiscation of evidence related to Hampton I and Barnes and Fletcher's failure to follow BOP policy. [ECF No. 11]. Additionally, Plaintiff alleges in his amended complaint that Defendant took his prescription eyeglasses, causing him to run into a water fountain, resulting in fracture to his upper jaw and loss of teeth. [ECF No. 11 at 5-6, ECF No. 11-1 at 1].
On January 5, 2021, the undersigned issued a report and recommendation, recommending Plaintiff's claims for alleged confiscation of evidence related to Hampton I and claims for failure to follow BOP policy or the grievance policy be dismissed, also authorizing service of process against Defendant “for allegedly taking Plaintiff's prescription eyeglasses.” [ECF No. 17 at 6]. Accordingly, the undersigned authorized service of process only as to Defendant and only concerning the alleged taking of Plaintiff's glasses.
The report and recommendation remains pending before the district judge.
The record indicates Plaintiff had a vision screen on January 2, 2020, before his arrival at FCI-Bennettsville, and glasses were ordered at that time to address his myopia, or nearsightedness. [ECF No. 27-3 at 39-40, 78, 106].
Plaintiff arrived at FCI-Bennettsville on February 6, 2020. [ECF No. 27-2]. On February 8, 2020, Plaintiff was subject to a search by Defendant, who was assigned to control movement on the prison compound, to conduct random pat searches of inmates for contraband, and to monitor inmates for conformance with the inmate dress code. [ECF No. 27-1 ¶ 2]. While conducting mainline, when inmates are moving to and from their housing units to the dining hall, Defendant had observed Plaintiff exiting the dining hall. Id. ¶ 3. He instructed Plaintiff to step to the edge of the sidewalk and submit to a pat search. Id. He observed Plaintiff wearing a pair of glasses that looked altered. Id. ¶ 4. Defendant asked Plaintiff to remove the glasses so that he could inspect them. Id.
The glasses had the word “Husqvarna” etched into the lens. Id. The frame was made from wood and the lenses were wrapped with wiring and glue. Id. Defendant informed Plaintiff that the glasses were not authorized and were therefore considered contraband because Plaintiff had removed the lens from the original frame and made a “homemade” frame for them. Id. Defendant confiscated the glasses from Plaintiff and informed him that he could go to the compound office, where he would be given the option of mailing the glasses home, because he was not allowed to have them in his possession. Id. ¶ 5. He informed Plaintiff that he would have to go to health services and have them order a pair of authorized glasses. Id. The glasses stayed in the compound desk drawer for over a month, and Plaintiff never went to the compound office to mail the glasses home. Id. After it was determined that Plaintiff was not going to mail the glasses home, the glasses were discarded. Id.
Plaintiff does not dispute that Defendant informed him the glasses would be in the compound office and that Plaintiff could mail the glasses home. Plaintiff also does not dispute that he did not go to the compound office over the course of the next month. However, Plaintiff appears to argue that the compound office does not exist, because there is no reference to the compound office in the FCI-Bennettsville handbook, and/or was inaccessible, but he offers no evidence in support. [See ECF No. 54 at 7]. Plaintiff also argues that Defendant did not properly handle the glasses, in that he did not “report the contraband.” Id. at 6.
On February 10, 2020, at approximately 6:32 p.m., Plaintiff was observed running erratically through the housing unit. [ECF No. 27-4]. An officer working in the housing unit ordered Plaintiff to stop running. Id. Plaintiff did not stop running, and instead ran into a wall and then fell to the ground. Id. The officer hit his body alarm and announced a medical emergency, requesting assistance. Id.
The incident was captured on the closed-circuit video camera system. [ECF No. 27-5]. The video was reviewed by the operations lieutenant to verify the accuracy of the memoranda submitted by responding staff for use in an incident report. Id. ¶¶ 3-4. The video showed Plaintiff running through the unit, weaving between tables in the common area of the housing unit. Id. The video showed Plaintiff run, headfirst and at full speed, directly into the wall. Id.
Defendant represents that this footage “was not retained after review as it was not necessary for any further investigation and no criminal referral was made.” [ECF No. 27 at 5 n.8 (citing ECF No. 27-5)]. Plaintiff does not dispute Defendant's summary of the footage.
Responding staff gave Plaintiff orders to submit to hand restraints due to his erratic behavior. [ECF Nos. 27-6, 27-7]. Staff attempted to place hand restraints on Plaintiff, and he became combative and stood up. Id. He was placed back on the ground and in hand restraints. Id. He was then placed on a medical backboard and taken to health services. Id.
In health services, Plaintiff was seen by a registered nurse. [ECF No. 27-3 at 28-30]. Her medical encounter note indicated Plaintiff refused to allow her to obtain certain vital signs, including temperature, pulse, and blood pressure. Id. His front left tooth was knocked out and half of his right front tooth was missing, and he was bleeding from his head and had swelling. Id. The records note Plaintiff was very combative when staff arrived on the unit. Id. The encounter note also indicates Plaintiff reported to the responding EMS staff that he had been smoking “something.” Id.
Plaintiff does not address the evidence concerning him having smoked something, but, instead, argues, without supporting evidence, that because his “glasses were taken and [his] sight being taken away causing extreme headaches along w/ the fact I did not have my antidepression medication. And the stress combined w/ the fact of the actions of C/O Knight. I suffered a mental [breakdown] and ran [into] a water fountain.” [ECF No. 11 at 6, see also ECF No. 54 at 3 (“Also causing physical harm to Plaintiff by denying Plaintiff the ability to see, [therefore] causing headache, pain [and] suffering, and a dull persistent pain” leading “to a mental breakdown causing Plaintiff to be injured and loss of 1 ½ front teeth”)].
Plaintiff was transported to McLeod Health Cheraw (“McLeod”), where the emergency room physician's note indicates Plaintiff's chief complaint was that he had “smoked something and went crazy and ran into a wall head on and fell backwards and hit his head on the floor, missing front tooth.” [ECF No. 27-3 at 122]. In the history of present illness, the physician recorded “Patient was reportedly smoking an unknown substance when he became quite irrational, ran violently from guards, running headlong into a water heater, bounced off, and fell backwards, striking his head.” Id.
Plaintiff returned to FCI Bennettsville on February 11, 2020. [ECF No. 27-3 at 26-27]. At that time, he saw clinical director Dr. Onuoha for the injury assessment that could not be performed prior to his transport to the hospital. Id. This encounter was recorded on video. [ECF No. 27-8 at 3:15 (beginning of encounter)]. Onuoha asks Plaintiff to tell him about what happened the day before. Id. Plaintiff states as follows:
Defendant represents this footage “was retained in accordance with BOP policy.” [ECF No. 27 at 5 n.8].
I, uh, I was given a cigarette, a pre-rolled cigarette, from another inmate, because I wanted to smoke a cigarette. So I smoked it, and after I smoked it . . . I can't really remember what happened after that. I don't remember what happened.Id. at 5:00-5:30. Onuoha asked him when he knew what was happening again, and he responded he was laying down, he woke up, and he could not move. Id. at 5:30-5:45. He also denied knowing where his head injury came from. Id. at 5:45-6:11.
Plaintiff also saw the dentist in the dental clinic on February 11, 2020. [ECF No. 27-3 at 87-88]. In the encounter note, the dentist notes that, “Inmate was ‘high' and ran into a wall.” Id. at 87. Finally, Plaintiff was seen by a physician in the special housing unit on February 18, 2020. Id. at 133. At that time, Plaintiff refused to be evaluated by the physician and signed a medical treatment refusal form. Id. He had further follow-up encounters for his broken tooth, but did not mention his lack of eyeglasses in any of the appointments. Plaintiff was issued new eyeglasses on March 13, 2020. Id. at 20.
Plaintiff, in unverified amended complaint, argues in relevant part that Defendant deprived him “of eye ‘sight' making him dis-abled and unable to see [where] he was going [] which resulted in ‘actual injury' of Plaintiff's mouth, fractured upper jaw and the loss of one front tooth [and half] of the other front tooth [in violation of the First, Fifth, and Eighth Amendments].” [ECF No. 11-1 at 1].
Plaintiff has argued to the court he did not receive or have access to certain discovery relevant to this case, but has also represented to the court in his most recent filings that these issues have been resolved. [See ECF Nos. 52, 54]. To the extent that Plaintiff requests this court hold Defendant in contempt of court for failing to provide evidence to him in a timely manner and for making misrepresentations to the court, the undersigned denies the request. [See ECF No. 52 at 12].
II. Discussion
A. Standard on Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. 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. 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., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Bivens Claims
a. Exhaustion of Administrative Remedies
Defendant argues Plaintiff failed to timely exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” Id. This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). To satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524.
Satisfaction of the exhaustion requirement requires “using all steps that the agency holds out, and doing so properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis in original)). Thus, “it is the prison's requirements, and not the [PLRA], that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). Defendants have the burden of establishing that Plaintiff failed to exhaust his administrative remedies. Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 683 (4th Cir. 2005). However, “an administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross v. Blake, 136 S.Ct. 1850 (2018).
The BOP has a three-tiered formal administrative grievance process, although there is also an informal resolution process. See 28 C.F.R. §§ 542.10 et seq. An inmate may complain about any aspect of his confinement by first seeking to informally resolve the complaint at the institution level. 28 C.F.R. § 542.13. If the matter cannot be resolved informally, the inmate may file a formal written complaint to the warden within 20 calendar days after the date upon which the basis for the request occurred. 28 C.F.R. § 542.14. The matter will be investigated, and a written response provided to the inmate. See Id. If dissatisfied with the response, the inmate may appeal to the regional director within 20 days of the date of the warden's response. 28 C.F.R. § 542.15(a). If dissatisfied with the regional response, the inmate may appeal to the general counsel within 30 days of the regional director's response. Id. Appeal to the general counsel is the final level of agency review. 28 C.F.R. § 542.15(a).
The applicable regulations also provide as follows:
Once filed, response shall be made by the Warden or CCM within 20 calendar days; by the Regional Director within 30 calendar days; and by the General Counsel within 40 calendar days. If the Request is determined to be of an emergency nature which threatens the inmate's immediate health or welfare, the Warden shall respond not later than the third calendar day after filing. If the time period for response to a Request or Appeal is insufficient to make an appropriate decision, the time for response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level. Staff shall inform the inmate of this extension in writing. Staff shall respond in writing to all filed Requests or Appeals. If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.
Plaintiff's glasses were confiscated on February 8, 2020, and his injury occurred on February 10, 2020. Although Plaintiff has submitted evidence that he filed a “request to staff” about the confiscation of his glasses on February 8, 2020 [ECF No. 54-1 at 10], he has not offered evidence that he timely pursued the administrative grievance process, instead arguing there was no response to his request to staff and appearing to argue that he began to attempt to exhaust his administrative remedies in April 2020. [See ECF No. 4 at 5, ECF No. 11 at 8-9, 54-1 at 6]. However, Plaintiff does not address Defendant's argument that even if Plaintiff had begun the process in April 2020, his claims would still be untimely. [See ECF No. 27 at 13].
Defendant disputes that Plaintiff began to pursue his administrative remedies in April 2020, arguing instead that the “first administrative remedy . . . that could be related to this case[] was received by the BOP on June 3, 2020 . . . .” [See ECF No. 27 at 11-14].
Plaintiff alleges his access to administrative remedies was interfered with [See, e.g., ECF No. 54 at 8-11], but all alleged interference occurred well after the time to pursue his administrative remedies had expired. See id.
Based on the current record, the undersigned recommends granting Defendant's motion for summary judgment as to Plaintiff's Bivens claims for failure to exhaust his administrative remedies.
b. Bivens Claims-Deliberate Indifference
Plaintiff's Bivens claims against Defendant fail for additional reasons. In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the federal government. In 1971, the Supreme Court in Bivens recognized an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. 403 U.S. at 397. The Court acknowledged the Fourth Amendment does not provide for money damages “in so many words.” Id. at 396. The Court noted, however, Congress had not foreclosed a damages remedy in “explicit” terms and no “special factors” suggested that the Judiciary should “hesitat[e]” in the face of congressional silence. Id. at 396-97. The Court, accordingly, held it could authorize a remedy under general principles of federal jurisdiction. Id. at 392.
Since Bivens, the Court has only expanded this implied cause of action twice. In Davis v. Passman, 442 U.S. 228 (1979), the Court provided a Bivens remedy under the Fifth Amendment's Due Process Clause for gender discrimination. In Carlson v. Green, 446 U.S. 14 (1980), the Court expanded Bivens under the Eighth Amendment's cruel and unusual punishments clause for failure to provide adequate medical treatment to a prisoner. Otherwise, the Court has consistently declined to expand this limited remedy.
On June 19, 2017, the Supreme Court provided a framework for determining whether a claim for a constitutional violation by federal officials presents a “new Bivens context” necessitating the above inquiry. Ziglar v. Abbasi, 137 S.Ct. 1843, 1859-60 (2017). The Ziglar Court “made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity” and reiterated the Court has “‘consistently refused to extend Bivens to any new context or new category of defendants.'” Id. at 1857 (citing Iqbal, 556 U.S. at 675). The Ziglar Court held a claim presents a new Bivens context “[i]f the case is different in a meaningful way from [the three] previous Bivens cases decided by this Court.” Id. at 1859. Differences meaningful enough to give rise to a new Bivens context may include “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” Id. at 1859-60.
As stated, the Supreme Court has previously recognized an implied right of action for an Eighth Amendment claim based on deliberate indifference to serious medical needs in Carlson. The facts at hand may present meaningful differences such that Plaintiff's claim presents a new context; however, the court need not engage in a lengthy Ziglar analysis, because Plaintiff has failed to present sufficient evidence to support this claim.
Regarding Plaintiff's claim of inadequate medical care, to establish an Eighth Amendment violation, Plaintiff must show Defendant exhibited “deliberate indifference” to his “serious medical needs.” Farmer, 511 U.S. at 835; Wilson v. Seiter, 501 U.S. 294, 297 (1991). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle v. Gamble, 429 U.S. 97, 105-106 (1976), and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The Fourth Circuit has noted treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990) (citation omitted).
Plaintiff has provided no evidence that the removal of his eyeglasses to treat his nearsightedness was a serious medical need nor that he could not function without those eyeglasses. Although Plaintiff makes unsupported allegations that he was injured due to his lack of glasses, the record shows that Plaintiff's injuries were the result of him running through the housing unit after having smoked an unknown substance-a substance that Plaintiff stated he smoked while making no reference his eyeglasses or vision problems.
Additionally, even if the court were to assume that Plaintiff had a serious medical need, he has failed to show that Defendant was deliberately indifferent to his need. Instead, Defendant has submitted undisputed evidence that he confiscated Plaintiff's eyeglasses due to their altered state and instructed Plaintiff how to send the eyeglasses home and to go to health services to receive a pair of authorized eyeglasses.
Plaintiff additionally argues these glasses were evidence in Hampton I, that Defendant was aware of this information when he confiscated the glasses, and, therefore, Defendant interfered with Plaintiff's rights to access the courts where he cannot now send the glasses in as physical evidence. [See, e.g., ECF No. 54 at 3]. As previously recommended by the undersigned, because Plaintiff has failed to demonstrate actual injury to his pending case, where he does not argue or offer any evidence that his claims in that case have been frustrated or impeded, Plaintiff has failed to state a claim for a First Amendment denial of access to the courts. [See ECF No. 17 at 4-5 (citing Strickler v. Waters, 989 F.2d 1375, 1384 (4th Cir. 1993) (holding that a prisoner had a “basic requirement that he show specific harm or prejudice from the allegedly denied access”)); see also Id. (“Plaintiff alleges that his evidence related to summary judgment in Hampton I was destroyed, but he admits that Hampton I is still pending. A review of Hampton I reveals that Defendants' motion for summary judgment is pending. Because Plaintiff has not shown an actual injury, he has failed to state a claim for a First Amendment claim of denial of access to the courts.”)]. Hampton I remains pending.
Based on the record before the court, there is no triable issue of fact as to whether Defendant exhibited deliberate indifference to Plaintiff's serious medical needs. Accordingly, the undersigned recommends granting Defendant's motion as to this claim.
3. Additional Bivens Claims
Plaintiff also briefly references violations of his First Amendment rights that include his right to be free from retaliation, Fifth Amendment rights including his right to due process, and Eighth Amendment rights concerning conditions of his confinement. [See, e.g., ECF No. 11 at 4]. Defendant argues at length that in so referencing these rights, Plaintiff seeks to assert an implied cause of action in a new Bivens context and that special factors counsel hesitation before so implying. [ECF No. 27 at 20-32].
As stated by this court, “Congress and the courts have not expanded the Bivens remedy to include claims for retaliation, denial of access to courts, or unconstitutional conditions of confinement under the First, Fifth, and Eighth Amendments” and, when turning to the “special factors analysis, ” “Plaintiff does have other avenues for relief, and there are significant economic and governmental concerns with recognizing implied causes of action in this instance.” Williams v. Lynch, C/A No. 1:16-3043-DCC, 2018 WL 4140667, at *3-4 (D.S.C. Aug. 30, 2018), on reconsideration in part sub nom. Williams v. Bennett, C/A No. 1:16-3043-DCC, 2019 WL 1614829 (D.S.C. Apr. 16, 2019); see also Earle v. Shreves, 990 F.3d 774, 781 (4th Cir. 2021) (“we must reject Earle's attempt to extend the Bivens remedy to his claim that the defendants violated his First Amendment rights by retaliating against him for filing grievances”) (collecting cases).
Plaintiff has not addressed Defendant's arguments concerning these claims and a review of Plaintiff's arguments indicates he is attempting to bring these claims against parties who were never served in this case or concerning aspects of this case that have been resolved or recommended to be dismissed. [See, e.g., ECF No. 54 at 12 (“Warden Ms. Barnes [and] Ms. Fletcher . . . did in fact act deliberate [and] indifferent with ‘retaliatory' intent . . . withheld [administrative remedies on purpose] so Plaintiff could not exhaust.”)]. For these reasons and based on the case law cited above, the undersigned recommends granting Defendant's motion as to these claims.
Plaintiff argues repeatedly that his rights have been violated because Defendant failed to follow various policies, including BOP policies, concerning the handling of contraband. [See, e.g., ECF No. 44 at 4-5, ECF No. 54 at 3, 6, 12]. However, Plaintiff's allegations do not rise to the level of a constitutional claim. See, e.g., Johnson v. S.C. Dep't of Corr., C/A No. 3:06-2062-CMC-JRM, 2007 WL 904826, at *12 (D.S.C. Mar. 21, 2007) (“Plaintiff's allegation that Defendants did not follow their own policies fails, as the failure of prison officials to follow their own policies or procedures, standing alone, does not amount to a constitutional violation.”).
4. Qualified Immunity
Under the qualified immunity defense, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity ensures that “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Maciarie lo v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Whether an officer is entitled to qualified immunity is a question of law for the court and, when there are no relevant disputed material facts, a court should rule on the qualified immunity issue at the summary judgment stage. Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005) (“Ordinarily, the question of qualified immunity should be decided at the summary judgment stage.”).
To resolve a qualified immunity defense, the court must (1) determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendant's conduct violated a constitutional right, and (2) determine whether the right was clearly established at the time of the alleged misconduct. Pearson v. Ca lahan, 555 U.S. 223, 232 (2009). Courts may address the two prongs of the qualified immunity analysis in whichever order is appropriate in light of the circumstances of the particular case at hand. Id.
To the extent applicable, the court has determined Defendant's conduct did not violate Plaintiff's constitutional rights. Because there is no constitutional violation, much less a clear constitutional violation, Defendant is entitled to qualified immunity.
5. Claims Against Defendant in his Official Capacity
Additionally, Plaintiff's claims against Defendant in his official capacity fail. As stated, Plaintiff's claims for monetary damages because of constitutional wrongdoing by federal agents fall under Bivens, 403 U.S. at 397. A Bivens action is a judicially-created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Id. at 395- 97. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Thus, a Bivens action will not lie against either federal agencies or officials in their official capacity. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (citing F.D.I.C v. Meyer, 510 U.S. 471, 486 (1994)). Accordingly, the undersigned recommends dismissal of Plaintiffs claims against Defendant in his official capacity.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends granting Defendant's motion for summary judgment, dismissing Plaintiffs Bivens claims with prejudice. [ECF No. 27].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).