Opinion
C. A. 6:23-cv-01214-SAL-KFM
06-15-2023
Leo Vincent Poole, Plaintiff, v. J. Gordon, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate
This is an action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999) by the plaintiff (who is currently incarcerated in Florida) regarding his time as a federal prisoner, alleging violations of his constitutional rights (doc. 1). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2) (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
PROCEDURAL HISTORY & ALLEGATIONS
The plaintiff's complaint was entered on the docket on March 27, 2023 (doc. 1). By orders filed April 5, 2023, and May 16, 2023, the plaintiff was given a specific time frame in which to bring his case into proper form for judicial screening (docs. 5; 11). The plaintiff complied with the court's orders, bringing his case into proper form for judicial screening. With his proper form documents, the plaintiff also filed a motion to amend his complaint (doc. 17), which was granted on June 15, 2023 (doc. 19). Having reviewed the plaintiff's amended complaint (doc. 20), the undersigned recommends that it be dismissed.
In his amended complaint, the plaintiff alleges violations of his First Amendment Rights because he has been denied access to the courts (doc. 20). The plaintiff contends that the violations occurred when he was a prisoner in the custody of the Bureau of Prisons (“BOP”) and incarcerated at Estill Federal Correctional Institution (“FCI Estill”) in December of 2018 (id. at 6). The plaintiff, who was serving a supervised release violation sentence at FCI Estill, alleges that he was notified of a detainer by the state of Florida in December 2018 (id. at 7). The plaintiff alleges that the defendant called him to the office and provided him with a copy of the detainer, but indicated that he did not have time to fill out the paperwork with the plaintiff (id. at 7-8). The plaintiff filed complaints in Florida and South Carolina seeking assistance with the detainer paperwork, and the defendant assisted him with filling out the paperwork in February 2019 (id. at 8). The plaintiff contends that although the detainer had expired without Florida filing a motion to continue, when the plaintiff was released from FCI Estill, Florida officers extradited the plaintiff to Florida (id.).
The plaintiff alleges that after being incarcerated in Florida, he was released on bond until he was rearrested on new criminal charges and his bond was revoked (id.). The plaintiff contends that during his incarceration in Florida he was attacked by three other inmates (id.). Counsel for the plaintiff in his Florida state charges also sought dismissal of the Florida charges based on violations of the Interstate Agreement on Detainers Act (“IADA”), but the motion was denied (id. at 8-9). The plaintiff contends that the delay in submitting his detainer paperwork constituted denial of access to the court as well as that he was denied his right to a speedy trial (id. at 9-10). The plaintiff also contends that the violations of his rights caused him to suffer mental and emotional distress (id. at 11). The plaintiff's injuries include emotional distress, lost businesses, and not being able to adequately defend civil lawsuits that were filed against him (id. at 13). For relief, the plaintiff seeks money damages (id.).
STANDARD OF REVIEW
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied 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, the plaintiff is a prisoner under the definition of 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 the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
As noted above, the plaintiff filed the instant action pursuant to Bivens, seeking damages from the defendant. However, upon review of the plaintiff's amended complaint, the undersigned recommends it be dismissed.
Bivens Claims
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violations of federal constitutional rights. Bivens, 403 U.S. at 388. 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 § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825, 839 (1994); Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). To state a claim under Bivens, a petitioner must plausibly allege two elements: (1) the defendant deprived the petitioner 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.”).
As noted, in Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a petitioner's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the petitioner in his own home without a warrant. Bivens, 403 U.S. at 389. Since then, the Supreme Court has only recognized Bivens claims in two additional contexts: (1) under the Fifth Amendment's Due Process Clause for gender discrimination when a Congressman fired his female administrative assistant (Davis v. Passman, 442 U.S. 228 (1979)); and (2) under the Eighth Amendment's Cruel and Unusual Punishment Clause against prison officials for failing to treat an inmate's asthma (Carlson v. Green, 446 U.S. 14 (1980)). However, as recognized by the United States Supreme Court in Egbert v. Boule, during the last 42 years, the court has “declined 11 times to imply a similar cause of action for other alleged constitutional violations.” 142 S.Ct. 1793, 1799-1800 (2022) (collecting cases). The Court in Egbert further noted that recognizing additional causes of action under Bivens is disfavored. Id. at 1803 (internal citation omitted). As recognized recently by the Fourth Circuit in a published opinion, although the Supreme Court has not overruled any of the Bivens cases, the Supreme Court has demonstrated not only regret over the Bivens cases, but also demonstrated hostility to any expansion of them. See Tate v. Harmon, 54 F.4th 839, 843-44 (4th Cir. 2022). Thus, the Supreme Court has imposed a highly restrictive analysis for Bivens cases by “(1) narrowing the precedential scope of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied, require courts to reject any expansion of Bivens remedies.” Id. Under Ziglar v. Abbasi, the Supreme Court framed the inquiry as a two step process: (1) first asking whether the case presents a new Bivens context and (2) if the claim arises in a new context, doing a special factors analysis to determine whether to extend Bivens to said context. Ziglar v. Abbasi, 582 U.S. 120, 135-38 (2017) (citation omitted). In Egbert, the Supreme Court decided that “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803.
Here, the plaintiff's claims - denial of access to the courts under the First Amendment and violations of his right to a speedy trial under the Sixth Amendment - are new Bivens contexts. Because the plaintiff's claims are new Bivens contexts, the undersigned must consider whether “there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.Ct. at 1803 (emphasis added). Here, special factors counsel hesitation about extending Bivens to the plaintiff's First and Sixth Amendment claims. For example, as recognized in Egbert, in determining if a damages ready is more suitable for Congress to create, “a court likely cannot predict the ‘systemwide' consequences of recognizing a cause of action under Bivens” and that “uncertainty alone is a special factor that forecloses relief.” Egbert, 142 S.Ct. at 1803-04 (internal citations omitted). Moreover, extending Bivens to the First Amendment claim asserted by the plaintiff in this action has been previously rejected. Id. at 1807; see Curry v. Olberding, C/A No. 1:21-cv-1300-HMH-SVH, 2022 WL 791925, at *5 (D.S.C. Feb. 3, 2022) (noting that denial of access to the courts claim is a new context to which Bivens should not be extended), report and recommendation adopted by 2022 WL 788874 (D.S.C. Mar. 15, 2022); Bailey v. Rife, C/A No. 1:21-cv-00424, 2021 WL 6496561, at *12-14 (S.D. W.Va. Nov. 19, 2021) (noting that access to the courts/law library claim and First Amendment claim were new Bivens contexts and special factors counseled against expanding Bivens to these contexts), report and recommendation adopted by 2022 WL 130746 (S.D. W.Va. Jan. 13, 2022). Further, although not specifically addressed by the Fourth Circuit, other courts have recognized that Bivens has not been extended to Sixth Amendment speedy trial act claims, such as the one asserted by the plaintiff herein. See Thompson v. Rogers, C/A No. 21-3197-SAC, 2021 WL 4243127, at *4 (D. Kan. Sept. 17, 2021) (collecting cases recognizing that Bivens has not been extended to Sixth Amendment claims). Under the highly restrictive analysis imposed by the Supreme Court regarding the extension of Bivens to new contexts, special factors counsel against extending Bivens to the plaintiff's claims; thus, the instant matter is subject to summary dismissal.
Even construing the plaintiff's amended complaint as asserting conditions of confinement or failure to protect claims, the plaintiff's amended complaint is still subject to summary dismissal because courts have rejected extending Bivens to these contexts. See Tate, 54 F.4th at 845 (rejecting extension of Bivens to conditions of confinement claims); Hammond v. Two Unknown Named Agents of U.S. Marshals Serv., C/A No. 4:20-cv-04298-JFA-TER, 2023 WL 2025206, at *5 (D.S.C. Jan. 9, 2023) (declining to extend Bivens to failure to protect or excessive force claims), report and recommendation adopted by 2023 WL 2025171 (D.S.C. Feb. 15, 2023).
RECOMMENDATION
The undersigned is of the opinion that the plaintiff cannot cure the defects identified above by amending his complaint. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 49 F.4th 790 (4th Cir. 2022) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The attention of the parties is directed to the important notice on the following page.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following 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 committees 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, Room 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).