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holding that no Bivens remedy existed for a claim for denial of access to courts
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C/A No.: 1:16-3043-DCC-SVH
07-23-2018
Anthony D. Williams, #14113-112, Plaintiff, v. Ms. Loretta Lynch, Attorney General; Mr. Travis Bragg, C.E.O. Warden; Ian Connor, National Inmate Appeal Coordinator; M. Holliday, Chief Dietitian; M. Furman, Associate Warden; P. Kelly, Associate Warden; Mr. Hicks, Institutional Captain; S.K. Brosier, Admin Remedy Coordinator; Mr. Rich, CMC Coordinator; T. Whitehead, Unit Manager; J. Ackerman, Case Manager; Mrs. Roberts, Case Manager; Mrs. Bennett, Secretary; Ms. Prince, Correctional Officer; J. Onuoha; Mr. Padilla, Food Service Administrator; John/Jane Doe, Designation and Sentence Computation Unit Team; Ms. Murberry; United States of America; Mr. Cox; Mr. Parra; Mr. Davis, Unit Manager; and Mr. Rodriguez, Defendants.
REPORT AND RECOMMENDATION
Anthony D. Williams ("Plaintiff"), proceeding pro se and in forma pauperis, brings this action alleging a violation of his constitutional rights against the above-named defendants ("Defendants") while incarcerated at the Federal Correctional Institution located in Bennettsville, South Carolina ("FCI-Bennetsville"), 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). Plaintiff also brings claims pursuant to the Federal Tort Claims Act, 18 U.S.C. § 1346(b) ("FTCA"). Plaintiff is currently incarcerated at the Federal Medical Center in Devens, Massachusetts.
This matter comes before the court on Defendants' motion for summary judgment. [ECF No. 113]. 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 Defendants' motion. [ECF No. 114]. The motion having been fully briefed [ECF No. 162, 164-168], it is ripe for disposition.
Defendants' motion is entitled "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." Plaintiff was advised that the court intended, pursuant to Fed. R. Civ. P. 12(d), to treat the motion as one for summary judgment under Fed. R. Civ. P. 56 because Defendants presented matters outside of the pleadings related to their affirmative defenses. [ECF No. 125]
Plaintiff filed a "place holder motion" requesting to supplement his response to summary judgment at an unspecified time in the future and a motion to submit a late exhibit. [ECF Nos. 164, 170]. Defendants' motion had been pending for over seven months before Plaintiff filed his initial response, and he has not shown just cause for an additional extension. The court has been generous with granting Plaintiff extensions [ECF Nos. 125, 137, 141, 146, 160], but cannot extend his response time indefinitely. Plaintiff's motions [ECF Nos. 164, 170] are denied.
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 Defendants' motion for summary judgment. I. Factual and Procedural Background
In the 217 pages comprising Plaintiff's second amended complaint, he alleges 29 separate counts, many of which are redundant and contain only general allegations. Plaintiff's general allegations can be summarized as follows: (1) his transfer to FCI-Bennettsville was retaliatory; (2) he suffers retaliation when he exercises his constitutional rights; (3) he was not receiving his special medical diet; (4) Defendants failed to protect him from the retaliation of others, including other Defendants; and (5) his conditions of confinement have been unconstitutional. [ECF No. 67]. For ease of reference, the undersigned categorizes Plaintiff's claims as follows:
• "Group I Claims": Claims brought under the First, Fifth, and Eight Amendments, which include allegations of retaliation, denial of access to the courts, and unconstitutional conditions of confinement. (Counts 2-13, 15-16, 18-20, 26-29).
• "Medical Indifference Claim": This claim asserts a claim of medical indifference based on Bivens. (Count 14)The undersigned notes that Count 1 is not a legally-distinct claim, but instead alleges that the continuing violation doctrine applies to all of Plaintiff's claims. Similarly, Count 25 only argues that the South Carolina long-arm statute applies to convey personal jurisdiction over all defendants. II. Discussion
• "Group II Claims": Claims brought pursuant to 42 U.S.C. §§ 1985 and 1986. (Counts 17, 23, and 24)
• "FTCA Negligence Claim": (Count 21)
• "FTCA Medical Claim": (Count 22)
A. Subject Matter Jurisdiction
Defendants contend that the court lacks subject matter jurisdiction over Plaintiff's claims because of the doctrine of sovereign immunity. To the extent Plaintiff seeks damages against Defendants in their official capacities, they are indeed protected by sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 165 (1985) (holding that an official capacity suit "generally present[s] only another way of pleading an action against an entity of which an officer is an agent" and "is, in all respects other than name, to be treated as a suit against the entity") (internal quotations omitted); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (observing that "a Bivens action does not lie against either agencies or officials in their official capacity"). However, it appears that Plaintiff intended to sue Defendants in their official and individual capacities.
B. Personal Jurisdiction
Defendants argue that this court does not have personal jurisdiction over Connors, Holliday, and Marberry because they do not have sufficient contacts with South Carolina. Connors is the National Inmate Appeals Administrator, and his office is located in Washington, D.C. [ECF No. 113-2]. Plaintiff alleges Connors failed to investigate his claims of retaliation. Holliday is the Chief Dietician for the BOP, and his office is located in Rochester, Minnesota. [ECF No. 113-3]. Plaintiff's claims against Holliday stem from his review of meal plans served to inmates around the country. Marberry is the Regional Director for the Southeast Region of the BOP, and her office is located in Atlanta, Georgia. [ECF No. 113-4]. Marberry's only contact with South Carolina is through her regional supervisory responsibilities.
Courts have held that mere allegations relating to a federal official's decisions outside the forum state and other supervisory activities over a facility inside the forum state are insufficient to establish personal jurisdiction. See, e.g., Jones v. Hawk-Sawyer, 2000 WL 34203850, at * 2 (N.D. Tex. Oct. 19, 2000); see also Hill v. Pugh, 75 Fed. Appx. 715, 719 (10th Cir. 2003) (dismissing claims against BOP Regional Director, located in Kansas, and BOP Director, located in Washington, D.C., for lack of personal jurisdiction, holding that it was "not reasonable to suggest that federal prison officials may be hauled into court simply because they have regional and national supervisory responsibilities over facilities within a forum state [Colorado]."); Johnson v. Rardin, 1992 WL 9019, at *1 (10th Cir. Jan. 17, 1992) (dismissing Regional Counsel for lack of minimum contacts where involvement was occasionally advising prison staff members in forum state); Durham v. Lappin, 2006 WL 2724091, at *5 (D. Colo. Sept. 21, 2006); Thornton v. Quinlan, 864 F. Supp. 90, 92 (S.D. Ill. 1994) (declining to exercise jurisdiction over BOP director whose only contacts with Illinois were in his official capacity); Murrell v. Chandler, 2007 WL 869568, at *4 (E.D. Tex. Mar. 21, 2007) (dismissing BOP's Administrator of National Inmate Appeals, in Washington, D.C., for lack of personal jurisdiction)). The undersigned recommends Connors, Holliday, and Marberry be dismissed because the court lacks personal jurisdiction over them.
C. Request for Injunctive and Equitable Relief
Because Plaintiff has been transferred to a different facility, his claims for equitable and injunctive relief are now moot. See Ajaj v. Smith, 108 Fed. App'x 743 (4th Cir. 2004) (finding inmate's claims moot where he sought equitable relief from conditions at one facility and was subsequently transferred to another institution); Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (holding that transfer mooted prisoner's claims for injunctive and declaratory relief); Magee v. Waters, 810 F.2d 451, 452 (4th Cir. 1987) (holding that prisoner's transfer moots his request for injunctive relief against conditions of confinement in facility from which he was transferred).
Although Plaintiff claims his transfers were retaliatory, the undersigned addresses his claims of retaliation infra.
D. 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.
E. Analysis
1. Group I Claims
a. Bivens Claims Jurisprudence
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 that the Fourth Amendment does not provide for money damages "in so many words." Id. at 396. The Court noted, however, that Congress had not foreclosed a damages remedy in "explicit" terms and that no "special factors" suggested that the Judiciary should "hesitat[e]" in the face of congressional silence. Id. at 396-97. The Court, accordingly, held that 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 that 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 that 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 (emphasis added). 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.
If the party seeks to assert an implied cause of action in a new Bivens context, the court should determine whether any special factors counsel hesitation before providing a new Bivens remedy. Id. at 1859. The Ziglar Court held that the special factor "inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." The Court further noted:
It is not necessarily a judicial function to establish whole categories of cases in which federal officers must defend against personal liability claims in the complex sphere of litigation, with all of its burdens on some and benefits to others. It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations. Yet the decision to recognize a damages remedy requires an
assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies. These and other considerations may make it less probable that Congress would want the Judiciary to entertain a damages suit in a given case.Id. at 1858. Additionally, the existence of an alternative remedial structure to address the party's claim may alone limit the power of the judiciary to infer a Bivens claim. Id. The Court cautioned that in assessing whether Congress or the courts should determine whether to provide a damages remedy, "[t]he answer most often will be Congress." Id. at 1857.
b. Ziglar Analysis of Group I Claims
Using the Ziglar analysis, each of the Group I Claims presents a new Bivens context, as they are not analogous to the facts of any of the three Bivens cases decided by the Supreme Court. The Court has never found a Bivens action in a First Amendment case, and the Ziglar Court specifically noted that a case might differ in a meaningful way because of the constitutional right at issue. Ziglar at 1859-60. While the Court did provide a Bivens remedy for a gender discrimination case under the Fifth Amendment in Davis, the undersigned finds that there are meaningful differences between Plaintiff's claims and the claims in Davis. For instance, Plaintiff's claims arose in the prison context, for which Congress has already provided substantial governing legislation. In addition, the Ziglar Court noted specific substantive and procedural due process cases in which the Court had declined to create an implied damages remedy. Ziglar at 1857 (noting the following cases: "a substantive due process suit against military officers, United States v. Stanley, 483 U.S. 669, 671-672, 683-684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471, 473-474 (1994)").
Similarly, Plaintiff's Eighth Amendment claims concerning conditions of confinement are also meaningfully different from Bivens claims the Court has allowed. Most notably, the Ziglar Court specifically noted that the conditions of confinement claims brought by the federal detainee plaintiffs "bear little resemblance to the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate's asthma." Ziglar at 1860. The same is true for Plaintiff's claims of retaliation, as they are all related to Plaintiff's claims pursuant to the First, Fifth, and Eighth Amendments discussed above.
Having determined that Plaintiff's Group I Claims present new Bivens contexts, the undersigned must determine if there are special factors counseling hesitation before implying a remedy. Here, Plaintiff has alternative remedies available to him, including the BOP administrative grievance process and a federal tort claims action. Moreover, "legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation." Id. As noted by the Supreme Court:
Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.Id. (internal citations omitted). Congress has been active in the area of prisoners' rights, and its actions do not support the creation of a new Bivens claim. Following the guidance in Ziglar, the undersigned finds that Congress is better suited to determine whether to provide a damages remedy for Plaintiff's Group I Claims. Therefore, the undersigned recommends that Defendants be granted summary judgment on Plaintiff's claims for damages related to his Group I Claims.
2. Medical Indifference Claim
In his medical indifference claim, Plaintiff alleges defendants Padilla, Onuoha, Furman, Kelly, and Holliday were deliberately indifferent to his serious medical needs because they did not ensure that he received a special medical diet, causing him to suffer chronic abdominal pain. [ECF No. 67-1 at 55-57]. Plaintiff alleges that he continued to receive milk and cereal, peanut butter, and bologna, but that they upset his stomach. Id. at 109. Onuoha is the only defendant that provided Plaintiff medical care, but Plaintiff argues that the additional defendants prevented him from receiving medical care.
a. Ziglar's Effect on Medical Indifference Claim
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. However, the facts at hand arguably present meaningful differences such that Plaintiff's claim presents a new context. However, the court need not engage in a lengthy Ziglar analysis, as Plaintiff has failed to present sufficient evidence that Padilla, Onuoha, Furman, Kelly, and Holliday were deliberately indifferent to his serious medical needs.
b. Substantive Analysis of Medical Indifference Claim
In 2012, Plaintiff saw a gastroenterologist that recommended Plaintiff remain on a normal diet but eat smaller portions more frequently. [ECF No. 113-16 at 322-23]. Dr. Onuoha's first clinical encounter with Plaintiff occurred on June 12, 2015. Id. at 53-58. Plaintiff indicated that he was following the dietary plan of care. Id. at 59. Dr. Onuoha reinforced this, and counseled Plaintiff to continue to eat small, frequent, self-selected meals. Id. at 58.
On November 9, 2015, Dr. Onuoha ordered that Plaintiff receive six small meals per day or three regular meals with three snacks. Id. at 26. When Plaintiff complained about peanut butter causing him constipation, id. at 22, Dr. Onuoha took appropriate steps to alleviate his concerns by speaking on December 4, 2015, to Padilla, Assistant Food Service Administrator at FCI-Bennettsville, about available snack options. Id. at 11-12. Padilla reported that Plaintiff had switched to a common fare diet on his own accord. Id.
Plaintiff's next complaint about stomach or dietary problems was March 25, 2016. Id. at 196. At that time, he complained about pain, but reported drinking milk despite the likelihood that he is lactose-intolerant. Id. Dr. Onuoha saw him again on May 11, 2016, for a Chronic Care Clinic encounter at which time he again advised Plaintiff to avoid milk and other foods that may irritate his bowels. Id. at 188-91. Dr. Onuoha also noted that Plaintiff's weight had remained steady since Plaintiff arrived at FCI-Bennettsville eleven months prior. Id. On November 10, 2016, Plaintiff complained about pain coming from peanuts and snacks he was receiving. Id. at 172. His medical records from February 3, 2017, indicated that Plaintiff reported that he had started intentional weight loss. Id. at 155.
On February 27, 2017, Plaintiff reported that he was experiencing "off and on" abdominal pains and that he was eating his three meals and three snacks, "but does not like them." Id. at 150.
In the case of Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990), the Fourth Circuit noted that treatment "must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness, . . . nevertheless, mere negligence or malpractice does not violate the Eighth Amendment." Id. at 851 (citations omitted). Unless medical needs were serious or life threatening, and the defendant was deliberately and intentionally indifferent to those needs of which he was aware at the time, the plaintiff may not prevail. Estelle v. Gamble, 429 U.S. 97, 102-103 (1976); Farmer v. Brennan, 511 U.S. 825 (1994); Sosebee v. Murphy, 797 F.2d 179 (4th Cir. 1986).
Here, Plaintiff has not demonstrated a claim of deliberate indifference to his serious medical needs against Dr. Onuoha. Although Plaintiff requested that he be provided a different diet, Plaintiff received adequate food to meet the gastroenterologist's recommendation of eating smaller, more frequent meals. The Constitution requires that prisoners be provided with a certain minimum level of medical treatment, but it does not guarantee to a prisoner the treatment of his choice. Thomas v. Anderson City Jail, No. 6:10-3270-RMG-KFM, 2011 WL 442053, at *3 (D.S.C. Jan. 19, 2011); Jackson v. Fair, 846 F. 2d 811, 817 (1st Cir. 1988). While the provision of medical care by prison officials is not discretionary, the type and amount of medical care is discretionary. See Brown v. Thompson, 868 F. Supp. 326 (S.D. Ga. 1994). Further, a disagreement as to the proper treatment to be received does not in and of itself state a constitutional violation. See Smart v. Villar, 547 F. 2d 112 (10th Cir. 1976); Lamb v. Maschner, 633 F. Supp. 351, 353 (D. Kan. 1986). Here, Plaintiff has failed to show that Dr. Onuoha was deliberately indifferent to his serious medical needs in failing to mandate a special diet.
With regard to Padilla, Furman, Kelly, and Holliday, Plaintiff has not provided evidence that these defendants denied him medical care. Non-medical personnel may be liable for medical indifference if they "were personally involved in a denial of treatment, deliberately interfered with treatment, or tacitly authorized or were indifferent to a prison physician's misconduct." Estelle, 429 U.S. at 104-05. Plaintiff has not provided any evidence that Padilla, Furman, Kelly, and Holliday denied him treatment or interfered with his treatment. Therefore, Defendants are entitled to summary judgment on Plaintiff's claim of deliberate indifference to his serious medical needs.
3. Group II Claims
Plaintiff also brings claims pursuant to 42 U.S.C. §§ 1985, 1986. Circuits disagree as to whether federal officials within the same branch are protected from conspiracy claims under the intracorporate-conspiracy doctrine. Most recently, the Supreme Court noted the split of authority and that it had not approved or disapproved of the intracorporate-conspiracy doctrine's application in the context of an alleged § 1985 violation. Ziglar at 1868. Given the split in authority, the Supreme Court found that the federal officials in Ziglar were entitled to qualified immunity on the claims that they had unlawfully conspired in violation of § 1985. They are likewise entitled to qualified immunity for alleged violations of § 1986, as it provides a cause of action for neglecting to prevent violations of § 1985. Based on Ziglar's authority, the undersigned recommends Defendants be granted summary judgment on Plaintiff's Group II claims.
4. FTCA Negligence Claim
Plaintiff's claim under the FTCA for negligence asserts that "Defendants owed a duty to Plaintiff to protect him against their colleagues, other inmate and against the harms of their wrongdoings." [ECF No 67-1 at ¶ 221]. To the extent Plaintiff's claim alleges liability based on Defendants' failure to properly supervise each other, the court lacks subject matter jurisdiction over the claims, as supervisory authority falls within the discretionary function exception to the FTCA.
"The United States, as sovereign, is immune from suit save as it consents to be sued. . . ." United States v. Sherwood, 312 U.S. 584, 586 (1941); see also Frahm v. United States, 492 F.3d 258, 262 (4th Cir. 2007). Sovereign immunity is jurisdictional and the terms of the government's consent to be sued in any court define that court's jurisdiction to consider such a suit. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969). The government's waiver of immunity must be construed strictly in favor of the sovereign, making it "the plaintiff's burden to show that an unequivocal waiver of sovereign immunity exists and that none of the statute's waiver exceptions apply to his particular claim." Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005) (internal citations omitted).
For those plaintiffs asserting tort claims against the Government, Congress issued a limited waiver of sovereign immunity in the FTCA. Under this statute, the United States waives sovereign immunity for "injury or loss of property, or personal injury or death 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). The FTCA's waiver of sovereign immunity is narrow and subject to exceptions, however. Many of the exceptions are codified in 28 U.S.C. § 2680. Relevant here is the discretionary function exception, found at 28 U.S.C. § 2680(a). Under this exception, the waiver of sovereign immunity does not extend to a claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a).
In the Fourth Circuit, decisions regarding the hiring, supervision, and retention of employees are protected under the discretionary function exception to the FTCA. See Suter v. United States, 441 F.3d 306, 312 n.6 (4th Cir.2006) (finding claim FBI negligently hired and supervised an agent barred by discretionary-function exception, noting "[c]ourts have repeatedly held that government employers' hiring and supervisory decisions are discretionary functions."); see also LeRose v. United States, 285 F. App'x 93, 97 (4th Cir. 2008) ("The [BOP's] decisions regarding the hiring, supervision and retention [of BOP employee/alleged tortfeasor] are precisely the type of decisions that are protected under the discretionary function exception.). In LeRose, the plaintiff sought FTCA governmental liability as to actions by a BOP agent who had attempted to extort money. The court found plaintiff's claims for negligent hiring, supervision, and retention of that agent were barred by the discretionary-function exception.
To the extent Plaintiff's claims do not allege improper supervision, the undersigned finds that they are insufficient to state a claim for negligence under the FTCA. Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omission occurred," in this case, South Carolina. 28 U.S.C. § 1346(b). In order to prove negligence in South Carolina, Plaintiff must prove by a preponderance of the evidence that: 1) the defendant had a legal duty of care; 2) the defendant failed to discharge that duty; and 3) the defendant's breach proximately caused him injury. Goode v. St. Stephens United Methodist Church, 494 S.E.2d 827, 834 (S.C. 1997); Hubbard v. Taylor, 529 S.E.2d 549 (S.C. 2000). Plaintiff is required to show negligence with reasonable certainty, not through mere conjecture. Eickhoff v. Beard-Laney, 20 S.E.2d 153 (S.C. 1942); Crider v. Infinger Transportation Co., 148 S.E.2d 732 (S.C. 1966).
Here, an affirmative legal duty of care towards Plaintiff does exist by virtue of 18 U.S.C. § 4042, which provides that the BOP "shall . . . provide suitable quarters and provide for the safekeeping, care and subsistence of all persons charged with or convicted of offenses against the United States." After careful review of the evidence in this case and consideration of the standards required to succeed on a tort claim, the undersigned finds that Plaintiff has failed to set forth evidence of a viable federal tort claim sufficient to survive Defendants' motion for summary judgment.
5. FTCA Medical Claim
Defendants argue that Plaintiff's claim for medical malpractice pursuant to the FTCA must be dismissed because he failed to comply with the necessary requirements. The FTCA's waiver of sovereign immunity includes claims for medical malpractice. See Littlepaige v. U.S., 528 F. App'x 289, 291-292 (4th Cir. 2013). Whether any government employee was negligent is to be determined "in accordance with the law of the place where the act or omission occurred," here, the State of South Carolina. 28 U.S.C. § 1346(b)(1).
To pursue a medical malpractice claim in South Carolina, a plaintiff is first required to file "as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim . . . ," and a failure to file such an affidavit with the complaint requires dismissal of the case in state court. S.C. Code Ann. § 15-36-100(B); see also Allen v. U.S. Rotureau v. Chaplin, No. 2:13-2470-RMG, 2015 WL 1517510, at * 3 (D.S.C. April 1, 2015). Specifically, the statute provides:
Except as provided in Section 15-79-125, in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.S.C. Code Ann. § 15-36-100(B).
Although Plaintiff filed in federal court under the FTCA, and not in state court, the filing of such an affidavit is nevertheless a mandatory prerequisite to the filing of a malpractice claim against the United States under the FTCA in this District. See Chappie v. U.S., No. 13-1790, 2014 WL 3615384 at * 1, 5 (D.S.C. July 21, 2014); Millmine v. Harris, No. 10-1595, 2011 WL 317643 (D.S.C. Jan. 31, 2011) (holding that pre-suit notice and expert affidavit requirements in S.C. Code Ann. § 15-36-100 and § 15-79-125 are the substantive law in South Carolina); Oakman v. Lincare Inc., No. 1:13-cv-00428-JMC, 2013 WL 3549848 (D.S.C. Jul 10, 2013) (collecting cases). Plaintiff's failure to provide an expert affidavit as part of his complaint is fatal to his FTCA claim, and the undersigned recommends Defendants motion be granted as to Plaintiff's claim under the FTCA for medical malpractice. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Defendants' motion to dismiss, or in the alternative, for summary judgment [ECF No. 113] be granted and this matter be dismissed with prejudice.
IT IS SO RECOMMENDED. July 23, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).