Opinion
C. A. 3:19-3486-MGL-TER
09-23-2021
ALFRED DOMENICK WRIGHT, Plaintiff, v. JOSH LOOMIS, UNKNOWN FEDERAL AGENTS, THOMAS GRIFFIN, JR., LEXINGTON COUNTY DETENTION CENTER, CORRECT CARE SOLUTIONS, UNKNOWN UNITED STATES MARSHALS, Defendants.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
This is a civil action filed pro se by Alfred D. Wright (“Plaintiff”/ “Wright”) on December 16, 2019. Plaintiff is currently housed at the USP Lewisburg in Lewisburg, Pennsylvania. Plaintiff was a federal prisoner in South Carolina at the time of the alleged claims. Plaintiff filed a second amended complaint on March 15, 2021. This matter is currently before the court on Defendant Griffin's motion to dismiss filed May 28, 2021. (ECF No. 129). As the Plaintiff is proceeding pro se, the court issued an order on or about June 1, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the motion to dismiss procedure and the possible consequences if he failed to respond adequately. Plaintiff filed a response in opposition on July 13, 2021. (ECF No. 137). Defendant Griffin filed a reply on July 20, 2021. (ECF No. 139).
A report and recommendation was entered on March 23, 2021, recommending that Defendants Lexington County Detention Center and Correct Care Solutions be summarily dismissed. (ECF No. 102). This Report is pending before the District Judge. Defendant Loomis filed a motion to dismiss (ECF No. 106) which will be addressed in a separate report and recommendation.
All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d), DSC. Because this is a dispositive motion, the report and recommendation is entered for review by the District Judge.
DISCUSSION
Standard for Motion to Dismiss
This matter is before the court on Defendant Griffin's motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Under Rule 12(b)(6) of the Fed.R.Civ.P., “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Lokhova v. Halper, 995 F.3d 134, 141 (4th Cir. 2021) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.' ” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiffs' burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
ALLEGATIONS
In the second amended complaint filed March 16, 2021, Plaintiff alleges that on December 6, 2017, he was pulled off of his porch while naked by agents causing him to incur injuries. Plaintiff asserts that “the initial injury was caused by Josh Loomis and several other agents, due to an unnecessarily injuring of a naked (posed no threat or resistence) Alfred Domenick Wright.” (ECF No. 98 at 5 of 15). Plaintiff alleges that the violation was cruel and unusual punishment and stemmed from an illegal search. Plaintiff asserts that Defendant Loomis “assured Wright that his injuries would be treated at Lex. Co. Det. Ctr. However, despite several written and verbal requests to Lex.Co. Det. Ctr. Staff and there (sic) Medical staff from CCS, Wright was not seen by medical for nearly a month (allowing bones and injuries to set improperly and permently(sic) ... Thomas Griffin, Jr. and unknown U.S. Marshals are also under these same violations, because CCS staff claimed to be under (follow orders) of the U.S. Marshals.” Id. Plaintiff alleges injuries to his right ankle with unusual bone growths from a break that healed improperly, a slipped disk in lower back, right shoulder pain, fracture of his right wrist which healed improperly, and has lack of normal mobility. Plaintiff requests damages in the amount of $250,000.00 “[d]ue to crippling and hindering injuries, which will prevent proper work load in my work field, with also including the years of unnecessary pain and suffering.” (ECF No. 98 at 7 of 15).
ANALYSIS
Defendant Griffin argues that the claims against him fail to meet the pleading requirements of Rule 8(a) and should be dismissed pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. Specifically, Griffin argues that Plaintiff has failed to allege facts demonstrating personal involvement by Griffin. Griffin asserts that Plaintiff does not articulate any acts committed by him that violated Plaintiff's constitutional rights and only vaguely alleges that the detention center staff informed him that they were under the direction of the United States Marshals. Defendant argues that it appears Plaintiff makes no specific allegations against Griffin and appears to name him as a defendant simply because Griffin is the U.S. Marshal for the District of South Carolina. Further, Griffin argues that to the extent Plaintiff bases his claim against Griffin on his position as a supervisor over the Deputy United States Marshals serving in the District of South Carolina, the claim fails.
In his response in opposition to Griffin's motion to dismiss, Plaintiff argues that he has not been able to have an attorney appointed to assist him, that repeated transfers including repeated Covid-19 quarantines have hindered him from necessary legal work causing him to create errors in his last amended complaint “(which I never requested to amend for a third time).” (ECF No. 137). Additionally, Plaintiff argues that he has “informed the court that I needed copies of court documents and Body Camera footage from the incident . . ., and I was ignored. I informed the court that due to S.H.U., Transfers and FBOP Covid-19 quarantine procedures I have not had my legal documents pertaining this case since late October 2020.” (ECF No. 137 at 1 of 4). Plaintiff asserts that he has been without his legal work in his personal property and he had to amend his complaint by memory when he alleges he did not request to amend his complaint. Plaintiff states that “I am a documented mental health inmate, without the tools, knowledge and training of an actual attorney, how can I possibly give good arguments, or rebute attorney Jordans arguments, by memory alone...” Id. Plaintiff alleges that he has informed the court several times that he did not have access to his legal property and has “already erred by filing the 3rd amended complaint . . . by forgetting to put the United States of America as a defendant (as I did in the 2nd amended complaint) and several names and dates. I have repeatedly expressed my concerns, which have also been ignored.” (Id. at 2 of 4). Further, in response, Plaintiff states that he was attempting to respond to the motion to dismiss without legal material but that there is a causal connection and Defendant Griffin was personally involved in his injuries because “my family was told to (by Lex. co. det. ctr. Staff) contact U.S. Marshals for medical assistance pertaining to my injuries, it was Thomas Griffin Jr. that my family was ‘personally' told to contact involving my medical; meaning he was in charge of approving any of my medical needs that need to be done at the time, which was not adequate, and shows a ‘causal connection' and making Mr. Griffith Jr. Personally involved' in my inadequate medical attention.” (Id . at 3 of 4). Plaintiff also states that supervising officials may be held liable in certain circumstances. Plaintiff argues that he attempted to exhaust his administrative remedies but that the LCDC would not allow him to grieve medical issues so he contacted multiple avenues of authorities.
While Plaintiff states that he has repeatedly informed the court that he needed copies, the docket sheet reveals that on February 16, 2021, Plaintiff filed a motion for copies at no expense in which he requested seven different documents. This motion was granted to the extent the order stated that “The Clerk is directed to provide Plaintiff a printout of the docket listings, Plaintiff's first Amended Complaint (ECF No. 19), the court's report and recommendation (ECF No. 35), Plaintiff's objections to such (ECF Nos. 38, 56), Defendants' motion to dismiss (ECF No. 60), Plaintiff's response to Motion (ECF No. 64, 64- 1, 68), and Reply by Defendants(ECF No. 65). To the extent Plaintiff requests documents that are evidence, Plaintiff was previously instructed on September 25, 2020, that the court does not enter the discovery process and Plaintiff may seek discovery from the Defendants in accordance with the Federal Rules of Civil Procedure.”). See ECF Nos. 86, 88 and 89. Plaintiff filed other letters in this case requesting documents from his criminal case 3:17-1202 to assist in naming unknown defendants and that he had invoked his Freedom of Information Act rights. Plaintiff states in one of his letters that he had asked his criminal attorney about filing a claim so that he could request criminal documents from his criminal attorney. (ECF No. 63). Plaintiff argues that he did not receive copies as requested resulting in him making an error in not naming the United States as a Defendant in his last amended complaint. However, Plaintiff does not allege that he has attempted to file the certain administrative exhaustion requirements under the FTCA. Therefore, even if Plaintiff had named the United States, there is no indication that he exhausted his administrative remedies under the FTCA so that the United States would be subject to dismissal and a Bivens claim cannot lie against the United States. The United States Government and the Federal Bureau of Prisons are not proper defendants. See Hunter v. United States Gov't, 2021 WL 1560444, at *3 (D.S.C. Apr. 21, 2021) citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001) (“If a federal prisoner in a [Federal Bureau of Prisons (“BOP”)] facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer....The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP.”); Reinbold v. Evers, 187 F.3d 348, 355 n.7 (4th Cir. 1999) (“[T]he United States has not waived sovereign immunity in suits claiming constitutional torts.”).
Plaintiff has alleged no personal involvement or causal connection of Defendant Griffin in any constitutional right violations. In his response in opposition to the motion to dismiss he states that there is a causal connection alleging his family was told by the LCDC to contact the U.S. Marshals Service for medical assistance and that Thomas Griffin, Jr. was to be contacted “meaning he was in charge of approving many of my medical needs that need to be done at that time.” (Id. at 3 of 4).
In order to assert a plausible § 1983 claim against any particular state actor, a “causal connection” must exist between the conduct alleged by the plaintiff and the particular defendant named in the suit. See Kentucky v. Graham, 473 U.S.159, 166 (1985); Rizzo v. Good, 423 U.S. 362, 371-72 (1976) (a § 1983 plaintiff must show that he suffered a specific injury resulting from a specific defendant's specific conduct and must show an affirmative link between the injury and that conduct); Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (for an individual to be liable under § 1983, the Plaintiff must show that the defendant named acted personally in the deprivation of the plaintiff's rights). Plaintiff here must demonstrate that the official personally caused or played a role in causing the deprivation of a federal right. See Graham, 473 U.S. at 166 and Harris v. City of Va. Beach, 11 Fed. App'x 212, 215 (4th Cir.2001) (affirming dismissal of the plaintiff's claim against five defendants when the plaintiff did not allege any of the defendants were personally involved in the alleged deprivation of his civil rights). There is no allegation or evidence that Griffin was personally involved in, deliberately indifferent to, or tacitly authorized the alleged constitutional violation of Plaintiff's rights. See Wood v. Moss, 572 U.S. 744, 763-64 (2014) (quoting Iqbal, 556 U.S. at 683) (“[I]ndividual government officials ‘cannot be held liable' in a Bivens suit ‘unless they themselves acted [unconstitutionally].”); Baker v. United States, 645 Fed.Appx. 266, 269 (4th Cir. 2016) (citing Wilkins v. Montgomery, 751 F.3d 214, 226-27 (4th Cir. 2014)) (“In order to succeed on a supervisory liability claim under Bivens, a plaintiff may not rely on respondeat superior, but must show ‘that the supervisor had actual or constructive knowledge that her subordinate was engaged in conduct that posed a pervasive and unreasonable risk of constitutional injury to citizens like the plaintiff,' and that the supervisor's response showed ‘deliberate indifference to or tacit authorization of the alleged offensive practices,' and caused the plaintiff's injury.”). Accordingly, it is recommended that Defendant Griffin's motion to dismiss be granted as to no personal involvement alleged.
Additionally, Defendant Griffin argues that he cannot be held liable under a theory of supervisory liability/respondeat superior. In response, Plaintiff argues that supervisory officials may be held liable in certain circumstances. If Plaintiff has named Defendant Griffin due to his supervisory position, the claim fails. The doctrine of vicarious liability is inapplicable to a Bivens action, such that an employer or supervisor is not liable for the acts of his employees, absent an official policy or custom which results in illegal action. Monell v. Dep't of Social Services of City of New York, 436 U.S. at 694. However, if the higher official is aware of a pervasive, unreasonable risk of harm from a specified source and fails to take corrective action as a result of deliberate indifference or tacit authorization, then the higher official may be held liable for the acts of their subordinates. See Shaw v. Stroud, 13 F.3d at 799. As discussed above, Plaintiff has failed to plead facts sufficient to establish that Defendant Griffin is liable under a theory of supervisory liability. Plaintiff has only alleged that his family was told by the LCDC to contact the U.S. Marshals service and Defendant Griffin who was in charge of his medical care. Plaintiff has not alleged facts indicating that Defendant Griffin had any personal knowledge of the incidents and conditions alleged nor that his conduct created an unreasonable risk to Plaintiff. Accordingly, it is recommended that Defendant Griffin's motion to dismiss be granted.
Defendant Griffin argues that Plaintiff's Bivens claim fails to the extent Plaintiff attempts to sue Defendant Griffin for action he took in his official capacity as an employee of the United States Marshal Service. Griffin argues that a plaintiff may not bring a Bivens claim against the United States so that the claim against him in his official capacity should be dismissed. Plaintiff's Bivens claims for monetary damages against Defendant Griffin in his official capacity fail. A Bivens action is a judicially-created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Bivens, 403 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 that Defendant Griffin's motion to dismiss the Bivens claims be granted. In light of this recommendation, the Court need not address the Defendants' argument regarding qualified immunity.
CONCLUSION
Based on the above reasoning, it is recommended that Defendant Griffin's motion to dismiss (ECF No. 129) be granted.
The parties' attention is directed to the important notice on the next page.