Opinion
C. A. 3:19-3486-MGL-TER
09-30-2021
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 filed an amended complaint on February 24, 2021, and a second amended complaint on March 16, 2021. 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. This matter is currently before the court on Defendant Loomis's motion to dismiss filed March 30, 2021. (ECF No. 106). As the Plaintiff is proceeding pro se, the court issued an order on or about March 31, 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 April 22, 2021. (ECF No. 122). Defendant Loomis filed a reply on April 29, 2021. (ECF No. 126). Plaintiff filed a sur-reply on May 14, 2021. (ECF No. 128).
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). A report and recommendation was entered on September 23, 2021, recommending that Defendant Griffin's motion to dismiss be granted. (ECF Mo. 142). The remaining named defendants are Josh Loomis, Unknown Federal Agents, and Unknown United States Marshals.
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.
STANDARD FOR MOTION TO DISMISS
This matter is before the court on Defendant Loomis'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 found. 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 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
Medical Indifference
Defendant Loomis argues that the Plaintiff's claims against him for inadequate medical care should be dismissed because Plaintiff has not alleged that Defendant Loomis was involved in that care. Defendant Loomis argues that Plaintiff does not allege that he rendered medical care and Plaintiff has not alleged Defendant Loomis committed any acts with respect to Plaintiff's medical care at all. Defendant Loomis asserts that he is an FBI agent not a healthcare profession and he did not work for the Lexington County Detention Center (LCDC).
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 are no allegations that Defendant Loomis 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 Loomis's motion to dismiss be granted as to the medical indifference claim due to no personal involvement alleged.
Search and Seizure
Defendant Loomis argues that Plaintiff's claim that the search and seizure was in violation of the Fourth Amendment fails as it was conducted pursuant to a valid search warrant executed by a United States Magistrate Judge citing to the federal criminal case of 3:17-cr-1156-MCRI, ECF No. 2. Defendant Loomis asserts that the property searched was the property identified in the search warrant application and that is listed as Plaintiff's address on his records with the South Carolina Department of Motor Vehicles. Therefore, Loomis argues that the search and seizure that Plaintiff alleges violated his Fourth Amendment rights was reasonable and cannot support a Bivens claim. Defendant also argues that Plaintiff's claim that he was subjected to an illegal search and seizure in violation of the Fourth Amendment is barred by Plaintiff's guilty plea to the charges arising from that search and seizure.
See C. A. No.: 3:17-cr-1202-MGL, ECF No. 66 and 79.
To the extent Plaintiff seeks damages for alleged constitutional violations stemming from Plaintiff's federal criminal prosecution and/or sentence, his action is barred by the United States Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477, 478, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which held:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.Heck v. Humphrey, 512 U.S. at 487; see also Poston v. Shappert, No. 06-8052, 2007 WL 1031695 (4th Cir. March 30, 2007) (claims brought pursuant to § 1983 and Bivens challenging underlying criminal conviction are barred by Heck). Thus, Heck bars a prisoner's claim for damages where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been successfully challenged. In the instant case, Plaintiff pleaded guilty to a felon in possession of a firearm charge that resulted from the December 6, 2017, execution of the search warrant. A favorable determination on the merits of Plaintiff's claim would require a finding that the search resulting in Plaintiff's federal sentence was invalid and would imply the invalidity of the punishment imposed. In this case, Plaintiff pleaded guilty to the felon in possession of a firearm charge that resulted from the December 6, 2017, execution of the search warrant. As Plaintiff has not demonstrated that his federal conviction has been successfully challenged, any damages claim he may be attempting to pursue is barred by Heck.
Bivens
Defendant Loomis argues that Plaintiff's Bivens claim against him fails to the extent Plaintiff attempts to sue Defendant Loomis for actions he took in his official capacity as an employee of the FBI as a Bivens action cannot lie against federal agents acting in their official capacities.
Plaintiff's Bivens action cannot lie against the United States nor against the individual Defendant in his official capacities. See United States v. Mitchell, 463 U.S. 206, 212 (1983) (the United States cannot be sued without its express consent.); Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983); Keene Corp. v. United States, 700 F.2d 836, 845 n. 13 (2d Cir.1983) (Bivens does not allow for recovery of money damages, or suits in general, against the government itself.). Thus, to the extent Defendant Loomis is being sued under Bivens in his official capacity, the claims are barred by the doctrine of sovereign immunity.
Defendant Loomis argues that Plaintiff's Bivens claim against him is precluded by the judgment bar provision of the Federal Tort Claims Act (FTCA). Defendant argues that in the first amended complaint, Plaintiff named the United States of America as a Defendant. Counsel for the United States filed a motion to dismiss arguing that a Bivens claim cannot lie against the United States and any claim brought against the Untied States under the Federal Tort Claims Act is barred by Plaintiff's failure to exhaust his administrative remedies. Defendant Loomis argues that Plaintiff did not name the United States as a Defendant in his second amended complaint so that he has voluntarily dismissed any claims against the United States “with prejudice” and is a final judgment on the merits with respect to that claim.
The voluntary dismissal by Plaintiff here by way of an amended complaint does not operate as a “with prejudice” dismissal; pursuant to Fed.R. Civ. P. 41, the dismissal would be without prejudice. Thus, the dismissal of the United States here does not operate as a final judgment on the merits for claim preclusion purposes.
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 second amended complaint. However, Plaintiff does not allege that he has complied with the 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 is not a proper defendant. 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.”).
In a prior order, which ordered Plaintiff to file an amended complaint, Plaintiff was instructed regrading the operation of an FTCA claim. (ECF No. 14).
EXCESSIVE FORCE
In the second amended complaint, Plaintiff alleges that “[t]he initial injury was caused by Josh Loomis and several other agents, due to an unnecessarily injuring of a naked (posed no threat or resistance) Alfred Domenick Wright. . . Loomis, as the head agent assured Wright that his injuries would be treated at Lex. Co. Det. Ctr.” (ECF No. 98 at 5 of 15). Additionally, Plaintiff alleges again that “Wright was hurt (while restraint and not resisting or threatening) by Loomis and several unknown Federal Agents when Wright was pulled by several agents off his porch and he hit the ground. This injured Wright's right ankle, right wrist, lower back and right shoulder. There is body camera footage available, as well Wright's (at the time) girlfriend, Ebony Sada Morris was there to wittness[sic].” (Id. at 8 of 15). Plaintiff asserts that Defendant Loomis used excessive force to remove him from the porch while naked.
Defendant Loomis argues that the Bivens claim against him alleging that he exercised excessive force during Plaintiff's arrest should be dismissed because Plaintiff has conceded Defendant Loomis did not take part in the alleged show of excessive force in his first amended complaint. (ECF No. 106 at 12 of 18). Specifically, Defendant Loomis argues that Plaintiff alleges he was injured during the execution of a search warrant at his residence. Defendant Loomis argues that in the first amended complaint, “Plaintiff stated that he was ordered to open his front door by an unknown federal agent, even though informed the unknown agent that [he] was naked. . . [he] ‘allowed himself to be restrained in handcuffs [and] was then pulled off his porch by multiple unknown federal agents.'” (Id. at 13 of 18). Defendant Loomis, therefore, argues the facts alleged in the second amended complaint are insufficient to state a claim against Defendant Loomis. Second, Defendant argues that “Plaintiff previously conceded that the event causing his injuries was ‘witnessed by [Defendant Loomis]' and that he was ‘pulled off his porch by multiple unknown federal agents.'” Id. Defendant Loomis argues that Plaintiff, in the second amended complaint, “alters the facts to allege that his ‘initial injury was caused by Josh Loomis and several other agents'” Defendant Loomis argues even if allowed to alter the facts, Plaintiff has not sufficiently alleged that he violated his constitutional rights as he only vaguely alleges that he was injured by Defendant Loomis and several other agents but does not allege any specific conduct by Defendant Loomis. Thus, Defendant Loomis argues that Plaintiff's Bivens claim against Defendant Loomis alleging excessive force during the December 6, 2017, search fails as a matter of law.
When reviewing an excessive force claim, the Court should consider 1) the need for the application of force, 2) the relationship between the need and the amount of force that was used, 3) the threat to the staff and inmates as reasonably perceived by the prison officials on the basis of the facts known to them, 4) the efforts made to temper the severity of a forceful response, and 5) the extent of the injuries suffered by the prisoner. Whitley v. Albers, 475 U.S. 312, 321 (1986); Hill v. Crum, 727 F.3d 312, 327 (4th Cir. 2013); see also Hudson v. McMillian, 503 U.S. 1, 7 (1992) (the core judicial inquiry is whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm); Mann v. Failey, 578 Fed.Appx. 267, 273 (4th Cir. July 17, 2014) (In order to prevail on an Eighth Amendment excessive force claim, Plaintiff must demonstrate that the “deprivation suffered or injury inflicted . . . was sufficiently serious, ” and that the “prison official acted with a sufficiently culpable state of mind”), quoting Williams v. Benjamin, 77 F.3 756, 761 (4th Cir. 1996).
As discussed previously, in a motion to dismiss pursuant to Rule 12(b)(6) of the Fed.R.Civ.P., “ . . . a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Here, Plaintiff has alleged that he was in restraints and was not resisting when Defendant Loomis and other agents pulled him off of his porch causing injuries and that there is body camera footage of the incident and a witness. Therefore, Plaintiff makes sufficient factual allegations as to excessive force to survive a motion to dismiss. Accordingly, it is recommended that the motion to dismiss be denied based on the allegations of excessive force.
Defendant Loomis argues that he is entitled to qualified immunity with respect to the excessive force claim. However, based on the pleadings, the issue of qualified immunity should appropriately be addressed under Rule 56, Fed.R.Civ.P.
CONCLUSION
Based on the above reasoning, it is recommended that the motion to dismiss filed by Defendant Loomis be granted in part and denied in part. It is recommended that the motion to dismiss be granted as to any claims of medical indifference, claims of a Fourth Amendment violation with regard to search and seizure, and the Bivens claim against Defendant Loomis in his official capacity. It is recommended that Defendant Loomis's motion to dismiss be denied with regard to the claim of excessive force in his individual capacity.
Further, if this Report is adopted by the district judge, it is recommended that Defendant Loomis be given twenty days from the date of the order to file an answer to the second amended complaint or otherwise plead and that a scheduling order be entered once an answer is filed.
The parties' attention is directed to the important notice on the next page.