Civil Action No. RDB-07-1017.
July 24, 2008
This action arises out of a three-count Complaint filed by Roger J. Chiang ("Plaintiff" or "Chiang") against Harley G. Lappin, Director, Federal Bureau of Prisons ("Lappin"), John M. Vanyur, Assistant Director, Correctional Programs Division, Federal Bureau of Prisons ("Vanyur"), Lisa J.W. Hollingsworth, Warden, Federal Correctional Institution, Cumberland, Maryland ("Hollingsworth"), Stephen Dewalt, Warden, Federal Medical Center, Lexington, Kentucky ("Dewalt"), H. Leon Bryan, Drug Abuse Program Coordinator, Federal Correctional Institution, Cumberland, Maryland ("Bryan"), Stephen Fingers, Camp Administrator, Federal Correctional Institution, Cumberland, Maryland ("Fingers"), Dr. Lisa Morshead, Psychologist, Federal Correctional Institution, Cumberland, Maryland ("Dr. Morshead"), and L. Yearby, Inmate Systems Manager, Federal Correctional Institution, Cumberland, Maryland ("Yearby"), (collectively, "Defendants") in their official and individual capacities.
Plaintiff sues Defendants under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that Defendants have violated his rights under the First, Sixth, and Eighth Amendments of the United States Constitution. Pending before this Court are Defendants' Motion to Dismiss or, Alternatively for Summary Judgment (Paper No. 9) and Plaintiff's Motion for Leave to File Surreply (Paper No. 18). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). Contrary to Plaintiff's assertions, Defendants have put forth no new legal arguments in their Reply Brief. Accordingly, for the reasons that follow, Plaintiff's Motion for Leave to File Surreply is DENIED, and Defendants' Motion to Dismiss or Alternatively for Summary Judgment is GRANTED.
The facts are viewed in a light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). On July 11, 2005, Roger J. Chiang was sentenced to twenty-four months of incarceration for mail fraud in violation of 18 U.S.C. § 1341. (Defs.' Mem. Supp. Summ. J. 2.) From July 21, 2005 to August 2, 2006, Plaintiff was incarcerated in the Satellite Federal Prison Camp at the Federal Correctional Institution ("FCI Cumberland") at Cumberland, Maryland. ( Id.) On January 26, 2007, Chiang was released from the custody of the Federal Bureau of Prisons ("BOP") and has commenced a two-year term of supervised release under the supervision of the United States Probation Office for the Central District of California. (Compl. ¶ 14.)
Prior to Chiang's incarceration, he was evaluated by a psychiatrist and was diagnosed as suffering from Chronic Posttraumatic Stress Disorder and Major Depressive Disorder. (Compl. Ex. 3.) In July 2005, however, during an initial Psychology Services Intake Screening, Dr. Lisa Morshead, the Chief Psychiatrist at FCI Cumberland, made arrangements for a psychiatric consultation but noted that based on her review, ongoing psychological services were likely unnecessary. (Morshead Declaration ¶ 6.) In August 2005, Plaintiff entered the Residential Drug Abuse Program ("RDAP") for his alcohol abuse. ( Id.)
On August 31, 2005, Plaintiff met with Dr. Morshead and Dr. Newman for a psychiatric consultation. ( Id. ¶¶ 7-9.) During this meeting, Dr. Morshead found that Chiang's Posttraumatic Stress Disorder diagnosis was not substantiated by his profile and he was not exhibiting symptoms consistent with depression. ( Id.) Moreover, Dr. Newman decided to discontinue Chiang's prescribed medicine dosage based on his request and Dr. Newman's own personal evaluation. ( Id.) Dr. Morshead and Chiang had one final meeting on September 8, 2005. ( Id. ¶ 10.) During this appointment, she noted that Plaintiff no longer exhibited depressive symptoms and in the event the symptoms do recur while the inmate is not taking medication, a diagnosis of depression may be assigned by Bryan, the head treatment coordinator for the RDAP. ( Id.)
On September 9, 2005, E! Entertainment Television wrote a letter to Defendant Warden Stephen Dewalt seeking to interview Chiang for E! True Hollywood Stories Investigates. (Finger Declaration, Attach. A.) Finger informed Chiang of the request, and he was presented with a News Interview Authorization as a preliminary step to determine if he was interested in such an interview. ( Id., Attach. B.) The subject matter of the show was to be the murders of Joyce Chiang, Plaintiff's sister, and two other woman who were all killed prior to Plaintiff's incarceration. ( Id., Attach. A.)
On September 14, 2005, Chiang executed the form indicating his refusal to participate in any such interview. ( Id. ¶ 6.) On September 30, 2005, however, Plaintiff executed another News Interview Authorization form indicating his desire to be interviewed. ( Id., Attach C.) Based on this second form, Finger then proceeded to determine whether the requesting organization qualified as a news media organization under the Bureau of Prisons ("BOP") regulations. ( Id. ¶ 8.) On October 11, 2005, Finger determined that the request did not come from a news media organization, and as a result, he denied Plaintiff's request. ( Id., Attach. D.) On October 26, 2005, a producer from E! Entertainment Television sent a letter to Finger seeking reconsideration of the interview denial. ( Id., Attach. E.) Subsequently, on November 14, 2005, after reconsideration, the request was again denied. ( Id., Attach. F.)
On November 4, 2005, over two months after his last appointment with Dr. Morshead and Dr. Newman, Chiang began sending inmate request forms requesting another psychological evaluation by Dr. Morshead. (Compl. Ex. 6.) From November 4, 2005, to April 20, 2006, he sent at least four requests to Dr. Morshead claiming to be suffering from depression, Posttraumatic Stress Disorder, loss of appetite, and alleging that Bryan had failed to properly diagnosis his disorder. In response to these requests, Dr. Morshead asserts that with 1,400 inmates it is her duty to "see that inmates have adequate and appropriate access to proper psychology services, not that [she] personally see each inmate . . . who requests to be seen by me." (Morshead Declaration ¶ 11.) Moreover, Dr. Morshead asserts that she spoke with Bryan about Chiang to ensure he did receive appropriate care and at no time did Bryan ever indicate that Chiang needed to be referred for more specialized treatment beyond the alcohol abuse program through the RDAP. ( Id. ¶ 12.) Plaintiff, however, presents two witness statements from individuals who saw him react to interactions with Defendant Fingers, Defendant Bryan, and his case manager, Stephen Joseph. Each witness certifies that Plaintiff was convulsing and shaking uncontrollably. (Pl.'s Mem. Opp. Summ. J. Ex. 11.)
Plaintiff presents seven pieces of special/legal mail, allegedly opened by Defendants Hollingsworth, Fingers, and Yearby, that were received between December 2005 through June 2006. (Compl. Ex. 8.) In addition, Plaintiff presents Inmate Request for Staff forms as evidence of his notification to Defendants that the prison had been opening his legal mail. ( Id.)
On March 7, 2006, Chiang received an incident report for fighting, and, on March 30, 2006, he appeared before the discipline hearing officer and was found to have committed the prohibited act of fighting. (Bryan Declaration, Attach. B.) As a result of the finding, on April 3, 2006, Chiang was expelled from the RDAP program for violating the program rules. ( Id., Attach. A.) On July 24, 2006, however, at the request of Defendant Bryan, Plaintiff was readmitted to the program. ( Id. ¶ 9.) Chiang was subsequently released from prison on January 26, 2007. (Compl. ¶ 14.)
On April 20, 2007, Plaintiff Roger J. Chiang filed this three-count action against Defendants Harley G. Lappin, John M. Vanyur, Lisa J. W. Hollingsworth, Stephen Dewalt, H. Leon Bryan, Stephen Fingers, Dr. Lisa Morshead, and L. Yearby in their official and individual capacities. In Count I, Plaintiff alleges that Defendants Fingers and Bryan violated his First Amendment rights, as set forth by the Supreme Court in Bivens, by conspiring to intimidate him from participating in an E! Entertainment Television interview through threats and coercion, and that Defendants Dewalt and Hollingsworth aided and abetted in the conspiracy. (Compl. ¶¶ 15, 21-23.) Further, Plaintiff alleges that Fingers and Bryan threatened and coerced him, in violation of BOP rules and regulations, into signing a document intended to cover up their violations of his First Amendment rights. ( Id. ¶ 17.) In Count II, Plaintiff alleges that Defendants Lappin, Vanyur, Hollingsworth, Fingers, Bryan, and Dr. Morshead violated his Eighth Amendment rights by denying adequate medical care for established pre-existing conditions. ( Id. ¶ 16.) In Count III, Plaintiff alleges that Defendants Hollingsworth, Fingers and Yearby violated his Sixth Amendment rights by the unauthorized opening of his legal mail in the attempt to prevent him access to counsel. ( Id. ¶¶ 16, 32-33.)
On September 17, 2007, Defendants filed this pending Motion to Dismiss, or Alternatively for Summary Judgment (Paper No. 9) contending that: (1) all of Plaintiff's claims against Defendants in their official capacities should be dismissed because such claims are construed against the United States, and sovereign immunity has not been waived; (2) Plaintiff has made no allegations that Defendants Lappin and Vanyur had any personal involvement in the alleged constitutional violation and thus Plaintiff's claims against these Defendants should be dismissed; (3) Plaintiff's First Amendment claim should be dismissed because Plaintiff cannot establish any First Amendment right to participate in a face-to-face interview while incarcerated; (4) Plaintiff's Eighth Amendment claim fails because he cannot establish that any Defendant acted with deliberate indifference to his medical condition; (5) Plaintiff's Sixth Amendment claim should be dismissed because he cannot demonstrate, as a matter of law, that the alleged opening of his mail rose to the level of a constitutional violation; and (6) even if Plaintiff can establish a violation of his constitutional rights, Defendants are entitled to qualified immunity. (Defs.' Mem. Supp. Summ. J. 9-10.) The Defendants have alternatively moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure by seeking to have this Court consider matters outside of the pleadings.
STANDARD OF REVIEW
"The purpose of Rule 12(b)(6) is to test the legal sufficiency of a complaint" and not to "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). The "Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). Rather, Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325-26 (4th Cir. 2001); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (stating that a complaint need only satisfy the "simplified pleading standard" of Rule 8(a)). Therefore, a Rule 12(b)(6) motion to dismiss "should only be granted if, after accepting all well-pleaded allegations in the plaintiff's complaint as true, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief." Migdal v. Rowe Price-Fleming Int'l Inc., 248 F.3d 321, 325 (4th Cir. 2001); see also Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005).
Where the parties present matters outside the pleadings and the Court considers those matters, the motion is treated as one for summary judgment. Gadsby by Gadsby v. Grasmick, 109 F.3d 940, 949 (4th Cir. 1997). Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., the Supreme Court explained that, in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005).
Plaintiff Roger J. Chiang filed this three-count Complaint against Defendants Harley G. Lappin, John M. Vanyur, Lisa J.W. Hollingsworth, Stephen Dewalt, H. Lean Bryan, Stephen Fingers, Dr. Lisa Morshead, and L. Yearby. In Count I, Plaintiff alleges that Defendants Fingers and Bryan in their official and individual capacities have violated his First Amendment rights and Defendants Dewalt and Hollingsworth have aided and abetted in the conspiracy. (Compl. ¶¶ 15, 22-23.) In Count II, Plaintiff alleges that Defendants Bryan, Fingers, Dr. Morshead and Hollingsworth have violated his Eighth Amendment rights by ignoring his disorder or in treating it dismissively. (Compl. ¶¶ 26-29.) In addition, Plaintiff alleges that Defendants Lappin and Vanyur have assisted in the denial of adequate medical care for pre-existing conditions. (Compl. ¶ 16.) In Count III, Plaintiff alleges that Defendants Hollingsworth, Fingers, and Yearby violated his Sixth Amendment rights by the unauthorized opening of inmate legal mail and the attempt to prevent inmate access to the counsel and the courts. (Compl. ¶¶ 16, 31-34.)
In this pending Motion to Dismiss, or Alternatively for Summary Judgment, Defendants have moved to dismiss: (1) all of Plaintiff's claims against Defendants in their official capacity, (2) Defendants Lappin and Vanyur, (3) Count I — Plaintiff's First Amendment claim, (4) Count II — Plaintiff's Eighth Amendment claim, and (5) Count III — Plaintiff's Sixth Amendment claim. Because "matters outside the pleadings [have been] presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d).
I. Claims under 42 U.S.C. § 1983
Plaintiff cites 42 U.S.C. § 1983 as basis for his suit. (Compl. ¶ 11.) Because Plaintiff has brought his suit against federal officials, however, it is well established that he must pursue his claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Hartman v. Moore, 547 U.S. 250, 255 n. 2 (2006) (noting that a Bivens action is the federal analog to suits brought against state officials under § 1983). To the extent that Plaintiff's Complaint seeks remedies under 42 U.S.C. § 1983 his Complaint is dismissed.
II. Claims under Bivens
A. Defendants in their Official Capacity
Plaintiff sues each Defendant in his/her official capacity and as individuals. Defendants argue that they should be dismissed in their official capacities because the United States Government has not waived its sovereign immunity. (Defs.' Mem. Supp. Summ. J. 10-11.)
When an individual is sued in his official capacity, the suit is essentially against the governmental entity. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Hafer v. Melo, 502 U.S. 21, 25 (1991) (noting that official-capacity suits "generally represent only another way of pleading an action against an entity of which an officer is an agent"). Absent a waiver, it is well established that sovereign immunity shields a governmental entity from suit. Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Moreover, "[w]hile Bivens actions allow for recovery of money damages against federal officials who violate the United States Constitution in their individual capacities, Bivens does not allow for recovery of money damages, or suits in general, against the government itself." Reinbold v. Evers, 187 F.3d 348, 355 n. 7 (4th Cir. 1999) (affirming dismissal of Bivens claims against the United States).
Plaintiff has put forth no authority indicating that the federal government has waived its sovereign immunity. Rather, he argues that an award of monetary damages against Defendants for violation of his constitutional rights would not interfere with the public administration, would not restrain or compel Government action, and may not expend the public treasury. (Pl.'s Mem. Opp. Summ. J. 7-8.) While it is true that a suit against Defendants in their individual capacities would not interfere with the federal government, by definition a suit against a government official in his or her official capacity is a suit against the government itself. See Kentucky v. Graham, 473 U.S. at 165-66. Therefore, if Plaintiff succeeds against Defendants in their official capacities, then the government would be responsible for paying the damages.
Accordingly, Defendants' Motion for Summary Judgment as to their official capacities is GRANTED, because the federal government has not waived its sovereign immunity.
B. Dismissal of Defendants Lappin and Vanyur
Defendants Harley G. Lappin, the Director of the Federal Bureau of Prisons, and John M. Vanyur, Assistant Director, Correction Programs Division of the Federal Bureau of Prisons, are named in Count II for violating Plaintiff's Eighth Amendment rights by denying him access to adequate medical care. (Compl. ¶ 16.) Defendants, however, argue that both Director Lappin and Assistant Director Vanyur should be dismissed because Plaintiff has neither asserted nor established that they were personally involved in any of the alleged violations. (Defs.' Mem. Supp. Summ. J. 11-12.) Moreover, Defendants argue that Lappin and Vanyur cannot be responsible by virtue of their positions because Bivens liability may not be premised on a theory of respondeat superior. ( Id.)
In a Bivens suit, there is no respondeat superior liability. Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001); Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35 (8th Cir. 1995). "Instead, liability is personal, based upon each defendant's own constitutional violations." Trulock, 275 F.3d at 402. (holding that plaintiff's Bivens suit failed because there was no allegation that any of the defendants were personally involved in the unconstitutional conduct). A bare allegation that someone in a supervisory authority has violated a plaintiff's constitutional rights without any personal contact with the plaintiff, is not sufficient to state a Bivens claim. Estate of Rosenberg by Rosenberg, 56 F.3d at 38 (reasoning that "[t]he general responsibility of a warden for supervising the operation of a prison is not sufficient to establish personal liability").
In the Complaint, Plaintiff lists Director Lappin and Assistant Director Vanyur as part of a list of six Defendants who have allegedly violated his Eighth Amendment rights. (Compl. ¶ 16.) In Count II of the Complaint, however, Plaintiff only makes specific allegations against four of the defendants, and neglects to make any allegations against either Lappin or Vanyur. (Compl. ¶¶ 26-29.) Even in Plaintiff's Opposition Memorandum, he makes no allegation of personal involvement by either Defendant. (Pl.'s Mem. Opp. Summ. J. 8.) Instead, Plaintiff declares that Defendants promulgation of BOP policies has materially impacted him. ( Id.)
Plaintiff has not presented any evidence of personal involvement of Lappin or Vanyur. Accordingly, Defendant's Motion for Summary Judgment as to the dismissal of Defendants Lappin and Vanyur is GRANTED.
C. Count I — First Amendment
Defendants argue that Plaintiff's First Amendment claim should be dismissed because he had no constitutional right to an in-person interview while he was incarcerated. (Defs.' Mem. Supp. Summ. J. 14-16.) Plaintiff responds by asserting that Defendants Fingers and Bryan simply did not like what they thought Chiang would say to E! Network about the Washington D.C. Metropolitan Police Department. (Pl.'s Mem. Opp. Summ. J. 9-10.)
In Beard v. Banks, 548 U.S. 521 (2006), the Supreme Court recognized that "imprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment" but "the Constitution sometimes permits greater restriction of such rights in a prison than it would elsewhere." Id. at 528 (citing Turner v. Safley, 482 U.S. 78, 93 (1987)); see also Vester v. Rogers, 795 F.2d 1179, 1182 (4th Cir. 1986) (noting that lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights). In the First Amendment context, a prison inmate retains those rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Pell v. Procunier, 417 U.S. 817, 822-23 (1974). In construing such claims, courts owe "substantial deference to the professional judgment of prison administrators." Beard v. Banks, 548 U.S. 521, 126 S. Ct. 2572, 2578 (2006).
As Defendants note, restricting a prisoner's access to face-to-face interviews with media outlets does not violate the First Amendment so long as there are alternative channels of communication open to inmates, and the restriction operates in a neutral fashion without regard to the content of the expression. Pell, 417 U.S. at 827-28; Johnson v. Stephan, 6 F.3d 691, 692 (10th Cir. 1993) ("Denying media access to conduct face-to-face interviews with inmates is constitutional as long as alternative means for communicating with the media are available."); Jerawitz v. Hanberry, 783 F.2d 1532, 1534 (11th Cir. 1986) (affirming application of prison media interview regulation which barred editorial-type television show producer from access to prisoner).
The BOP's policies, as set forth in 28 C.F.R. §§ 540.2 and 540.60-.65, govern the means by which news media representatives are granted access to conduct interviews with federal inmates. (Finger Declaration, Attach. E.) In particular, 28 C.F.R. § 540.2(b) defines representatives of the news media as those whose principal employment is to gather and report news for a general circulation newspaper, national circulation magazine, a national or international news service, or a radio or television program whose primary purpose is to report the news. ( Id.) In reviewing E! Network's request, Fingers determined that E! True Hollywood Stories Investigates did not meet the criteria as a news organization and, for this reason, the request for a media interview with Plaintiff was denied. ( Id.)
The Bureau of Prisons through Defendant Fingers entertained and denied a request for reconsideration on November 14, 2005. (Fingers Declaration, Attach. F.)
The FCI Cumberland's policy with regard to media interviews does not violate Plaintiff's First Amendment rights. Pursuant to Pell, a prisoner can be denied face-to-face interview access so long as there are alternative methods of communication. In this case, Defendant Fingers declared that if Plaintiff's request had fallen within the Bureau of Prisons regulations regarding news media interviews it would have been granted. (Fingers Declaration ¶ 10.) In addition, Chiang still had several alternative methods of communication available to him, including written correspondence, telephone calls, and even an off-camera visit by E!. ( Id. ¶ 11.) This is further supported by the fact that BOP gave permission to CBS's 48 Hours to interview inmate Jeffrey McDonald. (Pl.'s Mem. Opp. Summ. J. 10.) Thus, the evidence is clear that the only reason Defendants rejected Plaintiff's request was because E! True Hollywood investigates was not a valid news source under the policy.
Defendants' denial of E! Network's request for an in-person interview did not violate Plaintiff's First Amendment rights, because he did not have a First Amendment right to a face-to-face interview. Accordingly, Defendants' Motion for Summary Judgment as to Count I is GRANTED.
D. Count II — Eighth Amendment
Defendants argue that Chiang's Eighth Amendment claim should be dismissed because he failed to establish that they were deliberately indifferent to his serious medical condition. (Defs.' Mem. Supp. Summ. J. 18.) In response, Plaintiff contends that he has alleged acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. (Pl.'s Mem. Opp. Summ. J. 10.)
The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S Const., amend. VIII. The "cruel and unusual punishments" clause also applies to an inmate's medical care as long as the inmate can prove that the prison officials exhibited a deliberate indifference towards the inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). An inadvertent failure to provide adequate medical care, however, does not reach the threshold of a constitutional violation. Id.
To succeed on an Eighth Amendment cruel and unusual punishments claim, a prisoner must prove two elements: "(1) that objectively the deprivation of a basic human need was sufficiently serious, and (2) that subjectively the prison officials acted with a sufficiently culpable state of mind." See Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The objective component is satisfied by a serious medical condition, and the subjective component is satisfied by showing a deliberate indifference by prison officials. Id. "A deliberate indifference entails something more than mere negligence [but] is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Id. (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994). A prison official is not liable if he "knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent." Id. (quoting Farmer, 511 U.S. at 844); see Rich v. Bruce, 129 F.3d 336, 338 (4th Cir. 1997) (holding that prison official was not deliberately indifferent because he did not actually draw the inference that the prisoner was exposed to a specific risk of harm).
In the present case, Defendants do not dispute that depression and Posttraumatic Stress Disorder constitute serious medical/mental health conditions. (Defs.' Mem Supp. Summ. J. 18.) Defendants, however, do contend that Plaintiff cannot satisfy the subjective component of the Eighth Amendment test because they did not act with deliberate indifference towards Chiang's medical needs.
In a prison with over 1,400 inmates, Defendants Bryan and Dr. Morshead claim they did all they could to assist Plaintiff with his medical needs. (Morshead Declaration ¶¶ 11-12.) When Plaintiff first entered the prison, he met with Dr. Morshead for an intake screening. ( Id.) During this first meeting, Plaintiff indicated that he no longer felt he needed to be on medication. ( Id., Attach. A.) Thus, Dr. Morshead made arrangements for a psychiatric consultation with Dr. Newman on August 31, 2005. ( Id. ¶ 6.) During this psychiatric consultation, Plaintiff again reported that he was doing well and was not experiencing any symptoms of depression, and Dr. Newman approved Plaintiff's request for a trial period off the medicine. ( Id. ¶¶ 7-8.) On September 8, 2005, Plaintiff again met with Dr. Morshead, and during this meeting she noted that Chiang did not exhibit depressive symptoms. Dr. Morshead, however, still expressed confidence in the fact that he would be monitored by and have access to treatment staff daily. ( Id.) Following this last appointment, Plaintiff continued to meet regularly with Dr. Bryan through the Residential Drug Abuse Program. ( Id.)
While Plaintiff may have sent subsequent inmate request forms to Dr. Morshead starting in November 2005 stating that he wanted to meet personally with Dr. Morshead, it is not reasonable to expect the Chief Psychologist of a prison with 1,400 inmates to meet personally with every inmate. Dr. Morshead declares that she had to make a decision based on her professional judgment to deploy the psychological services in the most efficient manner. ( Id.) In doing this, Dr. Morshead determined that Chiang's placement in the RDAP would subject him to adequate psychological access from Defendant Bryan and the RDAP treatment staff were the best utilization of staff resources. ( Id.) In addition, she personally spoke to Bryan about Chiang to ensure he did receive appropriate care. ( Id.)
The preceding facts as to Plaintiff Chiang's medical care do not demonstrate a deliberate indifference. Defendants Dr. Morshead and Bryan did what they could with the resources they had. Society does not expect that prisoners will have unqualified access to health care, and, as such, Defendants are not required to provide a high level of health care. See Hudson v. McMillian, 503 U.S. 1, 9 (1992); Estelle, 429 U.S. at 105. During Chiang's initial screening with Dr. Morshead and subsequent visit with Dr. Newman, he even requested to be taken off the medication because he was not exhibiting symptoms of depression. In addition, Chiang's placement in RDAP allowed for an environment where he could be closely monitored.
Because Defendants provided medical care for Plaintiff Chiang to the best of their abilities given the resources available to them, Defendants did not act with the deliberate indifference necessary to reach a constitutional violation. Accordingly, Defendant's Motion for Summary Judgment as to Count II is GRANTED.
E. Count III — Sixth Amendment
Defendants finally argue that Count III should be dismissed because Plaintiff has not alleged an actual injury and, therefore, fails to establish a Sixth Amendment violation. (Defs.' Mem. Supp. Summ. J. 22-23.) In response, Plaintiff claims that Defendants' opening and examination of his properly marked legal mail prevented him from unfettered access to his counsel and the courts, and that Defendants' actions injured his efforts to obtain relief from the conditions they imposed on him. (Pl.'s Mem. Opp. Summ. J. 10-11.)
Plaintiff alleges that his special/legal mail was examined by prison officials, however, he offers no support to back up this accusation.
Prison inmates are entitled to a constitutionally protected right of access to the courts, legal materials, and legal correspondence. Bounds v. Smith, 430 U.S. 817, 821 (1977). This constitutionally protected right may be violated by the opening of special/legal mail outside the presence of the inmate. 28 C.F.R. § 540.2(4)(c). In order to establish that an inmate's Sixth Amendment rights have been violated by the opening of his incoming legal mail, however, an inmate must demonstrate that there was some actual harm or prejudice to his ability to communicate with the court or counsel. Talbert v. Jabe, 2007 U.S. Dist. LEXIS 82962, at *22 (W.D. Va. Nov. 8, 2007) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). In addition, the inmate must allege a "pattern or practice" of prison staff opening or interfering with inmates' legal mail. See Bryant v. Winston, 750 F. Supp. 733, 734 (E.D. Va. 1990) (holding that the negligent opening of a prisoner's legal mail, on limited occasions and not as part of any pattern or practice, is not actionable under § 1983).
Under 28 C.R.F. § 540.2(4)(c), Special/legal mail includes correspondence from the following: attorneys, Members of the U.S. Congress, and the U.S. Department of Justice (excluding the Bureau of Prisons but including U.S. Attorneys). (Yearby Declaration ¶ 4.) In addition, for incoming correspondence to be processed under the special/legal mail procedures, the sender must be adequately identified on the envelope, and the front of the envelope must be marked "Special Mail — Open only in the presence of the inmate." ( Id.)
Plaintiff alleges that three pieces of special/legal mail were opened by Bureau of Prison employees. (Compl. Ex. 8.) Plaintiff, however, does not allege any actual injury. He does not, for example, assert that any pending litigation or criminal appeal was hampered by the delay, nor does he assert that his ability to correspond with counsel or the courts has been hindered by Defendants' actions. See Lewis, 518 U.S. at 351. Plaintiff merely claims that he has suffered emotional trauma, psychological disorientation, extended and unwarranted incarceration, physical abuse, and monetary damages. (Compl. ¶ 34.) In addition, Plaintiff's efforts to obtain relief from the conditions imposed on him by the Defendants has not been hindered, as evidenced by the pending case before this court. Plaintiff's assertions are merely conclusory and lack any facts or details to support his claim.
Plaintiff actually provides copies of seven pieces of mail which were allegedly labeled as special/legal mail and were opened out of his presence. (Compl. Ex. 8.) One of the copies is not actually labeled correctly according to BOP standards. ( Id.) In addition, Defendants provide evidence that three of the pieces of mail were actually written into the special/legal mail log, and therefore, were not opened outside of Chiang's presence. (Yearby Declaration, Attach A.)
Moreover, Plaintiff fails to support his allegation that Defendants continuously and deliberately conspired to open his incoming communications. (Compl. ¶ 32.) More than half of the evidence Plaintiff puts forth as wrongfully opened special/legal mail, the Defendants rebut by providing evidence that the mail was either incorrectly labeled or was in fact treated correctly. (Yearby Declaration ¶¶ 6-7.) When only two staff members are assigned to process approximately 1,000 pieces of correspondence a day for approximately 1,400 inmates, there are bound to be mis-classified mail. ( Id.) Plaintiff Chiang, therefore, has failed to show that three pieces of improperly handled special/legal mail equate a pattern or practice of interfering with his mail.
For these reasons, Plaintiff has both failed to demonstrate any actual injury and failed to sufficiently show a pattern or practice of interference. Accordingly, Defendants' Motion for Summary Judgment for Count III is GRANTED.
In Plaintiff's Opposition Memorandum, he asserts that his First Amendment rights have been violated because Defendants have deprived him of access to the courts. (Pl.'s Mem. Opp. Summ. J. 11-12.) Plaintiff, however, has failed to properly assert a First Amendment violation in such respects in his Complaint, and it is axiomatic that a party cannot raise new claims outside the complaint. Even assuming arguendo that Plaintiff has properly raised the First Amendment claim, it still must fail. Under the First Amendment, an inmate must still demonstrate that there was some actual harm or prejudice to his ability to communicate with the court or counsel. See Lewis v. Casey, 518 U.S. at 351. For the same reasons discussed under the Sixth Amendment claim, Plaintiff has failed to properly assert such claim.
CONCLUSIONFor the foregoing reasons, Plaintiff's Motion for Leave to File Surreply is DENIED, and Defendants' Motion to Dismiss or Alternatively for Summary Judgment is GRANTED. A separate Order and Judgment follows.
ORDER AND JUDGMENTFor the reasons stated in the foregoing Memorandum Opinion, it is this 24th day of July, 2008, ORDERED and ADJUDGED, that:
1. Defendants' Motion to Dismiss, or Alternatively for Summary Judgment (Paper No. 9) is GRANTED;
2. Plaintiff's Motion for Leave to File Surreply (Paper No. 18) is DENIED;
3. Judgment BE, and it hereby IS, ENTERED in favor of the Defendants and against the Plaintiff;
4. The Clerk of the Court transmit copies of this Order and accompanying Memorandum Opinion to counsel for the parties; and
5. The Clerk of the Court close this case.