C/A No. 8:20-cv-0005-HMH-JDA
REPORT AND RECOMMENDATION
Christopher James, ("Plaintiff"), proceeding pro se and in forma pauperis, brings this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging violations of his constitutional rights (a "Bivens claim"). Plaintiff is presently a detainee at the Sheriff Al Cannon Detention Center in North Charleston, South Carolina. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d), D.S.C., the undersigned Magistrate Judge is authorized to review the Complaint for relief and submit findings and recommendations to the District Court. Having reviewed the pleadings filed in this case in accordance with applicable law, the undersigned finds that this action is subject to summary dismissal.
Plaintiff commenced this action by filing a Complaint, which was entered on this Court's docket on January 2, 2020. [Doc. 1.] By Order dated January 9, 2020, the undersigned notified Plaintiff that this action was subject to summary dismissal because the Complaint failed to state a claim for relief. [Doc. 7.] The Court, however, noted that Plaintiff may be able to cure the deficiencies of his Complaint and granted Plaintiff twenty-one days to amend his Complaint. [Id. at 7.] Plaintiff was specifically warned as follows:
If Plaintiff fails to file an amended complaint or fails to cure the deficiencies identified [in the Court's Order], the undersigned will recommend to the District Court that the claims be dismissed without leave for further amendment.[Id.] Plaintiff filed an Amended Complaint, which was entered on the docket on January 22, 2019 [Doc. 10], along with an affidavit of facts [Doc. 15] and supporting documents [Doc. 15-1]. As explained below, however, Plaintiff's Amended Complaint fails to cure the deficiencies of his original Complaint. Because Plaintiff's Amended Complaint is nearly identical to the original Complaint, and out of an abundance of caution, the Court will consider both documents together, along with Plaintiff's other filings, as the pleadings in this matter.
The undersigned notes that, ordinarily, an amended complaint replaces all prior complaints and should be complete in itself. See Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001) ("As a general rule, an amended pleading ordinarily supersedes the original and renders it of no legal effect.") (citation and internal quotation marks omitted); see also 6 Charles Alan Wright, et al., Federal Practice and Procedure § 1476 (3d ed. 2017) ("A pleading that has been amended under Rule 15(a) supersedes the pleading it modifies and remains in effect throughout the action unless it subsequently is modified. Once an amended pleading is interposed, the original pleading no longer performs any function in the case . . . ."). The Court finds it prudent in this case, however, to construe both documents together. --------
Plaintiff makes the following allegations in his original Complaint. [Doc. 1.] Plaintiff alleges that Defendants had a duty to protect him, but failed to do so because they wrecked their vehicle while transporting Plaintiff, causing him to be injured. [Id. at 4.] Specifically, Plaintiff alleges that he was being transported by the United States Marshals Service from California on November 28, 2019, when the transport van was involved in a wreck in Charlotte, North Carolina. [Id. at 4-5.] Plaintiff alleges that the van had no seat belts. [Id. at 6.] Plaintiff alleges that he sustained injuries to his neck, back, and legs; that he has to walk with a cane; and that it hurts to walk, stand, and sit. [Id.] For his relief, Plaintiff seeks money damages in the amount of $150,000 from each officer that was driving the van and to have his hospital and medical bills be paid in full. [Id.]
Plaintiff contends that Defendants' conduct constitutes deliberate indifference in violation of his Eighth and Fourteenth Amendment rights. [Id. at 7.] Plaintiff appears to contend that the officers failed to protect him from getting hurt. [Id. at 8.] Plaintiff attached to his Complaint copies of medical bills. [Doc. 1-2.] Plaintiff also attached to his Complaint an "Affidavit of Facts" in which he makes nearly identical allegations to those in his Complaint. [Doc. 1-1.] Further, Plaintiff alleges that Defendants "ha[d] a duty to protect a special class of person" but that they were grossly negligent in failing to do so. [Id. at 1.] Plaintiff further alleges that the Eighth Amendment protects inmates "from physical harm at the hands of any one, resulting from the deliberate or callous indifference of prison officials to specific known [risks] of such harm." [Id.]
Plaintiff makes nearly identical allegations in his Amended Complaint. [Doc. 10.] However, he adds the following additional allegations. Defendants failed to stop at crossroads, did not provide seat belts, failed to follow protocol, drove too long without a break, and fell asleep behind the wheel. [Id. at 3.] Although Plaintiff does not provide any specific allegations to support these assertions, he claims that these actions violated his "saf[e]ty and rights under the federal const[itution]." [Id. at 4.] Plaintiff alleges the same injuries and same claims for relief in his Amended Complaint as he did in his original Complaint. [Id. at 5.] The most notable difference in the Amended Complaint from the original Complaint is Plaintiff's allegation that Defendants did not follow protocol and fell asleep behind the wheel because they had been traveling for four days without pulling over and resting. [Id.] Plaintiff's affidavit of facts attached to his Amended Complaint makes the same allegations as those in his Amended Complaint and original affidavit of facts. [Doc. 15.]
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action "fails to state a claim on which relief may be granted," is "frivolous or malicious," or "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Further, Plaintiff is a prisoner under the definition in 28 U.S.C. § 1915A(c), and "seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). Thus, this Court is charged with screening Plaintiff's lawsuit to identify cognizable claims or to dismiss the Complaint if (1) it is frivolous, malicious, or fails to state a claim upon which relief may be granted, or (2) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A.
Because Plaintiff is a pro se litigant, his pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). However, even under this less stringent standard, Plaintiff's Complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which Plaintiff could prevail, it should do so, but a district court may not rewrite a petition to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), or construct Plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
Although the Court must liberally construe the pro se Complaint and Plaintiff is not required to plead facts sufficient to prove his case as an evidentiary matter in the Complaint, the Complaint "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (explaining that a plaintiff may proceed into the litigation process only when his complaint is justified by both law and fact). "A claim has 'facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Owens v. Baltimore City State's Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
As noted, Plaintiff appears to assert a Bivens claim under the Eighth and Fourteenth Amendments against Defendants for failing to protect him from harm. In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must allege two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 ("In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.").
The Eighth Amendment's prohibition on "cruel and unusual punishments" imposes certain basic duties on prison officials. Farmer, 511 U.S. at 832. These include maintaining humane conditions of confinement, including the provision of adequate medical care and "reasonable measures to guarantee the safety of the inmates." Id. (internal quotation marks omitted). And, while corrections officers have "a duty to protect prisoners," id. at 833, 834 (internal quotation marks and alterations omitted), "not every injury suffered by a prisoner at the hands of another translates into constitutional liability for prison officials responsible for the victim's safety," Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (internal quotation marks omitted). Instead, to establish a Bivens claim such as that asserted here, Plaintiff must allege facts showing deliberate indifference, constituting unnecessary and wanton infliction of pain proscribed by the Constitution. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Summary dismissal is appropriate, however, when no viable claim has been stated, as deliberate indifference is a very high standard, which requires more than a showing of mere negligence. Id. at 106-08. Deliberate indifference requires "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319 (1986).
Specifically, in making a claim for deliberate indifference, a plaintiff must satisfy a two-part test consisting of both an objective and a subjective inquiry for liability to attach. First, the inmate "must establish a serious deprivation of his rights in the form of a serious or significant physical or emotional injury," or a substantial risk thereof. Danser v. Stansberry, 772 F.3d 340, 346-47 (4th Cir. 2014) (internal quotation marks omitted); see Farmer, 511 U.S. at 834. This objective inquiry "requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Helling v. McKinney, 509 U.S. 25, 36 (1993). Second, an inmate must show that the prison official had a "sufficiently culpable state of mind," which, in this context, consists of "deliberate indifference to inmate health or safety." Farmer, 511 U.S. at 834 (internal quotation marks omitted); see Odom v. SCDC, 349 F.3d 765, 770 (4th Cir. 2003). This subjective inquiry requires "evidence suggesting that the prison official had actual knowledge of an excessive risk to the plaintiff's safety." Danser, 772 F.3d at 347. The defendant must "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
Here, Plaintiff's allegations fail to state a claim for relief under Bivens. Importantly, Plaintiff has failed to allege facts to plausibly show that Defendants knew that their conduct would expose Plaintiff to any substantial risk of severe harm as required by the deliberate indifference standard. Instead, Plaintiff appears to allege that he suffered injuries as the result of negligence. However, the law is well settled that a claim for negligence is not actionable under Bivens. See, e.g., English v. Wood, No. 1:13-cv-2677-JFA-SVH, 2014 WL 1330109, at *2 (D.S.C. Apr. 1, 2014) (collecting cases); see also Grayson v. Peed, 195 F.3d 692, 695 (4th Cir. 1999) ("Deliberate indifference is a very high standard—a showing of mere negligence will not meet it.").
The only plausible allegations to support Plaintiff's claim against Defendants is that he was being transported in a van without seat belts and was injured when the van was involved in a wreck [Doc. 1 at 4, 6] and that Defendants did not follow protocol and fell asleep behind the wheel [Doc. 10 at 5]. However, such allegations assert no more than an ordinary lack of care for Plaintiff's safety, and Plaintiff therefore fails to present a claim of constitutional magnitude. See, e.g., Vinson v. U.S. Marshals Serv., No. 0:10-cv-79-RMG-PJG, 2011 WL 3903057, at *8 (D.S.C. July 29, 2011) ("To the extent that Vinson is attempting to assert an Eighth Amendment claim based on his allegations that the defendants failed to restrain him with a seatbelt and that Defendant Cranford negligently operated the passenger van, such claims fail as a matter of law."), Report and Recommendation adopted by 2011 WL 3903199 (D.S.C. Sept. 2, 2011), aff'd, 459 F. App'x 221 (4th Cir. 2011). "It is well established that an assertion of mere negligent conduct is not enough to constitute an Eighth Amendment violation." Toran v. Coakley, No. 5:14-cv-024371, 2017 WL 1227951, at *5 (S.D.W. Va. Mar. 8, 2017) (finding Plaintiff's allegations that "he was returning from an outside medical trip when the transport vehicle was 'clipped' by another vehicle" constituted mere negligence and failed to state an Eighth Amendment violation), Report and Recommendation adopted by 2017 WL 1217203 (S.D.W. Va. Mar. 31, 2017). Indeed, many "courts have examined whether the failure to provide seatbelts to inmates presented an unreasonable risk of harm and concluded that it did not," finding instead that the failure to seatbelt a prisoner alone does not rise to the level of a constitutional violation. Foreman v. Unnamed Officers of the Fed. Bureau of Prisons, No. DKC-09-cv-2038, 2010 WL 2720817, at *6 (D. Md. July 7, 2010) (discussing cases), adhered to on reconsideration, 2010 WL 4781333 (D. Md. Nov. 17, 2010); see also Dexter v. Ford Motor Co., 92 F. App'x 637, 642 (10th Cir. 2004) ("We have identified no federal case holding that failure to seatbelt an inmate, standing alone, violates the Eighth Amendment."); Walls v. Kaho, No. 5:06-cv-188-MTP, 2009 WL 901917 (S.D. Miss. Mar. 31, 2009) (collecting cases and stating that "[m]any courts . . . have held that there is no constitutional right of a prisoner to the use of a seatbelt while being transported, and that while failure to seatbelt a prisoner may give rise to a claim for negligence, it does not give rise to a cognizable constitutional claim").
Further, Plaintiff does not allege that Defendants caused the automobile accident. Importantly, while Plaintiff alleges that Defendants fell asleep behind the wheel and did not follow protocol, he does not allege that the accident was the result of Defendants' falling asleep. Even if he had alleged that fact, however, such an allegation would establish mere negligence and not a constitutional claim for deliberate indifference. See, e.g., Harrell v. Harris, No. 413-cv-96, 2015 WL 2255096, at *2 (S.D. Ga. May 12, 2015) (finding prisoner's allegation that defendants fell asleep at the wheel causing an accident while transporting the prisoner was "a classic common-law tort claim, but it falls short of the deliberate-indifference standard required to recover for 'cruel and unusual punishments' under the Eighth Amendment"); Lawson v. Hopkins, No. 7:10-cv-00573, 2011 WL 320894, at *2 (W.D. Va. Jan. 28, 2011) (finding plaintiff failed to state a claim under § 1983 for deliberate indifference where his "allegations offer no indication that [Defendant] drove the van, knowing of any substantial risk that he would fall asleep or otherwise cause an accident"); Denton v. Transcor Am., Inc., No. 3:96-cv-344-R, 1999 WL 33603122, at *5 (W.D. Ky. Jan. 15, 1999) ("Plaintiff's claims against [Defendants] are mere negligence claims and do not state a constitutional violation. Assuming [Defendant] fell asleep while driving, Plaintiff cannot demonstrate that his actions rose to level of a constitutional violation.").
Additionally, Plaintiff does not appear to allege a claim for deliberate indifference to his medical care, and he has not alleged that Defendants denied Plaintiff medical treatment for any injures he suffered. Likewise, there is no indication in Plaintiff's pleadings that Defendants were aware of facts from which an inference could be drawn that a substantial risk of serious harm existed, or that Defendants drew that inference. In sum, Plaintiff's general allegations of negligence are insufficient to state a claim under the Eighth and Fourteenth Amendments.
Accordingly, the undersigned finds that Plaintiff has failed to allege facts to establish a Bivens claim and this action should be summarily dismissed pursuant to 28 U.S.C. § 1915 and § 1915A without further leave to amend. See Workman v. Morrison Healthcare, 724 F. App'x 280, 281 (4th Cir. 2018) (explaining that, where the district court has already afforded a plaintiff with the opportunity to amend, the district court, in its discretion, can either afford plaintiff an additional opportunity to file an amended complaint or dismiss the complaint with prejudice); Goode v. Cent. Va. Legal Aid Soc'y, Inc., 807 F.3d 619, 624 (4th Cir. 2015).
In light of all the foregoing, it is recommended that the District Court dismiss this action without leave to amend and without issuance and service of process. See Neitzke v. Williams, 490 U.S. 319, 324-25 (1989).
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge January 28, 2020
Greenville, South Carolina
Plaintiff's attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory 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
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).