Opinion
C. A. 22-1723-JD-PJG
05-10-2023
Fausto Alejandro Aguero Alvarado, Plaintiff, v. The Federal Bureau of Prisons; FCI Estill, SC; William E. Mackelburg, Warden; FNU Crickard, Assistant Warden; FNU Fraser, Medical Director Assistant; USP Lewisburg, PA, United States Penitentiary; FNU Spaulding, Warden; John Doe, Medical Director; FCI Bennettsville, Federal Correctional Institution; FNU Warren, Medical Director, Defendants.
ORDER AND REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Fausto Alejandro Aguero Alvarado, a self-represented federal prisoner, filed this civil rights action. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the Government's motion to dismiss, or in the alternative, motion for summary judgment. (ECF No. 43.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Alvarado of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the Government's motion. (ECF No. 45.) Alvarado filed a response in opposition to the motion (ECF No. 64), and the Government filed a reply (ECF No. 69). Having reviewed the record presented and the applicable law, the court concludes that the Government's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. Alvarado is a federal prisoner who claims that the Federal Bureau of Prisons (“BOP”) and its officials have failed to provide him with medical treatment for injuries Alvarado purportedly sustained while defending a BOP staff member from an inmate attack on May 24, 2019. At the time, Alvarado was housed at Federal Correctional Institution (“FCI”) Estill, South Carolina. Defendant William E. Mackelburg was the Warden of FCI Estill, Defendant David Crickard was the Assistant Warden, and Defendant Robert Fraser was the Assistant Health Services Administrator.
Fraser's name is spelled incorrectly in the pleading in this case. The Clerk of Court is directed to amend the case caption to the correct spelling.
Alvarado claims that as a result of the attack, he sustained the following injuries that have not been treated by the BOP: a hernia in his groin, worsening of his sciatica, a back injury, left wrist pain, broken eyeglasses, exposure to blood, and emotional unrest. Alvarado was evaluated by a nurse on the day of the attack-May 24, 2019. Medical records show Alvarado reported to the nurse that he tweaked a prior back injury and his medical history shows Alvarado has a history of backaches, degenerative disc disease, and radiating back pain. The medical staff ordered x-rays, prescribed pain medication, and counseled Alvarado on stretching exercise to improve his mobility and pain. The x-ray results showed no acute injury but also showed signs of scoliosis and joint disease.
For the rest of 2019, Alvarado was seen by medical staff again on July 25, September 24, October 1, October 4, and October 31. In the July visit, Alvarado was treated for shoulder and neck pain with an injection and nerve therapy. In the September visit, Alvarado complained about discomfort in the area of his hernia, which had supposedly been repaired in surgery two years prior. The hernia was examined in follow-up visits on October 4 and 31 at which he was prescribed medications and referred to a general surgeon for a consultation. Plaintiff was issued a new pair of eyeglasses on December 7, 2019.
On April 13, 2020, a tornado struck FCI Estill, causing such extensive damages that the inmates were transferred to United States Penitentiary (“USP”) Lewisburg in Pennsylvania. Defendant Spaulding was the Warden of USP Lewisburg. Alvarado went through a health screening when he arrived at USP Lewisburg on April 14, 2020. Alvarado visited medical staff on May 7, 2020, complaining about pain from his hernia, sciatica, and pain in his neck. Alvarado also complained that he needed new eyeglasses. Medical staff ordered lab tests and x-rays to assess his complaints, counseled Alvarado on exercises to alleviate pain, and instructed him to purchase ibuprofen from the commissary. Medical staff reviewed the findings from the tests and x-rays on June 23, 2020 and reminded Alvarado to perform his exercises and purchase ibuprofen from the commissary.
Alvarado was transferred to FCI Bennettsville on October 28, 2020 and received an initial health screening. Defendant Tara Warren was the Health Services Administrator at FCI Bennettsville. On November 6, 2020, Alvarado visited the medical staff complaining of pain in his lower back, left wrist, and neck. Alvarado visited the Clinical Director on November 25, 2020 during which Alvarado reported that the ibuprofen was not helping his sciatica and neck pain. Alvarado also reported that another pain reliever-naproxen-and warm weather did provide him pain relief. The Clinical Director prescribed different pain medications, including naproxen, and ordered lab tests.
In 2021, Alvarado visited medical staff only once, on March 24, complaining of back pain. Alvarado's pain medication prescription was renewed multiple times that year and into 2022, except during the summer. On June 2, 2022, Alvarado filed this lawsuit, claiming BOP and its officials were failing to treat his injuries from May 24, 2019, and seeking damages and injunctive relief for their deliberate indifference to his medical needs. Alvarado made no other sick call requests until July 18, 2022, during which he complained during a visit with medical staff of neck pain and numbness and burning in his left hand. Alvarado also complained that his current back pain medication was not working. Medical staff examined Alvarado and changed his medications.
On October 31, 2022, Alvarado visited medical staff complaining of severe back pain, severe stomach cramps, constipation, and requesting new eyeglasses. Alvarado was x-rayed and prescribed medicine for the constipation. The radiologist concluded that Alvarado may have had a kidney stone, but it was unremarkable and not obstructive. Alvarado returned to see the medical staff on November 7, 2022, complaining that his symptoms had not improved. Medical staff concluded that Alvarado was constipated, and lab tests that showed he was negative for stomach bacteria that could cause ulcers and other issues. On December 6, 2022, Alvarado visited an optometrist who assessed his vision and gave Alvarado new prescription for corrective lenses and ordered new eyeglasses.
Alvarado's Complaint, as construed by the court, seeks damages against the individual defendants pursuant to Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for deliberate indifference to serious medical needs in violation of the Eighth Amendment. Alvarado also seeks injunctive relief against the Government-to be given urgent medical care for the injuries he sustained in May 2019.
Neither party objected to the court's construction of the pleading after they were given the opportunity to do so. (ECF No. 46.)
DISCUSSION
A. Applicable Standards
Lack of personal jurisdiction is an affirmative defense that must be raised by the defendant in a motion pursuant to Federal Rule of Civil Procedure 12(b)(2), but thereafter, the plaintiff bears the burden of demonstrating personal jurisdiction. Grayson v. Anderson, 816 F.3d 262, 267 (4th Cir. 2016). Unless the court holds an evidentiary hearing to decide an issue of material jurisdictional fact, the plaintiff need only make a prima facie showing of personal jurisdiction, which the court may resolve as a preliminary matter. Id.; Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).
On the other hand, summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. The Government's Motion
1. Personal Jurisdiction
The Government argues that the court lacks personal jurisdiction over Defendant Spaulding, the former Warden of the United States Penitentiary in Lewisburg, Pennsylvania. Specifically, the Government argues that Alvarado fails to allege that Spaulding transacted any business, entered into any contract, or committed a wrongful act in South Carolina. The court agrees.
A federal court may exercise personal jurisdiction over a defendant in the manner provided by state law under Federal Rule of Civil Procedure 4(k)(1)(A). Carefirst of Md., Inc., 334 F.3d at 396 (citing ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997)). “Thus, for a district court to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied: (1) the exercise of jurisdiction must be authorized under the state's long-arm statute; and (2) the exercise of jurisdiction must comport with the due process requirements of the Fourteenth Amendment.” Id. (citing Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001)). South Carolina's long-arm statute has been held to extend jurisdiction “to the outer limits” of due process, Fed. Ins. Co. v. Lake Shore, Inc., 886 F.2d 654, 657 n.2 (4th Cir. 1989); therefore, the court can proceed directly to the question of whether exercising personal jurisdiction over Spaulding is constitutionally permissible. ESAB Grp., Inc. v. Zurich Ins. PLC, 685 F.3d 376, 391 (4th Cir. 2012).
The due process analysis differs depending on whether the personal jurisdiction is based on general or specific jurisdiction. “To establish general jurisdiction over the defendant, the defendant's activities in the State must have been ‘continuous and systematic,' a more demanding standard than is necessary for establishing specific jurisdiction.” ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984)). But, where a defendant's contacts with the forum state are the basis the suit, those contacts may establish specific jurisdiction. For a court to exercise specific jurisdiction over the defendant, the court must consider (1) the extent to which the defendant “purposefully availed” himself of the privilege of conducting activities in the forum state; (2) whether the plaintiff's claim arises out of those activities directed at the forum state; and (3) whether the exercise of personal jurisdiction would be constitutionally “reasonable.” ALS Scan, Inc., 293 F.3d at 712 (citing Christian Science Board of Directors, 259 F.3d at 216).
Here, Alvarado does not respond to the Government's argument that the court lacks personal jurisdiction over Spaulding, and the court agrees with the Government that Alvarado's pleading fails to allege any facts from which the court could find that it can exercise personal jurisdiction over Spaulding. See Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016) (“When determining whether a plaintiff has made the requisite prima facie showing, the court must take the allegations and available evidence relating to personal jurisdiction in the light most favorable to the plaintiff. Ultimately, however, a plaintiff must establish facts supporting jurisdiction over the defendant by a preponderance of the evidence.”) (citing Combs v. Baker, 886 F.2d 673, 676 (4th Cir. 1989)). Alvarado's only allegations about Spaulding concern Spaulding's actions as the warden of a Pennsylvania prison and demonstrate no connection to South Carolina. Thus, Alvarado fails to show that the court has personal jurisdiction over Spaulding.
2. Claims for Injunctive Relief
The Government argues that Alvarado fails to establish it has been deliberately indifferent to his medical needs, and therefore, he is not entitled to injunctive relief. The court agrees.
The parties do not address the issue, but the court notes that it is not clear that the proper party has been named in this case for Alvarado to pursue injunctive relief-the individual defendants in their official capacities do not appear to have authority to remedy Alavarado's condition, except for possibly Defendant Warren, the Medical Director of the prison, though the parties do not point to any facts that would establish that he is an official who could remedy Alvarado's injuries if the court ordered injunctive relief. Also of note, Alvarado has named the federal prisons themselves as defendants, but they are not corporate or political bodies amenable to suit. See, e.g., Himmelreich v. Fed. Bureau of Prisons, C/A No. 11-3474, 2012 WL 13226685, at *4 (6th Cir. May 7, 2012); White v. United States, C/A No. 1:07cv32, 2007 WL 1655108, at *4 (N.D. W.Va. May 18, 2007), report and recommendation adopted in relevant part, 2007 WL 1655107 (N.D. W.Va. June 4, 2007).
The Eighth Amendment to the United States Constitution expressly prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To proceed with his claim under the Eighth Amendment, a plaintiff must demonstrate: (1) objectively, the deprivation suffered or injury inflicted was “sufficiently serious,” and (2) subjectively, the prison officials acted with a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994); Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir. 1996). “These requirements spring from the text of the amendment itself; absent intentionality, a condition imposed on an inmate cannot properly be called ‘punishment,' and absent severity, such punishment cannot be called ‘cruel and unusual.' ” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (citing Wilson v. Seiter, 501 U.S. 294, 298-300 (1991)). “What must be established with regard to each component ‘varies according to the nature of the alleged constitutional violation.' ” Williams, 77 F.3d at 761 (quoting Hudson v. McMillian, 503 U.S. 1, 5 (1992)).
Deliberate indifference by prison personnel to a prisoner's medical needs is actionable under the Eighth Amendment to the United States Constitution. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). To satisfy the subjective prong of an Eighth Amendment claim, an inmate must show that the prison official's state of mind was “deliberate indifference” to the inmate's health and safety. Farmer, 511 U.S. at 834. A prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to an inmate and disregards that substantial risk. Id. at 847; Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004). To be liable under this standard, the prison official “must both 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.
Not “every claim by a prisoner [alleging] that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105. To establish deliberate indifference, the treatment “must be so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Mere negligence, malpractice, or incorrect diagnosis is not actionable. See Estelle, 429 U.S. at 106. While the Constitution requires a prison to provide inmates with medical care, it does not demand that a prisoner receive the treatment of his choice. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988). “[A] prisoner's mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation.” Nelson v. Shuffman, 603 F.3d 439, 449 (8th Cir. 2010) (internal quotation marks and citation omitted) (alterations in original); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985).
Courts have recognized that “lay people are not qualified to determine . . . medical fitness, whether physical or mental; that is what independent medical experts are for.” O'Connor v. Pierson, 426 F.3d 187, 202 (2d Cir. 2005); see also Nelson, 603 F.3d at 449 (“A prisoner's disagreement as to the appropriate treatment fails to rise to the level of a constitutional claim and fails to create a genuine issue of material fact.”); Dulany v. Carnahan, 132 F.3d 1234, 1240 (8th Cir. 1997) (“In the face of medical records indicating that treatment was provided and physician affidavits indicating that the care provided was adequate, an inmate cannot create a question of fact by merely stating that she did not feel she received adequate treatment.”); Fleming v. Lefevere, 423 F.Supp.2d 1064, 1070 (C.D. Cal. 2006) (“Plaintiff's own opinion as to the appropriate course of care does not create a triable issue of fact because he has not shown that he has any medical training or expertise upon which to base such an opinion.”).
Here, Alvarado attempts to create an issue of fact by arguing that his back pain requires urgent attention from a health practitioner outside the prison. (Pl.'s Resp., ECF No. 64 at 6-7.) Alvarado also claims he may have been infected with HIV in March 2021 for which he has not been properly treated. However, the record plainly shows that the BOP has provided treatment for Alvarado's back, neck, and shoulder pain since he first complained of it in May 2019 through 2022 when this litigation was commenced. Alvarado was regularly seen by prison medical staff when he complained of back pain and was evaluated by the staff for that condition, including x-rays. The medical staff prescribed medicine and coached him on stretching exercises to help alleviate his pain, ordered different medication for him when he reported that certain medications were not working, and provided injections and nerve therapy.
Alvarado argues that the Government has not provided all of his medical records, which he alleges show that he put in more requests for sick calls than the dates he actually received an appointment. (Pl.'s Resp., ECF No. 64 at 6.) Even assuming Alvarado did not receive an appointment every time he sought one, he fails to show that the BOP is disregarding a serious risk to his health. Alvarado points to no evidence that could show that he is not receiving necessary medical treatment. Alvarado argues he needs “urgent” treatment for his injuries, but he puts forth no evidence that his injuries require immediate treatment other than what he is already receiving. Notably, Alvarado's medical records show that his back injury is a degenerative condition, not an acute injury, and Alvarado offers no evidence that the treatment provided by the BOP's medical staff has not been medically appropriate for his condition. As to his potential HIV exposure, Alvarado points to no evidence that he was actually exposed to the virus or that there is a reason to believe that he is infected. In other words, Alvarado fails to put forth evidence that the BOP is aware of a serious risk to his health and has disregarded that risk. See Farmer, 511 U.S. at 834; See Jackson v. Sampson, 536 Fed.Appx. 356, 357 (4th Cir. 2013) (“An inmate's mere disagreement with the course of treatment provided by medical officers will not support a valid Eighth Amendment claim.”) (citing Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975)). Alvarado's belief that he should be seen by different doctors outside the prison is not evidence that the BOP has disregarded a serious risk to his health. See, e.g., Nelson, 603 F.3d at 449; Dulany, 132 F.3d at 1240; Fleming, 423 F.Supp.2d at 1070. Consequently, Alvarado has failed to meet his burden of showing that there is a genuine issue of material fact as to whether he is entitled to injunctive relief against the BOP for his deliberate indifference claim.
3.Claims for Damages Pursuant to Bivens
As explained above, Alvarado puts forth no evidence of an Eighth Amendment violation based on deliberate indifference to a serious medical need. The court's finding is fatal to his damages claims under Bivens. However, the court concludes that the individual capacity defendants are entitled to summary judgment on an alternative basis, as argued by the Government: no Bivens remedy is available for Alvarado's claim.
In Bivens, the United States Supreme Court established a remedy for plaintiffs alleging certain constitutional violations by federal officials to obtain monetary damages in suits against those officials in their individual capacities. Id. The Supreme Court has recognized few situations where a Bivens claim is actionable, but one of them was in the context of a federal prisoner prisoner's estate claiming that the prisoner died because of the BOP's failure to treat his asthma. Carlson v. Green, 446 U.S. 14, 16 (1980).
More recently, the Supreme Court has emphasized the limited scope and availability of Bivens actions. See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (noting that the United States Supreme Court has extended Bivens only in limited circumstances, and cautioning that a Bivens remedy will not be available if there are “special factors counselling hesitation in the absence of affirmative action by Congress”) (quoting Carlson, 446 U.S. at 18); see also Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (“[R]ather than dispense with Bivens altogether, we have emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial activity.' ”) (quoting Ziglar, 582 U.S. at 135). As the Fourth Circuit has recognized:
Consistent with the [Supreme] Court's view that further expansion of the Bivens remedy was disfavored, the analytical framework established by the Ziglar Court
places significant obstacles in the path to recognition of an implied cause of action. First, courts must inquire whether a given case presents a “new Bivens context.” If the context is not new then a Bivens remedy continues to be available. But if the context is new, then courts must, before extending Bivens liability, evaluate whether there are special factors counselling hesitation in the absence of affirmative action by Congress. If any such “special factors” do exist, a Bivens action is not available.Earle v. Shreves, 990 F.3d 774, 778-79 (4th Cir.) (internal citations, quotation marks, and alterations omitted), cert. denied, 142 S.Ct. 358 (2021).
Here, the court finds persuasive the decision by another court in this district that recently found no Bivens remedy was available to a prisoner raising a claim similar to Alvarado's claim. See Washington v. Fed. Bureau of Prisons, C/A No. 5:16-3913-BHH, 2022 WL 3701577 (D.S.C. Aug. 26, 2022). In Washington, the plaintiff claimed that the BOP was deliberately indifferent to his medical needs because of the BOP's failure to provide him medical and personal assistance due to the plaintiff's blindness. The plaintiff claimed that the BOP failed to provide him with medically necessary treatment, surgery, consultations, physical and occupational therapy tools, assistance, and education necessitated by his condition. Washington, 2022 WL 3701577, at *1.
The court in Washington found, in light of the Supreme Court's decision in Egbert, that the plaintiff's Bivens claims arose in a new Bivens context. The court found the context was new despite the Supreme Court previously recognizing a Bivens cause of action for a federal prisoner asserting that officials were deliberately indifferent to his medical needs in Carlson v. Green. The court found:
Plaintiff's Bivens claims do not involve a medical emergency, as did Carlson, but rather focus on a long term and ongoing course of medical treatment of Plaintiff's chronic, non-fatal condition. This difference is significant for multiple reasons, including that administrative and injunctive relief would have a completely different application to Plaintiff's claims than to the claims in Carlson, where the failure to properly address a medical emergency proved fatal. Whereas the Court in Carlson fashioned a Bivens-type remedy to make right a grave constitutional wrong, Plaintiff's Bivens claims here risk transforming this Court into an ad hoc
medical review board tasked with deciding, with little to no judicial guidance, which medical errors, if any, cross the threshold into constitutional injury. . . . It is of no moment that Plaintiff's claims parallel those in Carlson to the degree they are brought under the Eighth Amendment and relate to medical care in the prison setting generally. After Egbert, such broad similarities . . . are not sufficient on their own to authorize a claim. Rather, the Court finds that Plaintiff's Bivens claims arise in a new context and proceeds to the special factors analysis.Washington, 2022 WL 3701577, at *5 (citations omitted). The court also found that Washington's case presented several special factors requiring deference, including: (1) Congress is better positioned to create remedies in the context of chronic medical care in federal prisons; (2) the Government has already provided alternative remedies that protect claimants like Washington, including processes for administrative and injunctive relief; and (3) Congress's passage of the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat. 1321 (1996). Id. at *6.
Here, Alvarado's claim does not involve a medical emergency. As previously explained, Alvarado does not present an acute injury that is a serious threat to his life, but rather a degenerative back condition that causes pain. Therefore, Alvarado's case is distinguishable from Carlson v. Green and arises in a new context. See Washington 2022 WL 3701577, at *5; McNeal v. Hutchinson, C/A No. 2:21-CV-3431-JFA-MGB, 2022 WL 16631042, at *3 (D.S.C. Nov. 2, 2022) (refusing to extend Bivens in the context of a federal prisoner's claim that his chronic medical condition went untreated, finding that the plaintiff failed to support his assertion that his condition constitutes a medical emergency, and noting that he has lived with his condition for years), appeal filed, No. 22-7319 (4th Cir. Nov. 15, 2022). Further, the court finds the analysis in Washington persuasive-that special factors exist that require the court to hesitate before extending a Bivens remedy in Alvarado's situation absent action from Congress. Alvarado has other avenues to seek relief for his non-life-threatening medical condition in prison. Notably, as addressed herein, Alvarado indicates he is currently pursuing administrative remedies under the Federal Tort Claims Act to address his medical issues. Consequently, the court concludes that no Bivens remedy is available to Alvarado for his claim that the BOP has failed to properly treat his back pain.
RECOMMENDATION
Based on the foregoing, the court recommends the Government's motion to dismiss Defendant Spaulding for lack of personal jurisdiction be granted and the Government's motion for summary judgment on Alvarado's claims be granted.
Plaintiff seeks leave of the court to amend his complaint to assert a cause of action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, 1346(b). (Mot. for Leave to Amend, ECF No. 71; Resp. Opp'n Mot. Dismiss, ECF No. 64 at 34-35.) Plaintiff asserts, however, that he has not yet exhausted his administrative remedies with the BOP for such a claim. Because a federal prisoner must exhaust his administrative remedies before filing a lawsuit in federal court pursuant to the FTCA, see generally McNeil v. United States, 508 U.S. 106, 113 (1993), the court would lack subject matter jurisdiction over such a claim, and the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962) (holding that a motion to amend may be denied for futility). Therefore, Plaintiff's remedy, if any, is to file a separate FTCA case once he has properly exhausted his administrative remedies for his FTCA claim. Plaintiffs motion to amend the
The parties' 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
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).