Opinion
C. A. 4:21-2817-RMG-TER
03-25-2022
Charles Anthony Asmer, #31388-171, Plaintiff, v. Rex Blocker, Ms. Walton-Battle, Dr. H. Lopez, Stephen Sizemore, Kristen Eldred, Amy Book, Stephanie Lanham, Donardo Fonte, Dr. James Winston, Captain Newell, Walter Vereen, Charles Thomas, Bonita S. Mosely, J. Hutchinson, Sondra Broadwater, Lt. Waller, Dr. Stallings, Tonya Burks, Ms. Bryan, Mr. Valez, Ms. Hawkes, Mr. Waites, Mr. Torino, Defendants.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis, alleging violations of his constitutional rights against federal employees in their individual capacity under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e), § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
STANDARD OF REVIEW
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md. House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2) (B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint can be 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 complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir.1990) (The “special judicial solicitude” with which a [court] should view such pro se complaints does not transform the court into an advocate.).
DISCUSSION
Plaintiff alleges that he brings this action pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). (ECF No. 24 at 7, 16). On October 5, 2021, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. (ECF No. 10). Plaintiff filed an Amended Complaint but some deficiencies persist. (ECF No. 24). In January 2022, the undersigned recommended dismissal based only on exhaustion. (ECF No. 30). The court declined to adopt the recommendation finding it was unclear from the face of the complaint whether Plaintiff fully exhausted. (ECF No. 34).
Plaintiff brings suit against federal officials/employees and as such his constitutional claims are analyzed under Bivens, which “established that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). A Bivens claim is analogous to a claim under 42 U.S.C. § 1983. However, federal officials cannot be sued under § 1983, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 & n.30 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir.1988) (abrogated on other grounds in Johnson v. Jones, 515 U.S. 304 (1995)). Violations of the Fourth, Fifth, and Eighth Amendments in limited contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979), Crocker v. Wright, 143 Fed.Appx. 523 (4th Cir. 2005) (unpublished).
Plaintiff's Amended Complaint generally contains allegations of Eighth Amendment violations. (ECF No. 24 at 16). These allegations arise as a result of Plaintiff having Crohn's disease and a fistula where his bladder is connected to his sigmoid colon and allegedly produces constant and unbearable pain. (ECF No. 24 at 25). Plaintiff urinated fecal matter. (ECF No. 24 at 25). Plaintiff had surgery, had complications, and had a colostomy bag. (ECF No. 24 at 29). Plaintiff alleges he was not regularly given supplies to manage his ostomy care. There are grievances and responses attached, as well as a photo of Plaintiff's abdomen. Plaintiff's objections to the prior recommendation included a notation of plans for another surgery for reversal of the colostomy in January 2022. (ECF No. 32-1 at 1).
Plaintiff alleges his claim started in August 2017 until the present. (ECF No. 24 at 25). Where not clear on the face of the complaint, the court will not sua sponte summarily dismiss specific claims and/or defendants based on the statute of limitations. See Rodriquez v. Reid, No. 4:17-CV-03490-RMG, 2018 WL 1281783, at *1-2 (D.S.C. Mar. 9, 2018)(“whether Plaintiff filed his Complaint outside the statute of limitations is too close of a question [here] to warrant sua sponte summary dismissal. The ends of justice will be met by allowing Plaintiff and Defendants the opportunity to fully brief the legal and factual issues concerning whether Plaintiff filed this lawsuit within the statute of limitations and whether Plaintiff has exhausted his administrative remedies”).
Plaintiff alleges he regularly complained to Vereen and Vereen responded by threatening to place Plaintiff in lockup. (ECF No. 24 at 27). Plaintiff has made sufficient allegations as to Defendant Vereen, an associate warden, to survive summary dismissal. Plaintiff has made sufficient allegations to survive summary dismissal as to Dr. Lopez' denial of pain medication when Plaintiff was in severe pain after surgeries. (ECF No. 24 at 34, 37).
Plaintiff alleges Dr. Walton-Battle failed to transfer Plaintiff to a different facility. (ECF No. 24 at 29). There is no claim recognized under Bivens as to prison placement. Plaintiff alleges Dr. Walton-Battle and Dr. Lopez ignored Dr. Stalling's recommendation for Percocet. (ECF No. 24 at 32). Plaintiff later alleges as to a lack of colostomy supplies that he got a rash and an infection. (ECF No. 24 at 34). As to Plaintiff's lack of a colostomy belt from Dr. Walton-Battle, out of an abundance of caution, summons has been issued as to Walton-Battle on this same date. (ECF No. 24 at 29).
There are no factual allegations as to Defendants Mosely, Hutchinson, Broadwater, Waller, and Newell. To the extent Plaintiff sues figures in authority under Bivens because they are supervisors over others, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948 (2009)(“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). Plaintiff has not made any allegations as to specific personal involvement as to Defendants Mosely, Hutchinson, Broadwater, Waller, and Newell and thus these defendants are subject to summary dismissal.
As to Defendants who are listed generally as medical, Eldred, Book, Lanham, Fonte, Thomas, Burks, and Torino, Plaintiff makes no factual allegations as to any personal action by these defendants. Plaintiff does not allege specific personal involvement or causal connection of the named individual Defendants for any Bivens claim. 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.Appx. 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). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. Defendants will not know how to respond to conclusory allegations, especially when “the pleadings mentioned no specific time, place, or person involved.” BellAtl. Corp. v. Twombly, 550 U.S. 544 565 n. 10. (2007). Complaints should contain facts in regard to who did what to whom and when. Id. Plaintiff has failed to state a claim as to Defendants Eldred, Book, Lanham, Fonte, Thomas, Burks, and Torino, and was already warned about this deficiency.
Plaintiff has failed to state a cognizable Bivens claim against Dr. Winston of Atlanta because Plaintiff alleges Dr. Winston said “no” to holding Plaintiff in Atlanta as Plaintiff was in process of being transferred to South Carolina. Federal courts are required to accord great consideration to a correctional system's need to maintain order, discipline, and control, and the choices of where and how to confine Plaintiff are a determination made by the correctional system and not the courts. See Wolffv. McDonnell, 418 U.S. 539, 558-62 (1974). There has yet to be an extension of Bivens where placement in the federal correctional system arises to the level of a constitutional magnitude to be an action in which a prisoner can seek damages against an individual. Further, Plaintiff's allegations are that Dr. Winston recommended surgery and new prescriptions and it was others who did not heed his recommendation. (ECF No. 24 at 26). Defendant Winston is subject to summary dismissal.
Plaintiff alleges in 2017 Dr. Blocker failed to continue Percocet, stating it was not on formulary. (ECF No. 24 at 27). This appears to be the extent of allegations as to Dr. Blocker. Mere negligence, mistake or difference of medical opinion in the provision of medical care to prisoners do not rise to an Eighth Amendment deprivation under the Estelle standard. See Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977); Lee v. Downs, 470 F.Supp. 188, 192 (E.D. Va.1979); Estelle v. Gamble, 429 U.S. 97, 106 (1976)(“a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”). Defendant Blocker is subject to summary dismissal.
Further, it is clear from the face of the Amended Complaint the allegations involving Dr. Blocker are only in 2017, and thus claims against this defendant are barred by the statute of limitations.
Plaintiff alleges someone in medical finally took Dr. Stalling's recommendation after Dr. Stalling's third attempt at a surgery recommendation in 2018. (ECF No. 24 at 28). Plaintiff does not allege any constitutional violation by Dr. Stalling. If anything, Plaintiff implies Dr. Stalling was helpful in recommending surgery. (ECF No. 24 at 28). Dr. Stalling also recommended different pain medication. (ECF No. 24 at 31). “They” ignored Dr. Stalling, Plaintiff alleges. (ECF No. 24 at 31). Dr. Stalling is subject to summary dismissal.
The only allegation as to Defendant Sizemore is: “After talking with Mr. Sizemore, I learned that Dr. Lopez denied my pain medication. I grieved it to no avail.” (ECF No. 24 at 34). Plaintiff's allegations do not raise his claims to a level of constitutional magnitude as to Sizemore and Sizemore subject to summary dismissal.
The only allegation as to Defendant Valez is that in 2017, Valez had Plaintiff sign a refusal and later, Valez told Plaintiff not to use so much paste and wipes. (ECF No. 24 at 35). Plaintiff's allegations do not raise his claims to a level of constitutional magnitude as to Valez and Valez is subject to summary dismissal.
The only allegation as to Defendant Waites is that Plaintiff asked Waites why Plaintiff was running out of supplies and Waites answered somebody would pick it up and forgot or either they couldn't fit it. (ECF No. 24 at 35). Plaintiff's allegations do not raise his claims to a level of constitutional magnitude as to Waites and Waites is subject to summary dismissal.
The only allegation is that Hawkes called Plaintiff and “instructed me to follow the directions.” (ECF No. 24 at 22). Plaintiff's allegations do not raise his claims to a level of constitutional magnitude as to Hawkes and Hawkes is subject to summary dismissal.
The only allegation as to Bryan is that she never gave him clean out medicine for a procedure so the procedure was cancelled. (ECF No. 24 at 23). Plaintiff's allegations do not raise his claims to a level of constitutional magnitude as to Bryan and Bryan is subject to summary dismissal.
Plaintiff has been previously notified of the deficiencies, has been given an opportunity to amend his complaint, and has availed himself of that opportunity. See Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064 (4th Cir. 1993); see also Grady v. White, No. 16-7722, 2017 WL 1437235 (4th Cir. April 24, 2017)(dismissing without remanding to district court because district court previously afforded Plaintiff the chance to amend his complaint). The Fourth Circuit Court of Appeals has found where the district court already afforded an opportunity to amend, the district court has the discretion to afford another opportunity to amend or can “dismiss the complaint with prejudice, thereby rendering the dismissal order a final, appealable order.” Workman v. Morrison Healthcare, 724 Fed.Appx. 280 (4th Cir. June 4, 2018)(Table); Knox v. Plowden, 724 Fed.Appx. 263 (4th Cir. May 31, 2018)(Table)(on remand, district judge dismissed the action with prejudice); Mitchell v. Unknown, 2018 WL 3387457 (4th Cir. July 11, 2018)(unpublished).
RECOMMENDATION
Accordingly, it is recommended that the district court partially dismiss the complaint in this case with prejudice. As noted above, it is recommended that Defendants Blocker, Sizemore, Eldred, Book, Lanham, Fonte, Winston, Newell, Thomas, Mosely, Hutchinson, Broadwater, Waller, Stallings, Burks, Bryan, Valez, Hawkes, Waites, and Torino be summarily dismissed without issuance and service of process. In a separately docketed order, the court has authorized the issuance and service of process on the remaining Defendants Vereen, Lopez, and Walton-Battle.
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 Post Office Box 2317 Florence, South Carolina 29503
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).