Opinion
C. A. 1:21-1688-JD-SVH
02-03-2022
William Otis James Brown, #21932-057, Plaintiff, v. The United States of America, U.S. Attorney General and M. Potts, Food Service Administrator, Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
William Otis James Brown (“Plaintiff”), proceeding pro se, filed this action alleging violation of his rights while an inmate at the Federal Correctional Institution in Estill, South Carolina (“FCI-Estill”), a facility of the Bureau of Prisons (“BOP”). Plaintiff brings claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) and the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (“FTCA”) against the United States and FCI-Estill's food service administrator M. Potts (“Potts”) (collectively, “Defendants”).
Plaintiff has been transferred and is currently incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania.
This case is before the court on Defendants' motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [ECF No. 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the applicable procedures and the possible consequences if he failed to respond adequately to Defendants' motion. [ECF No.21]. The motion having been fully briefed [ECF Nos. 23], it is ripe for disposition.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), this case has been referred to the undersigned for all pretrial proceedings. Having carefully considered the record, the undersigned recommends the district judge grant Defendants' motion.
I. Factual Background
Prior to being incarcerated at FCI-Estill, Plaintiff received a bipolar disorder diagnosis while receiving inpatient treatment. [ECF No. 1 at 1-2]. Upon discharge from the treatment facility, a safety crisis plan was formulated; this plan instructs Plaintiff to “[r]ecognize your warning signs and use your coping skills to keep yourself safe and health, ” lists Plaintiff's triggers and stressors, and lists “[t]hings to do and my goals for healthy behavior, ” including “cooking.” [ECF No. 1-1 at 30].
Plaintiff has attached certain documents to his complaint he references that the court summarizes above. “On a motion to dismiss courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Cobin v. Hearst-Argyle Television, Inc., 561 F.Supp.2d 546, 550 (D.S.C. 2008) (citations and emphasis omitted).
Plaintiff has been listed in the BOP's system as a care level “MH-1, ” which is the lowest care level for those who “[s]how[] no significant level of functional impairment associated with a mental illness and demonstrate[] no need for regular mental health interventions.” [ECF No. 1 at 3, 1-1 at 13].
In April 2017, Plaintiff was assigned to the FCI-Estill food service work detail. [ECF No. 1 at 3]. He became the lead PM cook and received the maximum allowed inmate incentive pay, Grade 1, while at the same time receiving bonus pay from his cook supervisors every month for outstanding performance. Id.
In January 2019, Potts became the food administrator at FCI-Estill. Plaintiff alleges that “Potts harassed and initiated confrontations” with him, detailing some of the confrontations in which Potts repeatedly criticized Plaintiff's cooking decisions and refused his work-related requests. See Id. at 3-6. Plaintiff alleges Potts treated him unfairly compared to other inmates, including refusing to hire him to a position in the officer's dining hall, characterizing him as “an aggressive/confrontational inmate” and “a threat to staff safety, ” but then allowing an inmate with a history of confrontation to have the position. Id. at 4.
Following this incident, Plaintiff offered his resignation from the Grade 1 cook position in protest, but thereafter withdrew his resignation. Id. Potts directed Plaintiff to be placed on non-paying food service work detail. Id. at 5. Potts denied Plaintiff's request to be reinstated, although he reinstated another inmate with whom he had a verbal confrontation. Id. at 5-6.
Plaintiff also offers examples of inmates who had been found to have unauthorized items and were disciplined or fired, but then reinstated to food services work or were not fire or disciplined at all. [ECF No. 1 at 5-6].
In addition to pursuing administrative remedies, Plaintiff filed an administrative tort claim and disability discrimination complaint with the United States Department of Justice. Id. at 6. On June 7, 2021, Plaintiff filed the instant suit alleging violations of his Fifth, Eighth, and Fourteenth Amendment rights pursuant to Bivens, as well as claims for negligence and conspiracy pursuant to the FTCA. Plaintiff seeks “compensatory damages, punitive damages or any other damages that may be deemed appropriate . . . .” Id. at 8.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a 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 Be l Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). 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 the plaintiff could prevail, it should do so. Nevertheless, 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).
B. Analysis
1. Bivens and Ziglar
In 42 U.S.C. § 1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress provided no corresponding remedy for constitutional violations by agents of the federal government. In 1971, the Supreme Court in Bivens recognized an implied damages action to compensate persons injured by federal officers who violate the Fourth Amendment's prohibition against unreasonable searches and seizures. 403 U.S. at 397. The Court acknowledged the Fourth Amendment does not provide for money damages “in so many words.” Id. at 396. The Court noted, however, Congress had not foreclosed a damages remedy in “explicit” terms and no “special factors” suggested the Judiciary should “hesitat[e]” in the face of congressional silence. Id. at 396-97. The Court, accordingly, held it could authorize a remedy under general principles of federal jurisdiction. Id. at 392.
Since Bivens, the Court has only expanded this implied cause of action twice. In Davis v. Passman, 442 U.S. 228 (1979), the Court provided a Bivens remedy under the Fifth Amendment's equal protection component of the due process clause for gender discrimination. In Carlson v. Green, 446 U.S. 14 (1980), the Court expanded Bivens under the Eighth Amendment's cruel and unusual punishments clause for failure to provide adequate medical treatment to a prisoner. Otherwise, the Court has consistently declined to expand this limited remedy.
On June 19, 2017, the Supreme Court provided a framework for determining whether a claim for a constitutional violation by federal officials presents a “new Bivens context” necessitating the above inquiry. Ziglar v. Abbasi, 137 S.Ct. 1843, 1859-60 (2017). The Ziglar Court “made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity” and reiterated the Court has “‘consistently refused to extend Bivens to any new context or new category of defendants.'” Id. at 1857 (citing Iqbal, 556 U.S. at 675). The Ziglar Court held a claim presents a new Bivens context “[i]f the case is different in a meaningful way from [the three] previous Bivens cases decided by this Court.” Id. at 1859. Differences meaningful enough to give rise to a new Bivens context may include “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.” Id. at 1859-60.
“If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new.” Id. at 1859. Where a case does present a new context, the Bivens remedy should not be expanded “if there are ‘special factors counselling hesitation in the absence of affirmative action by Congress.'” Id. at 1857 (citing Carlson, 446 U.S. at 18).
The court's special factors inquiry “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. “Thus to be a ‘special factor counselling hesitation,' a factor must cause a court to hesitate before answering that question in the affirmative.” Id. “[I]f there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III.” Id. at 1858. “In a related way, if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Id.
a. Fifth and Fourteenth Amendment Claims
First, Plaintiff argues as follows regarding his Fifth Amendment claim:
Potts . . . violated Brown's procedural and substantive due process rights when Pott's discrimination by refusing to consider Brown for an available position in the Officer's Dining Hall because Brown's Bipolar Disorder caused Potts to believe that Brown was an aggressive/confrontational inmate, ultimately causing Brown's removal from his cooking detail, and the department of labor apprenticeship program.[ECF No. 1 at 8]. Plaintiff also argues Potts violated his Fourteenth Amendment rights by treating him differently than other inmates by preventing him from participating in food service functions, such as preparation of holiday meals, and refusing to reinstate him to food service work detail, even though Potts allowed other inmates who had quit or been fired to be reinstated and even though Plaintiff had not received an incident report or been placed in the special housing unit. Id.
As an initial matter, because Plaintiff is a federal inmate, his claims arise under the Fifth Amendment. Compare U.S. Const. amend. XIV, § 1 (“No State shall . . . deprive any person of life, liberty, or property, without due process of law.”) with U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .”); see also, e.g., McMahan v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers, 858 F.Supp. 529, 549 (D.S.C. 1994) (“Although the Fifth Amendment does not spell out a guarantee of equal protection, the equal protection doctrine nevertheless applies to the federal government via the Due Process Clause . . . .”) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)).
Although the Supreme Court previously recognized an implied cause of action for damages under the equal protection component of the Fifth Amendment's due process clause in Davis, Plaintiff's claims under the Fifth Amendment present a new context because they differ in a meaningful way from previous Bivens cases. In Davis, the Supreme Court held that an administrative assistant to a member of Congress could bring a damages remedy against the Congressman for workplace gender discrimination. Plaintiff's due process and equal protection claims regarding his prison work assignment involve a different context than the defendant in Davis.
The weight of authority counsels this conclusion. First, as stated by this court:
The facts in Davis involved an administrative assistant's allegations that a Congressman fired her because of her gender. Here, Muhammad's claims are meaningfully different. For example, Muhammad's claims took place in a prison context, for which Congress has already provided substantial governing legislation. Additionally, Muhammad's claims involve a defendant of a significantly different position than the defendant
in Davis. See Doe v. Meron, 929 F.3d 153 (4th Cir. 2019) (determining that a plaintiff's Fifth Amendment claims alleging violations of “his right to parentage, to familial relations and to equal protection” differed significantly from the claim recognized in Davis). Moreover, the Ziglar Court specifically noted several substantive and procedural due process cases in which the Supreme Court declined to create an implied damages remedy. See Ziglar, 137 S.Ct. at 1857 (noting “a substantive due process suit against military officers, United States v. Stanley, 483 U.S. 669, 671-672, 683-684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471, 473-474 (1994); . . . . [and] a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins, 551 U.S. 537, 547-548, 562 (2007)”).Muhammad v. Ramirez, C/A No. 0:17-2639-TMC-PJG, 2019 WL 7882144, at *5 (D.S.C. Sept. 30, 2019), report and recommendation adopted, C/A No. 0:17-02639-TMC, 2020 WL 241004 (D.S.C. Jan. 16, 2020) (dismissing claim asserted pursuant to Bivens where Plaintiff brought an equal protection and due process claim under the Fifth Amendment for religious discrimination against inmates who wanted to order prayer oils but were not allowed, even though participants in other sects of Islam were allowed); see also Gardner v. Janson, C/A No. 5:19-2616-CMC, 2021 WL 4472800, at *4 (D.S.C. Sept. 30, 2021) (dismissing claim for damages asserted pursuant to Bivens where Plaintiff brought an equal protection and due process claim under the Fifth Amendment for religious discrimination against inmates wishing to practice the Yoruba faith).
In considering claims like the present claims, other district courts also have found that Fifth Amendment claims that arise out of a prison workplace setting involve “a highly regulated environment with little similarity to employment for a Congressman.” Stile v. United States, C/A No. 16-3832 (RMB), 2019 WL 287072, at *4 (D.N.J. Jan. 22, 2019); see also Id. (“inmates like Plaintiff who work in federal correctional institutions do not have an employer/employee relationship”). As stated by the Southern District of New York:
The Court concludes that Plaintiff's Fifth Amendment claim differs in a “meaningful way” from the plaintiff's claim in Davis, and therefore arises in a “new context.” . . . . For starters, Plaintiff does not allege discrimination “on the basis of her sex, ” id., but rather, harassment directed at her sexual identity. Further, Plaintiff alleges a tenuous connection (at best) between her employment termination and Defendants' misconduct. And lastly, Plaintiff is a BOP inmate-not a Capitol Hill staffer. As such, her claim arises in a fundamentally different context than that in Davis. See Oneil v. Rodriguez, No. 18-CV-3287, 2020 WL 5820548, at *3 (E.D.N.Y. Sept. 30, 2020) (“[A]lthough Davis recognized a remedy for violation of a person's Fifth Amendment rights, the claim at issue was gender discrimination, not an equal protection claim based on treatment in prison.”); Brown v. Cooper, No. CV 18-219 (DSD/BRT), 2018 WL 6977594, at *12 (D. Minn. Dec. 11, 2018) (distinguishing between “discrimination in an employment setting” and “a correctional setting” for the purpose of the “new context” analysis), adopted by 2019 WL 121943 (D. Minn. Jan. 7, 2019); cf. Alexander v. Ortiz, No. CV 15-6981 (JBS-AMD), 2018 WL 1399302, at *4 (D.N.J. Mar. 20, 2018), aff'd, 807 Fed.Appx. 198 (3d Cir. 2020) (“Davis, while addressing a Fifth Amendment discrimination claim, concerns a congressional employee. Plaintiff's situation is vastly different from the plaintiff in Davis as he is a federal prisoner . . . .”).Martin v. Mihalik, C/A No. 19-7979 (PMH), 2021 WL 1738458, at *7 (S.D.N.Y. May 3, 2021).
Turning to the special factors analysis, as also noted in Muhammed and Gardner, Plaintiff has alternative remedies available, including the FTCA. Additionally, “legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation.” Ziglar, 137 S.Ct. at 1865. “Congress's actions do not appear to support the creation of a new Bivens claim, as the Prison Litigation Reform Act of 1995 does not provide for a freestanding damages remedy against federal jailers.” Muhammad, 2019 WL 7882144, at *6 (citing Turkman v. Ashcroft, C/A 02-2307, 2018 WL 4026734, at *5 (E.D.N.Y. Aug. 13, 2018) (recommending upon remand from the Ziglar Court that “extending Bivens [to a claim against a supervisory official (warden)] might negatively impact BOP's investigatory procedures and policies, and that Congress is as a result in the best position to weigh the costs and benefits of allowing a cause of action for damages to proceed”)).
Accordingly, the undersigned recommends declining to extend a remedy under Bivens and granting Defendants' motion to dismiss Plaintiff's due process and equal protection claims.
Although Plaintiff argues that he “is not suggesting that a new Bivens remedy should be implied against Defendant Potts, ” it is unclear under what alternative legal theory Plaintiff asserts his constitutional claims. [See ECF No. 23 at 8]. Cases cited by Plaintiff, for example, Morrison v. Garraghty, 239 F.3d 648, 651 (4th Cir. 2001), are inapplicable to the instant case where those cases were brought pursuant to 42 U.S.C. § 1983 by state prisoners.
b. Eighth Amendment Claim
As stated, the Supreme Court previously recognized an implied right of action for an Eighth Amendment claim based on deliberate indifference to serious medical needs in Carlson. The facts at hand may present meaningful differences such that Plaintiff's claim presents a new context; however, the court need not engage in a lengthy Ziglar analysis, because Plaintiff has failed to state a claim for an Eighth Amendment violation.
To establish an Eighth Amendment violation, a plaintiff must show a defendant exhibited “deliberate indifference” to his “serious medical needs.” Farmer v. Brennan, 511 U.S. 825, 835 (1994); Wilson v. Seiter, 501 U.S. 294, 297 (1991). A claim of deliberate medical indifference requires more than a showing of mere negligence, Estelle v. Gamble, 429 U.S. 97, 105-106 (1976), and “more than ordinary lack of due care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319 (1986). The Fourth Circuit has noted 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) (citation omitted).
Plaintiff's allegations that Potts was antagonistic with him and acted without considering his bipolar disorder in making decisions about his work detail are insufficient to state a claim for deliberate indifference to serious medical needs. Plaintiff has failed to allege he had a serious medical need to which Potts was indifferent. See, e.g., Cunningham v. S. Health Partners, C/A No. 6:18-1381-JMC-KFM, 2019 WL 1748610, at *3 (D.S.C. Mar. 19, 2019) (“To establish a deliberate indifference to medical needs claim under Section 1983 against nonmedical supervisory prison personnel, the plaintiff must prove (1) the supervisory defendants failed promptly to provide an inmate with needed medical care, (2) that the supervisory defendants deliberately interfered with the prison doctors' performance, or (3) that the supervisory defendants tacitly authorized or were indifferent to the prison physicians' constitutional violations.”) (citing Miltier, 896 F.2d at 854), report and recommendation adopted, C/A No. 6:18-01381-JMC, 2019 WL 1746628 (D.S.C. Apr. 17, 2019).
The court rejects Plaintiff's argument that his constitutional rights were violated for Potts' failure to adhere to the care plan developed for Plaintiff prior to his incarceration, particularly where the plan at issue was created for Plaintiff to “[r]ecognize your warning signs and use your coping skills to keep yourself safe and health, ” and was not medical direction to others. [See ECF No. 23 at 13, ECF No. 1-1 at 30].
Accordingly, the undersigned recommends granting Defendants' motion to dismiss as to Plaintiff's Eight Amendment claim.
Given the recommendation above, it is unnecessary to address Defendants' arguments that Plaintiff failed to exhaust his administrative remedies regarding his Eighth Amendment claim or that qualified immunity is appropriate.
c. Claims Against Potts in his Official Capacity
Additionally, Plaintiff's claims against Potts in his official capacity fail, to the extent he makes such claims. Plaintiff's claims for monetary damages because of constitutional wrongdoing by federal agents fall under Bivens, 403 U.S. at 397. A Bivens action is a judicially-created damages remedy designed to vindicate violations of constitutional rights by federal actors. See Id. at 395-97. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Thus, a Bivens action will not lie against either federal agencies or officials in their official capacity. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (citing F.D.I.C. v. Meyer, 510 U.S. 471, 486 (1994)).
Plaintiff argues that because he failed to receive a response from his disability discrimination complaint, he is authorized to “bring the Rehabilitation Act disability discrimination claim before this court against Defendant Potts in his official capacity.” [ECF No. 23 at 4]. However, Plaintiff cannot bring a claim against Potts in his official capacity pursuant to either Bivens or the Rehabilitation Act. See, e.g., Arthur v. Hawks, C/A No. 8:20-01063-HMH-JDA, 2021 WL 1147046, at *4 n.4 (D.S.C. Mar. 2, 2021 (“Bivens claims for damages are not actionable against the United States, federal agencies, or public officials acting in their official capacities . . . . The same is true of actions under the Rehabilitation Act.”), report and recommendation adopted, C/A No. 8:20-1063-HMH-JDA, 2021 WL 1140244 (D.S.C. Mar. 24, 2021).
Accordingly, the undersigned recommends dismissal of Plaintiff's claims against Potts in his official capacity.
2. FTCA Claims
The FTCA provides a limited waiver of the Government's sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). However, the FTCA further provides that “[n]o person convicted of a felony who is incarcerated . . . may bring a civil action against the United States . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of title 18).” 28 U.S.C. § 1346(b)(2).
Here, Plaintiff asserts negligence under the FTCA because Potts caused him to be removed from his work assignment and to lose his apprenticeship and experience in the food services department. He also states that Potts conspired with another staff member to have Plaintiff removed as a food service worker.
Defendants argue, and Plaintiff concedes, that he has failed to allege that he suffered a physical injury or that a sexual act occurred. See, e.g., Gaither v. United States, C/A No. 6:11-1051-RMG-KFM, 2011 WL 2313039, at *2 (D.S.C. May 19, 2011) (“his [FTCA] negligence claim should be dismissed because Plaintiff has failed to allege physical injuries resulting from the purported classification error”), report and recommendation adopted, C/A No. 6:11-1051-RMG, 2011 WL 2293892 (D.S.C. June 9, 2011); Ajaj v. United States, 479 F.Supp.2d 501, 550 n.22 (D.S.C. 2007) (finding that the plaintiff's placement in the special housing unit, standing alone, was not an injury as required to support a claim under the FTCA); Dorsey v. United States, C/A No. 5:19-0050-RMG, 2020 WL 614240, at *2 (D.S.C. Feb. 10, 2020) (“Nor are Plaintiff's allegations of aggravated blood pressure or diabetes and emotional distress or depression sufficient ‘physical injury' to sustain a claim for violation of the FTCA”), aff'd, 818 Fed.Appx. 243 (4th Cir. 2020); Harriot v. United States, C/A No. 1:19-2963-JFA-SVH, 2020 WL 1899495, at *3 (D.S.C. Apr. 17, 2020) (“the Magistrate Judge properly concluded that Plaintiff may not pursue [FTCA] claims based solely on his contention that Defendants' actions caused him ‘humiliation, embarrassment, and emotional distress.'”).
Although Plaintiff argues he is not required to assert a physical injury to support a FTCA claim, he stated the injury he does assert is “lost . . . work experience that can easily be converted to loss of future earned income.” [ECF No. 23 at 15].
Accordingly, the undersigned recommends the district judge grant Defendants' motion to dismiss Plaintiffs FTCA claims.
Given the recommendation above, it is unnecessary to address Defendant's additional argument that Plaintiffs FTCA claim must be dismissed for no corresponding duty under state law.
III. Conclusion
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion to dismiss. [ECF No. 20].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).