Opinion
C/A 1:21-1300-HMH-SVH
03-15-2022
Jeriton Lavar Curry, # 32815-058, Plaintiff, v. J. Olberding, SIS Officer, and Officer Hardison, SHU Staff, Defendants.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges, United States Magistrate Judge
Jeriton Lavar Curry (“Plaintiff”), proceeding pro se, filed this action alleging violation of his rights while an inmate at the Federal Correctional Institution in Williamsburg, South Carolina (“FCI-Williamsburg”), 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) against FCI-Williamsburg staff members J. Olberding (“Olberding”) and Officer Hardison (“Hardison”) (collectively “Defendants”).
Plaintiff has been transferred and is currently incarcerated at the United States Penitentiary, Coleman I, in Coleman, Florida.
This case is before the court on Defendants' motion to dismiss, or in the alternative, motion for summary judgment, brought pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 56. 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. 54]. The motion having been fully briefed [see ECF Nos. 56, 57, 58], it is ripe for disposition. Also before the court is Plaintiff's motion to appoint counsel and to supplement his filings. [ECF No. 56, 57].
Pursuant to 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 denies Plaintiff's motion to appoint counsel, grants his motion to supplement, and recommends the district judge grant Defendants' motion.
I. Factual Background
Plaintiff states his rights “pursuant to the First, Fourth, Fifth, and Eighth Amendments were violated by staff and FCI Williamsburg.” [ECF No. 58 at 1]. In his unverified amended complaint, Plaintiff alleges that on December 26, 2019, Olberding “visually searched [him] in open view of other inmates.” [ECF No. 16 at 5]. Plaintiff reported the conduct and claims Olberding retaliated against him on December 5, 2020, by charging him with possession of PCP, causing him to be placed in the Special Housing Unit (“SHU”). Id. at 5-6. The parties agree the charges against Plaintiff were thereafter expunged. [See ECF No. 1 at 13, ECF No. 53-4].
In this Circuit, verified complaints by pro se prisoners are to be considered as affidavits when the allegations contained therein are based on personal knowledge. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). However, neither Plaintiff's complaint, nor amended complaint is verified. [See ECF Nos. 1, 16]. Plaintiff has, however, submitted a declaration under penalty of perjury, incorporated above. [See ECF No. 57 at 20-21]. Plaintiff's allegations as found in his complaints are also incorporated above for the sake of completeness.
Plaintiff has declared under penalty of perjury as follows:
[O]n December 26, 2019, Officer J. Olberding conducted an unlawful visual strip search in front of several inmates, in open view to the entire FCI Williamsburg's 2-B-Lower Unit . . . . Officer Olberding did retaliate December 5, 2020, by conducting another visual strip-search, and cell search, and fabricated false disciplinary reports claiming that he found PCP in Plaintiff's cell, before locking him up in Special Housing Unit for 51 days.[ECF No. 57 at 20].
On December 7, 2020, Plaintiff claims Hardison forced him to accept a SHU cell with an inmate who had coronavirus. [ECF No. 16 at 5]. Plaintiff has declared under penalty of perjury as follows:
Officer A. Hardison forced Plaintiff into the SHU cell on or about 12-07-2020 with Inmate Rodney Lucas . . . . who informed both parties that he was sick with COVID-19 and needed to be isolated. Plaintiff objected to the cell assignment but was forced by threats from Officer A. Hardison to accept the cell or face sanctions of hard cell assignment and further incident reports.[ECF No. 57 at 20-21].
Plaintiff alleges he then contracted coronavirus on January 8, 2021. [ECF No. 1 at 14, ECF No. 16 at 6]. After testing positive for coronavirus, Plaintiff was moved to isolation, and communicated with the prisoner assigned to the cell across from him, William Sean Dahl (“Dahl”). [ECF No. 1 at 14]. Plaintiff states Dahl died without being provided medical care, and Plaintiff suffers “emotional and mental distress from witnessing [his] plea[]s for help before he died while asking for medical attention.” [ECF No. 16 at 6]. Plaintiff alleges that after he complained about Dahl's situation, he was retaliated against because his mail was censored, intercepted, and delayed, his efforts to employ the administrative remedy process were interfered with or ignored, he was denied medical treatment, and he was unlawfully confined, including unlawfully being transferred to a different facility. [See ECF No. 1 at 4-5, ECF No. 57 at 11, 13-14, ECF No. 58 at 3].
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 that 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. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in his favor. 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.
C. 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.
Plaintiff argues he brings claims pursuant to both 42 U.S.C. § 1983 and Bivens and provides case law and argument applicable to 42 U.S.C. § 1983 claims. However, “§ 1983 does not provide a cause of action against federal officials, and there is no analogous statute imposing damages liability on federal officials.” Tun-Cos v. Perrotte, 922 F.3d 514, 520 (4th Cir. 2019).
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. Thereafter, the Court has consistently declined to expand the limited remedy. See Hernandez v. Mesa, 140 S.Ct. 735, 741, 743 (2020) (“After those decisions [Bivens, Davis, and Carlson], however, the Court changed course . . . . for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.”).
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. First Amendment Claims
Plaintiff alleges Olberding retaliated against him for reporting Olberding's improper search of Plaintiff by falsely charging him with PCP possession. Plaintiff further alleges he was retaliated against by unknown persons after reporting the circumstances of Dahl's death, including that Plaintiff's mail and pursuit of administrative remedies was interfered with and that he was denied medical treatment and unlawfully confined. Plaintiff also alleges the retaliation he has experienced continues, with prison officials violating his right to access the court and the grievance process.
Prior to Ziglar, the Supreme Court in Reichle v. Howards noted “[w]e have never held that Bivens extends to First Amendment claims.” 566 U.S. 658, 663 n.4 (2012). In Bush v. Lucas, the Supreme Court refused to extend Bivens to a First Amendment free speech and retaliatory demotion claim by a federal employee against the employee's supervisor on the ground that “Congress is in a better position to decide whether or not the public interest would be served by creating' a new substantive legal damages remedy in the action's specific First Amendment context.” 462 U.S. 367, 387-90 (1983).
The Fourth Circuit's opinion in Earle v. Shreves, 990 F.3d 774, 776 (4th Cir.), cert. denied, 142 S.Ct. 358 (2021) is instructive. The Fourth Circuit determined, pursuant to Ziglar, Bivens may not be extended “to include a federal inmate's claim that prison officials violated his First Amendment rights by retaliating against him for filing grievances, ” finding the case presented a new Bivens context where “[t]he Supreme Court has never recognized a First Amendment based Bivens remedy in any context, ” and special factors counseled hesitation in implying a cause of action. Id. at 779.
As stated by the Fourth Circuit:
In this case, we believe there are several special factors that counsel hesitation. First, even without a Bivens cause of action, Earle is not completely without remedy. Like all federal inmates, Earle has “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP's Administrative Remedy Program.” While these alternate remedies do not permit an award of money damages, they nonetheless offer the possibility of meaningful relief and therefore remain relevant to our analysis.
Moreover, Earle's claim that he was placed in the SHU in retaliation for his grievance raises serious questions relating “to the reasoning, manner, and extent of prison discipline.” “Whether to place an inmate in more restrictive detention involves realtime and often difficult judgment calls about disciplining
inmates, maintaining order, and promoting prison officials' safety and security” . . . . Given the ease with which an inmate could manufacture a claim of retaliatory detention, allowing a Bivens action for such claims could lead to an intolerable level of judicial intrusion into an issue best left to correctional experts.
In sum, the recognition of a Bivens remedy in this case would work a significant intrusion into an area of prison management that demands quick response and flexibility, and it could expose prison officials to an influx of manufactured claims. And while the absence of a Bivens remedy forecloses any claims for monetary compensation, there are nonetheless other avenues available to inmates that offer the possibility of meaningful remedial relief for claims of retaliatory discipline. Under these circumstances, we believe that Congress, not the Judiciary, is in the best position to “weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 137 S.Ct. at 1858.Id. at 780-81 (citations omitted); see also, e.g., Williams v. Lynch, C/A No. 1:16-3043-DCC, 2018 WL 4140667, at *2, 4 (D.S.C. Aug. 30, 2018) (finding new Bivens context for prisoners claims brought pursuant to the First, Fifth, and Eighth Amendments including allegations of retaliation, denial of access to courts, and unconstitutional conditions of confinement and that special factors counseled hesitation in implying a cause of action, including the prisoner's alternative remedies including the BOP administrative grievance process and the Federal Tort Claims Act [(“FTCA”)], as well as Congress's “action in this area in light of the Prison Litigation Reform Act” [(“PLRA”)])), on reconsideration in part sub nom. Williams v. Bennett, C/A No. 1:16-3043-DCC, 2019 WL 1614829 (D.S.C. Apr. 16, 2019); Powers v. Mosley, C/A No. 2:18-02227-HMH-MGB, 2019 WL 2619908, at *8 (D.S.C. Apr. 2, 2019) (collecting cases and finding the prisoner's First Amendment claims present a new Bivens context and that special factors counsel hesitation before implying a new remedy), report and recommendation adopted sub nom. Powers v. United States, C/A No. 2:18-2227-HMH-MGB, 2019 WL 2223385 (D.S.C. May 23, 2019).
As in the cases cited above, Plaintiff's First Amendment claims present a new Bivens context and special factors counsel hesitation in implying a remedy, including Plaintiff's access to the BOP administrative remedy process and Congress's action in passing the PLRA. See Ziglar, 137 S.Ct. at 1865 (“legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation”). As stated by the Supreme Court:
Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act's exhaustion provisions would apply to Bivens suits. But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.Id. (citations omitted).
Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's First Amendment claims, declining to imply a Bivens remedy.
To the extent that Plaintiff seeks injunctive relief [see ECF No. 58 at 9 (“Based on the unlawful transfer, Plaintiff is asking for injunctive relief, to be transferred back, closer to home . . . .”)], a Bivens suit can be brought against federal officers for injunctive relief. See, e.g., Gardner v. Janson, C/A No. 5:19-2616-CMC, 2021 WL 4472800, at *2 (D.S.C. Sept. 30, 2021). However, in a Bivens action, 18 U.S.C. § 3621(b) governs, and “courts applying § 3621(b) consistently find that they are without jurisdiction to review and order the transfer of an inmate to a particular prison.” Jones, 2021 WL 3572926, at *5.
b. Fourth Amendment Claims
Plaintiff alleges Olberding improperly conducted a search on him in front of witnesses violating his Fourth Amendment right to be free from unreasonable search and seizure.
This court has addressed a factually-similar situation to Plaintiff's, as found in Jones v. Antonelli, C/A No. 6:19-3036-MBS-KFM, 2020 WL 6292486, at *1 (D.S.C. Jan. 15, 2020), report and recommendation adopted, C/A No. 6:19-03036-MBS, 2020 WL 5557841 (D.S.C. Sept. 17, 2020). In Jones, the plaintiff alleged he was sexually harassed at FCI-Williamsburg when a corrections officer “required him to submit to a visual search of his rectum” on two occasions. 2020 WL 6292486, at *1. The plaintiff alleges after he complained, the corrections officer retaliated against him by submitted a false disciplinary report, which resulted in Plaintiff being sent to SHU. The plaintiff alleged he was then transferred to another facility as retaliation for reporting the improper conduct surrounding the incidents.
In Bivens, the Supreme Court recognized an implied private action for damages against FBI agents alleged to have violated a plaintiff's Fourth Amendment rights from unreasonable search and seizure when the agents handcuffed the plaintiff in his own home without a warrant. Bivens, 403 U.S. at 389. The court in Jones found the situation before it meaningfully different than that found in Bivens:
The instant matter, however, involves the search of a convicted prisoner within the BOP (housed at FCI Williamsburg) for contraband. As such, the plaintiff's claim arises out of a routine search for contraband after prison visitation, not an unpredicated warrantless search of his person. Importantly, the search took place in a BOP facility by a corrections officer, not a visiting narcotics agent, and the court has emphasized on multiple occasions that a “detention facility is a unique place fraught with serious security dangers, ” requiring that an inmate's privacy interests be balanced against the “security interests of the institution.” Bell v. Wolfish, 441 U.S. 520, 559-60 (1979). As such, the plaintiff's Fourth Amendment claim herein is meaningfully different from the claim presented in Bivens; thus, it presents a new Bivens context . . . .2020 WL 6292486, at *3; see also Smith v. Kane, C/A No. 17-02472-PHX-SPL-DMF, 2018 WL 11016957, at *3 (D. Ariz. June 25, 2018) (holding a prisoner's claim that he was subjected to a visual strip search by a correction officer arose in a new context where the Supreme Court has held in Ziglar that similar allegations arose in a new context from Bivens, Davis, and Carlson).
Plaintiff's Fourth Amendment claims present a new Bivens context and, as discussed above, special factors counsel hesitation in implying a remedy. Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's Fourth Amendment claims, declining to imply a Bivens remedy.
c. Fifth Amendment Claims
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. Any due process claim, for example regarding the prison administrative disciplinary process [see, e.g., ECF No. 53-4 at 2], or equal protection claim Plaintiff may bring involves a different context than found in Davis.
The weight of authority counsels this conclusion. 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); A lah v. Fredericks, C/A No. 9:19-411-BHH-MHC, 2020 WL 7406916, at *5 (D.S.C. Oct. 27, 2020), (“Plaintiff alleges a Fifth Amendment Due Process Clause violation related to the scoring of his custody points in federal prison. Further, there are meaningful differences between the type of federal officers involved and the legal mandate under which the officers were operating in Davis. The undersigned thus finds that Plaintiff's Fifth Amendment claim also presents a new Bivens context.”), report and recommendation adopted, C/A No. 9:19-411-BHH, 2020 WL 7398659 (D.S.C. Dec. 17, 2020); Tun-Cos, 922 F.3d at 525 (“the plaintiffs' Fifth Amendment claims have no analogue in the Supreme Court's prior Bivens cases”); see also Cantu v. Moody, 933 F.3d 414, 422 (5th Cir. 2019) (“No one thinks Davis-which permitted a congressional employee to sue for unlawful termination in violation of the Due Process Clause- means the entirety of the Fifth Amendment's Due Process Clause is fair game in a Bivens action.”).
Plaintiff's Fifth Amendment claims present a new Bivens context and, as discussed above, special factors counsel hesitation in implying a remedy. Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's Fifth Amendment claims, declining to imply a Bivens remedy.
d. Eighth Amendment Claim
As stated, the Supreme Court has 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 violation of his Eighth Amendment rights.
A plaintiff's Eighth Amendment rights are violated when a plaintiff shows 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 initially states that he is not asserting claims for deliberate indifference to his medical needs against Defendants. [ECF No. 56 at 14]. However, in a later filing, Plaintiff argues:
On December 7, 2020 . . . Hardison . . . escort[ed] Plaintiff to a cell, in which the occupant of the call, ‘clearly,' informed the SHU Officer, A. Hardison that he needed to be isolated due to him being positive with coronavirus. At which time the Plaintiff ‘clearly' stated that he didn't want to be put into the cell with the occupant of the cell because he suffered risk factors described by the CDC department, such as Type 2 diabetes, high blood pressure, hypertension, and morbid obesity, all of which can cause death . . . .[ECF No. 57 at 1-2; see also Id. at 3 (“Inmate . . . informed the SHU office that he was sick and need to be isolated, due to coronavirus”)].
Defendants argue that Plaintiff's Eighth Amendment claim lacks specificity, and the undersigned agrees. Although Plaintiff alleges he eventually contracted COVID-19, it is unknown if the cellmate was symptomatic, if the cellmate had received a positive test for COVID-19, if Hardison was aware of the cellmate's positive test, or if any medical care provider had ordered the cellmate to isolate. 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); Ha linan v. Scarantino, 466 F.Supp.3d 587, 606 (E.D. N.C. 2020) (“The fact that respondents' response may prove inadequate to prevent the spread of COVID-19 does not establish they were deliberately indifferent.”); Williams v. Duncan, C/A No. 9:20-03690-HHM-MHC, 2021 WL 2926257, at *3 (D.S.C. June 15, 2021), (“Here, there is no indication that any of the named Defendants are medical providers, and Plaintiff has not alleged that any of the Defendants, including Defendant Duncan, personally failed to provide needed medical treatment. Further, although Plaintiff states that he contracted COVID-19, he has not alleged that he suffered a serious or life-threatening injury to which any of the Defendants were deliberately indifferent.”), report and recommendation adopted, C/A No. 9:20-03690-HMH-MHC, 2021 WL 2915005 (D.S.C. July 12, 2021).
Plaintiff additionally alleges claims concerning his “unlawful confinement” and placement in SHU and references his Eighth Amendment right to be free from cruel and unusual punishment. [See, e.g., ECF No. 58 at 13]. Here, too, Plaintiff has failed to state a claim. To state a claim that conditions of confinement violate constitutional requirements, “a plaintiff must show both (1) a serious deprivation of a basic human need; and (2) deliberate indifference to prison conditions on the part of prison officials.” Strickler v. Waters, 989 F.2d 1375, 1379 (4th Cir. 1993). To demonstrate that the conditions deprived him of a basic human need, a plaintiff must allege that officials failed to provide him with humane conditions of confinement, such as “adequate food, clothing, shelter, and medical care, and [taking] reasonable measures to guarantee the safety of the inmates.” Farmer, 511 U.S. at 832. As to the second prong, a prison official is deliberately indifferent if he has actual knowledge of a substantial risk of harm to a prisoner and disregards that substantial risk. Id. at 847; see also Parrish v. Cleveland, 372 F.3d 294, 302 (4th Cir. 2004) (stating the standard of deliberate indifference requires actual knowledge and disregard of a substantial risk of serious injury).
Plaintiff's allegations are insufficient to implicate the Eighth Amendment. See, e.g., Alcala v. Edgefield Fed. Prison, C/A No. 0:10-2727-HMH-PJG, 2011 WL 2746253, at *4 (D.S.C. July 13, 2011) (“Alcala next alleges that his confinement in the SHU violated the Eighth Amendment's prohibition of cruel and unusual punishment . . . . Alcala has failed to allege any facts demonstrating that he was deprived of a basic human need. Significantly, Alcala does not allege any physical or emotional injury whatsoever . . . . Such deprivations, however, do not amount to extreme deprivations of basic human needs sufficient to give rise to an Eight Amendment violation. Alcala's Eighth Amendment claim, therefore, lacks facial plausibility and must be dismissed.”); Est. of Riopedre v. United States, C/A No. 8:12-2806-BHH, 2015 WL 505584, at *12 (D.S.C. Feb. 6, 2015) (“To the extent that Plaintiffs argue Riopedre's Eighth Amendment rights were violated by his placement in the SHU, this claim should fail. There is no constitutional right for a prisoner to be housed in a particular institution, at a certain custody level, or in a certain unit.”) (citing McKune v. Lile, 536 U.S. 24, 39 (2002) (“[i]t is well settled that the decision where to house inmates is at the core of prison administrators' expertise.”)); Curry v. Fed. Bureau of Prisons/Fed. Corr. Inst. Williamsburg, C/A No. 1:21-1300-HMH-SVH, 2021 WL 1816902, at *3 (D.S.C. May 5, 2021) (“Plaintiff's allegation that prison staff was negligent in placing him in a cell with another inmate who was exhibiting symptoms of COVID-19 is insufficient to support a cause of action under the Eighth Amendment.”); Wright v. Rich, 836 Fed.Appx. 179, 180 (4th Cir. 2021) (“Even if we consider Wright's challenge to prison strip searches as arising under the Eighth Amendment, rather than the Fourth Amendment, he failed to state a claim upon which relief could be granted.”).
Plaintiff has failed to state a claim for violation of this Eighth Amendment rights. Accordingly, the undersigned recommends the district judge grant Defendants' motion as to Plaintiff's Eighth Amendment claims.
Given the recommendation above, it is unnecessary to address Defendants' arguments (1) that Plaintiff failed to exhaust his administrative remedies, particularly where Plaintiff repeatedly argues his access to administrative remedies has been limited, (2) that qualified immunity is appropriate, or (3) that Plaintiff cannot recover for emotional or psychological damages without a showing of physical injury.
e. Claims Against Defendants in their Official Capacity
Additionally, Plaintiff's claims against Defendants in their official capacities 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)).
Accordingly, the undersigned recommends dismissal of Plaintiff's claims against Defendants in their official capacities.
2. Additional Matters
Defendants additionally argue that a violation of BOP policy or Prison Rape Elimination Act (“PREA”) does not present a cognizable Bivens claim and that Plaintiff has no constitutional right to be free from false disciplinary reports.
To the extent Plaintiff brings any such claims [see ECF No. 56 at 14, ECF No. 57 at 17-18, ECF No. 58 at 19-20], the undersigned recommends the district judge dismiss them for failure to state a claim. See, e.g., Perez-Perez v. Ray, C/A No. 9:16-3574-CMC-BM, 2017 WL 1164932, at *5 (D.S.C. Mar. 2, 2017) (“any allegations that BOP employees are not following BOP policies or procedures, standing alone, also do not amount to constitutional violations report and recommendation adopted”), C/A No. 9:16-3574-CMC-BM, 2017 WL 1135220 (D.S.C. Mar. 27, 2017), aff'd, 696 Fed.Appx. 104 (4th Cir. 2017); Cox v. Nobles, 15 F.4th 1350, 1361 (11th Cir. 2021) (“we consider Cox's argument that a violation of the PREA violates the Eighth Amendment per se. This argument is without merit.”); Robinson v. Patterson, C/A No. 5:19-1197-JMC-KDW, 2019 WL 4307443, at *2 (D.S.C. May 30, 2019) (“Further, Plaintiff's claim against Sowell concerning false disciplinary charges fails to state a plausible constitutional claim as Plaintiff has indicated he received a hearing on any such charges. It is settled that the act of filing false disciplinary charges does not itself violate a prisoner's constitutional rights.”) (citations omitted), report and recommendation adopted, C/A No. 5:19-01197-JMC, 2019 WL 3162401 (D.S.C. July 16, 2019)
To the extent Plaintiff attempts to bring a stand-alone claim for a PREA violation, he has failed to submit any allegations in support.
Plaintiff additionally requests the court to appoint him counsel and to supplement his filings. As to his first request, no right to counsel exists in civil cases absent “exceptional circumstances.” Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984), abrogated in part on other grounds by Mallard v. U.S. Dist. Court, 490 U.S. 296 (1989). The existence of exceptional circumstances “hinges on [the] characteristics of the claim and the litigant.” Whisenant, 739 F.2d at 163. Plaintiff's filings indicate that he possesses the ability to proceed pro se, and he has failed to demonstrate that exceptional circumstances justify appointment of counsel. Accordingly, the court denies the motion to appoint counsel. As to Plaintiff's second request, as the undersigned has considered all of Plaintiff's filings, including his “supplement” [see ECF No. 58], Plaintiffs motion to supplement his filings is granted.
III. Conclusion
For the foregoing reasons, the undersigned denies Plaintiffs motion to appoint counsel [ECF No. 56], grants his motion to supplement [ECF No. 57], and recommends the district judge grant Defendants' motion to dismiss or, in that alternative, motion for summary judgment. [ECF No. 53].
IT IS SO ORDERED AND RECOMMENDED.
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).