Opinion
C/A No. 0:17-3489-HMH-PJG
09-20-2018
Julian Rex Hall, Plaintiff, v. United States of America, Rex Blocker, Defendants.
REPORT AND RECOMMENDATION
The plaintiff, Julian Rex Hall, a self-represented federal prisoner, filed this civil rights and federal tort action against the defendants. 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 defendants' motion to dismiss. (ECF No. 24.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Hall of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to the defendants' motion. (ECF No. 27.) Hall filed a response to the defendants' motion. (ECF No. 34.) Having reviewed the record presented and the applicable law, the court finds the defendants' motion should be granted.
BACKGROUND
Hall is a federal prisoner who filed his Complaint concerning events that occurred while he was housed in Federal Correctional Institution ("FCI") Edgefield in South Carolina. In his Complaint, Hall alleges that in July 2016, he sustained a head injury when he got out of his bunk bed, passed out, and fell to the floor. (Compl., ECF No. 1 at 5.) Hall alleges that this occurred due to his being prescribed blood pressure medications without proper monitoring. (Id. at 10-11.) Hall further alleges that, as a result of this incident, he suffers from vision loss, migraine headaches, and memory loss. (Id. at 8.) Hall seeks monetary damages. The court construed Hall's Complaint as purporting to raise a claim of deliberate indifference to medical needs in violation of the Eighth Amendment pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and a claim of medical malpractice pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, 1346(b). (ECF No. 11.)
DISCUSSION
A. Applicable Standards
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the 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).
To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court "may also consider documents attached to the complaint, see Fed. R. Civ. P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Also, 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, 551 U.S. 89, 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. Defendants' Motion to Dismiss
1. Bivens Claims
The defendants first argue that any claims Hall raises pursuant to Bivens should be dismissed, as Hall specifically checked the box on his Complaint form indicating that he is suing the defendants only in their official capacities. (Compl., ECF No. 2-3.) 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 federal officials in their individual capacities. Bivens v. Six Unkown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Based on Bivens, courts have recognized that neither federal agencies nor federal officials in their official capacities can be sued for monetary damages in a Bivens action. F.D.I.C. v. Meyer, 510 U.S. 471 (1994) (holding that a Bivens action cannot lie against a federal agency); Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (observing that "a Bivens action does not lie against either agencies or officials in their official capacity"); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) ("Any remedy under Bivens is against federal officials individually, not the federal government."). Thus, a Bivens action is only cognizable against federal officials in their personal or individual capacities.
In response to the defendants' motion, Hall argues that he is suing the defendants in both their individual and official capacities. (Pl.'s Resp. Opp'n Mot. Dismiss, ECF No. 34 at 1.) However, Hall is silent as to the defendants' additional argument that he failed to exhaust his administrative remedies with regard to any Bivens claim.
To bring a claim pursuant to Bivens, a prisoner must exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), specifically 42 U.S.C. § 1997e(a). Section 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." This requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Generally, to satisfy this requirement, a plaintiff must avail himself of every level of available administrative review. See Booth v. Churner, 532 U.S. 731 (2001); but see Ross v. Blake, 136 S. Ct. 1850 (2016) (describing limited circumstances where exhaustion may be excused). Those remedies neither need to meet federal standards, nor are they required to be plain, speedy, and effective. Porter, 534 U.S. at 524 (quoting Booth, 532 U.S. at 739). Satisfaction of the exhaustion requirement requires "using all steps that the agency holds out, and doing so properly." Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)). Thus, "it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion." Jones v. Bock, 549 U.S. 199, 218 (2007). The defendant has the burden of establishing that a plaintiff failed to exhaust his administrative remedies. See Custis v. Davis, 851 F.3d 358, 361 (4th Cir. 2017) (quoting Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)).
The BOP has a multi-tiered administrative grievance process. See 28 C.F.R. §§ 542.10, et seq. An inmate may first seek to informally resolve his complaint by filing Form BP-8, and if the matter cannot be resolved informally, the inmate must file a formal written "Administrative Remedy Request" (Form BP-9) within twenty calendar days following the date on which the basis for the complaint occurred. 28 C.F.R. §§ 542.13, 542.14(a). If the inmate is dissatisfied with the response, he may appeal the decision to the Regional Director within twenty calendar days of the date of the Warden's response by filing Form BP-10. 28 C.F.R. § 542.15. Finally, the inmate may appeal this decision to the General Counsel within thirty calendar days of the Regional Director's response by filing Form BP-11. Id. If during this process, the inmate does not receive a response from the Warden, Regional Director, or General Counsel within the allotted time frames, including extensions of time, the inmate may consider the absence of a response to be a denial and may then appeal to the next level. 28 C.F.R. § 542.18. "[A]n administrative remedy is not considered to have been available if a prisoner, through no fault of his own, was prevented from availing himself of it." Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008); see also Ross, 136 S. Ct. at 1860. However, "a prisoner does not exhaust all available remedies simply by failing to follow the required steps so that remedies that once were available to him no longer are." Moore, 517 F.3d at 725 (citing Woodford, 548 U.S. 81).
The defendants argue Hall has not properly exhausted his available administrative remedies regarding his Bivens claims. In support of their argument, the defendants attach to their motion the declaration of BOP legal assistant Amy Williams, who has access to BOP records and official databases that include inmate administrative remedies, and who declares that Hall failed to properly exhaust the BOP administrative remedy process with regard to any of the allegations in his Complaint. (Williams Decl. ¶¶ 1-2, 7, ECF No. 24-2 at 1, 3.) Hall does not respond to this argument. The court observes that Hall summarily alleges in his Complaint he was "informed that the institution 4-part administrative remedy program for inmates could not provide the resolution of the complaint." (Compl., ECF No. 1 at 16.) However, Hall's statement, which is not verified or declared under penalty of perjury, is insufficient to create a dispute of fact in determining whether the administrative remedy process was available to Hall, especially in light of Hall's lack of response to this argument in the defendants' motion. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (holding that under the PLRA, the burden is on the defendant to prove that there was an available administrative remedy that the prisoner did not use, and that the burden then "shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him"); see also Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011) ("Once a defendant proves that a plaintiff failed to exhaust, however, the onus falls on the plaintiff to show that remedies were unavailable to him as a result of intimidation by prison officials."). Accordingly, the defendants are entitled to dismissal of Hall's Bivens claims.
2. FTCA Claim
a. FTCA Generally
The FTCA provides for a limited waiver of the United States'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); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) ("The statute permits the United States to be held liable in tort in the same respect as a private person would be liable under the law of the place where the act occurred."). Thus, the proper defendant in an action pursuant to the FTCA is "the United States of America" because federal agencies and individual officials may not be sued under the FTCA. See 28 U.S.C. § 1346(b); F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994). Because the FTCA includes a limited waiver of the Government's immunity as a sovereign, the statute is to be strictly construed and its requirements strictly met. See Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005); see also Lane v. Pena, 518 U.S. 187, 192 (1996) (stating that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign"). The United States may be held liable only "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The court, when determining liability, must apply "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001) (holding that the FTCA "permits the United States to be held liable in tort in the same respect as a private person would be held liable under the law of the place where the act occurred"). Accordingly, because the events at issue occurred while Hall was housed at FCI Edgefield, the substantive law of South Carolina controls.
The defendants correctly argue that the court lacks subject matter jurisdiction to hear an FTCA claim against an individual defendant. To the extent Hall may be attempting to bring an FTCA claim against Defendant Blocker, it would have to be dismissed.
2. Exhaustion of Administrative Remedies, Timeliness, and Equitable Tolling
The defendants also argue that the court lacks subject matter jurisdiction over Hall's FTCA claim because he did not timely file his lawsuit in this court with respect to his claim. (See generally Defs.' Mot. Dismiss, ECF No. 24 at 13); 28 C.F.R. § 14.9(a) (stating that a plaintiff may file an FTCA suit in federal court only after the agency denies plaintiff's claim and plaintiff must do so within six months of the mailing of the denial); see also 28 U.S.C. § 2401 (stating that a tort claim against the United States "shall be forever barred" unless (1) the claim is presented to the "appropriate Federal agency within two years after such claim accrues," and (2) the claim is brought to Federal court "within six months" after the agency acts on the claim). However, the court observes that the untimeliness of Hall's Complaint would not divest the court of jurisdiction, and that Hall appears to argue for equitable tolling. See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015) (finding that the FTCA's filing deadline under § 2401(b) is not jurisdictional and allows for equitable tolling). The court need not resolve this dispute, however, because the defendants are entitled to dismissal on the ground discussed below.
As mentioned above, the only FTCA claim construed by the court as being raised by Hall was a claim for medical malpractice. (See Order, ECF No. 11.)
The defendants also argue that Hall's claim of medical malpractice should be dismissed, as Hall has failed to file an expert affidavit in support of his claim as required by South Carolina law. The court agrees.
South Carolina law requires a plaintiff to file an affidavit of an expert witness with his complaint when asserting a claim of professional negligence against a professional licensed or registered with the State of South Carolina. S.C. Code Ann. § 15-36-100(B); Martasin v. Hilton Head Health Sys. L.P., 613 S.E.2d 795, 799 (S.C. Ct. App. 2005); Jernigan v. King, 440 S.E.2d 379, 381 (S.C. Ct. App. 1993). This mandatory prerequisite likewise applies to FTCA medical malpractice claims against the United States. See Smith v. Meeks, C/A No. 1:15-2572-BHH-SVH, 2016 WL 4491634, at *6-7 (D.S.C. July 28, 2016), adopted by 2016 WL 4478684 (D.S.C. Aug. 25, 2016). It is undisputed that Hall has failed to file an expert affidavit with his Complaint, or present any expert affidavit whatsoever, and therefore he cannot proceed with a claim of medical malpractice under the FTCA against the defendants. See Prozer v. United States, C/A No. 9:14-1249-TMC, 2014 WL 6686697, at *2 (D.S.C. Nov. 25, 2014) (holding that the failure to file an expert affidavit subjects the complaint to dismissal, and that such a requirement is part of the substantive law of medical malpractice in South Carolina); Chappie v. United States, No. 8:13-1790-RMG, 2014 WL 3615384, at *1 (D.S.C. July 21, 2014) (holding that the defendant was entitled to summary judgment on plaintiff's FTCA medical negligence claim when the plaintiff had not complied with South Carolina's expert affidavit requirement); see also Millmine v. Harris, C/A No. 3:10-1595-CMC, 2011 WL 317643 (D.S.C. Jan. 31, 2011) (holding that, in considering a state law claim for medical malpractice under this court's supplemental jurisdiction, the pre-suit notice and expert affidavit requirements in S.C. Code Ann. §§ 15-36-100 and 15-79-125 are the substantive law in South Carolina). For this reason, Hall's FTCA claim for medical malpractice should be dismissed.
Hall relies on the "common knowledge" exception to the expert affidavit requirement, which applies where the claim "is of common knowledge or experience so that no special learning is needed to evaluate the defendant's conduct." Brouwer v. Sisters of Charity Providence Hosps., 763 S.E.2d 200, 203-04 (S.C. 2014) (quoting Carver v. Med. Soc'y of S.C., 334 S.E.2d 125, 127 (S.C. Ct. App. 1985)). This occurs where "the defendant's [alleged] careless acts are quite obvious, [such that] the plaintiff need not present expert testimony to establish the standard of care." Id. at 204. The "common knowledge" exception does not apply here, however, as the gravamen of Hall's claim is that the possible side effects of his prescribed medication were not properly monitored by medical personnel. (See Compl., ECF No. 1 at 10) ("[A]ll that is at issue is how [Hall's] blood pressure was monitored and treated after the initial dosage period leading-up to the injury."). Thus, Hall would need to present "expert testimony to establish the standard of care" for such a claim. Brouwer, 763 S.E.2d at 203-04.
RECOMMENDATION
Accordingly, the court recommends that this action be dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE September 20, 2018
Columbia, South Carolina
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).