Opinion
8:20-cv-03713-BHH-JDA
07-12-2020
David Harley, Plaintiff, v. Ms. Nanette Barnes, Warden; John Doe, Mailroom Employee;[1] Naomi Perez, Supervisor Mailroom; Mr. J. Bullard, Correctional Systems Officer, Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion to dismiss or, in the alternative, for summary judgment filed by Defendants and on a motion by Plaintiff to amend his Complaint. [Docs. 42; 56.] Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2), D.S.C., this magistrate judge is authorized to review all pretrial matters in this case and to submit findings and recommendations to the District Court.
Plaintiff filed this action pro se on October 17, 2020, by submitting a hand-written complaint asserting claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), along with supporting documents. [Docs. 1; 1-1.] Plaintiff subsequently submitted a complaint on the Court's form [Doc. 1-3] and supporting documents [Docs. 1-4; 1-7; 1-8]. On April 5, 2021, Defendants filed their motion to dismiss or, in the alternative, for summary judgment (“Defendant's motion”). [Doc. 42.] The same day, the Court issued an Order in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment/dismissal procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 43.] On May 26, 2021, the Clerk docketed from Plaintiff a response in opposition to Defendant's motion [Doc. 55], and the Clerk subsequently docketed two supplements from Plaintiff to his response [Docs. 58; 63.] On May 26, 2021, the Clerk also docketed a motion from Plaintiff to amend his Complaint. [Doc. 56.] On June 7, 2021, Defendants filed a response opposing Plaintiff's motion to amend [Doc. 60], and the Clerk docketed a reply from Plaintiff on June 21, 2021 [Doc. 67]. Accordingly, both motions are ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, construing the filing date in the light most favorable to Plaintiff, this action was filed on October 17, 2020. [Doc. 1-1 at 3 (affidavit signed by Plaintiff on October 17, 2020).]
The Court construes Plaintiff's original filing, the complaint on the Court's form, and the supporting documents as the Complaint in this case.
The facts included in this Background section are taken directly from the Complaint.
Plaintiff is an inmate in the custody of the Federal Bureau of Prisons (“BOP”) and is currently incarcerated at the Bennettsville Federal Correctional Institution. [Doc. 1-3 at 2.] In September 2020, Plaintiff handed Mrs. Tilman, a secretary, a BP-199 form for the amount of $53.75 to purchase a book titled, “Beat the Feds in Court.” [Doc. 1 at 2.] On September 28 or 29, 2020, the prison mailroom employees refused to accept the book. [Id.; Doc. 1-3 at 5.] Plaintiff spoke with Mrs. Dumas, another secretary, who telephoned mailroom employees on October 6, 2020, regarding their refusal of the book. [Doc. 1 at 2.] Mrs. Dumas informed Plaintiff that the mailroom employees stated the book never arrived at the institution and that the local post office refused the book due to inaccuracies with Plaintiff's name and inmate i.d. number. [Id.] Plaintiff also ordered a book from Amazon titled, “The Guide to the Federal Tort Claims Act, ” and the mailroom staff rejected it as well. [Id. at 3]
Plaintiff asserts that the mailroom employees violated prison policy, his Fifth Amendment due process rights, and his First Amendment rights by refusing to deliver the books to Plaintiff. [Id. at 2-3; Doc. 1-3 at 4.]
Plaintiff contends that he has not been able to exhaust his administrative remedies regarding the claims because a staff member informed him “that a ‘Lie[u]tenant'” instructed the staff member to relay to Plaintiff that if he continued to file administrative remedies he was going to be placed in the SHU with an inmate who would stab him. [Docs. 1 at 5-6; 1-3 at 8.]
Plaintiff names Defendants in both their individual and official capacities, and he seeks money damages in the amount of $7,500 as well as injunctive relief. [Docs. 1 at 4, 10; 1-3 at 2-3, 6.]
APPLICABLE LAW
Liberal Construction of Pro Se Complaint
Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, a pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means that only if the court can reasonably read the pleadings to state a valid claim on which the complainant could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the complainant's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Requirements for a Cause of Action Under Bivens
In Bivens, the Supreme Court established a direct cause of action under the Constitution of the United States against federal officials for violation of federal constitutional rights. 403 U.S. at 389. A Bivens claim is analogous to a claim under 42 U.S.C. § 1983; federal officials cannot be sued under § 1983, however, because they do not act under color of state law. Harlow v. Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law involving § 1983 claims is applicable in Bivens actions and vice versa. See Farmer v. Brennan, 511 U.S. 825 (1994); Mitchell v. Forsyth, 511 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988). To establish a claim under Bivens, a plaintiff must prove two elements: (1) the defendant deprived the plaintiff of a right secured by the Constitution and laws of the United States and (2) the defendant did so under color of federal law. See Mentavlos v. Anderson, 249 F.3d 301, 310 (4th Cir. 2001) (citation and internal quotation marks omitted) (setting forth requirements for a § 1983 claim under color of state law); see also Bivens, 403 U.S. at 389 (“In [a previous case], we reserved the question whether violation of [the Constitution] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Today we hold that it does.”).
Motion to Dismiss Standard
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a claim should be dismissed if it fails to state a claim upon which relief can be granted. When considering a motion to dismiss, the court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is
entitled to relief, ” in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
550 U.S. 544, 555 (2007) (footnote and citations omitted); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 235-36 (3d ed. 2004) (“[T]he pleading must contain something more . . . than a bare averment that the pleader wants compensation and is entitled to it or a statement of facts that merely creates a suspicion that the pleader might have a legally cognizable right of action.”).
“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) (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 556). The plausibility standard reflects the threshold requirement of Rule 8(a)(2)-the pleader must plead sufficient facts to show he is entitled to relief, not merely facts consistent with the defendant's liability. Twombly, 550 U.S. at 557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of “entitlement to relief.”'” (quoting Twombly, 550 U.S. at 557)). Accordingly, the plausibility standard requires a plaintiff to articulate facts that, when accepted as true, demonstrate that the plaintiff has stated a claim that makes it plausible the plaintiff is entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved 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 judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only 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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
DISCUSSION
Policy Violations
Defendants argue that they are entitled to dismissal of Plaintiff's claims to the extent they allege mere violation of BOP policies. [Doc. 42 at 26-27.] The Court agrees.
“[A]llegations that BOP employees did not follow BOP policies or procedures, standing alone, . . . do not amount to constitutional violations.” Perez-Perez v. Floyd, No. CV 9:19-1984-CMC-BM, 2019 WL 7944417, at *3 (D.S.C. Dec. 4, 2019), Report and Recommendation adopted by 2020 WL 58286 (D.S.C. Jan. 6, 2020). Accordingly, the Court recommends that the Court dismiss Plaintiff's claims to the extent he alleges mere failure to follow BOP policies or procedures.
Claims for Damages for Constitutional Violations
Defendants argue that Plaintiff's claims for monetary damages based on allegations that his constitutional rights have been violated should be dismissed because those claims are not actionable under Bivens. [Doc. 42 at 13-23.] The Court agrees.
The Supreme Court has emphasized the limited circumstances under which an individual may bring an implied cause of action under Bivens against a federal official. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857-58 (2017). In Bivens, the Court authorized damages for individuals injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. 403 U.S. at 389. Since Bivens, the Court has recognized implied causes of action in two additional situations. In Davis v. Passman, the Court authorized damages for a federal employee for gender discrimination in violation of the Fifth Amendment's Due Process Clause. 442 U.S. 228 (1979). And, in Carlson v. Green, the Court authorized damages for the violation of a prisoner's Eighth Amendment right to adequate medical care. 446 U.S. 14 (1980). ?These three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” Ziglar, 137 S.Ct. at 1855. The Ziglar Court clarified that any expansion of Bivens outside of these three cases “is now a ‘disfavored' judicial activity.” Id. at 1857.
Thus, the Ziglar Court set forth a rigorous test for determining whether a cognizable Bivens remedy exists with respect to an alleged constitutional violation by a federal actor. First, a court must determine whether the plaintiff seeks to extend Bivens to a new context. Id. at 1859. If the claim presents a new Bivens context, the court must evaluate whether any “special factors counsel[ ] hesitation” in recognizing a new remedy “in the absence of affirmative action by Congress.” Id. at 1857 (internal quotation marks omitted).
New Context
To determine whether the plaintiff seeks to extend Bivens to a new context, the court must evaluate whether “the case is different in a meaningful way from previous Bivens cases decided by” the Supreme Court. Id. at 1859. Examples of types of differences that could be meaningful in this context 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 function of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Id. at 1860.
With these principles in mind, the undersigned concludes that Plaintiff's claim that the interference with his mail violated his First Amendment rights presents a new Bivens context. As the Supreme Court has recognized, it has ?never held that Bivens extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). Indeed, the Ziglar Court did not identify a First Amendment claim as one of the three recognized Bivens contexts. Ziglar, 137 S.Ct. at 1854-55. And finally, the Fourth Circuit and this Court, considering the issue after Ziglar, have held that First Amendment claims present a new Bivens context. See Earle v. Shreves, 990 F.3d 774, 779 (4th Cir. 2021); Doe v. Meron, 929 F.3d 153, 169 (4th Cir. 2019); Powers v. United States, No. 2:18-2227-HMH-MGB, 2019 WL 2223385, at *1-2 (D.S.C. May 23, 2019); Kirtman v. Helbig, No. 4:16-cv-2839-AMQ, 2018 WL 3611344, at *3-4 (D.S.C. July 27, 2018).
The undersigned also concludes that Plaintiff's Fifth Amendment due process claim presents a new Bivens context. Although Davis recognized an implied remedy for a violation of the Fifth Amendment on the facts before the Court in that case, the context in which the Davis Court evaluated the right to due process differs “in a meaningful way” from the facts of the present case. Davis involved a gender discrimination claim against a Congressman for firing his female secretary see Davis, 442 U.S. at 234 (analyzing the plaintiff's claim in the context of the “equal protection component of the Due Process Clause”), while the present case concerns a claim against BOP supervisory officials and a correctional systems officer for improperly rejecting mail or a publication. This Court has found in several cases concerning other Fifth Amendment claims based on comparable differences that the cases presented a new context under Bivens. See, e.g., Allah v. Fredericks, No. 9:19-cv-411-BHH-MHC, 2020 WL 7406916, at *5 (D.S.C. Oct. 27, 2020) (claim related to scoring of inmate's custody points), Report and Recommendation adopted by 2020 WL 7398659 (D.S.C. Dec. 17, 2020); Nogales v. Criswell, No. 2:18-cv-01334-JMC-MGB, 2019 WL 2619906, at *6-7 (D.S.C. Apr. 1, 2019) (claim related to a special agent seizing an individual's property during an arrest and later destroyed it), Report and Recommendation adopted by 2019 WL 2082491 (D.S.C. May 13, 2019); Jenkins v. Smith, No. 1:18-cv-995-HMH-SVH, 2019 WL 1052334, at *3 (D.S.C. Feb. 14, 2019) (concluding the plaintiff's due process claim presented a new Bivens context because it arose in the prison context), Report and Recommendation adopted by 2019 WL 1044754 (D.S.C. Mar. 4, 2019); Johnson v. Roberts, No. 3:17-cv-3017-JFA-SVH, 2018 WL 6363921, at *1, 5 (D.S.C. Oct. 17, 2018) (claim based on post office clerk's refusal to process plaintiff's passport request based on her ethnicity), Report and Recommendation adopted by 2018 WL 6344136 (D.S.C. Dec. 5, 2018); 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 fo the Fifth Amendment's Due Process Clause is fair game in a Bivens action.”). The Court reaches the same conclusion here.
Special Factors
The critical question in the special factors inquiry is “‘who should decide' whether to provide for a damages remedy, Congress or the courts?” Ziglar, 137 S.Ct. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380 (1983)). Most often, the answer is Congress because “[w]hen an issue involves a host of considerations that must be weighed and appraised, it should be committed to those who write the laws rather than those who interpret them.” Id. (internal quotations and citations omitted). Thus, “the 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. In assessing possible special factors, the Ziglar Court emphasized that “legislative action suggesting that Congress did not want a damages remedy is itself a factor counseling hesitation.” Id. at 1865. “Other factors include whether an alternative remedial structure is available; the potential cost to the Government of recognizing a private cause of action, both financially and administratively; whether a claim addresses individual conduct or a broader policy question; whether litigation would intrude on the function of other branches of government; and whether national security is at stake.” Powers v. Mosley, No. 2:18-cv-02227-HMH-MGB, 2019 WL 2619908, at *8 (D.S.C. Apr. 2, 2019) (citing Ziglar, 137 S.Ct. at 1857-63), Report and Recommendation adopted by 2019 WL 2223385 (D.S.C. May 23, 2019). The Ziglar Court also noted that the factors causing a court to pause before acting are ?difficult to predict in advance.” Ziglar, 137 S.Ct. at 1858.
Here, the Court concludes that special factors counsel hesitation in extending Bivens liability in this context. Defendants' initial memorandum in support of their motion discusses in detail the BOP administrative grievance process and informal resolution process that is available to address claims of the types Plaintiff raises. [Doc. 42 at 6-11.] And exhaustion provisions in the Prison Litigation Reform Act reflect “Congress's efforts to address and remedy matters of prisoner abuse through the exhaustion provisions.” Kirtman, 2018 WL 3611344, at *5; see Earle, 990 F.3d at 780. “Significantly, the fact that Congress has addressed the general area at issue with Plaintiff's claim and not elected to enact a remedy is revealing.” Kirtman, 2018 WL 3611344, at *5. In these circumstances, the Court determines ?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.” Ziglar, 137 S.Ct. at 1858. Accordingly, the Court concludes that no Bivens remedy is available for the types of constitutional claims Plaintiff alleges and, thus, Defendants' motion to dismiss should be granted as to Plaintiff's damages claims.
The Court notes that Plaintiff alleges he was deterred by threat of force from utilizing the administrative remedies that would otherwise have been available to him. [Docs. 1 at 5-6; 1-3 at 8.] Nonetheless, it is the availability to prisoner's generally, not their availability to this specific prisoner, that suggests Congress does not want a damages remedy and therefore counsels hesitation regarding judicial extension of the remedy. See Simmons v. Maiorana, No. 3:16-cv-1083, 2019 WL 4410280, at *15 (M.D. Pa. Aug. 23, 2019), Report and Recommendation adopted by 2019 WL 4412296 (M.D. Pa. Sept. 13, 2019). The Court also notes that in his response opposing Defendants' motion, Plaintiff argues that the allegations in his Complaint also state a claim for denial of access to the courts. [Doc. 55-2 at 4-11.] Assuming arguendo that Plaintiff alleged such a theory, it fails for similar reasons as his other constitutional claims. See, e.g., Williams v. Lynch, No. 1:16-3043-DCC-SVH, 2018 WL 4523191, at *2, 4-5 (D.S.C. July 24, 2018) (holding that no Bivens remedy existed for a claim for denial of access to courts), Report and Recommendation adopted in relevant part by 2018 WL 4140667 (D.S.C. Aug. 30, 2018), reconsideration denied in relevant part by 2019 WL 1614829 (D.S.C. Apr. 16, 2019); see also Mattes v. Jones, No. 4:17-CV-952, 2019 WL 5684471, at *7 n.9 (N.D. Ohio Oct. 31, 2019) (same); Howard v. Lackey, No. 7:16-129-KKC, 2018 WL 1211113, at *3 (E.D. Ky. Mar. 7, 2018) (same).
Because the undersigned concludes that Defendants are entitled to dismissal of this action for the reasons discussed, the Court declines to address Defendants' additional alternative arguments in support of their motion.
Claims for Injunctive Relief Based on Constitutional Violations
Defendants also contend that they are entitled to summary judgment regarding Plaintiff's request for injunctive relief. [Doc. 42 at 31-34.] “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). “A plaintiff seeking a permanent injunction . . . must demonstrate: (1) that [he] has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
Here, Defendants argue that, while Plaintiff seeks to enjoin Defendants from “‘unlawful refusal of [Plaintiff's books], '” Plaintiff has not demonstrated that he has suffered, or is likely to suffer, any irreparable harm. [Doc. 42 at 32-33.] Defendants note that “[a]lthough Plaintiff alleges that he needed a specific book about the Federal Tort Claims Act to pursue tort litigation in California, he neglects to show how his access to the law library and other reference materials at the institution are inadequate for him to pursue that litigation, much like his is pursuing the instant litigation in this Court.” [Id. at 32.] Defendants additionally comment that “a review of PACER shows that Plaintiff apparently has not pursued any such . . . action in California” and that Plaintiff cannot show that not having the books actually prevented him from filing such a lawsuit. [Id. at 33.]
Plaintiff does not seek, in his response opposing Defendants' motion or in his supplements to his response, to explain how he is likely to be irreparably harmed or how he has been irreparably harmed by Defendants' actions. [Docs. 55; 58; 63.] Accordingly, the Court recommends that summary judgment be granted against Plaintiff concerning his request for injunctive relief.
Plaintiff's Motion to Amend
Defendants argue that Plaintiff's motion to amend his Complaint should be denied because the proposed amendment would be futile. [Doc. 60 at 3.] The Court agrees.
Because the pleading Petitioner seeks to amend “is one to which a responsive pleading is required, ” he would be entitled as a matter of course to amend his pleading once within “21 days after service of a responsive pleading.” Fed.R.Civ.P. 15(a)(1)(B). However, because his motion to amend was filed well beyond that time, he is entitled to amend “only with the opposing party's written consent or the court's leave.” Fed.R.Civ.P. 15(a)(2). Although the text of Rule 15(a)(2) requires that the Court “freely give leave [to amend] when justice so requires, ” Fed.R.Civ.P. 15(a)(2), “a district court may deny leave to amend if the amendment ‘would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile, '” United States ex rel. Nathan v. Takeda Parm. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (quoting Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006)). As Defendants contend, “[f]utility is apparent if the proposed amended complaint fails to state a claim under the applicable rules and accompanying standards.” Kramer v. Omnicare ESC, LLC, 307 F.R.D. 459, 464 (D.S.C. 2015) (internal quotation marks omitted). “Therefore, the futility analysis under Rule 15(a) necessarily requires a preliminary assessment of the allegations of the proposed amendment in light of the substantive law on which the additional claims are based.” Id. Here, Plaintiff has not attached a proposed amended complaint, and Plaintiff offers no basis for any belief in any event that any such amended complaint could overcome the defects in his claims that this Court has already identified. Accordingly, the Court recommends that Plaintiff's motion to amend his Complaint be denied.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion to dismiss or, in the alternative, for summary judgment [Doc. 42] be GRANTED and that Plaintiff's motion to amend his Complaint [Doc. 56] be DENIED.
IT IS SO RECOMMENDED.