Opinion
C/A No. 5:18-cv-01147-MGL-KDW C/A No. 5:18-cv-01223-MGL-KDW
07-31-2019
Gerald Damone Hopper, Plaintiff, v. William P. Barr; Mark S. Inch; Ian Conners; J.A. Keller; Hector Joyner; Regina D. Bradley; Richard Perkins; R. Lepiane; D. Garcia; Jade Lloyd, Defendants. Gerald Damone Hopper, Plaintiff, v. Federal Bureau of Prisons, S.E. Regional Office, and FCI Estill, Defendants.
REPORT AND RECOMMENDATION
Plaintiff Gerald Damone Hopper, an inmate currently incarcerated in the Gaston County, N.C. Detention Center, filed this 42 U.S.C. § 1983 action alleging that Defendants violated his constitutional rights. This matter is before the court on Defendants' Mark S. Inch, Ian Connors, and J.A. Keller's Motion to Dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction. ECF No. 50. This matter is also before the court on the Motion for Summary Judgment filed by Defendants Regina D. Bradley, Ian Connors, D. Garcia, Mark S. Inch, Hector Joyner, J. A. Keller, R. Lepiane, Jade Lloyd, Richard Perkins, William P. Barr, FCI Estill, Federal Bureau of Prisons ("BOP"), and SE Regional Office (collectively "Defendants") on December 3, 2018. ECF No. 59. As Plaintiff is proceeding pro se, the court entered Roseboro orders related to the Motion to Dismiss and the Motion for Summary Judgment on October 19, 2018 and December 19, 2018 respectively. ECF Nos. 52, 62. In the Roseboro Orders the court advised Plaintiff of the importance of such motions and of the need for him to file an adequate response. Id. Plaintiff responded to Defendants' Motion for Summary Judgment on December 19, 2018. ECF No. 66. Defendants did not file a Reply.
Defendants filed the same Motion to Dismiss and Motion for Summary Judgment in both captioned cases. In case No. 5:18-cv-01147, the designated lead case, the docket entry for the Motion to Dismiss is ECF No. 50, and the docket entry for the Motion for Summary Judgment is ECF No. 59. The court will refer to the docket entries for the lead case herein.
The court entered a "Roseboro order" in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975) (requiring the court provide explanation of dismissal/summary judgment procedures to pro se litigants).
This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. Because Defendants' motion to dismiss and summary judgment motions are dispositive, a Report and Recommendation is entered for the court's review.
I. Plaintiff's Complaint
Plaintiff filed his Complaint on April 26, 2018. ECF No. 1. Plaintiff alleges that Defendants have violated the Eighth Amendment by "implement[ing] a custom and policy that den[ies] inmates treatment for the Hepatitis C Virus" that he contends he contracted while incarcerated at FCI Estill in or around 2010. ECF No. 1 at 4, 6.
Specifically, Plaintiff alleges that he first reported that he was experiencing "severe and excruciating stomach pains" while he was incarcerated at FCI Estill in 2010. ECF No. 1-1 at 2-3. Plaintiff alleges that in 2014, while incarcerated at FCI Hazelton, he was informed that he had the Hepatitis C Virus ("HCV") and had had it since 2011. ECF No. 1-1 at 3.
Plaintiff alleges that since his HCV diagnosis, he frequently requested treatment at both FCI Hazelton and when he returned to FCI Estill. ECF No. 1-1 at 4. Plaintiff alleges that Defendants denied his requests for treatment. ECF No. 1-1 at 4-7. In a supplement to his Complaint, Plaintiff alleges the Defendants "exposed, and infected Plaintiff with the HCV, thereby showing deliberate indifference to a substantial risk of serious harm to Plaintiff's health." ECF No. 1-3 at 2.
Plaintiff seeks declaratory relief, injunctive relief, compensatory damages, and punitive damages. ECF No. 1 at 6; ECF No. 1-1 at 8.
II. Legal Standards
a. Pro Se Review
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), and a federal district 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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). 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; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or "conjure up questions never squarely presented" to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject-matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district 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. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Trentacosta, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). "The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Trentacosta, 813 F.2d at 1558).
When a court's personal jurisdiction is challenged, the burden is on the plaintiff to establish that a ground for jurisdiction exists. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When the court resolves the motion on written submissions (as opposed to an evidentiary hearing), the plaintiff need only make a "prima facie showing of a sufficient jurisdictional basis." Id. However, the plaintiff's showing "must be based on specific facts set forth in the record . . . ." Magic Toyota, Inc. v. Se. Toyota Distribs., Inc., 784 F. Supp. 306, 310 (D.S.C. 1992). The court may consider the parties' pleadings, affidavits, and other supporting documents but must construe them "in the light most favorable to plaintiff, drawing all inferences and resolving all factual disputes in his favor, and assuming plaintiff's credibility." Sonoco Prods. Co. v. ACE INA Ins., 877 F. Supp. 2d 398, 404-05 (D.S.C. 2012) (internal quotation and alteration marks omitted); see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) ("In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff"). However, a court considering the issue of personal jurisdiction "need not credit conclusory allegations or draw farfetched inferences." Sonoco, 877 F. Supp. 2d at 205 (internal quotation marks omitted).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In construing a motion to dismiss, the facts, though not the legal conclusions, alleged in a plaintiff's complaint must be taken as true. Iqbal, 556 U.S. at 678. A complaint should survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim only when a plaintiff has set forth "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "Factual allegations must be enough to raise a right to relief above the speculative level" and beyond the level that is merely conceivable. Id. at 555. However, a court is not required "to accept as true a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286 (1986), or a legal conclusion unsupported by factual allegations. Iqbal, 556 U.S. at 679. Dismissal is appropriate when a complaint contains a description of underlying facts that fails to state a viable claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Twombly, 550 U.S. at 558.
e. Fed. R. Civ. P. 56: Summary Judgment
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 favor of the non-moving party. 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.
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 251. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989).
III. Analysis
a. Exhaustion of Administrative Remedies
In their Motion for Summary Judgment, which cites to Federal Rules of Civil Procedure 12(b)(1), (2), and (6), the Defendants address the issue of exhaustion of administrative remedies related to claims arising from Plaintiff's incarceration at FCI Estill, FCI McDowell, and FCI Hazelton. ECF No. 59 at 6-11. Defendants state that Plaintiff has exhausted his Administrative remedies arising out of his request to be treated for his HCV condition. ECF No. 59 at 6. But they argue that Plaintiff has neither filed grievances nor exhausted his remedies arising out of the manner in which he contracted HCV while in BOP custody. Id. They also assert that he has not filed an Administrative Remedy Request related to alleged discrimination against him because of his HCV nor did he file a separate claim under the Rehabilitation Act ("RA"). Id. at 6-7. Plaintiff, on the other hand, alleges that he exhausted his administrative remedies related to his treatment for HCV. ECF No. 1-1 at 4-7; see generally ECF No. 59-12. In his Response to Defendants' 12(b)(6) Motion to Dismiss, Plaintiff contends that he exhausted all of his remedies. ECF No. 56 at 4. At the same time, Plaintiff does not respond to Defendants' arguments about exhaustion in their Motion for Summary Judgment. See ECF No. 66.
1. PLRA Exhaustion of Bivens Claims
Under the Prison Litigation Reform Act of 1995 ("PLRA"), prisoners must exhaust "such administrative remedies as are available" before filing suit in federal court challenging prison conditions. Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (quoting 42 U.S.C. § 1997e(a)). "[T]he PLRA's exhaustion requirement is mandatory," Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and "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 (2002). Furthermore, pursuant to § 1997e(a), the exhaustion requirement is applicable to Bivens claims. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
Failure to exhaust administrative remedies is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff. Jones v. Bock, 549 U.S. 199, 212, 216-17 (2007); see Anderson v. XYZ Corr. Health Serv., 407 F.3d at 681 (holding that failure to exhaust is an affirmative defense which a defendant must plead and prove). Furthermore, the defendant must prove that the prisoner-plaintiff failed to exhaust each of his claims. There is no "total exhaustion" rule permitting dismissal of an entire action because of one unexhausted claim. Jones, 549 U.S. at 220-24. Exhaustion is a non-jurisdictional prerequisite. See Woodford v. Ngo, 548 U.S. 81, 101 (2006). That is not to say, however, that the nature of a jurisdictional assessment, as a threshold inquiry, cannot provide guidance in an exhaustion inquiry. See Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010) ("Exhaustion resembles personal jurisdiction and venue in that it is an affirmative defense that allows defendants to assert that plaintiffs have not invoked the proper forum for resolving a dispute."); Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) ("Even though a failure-to-exhaust defense is non-jurisdictional, it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a 'matter[ ] in abatement, and ordinarily [does] not deal with the merits.'" (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 78 n. 15 (3d ed. 2004) (alterations in original))); see also 18 James Wm. Moore, Moore's Federal Practice § 131.30(3)(b) at 104 (3rd ed. 2008) (noting that a determination "that [a court] has no subject matter jurisdiction, that personal jurisdiction of defendants or of indispensable parties is lacking, that venue is improper, or that plaintiff has failed to comply with some prerequisite to filing suit, such as exhaustion of administrative remedies . . . is not a determination of the claim, but rather a refusal to hear it."). Exhaustion is a precondition to filing suit in federal court. See Moore, 517 F.3d at 725 ("prisoners must exhaust . . . prior to filing suit in federal court"). Accordingly, courts have held that "prisoner[s], therefore, may not exhaust administrative remedies during the pendency of the federal suit." Green v. Rubenstein, 644 F. Supp. 2d 723, 743 (S.D.W. Va. 2009) (quoting Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)); see also Johnson v. Ozmint, 567 F. Supp. 2d 806, 815 (D.S.C. 2008) (similar holding).
Based on an examination of the record in this case, the undersigned recommends a finding that Plaintiff has exhausted his administrative remedies related to his requests for treatment for his HCV. ECF No. 59-12. However, the undersigned recommends a finding that to the extent Plaintiff is asserting a claim related to his contacting HCV while incarcerated in the BOP, Plaintiff has not exhausted his administrative remedies for such a claim.
2. Exhaustion of RA Claims
Consideration of Defendants' assertions regarding Plaintiff's exhaustion of administrative remedies for his RA claim is distinguishable from consideration of PLRA exhaustion because it has been held that exhaustion of RA claims is jurisdictional. See Spinelli v. Goss, 446 F.3d 159, 162 (D.D.C. 2006); see also Williams v. Brennan, 320 F. Supp. 2d 122, 129 (D.D.C. 2018) (limiting Spinelli's jurisdictional analysis to cases where the claimant did not begin the RA exhaustion process at all); Howland v. United States Postal Serv., 209 F. Supp. 2d 586, 590 (W.D.N.C. 2002); Roach v. Gates, Nos. 2:07-00136-DCN, 2:07-01574-DCN, 2012 WL 1952680, at *4 (D.S.C. May 30, 2012). As a result, the issue should be considered under Federal Rule of Civil Procedure 12(b)(1), which permits the court to rely on outside affidavits and other documents submitted by the parties. See Evans v. B. F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
The undersigned has reviewed the affidavit of D. Martin Hill, a Supervisory Attorney in the Equal Employment Office ("EEO") of the BOP. ECF No. 59-13. Mr. Hill cites to 28 C.F.R. § 39.170 as the relevant regulation governing exhaustion of remedies for RA claims within the Department of Justice; to 49 Fed. Reg. § 35724, at 23 (Sept. 11, 1984) for the proposition that the legislative history of 28 C.F.R. § 39.170 includes recognition that the regulation allows "handicapped prisoners . . . the right to have their complaints investigated by an office that specializes in discrimination complaints"; and to BOP Program Statement 3713.24, ch. 12 that establishes the procedure for federal prisoners to use to exhaust their RA remedies. ECF No. 59-12 at 1-3. Under Program Statement 3713.24, federal prisoners who believe that they have been subjected to discrimination covered by the RA must first complete the BOP administrative process. Then, the prisoner or his/her representative must file a complaint with the EEO within 180 days of the "final administrative decision under the administrative remedy procedure." Following submission of a timely complaint, the prisoner must await an investigation and attempt to informally resolve the claim by the EEO before remedies will be deemed exhausted. Mr. Hill states that he reviewed the EEO's database and found no discrimination complaints from Plaintiff and, therefore, he opines that Plaintiff "has not exhausted the BOP's administrative complaint process with the EEO . . . ." ECF No. 59-13 at 3.
Plaintiff alleges that he exhausted his remedies related to his request for treatment for his HCV. ECF No. 1-1 at 4. Plaintiff makes no allegation in his Complaint that he exhausted his RA Claim. Again, in his Response to Defendants' 12(b)(6) Motion, Plaintiff argues that he exhausted all of his administrative remedies. ECF No. 56 at 4. In his Response to Defendants' Motion for Summary Judgment, Plaintiff does not address Defendants' argument that he failed to exhaust his RA claims.
Sister courts within the Fourth Circuit have specifically held that a federal prisoner seeking to assert an RA claim must first exhaust the BOP process and then exhaust the DOJ EEO process before his administrative remedies will be deemed exhausted. See Collins v. LeMaster, No. 5:15-05576, 2016 WL 675675, at *10 (S.D. West Va. Jan. 25, 2016) (PLRA requires exhaustion of DOJ EEO process; collecting cases holding that prisoners asserting RA or ADA claims must fully exhaust PLRA remedies), report and recommendation adopted, 2016 WL 661590 (S.D.W. Va. Feb. 18, 2016); Zoukis v. Wilson, No. 1:14cv1041 (LMB/IDD), 2015 WL 4064682, at *10-11 (E.D. Va. July 2, 2015); see also Elliot v. Wilson, No. 0:15-cv-01908-JNE-KMM, 2017 WL 1185213, at *14 (Jan. 17, 2017) (collecting cases throughout the country holding that federal prisoners pursuing an RA claim must exhaust the DOJ EEO process), report and recommendation adopted, 2017 WL 1180422 (D. Minn. March 29, 2017).
Under the PLRA, a prisoner such as Plaintiff complaining of prison conditions "under . . . any . . . Federal law" may not bring an action based on those conditions "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The BOP's EEO process is such an administrative process, and a review of the record establishes that Plaintiff failed to exhaust the available remedies for his RA claim. Therefore, this court is without subject-matter jurisdiction to consider the RA claim. Accordingly, the undersigned recommends that Defendants' Motion for Summary Judgment on Plaintiff's RA claim be granted as there are no genuine issues of fact regarding his failure to exhaust.
b. Claim for Injunctive Relief
Injunctive relief requires a party to demonstrate that (1) he is likely to succeed on the merits at trial; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Article III, Section 2 of the United States Constitution provides that federal Courts may adjudicate only live cases or controversies. Deakins v. Monaghan, 484 U.S. 193, 199 (1988). "[F]ederal courts have no authority to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007) (internal citations omitted). "To involve the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted). "[I]t is not enough that a dispute was very much alive when suit was filed ... [t]he parties must continue to have a 'personal stake in the outcome' of the lawsuit." Id. at 477-78 (citations omitted). Generally, "mooting a claim arises when the claimant receives the relief he or she sought to obtain through a claim." Friedman's, Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (citing Broughton v. State of North Carolina, 717 F.2d 147, 149 (4th Cir. 1983) (per curiam)). A declaratory judgment "calls, not for an advisory opinion upon a hypothetical basis, but for an adjudication of present right upon established facts." Aetna Life Ins. Co. of Hartford v. Haworth, 300 U.S.227, 242 (1937).
Defendants state that Plaintiff seeks as injunctive relief treatment for his HCV and that his claims for injunctive and declaratory relief are moot because, as a result in a change in the BOP HCV Clinical Guidance, Plaintiff is now receiving the treatment he requested. ECF No. 59 at 24. Plaintiff argues that his claim for injunctive relief is not moot, and in support he relies on three cases including Abu-Jamal v. Kerestes, 3:15-cv-967, 2018 WL 2166052 (M.D. Pa. May 10, 2018).
In Abu-Jamal, the plaintiff tested positive for chronic HCV in 2012 while incarcerated. Id. at *6. The plaintiff's HCV resulted in a number of serious medical complications and symptoms. Id. at *6-8. The plaintiff filed suit against prison authorities alleging deliberate indifference to his medical needs when the defendants did not put him on a course of treatment once the new antiviral drugs Harvoni and Salvadi came onto the market in 2013. Id. at 6. The medical defendants in Abu-Jamal filed a 12(b)(6) motion to dismiss arguing that the plaintiff's claim for injunctive relief was moot because he had already begun his Harvoni treatments. Id. at *9. The court denied the medical defendants' arguments as "wholly inappropriate for a Motion to Dismiss" because "to find in the [m]edical [d]efendants' favor on this ground, the Court would need to examine evidence not properly before the court." Id. at *10 (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3rd Cir. 1993)). The court also considered the correctional defendants' motion to dismiss. Id. at *13-21. The court denied their motion to dismiss on mootness grounds and noted that despite being aware that it ordered the defendants to provide plaintiff with the latest HCV treatments, "[it] possess no other information with respect to how the Order has been carried out. Without information about whether or not [p]laintiff has been afforded a complete treatment and is now cured of Hepatitis C, the Court has no way of evaluating whether [p]laintiff's claims for injunctive relief are moot." Id. at *21.
Abu-Jamal is distinguishable from the instant case because it was decided at the motion to dismiss stage whereas Plaintiff's case is at the summary judgment stage. At the summary judgment stage, the undersigned has a sufficient record and other information beyond merely the four corners of Plaintiff's Complaint and documents attached to the Complaint. The undersigned is therefore able to determine whether Plaintiff has received the treatment he requested and the manner in which he is receiving that treatment. Based on a review of the record, the undersigned recommends granting Defendants' Federal Bureau of Prisons, S.E. Regional Office, and FCI Estill's Motion for Summary Judgment on Plaintiff's claims for injunctive and declaratory relief because the record shows that Plaintiff received treatment for his HCV. See ECF No. 59-24 at 1-2, 9, 45.
As in § 1983 cases, claims for damages in Bivens cases apply only to persons and not government entities. See Reinbold v. Evers, 187 F.3d 348, 355 n. 7 (4th Cir. 1999) ("While Bivens actions allow for recovery of money damages against federal officials who violate the United States Constitution in their individual capacities, Bivens does not allow for recovery of money damages, or suits in general, against the government itself.")
c. Defendants Inch, Connors, and Keller's 12(b)(2) Motion to Dismiss For Lack of Personal Jurisdiction
Federal courts exercise personal jurisdiction in the manner provided by state law, so the court must first consider whether South Carolina law would authorize jurisdiction over Defendants Inch, Connors, and Keller. If South Carolina law would permit jurisdiction, the court must decide whether exercise of jurisdiction is consistent with the Due Process Clause of the Fourteenth Amendment. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 622 (4th Cir. 1997). South Carolina's long-arm statute, S.C. Code Ann. § 36-2-803, has been interpreted to reach the outer bounds permitted by the Due Process Clause. Id.; see S. Plastics Co. v. S. Commerce Bank, 423 S.E.2d 128, 130 (S.C. 1992). Accordingly, the court's inquiry is whether the activities of Inch, Connors, and Keller were such that the court's exercise of jurisdiction over them in this matter would comport with due process. See Stover v. O'Connell Assocs., Inc., 84 F.3d 132, 135-36 (4th Cir. 1996). To determine whether personal jurisdiction exists, the court must consider the facts in the light most favorable to Plaintiff. Carefirst, 334 F.3d at 396.
A court's exercise of jurisdiction over a nonresident defendant comports with due process when the defendant has "'minimum contacts' with the forum, such that to require the defendant to defend its interests in that state 'does not offend traditional notions of fair play and substantial justice.'" Carefirst of Md., Inc., 334 F.3d at 397 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation marks omitted)). The court's inquiry regarding whether personal jurisdiction exists varies "depending on whether the defendant's contacts with the forum state also provide the basis for the suit." Carefirst, 334 F.3d at 397. In such a case, the court will consider whether it has "specific" jurisdiction over the defendant by considering the following: "(1) the extent to which the defendant has purposefully availed itself of the privilege of conducting activities in the state; (2) whether the plaintiff['s] claims arise out of those activities directed at the state; and (3) whether the exercise of personal jurisdiction would be constitutionally 'reasonable.'" Id. (quoting ALS Scan v. Digital Serv. Consultants, Inc., 293 F.3d 707, 711-12 (4th Cir. 2002)). In certain circumstances, South Carolina's long-arm statutes will permit personal jurisdiction over individual defendants based on actions of an individual nonresident employee, officer, or director of a corporation. See Magic Toyota, 784 F. Supp. at 314-15 (citing Columbia Briargate Co. v. First Nat'l Bank, 713 F.2d 1052 (4th Cir. 1983)).
Absent such "specific jurisdiction," the court may consider whether it has "general jurisdiction" over the nonresident. General jurisdiction exists when a defendant's contacts with the state are not the basis for the suit, but defendant's contacts with the state afford jurisdiction because they are "general [and] more persistent." Carefirst, 334 F.3d at 397. To establish such general jurisdiction, "the defendant's activities in the state must have been 'continuous and systematic.'" Id. (quoting ALS Scan, 293 F.3d at 712).
Defendants argue that the court lacks jurisdiction over Defendants Inch, Connors, and Keller because Plaintiff has not alleged facts sufficient to establish either specific or general jurisdiction over these three Defendants. See ECF No. 50. Plaintiff did not respond in a substantive manner to Defendants' arguments regarding personal jurisdiction. See ECF No. 56.
As for specific jurisdiction, Plaintiff has not made a prima facia showing that these Defendants had minimum contacts with South Carolina. An examination of Plaintiff's complaint reveals that he does not allege that Inch, Connors, or Keller "'purposefully directed' [their] activities at residents of the forum . . . ." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73 (1985). See generally ECF Nos. 1, 1-1. He further fails to allege that these Defendants caused any injury to persons or property in South Carolina. Id.
As for Defendant Inch, who is the Director of the Bureau of Prisons, Plaintiff makes no allegation of individual actions taken by Inch, and it seems Plaintiff is alleging that actions connected to Inch relate to those taken in his official capacity. Such "official capacity" contacts do not "proximately result from actions by defendant himself that create a 'substantial connection' with the forum state." Thorton v. Quinlan, 864 F. Supp. 90, 92 (S.D. Ill. 1994).
Defendant Connors is the National Inmate Appeals Administrator for the BOP, and his office is in Washington, D.C. With respect to Connors, Plaintiff alleges no actions that he took in South Carolina except for the extent to which he oversaw the denial of one of Plaintiff's appeals. Plaintiff's allegation with respect to Connors is also insufficient to establish minimum contacts.
Keller is the Regional Director for the Southeast Region of the BOP. Aside from his supervisory role as an administrator over BOP prisons in South Carolina, Keller had no contacts with South Carolina sufficient to establish personal jurisdiction.
As for general jurisdiction, for the court to exercise general jurisdiction over a defendant, the defendant's contacts with the forum state must be "continuous and systematic." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). Plaintiff must establish that the Defendants "affiliations" with the forum state are "so 'continuous and systematic' as to render [them] essentially at home" in South Carolina. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). For the same reasons outlined above related to specific contacts, the court recommends a finding that Plaintiff has not made a prima facia showing that the contacts Defendants Inch, Connors, and Keller may have had with South Carolina are sufficient to establish general jurisdiction over them. Plaintiff has likewise provided insufficient evidence to establish that Inch, Connors, and Keller's actions in South Carolina were "so substantial . . ." as to justify a finding that this court has general jurisdiction over them. Int'l Shoe Co., 326 U.S. at 318.
For the foregoing reasons, the undersigned recommends that Defendants' Motion to Dismiss for Lack of Personal Jurisdiction, ECF No. 50, be granted.
d. Failure to State a Claim Regarding the Bivens Claims
The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff in any civil action must do more than make mere conclusory statements to state a claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the defendant unlawfully harmed me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.Id. at 678 (internal citations omitted).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. Iqbal, 556 U.S. at 678 (citations omitted) (quoting Twombly, 550 U.S. at 555, 556, 557, 570 and citing to Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir. 2003).
To state a plausible § 1983 (or Bivens) claim against any particular public official, a "causal connection" or "affirmative link" must exist between the conduct of which the plaintiff complains and the official sued. See Kentucky v. Graham, 473 U.S. 159 (1985); Evans v. Chalmers, 703 F.3d 636, 654 (4th Cir. 2012). Where there are no allegations of personal wrongdoing by a government actor in the complaint, no plausible § 1983 or Bivens claim is stated. See Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) ("Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed."); Newkirk v. Circuit Court of City of Hampton, No. 3:14CV372-HEH, 2014 WL 4072212 (E.D. Va. Aug. 14, 2014) (complaint subject to summary dismissal where no factual allegations against named defendants within the body of the pleading); see also Krych v. Hvass, 83 F. App'x 854, 855 (8th Cir. 2003); Black v. Lane, 22 F.3d 1395, 1401 n.8 (7th Cir. 1994); Walker v. Hodge, 4 F.3d 991, *2 n.2 (5th Cir. 1993); Banks v. Scott, 3:13CV363, 2014 WL 5430987, at *2 (E.D. Va. Oct. 24, 2014). A plaintiff suing a government official in his individual capacity and thereby seeking to hold the official personally liable must show that the official personally caused or played a role in causing the deprivation of a federal right complained of. See Graham, 473 U.S. at 166. Receipt of or response to a grievance is not sufficient personal involvement in the grieved circumstances to impose § 1983 liability on a supervisory official. Wright v. Collins, 766 F.2d 841, 850 (4th Cir. 1985); see Green v. Beck, 539 F. App'x 78, 80 (4th Cir. 2013); Miles v. Aramark Corr. Serv., 236 F. App'x 746, 751 (3d Cir. 2007); Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.D. Pa. 2010). In absence of substantive allegations of wrongdoing against the named Defendant, there is nothing from which this court can liberally construe any type of plausible cause of action arising from the Complaint against him. See Cochran v. Morris, 73 F.3d 1310 (4th Cir. 1996) (statute allowing dismissal of in forma pauperis claims encompasses complaints that are either legally or factually baseless); Weller v. Dep't of Social Servs., 901 F.2d at 389 n.2 (dismissal proper where there were no allegations to support claim).
A Bivens claim is analogous to a claim under 42 U.S.C. § 1983: federal officials cannot be sued under 42 U.S.C. § 1983 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); see also Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Turner v. Dammon, 848 F.2d 440, 443-44 (4th Cir. 1988).
As a general rule, the doctrine of vicarious liability or respondeat superior is not available to a § 1983 plaintiff as a means to create liability of a state-actor supervisor for the acts or his/her subordinate. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). There is a limited exception to the prohibition against imposing respondeat superior or vicarious liability on supervisory personnel in § 1983 cases, which has been enunciated in cases such as Slakan v. Porter, 737 F.2d 368, 370-75 (4th Cir. 1984). Supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates so long as the facts alleged satisfy the Fourth Circuit Court of Appeals' established three-part test for supervisory liability under § 1983: "(1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed 'a pervasive and unreasonable risk' of constitutional injury to citizens like the plaintiff; (2) that the supervisor's response to that knowledge was so inadequate as to show 'deliberate indifference to or tacit authorization of the alleged offensive practices,'; and (3) that there was an 'affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff." Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (citations omitted).
In Randall v. Prince George's County, 302 F.3d 188, 206 (4th Cir. 2002), the Fourth Circuit concluded that, "[u]nder the first prong of Shaw, the conduct engaged in by the supervisor's subordinates must be 'pervasive,' meaning that the 'conduct is widespread, or at least has been used on several different occasions.'" Furthermore, in establishing "deliberate indifference" under Shaw's second prong, a plaintiff "[o]rdinarily . . . cannot satisfy his burden of proof by pointing to a single incident or isolated incidents . . . for a supervisor cannot be expected . . . to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct." Id. (quoting Slakan, 737 F.2d at 373); see also Green v. Beck, 539 F. App'x 78, 81 (4th Cir. 2013) (alleged failure of supervisory officials to investigate grievances not sufficient to establish liability under § 1983).
To state a plausible Eighth Amendment claim for medical indifference or indifference to inmate safety against a governmental actor, a prisoner must demonstrate that a sufficiently serious deprivation occurred resulting "in the denial of the minimal civilized measure of life's necessities," and that the prison employee had a sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994). "Eighth Amendment analysis necessitates inquiry as to [(1)] whether the prison official[s] acted with a sufficiently culpable state of mind (subjective component) and [(2)] whether the . . . injury inflicted on the inmate was sufficiently serious (objective component)." Iko v. Shreve, 535 F.3d 225, 238 (4th Cir. 2008) (internal quotation marks omitted); see Hudson v. McMillian, 503 U.S. 1, 6-10 (1992) (discussing subjective and objective components). With respect to medical and health needs, a prisoner must show deliberate indifference to a serious need. Wilson v. Seiter, 501 U.S. 294 (1991); Estelle v. Gamble, 429 U.S. 97 (1977). At the threshold, a complaint of deliberate indifference must disclose an objective injury or inattention to serious medical need. See, e.g., Shakka v. Smith, 71 F.3d 162 (4th Cir. 1995); Strickler v. Waters, 989 F. 2d 1375 (4th Cir. 1993). Additionally, deliberate indifference involves a subjective component which the Supreme Court has termed a "sufficiently culpable state of mind" on the part of defendants. See Wilson; Johnson v. Quinones, 145 F. 3d 164 (4th Cir. 1998).
1. Plaintiff's Bivens Claim against Defendants Barr, Inch, Connors, Keller, Joyner, Bradley, and Perkins
In their Motion for Summary Judgment, these Defendants are referred to as the "Non-Medical Defendants." ECF No. 59 at 26, n. 7.
In his Complaint, Defendant Sessions, now Barr, is listed as the United States Attorney General. See ECF No. 1 at 3. Defendant Inch is listed as the Director of the Federal Bureau of Prisons. ECF No. 1 at 3. Defendant Connors is listed as the Administrator of National Inmate Appeals. Id. Defendant Keller is identified as the S.E. Regional Director. Id. Defendant Joyner is identified as Warden, FCI Estill. Id. Defendant Bradley is listed as a Health Services Administrator at FCI Estill. Id. at 4. And Defendant Perkins is identified as Assistant Health Service Administrator at FCI Estill. Id.
Defendants argue that Defendants Inch, Connors, Keller, Joyner, Bradley, and Perkins are non-medical Defendants and that they should be dismissed because Plaintiff fails to sufficiently allege that they were personally involved in his alleged injuries. ECF No. 59 at 26, n. 7, 27. Defendants likewise argue that Plaintiff has failed to satisfy the requirements of Federal Rule of Civil Procedure 8. ECF No. 59 at 26-31. Plaintiff does not directly respond to these arguments.
With respect to Defendants Barr, Inch, Connors, and Keller, Plaintiff concedes that their connection to his harms is "tenuous," but he continues by broadly asserting that these Defendants "played a large role in denying Plaintiff medical treatment for a serious medical need." ECF No. 1-3 at 9. Plaintiff alleges that Defendant Barr's involvement in this case is within the context of his responsibility for the BOP's HCV Policy. ECF No. 1-3 at 9. Plaintiff also alleges that Defendant Barr had actual and constructive notice of deliberate indifference to his medical needs. ECF No. 1-3 at 9. With the exception of Plaintiff's brief statement about the large role that Defendant Inch played in denying Plaintiff medical treatment, Defendant Inch is not mentioned in the Complaint, except where Plaintiff lists him as the Director of the BOP. See ECF No. 1 at 3. Defendant Connors likewise is not mentioned in the Complaint except where Plaintiff lists his role as Administrator of National Inmate Appeal and as the person who had the final decision on inmate appeals. ECF No. 1 at 3; ECF No. 1-3 at 9. As for Defendant Keller, Plaintiff alleges that on January 24, 2018, Keller denied Plaintiff's request for treatment on the basis of the BOP's HCV policy. ECF No. 1-1 at 7.
Defendant Joyner is the Warden of FCI Estill, and Plaintiff alleges that he spoke with Defendant Joyner about his condition and serious pain on a number of occasions and about the denial of his treatment for HCV. See ECF No. 1-1 at 4-6. Plaintiff alleges that Defendant Joyner stated that BOP policy prohibited treatment for his HCV "unless and until it progress[ed] to a more serious stage." ECF No. 1-1 at 5. Plaintiff also alleges that he spoke with Defendant Joyner about the possibility of receiving treatment if Plaintiff made a co-payment. ECF No. 1-1 at 5. He alleges that Joyner ultimately told him that co-payments for treatment were not allowed. ECF No. 1-1 at 6. Plaintiff also alleges that he told Defendant Joyner if he was willing to give him more time in a Residential Reentry Center ("RRC"), otherwise known as a halfway house, Plaintiff would be willing to drop his lawsuit. ECF No. 1-3 at 8. Under this proposed arrangement, Plaintiff alleges that he would be able to "pay for and take care of his own medical problems." ECF No. 1-3 at 8. Plaintiff alleges that five days later, he approached Defendant Joyner and asked if he had a chance to consider Plaintiff's proposals. Id. According to Plaintiff, Defendant Joyner responded in a "flippant manner" when he answered, "you have your legal issues going on," and "you have some halfway house time, and that's all you're going to get." Id. Plaintiff argues that Defendant Joyner's inaction and unsatisfactory response amount to deliberate indifference. ECF No. 1-3 at 9. The undersigned disagrees. In responding to Plaintiff's inquiries, Defendant Joyner primarily reiterated what BOP policy was at the time, and he then enforced that policy.
Defendant Regina Bradley is a Health Services Administrator ("HSA") at FCI Estill. Bradley Decl. at 1, ¶ 1; ECF No. 57-7 at 1. Defendants argue that Plaintiff's Complaint fails to state a claim against Defendant Bradley because she is a "member of the Public Health Service ("PHS") and is protected by 42 U.S.C. 233(a)." ECF No. 59 at 25. Defendant also states that although Defendant Bradley works in the Health Services Department, her position is administrative and supervisory in nature, and she did not make medical decisions concerning Plaintiff. ECF. No 59 at 26, n. 7. As to Defendant Bradley, Plaintiff alleges that on December 1, 2017, he spoke with her about his medical issues and stated that she reiterated the BOP policy regarding inmates with HCV and their treatment. ECF. No. 1-1 at 5. He alleges that he told Defendant Bradley about Cunningham v. Sessions, C/A No. 9:16-cv-1292-RMG, 2017 WL 2377838, at *1-5 (D.S.C. Sep. 5, 2017), discussed below in relation to qualified immunity, and about his stomach pains. ECF. No. 101 at 5. He alleges that she told him to go to sick-call. ECF No. 1-1 at 5-6. Plaintiff alleges that during his next encounter with Defendant Bradley, on December 9, 2017, Defendant Joyner summoned her over to explain BOP policy to him. ECF No. 1-1 at 6.
Plaintiff notes that Defendant Perkins is an Assistant Heath Administrator at FCI Estill. ECF No. 1 at 4. Like Defendant Bradley, Defendant Perkins works in the Health Services Department in supervisory and administrative roles and did not provide medical treatment to Plaintiff. Perkins Decl. at ¶ 1; ECF No. 59-8 at 1-2; ECF. No. 59 at 26, n. 7. Defendants argue that Plaintiff has failed to state a claim against Defendant Perkins. ECF No. 59 at 25. Plaintiff alleges that Defendant Perkins answered his BP-8 and was told that under BOP policy, he did not qualify for treatment. ECF No. 1-1 at 4. He also alleges that on December 9, 2017, at Defendant Joyner's request, Defendant Perkins again explained BOP's HCV policy to him. ECF No. 1-1 at 6. In his Supplemental Complaint, Plaintiff reiterates his allegation that Perkins only recited BOP policy to him in response to his requests for treatment. ECF No. 1-3 at 6. Plaintiff also complains about Perkins's response to a similar proposal made concerning a halfway house that he made to Warden Joyner. ECF No. 1-3 at 6. Specifically, Plaintiff alleges that "Mr. Perkins refused to make a medical recommendation for a more opportune RRC date so Plaintiff can seek and pay for treatment." ECF No. 1-3 at 6. Plaintiff also alleges that Defendant Perkins refused to refer Plaintiff to various medical specialists. ECF No. 1-3 at 6-7.
Having reviewed Plaintiff's Complaint, the undersigned agrees with Defendants. Plaintiff's lengthy background allegations with brief references to these Defendants do not support a plausible Bivens claim. Therefore, despite Plaintiff's invitation to do so, this court may not infer personal involvement by Defendants Barr, Inch, Conners, Keller, Joyner, Bradley, or Perkins where there are no clear factual allegations showing that they did or did not do anything that personally led to any injury suffered by Plaintiff. To do so would violate the pleading rules set out in the Iqbal and Twombly cases because the allegations do not allow the court to draw the reasonable inference that either defendant is liable for the misconduct alleged by the Plaintiff. Plaintiff also fails to establish plausible claims of supervisory liability because he has not shown, for example, supervisory knowledge of widespread unconstitutional conduct of his subordinates. Accordingly, the undersigned recommends that the District Court grant Defendants' Motion to Dismiss with regard to Plaintiff's claims that Defendants Barr, Inch, Conners, Keller, Joyner, Bradley, or Perkins failed to treat him for HCV.
2. Plaintiff's Bivens Claim against Defendants Lepiane, Lloyd, and Garcia
In their Motion for Summary Judgment, these Defendants are referred to as the "Medical Defendants." ECF No. 59 at 26, n. 7.
According to Plaintiff's Complaint, Defendant Lepiane was a medical doctor at FCI Estill. ECF No. 1-1 at 4. Defendants state that he is FCI Estill's Clinical Director. Lepiane Decl. at 1, ¶ 1; ECF No. 59-9 at 1. Defendants argue that Defendant Lepiane is entitled to summary judgment because he did not violate Plaintiff's Eighth Amendment rights. ECF No. 59 at 42-43. Defendants assert that Defendant Lepiane's "role in dealing with patients with HCV is to provide education about the disease, to monitor general health status and any clinical signs of liver failure, to order appropriate lab work, and to make decisions on treatment in accordance with BOP Clinical Practice Guidance." ECF No. 59 at 42. They assert that based on his encounters with Plaintiff in the Chronic Care Center ("CCC"), he is able to monitor Plaintiff's status and order appropriate tests. Id. Defendants argue that "Mr. Hopper did not meet the criteria for immediate treatment with Direct Acting Antiviral Drugs under the clinical guidance that was in effect prior to the most recent update . . . ." and that "[h]is APRI (AST to Platelet Ratio Index) scores were consistently below the policy criteria, and he did not have any comorbid medical conditions or other medical issues related to his HCV that would place him at a higher priority for treatment." Id. at 42-43. Defendants also contend that when new BOP guidance for the treatment of HCV was promulgated, Defendant Lepiane "immediately ordered laboratory tests to get the most up to date information to inform the decision on which treat regimen was appropriate, as per the BOP treatment algorithms for HCV." ECF No. 43. Maryvet was then ordered and approved as an 8-week treatment regimen. Id. at 43. Defendants argue that Plaintiff's allegations, in essence, amount to a disagreement with Defendants over his treatment for HCV. ECF No. 59 at 40.
Plaintiff reasons that Defendant Lapiane's refusal to provide Plaintiff treatment contradicted BOP policy. ECF No. 66 at 3. Plaintiff contends that the BOP policy related to HCV treatment "states that unless a patient has 'any comorbid medical conditions' he is not qualified for treatment." ECF No. 66 at 3. Plaintiff argues that the contradiction between the BOP policy and Defendant Lapiane's treatment is significant because he asserts that he suffers from Thalassemia, which, according to Plaintiff, is a comorbid medical condition. ECF No. 66 at 3.
Thalassemia is an inherited blood disorder caused when the body does not make enough hemoglobin. People with thalassemia may have mild or severe anemia. See https://www.cdc.gov/ncbddd/thalassemia/facts.html (last visited July 30, 2019). Plaintiff's medical records indicate he was diagnosed with B thalassemia minor. See ECF No. 59-21 at 7. "Persons with thalassemia minor have (at most) mild anemia (slight lowering of the hemoglobin level in the blood). This situation can very closely resemble that with mild iron-deficiency anemia. However, persons with thalassemia minor have a normal blood iron level (unless they are iron deficient for other reasons). No treatment is necessary for thalassemia minor. In particular, iron is neither necessary nor advised." See https://www.rxlist.com/beta_thalassemia/article.htm (last visited July 30, 2019). In a July 14, 2016 clinical encounter, Dr. Lepiane assessed Plaintiff with "other thalassemia" and noted his H/H [hemoglobin and hematocrit] was normal and he was at his baseline. ECF No. 59-22 at 5.
The undersigned agrees with Defendants. The record establishes that it was the BOP policy to provide treatment for inmates like Plaintiff with HCV who met the established criteria. According to Defendants, "the BOP uses an indirect biomarker called the APRI (Aspartate Aminotransferase (AST) to Platelet Ratio Index) which is a calculation using results from simple blood tests. This is a scientifically validated way of assessing liver fibrosis."" ECF No. 59 at 12-13. In using APRI as an indicator of progressive or advanced hepatic fibrosis, the BOP established cut-off criteria to determine if inmates would receive treatment. ECF No. 59 at 13. Between 2013 and 2018, the BOP cutoffs for treatment ranged from >/= .7 to >/= 2.0. ECF No. 59 at 13. The BOP used these guidelines to enable it to treat the most serious cases of HCV first. According to Defendants, "The BOP expanded its criteria for treatment in January 2018, incorporating the two most recently approved medications (Mavyret and Vosevi) and some other changes in the AASLD [American Association for the Study of Liver Diseases] guideline." ECF No. 59 at 13.
Based on a laboratory test administered on October 22, 2012, Plaintiff was diagnosed with HCV. Ex 59-18 at 15. He received subsequent medical examinations and tests which included APRI tests. On June 23, 2014, he had a clinical encounter and his APRI score was .58. ECF No. 59 at 16, ECF No. 59-20 at 6. A subsequent test revealed an APRI score of .476 on June 6, 2015. ECF No. 59 at 16; ECF No. 59-21 at 29.
Plaintiff arrived at FCI Estill on July 12, 2016. ECF No. 59 at 17; ECF No. 59-2. Defendant Lepiane saw him two days later. ECF No. 59 at 17, ECF No. 59-22 at 2-6. At that time, Defendant Lepiane noted his June 6, 2015 APRI score of .476 and determined that because it was low, Plaintiff was not a candidate for treatment. ECF No. 59 at 17; ECF No. 59-22 at 5. At that time, Defendant Lepiane ordered that a liver function test be performed on August 8, 2016. ECF No. 59 at 17-18; ECF No. 59-22 at 5-6. He scheduled Plaintiff to return to CCC in twelve months. ECF No. 59 at 18, ECF No. 59-22 at 6. Plaintiff's next CCC examination occurred on July 6, 2017, and it was noted that Plaintiff's most recent APRI score was .527 and again determined that Plaintiff did not qualify for treatment. Id. Defendant Lepiane saw Plaintiff once again on June 25, 2018 for CCC treatment. ECF No. 59 at 21, ECF No. 59-24 at 14. Defendant Lepiane noted that Plaintiff's APRI was .533 and again determined that Plaintiff was not a candidate for treatment.
BOP issued a new version of its HCV Clinical Guidance and Defendant Lepiane noted its publication on September 6, 2018. ECF No. 59 at 22, ECF No. 59-24 at 9. Defendant Lepiane noted that Plaintiff was now eligible for treatment and ordered appropriate tests. ECF No. 59 at 22-23. On November 13, 2018, Plaintiff met with a Pharmacist to begin the prescribed treatment regimen which consisted of Maryvet oral tablet, and he took his first dose on November 14, 2018. ECF No. 59 at 23, ECF No. 59-24 at 45, 1. Defendants assert that once an inmate begins a treatment regimen, he continues that regimen "through completion unless it becomes medically contraindicated, shows evidence of lack of efficacy or the inmate refuses to take the medication." ECF No. 59 at 23; Lepiane Decl. at ¶ 2-3; ECF No. 59-9 at 2-3; Allen Decl. at ¶ 12; ECF No. 59-14 at 5-6.
Defendants argue that Nurse Lloyd saw Plaintiff on one occasion and referred him to a higher-level medical care provider who could address his HCV. ECF No. 59 at 41-42. Defendants note that Defendant Lloyd saw Plaintiff on October 13, 2017. ECF No. 59 at 18, ECF No. 59-23 at 3. Defendant Lloyd noted Plaintiff's statement that "[a]lso, since the government has all the money, I want the Hep C treatment. That's the biggest thing. I already did a BP-8 because y'all been spinnin me. If they gone keep me locked up in here they gone give me somethin." ECF No. 59 at 18, ECF No. 59-23 at 3. She further recorded that on September 20, 2017 Plaintiff's lab work was updated, that his liver function studies were within normal limits, and that his ASTs were slightly elevated. ECF No. 59-23 at 4. Plaintiff contends that he saw Defendant Lloyd twice. ECF No. 1-1 at 6. Plaintiff alleges that on the second occasion, on December 6, 2017, he reported to Nurse Lloyd for treatment for stomach pains and HCV. ECF No. 1-1 at 6. Plaintiff also contends that he told Defendant Lloyd about court's decision in Cunningham. Id. According to Plaintiff, Defendant Lloyd "told [him] to watch the call-out for the blood lab," but that as of the date of the filing of his Complaint, he had still not been called. ECF No. 1-1 at 6.
Defendants note that Defendant Garcia saw Plaintiff on November 1, 2017. ECF No. 59 at 19; ECF No. 59-23 at 1. In response to Plaintiff's request for treatment, Garcia noted Plaintiff's APRI score of .533 and stated that Plaintiff did not qualify for high-priority treatment. ECF No. 59 at 19; ECF No. 59-23 at 1. Defendant Garcia then "counseled Mr. Hooper on HCV, educated him about HCV treatment, and instructed him to follow up at the Chronic Care Clinic." Id. ECF No. 59-23 at 2. Garcia next saw Plaintiff on June 20, 21, 22, and 26 of 2018 during encounters related to his surgery for a hernia. ECF No. 59 at 20; ECF No. 59-24 at 20-28. Defendants note that Defendant Garcia saw Plaintiff mainly for issues related to his hernia and that his "role in dealing with patients with HCV is limited, and he is to provide education about the disease, monitor general health status and any clinical signs of liver failure, order appropriate lab work, and notify the physician of any pertinent changes. Qualification for specific treatment regimens is a decision made by the supervising physician." ECF No. 59 at 42.
In his Complaint, Plaintiff alleges that he saw Garcia on November 6, 2017 and complained of stomach pains. ECF No. 1-1 at 4. Plaintiff alleges that Garcia told him that they were probably stomach pains from gas and that Plaintiff responded that they were HCV symptoms. Id. Plaintiff alleges that Garcia then told him that according to BOP policy, he did not qualify for treatment. Id. Plaintiff also alleges that despite his many complaints about his HCV symptoms, "Garcia failed to recommend Plaintiff for a consult with a Heptologist, endocrinologist, for a MRI, gastroenterologist, or any specialist trained in the study of HCV. PA Garcia failed to education Plaintiff on the symptoms or the medications not to take while suffering from HCV." ECF No. 1-3 at 4.
The undersigned has reviewed the record, including the parties' respective pleadings, Defendants' affidavits, and Plaintiff's medical records and finds that Plaintiff has failed to furnish facts or evidence sufficient to survive summary judgment. While HCV is undisputedly a serious condition, Plaintiff has not offered any evidence to show that he has suffered any injury from Defendants' denying him advanced treatment for his HCV condition until November 2018. See ECF No. 59-24. This case is analogous to Crooker v. Stewart, in which the plaintiff alleged that 30 he was denied a specific course of treatment and where his physicians and the BOP determined that he was not eligible for the requested treatment. C/A No. ELH-14-1972, 2015 WL 12102019, at *6 (D. Md. March 13, 2015. The court found that
To be sure, petitioner's HCV is a serious medical condition. But, he has failed to demonstrate that he is at risk of serious harm if he is not administered the new drug regimen. In fact, under the conservative course of treatment now in progress, his condition has remained stable, he is asymptomatic, and his liver ultrasounds show no acute distress. As petitioner cannot demonstrate an objective medical need for the drug regimen requested, there can be no finding of deliberate indifference.Id. at *12. Like the plaintiff in Crooker, the undersigned recommends a finding that Plaintiff in the instant case has not established the objective element of the test for deliberate indifference to medical needs because he has failed to show that he suffered any harm as a result of the course taken by the BOP.
Plaintiff also cannot establish the subjective element. As outlined above, Defendants Lepiane, Lloyd, and Garcia monitored his condition, administered appropriate tests, and provided care consistent with BOP guidelines. When those guidelines changed and allowed the treatment Plaintiff requested, Defendants administered that treatment. Plaintiff may disagree with Defendants approach to his care, but "[a]bsent exceptional circumstances, an inmate's disagreement with medical personnel with respect to a course of treatment is insufficient to state a cognizable constitutional claim, much less to demonstrate deliberate indifference." Hinton v. McCabe, CA No. 3:16CV222, 2018 WL 1542238, *4 (E.D. Va. March 29, 2018).
In Hinton, the court noted that the "vast medical record" in that case, like the extensive medical record in the instant case, demonstrated that providers "ordered laboratory tests in order to have baseline results for [the plaintiff]," and "ordered further testing to ascertain the type of stage of the disease." Id. at *5. The court also noted that, as in the instant case, "[the plaintiff] has regular chronic care appointments for his Hepatitis C and has been monitored for any change in his fibrosis score and liver values." Id. The court found that "lab tests demonstrated that [the plaintiff's] fibrosis score was low and that his liver values were in the normal range for a healthy adult." Id at *5. Based on its analysis, the court found that "[the plaintiff] wholly fails to demonstrate that [defendant] knew of and disregarded an excessive risk to [plaintiff's] health." Id. (citing Farmer v Brennan, 511 U.S. 825, 837 (1994)). As in Hinton, Plaintiff here has not established the subjective element because he has failed to demonstrate that Defendants knew of or disregarded a high risk to Plaintiff's health or provided care that was "so grossly incompetent, inadequate, or excessive as to shock the conscience or be intolerable to fundamental fairness." Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1990). Accordingly, the undersigned recommends a finding that Plaintiff has failed to establish the subjective element and that Defendants' Motion for Summary Judgment with respect to Plaintiff's claim for deliberate indifference be granted.
e. Qualified Immunity
Because the undersigned recommends dismissal of Plaintiff's Bivens claims against Defendants Inch, Connors, Keller, Joyner, Bradley, and Perkins for failure to state a plausible claim, Defendants' assertions that they should be entitled to qualified immunity will not be addressed. See DiMeglio v. Haines, 45 F.3d 790, 799 (4th Cir. 1995) ("In many cases where a defendant has asserted qualified immunity, dismissal or even an award of summary judgment may be obviously warranted, based upon existing law, without the court ever ruling on the qualified immunity question."). The undersigned will, however, address whether Defendants Lepiane, Lloyd, and Garcia are entitled to qualified immunity with respect to Plaintiff's Bivens claims.
"The burden of proof and persuasion with respect to a defense of qualified immunity rests on the official asserting that defense." Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013). "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). When a defendant asserts the affirmative defense of qualified immunity, the court must determine "whether the facts that a plaintiff has alleged ... make out a violation of a constitutional right[,]" and "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Id. at 232 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In determining whether the law was clearly established, the court "ordinarily need not look beyond the decisions of the Supreme Court, [the Fourth Circuit Court of Appeals], and the highest court of the state in which the case arose." Lefemine v. Wideman, 672 F.3d 292, 298 (4th Cir. 2012) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 251 (1999)), vacated on other grounds, 133 S. Ct. 9 (2012); Morris v. Fletcher, No. 7:15CV00675, 2017 WL 1161888, at *2 (W.D. Va. Mar. 27, 2017).
Defendants argue they are entitled to qualified immunity on Plaintiff's claims. ECF No. 59 at 43-44. When evaluating a qualified immunity defense, the court must determine (1) whether the facts alleged, taken in the light most favorable to the plaintiff, show that the defendants' conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). The two prongs of the qualified immunity analysis may be addressed in whatever order is appropriate given the circumstances of the particular case. Id. at 236. In determining whether the right violated was clearly established, the court defines the right "in light of the specific context of the case, not as a broad general proposition." Parrish v. Cleveland, 372 F.3d 294, 301. (4th Cir.2004). "If the right was not clearly established in the specific context of the case—that is, if it was not clear to a reasonable officer that the conduct in which he allegedly engaged was unlawful in the situation he confronted—then the law affords immunity from suit." Id. (citations and internal quotation omitted).
In his Response to Defendants' Motion for Summary Judgment and in his discussion with BOP providers and officials, Plaintiff relied on Cunningham v. Sessions in support of his requests for treatment for his HCV. C/A No. 9:16-cv-1292-RMG, 2017 WL 2377838, at *1-5 (D.S.C. Sep. 5, 2017). In Cunningham, the plaintiff was diagnosed with HCV, and he alleged that the defendants refused him the new Direct Acting Antiviral drugs as treatment. Id. at *1. The plaintiff also alleged that the defendants told him that he would not receive treatment until he contracted cirrhosis of the liver or liver cancer. Id. The plaintiff sued the defendants for injunctive and declaratory relief and for damages under Bivens and the defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Id. The court denied the defendants' motion on the plaintiff's claim for injunctive and declaratory relief because it found that at that stage of the litigation, the plaintiff's allegations that the defendants refused to provide him treatment for HCV "poses a substantial risk of causing him serious harm . . ." sufficient to establish the objective element of the test for deliberate indifference. Id. at *4. The court also found that the plaintiff alleged a plausible claim under the subjective element "because, if proven, it could show that the [d]efendants were aware that their actions created the substantial risk of serious harm, namely, that Plaintiff's chronic Hepatitis C infection could lead to cirrhosis, liver failure, liver cancer, and death." But the court granted the defendants' motion to dismiss the plaintiff's Bivens claim on qualified immunity grounds. Id. at *4. The court stated that
In light of the rapidly evolving legal and medical developments in this area and the absence of any controlling Fourth Circuit or Supreme Court authority on the legal issue before the Court, there is no clearly established statutory or constitutional right at this time for inmates with chronic Hepatitis C to be treated with DAA drugs. Consequently, Defendants in this action are entitled to qualified
immunity from any damage claims arising from the denial of DAA drugs to inmates. For this reason, Plaintiff's Bivens claims against all Defendants are dismissed.Id. at *4.
For the reasons outlined above, the undersigned recommends a finding that Defendants Lepiane, Lloyd, and Garcia performed the discretionary functions of their respective official duties in an objectively reasonable fashion and that Defendants did not transgress any statutory or constitutional rights of Plaintiff that they were aware of in the exercise of their respective professional judgments. Thus, to the extent the district judge finds that a constitutional violation occurred, the undersigned recommends that these Defendants be granted qualified immunity because, as the Cunningham court found, the Defendants did not violate constitutional rights clearly established by either the Fourth Circuit or the Supreme Court.
f. Absolute Immunity: Public Health Service Officer Defendant Regina D. Bradley
Defendants argue that Defendant Bradley enjoys absolute immunity from suit because she is an official of the U.S. Public Health Services. ECF No. 59 at 44. The Public Health Service Act, 42 U.S.C. § 233(a), "grants absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct. By its terms, § 233(a) limits recovery for such conduct to suits against the United States." Hui v. Castemada, 559 U.S. 799, 806 (2010).
The record in this matter establishes that Defendant Bradley is an officer of the Public Health Services. Decl. of Bradley, ECF No. 59-7 at 1, ¶ 1. Therefore, the undersigned recommends a finding that she is immune from suit and that summary judgment in her favor be granted.
IV. Conclusion
Based on the foregoing, the undersigned recommends that Defendants Inch, Conners, and Keller's Motion to Dismiss under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction be granted. See ECF No. 50
The undersigned also recommends the Motion for Summary Judgment of all Defendants on all of Plaintiff's claims be granted. See ECF No. 59.
IT IS SO RECOMMENDED.
July 31, 2019
Florence, South Carolina
/s/
Kaymani D. West
United States Magistrate Judge