Opinion
2:21-cv-02942-DCC-MGB
10-12-2022
Vincent Shamont Rogers, Plaintiff, v. Warden of FCI McDowell, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Vincent Shamont Rogers (“Plaintiff”), a former federal prisoner proceeding pro se and in forma pauperis, brings this civil action alleging violations of his constitutional rights pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Under 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2) (D.S.C.), the undersigned is authorized to review all pretrial matters in this case and submit findings and recommendations to the assigned United States District Judge. For the reasons discussed below, the undersigned recommends that this action be summarily dismissed, without prejudice and without issuance and service of process.
BACKGROUND
On July 15, 2008, a jury found Plaintiff guilty of robbery and aiding and abetting the same in violation of 18 U.S.C. § 1951(a); and using or carrying a firearm during and in furtherance of a crime of violence and aiding and abetting the same in violation of 18 U.S.C. § 924(c)(1)(A).(See Crim. Case No. 7:08-cr-00216-MGL-2, Dkt. No. 79.) The United States District Court for the District of South Carolina ultimately sentenced Plaintiff to a term of 730 months' imprisonment. (Crim. Case No. 216, Dkt. No. 116.) On January 4, 2021, Plaintiff filed a motion for compassionate release based on the Fourth Circuit's decision in United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), and received a reduced sentence of time served on August 10, 2021. (Crim. Case No. 216, Dkt. Nos. 328, 329, 354.) The Court ordered the Federal Bureau of Prisons (“BOP”) to “notify Rogers of [the] decision immediately and release him within ten days of the date of [the] Order.” (Crim. Case No. 216, Dkt. No. 354.) At the time of the Court's order, Plaintiff was apparently incarcerated at the Federal Correctional Institution, McDowell in Welch, West Virginia (“FCI McDowell”).
The undersigned takes judicial notice of Plaintiff's underlying criminal action, the citations to which are hereinafter marked, “Crim. Case No. 216.” See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) (explaining that a federal court may take judicial notice of the contents of its own records, as well as those records of other courts); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989).
The instant Complaint asserts that Plaintiff was not released from FCI McDowell until August 26, 2021-six days after the processing deadline prescribed by the Court's compassionate release order. (Dkt. No. 1 at 4.) More specifically, Plaintiff states that,
[b]y failing to follow court orders, Warden FCI McDowell violated the Fourth Amendment rights of Vincent Rogers to leave as a free person. Also, the Unit Team of the A3 Housing Unit at FCI McDowell failed to comply with the [Court's] order in processing the release of Vincent Rogers within the said period set forth by the United States District Court.(Id.) As a result of his continued confinement, Plaintiff claims that he suffered “extreme stress and anxiety” and “was exposed to potential dangers daily.” (Id. at 5.) Plaintiff seeks $50,000 in damages. (Id.)
PROCEDURAL HISTORY
After reviewing the initial filings in this action, the undersigned issued an order informing Plaintiff that his case was not in proper form and directing him to file several outstanding documents within twenty-one days if he wished to proceed with the lawsuit. (Dkt. No. 5.) The order warned Plaintiff that it was his responsibility to notify the Clerk of Court regarding any changes to his address to ensure that he received orders and/or other instructions specifying deadlines for his case. (Id. at 2.) The undersigned emphasized that if Plaintiff missed a deadline set by the Court because he failed to notify the Clerk of an address change, his case would be dismissed. (Id.) Plaintiff eventually complied with the undersigned's directions and submitted the necessary proper form documents within the time permitted by the order. (Dkt. Nos. 7, 8.)
With Plaintiff's case in substantially proper form, the undersigned then turned to the substance of his claims. Upon reviewing the Complaint, the undersigned issued a second order notifying Plaintiff that his action was subject to summary dismissal for failure to state a claim upon which relief may be granted. (Dkt. No. 10.) In light of Plaintiff's pro se status, however, the undersigned gave him an opportunity to cure the deficiencies identified in the original pleading by filing an amended complaint with the Court within twenty-one days. The order warned Plaintiff that failure to file an amended complaint or cure the pleading deficiencies within the prescribed time period would result in summary dismissal. (Id. at 4.)
Plaintiff apparently did not receive the second order, which was returned to the Court as undeliverable mail with a stamp on the envelope stating, “Attempted Not Known,” and “Unable to Forward.” (Dkt. No. 13.) Plaintiff has not provided the Court with a new address at which he receives mail, and the record indicates no attempt by Plaintiff to contact the Court since filing the Complaint. Thus, Plaintiff has not filed any amended pleading, and the time to comply with the undersigned's order has lapsed.
STANDARD OF REVIEW
Plaintiff filed this action pursuant to 28 U.S.C. § 1915, which permits indigent litigants to commence actions in federal court without prepaying the administrative costs of proceeding with such lawsuits. To protect against possible abuses, the court must dismiss any complaints, or portions of complaints, that are frivolous or malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992). Indeed, a claim based on a meritless legal theory may be dismissed sua sponte “at any time” under 28 U.S.C. § 1915(e)(2)(B). Neitzke v. Williams, 490 U.S. 319, 324-25 (1989). The United States Supreme Court has explained that the statute “is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits.” Id. at 326.
As to failure to state a claim, a complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” as required under Rule 8 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 8(a)(2). In order to satisfy this standard, a plaintiff must do more than make conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that the court need not accept as true a complaint's legal conclusions). Rather, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When “it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations,” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), the complaint fails to state a claim.
Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is therefore charged with liberally construing a complaint filed by a Pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure to allege facts that set forth a cognizable claim under Rule 8(a)(2). See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (2009) (outlining pleading requirements under Rule 8, Fed. R. Civ. P., for “all civil actions”). Such is the case here.
DISCUSSION
At the outset, the undersigned clarifies that while Plaintiff brings this action pursuant to the Fourth Amendment, claims of over-detention typically fall under the purview of the Eighth and Fourteenth Amendments. See Campbell v. Florian, 972 F.3d 385, 394 (4th Cir. 2020), as amended (Aug. 28, 2020); West v. Prince George's Cnty., Maryland, No. 8:21-cv-863-TDC, 2022 WL 125936, at *4 (D. Md. Jan. 13, 2022). Regardless of how Plaintiff characterizes his constitutional rights, however, his claims likely fall short under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
In Bivens, the United States Supreme Court recognized an implied damages remedy against federal officers for Fourth Amendment violations regarding a warrantless search and arrest. 403 U.S. at 397. Since this decision, the Supreme Court has explicitly recognized only two other claims actionable under the Bivens rubric: Carlson v. Green, 446 U.S. 14, 20-21 (1980) (recognizing an Eighth Amendment claim based on a failure by federal prison officials to address a serious medical condition); and Davis v. Passman, 442 U.S. 228, 243 (1979) (recognizing a Fifth Amendment claim based on sex discrimination).
Notably, the Supreme Court's willingness to extend Bivens-type remedies has grown increasingly narrow, as evidenced by its repeated rejections of subsequent attempts to expand the holding to other alleged constitutional violations. See Ziglar v. Abbasi, 582 U.S. __, ___, 137 S.Ct. 1843, 1857 (2017) (“Given the notable change in the Court's approach to recognizing implied causes of action, . . . the Court has made clear that expanding the Bivens remedy is now a ‘disfavored' judicial activity.”) (citing Iqbal, 556 U.S. at 675). To be sure, the Supreme Court most recently clarified in Egbert v. Boule, 142 S.Ct. 1793 (2022), which rejected a Fourth Amendment claim with extremely close factual and legal parallels to Bivens, that “[i]f there is even a single ‘reason to pause before applying Bivens in a new context,' a court may not recognize a Bivens remedy.” See 142 S.Ct. at 1803 (citing Hernandez v. Mesa, 589 U.S. __, ___, 140 S.Ct. 735, 743 (2020)); see also Silva v. United States, No. 21-1008, 2022 WL 3023684, at *4 (10th Cir. Aug. 1, 2022) (noting that Egbert now renders the expansion of Bivens “impermissible in virtually all circumstances”). Accordingly, the undersigned notes that Plaintiff's Complaint likely fails under Egbert's more demanding approach, which now renders a Bivens remedy unavailable “in most every case.” Egbert, 142 S.Ct. at 1803. Nevertheless, for purposes of this Report and Recommendation only, the undersigned assumes that a Bivens remedy is available in this case.
“In the limited settings where Bivens does apply, the implied cause of action is the federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Iqbal, 556 U.S. at 675 (internal citations omitted). In both kinds of suit, “a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. at 676; see also Wilcox v. Brown, 877 F.3d 161, 170 (4th Cir. 2017) (noting that the defendant must be personally involved in the deprivation of the constitutional violation). More specifically, in the context of over-detention, the plaintiff must show “deliberate indifference,” meaning the defendant(s) had actual knowledge of and disregarded a substantial risk of harm-i.e., continued confinement when the plaintiff was entitled to be released. West, 2022 WL 125936, at *5.
In the instant case, the Complaint simply states that the warden and A3 Housing Unit at FCI McDowell violated Plaintiff's rights by delaying his release from custody following the compassionate release order. (Dkt. No. 1 at 4.) Beyond this bare, cursory claim, however, the Complaint is devoid of any substantive allegations that demonstrate these parties were aware of the compassionate release order and/or disregarded the instructions therein with deliberate indifference. See Spivey v. Breckon, No. 7:20-cv-400-MFU-JCH, 2022 WL 2317448, at *2 (W.D. Va. June 28, 2022) (explaining that because the plaintiff “must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right, . . . [v]ague allegations of wrongdoing leveled against all defendants do not suffice. . . .”) (internal citations omitted); see also Iqbal, 556 U.S. at 678 (noting that while the federal pleading standard does not require “detailed factual allegations,” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Accordingly, as the undersigned previously warned Plaintiff, the Complaint fails to allege the requisite personal involvement needed to establish to an actionable constitutional violation. (See Dkt. No. 10 at 3.)
Along these same lines, the undersigned notes that while the Complaint does not explicitly name any members of the A3 Housing Unit team as defendants in this matter, Plaintiff's general references to the staff-without identifying the specific individuals involved in the purported deprivation of his constitutional rights-fail to establish the personal involvement required under Bivens. See Spivey v. Breckon, No. 7:20-cv-400-MFU-JCH, 2022 WL 2317448, at *3 (W.D. Va. June 28, 2022) (finding insufficient factual allegations of personal involvement where pleading was “replete with allegations that fail[ed] to identify who committed the alleged wrongdoing”); see also Allen v. City of Graham, No. 1:20-cv-997, 2021 WL 2037983, at *2 (M.D. N.C. May 21, 2021) (“[G]rouping multiple defendants together in a broad allegation is insufficient to provide the defendants with fair notice of the claims against them.”).
To the extent Plaintiff is attempting to hold the warden responsible in his or her supervisory capacity, the undersigned further notes that the doctrines of vicarious liability and respondeat superior generally are not applicable in Bivens actions. Iqbal, 556 U.S. at 676-77; see also Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (stating that, to establish supervisory liability, the plaintiff must show (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). To that end, “a warden's general responsibility for supervising the operations of a prison is insufficient to establish personal involvement.” Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987). Thus, without more, Plaintiff cannot demonstrate supervisor liability here. (See Dkt. No. 10 at 3-4.)
Moreover, it is well-established that neither federal agencies nor federal officials in their official capacities can be sued for monetary damages in a Bivens action. See Doe v. Chao, 306 F.3d 170, 184 (4th Cir. 2002) (observing that “a Bivens action does not lie against either agencies or officials in their official capacity”); see also F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”). In other words, “a Bivens action is only cognizable against federal officials in their personal or individual capacities.” Barkley v. Warden, FCI Williamsburg, No. 0:18-cv-122-DCN-PJG, 2018 WL 706334, at *2 (D.S.C. Feb. 5, 2018). Consequently, any claims for damages against the warden (and/or members of the A3 Housing Unit team) in his or her official capacity are barred.
Finally, the undersigned reiterates that while a liberal construction of the Complaint suggests that Plaintiff may also be attempting to raise a claim under the Federal Torts Claim Act, 28 U.S.C. §§ 2671-2680, 1346(b) (“FTCA”), any such claim likewise fails under § 1915. (See Dkt. No. 10 at 4 n.5.) The FTCA provides a limited waiver of the United States' sovereign immunity from suit by allowing a plaintiff to recover damages in a civil action for loss of property or personal injuries caused by the “negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). Claims arising under the FTCA must be brought against the United States, rather than the individual officers or agency allegedly responsible. Id. Additionally, the plaintiff must present the claim to the appropriate federal agency and obtain a final ruling before filing an FTCA claim in federal court. Id. § 2675(a). Because the Complaint fails to name the proper defendant or allege any facts showing that Plaintiff exhausted his administrative remedies, any claims under the FTCA are subject to summary dismissal.
CONCLUSION
For the reasons discussed above, the undersigned RECOMMENDS that the Court summarily DISMISS Plaintiff's claims in their entirety without prejudice and without further leave to amend, as he has already had the opportunity to do so. See Britt v. DeJoy, 45 F.4th 790, 798 (4th Cir. 2022). Accordingly, the Clerk of Court shall not issue the summons or forward this matter to the United States Marshal Service for service of process at this time.
The Clerk of Court shall mail a hardcopy of this Report and Recommendation to Plaintiff at his last known address in an abundance of caution.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).