Opinion
Civil Action 3:19-CV-217 (GROH)
06-02-2021
JESSE RUSSELL SIMPSON, Plaintiff, v. A. McCABE, DAP-C Chief of Psychology, C. GOMEZ, Warden, WOLEVER, Associate Warden, TEJERA, Unit Manager, LAYHUE, Correctional Counselor, B. PLAVI, Correctional Counselor, EDWARDS, Correctional Counselor, BARKASZI, Case Manager, E. DODRILL, Case Manager, FULLEN, Captain, DULLA, Correctional Officer, DAVID RUDY, Correctional Counselor, D. K. WILLIAMS, Warden, S. MOORE, Unit Manager, BREECE, Case Manager, G. HORNKOHL, Correctional Counselor, WHITLEY, Captain, WARDEN HAYES, SIS Lieutenant, O'CAIN, Lieutenant, NORTH, Lieutenant, GUINN, Lieutenant, FOISEY, Correctional Officer, SANTIAGO, Correctional Officer, MAYS, Recreation Specialist, JOHN B. FOX, Warden OK FTC, UNKNOWN WARDEN OF OKLAHOMA CITY FTC, UNKNOWN CAPTAIN OF OKLAHOMA CITY FTC, and JEREMY LYON, Acting Unit Manager, REBECCA STACY, Psychologist, CRUZ, Correctional Officer, Defendants.
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On December 27, 2019, the pro se Plaintiff, who was previously a federal prisoner incarcerated at Morgantown FCI, in Morgantown, West Virginia, initiated this case by filing an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming his Constitutional rights were violated. ECF No. 1. Plaintiff filed a third amended complaint on May 15, 2020, which superseded all prior complaints. ECF No. 34. Plaintiff also filed 19 additional pages in support of his complaint. ECF No. 41. The third amended complaint alleges that prior to his incarceration at Morgantown FCI, Plaintiff was previously confined at FCI Danbury in Danbury, Connecticut and the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma. ECF Nos. 34, 41. Plaintiff alleges that it was during his confinement at these three institutions that the events occurred which led to this civil action being filed. Id.
All CM/ECF numbers cited herein are from the instant case, 3:19-CV-217, unless otherwise noted.
Defendants filed a motion to dismiss, a memorandum and exhibits in support thereof on January 26, 2021. ECF Nos. 90, 90-1 through 90-5.
Plaintiff filed a declaration on February 3, 2021, related to his religion, Orthodox Therian Shamanism. ECF No. 93-1. On February 16, 2021, Plaintiff filed a response to Defendants' motion to dismiss. ECF No. 95.
On March 5, 2021, the Court granted Plaintiff's motion to supplement the third amended complaint with Plaintiff's declaration filed on February 3, 2021. ECF No. 96.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that Plaintiff's complaint be dismissed with prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
In his complaint Plaintiff names as Defendants various correctional officers, wardens, and medical professionals from all three facilities, Morgantown FCI, Danbury FCI, and Oklahoma City FTC, whom he claims all conspired to violate his Constitutional rights. ECF Nos. 34, 41.
Plaintiff raises six grounds for relief, claiming that defendants: (1) retaliated against him for exercising his First and Eighth Amendment rights; (2) violated Plaintiff's due process rights; (3) subjected Plaintiff to cruel and unusual punishment; (4) subjected Plaintiff to unreasonable searches and seizures; (5) violated Plaintiff's rights under the Religious Freedom Restoration Act (RFRA); and (6) violated Plaintiff's equal protection rights based on his LGBT status, frequent complaints, mental health disabilities and religious beliefs. ECF No. 34 at 19-22. Within the portion of the Court-approved form to identify defendants, Plaintiff further asserts that Defendant Rudy sexually assaulted him while Defendant Dulla watched. ECF No. 34 at 6. In his supplement, Plaintiff asserts that those acts by Rudy and Dulla constituted cruel and unusual punishment. ECF No. 41 at 18.
Plaintiff claims that all these alleged violations of his rights caused him psychological injury, but does not specify any physical injury which resulted from the alleged violations, save the injury allegedly caused by Defendant Rudy. ECF Nos. 34 at 22, 41 at 18. In the section of the Court-approved form to describe his injuries, Plaintiff asserts:
Plaintiff was denied adequate mental health treatment for over a year. Plaintiff was retaliated against for First and Eighth Amendment protected activities, including Special Housing Unit placement and incident reports, etc. Defendants intentionally inflicted psychological injury on Plaintiff as a result of his complaint filing and religious beliefs. Defendants subjected Plaintiff to cruel and unusual punishment.Id. In the additional pages, Plaintiff claims that defendant Rudy groped and digitally penetrated him while he was incarcerated in the Special Housing Unit (SHU) at Morgantown FCI, which “sometimes caus[ed] bleeding”. ECF No. 41 at 18. Plaintiff also claims that he was sexually assaulted by another unidentified inmate while incarcerated at Oklahoma City FTC. Id. at 8.
The Court notes that a Bivens suit is a vehicle for individuals to assert a cause of action for damages caused by federal agents. Accordingly, any claim against another inmate is improperly considered in a Bivens proceeding.
Plaintiff seeks a total of three million dollars ($3,000,000.00) in damages: (1) one million ($1,000,000.00) in compensatory damages; (2) one million ($1,000,000.00) in punitive damages; and (3) one million ($1,000,000.00) in nominal damages. Id. at 19. Further, Plaintiff seeks an injunction as to defendant Rudy to prevent him from having contact with Plaintiff or other inmates, and to mandate Defendants to disclose the identity of the inmate who sexually assaulted Plaintiff. Id.
Defendants argue in their motion to dismiss that: (1) Plaintiff fails to state a claim upon which relief may be granted; (2) Plaintiff fails to state a claim of conspiracy; (3) Defendant McCabe is entitled to absolute immunity; (4) Plaintiff's claims against non-West Virginia defendants should be dismissed for improper venue; (5) Plaintiff fails to demonstrate deliberate indifference to his medical conditions, as required for Bivens liability; (6) Plaintiff's claims of retaliatory incident reports, SHU placement, SIS investigations and transfer to other facilities are not cognizable Bivens claims based on the holding of Ziglar v. Abbasi, 137 S.Ct. 1842 (2017); (7) BOP has broad discretion to transfer inmates between correctional facilities; and (8) Plaintiff fails to establish that his religious belief is sincere. ECF No. 90-1.
In Plaintiff's declaration on his religion, he asserts, inter alia, that his religion “requires Plaintiff to wear an imitation Wolf tail, at all times and during daily activities, under punishment of eternal damnation, ” and that it “is important that the tail be worn . . . [because] the tail collects spiritual essence.” ECF No. 93-1 at 1, 6. In a declaration attached to Defendants' motion to dismiss, defendant McCabe, Chief of Psychology at FCI Morgantown, wrote that she:
Was not aware of the Plaintiff's religious beliefs until I was contacted by a colleague who showed concern that the behavior the Plaintiff was showing could be signs of mental illness, specifically, that he was claiming to be a wolf. . . . .
On January 28, 2019, I completed a psychological assessment on Plaintiff designed to measure if an individual was feigning mental health symptoms. The results of the assessment clearly illustrated the Plaintiff was feigning mental health symptoms. When I scored his assessment and evaluated this result in the light of previous reports of mental health symptoms and behaviors, it became clear that the Plaintiff was malingering mental health symptoms in hopes for more favorable treatment and conditions while housed in the Special Housing Unit (SHU).ECF No. 90-5 at 2 - 3.
Plaintiff filed a response to Defendants' motion to dismiss on February 16, 2021. ECF No. 95. Therein, Plaintiff reiterates many of the arguments asserted in his Third Amended Complaint and additional pages [ECF Nos. 34, 41], and cites to several cases to support his arguments. ECF No. 95 at 12 - 14. Among other arguments, Plaintiff asserts that the Fourth Circuit has previously recognized Bivens proceedings as the proper method to challenge retaliation for First Amendment activities. Id. at 12. Further, Plaintiff claims that BOP remedies were not available to him. Id. at 13.
III. LEGAL STANDARD
A. Pro Se Litigants
Because Plaintiff is a prisoner seeking redress from a governmental entity or employee, the Court must review the complaint to determine whether it is frivolous or malicious. Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief.
Courts must read pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants
are immune from suit. . . 490 U.S. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
B. Civil Rights Actions Under Bivens
In Bivens, supra, the Supreme Court recognized that claimants may assert a cause of action for damages caused by federal agents. In FDIC v. Meyer, 510 U.S. 471, 484 - 86 (1994), the Court held that federal agencies may not be held liable in a Bivens claim, writing, “Bivens from its inception has been based . . . on the deterrence of individual officers who commit unconstitutional acts.” Id. See Correctional Services Corp. v. Malesko, 534 U.S. 61, 71 (2001).
Pursuant to Bivens, an individual federal agent may be found liable for actions “in excess of the authority delegated to him.” 403 U.S. at 397. “The purpose of Bivens is to deter individual federal officers from committing constitutional violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Supreme Court further explained in Malesko:
If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual.534 U.S. at 72. Further, in a Bivens case, the Plaintiff must specify the acts taken by each defendant which violate his Constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994); See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988) (“section 1983 claims [have] the additional pleading requirement that the ‘complaint contain a modicum of factual specificity identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs'”).
The Court notes that Bivens actions and § 1983 actions are both civil rights actions, and that Bivens actions regarding deprivation of civil rights are the federal counterpart to state actions authorized by 42 U.S.C. § 1983.
“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Id. “A Bivens claim is brought against the individual official for his or her own acts, not the acts of others.” Ziglar v. Abassi, 137 S.Ct. 1843, 1860 (2017).
The Fourth Circuit has previously:
set forth three elements necessary to establish 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), cert. denied, 513 U.S. 813 (1994); (citing Miltier v. Beorn, 896 F.2d 848, 854 (4th Cir. 1990) (overruled in part on other grounds by Farmer v. Brennan, 511 U.S. 825 (1994)). The Court further explained that, “[t]o satisfy the requirements of the first element, a plaintiff must show the following: (1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.” Shaw, supra, citing Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984).
“A plaintiff may establish deliberate indifference by demonstrating a supervisor's “continued inaction in the face of documented widespread abuses”; however, a plaintiff claiming deliberate indifference “assumes a heavy burden of proof.” Shaw, 13 F.3d at 799. “Causation is established when the plaintiff demonstrates an “affirmative causal link” between the supervisor's inaction and the harm suffered by the plaintiff.” Id.
C. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require 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.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.
Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that, “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[D]etermining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has acted unlawfully, ” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
D. Motions for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), 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.” In applying the standard for summary judgment, the Court must review all the evidence in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the Court of the basis for the motion to, “demonstrate the absence of a genuine issue of material fact.” 477 U.S. at 323. Once “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a verdict.” Anderson, supra, at 256. Thus, the nonmoving party must present specific facts showing the existence of a genuine issue for trial, meaning that “a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248.
To withstand such a motion, the nonmoving party must offer evidence from which a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist of facts which are material, meaning that they create fair doubt rather than encourage mere speculation. Anderson, supra, at 248.
Summary judgment is proper only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita, supra, at 587. “Where the record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Id. citing First Ntl. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592 (1968). See Miller v. Fed. Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). Although any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, where, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Matsushita, supra, at 587-88. Anderson, supra, at 248-49.
IV. ANALYSIS
Although Plaintiff has alleged six claims for relief, the Court views those claims as essentially raising four issues: (1) a First Amendment claim of retaliation for exercise of religion and free speech, including under the Religious Freedom Restoration Act; (2) a Fourth Amendment claim of unreasonable search and seizure; (3) an Eighth Amendment claim of cruel and unusual punishment; and (4) a Fourteenth Amendment claim of due process and equal protection violations.
However, before considering those claims, the Court first considers the propriety of this jurisdiction for these claims, and immunity for various defendants.
A. Lack of Personal Jurisdiction Over Defendants Williams, Moore, Breece, Hornkohl, Whitley, Hayes, O'Cain, North, Guinn, Foisey, Santiago, Mays, Fox, Unknown Warden of Oklahoma City FTC, Unknown Captain of Oklahoma City FTC, Lyon and Stacy
The complaint names as defendants Williams, Moore, Breece, Hornkohl, Whitley, Hayes, O'Cain, North, Guinn, Foisey, Santiago, Mays, Fox, Unknown Warden of Oklahoma City FTC, Unknown Captain of Oklahoma City FTC, Lyon and Stacy, all of whom are employees of either Danbury FCI, in Danbury Connecticut, or Oklahoma City FTC, in Oklahoma City, Oklahoma. Defendants argue that West Virginia is an improper venue to pursue any Defendants whose actions occurred outside of West Virginia.
For a district court to assert personal jurisdiction over a nonresident defendant, two conditions must be satisfied. “First, the exercise of jurisdiction must be authorized by the long-arm statute of the forum state, and, second, the exercise of personal jurisdiction must also comport with Fourteenth Amendment due process requirements.” Christian Sci. Bd. of Directors of First Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001). The West Virginia long-arm statute is contained in W.Va. Code § 56-3-33.
This section provides in part as follows:
(a) The engaging by a nonresident, or by his or her duly authorized agent, in any one or more of the acts specified in subdivisions (1) through (7) of this subsection shall be deemed equivalent to an appointment by such nonresident of the Secretary of State, or his or her successor in office, to be his or her true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him or her, in any circuit court in this state, including an action or proceeding brought by a nonresident plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts, and the engaging in such act or acts shall be a signification of such nonresident's agreement that any such process against him or her, which is served in the manner hereinafter provided, shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he or she regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he or she might reasonably have expected such person to use, consume or be affected by the goods in this state: Provided, That he or she also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(6) Having an interest in, using or possessing real property in this state; or
(7) Contracting to insure any person, property or risk located within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section may be asserted against him or her.
The Fourth Circuit has stated that:
Because the West Virginia long-arm statute is coextensive with the full reach of due process, it is unnecessary . . . to go through the normal two-step formula for determining the existence of personal jurisdiction. Rather the statutory inquiry necessarily merges with the Constitutional inquiry. Accordingly, our inquiry centers on whether exercising personal jurisdiction over [a defendant] is consistent with the Due Process Clause.In re Celotex Corp., 124 F.3d 619, 627-28 (4th Cir. 1997) (internal citations omitted). To satisfy constitutional due process, the defendant must have sufficient minimum contacts with West Virginia so that requiring it to defend its interest here would not, “[o]ffend traditional notions of fair play and substantial justice.” Id. at 628, quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). To establish those minimum contacts necessary to confer jurisdiction, “it is essential in each case that there be some act by which the defendant purposely avails itself of the privilege of conducting activities within the forum state.” Hanson v. Denckla, 357 U.S. 235, 253 (1958) (citing International Shoe). The Fourth Circuit has recognized that such minimum contact must be “purposeful.” In re Celotex, 124 F.3d at 628, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). “Jurisdiction is proper [ ] where the contacts proximately result from actions by the defendant himself that create a ‘substantial connection' with the forum State.” Burger King Corp., 471 U.S. at 475.
“[T]he plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.” Walden v. Fiore, 571 U.S. 277, 285 (2014). In Walden, the Supreme Court found that a Georgia police officer lacked the minimal contacts with Nevada required for Nevada to exercise personal jurisdiction over the officer who was accused of drafting a false probable cause affidavit to support the forfeiture of funds seized during a search at a Georgia airport. Id. at 277.
Plaintiff has failed to assert any specific contact by Defendants from Connecticut or Oklahoma with the State of West Virginia, other than preparing documents which may have been read by federal officials in West Virginia. It is clear that the Connecticut and Oklahoma Defendants are non-residents of West Virginia who have not personally engaged, or by authorized agents engaged, in any one or more of the acts specified in subdivisions (1) through (7) of subparagraph (a) of the West Virginia long-arm statute, W.Va. Code § 56-3-33. Accordingly, based on the information contained in the complaint, the Court cannot exercise personal jurisdiction over those Defendants: Williams, Moore, Breece, Hornkohl, Whitley, Hayes, O'Cain, North, Guinn, Foisey, Santiago, Mays, Fox, Unknown Warden of Oklahoma City FTC, Unknown Captain of Oklahoma City FTC, Lyon and Stacy, because none of those Defendants engaged in the specified acts under the long-arm statute, and the actions of those individuals, which Plaintiff alleges in support of his claims, took place outside of West Virginia.
Plaintiff's assertion that all Defendants engaged in a conspiracy are just that: assertions. Plaintiff cites to no facts to support his broad claims.
Accordingly, the court lacks jurisdiction to consider any civil rights cause of action against any Defendant whose actions took place in either Connecticut or Oklahoma. Therefore, the complaint should be dismissed without prejudice from this jurisdiction for lack of personal jurisdiction as to Williams, Moore, Breece, Hornkohl, Whitley, Hayes, O'Cain, North, Guinn, Foisey, Santiago, Mays, Fox, Unknown Warden of Oklahoma City FTC, Unknown Captain of Oklahoma City FTC, Lyon and Stacy.
B. Immunity of Defendant McCabe
Although Plaintiff has made specific allegations against McCabe, McCabe is nonetheless immune from suit under a Bivens action. The Supreme Court has held that U.S. Public Health Service (PHS) personnel charged with constitutional violations arising out of their official duties must be sued for damages for harms caused in the course of their employment, under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680. Hui v. Castaneda, 559 U.S. 799, 801-02 (2010). The Court further concluded that based on the plain language of 42 U.S.C. § 233(a), “that PHS officers and employees are not personally subject to Bivens actions for harms arising out of such conduct.” Id.
Accompanying the motion to dismiss, is a declaration by McCabe that she is the Chief of Psychology at FCI Morgantown and is employed by the United States Public Health Service. ECF No. 90-5 at 1. Additionally, Plaintiff's complaint and memorandum in support thereof appear to acknowledge McCabe's status as a PHS employee, based on Plaintiff's identification of McCabe as “DAP-D Chief of Psychology” at Morgantown FCI. ECF No. 34 at 2.
Accordingly, based on her status as a PHS employee, and pursuant to the holding of Hui v. Castaneda, McCabe is immune from suit in a Bivens action. Thus, Plaintiff has failed to state a claim upon which relief may be granted as to McCabe.
C. Supervisory Immunity of Gomez and Wolever
In a Bivens case, the Plaintiff must specify the acts taken by each defendant which violate his Constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2nd Cir. 1994); See Colburn v. Upper Darby Township, 838F.2d 663, 666 (3rd Cir. 1988) (“section 1983 claims [have] the additional pleading requirement that the ‘complaint contain a modicum of factual specificity identifying the particular conduct of defendants that is alleged to have harmed the plaintiffs'”). Moreover, “[i]n a Bivens suit, there is no respondeat superior liability. Instead, liability is personal, based upon each defendant's own constitutional violations.” Trulock v. Freeh, 275 F.3d 391, 402 (2001) (internal citation omitted). In Trulock, although plaintiffs sued, among other defendants, the former director of the FBI and two FBI supervisors, the Court found that were there was “no allegation that any of these [ ] individuals were personally complicit. . . [and] [a]ccordingly, th[o]se defendants [ ] enjoy immunity.” Id.
“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. at 676. As stated by the Fourth Circuit, because there is no respondeat superior liability under § 1983, supervisory liability lies only “where it is affirmatively shown that the official charged acted personally in the deprivation of the plaintiff's rights.” Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1997) (citing Bennett v. Gravelle, 323 F.Supp. 203, 214 (D. Md. 1971) aff'd 451 F.2d 1011 (4th Cir. 1971); Harris v. City of Virginia Beach, 11 Fed.Appx. 212, 215 (4th Cir. 2001).
Plaintiff alleges that Warden Gomez and Associate Warden Wolever “headed and orchestrated a conspiracy against Plaintiff” and “allowed Plaintiff's SHU placement, SIS investigation, sanctions and transfer [to another institution] and refused to do anything about these actions.” ECF No. 34 at 2 - 3. Plaintiff further alleged that Gomez, along with four other Defendants, McCabe, Tejera, Layhue and Dodrill, “cut off Plaintiff's mental health treatment at Morgantown FCI because he is LGBT, and he filed complaints.” ECF No. 41 at 9.
Under the clear holding of Trulock, there is no doctrine of respondeat superior in Bivens actions, and thus, supervisory defendants may not be held liable for the actions of their subordinates. The Defendant Wardens, neither of whom Plaintiff alleges had any contact with him directly, had, at most, only supervisory responsibility for acts of their subordinates who had contact with Plaintiff. Although Plaintiff claims all Defendants engaged in a conspiracy to violate his rights, he presents no evidence to support his claims.
Additionally, Plaintiff claims that Defendants Gomez and Wolever “cut off” his medical treatment. However, Plaintiff makes no claim that Gomez or Wolever were personally involved with his medical treatment, and further fails to make any allegations which reveal the presence of the three required elements for supervisory liability for Gomez or Wolever.
The three-part test to establish supervisory liability in civil rights cases which was announced in Shaw v. Stroud, 13 F.3d at 799, requires Plaintiff to 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. Further, to prove the first element, a plaintiff must show: “(1) the supervisor's knowledge of (2) conduct engaged in by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff.” Shaw, supra, citing Slakan v. Porter, 737 F.2d 368 (4th Cir. 1984).
As to the first element, Plaintiff fails to show that Gomez or Wolever had actual or constructive knowledge medical treatment provided to Plaintiff. Further, Plaintiff fails to show that Gomez or Wolever knew that such medical treatment provided by their subordinates. Finally, Plaintiff fails to show the medical treatment provided by subordinates of Gomez and Wolever posed “a pervasive and unreasonable risk” of constitutional injury to Plaintiff. Accordingly, Plaintiff cannot meet the first Shaw prong to establish supervisory liability.
As to the second element, Plaintiff fails to show that the response of Gomez or Wolever to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices”. Plaintiff fails to allege that Gomez or Wolever possessed knowledge of his medical treatment by their subordinates. It follows that Plaintiff is thus unable to show that the response or Gomez or Wolever was inadequate to that knowledge. Accordingly, Plaintiff cannot meet the second Shaw prong to establish supervisory liability.
As to the third element, Plaintiff fails to show that there was an “affirmative causal link” between any action or inaction by Gomez or Wolever and the particular constitutional injury alleged to have been suffered by the plaintiff. Plaintiff fails to establish either a causal link or an injury as a result of the alleged action or inaction of Gomez and Wolever. Accordingly, Plaintiff cannot meet the third Shaw prong to establish supervisory liability.
Succinctly, Plaintiff makes no claim that Gomez or Wolever were aware of his mental health condition or any decisions made by or conduct engaged in by subordinates related to Plaintiff's health condition. Instead Plaintiff broadly claims that Gomez and Wolever “allowed” McCabe to provide inadequate care while treating Plaintiff at Morgantown FCI. Even upon a liberal reading, the complaint fails to state a claim upon which he could prevail as to Gomez or Wolever.
Moreover, non-medical supervisory personnel, like a warden or jail administrator, may rely on the opinion of medical staff regarding the proper medical treatment of inmates. See Miltier, supra at 855. Accordingly, Gomez and Wolever, as the wardens of Morgantown FCI, did not and should not substitute their own medical judgment for that of medical professionals. Because Plaintiff fails to allege any credible personal involvement on the part of Gomez and Wolever, he does not make any allegations which reveal the presence of the required elements for supervisory liability and he fails to state a claim against Gomez and Wolever, and those Defendants should be dismissed from this action with prejudice.
D. First Amendment Claims: Retaliation for Exercise of Religion and Free Speech
Plaintiff asserts that Defendants have retaliated against him for the exercise of his Orthodox Therian Shamanism religion and his free speech rights through the filing of numerous administrative remedies.
Plaintiff alleges that all Defendants have retaliated against him, but from this point forward, the term “Defendants” refers to the West Virginia Defendants. See Section IV.A. above which recommends dismissal with prejudice all Defendants from Connecticut and Oklahoma, for lack of personal jurisdiction.
1. Claim as to Exercise of Religion
Plaintiff claims Defendants have retaliated against him in violation of the First Amendment for practicing an unusual religion, Orthodox Therian Shamanism, which he claims requires him to: (1) wear specialized clothing, including a wolf tail; (2) eat a specialized vegan diet; (3) display various religious imagery depicting wolves; (4) read various literature related to wolves; and (5) meditate while wearing a wolf tail and surrounded by wolf imagery. ECF No. 93-1. Plaintiff asserts that Defendants' retaliation for his religious practices consisted of the withholding of mental health services. ECF No. 41 at 13.
In order to sustain a claim based on retaliation, a plaintiff “must allege either that the retaliatory act was taken in response to the exercise of a constitutionally protected right or that the act itself violated such a right. A claim of retaliation that fails to implicate any constitutional right “lacks even an arguable basis in law, ” and is properly subject to dismissal under § 1915(d) .” Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (internal citations omitted). Therefore, in forma pauperis plaintiffs who claim that their constitutional rights have been violated by official retaliation must present more than conclusory allegations of reprisal to survive dismissal under § 1915(e)(2)(B).
The version of the statute which was effective when Adams was decided is the same as that discussed in Footnote 4 in regard to Nietzke above.
Furthermore, claims of retaliation are treated with skepticism in the prison context, because “every act of discipline by prison officials is by definition ‘retaliatory' in the sense that it responds directly to prisoner misconduct.” Cochran v. Morris, 73 F.3d 1310, 1317 (4th Cir. 1996) (citing Adams, 40 F.3d at 74). Additionally, “[a] plaintiff alleging that government officials retaliated against her in violation of her constitutional rights must demonstrate, inter alia, that she suffered some adversity in response to her exercise of protected rights.” American Civil Liberties Union of Maryland, Inc. v. Wicomico County, Md., 999 F.2d 780, 785 (4th Cir. 1993). “Where there is no impairment of the plaintiff's rights, there is no need for the protection provided by a cause of action for retaliation. Thus, a showing of adversity is essential to any retaliation claim.” Id.
Plaintiff has repeatedly alleged that Defendants engaged in a widespread, multistate conspiracy to violate his rights. The Fourth Circuit has held that each retaliatory act must violate an inmate's constitutional right or constitute punishment for the exercise of a constitutional right.
At various times Plaintiff has alleged that the retaliation was prompted by his religion and his filing of complaints, both of which would be First Amendment violations. Plaintiff has alternatively alleged that the retaliation was prompted by his status as an LGBT inmate or as a transgender inmate, both of which would be Fourteenth Amendment equal protection violations, and are addressed as such herein.
[The] complaint charged that every single action by prison officials represented either a conspiracy or a retaliation, including “using the inmate who stabbed [the inmate] as a pawn, ” “punish[ing] [the inmate] with a long term segregation assignment, ” and “permitt[ing] institutional documents to be falsified.” This extended litany of conspiratorial activity casts serious doubts on [the inmate]'s claims. The assortment of vague accusations also fails to demonstrate, as is required, that each retaliatory act violate some constitutional right of an inmate or constitute punishment for the exercise of a constitutional right.Cochran v. Morris, 73 F.3d 1310, 1317-18 (4th Cir. 1996). Similar to the plaintiff in Cochran, Plaintiff here has charged that routine actions of prison officials, like documentation of their interactions with Plaintiff, constituted a conspiracy or retaliation against him. Moreover, Plaintiff has failed to establish that each allegedly retaliatory act either violated his constitutional rights, or punished him for exercising his constitutional rights.
More specifically, although Plaintiff claims that the retaliation he suffered was the “withholding of mental health treatment”, he also acknowledges that he was provided mental health treatment. ECF No. 41 at 1, 13. Plaintiff claims that Danbury FCI “was a mental health treatment facility” while Morgantown FCI lacked mental health treatment. Id. at 1. However, Plaintiff contradicts his own claims by asserting that he was treated at Morgantown FCI by McCabe, the Chief of Psychology at that institution, and naming that medical provider as a Defendant. ECF No. 34 at 2. Moreover, McCabe's declaration states that she completed a psychological assessment on Plaintiff which revealed that he was “malingering mental health symptoms in hopes for more favorable treatment and conditions.” ECF No. 90-5 at 3.
It appears to the Court that Plaintiff has failed to demonstrate that as a result of any “retaliation” he has suffered any impairment to his right to medical care, as required by ACLU of Maryland v. Wicomico, 999 F.2d at 785. Rather, it appears to the Court that Plaintiff received medical treatment, but that Plaintiff disagreed with the care provided by McCabe.
Although it is clear that Plaintiff was dissatisfied with the medical treatment he was provided, as noted by the Fourth Circuit in King v. United States, 536 Fed.Appx. 358 (4th Cir. 2013), and Jackson v. Sampson, 536 Fed.Appx. 356 (4th Cir. 2013), Plaintiff does not have a constitutional right to the treatment of his choice. Plaintiff's “disagreement as to the proper medical treatment does not constitute deliberate indifference”. King, 536 Fed.Appx. at 363.
Because there appears to be no impairment of Plaintiff's rights, there is no need for the protection provided by a cause of action for retaliation, and Plaintiff's claims on this ground should be dismissed as to all remaining Defendants.
Plaintiff also asserts that Defendants have violated the Religious Freedom Restoration Act (RFRA) of 1993. In Tanzin v. Tanvir, 141 S.Ct. 486 (2020), the Supreme Court held that appropriate relief under RFRA includes claims for money damages against Government officials in their individual capacities. Tanzin discusses the applicability of such remedies in the context of § 1983 civil rights actions. 141 S.Ct. at 492. Plaintiff asserts that his rights under the RFRA were violated when he was placed in the Special Housing Unit in Oklahoma City FTC because of his religious beliefs. ECF No. 34 at 21. Plaintiff does not make any specific allegations of a violation of his right sunder RFRA occurred in the Northern District of West Virginia. Nonetheless, Plaintiff cannot demonstrate a violation of the RFRA because there is no demonstrated impairment of his rights, and again he fails to state a claim upon which relief may be granted.
2. Claim as to Exercise of Free Speech
Plaintiff also claims that Defendants have retaliated against him for exercising his First Amendment free speech rights through the filing of administrative grievances. Plaintiff claims that he has been denied the opportunity to file additional grievances and been retaliated against for filing grievances. ECF No. 41.
Neither party has provided the Court with documentation of Plaintiff's various administrative remedies. Further, neither party has confirmed the total number of administrative remedies filed by Plaintiff. Plaintiff concedes he filed approximately 85 complaints prior to September 8, 2018. ECF No. 41 at 6. Plaintiff further states that he filed 35 complaints between October 23, 2018 and December 26, 2018. Id. at 11. Further, Plaintiff provides the numbers of 14 administrative remedies which he filed and exhausted, and an additional 15 claims which he claimed he filed but which were rejected. Id. at 3. It appears to the Court that based on the large number of grievances which Plaintiff admits to filing, that he has not been prevented from filing administrative remedies.
More importantly, the Fourth Circuit has held that actions under Bivens do not extend “to include a federal inmate's claim that prison officials violated his First Amendment rights by retaliating against him for filing grievances.” Earle v. Shreves, 990 F.3d. 774 (4th Cir. 2021). Accordingly, as to Plaintiff's claim that he was retaliated against for filing grievances, the Court finds that Plaintiff fails to state a claim upon which relief may be granted.
As to any other alleged claim of retaliation related to a violation of Plaintiff's First Amendment rights, the Court also finds that Plaintiff fails to state a claim upon which relief may be granted. The Fourth Circuit has separately considered the requirements of a retaliation claim which relates to freedom of speech:
A cognizable First Amendment retaliation claim requires a plaintiff to show: (1) “that [plaintiff's] speech was protected”; (2) “defendant's alleged retaliatory action adversely affected the plaintiff's constitutionally protected speech”; and (3) “a
causal relationship exists between [plaintiff's] speech and the defendant's retaliatory action.”Tobey v. Jones, 706 F.3d 379, 387 (4th Cir. 2013) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 685-86 (4th Cir.2000)).
Although Plaintiff offers assorted factual scenarios in his complaint and additional pages to asset retaliation, essentially Plaintiff claims that he was threatened with being “written up” in an incident report which he asserts was in retaliation for exercising his free speech rights when filing administrative remedies. The most explicit claim made by Plaintiff is that:
Defendant Layhue would scream and curse at Plaintiff and threaten him with incident reports when Plaintiff requested complaint forms. In one instance, Plaintiff vocalized his complaint to Layhue that staff was stealing food from the Officer's Mess by eating without paying and Layhue replied with a warning, “Do you really want to open that can of worms?”ECF No. 41 at 12. Plaintiff does not make any specific claims as to any other remaining West Virginia Defendant which are related to his First Amendment rights. Furthermore, regardless of the retaliation claim, it is clear that the statements attributed to Layhue are not actionable.
Words by themselves do not state a constitutional claim, without regard to their nature. The subjection of a prisoner to verbal abuse or profanity does not arise to the level of a constitutional deprivation. The law is clear that mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.Morrison v. Martin, 755 F.Supp. 683, 687 (E.D. N.C. ), aff'd, 917 F.2d 1302 (4th Cir. 1990) (internal citations omitted). In Morrison, the court noted that the plaintiff “makes generalized allegations that he has missed meals from time to time and that he occasionally has not had a mattress. These contentions contain no information as to location, date or circumstances. Such vague and generalized claims do not support an action based on 42 U.S.C. 1983.” 755 F.Supp. at 686.
“A claim of retaliation must include a ‘chronology of events from which retaliation may plausibly be inferred.'” El-Amin v. Tirey, 817 F.Supp. 694, 699 (W.D.Tenn. 1993), aff'd, 35 F.3d 565 (6th Cir.1994), quoting Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir.1988); Pierce v. King, 918 F.Supp. 932, 943 (E.D. N.C. 1996), aff'd, 131 F.3d 136 (4th Cir. 1997), cert. granted, judgment vacated on other grounds, 525 U.S. 802, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998). Even construing Plaintiff's pleading liberally, he fails to state a claim upon which relief can be granted as to any Defendants related to a retaliation for exercise of his freedom of speech. “While the courts liberally construe pro se pleadings as a matter of course, judges are not also required to construct a party's legal arguments for him.” Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993) (internal citation omitted).
Plaintiff fails to make any factual allegations of a violation of his civil rights by Layhue personally or in his individual capacity. ECF No. 41 at 12. Rather, Plaintiff asserts that Layhue cursed at him and questioned whether Plaintiff wanted to file a grievance regarding whether Morgantown FCI staff were failing to pay for food, a claim that, even if true, did not affect Plaintiff himself. Id. Moreover, beyond broad repeated statements of retaliation, Plaintiff fails to make any specific allegation that any other Defendant at Morgantown FCI retaliated against him for filing administrative remedies. Plaintiff provides no chronology of events from which retaliation may plausibly be inferred, and no information as to location, date or circumstances of alleged retaliation. Such vague and generalized claims do not support an action for a civil rights violation, and moreover, under the holding of Earle, Bivens remedies do not extend to causes of action for retaliation for filing grievances.
Accordingly, as to Layhue and all remaining Defendants, Plaintiff has failed to state a claim upon which relief may be granted as to his claim of retaliation for filing grievances, and Plaintiff's claims on this ground should be dismissed as to all remaining Defendants.
E. Fourth Amendment Claim: Unreasonable Search and Seizure
Plaintiff asserts eight claims that he was subjected to unreasonable searches and seizures at Danbury FCI and Morganton FCI. ECF No. 34 at 20, Claims 1, 2, 4, 5, 18, 19, 23, 25. The first four of those claims were alleged to have occurred at Danbury FCI. ECF Nos. 34 at 20, 41 at 3 - 5. As discussed above, this Court does not have jurisdiction to address those claims.
The second four of those claims were alleged to have occurred at Morgantown FCI. ECF Nos. 34 at 20, 41 at 12 - 15. Plaintiff claims that: (1) on January 17, 2019, Defendants Dodrill and Barkaszi performed a retaliatory search of his cell [ECF No. 41 at 12, Claim 18]; (2) on January 21, 2019, Defendants Dodrill, Gialone and Fullen performed a retaliatory search of his cell [Id., Claim 19]; (3) Defendant Rudy sexually assaulted him [Id. at 14, Claim 23]; and (4) Defendant Cruz subjected Plaintiff to a strip search prior to being transferred from Morgantown FCI [Id. at 15, Claim 25].
The Court notes that although Plaintiff here identifies “Gialone” as a Defendant, no such individual was identified in the Complaint.
“[T]he Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). Accordingly, it is clear that Plaintiff's claims that the January 17, 2019, and January 21, 2019, searches of his cell constituted an unreasonable searches and seizures, and accordingly, violated his Fourth Amendment rights, are without merit.
As to Plaintiff's claim that he was sexually assaulted by Defendant Rudy, that claim is addressed in Subsection IV.F.2. below.
Finally, as to Plaintiff's claim that his Fourth Amendment rights were violated when he was subjected to a strip search prior to being transferred from Morgantown FCI, that claim is without merit. The Supreme Court has held that:
[B]oth convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these [strip] searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.Bell v. Wolfish, 441 U.S. 520, 558 (1979) (internal citations omitted). In upholding strip searches of pretrial detainees at a county jail, the Supreme Court has recognized the various reasons that such searches are conducted by jail and prison officials:
It is not surprising that correctional officials have sought to perform thorough searches at intake for disease, gang
affiliation, and contraband. Jails are often crowded, unsanitary, and dangerous places. There is a substantial interest in preventing any new inmate, either of his own will or as a result of coercion, from putting all who live or work at these institutions at even greater risk when he is admitted to the general population.Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 333-34 (2012). Accordingly, it appears that Petitioner's claims that being subjected to a strip search prior to be transferred from Morgantown FCI, does not have merit, as such searches have been held not to violate the Fourth Amendment.
F. Eighth Amendment Cruel and Unusual Punishment Claim: Failure to Allege Physical Injury as to All But One Defendant
1. Claims Against Tejera, Layhue, Plavi, Edwards, Barkaszi, Dodrill, Fullen, Dulla, and Cruz
A review of the complaint pursuant to 28 U.S.C. § 1915A(b), reveals that Plaintiff fails to present a claim upon which relief can be granted as to Tejera, Layhue, Plavi, Edwards, Barkaszi, Dodrill, Fullen, Dulla, and Cruz.
The Prison Litigation Reform Act (PLRA) of 1996, placed an important limitation upon all actions arising from incarceration, requiring proof of physical injury arising from the allegedly unconstitutional condition. Under 42 U.S.C. § 1997e(e), no recovery of monetary damages is allowed for emotional stress:
No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).See Munn Bey v. Department of Corrections, 839 F.Supp.2d 1 (D.D.C. 2011), Here, Plaintiff seeks $3,000,000.00 in monetary damages for “psychological injury”, “mental breakdown and panic attack[s]”, and “calculated harassment” inflicted by Defendants. ECF Nos. 34 at 22, 41 at 15, 18. However, Plaintiff does not allege he suffered any physical ailment or injury inflicted by Defendants Tejera, Layhue, Plavi, Edwards, Barkaszi, Dodrill, Fullen, Dulla, or Cruz. Rather, as to all these Defendants, Plaintiff claims to have suffered solely mental injury. Even if Plaintiff had stated a claim upon which relief could be granted, he is ineligible to receive monetary damages unless he has demonstrated prior physical injury, which is not present here. Accordingly, Plaintiff is not entitled to monetary relief, and his claims as to Tejera, Layhue, Plavi, Edwards, Barkaszi, Dodrill, Fullen, Dulla, and Cruz must be dismissed with prejudice.
To the extent that Plaintiff asserts an Eighth Amendment violation based on officials' failure to protect him from being sexually assaulted by another inmate in Oklahoma City FTC, such a claim is not properly considered in this jurisdiction.
2. Claims as to Defendant Rudy
Plaintiff claims that Defendant Rudy sexually assaulted him by groping him and digital penetration. Plaintiff asserts that he exhausted all administrative remedies related to this claim. ECF No. 34 at 14 - 15. Neither party has provided the Court with documents to demonstrate whether this remedy was properly administratively exhausted. It appears to the Court that Defendant Rudy did not address this claim by Plaintiff. ECF Nos. 90, 90-1. Accordingly, there appear to genuine issues of material fact, Plaintiff appears to state a claim upon which relief may be granted, and this claim should proceed for further consideration.
D. Fourteenth Amendment Claim: Violation of Due Process Rights
Plaintiff alleges that his right to due process of law was violated when he was placed in the Special Housing Unit and transferred between facilities. ECF No. 41 at 15. Subject to the mandates of statute, the BOP has broad discretion to determine the institution where prisoners shall be housed:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment, and shall, subject to bed availability, the prisoner's security designation, the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.18 U.S.C. § 3621.
As to Plaintiff's claim that his due process rights were violated when he was placed in the more restrictive setting of the Special Housing Unit, the Fourth Circuit in Earle, has addressed the authority of prison officials to make such designations.
Whether to place an inmate in more restrictive detention involves real-time and often difficult judgment calls about disciplining inmates, maintaining order, and promoting prison officials' safety and security. . . . prison officials must have discretion to determine detention policies, to assess the endless variety of circumstances in which those policies may be implicated, and to decide when administrative detention is deserved and for how long. Given the ease with which an inmate could manufacture a claim of retaliatory detention, allowing a Bivens action for such claims could lead to an intolerable level of judicial intrusion into an issue best left to correctional experts. It is a rule grounded in necessity and common sense, as well as authority, that the maintenance of discipline in a prison is an executive function with which the judicial branch ordinarily will not interfere.Earle v. Shreves, 990 F.3d 774, 780 (4th Cir. 2021) (cleaned up). It is clear that the BOP has the authority and discretion to place inmates in more restrictive detention. In for such claims. “Given the ease with which an inmate could manufacture a claim of retaliatory detention, allowing a Bivens action for such claims could lead to an intolerable level of judicial intrusion into an issue best left to correctional experts.” Earle, 990 F.3d at 780-81. Accordingly, Plaintiff has failed to state a claim upon which relief may be granted as to his assertion that his due process rights were violated by his placement in more restrictive housing, or by being transferred between facilities.
V. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that Plaintiff's third amended complaint [ECF No. 34] be DISMISSED WITH PREJUDICE as to McCabe, Gomez, Wolever, Tejera, Layhue, Plavi, Edwards, Barkaszi, Dodrill, Fullen, Dulla, Williams, Moore, Breece, Hornkohl, Whitley, Hayes, O'Cain, North, Guinn, Foisey, Santiago, Mays, Fox, Unknown Warden of Oklahoma City FTC, Unknown Captain of Oklahoma City FTC, Lyon, Stacy, and Cruz.
It is also RECOMMENDED that Defendants' motion to dismiss [ECF No. 90] be GRANTED in part as to those Defendants.
It is further RECOMMENDED that Defendant's motion to dismiss as to Defendant Rudy be DENIED and that this action proceed as to only Defendant Rudy.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, Chief United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
The Clerk is directed to provide a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.