United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS' MOTION TO DISMISS [DKT. NO. 69]
M. KEELEY UNITED STATES DISTRICT JUDGE
plaintiff, Michael Berryman (“Berryman”), has
pursued two lawsuits in this Court, one pursuant to the
Federal Tort Claims Act (“FTCA”) and another
pursuant to Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Both
arise out of the same facts and circumstances. The Court has
previously dismissed Berryman's FTCA case. Pending is the
motion to dismiss this Bivens action filed by the
remaining defendants, Officer Christopher Mullen, Lt. Jerald
Riffle, Officer Brad Brown, and Officer John Brady.
question presented is whether Berryman's Bivens
action is precluded by the operation of 28 U.S.C. §
2676, frequently known as the FTCA judgment bar. Because
Berryman's FTCA case was dismissed on jurisdictional
grounds, the Court concludes that his Bivens claims
are not barred. Accordingly, for the following reasons, the
Court DENIES the defendants' motion
(Dkt. No. 69).
OPINION AND ORDER DENYING THE DEFENDANTS' MOTION TO
DISMISS [DKT. NO. 69]
Court takes the facts from Berryman's Bivens
complaint and construes them in the light most favorable to
him. De'Lonta v. Johnson, 708 F.3d 520, 524 (4th
Cir. 2013). In early May 2014, Berryman was placed in
the Special Housing Unit (“SHU”) at United States
Penitentiary, Hazelton (“USP Hazelton”), with
“inmate Von Axelson” (“Von Axelson”)
(Dkt. No. 1 at 11). On May 6 and 7, 2014, Von Axelson
threatened Berryman with rape, serious injury, and death if
Berryman could not be relocated to another cell. Id.
at 11-12. Von Axelson's threats reached their height on
the evening of May 7th, when he received word that his father
had passed away. Id. at 12. Despite Berryman's
repeated pleas to Officer Brown, Officer Brady, Officer
Mullen, and other unknown officers, he was not moved to a
different cell. Id. at 12-14.
the early morning hours of May 8, 2014, Berryman was awakened
when Von Axelson began stomping on him. Although able to
activate an emergency call button, Berryman was quickly
knocked unconscious by his assailant. He regained
consciousness sometime during the assault, but as he
attempted to protect himself, he was quickly knocked
unconscious again. Id. at 14.
Berryman regained consciousness the second time, Officer
Mullen, who by then had arrived on the scene, helped him to
his feet and took him to an observation cell where Berryman
was left with paper clothing and bedding. Berryman was
awakened later that morning by Physician's Assistant
Christopher Meyer, who noted his superficial injuries but
left without conducting a full examination Id. at
14-15. As a result of the incident, Berryman claims to have
sustained the following injuries:
I have 4 protruding disk [sic] in lower lumbar, severe
stenosis in L lumbar, thecal sac encroachments in lower
lumbar, sliped [sic] disk in L lumbar, stenosis in cervical
spine C3-C7, disk herniation present moderately encroaching
upon the thecal sac at the C03/04 level[, ] thecal sac
encroachment and Y hard disks/osteophyt[e] complex thecal sac
encroaching C6/seven, evidence of remote rib fractures and
rib deformity lower left ribs.
Id. at 17.
March 23, 2016, Berryman filed this Bivens action,
alleging that the defendants failed to protect him from a
dangerous cellmate, violated his due process rights by
placing him in punitive segregation, and failed to provide
appropriate medical treatment (Dkt. No. 1). Shortly
thereafter, on April 14, 2016, Berryman filed a complaint
against the United States of America pursuant to the FTCA
(Civil No. 1:16cv63, Dkt. No. 1). His FTCA case arose out of
the same facts and similarly alleged that various Bureau of
Prisons (“BOP”) staff violated his right to
procedural due process regarding an institutional violation,
deprived him of his “basic human needs” in
violation of the Eighth Amendment, and committed medical
malpractice. Id. at 10, 16.
December 19, 2016, the United States filed a motion to
dismiss, or in the alternative, for summary judgment in
Berryman's FTCA case (Civil. No. 1:16cv63, Dkt. No. 41).
On February 22, 2017, the defendants in this Bivens
case also filed a motion to dismiss, or in the alternative,
for summary judgment (Dkt. No. 51).
August 14, 2017, the Court granted the United States'
motion in Berryman's FTCA case, and dismissed the action
in its entirety. As relevant to the pending motion to
dismiss, the Court reasoned that Berryman's
constitutional tort claims were not cognizable under the FTCA
pursuant to FDIC v. Meyer, 510 U.S. 471 (1994)
(“[T]he United States simply has not rendered itself
liable under [the FTCA] for constitutional tort
claims.”). The Court further concluded that
Berryman's medical malpractice claim failed to comply
with West Virginia's statutory requirements for suing
health care providers (Civ. No. 1:16cv63, Dkt. No. 66 at
August 17, 2017, the Court granted in part and denied in part
the defendants' motion to dismiss or, in the alternative,
for summary judgment in this Bivens action (Dkt. No.
71). As a result, the only claim that remains outstanding is
Berryman's allegation that Officer Mullen, Lt. Riffle,
Officer Brown, and Officer Brady violated his Eighth
Amendment rights by exhibiting deliberate indifference to a
known risk of harm. Id. at 5-6, 18.
is the defendants' motion to dismiss this remaining
claim, in which they argue that the dismissal of
Berryman's FTCA case against the United States operates
to preclude the allegations against them in their individual
capacity (Dkt. No. 69). Pursuant to Davis v.
Zahradrich, 600 F.2d 458 (4th Cir. 1979), and
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
the Court notified Berryman of his right to respond and
directed him to do so within 21 days (Dkt. No. 71 at 19-21).