United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.
action was initiated on June 20, 2016, by the pro se
Plaintiff, who was previously a federal prisoner who was
incarcerated at USP Hazelton, in Bruceton Mills, West
Virginia, for 35 days from May 28, 2014, through July 1,
2014. ECF Nos. 1, 101-4 at 2. Plaintiff initially filed his
complaint as an action under the Federal Tort Claims Act
(“FTCA”). ECF No. 1. Therein he claimed he had
numerous complaints against federal agents and correctional
officers and that he was denied medical and dental treatment
and was exposed to other inmates who assaulted him or
threatened to assault him, while correctional staff failed to
protect him. Id. Plaintiff sought $6, 000, 000.00 in
damages. Id. at 11. On December 21, 2016, the Court
entered an order directing the Clerk to provide plaintiff
with a copy of a court-approved Bivens form complaint
and directing Plaintiff to complete and file the same.
Plaintiff refiled his complaint on the Court-approved form
for a Bivens complaint on January 23, 2017, along
with a 11-page handwritten “Attached Complaint”
which contains specific allegations against various
defendants and entities. ECF Nos. 25, 25-1. The claims
contained therein are described more fully in section II.B.
matter is pending before the undersigned for a Report and
Recommendation pursuant to LR PL P 2 and 28 U.S.C. §
FACTUAL AND PROCEDURAL HISTORY
Underlying Criminal Conviction.
8, 2009, Plaintiff was convicted following a bench trial in
the Northern District of Texas, Fort Worth Division, case
number 4:09-CR-40, of possession of child pornography, as
charged in Count 1 of the superseding indictment, and
production of child pornography, as charged in Count 2 of the
superseding indictment. U.S.C.A. 5th Cir. 09-11071, Document
No. 0051951190 at 7, ECF No. 41. On October 23, 2009,
Plaintiff was sentenced to 240 months of imprisonment for
possession of child pornography, and to 600 months of
imprisonment for production of child pornography, with those
sentences to be served consecutively to one another, for a
total term of 840 months of imprisonment. Id. at 8,
ECF No. 46. The United States Court of Appeals for the Fifth
Circuit affirmed Plaintiff's conviction on January 27,
2011. U.S.C.A. 5th Cir. 09-11071, Document No. 00511362878.
The United States Supreme Court denied certiorari on May 31,
2011, in that Court's docket number 10-10278. U.S.C.A.
5th Cir. 09-11071, Document No. 00511497095.
Instant Bivens Action, 3:16-CV-82.
The allegations in the complaint.
noted above, Plaintiff initiated this action on June 20,
2016, but on January 23, 2017, filed a complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), asserting various claims
related to his transfer from incarceration at USP McCreary to
USP Hazelton, and subsequent exposure to various threatened
and actual harms perpetrated against him while
incarcerated at Hazelton. ECF Nos. 25, 25-1. Plaintiff
named fifteen individuals and one agency as Defendants in his
Bivens action. Plaintiff claims he suffered
“mental distress, [and] injury to [his] body”.
ECF No. 25 at 20. Plaintiff does not list any specific
physical injury which he suffered as a result of his
treatment by federal agents at Hazelton. In Section V, Claim
1 section of the Court-approved form, Plaintiff does not
articulate any specific act by any federal agent or actor,
but instead states:
Violating of Plaintiff(s) [sic] Civil Rights, Constitutional
Rights, Amendment Righ[t] Violation of The Federal Bureau of
Prisoner Statements, Federal Bureau of Prison Policy Code of
Federal Regulation, Oath of Public Office
See Attached Complaint
ECF No. 25 at 18. In Section VII of the Court-approved form
which asks the Plaintiff to “state BRIEFLY and EXACTLY
what you want the Court to do for you. . .” Plaintiff
wrote, “See Attached Complaint”. Id. at
20. The “Attached Complaint” [ECF No. 25-1] is an
11-page handwritten document with an additional 17 pages of
attachments [ECF Nos. 25-2 through 25-10]. Although the
“Attached Complaint” does not comport with the
requirements of the Local Rules of Prisoner Litigation
Procedure, nonetheless, the Court has reviewed and considered
“Attached Complaint” purports to be a claim under
both the Federal Tort Claim Act and “Bivens act”.
ECF No. 25-1 at 2. Plaintiff claims that he is entitled to
$6, 000, 000.00 in damages pursuant to Bivens based
on the following allegations: (1) “USA as Designation
Center” designated him to USP Hazelton
“knowing” he should be in a separate facility
[Id. at 6, ¶ 24]; (2) three unnamed federal
agents or correctional officers failed on May 27, 2014, to
stop assaults which Plaintiff alleges occurred while he was
being transferred to USP Hazelton [Id. at ¶
25]; (3) on May 28, 2014, Plaintiff was “constantly
harass[ed] and assaulted by four federal agents/correctional
officers McGregg, Allison, Brady” [Id. at
¶ 27]; (4) on May 28, 2014, the same four federal agents
or correctional officers took and destroyed Plaintiff's
personal and court contact information [Id. at 6 -
7, ¶ 28]; (5) on May 28, 2014, while Plaintiff was
escorted to his Special Housing Unit (“SHU”) cell
he received “several death threats (assaults) from
other prisoners” which unidentified federal agents or
correctional officers did not prevent [Id. at 7,
¶ 30]; (6) on May 28, 2014, Plaintiff was placed in a
cell in the SHU with another prisoner with a history of
“battering and assaulting 4 other prisoners with the
same charges” as Plaintiff, and that the BOP
“kn[e]w of the assaults by this prisoner”
[Id. at ¶ 31]; (7) on June 2, 2014, Plaintiff
was “forced” to a recreation cage due to the
actions of unidentified federal agents or correctional
officers [Id. at 8, ¶ 33]; (8) that Dr. Brown
and other federal agents or correctional officers failed to
prevent other inmates from making physical threats to
Plaintiff [Id. at 9, ¶ 37]; (9) the United
States permitted and failed to prevent Plaintiff's cell
mate from assaulting and battering Plaintiff [Id. at
¶ 39]; (10) the BOP refuses to facilitate double knee
replacement surgery, which Plaintiff claims six institutional
doctors have recommended as necessary [Id. at 9 -
10, ¶ 41]; and (11) the BOP and USP Victorville lost
Plaintiff's dentures, resulting in difficulty eating
[Id. at 10, ¶ 42]. These claims may generally
be grouped into three categories: failure to protect the
prisoner, denial of access to the courts, and deliberate
indifference to serious medical needs.
Procedural history of the instant action.
February 5, 2017, the presiding United States Magistrate
Judge filed a Report and Recommendation which recommended
that Plaintiff's complaints be denied and dismissed
because the Prison Litigation Reform Act (“PLRA”)
precluded the action from proceeding because Plaintiff had
“on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, ” in violation of 28
U.S.C. § 1915(g). ECF No. 30. By Order entered March 21,
2017, the District Court adopted the Report and
Recommendation. ECF No. 33.
appealed the District Court's order to the United States
Court of Appeals for the Fourth Circuit, which by Order
entered October 2, 2017, found that although Plaintiff had
filed more than three actions or claims in courts of the
United States, it was “unable to identify three
dismissals that qualify as strikes.” ECF No. 47 at 2.
Thereafter, on October 25, 2017, the District Court entered
an order [ECF No. 52] which vacated its prior order [ECF No.
33] that adopted the Report and Recommendation. The District
Court further remanded the matter to the Magistrate Judge for
proceedings consistent with the Fourth Circuit order. ECF No.
52. On February 9, 2018, the Fourth Circuit issued an
unpublished per curiam opinion which confirmed the rulings in
its October 2, 2017 order. ECF No. 57. The Fourth Circuit
further found that because Plaintiff's case was on appeal
at the time the District Court entered its October 25, 2017
order, the District Court lacked jurisdiction to issue the
same. ECF No. 56 at 4. Thereafter, by order entered April 9,
2018, the District Court vacated its Order Adopting Report
and Recommendation [ECF No. 33] and remanded the matter to
the Magistrate Judge. ECF No. 62.
Pending motions in instant Bivens action.
August 27, 2018, Defendants filed a “Motion to Dismiss
or, in the Alternative, for Summary Judgment”. ECF No.
101. Following issuance of an August 28, 2018,
Roseboro notice [ECF No. 103], on September 10,
2018, Plaintiff filed a 19-page “Second Motion for
Summary Judgment” [ECF No. 106] and a “Motion for
Default Judgment” [ECF No. 107]. On September 26, 2018,
Plaintiff filed a “Motion for Default Judgment”.
ECF No. 110. On October 9, 2018, Plaintiff filed a
“Motion for Summary Judg[ment], or, in the Alternative
Motion to Dismiss”. ECF No. 112. On October 30, 2018,
Plaintiff filed a motion styled, “Emergency Refund of
Ex[c]essive Filing Fees”. ECF No. 117.
Instant Bivens action is ripe for consideration by
October 30, 2018, Plaintiff filed a motion for an extension
of time to file a response or reply to Defendants' motion
to dismiss or for summary judgment. ECF No. 115. By Order
entered October 31, 2018, the Court granted Plaintiff 30
additional days to respond following receipt of the Order.
ECF No. 118. Service of the Order was accepted on November 5,
2018. ECF No. 119. Plaintiff had until December 5, 2018, to
respond to the motion for dismiss or for summary judgment. As
of the filing of this Report and Recommendation, Plaintiff
has failed to respond or file any further pleadings.
case is ripe for review and is now reconsidered, consistent
with the ruling of the Fourth Circuit Court of Appeals.
Pro Se Litigants
Petitioner 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.
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.
Civil Rights Actions Under Bivens.
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).
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, __ U.S. __, 137 S.Ct. 1843, 1860 (2017).
Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994) (citations omitted), the Fourth Circuit:
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.
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.
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
Improperly Named Defendants
to Bivens, a 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
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'”).