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Dickson v. Sessions

United States District Court, N.D. West Virginia, Martinsburg

January 23, 2019

BRYAN KERR DICKSON, Plaintiff,
v.
JEFF SESSIONS, LORETTA LYNN, ERIC HOLDER, CHARLES E. SAMUELS, Jr., THE DESIGNATION CENTER AND COMPUTATION CENTER, C. EICHENLAUB, MATTHEW W. MELLADY, ZACHARY KETTON, TERRY O'BRIEN, JOHN GILLEY, FEDERAL AGENT/CORRECTIONAL OFFICER McGREGG, FEDERAL AGENT/ CORRECTIONAL AGENT ALLISON, FEDERAL AGENT/CORRECTIONAL AGENT BRADY, FEDERAL AGENT/CORRECTIONAL AGENT JOE DOE 1, M. WEINER, LOTSPEICH, Defendants.

          REPORT AND RECOMMENDATION

          JAMES P. MAZZONE, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         This action was initiated on June 20, 2016, by the pro se Plaintiff, who was previously[1] 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[2] 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. below.

         This matter is pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2 and 28 U.S.C. § 1915A.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Underlying Criminal Conviction.

         On June 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[3], 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.

         B. Instant Bivens Action, 3:16-CV-82.

         1. The allegations in the complaint.

         As 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[4] at Hazelton. ECF Nos. 25, 25-1. Plaintiff named fifteen individuals and one agency as Defendants in his Bivens action[5]. 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 the same.

         The “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[6] 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[7] 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.

         2. Procedural history of the instant action.

         On 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.

         Plaintiff 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.

         3. Pending motions in instant Bivens action.

         On 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.

         4. Instant Bivens action is ripe for consideration by this Court.

         On 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.

         The case is ripe for review and is now reconsidered, consistent with the ruling of the Fourth Circuit Court of Appeals.

         III. LEGAL STANDARD

         A. Pro Se Litigants

         Because 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.

         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)[8] 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.

         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).

         “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, __ U.S. __, 137 S.Ct. 1843, 1860 (2017).

         In 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.

         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. Improperly Named Defendants

         Pursuant 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 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[9] [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'”).

         D. ...


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