Berryman v. Mullen
| Decision Date | 09 March 2018 |
| Docket Number | CIVIL ACTION NO. 1:16CV47 |
| Parties | MICHAEL BERRYMAN, Plaintiff, v. OFFICER CHRISTOPHER MULLEN; LT. JERALD RIFFLE; OFFICER BRAD BROWN; and OFFICER JOHN BRADY, Defendants. |
| Court | U.S. District Court — Northern District of West Virginia |
(Judge Keeley)
The 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.
The 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).
The 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).1 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.
During 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 sometimeduring the assault, but as he attempted to protect himself, he was quickly knocked unconscious again. Id. at 14.
After 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.2 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.
On 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 inpunitive 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).3 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.
On 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).
On 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) (). 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 3-6).
On 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.
Pending 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). After receiving an extension, Berryman filed his response in opposition on October 18, 2017 (Dkt. No. 76), and the defendants replied (Dkt. No. 77).
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for dismissal on the grounds that a complaint does not "state a claim upon which relief can be granted." When reviewing the sufficiency of a complaint, a district court "must accept as true all of the factual allegations contained in the complaint." Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). "While a complaint . . . does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
In order to be sufficient, "a complaint must contain 'enough facts to state a claim to relief that is plausible on its face.'" Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss "does notresolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
The function and structure of the FTCA bear brief discussion before the Court turns to the merits of the defendants' motion to dismiss. Due to its sovereign immunity, "[n]o action lies against the United States unless the legislature has authorized it." Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017) (quoting Dalehite v. United States, 346 U.S. 15, 30 (1953)). Under the FTCA, Congress authorized such claims "against the United States based on the negligence or wrongful acts or omissions of its employees committed within the scope of employment." Id. (citing 28 U.S.C. §§ 1346(b)(1), 2671-2680).
Id. (quoting Meyer, 510 U.S. at 475) (alteration in original) (reasoning that whether the defendant was acting in the scope of his employment is a jurisdictional issue). District courts only have jurisdiction to hear those cases that fall within the definition of § 1346. Meyer, 510 U.S. at 477. For instance, because the FTCA directs the application of state law - "the law of the place where the act or omission occurred" - constitutional torts are not cognizable under the statute. Id.
The jurisdictional scope of the FTCA is further limited by various exceptions found at 28 U.S.C. § 2680. For example, the FTCA does not apply to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the party of a federal agency or an employee of the Government." 28 U.S.C. § 2680(a). Other more discrete areas to which the...
To continue reading
Request your trial