Giordano v. United States
| Decision Date | 12 August 2022 |
| Docket Number | C/A 6:22-cv-00796-JFA-KFM |
| Parties | Philip A. Giordano, Plaintiff, v. United States of America, Corrections Officer Roberts, Corrections Officer Davis, Corrections Officer Farmer, Lt. Davis, Nurse Brock, Corrections Officer Graham, Defendants. |
| Court | U.S. District Court — District of South Carolina |
REPORT OF MAGISTRATE JUDGE
The plaintiff, a federal prisoner proceeding pro se and in forma pauperis, brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999) and the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b) alleging violations of his constitutional rights (doc. 7). Pursuant to the provisions of 28 U.S.C. § 636(b), and Local Civil Rule 73.02(B)(2), (D.S.C.), this magistrate judge is authorized to review all pretrial matters in this case and submit findings and recommendations to the district court.
The plaintiff's amended complaint was entered on the docket on April 14, 2022 (doc. 7). On May 18, 2022, the undersigned issued an order informing the plaintiff that his amended complaint was subject to dismissal as drafted and providing him with time to file a second amended complaint to correct the deficiencies noted in the order (doc. 16). The plaintiff was informed that if he failed to file an amended complaint or cure the deficiencies outlined in the order, the undersigned would recommend that his claims be dismissed (id. at 18). The plaintiff failed to file a second amended complaint within the time provided, so on June 10 2022, the undersigned issued a report and recommendation recommending that this case be dismissed without further leave for amendment (doc. 20). On June 21, 2022, the plaintiff responded to the report and recommendation and moved for 30 additional days to file a second amended complaint (doc. 23). On June 29, 2022, the Honorable Joseph F. Anderson, Jr., Senior United States District Judge entered an order declining to adopt the report and recommendation, and providing the plaintiff with 30 additional days to file a second amended complaint (doc. 24). To date, the plaintiff has failed to file a second amended complaint within the additional time provided by Judge Anderson; accordingly, the undersigned recommends that the case be dismissed.
The plaintiff, a federal prisoner in the custody of the Bureau of Prisons (“BOP”) and currently located at Yazoo City Low Federal Correctional Institution, brings this action pursuant to the FTCA and Bivens alleging violations of his rights by the defendants (doc. 7). The plaintiff alleges that when he was in the quarantine area of the special housing unit (“SHU”) at Federal Correctional Institution Bennettsville (“FCI Bennettsville”) preparing to be transferred, he asked Ofc. Graham about his legal documents that had not been packed in his property, but Ofc. Graham indicated that they would be destroyed if they had not been packed (id at 4). The plaintiff requested to see another BOP officer about his property, but none ever came to his cell (id.).
Later that day, when Ofc. Roberts brought food trays to the plaintiff's cell, the plaintiff asked Ofc. Roberts about his property, but Ofc. Roberts closed the food slot (id.). The closing of the food slot shocked the plaintiff and he put his hand up to protect his face from the food slot and the food slot cut his middle finger (id.). Ofc. Roberts indicated that the plaintiff assaulted him and then left the plaintiff there with a bloody finger (id.). Ofc. Davis and Ofc. Farmer were with Ofc. Roberts, but did not protect the plaintiff from the slammed food slot and failed to obtain medical attention for the plaintiff despite his bleeding finger (id. at 4-5). An unknown BOP employee came to the cell a little later and indicated that the plaintiff would be taken to medical, but he was not taken to medical (id. at 5). Other officers came by the cell and told the plaintiff to get ready to go to medical, but he was never taken (id.).
During count, the plaintiff showed Lt. Davis his injury and Lt. Davis indicated that he would take the plaintiff to medical after count, but the plaintiff was never taken to medical (id.). Nurse Brock also indicated that she could treat the plaintiff's hand after pill line, but never treated it (id.). The next day, prior to transport, the plaintiff and a transport officer reached out to Nurse Brock for a bandaid for the plaintiff's hand, but she never brought one (id.). The plaintiff also contends that he requested medical treatment while temporarily housed in an Atlanta federal corrections facility, but was never provided any treatment (id.).
For relief, the plaintiff seeks to have the defendants found liable for negligence and deliberate indifference, and the United States responsible for negligent training of BOP officers (id. at 6). The plaintiff also seeks money damages (id.).
The plaintiff filed this action pursuant to 28 U.S.C. § 1915, the in forma pauperis statute. This statute authorizes the District Court to dismiss a case if it is satisfied that the action “fails to state a claim on which relief may be granted,” is “frivolous or malicious,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Further, the plaintiff is a prisoner under the definition of 28 U.S.C. § 1915A(c)), and “seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Thus, even if the plaintiff had prepaid the full filing fee, this Court is charged with screening the plaintiff's lawsuit to identify cognizable claims or to dismiss the complaint if (1) it 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. 28 U.S.C. § 1915A.
As a pro se litigant, the plaintiff's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
As noted above, the plaintiff filed the instant action pursuant to the FTCA and Bivens, seeking damages from the defendants. However, the plaintiff's amended complaint is subject to summary dismissal. As an initial matter, to the extent the plaintiff's amended complaint references allegations of medical indifference while he was a prisoner in Atlanta, Georgia, such claims cannot be pursued as part of this action because the actions giving rise to the claim and the defendants involved would be located outside of this district and the jurisdiction of this court. However, the plaintiff's claims regarding events that occurred while in South Carolina (and at FCI Bennettsville) are evaluated in more detail below.
The FTCA sets forth situations in which the United States has waived the sovereign immunity it otherwise enjoys. 28 U.S.C § 1346. The FTCA vests the district courts with:
exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). FTCA claims may only lie against the United States-not individuals. Hui v. Castaneda, 559 U.S. 799, 805-06 (2010). Nevertheless, the United States Attorney for the District of South Carolina, as the designee of the United States Attorney General, may certify that individual federal employee defendants were acting within the scope of their employment under the Westfall Act amendment to the FTCA. 28 U.S.C. § 2679. Hui, 559 U.S. at 807. The Westfall Act amendment to the FTCA provides that upon such certification, “any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.” 28 U.S.C. § 2679(d)(1). Although certification may be refused, the employee may petition the court for certification. Here, however, the record reflects no such request for certification or refusal by the government to issue the certification. Absent this certification, the court lacks jurisdiction over the plaintiff's FTCA claims against the individual defendants (other than the United States) and they are subject to dismissal.
Nevertheless the plaintiff has named the United States as a defendant, and his FTCA claims will be evaluated as to the United States. As an initial matter, since the plaintiff's amended complaint involves actions that purportedly occurred while the plaintiff was housed at FCI Bennettsville, a BOP facility located in South Carolina, the substantive law of South Carolina applies to his FTCA claim. Miller v. United States, 932 F.2d 301,303 (4th Cir. 1991); Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009). The FTCA claims in the plaintiff's amended complaint have been liberally construed as follows: (1) negligent training and supervision; (2) personal injury; (3) negligent medical...
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