Hormizi v. United States

• Decision Date: 14 October 2022
• Docket Number: CIV-22-717-SLP
• Parties: EDMOND HORMIZI, Plaintiff, v. UNITED STATES OF AMERICA, et. al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

EDMOND HORMIZI, Plaintiff, v. UNITED STATES OF AMERICA, et. al., Defendants.

No. CIV-22-717-SLP

United States District Court, W.D. Oklahoma

October 14, 2022

REPORT AND RECOMMENDATION

GARY M. PURCELL, UNITED STATES MAGISTRATE JUDGE

Plaintiff a federal prisoner appearing pro se and in forma pauperis, brings this action pursuant to Bivens v Six Unknown Named Agents of Fed. Bureau of Narcotics 403 U.S. 388 (1971) and the Federal Tort Claims Act (“FTCA”). The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). For the reasons explained below, the undersigned recommends Plaintiff's Bivens claim be dismissed without prejudice and Defendant Michael Carvajal be dismissed from this lawsuit.

I. Factual Allegations

Plaintiff is currently incarcerated at the United States Penitentiary located in Atlanta, Georgia. Doc. No. 1 at 3. Plaintiff was previously incarcerated at the Federal Transfer Center (“FTC”) located in Oklahoma City, Oklahoma. Id. at 2. Plaintiff has named the United States of America and Michael Carvajal, Director of the Federal Bureau of Prisons, as Defendants in this matter.

Plaintiff asserts that throughout the COVID pandemic, Defendants failed to maintain a safe environment, develop an appropriate method of testing employees, and despite a moratorium on transfers, transferred Plaintiff to the FTC during the height of the pandemic, placing him “in a congregable intake setting contrary to [Center for Disease Control] guidelines.” Id. Plaintiff also asserts that Defendant Carvajal ordered the transfer of non-citizen criminals, putting them at greater risk of contracting COVID-19, while placing a moratorium on the transfer of citizen prisoners. Id. As a result of these conditions, Plaintiff contracted COVID-19 and sustained permanent damage to his lungs. Id.

By this action, Plaintiff asserts a claim under the Eighth Amendment pursuant to Bivens, alleging Defendants exhibited deliberate indifference to his health and safety. He also asserts a claim under the FTCA.

II. Screening of Prisoner Complaints

A federal district court must review complaints filed by prisoners proceeding in forma pauperis and/or seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(a). After conducting said review, the court must dismiss a complaint or any portion of it presenting claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

In conducting this review, the reviewing court must accept the plaintiff's allegations as true and construe them, and any reasonable inferences to be drawn from the allegations, in the light most favorable to the plaintiff. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Although a pro se litigant's pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520 (1972), “[t]he burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The allegations in a complaint must present “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Further, a claim is frivolous “where it lacks an arguable basis either in law or in fact” or is “based on an indisputably meritless legal theory[.]” Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989).

III. Availability of a Bivens Claim

As set forth above, pursuant to Bivens, Plaintiff asserts an Eighth Amendment claim arising from his transfer to, and conditions of confinement in, the FTC resulting in his contracting COVID-19. Bivens and its progeny permit a damages claim against a federal officer in his individual capacity for a deprivation of constitutional civil rights. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (“In Bivens - proceeding on the theory that a right suggests a remedy - [the United States Supreme] Court ‘recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.'” (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 68 (2001)). Specifically, the Supreme Court “held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures” under the Fourth Amendment. Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843, 1854 (2017). Since Bivens, the Supreme Court has recognized a Bivens remedy in only two additional types of cases: Fifth Amendment violations of the equal protection component of the Due Process Clause, Davis v. Passman, 442 U.S. 228 (1979), and Eighth Amendment violations of the Cruel and Unusual Punishment Clause. Carlson v. Green, 446 U.S. 14 (1980).

In recent years, however, the Supreme Court has made it clear that expanding the Bivens remedy beyond the already recognized contexts is a “disfavored judicial activity.” Abbasi, 137 S.Ct. at 1857 (quotations omitted). Therefore, a plaintiff may carry forward a Bivens action only so long as a court determines the action can satisfy a two-step set of screening/limiting factors before considering the merits. To decide whether a damages claim may be brought under Bivens, a court must determine whether the claim arises under a new Bivens context, and if so, whether “special factors counsel[] hesitation [in expanding the Bivens remedy] in the absence of affirmative action by Congress.” Id. at 1857, 1863-64. See also Malesko, 534 U.S. at 68 (“Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants.”).

The first step in determining whether a Bivens claim can proceed is to determine whether the case presents a new Bivens context. Abbasi, 137 S.Ct. at 1859-60. The proper test for determining whether a case presents a new context requires a court to first consider whether “the case is different in a meaningful way from previous Bivens cases decided by [the United States Supreme] Court[.]” Id. at 1859. If so, “then the context is new.” Id. In other words, courts should determine whether the claims at issue differ meaningfully from “a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary [based on her gender]; and a claim against prison officials for failure to treat an inmate's asthma [resulting in his death].” Id. at 1860.

To be clear, the test is more than simply determining “whether the asserted constitutional right was at issue in a previous Bivens case,” and, if so, “whether the mechanism of injury was the same mechanism of injury in a previous Bivens case.” Id. at 1859; see also Hernandez v. Mesa, __ U.S. __, 140 S.Ct. 735, 743 (2020) (“A claim may arise in a new [Bivens] context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.”). In other words, the analysis goes deeper than asking whether plaintiffs are merely proceeding under the same constitutional amendment as the Bivens trio. Id. Courts are instructed to consider whether

[a] case might differ in a meaningful [enough] way [to make a given context a new one] because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 137 S.Ct. at 1860.

Plaintiff's Eighth Amendment claim against Defendants alleges that his transfer to, and conditions of confinement within, FTC constituted cruel and unusual punishment because they failed to mitigate exposure to COVID-19. Because the Court concludes that Plaintiff's claim against Defendants differ significantly from the Bivens trilogy of actions sanctioned by the Supreme Court, the Court further concludes those claims arise in a new context. Compare Bivens, 403 U.S. at 389-90 (manacling the plaintiff in front of his family in his home and strip-searching him in violation of the Fourth Amendment); Carlson, 446 U.S. at 16-18 (recognizing a Bivens cause of action under the Eighth Amendment for a deceased prisoner who was deprived medical attention by prison officers who knew of his serious medical condition); Davis, 442 U.S. at 229-34 (recognizing a Bivens cause of action under the Due Process Clause of the Fifth Amendment for a female employee who was terminated based on her gender).

Although Plaintiff asserts an Eighth Amendment claim, as did the plaintiff in Carlson, Plaintiff's Eighth Amendment conditions of confinement claim differs significantly from that asserted in Carlson. There the Court recognized a Bivens cause of action under the Eighth Amendment in a case involving an alleged failure to provide medical treatment for an inmate with a “serious[ ]” and “chronic asthmatic condition” known to prison officials. Carlson, 446 U.S. at 16 n.1. Plaintiff's Eighth Amendment claim does not concern an alleged delay or deprivation in medical care, but rather raises challenges to his transfer to, and conditions of confinement within, FTC regarding...