Johnson v. Thompson
| Docket Number | C. A. 4:23-3558-SAL-TER |
| Decision Date | 14 September 2023 |
| Parties | LaShawn LaMont Johnson, #52978-074, Plaintiff, v. U/M Thompson, U/M Danforth, Unknown, Warden Jansen, Lt. Williams, Lt. Hamilton, C/O Taylor Dr. Anderson, Psych. Department, C. Smith, Defendants. |
| Court | U.S. District Court — District of South Carolina |
REPORT AND RECOMMENDATION
This is a civil action filed by a federal prisoner, proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 636(b)(1) and District of South Carolina Local Civil Rule 73.02(B)(2)(e), the undersigned is authorized to review all pretrial matters in such pro se cases and to submit findings and recommendations to the district court. See 28 U.S.C. § 1915(e).
Under established local procedure in this judicial district, a careful review has been made of the pro se complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v Hernandez, 504 U.S. 25 (1992); Neitzke v Williams, 490 U.S. 319, 324-25 (1989); Haines v Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md House of Corr., 64 F.3d 951 (4th Cir.1995) (en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983).
The Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. To protect against possible abuses of this privilege, the statute allows a district court to dismiss the case upon a finding 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). A finding of frivolousness can be made where the complaint “lacks an arguable basis either in law or in fact.” Denton, 504 U.S. at 31. Hence, under § 1915(e)(2)(B), a claim based on a meritless legal theory may be dismissed sua sponte. See Neitzke, 490 U.S. at 327.
This court is required to liberally construe pro se complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Such pro se complaints are held to a less stringent standard than those drafted by attorneys. Id.; Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Even under this less stringent standard, however, the pro se complaint is subject to summary dismissal. The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which plaintiff could prevail, it should do so, but a district court may not rewrite a complaint to include claims that were never presented, construct the plaintiff's legal arguments for him, or conjure up questions never squarely presented to the court. Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985); Small v. Endicott, 998 F.2d 411 (7th Cir. 1993); Barnett v. Hargett, 174 F.3d 1128 (10th Cir. 1999). 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 currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990) ().
Plaintiff alleges that he brings this action pursuant to Bivens v Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).[1] In August 2023, the court gave Plaintiff notice and opportunity to file an amended complaint to attempt to cure deficiencies that would subject the action, as originally filed, to summary dismissal. The court specifically pointed to said deficiencies. (ECF No. 8). Plaintiff filed an Amended Complaint but deficiencies remain. (ECF No. 11).
Plaintiff alleges he is pursuing a plethora of claims under Bivens: “failure to protect, official oppression, official misconduct, civil conspiracy, 1985, 1986, retaliation, due process violation, equal protection clause, cruel and unusual punishment, poor living conditions, PREA violation, [and] 1st Amendment violation.” (ECF No. 11 at 5). Plaintiff's filing is disorganized and difficult to follow at times. It appears Plaintiff's allegations are in regard to threats from other inmates, officers' lack of reaction to Plaintiff's complaints, access to grievance forms, access to property, access to court, cell conditions, classification, a strip search, calculation/access to RDAP in relation to his sentence, and medical. (ECF No. 11).
Bivens “established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are available on very limited grounds. Violations of the Fourth, Fifth, and Eight Amendments only in certain limited contexts are cognizable claims under the expansion of Bivens. See Carlson v. Green, 446 U.S. 14 (1980), Davis v. Passman, 442 U.S. 228 (1979); Ziglar v. Abbasi, 137 S.Ct. 1843, 1859 (2017). Whether Plaintiff can state a claim under Bivens is highly in doubt. See Egbert v. Boule, 142 S.Ct. 1793, 1799 (2022).
Plaintiff alleges he was given a cell with a ripped mattress, wet floor, molding cloth smell, and insects. (ECF No. 11 at 16, 19). Plaintiff's claims as to conditions are new Bivens contexts and extending Bivens to conditions claims has been previously rejected. The Supreme Court has not recognized an implied cause of action under Bivens for alleged violations of the Eighth or Fourteenth Amendment based on conditions of confinement claims. Other courts also have found a Bivens cause of action does not exist for a conditions of confinement claim. Bulger v. Hurwitz, 2022 WL 340594, at *6 (N.D. W.Va. Jan. 12, 2022)(collecting cases). Plaintiff has failed to state a claim upon which relief may be granted as to Plaintiff's conditions of confinement claims.
Plaintiff alleges when he complained to one officer about another officer, his property was taken and he was told bad things happen to people who file complaints, then told to submit to a strip search. (ECF No. 11 at 15-16). As to retaliation, “there is no Bivens action for First Amendment retaliation.” Egbert v. Boule, 142 S.Ct. 1793, 1807 (2022); Earle v. Shreves, 990 F.3d 774, 776 (4th Cir. 2021) (). Plaintiff has failed to state a cognizable retaliation claim.
Plaintiff alleges he has enough time to go to RDAP. (ECF No. 11 at 18). The denial of RDAP is not a violation of the Eighth Amendment and there is no protected liberty interest in RDAP. See Robinson v. Gonzales, 493 F.Supp.2d 758, 764 (D. Md. 2007). Plaintiff has failed to state a claim in regard to RDAP.
Plaintiff alleges he requested protective custody. (ECF No. 11 at 14). Plaintiff alleges he was given a cellmate who was a general population inmate while Plaintiff was a protective custody inmate. (ECF No. 11 at 16-17). Plaintiff alleges he told Defendants he was not to be housed with inmates from Tennessee. (ECF No. 11 at 28). As to Plaintiff's allegations regarding classification/custody placement, “a federal inmate's challenge to his security classification cannot support a viable Bivens claim because a federal inmate has no constitutional right to any particular custody classification.” Thuan Minh Pham v. Saad, 2018 WL 1377395, at *7 (N.D. W.Va. Mar. 19, 2018). Plaintiff has failed to state a claim upon which relief can be granted as to his custody/classification.
Plaintiff alleges he was strip searched once in May 2023. (ECF No. 11 at 16). In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme Court declined to extend Bivens where prison employees subjected detainees to punitive strip searches. After Ziglar, federal prison strip searches have been examined by this court and found to have arisen in a meaningfully different context from the claim presented in Bivens; thus the context was new but special factors-including plaintiff's access to other remedies like FTCA and BOP administrative process-counseled hesitation in extending Bivens in the absence of congressional action. Jones v. Antonelli, No. 6:19-cv-3036-MBS-KFM, 2020 WL 6292486, at *4 (D.S.C. Jan. 15, 2020), report and recommendation adopted, 2020 WL 5557841 (D.S.C. Sept. 17, 2020)(“Special factors counsel against extending Bivens in this context; thus, the plaintiff's unreasonable search and seizure claim is subject to summary dismissal.”). There is no supported reason to stray from this analysis. See also Ball v. Streeval, __F.Supp.3d__, 2023 WL 1930003, at *6 (W.D. Va. Feb. 9, 2023) (). Plaintiff has failed to state a claim upon which relief can be granted as related to the strip search.
Plaintiff alleges he was “jumped” and running from other inmates with knives and a defendant just watched. (ECF No 11). As to Plaintiff's allegations of failure to protect from other inmates, this year the Fourth Circuit Court of Appeals found in a case involving a fatality that failure to protect claims arise in a new context and special factors counseled against any extension of Bivens. Bulger v. Hurwitz, 62 F.4th 127, 138-142 (4th Cir. 2023). Plai...
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