Scott v. Carnell

• Decision Date: 29 January 2016
• Docket Number: Civil Action No. 5:15-012525
• Court: U.S. District Court — Southern District of West Virginia
• Parties: EVERETTE SCOTT, Plaintiff, v. WILLIAM CARNELL, et al., Defendants.

EVERETTE SCOTT, Plaintiff, v. WILLIAM CARNELL, et al., Defendants.

Civil Action No. 5:15-012525

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA BECKLEY DIVISION

January 29, 2016

PROPOSED FINDINGS AND RECOMMENDATION

On August 19, 2015, Plaintiff, an inmate incarcerated at FCI Beckley, and acting pro se,¹ filed his Application to Proceed in Forma Pauperis and Complaint claiming entitlement to relief pursuant to Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346(b) and 2671, et seq., and for alleged violations of his constitutional and civil rights pursuant to Bivens v. Six Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24 L.Ed.2d 619 (1971). (Document Nos. 1 and 3.) In his Complaint, Plaintiff names the following as Defendants: (1) William Carnell; (2) Charles E. Samuels, Jr.; (3) Joel Coakley; (4) C. Martin-Brown; (5) Ann Elizabeth Card; (6) David LeMaster; (7) L. Flanagan; (8) James Sed; (9) James Boggs; (10) Donnie Morris; (11) Martino Stegall; and (12) the United States of America. (Document No. 3.) Plaintiff alleges that Defendants subjected him to slander, defamation, bullying, assault, intimidation, harassment, and mental anguish. (Id.) Plaintiff further complains that he was improperly removed from the Residential Drug Abuse Program ["RDAP"]. (Id.) Plaintiffexplains that he "willingly trusted the Defendants by participating in treatment at all relevant times, thus sharing honestly and confidentially his treatment issues that previously lead to addiction, family crisis and other personal matters." (Id., p. 5.) Plaintiff contends that he "was successful in his career prior to incarceration and was forced to discuss these facts while disclosing his personal issues." (Id.) Plaintiff states that following this disclosure, "Plaintiff began to experience direct verbal attacks and ridicule from Defendants about his background." (Id.) Plaintiff states that on June 17, 2014, "Defendant Boggs confronted Plaintiff and advised him that he did not like Plaintiff discussing his past accomplishments in the community and that he would do what it takes to 'hold accountable' the Plaintiff in the future." (Id., pp. 5 - 6.) Plaintiff alleges that Defendant Boggs stated "Defendant Carnell would be 'specially gunning' for Plaintiff because Carnell did not feel individuals with Plaintiff's achievement and educational background should be in the program." (Id., p. 6.)

Plaintiff alleges that on July 16, 2014, "Defendants Sed and Boggs confronted Plaintiff in the general community meeting and accused him of suffering from grandiosity and humility issues regarding his past accomplishments." (Id.) Plaintiff contends that on August 4, 2014, "Defendant Stegall approached Plaintiff and stated that he and other peers feel that Plaintiff is 'not one of them' and doesn't belong in the program." (Id.) On September 17, 2014, Plaintiff alleges that Defendant Boggs accused Plaintiff of making his treatment presentation "as if he 'was in a courtroom.'" (Id., p. 6.) Plaintiff asserts that on October 29, 2014, Defendant Stegall "misrepresented and falsely accused Plaintiff of conveying news of the death of a peer's mom." (Id., p. 7.) Plaintiff further claims that Defendants Boggs, Stegall, and Sed, and other inmates, "conspired to give Plaintiff intensive feedback in the community meeting using harshdefamatory words that amounted to harassment, intimidation, assault, and bullying efforts to attack the Plaintiff." (Id.) Plaintiff contends that on January 21, 2014, Defendants Sed and Boggs made a "confrontation 'pull-up' against the Plaintiff for manipulating another peer." (Id.) On January 22, 2014, Plaintiff alleges that Defendant Sed "accused Plaintiff of being dishonest in front of the community pertaining to the confrontation 'pull-up.'" (Id.) Plaintiff claims that on January 23, 2014, "the Bubble manipulated and conspired to attack and seek removal [of Plaintiff] from the program." (Id., p. 8.) Plaintiff explains that Defendant Sed, Boggs, Morris, and five other inmates called Plaintiff "defamatory and derogatory names." (Id., pp. 8 - 9.) On January 24, 2014, Plaintiff alleges that Defendants Sed and Martin-Brown required Plaintiff to stand in front of the community to do a personal treatment for intensive feedback. (Id., p. 9.) Plaintiff complains that he was "forced to admit that he had been dishonest, when he was not." (Id., pp. 9 - 10.) Plaintiff alleges that "[f]or the next 15 - 20 minutes, Plaintiff received extremely vicious, harsh, degrading criticism and attacks from designated peers in the community, including Defendants Sed, Morris, Boggs, and Stegall." (Id., p. 10.) Plaintiff states that during a team meeting on February 5, 2015, Defendant Carnell "insulted Plaintiff with a racial slur" by stating "You remind me of Johnnie Cochran and the O.J. Simpson trial." (Id.) Plaintiff complains that during the same meeting, Defendant Flanagan stated "I don't believe a word you say and I just met you." (Id.) Plaintiff asserts that following the meeting, Plaintiff received a written document from Defendant Martin-Brown stating that Plaintiff had been "expelled for continued dishonesty in the RDAP program." (Id.) Plaintiff alleges that Defendants' conduct resulted in intimidation, emotional anxiety, harassment, assault, bullying, embarrassment, and humiliation. (Id., pp. 1 - 12.) Plaintiff states that he suffered from emotional distress, sleeplessness, vomiting,anxiety, nausea, headaches, and high blood pressure. (Id.) As relief, Plaintiff requests monetary damages and declaratory judgment. (Id., pp. 12 - 13.)

Also on August 19, 2015, Plaintiff filed his "Motion for Temporary Restraining Order and Preliminary Injunction." (Document No. 4.) Plaintiff requests a temporary restraining order and preliminary injunction prohibiting Defendants from "retaliating against Plaintiff for filing the above captioned action." (Id.) Specifically, Plaintiff requests that the Court prohibit Defendants from the following: (1) "Placing Plaintiff in segregated/isolated housing;" (2) "Denying Plaintiff access to the law library and legal material;" (3) "Interfering with Plaintiff's incoming and outgoing mail;" (4) "Denying Plaintiff telephone, computer, and full commissary access equal to the general population;" (5) "Attempting to intimidate, threaten or otherwise harass Plaintiff;" (6) "Unjustifiably transferring Plaintiff to another Bureau of Prisons facility and/or delaying his 90 day release to home confinement/halfway house/halfway house (on or before January 4, 2016);" and (7) "Subjecting Plaintiff to additional verbal or physical abuse by staff and inmates." (Id.) Plaintiff alleges that he will suffer irreparable harm unless the requested relief is granted because "Plaintiff will not be able to effectively prosecute the aforementioned Complaint filed with this Court." (Id.)

STANDARD

Pursuant to 28 U.S.C. § 1915A, the Court is required to screen each case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. On screening, the Court must recommend dismissal of the case if the complaint is frivolous, malicious or fails to state a claim upon which relief can be granted. A "frivolous" complaint is one which is based upon an indisputably meritless legal theory. Denton v.Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A "frivolous" claim lacks "an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is "based on an indisputably meritless legal theory." Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an arguable basis in fact when it describes "fantastic or delusional scenarios." Id., 490 U.S. at 327 - 328, 109 S.Ct. at 1833. A complaint therefore fails to state a claim upon which relief can be granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. With these standards in mind, the Court will assess Plaintiff's allegations in view of applicable law.

ANALYSIS

1. FTCA Claim:

A plaintiff's FTCA claim must fit into one of the limited areas where Congress waived sovereign immunity. Ali v. Federal Bureau of Prisons, 552 U.S. 214, 215, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008); also see Treasurer of New Jersey v. United States Department of Treasury, 684 F.3d 382 (3^rd Cir. 2012)("Without a waiver of sovereign immunity, a court is without subject matter jurisdiction over claims against federal agencies or officials in their official capacity.") An inmate "can sue under the FTCA to recover damages from the United States Government for personal injuries sustained during confinement in a federal prison, by reason of the negligence of a government employee." United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). Specifically, the FTCA provides at Section 2674 as follows:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

There are, however, exceptions to the FTCA's waiver of sovereign immunity. Pertinent to the instant case, Section 1346(b)(2) provides as follows:

No person convicted of a felony . . . while serving a sentence may bring a civil action against the United States . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury.

28 U.S.C. § 1346(b)(2). Although the FTCA does not define "physical injury," courts have held that the "physical injury" need not be significant, but it must be more than de minimis. See Calderon v. Foster, 2007 WL 1010383 (S.D.W.Va. March 30, 2007)(noting that 42 U.S.C. § 1997e(e) is a related statute, which is...