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Kirtman v. Helbig

United States District Court, D. South Carolina, Florence Division

July 27, 2018

Derrick E. Kirtman, Plaintiff,
v.
Chaplain Helbig, S.I.A. Stivers, Warden Cruz, Assistant Hospital Administrator Whitehurst, and Assistant Warden Landford, Defendants.

          ORDER AND OPINION

          A. Marvin Quattlebaum, Jr. United States District Judge.

         Plaintiff, Derrick E. Kirtman (“Plaintiff”), a federal prisoner who is proceeding pro se, brings this civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff's complaint initially alleged Defendants Chaplain Helbig, S.I.A. Stivers, Warden Cruz, Assistant Hospital Administrator Whitehurst, and Assistant Warden Landford (“Defendants”), as well as other defendants from California who are no longer parties, violated his First Amendment right to exercise his religious beliefs, his right to file grievances without being retaliated against by prison officials, and his right to not be placed in segregation and transferred as a means of retaliation for filing grievances. He further alleged that Defendants violated Plaintiff's Eighth Amendment rights, through deliberate indifference to his medical needs, by denying or delaying his medications and surgeries. (ECF No. 1.)

         In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Judge Thomas E. Rogers for pretrial handling. The Magistrate Judge prepared a thorough Report and Recommendation (“Report”) which recommends that Defendants' Motion for Summary Judgment (ECF No. 85) be granted and this case dismissed in its entirety. (ECF No. 130.) For the reasons set forth herein, the Court adopts the Report and Defendants' Motion for Summary Judgment (ECF No. 85) is GRANTED.

         BACKGROUND AND PROCEDURAL HISTORY

         The Report sets forth in detail the relevant facts and standards of law. The Court incorporates those facts and standards and summarizes below only in relevant part. Plaintiff filed his complaint on August 11, 2016. (ECF No. 1.) The Court previously entered an order adopting a Report and Recommendation of the Magistrate Judge which dismissed Plaintiff's First Amendment religious freedom claims and several defendants from California. (ECF No. 47.) Therefore, the claims remaining in this matter are for an alleged denial of Plaintiff's First Amendment right to file grievances without retaliation and for violation of his Eighth Amendment right to medical treatment based on alleged deliberate indifference. Likewise, the remaining Defendants are Helbig, Stivers, Cruz, Whitehurst and Landford. These Defendants brought a Motion for Summary Judgment on these claims on June 9, 2017. (ECF No. 85.) Plaintiff filed a Response in Opposition to the Motion for Summary Judgment on December 4, 2017. (ECF No. 116.) The moving Defendants filed a Reply in Opposition to Plaintiff's response to Defendants' Motion for Summary Judgment on December 22, 2017 (ECF No. 125), and Plaintiff filed a Sur-reply on January 16, 2018. (ECF No. 126.)

         On January 26, 2018, the Magistrate Judge issued his Report recommending that the Motion for Summary Judgment be granted and this case dismissed in its entirety. (ECF No. 130.) Plaintiff was advised of his right to file “specific written objections” to the Report “within fourteen (14) days of the date of service” of the Report. (ECF No. 130-1.) The Clerk's office received Plaintiff's objections on February 20, 2018. (ECF No. 133.) Defendants filed a response to Plaintiff's objections on March 5, 2018. (ECF No. 135.) Plaintiff filed a reply to Defendants' response on March 19, 2018. (ECF No. 138.) With replies and responses filed, the Motion and the Report are ripe for review.

         STANDARD OF REVIEW

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Bruce v. Attorney Gen. of State of S.C., 35 F.3d 555 (4th Cir. 1994)(unpublished decision). Absent a timely, specific objection-or as to those portions of the Report to which no specific objection is made-this Court “must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

         ANALYSIS AND DISCUSSION

         In his Report, the Magistrate Judge first acknowledged that Plaintiff's constitutional violation claims against agents of the federal government fall under the Supreme Court case Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) to the extent that Bivens and its progeny allow for such claims. (ECF No. 130 at 5.) As acknowledged by the Magistrate Judge, there are limited instances “in which the Court has approved of an implied damages remedy under the Constitution itself.” (ECF No. 130 at 5). The Magistrate Judge gave careful attention to the recent Supreme Court decision in Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017), whereby the Supreme Court emphasized that expanding the Bivens remedy is disfavored, and further highlighted the “special factors” a court must perform to determine whether a Bivens action should be available in a new context. (ECF No. 130 at 6.)

         In light of Bivens and its progeny, the Magistrate Judge first gave specific and careful consideration to Plaintiff's First Amendment retaliation claim. The Magistrate Judge highlighted several cases across the country whereby federal courts have expressly declined to recognize a Bivens claim in the First Amendment retaliation context, particularly in light of Ziglar.[1] (ECF No. 130 at 8-9.) The Magistrate Judge recommended that this Court decline to extend the Bivens remedy to Plaintiff's First Amendment retaliation claim.

         The Magistrate Judge also addressed Plaintiff's medical indifference claim, first finding that a Bivens remedy does not extend to individuals such as Defendant Whitehurst who is a commander in the United States Public Health Services (“PHS”). (ECF No. 130 at 10.) The Magistrate Judge then addressed the merits of Plaintiff's Eighth Amendment claim against non-medical personnel Defendants Helbig, Stivers, Cruz and Langford. (ECF No. 130 at 11.) In view of the record, the Magistrate Judge concluded that the medical records failed to indicate any involvement of Stivers, Cruz or Langford in the decisions regarding Plaintiff's medical treatment (ECF No. 130 at 15.) The Magistrate Judge specifically noted that Plaintiff made no specific allegations against Helbig with respect to his medical treatment. (ECF No. 130 at 12.) Accordingly, the Magistrate Judge recommends that Defendants' Motion for Summary Judgment be granted as to this claim, having concluded that Plaintiff failed to present sufficient evidence to satisfy the high and exacting deliberate indifference standard.

         Plaintiff filed objections to the Magistrate Judge's recommendation. As an initial matter, Plaintiff objects generally to the recommendation that Defendants' Motion for Summary Judgment be granted, and also maintains that the Report fails to “address the gravity of the entirety of the situation.” (ECF No. 133 at 1.) The Court find that these objections are the sort of “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). These general objections are, therefore, overruled.

         Plaintiff makes additional objections concerning the Magistrate Judge's treatment of facts in the record concerning retaliatory placement and conduct. (ECF No. 133 at 2, 6-7.) Plaintiff also contends that the Report fails to address the absence of any remedy for a “clear violation of constitutional rights.” (ECF No. 133 at 2, 4-5.) He asserts that Defendants are not entitled to qualified immunity, rendering summary dismissal improper. (ECF No. 133 at ...


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