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Washington v. Federal Bureau of Prisons

United States District Court, D. South Carolina

August 6, 2018

Burl Washington, Plaintiff,
Federal Bureau of Prisons; Hugh J. Hurwitz; J. A. Keller; Bonita S. Mosley; Nanette Barnes; Hector Joyner; Maureen Cruz; B. J. Meeks; Rex Blocker; Donardo Fonte; Tammara Bryan; Richard Lepiane; David Garcia; Eve Ulmer; Estate of Victor Loranth; David Massa, and Anthony Harvey, Defendants.



         This is a civil action filed by a federal prisoner, Burl Washington (“Plaintiff”). Under Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge. This case is before the undersigned magistrate judge for a report and recommendation on Plaintiff's Motion for Preliminary Injunction. ECF No. 126.

         I. Plaintiff's Motion

         Plaintiff is a legally blind federal inmate, [1] previously housed at FCI-Williamsburg, FCI-Estill, and FCI-Edgefield, all within the geographical coverage of this court. He is currently housed at FCI-Butner, in Butner, North Carolina. During eight months before the filing of this Motion (since October 2017), Plaintiff was transferred to various Federal Bureau of Prisons (“BOP”) facilities nine times. Id. at 3.[2] This case was filed pro se while Plaintiff was housed in South Carolina.[3] Plaintiff is now represented by counsel. In his Motion, Plaintiff asks this court to order Defendant BOP to

(1) transfer [him] to, and/or maintain [him] at, a CARE Level 3 or 4 Federal Correctional facility that is commensurate with his medical needs; (2) mandate that the facility where [he] is housed provide [him] with medications required to treat his glaucoma; (3) mandate that the facility where [he] is housed engage the services of a nearby glaucoma specialist so that he may receive treatment for his glaucoma; and (4) mandate that the facility where [he] is housed provide [him] with reasonable accommodations so that he may safely navigate the facility and receive assistance with administration of his medications.

Id. at 2. Plaintiff asserts that he has been subjected to cruel and unusual punishment due to BOP's “inconsistent medical care” and failure to provide him with the medical and personal assistance that he needs because of his blindness. Id. at 2-3. Plaintiff contends that the frequent transfers he has been subjected to deprive him of the ability to establish a therapeutic relationship with an ophthalmologist and other needed specialists and subjects him to irreparable harm. Id. at 4-5.

         Regarding his requests for preliminary relief, Plaintiff contends that his injunctive relief claims are not moot despite his transfer from FCI-Estill and FCI-Edgefield because inconsistent medical care has followed him to each prison to which he has been transferred and the frequent transfers increase the harm from such inconsistency. According to Plaintiff this harm is “capable of repetition, yet evading review.” Id. at 7-9. Plaintiff asserts that the BOP's continuing failure to comply with the directions for care issued by Dr. Nutaitis at the Medical University of South Carolina (“MUSC”), ECF No. 126-2, such as exact timing of medications and timely follow-up visits with an ophthalmologist, coupled with evidence that Plaintiff's eye pressure problems become worse without appropriate medication, show that irreparable harm of pain and continued loss of vision will result without the requested injunctive relief. ECF No. 126 at 10-11. Plaintiff argues that the equities are in his favor because the BOP's decisions to transfer him from one inadequate care level institution to another while allowing him to lose more eyesight and experience pain do not deserve deference. Plaintiff also asserts that the BOP will suffer no harm from the requested injunctive relief because it has facilities that are designed to provide the type of care requested for Plaintiff's uncommon condition. Id. at 12-13. Plaintiff asserts that he can show likelihood of success on the merits of his medical indifference claim because the BOP has not followed the instructions of Dr. Nutaitis regarding timing of medications and follow-up visits. Id. at 13. Plaintiff states that the injunctive relief requested is in the public interest because the health and safety of inmates and their constitutional rights should not be disregarded where BOP's numerous transfers have exacerbated Plaintiff's vision loss and pain. Id. at 14.

         Defendants respond to Plaintiff's Motion, asserting that it should be denied because 1) the injunctive-relief claim is moot because Plaintiff has been transferred from the institutions where he received the medical care that he claims was inadequate and he cannot pursue a Bivens claim against the BOP or its officials in their official capacities; 2) decisions about whether and where to transfer federal inmates is within the official discretion of the BOP and are not for the court to make, particularly where Plaintiff is currently housed at a Care Level 3 institution and receiving appropriate care; 3) Plaintiff's allegations fail to satisfy the four-prong test of Winter v. Natural Resources Defense Council, Inc., 55 U.S. 7, 20 (2008) because he cannot show a likelihood of success on the merits or irreparable harm because any potential injury that might arise from Plaintiff's incarceration in a regular federal prison is too speculative and remote; because Plaintiff's desire for more or different medical care does not establish medical indifference, and Plaintiff has not fully exhausted his administrative remedies; and because Plaintiff cannot show that the equities favor the requested injunction because of the public interest in allowing prisons to function in accordance with the directions of prison officials. ECF No. 134 at 5-11, 17, 21.

         Plaintiff replies that this court has personal jurisdiction over the BOP and can issue injunctive relief against it because it is a party to this case and, according to Defendants, has “sole discretion where and under what conditions a federal prisoner is housed.” ECF No. 138 at 2-3. Plaintiff also replies that his recent transfer to a Care Level 3 facility does not prevent this court from awarding the injunctive relief sought because Plaintiff could be transferred to a different prison at any time and several of his past wardens requested that he be transferred to a medical center. Id. at 4. Plaintiff invokes “traditional equitable power” to issue injunctions without requiring exhaustion of administrative remedies at each of the ten institutions where he has been housed since this case was filed. Plaintiff argues that it would be absurd to require him to exhaust administrative remedies at each of those institutions where he previously exhausted all remedies at FCI-Estill. Id. at 4-5. Plaintiff replies that he is not questioning the medical judgment of the BOP medical providers, but, rather, is asserting that his care in the BOP has been inconsistent with the directions of his outside medical providers and that needed care has been unreasonably delayed. Id. at 5-6.

         II. Standard of Review

         “[P]reliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations and quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008). A plaintiff does not have an automatic right to a preliminary injunction and such relief should be used sparingly. The primary purpose of injunctive relief is to preserve the status quo pending a resolution on the merits. Injunctive relief which changes the status quo pending trial is limited to cases where “the exigencies of the situation demand such relief.” Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. In each case, courts must balance the competing claims of injury and consider the effect on each party of granting or withholding the requested relief. Id. The court must pay particular regard for the public consequences of employing the extraordinary remedy of injunction. Id.; see also The Real Truth About Obama, Inc. v. F.E.C., 607 F.3d 355 (4th Cir. 2010) (reinstating court's previous discussion of Winter's preliminary injunction standards following remand from the United States Supreme Court).

         III. Discussion

         A. Initial Matters

         1. Jurisdiction over BOP for Injunctive Relief

         As an initial matter, Defendants' assertion that this court is without jurisdiction to consider Plaintiff's injunctive relief claim against the BOP is incorrect. The BOP is an agency of the United States, and Congress has waived sovereign immunity for a federal agency such as BOP in actions seeking nonmonetary relief. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1238-39 (10th Cir. 2005) (holding sovereign immunity does not bar inmate from suing the BOP for injunctive relief under 28 U.S.C. § 1331 for Eighth Amendment violations because the BOP is agency within the meaning of the Administrative Procedures Act, 5 U.S.C. §§ 551(a), 702). Defendants' assertion that this court has no jurisdiction to direct the BOP to house Plaintiff in any particular institution because of the discretion that the BOP admittedly has over inmate housing and medical care is overbroad. This court has jurisdiction to consider whether the exercise of such discretion comports with constitutional standards. None of the case law cited by Defendants in support of their lack-of-jurisdiction arguments even discusses jurisdictional issues, much less hold that a federal court cannot consider a constitutional violation claim relating to a prisoner's living arrangements. See, e.g., McKune v. Lile, 536 U.S. 24, 39 (2002) (self-incrimination claim considered); Meachum v. Fano, 427 U.S. 215, 223-24 (1976) (due process right considered); Hayes v. Thompson, 726 F.2d 1015, 1016-17 (4th Cir. 1984) (due process right considered). Instead, each of those cases involved the courts' review of the constitutionality of prison regulations and discretionary activity. Had the courts been without jurisdiction to do so, it seems that some reference to alleged lack of jurisdiction would have been made in the opinion. In fact, the Court in Meachum specifically stated that “given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution.” Meachum v. Fano, 427 U.S. at 224 (emphasis added). Thus, courts have jurisdiction to consider whether the BOP's activities relating to Plaintiff's various places of incarceration violated his Eighth Amendment rights. Accordingly, the undersigned finds that this court has subject matter jurisdiction to award injunctive relief against the BOP if required.

         2. Mootness

         Initially, Defendants contend that Plaintiff's Motion is moot and, therefore, this court is without jurisdiction to consider it. Defendants' inmate history document shows that Plaintiff has been transferred to at least seven different institutions (including the transfer locations) since this case was filed: FCI-Estill, FCI-Edgefield, USP-Atlanta, FTC-Oklahoma, FCI-Loretto, USP Canaan, and FCI-Butner. ECF No. 134-1. Ms. Amy Jacobs of FCI-Butner lists numerous instances of medical care and life-care assistance that Plaintiff has received since his transfer to that institution. No. 134-3. Plaintiff does not dispute the facts provided in the Jacobs Affidavit. However, he continues to assert that the care and assistance he receives is inadequate and inconsistent and that he suffers severe pain when his medications are not properly administered. Thus, while ...

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