United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
Jacquelyn D. Austin United States Magistrate Judge.
matter is before the Court on a motion to dismiss or, in the
alternative, for summary judgment filed by Defendants. [Doc.
72.] Pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e), D.S.C., the
undersigned magistrate judge is authorized to review this
case and to submit findings and recommendations to the
commenced this action by filing a Complaint on November 10,
2017, alleging that prison officials refused to
provide him with medical care in violation of his civil
rights. [Doc. 1.] The Clerk docketed an Amended Complaint on
April 18, 2018. [Doc. 31.] According to Plaintiff, all
Defendants named in the Amended Complaint allegedly
contributed to the denial to Plaintiff of appropriate medical
treatment, either at Coleman Low Federal Correctional
Institution in Florida (“FCI Coleman”) or
Edgefield Federal Correctional Institution (“FCI
Edgefield”). [Doc. 31-1 at 4.] All Defendants are named
in an individual capacity, not in an official capacity.
[Docs. 31 at 2; 31-1 at 1, 4.] Plaintiff alleges claims under
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), that Defendants
violated his Eighth Amendment rights by exhibiting deliberate
indifference to his medical needs. [Doc. 31 at 4;Doc. 31-1 at
November 9, 2018, Defendants filed a motion to dismiss or, in
the alternative, for summary judgment (“Defendants'
motion”). [Doc. 72.] On November 13, 2018, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff was advised to respond to the motion and of the
possible consequences if he failed to adequately respond.
[Doc. 73.] The Clerk docketed a response from Plaintiff to
this motion on June 3, 2019. [Doc. 90.] The motion is now
ripe for review.
events giving rise to his claim began in January 2016 and
occurred at Coleman Low Federal Correctional Institution in
Florida (“FCI Coleman”) and FCI Edgefield. [Docs.
31 at 5, 7; 31-3 at 3-4.] According to Plaintiff, he was
injured in January 2016 in his dorm unit at FCI Coleman.
[Doc. 31-1 at 2.] While attempting to step down the ladder
from his upper bunk, he “fell violently to the floor
and hurt [his] back.” [Id.] An appointment
with a doctor was set for later that week, and he was
diagnosed with appendicitis within a few days of the original
injury. [Id.] He was checked into a hospital in
Leesburg, Florida. [Id.] He received blood work, an
x-ray, a CT scan, and an MRI. [Id. at 3.] The MRI
revealed a “T-10 and T-11 bulging disk, ” as
well as a severe staff infection throughout his entire spine.
[Id.] He then spent 10 days in the hospital on
various medications, which was followed by a 60-day medicine
treatment at the prison. [Id.] According to
Plaintiff, “[t]he staff infection was thankfully cured
and I am thankful everyday for the efforts of the prison and
hospital staff for saving my life.” [Id.]
Plaintiff has continued to endure severe pain due to the
bulging discs in his back. [Id.] He has been to
“sick call more times than [he] can count.”
[Id.] He pursued administrative remedies at FCI
Coleman in hopes of addressing his condition but all of his
requests for assistance have been denied. [Id.]
Plaintiff was transferred to FCI Edgefield in March 2017.
[Id.] He received a notice of final denial of his
administrative remedies in June 2017. [Id.]
According to Plaintiff, he has continued to address his pain
by “going to sick call only to be told there is nothing
that can be done for [him].” [Id.]
Accordingly, Plaintiff filed this action requesting that the
Court order the Bureau of Prisons to provide a back surgical
specialist, permitting Plaintiff to explore all available
medical remedies, including surgery, to address his severe
back pain. [Id. at 7.] Plaintiff also seeks a
transfer to a qualified Bureau of Prisons facility.
Construction of Pro Se Complaint
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d
1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a
less stringent standard than those drafted by attorneys.
Haines, 404 U.S. at 520. Even under this less
stringent standard, however, the pro se complaint is still
subject to summary dismissal. Id. at 520-21. The
mandated liberal construction means only that if the court
can reasonably read the pleadings to state a valid claim on
which the plaintiff could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the plaintiff's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
for a Cause of Action Under Bivens
Bivens, the Supreme Court established a direct cause
of action under the Constitution of the United States against
federal officials for the violation of federal constitutional
rights. 403 U.S. at 389. A Bivens claim is analogous
to a claim under 42 U.S.C. § 1983; federal officials
cannot be sued under § 1983, however, because they do
not act under color of state law. Harlow v.
Fitzgerald, 457 U.S. 800, 814-20 (1982). Case law
involving a § 1983 claim is applicable in a
Bivens action and vice versa. See Farmer v.
Brennan, 511 U.S. 825 (1994); Mitchell v.
Forsyth, 511 U.S. 511, 530 (1985); Turner v.
Dammon, 848 F.2d 440, 443-44 (4th Cir.1988). To
establish a claim under Bivens, a plaintiff must
prove two elements: (1) the defendant deprived the plaintiff
of a right secured by the Constitution and laws of the United
States and (2) the defendant did so under color of federal
law. See Mentavlos v. Anderson, 249 F.3d 301, 310
(4th Cir. 2001) (citation and internal quotation marks
omitted) (setting forth requirements for a § 1983 claim
under color of state law); see also Bivens, 403 U.S.
at 389 (“In [a previous case], we reserved the question
whether violation of [the Constitution] by a federal agent
acting under color of his authority gives rise to a cause of
action for damages consequent upon his unconstitutional
conduct. Today we hold that it does.”).
12(b)(6) Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
claim should be dismissed if it fails to state a claim upon
which relief can be granted. When considering a motion to
dismiss, the court should “accept as true all
well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff.” Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). However, the court “need not accept the legal
conclusions drawn from the facts” nor “accept as
true unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Mkts., Inc. v. J.D. Assocs.
Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
Further, for purposes of a Rule 12(b)(6) motion, a court may
rely on only the complaint's allegations and those
documents attached as exhibits or incorporated by reference.
See Simons v. Montgomery Cty. Police Officers, 762
F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings
are presented to and not excluded by the court, the motion is
treated as one for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
respect to well-pleaded allegations, the United States
Supreme Court explained the interplay between Rule 8(a) and
Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief, ” in order to
“give the Defendants fair notice of what the . . .
claim is and the grounds upon which it rests.” While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations, a plaintiff's
obligation to provide the “grounds” of his
“entitle[ment] to relief” requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all the
allegations in the complaint are true (even if doubtful in
550 U.S. 544, 555 (2007) (footnote and citations omitted);
see also 5 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1216,
at 235-36 (3d ed. 2004) (“[T]he pleading must contain
something more . . . than a bare averment that the pleader
wants compensation and is entitled to it or a statement of
facts that merely creates a suspicion that the pleader might
have a legally cognizable right of action.”).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the Defendants is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a Defendants has acted unlawfully.”
Id. (citing Twombly, 550 U.S. at 556). The
plausibility standard reflects the threshold requirement of
Rule 8(a)(2)-the pleader must plead sufficient facts to show
he is entitled to relief, not merely facts consistent with
the Defendants's liability. Twombly, 550 U.S. at
557 (quoting Fed.R.Civ.P. 8(a)(2)); see also Iqbal,
556 U.S. at 678 (“Where a complaint pleads facts that
are ‘merely consistent with' a Defendants's
liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to
relief.”'” (quoting Twombly, 550
U.S. at 557)). Accordingly, the plausibility standard
requires a plaintiff to articulate facts that, when accepted
as true, demonstrate that the plaintiff has stated a claim
that makes it plausible the plaintiff is entitled to relief.
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Iqbal, 556 U.S. at 678).
of the Federal Rules of Civil Procedure states, as to a party
who has moved for summary judgment:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if
proof of its existence or non-existence would affect
disposition of the case under applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
of material fact is “genuine” if the evidence
offered is such that a reasonable jury might return a verdict
for the non-movant. Id. at 257. When determining
whether a genuine issue has been raised, the court must
construe all inferences and ambiguities against the movant
and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving
party must demonstrate specific, material facts exist that
give rise to a genuine issue. Id. Under this
standard, the existence of a mere scintilla of evidence in
support of the non-movant's position is insufficient to
withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials,
without more, are insufficient to preclude granting the
summary judgment motion. Id. at 248. “Only
disputes over facts that might affect the outcome of ...