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Hopper v. Barr

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

July 31, 2019

Gerald Damone Hopper, Plaintiff,
v.
William P. Barr;[1] Mark S. Inch; Ian Conners; J.A. Keller; Hector Joyner; Regina D. Bradley; Richard Perkins; R. Lepiane; D. Garcia; Jade Lloyd, Defendants. Gerald Damone Hopper, Plaintiff,
v.
Federal Bureau of Prisons, S.E. Regional Office, and FCI Estill, Defendants.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Gerald Damone Hopper, an inmate currently incarcerated in the Gaston County, N.C. Detention Center, filed this 42 U.S.C. § 1983 action alleging that Defendants violated his constitutional rights. This matter is before the court on Defendants' Mark S. Inch, Ian Connors, and J.A. Keller's Motion to Dismiss under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. ECF No. 50. This matter is also before the court on the Motion for Summary Judgment filed by Defendants Regina D. Bradley, Ian Connors, D. Garcia, Mark S. Inch, Hector Joyner, J. A. Keller, R. Lepiane, Jade Lloyd, Richard Perkins, William P. Barr, FCI Estill, Federal Bureau of Prisons (“BOP”), and SE Regional Office (collectively “Defendants”) on December 3, 2018. ECF No. 59.[2]As Plaintiff is proceeding pro se, the court entered Roseboro orders[3] related to the Motion to Dismiss and the Motion for Summary Judgment on October 19, 2018 and December 19, 2018 respectively. ECF Nos. 52, 62. In the Roseboro Orders the court advised Plaintiff of the importance of such motions and of the need for him to file an adequate response. Id. Plaintiff responded to Defendants' Motion for Summary Judgment on December 19, 2018. ECF No. 66. Defendants did not file a Reply.

         This case was referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(d) and (e), D.S.C. Because Defendants' motion to dismiss and summary judgment motions are dispositive, a Report and Recommendation is entered for the court's review.

         I. Plaintiff's Complaint

         Plaintiff filed his Complaint on April 26, 2018. ECF No. 1. Plaintiff alleges that Defendants have violated the Eighth Amendment by “implement[ing] a custom and policy that den[ies] inmates treatment for the Hepatitis C Virus” that he contends he contracted while incarcerated at FCI Estill in or around 2010. ECF No. 1 at 4, 6.

         Specifically, Plaintiff alleges that he first reported that he was experiencing “severe and excruciating stomach pains” while he was incarcerated at FCI Estill in 2010. ECF No. 1-1 at 2-3. Plaintiff alleges that in 2014, while incarcerated at FCI Hazelton, he was informed that he had the Hepatitis C Virus (“HCV”) and had had it since 2011. ECF No. 1-1 at 3.

         Plaintiff alleges that since his HCV diagnosis, he frequently requested treatment at both FCI Hazelton and when he returned to FCI Estill. ECF No. 1-1 at 4. Plaintiff alleges that Defendants denied his requests for treatment. ECF No. 1-1 at 4-7. In a supplement to his Complaint, Plaintiff alleges the Defendants “exposed, and infected Plaintiff with the HCV, thereby showing deliberate indifference to a substantial risk of serious harm to Plaintiff's health.” ECF No. 1-3 at 2.

         Plaintiff seeks declaratory relief, injunctive relief, compensatory damages, and punitive damages. ECF No. 1 at 6; ECF No. 1-1 at 8.

         II. Legal Standards

         a. Pro Se Review

         Pro se complaints are held to a less stringent standard than those drafted by attorneys, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. De'Lonta v. Angelone, 330 F.3d 630, 630 n.1 (4th Cir. 2003). 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 the plaintiff could prevail, it should do so; however, a district court may not rewrite a complaint to include claims that were never presented, Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999), construct the plaintiff's legal arguments for him, Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993), or “conjure up questions never squarely presented” to the court, Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         b. Fed.R.Civ.P. 12(b)(1)

         When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject-matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Trentacosta, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citing Trentacosta, 813 F.2d at 1558).

         c. Fed.R.Civ.P. 12(b)(2)

         When a court's personal jurisdiction is challenged, the burden is on the plaintiff to establish that a ground for jurisdiction exists. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). When the court resolves the motion on written submissions (as opposed to an evidentiary hearing), the plaintiff need only make a “prima facie showing of a sufficient jurisdictional basis.” Id. However, the plaintiff's showing “must be based on specific facts set forth in the record . . . .” Magic Toyota, Inc. v. Se. Toyota Distribs., Inc., 784 F.Supp. 306, 310 (D.S.C. 1992). The court may consider the parties' pleadings, affidavits, and other supporting documents but must construe them “in the light most favorable to plaintiff, drawing all inferences and resolving all factual disputes in his favor, and assuming plaintiff's credibility.” Sonoco Prods. Co. v. ACE INA Ins., 877 F.Supp.2d 398, 404-05 (D.S.C. 2012) (internal quotation and alteration marks omitted); see also Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (“In deciding whether the plaintiff has made the requisite showing, the court must take all disputed facts and reasonable inferences in favor of the plaintiff”). However, a court considering the issue of personal jurisdiction “need not credit conclusory allegations or draw farfetched inferences.” Sonoco, 877 F.Supp.2d at 205 (internal quotation marks omitted).

         d. Fed.R.Civ.P. 12(b)(6)

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In construing a motion to dismiss, the facts, though not the legal conclusions, alleged in a plaintiff's complaint must be taken as true. Iqbal, 556 U.S. at 678. A complaint should survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim only when a plaintiff has set forth “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “Factual allegations must be enough to raise a right to relief above the speculative level” and beyond the level that is merely conceivable. Id. at 555. However, a court is not required “to accept as true a legal conclusion couched as a factual allegation, ” Papasan v. Allain, 478 U.S. 265, 286 (1986), or a legal conclusion unsupported by factual allegations. Iqbal, 556 U.S. at 679. Dismissal is appropriate when a complaint contains a description of underlying facts that fails to state a viable claim. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Twombly, 550 U.S. at 558.

         e. Fed.R.Civ.P. 56: Summary Judgment

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.

         The 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 251. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled on other grounds, 490 U.S. 228 (1989).

         III. Analysis

         a. Exhaustion of Administrative Remedies

         In their Motion for Summary Judgment, which cites to Federal Rules of Civil Procedure 12(b)(1), (2), and (6), the Defendants address the issue of exhaustion of administrative remedies related to claims arising from Plaintiff's incarceration at FCI Estill, FCI McDowell, and FCI Hazelton. ECF No. 59 at 6-11. Defendants state that Plaintiff has exhausted his Administrative remedies arising out of his request to be treated for his HCV condition. ECF No. 59 at 6. But they argue that Plaintiff has neither filed grievances nor exhausted his remedies arising out of the manner in which he contracted HCV while in BOP custody. Id. They also assert that he has not filed an Administrative Remedy Request related to alleged discrimination against him because of his HCV nor did he file a separate claim under the Rehabilitation Act (“RA”). Id. at 6-7. Plaintiff, on the other hand, alleges that he exhausted his administrative remedies related to his treatment for HCV. ECF No. 1-1 at 4-7; see generally ECF No. 59-12. In his Response to Defendants' 12(b)(6) Motion to Dismiss, Plaintiff contends that he exhausted all of his remedies. ECF No. 56 at 4. At the same time, Plaintiff does not respond to Defendants' arguments about exhaustion in their Motion for Summary Judgment. See ECF No. 66.

         1. PLRA Exhaustion of Bivens Claims

         Under the Prison Litigation Reform Act of 1995 (“PLRA”), prisoners must exhaust “such administrative remedies as are available” before filing suit in federal court challenging prison conditions. Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (quoting 42 U.S.C. § 1997e(a)). “[T]he PLRA's exhaustion requirement is mandatory, ” Anderson v. XYZ Corr. Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516 (2002). Furthermore, pursuant to § 1997e(a), the exhaustion requirement is applicable to Bivens claims. See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003), abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

         Failure to exhaust administrative remedies is an affirmative defense the defendant must plead and prove; it is not a pleading requirement for the prisoner-plaintiff. Jones v. Bock, 549 U.S. 199, 212, 216-17 (2007); see Anderson v. XYZ Corr. Health Serv., 407 F.3d at 681 (holding that failure to exhaust is an affirmative defense which a defendant must plead and prove). Furthermore, the defendant must prove that the prisoner-plaintiff failed to exhaust each of his claims. There is no “total exhaustion” rule permitting dismissal of an entire action because of one unexhausted claim. Jones, 549 U.S. at 220-24. Exhaustion is a non-jurisdictional prerequisite. See Woodford v. Ngo, 548 U.S. 81, 101 (2006). That is not to say, however, that the nature of a jurisdictional assessment, as a threshold inquiry, cannot provide guidance in an exhaustion inquiry. See Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010) (“Exhaustion resembles personal jurisdiction and venue in that it is an affirmative defense that allows defendants to assert that plaintiffs have not invoked the proper forum for resolving a dispute.”); Bryant v. Rich, 530 F.3d 1368, 1374 (11th Cir. 2008) (“Even though a failure-to-exhaust defense is non-jurisdictional, it is like a defense for lack of jurisdiction in one important sense: Exhaustion of administrative remedies is a ‘matter[ ] in abatement, and ordinarily [does] not deal with the merits.'” (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1360 at 78 n. 15 (3d ed. 2004) (alterations in original))); see also 18 James Wm. Moore, Moore's Federal Practice § 131.30(3)(b) at 104 (3rd ed. 2008) (noting that a determination “that [a court] has no subject matter jurisdiction, that personal jurisdiction of defendants or of indispensable parties is lacking, that venue is improper, or that plaintiff has failed to comply with some prerequisite to filing suit, such as exhaustion of administrative remedies . . . is not a determination of the claim, but rather a refusal to hear it.”). Exhaustion is a precondition to filing suit in federal court. See Moore, 517 F.3d at 725 (“prisoners must exhaust . . . prior to filing suit in federal court”). Accordingly, courts have held that “prisoner[s], therefore, may not exhaust administrative remedies during the pendency of the federal suit.” Green v. Rubenstein, 644 F.Supp.2d 723, 743 (S.D. W.Va. 2009) (quoting Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)); see also Johnson v. Ozmint, 567 F.Supp.2d 806, 815 (D.S.C. 2008) (similar holding).

         Based on an examination of the record in this case, the undersigned recommends a finding that Plaintiff has exhausted his administrative remedies related to his requests for treatment for his HCV. ECF No. 59-12. However, the undersigned recommends a finding that to the extent Plaintiff is asserting a claim related to his contacting HCV while incarcerated in the BOP, Plaintiff has not exhausted his administrative remedies for such a claim.

         2. Exhaustion of RA Claims

         Consideration of Defendants' assertions regarding Plaintiff's exhaustion of administrative remedies for his RA claim is distinguishable from consideration of PLRA exhaustion because it has been held that exhaustion of RA claims is jurisdictional. See Spinelli v. Goss, 446 F.3d 159, 162 (D.D.C. 2006); see also Williams v. Brennan, 320 F.Supp.2d 122, 129 (D.D.C. 2018) (limiting Spinelli's jurisdictional analysis to cases where the claimant did not begin the RA exhaustion process at all); Howland v. United States Postal Serv., 209 F.Supp.2d 586, 590 (W.D. N.C. 2002); Roach v. Gates, Nos. 2:07-00136-DCN, 2:07-01574-DCN, 2012 WL 1952680, at *4 (D.S.C. May 30, 2012). As a result, the issue should be considered under Federal Rule of Civil Procedure 12(b)(1), which permits the court to rely on outside affidavits and other documents submitted by the parties. See Evans v. B. F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).

         The undersigned has reviewed the affidavit of D. Martin Hill, a Supervisory Attorney in the Equal Employment Office (“EEO”) of the BOP. ECF No. 59-13. Mr. Hill cites to 28 C.F.R. § 39.170 as the relevant regulation governing exhaustion of remedies for RA claims within the Department of Justice; to 49 Fed. Reg. § 35724, at 23 (Sept. 11, 1984) for the proposition that the legislative history of 28 C.F.R. § 39.170 includes recognition that the regulation allows “handicapped prisoners . . . the right to have their complaints investigated by an office that specializes in discrimination complaints”; and to BOP Program Statement 3713.24, ch. 12 that establishes the procedure for federal prisoners to use to exhaust their RA remedies. ECF No. 59-12 at 1-3. Under Program Statement 3713.24, federal prisoners who believe that they have been subjected to discrimination covered by the RA must first complete the BOP administrative process. Then, the prisoner or his/her representative must file a complaint with the EEO within 180 days of the “final administrative decision under the administrative remedy procedure.” Following submission of a timely complaint, the prisoner must await an investigation and attempt to informally resolve the claim by the EEO before remedies will be deemed exhausted. Mr. Hill states that he reviewed the EEO's database and found no discrimination complaints from Plaintiff and, therefore, he opines that Plaintiff “has not exhausted the BOP's administrative complaint process with the EEO . . . .” ECF No. 59-13 at 3.

         Plaintiff alleges that he exhausted his remedies related to his request for treatment for his HCV. ECF No. 1-1 at 4. Plaintiff makes no allegation in his Complaint that he exhausted his RA Claim. Again, in his Response to Defendants' 12(b)(6) Motion, Plaintiff argues that he exhausted all of his administrative remedies. ECF No. 56 at 4. In his Response to Defendants' Motion for Summary Judgment, Plaintiff does not address Defendants' argument that he failed to exhaust his RA claims.

         Sister courts within the Fourth Circuit have specifically held that a federal prisoner seeking to assert an RA claim must first exhaust the BOP process and then exhaust the DOJ EEO process before his administrative remedies will be deemed exhausted. See Collins v. LeMaster, No. 5:15-05576, 2016 WL 675675, at *10 (S.D. West Va. Jan. 25, 2016) (PLRA requires exhaustion of DOJ EEO process; collecting cases holding that prisoners asserting RA or ADA claims must fully exhaust PLRA remedies), report and recommendation adopted, 2016 WL 661590 (S.D. W.Va. Feb. 18, 2016); Zoukis v. Wilson, No. 1:14cv1041 (LMB/IDD), 2015 WL 4064682, at *10-11 (E.D. Va. July 2, 2015); see also Elliot v. Wilson, No. 0:15-cv-01908-JNE-KMM, 2017 WL 1185213, at *14 (Jan. 17, 2017) ...


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