1:22-cv-00275•Morris v. Bureau of Prisons, United States of America et al
Morris v. Bureau of Prisons, United States of America et al
1:22-cv-00275Nhd18.11.2024
Gesamter Gesetzestext
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Robert C. Morris v. Civil No. 22-cv-275-SE-AJ Federal Bureau of Prisons et al.1 (Superseding) REPORT AND RECOMMENDATION Before the court in this prisoner civil rights action including Federal Tort Claims Act (“FTCA”) claims is Robert C. Morris’s objection (Doc. No. 11) to the May 15, 2023 Report and Recommendation (“May 15 R&R”) (Doc. No. 6). The court took that objection and the May 15 R&R under advisement pending the undersigned magistrate judge’s review of whether the new allegations in Document No. 11 warrant any modification of the May 15 R&R. See Aug. 17, 2023 Order. Also before this court is Morris’s response (Doc. No. 12) to the May 15, 2023 Order (“May 1 The court previously directed service of this action upon the United States and upon FCI Berlin Corrections Officer Albut and Case Manager Ferron. The Service Order this date directs service of this action upon these new defendants: the FCI Berlin Clinical Director from May 2021 through July 2021; the FCI Berlin Health Services Administrator from May 2021 through July 2021; FCI Berlin health care provider Dr. P. Pedersen; FCI Fort Dix Health Services Administrator James Wilk; FCI Fort Dix health care provider Dr. Patel; and the FCI Fort Dix Clinical Director, Medical Trip Coordinator, and “Captain-Custody,” who served in those capacities at FCI Fort Dix from September 1, 2021 to September 26, 2023. Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 1 of 27
2 15 Order”), see Doc. No. 7, at 1-2, which directed Morris to name defendants to his claims regarding his cataracts. The new facts alleged in Document Nos. 11 and 12, including the date of his transfer (July 22, 2021) from the Federal Correctional Institution in Berlin (“FCI Berlin”) to the facility in New Jersey known as FCI Fort Dix, and the names of potential defendants, present a different picture of who was involved, what happened, when and where. This (superseding) R&R embodies this court’s identification and preliminary review of all of Morris’s claims raised in his initial pleadings, construed to consist of Document Nos. 5, 11, and 12. Preliminary Review Standard Morris’s Amended Complaint (Doc. No. 5) and his complaint addenda (Doc. Nos. 11, 12) are before this court for preliminary review under LR 4.3(d)(1) and 28 U.S.C. § 1915A. In conducting that preliminary review, the court may dismiss claims for lack of jurisdiction; if a defendant is immune; if the plaintiff has failed to state a claim upon which relief can be granted; or if the action is frivolous or malicious. See 28 U.S.C. § 1915A(b). To determine whether to dismiss one or more claims for failure to state a claim upon which relief can be granted, this court takes as true the factual content asserted by the Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 2 of 27
3 plaintiff and inferences reasonably drawn from those facts, strips away legal conclusions, and considers whether the plaintiff has stated a claim that is plausible on its face. Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Because Morris is proceeding without counsel, the court construes his pro se pleadings liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). Background I. Assault & Post-Assault Medical Care On March 26, 2021, Morris’s cellmate and two other FCI Berlin prisoners -- “Lala” and “Church” -- entered Morris’s cell. Lala, known to Morris as a “white gang member,” announced something to the effect of, “It’s time for you to go,” and then punched Morris’s cellmate in the face. Church then turned and struck Morris in the head. Morris lost consciousness. The assault continued for several minutes before Morris’s cellmate escaped and hit an emergency button. Officers “flooded” the unit, obtained medical care for a laceration on Morris’s head, and then transferred all four prisoners to the FCI Berlin Special Housing Unit (“SHU”). Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 3 of 27
4 Three days after the incident, Morris’s blood sugar became elevated, and he briefly passed out. FCI Berlin staff sent him to a local hospital. A CT scan on that date was “negative.” Morris asserts that Church and Lala targeted him for the assault at FCI Berlin on March 26, 2021 because he was known to be a sex offender. Before that date, Morris had told his Case Manager Andrea Ferron that the recent influx of “white gang members” posed a threat to sex offenders. Morris further alleges that personnel in the BOP Central Office who assign prisoners to federal facilities know about gang affiliations and prisoner criminal histories. Morris specifically alleges that FCI Berlin CO Albut “hate[d]” sex offenders, knew of Morris’s sex offender history, and maintained a “favorable,” nonsexual relationship with Lala. Morris further asserts that CO Albut immediately triggered her body alarm when the emergency call button sounded, without investigating, suggesting to Morris that CO Albut knew the attack would occur but had not taken steps to thwart it. Morris also alleges that CO Albut tried to place him in the SHU with a “known Mexican gang member,” but did not succeed in doing so. Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 4 of 27
5 II. Lost Property Morris asserts that after the assault, CO Albut and another unnamed CO were ordered to secure Morris’s cell. Morris’s cell was “found unsecured” on the day after the assault. Morris asserts he lost personal property that had been in his cell when he was in the SHU. Morris grieved three claims about his lost property, following the steps outlined in BOP Program Statement (“PS”) 1320.06 for filing administrative tort claims. One of Morris’s property loss claims was for less than $1,000.00 and the remaining two claims substantially exceeded that amount; Morris estimates he lost property worth $62,511.00. BOP officials, relying on PS 5580.09, recharacterized all three of Morris’s property loss claims as “small claims” under 31 U.S.C. § 3723, which the BOP Director could settle for up to $1,000.00 and then notified Morris that the agency’s disposition of his property loss claims was not reviewable by any court. III. Cataracts When Morris underwent an eye exam at FCI Berlin in September 2020, he did not have cataracts. Morris started to experience vision problems two months after the assault. He asserts he complained about vision problems to FCI Berlin Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 5 of 27
6 medical staff members in May 2021, prior to his July 2021 transfer to FCI Fort Dix. Morris alleges that an eye examination at FCI Fort Dix in September 2021 disclosed that Morris had cataracts in both eyes. Morris saw an eye surgeon on January 4, 2022 and February 4, 2022 was set as the “target date” for surgery. Surgery did not occur on that date. FCI Fort Dix officials postponed the surgery at least two more times in 2022 for reasons including “staff/transportation shortages.” Morris reports that by June 2022, his vision had deteriorated to the extent that he was “legally blind”; he could no longer read large-type print, write clearly, or endure bright lights, exercise, or reading, without suffering headaches, nausea, or vomiting. Morris asserts that BOP providers and administrators delayed his cataracts surgery because they applied a BOP policy that deems cataracts surgery to be a lower priority procedure, without consideration of his own medical needs. Morris underwent surgical correction of his cataracts after he filed this action. Morris states that cataracts surgery on his left eye on or about February 27, 2023 successfully restored his ability to read and see, see id., Pt. II, ¶ 8. And Morris’s filings in his criminal case state that he had cataracts surgery on his right eye on or before September 26, 2023, see United Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 6 of 27
7 States v. Morris, No. 4:06-cr-00051-P-1 (N.D. Tex., Def.’s Aff., docketed Apr. 16, 2024) (ECF No. 48, at 22) (“[t]hese surgeries eventually took place almost 2½ years after the assault”). IV. Procedural History Morris filed this action in 2022 while incarcerated at FCI Fort Dix in New Jersey. This court’s May 15 R&R misconstrued his pleadings as describing events that occurred only at FCI Berlin. As a result, this court failed to identify any claims asserted by Morris arising at FCI Fort Dix. Document Nos. 11 and 12 clarify where Morris was imprisoned at the time of the events, and they also name people Morris considers liable. Consideration of Document Nos. 11 and 12 has caused this court to vacate and withdraw the May 15 R&R and to issue this (superseding) R&R. Claims The claims asserted by Morris are the following: 1. Morris suffered a violation of his Eighth Amendment rights as to the risk of a prisoner assault, in that: a. FCI Berlin defendants failed to protect Morris from prisoner violence, with deliberate indifference to a substantial risk of serious harm; and Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 7 of 27
8 b. BOP personnel responsible for assigning prisoners to federal prisons failed to protect Morris from prisoner violence by assigning him to FCI Berlin. 2. Morris suffered a violation of his Eighth Amendment right to medical care at FCI Berlin, in that: a. FCI Berlin health services personnel failed to diagnose and/or treat injuries to Morris’s head after the assault, with deliberate indifference to a substantial risk of serious harm; and b. The FCI Berlin Health Services Administrator, the FCI Berlin Clinical Director, and/or Dr. P. Pederson delayed the diagnosis and treatment of Morris’s vision problems at FCI Berlin beginning in May 2021, with deliberate indifference to a substantial risk of serious harm. 3. Morris suffered a violation of his Eighth Amendment right to medical care at FCI Fort Dix, in that Dr. Patel, FCI Fort Dix Health Services Administrator Jeffrey Wilk, the FCI Fort Dix Clinical Director, the FCI Fort Dix Medical Trip Coordinator, and/or the FCI Fort Dix “Captain- Custody,” delayed the surgical correction of Morris’s cataracts at FCI Fort Dix beginning in September 2021, with deliberate indifference to his serious medical needs. 4. Morris suffered violations of his constitutional rights with respect to his property, in that: a. FCI Berlin officers failed to enforce policies relating to prisoner personal property and failed to secure Morris’s cell, causing Morris to suffer a loss of personal property, in violation of his Fifth Amendment right to due process; b. BOP personnel including BOP Supervisor Attorney Patrick Ward, failed to apply appropriate BOP policies or laws in response to Morris’s administrative property loss claims, in violation of Morris’s Fifth Amendment right to due process; c. Attorney Patrick Ward and/or other BOP agents interfered with Morris’s ability to obtain judicial Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 8 of 27
9 review of his property loss claims, in violation of Morris’s right of access to the courts. 5. The federal agencies -- the BOP and FCI Berlin -- are liable for violations of Morris’s federal constitutional rights, relating to the assault, his injuries, his cataracts, and his property loss. 6. The United States is liable under the FTCA for the tortious acts or omissions of BOP employees, in that: a. CO Albut (i.) knowingly and intentionally, or (ii.) negligently, failed to protect Morris from prison gang violence; b. Case Manager Andrea Ferron, the FCI Berlin Warden, and unnamed FCI Berlin SIS investigators negligently failed to protect Morris from prison gang violence; c. BOP personnel responsible for assigning Morris to FCI Berlin negligently failed to protect him; d. FCI Berlin health services personnel negligently failed to diagnose or treat Morris’s head injury; e. The FCI Berlin personnel negligently failed to diagnose and treat Morris’s vision problems; f. FCI Fort Dix personnel negligently delayed the surgical correction of Morris’s cataracts while he was at FCI Fort Dix; and g. CO Albut and other FCI Berlin COs knowingly and intentionally, or negligently, caused Morris’s loss of personal property. Discussion I. Injunctive Relief Claims Relating to Cataracts “A plaintiff must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 9 of 27
10 Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). “‘[A] continuing violation or the imminence of a future violation’ is necessary to confer Article III standing to seek injunctive relief.” Conservation Law Found. v. Pub. Serv. Co. of N.H., No. 11-cv-353-JL, 2012 DNH 174, 2012 WL 4477669, at *10, 2012 U.S. Dist. LEXIS 138881, at *40 (D.N.H. Sept. 27, 2012) (citation omitted); see also City of L.A. v. Lyons, 461 U.S. 95, 109 (1983) (plaintiff who had been subjected to police chokehold lacked standing to enjoin enforcement of police chokehold policy in future because he could not credibly allege that he faced realistic threat from policy). Morris’s Amended Complaint (Doc. No. 5) requested an order directing the BOP to provide him with cataracts surgery and to revise its policy regarding the availability of cataracts surgery. Morris appears to have obtained cataracts surgery in both of his eyes without any court order. Morris has not alleged any facts here suggesting that his cataracts, having been treated surgically, are likely to require any further surgery. Morris’s injunctive relief claims seeking a policy change and surgery thus appear to be moot. Accordingly, the district judge should dismiss as moot Morris’s request for surgery and for revisions to the BOP cataracts surgery policy. Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 10 of 27
11 II. FTCA Claims (Claims 6(a)-(g)) A. Personal Injury Claims (Claims 6(a)-(f)) Morris has asserted tort claims against the United States under the FTCA. See 28 U.S.C. §§ 1346(b)(1), 2674. An FTCA claim may be actionable if it alleges the six elements of § 1346(b), which are that the claim be: “[1] against the United States, [2] for money damages, . . . [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Brownback v. King, 141 S. Ct. 740, 746 (2021) (quoting Meyer, 510 U.S. at 475–476). In the Order this date, the court has directed that Morris’s personal injury FTCA claims, numbered here as Claims 6(a)-(f), be served upon the United States. B. Property Loss FTCA Claims (Claim 6(g)) Morris has alleged that lax enforcement of BOP policies regarding where prisoners may store their property while in BOP custody, and the failure of CO Albut and others to secure his cell and his property while he was in the FCI Berlin SHU, Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 11 of 27
12 resulted in the theft or loss of his personal belongings. He asserts that the value of the items he lost was $62,511.00. Property loss claims arising out of a federal officer’s alleged tortious handling or storage of a prisoner’s property are not actionable under the FTCA. See Bostic v. Mansukhani, No. 17-12132-RGS, 2017 U.S. Dist. LEXIS 189482, at *3 (D. Mass. Nov. 16, 2017) (claim that “BOP officers negligently failed to protect [prisoner’s] property from theft while he was [in] segregation,” was barred by 28 U.S.C. § 2680(c)); see also Ali v. BOP, 552 U.S. 214, 227-28 (2008); Brown v. United States, 384 F. App’x 815, 818 (10th Cir. 2010) (§ 2680(c) barred FTCA claim arising from BOP officer’s acts in allowing prisoners to rifle through and steal other prisoner’s property). The United States’ waiver of its sovereign immunity under the FTCA does not cover the type of property loss claims Morris has pleaded; that waiver is subject to the “detention of goods” exemption, 28 U.S.C. § 2680(c), which excludes from the FTCA’s waiver of sovereign immunity “[a]ny claim arising in respect of . . . the detention of any goods, merchandise, or other property by any . . . law enforcement officer,” unless the “property was seized for the purpose of forfeiture . . . .” 28 U.S.C. § 2680(c). Morris’s claims did not arise from property seized for Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 12 of 27
13 forfeiture. Accordingly, the district judge should dismiss Claim 6(g). II. Claims for Damages for Violations of Federal Rights A. 42 U.S.C. § 1983 Morris has asserted that 42 U.S.C. § 1983 provides a cause of action for his federal constitutional tort claims. All of the defendants here are federal actors. None is alleged to have acted under color of state law. Accordingly, the district judge should dismiss the § 1983 claims asserted in this action. B. Bivens Claims 1. Limited Nature of Remedy Morris also cites the Bivens doctrine, see Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcs., 403 U.S. 388 (1971), as providing a cause of action for his constitutional claims. The Bivens doctrine allows a plaintiff to vindicate certain rights through a cause of action for damages against federal officials in their individual capacities. See DeMayo v. Nugent, 517 F.3d 11, 14 (1st Cir. 2008). Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 13 of 27
14 2. Claims against Federal Agencies (Claim 5) Morris has named the BOP and FCI Berlin as defendants. Bivens claims cannot proceed against federal agencies. See FDIC v. Meyer, 510 U.S. 471, 486 (1994). And “[v]icarious liability is inapplicable” under Bivens; “a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Accordingly, the district judge should dismiss Claim 5, supra, encompassing all of his federal constitutional damages claims asserted against FCI Berlin and the BOP, and those agencies should be dropped from this case. 3. Test for Availability of Bivens Remedy Bivens remedies are not available to vindicate every type of constitutional violation perpetrated by federal officers. There is a two-step test for determining if a Bivens remedy is available in a particular case. Courts must first consider whether the claim at issue presents a new context for applying Bivens. “If the case is different in a meaningful way from previous Bivens cases, . . . then the context is new.” Ziglar v. Abbasi, 582 U.S. 120, 139 (2017). Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 14 of 27
15 risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Id. at 122. If the case does not present a new context, “‘no further analysis is required.’” Watanabe v. Derr, 115 F.4th 1034, 1038 (9th Cir. 2024) (citation omitted). If the case presents a new context for a Bivens remedy, the court turns to the second step, known as the “special factors” inquiry. A Bivens remedy is unavailable in a new context if there are special factors counselling hesitation. Abassi, 582 U.S. at 140. The special factors inquiry “concentrate[s] on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id. at 136. 4. Failure-to-Protect Claims The court first examines whether Morris’s failure-to- protect claims present a new Bivens context. The Supreme Court has recognized only three types of cases where Bivens remedies are available, including only one prisoner civil rights case, Carlson v. Green, 446 U.S. 14 (1980). See generally Abbasi, 582 U.S. at 131. Carlson involved Eighth Amendment claims brought by the estate of a prisoner who died from inadequately treated asthma, and allegations that “officials allegedly kept [the] Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 15 of 27
16 prisoner in a subpar medical facility against the advice of doctors, failed to give him competent care for eight hours after an asthma attack, administered the wrong drugs, used a faulty respirator, and delayed his transfer to a hospital.” Sargeant v. Barfield, 87 F.4th 358, 366 (7th Cir. 2023) (citing Carlson, 446 U.S. at 16 n.1). Morris’s failure-to-protect claims are meaningfully different because they implicate the alleged failure of defendants to respond to specific information about prison gangs, as well as the failure of BOP Central Office personnel to make prison designation decisions with reference to system-wide information. See Fisher v. Hollingsworth, 115 F.4th 197, 206 (3d Cir. 2024); Johnson v. Terry, 112 F.4th 995, 1011– 12 (11th Cir. 2024). Morris’s failure-to-protect claims present a new context for Bivens. The second step of the inquiry is whether there are special factors counselling against extending a Bivens remedy. “[A} court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.’” Egbert v. Boule, 596 U.S. 482, 493 (2022) (citation omitted). The BOP administrative grievance process is the type of alternative remedial structure that prevents the court from fashioning a Bivens remedy. Fisher, 115 F.4th at 207–08 (special factors include existence Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 16 of 27
17 of BOP remedy program and fact that prisoner’s failure-to- protect claims, if successful, could impose “systemwide costs”). Accordingly, the district judge here should dismiss all of Morris’s failure-to-protect Bivens claims (Claims 1(a)-(b)). 5. Medical Care Claims for Damages a. Availability of Bivens Remedy Without expressing any opinion at this time as to the availability of a Bivens remedy as to Morris’s medical care claims, this court turns now to whether Claims 2(a)-(b) otherwise state a claim of an Eighth Amendment violation.2 b. Elements of Eighth Amendment Claim An Eighth Amendment medical care claim has both objective and subjective elements. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). The objective component may be established by evidence of a medical need “‘that has been diagnosed by a physician as mandating treatment, or one that is so obvious that 2 Compare Johnson, 112 F.4th at 1013-17 (“severity, type, and treatment” of prisoner’s non-lethal injuries, as well as existence of BOP remedies, made claims meaningfully different from those in Carlson), with Watanabe, 115 F.4th at 1040-42 (Eighth Amendment claim, alleging nurse’s deliberate indifference to chronic, severe, non-lethal pain, was functionally similar to Carlson and actionable under Bivens). Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 17 of 27
18 even a lay person would easily recognize the necessity for a doctor’s attention.’” Miranda-Rivera v. Toledo-Dávila, 813 F.3d 64, 74 (1st Cir. 2016) (citation omitted). “The ‘seriousness’ of an inmate’s needs may also be determined by reference to the effect of the delay of treatment.” The serious medical need inquiry is fact- specific and must be tailored to the specific circumstances of the case. Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir. 2020) (citations omitted). A showing of deliberate indifference satisfies the subjective prong. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prisoner must show that defendants were aware of circumstances that gave rise to an inference that a serious medical need or other substantial risk of serious harm existed; defendants drew the inference that such a need or risk existed; and defendants did not take reasonable steps to address that need or risk. See id. at 828-29. To prevail, the prisoner must show that the defendant’s act or omission was purposeful and not negligent. See Abernathy, 984 F.3d at 6; Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014) (“‘Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.’” (citation omitted)). Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 18 of 27
19 c. FCI Berlin Medical Care i. Head Injury (Claim 2(a)) Morris has pleaded facts indicating that in the immediate aftermath of the assault, Morris’s head laceration received first aid, and that a CT scan performed three days later, after he fainted, was “negative.” He has not pleaded any facts showing that the first aid he received immediately after the assault, and the CT scan he received several days later, was so inadequate as to manifest deliberate indifference. And he has not alleged that the three-day delay before he received a CT scan amounted to deliberate indifference to a known substantial risk of serious harm. At most his claims suggest negligence. Accordingly, the district judge should dismiss Claim 2(a). ii. Vision Complaints (Claim 2(b)) Morris has also specifically alleged that in September 2020 he did not have any cataracts; in May 2021, he complained at FCI Berlin about his vision problems; and an eye examination on September 1, 2021 at FCI Fort Dix disclosed that he had cataracts. In the May 15 Order (Doc. No. 7), the court granted Morris leave to file a complaint addendum, naming the individuals at FCI Berlin who he alleges did not arrange for Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 19 of 27
20 cataracts surgery and showing what those individuals knew and did that violated his Eighth Amendment rights. In response, Morris filed Document No. 12, which clarifies the July 2021 date of his transfer to FCI Fort Dix and lists three individuals associated with FCI Berlin who he alleges did not respond appropriately to his vision complaints: the Clinical Director; the Health Services Administrator; and health care provider Dr. P. Pedersen. Without prejudice to defendants’ ability to move to dismiss Claim 2(b) on any basis, this court directs service of Claim 2(b) upon the pertinent FCI Berlin Clinical Director and Health Services Administrator, who served in that capacity from May 2021 through July 2021; and upon Dr. P. Pedersen, regarding their acts or omissions relating to Morris’s undiagnosed or untreated vision problems at FCI Berlin. d. Cataracts at FCI Fort Dix (Claim 3) Morris has alleged that BOP personnel at FCI Fort Dix delayed his cataracts surgery because they applied a BOP policy that deems such surgery to be a lower priority, “medically- acceptable” elective procedure. He alleges that his case came before the Fort Dix Institution Utilization Review Committee. He identifies Dr. Patel, Health Services Administrator Jeffrey Wilk, the FCI Fort Dix Medical Trip Coordinator, the FCI Fort Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 20 of 27
21 Dix “Captain-Custody,” and the FCI Fort Dix Clinical Director as individuals at FCI Fort Dix who were part of the Utilization Review Committee or were otherwise aware of his medical need for cataracts surgery and caused the surgery delays. He alleges that after his February 27, 2023 surgery on his left eye, he could read and see. On or before September 26, 2023, Morris had cataracts surgery on his right eye. Without prejudice to defendants’ ability to move for dismissal of Claim 3 upon any basis, in the Order this date, the court directs service of Morris’s Eighth Amendment delayed cataracts surgery claim (Claim 3) upon those individuals, in the time period after Morris’s cataracts were diagnosed on September 1, 2021, until the date of Morris’s cataracts surgery on his right eye (on or before September 26, 2023). e. Other Individuals in Document No. 12 In Document No. 12, Morris lists other BOP “officials and/or positions of unnamed officials within the BOP responsible for the care and treatment of Morris that . . . caused delays in cataract surgery.” Morris’s allegations to-date fail to establish that the BOP Central Office medical director, the BOP Northeast Regional Office health services administrator, and Attorney Patrick Ward, all listed in Document No. 12, had the Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 21 of 27
22 requisite subjective knowledge of Morris’s serious medical needs relating to his cataracts and, through their own actions or inactions, manifested deliberate indifference to those needs, sufficient to state a claim of a violation of Morris’s Eighth Amendment rights. Accordingly, the district judge should drop as parties the BOP Central Office medical director, the BOP Northeast Regional Office health services administrator, and Attorney Patrick Ward, because Morris as failed to state a claim for damages against them upon which relief can be granted. C. Due Process and Access to Courts (Claim 4) 1. Claim 4(a): Loss of Cell Property Morris alleges that he lost personal property that had been in his cell when FCI Berlin officers transferred him to the FCI Berlin SHU. He claims a violation of his right not to suffer a deprivation of property without due process of law. To state a claim for relief for a violation of the Due Process Clause, a plaintiff must allege facts showing that he or she was deprived of a protected interest in life, liberty or property and that “‘the procedures attendant upon that deprivation were constitutionally’” insufficient. Gonzalez- Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (citation omitted). It is well-settled that if a corrections officer Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 22 of 27
23 loses a prisoner’s property, the Due Process Clause is not violated if there are adequate post-deprivation procedures. See Hudson v. Palmer, 468 U.S. 517, 533 & n.14 (1984). The authority of the BOP Director and the Attorney General to settle a prisoner’s administrative property loss claims, see 31 U.S.C. §§ 3723 & 3724,3 provides such adequate post-deprivation procedures. See Mitchell v. Spencer, No. 21-cv-01842-RM-MEH, 2023 WL 2424840, at *3, 2023 U.S. Dist. LEXIS 39843, at *9-10 (D. Colo. Mar. 9, 2023). Accordingly, the district judge should dismiss Claim 4(a). 2. Claims 4(c): Loss of Cause of Action Morris asserts that he was denied due process and suffered interference with his right of access to the courts when BOP employees treated his $62,511.00 personal property loss claims as if the BOP Director’s authority to settle claims for $1,000.00 or less, see 31 U.S.C. § 3723. Morris asserts that the agency’s handling of his claims was not consistent with BOP 3 Section 3723 authorizes the BOP Director to “settle a claim for not more than $1,000 for damage to, or loss of, privately owned property that . . . is caused by the negligence of an officer or employee of the United States Government acting within the scope of employment.” 31 U.S.C. § 3723(a). The Attorney General may settle similar property loss claims up to $50,000, see id. § 3724. Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 23 of 27
24 policy. Morris, however, does not have a freestanding right protected by the Due Process Clause to have BOP personnel assign the same value to his property loss claims that he assigns to those claims or to comply with agency policies and procedures. See, e.g., McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012) (“An assertion that prison officials failed to follow prison rules or policies does not set forth a constitutional claim.”); Bostic v. Carlson, 884 F.2d 1267, 1271 (9th Cir. 1989) (prison officials’ noncompliance with prison guideline regarding timing of disciplinary hearing does “not alone constitute a denial of due process”). And the alleged lack of compliance with a BOP program statement is not a violation of federal law, as program statements are “‘internal agency guidelines [that] may be altered by the [BOP] at will.’” Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011) (citations omitted). Furthermore, Morris’s due process claims are premised on his conclusion that he had potentially meritorious FTCA claims that BOP officials did not handle as if they were FTCA claims, and that because of how those BOP officials characterized his claims, Morris lost his FTCA cause of action for having lost property while in the SHU, cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982) (“a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 24 of 27
25 Clause”). Morris’s legal conclusion about having lost a viable FTCA cause of action is incorrect. Property loss claims arising out of a corrections officer’s alleged tortious handling or storage of a prisoner’s property are not actionable under the FTCA. See Bostic v. Mansukhani, No. 17-12132-RGS, 2017 U.S. Dist. LEXIS 189482, at *3 (D. Mass. Nov. 16, 2017) (claim that “BOP officers negligently failed to protect [prisoner’s] property from theft while he was [in] segregation,” was barred by 28 U.S.C. § 2680(c)); see also Ali v. BOP, 552 U.S. 214, 227- 28 (2008); Brown v. United States, 384 F. App’x 815, 818 (10th Cir. 2010) (§ 2680(c) barred FTCA claim arising from BOP officer’s acts in allowing other prisoners to rifle through and steal property of prisoner in segregation). Accordingly, Morris has not stated any claim of a deprivation of any protected property interest that is actionable under the Due Process Clause. Accordingly, the district judge should dismiss Claim 4(b). Similarly, the district judge should dismiss Morris’s claim of interference with his right of access to the courts, relating to the alleged mischaracterization or undervaluing of his administrative property loss claims. A prisoner-plaintiff must allege facts showing that defendants actually injured the plaintiff’s ability to pursue a nonfrivolous claim in a post- Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 25 of 27
26 conviction proceeding or other civil rights matter that the prisoner had a right to litigate. See Lewis v. Casey, 518 U.S. 343, 352, 354-55 (1996). Because Morris’s property loss claims were never actionable under the FTCA, cf. 28 U.S.C. § 2680(c), he suffered no actual injury in his ability to litigate those claims as a result of any act or omission of the defendants. And nothing in the record otherwise suggests that Morris otherwise suffered the loss of any nonfrivolous claim because of the way BOP agents handled his property loss claims. Accordingly, the district judge should dismiss Claim 4(c). Conclusion For the foregoing reasons the magistrate judge recommends as follows: 1. The District Judge should dismiss as moot Morris’s requests for injunctive relief seeking cataracts surgery and modification of the BOP policy concerning the availability of cataracts surgery. 2. The District Judge should dismiss the following claims for failure to state a claim upon which relief can be granted: a. All claims asserted under 42 U.S.C. § 1983; and b. Claims 1(a)-(b), 2(a), 4(a)-(c), 5, and 6(g). 3. The District Judge should drop the following defendants from this action, for failure to state any claim against them, upon which relief can be granted: a. The BOP and FCI Berlin; Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 26 of 27
27 b. FCI Berlin Corrections Officer Albut and FCI Berlin Case Manager Andrea Ferron; and c. The BOP Central Office medical director, the BOP Northeast Regional Office health services administrator, and BOP Attorney Patrick Ward. Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Only those issues raised in the objection(s) to this Report and Recommendation are subject to review in the district court. See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by such objection(s) are precluded on appeal. See id. Failure to file specific written objections to the Report and Recommendation within the specified time waives the right to appeal the district court’s order. See Santos-Santos v. Torres- Centeno, 842 F.3d 163, 168 (1st Cir. 2016). ___________ ______________ Andrea K. Johnstone United States Magistrate Judge November 18, 2024 cc: Robert C. Morris, pro se Anna Dronzek, Esq. Case 1:22-cv-00275-SE-AJ Document 18 Filed 11/18/24 Page 27 of 27
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