Fazel v. Boyd, M.D et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DONALD 0.FAZEL, 4:21-CV-04219" -
Plaintiff,
vs.
1915A SCREENING
DR.BOYD,M.D.; CARLA STEPPAT,
INDIVIDUAL AND OFFICIAL CAPACITY;
SASHA LABRENZ;INDIVIDUAL AND
OFFICIAL CAPACITY; WARDEN K.
BENNETT,DIDIVIDUAL AND OFFICIAL
CAPACITY,
Defendants.
Plaintiff, Donald O. Fazel, an inmate at the Yankton Federal Prison Camp,filed a pro se
lawsuit under 28 § U.S.C. § 1331; Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388(1971), and 42 U.S.C. § 1983.' Doc. 1. He filed a motion to proceed in forma pauperis and
provided a prisoner trust account report. Docs. 2, 4. Fazel has also filed a motion to appoint
counsel, a motion for release, and two emergency motions requesting additional relief. Docs. 9,
10, 14, 15. The Honorable Judge Roberto A.Lange granted Fazel's motion to proceed in forma
pauperis on December 16,2021, and required him to pay an initial partial filing fee of$38.44.
'Fazel marked the 42 U.S.C. § 1983 action box in his complaint but not the Bivens action box.
Doc. 1 at 1. Because the defendants in this case are federal employees and actors, this Court
construes Fazel's complaint as a Bivens action. § 1983 claims can only be brought against those
who act "under color of state law[.]" See 42 U.S.C. § 1983. To the extent that Fazel brings §
1983 claims against defendants, those claims are dismissed with prejudice under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
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Doc. 7. Fazel paid $30 towards his initial filing fee on February 14, 2022. Because Fazel has
made significant progress towards paying his initial filing fee, this Court will now screen his
complaintunder 28 U.S.C. § 1915A.
FACTUAL BACKGROUND
Fazel alleges that he saw Dr. Boyd on multiple occasions for bladder pain and urinary
tract issues and that Dr. Boyd failed to properly treat him. Doc. 1 at 5-6. Fazel claims that Dr.
Boyd took six months to send him to a specialist and only prescribed ibuprofen, despite Fazel's
severe pain and decrease in bladder function. Id. at 5. He claims that medical staflf proscribed
Tamsulosin and Terazosin, two medications that adversely interact with each other, for months,
causing significant bladder damage. Id. He also claims that Dr. Boyd falsified medical records by
removing documentation of Terazosin and reporting that Fazel was improving when he was
getting worse. Id. Fazel alleges that Dr. Boyd performed multiple unnecessary and intrusive
prostate exams on him. Id. at 6. He alleges that these issues began in October 2020 and are still
ongoing. See id. at 5; Doc. 1-1 at 35, 39, 41. On July 5,2021, Dr. Jesse Kampshoff ofthe
Yankton Medical Clinic suggested that Fazel undergo a CT scan of his abdomen and pelvis to I
further evaluate his condition. Doc. 1-1 at 41.
Fazel claims that he was sent to see a urology specialist. Dr. Foumier,^ on September 14,
2021. Doc. 1 at 7. He claims that Dr. Foumier found that his bladder was three times the normal
size with three to four times the normal amount of urine in it. Id. He also claims that he needed
emergency surgery to prevent his bladder from bursting. Id. Fazel alleges that Dr. Foumier
performed this surgery and removed 1,700 millimeters of old urine. Id. He alleges that Dr.
^ Fazel repeatedly refers to "Dr. Founier" in his complaint. See Doc. 1. Fazel's attached medical
records show that he visited Dr. George R. Foumier. Doc. 1-1 at 29. This Court will refer to Dr.
Foumier by his correct name.
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Foumier had to insert a catheter and informed him that "major pain in the tip ofthe genital area
and bleeding" were signs to contact the facility doctor because the catheter may need to be
switched out. Id. He also alleges that Dr. Foumier told him to inform the facility doctor if the
size 16 catheter turned out to be too big so that Fazel could retum to the clinic. Id. at 8. Fazel
claims that he returned to the Yankton Federal Prison Camp and met with Nurse Steppat, who
told him that he could go back to work or programming that day. Id. at 7. He also claims that he
told her he was unable to do so because he just had a catheter placed, but Steppat told him that
people wear them all the time and he should stay off duty for the rest ofthe day and retum the
next day.Id.
According to Fazel, he experienced excmciating pain that night and contacted Steppat.
Id. at 8. He claims he told Steppat that he was in major pain and had blood in his urine and that
he requested to see a doctor. Id. He claims that Steppat denied him pain medication and told him
to get Tylenol from the commissary.Id. Fazel alleges that he informed Steppat that he could not
afford Tylenol, so she offered him three days of Tylenol but refused to let him see the facility
doctor. Id. He alleges that he had to wait four days to receive the Tylenol and that it took him
thirty days to see Dr. Foumier again. Id. He also alleges that Dr. Foumier was disappointed to
leam that Fazel was not allowed to contact the facility doctor. Id. Fazel claims that staff nurses
discriminate against people of color, requiring officers or non-licensed medical professionals to
be present for examinations ofinmates of color and using gloves when treating these inmates,
procedures Fazel claims are not required for white inmates. See id. Fazel also accuses Steppat of
falsifying urine samples and threatening to write him up. Id. He claims that the riiedical
department is supposed to respond in two to three days to urgent matters, but it took them eight
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days to respond to his emails regarding blood in his urine and bleeding around his genital area.
Id.
Fazel sent a message to prison staff on September 25, 2021, in which he claimed that he
was denied adequate medical care. Doc. 1-1 at 17. Specifically, he claimed that he was denied
pain medication, communication with a doctor by video, and fresh urine bags every three days.
Id. He claimed that he had gone without a fresh catheter bag for twenty days and that he was
close to collapsing and passing out from the pain caused by his catheter. Id. He also claimed that
he had to go without pain meds for eight days and that he was kept from speaking with the
facility doctor for seventeen days. Id. Fazel alleged that Steppat violated his HtPAA rights by
examining his genitals and catheter in front of a non-medical officer when another nurse was
available. See id. He also alleged that he was denied food because the nurse would not allow
food to be sent over to his cell and he was unable to walk to the cafeteria. Id. Fazel alleged that
this forced him to eat candy instead and go fifteen days without a meal. Id.
Fazel alleges that Unit Manager Sasha Labrenz placed him on a list to move dorms on
I
November 16, 2021,four days after she returned a complaint that he filed about the medical
department to him. Doc. 1 at 9. He alleges that he told Labrenz that he could not do any moving
because of his catheter and his condition. Id. He alleges that Labrenz said that medical had
authorized her to move Fazel and to require him to do the lifting and labor to move.Id. Fazel
claims that moving required pushing a 300-pound cart a quarter mile. Id. He claims that Labrenz
told him he would be written up if he did not move by 8:00 A.M.the next day, so he spent the
next four hours packing his property, loading it onto a cart, and pushing it the quarter mile to his
new dorm. Id. He also claims that he saw a BOP truck loading property for white inmates who
were not required to push a cart. Id.-, Doc. 1-1 at 7. He alleges that his catheter began falling out
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while he moved dorms, causing significant bleeding and blood in his urine afterwards. Doc. 1 at
9-10. He also alleges that he emailed the nurse to try to see the doctor and tell him of his
condition, but he never received a response to this email. Id. at 10.
In a message sent to prison staff on January 2,2022, Fazel claims that he underwent
another surgery at Yankton Medical Hospital on December 17, 2021. Doc. 10 at 1. He claims
that he developed two blood clots the evening after his surgery, which required treatment from
nurses at the hospital in order to restore the flow of urine into his urine bag, and that an
ultrasound revealed that the second clot moved back into his bladder. Id. Fazel alleges that the
following day, the doctor who performed the surgery told Fazel that he would typically keep
patients who had undergone this procedure in the hospital for an entire week, but his hands were
tied because the prison wanted Fazel returned that day.Id.
Fazel alleges that he was returned to the prison that day. Id. He had bladder pain and was
unable to urinate for nine hours, at which point a prison officer contacted the doctor who
performed the surgery, who instructed prison staffto take Fazel to the emergency room.Id. Fazel
claims that prison staff instead told him that he would need a catheter inserted at the prison and
that he should drink more water to resolve the problem.Id. Fazel claims that he was able to
urinate, with much pain, the following morning. Id. He also claims that the prison nurse then told
him that the prison nurses plarmed on treating him with a catheter,^ and he refused this treatment
because he was concemed that the doctor who performed the surgery did not advise it. Id. Fazel
alleges that Dr. Foumier asked him in a follow-up appointment on December 23, 2021, ifthe
prison stafffollowed his instructions to take Fazel to the emergency room if he had any
^ It is unclear whether Fazel had a catheter following this surgery. See Doc. 10 at 1-2. It appears
that Fazel had a catheter following his first surgery in September 2021, and the catheter was
removed as part of his second surgery in December 2021. See id.
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complications. Id. at 2. Fazel also alleges that Dr. Foumier told him to file a complaint with the
South Dakota medical board if he was not getting proper treatment at the prison, which Fazel
proceeded to do.Id.
Fazel claims that he was required to move dorms a second time on December 27,2021,
ten days after his surgery. Id. He claims that he was taken off medical idle status, returned to the
general population, and again required to push a cart with his belongings a quarter mile, despite
having instructions from his doctor that he was not to perform any strenuous activities for four to
six weeks.Id. Fazel alleges that he has been required to work, attend programming, move heavy
objects, walk across campus, and travel to the kitchen for meals despite his pain and bleeding
since the second move.Id. He also alleges that he has been denied pain medication other than the
instruction to purchase Tylenol from the commissary. Id.
Fazel alleges that Labrenz has deliberately interfered with and impeded his efforts to
pursue legal claims. Doc. 14 at 1-4. He alleges that she withheld a December 16, 2021, court
order that required a response by January 18, 2022, causing him to miss that deadline. Id. at 2.
He also alleges that she denied him his First Step Act time credits on a technicality that could
have been waived, causing him to lose his opportunity for early release. Id. Fazel claims that she
denied him paperwork pertaining to that technicality, a packing slip for his belongings, and
access to a paper shredder. Id. at 3. He claims that he must now transport four boxes of"critical
and confidential legal documents" on his flight home to Washington, D.C., because he was not
able to shred these documents at the prison. Id. He also claims that Labrenz's motivation for
these actions is retaliation for his filing a civil suit against her. Id. at 2.
Fazel claims that Warden Bennett ignored her responsibilities to keep him and other
inmates safe. Doc. 1 at 11. He claims that his circumstances and complaints were ignored by
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Bennett and her staff. Id. He also claims that Bennett "allows and enforces daily retaliation
among the staff against the inmates who file complaints." Id. Fazel alleges that he was told to
submit grievances to the regional office without alerting Bennett because she was ignoring his
complaints. Id.
Fazel claims that several practices at the prison constitute race-based discrimination. See
Doc. 1 at 8; Doc. 1-1 at 7, 10-11. In addition to the treatment described above, Fazel alleges that
he is forced to walk up thirty-two steps to use a TV room because African American inmates are
not allowed to use the TV room on the first floor. See Doc. 1-1 at 7. He further alleges that
African American inmates are not allowed to work in medical around white nurses, not allowed
to work in education around white teachers, and not allowed to work in the commissary around
products of value. Id. at 10. He also alleges that African American inmates are not allowed to
worship in the chapel. Id. at 11.
Fazel brings claims for inadequate medical care against Dr. Boyd and Steppat. Id. at 5-8.
He brings a claim for retaliation against Labrenz, although he also alleges that Steppat retaliated
against him in his complaint. See id. at 8-10. He brings a claim alleging that his safety has been
threatened by Bennett. Id. at 11. Fazel sues Steppat, Labrenz, and Bennett in their individual and
official capacities, and he sues Dr. Boyd in his official capacity.'* See id. at 1-2. Fazel claims that
as a result of defendants' actions, he suffered bladder damage, needed two or three surgeries, and
had a mental breakdown. Id. at 5, 7, 11. He also claims that he had constant blood in his urine
from November 17, 2021, to December 8, 2021, and blood in his mouth for six days after having
'* If a plaintiff does not specify the capacity in which he sues a defendant,the suit is treated as
only including official capacity complaints. Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615,619
(8th Cir. 1995); Nix v. Norman,879 F.2d 429, 431 (8th Cir. 1989). Fazel makes no mention of
the capacity in which he sues Dr. Boyd.See Doc. 1 at 1-2. Thus, Fazel sues Dr. Boyd in his
official capacity only.
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to move dorms. See id. at 9. He alleges that he has lost sleep out offear that he would lose his
release date for filing this lawsuit and that he has suffered undue hardship, enhancement of his
depression and his eating disorder, and extreme fear for his safety and life. Id.; Doc. 14 at 4.
Fazel asks this Court to "sanction and correct" the medical staff issues at the Yankton Federal
Prison Camp. Doc. 1 at 12. He also asks this Court to transfer him to a new facility, place him in
protective custody, or bar Labrenz from any contact with him until his release because of his fear
of Labrenz's retaliation. Doc. 14 at 4. He seeks $250,000 and outside medical and mental health
treatment at the expense ofthe BOP. Doc. 1 at 12.
LEGAL BACKGROUND
The court must assume as true all facts well pleaded in the complaint. Estate of
Rosenberg V. Crandell, 56 F.3d 35, 36(8th Cir. 1995). Pro se and civil rights complaints must be
liberally construed. Erickson v. Pardus,551 U.S. 89, 94(2007); Bediako v. Stein Mart, Inc., 354
F.3d 835, 839(8th Cir. 2004). Even with this construction,"a pro se complaint must contain
specific facts supporting its conclusions." Martin v. Sargent, 780 F.2d 1334, 1337(8th Cir. 1985)
(citation omitted); see also Ellis v. City ofMinneapolis, 518 F. App'x 502, 504(8th Cir. 2013).
A complaint"does not need detailed factual allegations ...[but] requires more than
labels and conclusions, and a formulaic recitation ofthe elements of a cause of action will not
do[.]" BellAtl. Corp. v. Twombly,550 U.S. 544, 555(2007)(internal citations omitted). If it does
not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657,
663(8th Cir. 1985). Twombly requires that a complaint's "[f]actual allegations must be enough to
raise a right to relief above the speculative level on the assumption that all ofthe allegations in
the complaint are true[.]" Twombly,550 U.S. at 555 (internal citation omitted); see also Abdullah
V. Minnesota,261 F. App'x 926, 927(8th Cir. 2008)(noting that a "complaint must contain
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either direct or inferential allegations respecting all material elements necessary to sustain
recovery under some viable legal theory"). Under 28 U.S.C. § 1915A,the court must screen
prisoner complaints and dismiss them if they "(1)[are] frivolous, malicious, or fail[] to state a
claim upon which relief may be granted; or(2)seek[] monetary relief from a defendant who is
immune from such relief." 28 U.S.C. § 1915A(b). The court will now assess each individual
claim under 28 U.S.C. § 1915A.
DISCUSSION
I. Official Capacity Claims
Fazel sues all defendants in their official capacities. See Doc. 1 at 2."A Bivens claim is a
cause of action brought directly under the United States Constitution against a federal official
acting in his or her individual capacity for violations of constitutionally protected rights." Buford
V. Runyon, 160 F.3d 1199, 1203 n.6 (8th Cir. 1998)(emphasis added){citmg Bivens, 403 U.S.
388); see also Little v. South Dakota,2014 WL 6453844, at *3(D.S.D. Nov. 17, 2014)("A
Bivens action may not be asserted against the United States, its agencies, or against federal
employees in their official capacity."(internal quotation omitted)). A suit against defendants in
their official capacity is treated as a suit against the Federal Bureau ofPrisons, an agency ofthe
United States. See Buford, 160 F.3d at 1203."[A]Bivens action cannot be prosecuted against the
United States and its agencies because of sovereign immunity." Id.\ see also Laswell v. Brown,
683 F.2d 261, 268(8th Cir. 1982)("Bivens and its progeny do not waive sovereign immunity for
actions against the United States ...."). Thus, Fazel's claims against all defendants in their
official capacities are dismissed with prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and
1915A(b)(l).
II. Individual Capacity Claims
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"Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must
plead that each [gjovemment-official defendant, through the official's own individual actions,
has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662,676(2009); see also Buford, 160
F.3d at 1203 n.7 (stating Bivens actions cannot be premised on respondeat superior liability and
defendants are liable for their personal acts only)."Each [g]ovemment official, his or her title
notwithstanding, is only liable for his or her own misconduct." Iqbal, 556 U.S. at 677.
A. Eighth Amendment Medical Care Claims
Fazel sues Steppat in her individual capacity for failure to provide adequate medical care.
Doc. 1 at 2, 7-8. Construing his complaint liberally, Fazel brings a claim for deliberate
indifference to his serious medical needs in violation of his Eighth Amendment rights, and he
also brings this claim against Labrenz and Bennett in their individual capacities. See id. at 2, 7-
11. A Bivens remedy is available for indifference to serious medical needs in violation ofthe
Eighth Amendment's prohibition against cruel and unusual punishment. Ziglar v. Abbasi, 137 S.
Ct. 1843, 1855(2017)(citing Carlson v. Green,446 U.S. 14, 19(1980))."[D]eliberate
indifference to serious medical needs of prisoners constitutes 'the unnecessary and wanton
infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble,429 U.S. 97, 104
(1976)(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976))."This is true whether the
indifference is manifested by prison doctors in their response to the prisoner's needs or by prison
guards in intentionally denying or delaying access to medical care or intentionally interfering
with the treatment once prescribed." Id. at 104-05 (footnotes omitted)."This conclusion does not
mean, however,that every claim by a prisoner that he has not received adequate medical
treatment states a violation ofthe Eighth Amendment."Id. at 105."[A] prisoner must allege acts
or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."
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Id. at 106. Allegations of negligence will not suffice, nor will mere disagreement with treatment
decisions. See Jolly v. Knudsen,205 F.3d 1094, 1096 (8th Cir. 2000).
The deliberate indifference standard includes both an objective and subjective
component. Dulany v. Carnahan, 132 F.3d 1234, 1239(8th Cir. 1997)(citing Coleman v. Rahija,
114 F.3d 778,784(8th Cir. 1997)). The plaintiff"must demonstrate (1)that they suffered
objectively serious medical needs and (2)that the prison officials actually knew of but
deliberately disregarded those needs." Id. (citing Coleman, 114 F.3d at 784)."A serious medical
need is one that has been diagnosed by a physician as requiring treatment, or one that is so
obvious that even a layperson would easily recognize the necessity for a doctor's attention."
Coleman, 114 F.3d at 784(intemal quotation omitted). To be liable for deliberately disregarding
medical needs,"the official must both be aware of facts fi-om which the inference could be
drawn that a substantial risk of serious harm exists, and he must also draw the inference."
Farmer v. Brennan, 511 U.S. 825, 837(1994); see also Spruce v. Sargent, 149 F.3d 783,786
(8th Cir. 1998)("[Cjonstructive knowledge, or the 'should-have-known' standard, is not
sufficient to support a finding of deliberate indifference ....").
Here, Fazel alleges sufficient facts to state claims against Steppat and Labrenz in their
individual capacities for deliberate indifference towards his serious medical needs. His bladder
and urinary condition were diagnosed by physicians as requiring surgeries, demonstrating
objectively serious medical needs. See Doc. 1 at 7; Doc. 10 at 1. Although some of Fazel's
complaints may be mere disagreement with treatment decisions, his allegations do rise to the
level of deliberate disregard for his medical needs. In particular, Steppat's slow responses to his
requests for medical attention and failure to change his catheter bag regularly demonstrate
deliberate indifference. See Doc. 1 at 8; Doc. 1-1 at 17. Fazel alleges that Labrenz, while aware
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of his recent surgeries and his medical condition, twice required him to push a heavy cart,
causing more harm, even as other inmates were transported by truck. See Doc. 1 at 9-10; Doc. 10
at 2. Fazel's claims against Labrenz also rise to the level of deliberate disregard for his medical
needs. Thus, his claims against Steppat and Labrenz in their individual capacities for deliberate
indifference to his serious medical needs in violation of the Eighth Amendment survive § 1915A
screening.
Fazel does not allege sufficient facts to state a claim against Bennett in her individual
capacity for deliberate indifference towards his serious medical needs. Fazel claims that Bennett
ignored grievances in which he detailed staff misbehavior and misconduct. Doc. 1 at 11. Fazel
does not allege that Beimett knew of and disregarded his serious medical needs. At most, Fazel
alleges that other prison staff were deliberately indifferent and that Bennett should have been put
on notice ofthis indifference by his grievances. See id. Under Spruce, Fazel rhust show that
Bermett actually knew of his condition, notjust that she should have known of it. Thus, Fazel's
deliberate indifference claim against Bermett in her individual capacity is dismissed without
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
B. First Amendment Claims
"The purpose ofBivens is to deter individual federal officers from committing
constitutional violations." Corr. Servs. Corp. v. Malesko, 534 U.S. 61,70(2001). But a Bivens
remedy is not available for all constitutional violations, and expanding the implied cause of
action under Bivens is "a 'disfavored'judicial activity." Ziglar, 137 S. Ct. at 1857(quoting Iqbal,
556 U.S. at 675). The United States Supreme Court has "never held that Bivens extends to First
Amendment claims." Reichle v. Howards,566 U.S. 658,663 n.4(2012). The Eighth Circuit
Court of Appeals has left "for another day the important question whether Bivens provides a
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remedy for First Amendment claims[.]" Gonzalez v. Bendt, 971 F.3d 742, 745 (8th Cir. 2020).
This court will analyze Fazel's First Amendment claims under 42 U.S.C. § 1983, as the Eighth
Circuit did in Gonzalez. Id. An analysis of whether Bivens provides a remedy will only be
considered if Fazel's alleged facts amount to a First Amendment violation.
1. Access to the Courts Claim
Construing his complaint liberally, Fazel brings claims for denial of his First Amendment
right to access the courts against Labrenz in her individual capacity. See Doc. 1 at 2; Doc. 14 at
1-4."The Constitution guarantees prisoners a right to access the courts." White v. Kautzky,494
F.3d 677,679(8th Cir. 2007). To succeed on a claim for denial of access to the courts, a plaintiff
must show that he suffered actual injury as a result of the defendants' actions. Lewis v. Casey,
518 U.S. 343, 351 (1996). In order to satisfy the actual injury requirement, a plaintiff must
"demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded."
Johnson v. Missouri, 142 F.3d 1087, 1089(8th Cir. 1998)(quoting Casey, 518 U.S. at 353).
"The right of access to the courts is satisfied ifthe prisoner has 'the capability of bringing
contemplated challenges to sentences or conditions of confinement before the courts.'"Zink v.
Lombardi, 783 F.3d 1089, 1108 (8th Cir. 2015)(quoting Casey, 518 U.S. at 356).
Here, Fazel fails to state a claim for denial of his right to access the courts because he
fails to satisfy the actual injury requirement. Fazel alleges that Labrenz withheld a December 16,
2021, court order, in order to "default [his] actions." Doc. 14 at 2. The order in question required
Fazel to pay an initial partial filing fee by January 18, 2022. Doc. 7 at 2. Fazel filed a motion to
extend this deadline on January 27, 2022, which the Honorable Judge Roberto A. Lange granted,
and this Court now considers that initial partial filing fee paid. See Doc. 13. Fazel has suffered no
injury because of Labrenz's alleged withholding of this court order. Fazel also alleges that
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Labrenz denied him a document necessary to pursue his First Step Act time credit claims. See
Doc. 14 at 3. Fazel has an ongoing claim for pursuit of his First Step Act time credits before this
Court that is currently unresolved. See Fazel v. Yankton FPC Warden, 4:21-CV-04143-LLP.
Thus, Fazel's First Step Act time credit claims have not been frustrated or impeded because he is
still capable of bringing them before the courts. Fazel's access to the courts claim against
Labrenz in her individual capacity is dismissed without prejudice under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
2. Retaliation Claims.
a. Retaliation Claim against Labrenz
Fazel brings a claim for retaliation against Labrenz in her individual capacity. Doc. 1 at 2,
9-10. Construing his complaint liberally, Fazel claims that Labrenz retaliated against him in
violation of his First Amendment rights for exercising his right to use the prison grievance
system and his right to access the courts. See id. at 9-10; Doc. 14 at 1-4."The right to be free
from retaliation for availing one's self ofthe prison grievance process has been clearly
established in [the Eighth Circuit] for more than twenty years." Santiago v. Blair, 707 F.3d 984,
991 (8th Cir. 2013)(citing iVe/50« v. Shuffman,603 F.3d 439, 449-50(8th Cir. 2010)). In order
for a plaintiff to allege a First Amendment retaliation claim, he must show that "(1) he engaged
in a protected activity,(2)the government official took adverse action against him that would
chill a person of ordinary firmness from continuing in the activity, and (3)the adverse action was
motivated at least in part by the exercise ofthe protected activity." Spencer v. Jackson County,
738 F.3d 907, 911 (8th Cir. 2013)(quoting Revels v. Vincenz, 382 F.3d 870, 876(8th Cir. 2004)).
Fazel alleges that Labrenz retaliated against him for filing a grievance regarding his
medical care by forcing him to do activities that were too strenuous for his condition and that she
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retaliated against him for initiating a lawsuit against her by impeding his efforts in that and other
civil cases. Doc. 1 at 9-10; Doc. 10 at 2; Doc. 14 at 1-4. Thus, taking Fazel's allegations as true,
the allegations clearly satisfy the first prong of a First Amendment retaliation claim because
"[t]he filing of a prison grievance, like the filing of an inmate lawsuit, is protected First
Amendment activity." Lewis v. Jacks, 486 F.3d 1025, 1029(8th Cir. 2007).
For Fazel to satisfy the second prong of a First Amendment retaliation claim, he must
demonstrate not only that defendants took an adverse action toward him but also that defendants'
alleged adverse action "would chill a person of ordinary firmness from continuing in the
activity[.]" Spencer, 738 F.3d at 911 (quoting Revels, 382 F.3d at 876); see also Jacks, 486 F.3d
at 1029 (holding in a First Amendment retaliation claim that the record contained insufficient
evidence that increasing the prisoner's work load would chill a prisoner of ordinary firmness
from using the prison grievance process)."The ordinary-firmness test is well established in the
case law, and is designed to weed out trivial matters from those deserving the time ofthe courts
as real and substantial violations ofthe First Amendment."Santiago, 707 F.3d at 992(quoting
Garcia v. City ofTrenton, 348 F.3d 726,728 (8th Cir. 2003)). This is an objective test that looks
at whether a reasonable prisoner's actions would be chilled by an official's alleged adverse
actions. See id. (citing Garcia, 348 F.3d at 729).
Here, Fazel has alleged sufficient facts to show that a reasonable prisoner of ordinary
firmness would have been "chilled" from using the grievance procedure and asserting an inmate
lawsuit. He alleges that he was forced to perform strenuous activities that worsened a serious
medical condition and that he has lost opportunities for early release as a result of Labrenz's
retaliation. See Doc. 1 at 9-10; Doc. 10 at 2; Doc. 14 at 1-4. Although Labrenz's actions did not
rise to the level of a constitutional violation for denial of Fazel's right to access the courts, they
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can still constitute retaliation, because "[c]onduct that retaliates against the exercise of a
constitutionally protected right is actionable, even ifthe conduct would have been proper if
motivated by a different reason. Indeed, the retaliatory conduct does not itself need to be a
constitutional violation in order to be actionable." Cody v. Weber,256 F.3d 764, 771 (8th Cir.
2001)(citation omitted).
To satisfy the third prong, Fazel must show that "the official took the adverse action
because the plaintiff engaged in the protected [activity]." Id. at 993 (quoiting Revels, 382 F.3d at
876). Here, Fazel alleges sufficient facts to meet the third prong. He claims that Labrenz first
began retaliating against him because he filed a grievance and continued to do so because he
pursued a civil lawsuit against her. Doc. 1 at 9-10; Doc. 14 at 1-4. Thus, Fazel has alleged facts
to show that Labrenz violated his First Amendment right to be free from retaliation.
Because Fazel has successfully stated a First Amendment violation, the Court must now
determine if Bivens provides a remedy for this violation. In Ziglar, the Supreme Court
acknowledged that it has recognized three instances where a Bivens remedy is available:(1)a
violation of the Fourth Amendment's prohibition on unreasonable searches and seizures;(2)a
violation ofthe Fifth Amendment's Due Process Clause for gender-based discrimination; and (3)
a violation ofthe Eighth Amendment's prohibition on cruel and unusual.punishment. Ziglar, 137
S. Ct. at 1854-55. But the Ziglar Court explained that it now expresses caution as to judicial
findings of implied causes of action under the Constitution and has "consistently refused to
extend Bivens to any new context or new category of defendants." Id. at 1856-57(quoting
Malesko, 534- U.S. at 68).
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The Ziglar Court explained that "[t]he proper test for determining whether a case
presents a new Bivens context is" to determine whether "the case is different in a meaningful
way from previous Bivens cases decided by [the Supreme] Cour[t]." Id. at 1859.
A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity ofthe official
action; the extent ofjudicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other legal mandate under
which the officer was operating; the risk of disruptive intrusion by the Judiciary
into the functioning of other branches; or the presence of potential special factors
that previous Bivens cases did not consider.
Id. at 1860. Ifthe case is meaningfully different from past cases, the Court should then ask if
there are "special factors counselling hesitation in the absence of affirmative action by
Congress." Id. at 1857(quoting Carlson, 446 U.S. at 18). The Supreme Court has not defined a
special factor but has stated "that the inquiry must concentrate 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 1857-58.
The Court should also ask "if there is an alternative remedial structure present[.]" Id. at
1858. Because "if Congress has created 'any alternative, existing process for protecting the
[injured party's] interest' that itself may 'amoun[t] to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in damages.'"Id. at 1858 (alterations
in original)(quoting Wilkie v. Rabbins, 551 U.S. 537, 550 (2007)). Then the Court must weigh
the "reasons for and against the creation of a new cause of action, the way common law judges
have always done." Wilkie, 551 U.S. at 554."In sum, ifthere are sound reasons to think
Congress might doubt the efficacy or necessity of a damages remedy as part ofthe system for
enforcing the law and correcting a wrong,the courts must refrain from ereating the remedy in
order to respect the role of Congress ...." Ziglar, 137 S. Ct. at 1858.
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The Supreme Court has never implied a Bivens cause of action for First Amendment
I
retaliation. See Wood v. Moss,572 U.S. 744,757(2014)("[W]e have several times assumed
without deciding ihsi Bivens extends to First Amendment claims."(emphasis added)); see also
Johnson v. Burden, 781 F. App'x 833, 836-37(11th Cir. 2019)(discussing cases in which the
Supreme Court "has repeatedly confirmed that it has not extended a Bivens remedy to First
Amendment claims"). Fazel's claim is meaningfully different from the three instances in which
the Supreme Court has recognized a Bivens remedy.See Ziglar, 137 S. Ct. at 1854-55. Thus, this
Court must perform a special factors analysis.
In Bush V. Lucas, the Supreme Court declined to recognize a Bivens action for a First
Amendment suit alleging retaliatory demotion in an employment context because the cost, time,
and energy associated with defending a Bivens action against a federal employee were significant
and because Congress was in a better position to evaluate the need for a damages action in a First
Amendment suit between federal employees. Bush v. Lucas,462 U.S. 367, 388-90(1983). Thus,
the Court found there were "special factors counselling hesitation." See id. at 390(Marshall, J.,
concurring). Further, the Court found that alternative remedies existed because "[f]ederal civil
servants are now protected by an elaborate, comprehensive scheme ... by which improper action
may be redressed." Id. at 385.
The factors applicable in Bush apply here. The cost, time, and energy associated with
defending this claim would be significant. Further, Congress has created "altemative, existing
process[es]" for protecting the interests in question. See Ziglar, 137 S. Ct. at 1858 (quoting
Wilkie, 551 U.S. at 550). First, as Fazel's retaliation claim against Labrenz stems largely from
the same set offacts as his deliberate indifference to serious medical needs claim against her, he
can seek relief through that claim. Second, although Fazel alleges that the prison grievance
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system has not resolved his complaints, it is an existing process for protecting prisoner interests.
Third, to the extent that Fazel challenges the fact or duration of his confinement, the habeas
corpus remedy provides Fazel with an altemative process. Thus, this Court finds that Bivens does
not provide a remedy for Fazel's First Amendment retaliation claim against Labrenz in her
individual capacity, and that claim is dismissed without prejudice under 28 U.S.C. §§
1915(e)(2)(B)(ii) and 1915A(b)(l).
b. Retaliation Claim Against Steppat
Construing his complaint liberally, Fazel brings a claim for retaliation against Steppat in
her individual capacity. See Doc. 1 at 8. He alleges that Steppat retaliated against him after he
filed grievances to the regional office regarding his medical care by denying him the right to
speak to facility doctors while he was bleeding, falsifying urine samples, requiring him to work
and attend programming while on medical idle status, threatening to write him up, denying him
pain medication, and requiring medical evaluations to be done in front of non-medical prison
staff. Id.
The Court finds that these allegations meet the three-part standard for retaliation under
Spencer. First, as discussed above, the filing ofinmate grievances is a protected activity. See
Jacks, 486 F.3d at 1029. Second, Fazel alleges that Steppat deliberately withheld medical care
and falsified lab results, which are actions that would chill a person of ordinary firmness from
continuing in the protected activity. See Doc. 1 at 8. Third, Fazel claims that these actions were
Steppat's response to his filing a grievance. Id. Thus, Fazel has alleged facts to show that Steppat
violated his First Amendment right to be free from retaliation. But as above, the Court finds that
Bivens does not provide a remedy for this claim. The cost, time, and energy associated with
defending this claim would be significant, and Fazel's deliberate indifference claim against
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Steppat already provides an existing remedy for his allegations against Steppat. Thus, Fazel's
retaliation claim against Steppat in her individual capacity is dismissed without prejudice under
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
C. Fifth Amendment Equal Protection Claims
Construing his complaint liberally, Fazel alleges that prison staff violated his Fifth
Amendment right to equal protection of the laws. 5'ee Doc. 1 at 8; Doc. 1-1 at?, 10-11.
Specifically, he claims that he and other African American inmates are treated differently by _
prison medical staff, not allowed to use a certain TV room, not provided a truck for moving
dorms, not allowed to serve in certain prison jobs alongside white employees, and not allowed in
the chapel to worship. Doc. 1 at 8; Doc. 1-1 at 7, 10-11. Under Iqbal, Fazel must allege that each
defendant violated the Constitution through his or her own actions. While Fazel alleges facts that
may support a finding that his equal protection rights were violated, he can only bring this claim
against the individuals who personally violated his rights. See Iqbal, 556 U.S. at 677. He does
not specify which prison officials refused him a truck to transport his property or which officials
were responsible for discriminatory prisoner employment, worship, or TV room policies. See
Doc. 1-1 at 7, 10-11. Further, while the Supreme Court has acknowledged that a prisoner can
seek injunctive relief alongside a Bivens action for money damages. Farmer, 511 U.S. at 846,
850-51, the only forms of injunctive relief sought by Fazel address medical treatment at the
prison and Labrenz's actions towards him. Doc. 1 at 12. Thus, Fazel's equal protection claims
based on these allegations are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii)
and 1915A(b)(l).
Fazel alleges that prison medical staff, including Steppat, discriminated against him and
other African American inmates.Id. at 8. The Fifth Amendment due process clause governs
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equal protection claims against the United States, and the Supreme Court has explained that an
equal protection analysis is "precisely the same" under the Fifth and Fourteenth Amendments.
See Weinberger v. Wiesenfeld, 420 U.S. 636,638 n.2(1975). The equal protection clause ofthe
Fourteenth Amendment is "a direction that all persons similarly situated should be treated alike."
City ofCleburne v. Cleburne Living Ctr., 473 U.S. 432,439(1985)."In order to establish such
an equal protection claim, a prisoner must show that he is treated differently from similarly-
situated inmates and that the different treatment is based upon either a suspect classification or a
fundamental right." Patel v. U.S. Bureau ofPrisons, 515 F.3d 807, 815 (8th Cir. 2008)(intemal
quotations and citations omitted). Classifications based on race are considered a suspect
classification. See Graham v. Richardson,403 U.S. 365, 371-72(1971). The prisoner must also
show that the different treatment is "motivated by intentional or purposeful discrimination."
Patel, 515 F.3d at 816. Here, Fazel alleges that he is treated differently than other inmates based
on his race, a suspect classification. Specifically, he claims that he and other African American
inmates are treated differently by prison medical staff. Doc. 1 at 8. He also alleges that this
different treatment has a discriminatory motive. See id. Thus, Fazel successfully alleges that his
Fifth Amendment rights have been violated.
In Patel, although the Eighth Circuit affirmed the lower court's grant of summary
judgment in favor of the defendants on a Bivens claim for racial discrimination in violation of
plaintiffs Fifth Amendment right to equal protection, it considered the merits ofthis claim,
rather than finding that Bivens does not provide a remedy for violations of this right. See Patel,
515 F.3d at 815-816. This is a different approach than the Eighth Circuit took in Gonzalez,
where it explicitly stated that it was not addressing whether Bivens provided a remedy for the
right in question. See Gonzalez, 971 F.3d at 745. Here, the Court finds that Fazel's race-based
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Fifth Amendment equal protection claim is not meaningfully different from the gender-based
Fifth Amendment equal protection claim recognized by Ziglar because both are claims involving
the same right, even if the suspect classifications in question are different. See Ziglar, 137 S. Ct.
at 1854-55 (citing Davis v. Passman,442 U.S. 228,248-49(1979)). Thus, the Court finds that
Bivens provides a remedy for this claim, and Fazel's Fifth Amendment equal protection claim
against Steppat in her individual capacity survives § 1915A screening.
D. Remaining Claims Against Warden Bennett
1. Failure to Supervise Claims
Fazel claims that Bermett's failure to supervise caused staff misconduct and that she
ignored retaliation by staff. Doc. 1 at 11. Construing his claims liberally, Fazel brings a claim
against Bennett in her individual capacity for failure to supervise in violation of his constitutional
rights."[A]supervising officer can be liable for an inferior officer's constitutional violation only
'if he directly participated in the constitutional violation, or if his failure to train or supervise the
offending actor caused the deprivation.'"Parrish v. Ball, 594 F.3d 998,1001 (8th Cir. 2010)
(quoting Otey v. Marshall, 121 F.3d 1150, 1155 (8th Cir. 1997)). One requirement for a failure to
train or supervise claim is that the supervising officer "demonstrate[] deliberate indifference to or
tacit authorization of the offensive acts" after receiving notice of a pattem of unconstitutional
acts. Otey, 121 F.3d at 1155.
Here, Fazel fails to allege facts to state a claim against Bennett for failure to supervise.
He claims that Bennett "failed her supervisory role and duties to monitor staff misconduct,
management, as well as ignoring the retaliation by staff against inmates [sic] rights." Doc. 1 at
11. He also claims that Bennett failed to hold staff accountable for improper behavior and
misconduct and that she allowed retaliation by staff against inmates. Id. These claims are
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conclusory and make no showing that Bennett's failure to supervise caused the alleged
deprivations in question. Fazel does not allege facts that raise his right to relief above the
speculative level as required by Twombly. Thus, his failure to supervise claim against Bennett in
her individual capacity are dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(l).
2. Grievance Process Claims
Fazel brings a claim against Bennett in her individual capacity for her failure to respond
to grievances. In Buckley v. Barlow,the Eighth Circuit explained that a prison grievance
procedure "is a procedural right only, it does not confer any substantive right upon the inmates.
Hence, it does not give rise to a protected liberty interest requiring the procedural protections
envisioned by the [Fjourteenth [Ajmendment." 997 F.2d 494,495 (8th Cir. 1993)(quotation
omitted); also King v. Houston, 556 F. App'x 561,563(8th Cir. 2014)(citing Buckley for the
proposition that "prison officials' failure to process or investigate grievances, without more, is
not actionable under § 1983"). Although Buckley discussed a state prisoner's rights regarding
grievance procedures under the Fourteenth Amendment due process clause, this Court finds that
the same analysis applies to Fazel's grievance procedure claims under the Fifth Amendment due
process clause. See Flick v. Alba,932 F.2d 728,729(8th Cir. 1991)(per curiam)("[Fjederal
regulations providing for an administrative remedy procedure do not in and ofthemselves create
a liberty interest in access to that procedure."). Here, Fazel alleges that the way grievances are
processed or remedied violates his rights, but this alone does not arise to the level of a
constitutional violation. Thus, Fazel's grievance process claim against Bennett in her individual
capacity is dismissed without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
m.Motion to Apjpoint Counsel
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Fazel has filed a motion to appoint counsel. Doc. 9."A pro se litigant has no statutory or
constitutional right to have counsel appointed in a civil case." Stevens v. Redwing, 146 F.3d 538,
546 (8th Cir. 1998). In determining whether to appoint counsel to a pro se litigant, the Court
considers the complexity ofthe case, the ability of the litigant to investigate the facts, the
existence of conflicting testimony, and the litigant's ability to present his claims. Id. At this time,
Fazel's claims do not appear to be too complex, and Fazel is able to investigate the facts and
present his claims adequately. The Court remains open to the possibility of appointing counsel if
this case proceeds beyond the motion stage. It is one thing to well represent one s position on
paper to the court, and it is yet another to be able to adequately try a case to a jury. Thus,this
Court denies Fazel's motion to appoint counsel.
IV,Motions for Emergency Release
Fazel has filed two motions for emergency release. Docs. 10,14. In his first motion,
Fazel asks this court to order his immediate release, arguing that he should be released under the
First Step Act's time credits provision. Doc. 10 at 2. In his second motion, Fazel seeks an order
for his immediate release to protect him from Labrenz's retaliation and an order preventing
Labrenz from contacting him. See Doc. 14 at 4. In Heck v. Humphrey,the Supreme Court
explained that"habeas corpus is the exclusive remedy for a state prisoner who challenges the
fact or duration of his confinement and seeks immediate or speedier release, even though such a
claim may come within the literal terms of § 1983." 512 U.S. 477,481 (1994)(citing Preiser v.
Rodriguez, 411 U.S. 475,488-90(1973)). Although Heck dealt with § 1983 claims by a state
prisoner, the Eighth Circuit has applied the Heck doctrine to a Bivens action by a federal
prisoner. See Whitmore v. Harrington, 204 F.3d 784,784-85 (8th Cir. 2000)(per curiam); see
also Vennes v. An Unknown No. of Unidentified Agents,26 F.3d 1448, 1452(8th Cir. 1994)
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(describing Bivens as "the federal law analogous to § 1983"). Fazel challenges the duration of his
confinement and seeks immediate release. The appropriate vehicle for Fazel's challenge to his
confinement is his ongoing 28 U.S.C. § 2241 claim. See Fazel v. Yankton FPC Warden,4:21-
CV-04143-LLP. Thus, this Court denies his motions for emergency release. To the extent that
Fazel requests a no contact order, this Court will consider Fazel's requests for injunctive relief if
his claims are ultimately successful.
Accordingly, it is
ORDERED:
1. That Fazel's claims against all defendants in their official capacities are dismissed with
prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
2. That Fazel's 42 U.S.C. § 1983 claims against all defendants are dismissed with prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
3. That Fazel's Eighth Amendment deliberate indifference to serious medical needs claims
against Steppat and Labrenz in their individual capacities survive § 1915A screening.
4. That Fazel's Fifth Amendment equal protection claim against Steppat in her individual
capacity survive § 1915A screening.
5. That all ofFazel's remaining claims against all defendants are dismissed without prejudice
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(l).
6. The Clerk shall send blank summons forms and Marshal Service Form (Form USM-285)
to Fazel so that he may cause the complaint to be served upon defendants.
7. The Clerk of Court shall prepare and issue summonses for service under Rule 4(i)(l) and
(2)ofthe Federal Rules of Civil Procedure. In all other instances, Fazel shall complete
and send the Clerk of Courts a separate summons and USM-285 form for each
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defendant. Upon receipt ofthe completed summons and USM-285 forms,the Clerk of
Court will issue the summons. If the completed summons and USM-285 form are not
submitted as directed, the complaint may be dismissed.
8. The United States Marshal Service shall serve the completed summonses,together with a
copy ofthe complaint(Doc. 1), the motions containing additional allegations (Docs. 10,
14) and this order, upon the defendants.
9. Defendants will serve and file an answer or responsive pleading to the amended
complaints and supplement on or before 21 days following the date of service or 60 days
ifthe Defendants fall under Fed. R. Civ. P. 12(a)(2) or (3).
10. The Clerk of Court is directed to send a copy of this order to the appropriate ofScial at
Fazel's institution.
11. Fazel will keep the Court informed of his current address at all times. All parties are
bound by the Federal Rules of Civil Procedure and by the Court's Local Rules while this
case is pending.
12. That Fazel's motion to appoint counsel. Doc. 9, is denied.
13. That Fazel's motions for emergency release. Docs. 10 and 14, are denied.
DATED April 6, 2022.
BY THE COURT;
l^UVJLiJUuUL (JLKUSJ^
L^ence L. Piersol
United States District Judge
ATTEST:
MATTHEW W.THELEN, CLERK
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