Brown v. Bryant

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

JOSEPH A. BROWN,

Plaintiff,

v. Case No: 5:20-cv-51-Oc-39PRL

FNU BRYANT and R.C. CHEATHAM,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

Plaintiff, Joseph A. Brown, a federal inmate proceeding pro

se, initiated this action by filing a Bivens1 complaint against

the Warden and the Assistant Health Services Administrator of his

correctional institution (Doc. 1; Compl.). Plaintiff moves to

proceed in forma pauperis (Docs. 5, 11, 12) and requests an

evidentiary hearing regarding exhaustion of his administrative

remedies (Doc. 15).

In his complaint and supplement to his complaint (Doc. 2;

Supp.), Plaintiff alleges he suffers from an eye condition that

causes “rapid deterioration” and a “loss of coloring” around his

pupils. Compl. at 2-3; Supp. at 3. In September 2019, Plaintiff

had an appointment with the prison ophthalmologist, who concluded

Plaintiff’s symptoms were caused by high cholesterol. Supp. at 3.

1 Bivens v. Six Unknown Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

Plaintiff thereafter changed his diet, but his eyes continued to

deteriorate and started to become painful.2 Id.

Beginning in December 2019, when his eye pain began, Plaintiff

submitted numerous medical-appointment requests, which were not

approved. Id. at 3-4. Based on a conversation Plaintiff had with

another inmate who claims to have had the same symptoms, Plaintiff

fears he will become blind if he does not receive appropriate

treatment, including surgery. Id. at 5. Since the filing of his

complaint in February 2020, Plaintiff has notified the Court (Doc.

7; Notice) that he had an appointment with the eye clinic scheduled

for the end of March, but because of an administrative issue, his

appointment was canceled. Notice at 1. Plaintiff attempted to

reschedule his appointment, though as of April 8, 2020, he had not

been seen. Id. at 2.

Plaintiff names both Defendants in their official capacities.

See Compl. at 1. He seeks solely injunctive relief, asking that

Defendants be required to send him to an outside eye specialist

and approve surgery to prevent “further loss of coloring” and

extreme pain. Id. at 3; Supp. at 7.

Plaintiff is a three-strikes litigant under the Prison

Litigation Reform Act. See 28 U.S.C. § 1915(g). However, he seeks

to proceed in forma pauperis (Docs. 5, 11, 12), invoking the

2 Plaintiff also suffers from glaucoma for which he has

received treatment since 2007. Supp. at 3.

imminent danger exception. Compl. at 1; Supp. at 6. Even if

Plaintiff’s allegations satisfy the imminent danger exception, his

complaint is subject to dismissal under this Court’s screening

obligation because he fails to state a plausible claim on which

relief may be granted. See 28 U.S.C. § 1915(e)(2)(B) (requiring a

district court to dismiss a complaint if the court determines the

action is frivolous, malicious, or fails to state a claim on which

relief can be granted).

In Bivens, the Supreme Court recognized an implied right of

action for damages against a federal agent who, acting under “color

of his authority,” violated the plaintiff’s constitutional rights.

403 U.S. at 389, 397. See also Nalls v. Bureau of Prisons of U.S.,

359 F. App’x 99, 101 (11th Cir. 2009) (“In Bivens, the Supreme

Court concluded that injured plaintiffs can bring a private cause

of action for damages against federal officers based on violations

of constitutional rights.”) (emphasis added). Thus, in a Bivens

action, the appropriate remedy is monetary damages, not injunctive

relief. See Carlson v. Green, 446 U.S. 14, 21 (1980) (recognizing

Bivens extends damages remedies against individuals).

Because a Bivens action is meant to have a deterrent effect

on federal actors who violate an individual’s constitutional

rights, the proper defendant is the individual corrections

employee allegedly responsible for the harm. As such, under Bivens,

as under 42 U.S.C. § 1983, “supervisory officials are not liable

. . . for the unconstitutional acts of their subordinates on the

basis of respondeat superior or vicarious liability.” Solliday v.

Fed. Officers, 413 F. App’x 206, 209 (11th Cir. 2011).

Additionally, a prisoner may not maintain an action against

individual corrections employees in their official capacities. Id.

Because Plaintiff names Defendants in their official

capacities and seeks solely injunctive relief, he fails to state

a plausible Bivens claim. See id. Even if Plaintiff intended to

sue Defendants in their individual capacities, Plaintiff does not

attribute any conduct to Defendants that permits the reasonable

inference they violated Plaintiff’s constitutional rights. And,

under Bivens, Defendants may not be held liable for conduct of

their subordinates. Even more, Plaintiff fails to allege conduct

by any prison employee that constitutes deliberate indifference.

Assuming the prison ophthalmologist misdiagnosed Plaintiff, such

conduct constitutes at most mere negligence, which is not

actionable under the Eighth Amendment. See Estelle v. Gamble, 429

U.S. 97, 106 (1976) (“Medical malpractice does not become a

constitutional violation merely because the victim is a

prisoner.”).

Accordingly, it is

ORDERED:

1. This case is DISMISSED without prejudice.

2. The Clerk shall enter judgment dismissing this case

without prejudice, terminate any pending motions, and close the

file.

DONE AND ORDERED at Jacksonville, Florida, this 3rd day of

June 2020.

4 Do

af J. DAVIS

United States District Judge

Jax-6

Cc: Joseph A. Brown