Lee v. Bishoff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

MICHAEL ANTRANTRINO LEE,

Plaintiff,

V. Civil Action No. 5:21-CV-54

Judge Bailey

D. BISHOFF, Lieutenant;

B. GAINER, Correctional Officer;

CAPTAIN YAEGER;

LT. YARBER, Lieutenant (acting SIA at time),

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

IN PART MOTION FOR SUMMARY JUDGMENT

1. Background

The pro se plaintiff, a federal inmate then incarcerated at USO Allenwood', initiated

this action on April 12, 2021, by filing a complaint raising claims under Bivens and the

Federal Tort Claims Act. [Doc. 1]. On April 22, 2021, the Court issued an Order notifying

the plaintiff of the potential consequences of pursuing relief under both Bivens and the

Federal Tort Claims Act [Doc. 8]. On May 13, 2021, the plaintiff filed his notification that he

wished to proceed only with the Bivens complaint. [Doc. 11]. On June 2, 2021, the plaintiff

was granted leave to proceed in forma pauperis [Doc. 14], and on June 29, 2021, he paid

the required initial partial filing fee. [Doc. 18].

After his complaint was filed, the plaintiff was transferred to USP Canaan. On April 5,

2022, the plaintiff was released from the custody of the BOP.

On July 7, 2021, Magistrate Judge Mazzone conducted a preliminary review of this

matter, determined that summary dismissal was not appropriate, and entered an Order to

Answer, directing that sixty-day summons be issued for service on the defendants.

[Doc. 20]. On October 20, 2021, the defendants filed a Motion to Dismiss, or in the

alternative, Motion for Summary Judgment with a memorandum in support, and exhibits.

[Docs. 39 & 40]. Because the plaintiff is proceeding pro se, a Roseboro Notice was issued,

advising the plaintiff of his right to file a response to the defendant’s dispositive motion.

[Doc. 42]. On December 20, 2021, the plaintiff filed his response with an attached

Declaration and exhibits. [Doc. 61]. On January 3, 2022, the defendants filed a Reply.

[Doc. 64]. On January 7, 2022, the plaintiff filed a supplemental response. [Doc. 65]. Also

pending is the plaintiff's Combined Motion for Spoilation Sanctions and Adverse Inference

on Spoilation of Evidence. [Doc. 66].

Il. Factual Background

On March 20, 2002, the United States District Court for the Eastern District of North

Carolina sentenced the plaintiff to a term of 360 months. On September 10, 2009, the

plaintiff's sentence was reduced to 324 months. On May 27, 2014, the plaintiff's sentence

was further reduced to a term of 262 months.” On April 5, 2022, the plaintiff was released

from custody and is now residing in Raeford, North Carolina.

A. Arrival at FCl Gilmer

On April 16, 2019, the plaintiff was transferred to FCI Gilmer via the Oklahoma

Transfer Center. When the plaintiff arrived at FCI Gilmer, he was the subject of a pending

? See Lee v. Gomez, 5:19-CV-175 (N.D. W.Va.).

investigation regarding an incident at a previous institution. The defendants maintain that

as a result, the plaintiff was assigned to the Special Housing Unit (“SHU”).

[Doc. 40-1 at 22]. In addition, when the plaintiff arrived at FC] Gilmer, he was on a hunger

strike which began on April 4, 2019, while he was at the Oklahoma Transfer Center and

was initiated based on his allegations that he was refused his inhaler, naproxen, and other

property. [Doc. 40-1 at 131]. On April 11, 2019, the plaintiff stated that he was on a hunger

strike due to the way his food was handled. On April 19, 2019, after arriving at FCI Gilmer,

he said that was on a hunger strike because he “was sent to SHU for no reason” and did

not receive orthopedic shoes. On April 25, 2019, the plaintiff stated that he was on a

hunger strike because officers staged an assault and then wrote a fictitious incident report.*

[Doc. 40-1 at 2-3].

B. April 17, 2019, Incident

On April 17, 2019, at approximately 8:10 a.m., defendant Gainer approached the

plaintiff's cell after noting that the plaintiff had covered the camera inside the cell. After

approaching the plaintiff's cell, defendant Gainer noted that the plaintiff had also covered

his cell window with his mattress. The plaintiff refused defendant Gainer’s direct orders to

uncover his cell window and submit to restraints. Defendant Bishoff then approached the

cell and asked the plaintiff to uncover his window to speak. The plaintiff uncovered the

window to speak but covered it back when he was finished talking. The plaintiff then

refused another direct order to uncover his window, and stated, “[d]o what you want to do.

I’m going to do what | want to do what | have to do. I’m going to f[***] one of you up if you

3 Document 40-1 is the incident report to which he is referring.

come in here.” [Doc. 61-2 at 8]. Because the plaintiff refused staff orders, displayed signs

of imminent violence and staff were unable to approach the plaintiff without being placed

in danger, the Warden authorized a Use of Force Team to be assembled to enter the cell

and place him in restraints. At approximately 9:44 a.m., confrontation avoidance

procedures were initiated. Confrontation avoidance procedures were successful, and the

plaintiff agreed to uncover his cell window and submit to restraints. The plaintiff was

escorted out of his cell and placed into ambulatory restraints’ at approximately 10:00 a.m.

The Warden was contacted and authorized the continued use of ambulatory restraints until

the plaintiff demonstrated a pattern of non-destructive behavior. At approximately 8:00

p.m., the leg portion of the ambulatory restraints were removed. At approximately 10:00

p.m., the “black box” portion of the ambulatory restraints were removed. At approximately

11:30 p.m., the plaintiff was completely released from restraints. [Doc. 40-1].

Cc. April 17, 2019 Incident Report

The plaintiff received an incident as a result of the events described above. Incident Report

Number 3246747 charged the plaintiff with Threatening Another with Bodily Harm (Prohibited Code

203) and Refusing to Obey an Order (Prohibited Cide 307). A copy of the report was given to the

plaintiff on April 17, 2019, at 12:50 p.m. [Doc. 61-2 at 8]. On April 26, 2019, the United Disciplinary

Committee referred the charges to the Disciplinary Officer (“DHO”) for further heating and

recommended that the plaintiff be sanctioned with the loss of good conduct time, loss of

commissary privileges, phone, and visitation, and receives time in disciplinary segregation. [Id.].

4 Ambulatory restraints are a set of wrist and leg restraints that are not rigid and permit the

inmate to move around inside of the observation cell. This type of restraint permits an

inmate to use the restroom and walk around while restraining his movement sufficiently

such that there is a decreased risk of self-harm, harm to others, or damage to property.

[Docs. 40-1 at 4, 177].

The plaintiff requested a staff representative, Mr. Clem, who was his unit manager. In

addition, he requested that Inmate Banks be called as a witness.” Prior to the hearing, Mr.

Clems reviewed the video footage and documented what it revealed between 8:10 a.m.

and 9:51 a.m. The DHO hearing was conducted on May 10, 2019.° After the hearing, the

DHO found that the plaintiff had committed the prohibited act of conduct disruptive to the

orderly running of the institution most like threatening another person, Code 299 most like

Code 203. [Id. at 4]. The plaintiff was sanctioned with the loss of 27 days of Good Conduct

Time, 30 days of disciplinary segregation, and 6 months loss of commissary and phone.

at 5]. There has been no evidence presented that establishes that this disciplinary

proceeding has been overturned or expunged.’ In fact, on August 31, 2021, the plaintiff

filed a habeas petition pursuant to 28 U.S.C. § 2241 in the United States District Court for

the Middle District of Pennsylvania challenging this incident report. On November 13, 2021,

° Mr. Banks testified at the hearing that he was in the cell next to the plaintiff and testified

that: “Il was in the cell next to Lee, | don’t remember him saying anything to Gainer.”

[Doc. 61-2 at 3]. The Court assumes this to be in reference to the allegation that the

plaintiff responded to defendant Gainer’s order that he uncover his window and submit to

his hand restraints by stating: “Do what you gotta do, I’m a do what | gotta do. I’m a f***

one of ya all up if you come in here.” [ld. at 4].

® According to the DHO summary, Mr. Clem stated that he reviewed the video which

“reflected that on April 17, 2019, at 8:10 A.M. Inmate Lee is observed covering the window

of the cell door. At 8:10 A.M. Lieutenant Bishoff is seen coming onto the range with Officer

Gainer and Officer Miller and Officer Gainer is observed standing in front of the food slot.

At 8:27 A.M. inmate Lee uncovers the window. At 8:35 A.M. Officer Frasier is near the cell

and the window is uncovered and at 9:51 A.M. Dr. Wagner comes to the cell for

confrontation avoidance,” [Doc. 61-2 at 2].

“As part of his response to the defendants’ Motion to Dismiss or for Summary Judgment,

the plaintiff attached an Incident Report from FCI Gilmer regarding a July 12, 2019,

encounter with his unit counselor which resulted in a charge of Refusing an Order and

Being Insolent to a Staff. [Doc. 61-7 at 2]. That report was handled by the Unit Disciplinary

Committee (“UDC”) because it did not involve the loss of good conduct time. [Id. at 3]. His

Regional Administrative Remedy Appeal was granted because the incident report had

been expunged by the UDC. [lId. at 4].

the Court found that the plaintiff was accorded all of his due process rights and there was

some evidence supporting the decisions made by the DHO. Accordingly, the petition was

denied. The plaintiff filed a Notice of Appeal, and on February 23, 2022, the Court of

Appeals dismissed the case pursuant to F.R.A.P. 3(a) for failure to pay the filing fee. See

Lee v. Bradley, 1:21-cv-1504-SHR-SM (M.D. Pa.) (available on PACER).

lil. The Pleadings

A. The Complaint

Liberally construed, the plaintiff makes several allegations which he contends

establish violation of his Fourth, Fifth and Eighth Amendment rights. More specifically, he

alleges that various defendants violated his Fourth Amendment rights by falsifying official

documents and misrepresenting official documents in connection with Incident Report

Number 3246747. With respect to the Fifth Amendment, the plaintiff alleges that various

defendants denied him equal protection of the laws and maintains that the “incident” was

racially motivated. Finally, he alleges that he was subjected to cruel and unusual

punishment in violation of the Eighth Amendment when he was chained up like an animal

under false pretenses and endured pain and suffering for nearly 14 hours in a very cold cell

with no linens. He also alleges that his restraints were illegally tightened without medical

supervision. For relief, he seeks $250,000 from each defendant as compensatory

damages and $500,000 from each defendant as punitive damages for a total sum of

$3,000,000.

B. Defendants’ Motion to Dismiss, or Alternatively, Motion for Summary Judgment

In response to the complaint, the defendants argue that the plaintiff has failed to

state a valid Eighth Amendment claim because the actions of defendants Bishoff, Gainer,

Yaeger and Yarber did not rise to the level of excessive force. In addition, the defendants

argue that the plaintiff's allegation that official documents were falsified in violation of the

Fourth Amendment does not state a cognizable Bivens claim, because even if true, an

inmate has_ no constitutional right prohibiting false disciplinary charges against him. The

defendants also argue that the plaintiff's Fifth Amendment claims of racial animus are not

cognizable under Bivens. Finally, the defendants argue that the plaintiff's Fourth

Amendment and Fifth Amendment claims must be dismissed because claims are not

cognizable Bivens claims under Ziglar v. Abbasi, 137 S.Ct. 1842 (2017).

B. Plaintiff's Response in Opposition

In response, the plaintiff emphasizes that the “assault” began at approximately 7:45

am-8:00 am when defendant Gainer placed him in hand restraints to be escorted to the

SHU medical room to be assessed/evaluated for his hunger strike. The plaintiff correctly

notes that the defendants did not address this portion of his complaint and argues that

Gainer’s actions clearly violated his Eighth Amendment rights.®

8 In his complaint, the plaintiff alleged that during the escort to medical, defendant Gainer

started walking fast and bending up on the cuffs and causing him pain to his surgically

repaired right wrist. [Doc. 1 at 11]. The plaintiff alleged that defendant Gainer,

nonetheless, kept pulling up on the cuffs. When they arrived at the medical room, the

plaintiff acknowledged that he told the nurse that he refused as defendant Gainer was

putting him on the scale. [Id.]. The plaintiff alleges defendant Gainer then intentionally

pushed him against the wall. [Id_.].

The plaintiff also argues that there was no need for use of calculated force because

he voluntarily agreed to cuff up. He maintains that it is undisputed that he was chained up

in ambulatory full restraints (handcuffs, waist chains/with black box, and leg restraints) for

over 14 hours and suffered cuts, scrapes, bruises, and injury to his wrist. [Doc. 61 at 5].

The plaintiff then addresses the elements to be evaluated to determine whether

defendants are guilty of excessive force and argues that he has demonstrated that they

are.

With respect to his claim of retaliation, the plaintiff argues that he has a First

Amendment right to be free from retaliation for filing grievances and engaging in a hunger

strike. The plaintiff goes on to argue that under BOP policy, he did not have to be housed

in the SHU based upon an incident report that was pending when he was transferred to

FCI Gilmer. The plaintiff clarifies this by noting that the only Incident Report that mandates

housing in the SHU is a 100 series violation, and his pending violation was a 200 series.

The plaintiff also maintains that in 2009 and 2010 he was transferred with a pending

incident report and was not placed in the SHU but instead was placed in general

population. The plaintiff then argues the defendants placed him in the SHU with the intent

to bring him harm and to deter him from filing complaints and engaging in a hunger strike,

thereby violating his Fifth Amendment rights.

The plaintiff also argues that the defendants violated his Fourth Amendment rights

by detaining him in the SHU by way of deliberately making false statements. The plaintiff,

in effect, argues that once the “false” statements in the incident report are removed, the

defendants lacked jurisdiction to have him placed in ambulatory restrains and deprive him

of good conduct time. The plaintiff also maintains that he was treated differently from other

inmates at the same facility, and the staff/defendants violated his equal protection rights.

As support for this conclusion, the plaintiff maintains that there were other inmates who

arrived with pending incident reports, who were placed in general population and were

never housed in the SHU.

Finally, the plaintiff undertakes a lengthy analysis of why his claims do not present

a new Bivens context. Therefore, he maintains that his Fourth and Fifth Amendment

claims are not barred by Abbasi.

Cc. Defendants’ Reply

The defendants indicate that they wish to stand upon the fact and arguments

asserted in their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment

and the Memorandum filed in support thereof. However, they also address certain

arguments raised in the plaintiff's response.

First, they note that although the plaintiff concedes that the only “use of force”

employed by the defendants was placing him in ambulatory full restraints, he continues to

argue incorrectly that he was subjected to cruel and unusual punishment. The defendants

argue that the plaintiffs response fails to acknowledge that the Bivens claims against

defendants Bishoff, Gainer, Yaeger, and Yarber are subject to dismissal because their

actions did not rise to the level of excess force in violation of the Eighth Amendment.

Second, the defendants maintain that the allegations regarding verbal abuse and

retaliatory actions based on racial animus must be dismissed because those claims do not

amount to cognizable Bivens claims Additionally, the defendants reiterate that these

claims must be dismissed under Abbasi.

Third, the defendants emphasize that all of the individual defendants are entitled to

qualified immunity because the plaintiff cannot establish constitutional violations under any

of the facts he alleges.

lll. Standard of Review

A. Motion to Dismiss - Fed.R.Civ.P. 12(b)(6)

“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.

1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's

well-pleaded allegations are taken as true and the complaint is viewed in the light most

favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);

see also Martin, 980 F.2d at 952.

The Federal Rules of Civil Procedure “require only ‘a short and plain statement of

the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Courts long have cited the “rule that a complaint should not be dismissed for failure to state

a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support

of [a] claim which would entitle him to relief.” Conley, 355 U.S. at 45-46. In Twombly, the

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United States Supreme Court noted that a complaint need not assert “detailed factual

allegations,” but must contain more than labels and conclusions’ or “a formulaic recitation

of the elements of a cause of action.” Conley, 550 U.S. at 555 (citations omitted). Thus,

the “[flactual allegations must be enough to raise a right to relief above the speculative

level,” Id. (citations omitted), to one that is “plausible on its face,” [Id. at 570], rather than

merely “conceivable.” Id. Therefore, in order for a complaint to survive dismissal for failure

to state a claim, the plaintiff must “allege facts sufficient to state all the elements of [his or]

her claim.” Bass v. E.l. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)

(citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); lodice v. United

States, 289 F.3d 279, 281 (4th Cir. 2002)). In so doing, the complaint must meet a

“plausibility” standard, instituted by the Supreme Court in Ashcroft v. Iqbal, where it held

that a “claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Thus, a well-pleaded complaint

must offer more than “a sheer possibility that a defendant has acted unlawfully” in order

to meet the plausibility standard and survive dismissal for failure to state a claim. Id.

The plaintiff is proceeding pro se and therefore the Court is required to liberally

construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner,

404 U.S. 519, 520—1 (1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007); Loe

v. Armistead, 582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir.

1978). While pro se pleadings are held to a less stringent standard than those drafted by

attorneys, Haines, 404 U.S. at 520, even under this less stringent standard, a pro se

11

complaint is still subject to dismissal. Id. at 520-21. The mandated liberal construction

means only that if the Court can reasonably read the pleadings to state a valid claim on

which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128 (10th

Cir. 1999). However, a court may not construct the plaintiff's legal arguments for him or

her. Small v. Endicott, 998 F.2d 411 (7th Cir. 1993). Nor should a court “conjure up

questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274 (4th

Cir. 1985).

B. Motion for Summary Judgment

A moving party is entitled to summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled

to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying the standard for summary

judgment, the Court must review all the evidence “in the light most favorable to the

nonmoving party.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The Court

must avoid weighing the evidence or determining the truth and limit its inquiry solely to a

determination of whether genuine issues of triable fact exist. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

In Celotex, the Supreme Court held that the moving party bears the initial burden

of informing the Court of the basis for the motion and of establishing the nonexistence of

genuine issues of fact. Celotex, 477 U.S. at 323. Once “the moving party has carried its

burden under Rule 56, the opponent must do more than simply show that there is some

metaphysical doubt as to material facts.” Matsushita, 475 U.S. at 586. The nonmoving

12

party must present specific facts showing the existence of a genuine issue for trial. Id. This

means that the “party opposing a properly supported motion for summary judgment may

not rest upon mere allegations or denials of [the] pleading, but... must set forth specific

facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The

“mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the

entry of summary judgment. Id. at 248. Summary judgment is proper only “[wlhere the

record taken as a whole could not lead a rational trier of fact to find for the nonmoving

party.” Matsushita, 475 U.S. at 587.

IV. Analysis

A. Excessive Force

Analysis of a claim for use of excessive force begins with “identification of the

specific constitutional right allegedly infringed by the challenged application of force.”

Graham v. Connor, 490 U.S. 386, 394 (1989). In the context of a claim by a prisoner that

he was subjected to excessive force by prison employees, the source of the ban against

such force is the Eighth Amendment's ban on cruel and unusual punishments. The validity

of a prisoner's claim must be “judged by reference to th[is] constitutional standard...rather

than to some generalized ‘excessive force’ standard.” Graham, 490 U.S. at 394; see e.g.,

Whitley v. Albers, 475 U.S. 312, 318-326 (1986) (claims of excessive force to subdue

convicted prisoner is to be analyzed under an Eighth Amendment standard).

To state an Eighth Amendment claim, an inmate must prove two factors: (1)

objectively, the alleged punishment or act is sufficiently serious that it violates

contemporary standards of decency; and (2) objectively, the prison official must have a

13

sufficiently culpable state of mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Rhodes

v. Chapman, 452 U.S. 337, 347 (1981). The subjective component of the claim requires

an inmate to demonstrate that the force used by an institutional official, “inflicted

unnecessary and wanton pain and suffering.” Hudson v. McMillian, 503 U.S. 1, 7 (1992).

The question of whether the measure taken inflicted unnecessary and wanton pain and

suffering turns on “whether the force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Id. (citing Whitley v.

Albers, 475 U.S. 312, 320-21 (1986)). In determining whether a prison official acted

maliciously and sadistically, the court should consider the following: “the need for

application of force, the relationship between the need and the amount of force used, the

threat reasonably perceived by the responsible officials, and any efforts to temper the

severity of a forceful response.” Hudson, 503 US at 7 (internal quotation marks omitted).

In addition, the inmate must prove the correction officer's actions were “‘objectively

harmful enough to offend ‘contemporary standards of decency.” Stanley v. Hejirika, 134

F.3d. 629, 634 (4th Cir. 1998) (quoting Hudson, 503 U.S. at 8). In assessing this

component, the court must ask whether “the alleged wrongdoing was objectively ‘harmful

enough’ to establish a constitutional violation.” Id. (quoting Wilson v. Seiter, 501 US 294,

298 (1991)). When prison officials used force to cause harm maliciously and sadistically,

“contemporary standards of decency always are violated ... This is true whether or not

significant injury is evident.” Hudson, 503 U.S. at 9. However, “[nJot every push or shove,

even if it may later seem unnecessary in the peace of a judge’s chambers, violates a

14

prisoner's constitutional rights.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d

Cir. 1973)).

In the instant case, the plaintiff has made two separate claims of excessive force.

The first is against defendant Gainer and involves an alleged incident that occurred on April

17, 2019, at 7:45 a.m., when the plaintiff was escorted to the SHU medical room for

evaluation of his hunger strike. The defendants have not addressed this incident in either

their Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, nor in their

reply to the plaintiffs response. Accordingly, there remains a question of fact as to this

element of the complaint, and the plaintiff's claim against defendant Gainer for the first

allegation of excessive force survives the defendants’ Motion, and this claim should be

permitted to move forward.

The second claim involves the events that occurred after the plaintiff was returned

to his cell from the SHU medical room. The plaintiff does not dispute that he covered his

cell window’, and what little of the stationary video in the plaintiff's cell which still exists,

clearly establishes that the plaintiff used something to cover the camera. When staff

attempted to persuade the plaintiff to uncover his cell window, he threatened staff.

Although the Warden then authorized a calculated use of force team, the staff minimized

the amount of force used when they successfully engaged in confrontation avoidance and

the plaintiff agreed to submit to hand restraints.

* In his complaint, the plaintiff notes that he “briefly covered the cell window to try to get

staff to come and contact the SIA or Psychology.” [Doc. 1 at 12].

15

The plaintiff was then escorted out of his cell and placed into ambulatory restraints.

After the plaintiff was placed into restraints, he implied several times that he was suicidal."°

The Warden authorized the continued use of ambulatory restraints, and as required by

BOP Program Statement, the plaintiff was checked every 15 minutes, and observations

were documented. [Doc. 40-1 at 195-197]. At 8:00 p.m., his leg restraints were removed

because he had begun to show a pattern of calm behavior. [Id. at 199]. At 10:00 p.m., the

black box was removed. [Id.]. The plaintiff was removed from all restraints at 11:30 p.m.

[Id. at 201].

Although the plaintiff alleges that he was in pain for weeks from scratches, cuts,

abrasions, and bruises, the medical records contradict his allegation. On April 17, 2019,

he was evaluated by medical at 12:30 pm. There is no notation of any injuries, and no

report from the plaintiff that he was in pain. [Doc. 40-1 at 108]. At 6:00 pm that same day,

the plaintiff was seen by medical for a restraint check. The plaintiff specifically denied any

pain or discomfort. In addition, he was observed ambulating around the cell independently

with steady gait. The plaintiffs skin was noted as intact, and the restraints allowed

adequate space between restraints and skin with no skin injuries noted and adequate

capillary refill. [Id. at 106].

The plaintiff continued to be assessed on a daily basis due to his continued hunger

strike, which began on April 4, 2019, at the Oklahoma Transfer Center. [Doc. 40-1 at 63].

By April 23, 2019, his weight had dropped from 158 on April 9th, to 147 pounds on April

*° At 10:00 a.m., the plaintiff stated: “That’s ok, you're not going to take me out of restraints

because as soon as | come out, I’m going on suicide watch.” [Doc. 40-1 at 198]. At 2:00

p.m., the plaintiff stated: “I’m not eating. | got something to say. I'll have something to say

when | go on suicide watch.” [Id.].

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22nd. [Id.]. On April 25, 2019, the plaintiff was assessed, and he was in no acute distress

and no pain was evident. His skin was normal color, and there was no acute rash, swelling

or tenting. There was no restriction in range of motion of hands, wrist, or feet. His right

wrist had a dorsal scar just proximal to the joint. However, no swelling was appreciated,

and no ecchymosis noted. [Id. at 48]. In fact, the first mention of any pain related to the

April 17, 2019 incident was on April 25, 2019, when he stated: “they ‘bent my surgical wrist’

and now ‘just a little bull shit pain.” [Id. at 45].

Accordingly, the plaintiff has not demonstrated that the force used by BOP staff

relating to placement of the plaintiff in ambulatory restraints from approximately 9:44 a.m.

until 11:30 p.m. was sufficiently serious so as to violate contemporary standards of

decency. In addition, it is clear that the force used and placement in ambulatory restraints

was applied in a good faith effort to restore discipline rather than maliciously and

sadistically to cause harm. Therefore, the plaintiff has failed to establish either factor to

state an Eighth Amendment claim. Accordingly, his complaint as it relates to this incident

should be dismissed.

B. False Incident Report

The plaintiff alleges that Incident Report Number 3246747, which was issued on

April 17, 2019, after he was placed in ambulatory restraints, resulted from falsification and

misrepresentation of official documents by defendants Bishoff and Gainer in violation of

the Fourth Amendment. It appears that the plaintiff is alleging that the Incident Report was

created “after the fact” to justify the “calculated use of force” and his placement in

ambulatory restraints.

17

As previously noted, the plaintiff filed this action under Bivens, which is a judicially

created damages remedy which is designed to vindicate violations of constitutional rights

by federal actors. See Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics, 403 U.S. 388, 395-97 (1971). Bivens core premise is to deter individual

officers’ unconstitutional acts. Correctional Services Corp v. Malesko, 534 U.S. 61

(2001).

“The act of filing false disciplinary charges does not itself violate a prisoner's

constitutional rights.” Lewis v. Viton, 2007 WL 2362587, at *9 (D.N.J. Aug. 14, 2007)

(citing Freeman v. Rideout, 808 F.2d 949, 962-63 (2d Cir. 1986) (“The prison inmate has

no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct

which may result in the deprivation of a protected interest’)). There is simply no

constitutional right to be free from being falsely accused. See McClay v. Fowlkes, 2008

WL 3992637, at *4n.6 (E.D. Va. Aug. 27, 2008) (O’Grady, J.) (“To the extent the plaintiff

claims that he was falsely accused, he fails to state a § 1983 claim because ‘[t]he prison

inmate has no constitutionally guaranteed immunity from being false or wrongfully accused

of conduct which may result in the deprivation of a protected liberty interest.”) (internal

citations omitted); Anderson v. Green, 2009 WL 2711885, at *4 (D. Md. Aug. 24, 2009)

(Davis, J.) (same); Riggerman v. Ziegler, 2012 WL 4119674, at *5 (S.D. W.Va, Aug. 22,

2012) (Vandervort, M.J.) (“Inmates have no constitutional right prohibiting false charges

against them”), recommendation adopted in 2012 WL 4119931 (S.D. W.Va. Sept. 19,

2012) (Berger, J.); Caver v. Lane, 2015 WL 9077032, at *2 (N.D. W.Va. Dec. 16, 2015)

(Stamp, J.) (plaintiff has no constitutional right prohibiting false disciplinary charges);

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Woods v. United States, 2012 WL 1005010, n. 5(W.D. Va. Mar. 22, 2012) (Conrad, C.J.)

(plaintiff “has no actionable constitutional claim based on his allegations of ‘false’

disciplinary convictions”). Rather, they have the right to refute such charges utilizing the

procedural due process protections enunciated in Wolf v. McDonnell, 418 U.S. 539

(1974). Accordingly, the plaintiff's claim regarding a “false incident report” is due to be

dismissed.

Cc. Fourth and Fifth Amendment Allegations

In 42 U.S.C. § 1983, Congress provided a specific damage remedy for plaintiffs

whose constitutional rights were violated by state officials, but Congress provided no

corresponding remedy for constitutional violations by agents of the Federal Government.

Eventually, the Supreme Court issued its opinion in Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) and recognized for the first

time an implied right of action for damages against federal officers to compensate persons

injured by federal officers who violated the Fourth Amendment's prohibition against

unreasonable searches and seizures. 403 U.S. 388, 397 (1971). The Court acknowledged

that the Fourth Amendment does not provide for money damages “in so many words.” Id.

at 396. The Court noted, however, that Congress had not foreclosed a damages remedy

in “explicit” terms and no “specific factors” suggested that the Judiciary should “hesitat[e]

in the face of congressional silence.” Id. at 396-97. Accordingly, the Court held that it could

authorize a remedy under general principles of federal jurisdiction. See id. at 392.

Over the next nine years, the Court allowed Bivens-type remedies twice more, in a Fifth

Amendment gender discrimination case, Davis v. Passerman, 422 U.S. 228 (1979) (an

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administrative assistant sued a Congressman for firing her because she was a woman),

and in an Eighth Amendment cruel and unusual punishment clause case, Carlson v.

Green, 446 U.S. 14 (1980) (a prisoner's estate sued federal jailers for failing to treat the

prisoner's asthma).

For nearly four decades, the Supreme Court has “consistently refused to extend

Bivens to any new context or new category of defendants.” Ziglar v. Abbasi, 137 S.Ct.

1843, 1857 (2017) (citations omitted) (emphasis added). Moreover, in Abbasi, the

Supreme Court reiterated the significant limits to Bivens liability, cautioning courts to first

consider whether to imply a remedy at all before reaching the merits of such claims. 137

S.Ct. 1843 (2017). The court left no doubt that expanding the personal liability associated

with Bivens is “a ‘disfavored’ judicial activity.” Id. at 1857 (citations omitted). The Court

specifically noted that “in light of the changes” to its “general approach” to “implied

damages remedies,” the analysis in Bivens, Davis, and Carlson might be “different if they

were decided today.” Id. at 1856. See a/so Corr. Servs. Corp. v. Malesko, 534 U.S. 61,

67 & n. 3 (2001) (noting that Bivens relied “largely on earlier decisions implying private

damages actions into federal statutes” from which the Supreme Court has since

“retreated.”).

As this Court recently noted, Abbasi “marked a substantial shift in how courts are

to interpret allegedly unconstitutional acts by federal actors when there is no statute

permitting a damages remedy.” Holloway v. Coakley, et al., Case No. 2:17-CV-74, Order

Dismissing Case, Doc. 73 (N.D. W.Va. Apr. 8, 2019) (Bailey, J.). Specifically, Abbasi

“narrowed the circumstances in which a plaintiff may successfully state a claim under

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principles established in Bivens.” Atkinson v. Holder, 2019 WL 1292886, at *11 (4th Cir.

Mar. 21, 2019) (citing Abbasi, 137 S.Ct. at 1857-58).

After Abbasi, there is now a two-step test when deciding whether a cognizable

Bivens remedy exists for alleged official misconduct. First, a court must determine whether

the claim presents a “new” Bivens context. Id. at 1859. If it does, the court must assess

whether any “special factors counsel|[ ] hesitation” in recognizing a new remedy “in the

absence of affirmative action by Congress.” Id. at 1857, 1859. Therefore, if the Bivens

claim meaningfully differs from “a claim against an FBI agent for handcuffing a man in his

own home without a warrant; a claim against a Congressman for firing his female

secretary; [or] a claim against prison officials for failure to treat an inmate’s asthma,” it is

a new context. /d. at 1860.

The factual allegations in this case present a new context. Bivens itself was a

Fourth Amendment claim, and Davis was a Fifth Amendment case, but a claim may still

arise ina new context even when the same right is invoked. Hernandez v. Mesa, 140 S.Ct.

735, 743. (2020). Although the plaintiff baldly asserts that his claims do not present a new

context, under the Supreme Court's analysis, they plainly do. The plaintiff's claim under

the Fourth Amendment presents a new category of defendants than did Bivens’ Fourth

Amendment suit (prison officials rather than Bureau of Narcotics agents), and this Fourth

Amendment claim arises in a new context (a prison rather than a private residence).

Likewise, the plaintiffs Fifth Amendment claim differs from Davis’ claims and presents a

new category of defendants (prison officials rather than a member of Congress) and arises

in a new context (a prison rather than a congressional office). These are meaningful

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differences. Admittedly, Carlson addressed a prison setting in the context of an Eighth

Amendment inadequate medical care. However, according to the Supreme Court, “even

a modest extension is still an extension.” Abbasi, 137 S. Ct. at 1864. In this case, the

plaintiffs claims challenge conduct arguably within the realm of the prison’s safety and

security procedures, which is very different than prison medical care because it implicates

different concerns and requires additional deference to prison administrators.

Because the plaintiff's claim arises in a new context, this Court must determine

whether special factors instruct against recognizing a new Bivens action. Hernandez, 140

S.Ct. at 743. Abbasi demonstrates that alternatives may restrict the Judiciary’s need to

create a new damages remedy. See id. at 1865 (“[T]he existence of alternative remedies

usually precludes a court from authorizing a Bivens action.”). This is true even where that

alternative provides incomplete relief or no relief at all. [d. at 1858 (citations omitted); Bush

v. Lucas, 462 U.S. 367, 385-88 (1983) (creation of a Bivens remedy does not hinge on

whether an alternative, existing process offers “complete relief for the plaintiff’); Wilkie v.

Robbins, 551 U.S. 537, 550 (2007).

Congress specifically created an alternative process for prisoners to address

grievances when it passed the Prison Litigation Reform Act (“PLRA”) to limit prisoner

litigation. Montcalm Pub. Corp. v. Commonwealth of Va., 199 F.3d 168, 171 (4th Cir.

1999), Woodford v. Ngo, 548 U.S. 81, 94 (2006). The PLRA reflects a legislative

determination that “this country needs ... fewer and better prisoner [law] suits.” McLean

v. United States, 566 F.3d 391, 403 (4th Cir. 2009) (quoting Jones v. Bock, 549 U.S.

199, 203 (2007)). The PLRA seeks to limit inmate litigation and to remove federal district

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courts from the daily operation of prisons. McLean, 566 F.3d at 403 (citations omitted).

Accordingly, the PLRA created an administrative process that empowers a prisoner to

voice concerns about his or her confinement. Woodford, 548 U.S. at 94; See 28 CFR

§§ 542.10-542.19. Specifically, the BOP administrative grievance process “allow[s] an

inmate to seek formal review of any aspect of his/her own confinement.” 28 CFR §

542.10(a) (emphasis added). Where an inmate is not satisfied with how the staff at his

correctional facility responds to his concerns, the inmate can appeal his grievance through

several additional levels of review outside of his correctional facility. See 28 CFR §§

542.13-542.15.

Therefore, the plaintiff had alternative methods to pursue his allegations. In fact,

many courts have explicitly recognized that the BOP’s administrative remedy program is

an alternative process that precludes a Bivens remedy. See Begay v. Leap, 2019 WL

1318410, at *3 (N.D. Tex. Feb. 26, 2019) (citations omitted); Brunson v. Nichols, 2018

WL 7286410, at *3 (W.D. La. Dec. 7, 2018) (citing Vega v. United States, 881 F.3rd 1146

(9th Cir. 2018)); Gonzalez v. Hasty, 269 F.Supp.3d 45, 60 (E.D. N.Y. 2017); Andrews v.

Miner, 301 F.Supp.3d 1128 (N.D. Ala. Aug. 25, 2017) (Coogler, J.); Mohammed v.

Gherke, 2018 WL 1334936, at *4 (S.D. Ind. Mar. 5, 2018); Ashford v. Travesio, 2018

LEXIS 18500, at *12 (D. Ariz. Feb 2, 2018); Buenrostro v. Fajardo, 2017 WL 6033469,

at *3 (E.D. Cal. Dec. 5, 2017); Crowder v. Jones, 2017 WL 5889717, at *3 (S.D. Ind. Nov.

29, 2017).

Regardless of whether an alternative remedy exists, a Bivens remedy should not

be extended where “there are ‘special factors compelling hesitation in the absence of

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affirmative action by Congress.” Abbasi, 137 S.Ct. at 1857 (quoting Carlson, 446 U.S. at

18). Although the Supreme Court has not defined what constitutes “special factors

counseling hesitation,” the Court has observed that “[t]he necessary inference... is 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. Put simply, “a factor must cause a court to hesitate

before answering that question in the affirmative.” Id. at 1858. “[L]egislative action

suggesting that Congress does not want to afford a damage remedy is itself a factor

counseling hesitation.” Id. at 1865. The Abbasi Court explained that since Congress did

not provide for a stand-alone damages remedy against federal jailers when it passed the

PLRA, “[iJt could be argued that this suggests Congress chose not to extend the Carlson

damages remedy to cases involving other types of prisoner mistreatment.” Id. The

Supreme Court explained as follows:

Some 15 years after Carlson was decided, Congress passed the

[PLRA] of 1995, which made comprehensive changes to the way

prisoner abuse claims must be brought in federal court. See 42 U.S.C.

1997e. So it seems clear that Congress had specific occasion to

consider the matter of prisoner abuse and to consider the proper way

to remedy those wrongs.

Id.

Additionally, the Supreme Court has stated that “courts are ill-equipped to deal with

the increasingly urgent problems of prison administration and reform.” Turner v. Safely,

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482 U.S. 78, 84 (1987) (citation omitted). The Supreme Court explained that “[rjlunning a

prison is an inordinately difficult undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly within the province of the legislative

and executive branches of government.” Id. Since prison administration is a task that has

been committed to the responsibility of the legislative and executive branches of

government, the Supreme Court has stated that “separation of powers concerns counsel

a policy of judicial restraint.” Id. 482 US at 85, see also Hernandez, 140 S.Ct. at 743 (“We

have not attempted to ‘create an exhaustive list’ of factors that may provide a reason not

to extend Bivens, but we have explained that ‘central to [this] analysis’ are ‘separation-of-

powers principles.””). Therefore, the foregoing supports a finding that Congress has been

active in creating legislation regarding prisoner litigation and such causes the Court

hesitation as to expanding Bivens to the plaintiff's Fourth and Fifth amendment claims.

See Muhammad v. Gehrke, 2018 WL 1334936, at *4 (S.D. Ind. Mar. 15, 2018) (finding

Congress has been active in the area prisoner’s rights, and its actions do not support the

creation of a new Bivens claim). Gonzalez, 269 F.Supp.3d at 61 (same).

In addition, the Abbasi Court explained that “the decision to recognize a damage

remedy requires an assessment of his impact on governmental operations systemwide.”

Abbasi, 137 U.S. at 1858. The impact on governmental operations systemwide include

“the burdens on Government employees who were sued personally, as well as the

projected costs and consequences to the Government itself when the tort and monetary

liability mechanisms of the legal systems are used to bring about the proper formulation

and implementation of public policies.” Id. The Supreme Court has emphasized that

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“Congress is in a far better position than a court to evaluate the impact of a new species

of litigation’ against those who act on the public’s behalf.” Wilkie 551 U.S. at 562 (quoting

Bush, 462 U.S. at 389). In Abbasi, the Supreme Court explained further:

Claims against federal officials often create substantial costs, in the

form of defense and indemnification. Congress, then, has a substantial

responsibility to determine whether, and the extent to which, monetary

and other liability should be imposed upon individual officers and

employees of the Federal Government. In addition, the time in

administrative costs attendant upon intrusions resulting from the

discovery and trial process are significant factors to be considered.

Abbasi, 137 U.S. at 1856. The Court notes that expanding Bivens to allow such Fourth

and Fifth amendment claims by inmates clearly would result in an increase of suits by

inmates. This increase in suits would result in an increase litigation costs to the

Government and impose a burden upon individual employees to defend such claims. As

stated above, Congress recognized the need of reducing costs related to frivolous lawsuits

by prisoners when it enacted the PLRA. Therefore, the costs of defending such litigation

against the need for damages as a remedy to protect a prisoner’s rights must be balanced

if Bivens liability is extended to Fourth and Fifth Amendment claims. This is exactly the

type of activity that the Supreme Court determined in Abbasi is better left to the legislative

branch.

Therefore, the Court finds that there are special factors counseling hesitation as to

the expansion of Bivens to the plaintiff's Fourth or Fifth Amendment claim. Accordingly,

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the Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, will be granted

as to these claims.

V. CONCLUSION

For the reasons set forth above, Defendants’ Motion to Dismiss, or Alternatively,

Motion for Summary Judgment [Doc. 39] be GRANTED in PART and DENIED in PART,

and the plaintiff's Complaint [Doc. 1] be DENIED and DISMISSED with prejudice except

for his claim against B. Gainer as it relates to his excessive force claim.

It is so ORDERED.

The Clerk is directed to mail a copy of this Order to the pro se plaintiff by certified

mail, return receipt requested, to his last known address as shown on the docket, and to

transmit a copy electronically to all counsel of record.

DATED: June /& 2022.

PRESTON BAILEY 2

UNI ATES DISTRICT JUDGE

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