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Prisons & Jails – Constitutional – First Amendment – No Bivens Claim – Eighth Amendment – Medical Treatment

Although the plaintiff-prisoner contends that he was denied access to telephone and mail to use to contact attorneys and family members to report a crime committed against him by prison officials, and although he contends that he has no alternative remedies available, the court declines to allow plaintiff’s First Amendment claim to proceed under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971), and its progeny.

Defendants’ motion for summary judgment is denied with respect to plaintiff’s Eighth Amendment claim for deliberate indifference to serious medical needs during his time in the special housing unit (SHU), his Eighth Amendment excessive force claim, and his claims under the Federal Tort Claims Act for assault and battery, ordinary negligence, and gross negligence. The court recommits related claims for supervisory liability to the magistrate judge. Summary judgment is granted as to plaintiff’s remaining claims.

Under Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the court must determine whether this case is “different in a meaningful way from previous Bivens cases decided by [the] Court.” If so, the context is new and the court must then apply a “special factors analysis” before allowing a damage suit to proceed.

The Supreme Court has only recognized a Bivens remedy in the context of the Fourth, Fifth, and Eighth Amendments. Upon review, the court finds that plaintiff’s claim is unlike the Fourth Amendment unreasonable seizure claim at issue in Bivens, the gender discrimination claim in Davis v. Passman, 442 U.S. 228 (1979), or the deliberate indifference claim in Carlson v. Green, 446 U.S. 14 (1980).

Plaintiff argues that he has no alternative remedy for a violation of his constitutional rights; however, plaintiff’s alternative remedies include the Bureau of Prisons administrative grievance process and the FTCA. Moreover, Congress’s action in this area in light of the Prison Litigation Reform Act and otherwise not only demonstrates the existence of alternative remedies, but also causes pause for the judicial creation of additional damage remedies.

The court concludes that plaintiff does have other avenues for relief, and there are significant economic and governmental concerns with recognizing an implied cause of action in this instance. For these reasons, the court declines to find an implied Bivens cause of action for plaintiff’s claim of denial of access to courts under the First Amendment.

Medical Treatment

While plaintiff was in the SHU, defendant Dr. Berrios noted that he had “one small internal hemorrhoid” with slight swelling and no bleeding.

Plaintiff’s allegations that he was experiencing pain are not inconsistent with Dr. Berrios’s notes from her examination. Accordingly, the court finds a genuine issue of material fact exists with respect to whether plaintiff’s condition was sufficiently serious and whether some defendants were aware of plaintiff’s condition.

Nevertheless, plaintiff’s medical malpractice claims under the FTCA fail because he did not provide an affidavit of an expert witness specifying at least one negligent act or omission and the factual basis for each claim.

Yet to the extent plaintiff’s claims could be construed as alleging that he requested and was denied medical care while in the SHU, this allegation would raise a claim for regular negligence. Because plaintiff has demonstrated a duty of care, there remains a genuine issue of material fact with respect to whether defendants breached that duty and whether the breach proximately caused plaintiff’s injury.

Given that the court has found a genuine issue of material fact exists as to whether defendants exhibited deliberate indifference and negligence regarding plaintiff’s medical care while he was housed in the SHU, the court also finds that a genuine issue of material fact remains with respect to gross negligence.

Motion granted in part, held in abeyance in part, and denied in part.
Clemmons v. United States (Lawyers Weekly No. 002-204-18, 20 pp.) (Donald Coggins, J.) 0:16-cv-01305. Sean Christopher Clemmons, pro se; Barbara Murcier Bowens and Christopher Gibbs for defendants. D.S.C.

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