Tolbert, Jr. v. Nash et al

Filing 63

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 61 Report and Recommendations, granting 55 Motion to Dismiss, filed by Associate Warden Carlton, Warden Nash, Disciplinary Officer Sawyer, Case Manager Pullum, Disciplinary Officer Epps, J.A. Keller, Unit Manager Curry, Associate Warden Jenkins, Captain Crawford. Signed by Chief District Judge Daniel P. Jordan, III on 5/15/2020 (PG)

Case 3:18-cv-00128-DPJ-JCG Document 63 Filed 05/15/20 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
RICKEY WAYNE TOLBERT, JR.

PLAINTIFF

V.

CIVIL ACTION NO. 3:18-CV-128-DPJ-JCG

WARDEN NASH, ET AL.

DEFENDANTS
ORDER

This Bivens case is before the Court on Defendants’ Motion to Dismiss [55] and the
Report and Recommendation (R&R) [61] of United States Magistrate Judge John C. Gargiulo.1
Plaintiff Rickey Wayne Tolbert, Jr., filed timely Objections [62], but for the following reasons,
the Court adopts the R&R as the Court’s opinion.
In his well-written and reasoned R&R, Judge Gargiulo chronicled Tolbert’s numerous
grievances against the named defendants. In basic terms, Tolbert says he was unjustly kept in
the Special Housing Unit (SHU) at FCI Yazoo City based on disciplinary rulings that he
disputes. Tolbert claims that he was discriminated against based on his disciplinary history and
that the decisions related to his time in the SHU violated his right to due process, the right to
freely exercise his religion, the protection against double jeopardy, and the right to be free from
cruel and unusual punishment. He also asserts that while in the SHU, he missed his regularly
scheduled medical appointments.
Judge Gargiulo recommended dismissal of Tolbert’s claims as follows: (1) dismissal
without prejudice of the claims against Defendants Jackson, Martin, and Martinez, as Tolbert

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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“stated that he wished to voluntarily dismiss these Defendants,” R&R [61] at 4;2 (2) dismissal of
the official-capacity claims on the basis of sovereign immunity, id. at 5–6; (3) denial of Tolbert’s
request for expungement as not cognizable in a Bivens action, id. at 6; (4) dismissal of Tolbert’s
double-jeopardy claim for failure to state a claim, id.; (5) dismissal of Tolbert’s Eighth
Amendment inadequate-medical-care claim because Tolbert “did not state which Defendants
denied his requests for medical care or when the denials occurred,” id. at 12; and (6) dismissal of
Tolbert’s remaining Bivens claims as outside the historical context in which Bivens has
previously been applied, id. at 6–11.
In his Objections, Tolbert fails to directly address several of the claims for which Judge
Gargiulo recommended dismissal. He does, however, attempt to address the claims related to his
stay in the SHU and his medical claims. As to the first,
Tolbert contends that defendants “violated” his due process, the double jeopardy
clause, and the cruel and unusual punishment clause[ b]y agreeing as an
administration to keep Tolbert in SHU, after he was approved by U.S.P.
administration to be released after serving his detention time under the 196
violation.
Objs. [62] at 4.
Although Tolbert attempts to better define his SHU-related claims in his Objections, he
never addresses Judge Gargiulo’s legal reason for dismissing them. As the magistrate judge
noted, “expanding the Bivens remedy” to cases where it has not been recognized “is now a
‘disfavored’ judicial activity.” R&R [61] at 7 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857
(2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009))). Indeed “for almost 40 years, [the

2

In his Objections, Tolbert also stated that Defendants Sawyer and Epps may be dismissed.
Objs. [62] at 6. Those Defendants were entitled to dismissal anyway, so the claims against them
are dismissed with prejudice.
2

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United States Supreme Court has] consistently rebuffed requests to add to the claims allowed
under Bivens.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020).
Tolbert’s claims related to the time he spent in the SHU would constitute new claims
under Bivens. Id. And Judge Gargiulo’s analysis of whether “special factors counsel[]
hesitation” in extending Bivens to Tolbert’s claims was thorough and sound. Bivens, 403 U.S. at
396; see Cantú v. Moody, 933 F.3d 414, 421–22 (5th Cir. 2019) (explaining that Supreme Court
“has admonished us to exercise ‘caution’ in the ‘disfavored judicial activity’ of extending Bivens
to any new set of facts” (quoting Ziglar, 137 S. Ct. at 1857)). Other than the medical-care issue
discussed next, the claims related to Tolbert’s confinement in the SHU are not recognized Bivens
claims.
Assuming Bivens would recognize Tolbert’s alleged medical-care claim—which is not
necessarily so—he has never sufficiently pleaded an Eighth Amendment violation. As noted in
the R&R, Judge Gargiulo gave Tolbert an opportunity to provide the necessary facts after his
Complaint fell short. See R&R [61] at 12. Tolbert responded to that Order, but he failed to offer
more than conclusory assertions. Id.
His Objections are no better. Tolbert does name Defendant Crawford as the one who
denied his medical care, asserting that the stay in the SHU prevented his regularly scheduled
checkups for his medical conditions. Objs. [62] at 6. But beyond that, Tolbert offers no factual
averments that would present a plausible claim. Instead, Tolbert states that he “presented as
evidence to the court that he filed several complaints through the Bureau of Prisons Remedy
Process” that “were clearly ignored.” Id. at 2; see also id. at 1–2 (referencing Eighth
Amendment right to “receive adequate medical care”); id. at 6 (“Tolbert was denied proper
medical attention being a chronic care inmate for high blood pressure and kidney disease which

3

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are all life threaten[ing] medical issues.”). The Court has reviewed the documents Tolbert
submitted in support of his claim, and none of the complaints indicate that he sought but was
denied medical attention by any defendant. Instead, they are almost exclusively focused on his
dissatisfaction with his continued confinement in the SHU. He has not stated a plausible claim.3
The Court has considered all arguments. Those not addressed would not have changed
the outcome. For the foregoing reasons, the Court adopts the Report and Recommendation [61]
as its opinion. Defendants’ Motion to Dismiss [55] is granted. A separate judgment will be
entered in accordance with Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 15th day of May, 2020.
s/ Daniel P. Jordan III
CHIEF UNITED STATES DISTRICT JUDGE

3

Even assuming Tolbert did miss his regular checkups, he was seen by a doctor during his time
in the SHU. R&R [61] at 13. Those facts would fail to state an Eighth Amendment claim
because delay in medical care “can only constitute an Eighth Amendment violation if there has
been deliberate indifference [that] results in substantial harm.” Easter v. Powell, 467 F.3d 459,
464 (5th Cir. 2006) (quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)). There are
no such allegations.
4