Dowling v. United States of America et al

Filing 139

ORDER denying 61 Motion for Preliminary Injunction; denying 61 Motion for TRO; granting in part and denying in part 87 Motion to Dismiss; denying 120 Motion for TRO; denying 120 Motion for Preliminary Injunction; adopting Report and Recommendations re 127 Report and Recommendation. Signed by Honorable David C Norton on February 12, 2018.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
VERNON BRENT DOWLING,

)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA; OFFICER )
WALKER; OFFICER PLATTS; LT.
)
MERRILL; DOJ; FBOP; DIRECTOR
)
SAMUELS (FBOP); FEDERAL EMPLOYEES;)
HEALTH SERVICES STAFF; WARDEN
)
MANSUKHANI; MS. WILLIAMS,
)
)
Defendants.
)
_______________________________________)

Civil No. 0:16-3468-DCN
ORDER

This matter is before the court on Magistrate Judge Paige J. Gossett’s Report
and Recommendation (“R&R”), ECF No. 127, that the court grant plaintiff Vernon
Brent Dowling’s (“Dowling”) motions for preliminary injunctions and temporary
restraining orders, ECF Nos. 61 and 120, and grant in part and deny in part
defendants’ motion to dismiss, ECF No. 87. For the reasons set forth below, the court
adopts the R&R, denies Dowling’s motions, and grants in part and denies in part
defendants’ motion to dismiss. Additionally, the court adopts those portions of the
R&R which are not inconsistent with this order.
I. BACKGROUND
The R&R ably recites the relevant facts, and it is unnecessary to review the
details of the complaint. In short, Dowling is currently an inmate at the Federal
Correctional Institution Beckley in West Virginia, but during the events at hand was
an inmate at the Federal Correctional Institution Estill (“FCI Estill”), located in South

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Carolina. Dowling contends that on July 26, 2017, his housing unit at FCI Estill
flooded with sewage. Prison staff evacuated Dowling handcuffed from the housing
units during the flooding. While his cellmate was escorted through the flood by the
prison staff, the staff ordered Dowling to walk through the sewage without assistance.
While he was walking through the sewage, Dowling slipped and fell in the sewage.
Two prison staff attempted to “snatch” Dowling up after he fell despite his insistence
that he was in pain. After his fall, Dowling was placed in a different cell and
contends that he was denied medical care and hygiene products until the following
day. Despite repeated requests for treatment, Dowling was denied treatment.
Dowling was eventually given ibuprofen, and upon complaining to the warden of FCI
Estill was told “if it’s not on paper it never happened.” Dowling also claims he has
received “inadequate treatment” for the injuries sustained during his fall with
psychiatric drugs, which have caused him severe depression and mental anguish.
Dowling filed this pro se action pursuant to 42 U.S.C. § 1983 on October 16,
2016. He alleges that defendants are responsible for negligence, and requests to be
transferred to a federal facility that is better equipped to treat his injuries, and he also
seeks damages.
Dowling filed separate motions for preliminary injunctions and temporary
restraining orders on June 19, 2017 and November 6, 2017. On November 20, 2017,
defendants filed their opposition to his motion for a temporary restraining order and
preliminary injunction. On August 11, 2017, the defendants filed a separate motion
to dismiss. Plaintiff responded to the motion on October 30, 2017.

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This case is now before the court on the magistrate judge’s R&R, which
recommends that the court: (1) deny Dowling’s motion for a temporary restraining
order and preliminary injunction, and (2) grant in part and deny in part defendants’
motion to dismiss. ECF No. 127 at 1. Dowling filed objections to the R&R on
December 18, 2017. ECF No. 129. Defendants filed a reply on December 21, 2017,
ECF No. 132, and Dowling filed a sur-reply on January 2, 2018. ECF No. 135. The
matter is now ripe for the court’s review.
II. STANDARD
A.

De Novo Review

This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
636(b)(1). The court may adopt the portions of the R&R to which the petitioner did
not object, as a party’s failure to object is accepted as agreement with the conclusions
of the magistrate judge. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The
recommendation of the magistrate judge carries no presumptive weight, and it is this
court’s responsibility to make a final determination. Mathews v. Weber, 423 U.S.
261, 270–71 (1976).
B.

Pro Se Plaintiff

Plaintiff is proceeding pro se in this case. Federal district courts are charged
with liberally construing complaints filed by pro se litigants to allow the development
of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9–10 (1980). Pro
se complaints are therefore held to a less stringent standard than those drafted by
attorneys. Id. Liberal construction, however, does not mean that the court can ignore

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a clear failure in the pleading to allege facts that set forth a cognizable claim. See
Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 390–91 (4th Cir. 1990).
C.

Motion to Dismiss

A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6)
. . . does not resolve contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”). To be legally sufficient, a pleading must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. 8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears
certain that the plaintiff can prove no set of facts that would support his claim and
would entitle him to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). When considering a Rule 12(b)(6) motion, the court should accept all wellpleaded allegations as true and should view the complaint in a light most favorable to
the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs.,
Inc., 7 F.3d at 1134. “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “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.” Id.
D.

Preliminary Injunction

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“The purpose of a preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be held.” United States v. South
Carolina, 840 F. Supp. 2d 898, 914 (D.S.C. 2011) (quoting Univ. of Tex. v.
Camenisch, 451 U.S. 390, 395 (1981)). “A plaintiff seeking a preliminary injunction
must establish that he is likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of the equities
tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). As the Supreme Court has noted, a
preliminary injunction is “an extraordinary remedy that may only be awarded upon a
clear showing that the plaintiff is entitled to such relief.” Id. at 22.
III. DISCUSSION
Dowling objects to the R&R’s recommendation that this court grant
defendants’ motion to dismiss with respect to Dowling’s claim under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
because Dowling had not exhausted his available administrative remedies, pursuant to
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a) (2012). The court
denies his objection and adopts the R&R in full. 1
Under the PLRA, a prisoner must exhaust all of his administrative remedies to
pursue a claim under Bivens. See 42 U.S.C. § 1997e(a) (“No action shall be brought

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The government filed no objections. Dowling filed no other objections to
the R&R, stating that “[t]he remainder of [the R&R] is approved by Plaintiff.” ECF
No. 129 at 3. The court has reviewed those sections of the R&R that remain
unchallenged for clear error. Finding none, the court adopts the magistrate judge’s
recommendation that plaintiff’s motion for preliminary injunction be denied, and that
defendants’ motion to dismiss be denied as to Dowling’s negligence claim pursuant to
the FTCA against defendant United States.
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with respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”). The Supreme Court has
repeatedly rejected attempts by plaintiffs to deviate from the textual mandate
provided by 42 U.S.C. § 1997e(a), requiring exhaustion of all “available”
administrative remedies. Porter v. Nussle, 534 U.S. 516, 520 (2002). For a plaintiff
to satisfy the exhaustion requirement, they must have availed themselves of every
available administrative remedy. Id. A plaintiff is required to use “all steps that the
agency holds out,” and to do so properly. Woodford v. Ngo, 548 U.S. 81, 90 (2006).
The burden is on the defendant to establish that a plaintiff failed to exhaust all
available administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).
Defendants have met that burden here.
BOP has a multi-faceted administrative grievance process. An inmate first
can file a Form BP-8, which is an informal resolution request. Then, if the grievance
cannot be informally resolved, the inmate may file a Form BP-9, which is a formal
“Administrative Remedy Request” to the Warden, within twenty calendar days
following the date of the alleged incident that gave rise to the complaint. 28 C.F.R. §
542.13, 542.14(a). Next, if the inmate is not satisfied with the result, he can appeal to
the Regional Director within twenty calendar days of the Warden’s response by filing
a Form BP-10. 28 C.F.R. § 542.15. And finally, if the inmate is still dissatisfied, he
may appeal the Regional Director’s decision to the General Counsel within thirty
calendar days from receiving the response by filing a Form BP-11. Id.

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Dowling has not exhausted the administrative remedies available to him. 2
Dowling failed to pursue the initial step of first filing an informal resolution, using
Form BP-8. Instead, he pursued a formal administrative remedy, and was
subsequently denied. He was provided the reason for the denial—that he failed to
first attempt an informal resolution. However, rather than correcting the issue,
Dowling appealed his rejection to the BOP’s Regional and Central Offices. Both of
the offices rejected his appeal for the same reason as his original denial. Thus,
defendants have satisfied their burden by showing plaintiff failed to exhaust the
administrative remedies available to him. Accordingly, the court grants defendants’
motion to dismiss.

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In Ross v. Blake, 136 S. Ct. 1850 (2016), the court outlined the following
three nonexhaustive circumstances in which an administrative remedy “although
officially on the books, is not capable of use to obtain relief.” First, “an
administrative procedure is unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved inmates.” 136 S. Ct. at 1859.
Second, “an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use. In this situation, some mechanism exists to provide relief,
but no ordinary prisoner can discern or navigate it.” Id. Finally, the administrative
process is unavailable “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860. There are no allegations here that the Federal Bureau of
Prisons (“BOP”) utilized an administrative remedy that was “officially on the books”
but “not capable of use to obtain relief.” Ross, 136 S. Ct. at 1853.
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IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the R&R in full, DENIES
Dowling’s motions for preliminary injunctions, and GRANTS IN PART AND
DENIES IN PART defendants’ motion to dismiss.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

February 12, 2018
Charleston, South Carolina

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