Outler v. Davis

Filing 43

ORDER denying Plaintiff's 42 MOTION to Amend/Correct 1 Complaint. Signed by Magistrate Judge Shiva V Hodges on 2/17/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Larry D. Outler,
Plaintiff,
vs.
Shannon Davis, Correctional Officer,
Defendant.

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C/A No.: 1:15-2412-BHH-SVH

ORDER

This matter comes before the court on the motion of Larry D. Outler (“Plaintiff”)
to amend his complaint. [ECF No. 42]. Pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(d) (D.S.C.), all pretrial proceedings have
been assigned to the undersigned.
Plaintiff seeks to amend his complaint to convert his case from a Bivens action
into an action brought pursuant to 42 U.S.C. § 1983. [ECF No. 42 at 1–2]. He also seeks
to add the warden and the bureau of prisons as defendants, “as they are directly
responsible for the day to day operations and serve as the authority over all correctional
officers.” Id. at 2. “[L]eave [to amend] shall be freely given when justice so requires.”
Fed. R. Civ. P. 15(a). “A motion to amend should be denied only when the amendment
would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.” HCMF Corp. v. Allen, 238 F.3d 273,
276 (4th Cir. 2001) (internal quotation marks omitted).
Plaintiff’s motion to amend would be futile. Plaintiff cannot bring his claim
pursuant to § 1983 because he does not allege defendant Shannon Davis acted pursuant to

state law. Bivens is the case establishing, as a general proposition, that victims of a
constitutional violation perpetuated by a federal actor may sue the offender for damages
in federal court despite the absence of explicit statutory authorization for such suits.”
Carlson v. Green, 446 U.S. 14, 18 (1980); see also Holly v. Scott, 434 F.3d 287, 289 (4th
Cir. 2006). Therefore, Plaintiff was correct to bring his claim pursuant to Bivens instead
of § 1983.
Plaintiff’s proposed amendment would also be futile to the extent that he seeks to
sue the warden and the bureau of prisons based on supervisory liability. “Because
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). As the Iqbal
Court observed, because masters do not answer for the torts of their servants in Bivens
and § 1983 cases, “the term ‘supervisory liability’ is a misnomer.” Id. at 677. Indeed, the
dissent in Iqbal opined that “[l]est there be any mistake, in these words the majority is not
narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability
entirely.” Id. at 693 (Souter, J., dissenting).
For the foregoing reasons, the undersigned denies Plaintiff’s motion to amend his
complaint.
IT IS SO ORDERED.

February 17, 2016
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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