Washington v. United States et al

Filing 191

OPINION AND ORDER RULING ON REPORT AND RECOMMENDATION: The Report (ECF No. 172 ) of the Magistrate Judge is accepted and adopted herein, with the exception of section III.A.2. ("Exhaustion of RA Claims"). Defend ants' Motion to Dismiss the Second Amended Complaint (ECF No. 144 ) is GRANTED in part and DENIED in part. The motion is GRANTED without prejudice as to Defendants Mosley, Barnes, Joyner, Cruz, Meeks, Blocker, Fonte, Bryan, Garcia, Massa, and Harvey. The motion is DENIED as to Defendants BOP, Hurwitz, Keller, Lepiane, Ulmer, and Loranth. Plaintiff has offered to partially dismiss without prejudice Counts One, Two, and Six as to Hurwitz and Keller, should the Court find that those Count s are proper against the BOP. (See ECF No. 149 at 2 n.2.) The Court finds that it has jurisdiction over the itemized claims against the BOP, and Defendants Hurwitz and Keller are accordingly dismissed as party defendants without prejudice. Therefore, Defendants' Motion to Dismiss is DENIED as to Defendants BOP, Lepiane, Ulmer, and Loranth, and the case will proceed as to them. IT IS SO ORDERED. Signed by Honorable Bruce Howe Hendricks on 3/26/2019. (prou, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Burl Washington,

)
)
Plaintiff, )
vs.
)
)
Federal Bureau of Prisons; Hugh J.
)
Hurwitz; J. A. Keller; Bonita S. Mosley;
)
Nanette Barnes; Hector Joyner;
)
Maureen Cruz; B. J. Meeks; Rex
)
Blocker; Donardo Fonte; Tammara
)
Bryan; Richard Lepiane; David Garcia;
)
Eve Ulmer; Estate of Victor Loranth;
)
David Massa; and Anthony Harvey,
)
)
Defendants. )
)

Civil Action No. 5:16-cv-3913-BHH

OPINION AND ORDER

Plaintiff Burl Washington (“Plaintiff”), proceeding pro se at the time, brought this
civil action pursuant to 42 U.S.C § 1983. (ECF. No. 1.) By way of Court Order, Plaintiff
was appointed counsel on April 11, 2017, and he has received legal representation since
that time. (See ECF No. 43.) In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02 for the District of South Carolina, this matter was referred to United States
Magistrate Judge Kaymani D. West for pretrial handling. The matter is now before this
Court for review of the Report and Recommendation (“Report”) issued by the Magistrate
Judge on January 3, 2019. (ECF No. 172.) In her Report, the Magistrate Judge
recommends that the Court grant in part Defendants’ Motion to Dismiss the Second
Amended Complaint (ECF No. 144), and deny it in part. (See ECF No. 172 at 40–41.)
The Report sets forth in detail the relevant facts and standards of law, and the Court

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incorporates them here, summarizing below only in relevant part.1
BACKGROUND
Plaintiff is a legally blind federal inmate, previously housed at FCI-Williamsburg,
FCI-Estill, and FCI-Edgefield, all within the geographical coverage of this Court. Plaintiff
suffers from primary open-angle glaucoma (“POAG”) and related intraocular pressure
(“IOP”). He is currently housed at FCI-Butner, in Butner, North Carolina. From December
2016 through May 2018, Plaintiff was transferred to various Federal Bureau of Prisons
(“BOP”) facilities nine times. This case was filed pro se while Plaintiff was housed in South
Carolina.
Plaintiff sues the BOP and sixteen (16) federal officials and employees, asserting
that he has been discriminated against because of his disability (“Rehabilitation Act
claim”) and that he has been subjected to cruel and unusual punishment due to BOP’s
inconsistent medical care and failure to provide him with the medical and personal
assistance that he needs because of his blindness (“Injunctive Relief claim” and “Bivens
claims”). Plaintiff seeks declaratory and injunctive relief from Defendants BOP, Hurwitz,
and Keller (Counts One and Two), and damages and declaratory and injunctive relief from
the remaining Defendants (Counts Three, Four, and Five). In Count Six, Plaintiff seeks a
preliminary injunction against Defendants BOP, Hurwitz, and Keller. (See ECF No. 128.)
Defendants filed their Motion to Dismiss the Second Amended Complaint on July
24, 2018. (ECF No. 144.) Plaintiff responded on August 14, 2018 (ECF No. 149), and
Defendants replied on August 27, 2018 (ECF No. 160). Magistrate Judge West issued

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As always, the Court says only what is necessary to address the parties objections against the already
meaningful backdrop of a thorough Report and Recommendation by the Magistrate Judge; exhaustive
recitation of law and fact exist there.

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her Report on January 3, 2019. (ECF No. 172.) Plaintiff and Defendants filed their
respective objections on February 19, 2019. (ECF Nos. 184 & 185.) Plaintiff filed a reply
to Defendants objections on March 5, 2019. (ECF No. 188.) The matter is ripe for
consideration and the Court now issues the following ruling.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court. The
recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). In
the absence of a timely filed objection, a district court need not conduct a de novo review,
but instead must “only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005).
DISCUSSION
A. Exhaustion of Administrative Remedies
After surveying the conflicting case law of various federal appellate courts
regarding whether the affirmative defense of exhaustion of administrative remedies is
properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12, or
whether it must be raised through a motion for summary judgment, the Magistrate Judge
concluded that the balance of persuasive authority counsels against allowing a claim of

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a lack of administrative exhaustion to be raised under Rule 12(b)(1), which permits
reference to outside documentation. (ECF No. 172 at 6–11.) Moreover, the Magistrate
Judge found that lack of administrative exhaustion does not implicate personal jurisdiction
or venue, so Defendants’ Prison Litigation Reform Act (“PLRA”)/Bivens exhaustion
defenses are not properly raised under Rule 12(b)(2) or (3). (Id. at 11.) With respect to
Rule 12(b)(6), the Magistrate Judge correctly noted that outside documentation that was
neither attached to nor incorporated into the pleadings, such as affidavits and non-public
records, may not be considered without converting a Rule 12(b)(6) motion into a motion
for summary judgment under Rule 56. (Id. at 11–12.) “Such a conversion is not
appropriate where the parties have not had an opportunity for reasonable discovery.” E.I.
du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435, 448-49 (4th Cir. 2011) (citation
omitted).
With these principles in mind, the Magistrate Judge concluded that Defendants’
contention that Plaintiff failed to exhaust his administrative remedies with respect to his
Bivens claims (Counts Three and Four) against Defendants who are or were employed
at FCI Edgefield during the relevant time period (Mosley, Barnes, Blocker, Fonte, and
Bryan) is properly considered at this stage because the lack of exhaustion is clear from
the face of the pleadings without resorting to outside documentation. (ECF No. 172 at
12.) Furthermore, the Magistrate Judge found that it was impossible for Plaintiff to have
exhausted his Bivens claims for matters occurring at FCI-Edgefield because those
matters occurred after this lawsuit was already filed, and that the Second Amended
Complaint should be dismissed insofar as it asserts Bivens claims against Defendants
Mosley, Barnes, Blocker, Fonte, and Bryan. (Id.)

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Plaintiff agrees with the Magistrate Judge that he could not have exhausted his
administrative remedies for his time at FCI Edgefield prior to filing his initial Complaint,
but objects to the conclusion that Defendants Mosley, Barnes, Blocker, Fonte, and Bryan
are entitled to dismissal. (ECF No. 184 at 3.) In support, Plaintiff distinguishes his case
from the facts at issue in Woodford v. Ngo, 548 U.S. 81 (2006), arguing that Washington
was “repeatedly subjected to the same or similar conduct by multiple prison officials then
repeatedly transferred without warning to new prison facilities where the same or similar
conduct continued at the hands of the officials and employees at the new prisons.” (Id. at
4.) Plaintiff further argues, “Woodford did not deal with a repeated pattern of conduct or
repeated transfers of the inmate that would interfere with the inmate’s ability to exhaust
his administrative remedies.” (Id. at 5.) Plaintiff contends, “If a strict interpretation of the
PLRA’s administrative exhaustion requirement is adhered to in this scenario, the Court is
effectively requiring that Washington file separate suits for each facility where he was
subject to the same treatment within the same penal system just so he can exhaust his
administrative remedies at each facility.” (Id.)
The Court disagrees and overrules the objection. Plaintiff’s arguments in this
regard imprecisely assert that Defendants’ conduct at each facility where Plaintiff was
housed was “the same.” As Plaintiff himself notes, “The purpose of the PLRA
administrative exhaustion requirement is to place the prison facility on notice of a
prisoner’s claims and give the facility an opportunity to address any grievances regarding
the violations of his federal rights before the prisoner files suit.” (See id. at 4 (citing ArtisBey v. District of Columbia, 884 A.2d 626, 638 (D.C. 2005)).) It is hyperbole to suggest
that Plaintiff would need to file separate lawsuits pertaining to his treatment at each

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facility. There was nothing to stop Plaintiff from completing grievance procedures at FCI
Edgefield in order to give corrections officials notice of the specific problems he was
encountering with his medical treatment at that facility. Plaintiff exhausted his
administrative remedies at FCI Williamsburg prior to filing suit in December 2016 (see
ECF No. 184 at 5), so he was familiar with the grievance process. There also would have
been nothing to stop Plaintiff from amending his pleadings in the instant case to add the
FCI Edgefield Defendants after having given notice to those officials through
administrative means, allowing them a corresponding opportunity to correct the allegedly
deficient medical treatment. Accordingly, the Court finds that this objection is insufficient
to displace the sound reasoning of the Magistrate Judge, and the Bivens claims (Counts
Three and Four) against Defendants Mosley, Barnes, Blocker, Fonte, and Bryan are
dismissed without prejudice for lack of administrative exhaustion.
Next, the Magistrate Judge concluded, “Consideration of Defendants’ assertions
regarding Plaintiff’s exhaustion of administrative remedies for his [Rehabilitation Act]
claim is distinguishable from consideration of PLRA exhaustion because it has been held
that exhaustion of [Rehabilitation Act] claims is jurisdictional.” (ECF No. 172 at 14–15
(citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006); Williams v. Brennan, 320 F.
Supp. 3d 122, 129 (D.D.C. 2018); Howland v. United States Postal Serv., 209 F. Supp.
2d 586, 590 (W.D.N.C. 2002); Roach v. Gates, Nos. 2:07-00136-DCN, 2:07-01574-DCN,
2012 WL 1952680, at *4 (D.S.C. May 30, 2012)).) Therefore, the Magistrate Judge found
that the issue should be considered under Rule 12(b)(1), and that it was appropriate to
rely on outside documents. (Id. at 15.)
Defendants offered the affidavit of Lisa M. Charles, Supervisory Attorney in the

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Equal Employment Office (“EEO”) of the BOP, for the purpose of showing that Plaintiff
failed to comply with 28 C.F.R. § 39.170, which requires prisoners who believe that they
have been subjected to discrimination covered by the Rehabilitation Act to exhaust
Department of Justice (“DOJ”) EEO procedures after having first exhausted BOP
grievance procedures.2 (See ECF No. 144-2.) Citing rulings by sister courts within the
Fourth Circuit and other district courts, the Magistrate Judge found that a federal prisoner
seeking to assert a Rehabilitation Act claim must first exhaust the BOP process and then
exhaust the DOJ EEO process before his administrative remedies will be deemed
exhausted. (Id. at 16–17.) Accordingly, the Magistrate Judge concluded that the Court
lacks subject matter jurisdiction over the Rehabilitation Act claim, and the Motion to
Dismiss Count One of the Seconded Amended Complaint should be granted without
prejudice. (Id. at 17.)
Plaintiff contends that the Magistrate Judge erred by concluding that administrative
exhaustion under the Rehabilitation Act is jurisdictional, and thus objects to consideration
of dismissal of Count One pursuant to Rule 12(b)(1). (ECF No. 184 at 7–8.) The Court
agrees and sustains the objection.
First, the cases cited in the Report for the proposition that “exhaustion of

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The relevant language of § 39.170 is permissive, not mandatory: “Any person who believes that he or she
has been subjected to discrimination prohibited by this part may by him or herself or by his or her authorized
representative file a complaint with the Official. Any person who believes that any specific class of persons
has been subjected to discrimination prohibited by this part and who is a member of that class or the
authorized representative of a member of that class may file a complaint with the Official.” 28 U.S.C. §
39.170(d)(1)(i) (emphasis added). However, in combination with the requirements of the PLRA, courts have
construed exhaustion of the DOJ EEO procedures as a necessary second step after exhaustion of BOP
administrative complaint procedures in the context of prisoner Rehabilitation Act claims, because the DOJ
EEO procedures are an “available” remedy: “No action shall be brought 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.” 42 U.S.C. §
1997e(a) (emphasis added).

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[Rehabilitation Act] claims is jurisdictional” all deal with employment lawsuits, wherein
employees complained that their employer discriminated against them on the basis of a
disability. In Spinelli, the Court of Appeals for the District of Columbia Circuit stated, “The
district court . . . should have dismissed Spinelli’s Rehabilitation Act claim for lack of
jurisdiction on the ground that he failed to exhaust his administrative remedy. The Act
limits judicial review to employees ‘aggrieved by the final disposition’ of their
administrative ‘complaint.’” 446 F.3d at 162 (quoting 29 U.S.C. § 794a(a)(1)); but see,
Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000) (holding, in the context of an
employment discrimination lawsuit, “that the exhaustion requirement, while weighty, is not
jurisdictional”). Not only was the Rehabilitation Act claim at issue in the Spinelli case an
employment claim, but the statutory provision construed by the Spinelli court pertains to
employment discrimination complaints specifically:
The remedies, procedures, and rights set forth in section 717 of the Civil
Rights Act of 1964 . . . shall be available, with respect to any complaint
under section 791 of this title, to any employee or applicant for employment
aggrieved by the final disposition of such complaint, or by the failure to take
final action on such complaint. In fashioning an equitable or affirmative
action remedy under such section, a court may take into account the
reasonableness of the cost of any necessary work place accommodation,
and the availability of alternatives therefor or other appropriate relief in order
to achieve an equitable and appropriate remedy.
29 U.S.C. § 794a(a)(1) (emphasis added). See also Williams, 320 F. Supp. 3d at 129
(relying on Spinelli, and dismissing Postal Service employee’s Rehabilitation Act claims
for lack of jurisdiction where she filed administrative EEO complaint well after she
commenced the legal action); Howland, 209 F. Supp. 2d at 590 (finding that terminated
Postal Service employee failed to exhaust his administrative remedies where he
abandoned his Merit Systems Protection Board claim and failed to file an EEO complaint;

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dismissing case, including Rehabilitation Act claim, for lack of subject matter jurisdiction);
Roach, 2012 WL 1952680, at *4 (holding that the court lacked jurisdiction over former
Defense Finance and Accounting Service employee’s claim for wrongful termination
because she failed to exhaust grievance procedures detailed in the applicable collective
bargaining agreement and/or to file an EEOC complaint). The prisoner litigation context,
requiring the co-application of PLRA exhaustion requirements—the purpose of which is
to provide prison officials with the opportunity to address prisoner complaints before court
intervention is pursued, see Porter v. Nussle, 534 U.S. 516, 524–25 (2002)—and EEO
exhaustion requirements for Rehabilitation Act claims, is transparently distinct from the
employment litigation context.
Second, the provision of the Rehabilitation Act that enables a private right of action
in the prisoner litigation context does not explicitly condition jurisdiction on the exhaustion
of EEO procedures. See 29 U.S.C. § 794a(a)(2) (“The remedies, procedures, and rights
set forth in title VI of the Civil Rights Act of 1964 . . . shall be available to any person
aggrieved by any act or failure to act by any recipient of Federal assistance or Federal
provider of such assistance under section 794 [Nondiscrimination under Federal grants
and programs] of this title.”). Section 504 of the Rehabilitation Act, the substantive
provision under which Plaintiff brings Count One, also makes no mention of exhaustion
requirements:
No otherwise qualified individual with a disability in the United States, as
defined in section 705(20) of this title, shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or
be subjected to discrimination under any program or activity receiving
Federal financial assistance or under any program or activity conducted by
any Executive agency or by the United States Postal Service. The head of
each such agency shall promulgate such regulations as may be necessary
to carry out the amendments to this section made by the Rehabilitation,
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Comprehensive Services, and Developmental Disabilities Act of 1978.
Copies of any proposed regulation shall be submitted to appropriate
authorizing committees of the Congress, and such regulation may take
effect no earlier than the thirtieth day after the date on which such regulation
is so submitted to such committees.
29 U.S.C. § 794(a). The District of Columbia Circuit has explained the difference between
administrative exhaustion requirements that are jurisdictional and those that are nonjurisdictional in the following manner:
The word “exhaustion” now describes two distinct legal concepts. The first
is a judicially created doctrine requiring parties who seek to challenge
agency action to exhaust available administrative remedies before bringing
their case to court. See generally 2 Richard J. Pierce, Jr., Administrative
Law Treatise § 15.2 (4th ed.2002). We will call this doctrine “nonjurisdictional exhaustion.” Non-jurisdictional exhaustion serves three
functions: “giving agencies the opportunity to correct their own errors,
affording parties and courts the benefits of agencies’ expertise, [and]
compiling a record adequate for judicial review[.]” Marine Mammal
Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409 (D.C. Cir. 1998);
McCarthy v. Madigan, 503 U.S. 140, 145-46, 112 S. Ct. 1081, 1086–87,
117 L.Ed.2d 291 (1992).
Occasionally, exhaustion will not fulfill these ends. There may be no facts
in dispute, see McKart v. United States, 395 U.S. 185, 198 n. 15, 89 S. Ct.
1657, 1665 n.15, 23 L.Ed.2d 194 (1969), the disputed issue may be outside
the agency’s expertise, see id. at 197-98, 89 S.Ct. at 1660-61, or the agency
may not have the authority to change its decision in a way that would satisfy
the challenger’s objections, see McCarthy, 503 U.S. at 147-48, 112 S. Ct.
at 1087-88. Also, requiring resort to the administrative process may
prejudice the litigants’ court action, see id. at 146-47, 112 S. Ct. at 1086-87,
or may be inadequate because of agency bias, see id. at 148-49, 112 S. Ct.
at 1088. In these circumstances, the district court may, in its discretion,
excuse exhaustion if “the litigant’s interests in immediate judicial review
outweigh the government’s interests in the efficiency or administrative
autonomy that the exhaustion doctrine is designed to further.” Id. at 146,
112 S. Ct. at 1086 (quoting West v. Bergland, 611 F.2d 710, 715 (8th
Cir.1979)).
The second form of exhaustion arises when Congress requires resort to the
administrative process as a predicate to judicial review. This “jurisdictional
exhaustion” is rooted, not in prudential principles, but in Congress’ power to
control the jurisdiction of the federal courts. See EEOC v. Lutheran Soc.
Servs., 186 F.3d 959, 963-64 (D.C. Cir. 1999). Whether a statute requires
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exhaustion is purely a question of statutory interpretation. See McCarthy,
503 U.S. at 144, 112 S. Ct. at 1085. If the statute does mandate exhaustion,
a court cannot excuse it. See Shalala v. Illinois Council on Long Term Care,
529 U.S. 1, 13, 120 S. Ct. 1084, 1093, 146 L.Ed.2d 1 (2000).
While the existence of an administrative remedy automatically triggers a
non-jurisdictional exhaustion inquiry, jurisdictional exhaustion requires
much more. In order to mandate exhaustion, a statute must contain
“‘[s]weeping and direct’ statutory language indicating that there is no federal
jurisdiction prior to exhaustion, or the exhaustion requirement is treated as
an element of the underlying claim.” Weinberger v. Salfi, 422 U.S. 749, 757,
95 S. Ct. 2457, 2462, 45 L.Ed.2d 522 (1975); 2 Pierce, Administrative Law
Treatise § 15.3, at 986. We presume exhaustion is non-jurisdictional unless
“Congress states in clear, unequivocal terms that the judiciary is barred from
hearing an action until the administrative agency has come to a decision,”
I.A.M. Nat’l Pension Fund Benefit Plan C v. Stockton Tri Indus., 727 F.2d
1204, 1208 (D.C.Cir.1984).
Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247–48 (D.C. Cir. 2004) (emphasis
added, footnote omitted, modifications in original). “[A]lthough Congress mandated that
all Executive agencies ‘carry out’ the 1978 amendment making section 504 applicable to
‘any program or activity conducted by [the] Executive agency,’ 29 U.S.C. § 794(a),
Congress itself did not mandate exhaustion of the administrative remedies (if any)
contained in the ensuing regulations.” Cooke v. U.S. Bureau of Prisons, 926 F. Supp. 2d
720, 732 (E.D.N.C. 2013) (emphasis added). Accordingly, the Court is not convinced that
Rehabilitation Act exhaustion is “jurisdictional” in the prisoner litigation context, and is
more persuaded that type of exhaustion at issue for prisoners seeking relief under section
504 of the Rehabilitation Act is “non-jurisdictional.”
Moreover, the Court declines to convert the instant Motion to Dismiss into a motion
for summary judgment. Therefore, the Motion to Dismiss the Rehabilitation Act claim
should have been analyzed under Rule 12(b)(6), not Rule 12(b)(1), and Ms. Charles’
affidavit should not have been considered. See, e.g., Occupy Columbia v. Haley, 738

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F.3d 107, 116 (4th Cir. 2013) (“In resolving a motion pursuant to Rule 12(b)(6) or Rule
12(c), a district court cannot consider matters outside the pleadings without converting
the motion into one for summary judgment.”). Plaintiff’s objections are sustained to this
extent, and the remainder of the objections on this issue (see ECF No. 184 at 8) are
overruled as moot. The Court declines to adopt section III.A.2. (“Exhaustion of RA
Claims”) of the Report (ECF No. 172 at 14–17), and denies Defendants’ Motion to Dismiss
as it pertains to Count One because any failure to exhaust administrative remedies is not
apparent on the face of the Second Amended Complaint.3
B. Subject Matter Jurisdiction
With respect to subject matter jurisdiction, the Magistrate Judge first concluded
that if Plaintiff exhausted his administrative remedies, then Plaintiff could properly state a
plausible claim for injunctive relief against the BOP under the Rehabilitation Act. (Id. at
17.) The Report notes that the cases cited by Defendants seeking to undermine the
viability of Plaintiff’s Rehabilitation Act injunction claim “either do not involve the
[Rehabilitation Act] or arose from challenges to agency regulations which is not the type
of [Rehabilitation Act] claim asserted in this case.” (Id. at 18.) Accordingly, the Magistrate
Judge found that the Court possesses subject matter jurisdiction over Count One, only
suggesting dismissal of this claim because of her preceding conclusion that Plaintiff failed
to exhaust his Rehabilitation Act administrative remedies. (See id. at 17–18.)
Defendants do not specifically object to the Magistrate Judge’s conclusion that,
putting aside the administrative exhaustion issue, Count One states a plausible claim to
relief. (See ECF No. 185.) The Court finds no error in this section of the Report (III.B.1.),

3

Defendants concede that Plaintiff exhausted his PLRA administrative remedies with respect to Count One.
(ECF No. 144 at 21.)

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and hereby adopts the Magistrate Judge’s reasoning and conclusions.
The Magistrate Judge next concluded that the Court possesses subjection matter
jurisdiction over Plaintiff’s claim for injunctive relief against Defendants BOP, Hurwitz, and
Keller for alleged violations of the Eighth Amendment under 28 U.S.C. § 1331 and the
Administrative Procedures Act (“APA”). (See ECF No. 172 at 18–19.) Accordingly, the
Magistrate Judge recommended that the Court deny Defendants’ Motion to Dismiss
Count Two. (Id. at 19.)
Defendants object, arguing, “While the Magistrate judge is correct that the Court
has jurisdiction under the APA to issue an injunction against the BOP in some contexts,
this does not apply to inmate housing decisions, as 18 U.S.C. § 3621(b) is exempt from
review under the APA.” (ECF No. 185 at 4.) Defendants cite relevant portions of the APA
and § 3621(b) to show that: (1) APA jurisdiction does not extend to agency matters
committed to agency discretion by law, and (2) § 3621(b) specifically vests the BOP with
agency discretion over inmate housing decisions. (See id.) Defendants further contend
that the designation of the place of Plaintiff’s confinement is not reviewable because the
recently-enacted “FIRST STEP Act” amended § 3621(b) to state: “Notwithstanding any
other provision of law, a designation of a place of imprisonment under this subsection is
not reviewable by any court.” 18 U.S.C. § 3621(b) (effective December 21, 2018).
The Court disagrees and overrules Defendants’ objections. First, while
Defendants’ assertions regarding the limits of APA jurisdiction and the Congressional
delegation of discretion over inmate housing decisions are broadly true, the Court finds
that Defendants’ arguments in this regard unfairly narrow the scope of Plaintiff’s claim in
Count Two. The gravamen of Plaintiff’s injunction claim in Count Two is that Defendants

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have shown deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. (See ECF No. 128 at 38–39.) The relief he requests includes an “order
transferring Washington to a Federal Medical Center,” but only in the context of his
broader concern that his future medical needs be adequately addressed, and only
because a Federal Medial Center is “the only type of federal prison with the ability to
accommodate inmates with Washington’s impairments.” (See id. at 44.) In other words,
Count Two is more faithfully characterized as a challenge to the adequacy of medical
care that BOP has provided Plaintiff, than as a challenge to BOP’s housing
determinations. Though, the adequacy of care challenge is inextricably intertwined with
questions surrounding the designation of a place of imprisonment due to the reputed
severity of Plaintiff’s medical needs. Furthermore, the relief requested is more faithfully
characterized as a plea for the Court to ensure that Washington’s future medical needs
are not neglected, than as a plea to be transferred into or out of any specific confinement
facility. (See id.) In any event, the undersigned has already ruled, in this case, that “even
within categories of decision-making normally committed to agency discretion, there is a
line where the scope of discretion stops and violations of constitutional rights begin.” (ECF
No. 169 at 5.) Therefore, “the Court join[ed] other courts in concluding that it has the
authority to remedy unconstitutional conduct, even when that authority infringes upon
BOP’s general discretion over inmate housing and medical treatment.” (Id. (citing Royer
v. Fed. Bureau of Prisons, 933 F. Supp. 2d 170, 180-82 (D.D.C. 2013)).) Finally, the Court
declines to retroactively apply the newly-amended version of § 3621(b)—which
amendment came about two years after this action was filed and six months after the
Seconded Amended Complaint was filed—because the presumption against retroactivity

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has not been overcome. See Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 172 (4th Cir.
2010) (“[F]ederal . . . courts employ a robust presumption against statutory retroactivity.”)
Therefore, the Court denies Defendants’ Motion to Dismiss Count Two.
C. Venue
The Magistrate Judge next considered Defendants’ venue challenge raised under
Rule 12(b)(3), that “[a]ll of Washington’s claims regarding other locations outside of South
Carolina must be dismissed . . . .” (See ECF No. 144 at 12.) The Report notes that
“Defendants do not specify which claims are allegedly based on activities outside of South
Carolina and they do not request this [C]ourt to transfer the case to a different court.”
(ECF No. 172 at 20.) The Magistrate Judge found that the Second Amended Complaint
is primarily based on allegations of a lack of adequate medical care while Plaintiff was
housed in South Carolina, and that references in the pleading to lack of care at other
institutions outside the State are not the sole basis for any claim. Accordingly, the
Magistrate Judge recommended that Defendants’ Motion to Dismiss be denied to the
extent it seeks dismissal of any claim for lack of venue.
Defendants do not object to the Magistrate Judge’s conclusions regarding venue,
and the Court finds no error therein. Therefore, the Motion to Dismiss is denied in so far
as it raises a challenge to venue.
D. Injunctive Relief: Mootness
In considering the Defendants’ contention that Plaintiff’s claims for injunctive relief
arising from his medical care and assistance with activities of daily living (“ADLs”) at
institutions where he is no longer house are moot, the Magistrate Judge concluded that
“Plaintiff’s allegations fall squarely within the type of allegations that support a find that

15

the circumstances of which he complains are ongoing and, thus, capable of repetition yet
evading review.” (ECF No. 172 at 21.) The undersigned agrees with the Magistrate
Judge’s reasoning and conclusions in this regard (see id. at 21–24), and Defendants have
not objected thereto (see ECF No. 185). Consequently, the Motion to Dismiss is denied
to the extent that it premises dismissal on the mootness of Plaintiff’s claims for injunctive
relief.
E. Statute of Limitations
The Magistrate Judge next considered Defendants’ statute of limitations defenses
and concluded that no statute of limitations bar had been shown. (ECF No. 172 at 24–
25.) The Court agrees and Defendants have not objected to this section of the Report.
Therefore, the Motion to Dismiss is denied in so far as it asserts statute of limitations
defense.
F. Failure to State Plausible Bivens Claims (Counts Three & Four)
The Magistrate Judge adeptly explained the standard of review applicable to Rule
12(b)(6) challenges and the substantive requirements to state a plausible Bivens claim.
(See id. at 25–29.) With those principles in mind, the Magistrate Judge first concluded
that Plaintiff’s lengthy background allegations with only brief, non-specific, references to
Defendants Garcia and Massa (Count Three) do not support plausible Bivens claims,
because “Plaintiff does not allege that Defendants Garcia or Massa personally played any
part in the alleged deliberate indifference to Plaintiff’s medical needs or in any injury that
Plaintiff suffered as a result thereof.” (Id. at 30.) Moreover, the Magistrate Judge found,
“there are no allegations of sufficient personal knowledge of any wrongdoing by any
subordinate to allow these supervisory officials to be held responsible for the

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subordinate’s actions. (Id. at 31.)
Plaintiff objects to these conclusions, arguing that when all reasonable inferences
are drawn in Plaintiff’s favor, the Second Amended Complaint satisfies the requirements
to state a plausible claim for relief against all named Defendants. (See ECF No. 184 at
9–10.) This objection is conclusory and is overruled. The Court finds that the Second
Amended Complaint fails to state a plausible Bivens claim against Defendants Garcia
and Massa, and they are dismissed, without prejudice, as party defendants to Count
Three.
Next, the Magistrate Judge found that the Second Amended Complaint includes
only brief, broad statements regarding Defendants Joyner, Cruz, and Meeks (Count
Four). (ECF No. 172 at 31–32.) The Magistrate Judge noted that brief references to Cruz
and Meeks responding to Plaintiff’s inmate grievance forms, and Joyner signing off on a
form approving a request that Plaintiff be transferred away from FCI Estill, “are insufficient
to show the required personal involvement [in the alleged deliberate indifference to
Plaintiff’s medical needs], and there are no allegations of sufficient personal knowledge
of any wrongdoing by any subordinate to allow these supervisory officials to be held
responsible for the subordinate’s actions.” (Id. at 32–33.) Accordingly, the Magistrate
Judge concluded that Count Four fails to allege a plausible Bivens claim against Joyner,
Cruz, and Meeks. (Id. at 32.)
Again, Plaintiff objects to these conclusions, inviting the Court to infer supervisory
liability and to find a causal link between Joyner, Cruz, and Meeks’ minimal actions
described in the complaint and Plaintiff’s injuries. (See ECF No. 184 at 9–10.) This
objection is conclusory and is overruled. The Court agrees with the Magistrate Judge that

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“there are no clear factual allegations showing that [Joyner, Cruz, and Meeks] did or did
not do anything that led to any injury suffered by Plaintiff.” (ECF No. 172 at 33.) Therefore,
the Court finds that the Second Amended Complaint fails to state a plausible Bivens claim
against Defendants Joyner, Cruz and Massa, and they are dismissed, without prejudice,
as party defendants to Count Four.
G. Qualified Immunity
The Court will address the Magistrate Judge’s findings with respect to qualified
immunity as to Defendants Lepiane, Ulmer, Loranth, and Harvey, and the parties’
respective objections to those findings, in the order they are presented in the Report. As
to Defendant Lepiane, the Magistrate Judge agreed with Plaintiff “that there are sufficient
facts alleged to show that Dr. Lepiane, with knowledge of Plaintiff’s eyesight problems
and the directions of outside ophthalmologists, directed other medical professionals not
to administer the necessary eye drops.” (Id. at 35.) Moreover, the Magistrate Judge found
that Plaintiff’s allegations are sufficient to state a plausible claim that Lepiane’s conduct
amounted to a constitutional violation “because both the objective prong (Plaintiff’s
serious eyesight problems) and the subjective prong (Lepiane’s refusal to assist him
despite knowledge of his needs) of a plausible Eight Amendment claim are satisfied.” (Id.
at 35–36.) Finally, the Magistrate Judge concluded that “a reasonable medical provider
would have known at the time that failing to provide an inmate adequate medical
treatment or medication for a serious medical need would be unlawful.” (Id. at 36 (citations
omitted).)
Defendants object to the Magistrate Judge’s findings regarding qualified immunity
as to Lepiane. (ECF No. 185 at 5–7.) They generally argue that Plaintiff’s “limited

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allegations fail to demonstrate that Defendant Lepiane knew that Plaintiff would suffer a
serious or significant harm by self-administering his eye drops, or not receiving them,”
that Plaintiff failed to show that Lepiane “acted with a culpable state of mind,” and that
“[a]lthough the Plaintiff disagrees with the medical care provided, and Defendant
Lepiane’s attempts to teach him to self-administer his eye drops, the claims simply do not
rise to the level of a constitutional violation.” (See id.) The Court finds that Defendants’
arguments fail to view the allegations in the light most favorable to Plaintiff, and are
insufficient to displace the sound reasoning and conclusions of the Magistrate Judge. The
objection is overruled, and the Motion to Dismiss is denied with respect to a qualified
immunity defense for Defendant Lepiane.
As to Defendant Ulmer, the Magistrate Judge noted that Plaintiff’s allegations show
that Ulmer, a registered nurse at FCI Estill, refused to provide Plaintiff with his medications
on several occasions, intentionally altered Plaintiff’s prescription for sunglasses to prevent
him from receiving the appropriate glasses, and affirmatively prevented other medical
providers from assisting Plaintiff with his prescribed eye drops. (ECF No. 172 at 36–37.)
The Magistrate Judge stated, “While Defendants deny that the allegations are sufficient
to state a plausible medical indifference claim, their assertions only show that there are
factual disputes among the parties.” (Id. at 37.) Thus, the Magistrate Judge concluded,
“Because a plausible Bivens claim is alleged and because a reasonable medical provider
would have known at that time that failing to provide an inmate adequate medical
treatment for a serious medical need would be unlawful, Defendant Ulmer is not entitled
to qualified immunity at this stage of the litigation.” (Id. at 37–38.)
Again, Defendants object to the sufficiency of the allegations against Ulmer, and

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to the Magistrate Judge’s conclusions derived therefrom. Defendants generally argue that
knowing alteration of Plaintiff’s prescription did not pose a serious or significant threat to
Plaintiff, that Plaintiff has not asserted that Defendant Ulmer denied him sunglasses, “only
that he wanted the darker tint recommended by the ophthalmologist,” and that Plaintiff’s
allegations do not show that Defendant Ulmer had a culpable state of mind. (ECF No.
185 at 7–8.) The Court finds that Plaintiff has stated a plausible claim to relief against
Defendant Ulmer sufficient to survive a qualified immunity defense under Rule 12(b)(6)
review. Accordingly, the objection is overruled and the Court adopts the recommendation
in the Report with respect to a qualified immunity defense for Defendant Ulmer.
As to Defendant Loranth, the Clinical Director at FCI Williamsburg, the Report
noted Plaintiff’s allegations that “despite his knowledge of the ambulation problems
Plaintiff experienced due to his failing eyesight, Defendant Loranth refused to assist
Plaintiff in receiving his prescribed medications and refused him treatment for ongoing
pain in his right eye.” (ECF No. 172 at 38.) The Report further detailed Plaintiff’s
allegations that “Defendant Loranth was dismissive of his needs for prescribed
medications and assistance with [ADLs] when he refused to acknowledge that Plaintiff
was blind despite a medical report from an ophthalmologist who had assessed Plaintiff’s
condition.” (Id.) The Magistrate Judge concluded that these allegations, accepted as true,
“show that Loranth was dismissive of Plaintiff’s medical condition and disregarded
medical treatment or directions from the ophthalmologist resulting in increased pain to
Plaintiff.” (Id.)
Defendants object to this conclusion, arguing that Loranth believed Plaintiff was
legally blind, not totally blind, and was able to perform some of the ADLs without the

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requested assistance. (ECF No. 185 at 8.) Defendants further argue that Plaintiff’s claims
against Loranth amount to negligence allegations, not a constitutional violation, stating,
“While the Plaintiff alleges a difference of opinion with Defendant Loranth in the level of
medical care needed, he does not demonstrate a complete failure to provide medical
care.” (Id. at 8–9.) The Court finds that the Second Amended Complaint includes
allegations that, with knowledge of the severity of Plaintiff’s ocular condition, Loranth
delayed and/or disregarded necessary treatment and accommodations, and the objection
is overruled. Accordingly, Loranth’s qualified immunity defense is not viable at this stage,
and the Motion to Dismiss is denied insofar as it premises dismissal of the Bivens claim
against Loranth on a qualified immunity theory.
Finally, the Magistrate Judge concluded that Defendant Harvey, the corrections
officer in charge of the Special Housing Unit at FCI Estill, is entitled to qualified immunity,
and recommended granting the Motion to Dismiss Count Five on this basis. (ECF No.
172 at 39–40.) Plaintiff alleges that Harvey forced him to disrobe for an unnecessary
medical evaluation after he reported being the victim of unwanted touching by unidentified
inmates or corrections officers, that Plaintiff told Harvey that his cellmate was dangerous
and had threatened him, and that Harvey forced Plaintiff to stay in the same cell with the
same cellmate, who ultimately placed sharp weapons against Plaintiff’s throat in a
threatening manner. (See ECF No. 128 at 29–30, 42.) The Magistrate Judge found that
these allegations fail to state a plausible Bivens claim against Harvey “because Plaintiff
does not allege that he suffered any type of physical injury from the alleged unnecessary
examination or from actions of his cellmate for which Defendant Harvey could be found
liable.” (ECF No. 172 at 39 (citations omitted).) Moreover, the Magistrate Judge

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concluded that even if there were sufficient allegations of an injury to state a claim against
Defendant Harvey, such a claim would be subject to dismissal for lack of administrative
exhaustion because it is clear from the face of the Second Amended Complaint that the
allegedly offending actions occurred more than two months after Plaintiff filed this case.
(Id. at 39–40.)
Plaintiff objects to the Magistrate Judge’s findings and conclusions, arguing first
that the Second Amended Complaint alleges physical, not just emotional, injuries as a
result of Washington’s cellmate’s actions. (ECF No. 184 at 10–11.) It is true that Count
Five seeks redress against Harvey for “physical” injury (see ECF No. 128 ¶¶ 150–51);
however, the substance of the factual allegations does not support any physical injury
from the events as described (see id. ¶ 99). The objection is without merit and is
overruled.
Plaintiff further objects to the recommendation that, even if an actionable Bivens
claim has been asserted against Harvey, it should be dismissed for lack of administrative
exhaustion. (ECF No. 184 at 11.) Plaintiff argues that a Rule 12(b)(6) motion to dismiss
is not the proper vehicle to vindicate an administrative exhaustion defense, and that, “in
any event, Washington has substantially complied with the exhaustion requirements.”
(Id.) As discussed above, administrative exhaustion defenses are properly considered
under Rule 12(b)(6) where the failure to exhaust remedies is apparent without resort to
outside documentation. (See supra at 3–12.) Relatedly, Defendants object to the
Magistrate Judge’s statement, in a different section of the Report, that “any assertions of
lack of exhaustion relating to the officials and employees of . . . FCI-Estill (Defendants...
and Harvey) [could not be considered under Rule 12(b)(6)] because consideration of an

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exhaustion defense as to these Defendants requires the [C]ourt to analyze [outside
documents] before a decision on the status of Plaintiff’s exhaustion effort can be
reached.” (See ECF Nos. 185 at 9–10; 172 at 13.) The conflicting statements in the Report
about whether administrative exhaustion of the claims against Harvey could be
considered under Rule 12(b)(6) appear to be a simple oversight, as the Magistrate Judge,
when discussing Count Five specifically, clearly concluded that a lack of administrative
exhaustion is detectable from the face of the pleadings. (See ECF No. 172 at 39–40.)
Nonetheless, the Court overrules both parties’ objections as moot because Count Five
fails to state a plausible Bivens claim against Harvey in the first instance. Accordingly,
Defendant Harvey is entitled to qualified immunity and the Motion to Dismiss Count Five
is granted.
CONCLUSION
For the reasons set forth above, the Report (ECF No. 172) of the Magistrate Judge
is accepted and adopted herein, with the exception of section III.A.2. (“Exhaustion of RA
Claims”). Defendants’ Motion to Dismiss the Second Amended Complaint (ECF No. 144)
is GRANTED in part and DENIED in part. The motion is GRANTED without prejudice as
to Defendants Mosley, Barnes, Joyner, Cruz, Meeks, Blocker, Fonte, Bryan, Garcia,
Massa, and Harvey. The motion is DENIED as to Defendants BOP, Hurwitz, Keller,
Lepiane, Ulmer, and Loranth. Plaintiff has offered to partially dismiss without prejudice
Counts One, Two, and Six as to Hurwitz and Keller, should the Court find that those
Counts are proper against the BOP. (See ECF No. 149 at 2 n.2.) The Court finds that it
has jurisdiction over the itemized claims against the BOP, and Defendants Hurwitz and
Keller are accordingly dismissed as party defendants without prejudice. Therefore,

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Defendants’ Motion to Dismiss is DENIED as to Defendants BOP, Lepiane, Ulmer, and
Loranth, and the case will proceed as to them.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
March 26, 2019
Charleston, South Carolina

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