Berryman v. Mullen et al

Filing 80

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANTS MOTION TO DISMISS [DKT. NO. 69 . Further, it RECOMMITS this case to Magistrate Judge Aloi, who is DIRECTED to enter a scheduling order on discovery and dispositive motions. Signed by Senior Judge Irene M. Keeley on 3/9/18. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 3/9/2018: # 1 Certified Mail Return Receipt) (njz).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL BERRYMAN,
Plaintiff,
v.

//

CIVIL ACTION NO. 1:16CV47
(Judge Keeley)

OFFICER CHRISTOPHER MULLEN;
LT. JERALD RIFFLE; OFFICER BRAD
BROWN; and OFFICER JOHN BRADY,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
The plaintiff, Michael Berryman (“Berryman”), has pursued two
lawsuits in this Court, one pursuant to the Federal Tort Claims Act
(“FTCA”) and another pursuant to Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Both arise
out of the same facts and circumstances. The Court has previously
dismissed Berryman’s FTCA case. Pending is the motion to dismiss
this Bivens action filed by the remaining defendants, Officer
Christopher Mullen, Lt. Jerald Riffle, Officer Brad Brown, and
Officer John Brady.
The question presented is whether Berryman’s Bivens action is
precluded by the operation of 28 U.S.C. § 2676, frequently known as
the FTCA judgment bar. Because Berryman’s FTCA case was dismissed
on

jurisdictional

grounds,

the

Court

concludes

that

his

Bivens claims are not barred. Accordingly, for the following
reasons, the Court DENIES the defendants’ motion (Dkt. No. 69).

BERRYMAN V. MULLEN, ET AL.

1:16CV47

MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
I. BACKGROUND
A.

Factual Background
The Court takes the facts from Berryman’s Bivens complaint and

construes them in the light most favorable to him. De’Lonta v.
Johnson, 708 F.3d 520, 524 (4th Cir. 2013).1 In early May 2014,
Berryman was placed in the Special Housing Unit (“SHU”) at United
States Penitentiary, Hazelton (“USP Hazelton”), with “inmate Von
Axelson” (“Von Axelson”) (Dkt. No. 1 at 11). On May 6 and 7, 2014,
Von Axelson threatened Berryman with rape, serious injury, and
death if Berryman could not be relocated to another cell. Id. at
11-12. Von Axelson’s threats reached their height on the evening of
May 7th, when he received word that his father had passed away. Id.
at 12. Despite Berryman’s repeated pleas to Officer Brown, Officer
Brady, Officer Mullen, and other unknown officers, he was not moved
to a different cell. Id. at 12-14.
During the early morning hours of May 8, 2014, Berryman was
awakened when Von Axelson began stomping on him. Although able to
activate an emergency call button, Berryman was quickly knocked
unconscious by his assailant. He regained consciousness sometime

1

Notably, Berryman alleged exactly the same facts in support
of his FTCA claims (Civil No. 1:16cv63, Dkt. No. 1 at 11).
2

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
during the assault, but as he attempted to protect himself, he was
quickly knocked unconscious again. Id. at 14.
After Berryman regained consciousness the second time, Officer
Mullen, who by then had arrived on the scene, helped him to his
feet and took him to an observation cell where Berryman was left
with paper clothing and bedding.2 Berryman was awakened later that
morning by Physician’s Assistant Christopher Meyer, who noted his
superficial injuries but left without conducting a full examination
Id. at 14-15. As a result of the incident, Berryman claims to have
sustained the following injuries:
I have 4 protruding disk [sic] in lower lumbar, severe
stenosis in L lumbar, thecal sac encroachments in lower
lumbar, sliped [sic] disk in L lumbar, stenosis in
cervical spine C3-C7, disk herniation present moderately
encroaching upon the thecal sac at the C03/04 level[,]
thecal sac encroachment and Y hard disks/osteophyt[e]
complex thecal sac encroaching C6/seven, evidence of
remote rib fractures and rib deformity lower left ribs.
Id. at 17.
B.

Procedural Background
On March 23, 2016, Berryman filed this Bivens action, alleging

that

the

defendants

failed

to

protect

him

from

a

dangerous

cellmate, violated his due process rights by placing him in
2

Berryman alleges that he was placed in paper clothing the
previous day due to Von Axelson’s belligerent behavior after
learning of his father’s death (Dkt. No. 1 at 12-13).
3

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
punitive segregation, and failed to provide appropriate medical
treatment (Dkt. No. 1). Shortly thereafter, on April 14, 2016,
Berryman filed a complaint against the United States of America
pursuant to the FTCA (Civil No. 1:16cv63, Dkt. No. 1).3 His FTCA
case arose out of the same facts and similarly alleged that various
Bureau of Prisons (“BOP”) staff violated his right to procedural
due process regarding an institutional violation, deprived him of
his “basic human needs” in violation of the Eighth Amendment, and
committed medical malpractice. Id. at 10, 16.
On December 19, 2016, the United States filed a motion to
dismiss, or in the alternative, for summary judgment in Berryman’s
FTCA case (Civil. No. 1:16cv63, Dkt. No. 41). On February 22, 2017,
the defendants in this Bivens case also filed a motion to dismiss,
or in the alternative, for summary judgment (Dkt. No. 51).
On August 14, 2017, the Court granted the United States’
motion in Berryman’s FTCA case, and dismissed the action in its
entirety. As relevant to the pending motion to dismiss, the Court
reasoned

that

Berryman’s

constitutional

tort

claims

were

not

cognizable under the FTCA pursuant to FDIC v. Meyer, 510 U.S. 471

3

Plaintiffs may pursue simultaneous claims pursuant to
Bivens and the FTCA. Brodnik v. Lanham, No. 1:11-0178, 2016 WL
4087361, at *3 (S.D.W.Va. Aug. 1, 2016).
4

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
(1994) (“[T]he United States simply has not rendered itself liable
under [the FTCA] for constitutional tort claims.”). The Court
further concluded that Berryman’s medical malpractice claim failed
to comply with West Virginia’s statutory requirements for suing
health care providers (Civ. No. 1:16cv63, Dkt. No. 66 at 3-6).
On August 17, 2017, the Court granted in part and denied in
part the defendants’ motion to dismiss or, in the alternative, for
summary judgment in this Bivens action (Dkt. No. 71). As a result,
the only claim that remains outstanding is Berryman’s allegation
that Officer Mullen, Lt. Riffle, Officer Brown, and Officer Brady
violated his Eighth Amendment rights by exhibiting deliberate
indifference to a known risk of harm. Id. at 5-6, 18.
Pending is the defendants’ motion to dismiss this remaining
claim, in which they argue that the dismissal of Berryman’s FTCA
case against the United States operates to preclude the allegations
against them in their individual capacity (Dkt. No. 69). Pursuant
to Davis v. Zahradrich, 600 F.2d 458 (4th Cir. 1979), and Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court notified
Berryman of his right to respond and directed him to do so within
21 days (Dkt. No. 71 at 19-21). After receiving an extension,
Berryman filed his response in opposition on October 18, 2017 (Dkt.
No. 76), and the defendants replied (Dkt. No. 77).
5

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
II. STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6) allows a defendant to move for
dismissal on the grounds that a complaint does not “state a claim
upon which relief can be granted.” When reviewing the sufficiency
of a complaint, a district court “must accept as true all of the
factual allegations contained in the complaint.” Anderson v. Sara
Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)). “While a complaint . . . does not
need detailed factual allegations, a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). A
court is “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
In order to be sufficient, “a complaint must contain ‘enough
facts to state a claim to relief that is plausible on its face.’”
Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547).
“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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not
6

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses.” Republican Party of N.C. v. Martin,
980 F.2d 943, 952 (4th Cir. 1992).
III. APPLICABLE LAW
The function and structure of the FTCA bear brief discussion
before the Court turns to the merits of the defendants’ motion to
dismiss. Due to its sovereign immunity, “[n]o action lies against
the United States unless the legislature has authorized it.” Wood
v. United States, 845 F.3d 123, 127 (4th Cir. 2017) (quoting
Dalehite v. United States, 346 U.S. 15, 30 (1953)). Under the FTCA,
Congress authorized such claims “against the United States based on
the negligence or wrongful acts or omissions of its employees
committed within the scope of employment.” Id. (citing 28 U.S.C.
§§ 1346(b)(1), 2671-2680).
Congress limited the scope of this waiver, however, “to a
certain category of claims.” Kerns v. United States, 585 F.3d 187,
194 (4th Cir. 2009) (quoting Meyer, 510 U.S. at 475). Pursuant to
28 U.S.C. § 1346(b), claims under the FTCA must be made
[1] against the United States, [2] for money damages,
. . . [3] for injury or loss of property, or personal
injury or death [4] caused by the negligent or wrongful
act or omission of any employee of the Government [5]
while acting within the scope of his office or
employment, [6] under circumstances where the United
States, if a private person, would be liable to the
7

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
claimant in accordance with the law of the place where
the act or omission occurred.
Id. (quoting Meyer, 510 U.S. at 475) (alteration in original)
(reasoning that whether the defendant was acting in the scope of
his employment is a jurisdictional issue). District courts only
have

jurisdiction

to

hear

those

cases

that

fall

within

the

definition of § 1346. Meyer, 510 U.S. at 477. For instance, because
the FTCA directs the application of state law - “the law of the
place where the act or omission occurred” - constitutional torts
are not cognizable under the statute. Id.
The jurisdictional scope of the FTCA is further limited by
various exceptions found at 28 U.S.C. § 2680. For example, the FTCA
does not apply to claims “based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty
on the party of a federal agency or an employee of the Government.”
28 U.S.C. § 2680(a). Other more discrete areas to which the FTCA
does not apply include “transmission of letters,” “claims or suits
in

admiralty,”

and

“the

imposition

or

establishment

of

a

quarantine.” Id. § 2680(b), (d), (f).
As the Fourth Circuit has explained, utilization of the FTCA
rather than a Bivens action is a calculated risk:
In pursuing an intentional tort claim against a federal
law enforcement officer, a prospective plaintiff may
8

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
pursue two alternative avenues of relief. She may either
pursue a constitutional claim against the officer
directly under the Constitution, as recognized in Bivens,
or she may file a tort claim under the FTCA. Should a
plaintiff pursue the latter course, she runs the risk
that her constitutional claim will be subject to the
FTCA's “judgment bar” provision . . . .
Unus v. Kane, 565 F.3d 103, 122 (4th Cir. 2009). The FTCA’s
“judgment bar” states as follows:
The judgment in an action under section 1346(b) of this
title shall constitute a complete bar to any action by
the claimant, by reason of the same subject matter,
against the employee of the government whose act or
omission gave rise to the claim.
28 U.S.C. § 2676. Therefore, when judgment is entered on FTCA
claims,

the

plaintiff

is

barred

from

bringing

Bivens

claims

“arising out of the same actions, transactions, or occurrences.”
Unus, 565 F.3d at 122 (quoting Estate of Trentadue ex rel. Aguilar
v. United States, 397 F.3d 840, 858 (10th Cir. 2005)).
The judgment bar is not triggered, however, by every FTCA
dismissal. Courts consistently hold that the judgment bar does not
apply when claims in an FTCA case are dismissed because they could
not be pursued under the FTCA in the first place. See, e.g.,
Simmons v. Himmelreich, 136 S.Ct. 1843, 1850 (2016) (“The judgment
bar provision . . . does not apply to the categories of claims in
the ‘Exceptions’ sections of the FTCA.”); Will v. Hollack, 387 F.
3d 147, 155 (2d Cir. 2004) (“[F]or the judgment bar to apply, the
9

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
action must be a proper one for consideration under the [FTCA].”);
Donahue v. Connolly, 890 F. Supp. 2d 173 (D. Mass. 2012) (holding
that,

“because

the

statute

of

limitations

is

an

absolute

jurisdictional bar, the dismissal of the FTCA action does not bar
the Bivens claims brought contemporaneously”).
IV. DISCUSSION
In their motion to dismiss, the defendants contend that,
because “the Court dismissed Plaintiff’s claims against the United
States that relate to Defendants Mullen, Riffle, Brown, and Brady,
for failure to state a claim,” the FTCA judgment bar precludes
Berryman’s remaining Bivens claims against them (Dkt. No. 70 at 3,
6). The Court, however, concludes that this argument is untenable
because it misinterprets both the Court’s ruling on Berryman’s FTCA
claims, as well as the applicable law.
First, the Court did not dismiss Berryman’s related FTCA case
for failure to state a claim. In his Report and Recommendation
(“R&R”), the Honorable James E. Seibert, United States Magistrate
Judge,

recommended

dismissal

of

Berryman’s

failure-to-protect

claims as follows:
[T]he Plaintiff has not alleged that the Defendant’s BOP
employees were negligent. Instead, he implicitly asserts
that the Defendant’s acts . . . were willful and knowing
violations of his constitutional rights. None of these
claims state any cause of action with respect to any
10

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
negligent acts on the part of the Defendant or its
employees. Thus, these tort claims fail and must be
dismissed. See FDIC v. Meyer, 114 S.Ct. 996 (1994)
(constitutional torts are not cognizable under the FTCA).
(Civil No. 1:16cv63, Dkt. No. 59 at 13-14). Magistrate Judge
Seibert reasoned that Berryman had failed to state a claim for
negligence, but context makes clear that he recommended dismissal
because Berryman’s claims were constitutional torts that were not
cognizable under the FTCA. See id.
Indeed,

when

the

Court

adopted

the

R&R

and

dismissed

Berryman’s FTCA case, it observed:
Magistrate Judge Seibert concluded that, because
Berryman’s first and second claims focus on the
intentional deprivation of his Fifth and Eighth Amendment
rights, they fail to state a cause of action for
negligence against the United States or its employees.
Such constitutional violations are not cognizable under
the FTCA, but rather must be pursued in a civil rights
action.
(Civil No. 1:16cv63, Dkt. No. 66 at 3) (internal citation omitted).
Although use of the phrase “failure to state a claim” was imprecise
under the circumstances, the Court plainly dismissed Berryman’s
failure-to-protect claims because they sounded as Eighth Amendment
claims, and the FTCA does not confer jurisdiction over such claims
against the United States. See Meyer, 510 U.S. at 477.
Second, the Supreme Court’s recent decision in Simmons v.
Himmelreich underscores that the Court’s dismissal of Berryman’s
11

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
FTCA claims under FDIC v. Meyer does not preclude his remaining
Bivens claims. In Simmons, the plaintiff filed lawsuits under both
the FTCA and Bivens, alleging facts remarkably similar to those at
issue in Berryman’s case:
In each [case], Himmelreich alleged that he had been
severely beaten by a fellow inmate in federal prison and
that the beating was the result of prison officials'
negligence. At the time of the beating, Himmelreich was
incarcerated for producing child pornography. His
assailant had warned prison officials that he would
“‘smash’” a pedophile if given the opportunity but was
nonetheless released into the general prison population,
where he assaulted Himmelreich.
136 S. Ct. at 1845-46. The district court dismissed the plaintiff’s
FTCA case, finding that the decision regarding where to house
inmates fell within the discretionary-function exception. Id. at
1846. The individual defendants in the plaintiff’s Bivens action
then moved for dismissal pursuant to the judgment bar. Id.
The Supreme Court concluded that the judgment bar does not
apply to suits that are dismissed because they fall within an
exception to the FTCA. Id. at 1845-46. The judgment bar applies
only to a “judgment in an action under section 1346(b),” and
discretionary functions are expressly excluded from consideration
under § 1346(b). Id. at 1847-48. Not only does this result follow
from the plain text of the statute, but the Court reasoned that it
comports with the purpose of the judgment bar:
12

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
Ordinarily,
the
judgment
bar
provision
unnecessarily duplicative litigation. . . .

prevents

Where an FTCA claim is dismissed because it falls within
one of the “Exceptions,” . . . the judgment bar provision
makes much less sense. The dismissal of a claim in the
“Exceptions” section signals merely that the United
States cannot be held liable for a particular claim; it
has no logical bearing on whether an employee can be held
liable instead. To apply the judgment bar so as to
foreclose a future suit against an employee thus would be
passing strange.
Id. at 1849-50.
There

is

no

principled

basis

upon

which

to

distinguish

Berryman’s present predicament from the facts in Simmons. As
discussed, the Court dismissed Berryman’s relevant FTCA claims
pursuant to FDIC v. Meyer, which held that constitutional tort
claims are not cognizable under § 1346(b) because they are not
based

in

“the

law

of

the

place

where

the

act

or

omission

occurred.” 510 U.S. at 477-78. Berryman’s FTCA claims never fell
“under § 1346(b),” and the judgment bar applies only to judgments
“under § 1346(b).” See Simmons, 136 S. Ct. at 1847-48. Therefore,
the judgment bar simply cannot operate to preclude Berryman’s
related Bivens claims.4

4

The defendants argue that this case is different because the
failure-to-protect claims in Berryman’s FTCA case were dismissed
with prejudice (Dkt. No. 77 at 3-4), but the Court’s ruling in the
FTCA case was erroneous in this regard. Given that the Court
dismissed those claims on jurisdictional grounds, the dismissal
13

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MEMORANDUM OPINION AND ORDER DENYING THE
DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 69]
IV. CONCLUSION
For the reasons discussed the Court DENIES the defendants’
Motion to Dismiss (Dkt. No. 69). Further, it RECOMMITS this case
to Magistrate Judge Aloi, who is DIRECTED to enter a scheduling
order on discovery and dispositive motions. Pursuant to 28 U.S.C.
§ 636, he is authorized to consider the record and enter rulings
or recommendations as appropriate.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record and the pro se plaintiff, certified mail and
return receipt requested.
DATED: March 9, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

should have been without prejudice. S. Walk at Broadlands
Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d
175, 185 (4th Cir. 2013) (“[A] court that lacks jurisdiction has no
power to adjudicate and dispose of a claim on the merits.”).
14