Avila v. FCI Berlin

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ernesto Avila
v. 	Case No. 19-cv-104-JL
FCI Berlin
REPORT AND RECOMMENDATION
Before the court is the complaint (Doc. No. 1) filed by
plaintiff, Ernesto Avila, an inmate at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”) at all times
relevant to the allegations in his complaint.1 	The complaint is
before this magistrate judge for preliminary review under LR
4.3(d)(1) and 28 U.S.C. § 1915A(a).
Preliminary Review Standard
The court may dismiss claims asserted in an inmate’s
complaint, if the court lacks subject matter jurisdiction, a
defendant is immune from the relief sought, the complaint fails
to state a claim, or the action is frivolous or malicious. 	See
28 U.S.C. § 1915A(b). 	In determining whether a pro se complaint
1The Federal Bureau of Prisons (“BOP”) Inmate Locator
indicates that Mr. Avila is no longer at FCI Berlin. 	See BOP
Inmate Locator, https://www.bop.gov/inmateloc/ (last accessed
Apr 6, 2020).
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states a claim, the court must construe the complaint liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
Claims may be dismissed sua sponte if, among other things, the
complaint fails to state a claim upon which relief may be
granted, the court lacks jurisdiction, or a defendant is immune
from the relief sought. 	See 28 U.S.C. § 1915(e)(2). 	To
determine whether to dismiss claims for failure to state a
claim, the court takes as true the factual content in the
complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
plaintiff has stated a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
Background
Mr. Avila, a below-the-knee amputee with a prosthetic leg,
asserts that prior to July 16, 2017, while he was housed in the
FCI Berlin Special Housing Unit (“SHU”), he did not have access
to a cell or a shower that had appropriate accommodations for
his disability. 	The shower lacked adequate slip protection, a
handrail, and a flat standing surface without high sides. 	Mr.
Avila slipped in the shower and suffered a bruised knee and
injuries to his groin area and lower back. 	Mr. Avila asserts he
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did not receive adequate medical care for those injuries,
despite submitting numerous requests for medical attention.
Mr. Avila’s assigned FCI Berlin SHU cell was on the top
tier of that unit. 	Unnamed FCI Berlin corrections officers
required him to walk up and down stairs in handcuffs with his
prosthesis, which he alleges was very painful and stressful. 	He
further alleges that on one occasion the head FCI Berlin doctor
watched him suffer as he walked on the stairs in handcuffs.
The court identifies the claims asserted in the complaint
as follows:
1. 	Unnamed defendant prison officials and FCI Berlin
medical providers violated Mr. Avila’s Eighth Amendment
right to humane conditions of confinement, rendering them
individually liable for damages under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), in that:
a. 	Officers required plaintiff to walk up and down
stairs in handcuffs, resulting in severe pain, which a
doctor witnessed;
b. 	Officers denied plaintiff access to a shower with
appropriate slip protections, resulting in plaintiff’s
slip-and-fall injuries; and
c. 	Officers and medical providers denied plaintiff
access to adequate medical care for the injuries he
suffered as a result of his fall in the shower.
2. 	The United States is liable to plaintiff for unnamed
FCI Berlin prison officials’ and medical providers’
wrongful acts or omissions, resulting in plaintiff’s
injuries and pain, in that:
a. 	FCI Berlin officers required plaintiff to walk up
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and down stairs in handcuffs to his SHU cell,
resulting in severe pain, which an FCI Berlin doctor
witnessed;
b. 	FCI Berlin officers denied plaintiff access to a
shower with appropriate slip protections, resulting in
plaintiff’s slip-and-fall injuries; and
c. 	FCI Berlin officers and medical providers denied
plaintiff access to adequate medical care for the
injuries he suffered as a result of his fall in the
shower.
3. 	Mr. Avila suffered disability discrimination at FCI
Berlin in violation of his rights under the Americans with
Disabilities Act (“ADA”) Title II, and/or the
Rehabilitation Act, in that he was housed in an upper tier
SHU cell and was required to walk up and down stairs in
handcuffs, causing him severe pain; and he was denied
access to a shower with appropriate slip-and-fall
protections for his disability.
4. 	Defendants are liable to plaintiff under 42 U.S.C.
§ 1983 for violating his federal rights.
Discussion
I. 	Eighth Amendment Claims (Claims 1(a)-(c), 4)
A. 	Elements
The Eighth Amendment prohibits prison officials from
denying inmates “the minimal civilized measure of life’s
necessities.” 	Rhodes v. Chapman, 452 U.S. 337, 347 (1981). 	A
plaintiff asserting an Eighth Amendment prison conditions claim
must allege objectively “extreme” deprivations. 	Hudson v.
McMillian, 503 U.S. 1, 9 (1992). 	Further, the plaintiff must
show that the responsible defendants acted with deliberate
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indifference to the plaintiff’s health or safety. 	See Farmer v.
Brennan, 511 U.S. 825, 834 (1994). 	“‘[A] prison official cannot
be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the official knows of
and disregards an excessive risk to inmate health or safety.’”
Giroux v. Somerset Cty., 178 F.3d 28, 32 (1st Cir. 1999)
(citations omitted).
B. 	Bivens Claims (Claims 1(a)-(c))
Under certain circumstances, a Bivens remedy for damages
may be available when federal officers or medical providers are
alleged to have violated an inmate’s Eighth Amendment rights,
see, e.g., Carlson v. Green, 446 U.S. 14, 20-23 (1980). 	Mr.
Avila has alleged that, witnessed by an unnamed FCI Berlin
doctor, he was required him to walk up and down stairs from his
SHU cell while handcuffed, which was both stressful and very
painful because of his prosthetic leg. 	Mr. Avila has further
alleged that unnamed officers required him to use a shower that
lacked slip-and-fall protections, and he has alleged that
unnamed medical providers and unnamed officers knew of his need
for medical attention after he was injured but did not provide
him with medical care.
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Plaintiff has not named any of the federal officers,
doctors, or other health care providers he alleges violated his
Eighth Amendment rights, as summarized in Claims 1(a)-(c) above.
Furthermore, Mr. Avila has not identified any defendant who was
aware that his injuries or pain presented a serious medical need
or other substantial risk of serious harm and still denied him
treatment and/or otherwise failed to take reasonable measures to
reduce his exposure to harm. 	Therefore, Mr. Avila has not yet
pleaded sufficient facts regarding his housing situation and the
use of the stairwell, his fall in the shower, or the denial of
medical care, to state a claim upon which relief can be granted.
As the court cannot rule out the possibility, however, that he
could identify proper defendants and plead such facts, in the
Order issued this date, the court grants plaintiff thirty days
to file an amended complaint asserting sufficient facts to state
an Eighth Amendment Bivens claim upon which relief can be
granted as to specifically identified federal officers or
medical providers.
C. 	Claims under 42 U.S.C. § 1983 (Claim 4)
Plaintiff has cited 42 U.S.C. § 1983 as providing him with
a cause of action for his Eighth Amendment claims. 	That statute
does not apply to federal officers or employees. 	To the extent
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plaintiff intended to state claims under 42 U.S.C. § 1983, the
district judge should dismiss those claims as he has named no
defendants who acted under color of any state law.
II. 	Federal Tort Claims Act (Claims 2(a)-(c))
The court has liberally construed the complaint as
intending to state claims that the wrongful conduct of unnamed
individual officers and medical providers caused him physical
injuries and pain. 	The Federal Tort Claims Act (“FTCA”)
provides this court with jurisdiction over certain claims for
damages asserted against the United States, arising from
allegations that federal employees caused personal injuries
through their tortious acts or omissions. 	See 28 U.S.C.
§§ 1346(b)(1), 2674. 	If Mr. Avila intends to plead FTCA claims
similar to those that the court has identified as Claims 2(a)-
(c), he must identify the individual federal employees whose
negligence or other wrongful conduct caused his injuries, and he
should name the “United States” as the defendant. 	Further, Mr.
Avila must demonstrate that he has exhausted his administrative
remedies by having already presented his tort claims to the
appropriate federal agency and having obtained a final agency
decision on those claims. 	See 28 U.S.C. § 2675. 	In the Order
issued this date, the court grants Mr. Avila the opportunity to
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amend his complaint to assert such facts that could give rise to
actionable FTCA claims in this case.
III. Claim 3 (ADA Title II and Rehabilitation Act)
Mr. Avila has alleged that he was placed in an upper tier
cell and was required to use a shower without any accommodations
for his disability, in violation of his federal rights. 	Title
II of the ADA prohibits “public entit[ies]” from engaging in
disability discrimination. 	42 U.S.C. § 12132. 	The definition
of the term “public entity” expressly includes state agencies
and local agencies, but federal agencies are not listed in that
definition. 	42 U.S.C. § 12131(1). 	Title II’s requirements do
not apply to federal prisons such as FCI Berlin. 	See Cellular
Phone Taskforce v. F.C.C., 217 F.3d 72, 73 (2d Cir. 2000)
(“Title II of the ADA is not applicable to the federal
government”); Ives v. Decker, No. CV 17-30108-MGM, 2017 U.S.
Dist. LEXIS 187142, at *5, 2017 WL 5346401, at *2 (D. Mass. Oct.
20, 2017), R&R adopted, No. CV 17-30108-MGM, 2017 U.S. Dist.
LEXIS 186816, 2017 WL 5309685 (D. Mass. Nov. 9, 2017); Williams
v. United States, No. 2:15CV00123 DPM/JTR, 2017 U.S. Dist. LEXIS
41300, at *5, 2017 WL 1078655, at *3 (E.D. Ark. Feb. 17, 2017)
(ADA Title II does not apply to federal prison), R&R adopted,
No. 2:15-CV-123-DPM-JTR, 2017 U.S. Dist. LEXIS 40223, 2017 WL
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1095476 (E.D. Ark. Mar. 21, 2017); Bevil v. Lappin, No. CIV.A.
0:11-00117, 2012 U.S. Dist. LEXIS 56225, at *10, 2012 WL
1409550, at *4 (E.D. Ky. Apr. 23, 2012) (same), aff’d, No. 12-
5520, 2013 U.S. App. LEXIS 26414 (6th Cir. June 14, 2013)
(unpublished decision).
Section 504(a) of the Rehabilitation Act provides a cause
of action for disability discrimination in programs or
activities conducted or funded by federal agencies. 	See 29
U.S.C. § 794(a). 	Insofar as the BOP Inmate Locator indicates
that Mr. Avila is no longer housed at FCI Berlin, however, his
claims for injunctive or declaratory relief under the
Rehabilitation Act appear to be moot, see LaFaut v. Smith, 834
F.2d 389, 395 (4th Cir. 1987); see also Ford v. Bender, 768 F.3d
15, 29 (1st Cir. 2014), and a cause of action for money damages
under that statute is not available to him. 	See Houck v. United
States, No. 17-CV-474-JPG, 2017 WL 2733905, at *6, 2017 U.S.
Dist. LEXIS 98405, at *17 (S.D. Ill. June 22, 2017) (under “the
Rehabilitation Act, the remedies available to a federal
prisoner-plaintiff are limited to declaratory and/or injunctive
relief; money damages are not available” (citing Lane v. Pena,
518 U.S. 187, 195 (1996))); see also Chamberlain v. Chandler,
344 F. App’x 911, 913 (5th Cir. 2009). 	To the extent Mr. Avila
has intended to plead a Rehabilitation Act claim, that claim
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should be dismissed at this time. 	Accordingly, the district
judge should dismiss Claim 3.
Conclusion
For the foregoing reasons the district judge should dismiss
Mr. Avila’s disability discrimination claims (Claim 3) and the
claims Mr. Avila has asserted under 42 U.S.C. § 1983 (Claim 4),
leaving only the asserted Eighth Amendment Bivens claims and the
FTCA claims that are the subject of the Order issued this date.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
April 7, 2020
cc: 	Ernesto Avila, pro se
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