Jones v. USA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Arthur Jones, Jr.
v. Civil No. 22-cv-316-LM-AJ
United States of America1
REPORT AND RECOMMENDATION
Before the court is the Complaint filed by Arthur Jones,
Jr., who was a federal prisoner at the Federal Correctional
Institution in Berlin, New Hampshire (“FCI Berlin”), at all
times relevant.2 Mr. Jones asserts he was one of more than 150
prisoners who contracted COVID-19 during an April 2021 outbreak
at FCI Berlin. He names the United States as a defendant to his
negligence claims under the Federal Tort Claims Act (“FTCA”),
1 The Complaint identifies the United States and the
following current or former FCI Berlin officials, officers, or
staff as individual defendants: (former) FCI Berlin Warden
Robert Hazlewood; Assistant Warden T. Steals; Assistant Warden
D. Ramirez; Health Services Administrator Teleisa Crnkovich;
Nurses C. Girard and Patricia “Rincon” or “Recon”; Corrections
Officer A. “Lavoire” or “Lavoie”; and Lieutenant A. McCormick.
2 The BOP Online Inmate Locator indicates that Mr. Jones is
no longer at FCI Berlin. Mr. Jones is reminded of his
obligation to notify this court regarding his current address.
See LR 83.6(e).
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and he identifies individual FCI Berlin officers, health care
providers, administrators, and employees as defendants to his
Eighth Amendment claims, under a Bivens theory of liability.
Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The matter is before the court
for preliminary review pursuant to 28 U.S.C. § 1915A.
Preliminary Review Standard
The court conducts a preliminary review of prisoner
complaints filed in forma pauperis. See, e.g., 28 U.S.C.
§ 1915A. A prisoner’s claims may be dismissed, sua sponte, if
the court lacks jurisdiction, a defendant is immune from the
relief sought, or the complaint fails to state a claim upon
which relief may be granted. See id. § 1915A(b)(1). In
considering whether the complaint states a claim, the court
determines whether, stripped of legal conclusions, and with all
reasonable inferences construed in plaintiff’s favor, the
complaint contains “sufficient factual matter, accepted as true,
to ‘state a claim to relief’” upon which relief can be granted.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Pro se complaints are construed liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam).
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Background
Plaintiff asserts that he contracted COVID-19 in mid-April
2021 while in Unit A-1 at FCI Berlin.3 Mr. Jones sat next to a
visibly sick prisoner on April 9, 2021. Fearing COVID-19, Mr.
Jones summoned a corrections officer, who sent the sick prisoner
to the medical department. All other prisoners in the unit were
then placed in an emergency lockdown. Three prisoners who had
worked with that sick prisoner were briefly isolated and were
then allowed to return to their assigned cells in the Unit A-1.
Over the course of that day and into the next, all
prisoners in Unit A-1 were tested for COVID-19, and the majority
tested positive. Those testing positive were quarantined, and
those who tested negative remained in the Unit, where they were
allowed to shower. Mr. Jones asserts that he did not have
enough time to sanitize the shower when he used it between April
11 and April 13, 2021.
On April 11, 2021, Mr. Jones’s cellmate tested positive for
COVID-19. Nurse Girard refused to test the plaintiff again on
3 “A COVID-19 outbreak at [FCI Berlin] in April/May 2021,
involving 192 inmates and 9 staff cases, was deemed closed by
the State of New Hampshire on May 24, 2021.” Alcorta v. FCI
Berlin Warden, No. 21-cv-250-PB, 2021 U.S. Dist. LEXIS 167832,
at *3 n.3, 2021 WL 3934355, at *1 n.3 (D.N.H. July 27, 2021)
(citation omitted), R&R approved, 2021 U.S. Dist. LEXIS 166824,
2021 WL 3930741 (D.N.H. Sept. 1, 2021).
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that date, and the plaintiff was not isolated or quarantined.
On April 13, 2021, in the evening, Mr. Jones and another
prisoner, fearing they had COVID-19, activated their duress
alarms. Corrections officers (“COs”) told them that the medical
staff does not work at night. Mr. Jones then argued with CO
Lavoie, asking to speak with the lieutenant in charge. CO
Lavoie refused that request and wrote Mr. Jones up for misusing
the duress alarm.
On April 14, 2021, the plaintiff complained to Lieutenant
McCormick about feeling sick. Several hours later, Nurse Girard
tested the plaintiff and eleven other prisoners on the unit.
All of them were then moved off the unit as a precautionary
measure.
On April 15, 2021, the plaintiff complained about feeling
ill to a nurse called Nurse “Recon” or “Rincon.” She said that
the results from the April 14 test were not yet available.
Then, she administered a rapid test to the plaintiff, which came
back positive. Several hours later, Mr. Jones was quarantined,
where he remained for ten days, before his transfer to the
Special Housing Unit awaiting disposition of his pending
disciplinary charge.
Construed liberally, Mr. Jones claims that the federal
officers and employees at FCI Berlin, named as defendants, acted
with negligence or deliberate indifference in not swiftly
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isolating or testing all of the prisoners complaining of COVID-
19, who might have been the source of his infection, prior to
the date when he became infected. He further alleges that
prisoners who had been exposed to those with COVID-19 remained
in the housing unit, contributing to the risk that the infection
would spread to him. He asserts that the defendants did not
conduct adequate contact-tracing. And he claims that the
defendants failed consistently to implement CDC Guidelines and
BOP “mandatory health and safety precautions,” including the
isolation and contact-tracing protocols that had been
implemented at FCI Berlin in October 2020.
Discussion
I. Federal Tort Claims Act
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. The
allegations in the Complaint underlying Mr. Jones’s FTCA claims
are sufficient to survive preliminary review. Without prejudice
to the defendant United States’s ability to file a dispositive
motion, the court, in the Order this date, directs service of
the Complaint upon the United States. The United States must
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file an Answer, a dispositive motion, or other pleading within
sixty days of service upon the United States Attorney, relating
to Mr. Jones’s FTCA claim.
II. Bivens Claims
Mr. Jones’s federal constitutional claims against each of
the following individuals are asserted under the Bivens
doctrine: (former) FCI Berlin Warden Robert Hazelwood;
Assistant Warden T. Steals; Assistant Warden D. Ramirez; Health
Services Administrator Teleisa Crnkovich; Nurses C. Girard and
Patricia Rincon or Recon; Corrections Officer A. Lavoire or
Lavoie; and Lieutenant A. McCormick. The Bivens doctrine allows
a plaintiff to vindicate certain rights through a private cause
of action for damages against federal officials in their
individual capacities. See DeMayo v. Nugent, 517 F.3d 11, 14
(1st Cir. 2008). The Supreme Court has recognized few contexts
where Bivens claims may be available, among them, certain Eighth
Amendment medical care claims. See Ziglar v. Abbasi, 582
U.S. 120, 131 (2017) (citing Carlson v. Green, 446 U.S. 14, 20-
23 (1980)). This court need not address here whether or not a
Bivens remedy might be available upon the facts alleged, as the
R&R recommends dismissal for other reasons, as explained below.
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III. Eighth Amendment
A. Elements
The Eighth Amendment requires prison officials to provide
humane conditions of confinement to inmates, including medical
care for serious medical needs and protection from substantial
risks of serious harm. See Farmer v. Brennan, 511 U.S. 825, 832
(1994). An Eighth Amendment medical care or endangerment claim
has both objective and subjective elements. See Wilson v.
Seiter, 501 U.S. 294, 298 (1991). The objective component is
satisfied when the deprivation at issue denies prisoners “‘the
minimal civilized measure of life’s necessities.’” Id.
(citation omitted). A showing of deliberate indifference to a
substantial risk of serious harm satisfies the subjective prong
of an Eighth Amendment claim. See Farmer, 511 U.S. at
834. Deliberate indifference may be manifested by “‘wanton
disregard to a prisoner’s needs . . . akin to criminal
recklessness, requiring consciousness of impending harm, easily
preventable.” Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir.
2020) (citation omitted). To prevail on an Eighth Amendment
claim, a plaintiff must show that the defendant’s conduct was
purposeful and not merely negligent. See id.
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B. Nurses Girard and Rincon
Mr. Jones alleges that Nurse Girard on April 11, 2021
refused to retest Mr. Jones for COVID-19 and refused to
quarantine him after his cellmate tested positive for the virus
and was quarantined. Mr. Jones further alleges that Mr. Jones
and his cellmate had been tested for COVID-19 on April 9 or
April 10, and that they both tested negative on that date. Mr.
Jones has not alleged that he had any COVID-19 symptoms when he
asked to be retested on April 11, and he has not alleged any
facts suggesting that Nurse Girard had any knowledge that the
threat of a COVID-19 infection for him presented a substantial
risk of severe harm. Absent any facts suggesting that when
Nurse Girard refused to retest him or quarantine him on April
11, 2021, she was subjectively aware that her acts and omissions
subjected Mr. Jones to a substantial risk of serious harm, the
Complaint fails to state an Eighth Amendment claim against her,
upon which relief can be granted.
Mr. Jones further alleges that he complained to Nurse
Rincon on April 15, 2021 that he felt sick. She told him that
the results from his COVID-19 test administered on April 14 were
not yet available, and then she administered a rapid test. Mr.
Jones tested positive and was quarantined several hours later,
where he remained for ten days. There are no allegations in the
Complaint suggesting that Nurse Rincon exposed Mr. Jones to a
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substantial risk of serious harm to Mr. Jones by her actions on
April 15, 2021. Accordingly, the district judge should dismiss
Mr. Jones’s Eighth Amendment claims asserted against both of the
nurses named as defendants.
C. CO Lavoie
Mr. Jones has alleged that when Mr. Jones pulled the duress
alarm and told CO Lavoie that he feared he had COVID-19 at night
on April 13, 2021, CO Lavoie did not summon the lieutenant in
charge at Mr. Jones’s request and ultimately wrote up Mr. Jones
for misuse of his duress alarm. The facts alleged do not
suggest that CO Lavoie acted with deliberate indifference to any
known substantial risk of serious harm to Mr. Jones by refusing
to let him talk to the lieutenant at night or by writing him up
for a disciplinary offense relating to the duress alarm, under
the circumstances. Accordingly, the district judge should
dismiss Mr. Jones’s Eighth Amendment claims asserted against CO
Lavoie.
D. Lt. McCormick
Mr. Jones has alleged that he complained to Lt. McCormick
on April 15 about feeling sick, and that within several hours,
he underwent a COVID test, tested positive, and was quarantined.
He has not alleged any facts which manifested the lieutenant’s
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subjective awareness that his own acts or omissions relating to
Mr. Jones caused him to be exposed to any substantial risk of
serious harm. Accordingly, the district judge should dismiss
Mr. Jones’s Eighth Amendment claims asserted against Lt.
McCormick.
E. Supervisory Prison Officials
In general, in a Bivens action, “a plaintiff must plead
that each Government-official defendant, through the official’s
own individual actions, has violated the Constitution.” Iqbal,
556 U.S. at 676 (2009). There are no specific allegations in
the Complaint regarding any acts or omissions of (former) FCI
Berlin Warden Robert Hazlewood; Assistant Warden T. Steals;
Assistant Warden D. Ramirez; or Health Services Administrator
Teleisa Crnkovich, apart from Mr. Jones’s generalized
allegations regarding the alleged failure of FCI Berlin
officials to consistently implement “mandatory” BOP policies and
CDC protocols.
The Complaint does not tie any of the alleged
inconsistencies in implementing the isolation and testing
protocols and policies to the acts or omissions of any
particular supervisory defendant, and the Complaint does not
link any supervisory defendants’ acts or omissions to any
subjective awareness of Mr. Jones’s circumstances. “The fact
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that an outbreak has occurred, without more, is insufficient to
establish that the BOP was deliberately indifferent to the risk
of harm that COVID-19 poses.” Mateo v. FCI Berlin Warden, No.
20-cv-1012-PB, 2021 DNH 089, 2021 U.S. Dist. LEXIS 98383, at *8
n.6, 2021 WL 2109748, at *4 n.6 (D.N.H. May 24, 2021); see also
Wilson v. Williams, 961 F.3d 829, 842-43 (6th Cir. 2020)
(rejecting contention that BOP “was deliberately indifferent to
petitioners’ health and safety because [its] actions have been
ineffective at preventing the spread of COVID-19 . . .”).4
Mr. Jones’s allegations do not state an Eighth Amendment
claim upon which relief can be granted as to the acts or
omissions of any FCI Berlin supervisor. Accordingly, the
district judge should dismiss all of Mr. Jones’s Eighth
4 This court notes that the docket and orders in other cases
filed by FCI Berlin prisoners indicate that, in the time period
at issue here, the BOP had implemented a multi-step plan to
control the transmission of COVID-19 at FCI Berlin. See
generally Alcorta, 2021 U.S. Dist. LEXIS 167832, at *6, 2021 WL
3934355, at *1; Mateo, 2021 WL 2109748, at *4, 2021 U.S. Dist.
LEXIS 98383, at *8. The measures cited in those cases included
inmate and staff vaccination, mask use, and social distancing,
which are matters that Mr. Jones does not address in his
Complaint. The courts in those cases concluded that the
availability of vaccinations and other measures implemented at
FCI Berlin “demonstrate[] the reasonableness of the BOP’s
handling of the risk from COVID-19” at that facility. Mateo,
2021 WL 2109748, at *4, 2021 U.S. Dist. LEXIS 98383, at *8;
accord Alcorta, 2021 U.S. Dist. LEXIS 167832, at *6, 2021 WL
3934355, at *2 (“The efforts to protect Alcorta and other
prisoners at FCI Berlin from the COVID-19 virus are reasonable
and do not show any deliberate indifference to the risks posed
by the virus.”).
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Amendment claims against the FCI Berlin supervisors named as
defendants: (former) Warden Robert Hazlewood; Assistant Warden
T. Steals; Assistant Warden D. Ramirez; and Health Services
Administrator Teleisa Crnkovich.
Conclusion
For the foregoing reasons, the district judge should
dismiss all of Mr. Jones’s Eighth Amendment Bivens claims, and,
consequently, all of the defendants -- except for the United
States -- should be dropped from this action. Any objections to
this Report and Recommendation must be filed within fourteen
days of the date of receipt of this notice. The objection
period may be extended upon motion. Failure to file any
objection 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). Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 18, 2024
cc: Arthur Jones, Jr., pro se
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