Upchurch v. Vittorio

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Eric S. Upchurch, II,
Plaintiff,
v.
Dr. Vittorio, individually and in their official
capacity,
Defendant.
Case No. 25-cv-4630 (ECT/DJF)
REPORT AND
RECOMMENDATION
The matter is before the Court on preservice review pursuant to 28 U.S.C. § 1915A(a).
Plaintiff Eric S. Upchurch, II is presently incarcerated at the Federal Medical Center in Butner,
North Carolina (“FMC-Butner”), but he was previously incarcerated at the Federal Prison Camp
in Duluth, Minnesota (“FPC-Duluth”). He has been diagnosed with cancer, namely, stage 4 non-
Hodgkin’s follicular B-Cell Lymphoma. He challenges his cancer treatment and claims Defendant
Vittorio, the doctor who treated him at FPC Duluth, unlawfully extended the duration of his
incarceration to coerce him to participate in Dr. Vittorio’s recommended treatment. (ECF No. 1.)
Upon review, the Court recommends Mr. Upchurch’s Complaint be dismissed without prejudice
for failure to state a cognizable claim for relief, and that his IFP application (ECF No. 6) and
Motion to Appoint Counsel (ECF No. 2) be denied as moot.
I. Legal Standard
Pursuant to 28 U.S.C. § 1915A the Court must dismiss, on preservice review, all or part of
a prisoner’s complaint if it contains claims that: (1.) are frivolous, malicious, or fail to state a claim
upon which relief may be granted; or (2) seek monetary relief from a defendant who is immune
from such relief. 28 U.S.C. § 1915A(b). A claim is frivolous if “it lacks an arguable basis either
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in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon
which relief may be granted if it does not allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although a “pro se
complaint must be liberally construed,” Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843,
849 (8th Cir. 2014), pro se plaintiffs still must allege sufficient facts to “nudge[] their claims across
the line from conceivable to plausible or their complaint must be dismissed,” Twombly, 550 U.S.
at 569-70.
II. Background
Mr. Upchurch was diagnosed with cancer in June 2025 during his incarceration at FPC-
Duluth.1 At that time, he was placed on a “medical hold,” which prevented him from transferring
to a half-way house as scheduled. (ECF No. 1 at 2.) Mr. Upchurch did not want to follow the
recommended cancer treatment protocols, however, instead preferring a more “holistic” approach
involving a “regimen of specific herbs and a diet in alignment with his spiritual beliefs.” (Id.)
Considering his choice, prison officials provided him with a “medical refusal of treatment” form
to sign. Mr. Upchurch states he was under the impression that after he signed the form, the medical
hold would be lifted, and he would be transferred to the halfway house. (Id.) Instead, Dr. Vittorio
told him the medical hold would remain in place until he accepted Dr. Vittorio’s recommended
treatment, even though prison policy did not provide for a medical hold under such circumstances.
(Id.) Three months later, as his cancer worsened, Mr. Upchurch was transferred to FMC-Butner,
where he is undergoing chemotherapy treatments. (Id. at 3-4.)
Mr. Upchurch claims Dr. Vittorio wrongly refused to lift his medical hold, causing him to
serve additional time in custody and preventing him from pursuing his preferred holistic cancer
1 At this stage in the case the Court accepts all well-pleaded allegations in the Complaint
as true.
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treatments. He asserts a cause of action under 42 U.S.C. § 1983 and requests declarative and
injunctive relief and money damages.
III. Discussion
To establish a plausible claim for relief under Section 1983, “a plaintiff must allege
sufficient facts to show ‘(1) that the defendant(s) acted under color of state law, and (2) that the
alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right.’” Zutz
v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (quoting Schmidt v. City of Bella Villa, 557 F.3d 564,
571 (8th Cir. 2009)) (emphasis added). A threshold problem with Mr. Upchurch’s Section 1983
claim is that Section 1983 “authorizes constitutional challenges against state officials.” Farah v.
Weyker, 926 F.3d 492, 497 (8th Cir. 2019). But Mr. Upchurch is suing Dr. Vittorio, a federal
prison official, for actions taken at a federal correctional facility. Section 1983 thus does not apply
to this action.
Instead, because Mr. Upchurch seeks to assert constitutional violations against a federal
official, his claims must arise, if at all, under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcotics, 403 U.S. 388 (1971) (“Bivens”). In Bivens, the United States Supreme Court
recognized a cause of action against federal officials for alleged constitutional violations. Farah,
926 F.3d at 497. But the Supreme Court has narrowly limited the scope of any constitutional
claims that can be brought against federal officials, only recognizing a Bivens action three times,
over forty years ago. Id. at 497-98. Since that time, the Supreme Court has “consistently refused
to extend Bivens to any new context or new category of defendants.” Id. In this case, the Court
need not decide whether Bivens applies to Mr. Upchurch’s claims or whether those claims would
extend Bivens to a new context, because, for the reasons stated below, Mr. Upchurch has failed to
assert a plausible constitutional violation.
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The Complaint plausibly can be read to assert two constitutional violations: (1) failure to
allow Mr. Upchurch to pursue his own medical treatment in violation of the Eighth Amendment
prohibition on cruel and unusual punishment; and (2) failure to allow him to treat his cancer in
accordance with his “spiritual beliefs,” in violation of the First Amendment’s Free Exercise clause.
It is well established that “[p]rison officials or their agents violate the eighth amendment if
they commit ‘acts or omissions sufficiently harmful to evidence deliberate indifference to [an
inmate’s] serious medical needs.’” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). The deliberate indifference standard includes both
objective and subjective components: “The plaintiff must demonstrate (1) that he suffered from
objectively serious medical needs and (2) that the prison officials actually knew of but deliberately
disregarded those needs.” Id. (quoting Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997)).
“The prisoner must show more than negligence, more than even gross negligence, and mere
disagreement with treatment decisions does not rise to the level of a constitutional violation.” Id.
(quoting Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995)) (emphasis added).
Mr. Upchurch plainly disagrees with Dr. Vittorio’s treatment recommendations: He wanted
to pursue more “holistic” remedies such as turmeric, black pepper, and a diet of mostly raw fruits
and vegetables to treat his cancer. (ECF No. 1 at 4.) Dr. Vittorio evidently disagreed,
recommending treatment that included chemotherapy. But “[p]risoners do not have a
constitutional right to any particular type of treatment.” Long v. Nix, 86 F.3d 761, 765 (8th Cir.
1996). “Prison officials do not violate the Eighth Amendment when, in the exercise of their
professional judgment, they refuse to implement a prisoner’s requested course of treatment.” Id.
(listing cases). Dr. Vittorio’s refusal to allow Mr. Upchurch to pursue his preferred course of
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treatment therefore does not amount to a violation of the Eighth Amendment prohibition against
cruel and unusual punishment.
Next, Mr. Upchurch couches his demand for his preferred course of treatment as a demand
for treatment consistent “with his spiritual beliefs.” (ECF No. 1 at 2.) The Court thus considers
whether he has asserted a plausible First Amendment Free Exercise claim. To establish such a
claim, a plaintiff must establish that the contested action “substantially burdens his sincerely held
religious beliefs.” Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). To do so:
[the action] must significantly inhibit or constrain conduct or
expression that manifests some central tenet of a person’s individual
religious beliefs; must meaningfully curtail a person’s ability to
express adherence to his or her faith; or must deny a person
reasonable opportunities to engage in those activities that are
fundamental to a person’s religion.
Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813 (8th Cir. 2008) (quoting Murphy v. Mo. Dep’t
of Corr., 372 F.3d 979, 988 (8th Cir. 2004)).
Mr. Upchurch alleges no facts describing his religion, how treating his cancer with his
preferred holistic approach is consistent with that religion, or how failing to treat his cancer
holistically “significantly inhibit[s]” or “constrains” some central tenant of his religion. Absent
such facts, Mr. Upchurch fails to make a threshold showing that refusing to allow him to pursue
his preferred cancer treatments constitutes a substantial burden on his sincerely held beliefs. Mr.
Upchurch’s First Amendment Free Exercise claim therefore also fails as a matter of law.2
2 Courts in this Circuit have declined to extend Bivens to First Amendment Free Exercise
claims such as this one. See Hardy v. Bureau of Prisons, Case No. 18-CV-794 (DSD/BRT), 2019
WL 3085963, at *4 (D. Minn. June 10, 2019), report and recommendation adopted 2019 WL
3080916 (July 15, 2019). Instead, courts have concluded that the Religious Freedom Restoration
Act (“RFRA”) provides a plaintiff “with a comprehensive remedial scheme for violations of
substantial burdens on his religious exercise.” Moon v. Boyd, 727 F.Supp.3d 829, 843 (E.D. Mo.
2024). Indeed, Congress enacted RFRA “in order to provide greater protection for religious
exercise than is available under the First Amendment.” Holt v. Hobbs, 574 U.S. 352, 357 (2015).
RFRA provides that the “‘Government shall not substantially burden a person’s exercise of
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For the foregoing reasons, Mr. Upchurch has failed to assert a plausible constitutional claim
under either the Eighth Amendment or the First Amendment. Moreover, the Court finds in the
Complaint no other plausible constitutional or statutory violation over which the Court has
jurisdiction. See Gregory v. Dillard’s, 565 F.3d 464, 473 (8th Cir. 2009) (“A district court [] is
not required to divine the litigant’s intent and create claims that are not clearly raised, and it need
not conjure up unpled allegations to save a complaint.”) (internal citations and quotations omitted).
The Court accordingly recommends Mr. Upchurch’s Complaint be dismissed for failure to state a
cognizable claim for relief.
Finally, the Court addresses one additional matter. Mr. Upchurch repeatedly claims
throughout his Complaint that Dr. Vittorio’s conduct unlawfully extended his incarceration. (See
ECF No. 1 at 3.) To the extent Mr. Upchurch intends to challenge his detention, he faces additional
hurdles. The proper procedure for claims that challenge the fact or duration of a prisoner’s
confinement is a petition for a writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 499
(1973); Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam) (“The essence of
habeas corpus is an attack by a person in custody upon the legality of that custody.”). The Court
does not recommend recharacterizing Mr. Upchurch’s Complaint as a habeas petition for two
reasons, however.
religion even if the burden results from a rule of general applicability,’ unless the Government
‘demonstrates that application of the burden to the person (1) is in furtherance of a compelling
government interest and (2) is the least restrictive means of furthering that compelling interest.’”
United States v. Harper, 634 F.Supp.3d 594, 601-02 (N.D. Iowa 2022) (quoting Holt, 574 U.S. at
357). But under RFRA, as under the First Amendment, a plaintiff must establish that the
government placed “a substantial burden” on his religion. Patel, 515 F.3d at 813. For the reasons
set forth herein, Mr. Upchurch has not met this standard. Accordingly, if the Court were to
construe Mr. Upchurch’s Free Exercise claim as arising under RFRA, that claim would similarly
fail.
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First, the Eighth Circuit directed district courts to “first obtain the consent of the pro se
individual before converting their claims from a habeas proceeding to a [§ 1983] action” and vice
versa. See Spencer v. Haynes 774 F.3d 467, 471 (8th Cir. 2014). The plaintiff’s consent is required
because, for example, “a habeas corpus action and a prison civil rights suit differ in a variety of
respects—such as the proper defendant, filing fees, the means of collecting them, and restrictions
on future filings—that may make recharacterization impossible, or, if possible, disadvantageous
to the prisoner compared to a dismissal without prejudice of his petition for habeas corpus.”
Robinson v. Sherrod, 631 F.3d 839, 842 (7th Cir. 2011). In this case, Mr. Upchurch has not
consented to recharacterizing his Section 1983 (or Bivens) complaint as a habeas petition.
Second, as noted above, a habeas petitioner may challenge only the fact or duration of his
confinement. See Kruger, 77 F.3d at 1073. Here, Mr. Upchurch claims he would have been
transferred to a halfway house sooner if Dr. Vittorio had not placed a “medical hold” on him. This
claim is a challenge to the place of Mr. Upchurch’s confinement, not its length or duration. See
Elwood v. Jeter, 386 F.3d 842, 847 (8th Cir. 2004) (halfway house as place of confinement). And
a prisoner’s challenge to his place of confinement is not a cognizable habeas claim. Hernandez v.
Eischen, Case No. 24-CV-27 (KMM/DLM), 2024 WL 4839827, at *5 (D. Minn. Oct. 28, 2024)
(listing cases), report and recommendation adopted 2024 WL 4839158 (Nov. 20, 2024); see
United States v. James, 15-CR-255 (SRN), 2020 WL 1922568, at *2 (D. Minn. Apr. 21, 2020)
(holding that “it is [] well established that prisoners do not have a constitutional right to placement
in a particular facility or place of confinement.”) Therefore, any habeas petition Mr. Upchurch
might have brought would likely be subject to dismissal for lack of jurisdiction.
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RECOMMENDATION
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
RECOMMENDED THAT:
1. The Complaint (ECF No. 1) be DISMISSED WITHOUT PREJUDICE for
failure to state a claim upon which relief may be granted;
2. Plaintiff’s IFP Application (ECF No. 6) be DENIED as MOOT;
3. Plaintiff’s Motion to Appoint Counsel (ECF No. 2) be DENIED as MOOT; and
4. Plaintiff be required to pay the unpaid balance of the statutory filing fee for this
action ($339.72) in the manner prescribed by 28 U.S.C. § 1915(b)(2), with the Clerk of Court to
provide notice of this requirement to the authorities at the institution where he is confined.
Dated: February 13, 2026 s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District
Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. Under Local
Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge’s
proposed finding and recommendations within 14 days after being served a copy” of the Report
and Recommendation. A party may respond to those objections within 14 days after being served
a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must comply
with the word or line limits set forth in Local Rule 72.2(c).
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