Morris v. Bureau of Prisons, United States of America et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert C. Morris
v. Civil No. 22-cv-275-SE-AJ
Federal Bureau of Prisons et al.1
(Superseding) REPORT AND RECOMMENDATION
Before the court in this prisoner civil rights action
including Federal Tort Claims Act (“FTCA”) claims is Robert C.
Morris’s objection (Doc. No. 11) to the May 15, 2023 Report and
Recommendation (“May 15 R&R”) (Doc. No. 6). The court took that
objection and the May 15 R&R under advisement pending the
undersigned magistrate judge’s review of whether the new
allegations in Document No. 11 warrant any modification of the
May 15 R&R. See Aug. 17, 2023 Order. Also before this court is
Morris’s response (Doc. No. 12) to the May 15, 2023 Order (“May
1 The court previously directed service of this action upon
the United States and upon FCI Berlin Corrections Officer Albut
and Case Manager Ferron. The Service Order this date directs
service of this action upon these new defendants: the FCI Berlin
Clinical Director from May 2021 through July 2021; the FCI
Berlin Health Services Administrator from May 2021 through July
2021; FCI Berlin health care provider Dr. P. Pedersen; FCI Fort
Dix Health Services Administrator James Wilk; FCI Fort Dix
health care provider Dr. Patel; and the FCI Fort Dix Clinical
Director, Medical Trip Coordinator, and “Captain-Custody,” who
served in those capacities at FCI Fort Dix from September 1,
2021 to September 26, 2023.
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15 Order”), see Doc. No. 7, at 1-2, which directed Morris to
name defendants to his claims regarding his cataracts.
The new facts alleged in Document Nos. 11 and 12, including
the date of his transfer (July 22, 2021) from the Federal
Correctional Institution in Berlin (“FCI Berlin”) to the
facility in New Jersey known as FCI Fort Dix, and the names of
potential defendants, present a different picture of who was
involved, what happened, when and where. This (superseding) R&R
embodies this court’s identification and preliminary review of
all of Morris’s claims raised in his initial pleadings,
construed to consist of Document Nos. 5, 11, and 12.
Preliminary Review Standard
Morris’s Amended Complaint (Doc. No. 5) and his complaint
addenda (Doc. Nos. 11, 12) are before this court for preliminary
review under LR 4.3(d)(1) and 28 U.S.C. § 1915A. In conducting
that preliminary review, the court may dismiss claims for lack
of jurisdiction; if a defendant is immune; if the plaintiff has
failed to state a claim upon which relief can be granted; or if
the action is frivolous or malicious. See 28 U.S.C. § 1915A(b).
To determine whether to dismiss one or more claims for
failure to state a claim upon which relief can be granted, this
court takes as true the factual content asserted by the
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plaintiff and inferences reasonably drawn from those facts,
strips away legal conclusions, and considers whether the
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)). Because
Morris is proceeding without counsel, the court construes his
pro se pleadings liberally. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam).
Background
I. Assault & Post-Assault Medical Care
On March 26, 2021, Morris’s cellmate and two other FCI
Berlin prisoners -- “Lala” and “Church” -- entered Morris’s
cell. Lala, known to Morris as a “white gang member,” announced
something to the effect of, “It’s time for you to go,” and then
punched Morris’s cellmate in the face. Church then turned and
struck Morris in the head. Morris lost consciousness. The
assault continued for several minutes before Morris’s cellmate
escaped and hit an emergency button. Officers “flooded” the
unit, obtained medical care for a laceration on Morris’s head,
and then transferred all four prisoners to the FCI Berlin
Special Housing Unit (“SHU”).
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Three days after the incident, Morris’s blood sugar became
elevated, and he briefly passed out. FCI Berlin staff sent him
to a local hospital. A CT scan on that date was “negative.”
Morris asserts that Church and Lala targeted him for the
assault at FCI Berlin on March 26, 2021 because he was known to
be a sex offender. Before that date, Morris had told his Case
Manager Andrea Ferron that the recent influx of “white gang
members” posed a threat to sex offenders. Morris further
alleges that personnel in the BOP Central Office who assign
prisoners to federal facilities know about gang affiliations and
prisoner criminal histories.
Morris specifically alleges that FCI Berlin CO Albut
“hate[d]” sex offenders, knew of Morris’s sex offender history,
and maintained a “favorable,” nonsexual relationship with Lala.
Morris further asserts that CO Albut immediately triggered her
body alarm when the emergency call button sounded, without
investigating, suggesting to Morris that CO Albut knew the
attack would occur but had not taken steps to thwart it. Morris
also alleges that CO Albut tried to place him in the SHU with a
“known Mexican gang member,” but did not succeed in doing so.
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II. Lost Property
Morris asserts that after the assault, CO Albut and another
unnamed CO were ordered to secure Morris’s cell. Morris’s cell
was “found unsecured” on the day after the assault.
Morris asserts he lost personal property that had been in
his cell when he was in the SHU. Morris grieved three claims
about his lost property, following the steps outlined in BOP
Program Statement (“PS”) 1320.06 for filing administrative tort
claims. One of Morris’s property loss claims was for less than
$1,000.00 and the remaining two claims substantially exceeded
that amount; Morris estimates he lost property worth $62,511.00.
BOP officials, relying on PS 5580.09, recharacterized all three
of Morris’s property loss claims as “small claims” under 31
U.S.C. § 3723, which the BOP Director could settle for up to
$1,000.00 and then notified Morris that the agency’s disposition
of his property loss claims was not reviewable by any court.
III. Cataracts
When Morris underwent an eye exam at FCI Berlin in
September 2020, he did not have cataracts. Morris started to
experience vision problems two months after the assault. He
asserts he complained about vision problems to FCI Berlin
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medical staff members in May 2021, prior to his July 2021
transfer to FCI Fort Dix.
Morris alleges that an eye examination at FCI Fort Dix in
September 2021 disclosed that Morris had cataracts in both eyes.
Morris saw an eye surgeon on January 4, 2022 and February 4,
2022 was set as the “target date” for surgery. Surgery did not
occur on that date. FCI Fort Dix officials postponed the
surgery at least two more times in 2022 for reasons including
“staff/transportation shortages.” Morris reports that by June
2022, his vision had deteriorated to the extent that he was
“legally blind”; he could no longer read large-type print, write
clearly, or endure bright lights, exercise, or reading, without
suffering headaches, nausea, or vomiting. Morris asserts that
BOP providers and administrators delayed his cataracts surgery
because they applied a BOP policy that deems cataracts surgery
to be a lower priority procedure, without consideration of his
own medical needs.
Morris underwent surgical correction of his cataracts after
he filed this action. Morris states that cataracts surgery on
his left eye on or about February 27, 2023 successfully restored
his ability to read and see, see id., Pt. II, ¶ 8. And Morris’s
filings in his criminal case state that he had cataracts surgery
on his right eye on or before September 26, 2023, see United
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States v. Morris, No. 4:06-cr-00051-P-1 (N.D. Tex., Def.’s Aff.,
docketed Apr. 16, 2024) (ECF No. 48, at 22) (“[t]hese surgeries
eventually took place almost 2½ years after the assault”).
IV. Procedural History
Morris filed this action in 2022 while incarcerated at FCI
Fort Dix in New Jersey. This court’s May 15 R&R misconstrued
his pleadings as describing events that occurred only at FCI
Berlin. As a result, this court failed to identify any claims
asserted by Morris arising at FCI Fort Dix.
Document Nos. 11 and 12 clarify where Morris was imprisoned
at the time of the events, and they also name people Morris
considers liable. Consideration of Document Nos. 11 and 12 has
caused this court to vacate and withdraw the May 15 R&R and to
issue this (superseding) R&R.
Claims
The claims asserted by Morris are the following:
1. Morris suffered a violation of his Eighth Amendment
rights as to the risk of a prisoner assault, in that:
a. FCI Berlin defendants failed to protect Morris from
prisoner violence, with deliberate indifference to a
substantial risk of serious harm; and
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b. BOP personnel responsible for assigning prisoners to
federal prisons failed to protect Morris from
prisoner violence by assigning him to FCI Berlin.
2. Morris suffered a violation of his Eighth Amendment
right to medical care at FCI Berlin, in that:
a. FCI Berlin health services personnel failed to
diagnose and/or treat injuries to Morris’s head
after the assault, with deliberate indifference to a
substantial risk of serious harm; and
b. The FCI Berlin Health Services Administrator, the
FCI Berlin Clinical Director, and/or Dr. P. Pederson
delayed the diagnosis and treatment of Morris’s
vision problems at FCI Berlin beginning in May 2021,
with deliberate indifference to a substantial risk
of serious harm.
3. Morris suffered a violation of his Eighth Amendment
right to medical care at FCI Fort Dix, in that Dr. Patel,
FCI Fort Dix Health Services Administrator Jeffrey Wilk,
the FCI Fort Dix Clinical Director, the FCI Fort Dix
Medical Trip Coordinator, and/or the FCI Fort Dix “Captain-
Custody,” delayed the surgical correction of Morris’s
cataracts at FCI Fort Dix beginning in September 2021, with
deliberate indifference to his serious medical needs.
4. Morris suffered violations of his constitutional
rights with respect to his property, in that:
a. FCI Berlin officers failed to enforce policies
relating to prisoner personal property and failed to
secure Morris’s cell, causing Morris to suffer a
loss of personal property, in violation of his Fifth
Amendment right to due process;
b. BOP personnel including BOP Supervisor Attorney
Patrick Ward, failed to apply appropriate BOP
policies or laws in response to Morris’s
administrative property loss claims, in violation of
Morris’s Fifth Amendment right to due process;
c. Attorney Patrick Ward and/or other BOP agents
interfered with Morris’s ability to obtain judicial
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review of his property loss claims, in violation of
Morris’s right of access to the courts.
5. The federal agencies -- the BOP and FCI Berlin -- are
liable for violations of Morris’s federal constitutional
rights, relating to the assault, his injuries, his
cataracts, and his property loss.
6. The United States is liable under the FTCA for the
tortious acts or omissions of BOP employees, in that:
a. CO Albut (i.) knowingly and intentionally, or (ii.)
negligently, failed to protect Morris from prison
gang violence;
b. Case Manager Andrea Ferron, the FCI Berlin Warden,
and unnamed FCI Berlin SIS investigators negligently
failed to protect Morris from prison gang violence;
c. BOP personnel responsible for assigning Morris to
FCI Berlin negligently failed to protect him;
d. FCI Berlin health services personnel negligently
failed to diagnose or treat Morris’s head injury;
e. The FCI Berlin personnel negligently failed to
diagnose and treat Morris’s vision problems;
f. FCI Fort Dix personnel negligently delayed the
surgical correction of Morris’s cataracts while he
was at FCI Fort Dix; and
g. CO Albut and other FCI Berlin COs knowingly and
intentionally, or negligently, caused Morris’s loss
of personal property.
Discussion
I. Injunctive Relief Claims Relating to Cataracts
“A plaintiff must demonstrate standing separately for each
form of relief sought.” Friends of the Earth, Inc. v. Laidlaw
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Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). “‘[A]
continuing violation or the imminence of a future violation’ is
necessary to confer Article III standing to seek injunctive
relief.” Conservation Law Found. v. Pub. Serv. Co. of N.H., No.
11-cv-353-JL, 2012 DNH 174, 2012 WL 4477669, at *10, 2012 U.S.
Dist. LEXIS 138881, at *40 (D.N.H. Sept. 27, 2012) (citation
omitted); see also City of L.A. v. Lyons, 461 U.S. 95, 109
(1983) (plaintiff who had been subjected to police chokehold
lacked standing to enjoin enforcement of police chokehold policy
in future because he could not credibly allege that he faced
realistic threat from policy).
Morris’s Amended Complaint (Doc. No. 5) requested an order
directing the BOP to provide him with cataracts surgery and to
revise its policy regarding the availability of cataracts
surgery. Morris appears to have obtained cataracts surgery in
both of his eyes without any court order. Morris has not
alleged any facts here suggesting that his cataracts, having
been treated surgically, are likely to require any further
surgery. Morris’s injunctive relief claims seeking a policy
change and surgery thus appear to be moot. Accordingly, the
district judge should dismiss as moot Morris’s request for
surgery and for revisions to the BOP cataracts surgery policy.
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II. FTCA Claims (Claims 6(a)-(g))
A. Personal Injury Claims (Claims 6(a)-(f))
Morris has asserted tort claims against the United States
under the FTCA. See 28 U.S.C. §§ 1346(b)(1), 2674. An FTCA
claim may be actionable if it alleges the six elements of §
1346(b), which are that the claim be:
“[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 claimant
in accordance with the law of the place where the
act or omission occurred.”
Brownback v. King, 141 S. Ct. 740, 746 (2021) (quoting Meyer,
510 U.S. at 475–476). In the Order this date, the court has
directed that Morris’s personal injury FTCA claims, numbered
here as Claims 6(a)-(f), be served upon the United States.
B. Property Loss FTCA Claims (Claim 6(g))
Morris has alleged that lax enforcement of BOP policies
regarding where prisoners may store their property while in BOP
custody, and the failure of CO Albut and others to secure his
cell and his property while he was in the FCI Berlin SHU,
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resulted in the theft or loss of his personal belongings. He
asserts that the value of the items he lost was $62,511.00.
Property loss claims arising out of a federal officer’s
alleged tortious handling or storage of a prisoner’s property
are not actionable under the FTCA. See Bostic v. Mansukhani,
No. 17-12132-RGS, 2017 U.S. Dist. LEXIS 189482, at *3 (D. Mass.
Nov. 16, 2017) (claim that “BOP officers negligently failed to
protect [prisoner’s] property from theft while he was [in]
segregation,” was barred by 28 U.S.C. § 2680(c)); see also Ali
v. BOP, 552 U.S. 214, 227-28 (2008); Brown v. United States, 384
F. App’x 815, 818 (10th Cir. 2010) (§ 2680(c) barred FTCA claim
arising from BOP officer’s acts in allowing prisoners to rifle
through and steal other prisoner’s property). The United
States’ waiver of its sovereign immunity under the FTCA does not
cover the type of property loss claims Morris has pleaded; that
waiver is subject to the “detention of goods” exemption, 28
U.S.C. § 2680(c), which excludes from the FTCA’s waiver of
sovereign immunity “[a]ny claim arising in respect of . . . the
detention of any goods, merchandise, or other property by any
. . . law enforcement officer,” unless the “property was seized
for the purpose of forfeiture . . . .” 28 U.S.C. § 2680(c).
Morris’s claims did not arise from property seized for
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forfeiture. Accordingly, the district judge should dismiss
Claim 6(g).
II. Claims for Damages for Violations of Federal Rights
A. 42 U.S.C. § 1983
Morris has asserted that 42 U.S.C. § 1983 provides a cause
of action for his federal constitutional tort claims. All of
the defendants here are federal actors. None is alleged to have
acted under color of state law. Accordingly, the district judge
should dismiss the § 1983 claims asserted in this action.
B. Bivens Claims
1. Limited Nature of Remedy
Morris also cites the Bivens doctrine, see Bivens v. Six
Unknown Named Agents of Fed. Bur. of Narcs., 403 U.S. 388
(1971), as providing a cause of action for his constitutional
claims. The Bivens doctrine allows a plaintiff to vindicate
certain rights through a cause of action for damages against
federal officials in their individual capacities. See DeMayo v.
Nugent, 517 F.3d 11, 14 (1st Cir. 2008).
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2. Claims against Federal Agencies (Claim 5)
Morris has named the BOP and FCI Berlin as defendants.
Bivens claims cannot proceed against federal agencies. See FDIC
v. Meyer, 510 U.S. 471, 486 (1994). And “[v]icarious liability
is inapplicable” under Bivens; “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. Accordingly, the district judge should dismiss
Claim 5, supra, encompassing all of his federal constitutional
damages claims asserted against FCI Berlin and the BOP, and
those agencies should be dropped from this case.
3. Test for Availability of Bivens Remedy
Bivens remedies are not available to vindicate every type
of constitutional violation perpetrated by federal officers.
There is a two-step test for determining if a Bivens remedy is
available in a particular case. Courts must first consider
whether the claim at issue presents a new context for
applying Bivens. “If the case is different in a meaningful way
from previous Bivens cases, . . . then the context is
new.” Ziglar v. Abbasi, 582 U.S. 120, 139 (2017).
Meaningful differences may include, e.g., the rank of the
officers involved; the constitutional right at issue; the
extent of judicial guidance for the official conduct; the
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risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential
special factors not considered in previous Bivens cases.
Id. at 122. If the case does not present a new context, “‘no
further analysis is required.’” Watanabe v. Derr, 115 F.4th
1034, 1038 (9th Cir. 2024) (citation omitted).
If the case presents a new context for a Bivens remedy, the
court turns to the second step, known as the “special factors”
inquiry. A Bivens remedy is unavailable in a new context if
there are special factors counselling hesitation. Abassi, 582
U.S. at 140. The special factors inquiry “concentrate[s] on
whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Id. at 136.
4. Failure-to-Protect Claims
The court first examines whether Morris’s failure-to-
protect claims present a new Bivens context. The Supreme Court
has recognized only three types of cases where Bivens remedies
are available, including only one prisoner civil rights case,
Carlson v. Green, 446 U.S. 14 (1980). See generally Abbasi, 582
U.S. at 131. Carlson involved Eighth Amendment claims brought
by the estate of a prisoner who died from inadequately treated
asthma, and allegations that “officials allegedly kept [the]
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prisoner in a subpar medical facility against the advice of
doctors, failed to give him competent care for eight hours after
an asthma attack, administered the wrong drugs, used a faulty
respirator, and delayed his transfer to a hospital.” Sargeant
v. Barfield, 87 F.4th 358, 366 (7th Cir. 2023) (citing Carlson,
446 U.S. at 16 n.1). Morris’s failure-to-protect claims are
meaningfully different because they implicate the alleged
failure of defendants to respond to specific information about
prison gangs, as well as the failure of BOP Central Office
personnel to make prison designation decisions with reference to
system-wide information. See Fisher v. Hollingsworth, 115 F.4th
197, 206 (3d Cir. 2024); Johnson v. Terry, 112 F.4th 995, 1011–
12 (11th Cir. 2024). Morris’s failure-to-protect claims present
a new context for Bivens.
The second step of the inquiry is whether there are special
factors counselling against extending a Bivens remedy. “[A}
court may not fashion a Bivens remedy if Congress already has
provided, or has authorized the Executive to provide, ‘an
alternative remedial structure.’” Egbert v. Boule, 596 U.S.
482, 493 (2022) (citation omitted). The BOP administrative
grievance process is the type of alternative remedial structure
that prevents the court from fashioning a Bivens remedy.
Fisher, 115 F.4th at 207–08 (special factors include existence
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of BOP remedy program and fact that prisoner’s failure-to-
protect claims, if successful, could impose “systemwide costs”).
Accordingly, the district judge here should dismiss all of
Morris’s failure-to-protect Bivens claims (Claims 1(a)-(b)).
5. Medical Care Claims for Damages
a. Availability of Bivens Remedy
Without expressing any opinion at this time as to the
availability of a Bivens remedy as to Morris’s medical care
claims, this court turns now to whether Claims 2(a)-(b)
otherwise state a claim of an Eighth Amendment violation.2
b. Elements of Eighth Amendment Claim
An Eighth Amendment medical care claim has both objective
and subjective elements. See Wilson v. Seiter, 501 U.S. 294,
298 (1991). The objective component may be established by
evidence of a medical need “‘that has been diagnosed by a
physician as mandating treatment, or one that is so obvious that
2 Compare Johnson, 112 F.4th at 1013-17 (“severity, type,
and treatment” of prisoner’s non-lethal injuries, as well as
existence of BOP remedies, made claims meaningfully different
from those in Carlson), with Watanabe, 115 F.4th at 1040-42
(Eighth Amendment claim, alleging nurse’s deliberate
indifference to chronic, severe, non-lethal pain, was
functionally similar to Carlson and actionable under Bivens).
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even a lay person would easily recognize the necessity for a
doctor’s attention.’” Miranda-Rivera v. Toledo-Dávila, 813 F.3d
64, 74 (1st Cir. 2016) (citation omitted).
“The ‘seriousness’ of an inmate’s needs may also be
determined by reference to the effect of the delay of
treatment.” The serious medical need inquiry is fact-
specific and must be tailored to the specific
circumstances of the case.
Abernathy v. Anderson, 984 F.3d 1, 6 (1st Cir. 2020) (citations
omitted).
A showing of deliberate indifference satisfies the
subjective prong. See Farmer v. Brennan, 511 U.S. 825, 834
(1994). A prisoner must show that defendants were aware of
circumstances that gave rise to an inference that a serious
medical need or other substantial risk of serious harm existed;
defendants drew the inference that such a need or risk existed;
and defendants did not take reasonable steps to address that
need or risk. See id. at 828-29. To prevail, the prisoner must
show that the defendant’s act or omission was purposeful and not
negligent. See Abernathy, 984 F.3d at 6; Kosilek v. Spencer,
774 F.3d 63, 83 (1st Cir. 2014) (“‘Medical malpractice does not
become a constitutional violation merely because the victim is a
prisoner.’” (citation omitted)).
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c. FCI Berlin Medical Care
i. Head Injury (Claim 2(a))
Morris has pleaded facts indicating that in the immediate
aftermath of the assault, Morris’s head laceration received
first aid, and that a CT scan performed three days later, after
he fainted, was “negative.” He has not pleaded any facts
showing that the first aid he received immediately after the
assault, and the CT scan he received several days later, was so
inadequate as to manifest deliberate indifference. And he has
not alleged that the three-day delay before he received a CT
scan amounted to deliberate indifference to a known substantial
risk of serious harm. At most his claims suggest negligence.
Accordingly, the district judge should dismiss Claim 2(a).
ii. Vision Complaints (Claim 2(b))
Morris has also specifically alleged that in September 2020
he did not have any cataracts; in May 2021, he complained at FCI
Berlin about his vision problems; and an eye examination on
September 1, 2021 at FCI Fort Dix disclosed that he had
cataracts. In the May 15 Order (Doc. No. 7), the court granted
Morris leave to file a complaint addendum, naming the
individuals at FCI Berlin who he alleges did not arrange for
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cataracts surgery and showing what those individuals knew and
did that violated his Eighth Amendment rights.
In response, Morris filed Document No. 12, which clarifies
the July 2021 date of his transfer to FCI Fort Dix and lists
three individuals associated with FCI Berlin who he alleges did
not respond appropriately to his vision complaints: the
Clinical Director; the Health Services Administrator; and health
care provider Dr. P. Pedersen. Without prejudice to defendants’
ability to move to dismiss Claim 2(b) on any basis, this court
directs service of Claim 2(b) upon the pertinent FCI Berlin
Clinical Director and Health Services Administrator, who served
in that capacity from May 2021 through July 2021; and upon Dr.
P. Pedersen, regarding their acts or omissions relating to
Morris’s undiagnosed or untreated vision problems at FCI Berlin.
d. Cataracts at FCI Fort Dix (Claim 3)
Morris has alleged that BOP personnel at FCI Fort Dix
delayed his cataracts surgery because they applied a BOP policy
that deems such surgery to be a lower priority, “medically-
acceptable” elective procedure. He alleges that his case came
before the Fort Dix Institution Utilization Review Committee.
He identifies Dr. Patel, Health Services Administrator Jeffrey
Wilk, the FCI Fort Dix Medical Trip Coordinator, the FCI Fort
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Dix “Captain-Custody,” and the FCI Fort Dix Clinical Director as
individuals at FCI Fort Dix who were part of the Utilization
Review Committee or were otherwise aware of his medical need for
cataracts surgery and caused the surgery delays. He alleges
that after his February 27, 2023 surgery on his left eye, he
could read and see. On or before September 26, 2023, Morris had
cataracts surgery on his right eye.
Without prejudice to defendants’ ability to move for
dismissal of Claim 3 upon any basis, in the Order this date, the
court directs service of Morris’s Eighth Amendment delayed
cataracts surgery claim (Claim 3) upon those individuals, in the
time period after Morris’s cataracts were diagnosed on September
1, 2021, until the date of Morris’s cataracts surgery on his
right eye (on or before September 26, 2023).
e. Other Individuals in Document No. 12
In Document No. 12, Morris lists other BOP “officials
and/or positions of unnamed officials within the BOP responsible
for the care and treatment of Morris that . . . caused delays in
cataract surgery.” Morris’s allegations to-date fail to
establish that the BOP Central Office medical director, the BOP
Northeast Regional Office health services administrator, and
Attorney Patrick Ward, all listed in Document No. 12, had the
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requisite subjective knowledge of Morris’s serious medical needs
relating to his cataracts and, through their own actions or
inactions, manifested deliberate indifference to those needs,
sufficient to state a claim of a violation of Morris’s Eighth
Amendment rights. Accordingly, the district judge should drop
as parties the BOP Central Office medical director, the BOP
Northeast Regional Office health services administrator, and
Attorney Patrick Ward, because Morris as failed to state a claim
for damages against them upon which relief can be granted.
C. Due Process and Access to Courts (Claim 4)
1. Claim 4(a): Loss of Cell Property
Morris alleges that he lost personal property that had been
in his cell when FCI Berlin officers transferred him to the FCI
Berlin SHU. He claims a violation of his right not to suffer a
deprivation of property without due process of law.
To state a claim for relief for a violation of the Due
Process Clause, a plaintiff must allege facts showing that he or
she was deprived of a protected interest in life, liberty or
property and that “‘the procedures attendant upon that
deprivation were constitutionally’” insufficient. Gonzalez-
Fuentes v. Molina, 607 F.3d 864, 886 (1st Cir. 2010) (citation
omitted). It is well-settled that if a corrections officer
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loses a prisoner’s property, the Due Process Clause is not
violated if there are adequate post-deprivation procedures. See
Hudson v. Palmer, 468 U.S. 517, 533 & n.14 (1984). The
authority of the BOP Director and the Attorney General to settle
a prisoner’s administrative property loss claims, see 31 U.S.C.
§§ 3723 & 3724,3 provides such adequate post-deprivation
procedures. See Mitchell v. Spencer, No. 21-cv-01842-RM-MEH,
2023 WL 2424840, at *3, 2023 U.S. Dist. LEXIS 39843, at *9-10
(D. Colo. Mar. 9, 2023). Accordingly, the district judge should
dismiss Claim 4(a).
2. Claims 4(c): Loss of Cause of Action
Morris asserts that he was denied due process and suffered
interference with his right of access to the courts when BOP
employees treated his $62,511.00 personal property loss claims
as if the BOP Director’s authority to settle claims for
$1,000.00 or less, see 31 U.S.C. § 3723. Morris asserts that
the agency’s handling of his claims was not consistent with BOP
3 Section 3723 authorizes the BOP Director to “settle a
claim for not more than $1,000 for damage to, or loss of,
privately owned property that . . . is caused by the negligence
of an officer or employee of the United States Government acting
within the scope of employment.” 31 U.S.C. § 3723(a). The
Attorney General may settle similar property loss claims up to
$50,000, see id. § 3724.
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policy. Morris, however, does not have a freestanding right
protected by the Due Process Clause to have BOP personnel assign
the same value to his property loss claims that he assigns to
those claims or to comply with agency policies and procedures.
See, e.g., McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir.
2012) (“An assertion that prison officials failed to follow
prison rules or policies does not set forth a constitutional
claim.”); Bostic v. Carlson, 884 F.2d 1267, 1271 (9th Cir. 1989)
(prison officials’ noncompliance with prison guideline regarding
timing of disciplinary hearing does “not alone constitute a
denial of due process”). And the alleged lack of compliance
with a BOP program statement is not a violation of federal law,
as program statements are “‘internal agency guidelines [that]
may be altered by the [BOP] at will.’” Reeb v. Thomas, 636 F.3d
1224, 1227 (9th Cir. 2011) (citations omitted).
Furthermore, Morris’s due process claims are premised on
his conclusion that he had potentially meritorious FTCA claims
that BOP officials did not handle as if they were FTCA claims,
and that because of how those BOP officials characterized his
claims, Morris lost his FTCA cause of action for having lost
property while in the SHU, cf. Logan v. Zimmerman Brush Co., 455
U.S. 422, 428 (1982) (“a cause of action is a species of
property protected by the Fourteenth Amendment's Due Process
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Clause”). Morris’s legal conclusion about having lost a viable
FTCA cause of action is incorrect. Property loss claims arising
out of a corrections officer’s alleged tortious handling or
storage of a prisoner’s property are not actionable under the
FTCA. See Bostic v. Mansukhani, No. 17-12132-RGS, 2017 U.S.
Dist. LEXIS 189482, at *3 (D. Mass. Nov. 16, 2017) (claim that
“BOP officers negligently failed to protect [prisoner’s]
property from theft while he was [in] segregation,” was barred
by 28 U.S.C. § 2680(c)); see also Ali v. BOP, 552 U.S. 214, 227-
28 (2008); Brown v. United States, 384 F. App’x 815, 818 (10th
Cir. 2010) (§ 2680(c) barred FTCA claim arising from BOP
officer’s acts in allowing other prisoners to rifle through and
steal property of prisoner in segregation). Accordingly, Morris
has not stated any claim of a deprivation of any protected
property interest that is actionable under the Due Process
Clause. Accordingly, the district judge should dismiss Claim
4(b).
Similarly, the district judge should dismiss Morris’s claim
of interference with his right of access to the courts, relating
to the alleged mischaracterization or undervaluing of his
administrative property loss claims. A prisoner-plaintiff must
allege facts showing that defendants actually injured the
plaintiff’s ability to pursue a nonfrivolous claim in a post-
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conviction proceeding or other civil rights matter that the
prisoner had a right to litigate. See Lewis v. Casey, 518 U.S.
343, 352, 354-55 (1996). Because Morris’s property loss claims
were never actionable under the FTCA, cf. 28 U.S.C. § 2680(c),
he suffered no actual injury in his ability to litigate those
claims as a result of any act or omission of the defendants.
And nothing in the record otherwise suggests that Morris
otherwise suffered the loss of any nonfrivolous claim because of
the way BOP agents handled his property loss claims.
Accordingly, the district judge should dismiss Claim 4(c).
Conclusion
For the foregoing reasons the magistrate judge recommends
as follows:
1. The District Judge should dismiss as moot Morris’s
requests for injunctive relief seeking cataracts surgery
and modification of the BOP policy concerning the
availability of cataracts surgery.
2. The District Judge should dismiss the following claims
for failure to state a claim upon which relief can be
granted:
a. All claims asserted under 42 U.S.C. § 1983; and
b. Claims 1(a)-(b), 2(a), 4(a)-(c), 5, and 6(g).
3. The District Judge should drop the following defendants
from this action, for failure to state any claim against
them, upon which relief can be granted:
a. The BOP and FCI Berlin;
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b. FCI Berlin Corrections Officer Albut and FCI Berlin
Case Manager Andrea Ferron; and
c. The BOP Central Office medical director, the BOP
Northeast Regional Office health services
administrator, and BOP Attorney Patrick Ward.
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. Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat’l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). Any issues not preserved by
such objection(s) are precluded on appeal. See id. Failure to
file specific written objections to the Report and
Recommendation 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
November 18, 2024
cc: Robert C. Morris, pro se
Anna Dronzek, Esq.
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