Jenkins v. United States of America
U.S. District Court, District of Minnesota
Jenkins v. United States of America
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BETTY LEE JENKINS,
Civil No. 23-3253 (JRT/TNL)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
UNITED STATES OF AMERICA; COLETTE ADOPTING REPORT AND
PETERS, Director of the Federal Bureau of RECOMMENDATION
Prisons; ANDRE MATEVOUSIAN, Regional
Director of the Federal Bureau of Prisons;
WARDEN MICHAEL SEGAL, FCI Waseca;
ASSOCIATE WARDEN VAUGHT, FCI
Waseca; OFFICER KOZIOLEK, FCI Waseca;
LEE, Food Services Director FCI Waseca;
NELSON, Director of Safety FCI Waseca;
OFFICER HODVE, FCI Waseca; LOEFFLER,
H.S.A. FCI Waseca; T. PETERSON, Health
Services Director FCI Waseca; HILLSMAN,
CMC Coordinator FCI Waseca; DR. REYNA,
FCI Waseca; DR. SWANSON, FCI Waseca;
and DR. KIDMAN, FCI Waseca,
Defendants.
Betty Lee Jenkins, 12659 Eight Mile Road, Arva, ON NOM 1CO, Canada, pro
se Plaintiff.
Ana H. Voss and Emily M. Peterson, UNITED STATES ATTORNEY’S OFFICE,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for Defendant
United States of America.
Plaintiff Betty Lee Jenkins filed this action while incarcerated in federal prison. She
included five causes of action against the United States of America, Federal Bureau of
Prisons (“BOP”) officials, and Federal Correctional Institution Waseca (FCI Waseca) staff.
Magistrate Judge Tony N. Leung recommended the Court dismiss all claims without
prejudice except for the claims against the United States under the Federal Tort Claims
Act (“FTCA”). Because the Court agrees with the Magistrate Judge’s findings after
reviewing Jenkins’s objections de novo, the Court will overrule Jenkins’s objections and
adopt the Report and Recommendation (“R&R”).
BACKGROUND
Jenkins recently finished serving a sentence at FCI Waseca.1 (Compl. ¶ 4, Oct. 23,
2023, Docket No. 1.); Inmate Locator, Fed. Bureau of Prisons,
https://www.bop.gov/inmateloc (last visited Feb. 23, 2024). Prior to her release, Jenkins
filed this current action against the United States, BOP officials, and employees at FCI
Waseca alleging numerous harms stemming from her incarceration. (See Compl. ¶¶ 3–
21.) These harms include blindness as a result of inadequate eye care, “detrimental
health effects” from exposure to synthetic cannabinoid, increased risk of sexual and
physical assault, and lack of access to adequate programming. (Id. ¶¶ 24–26.) Jenkins
alleges that FCI Waseca’s systemic deficiencies are documented in a Report from the
1 While Jenkins has since been released, she was a “prisoner” under 28 U.S.C. § 1915A(c)
when she filed her Complaint, so it is still subject to preservice review. 28 U.S.C. § 1915A(a);
Domino v. Garland, No. 20-2583, 2021 WL 1221188, at *1 (D. Minn. Apr. 1, 2021) (applying §
1915A to a plaintiff released from custody after the Magistrate Judge issued their Report and
Recommendation because he was incarcerated when the complaint was filed).
Department of Justice Office of the Inspector General and that she herself has been
reporting issues to FCI Waseca for years without relief. (Id. ¶¶ 22–23; see also id. Ex. A.)
Jenkins brings five causes of action: (1) negligence by FCI Waseca officials under
the FTCA for delaying her medically necessary eye surgery; (2) negligence by FCI Waseca
officials under the FTCA for exposure to synthetic cannabinoid and risk of physical and
sexual violence; (3) failure by the BOP to maintain their statutory duty under 18 U.S.C. §
4042(a)(2)–(3); (4) failure by the BOP to maintain their statutory duty under18 U.S.C. § 3632
; and (5) two causes of action under Bivens against the Defendants for their failure
to protect Jenkins and their deliberate indifference to her serious medical need. (Id. ¶¶
24–29.) Jenkins requests money damages under the FTCA as well as declarative and
injunctive relief. (Id. ¶¶ 28, 30.)
On preliminary screening, the Magistrate Judge filed an R&R recommending the
Court dismiss all claims without prejudice except for the negligence claims under the FTCA
against the United States. (R. & R. at 12, Dec. 6, 2023, Docket No. 6.) Further, the
Magistrate Judge recommended denying Jenkins’s request for injunctive and declaratory
relief because the FTCA only provides for money damages. (Id. at 11–12.) Jenkins timely
filed objections to the R&R. (Obj. to R. & R., Dec. 18, 2023, Docket No. 11.)
DISCUSSION
I. STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may “serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b). “The objections should specify the portions of the magistrate
judge’s report and recommendation to which objections are made and provide a basis for
those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). For dispositive motions, the Court reviews de novo a “properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error.” Montgomery v. Compass Airlines, LLC,98 F. Supp. 3d 1012, 1017
(D. Minn. 2015).
A document filed by a pro se litigant is to be liberally construed and must be held
to a less stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus,
551 U.S. 89, 94(2007). The Eighth Circuit instructs courts to liberally construe general and conclusory pro se objections to R&Rs and to conduct de novo review of all alleged errors. See Belk v. Purkett,15 F.3d 803, 815
(8th Cir. 1994). However, “pro se litigants are not excused from failing to comply with substantive and procedural law.” Burgs v. Sissel,745 F.2d 526, 528
(8th Cir. 1984).
II. ANALYSIS
Jenkins’s objections stem mostly from the recommended dismissal of her Bivens
actions. She claims that if the Court considered the exhibits attached to her Complaint, it
would find sufficient factual pleadings.2 Apart from her Bivens objections, Jenkins also
reiterates her allegation that Defendants violated 18 U.S.C. § 4042(a)(2)–(3). Because a failure to protect claim is not a recognized Bivens action, the deliberate indifference claim is insufficiently pled, and18 U.S.C. § 4042
(a)(2)–(3) does not provide a private right of
action, the Court will overrule Jenkins’s objections. On all other issues, the Court does
not find any clear error and thus will adopt the R&R.
A. Bivens Claims
Bivens established that a victim of constitutional violations by a federal actor may
recover damages against the actor in federal court even if no statutory cause of action
exists. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397(1971). In essence, Bivens recognizes implied causes of action under the Constitution, although the Supreme Court has only formally recognized such an implied right for three types of claims: under the Fourth Amendment for unreasonable search and seizure, under the Fifth Amendment for sex discrimination, and under the Eighth Amendment for deliberate indifference to a serious medical condition. See Bivens,403 U.S. at 389
; Davis v. Passman,442 U.S. 228, 244
, 248–49 (1979); Carlson v. Green,446 U.S. 14
, 17–23 (1980).
2 Jenkins makes a general statement that because she submitted copious documentation
her claims are sufficiently supported. However, even a voluminous record must still meet the
pleading standards.
Here, Jenkins alleges two causes of action under Bivens.3 First, she alleges a failure
to protect from synthetic cannabinoid smoke and the risk of sexual and physical abuse.
Second, she alleges deliberate indifference to her serious medical need for necessary eye
surgery.
1. Failure to Protect
Failure to protect is not an explicitly recognized cause of action under Bivens and
extending Bivens is strongly disfavored. Egbert v. Boule, 596 U.S. 482, 491(2022); Ziglar v. Abbasi,582 U.S. 120
, 130–31 (2017). In deciding whether to extend Bivens to a new context, the Court must consider whether the alleged cause of action is different in a meaningful way from the three recognized Bivens actions and, if so, whether there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar,582 U.S. at 136
(quoting Carlson,446 U.S. at 18
).
Jenkins characterizes her failure to protect claim as deliberate indifference to a
substantial risk of harm. Though it may seem that deliberate indifference to a substantial
risk of harm fits within the recognized Bivens action for deliberate indifference to a
serious medical condition, the subject matter of the deliberate indifference is distinct.
3 As an initial matter, Jenkins brings claims against the Defendants in their individual and
official capacities. However, Bivens only applies to federal officials in their individual capacities.
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71–72 (2001); see also Buford v. Runyon,160 F.3d 1199, 1203
(8th Cir. 1998). Accordingly, the Court will adopt the R&R’s recommendation to dismiss Jenkins’s claims against the United States and other Defendants in their official capacities. The Supreme Court has held that any meaningful difference, even if small, would extend Bivens to a new context. Ziglar,582 U.S. at 147
(“[E]ven a modest extension is still an extension.”). In Carlson, the Supreme Court recognized an implied cause of action against federal prison officials for failing to provide proper medical attention to an inmate with chronic asthma. Carlson,446 U.S. at 17
; Green v. Carlson,581 F.2d 669
, 670–71 (7th Cir.
1978). Substantial risk of harm from synthetic cannabinoid smoke or sexual and physical
abuse is not the same as failure to treat a serious medical condition like chronic asthma.
Jenkins did not establish any diagnosed medical condition that increased her risk in these
scenarios. Instead, she alleged FCI Waseca allowed generalized risks to perpetuate. Thus,
Jenkins’s failure to protect claim is different in a meaningful way from the recognized
Bivens action for deliberate indifference to a serious medical condition.
Jenkins relies on Farmer v. Brennan to support her Bivens claim for failure to
protect or deliberate indifference to a substantial risk of physical or sexual harm. Farmer
seems to extend Bivens to this context. However, more recently the Supreme Court has
strongly discouraged extending Bivens beyond the three recognized actions, of which
failure to protect is not one. Farmer v. Brennan, 511 U.S. 825(1994); Egbert,596 U.S. at 491
. District Courts are following suit even with Farmer remaining good law. Gater,2021 WL 868433
, at *3 n.1 (concluding failure to protect is not a confirmed Bivens action); Palmer v. Gardner, No. 22-113,2023 WL 3231614
, at *3 (N.D. Iowa May 3, 2023)
(describing Farmer as establishing the “deliberate indifference” standard and not
expanding Bivens). The Supreme Court also explained that prior cases that seem to
expand Bivens are given little weight as they predate the current analysis to implied
causes of action under Bivens. Egbert, 596 U.S. at 500–01.
Because Jenkins’s failure to protect claim is meaningfully different from the
recognized Bivens actions, the Court must consider whether there are “special factors
counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 582 U.S.
at 136(quoting Carlson,446 U.S. at 18
). The strongest argument counseling hesitation is that the Supreme Court recently spelled out the three types of Bivens actions and failure to protect was excluded from the list. Another factor that counsels against extending Bivens is the availability of other forms of relief.Id. at 145
. Here, Jenkins may seek relief under the FTCA. Gater v. Carvajal, No. 20-146,2021 WL 868433
, at *3 (E.D. Ark. Feb. 23,
2021). Because Jenkins can still seek relief under the FTCA and the Supreme Court has
not formally acknowledged this type of Bivens action, the Court will refrain from
extending Bivens to failure to protect.
The Court will overrule Jenkins’s objections and adopt the Magistrate Judge’s R&R
dismissing Jenkins’s failure to protect claim under Bivens.
2. Deliberate Indifference to a Serious Medical Condition
In contrast to failure to protect, deliberate indifference to a serious medical
condition is a cause of action recognized under the Bivens doctrine. Carlson v. Green, 446
U.S. 14, 16–18 (1980). To sustain a claim for deliberate indifference, a plaintiff must prove that: (1) she suffered from objectively serious medical needs and (2) that the officials knew of and deliberately disregarded those needs. Webb v. Hedrick,409 F. App’x 33, 34
(8th Cir. 2010). Deliberate indifference requires more than negligence and is “akin to criminal recklessness.” Smith v. United States, No. 13-3277,2015 WL 278252
, at *12 (D.
Minn. Jan. 22, 2015).
Jenkins’s eye condition was undoubtably serious and difficult to live with, requiring
surgery and resulting in worsening blindness. But an objectively serious medical need is
only half of the equation. Jenkins also needed to plead that specific Defendants knew
about her condition and deliberately disregarded her needs, which she failed to do.
Instead, she makes general allegations against all the Defendants without specifying who
allegedly knew of and deliberately disregarded her need for eye surgery.4 Jenkins cites
to Exhibits C, D, and E of her Complaint as supporting evidence. Exhibit C broadly accuses
the medical department and FCI Waseca staff of acting with deliberate indifference and
includes copies of Jenkins’s administrative claims for damages. Exhibit D relays extensive
medical information about the necessity of the eye surgery but offers no additional insight
into the allegedly deliberate behavior by Defendants. Exhibit E documents the number
of reports Jenkins made to the staff at FCI Waseca but again adds nothing to suggest that
anyone specific engaged in any deliberate conduct by ignoring her need for eye surgery.
4 Jenkins alleges in her Complaint that the eye surgery was never provided however,
Exhibit C indicates it was in fact performed on February 6, 2023.
Though Jenkins alleges in her objections to the R&R that, Dr. Kidman, Ms. T.
Peterson, Ms. Loeffler, and Ms. Koziolek deliberately delayed her eye surgery, the
Complaint does not include such allegations against these Defendants. In fact, beyond
being listed as defendants, the Court finds no reference to these Defendants throughout
the Complaint or in the attached Exhibits. As such, the Court need not consider the
additional allegations in Jenkins’s objections because the sufficiency of the pleadings
depends on the allegations in the Complaint alone. Glover v. Bostrom, No. 18-285, 2019
WL 446569, at *2 n.5 (D. Minn. Feb. 5, 2019).
Even if the Court were to consider the new accusations in the objections, all they
do is make additional generic accusations of deliberate indifference. The allegation about
Ms. Koziolek is the most substantiated in that she rescheduled the surgery, but even
Jenkins concedes that the reason for the rescheduling was due to a “breach of security.”
(Obj. to R. & R. at 2.) This one example of the surgery being rescheduled, especially when
a plausible explanation is given, is insufficient to meet the “deliberate indifference”
mental state. As such, the Court will overrule Jenkins’s objections and adopt the
Magistrate Judge’s recommendation to dismiss her Bivens claim for deliberate
indifference to a serious medical condition.
B. 18 U.S.C. § 4042(a)(2)–(3) Claim
In her objections to the R&R, Jenkins reasserts her claim under 18 U.S.C. §
4042(a)(2)–(3) that the staff at FCI Waseca failed to provide suitable quarters and protection. The Court recognizes that Jenkins makes serious accusations about deficiencies at FCI Waseca that if true should certainly be remedied. However, this statute provides standards for the BOP, not a private right of action. Henny v. United States, No. 23-2773,2023 WL 8802869
, at *1 (D. Minn. Dec. 20, 2023). Thus, to the extent that Jenkins asserts violations of constitutional rights under18 U.S.C. § 4042
, those violations do not create a claim under the statute. Accordingly, the Magistrate Judge correctly determined that Jenkins’s claim under18 U.S.C. § 4042
(a)(2)–(3) should be
dismissed.
CONCLUSION
While incarcerated, Jenkins filed this action alleging several harms. The Magistrate
Judge recommended the Court dismiss all her claims except the FTCA negligence claims
against the United States. Jenkins objected to the recommended dismissal of her causes
of actions under Bivens and her claim under 18 U.S.C. § 4042(a)(2)–(3). Because the Court will not extend Bivens to failure to protect and Jenkins failed to adequately plead deliberate indifference to a serious medical need, the Court will overrule her objections. Because18 U.S.C. § 4042
(a)(2)–(3) does not provide a private right of action, the Court
will overrule Jenkins’s objection regarding this claim as well. As such, the Court will adopt
the R&R and dismiss Jenkins’s Complaint without prejudice5 except for the FTCA claims
against the United States.
5 Dismissal without prejudice means that Jenkins can make any necessary changes and
refile her Complaint. However, no amount of additional information or changes will allow the
Court to consider the merits of a claim that lacks a cause of action.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff's Objections to the Report and Recommendation [Docket No. 11] are
OVERRULED;
2. The Report and Recommendation [Docket No. 6] is ADOPTED; and
3. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITHOUT PREJUDICE,
except:
a. Plaintiff’s Claims of Negligence under the Federal Tort Claims Act against
the United States.
DATED: March 4, 2024 don 4. (rerbein
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
-12- Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BETTY LEE JENKINS,
Civil No. 23-3253 (JRT/TNL)
Plaintiff,
v.
MEMORANDUM OPINION AND ORDER
UNITED STATES OF AMERICA; COLETTE ADOPTING REPORT AND
PETERS, Director of the Federal Bureau of RECOMMENDATION
Prisons; ANDRE MATEVOUSIAN, Regional
Director of the Federal Bureau of Prisons;
WARDEN MICHAEL SEGAL, FCI Waseca;
ASSOCIATE WARDEN VAUGHT, FCI
Waseca; OFFICER KOZIOLEK, FCI Waseca;
LEE, Food Services Director FCI Waseca;
NELSON, Director of Safety FCI Waseca;
OFFICER HODVE, FCI Waseca; LOEFFLER,
H.S.A. FCI Waseca; T. PETERSON, Health
Services Director FCI Waseca; HILLSMAN,
CMC Coordinator FCI Waseca; DR. REYNA,
FCI Waseca; DR. SWANSON, FCI Waseca;
and DR. KIDMAN, FCI Waseca,
Defendants.
Betty Lee Jenkins, 12659 Eight Mile Road, Arva, ON NOM 1CO, Canada, pro
se Plaintiff.
Ana H. Voss and Emily M. Peterson, UNITED STATES ATTORNEY’S OFFICE,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for Defendant
United States of America.
Plaintiff Betty Lee Jenkins filed this action while incarcerated in federal prison. She
included five causes of action against the United States of America, Federal Bureau of
Prisons (“BOP”) officials, and Federal Correctional Institution Waseca (FCI Waseca) staff.
Magistrate Judge Tony N. Leung recommended the Court dismiss all claims without
prejudice except for the claims against the United States under the Federal Tort Claims
Act (“FTCA”). Because the Court agrees with the Magistrate Judge’s findings after
reviewing Jenkins’s objections de novo, the Court will overrule Jenkins’s objections and
adopt the Report and Recommendation (“R&R”).
BACKGROUND
Jenkins recently finished serving a sentence at FCI Waseca.1 (Compl. ¶ 4, Oct. 23,
2023, Docket No. 1.); Inmate Locator, Fed. Bureau of Prisons,
https://www.bop.gov/inmateloc (last visited Feb. 23, 2024). Prior to her release, Jenkins
filed this current action against the United States, BOP officials, and employees at FCI
Waseca alleging numerous harms stemming from her incarceration. (See Compl. ¶¶ 3–
21.) These harms include blindness as a result of inadequate eye care, “detrimental
health effects” from exposure to synthetic cannabinoid, increased risk of sexual and
physical assault, and lack of access to adequate programming. (Id. ¶¶ 24–26.) Jenkins
alleges that FCI Waseca’s systemic deficiencies are documented in a Report from the
1 While Jenkins has since been released, she was a “prisoner” under 28 U.S.C. § 1915A(c)
when she filed her Complaint, so it is still subject to preservice review. 28 U.S.C. § 1915A(a);
Domino v. Garland, No. 20-2583, 2021 WL 1221188, at *1 (D. Minn. Apr. 1, 2021) (applying §
1915A to a plaintiff released from custody after the Magistrate Judge issued their Report and
Recommendation because he was incarcerated when the complaint was filed).
Department of Justice Office of the Inspector General and that she herself has been
reporting issues to FCI Waseca for years without relief. (Id. ¶¶ 22–23; see also id. Ex. A.)
Jenkins brings five causes of action: (1) negligence by FCI Waseca officials under
the FTCA for delaying her medically necessary eye surgery; (2) negligence by FCI Waseca
officials under the FTCA for exposure to synthetic cannabinoid and risk of physical and
sexual violence; (3) failure by the BOP to maintain their statutory duty under 18 U.S.C. §
4042(a)(2)–(3); (4) failure by the BOP to maintain their statutory duty under18 U.S.C. § 3632
; and (5) two causes of action under Bivens against the Defendants for their failure
to protect Jenkins and their deliberate indifference to her serious medical need. (Id. ¶¶
24–29.) Jenkins requests money damages under the FTCA as well as declarative and
injunctive relief. (Id. ¶¶ 28, 30.)
On preliminary screening, the Magistrate Judge filed an R&R recommending the
Court dismiss all claims without prejudice except for the negligence claims under the FTCA
against the United States. (R. & R. at 12, Dec. 6, 2023, Docket No. 6.) Further, the
Magistrate Judge recommended denying Jenkins’s request for injunctive and declaratory
relief because the FTCA only provides for money damages. (Id. at 11–12.) Jenkins timely
filed objections to the R&R. (Obj. to R. & R., Dec. 18, 2023, Docket No. 11.)
DISCUSSION
I. STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may “serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b). “The objections should specify the portions of the magistrate
judge’s report and recommendation to which objections are made and provide a basis for
those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). For dispositive motions, the Court reviews de novo a “properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error.” Montgomery v. Compass Airlines, LLC,98 F. Supp. 3d 1012, 1017
(D. Minn. 2015).
A document filed by a pro se litigant is to be liberally construed and must be held
to a less stringent standard than formal pleadings drafted by lawyers. Erickson v. Pardus,
551 U.S. 89, 94(2007). The Eighth Circuit instructs courts to liberally construe general and conclusory pro se objections to R&Rs and to conduct de novo review of all alleged errors. See Belk v. Purkett,15 F.3d 803, 815
(8th Cir. 1994). However, “pro se litigants are not excused from failing to comply with substantive and procedural law.” Burgs v. Sissel,745 F.2d 526, 528
(8th Cir. 1984).
II. ANALYSIS
Jenkins’s objections stem mostly from the recommended dismissal of her Bivens
actions. She claims that if the Court considered the exhibits attached to her Complaint, it
would find sufficient factual pleadings.2 Apart from her Bivens objections, Jenkins also
reiterates her allegation that Defendants violated 18 U.S.C. § 4042(a)(2)–(3). Because a failure to protect claim is not a recognized Bivens action, the deliberate indifference claim is insufficiently pled, and18 U.S.C. § 4042
(a)(2)–(3) does not provide a private right of
action, the Court will overrule Jenkins’s objections. On all other issues, the Court does
not find any clear error and thus will adopt the R&R.
A. Bivens Claims
Bivens established that a victim of constitutional violations by a federal actor may
recover damages against the actor in federal court even if no statutory cause of action
exists. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388,
397(1971). In essence, Bivens recognizes implied causes of action under the Constitution, although the Supreme Court has only formally recognized such an implied right for three types of claims: under the Fourth Amendment for unreasonable search and seizure, under the Fifth Amendment for sex discrimination, and under the Eighth Amendment for deliberate indifference to a serious medical condition. See Bivens,403 U.S. at 389
; Davis v. Passman,442 U.S. 228, 244
, 248–49 (1979); Carlson v. Green,446 U.S. 14
, 17–23 (1980).
2 Jenkins makes a general statement that because she submitted copious documentation
her claims are sufficiently supported. However, even a voluminous record must still meet the
pleading standards.
Here, Jenkins alleges two causes of action under Bivens.3 First, she alleges a failure
to protect from synthetic cannabinoid smoke and the risk of sexual and physical abuse.
Second, she alleges deliberate indifference to her serious medical need for necessary eye
surgery.
1. Failure to Protect
Failure to protect is not an explicitly recognized cause of action under Bivens and
extending Bivens is strongly disfavored. Egbert v. Boule, 596 U.S. 482, 491(2022); Ziglar v. Abbasi,582 U.S. 120
, 130–31 (2017). In deciding whether to extend Bivens to a new context, the Court must consider whether the alleged cause of action is different in a meaningful way from the three recognized Bivens actions and, if so, whether there are “special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar,582 U.S. at 136
(quoting Carlson,446 U.S. at 18
).
Jenkins characterizes her failure to protect claim as deliberate indifference to a
substantial risk of harm. Though it may seem that deliberate indifference to a substantial
risk of harm fits within the recognized Bivens action for deliberate indifference to a
serious medical condition, the subject matter of the deliberate indifference is distinct.
3 As an initial matter, Jenkins brings claims against the Defendants in their individual and
official capacities. However, Bivens only applies to federal officials in their individual capacities.
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71–72 (2001); see also Buford v. Runyon,160 F.3d 1199, 1203
(8th Cir. 1998). Accordingly, the Court will adopt the R&R’s recommendation to dismiss Jenkins’s claims against the United States and other Defendants in their official capacities. The Supreme Court has held that any meaningful difference, even if small, would extend Bivens to a new context. Ziglar,582 U.S. at 147
(“[E]ven a modest extension is still an extension.”). In Carlson, the Supreme Court recognized an implied cause of action against federal prison officials for failing to provide proper medical attention to an inmate with chronic asthma. Carlson,446 U.S. at 17
; Green v. Carlson,581 F.2d 669
, 670–71 (7th Cir.
1978). Substantial risk of harm from synthetic cannabinoid smoke or sexual and physical
abuse is not the same as failure to treat a serious medical condition like chronic asthma.
Jenkins did not establish any diagnosed medical condition that increased her risk in these
scenarios. Instead, she alleged FCI Waseca allowed generalized risks to perpetuate. Thus,
Jenkins’s failure to protect claim is different in a meaningful way from the recognized
Bivens action for deliberate indifference to a serious medical condition.
Jenkins relies on Farmer v. Brennan to support her Bivens claim for failure to
protect or deliberate indifference to a substantial risk of physical or sexual harm. Farmer
seems to extend Bivens to this context. However, more recently the Supreme Court has
strongly discouraged extending Bivens beyond the three recognized actions, of which
failure to protect is not one. Farmer v. Brennan, 511 U.S. 825(1994); Egbert,596 U.S. at 491
. District Courts are following suit even with Farmer remaining good law. Gater,2021 WL 868433
, at *3 n.1 (concluding failure to protect is not a confirmed Bivens action); Palmer v. Gardner, No. 22-113,2023 WL 3231614
, at *3 (N.D. Iowa May 3, 2023)
(describing Farmer as establishing the “deliberate indifference” standard and not
expanding Bivens). The Supreme Court also explained that prior cases that seem to
expand Bivens are given little weight as they predate the current analysis to implied
causes of action under Bivens. Egbert, 596 U.S. at 500–01.
Because Jenkins’s failure to protect claim is meaningfully different from the
recognized Bivens actions, the Court must consider whether there are “special factors
counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 582 U.S.
at 136(quoting Carlson,446 U.S. at 18
). The strongest argument counseling hesitation is that the Supreme Court recently spelled out the three types of Bivens actions and failure to protect was excluded from the list. Another factor that counsels against extending Bivens is the availability of other forms of relief.Id. at 145
. Here, Jenkins may seek relief under the FTCA. Gater v. Carvajal, No. 20-146,2021 WL 868433
, at *3 (E.D. Ark. Feb. 23,
2021). Because Jenkins can still seek relief under the FTCA and the Supreme Court has
not formally acknowledged this type of Bivens action, the Court will refrain from
extending Bivens to failure to protect.
The Court will overrule Jenkins’s objections and adopt the Magistrate Judge’s R&R
dismissing Jenkins’s failure to protect claim under Bivens.
2. Deliberate Indifference to a Serious Medical Condition
In contrast to failure to protect, deliberate indifference to a serious medical
condition is a cause of action recognized under the Bivens doctrine. Carlson v. Green, 446
U.S. 14, 16–18 (1980). To sustain a claim for deliberate indifference, a plaintiff must prove that: (1) she suffered from objectively serious medical needs and (2) that the officials knew of and deliberately disregarded those needs. Webb v. Hedrick,409 F. App’x 33, 34
(8th Cir. 2010). Deliberate indifference requires more than negligence and is “akin to criminal recklessness.” Smith v. United States, No. 13-3277,2015 WL 278252
, at *12 (D.
Minn. Jan. 22, 2015).
Jenkins’s eye condition was undoubtably serious and difficult to live with, requiring
surgery and resulting in worsening blindness. But an objectively serious medical need is
only half of the equation. Jenkins also needed to plead that specific Defendants knew
about her condition and deliberately disregarded her needs, which she failed to do.
Instead, she makes general allegations against all the Defendants without specifying who
allegedly knew of and deliberately disregarded her need for eye surgery.4 Jenkins cites
to Exhibits C, D, and E of her Complaint as supporting evidence. Exhibit C broadly accuses
the medical department and FCI Waseca staff of acting with deliberate indifference and
includes copies of Jenkins’s administrative claims for damages. Exhibit D relays extensive
medical information about the necessity of the eye surgery but offers no additional insight
into the allegedly deliberate behavior by Defendants. Exhibit E documents the number
of reports Jenkins made to the staff at FCI Waseca but again adds nothing to suggest that
anyone specific engaged in any deliberate conduct by ignoring her need for eye surgery.
4 Jenkins alleges in her Complaint that the eye surgery was never provided however,
Exhibit C indicates it was in fact performed on February 6, 2023.
Though Jenkins alleges in her objections to the R&R that, Dr. Kidman, Ms. T.
Peterson, Ms. Loeffler, and Ms. Koziolek deliberately delayed her eye surgery, the
Complaint does not include such allegations against these Defendants. In fact, beyond
being listed as defendants, the Court finds no reference to these Defendants throughout
the Complaint or in the attached Exhibits. As such, the Court need not consider the
additional allegations in Jenkins’s objections because the sufficiency of the pleadings
depends on the allegations in the Complaint alone. Glover v. Bostrom, No. 18-285, 2019
WL 446569, at *2 n.5 (D. Minn. Feb. 5, 2019).
Even if the Court were to consider the new accusations in the objections, all they
do is make additional generic accusations of deliberate indifference. The allegation about
Ms. Koziolek is the most substantiated in that she rescheduled the surgery, but even
Jenkins concedes that the reason for the rescheduling was due to a “breach of security.”
(Obj. to R. & R. at 2.) This one example of the surgery being rescheduled, especially when
a plausible explanation is given, is insufficient to meet the “deliberate indifference”
mental state. As such, the Court will overrule Jenkins’s objections and adopt the
Magistrate Judge’s recommendation to dismiss her Bivens claim for deliberate
indifference to a serious medical condition.
B. 18 U.S.C. § 4042(a)(2)–(3) Claim
In her objections to the R&R, Jenkins reasserts her claim under 18 U.S.C. §
4042(a)(2)–(3) that the staff at FCI Waseca failed to provide suitable quarters and protection. The Court recognizes that Jenkins makes serious accusations about deficiencies at FCI Waseca that if true should certainly be remedied. However, this statute provides standards for the BOP, not a private right of action. Henny v. United States, No. 23-2773,2023 WL 8802869
, at *1 (D. Minn. Dec. 20, 2023). Thus, to the extent that Jenkins asserts violations of constitutional rights under18 U.S.C. § 4042
, those violations do not create a claim under the statute. Accordingly, the Magistrate Judge correctly determined that Jenkins’s claim under18 U.S.C. § 4042
(a)(2)–(3) should be
dismissed.
CONCLUSION
While incarcerated, Jenkins filed this action alleging several harms. The Magistrate
Judge recommended the Court dismiss all her claims except the FTCA negligence claims
against the United States. Jenkins objected to the recommended dismissal of her causes
of actions under Bivens and her claim under 18 U.S.C. § 4042(a)(2)–(3). Because the Court will not extend Bivens to failure to protect and Jenkins failed to adequately plead deliberate indifference to a serious medical need, the Court will overrule her objections. Because18 U.S.C. § 4042
(a)(2)–(3) does not provide a private right of action, the Court
will overrule Jenkins’s objection regarding this claim as well. As such, the Court will adopt
the R&R and dismiss Jenkins’s Complaint without prejudice5 except for the FTCA claims
against the United States.
5 Dismissal without prejudice means that Jenkins can make any necessary changes and
refile her Complaint. However, no amount of additional information or changes will allow the
Court to consider the merits of a claim that lacks a cause of action.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff's Objections to the Report and Recommendation [Docket No. 11] are
OVERRULED;
2. The Report and Recommendation [Docket No. 6] is ADOPTED; and
3. Plaintiff's Complaint [Docket No. 1] is DISMISSED WITHOUT PREJUDICE,
except:
a. Plaintiff’s Claims of Negligence under the Federal Tort Claims Act against
the United States.
DATED: March 4, 2024 don 4. (rerbein
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
-12- Reference
- Status
- Unknown