Dial v. Kane

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHAUNDELLE DIAL,
Plaintiff,
v. Civil Action No. 17-1605 (JEB)
THOMAS KANE, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Shaundelle Dial, proceeding before this Court pro se, brings a civil-rights action
against thirteen current or former employees of the Bureau of Prisons. Dial is a federal prisoner
currently serving a 100-month sentence for carjacking. His Complaint alleges that during his
time in prison he has suffered a litany of abuses by BOP staff at various institutions. Dial claims,
inter alia, that he was unlawfully denied medical and mental-health treatment, prevented from
accessing legal work and the law library, deprived of mail privileges, and impermissibly left in
solitary confinement. Defendants now move for dismissal of Plaintiff’s Complaint for failure to
state a claim. They additionally request that the Court explicitly state that the dismissal, if
granted, counts as a “strike” under the three-strikes provision of the Prison Litigation Reform
Act (PLRA). The Court acquiesces in both respects.
I. Background
On July 24, 2017, Dial filed a suit alleging seven counts against thirteen BOP
Defendants. According to the facts alleged in the Complaint, which the Court must at this stage
presume as true, he asserts that Defendant Thomas Kane, the Acting Direction of the Bureau,
“allowed” him to get “sexual[ly] abused, [and] physically abused by correctional staff” at six
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federal prisons from 2014 to 2016. See ECF No. 1 (Complaint), ¶ 1. He states that, as a result of
his abuse, he has “suffered injuries, permanent scars, [and] nerve damage.” Id. Second, Dial
contends that he has been improperly retaliated against by BOP employees for behaviors related
to his “chronic and lifelong” mental-health conditions. Id., ¶ 2. He asserts that he has “an IQ of
64 and concurrent deficits in adaptive functioning” that “interfere with [his] ability to learn in a
conventional manner and [be] in society.” Id. Dial alleges that his “severe mental illness”
includes “exhibitionist[] disorder where I cannot stop exposing my genitals to staff or anybody,”
but that he has been “denied sexual deviance treatment,” “left in [solitary] confinement lock-
down 23 hours a day for months at a time,” and denied other unspecified “accommodations.” Id.
Third, Plaintiff alleges that he has been “denied medical attention or treatment” for his “nerve
damage from the prison staff physical abuse, [a] deformed toe . . . [,] allerg[ies] to bean, corn,
peanuts, hernia, [and] urine problems.” Id., ¶ 3. Fourth, he states that Defendants have thrown
away his legal work and mail, have not granted him family and community contact, and have
“denied [him] time in [the] law library to prepare for [his] case.” Id., ¶ 4. Fifth, Dial brings a
claim for “extortion,” alleging that Defendants have “frozen [his] account,” have made him “pay
them 425 dollars,” and have “denie[d] [him] all privileges where [he has] nothing to look
forward to.” Id., ¶ 5. Sixth, he contends that he has been left “in solitary confinement as a
punishment” and been denied “all programming, vocational training, [and] any rehabilitation.”
Id., ¶ 6. Finally, Dial’s seventh count asks for a lawyer to represent him because of his
disabilities and mental illness, and states that he is “in seclusion where [his] property is taken
from [him].” Id., ¶ 7. As relief for these alleged violations of his civil rights, Plaintiff requests,
inter alia, “100 million dollars, an investigation, the prosecution of defendants, medical care, . . .
mental health treatment, psychotherapy, counseling . . . , [and] a lawyer appointed by the courts
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to represent [him].” Id. at 10.
In April of this year, Defendants filed a Motion to Dismiss or, in the alternative, a Motion
for Summary Judgment. See ECF No. 16. That Motion is now ripe.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a
complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants’
Motion to Dismiss, the Court must “treat the complaint’s factual allegations as true . . . and must
grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’” Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United
States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens
Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005). The notice-pleading rules are “not
meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347
(2005), and he must thus be given every favorable inference that may be drawn from the
allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, id. at 555, “a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570). Plaintiff must put forth “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an
inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm’n,
456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986))
(internal quotation marks omitted). Though a plaintiff may survive a 12(b)(6) motion even if
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“recovery is very remote and unlikely,” Twombly, 550 U.S. at 556 (citing Scheuer v. Rhodes,
416 U.S. 232, 236 (1974)), the facts alleged in the complaint “must be enough to raise a right to
relief above the speculative level.” Id. at 555.
III. Analysis
Although Plaintiff never identifies any actual cause of action, the Court, in an effort to
extend the benefit of the doubt to a pro se litigant, will treat his suit as raising claims that the
named Defendants have violated his constitutional rights. The Court will therefore proceed with
its analysis under the framework of Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971), in which the Supreme Court “recognized for the first time an
implied private action for damages against federal officers alleged to have violated a citizen's
constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001).
A. Bivens Claims
In their Motion to Dismiss, Defendants assert that Dial fails to state a claim against the
named BOP officials because “in a Bivens suit an individual government official cannot be
personally liable for constitutional torts based on a theory of vicarious liability or a theory of
respondeat superior.” MTD at 9. This Court agrees. Although “Bivens establishes a cause of
action for damages against a federal employee in his or her individual capacity for constitutional
violations,” Davis v. United States, 2015 WL 4245716, at *2 (D.D.C. 2015), such liability
extends only to officials who themselves acted unconstitutionally. See Wood v. Moss, 134 S. Ct.
2056, 2070 (2014); Corr. Servs. Corp., 534 U.S. at 72 (“If a federal prisoner in a BOP facility
alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual
officer, subject to the defense of qualified immunity . . . . [H]is only remedy lies against the
individual[.]”).
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Here, Plaintiff brings no such allegations against any of the individual Defendants; in
other words, he does not assert that any of the named BOP employees, “through [their] own
individual actions, has violated the Constitution.” Ashcroft, 556 U.S. at 676. Instead, Dial’s
theory of liability is predicated solely on his generalized claim that Kane (and the other
Defendants) somehow “allowed” for his alleged abuse and deprivation of rights. Yet under
Bivens, a federal official may not be held liable simply because he is in a position of authority
over the alleged individual offender. Id. at 676 (“Government officials may not be held liable for
the unconstitutional conduct of their subordinates under a theory of respondeat superior.”); see
Epps v. U.S. Att'y Gen., 575 F. Supp. 2d 232, 239 (D.D.C. 2008) (“A superior official cannot be
held liable under . . . Bivens for the constitutional torts of employees under him or her; the
common law theory of respondeat superior does not pertain to the federal government in this
context.”) (citing Marshall v. Reno, 915 F. Supp. 426, 429–30 (D.D.C. 1996)).
Dial’s Complaint, moreover, makes clear that he knows that Defendants were not
personally involved in the alleged violations. As part of his pleading, he lists the titles and
addresses of each of the named BOP employees – all of whom act in supervisory positions in
Washington, D.C. – but he does not explain how such high-level officials contributed to or even
knew about the conduct described in his Complaint. See Compl. at 6-9. Because Plaintiff
cannot connect the dots between Defendants and his allegations, the Court determines that his
claim may not proceed. See Burke v. Lappin, 821 F. Supp. 2d 244, 247-48 (D.D.C. 2011)
(dismissing complaint when Plaintiff did not “allege[] sufficient facts for which the current and
former high-level officials at BOP headquarters may be held liable”); Cameron v. Thornburgh,
983 F.2d 253, 258 (D.C. Cir. 1993) (dismissing Bivens claims “based essentially on the bare
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assumption that policy decisions made [by Defendants] in Washington might have affected
[prisoner’s] treatment”).
B. Exhaustion
Even assuming that Dial could make out a Bivens claim against the named Defendants or
others, his case could nonetheless not proceed. As the Motion to Dismiss accurately notes,
Plaintiff has not administratively exhausted his administrative remedies. See MTD at 10-12. It
is clear that, under the PLRA, “[p]risoners’ claims supporting Bivens actions . . . must first be
exhausted administratively” before such individuals may file suit in federal court. See Davis,
669 F. Supp. 2d at 49; 42 U.S.C. § 1997e(a) (providing that “[n]o action shall be brought . . . by
a prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted”). This exhaustion requirement, the Supreme Court has
held, “demands compliance with an agency’s deadlines and other critical procedural rules.”
Woodford v. Ngo, 548 U.S. 81, 90 (2006). Here, Defendants assert – and Plaintiff does not
dispute – that Dial did not complete the BOP administrative-remedy process for any of the
claims alleged in the Complaint. See MTD at 11-12. The Court therefore concludes that his
failure to exhaust is an additional reason why his Complaint cannot overcome the instant Motion
to Dismiss. See Johnson v. District of Columbia, 869 F. Supp. 2d 34, 37 (D.D.C. 2012) (“Rule
12(b)(6) motion to dismiss . . . [is] the appropriate vehicle[] to challenge an alleged failure to
exhaust administrative remedies under the PLRA.”).
C. Other Issues
Last, the Court briefly addresses two other issues raised in the parties’ respective
briefing. It turns first to Plaintiff’s attempt to request discovery under Federal Rule of Civil
Procedure 56(d). See Reply at 2-5. Under this Rule, the Court may, in its discretion, postpone
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ruling on a motion for summary judgment pending further discovery. In order to obtain such
relief, however, the party seeking discovery must show “by affidavit or declaration that, for
specified reasons, [he] cannot present facts essential to justify [his] opposition.” Here, the Court
need not reach this issue because, as discussed above, it grants Defendants’ Motion to Dismiss
under the Bivens and exhaustion standards. As the Court is not converting the Motion into one
seeking summary judgment, Plaintiff’s request under Rule 56 simply does not come into play.
Yet, even if the Court were to consider the Motion under the summary-judgment standard, Dial
would not clear the Rule 56 bar. His Response never explains how his long list of discovery
demands would provide him with information to contest Defendants’ position. See Reply at 2-6.
Such unsupported requests for discovery do not suffice as a reason for postponing summary
judgment. See Covertino v. DOJ, 684 F.3d 93, 99 (D.C. Cir. 2012).
Second, the Court considers Defendants’ request that, if this case is dismissed, the
dismissal be explicitly deemed a “strike” under the PLRA. See MTD at 12. Under the Act’s
“three strikes” rule, an inmate who has had three prior actions or appeals dismissed as frivolous,
malicious, or for failing to state a claim may not proceed in a further civil action in forma
pauperis unless he is in “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
Here, Defendants urge the Court to affirmatively state that its dismissal of Dial’s Complaint
counts as a “strike” under this provision. Because the Court dismisses the suit in toto for failure
to state a claim, it finds that its determination meets the criteria of § 1915(g) and will so state in
its accompanying Order.
IV. Conclusion
For the aforementioned reasons, the Court will grant Defendants’ Motion to Dismiss. A
separate Order consistent with this Opinion shall issue this day.
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/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 30, 2018
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