Tso v. Wester

• Court: District Court, E.D. Virginia
• Decided: February 6, 2024
• Docket: 1:22-cv-00511
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

EARLSON TSO, Plaintiff, No: 1:22-cv-00511-MSN-JFA v.

UNITED STATES, et al., Defendants.

MEMORANDUM OPINION & ORDER

This matter comes before the Court on Defendants’ Motion for Reconsideration (Dkt. No. 30). Having considered the motion, opposition and reply briefs, and for the reasons stated below, the Court GRANTS Defendant’s Motion for Reconsideration. I. BACKGROUND

On January 18, 2019, Earlson Tso was electrocuted after falling from a ladder while performing electrical work at FCC Petersburg (“Petersburg”). (Dkt. No. 1) (“Compl.”) ¶¶ 18, 32. Tso alleges that he requested a man lift from Ron Wester, an electrical supervisor at Petersburg, before performing the electrical work, but Wester refused his request. Id. ¶ 22. Instead, Wester “directed [him] to perform dangerous electrical work on a light fixture [using] a 10-foot ladder” “without shutting [the] electrical power off.” Id. ¶¶ 26-27, 29. Tso further alleges that the injuries he sustained from the fall and electrocution include a permanently disfigured left hand, pelvic pain, difficult and frequent urination, chronic erectile dysfunction, ongoing severe emotional distress, depression, anxiety for which he receives medication, and significant loss of mental acuity. Id. ¶¶ 34-44. Following the incident, Tso claims that he has been “denied proper ongoing medical care for his injuries, disabilities, or his severe emotional distress.” Id. ¶ 45. Tso also alleges that, apart from an “initial round of surgical procedures,” he “has not received any significant treatment” for his injuries. Id. ¶ 46. While at Petersburg, Tso was scheduled to undergo surgery “to repair tendon issues in his left hand,” but the surgery was inexplicably canceled and has not been rescheduled. Id. ¶ 47. Lastly, Tso alleges that that he has not received the physical therapy prescribed to him. Id. ¶ 48. II. PROCEDURAL HISTORY

On May 9, 2022, Tso filed a complaint against the following defendants: the Federal Bureau of Prisons (“BOP”); Ron Wester, an electrical supervisor at Petersburg; Michael Carvajal, the Director of the BOP during the relevant period; Mark Bolster, the Acting Warden at Petersburg; and [John] Does 1–40 who worked at Petersburg, FCI Beckley, and USP Marion. Compl. ¶¶ 9-14. The Complaint presents four causes of action. Count I raises claims “under Federal Tort Claims Act Pursuant to Bivens” against Wester, Bolster, “and/or at least one of the Doe Defendants.” Id. ¶¶ 51-56. Under Court II, Tso, who identifies as Native American, brings a claim under Title VII of the Civil Rights Act against the BOP, Wester, and Bolster on the grounds that “white inmates who were similarly situated were not required to work on live electrical systems” and received better medical treatment than he did. Id. ¶¶ 57-63. Count III alleges common law negligence against Wester and Bolster. Id. ¶¶ 64-68. Count IV alleges a “common law emotional distress” claim against Wester. Id. ¶¶ 69-73. On September 23, 2022, Defendants filed a Motion to Dismiss for Failure to State a Claim. (Dkt. No. 15). On July 28, 2023, the Court issued a Memorandum Opinion & Order granting Defendants’ motion in part and denying it in part. (Dkt. No. 27) (“Order”). The Court granted Defendants’ Motion to Dismiss as to Plaintiff’s FTCA claims, Title VII

claims, and the Bivens claim brought against Bolster in his official capacity. Order at 4-5. The Court denied the Motion to Dismiss as to Plaintiff’s Bivens claim against Defendant Wester. Id. at 11. The Court found that Tso had alleged “sufficient facts to plausibly suggest that Wester—as an electrical supervisor—knew of the excessive danger of inmates working on live electrical wires at an elevated height, which carries with it the risk of electrocution and the serious medical complications that may arise following electrocution.” Id. at 9 (footnote omitted). Further, the Court held that “Tso’s claim d[id] not arise in a new context, and a Bivens remedy [was] therefore available to Tso.” Id. at 7. Accordingly, Wester is the only remaining defendant in the case other than the unnamed John Does.1 On August 25, 2023, Wester filed a motion for reconsideration of the July 28, 2023 Order. (Dkt. No. 30) (“Mot. to Reconsider”). On September 8, 2023, Plaintiff filed an Opposition to the motion for reconsideration. (Dkt. No. 33). On September 14, 2023, Defendant filed a reply in support of his motion for reconsideration (Dkt. No. 34). III. LEGAL STANDARD

The denial of a motion to dismiss is an interlocutory order. See Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013); Orbcomm Inc. v. Calamp Corp., 215 F. Supp. 3d 499, 503 (E.D. Va. 2016). “The proper vehicle for requesting reconsideration of an interlocutory order is Federal Rule of Civil Procedure 54(b).” Orbcomm, 215 F. Supp. at 503 (quoting Fayetteville Inv’rs v. Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th Cir. 1991)). Unlike a motion for reconsideration under Rules 59(e) and 60(b), a motion for reconsideration under Rule 54(b) is “not subject to the strict standards applicable to motions for reconsideration of a final judgment.” Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir. 2003). This is because “a district court retains the

1 In his Motion for Reconsideration, Wester notes that Plaintiff’s Bivens claim against the “Doe Defendants” concerning their alleged denial of Tso’s proper medical care for his injuries can survive the motion to dismiss stage to allow Tso to engage in narrowly tailored discovery to uncover the identities of those defendants. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980) (“[T]he plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.”). power to reconsider and modify its interlocutory judgments . . . at any time prior to final judgment when such is warranted.” Id. at 514-15. Nonetheless, courts in the Fourth Circuit look to the same factors that govern motions to reconsider under Rules 59(e) and 60(b) when analyzing a motion to reconsider under Rule 54(b). See Orbcomm, 215 F. Supp. at 503; Evans v. Trinity Indus., Inc. 148 F. Supp. 3d 542, 544 (E.D. Va. 2015); McAfee v. Boczar, 2012 WL 2505263, at *2 (E.D. Va. June 28, 2012). Under this framework, courts may reconsider a prior interlocutory order when: “(1) a subsequent trial produces substantially different evidence; (2) controlling authority has since made a contrary decision of law applicable; or (3) the prior decision was clearly erroneous and would work manifest injustice.” Evans, 148 F. Supp. 3d at 544 (quoting Am. Canoe Ass’n, 326 F.3d at 515). IV. ANALYSIS Wester argues that the Court should reconsider its July 28, 2023 Order in light of intervening Fourth Circuit law: Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022); Bulger v. Hurwitz, 62 F.4th 127 (4th

Cir. 2023); and Mays v. Smith, 70 F.4th 198 (4th Cir. 2023), all of which were decided after the motion to dismiss had been fully briefed by the parties. Wester asserts that Tate, Bulger, and Mays “underscore the importance of distinguishing claims like Plaintiff’s, on the basis of the type of constitutional claim raised.” Mot. to Reconsider at 2 (emphasis added). Specifically, Wester argues that the circumstances alleged in the Complaint present a new context deviating from Carlson v. Green, 446 U.S. 14 (1980), the sole Supreme Court case that has recognized an Eighth Amendment claim for money damages against prison officials. In Bivens, the Supreme Court recognized an implied right of action where a plaintiff sought damages after federal officers conducted a warrantless search of his home, arrested him for alleged narcotics violations, and later subjected him to a visual strip search. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 389 (1971). The Supreme Court has recognized two other limited circumstances permitting implied causes of action: (1) gender discrimination in violation of the equal protection component of the Fifth Amendment Due Process Clause (Davis v. Passman, 442 U.S. 228 (1979)); and (2) failure to provide adequate medical treatment in prison to an inmate leading to his death in violation of the Eighth Amendment (Carlson v. Green, 446 U.S. 14 (1980)). In the forty-four years following Carlson, the Supreme Court has “‘consistently rebuffed’ every request—12 of them now—to find implied causes of action against federal officials for money damages under the Constitution.” Tate v. Harmon, 54 F.4th 839, 843 (4th Cir. 2022) (quoting Hernandez v. Mesa, 140 S. Ct. 735, 743). And in the past six years in particular, the Supreme Court has “handed down a trilogy of opinions not only expressing regret over its Bivens cases, but also demonstrating hostility to any expansion of them.” Mays v. Smith, 70 F.4th 198, 202 (4th Cir. 2023) (quoting Hernandez, 140 S. Ct. at 743). The Supreme Court has made clear that “expanding the Bivens remedy to a new context is an extraordinary act, that will be unavailable in most every case.”

Id. (cleaned up). The Supreme Court has elected “to severely limit the reach of Bivens by imposing a highly restrictive two-step analysis for Bivens cases.” Bulger v. Hurwitz, 62 F.4th 127, 136-37 (4th Cir. 2023) (quoting Hernandez, 140 S. Ct. at 743). First, a court must determine whether the case before it “falls within the causes of action authorized under the Supreme Court’s three Bivens cases—Bivens, Davis, and Carlson—or whether it arises in a new context or involves a new category of defendants.” Bulger, 62 F.4th at 137 (cleaned up). “If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1849 (2017). If so, the Court must “proceed to the second step and ask whether there are any special factors

that counsel hesitation about granting the extension of Bivens.” Bulger, 62 F.4th at 137 (quoting Hernandez, 140 S. Ct. at 743). The “special factors”2 inquiry “must focus on ‘separation-of-power principles’ and ‘requires courts to ask whether judicial intrusion into a given field is appropriate.’” Mays, 70 F.4th at 202 (quoting Hernandez, 140 S. Ct. at 743). If “there is any reason to think that Congress might be better equipped to create a damages remedy, then the court must decline to extend Bivens to a new context.” Id. at 202-03 (internal quotation marks omitted) (emphasis added). The Fourth Circuit has therefore emphasized that courts are “clearly warned to act with utmost hesitation when faced with actions that do not fall precisely under Bivens, Davis, or Carlson.” Tate, 54 F.4th at 845. The Fourth Circuit cases relied upon by the government exemplify this restrictive application. In Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022), a federal prisoner brought a Bivens action against BOP employees and officials alleging conditions of confinement “so degrading and detrimental that they amounted to cruel and unusual punishment” under the Eighth Amendment. Tate, 54 F.4th at 842. The Fourth Circuit rejected the plaintiff’s claim, explaining that “a new context may arise if

even one distinguishing fact has the potential to implicate separation-of-powers considerations.” Id. at 846 (emphasis added). Accordingly, the appellate court held that Tate’s claim, although “an Eighth Amendment claim, … nonetheless arose in a context different” than in Carlson because it presented “a systemic claim based on a collection of prison conditions that could vary from cell to cell, prison to prison, and from time to time, implicating a broad class of inmates suffering ill-defined injuries with ill-defined damages.” Id. at 846-47. And it further held that special factors counseled against

2 Although the Supreme Court has not provided an exhaustive list of what constitutes a “special factor,” the Fourth Circuit has previously enumerated several factors that the Supreme Court has noted would counsel hesitation for any extension of Bivens. These include “(1) uncertainty alone as to whether allowing a Bivens claim would have systemwide consequences; (2) a new category of defendants; (3) a difference as small as the rank of the officers involved; (4) the statutory or other legal mandate under which the officer was operating; (5) a potential effect on foreign relations, and national security; (6) Congress repeatedly declining to authorize the award of damages in the relevant context; and (7) the risk that the burden and demand of litigation would prevent Executive Officials from devoting the time and effort required for the proper discharge of their duties.” Bulger, 62 F.4th at 140 (cleaned up). extending a Bivens remedy to Tate’s new context because political branches were “indeed ‘better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.’” Id. at 848 (quoting Egbert v. Boule, 142 S. Ct. 1793, 1804). Similarly, in Bulger v. Hurwitz, 62 F.4th 127 (4th Cir. 2023), the Fourth Circuit rejected extending a Bivens claim to an inmate who died as a result of prisoner-on-prisoner violence. The decedent’s estate alleged that BOP had violated Bulger’s Eighth Amendment rights by failing to protect him from being beaten to death by fellow inmates after improperly failing to stop his transfer to a violent, understaffed facility. Id. The Fourth Circuit reiterated its admonition against interpreting Carlson too broadly and held that “the Supreme Court has made clear that courts should not interpret Carlson to apply outside the precise context at issue in that case, noting that even claims challenging the adequacy of medical care may involve the same ‘right’ and . . . mechanism of injury’ as in Carlson but still present ‘different’ contexts.” Id. at 138 (emphasis added) (quoting Abbasi, 137 S. Ct. at 138).

The Fourth Circuit held that Bulger’s claims “exceed[ed] the bounds of liability the Court’s previous Bivens actions established” because they were “premised not on a failure to provide adequate medical care but on BOP officials’ failure to . . . protect [him] from prisoner-on-prisoner violence.” Id. Such claims were “materially distinct from a failure to provide adequate medical care claim like the one presented in Carlson.” Id. The Fourth Circuit rejected yet another Bivens claim in Mays v. Smith, 70 F.4th 198 (4th Cir. 2023), where a federal inmate brought claims under the Fifth Amendment for money damages against federal prison officials for alleged violations of procedural due process and equal protection. Although Mays alleged claims under the Fifth Amendment like in Davis, the Fourth Circuit held that

procedural due process and raced-based discrimination claims presented a new context as compared to the sex-discrimination claim recognized in Davis. Id. at 203. Again, the Fourth Circuit held that special factors counseled hesitation against expanding Bivens to Mays’ circumstances. Id. The Court finds that in light of Tate, Bulger, and Mays, Tso’s case must be dismissed. Although Tso presents a claim under the Eighth Amendment, the claim does not allege the same right or the same mechanism of injury as in Carlson. The right at issue in Carlson was the failure to provide the inmate with proper medical attention. Carlson, 446 U.S. at 14. Tso alleges, however, that Wester violated his right to safe working conditions pursuant to 29 C.F.R. § 1960, which constituted “deliberate indifference to the health and well-being of Tso.” Compl. ¶ 54. Tso’s case also presents a different mechanism of injury. In Carlson, the plaintiff inmate died after prison officials failed to provide him with “competent medical attention” while he suffered an asthma attack. Id. at 16 n.1. Tso was allegedly injured, however, due to Wester’s failure to provide him with the necessary equipment to safely conduct “highly dangerous work” with “no supervision whatsoever.” Compl. ¶ 23. Tso’s claim against Wester does not allege he failed to receive competent medical attention in

accordance with his Eighth Amendment rights and accordingly presents a new Bivens context. See Bulger, 62 F.4th at 138 (noting that “even if Appellant could make out a claim for an alleged failure to provide constitutionally adequate medical treatment, a lack of competent medical care did not cause Bulger’s death. Given this meaningful difference, we conclude that Appellant’s . . . claims are not authorized by Carlson but instead present a new context.”). For this reason, the Court must proceed to step two of the inquiry and consider whether any special factors counsel against granting an extension of Bivens. Two special factors counsel against creating a new Bivens remedy in this case. First, Tso’s Bivens claim against Wester would “require scrutiny of . . . a new category of defendants,” namely

federal prison work supervisors. Bulger, 62 F.4th at 140 (citation omitted). Second, like all federal inmates, Tso has “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program.” Earle v. Shreves, 990 F.3d 774, 780 (4th Cir. 2021) (quoting Corr. Servs. Corp v. Malesko, 122 S. Ct. 515, 523). Although these “alternate remedies do not permit an award of money damages, they nonetheless offer the possibility of meaningful relief” and “therefore remain relevant” to the Court’s analysis. Id. The Court will therefore decline to extend Bivens to this new context in light of these special factors. V. CONCLUSION Because recent controlling authority from the Fourth Circuit is contrary to the Court’s previous decision, the Court will revise its interlocutory order under Rule 54(b). Accordingly, it is hereby ORDERED that Defendant Wester’s Motion for Reconsideration (Dkt. No. 30) is GRANTED; and it is further

ORDERED that Count I is DISMISSED as to Defendant Wester. It is SO ORDERED. /s/ Hon. Michael S. Nachmanoff United States District Judge

Alexandria, Virginia February 6, 2024