Here we are moving right along into the Season of Summer. After a long winter and spring we hope you are enjoying some pool parties, neighborhood BBQ's and time with your loved ones. The attorneys at Bailey & Wyant PLLC began their summer attending an annual conference at the Greenbrier and a Summit in Boston, Massachusetts. And, one of our very own was recognized as a Generation Next, 40 Under 40 recipient. Please continue reading and enjoy the latest news for you.

Member Jordan K. Herrick and Associate Adam K. Strider of the Charleston office obtained two summary judgments on behalf of medical care providers.

The first summary judgment was for Stevens Correctional Center. The plaintiff, an inmate, alleged that the medical care provider had a de facto custom or policy of delaying referrals to specialists and such custom or policy violated his Eighth Amendment rights. United States District Court Judge Faber found that Plaintiff had failed to provide any evidence of such policy and further failed to provide any evidence to rebut the Defendant’s evidence that the medical treatment rendered to the inmate fell below the standard of care.

Mr. Herrick and Mr. Strider's second summary judgment was on behalf of medical care providers at Northern Regional Jail and Correctional Facility. The plaintiff, an inmate, alleged that the medical care providers violated his Eighth Amendment rights by not providing him appropriate treatment for his degenerative shoulder condition and various dental issues. The United States District Court for the Northern District of West Virginia found that the medical and dental treatment rendered to the inmate was appropriate and was not deliberately indifferent to a serious medical need. As a result, the Court granted the defendants Motion for Summary Judgment. 

Bailey & Wyant PLLC's Of Counsel, Albert "Abbie" C. Dunn had a veterinary malpractice case dismissed at the pretrial conference of the case in magistrate court.   The Plaintiff alleged that the veterinarian either did not properly assess a musculoskeletal system injury; caused the injury or did not identify the injury after the dog was hospitalized for a tumor.  The Court dismissed the case against the Veterinarian upon request.

In 1971, the United States Supreme Court issued their decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The holding of the case resulted in individuals being able to seek civil damages against federal officers for the violation of their Fourth Amendment rights under the United States Constitution. From there, the Court began expanding the holding of Bivens to provide for a civil remedy against federal officers for violations of Fifth and Eighth Amendment rights. However, in recent years, the Court has effectively stopped the expansion of Bivens.

The United States Supreme Court continued their streak of stopping the expansion of Bivens actions when they published their opinion in Egbert v. Boule on June 8, 2022. The case dealt with a bed-and-breakfast owner being thrown against a car and then to the ground by a United States Border Patrol agent. The Plaintiff sued, asserting a Fourth Amendment excessive force claim and a First Amendment retaliation claim. The Supreme Court held that the bed-and-breakfast owner could not succeed on his claims as Bivens does not extend to create causes of action for both the Fourth Amendment excessive force claim and the First Amendment retaliation claim.

he Supreme Court arrived at this conclusion by using the two-step inquiry developed under previous precedent: whether the case involves an “extension” of Bivens into a “new context” that is “different in a meaningful way from previous Bivens cases decided by this Court,” and if so, whether “special factors … counsel hesitation about granting the extension.” The Court then went on to state that the two steps “often resolve into a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Additionally, the Court stated that this analysis must be conducted at a high level of generality, drawing attention to the fact that the question to focus on is not whether to imply an action against the defendant(s) on the unique facts in that case, but whether to imply an action against that specific type of federal agent generally.  

So the answer is yes, Bivens actions do still exist; plaintiffs just won’t succeed on one unless the context of the case is identical to a previously successful Bivens action. Perhaps there will be successful Bivens actions in the future, but it is doubtful there will be any new law as a result. 

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At its core, energy conservation is the practice of using less energy in order to lower costs and reduce environmental impact. This can mean using less electricity, gas, or any other form of energy that you get from your utility and pay for. With finite energy resources available on our planet, actively conserving energy when possible is beneficial individually and to our larger energy systems.

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