$700,000 Settlement in BOP Prisoner’s Death After Court Refuses to Extend Bivens
by David M. Reutter
On February 6, 2024, the U.S. Department of Justice agreed to pay $700,000 to settle a Federal Tort Claims Act (FTCA) complaint in the death of a prisoner held by the federal Bureau of Prisons (BOP) at the Federal Correctional Institution (FCI) in Coleman, Florida. Following that, Robert Conyers, Jr., father of Davon Gillians, dropped an appeal he had filed to dismissal of a separate federal civil rights suit filed against the prison’s warden and six guards, alleging that Gillians died due to use of excessive force.
Gillians, 22, had less than a year left on a 46-month sentence—for a 2018 conviction in South Carolina for being a felon in possession of a gun—when two BOP guards named Ayers and Morey handcuffed the prisoner behind his back and removed him from his cell on May 16, 2021. Though Gillians offered no resistance, Ayers allegedly punched and choked him into brief unconsciousness. The guards then forcibly picked Gillians off the floor, moved him to a solitary confinement cell and strapped him into a restraint chair.
There he remained for “24-28 hours,” according to the complaint his dad later filed, “without being provided food, water, or medication” for his sickle cell disease. On May 18, 2021, Ayers, Morey and three more guards named Kitchen, Bostic and Kirkenhall removed Gillians from the restraint chair and placed him in a cell with a prisoner known as “Cleveland.” The complaint alleged that BOP was restricted from double-celling Gillians due to “his mental health issues and propensity for violence.” Unsurprisingly, a fight between the two prisoners immediately ensued. But guards allegedly stood by watching “as a punitive measure” to ensure that Gillians “would be injured.” After several minutes of fighting, guards “used large amounts of pepper spray in an attempt to extract” Gillians and Cleveland from the cell.
Once Gillians was removed from the cell, guards moved him back to solitary confinement and strapped him into the restraint chair again. There he was allegedly denied “food, water, or medical attention despite his deteriorating medical condition.” Other prisoners reportedly heard Gillians plead for food and cry that he could not feel his legs, observing as he urinated on himself and repeatedly voiced concern that he was going to die. In the early morning hours of May 19, 2021, Gillians was rushed to a hospital where he was pronounced dead.
Conyers filed suit for his son’s Estate in February 2022 in federal court for the Middle District of Florida, accusing the guards and FCI-Coleman Warden Brian Antonelli of violating the prisoner’s civil rights and causing his death. But federal law provides no cause of action for damages against the United States, except in very limited circumstances provided under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1972).
A magistrate judge reported that the circumstances of Gillians’ death created a new circumstance that would require an extension of the government’s liability under Bivens—a judicial process which the current Supreme Court of the U.S. has all but shut down. The judge therefore recommended dismissal of Conyers’ claims on July 20, 2023. The district court then adopted that report and recommendation just over a month later, on August 28, 2023. See: Conyers v. Ayers, 2023 U.S. Dist. LEXIS 125307 (M.D. Fla.); and 2023 U.S. Dist. LEXIS 151551 (M.D. Fla.).
Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit. Meanwhile, the government proceeded to rule on Conyers’ FTCA claim. The South Carolina Court of Common Pleas, Ninth Judicial Circuit, approved the $700,000 settlement resolving that claim in February 2024. The court’s order noted that the payout included $158,156.77 in fees and costs for Conyers’ attorneys from Charleston’s Peper Law Firm as well as Stewart, Tilghman, Fox, Bianchi & Cain PA in Miami. Another $100,000 went to the Estate for the survival action, while the remaining $441,843.23 was split between Gillians’ parents for his wrongful death. See: Conyers v. United States, S.C. Comm. Pleas (9th Jud. Cir.), Case No. 2024-CP-10-0284.
“What these defendants did to our client is unconscionable and cannot be tolerated in a civil society,” declared Conyers’ attorney, Mark A. Peper. He also expressed pleasure that “none of the guards involved remains employed at FCI-Coleman.”
Additional sources: Charleston Post-Courier, The State, WCBD, WCIV