Opinion
Civil No. 03-1359-AA.
June 9, 2004
ORDER
Plaintiff, an inmate at FCI Sheridan, filed this action alleging that defendants violated his constitutional rights by subjecting him to an unlawful strip search and thwarting his efforts to pursue an administrative remedy.
Defendant Kehoe moved to dismiss plaintiff claims against him. By Order (#56) entered May 4, 2004, the court construed defendant's motion to Dismiss (#38) as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff was advised of the federal summary judgment standard and allowed an opportunity to respond.
The relevant facts are as follows: Defendant Kehoe is President of the American Corrections Association ("ACA"), a private, not-for-profit corporation organized under the laws of the State of New York. Through the Commission on Accreditation for Corrections, ACA maintains a private, nongovernmental, voluntary certification program pursuant to which corrections facilities may apply for ACA accreditation. Accreditation is based upon an applicant correctional facility's demonstration of compliance with standards adopted by ACA. Facilities are accredited for a period of three years following an audit or inspection of the facility by representatives of ACA. The accreditation program is entirely voluntary. ACA has no authority to require a correctional facility to adopt any procedure or to change any existing procedure. ACA's sole authority is to deny accreditation, or to withdraw accreditation from any facility found not to be in compliance with ACA's standards. FCI Sheridan has been accredited five times, most recently in August 2003.
Plaintiff's sole allegation as to defendant Kehoe is that he "failed to properly revise custody's procedure after reviewing internal records," and "certified custody ignoring the on going claim presented by Nunez."
To establish a claim under Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), plaintiff must establish that an individual, acting under the color of federal law, deprived him of rights secured under the Constitution.
ACA is a private corporation against which a Bivens claim may not be maintained. See, Correctional Services Corporation v. Malesko, 534 U.S. 61, 69 (2001). Plaintiff has not alleged any facts that would establish that the conduct of the ACA could properly be attributed to the federal government under the various tests set forth in Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). The undisputed facts set forth by defendant Kehoe clearly establish that ACA does not act under the color of federal law for purposes of liability under Bivens.
In addition, the record reflects that defendant Kehoe, a volunteer who serves ACA without compensation, is not an employee of ACA and is not responsible for the administration of ACA's accreditation program. Therefor, defendant Kehoe is subject to the full protection of the federal Volunteer Protection Act, 42 U.S.C. § 14501 et seq, in connection with his ACA related activities and cannot be held liable for harm caused by his alleged acts or omissions on behalf of ACA.
There are no facts in the record which would establish that any harm to plaintiff was the result of defendant Kehoe's "willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights" of plaintiff." 42 U.S.C. § 14503 (a)(3).
Armendarez v. Glendale Youth Center, Inc., 265 F. Supp.2d 1136, 1141 (D. Ariz. 2003).
Assuming that plaintiff could establish that ACA was liable for the alleged constitutional deprivations he complains of, the only possibly basis for liability on the part of defendant Kehoe is respondeat superior. It is well establish that respondeat superior is not a proper basis for liability in such cases.
Based on all of the foregoing, I find that plaintiff has failed to establish that ACA or defendant Kehoe acts under the color of federal law. Accordingly, they are not proper defendants in aBivens action. In addition, plaintiff has not established any facts that would support respondeat superior liability on the part of defendant Kehoe who is immune from liability to plaintiff under the provisions of 42 U.S.C. § 14501 et seq. There are no remaining issues of fact with respect to plaintiff's claims against defendant Kehoe and he is entitled to judgment as a matter of law.
Defendant Kehoe's Motion to Dismiss (#38) (construed as a motion for summary judgment)is allowed. Plaintiff's Motion for Summary Judgment against defendant Kehoe (#41) is denied.