Summary
holding that Malesko precludes Plaintiff's Bivens claim against a corporation
Summary of this case from LaCedra v. Donald W. Wyatt Detention FacilityOpinion
CIVIL ACTION No. 03-3129-KHV
January 15, 2004
MEMORANDUM AND ORDER
Cornelius E. Peoples, a prison inmate, brings suit against Corrections Corporation of America ("CCA") and its officials under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.388 (1971). Plaintiff alleges that defendants violated his constitutional right to be free from cruel and unusual punishment while he was a federal pretrial detainee in a CCA facility in Leavenworth, Kansas. The matter is before the Court on Defendants' Motion To Dismiss (Doc. #15) filed August 19, 2003. For reasons set forth below, the Court sustains defendants' motion to dismiss for lack of subject matter jurisdiction.
Factual Background
CCA is a private Maryland corporation which houses federal pretrial detainees and prisoners under a contract with the United States Marshal's Service. The individual defendants Fred Lawrence, warden, Roger Moore, assistant warden, James Perry, chief of security and Jay Foskett, security captain, work at the CCA facility in Leavenworth, Kansas.
In late July 2001, the Marshal's Service transferred plaintiff from the United States Penitentiary at Lompac, California to the CCA detention center in Leavenworth to await a new trial in the United States District Court for the Western District of Missouri. CCA officials placed plaintiff in segregation for one day until the Marshal's Service approved his move to general population. CCA officials then placed plaintiff in an eight-man cell in H-pod, a medium security unit. That day, plaintiff asked the pod officer to speak with the captain. Plaintiff told the pod officer that there were "several Mexican gang members (Mexican Mafia), that he was going to have problems with." Doc. #1 at 5. The officer told plaintiff to let someone know if he had a problem, but that "the captain is not going to move you right now." Id. That evening plaintiff completed a grievance form stating that he had problems with certain members of the Mexican Mafia who had clashed with the "Moorish Science Temple" members, a religious group to which plaintiff belonged. Plaintiff marked the envelope "Emergency Grievance" and placed it in the grievance box that same night. Plaintiff never received a response. During the next several days, plaintiff told several CCA personnel about the situation between him and the Mexican Mafia members. The officials told plaintiff that they had spoken with Chief of Security Perry and that Perry refused to move him. Plaintiff wrote about his concern to Fred Lawrence, the CCA warden. Plaintiff again received no response.
Plaintiff does not allege the specific date when officials placed him in the eight-man cell.
Plaintiff does not allege the specific dates on which he told CCA personnel about his concerns, but he states that he did so during the "4 or 5 days" after he was placed in the eight-man cell.
On August 1, 2001, at about 6:00 a.m., an altercation broke out between plaintiff and approximately seven Mexican Mafia members. Officer Miller witnessed the altercation. Captain Foskett called an emergency lock-down of the unit. Captain Foskett called plaintiff out and interviewed him. Plaintiff told Foskett about his grievance and requests to be moved. Foskett told plaintiff that he would "talk to Perry and let him know what the deal is." Id. at 7. Foskett later told plaintiff that Perry was aware of his grievance and the letter to Lawrence, and that he would move him to a two-man cell but would not move him out of the pod. CCA officials then moved plaintiff to a two-person cell and took the pod off lock-down status.
Several hours later, at about 11:00 a.m., a fight over the television broke out between a member of the Mexican Mafia and inmate Greg Burns. Approximately ten Mexican Mafia members then attacked plaintiff with padlocks tied to socks and full cans of pop. Plaintiff suffered cuts and bruises on his head, back and ribs, and a significant cut on his wrist. Plaintiff filed another grievance about his safety, and was moved to A-pod for 14 days until defendants transferred him to another facility. CCA later terminated Perry because of his actions concerning plaintiffs safety.
Plaintiff asserts that defendants violated his constitutional right to be free from cruel and unusual punishment by failing to protect him from the assault by other inmates.
Analysis
Defendants argue that they are entitled to dismissal both on jurisdictional grounds and because plaintiff has failed to state a claim on which relief can be granted. First, defendants argue that the Court lacks subject matter jurisdiction over plaintiffs claim because he has not alleged that defendants acted under color of federal law, as required by Bivens. On the merits, defendants argue that plaintiff has not stated a claim that defendants failed to protect him from other inmates because plaintiff has not alleged that (1) he was incarcerated under conditions posing a substantial risk of serious harm or (2) defendants were deliberately indifferent to plaintiffs health or safety. See Farmer v. Brennan 511 U.S. 825 (1994).
The Court may only exercise jurisdiction when specifically authorized to do so, See Castaneda v. INS. 23 F.3d 1576, 1580 (10th Cir. 1994), and must "dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." Scheideman v. Shawnee County Bd. of County Comm'rs. 895 F. Supp. 279, 280 (D. Kan. 1995) (citing Basso v. Utah Power Light Co., 495 F.2d 906, 909 (10th Cir. 1974)); Fed.R.Civ.P. 12(h)(3). Because federal courts are courts of limited jurisdiction, the law imposes a presumption against their jurisdiction. Marcus v. Kan. Dep't of Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999). If defendants challenge federal jurisdiction, plaintiff bears the burden of showing that jurisdiction is proper and he must demonstrate that the case should not be dismissed. See Jensen v. Johnson County Youth Baseball League, 838 F. Supp. 1437, 1439-40 (D. Kan. 1993).
Federal courts have original jurisdiction over civil actions "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. A plaintiff creates federal question jurisdiction by means of a well-pleaded complaint which establishes either that federal law creates the cause of action or that plaintiff's right to relief depends on resolution of a substantial question of federal law.Sac Fox Nation of Okla. v. Cuomo, 193 F.3d 1162, 1165-66 (10th Cir. 1999) (citing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal. 463 U.S. 1, 27-28, (1983)). Federal courts also have original jurisdiction over civil actions "between . . . citizens of different States" when the amount in controversy exceeds the sum or value of $75,000. 28 U.S.C. § 1332.
Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction generally take two forms: facial attacks on the complaint or factual attacks on the accuracy of the allegations in the complaint. See Holt v. United States. 46 F.3d 1000, 1002-03 (10th Cir. 1995). Defendants' motion relies only upon the complaint and is therefore a facial attack. A facial attack on subject matter jurisdiction questions the sufficiency of the complaint. See Holt. 46 F.3d at 1003. In its review, the Court must therefore accept the allegations in the complaint as true.
The Court affords a pro se plaintiff some leniency and must liberally construe the complaint. See Oltremari v. Kan. Soc. Rehab. Serv., 871 F. Supp. 1331, 1333 (D. Kan. 1994). While pro se complaints are held to less stringent standards than pleadings drafted by lawyers, pro se litigants must follow the same procedural rules as other litigants. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992). The Court may not assume the role of advocate for a pro se litigant. See Hall v. Bellmon, 935 F.2d 1106. 1110 (10th Cir. 1991).
Plaintiff asserts jurisdiction under 28 U.S.C. § 1331 and 1343 andBivens. Section 1343 provides jurisdiction over claims for constitutional violations, provided that the action is "authorized by law." Section 1331 provides jurisdiction over civil action "arising under the Constitution, laws or treaties of the United States." Thus, the jurisdictional question turns on whether federal law, i.e. Bivens, provides a cause of action.
In Bivens, the United States Supreme Court recognized an implied private remedy for damages for violation of the Fourth Amendment by "a federal agent acting under color of his authority." 403 U.S. at 389. The Supreme Court later extended Bivens to provide a damages remedy for violation of the Fifth Amendment Due Process Clause, see Davis v. Passman, 442 U.S. 228 (1979), and violation of the guarantee against cruel and unusual punishment under the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 18 (1980). In Carlson, the Supreme Court stated that "Bivens established that victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." 446 U.S. at 18.
Defendants point out that CCA is a private corporation performing under contract with the United States Marshal's Service. Defendants contend that this relationship does not make CCA and its employees federal agents for purposes of Bivens. In a very similar case, Judge Rogers of this Court stated as follows:
The difficult question presented by this complaint is whether or not jurisdiction lies under Bivens to sue a private corporation and employees of that corporation who operate a prison pursuant to a contract with the United States. See 18 U.S.C. § 4013, 4002. Jurisdiction would clearly lie for claims involving unconstitutional actions taken by federal officials, persons actually employed by the United States or agents of the United States. Cf. Logue v. United States. 412 U.S. 521, 524, 93 S.Ct. 2215, 2218, 37 L.Ed.2d 121 (1973). Plaintiffs jurisdictional assertions are based upon an unfounded assumption that the CCA employees who are nothing more than employees of an independent contractor were acting under color of federal authority. Such an assumption is certainly not settled law. The Tenth Circuit Court of Appeals has declined to take a position as to whether a private defendant may be subject to Bivens liability and noted a split among the circuit courts on this issue. See De Vargas v. Mason, 844 F.2d 714, 719-20, FN5 (10th Cir. 1988). This court follows the example of the Tenth Circuit by assuming arguendo that a Bivens action is available and proceeds to examine the sufficiency of the complaint.Hill, v. Corr. Corp. of Am., 14 F. Supp.2d 1235, 1238 (D. Kan. 1998). In Hill, Judge Rogers sustained the motion to dismiss for failure to state a claim on the merits. Since the decision in Hill the Supreme Court inCorrectional Services Corporation v. Malesko, 534 U.S. 61 (2001), has directly answered at least half of the difficult question that Judge Rogers addressed in Hill.
In Malesko, a federal offender sued Correctional Services Corporation (CSC), a private corporation under contract with the federal Bureau of Prisons to house federal prisoners and detainees. While Malesko was in CSC custody, its employees forced him to climb stairs to his fifth floor living quarters even though he had a known heart condition. Malesko suffered a heart attack, fell and was injured. Malesko brought a Bivens action against CSC for actual and punitive damages. Although he later attempted to amend his complaint to name a CSC guard as a defendant, his amendment was time-barred. Malesko. 534 U.S. at 65. The Supreme Court refused to extend Bivens liability to CSC, and found that imposing liability on private prison facilities is a question for Congress, not the courts, to decide. As to the individual employee, the Supreme Court noted that the district court had dismissed on statute of limitations grounds. Therefore, it did not address whether a Bivens action might lie against individual employees of a federal contractor.
Malesko clearly precludes plaintiffs Eighth Amendment claim against CCA under Bivens. Defendants assert that Malesko also establishes that plaintiff cannot pursue a Bivens claim against individual CCA employees. This Court's reading of Malesko leads it to conclude that the Supreme Court would find no Bivens action under the facts of this case.
The Court does not read plaintiffs complaint as a Section 1983 action. Plaintiff expressly states that he asserts an action underBivens. which "allows federal officials to be sued in the same manner similar to that set forth at 42 U.S.C. § 1983 for state officials who violate a person'[s] constitutional rights under color of state law."Complaint at 2. To the extent that plaintiff seeks to hold defendants liable under Section 1983, defendants correctly point out that plaintiff does not assert that they acted under color of state law as required by Section 1983. See, e.g., Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980) (U.S. Marshal's Service cannot be sued under § 1983 by inmates in custody of U.S. Marshals).
In Malesko. the Supreme Court stated that "[we have] retreated from our previous willingness to imply a cause of action where Congress has not provided one." 534 U.S. at 67 n. 3. It also stated that "since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants." Id at 68 (citing Bushy. Lucas. 462 367 (1983) (declining to create Bivens remedy against individual government officials for First Amendment violation asserted by federal employee; Congress' competence in crafting relief for federal employees was "special factor counseling hesitation in creating new remedy"));Schweiker v. Chilicky, 487 U.S. 412, 420-421 (1988) (declining to allow Bivens action against individual government employees for alleged violation of due process in handling Social Security claims and noting that separation of powers forecloses judicial imposition of "new substantive liability" so long as law provides avenue for "some redress"); United States v. Stanley, 483 U.S. 669, 681 (1987) (no Bivens remedy for injuries that arise out of military activity "incident to service"); Chappell v. Wallace. 462 U.S. 296, 304 (1983) (decliningBivens remedy against superior officers of enlisted military personnel).
The Supreme Court in Malesko went on to state that
In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer's unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend Bivens. often for reasons that foreclose its extension here.Malesko. 534 U.S. at 70 (emphasis in original).
Malesko noted that the purpose of Bivens is to deter individual federal officers from committing constitutional violations, and cited its opinion in Meyer for the proposition that "threat of suit against an individual's employer was not the kind of deterrence contemplated by Bivens." Id at 71. In Meyer the Supreme Court stated that "[i]f we were to imply a damages action directly against federal agencies . . . there would be no reason for aggrieved parties to bring damages actions against individual officers. [T]he deterrent effects of the Bivens remedy would be lost." 510 U.S. at 486. The Supreme Court in Malesko stated that "[i]f a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury." 534 U.S. at 62.
In FDIC v. Meyer, 510 U.S. 471 (1994), the Court held that a corporation acting as a federal agent cannot be liable under Bivens. The Court noted that allowing such Bivens actions would create an "enormous financial burden" for the federal government. Id. at 486.
In a vacuum, this reasoning would appear to support a finding that the Supreme Court would recognize a Bivens action against CCA employees. But the Supreme Court continued as follows, placing dispositive emphasis on the availability of alternative remedies:
[We are not] confronted with a situation in which claimants in respondent's shoes lack effective remedies. It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities. This case demonstrates as much, since respondent's complaint in the District Court arguably alleged no more than a quintessential claim of negligence. It maintained that named and unnamed defendants were "negligent in failing to obtain requisite medication . . . and were further negligent by refusing . . . use of the elevator." It further maintained that respondent suffered injuries "[a]s a result of the negligence of the Defendants. The District Court, however, construed the complaint as raising a Bivens claim, presumably under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Respondent accepted this theory of liability, and he has never sought relief on any other ground. This is somewhat ironic, because the heightened "deliberate indifference" standard of Eight Amendment liability would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence.
This also makes respondent's situation altogether different from Bivens, in which we found alternative state tort remedies to be "inconsistent or even hostile" to a remedy inferred from the Fourth Amendment. When a federal officer appears at the door and requests entry, one cannot always be expected to resist. Yet lack of resistance alone might foreclose a cause of action in trespass or privacy. Therefore, we reasoned in Bivens that other than an implied constitutional tort remedy, "there remained . . . but the alternative of resistance, which may amount to a crime." Such logic does not apply to respondent, whose claim of negligence or deliberate indifference requires no resistance to official action, and whose lack of alternative tort remedies was due solely to strategic choice.Id. at 72-74 (internal citations and parentheticals omitted) (emphasis in original). The Supreme Court went on to point out that inmates in Malesko's position had full access to remedial mechanisms established by the Bureau of Prisons, including suits for injunctive relief in federal court and grievances filed through the BOP Administrative Remedy Program. Id. at 74. The Supreme Court concluded as follows:
In sum, respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.Id. at 74 (emphasis added).
Here, as in Malesko. plaintiff essentially claims that CCA and its individual employees were negligent. Any remedy therefore lies under state negligence law. Malesko makes it clear that because he has a negligence remedy, a majority of the Supreme Court would not imply aBivens claim against individual CCA employees.
At least one federal district court has found to the contrary. See Sarro v. Cornell Corr., Inc., 248 F. Supp.2d 52 (D.R.I.2003). In Sarro. the district court found that plaintiff could maintain a Bivens action against employees of a privately operated prison. In so finding, the court stated that it perceived at least four ways to distinguishMalesko.
First, the court cited Malesko's statement that the "core" premise of Bivens is to deter individual federal officers from unconstitutional conduct, and found that although that premise did not apply to the private prison sued in Malesko. it did apply to individual employees of private prisons. Sarro. 248 F. Supp.2d at 62. Second, in Sarro unlike inMalesko. plaintiff was not eligible to seek redress under the BOP administrative remedy program. Id. at 63. Third, the court refused to consider whether state law remedies might be available to plaintiff because consideration of that Malesko factor would require a case-by-case analysis of state law and availability of state law remedies would vary throughout the United States. Id.
Finally, it noted under Malesko. there should be parity between remedies afforded to prisoners at privately run facilities and those at government operated facilities. Sarro quoted the Supreme Court statement that "no federal prisoners enjoy [Malesko's] contemplated remedy" because, while a prisoner at a federal prisoner may bring aBivens action against an individual officer, he may not bring a Bivens actions "against the against the officer's employer, the United States or the BOP." Sarro, 248 F. Supp.2d at 63 (quoting Malesko, 534 U.S. at 71-72). Sarro reasoned that refusing to allow a prisoner to make aBivens claim against individual guards in a private prison would deprive him of a remedy available to prisoners at government operated facilities, thus "running counter to the desire for parity expressed in Malesko." 248 F. Supp.2d at 63.
Although Sarro's reasoning has some appeal, this Court's reading ofMalesko is that if other remedies are available-including state negligence actions-the Supreme Court would not extend Bivens to private employees of government contractors. This Court cannot ignore Malesko's statement that where a state remedy is available, the Supreme Court will not imply a new Bivens action. See Dorwart v. Caraway, 58 P.3d 128, 144 (Mont. 2002) (One cannot read Malesko without concluding that Bivens will be limited to violations of constitutional rights under Fourth and Eighth Amendments, and in some cases Fifth Amendment and even in those instances, Supreme Court will apply Bivens as narrowly as possible).
Here, as in Malesko, plaintiff's complaint alleges a quintessential claim of negligence. Plaintiff claims that the defendants owed inmates a duty of care, that defendants were required to exercise ordinary care to keep prisoners safe, and that CCA employees did not properly respond to an allegedly dangerous situation. Because plaintiff has a state court remedy, the Court will not imply a Bivens action. The Court therefore lacks subject matter jurisdiction and the case is dismissed.
IT IS THEREFORE ORDERED that Defendants' Motion To Dismiss (Doc. #15) filed August 19, 2003 be and hereby is SUSTAINED.