Mack v. United States

Decision Date06 June 2012
Docket NumberCASE NO. 12-3090-SAC
PartiesCEDRIC MACK, Plaintiff, v. UNITED STATES OF AMERICA, doing business as United States Marshal Service, et al., Defendants.
CourtU.S. District Court — District of Kansas
MEMORANDUM AND ORDER

This civil complaint was filed pro se by an inmate of the United States Penitentiary, Leavenworth, Kansas. Plaintiff seeks money damages based upon claims that he was physically, mentally, and emotionally injured during prisoner transport. He is given time to satisfy the filing fee and to cure the deficiencies in his pleading found upon screening.

FILING FEE

The statutory fee for filing a civil rights complaint is $350.00. Plaintiff has neither paid the fee nor submitted an Application to Proceed Without Prepayment of Fees. In order for this action to proceed, he must satisfy the filing fee in one of these two ways. Plaintiff is forewarned that under 28 U.S.C. § 1915(b)(1), being granted leave to proceed without prepayment of fees does not relieve a plaintiff of the obligation to pay the full amount of the filing fee. Instead, it entitles him to pay the fee over time through payments automatically deducted from his inmatetrust fund account as authorized by 28 U.S.C. §1915(b)(2).1 Motions to proceed without prepayment of fees must be submitted upon court-approved forms. Furthermore, § 1915 requires that the prisoner submit with his motion a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing" of the action "obtained from the appropriate official of each prison at which the prisoner is or was confined." 28 U.S.C. § 1915(a)(2). Plaintiff is given time to satisfy the filing fee prerequisites. If he fails to do so within the time allotted, this action may be dismissed without further notice.

In addition, § 1915(b)(1), requires the court to assess an initial partial filing fee of twenty percent of the greater of the average monthly deposits or average monthly balance in the prisoner's account for the six months immediately preceding the date of the filing of a civil action. The court will determine the partial fee assessment after it receives plaintiff's financial information.

COMPLAINT NOT ON FORMS

Local court rules require that a civil complaint be submitted upon court-approved forms. D.Kan. Rule 9.1(a). Mr. Mack will be given time to submit his complaint upon forms provided by the court that will be sent to him with a copy of this order.

FACTUAL BACKGROUND AND CLAIMS

As the factual background for this complaint, plaintiff alleges as follows. In June, 2010, he was a federal prisoner being "held and transported by Corrections Corporation of America" (CCA) at their detention center in Leavenworth, Kansas. While he was handcuffed, waist-chained, and shackled, he was placed in a rear seat in a CCA van, without being properly secured in a seat belt. The breaking action of defendant "unknown driver of van number 2" who was a CCA employee caused him to be "hurled forward into immovable obstacles." He sustained severe head, neck, and back injuries as a result, and suffered unnecessary pain, mental anguish, emotional distress, fear, and humiliation. Then, an unknown CCA medical employee failed to x-ray or properly treat plaintiff for his injury. He was forced to suffer pain and anxiety. The USMS failed to require that federal prisoners be transported in seat belts to prevent injury and failed to "have protocol in place" for taking prisoners who sustained injury to the hospital emergency room for full diagnosis and treatment.

Plaintiff claims deliberate indifference, failure to perform duties, intentional and reckless negligence, and "misconduct of contract employees." He asserts that his right to be free of cruel and unusual punishment was violated by the acts of defendants "in their official and individual capacity." He seeks money damages.

SCREENING

Because Mr. Mack is a prisoner, the court is required by statute to screen his complaint and to dismiss the complaint or anyportion thereof that is frivolous, fails to state a claim on which relief may be granted, or seeks relief from a defendant immune from such relief. 28 U.S.C. § 1915A(a) and (b); 28 U.S.C. § 1915(e)(2)(B).

A court liberally construes a pro se complaint and applies "less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level," and there must be "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). The court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). "[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief," dismissal is appropriate. Twombly, 550 U.S. at 558. The complaint must offer "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Id. at 555. Having screened all materials filed, the court finds the complaint is subject to being dismissed for the following reasons.

FAILURE TO STATE CLAIM

Mr. Mack names as defendants the "United States of America doing business as United States Marshal Service" (USMS); the Corrections Corporation of America (CCA); Unknown Driver of Van Number 2; and Unknown Medical Personnel. He alleges that the unknown defendants were CCA employees. He asserts jurisdiction under 28 U.S.C. §§ 1331 and 1343 based on his allegations of deprivation of constitutional rights. He also asserts jurisdiction under 28 U.S.C. § 1367(a), claiming that this court has pendent jurisdiction over his state law claims.

This court has jurisdiction under 28 U.S.C. § 1331 over all civil actions "arising under the Constitution or laws of the United States." However, plaintiff must also state a claim for relief or a "cause of action" in federal court. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1230-31 (10th Cir. 2005)("To bring suit, a plaintiff must also state a claim upon which relief may be granted, what used to be called stating a cause of action.")(citing e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 398 (1979)(distinguishing "the cause-of-action argument," which is directed at "the existence of a remedy," from jurisdictional questions). The court finds that plaintiff fails to state a cause of action against all the defendants.

1. Defendants United States and USMS

The United States is immune to suit for money damages except where there is a specific statutory provision waiving sovereign immunity. A lawsuit against an agency of the United States like the USMS is, in essence, one against the United States and faces thesame obstacle of sovereign immunity.2 The United States has not waived sovereign immunity in Bivens actions. FDIC v. Meyer, 510 U.S. 471, 483-86 (1994); Dahn v. United States, 127 F.3d 1249, 1254 (10th Cir. 1997)(The United States and its agencies have not waived sovereign immunity for Bivens-type claims.); Laury v. Greenfield, 87 F.Supp.2d 1210, 1213 (D.Kan. 2000). The same is true for actions brought under 42 U.S.C. § 1983, 28 U.S.C. § 1343.3 It follows that plaintiff fails to state a claim under the cited provisions against either the United States or the USMS.

Congress has provided a cause of action against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), § 2671 et seq., for injury caused by the negligent or wrongful act or omission of any employee of a federal agency acting in his or her official capacity. 28 U.S.C. § 2672; United States v. Orleans, 425 U.S. 807, 813 (1976)("The Federal Tort Claims Act is a limited waiver of sovereign immunity, making the Federal Government liable to the same extent as a private party for certain torts of federal employees acting within the scope of their employment."); see 28 U.S.C. § 1346(b).4 However, plaintiff does not assert aclaim for relief under the FTCA.

2. Defendants CCA and CCA Employees

It is also settled law that an inmate does not have a cause of action in federal court under either Bivens or § 1983 against the CCA, which is a private corporate entity. In Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), a federal prisoner sued Correctional Services Corporation ("CSC"), a private corporation under contract with the Bureau of Prisons to house federal prisoners and detainees. See id. at 63-64. While Malesko was in CSC custody, CSC employees forced him to climb stairs to his fifth floor living quarters even though he had a known heart condition. See id. at 64. Malesko had a heart attack, fell, and sustained injuries. See id. Malesko brought a Bivens action against CSC for actual and punitive damages. See id. The Supreme Court refused to extend Bivens to claims against private entities. See id. at 66. They reasoned that imposing liability in a federal cause of action on private prisonfacilities is a matter for Congress, not the courts, to determine.5 See id. at 72.

Likewise, plaintiff does not state a cause of action in federal court against the individual CCA employees, who are employees at a prison facility operated by a private company.6 Minneci v. Pollard, 132 S.Ct. 617, 626 (2012)("[W]here, as here, a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly...

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