McCain v. Scott
| Decision Date | 29 May 1998 |
| Docket Number | Civil Action No. 1:1997-CV-2939-RWS. |
| Citation | 9 F.Supp.2d 1365 |
| Parties | Zack McCAIN, Jr., Plaintiff, v. Willie J. SCOTT, Jerry F. Pearson, Robert L. Matthews, Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
Zack McCain, Jr., Florence, CO, pro se.
Janet Fuller King, Office of United States Attorney, Atlanta, GA, for Defendants.
This is a pro se federal-prisoner Bivens-type action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), presently before the Court on various motions [11-1, 14-1, 15-1, 17-1, 17-2, 18-1, 19-1, 20-1, 21-1, 24-1, 25-1].
Plaintiff Zack McCain, Jr., is a federal prisoner presently serving a 106-month sentence. According to the Amended Complaint [10], McCain brings this action against the Defendants in their individual capacities only and seeks monetary damages only. McCain alleges that, because of his administrative complaints against staff at the United States Penitentiary in Atlanta ("USP-Atlanta"), the Defendants retaliated against him by increasing his security-level classification (by adding the management variable "Greater Security" to his medium security-level classification) and by transferring him to the United States Penitentiary at Lompoc ("USP-Lompoc") there to be murdered, in violation of his First Amendment right to petition the government for redress of grievances, his Fifth Amendment right to due process, and his Eighth Amendment right to be free from cruel and unusual punishment. In addition, McCain contends that the Defendants violated his rights under the Eighth Amendment by exhibiting deliberate indifference to his medical needs by transferring him to USP-Lompoc, where he suffers hay fever attacks due to the heavy pollenation.
Specifically with respect to each named defendant, McCain contends that, in September and October 1996, through the chains of command, Defendant Willie J. Scott, Warden of USP-Atlanta, wrongfully ordered McCain placed in administrative segregation for possible reclassification for the purpose of transferring McCain to the more dangerous USP-Lompoc and that he ordered prison case manager Chris Paul to request the security-level management variable and to prepare the retaliatory transfer order. McCain contends that Defendant Jerry Pearson, Regional Designator, thereafter approved the retaliatory increase in McCain's security-level classification and conspired with Scott by disregarding Scott's retaliatory reasons for McCain's transfer and by failing to exercise his power to correct the retaliatory security-level management variable and transfer. McCain contends that Defendant Robert Matthews, Regional Director, also conspired with Scott to retaliate against McCain by authorizing application of the management variable to McCain's security-level classification and the transfer to USP-Lompoc.
At the time this action was initiated, McCain was incarcerated at USP-Lompoc. He has since been transferred to USP-Florence in Colorado. [20]
The Defendants have moved to dismiss the complaint or, in the alternative, for summary judgment, contending (1) that McCain has failed to properly effectuate service on the United States Attorney and the Attorney General pursuant to Fed.R.Civ.P. 4(i), (2) that McCain's official capacity claims against the Defendants are barred by the doctrine of sovereign immunity, (3) that the complaint does not satisfy the heightened pleading requirements applicable to civil rights actions against government officials, (4) that the Defendants are protected from suit by qualified immunity, (5) that the complaint does not state a claim under the Eighth Amendment because McCain does not allege that any of the Defendants were aware of his alleged medical condition (hay fever) and he does not allege that he was denied appropriate medical care at USP-Atlanta or USP-Lompoc, and (6) that the complaint does not state a claim under the First Amendment because McCain does not allege that his ability to file administrative complaints was impaired and because he does not have a constitutional right to be incarcerated in a particular institution.
In response to the motion to dismiss, McCain states that he is suing the Defendants in their individual capacities only, under Bivens, that he seeks money damages from the individual Defendants only and that he seeks no relief from the United States, and contends that he, therefore, does not need to serve the United States. The question whether the United States must be served in a Bivens-type action apparently is one of first impression in this Circuit.
In Bivens, the Supreme Court held that a violation of the Fourth Amendment by a federal agent acting under color of his authority gives rise to a cause of action against that agent, individually, for damages. 403 U.S. at 389, 91 S.Ct. at 2001. As a suit against individuals, service must be made upon the Defendants as individuals pursuant to Fed.R.Civ.P. 4(d) or (e). Defendants do not challenge the adequacy of personal service.
The two circuits to squarely address whether the government must also be served in a Bivens-type action have concluded, because the government is not a defendant and federal agents are not sued in their official capacities, that no service need be made on the government. See Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir.1996); Armstrong v. Sears, 33 F.3d 182, 186-87 (2d Cir.1994). In addition, the two leading commentators on federal civil procedure agree that in a Bivens-type action only personal service on the defendants is required. See 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1107 at 163 & n. 29 (2d ed. 1987 & Supp.1998); 1 Moore's Federal Practice § 4.56[3] at 4-77 through 4-78 & n. 6 (3d ed.1998).
Although the Sixth Circuit did state, in Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988), that in a Bivens-type action both the United States and the individual defendants must be served, the United States had been served in that case and the issue was whether the individual defendants must also be served. Accordingly, the Sixth Circuit's statement as to the necessity of service on the United States was dictum unsupported by any reasoned analysis of the issue. This Court considers the Second and Ninth Circuit decisions well reasoned and will apply them here.
Accordingly, because McCain has asserted claims against the Defendants in their individual capacities only, under the rationale of Bivens, he need not serve the United States, and this complaint is not subject to dismissal for ineffective service of process. Also, because McCain has not asserted any claims against the United States or against the Defendants in their official capacities, it is not necessary to determine whether McCain's claims are barred by sovereign immunity.
A complaint may be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief." Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir. 1994). In addition, this Court is constrained to construe liberally pro se pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).
Under the "qualified immunity" defense, Defendants are immune from both trial and liability if the complaint fails to state a violation of "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).
In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167-68, 113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517 (1993), the Supreme Court held that in civil rights actions against municipal corporations courts may not impose a heightened pleading standard above the requirement of Fed.R.Civ.P. 8(a)(2) that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court of Appeals for the Eleventh Circuit, however, noting that the Supreme Court did not extend its holding to cases involving individual government officials, with respect to whom a qualified immunity defense may be available, has specifically declined to extend Leatherman to 42 U.S.C. § 1983 civil rights cases raising a qualified immunity issue. See GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367-68 (11th Cir.1998) (citing Leatherman, 507 U.S. at 167, 113 S.Ct. at 1162). Thus, in pleading a § 1983 action in the Eleventh Circuit, especially if the court must determine whether the allegedly violated right was clearly established when the complained-of acts occurred, some factual detail is necessary; conclusory allegations are insufficient. See GJR Investments, 132 F.3d at 1367-68; Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992), cert. denied, 507 U.S. 987, 113 S.Ct. 1586, 123 L.Ed.2d 153 (1993). Because the qualified immunity analysis is the same whether the claims are brought under Bivens or § 1983, see Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 2909, 57 L.Ed.2d 895 (1978), this Bivens-type action is subject to the same heightened pleading requirement. Thus, in ruling on the Defendants' motion to dismiss this action, this Court is guided by both the Rule 12(b)(6) standard and by the heightened pleading requirement applicable to civil rights cases.
The Defendants' contention that McCain fails to state a constitutional claim because he has, for example, no constitutional right to incarceration in a particular institution, misapprehends the nature of a retaliation claim. It was well established...
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