Hector Ayon v. NEOCC, et al
Per Curiam OPINION filed : The judgment of the district court is AFFIRMED, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Eric L. Clay, Circuit Judge and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0670n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Jun 22, 2012
NORTHEAST OHIO CORRECTIONAL
CENTER; RUDDIE RUSHING, Warden,
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Hector Ayon, a federal prisoner proceeding pro se, appeals a district court
judgment dismissing his civil rights complaint filed under 42 U.S.C. § 1983, but construed by the
district court as being filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
Ayon is incarcerated at the Northeast Ohio Correctional Center, which is owned and operated
by Corrections Corporation of America. The Federal Bureau of Prisons has contracted with
Corrections Corporation to house and provide services to federal prisoners. In September 2010,
Ayon alleged that prison officers deployed tear gas as part of a training exercise. During the
exercise, tear gas seeped into the housing unit’s ventilation system, causing Ayon to experience
difficulty breathing. Ayon was unable to evacuate his locked cell for hours. Once evacuated, he was
not treated for gas inhalation. Ayon did file grievances, but the grievances were denied.
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
-2Ayon filed his complaint pursuant to section 1983, alleging that the defendants denied him
due process and subjected him to cruel and unusual punishment. The district court construed Ayon’s
complaint as a Bivens action because there was no allegation under color of state law. Ayon also
brought a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), alleging that the
defendants were negligent in their use of the tear gas. The district court dismissed Ayon’s action for
failure to state a claim. Ayon now argues that the district court erred in construing his section 1983
claims under Bivens and in dismissing his action.
We review the district court’s judgment de novo. Grinter v. Knight, 532 F.3d 567, 571–72
(6th Cir. 2008). In order to avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citation omitted).
The district court properly construed Ayon’s complaint under Bivens because a Bivens action
arises out of a violation of an individual’s federal constitutional rights by one who is acting under
color of federal law. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 n.1 (6th Cir. 2000).
The district court properly held that the prison cannot be sued for damages under Bivens. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 n.2 (2001). Nor is there a Bivens remedy against
Warden Ruddie Rushing because state tort remedies are available. See Minneci v. Pollard, 132 S.
Ct. 617, 625-26 (2012).
The district court also properly dismissed Ayon’s Federal Tort Claims Act allegation. Under
the statute, the United States has waived its sovereign immunity for the negligent acts of government
employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). Independent
contractors are not government employees. See United States v. Orleans, 425 U.S. 807, 813–14
(1976). Therefore, the United States is not liable for the acts of Corrections Corporation or its
employees. See id. at 816.
The judgment of the district court is affirmed.
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