Esmael v. Tagliaferri et al

Filing 6

ORDER - (1) Plaintiff's Application to Proceed In Forma Pauperis is granted. (Doc. 2.) (2) The Complaint and this action are dismissed for failure to state a claim without leave to amend. (3) Plaintiff's motion to amend the demand for co mpensatory relief in his Complaint is denied. (Doc. 5.) (4) The Clerk of Court must enter a judgment of dismissal of this action. (5) The docket shall reflect that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Senior Judge Robert C Broomfield on 6/26/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kedir Essa Esmael,
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Plaintiff,
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vs.
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Geri Tagliaferri, et al.,
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Defendants.
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No. CV 12-0916-PHX-RCB (MEA)
ORDER

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Plaintiff Kedir Essa Esmael, who is confined in the Eloy Detention Center (EDC), a

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Corrections Corporation of America (CCA) facility,1 in Eloy, Arizona, has filed a pro se civil

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rights Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis. (Doc.

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1, 2.) Plaintiff has also filed a motion to amend the damages sought in his Complaint. (Doc.

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5.) The Court will dismiss the Complaint and this action and deny the motion as moot.

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I.

Application to Proceed In Forma Pauperis

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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. (Doc. 2.) This

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action was opened as a “prisoner” civil rights case and referred to the Court’s staff for review

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pursuant to LR Civ. 72.1(b). A “prisoner” is statutorily defined as “any person incarcerated

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EDC holds immigration detainees pursuant to contract with the Bureau of
Immigration and Customs Enforcement (ICE). See http://www.cca.com/facility/
eloy-detention-center/ (last visited June 13, 2012).

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or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated

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delinquent for, violations of criminal law or the terms and conditions of parole, probation,

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pretrial release, or diversionary program.” 28 U.S.C. § 1915(h); 42 U.S.C. § 1997e(h). That

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is, a “prisoner” is a person who is “currently detained as a result of accusation, conviction,

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or sentence for a criminal offense.” Agyeman v. INS, 296 F.3d 871, 885, 886 (9th Cir. 2002)

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(citing Page v. Torrey, 201 F.3d 1136, 1139-40 (9th Cir. 2000)). An alien pending

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deportation proceedings, which are civil rather than criminal in nature, is not a “prisoner,”

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so long as the alien is not also facing criminal charges. Id. at 885-87.

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At the time Plaintiff commenced this action, he was in the custody of Immigration and

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Customs Enforcement (ICE) as an immigration detainee and not in connection with pending

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criminal proceedings. Plaintiff is not, therefore, a “prisoner” within the meaning of 28

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U.S.C. §§ 1915(a)(2), 1915A, or 42 U.S.C. § 1997e, and he is not subject to the incremental

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fee payment requirement of § 1915(a)(2). Plaintiff otherwise qualifies to proceed in forma

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pauperis. Accordingly, Plaintiff will be granted leave to proceed in forma pauperis.

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II.

Statutory Screening of Prisoner Complaints

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The Court is required to screen complaints brought in forma pauperis. 28 U.S.C.

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§ 1915(e)(2). The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or an officer or an employee of a governmental entity. 28

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U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has

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raised claims that are legally frivolous or malicious, that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2).

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A pleading must contain a “short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not

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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-

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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.” Id.

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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a

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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual

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allegations may be consistent with a constitutional claim, a court must assess whether there

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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.

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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts

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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th

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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards

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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,

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94 (2007) (per curiam)).

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If the Court determines that a pleading could be cured by the allegation of other facts,

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a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the

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action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). The Court

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will dismiss Plaintiff’s Complaint for failure to state a claim without leave to amend because

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the Complaint cannot be amended to state a claim.

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III.

Complaint

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Plaintiff alleges two counts for denial of constitutionally-adequate medical care and

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threat to safety. Plaintiff sues the following current or former employees of EDC: Registered

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Nurse (RN) Geri Tagliaferri and [First Name Unknown] Rodriguez; Renee Kania; and Phillip

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Farabaugh. Plaintiff seeks compensatory relief.

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IV.

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Failure to State a Claim
Plaintiff alleges violations of his federal constitutional rights by persons acting under
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color of federal law pursuant to Bivens. To state a Bivens claim, a plaintiff must allege that

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persons acting under color of federal law violated his constitutional rights. Martin v. Sias,

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88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.

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1991)). Thus, an action under Bivens is analogous to one brought pursuant to 42 U.S.C.

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§ 1983 except for the replacement of a state actor under § 1983 by a federal actor under

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Bivens. Id.; but see Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001);

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Minneci v. Pollard, 132 S.Ct. 617, 623 (2012). To state a valid constitutional claim, a

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plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular

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defendant, and he must allege an affirmative link between the injury and the conduct of that

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defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976).

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Plaintiff sues CCA employees for alleged failures to provide constitutionally-adequate

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medical care and threats to safety. The United States Supreme Court has declined to expand

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Bivens to include a private right of action against a private entity under contract with the

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federal government. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001).

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Further, in Minneci v. Pollard, 132 S.Ct. 617, 623 (2012), the Supreme Court declined to

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expand Bivens to include a private right of action for damages against employees of a private

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entity under contract with the federal government where state tort law provides an

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alternative, existing process capable of protecting the constitutional interests at stake.

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Arizona tort law provides such an alternative for injuries due to the denial of medical care

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and failure to protect against threats to safety.

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For the above reasons, Plaintiff fails to state a federal claim against any Defendant in

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his Complaint. Further, Plaintiff cannot amend his Complaint to state a federal claim against

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any of the Defendants. Accordingly, Plaintiff’s Complaint and this action will be summarily

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dismissed.

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V.

Dismissal without Leave to Amend

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As discussed above, Plaintiff may not seek damages against any of the Defendants for

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the claimed Eighth Amendment violations, nor may he amend the Complaint to state a

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Bivens claim against any CCA employee because state tort law affords an alternative to such

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claims. Accordingly, the Complaint and this action will be denied.

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IT IS ORDERED:

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(1)

Plaintiff’s Application to Proceed In Forma Pauperis is granted. (Doc. 2.)

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(2)

The Complaint and this action are dismissed for failure to state a claim without

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leave to amend.

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(3)

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Plaintiff’s motion to amend the demand for compensatory relief in his

Complaint is denied. (Doc. 5.)

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(4)

The Clerk of Court must enter a judgment of dismissal of this action.

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(5)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 26th day of June, 2012.

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