Jones v. Allen et al

Filing 10

ORDER to Dismiss in Part and to Assign Case to a District Judge and to a Magistrate Judge. it is ORDERED that Defendants United States of America and Mark Kellar are dismissed from the action and the Clerk of the Court shall terminate these Defend ants as parties to this action. It is FURTHER ORDERED that the claims as asserted against the remaining Defendants shall be assigned to District Judge Raymond P. Moore, pursuant to D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Kathleen M. Tafoya, by Judge Lewis T. Babcock on 9/26/2013. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02167-BNB

BRUCE W. JONES,
Plaintiff,
v.
DR. JEFFREY ALLEN, Individually and in his Official Capacity, Chief Health Programs,
Health Services Division, Washington D.C., North Central Region, Kansas City,
Kansas,
LISA GREGORY, Individually and in her Official Capacity, Regional Health Services
Administrator, North Central Regional Office, Kansas City, Kansas,
UNITED STATES OF AMERICA,
MARK KELLAR, Individually and in his Official Capacity, Health Services Administrator,
Federal Correctional Inst., Florence,
ALLYSON ALVARADO, Individually and in her Official Capacity, Asst. Health Services
Administrator, Federal Correctional Institute, Florence,
LT. CIMAROSSA, Individually and in her Official Capacity, Acting Asst. Health
Services Health Administrator, Federal Correctional Institute, Florence,
GEORGE SANTINI, Individually and his Official Capacity, Staff Physician, Federal
Correctional Institute, Florence,
ALICIA VINYARD, Individually and in her Official Capacity, Midlevel Provider, Federal
Correctional Institute, Florence,
GILBERTA TRUJILLO, Individually and in her Official Capacity, Medical Secretary,
Federal Correctional Institute, Florence,
P. RANGEL, Individually and in his Official Capacity, Associate Warden, Federal
Correctional Institute, Florence, and
JAMES PELTON, Individually and in his Official Capacity, Acting Clinical Director,
Federal Correctional Institute, Florence,
Defendants.

ORDER TO DISMISS IN PART AND TO ASSIGN CASE
TO A DISTRICT JUDGE AND TO A MAGISTRATE JUDGE

Plaintiff, Bruce W. Jones, is in the custody of the United States Bureau of Prisons

and currently incarcerated at the Federal Correctional Institution in Florence, Colorado.
Mr. Jones, acting pro se, initiated this action by filing a Prisoner Complaint pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915. On August 19, 2013, Magistrate Judge Boyd N. Boland granted Mr.
Jones leave to proceed pursuant to 28 U.S.C. § 1915. Magistrate Judge Boland also
entered an order directing Mr. Jones to show cause why the claims asserted against
Defendants Mark Kellar, George Santini, Alicia Vinyard, Gilberta Trujillo, and James
Pelton should not be dismissed as repetitive of the claims that he asserted and are
pending in Jones v. Kellar, No. 11-cv-02721-RM-KMT (D. Colo. filed Oct. 19, 2011). Mr.
Jones filed a Response on August 27, 2013.
Mr. Jones contends that the claims he asserts in this case involve only
constitutional violations that took place from February 2012 forward, whereas the claims
in Case No. 11-cv-02721-RM-KMT took place prior to his surgery, which was performed
mid-February 2012. The Court, therefore, finds that claims in this action are not
repetitive of the claims asserted in Case No. 11-cv-02721-RM-KMT. For the following
reasons, the Complaint will be dismissed in part.
Mr. Jones may not sue the United States of America in a Bivens action. The
United States has not waived sovereign immunity for itself or its agencies under Bivens
for constitutional tort claims. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Chapoose v.
Hodel, 831 F.2d 931, 935 (10th Cir. 1987). Therefore, any Bivens claims for damages
against the United States is barred by sovereign immunity. Furthermore, a request for
injunctive relief against BOP subordinate officials is not construed as a suit against the
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United States because an injunction against the named individuals would not be granted
against the United States. See Jordan v. Sosa, 654 F.3d 1012, 1031 (10th Cir. 2011).
The United States therefore, will be dismissed.
Also, the Court will dismiss Defendant Mark Kellar based on Mr. Jones’
Response, in which he concedes Mr. Kellar should be dismissed from the action.
Accordingly, it is
ORDERED that Defendants United States of America and Mark Kellar are
dismissed from the action and the Clerk of the Court shall terminate these Defendants
as parties to this action. It is
FURTHER ORDERED that the claims as asserted against the remaining
Defendants shall be assigned to District Judge Raymond P. Moore, pursuant to
D.C.COLO.LCivR 40.1C.1., and to Magistrate Judge Kathleen M. Tafoya.
DATED at Denver, Colorado, this 26th

day of

September

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2013.