Villasenor v. Sanchez

Filing 28

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/16/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02164-BNB
DOMINGO F. VILLASENOR,
Plaintiff,
v.

GEO GROUP, INC.,
OFFICER SANCHEZ, GEO Group, Inc. Employee, and
U.S. MARSALLS/DEP’T OF JUSTICE,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Domingo F. Villasenor, is in the custody of the Colorado Department of
Corrections at the Colorado State Penitentiary in Canón City, Colorado. At the time of
filing, Mr. Villasenor was detained at the Aurora Detention Center in Aurora, Colorado.
Plaintiff initiated this action by filing a Prisoner Complaint against Defendant Sanchez
pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).
On September 17, 2014, Magistrate Judge Boyd N. Boland issued an Order
directing Mr. Villasenor to show cause within thirty(30) days why this action should not
be dismissed for lack of subject matter jurisdiction. In response to the Order to Show
Cause, Plaintiff filed an Amended Complaint on September 30, 2014 (ECF No. 27),
naming additional Defendants.
Mr. Villasenor has been granted leave to proceed in forma pauperis pursuant to

28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua
sponte an action at any time if the action is frivolous or seeks monetary relief against a
defendant who is immune from such relief. A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts
that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Plaintiff is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as
a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons discussed
below, the Amended Complaint and this action will be dismissed for lack of subject
matter jurisdiction.
In the Amended Complaint, Plaintiff purports to bring a Bivens claim against the
Defendants for physical injuries suffered on November 18, 2013, when Defendant
Sanchez crashed a transport vehicle into a barricade at the United States Courthouse in
Denver. Mr. Villasenor alleges in the Amended Complaint that he was examined by a
physician 24 hours after the incident, that the physician prescribed pain medication,
placed him in a neck brace, and ordered x-rays. Plaintiff alleges that since his initial
exam, he has been denied medical treatment. He seeks monetary relief.
I. Legal Standards Re: Subject Matter Jurisdiction
“Federal courts are courts of limited jurisdiction; they must have a statutory basis
for their jurisdiction.” Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994).
There are two statutory bases for federal subject matter jurisdiction: diversity jurisdiction
under 28 U.S.C. § 1332 and federal question jurisdiction under 28 U.S.C. § 1331. The
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federal courts have an independent obligation to determine whether subject matter
jurisdiction exists. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999).
“Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” Fed. R. Civ. P.
12(h)(3); see also McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1252 (10th Cir.
1988) (The issue of subject matter jurisdiction may be raised sua sponte by the court at
any time during the course of the proceedings.).
II. Analysis
A. Claim(s) Against Defendant “U.S. Marshalls/Dep’t of Justice”
A suit for damages against the United States is barred by sovereign immunity
unless immunity has been waived. See Atkinson v. O’Neill, 867 F.2d 589, 590 (10th Cir.
1989) (citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)). The United States
has not waived sovereign immunity for itself or its agencies under Bivens for
constitutional tort claims and, therefore, cannot be sued in a Bivens action. See Federal
Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding that a Bivens
action may not be brought against the United States). Accordingly, the Bivens claim
against Defendant “United States Marshalls/Dept. of Justice” will be dismissed for lack
of subject matter jurisdiction. See Tippett v. United States, 108 F.3d 1194, 1196 (10th
Cir. 1997) (federal court lacks subject matter jurisdiction to hear claims that are barred
by the doctrine of sovereign immunity).

B. Claim(s) Against Defendants GEO Group, Inc., and Officer Sanchez

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Mr. Villasenor also sues Defendants GEO Group, Inc., and Officer Sanchez for
damages under Bivens.
The Geo Group, Inc., is a private company that operates the detention facility in
Aurora, Colorado, pursuant to a contract with Immigration and Customs Enforcement to
detain illegal aliens awaiting administrative hearings. See Cohen v. Zaki, No. 10-1309,
411 F. App’x 136, 137 (10th Cir. Jan. 4, 2011) (unpublished). Mr. Villasenor does not
have a Bivens remedy against the GEO Group, Inc. See Correctional Serv. Corp. v.
Malesko, 534 U.S. 61 (2001) (holding that a Bivens claim is not available against a
private corporation operating under a contract with the federal government).
Plaintiff alleges in the Amended Complaint that Defendant Sanchez is an
employee of the GEO Group, Inc. The United States Supreme Court has declined to
recognize a right of action under Bivens against an employee of a private prisonmanagement firm. See Minneci v. Pollard, 132 S.Ct. 617 (2012). Specifically, the Court
held:
[W]here, as here, a federal prisoner seeks damages from privately
employed personnel working at a privately operated federal prison, where
the conduct allegedly amounts to a violation of the Eighth Amendment,
and where that conduct is of a kind that typically falls within the scope of
traditional state tort law (such as the conduct involving improper medical
care at issue here), the prisoner must seek a remedy under state tort law.
We cannot imply a Bivens remedy in such a case.
132 S.Ct. at 636.
Mr. Villasenor alleges conduct that would typically fall within a state-law
negligence claim. “State-law remedies and a potential Bivens remedy need not be
perfectly congruent.” Id. at 625. Because Plaintiff has an alternative cause of action
under state tort law, he is precluded from asserting a Bivens action against Defendant
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Sanchez in his individual capacity. See Crosby v. Martin, No. 12-3163, 502 F. App’x
733, 735 (10th Cir. Nov. 16, 2012) (unpublished) (citing Minneci).
Mr. Villasenor does not allege any basis, other than Bivens, to invoke the Court’s
federal question jurisdiction under 28 U.S.C. § 1331. Plaintiff therefore must meet the
requirements of the diversity jurisdiction statute, 28 U.S.C. § 1332, to maintain his
claim(s) in federal court.
A plaintiff properly invokes § 1332 jurisdiction when he presents a claim between
parties of diverse citizenship that exceeds the required jurisdictional amount, currently
$75,000. See 28 U.S.C. § 1332(a); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 513
(2006). To demonstrate federal jurisdiction pursuant to § 1332, allegations of diversity
must be pleaded affirmatively. See Penteco Corp. Ltd. Partnership-1985A v. Union Gas
Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991) (citations omitted); see also Fed. R.
Civ. P. 8(a)(1) (pleading must contain "a short and plain statement of the grounds for
the court’s jurisdiction").
The Amended Complaint does not allege facts to show diverse citizenship of the
parties or the requisite amount in controversy so as to invoke the Court’s diversity
jurisdiction over an arguable state law claim. Accordingly, it is
ORDERED that the Amended Complaint (ECF No. 27) and this action are
DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. It is
FURTHER ORDERED that leave to proceed in forma pauperis is denied for the
purpose of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438 (1962). If Mr. Villasenor files a notice of appeal he must also pay
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the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the
United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
DATED October 16, 2014, at Denver, Colorado.
BY THE COURT:

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

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