ZACARIAS-SALDANA v. CORE CIVIC

Filing 7

ORDER granting 6 Motion for Leave to Proceed in forma pauperis. (); dismissing 2 Motion for Protective Order Ordered by US DISTRICT JUDGE CLAY D LAND on 09/08/2017 (glg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION

WALTER ANTONIO
ZACARIAS-SALDANA,

:
:
:
Plaintiff.
:
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VS.
:
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CORE CIVIC,
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Defendant.
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____________________________________:

NO. 4:17-cv-00106-CDL-MSH

ORDER
Plaintiff Walter Antonio Zacarias-Saldana, an immigration detainee confined at
Stewart Detention Center, has filed a 42 U.S.C. § 1983 civil rights action (ECF No. 1), a
motion to proceed in forma pauperis (ECF No. 6), and a motion for protective order (ECF
No. 2). Upon review of Plaintiff’s motion to proceed in forma pauperis, the Court finds
that Plaintiff is unable to prepay the Court’s filing fee. Accordingly, Plaintiff’s motion to
proceed IFP (ECF No. 6) is GRANTED. However, Plaintiff has failed to state a claim
and his complaint is hereby DISMISSED without prejudice.
I.

Standard for Preliminary Review of Plaintiff’s Complaint
Because Plaintiff proceeds in forma pauperis in this action, his complaint is subject

to screening under 28 U.S.C. § 1915(e) which requires a district court to dismiss any
complaint that is frivolous, malicious, or fails to state a claim upon which relief may be

granted.1 When conducting a preliminary review, the district court must accept all factual
allegations in the complaint as true and make all reasonable inferences in the plaintiff’s
favor.

See Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004) (stating that

allegations in the complaint must be viewed as true). Pro se pleadings are also “held to a
less stringent standard than pleadings drafted by attorneys,” and a pro se compliant is thus
“liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998) (per curiam). The district court, however, cannot allow a plaintiff to proceed with
frivolous, conclusory, or speculative claims. As part of the preliminary screening, the
court shall dismiss a complaint, or any part thereof, prior to service, if it is apparent that the
plaintiff’s claims are frivolous or if his allegations fail to state a claim upon which relief
may be granted – i.e., that the plaintiff is not entitled to relief based on the facts alleged.
See § 1915(e).
To state a viable claim, the complaint must include enough factual matter to “give
the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). There must also be “enough fact to raise a
reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556.
The claims cannot be speculative or based solely on beliefs or suspicions; each claim must
be supported by allegations of relevant and discoverable fact. Id. Thus, neither legal
conclusions nor a recitation of legally relevant terms, standing alone, is sufficient to
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The Eleventh Circuit determined that “28 U.S.C. § 1915(e), which governs proceedings in forma pauperis generally
. . . permits district courts to dismiss a case ‘at any time’ if the complaint ‘fails to state a claim on which relief may be
granted.’” Robinson v. United States, 484 F. App’x 421, 422 n.2 (11th Cir. 2012) (per curiam); see also Troville v.
Venz, 303 F.3d 1256 (11th Cir. 2002).

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survive preliminary review. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action will not do.’”) (quoting Twombly, 550 U.S. at 555). Claims without “an arguable
basis either in law or in fact” will be dismissed as frivolous. Neitzke v. Williams, 490 U.S.
319, 325 (1989); accord Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (noting that
claims are frivolous if they are “clearly baseless” or are based on an “indisputably
meritless” legal theory).
II.

Discussion
Plaintiff alleges that Officer Gluster, a Core Civic officer working at Stewart

Detention Center, slammed a door on Plaintiff’s left hand and injured it. Pl.’s Aff., ECF
No. 1 at 7; Social Worker Report, Dec. 16, 2016, ECF No. 1-1 at 6. According to
Plaintiff’s medical records that were attached to the Complaint, Plaintiff suffered “slight
swelling” and tenderness and was prescribed ibuprofen, an “ace wrap,” and “ice several
times daily.” Medical Report Dec. 15, 2016, ECF No. 1-1 at 2; Medical Report Dec. 16,
2016, ECF No. 1-1 at 3. Plaintiff also named as Defendants “Chief Blackmoon” and
“U/M Lane,” but he did not allege any facts regarding their involvement in the incident.
Although Plaintiff submitted his claim on the Court’s standard questionnaire for
prisoners proceeding pro se under 42 U.S.C. § 1983, Plaintiff is a federal detainee seeking
relief for alleged constitutional violations perpetrated by individuals and entities acting
under color of federal law. Therefore, his complaint will be construed as an action
brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (per
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curiam) (“A [Section] 1983 suit challenges the constitutionality of the action of state
officials; a Bivens suit challenges the constitutionality of the actions of federal officials.”).
In Bivens, the United States Supreme Court established the availability of “a cause
of action against federal officials in their individual capacities for violations of federal
constitutional rights.” Nalls v. Coleman Low Fed. Inst., 307 F. App’x 296, 298 (11th Cir.
2009) (per curiam). “The effect of Bivens was, in essence, to create a remedy against
federal officers, acting under color of federal law, that was analogous to the section 1983
action against state officials.” Abella, 63 F.3d at 1065 (quoting Dean v. Gladney, 621
F.2d 1331, 1336 (5th Cir.1980)). The purpose of Bivens is to deter individual federal
officers from committing constitutional violations. Corr. Servs. Corp. v. Malesko, 534
U.S. 61, 71 (2001). But the Supreme Court “has ‘consistently refused to extend Bivens to
any new context or new category of defendants.’” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857
(2017) (quoting Malesko, 534 U.S. at 68) (listing cases where the Supreme Court declined
to expand the Bivens remedy). Because Bivens is concerned with deterring individual
federal officers, it does not apply to federal officers in their official capacities, it does not
apply to federal agencies, and it does not apply to corporate entities acting under color of
federal law. Malesko, 534 U.S. at 67, 69, 73-74.
Plaintiff states that he wishes to hold liable Core Civic, the private corporate entity
that operates Stewart Detention Center, “through their officer.” Compl. 1. To the extent
that this means Plaintiff wishes to sue Core Civic or the remaining Defendants in their
official capacities, Bivens is not applicable and Plaintiff has failed to state a claim. See

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Malesko, 534 U.S. at 73-74 (declining to extend Bivens to Eighth Amendment Claims
against a private prison corporation).
Plaintiff also does not have a viable Bivens claim to the extent that his complaint can
be liberally construed as bringing suit against Defendants Gluster, Blackmoon, and Lane in
their individual capacities. These Defendants are private individuals, not federal officers,
and Bivens does not create a cause of action against “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. “ Minneci v. Pollard, 565 U.S. 118, 130
(2012). Here, Plaintiff complains that Officer Gluster slammed a door on his hand and
injured him. This conduct is of a kind that typically falls within the scope of traditional
state tort law; Georgia law provides causes of action for battery and negligence.
Accordingly, Plaintiff cannot proceed against Defendants Gluster, Blackmoon, and Lane
in their individual capacities under Bivens. See, e.g,. Crosby v. Martin, 502 F. App’x 733,
735 (10th Cir. 2012) (affirming district court’s dismissal under 28 U.S.C. § 1915(e) of
Eighth Amendment Bivens claim against private prison company employees); Ruiz v. Fed.
Bureau of Prisons, 481 F. App’x 738, 740-41 (3d Cir. 2012) (per curiam) (finding no
Bivens cause of action for Eighth Amendment claim against private prison employees).
Instead, he must seek a remedy under state tort law. See Minneci, 565 U.S. at 131.

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III.

Conclusion

As discussed above, Plaintiff failed to state a claim upon which relief may be
granted and this action is DISMISSED without prejudice. Plaintiff’s motion for
protective order is DENIED as moot.
SO ORDERED, this 8th day of September, 2017.
s/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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