Bosfield v. Ard et al

Filing 17

ORDER ADOPTING 12 Report and Recommendations of the Magistrate Judge. The Plaintiff's Objections are overruled. The Plaintiff's complaint is dismissed. The Clerk is authorized to enter the appropriate Judgment of Dismissal. Signed by Chief Judge Lisa G. Wood on 10/7/2013. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

PATRICK BOSFIELD,
Plaintiff,
:

VS.

CIVIL ACTION NO.: CV513-058

ANNA ARD; T. JOHNS; and
GEORGE ZOLEY,
Defendants.
ORDER

After an independent and de novo review of the entire record, the undersigned
concurs with the Magistrate Judge's Report and Recommendation, to which Objections
have been filed. In his Objections, Plaintiff reiterates his position that his "right to
counsel was violated by the administration of D. Ray James C.F. and its employees."
(Doc. No. 15, p. 1). Plaintiff alleges that his Fourteenth Amendment right of access to
the courts was violated and that he is "entitled to relief in this case as the administration
of this prison violated my right to have a face to face contact visit with my attorney." (Id.
at p. 2). Plaintiff contends that "there is a clause that allows for the administration of a
private prison and its employees to act on the behalf of the Bureau of Prisons," thus
making the named Defendants subject to suit in federal court. Plaintiff names as
Defendants: George Zolo, Director of The GEO Group, Inc., the company that owns
and operates D. Ray James; Mr. T. Johns, Warden at D. Ray James; and Ann Ard, a

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case manager at D. Ray James. Plaintiff asserts that he has unsuccessfully attempted
to file a claim in state court.
Plaintiffs objections do not overcome the deficiencies inherent in his claims
against Defendants. Plaintiff presumably attempts to bring his claims pursuant to 28
U.S.C. § 1331 and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), as he alleges that federal actors deprived him of his
constitutional rights.
(11th Cir. 2008).

Bivens, 403 U.S. 388; Hindman v. Healy, 278 F. App'x 893
As stated by the Magistrate Judge in his Report and

Recommendation, the Supreme Court has held that a federal prisoner cannot bring a
Bivens claim against employees of a privately operated federal prison when state law
authorizes adequate alternative damages actions. Minneci v. Pollard, - U.S. -, 132
S.Ct. 617 (2012). The Minneci Court stated that "in the case of a privately employed
defendant, state tort law provides an 'alternative, existing process' capable of
protecting the constitutional interests at stake." Id. at -, 132 S. Ct. at 623 (quoting
Wilkie v. Robbins, 551 U.S. 537, 559 (2007) (declining to extend Bivens liability to allow
a landowner to pursue a private action against employees of the Bureau of Land
Development).
D. Ray James is a private entity that operates under a contract with the Bureau
of Prisons. The employees of D. Ray James are employees of The GEO Group, Inc., a
private entity. Like the plaintiffs in Minneci and Alba, so long as Plaintiff has adequate
state law remedies available to him, he may not maintain a cause of action, pursuant
'The Eleventh Circuit foreclosed the viability of such a claim in 2008. See Alba v. Montford, 517 F.3d
1249 (11th Cir. 2008) (declining to extend Bivens to cover a claim for deliberate indifference to medical
needs against Corrections Corporation of America, a private facility under contract with the Bureau of
Prisons, and its employees).

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to Bivens, against The GEO Group, Inc., or its employees because The GEO Group,
Inc., and its employees are private parties. Plaintiff may pursue damages claims
against these Defendants in state court. 2 Consequently, Plaintiff cannot bring
a Bivens action against any of the named Defendants.
The undersigned notes Plaintiffs contention that the "Bureau of Prisons is a
Federal agency and is governed by the courts of the Federal Government," thereby
making the Bureau of Prisons and/or its employees proper defendants to this suit.
(Doc. No. 15, p. 3). Plaintiff has not named the Bureau of Prisons as a defendant, but
doing so would not advance Plaintiff's claim. The Bureau of Prisons, as an entity, is not
a proper defendant under Bivens. Proper defendants in a Bivens claim are the federal
officers who allegedly violated the plaintiff's constitutional rights, not the federal agency
which employs the officers. FDIC v. Meyer, 510 U.S. 471,485-86 (1994).
Even if Plaintiff named a proper defendant under Bivens, Plaintiff has not
demonstrated that his constitutional rights have been violated through the application of
D. Ray James' visitation policy. As the Magistrate Judge stated, inmates have no
absolute right to visitation; rather, inmate visitation privileges are "subject to the prison
authorities' discretion provided that the visitation policies meet legitimate penological
objectives." Caraballo-Sadoval v. Honstead, 35 F.3d 521, 525 (11th Cir. 1994). While
Plaintiff alleges that the cancelling of a scheduled visit from his Bahamian attorney
clearly violated his Sixth and Fourteenth Amendment rights, Plaintiff has not shown that
the administration of D. Ray James' stated policies are not related to legitimate

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The Court offers no opinion as to the merits of such claims. Plaintiff is advised that the rules and
procedures for filing a claim in state court may differ from those in this Court.

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Instead,
penological objectives Instead, Plaintiff simply "has expressed his dissatisfaction with
the administration of the visitation policy at D. Ray James." (Doc. No. 12, p. 3).
Based on the foregoing, Plaintiff's Objections are overruled.

The Magistrate

Judge's Report and Recommendation, as supplemented herein, is adopted as the
opinion of the Court. Plaintiff's complaint is DISMISSED. The Clerk is authorized to
enter the appropriate Judgment of Dismissal.
SO ORDERED, this

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2013.

day of

LISA PODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
O)JTHERN DISTRICT OF GEORGIA

Plaintiff is advised that the right to counsel guaranteed by the Sixth Amendment attaches in a criminal
prosecution after the initiation of adversarial judicial proceedings. Kirby v. Illinois, 406 U.S. 682, 689-90,
(1972). Plaintiffs Complaint concerns his ability to meet with a Bahamian attorney to discuss an
unspecified matter pending in the Bahamas, not a criminal proceeding pending against Plaintiff in the
United States.
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