Yepes v. Hininger et al

Filing 15

ORDER ADOPTING the Magistrate Judge's 10 Report and Recommendation. Plaintiff's Objections are overruled. Plaintiff's claims against Defendants Johns, Cross, and Willis are hereby dismissed for failure to state a claim upon which relief may be granted. The Clerk of Court is directed to transfer this cause of action to the district of Kansas for the resolution of Plaintiff's claims against Defendants Waun, Johaston, Richardson, Gradam, Hininger, and Baxter. Signed by Chief Judge Lisa G. Wood on 4/6/2015. (csr)

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for the boutbern 1Ditritt of Oeorgia
Vaprroa flhbiion
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JUAN CADAVID YEPES,
Plaintiff,
VS.

DAMON T. HININGER; JOHN BAXTER;
JEREMY WAUN; ISSAC JOHASTON;
SHELDAN RICHARDSON; MINDY
GRADAM; T. JOHNS; ROBYN CROSS;
and S. WILLIS,
Defendants.

CIVIL ACTION NO.:CV514-085

ORDER
Presently before the Court are Plaintiff's Objections to
the Magistrate Judge's Order and Report and Recommendation dated
January 27, 2015. Dkt. No. 12. The Magistrate Judge ordered
the denial of Plaintiff's Motion for Leave to Proceed in Forma
Pauperis, dkt. no. 2, and recommended that Plaintiff's claims
against certain Defendants be dismissed and that the others be
transferred to the District of Kansas for disposition. Dkt. No.
9, p. 5; Dkt. No. 10, p. 5. After careful review, the
undersigned OVERRULES Plaintiff's Objections and concurs with
the Magistrate Judge's findings and recommendations. The
Magistrate Judge's Order on Plaintiff's Motion for Leave to

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Proceed in Forma Pauperis remains the Order of the Court, and
his Report and Recommendation is hereby ADOPTED as the Opinion
of the Court. Dkt. Nos. 9-10.
BACKGROUND

On October 23, 2014, Plaintiff, an inmate, filed this
action contesting certain conditions of his confinement,
pursuant to 28 U.S.C. § 1331 (2014) and Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)
Dkt. No. 1, p. 1.' Specifically, Plaintiff asserts that he
received inadequate medical care, in violation of his
constitutional rights, while housed at D. Ray James Correctional
Facility in Folkston, Georgia, and, previously, at Leavenworth
Detention Center in Leavenworth, Kansas. Id. at pp. 1, 3, 6, 89. Plaintiff names several Defendants. See id. at pp. 1-2. He
brings suit against Leavenworth Detention Center supervisors and
employees Jeremy Waun, Issac Johaston, Sheldan Richardson, and
Mindy Gradam. Id. at p. 1. He has also asserts claims against
Damon Hininger and John Baxter, two employees of Corrections
Corporation of America, an entity that owns and operates
Leavenworth Detention Center. Id. at pp. 1, 8. As to D. Ray
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The Magistrate Judge correctly determined that, despite Plaintiff's use of
a form complaint for actions under 42 U.S.C. § 1983 (2014), Plaintiff appears
to be proceeding under 28 U.S.C. § 1331 and Bivens. Dkt. No. 10, p. 1 n.l
("[B]ecause Plaintiff alleges civil rights violations by employees of private
entities under contract with the federal government . . . Bivens provides the
basis on which Plaintiff could obtain relief." (citing Bivens, 403 U.S. at
390-98)) . Plaintiff does not object to this characterization of his cause of
action. See Dkt. No. 12, p. 2 (arguing, in his Objections, that he can
"sustain a Bivens claim")
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James Correctional Facility, Plaintiff sues employees T. Johns,
Robyn Cross, and S. Willis. Id. at pp. 1-2.
Along with his Complaint, Plaintiff also filed a Motion for
Leave to Proceed in Forma Pauperis. Dkt. No. 2; see also Dkt.
No. 8, Ex. B. In that Motion, Plaintiff represented that he
lacked sufficient funds to pay this Court's filing fees at that
time and, therefore, requested permission to proceed without the
prepayment of those fees. Dkt. No. 2, pp. 1-2; see also Dkt.
No. 8, Ex. B, pp. 1-2.
In his Order and Report and Recommendation dated January
27, 2015, the Magistrate Judge recommended that the Court
dismiss Plaintiff's claims against the employees of D. Ray James
Correctional Facility—Defendants Johns, Cross, and Willis—for
failure to state a claim upon which relief may be granted. Dkt.
No. 10, p. 5. The Magistrate Judge explained that Plaintiff
cannot sustain a Bivens claim against these Defendants, because
D. Ray James Correctional Facility is privately operated and
state law provides an adequate remedy under these circumstances.
Id. at pp. 3-4 (citing Minneci v. Pollard, 132 S. Ct. 617, 620
(2012), and Alba v. Montford, 517 F.3d 1249, 1255-56 (11th Cir.

In addition, the Magistrate Judge recommended that
Plaintiff's claims against the officials of Leavenworth
Detention Center and Corrections Corporation of America—

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Defendants Waun, Johaston, Richardson, Gradam, Hininger, and
Baxter—be transferred to the District of Kansas. Id. at p. S.
The Magistrate Judge cited a lack of personal jurisdiction and
improper venue, reasoning that "these Defendants reside outside
of Georgia and that Plaintiff's allegations against these
Defendants relate only to events that allegedly occurred during
his incarceration in Leavenworth, Kansas." Id. at pp. 4-5.
Finally, the Magistrate Judge determined that Plaintiff could
not proceed in forma pauperis. Id. at p. 5.
On February 19, 2015, Plaintiff filed Objections to the
Magistrate Judge's Order and Report and Recommendation. Dkt.
No. 12. In his Objections, Plaintiff states that the Order and
Report and Recommendation violate federal law, because the
Magistrate Judge never received Plaintiff's consent and "is not
authorized to enter a final order." Id. at pp. 2-3 (citing 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73)
Plaintiff further objects to the Magistrate Judge's conclusion
as to the D. Ray James Correctional Facility employees;
Plaintiff argues that his allegations of deliberate indifference
to his medical needs, in violation of his Eighth Amendment
rights, are sufficient to sustain Bivens claims against these
Defendants. Id. Plaintiff also states that he opposes the
Magistrate Judge's recommendation to transfer his remaining
claims to the District of Kansas. Id. at p. 2.
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DISCUSSION

The Magistrate Judge correctly stated the law applicable to
Plaintiff's claims and properly applied the law to the
allegations of Plaintiff's Complaint. The Court need not
restate that analysis at length in this Order. However, the
Court does specifically address the Plaintiff's Objections.
I. Plaintiff's Objections to the Magistrate Judge's
Authority

Plaintiff cites 28 U.S.C. § 636 ("Section 636") and the
Federal Rules of Civil Procedure for the proposition that the
Magistrate Judge acted outside the scope of his authority in
filing the Order and Report and Recommendation without
Plaintiff's consent. Dkt. No. 12, pp. 2-3.
Section 636 sets forth the jurisdiction and powers of a
United States magistrate judge, and the Federal Rules of Civil
Procedure are consistent with that mandate. See 28 U.S.C. §
636; Fed. R. Civ. P. 72-73. Under Section 636(b) (1) (A), a
magistrate judge may "hear and determine any pretrial matter
pending before the court," subject to certain enumerated
exceptions. 28 U.S.C. § 636(b) (1) (A); see also Fed. R. Civ. P.
72(a) (referring to such pretrial matters as those that are "not
dispositive of a party's claim or defense"). When a magistrate
judge rules on a nondispositive pretrial matter, a district
judge may reconsider the matter only "where it has been shown

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that the magistrate judge's order is clearly erroneous or
contrary to law." 28 U.S.C. § 636(b) (1) (A); see also Fed. R.
Civ. P. 72(a).
In addition, Section 636(b) (1) (B) provides that a
magistrate judge may "submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by a
judge of the court . . . of prisoner petitions challenging
conditions of confinement." 28 U.S.C. § 636(b) (1) (B); see also
Fed. R. Civ. P. 72(b) (1) (noting that a magistrate judge may be
"assigned, without the parties' consent, to hear . . . a
prisoner petition challenging the conditions of confinement" and
to "enter a recommended disposition"). If any party objects to
a magistrate judge's findings and recommendations, a district
judge must "make a de novo determination" and "accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b) (1); see also
Fed. R. Civ. P. 72(b)(3).
Section 636(c), which Plaintiff cites in his Objections,
states that "[u]pon consent of the parties," a magistrate judge
"may conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case," provided
that certain conditions are met. 28 U.S.C. § 636(c) (1); see
also Fed. R. Civ. P. 73 (setting forth the procedure for
consenting to a trial before a magistrate judge)
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Contrary to Plaintiff's contentions, the Magistrate Judge
had authority to enter the Report and Recommendation, which
merely informs the undersigned's disposition of Plaintiff's
Complaint and does not constitute a final order on the matter.
See 28 U.S.C. § 636(b) (1) (B); Fed. R. Civ. P. 72(b) (1).

While

the Magistrate Judge would need the parties' consent before
presiding over a trial or entering a judgment in this case, the
applicable rules place no similar condition on the authority
exercised here. See 28 U.S.C. § 636(b) - (c); Fed. R. Civ. P. 7273.
Section 636 and the Federal Rules of Civil Procedure
unequivocally authorize the Magistrate Judge's filing of the
Order and Report and Recommendation. Indeed, the Magistrate
Judge's Order on Plaintiff's Motion to Proceed in Forma Pauperis
squarely falls within his authority to issue orders on
nondispositive pretrial matters. See 28 U.S.C. § 636(b) (1) (A);
Fed. R. Civ. P. 72(a). Consequently, Plaintiff's Objections on
this front are without merit.
II. Plaintiff's Objections to the Magistrate Judge's Order

Plaintiff's Objections do not clearly state the basis on
which he opposes the Magistrate Judge's Order on his Motion to
Proceed in Forma Pauperis. See Dkt. No. 12. While Plaintiff
mentions the Order numerous times in his Objections, Plaintiff
uses the term interchangeably with "Report and Recommendation."
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See, e.g., id. at p. 2 ("[Plaintiff] object[s] in opposition the
order and Magistrate Judge's and recommendation .
[Plaintiff] object[s] in opposition the order of TRANSFER.")
In these instances, Plaintiff goes on to challenge the
Magistrate Judge's authority or the substance of his
recommendations. See id. Nevertheless, the Court, construing
the Objections favorably to Plaintiff, will proceed under the
assumption that Plaintiff also intends to challenge the
Magistrate Judge's Order denying him in forma pauperis status.
A district judge must consider a party's objections to a
magistrate judge's order on a pretrial matter. See 28 U.S.C. §
636(b) (1) (A); Fed. R. Civ. P. 72(a) . However, the district
judge may modify or set aside that order, and reconsider the
pretrial matter, only "where it has been shown that the
magistrate judge's order is clearly erroneous or contrary to
law." 28 U.S.C. § 636(b) (1) (A); see also Fed. R. Civ. P. 72(a).
Petitions to proceed in forma pauperis are governed by 28
U.S.C. § 1915 ("Section 1915") . In determining whether to grant
a prisoner's petition to proceed in forma pauperis, a court
examines the prisoner's financial means as well as the factual
and legal merit of his claims. See id. § 1915(a), (d); see,
e.g., Spears v. McCotter, 766 F.2d 179, 180-81 (5th Cir. 1985).
Plaintiff sets forth no specific allegations of error as to
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status. Moreover, the Magistrate Judge discussed the provisions
of Section 1915 in detail, and it appears that he was guided by
the relevant considerations under that section in assessing
Plaintiff's Motion. See generally Dkt. No. 10. Because
Plaintiff fails to suggest that the Magistrate Judge's analysis
was clearly erroneous or contrary to law, the undersigned finds
no basis on which to disrupt his Order. See 28 U.S.C. §
636(b) (1) (A); Fed. R. Civ. P. 72(a)
III. Plaintiff's Objections to the Magistrate Judge's Report
and Recommendation

In addition to objecting to the Magistrate Judge's
authority to issue the Report and Recommendation, Plaintiff also
objects to the substance of the Magistrate Judge's conclusions.
First, Plaintiff objects to the Magistrate Judge's
recommendation that his claims against the employees of D. Ray
James Correctional Facility be dismissed. Dkt. No. 12, P. 2.
In support, Plaintiff argues that he can sustain a Bivens action
against these Defendants based on alleged Eighth Amendment
violations. Id. (alleging deliberate indifference to his
medical needs) . Second, Plaintiff states that he opposes the
Magistrate Judge's recommendation to transfer his claims against
the remaining Defendants; however, Plaintiff offers no further
argument on this point. See id.

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As stated above, upon the objection of a party, a district
judge must "make a de novo determination" and "accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636(b) (1); see also
Fed. R. Civ. P. 72(b) (3). Thus, the undersigned must consider,
de novo, the legal sufficiency of Plaintiff's Complaint. See 28
U.S.C. § 1915A. In doing so, the undersigned abides by the
principle that a pro se complaint is entitled to liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), but
nevertheless "must contain sufficient factual matter, accepted
as true, to state a claim for relief that is plausible on its
face," Ashcroft v. Iqbal, 556 U.S. 662, 678 (1937) (citations
omitted) (internal quotation marks omitted)
To state a plausible claim for relief under Bivens, a
plaintiff must allege that (1) a person acting under color of
federal law (2) deprived him of a right secured by the
Constitution or federal law. Bivens, 403 U.S. at 390-97.
However, as the Magistrate Judge explained, the United States
Supreme Court held in Minneci v. Pollard that a federal prisoner
cannot state a claim for damages under Bivens
where, as here, [he] 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

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II
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conduct involving improper medical care at issue
here).
132 S. Ct. 617, 626 (2012) (stating that the prisoner must
pursue the remedy available under state tort law); see also Dkt.
No. 10, pp. 3-4.
In his Complaint, Plaintiff avers that The Geo Group, Inc.
operates D. Ray James Correctional Facility, indicating that
this federal prison is operated by a private corporation, rather
than the federal government. See, e.g., Dkt. No. 1,

pp. 8, 13,

15. Plaintiff further seeks damages from the employees of this
privately operated federal prison, alleging that they provided
insufficient medical care in violation of the Eighth Amendment.
Id. at pp. 8-10. Accepting these facts as true, Plaintiff's
Complaint sets forth the exact circumstances in which Minneci
proscribes a Bivens action and, therefore, fails to state any
plausible Bivens claim against the employees from D. Ray James
Correctional Facility. See Minneci, 132 S. Ct. at 626.
As to the Defendants from Leavenworth Detention Center and
Corrections Corporation of America, this Court need not reach
the issue of whether Plaintiff sufficiently states claims under
Bivens. "A plaintiff seeking the exercise of personal
jurisdiction over a nonresident defendant bears the initial
burden of alleging in the complaint sufficient facts to make out
a prima facie case of jurisdiction." Diamond Crystal Brands,

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Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Ci-r.
2010) (quoting United Techs. Corps. v. Mazer, 556 F.3d 1260,
1274 (11th Cir. 2009)); see also id. at 1257-60 (requiring facts
showing that jurisdiction comports with both the Georgia longarm statute and the Fourteenth Amendment Due Process Clause)
Plaintiff alleges that these Defendants are located in
Leavenworth, Kansas, and Nashville, Tennessee, and that their
allegedly wrongful acts occurred only in Leavenworth, Kansas.
Dkt. No. 1, pp. 6-7, 8. On these facts, Plaintiff has failed to
demonstrate any basis on which this Court could exercise
personal jurisdiction over these Defendants. See Diamond
Crystal Brands, Inc., 593 F.3d at 1257-60. Furthermore, it
appears that this Court is not the proper venue for Plaintiff's
claims arising out of the events at Leavenworth Detention
Center. See 28 U.S.C. § 1391(b). Because it appears that
Plaintiff could have filed these claims in the District of
Kansas, it is in the interest of justice to transfer these
claims to that judicial district for disposition. See 28 U.S.C.
§ 1406(a) (stating that where venue is improper, a court must
"dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been
brought," even if the transferring court lacks personal
jurisdiction over the defendant).

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CONCLUSION

For the reasons set forth above, Plaintiff's Objections,
dkt. no. 12, are OVERRULED.

The Magistrate Judge's Order

denying Plaintiff's Motion to Proceed in Forma Pauperis remains
the Order of the Court, and his Report and Recommendation is
ADOPTED as the Opinion of the Court. Dkt. Nos. 9-10.

Accordingly, Plaintiff's claims against Defendants Johns, Cross,
and Willis are hereby DISMISSED for failure to state a claim
upon which relief may be granted. The Clerk of Court is
directed to TRANSFER this cause of action to the District of
Kansas for the resolution of Plaintiff's claims against
Defendants Waun, Johaston, Richardson, Gradam, Hininger, and
Baxter.
SO ORDERED, this

((9

day of

LIA GO BEY WOOD, CHIEF JUDGE
TJNI ED STATES DISTRICT COURT
SOU RN DISTRICT OF GEORGIA

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, 2015.