Martinez v. Inch

Filing 4

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice Plaintiff's 1 Complaint, DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to appeal in for ma pauperis. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 1/2/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 12/19/2017. (ca)

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

MARCO CONTRERAS MARTINEZ,
Plaintiff,

CIVIL ACTION NO.: 5:17-cv-152

v.
MARK S. INCH,
Defendant.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, currently housed at the Federal Correctional Institution-Williamsburg (“FCI
Williamsburg”) in Salters, South Carolina, filed this cause of action pursuant to 42 U.S.C. § 1983
(recharacterized and analyzed as a Bivens claim), contesting certain conditions of his federal
confinement. (Doc. 1.) For the reasons that follow, the Court DENIES Plaintiff’s Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.) Furthermore, I RECOMMEND the Court
DISMISS WITHOUT PREJUDICE Plaintiff’s Complaint, DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave to
appeal in forma pauperis. 1
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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotations marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This Report and Recommendation constitutes fair notice to Plaintiff that his suit is
barred and due to be dismissed. As indicated below, Plaintiff will have the opportunity to present his
objections to this finding, and the District Court will review de novo properly submitted objections. See
28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK,

PLAINTIFF’S ALLEGATIONS
Plaintiff filed this cause of action on November 9, 2017, along with a Motion for Leave
to Proceed in Forma Pauperis. (Docs. 1, 2.) In his Complaint, Plaintiff alleges that Defendant,
director of D. Ray James Federal Correctional Institute, failed to protect him while he was
housed there in November 2015. (Doc. 1, p. 2–4.) Plaintiff states that Defendant housed him
with an inmate, known to be mentally disturbed, who attacked Plaintiff on November 9, 2015,
causing him to completely lose his left eye. (Id.) Though he was taken to the hospital following
the attack, Plaintiff alleges that Defendant denied him proper follow-up medical care. (Id.)
Plaintiff alleges that he was not permitted to see an ocularist and did not receive a prosthetic eye
until June 2017, after he was transferred to FCI Williamsburg. (Id.) As relief, Plaintiff requests
monetary damages for his physical and emotional harm. (Id.)
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. (Doc. 2). Under 28 U.S.C. §
1915(a)(1), the Court may authorize the filing of a civil lawsuit without the prepayment of fees if
the plaintiff submits an affidavit that includes a statement of all of his assets and shows an
inability to pay the filing fee and also includes a statement of the nature of the action which
shows that he is entitled to redress. Even if the plaintiff proves indigence, the Court must
dismiss the action if it is frivolous or malicious, or fails to state a claim upon which relief may be
granted. 28 U.S.C. §§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the
Court must review a complaint in which a prisoner seeks redress from a governmental entity.
Upon such screening, the Court must dismiss a complaint, or any portion thereof, that is

2012 WL 5930633, at *1 (N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and
recommendation constituted adequate notice and petitioner’s opportunity to file objections provided a
reasonable opportunity to respond).
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frivolous or malicious, or fails to state a claim upon which relief may be granted or which seeks
monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .
a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).

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In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys . . . .”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse mistakes
regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never
suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse
mistakes by those who proceed without counsel.”).
DISCUSSION
I.

Dismissal for Plaintiff’s Failure to State a Claim
Plaintiff, proceeding pro se, filed this Complaint pursuant to Section 1983. (Doc. 1, p. 3.)

However, Plaintiff’s claims are against officials at a federal facility, which are not cognizable
under Section 1983 and must be asserted in a Bivens action. Abella v. Rubino, 63 F.3d 1063,
1065 (11th Cir. 1995). Even so, “[f]ederal courts sometimes will ignore the legal label that a pro
se litigant attaches to a motion and recharacterize the motion in order to place it within a
different legal category.” Retic v. United States, 215 F. App’x 962, 964 (11th Cir. 2007)
(quoting Castro v. United States, 540 U.S. 375, 381 (2003)). This Court may “recharacterize a
pro se litigant’s motion to create a better correspondence between the substance of the motion
and its underlying legal basis.” Rameses v. United States Dist. Court, 523 F. App’x 691, 694
(11th Cir. 2013). In this case, however, it would be futile to recharacterize Plaintiff’s claims
under Section 1983 as a Bivens action.

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The United States Supreme Court has held that a federal prisoner cannot bring a Bivens
claim against employees of a privately operated federal prison seeking damages when state tort
law authorizes adequate alternative remedies. 2 Minneci v. Pollard, 565 U.S. 118, 131, 132 S. Ct.
617, 626 (2012). The Minneci Court concluded an inmate in a privately operated federal prison
could not bring a Bivens claim against private employees for conduct that violates the Eighth
Amendment because that conduct could be remedied through a negligence or malpractice state
tort claim. Id. The 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 126 (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)); see also Goia v. CitiFinancial Auto, 499 F. App’x 930, 936 (11th Cir.
2012) (“[T]he Supreme Court has declined to expand Bivens to encompass a suit against private
corporations acting under color of federal law.”) (citing Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 71, 74 (2001)). Thus, employees of privately operated federal prisons are exempt from
damages liability under Bivens where state law provides a “roughly similar” remedy. Minneci,
565 U.S. at 130.
D. Ray James Correctional Facility 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 to Bivens against
Defendant because The GEO Group, Inc. and its employees are private parties. Thus, Plaintiff’s
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It should be noted that, in the Eleventh Circuit, such a claim has been foreclosed since 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). Under Alba, a Bivens action against employees
of private prisons fails to state a claim. Id. at 1256.
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cause of action against Defendant, if any, lies in state court under general principles of tort law,
which provide “roughly similar” remedies in this case. 3 See Scotton v. Johns, No. 5:16-cv-40,
2017 WL 125039, at *5 (S.D. Ga. Jan. 12, 2017) (discussing alternative remedies to Bivens
available under Georgia tort law, such as a negligence or malpractice action), report and
recommendation adopted, 2017 WL 1015332 (S.D. Ga. Mar. 15, 2017). Consequently, Plaintiff
cannot bring a Bivens action against Defendant. As such, the Court should DISMISS Plaintiff’s
Complaint for failure to state a claim.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Plaintiff leave to appeal in forma pauperis. 4

Though

Plaintiff has, of course, not yet filed a notice of appeal, it would be appropriate to address these
issues in the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that
appeal is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.

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The Court offers no opinion as to the efficacy of such a pursuit.

4

A certificate of appealability is not required in this civil rights action.
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Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Based on the above analysis of Plaintiff’s action, there are no non-frivolous issues to
raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY
Plaintiff in forma pauperis status on appeal.
CONCLUSION
For the reasons set forth above, the Court DENIES Plaintiff’s Motion for Leave to
Proceed in Forma Pauperis before this Court. (Doc. 2.) Additionally, I RECOMMEND the
Court DISMISS WITHOUT PREJUDICE Plaintiff’s Complaint, DIRECT the Clerk of Court
to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Plaintiff leave
to appeal in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not

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meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Plaintiff.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of December,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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