Burke v. Corrections Corporation of America et al

Filing 19

ORDER ENTERED: The amended and supplemented complaint is dismissed without prejudice as moot. Signed by Senior District Judge Sam A. Crow on 1/17/2012. (Mailed to pro se party Eric Roland Burke by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ERIC ROLAND BURKE,
Plaintiff,
CIVIL ACTION
No. 09-3068-SAC

vs.
CORRECTIONS CORPORATION OF AMERICA, et al.,
Defendants.

ORDER
Plaintiff proceeds pro se and in forma pauperis on a civil
complaint filed while he was confined as a federal detainee in a
facility operated by the Correction Corporation of America (CCA) in
Leavenworth,
complaint

are

Kansas
CCA,

(CCA-LVN).
CCA-LVN

The

Warden

defendants

Shelton

named

Richardson,

in

the

CCA-LVN

Assistant Warden Robert Mundt, CCA-LVN Chief of Unit Management
Kenneth Daugherty, CCA-LVN Chief of Security Bruce Roberts, and CCALVN Unit Manager Roger Moore.
Plaintiff complains of his reassignment from general population
to placement in the pod for housing prisoners pursuant to Prison
Rape Elimination Act (PREA), 42 U.S.C. § 15601, et seq., or for
protective custody (PC).

Plaintiff claims his placement in PREA/PC

is unfounded and unlawfully restricts privileges that were available
to him in general population, and contends his assignment to PREA/PC
impairs his personal safety because he is identified and labeled by
other prisoners as a sexual predator.

Plaintiff further challenges

the existence of the death threats cited by CCA-LVN staff for
classifying plaintiff as needing protective custody, and contends

CCA staff is misinterpreting and misapplying PREA.
The court construed this action as an attempt to seek declaratory
and injunctive relief1 under Bivens2 and 42 U.S.C. § 1983, and
directed plaintiff to show cause why the amended and supplemented
complaint should not be summarily dismissed without prejudice as
moot given plaintiff’s conviction and transfer to a Bureau of
Prisons facility.
And

even

if

not

moot,

the

court

noted

the

amended

and

supplemented complaint was subject to summary dismissal because
Malesko3 and Peoples4 barred plaintiff’s attempt to seek relief under
Bivens, because no defendant acted under color of state law for
purposes of stating a cognizable claim under 42 U.S.C. § 1983,
because no claim of constitutional significance is generally stated
by a prisoner’s disagreement with classification decisions, and
because

plaintiff

has

no

personal

cause

of

action

based

on

defendants’ alleged violations of PREA.
Having reviewed plaintiff’s response, the court concludes for
the reasons stated herein and in the show cause order entered March
10, 2010, that the amended and supplemented complaint should be
dismissed as moot.

Plaintiff’s appeal from his federal conviction

1

See plaintiff’s first amendment of the complaint pursuant to
Fed.R.Civ.P. 15(a)(1) (Doc. 5).
2

Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
3

Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001).

4

Peoples v. CCA Detention Centers, 422 F.3d 1090, 1108 (10th
Cir.2005). See also Minneci v. Pollard, __ S.Ct. __, 2012 WL 43511
(January 10, 2012)(refusing to extend Bivens to remedy a federal
prisoner’s claim for damages from privately employed personnel
working at a privately operated detention facility).
2

is now final, and plaintiff’s broad reference to the possibility of
returning to this or another CCA facility is insufficient to avoid
dismissal of this action.

See Abdulhaseeb v. Calbone, 600 F.3d

1301, 1311 (10th Cir.2010)(prisoner’s transfer from one prison to
another moots claims for declaratory or injunctive relief against
officials at the prior prison).
IT IS THEREFORE ORDERED that the amended and supplemented
complaint is dismissed without prejudice as moot.
IT IS SO ORDERED.
DATED:

This 17th day of January 2012 at Topeka, Kansas.

s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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