Crosby v. Martin et al

Filing 9

ORDER ENTERED: The complaint is dismissed as stating no claim for relief. Signed by Senior District Judge Sam A. Crow on 6/13/2012. (Mailed to pro se party Gregory D. Crosby by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

GREGORY D. CROSBY,
Plaintiff,
v.

CASE NO. 09-3179-SAC

LT. MARTIN, et al.,
Defendants.

O R D E R
Plaintiff initiated this pro se Bivens1 action seeking damages
on

allegations

of

mistreatment

during

his

confinement

in

a

Leavenworth, Kansas, correctional facility operated by Corrections
Corporation of America (CCA) while in federal custody.

The court

examined plaintiff’s allegations and directed plaintiff to show
cause why the complaint should not be summarily dismissed as stating
no claim for relief.

Having reviewed plaintiff’s response, the

court dismisses the complaint.
Plaintiff claimed he was subjected to a chemical spray for no
reason after being moved to a strip cell, and thereafter denied an
immediate shower, medical attention, or meals other than finger
food.

On these allegations plaintiff seeks damages from five CCA

defendants in their individual and official capacities for their
alleged

violation

of

plaintiff’s

Eighth

Amendment

protections

against being subjected to excessive force and the denial of medical
1

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

care.
The

court

found

no

claim

for

relief

was

stated

against

defendants in their individual capacity because the Supreme Court
has not extended Bivens to reach the conduct of an employee of a
private corporation if alternative state causes of actions for
damages, such as state tort claim for negligence, are available to
the plaintiff to address the alleged injury.

See Correctional

Services Corp. v. Malesko, 534 U.S. 61 (2001); Peoples v. CCA
Detention Centers, 422 F.3d 1090, 1101 (10th Cir.2005); Lindsey v.
Bowlin, 557 F.Supp.2d 1225 (D.Kan.2008).
In response, plaintiff insists defendants’ actions constituted
actionable

Eighth

Amendment

claims

rather

than

negligence.

Plaintiff, however, does not address why the complaint should not be
summarily dismissed because the Supreme Court has not extended
Bivens to encompass a cause of action against employees of private
correctional facilities, a holding the Court recently made clear.
See Minneci v. Pollard, 132 S.Ct. 617, 626 (2012)(prisoner could not
assert an Eighth Amendment Bivens claim for damages against private
prison employees).
Additionally,

the

court

finds

no

merit

to

plaintiff’s

suggestion that the complaint should be allowed to proceed under 42
U.S.C. § 1983, because plaintiff alleges no violation of his rights
“by a person acting under color of state law.”
487 U.S. 42 (1988).

See West v. Atkins,

Nor is the court authorized to transfer this

action to the state courts as plaintiff further suggests.
Accordingly,

the

court

concludes

the

complaint

should

dismissed as stating no claim upon which relief can be granted.
2

be

IT IS THEREFORE ORDERED that the complaint is dismissed as
stating no claim for relief.
IT IS SO ORDERED.
DATED:

This 12th day of June 2012 at Topeka, Kansas.

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

3