Azim Razzaq v. Corrections Corporation of America et al

Filing 35

MEMORANDUM AND ORDER denying as moot 19 plaintiff's Motion to Appoint Counsel ; granting 26 defendants' Motion to Dismiss; granting 26 defendants' Motion to Dismiss for Failure to State a Claim; and denying as moot 28 plaintiff's Motion to Appoint Counsel. Signed by District Judge J. Thomas Marten on 3/20/2012. Mailed to pro se party Karim M. Azim Razzaq by regular mail. (mss)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KARIM M. AZIM RAZZAQ,
Plaintiff,

vs.

Case No. 10-3123-JTM

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

MEMORANDUM AND ORDER

Corrections Corporation of America (CCA), and four of its employees – Volle, Castellon,
Limeweaver, and Garcia – filed a Motion to Dismiss (Dkt. No. 26) arguing lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1) and failure to state a claim under 12(b)(6).1 A motion to
dismiss under 12(b)(6) is untimely when filed after an answer. See FED. R. CIV. P. 12(b). An
untimely Rule 12(b)(6) motion may be treated, however, as a Rule 12(c) motion for judgment on the
pleadings, and the Court will treat it as such. See Nicks v. Brewer, No. 10-1220, 2010 WL 4868172,
at *2 (D. Kan. Nov. 23, 2010). For the following reasons, the court grants the motion to dismiss.
Razzaq’s two motions to appoint counsel (Dkt. Nos. 19 & 28) are denied.

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The pleadings, motions, and briefs have not established the full names of the individual defendants.
Limeweaver is called Linaweaver by the Defendants. The Plaintiff refers to “Lieutenant D. Volle,” “Officer
Castellon,” “Sergeant B. Limeweaver,” and “Officer E. Garcia.”

I. Background
Razzaq was an inmate at the Leavenworth Detention Center, a federal penitentiary operated
by the CCA. Razzaq alleges that on the morning of March 16, 2010, Volle informed Razzaq that he
would be receiving a cell mate. Razzaq replied that he was on “single cell status” and did not want
a cell mate, and especially not the cell mate in question, who Razzaq said was a big troublemaker
with a history of assaults.2 Razzaq was removed from his cell for an hour of outdoor recreation.
When he returned, Limeweaver, Garcia, and Castellon were there with the new cell mate. Both the
cell mate and Razzaq were handcuffed. Razzaq again voiced his desire not to have this particular cell
mate and asked to see a supervisor. Razzaq and the cell mate were placed inside the cell, and
Limeweaver, Garcia, and Castellon went outside the cell. Limeweaver then uncuffed the cell mate.
The cell mate pulled a knife out of his pants and stabbed the still-handcuffed Razzaq seventeen
times.
The defendants argue that Razzaq failed to plead exhaustion of administrative remedies,
failed to state a claim against the CCA under 42 U.S.C. § 1983 or Bivens, and failed to state a claim
against Volle, Limeweaver, Garcia, and Castellon.

II. Rule 12(c) Legal Standard
The court reviews Rule 12(c) motions under the same standards governing 12(b)(6) motions.
Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1223 (10th Cir. 2009). Under these
standards, the court accepts factual allegations in the complaint as true and draws reasonable
inferences in favor of the plaintiff. Gann v. Cline, 519 F.3d 1090, 1092 (10th Cir. 2008). The
2

The cell mate has not been named in any documents before this court.

2

complaint must contain enough allegations of fact “to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “‘Plausibility’ in this context refers
to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath
of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from
conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Twombly, 550 U.S. at 570). “The plausibility standard is not akin to a ‘probability requirement,’ but
it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting
Twombly, 550 U.S. at 556). Thus, “where the well-pleaded facts do not permit the court to infer more
than a mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n] – ‘that the
pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950 (2009) (quoting
FED. R. CIV. P. 8(a)(2)).
Because Razzaq is a pro se litigant, the court must construe his pleadings liberally and apply
a less stringent standard than that applicable to attorneys. See Whitney v. New Mexico, 113 F.3d
1170, 1173 (10th Cir. 1997). The court, however, may not provide additional factual allegations “to
round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Id.

III. Exhaustion of Remedies Is An Affirmative Defense
First, the Defendants argue that because Razzaq failed to plead exhaustion of administrative
remedies, he has failed to state a claim upon which relief may be granted. But inmates are not
required to specially plead or demonstrate exhaustion in their complaints. Jones v. Bock, 549 U.S.
199, 216 (2007). A prisoner’s failure to exhaust administrative remedies is an affirmative defense,
not a pleading requirement the prisoner must anticipate in his complaint. Strope v. Cummings, 653
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F.3d 1271, 1274 (10th Cir. 2011); Roberts v. Barreras, 484 F.3d 1236, 1240 (10th Cir. 2007).
Prisoners no longer have the duty of pleading exhaustion. See Freeman v. Watkins, 479 F.3d 1257,
1260 (10th Cir. 2007). Therefore, this argument fails.

IV. Whether Bivens or 42 U.S.C. § 1983 Applies
Next, the defendants argue Razzaq fails to state a claim under 42 U.S.C. § 1983 or under
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Complaint alleges the CCA and
the individual defendants were acting in their individual capacities under color of federal law, but
“invokes jurisdiction” only under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983, which pertain to state
law.3 The issue of whether a Bivens claim or a Section 1983 claim is more appropriate is complicated
by the nature of Razzaq’s imprisonment. In his brief, Razzaq claims he was a state prisoner
temporarily housed in the federal Leavenworth prison due to space constraints.4 But a Bivens suit
against a federal agent is equivalent to a Section 1983 suit against a state official. Springer v. Albin,
398 Fed. App’x 427, 435 n.5 (10th Cir. 2010). And because a Bivens suit and a Section 1983 suit
are equivalent, this court cites to both Bivens and Section 1983 cases as authority. See id. Given the
less stringent standard applied to pro se pleadings, and the analogous nature of Bivens and Section
1983 suits, it is unnecessary to determine whether one is more appropriate here. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).

3

The defendants express doubt as to whether Razzaq is suing the CCA, arguing “Plaintiff does not include
CCA in his listing of Defendants in the body of the Complaint” (Dkt. No. 27, at 4). This is not true of the Amended
Complaint (Dkt. No. 20), against which the defendants lodged both their Answer and their present Motion to
Dismiss.
4

The Defendants refer to Razzaq as a federal offender (Dkt. No. 27, at 4).

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V. Section 1983/Bivens Legal Standard
To recover on a claim under Section 1983 (or Bivens), plaintiff must prove that defendants
deprived him of a constitutional right and that they acted under color of state (or federal) law. A
private individual’s conduct constitutes state action only if it is “fairly attributable” to the state. See
Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996). Conduct is “fairly attributable” to the state if
(1) the deprivation is caused by the exercise of some right or privilege created by the state or by a
rule of conduct imposed by the state; and (2) the private party acted together with or obtained
significant aid from state officials or engaged in conduct otherwise chargeable to the state. See id.

VI. The Claims Against the CCA Fail
On three occasions from 1971 to 1980, the Supreme Court recognized an implied cause of
action for money damages arising directly under the Constitution. See Carlson v. Green, 446 U.S.
14 (1980) (implied action against federal prison officials for Eighth Amendment violation); Davis
v. Passman, 442 U.S. 228 (1979) (implied action against federal official for Fifth Amendment
violation); Bivens, 403 U.S. at 388 (implied action against federal officials in individual capacities
for Fourth Amendment violation). Since 1980, however, the Supreme Court has refused to recognize
new causes of action for money damages arising directly from the Constitution. See Peoples v. CCA
Det. Ctrs., 422 F.3d 1090, 1098 (10th Cir. 2005).
In Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), the Supreme Court
underscored its hesitation to imply a Bivens cause of action in a new circumstance. In Malesko, a
federal offender sued the Correctional Services Corporation, a private corporation operating a
halfway house under contract with the Bureau of Prisons, for Eighth Amendment violations. The

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Supreme Court refused to extend Bivens to claims against private entities. See id. at 66; see also
Peoples, 422 F.3d at 1099, (discussing Malesko’s holding), vacated in part en banc, 449 F.3d 1097
(10th Cir. 2006). Because the CCA is a private entity, and Bivens and Section 1983 do not extend
to private entities, Razzaq has failed to state a claim upon which relief can be granted. Therefore,
the court grants the motion to dismiss as to the CCA.5

VI. The Claims Against Volle, Limeweaver, Garcia, and Castellon
Razzaq argues “the defendant’s failure to protect, which caused the Plaintiff to be stabbed
seventeen times,” violated the Eighth Amendment and the Due Process clause of the Fourteenth
Amendment.6 The Tenth Circuit has previously held that prisoners have no implied right of damages
against employees of a privately operated prison when state or federal law affords an alternate cause
of action for the alleged injury. Peoples v. CCA Detention Centers, 422 F.3d 1090, 1108 (10th Cir.
2005). But in cases such as these, where the defendants have not addressed whether adequate state
remedies are available, this court has held that a motion to dismiss will not be categorically granted.
Luttrell v. Grote, No. 10-3137, 2011 WL 6122359, at *4 (D. Kan. Dec. 8, 2011); Lindsey v. Bowlin,
557 F. Supp.2d 1225, 1231 (D. Kan. 2008).
The Supreme Court’s recent decision in Minneci v. Pollard, 132 S. Ct. 617 (2012) requires
an outcome different than that in Luttrell and Lindsey. Razzaq makes a claim for physical and

5

The defendants argue Razzaq’s claim against the CCA should also be dismissed for lack of subject matter
jurisdiction. “As we have previously stated, however, whether a court should imply a Bivens remedy is not a question
of subject matter jurisdiction.” Smith v. United States, 561 F.3d 1090, 1100 n.10 (10th Cir. 2009); see also Peoples
v. CCA Det. Ctrs., 449 F.3d 1097 (10th Cir. 2006).
6

Although Razzaq characterizes “failure to protect” as a violation of Due Process, the right to reasonable
measures to guarantee inmate safety stems from the Eighth Amendment. Farmer v. Brennan, 511 U.S. 825, 833-34
(1994).

6

emotional harm, as did the prisoner in Minneci. See id. The Court characterized such harms as “a
result of aggravated instances of the kind of conduct that state tort law typically forbids.” Id. at 624.
The Court specifically noted the existence of general tort duties of reasonable care on prison
employees “in every one of the eight States where privately managed secure federal facilities are
currently located.” Id. And the Court further characterized the question as “whether, in general, state
tort law remedies provide roughly similar incentives for potential defendants to comply with the
Eighth Amendment while also providing roughly similar compensation to victims of violations”
before concluding that “in practice, the answer to this question is ‘yes.’” Id. Because of the existence
of adequate state tort remedies, Razzaq’s claims against Volle, Limeweaver, Garcia, and Castellon
must be dismissed.
IT IS ACCORDINGLY ORDERED this 20th day of March 2012, that the defendants’ Motion
to Dismiss (Dkt. No. 26) is granted.
IT IS FURTHER ORDERED that Plaintiff’s Motions to Appoint Counsel (Dkt. Nos. 19 &
28) are denied as moot.

s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE

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