Cox v. Cunningham et al

Filing 10

ORDER ENTERED: The complaint is dismissed as stating no claim for relief. Plaintiff's motion 9 compel, or in the alternative for recusal of the undersigned judge, is denied. Signed by Senior District Judge Sam A. Crow on 11/19/2013. (Mailed to pro se party Dusty J. Cox by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTY J. COX,
Plaintiff,
v.

CASE NO.11-3215-SAC

TY CUNNINGHAM, et al.,
Defendants.

O R D E R
Plaintiff, a federal prisoner confined in a correctional medical
center in Missouri (MCFP-Springfield), proceeds pro se and in forma
pauperis in this action, seeking damages and injunctive relief for
the alleged deprivation of his constitutional rights while confined
as a pretrial detainee in a Leavenworth, Kansas, correctional facility
operated by the Corrections Corporation of America (CCA-LVN).
The

court

reviewed

plaintiff’s

allegations

and

directed

plaintiff to show cause why the complaint should not be summarily
dismissed as stating no claim for relief against any of the named
defendants.

Having

reviewed

plaintiff’s

response,

the

court

dismisses the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Plaintiff alleges he was denied necessary medical treatment and
accommodation for serious back pain and related infection, citing the
denial

of

adequate

pain

medication

throughout

his

CCA-LVN

confinement, and the denial of a wheel chair, hospital bed, and foam
mattress for specific periods.

The court generally found plaintiff’s
1

claims for relief were time barred, but further found no legal basis
for plaintiff’s claim for damages against the CCA-LVN defendants, and
no jurisdiction to consider plaintiff’s claims against defendants
located outside the District of Kansas.

Having reviewed plaintiff’s

response, the court dismisses the complaint as stating no claim
against any of the defendants upon which relief can be granted under
42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971).

28 U.S.C. § 1915(e)(2)(B)(ii).

Plaintiff first argues his complaint was timely filed through
application of the “mailbox rule” set forth by the Supreme Court in
Houston v. Lack.1

See Price v. Philpot, 420 F.3d 1158, 1164-65 (10th

Cir.2005)(mailbox rule in Houston applies to inmate’s filing of a
civil rights complaint).
The “mailbox rule” in Houston provides that “an inmate who places
a federal civil rights complaint in the prison’s internal mail system
will be treated as having ‘filed’ that complaint on the date it is
given to prison authorities for mailing to the court.

However, the

inmate must attest that such a timely filing was made and has the burden
of proof on this issue.”

Id. at 1165 (citations omitted).

In the present case, plaintiff has now submitted an “Affidavit
of Truth” under penalty of perjury, 28 U.S.C. § 1746, that he placed
his complaint, prepaid with first class postage for mailing in the
institutional mail system, on December 7, 2011.

(Doc. 6).

Even

assuming the complaint was thereby filed that same date, all but two
days of plaintiff’s allegations spanning from June 15 to December 8,
2009, would remain outside the two year limitation period for seeking
1

487 U.S. 266, 276 (1988).

2

relief.
Plaintiff next argues his claims against the CCA-LVN defendants
should be considered, and argues that he satisfies all requirements
for proceeding under 42 U.S.C. § 1983 to obtain relief.

The court

disagrees, finding no merit to plaintiff’s assertion that § 1983
allows relief for all “persons acting under color of law,” including
employees of federal, state, and private prisons.

Section 1983

requires a showing that state action resulted in the violation of
plaintiff’s constitutional rights.

See West v. Atkins, 487 U.S. 42,

48 (1988)(“To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by
a person acting under color state law.”)(emphasis added).

This a

requirement plaintiff has not satisfied in this case.
To the extent plaintiff characterizes his complaint as also
seeking relief Bivens,2 the court continues to find no cause of action
is stated against the CCA-LVN defendants.

In Minneci v. Pollard, 132

S.Ct. 617 (2012), the Supreme Court refused to extend a Bivens remedy
to a federal prisoner seeking damages from privately employed
personnel working at a privately operated federal prison for the
alleged denial of adequate medical care in violation of the Eighth
Amendment.

Id. at 626.

Plaintiff’s argument that he was confined

at CCA-LVN as a pretrial detainee presumed innocent of the federal
charges against him, and not as a convicted prisoner as in Minneci,
is a distinction that lacks persuasive legal force.
2

In Bivens, the Supreme Court recognized a private right of action in favor
of victims of constitutional violations committed by federal agents in the
performance of their official duties. 403 U.S. at 396-97.

3

Finally, the court finds no claim for relief is stated against
the Missouri defendants, even if this court’s jurisdiction over these
defendants could be assumed.

During his confinement at CCA-LVN,

plaintiff was in the custody of the United States Marshal Service
(USMS) for the Western District of Missouri pending plaintiff’s
prosecution in that court on criminal charges.

While plaintiff names

three USMS employees as defendants,3 he does not allege that any of
these

defendants

personally

necessary medical care.

participated

in

denying

plaintiff

Moreover, sovereign immunity bars a claim

for damages against the USMS or any of its employees in their official
capacity.
Plaintiff’s motion to compel court action on his pending
complaint is now moot.

Plaintiff’s alternative request for recusal

is denied because there is no truth to plaintiff’s stated concern that
the undersigned judge “was a previous Board Member of CCA and may have
interest[s] that conflict with the Plaintiff’s case.” (Doc. 9)
IT IS THEREFORE ORDERED that the complaint is dismissed as
stating no claim for relief.
IT IS FURTHER ORDERED that plaintiff’s motion (Doc. 9) to compel,
or in the alternative for recusal of the undersigned judge, is denied.
IT IS SO ORDERED.
DATED:

This 19th day of November 2013 at Topeka, Kansas.

s/Sam A. Crow
SAM A. CROW
U.S. Senior District Judge
3

Plaintiff correctly notes that the Missouri defendants named in the
complaint were not located in the Springfield medical facility as stated in the
court’s show cause order.

4