Mack v. United States of America et al

Filing 2

MEMORANDUM AND ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee prerequisites. Within the same thirty-day period, plaintiff must submit his complaint upon court-provided forms and cure the deficiences in his form complaint. Signed by Senior District Judge Sam A. Crow on 6/6/2012. (Mailed to pro se party Cedric Mack by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CEDRIC MACK,
Plaintiff,
v.

CASE NO.

12-3090-SAC

UNITED STATES OF AMERICA,
doing business as United
States Marshal Service, et al.,
Defendants.
MEMORANDUM AND ORDER
This civil complaint was filed pro se by an inmate of the
United States Penitentiary, Leavenworth, Kansas.

Plaintiff seeks

money damages based upon claims that he was physically, mentally,
and emotionally injured during prisoner transport. He is given time
to satisfy the filing fee and to cure the deficiencies in his
pleading found upon screening.

FILING FEE
The statutory fee for filing a civil rights complaint is
$350.00.

Plaintiff has neither paid the fee nor submitted an

Application to Proceed Without Prepayment of Fees.

In order for

this action to proceed, he must satisfy the filing fee in one of
these two ways.

Plaintiff is forewarned that under 28 U.S.C. §

1915(b)(1), being granted leave to proceed without prepayment of
fees does not relieve a plaintiff of the obligation to pay the full
amount of the filing fee.

Instead, it entitles him to pay the fee

over time through payments automatically deducted from his inmate

trust fund account as authorized by 28 U.S.C. §1915(b)(2).1

Motions

to proceed without prepayment of fees must be submitted upon courtapproved forms.

Furthermore, § 1915 requires that the prisoner

submit with his motion a “certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for the 6month

period

immediately

preceding

the

filing”

of

the

action

“obtained from the appropriate official of each prison at which the
prisoner is or was confined.”

28 U.S.C. § 1915(a)(2). Plaintiff is

given time to satisfy the filing fee prerequisites.

If he fails to

do so within the time allotted, this action may be dismissed without
further notice.
In addition, § 1915(b)(1), requires the court to assess an
initial partial filing fee of twenty percent of the greater of the
average

monthly

deposits

or

average

monthly

balance

in

the

prisoner’s account for the six months immediately preceding the date
of the filing of a civil action.

The court will determine the

partial fee assessment after it receives plaintiff’s financial
information.

COMPLAINT NOT ON FORMS
Local court rules require that a civil complaint be submitted
upon court-approved forms.

D.Kan. Rule 9.1(a).

Mr. Mack will be

given time to submit his complaint upon forms provided by the court
that will be sent to him with a copy of this order.

1

Pursuant to §1915(b)(2), the Finance Office of the facility where
plaintiff is currently confined will be authorized to collect twenty percent (20%)
of the prior month’s income each time the amount in plaintiff’s account exceeds
ten dollars ($10.00) until the filing fee has been paid in full.

2

FACTUAL BACKGROUND AND CLAIMS
As the factual background for this complaint, plaintiff alleges
as follows.

In June, 2010, he was a federal prisoner being “held

and transported by Corrections Corporation of America” (CCA) at
their

detention

center

in

Leavenworth,

Kansas.

While

he was

handcuffed, waist-chained, and shackled, he was placed in a rear
seat in a CCA van, without being properly secured in a seat belt.
The breaking action of defendant “unknown driver of van number 2”
who was a CCA employee caused him to be “hurled forward into
immovable obstacles.”

He sustained severe head, neck, and back

injuries as a result, and suffered unnecessary pain, mental anguish,
emotional distress, fear, and humiliation.

Then, an unknown CCA

medical employee failed to x-ray or properly treat plaintiff for his
injury.

He was forced to suffer pain and anxiety.

The USMS failed

to require that federal prisoners be transported in seat belts to
prevent injury and failed to “have protocol in place” for taking
prisoners who sustained injury to the hospital emergency room for
full diagnosis and treatment.
Plaintiff claims deliberate indifference, failure to perform
duties, intentional and reckless negligence, and “misconduct of
contract employees.”

He asserts that his right to be free of cruel

and unusual punishment was violated by the acts of defendants “in
their official and individual capacity.”

He seeks money damages.

SCREENING
Because Mr. Mack is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any

3

portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

1915(e)(2)(B).
A court liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
litigant’s

“conclusory

allegations

Nevertheless, a pro se

without

supporting

factual

averments are insufficient to state a claim upon which relief can be
based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The

court “will not supply additional factual allegations to round out
a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”

Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.

1997). The complaint’s “factual allegations must be enough to raise
a right to relief above the speculative level,” and there must be
“enough facts to state a claim to relief that is plausible on its
face.”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570

(2007).

The court accepts all well-pleaded allegations in the

complaint as true.
2006).
not

Anderson v. Blake, 469 F.3d 910, 913 (10th Cir.

“[W]hen the allegations in a complaint, however true, could

raise

appropriate.

a

claim

of

entitlement

to

Twombly, 550 U.S. at 558.

relief,”

dismissal

is

The complaint must offer

“more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action.”

Id. at 555.

Having screened all

materials filed, the court finds the complaint is subject to being
dismissed for the following reasons.

FAILURE TO STATE CLAIM
4

Mr. Mack names as defendants the “United States of America
doing

business

as

United

States

Marshal

Service”

(USMS);

the

Corrections Corporation of America (CCA); Unknown Driver of Van
Number 2; and Unknown Medical Personnel.
unknown defendants were CCA employees.

He alleges that the

He asserts jurisdiction

under 28 U.S.C. §§ 1331 and 1343 based on his allegations of
deprivation of constitutional rights.

He also asserts jurisdiction

under 28 U.S.C. § 1367(a), claiming that this court has pendent
jurisdiction over his state law claims.
This court has jurisdiction under 28 U.S.C. § 1331 over all
civil actions “arising under the Constitution or laws of the United
States.”

However, plaintiff must also state a claim for relief or

a “cause of action” in federal court.

See Simmat v. U.S. Bureau of

Prisons, 413 F.3d 1225, 1230-31 (10th Cir. 2005)(“To bring suit, a
plaintiff must also state a claim upon which relief may be granted,
what used to be called stating a cause of action.”)(citing e.g.,
Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440
U.S. 391, 398 (1979)(distinguishing “the cause-of-action argument,”
which

is

directed

at

jurisdictional questions).

“the

existence

of

a

remedy,”

from

The court finds that plaintiff fails to

state a cause of action against all the defendants.
1.

Defendants United States and USMS

The United States is immune to suit for money damages except
where there is a specific statutory provision waiving sovereign
immunity.

A lawsuit against an agency of the United States like the

USMS is, in essence, one against the United States and faces the

5

same obstacle of sovereign immunity.2

The United States has not

waived sovereign immunity in Bivens actions.

FDIC v. Meyer, 510

U.S. 471, 483-86 (1994); Dahn v. United States, 127 F.3d 1249, 1254
(10th Cir. 1997)(The United States and its agencies have not waived
sovereign immunity for Bivens-type claims.); Laury v. Greenfield, 87
F.Supp.2d 1210, 1213 (D.Kan. 2000).

The same is true for actions

brought under 42 U.S.C. § 1983, 28 U.S.C. § 1343.3

It follows that

plaintiff fails to state a claim under the cited provisions against
either the United States or the USMS.
Congress has provided a cause of action against the United
States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §
1346(b), § 2671 et seq., for injury caused by the negligent or
wrongful act or omission of any employee of a federal agency acting
in his or her official capacity.

28 U.S.C. § 2672; United States v.

Orleans, 425 U.S. 807, 813 (1976)(“The Federal Tort Claims Act is a
limited waiver of sovereign immunity, making the Federal Government
liable to the same extent as a private party for certain torts of
federal employees acting within the scope of their employment.”);
see 28 U.S.C. § 1346(b).4

However, plaintiff does not assert a

2

Allegations of constitutional violations by federal prison employees
acting in their individual capacity may be brought under Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens the
United States Supreme Court held that plaintiffs may sue federal officials in
their individual capacities for damages for Fourth Amendment violations, even in
the absence of an express statutory cause of action analogous to 42 U.S.C. § 1983.
Id. at 395–97; see Carlson v. Green, 446 U.S. 14, 18 (1980)(recognizing a parallel
cause of action for Eighth Amendment violations).
3

In any event, to “state a claim under § 1983, a plaintiff must “show
that the alleged (constitutional) deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
No facts
alleged by plaintiff indicate that any defendant in this case acted under color
of state law.
4
If Mr. Mack were bringing this action under the FTCA, his complaint
would be deficient in several respects. First, the only proper defendant in an
FTCA suit is the United States. Smith v. U.S., 561 F.3d 1090, 1099 (10th Cir.

6

claim for relief under the FTCA.

2.

Defendants CCA and CCA Employees

It is also settled law that an inmate does not have a cause of
action in federal court under either Bivens or § 1983 against the
CCA, which is a private corporate entity.

In Correctional Services

Corporation v. Malesko, 534 U.S. 61 (2001), a federal prisoner sued
Correctional Services Corporation (“CSC”), a private corporation
under contract with the Bureau of Prisons to house federal prisoners
and detainees.

See id. at 63–64.

While Malesko was in CSC custody,

CSC employees forced him to climb stairs to his fifth floor living
quarters even though he had a known heart condition.

See id. at 64.

Malesko had a heart attack, fell, and sustained injuries.

See id.

Malesko brought a Bivens action against CSC for actual and punitive
damages.

See id.

The Supreme Court refused to extend Bivens to

claims against private entities.

See id. at 66. They reasoned that

imposing liability in a federal cause of action on private prison
2009)(citing Oxendine v. Kaplan, 241 F.3d 1272, 1275 fn. 4 (10th Cir. 2001)).
Second, under the FTCA a prospective plaintiff must pursue an administrative claim
with the appropriate federal agency before he may file a tort claim against the
United States. 28 U.S.C. § 2675(a) specifically provides:
An action shall not be instituted upon a claim against the United
States for money damages for injury . . . caused by the negligent or
wrongful act or omission of an employee of the government while
acting within the scope of his office or employment, unless the
claimant shall have first presented the claim to the appropriate
Federal agency and his claim shall have been fully denied by the
agency in writing and sent by certified or registered mail. . . .
Plaintiff does not allege that he timely presented an administrative claim to the
USMS that has been denied. Nor does he provide dates showing that he filed this
lawsuit within the time limit after his administrative claim was denied that is
set forth in the FTCA. In addition, the damages sued for may not exceed the
amount requested by the plaintiff in his administrative tort claim. Because the
FTCA constitutes a waiver of Government immunity, the conditions established by
the FTCA are strictly construed. See Pipkin v. United States Postal Serv., 951
F.2d 272, 275 (10th Cir. 1991); Franklin Savings Corp. v. U.S., 385 F.3d 1279,
1287 (10th Cir. 2004), cert. denied, 546 U.S. 814 (2005). The FTCA requirements
are jurisdictional and cannot be waived. See Estate of Trentadue ex rel. Aguilar
v. U.S., 397 F.3d 840, 852 (10th Cir. 2005).

7

facilities is a matter for Congress, not the courts, to determine.5
See id. at 72.
Likewise, plaintiff does not state a cause of action in federal
court against the individual CCA employees, who are employees at a
prison facility operated by a private company.6

Minneci v. Pollard,

132 S.Ct. 617, 626

(2012)(“[W]here, as here, a federal prisoner

seeks

privately

damages

from

employed

personnel

working

at

a

privately operated federal prison, where the conduct allegedly
amounts to a violation of the Eighth Amendment, and where that
conduct is of a kind that typically falls within the scope of
traditional state tort law (such as the conduct involving improper
medical care at issue here), the prisoner must seek a remedy under
state tort law.”); see also Peoples v. CCA Detention Centers, 422
F.3d 1090, 1108 (10th Cir. 2005)(The Tenth Circuit previously held
that “under Malesko, federal prisoners have no implied right of
action for damages against an employee of a privately operated
prison under contract with the United States Marshals Service when
state or federal law affords the prisoner an alternative cause of
action for damages for the alleged injury.”); Lindsey v. Bowlin, 557

5
Plaintiff cannot sue the CCA in federal court under the FTCA. While
the FTCA allows the United States to be sued for damages arising from torts
committed by government employees acting within the scope of their employment, it
“does not authorize suits based on the acts of independent contractors or their
employees.” See Curry v. United States, 97 F.3d 412, 414 (10th Cir. 1996); Jones
v. United States, 305 F.Supp.2d 1200, 1207 (D.Kan. 2004)(Physicians in private
practice that “provide medical services to facilities operated by the federal
government are independent contractors, and not employees of the government for
FTCA purposes.”)(citing Robb v. United States, 80 F.3d 884, 890 (4th Cir.
1996)(citing e.g., Carrillo v. United States, 5 F.3d 1302 (9th Cir. 1993);
Broussard v. United States, 989 F.2d 171 (5th Cir. 1993); Leone v. United States,
910 F.2d 46 (2d Cir. 1990); Bernie v. United States, 712 F.2d 1271 (8th Cir.
1983)).
6

It is prison officials acting under color of state or federal law that
violate the Eighth Amendment when they are deliberately indifferent to the safety
or the serious medical needs of prisoners in their custody. Estelle v. Gamble,
429 U.S. 97, 104–06 (1976)); Farmer v. Brennan, 511 U.S. 825, 833–34 (1994).

8

F.Supp.2d 1225, 1231 (D.Kan. 2008).

Mr. Mack alleges that one CCA

employee, whose name he does not know, failed to secure him in a
seat belt during transport and that another failed to provide him
with adequate medical care after he was injured.7

Thus, the only

persons alleged to have personally participated in the acts that
caused plaintiff’s injuries are the unknown individuals employed by
the CCA.
Having found that the complaint presents no claim for relief
against any defendant, named or unknown, under Bivens or § 1983, the
court declines to exercise its supplemental jurisdiction under 28
U.S.C. § 1367 over any pendant state claims.
1367(c)(3)(stating
supplemental

a

district

jurisdiction

court

over

a

may

state

See 28 U.S.C. §

decline

law

to

claim

exercise

if

it

“has

dismissed all claims over which it has original jurisdiction”).
Plaintiff’s assertion of jurisdiction under 18 U.S.C. § 3231 is
also

of

no

avail,

since

§

3231

provides

for

federal

court

jurisdiction over criminal “offenses against the laws of the United
States.”

Plaintiff does not have standing to sue someone for

committing a federal crime, and criminal statutes generally do not
provide a private cause of action.8
For the foregoing reasons, the court finds that plaintiff’s

7
It is also well-settled that claims of malpractice or negligence are
not sufficient to state a claim in federal court under the Eighth Amendment.
8
28 U.S.C. § 1332(a) provides that district courts shall have original
jurisdiction over any civil action where the matter in controversy exceeds the sum
or value of $75,000 and the dispute is between citizens of different states.
“This statute and its predecessors have consistently been held to require complete
diversity of citizenship.” Jones, 305 F.Supp.2d at 1207 (citing Owen Equip., and
Erection Co. v. Kroger, 437 U.S. 365, 373 (1978)).
“That is, diversity
jurisdiction does not exist unless each defendant is a citizen of a different
State from each plaintiff.”
Id.
Plaintiff does not assert diversity
jurisdiction. Nor does he allege facts showing complete diversity.

9

claims are subject to dismissal as against all defendants under the
statutory directive that a district court shall dismiss, at any
time, any portion of a prisoner complaint that fails to state a
claim. 28 U.S.C. § 1915A(b)(1); 28 U.S.C. § 1915(e)(2)(B)(ii). Mr.
Mack is given time to show cause why his claims should not be
dismissed for failure to state a cognizable claim.

If he fails to

show good cause within the time allotted, this action may be
dismissed without further notice.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to satisfy the filing fee prerequisites as
discussed herein.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff must submit his complaint upon court-provided forms and
cure the deficiencies discussed herein in his form complaint.9
The clerk is directed to send plaintiff forms for filing an IFP
motion and a § 1331 form complaint.
IT IS SO ORDERED.
Dated this 6th day of June, 2012, at Topeka, Kansas.

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

9
Plaintiff must write the case number of this case, 12-3090, on his
form complaint. He must also include all his claims and allegations in the form
complaint.

10