Mack v. United States of America et al
Filing
5
ORDER ENTERED: This action is dismissed and all relief is denied, without prejudice, for failure to state facts to support a claim. Plaintiff's application 4 to proceed without prepayment of fees is granted and he is assessed the filing fee of $350.00. Signed by Senior District Judge Sam A. Crow on 8/22/2012. (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
dba U.S. Marshals Service,
et al.,
Defendants.
O R D E R
On June 6, 2012, the court entered a Memorandum and Order in
which it set forth deficiencies found upon screening plaintiff’s
complaint and gave plaintiff time to satisfy the filing fee and cure
those deficiencies.
The matter is now before the court upon
plaintiff’s First Amended Complaint (Doc. 3) and Application to
Proceed without Prepayment of Fees (Doc. 4).
Having considered
these filings, the court finds as follows.
The Amended Complaint completely supersedes the original
complaint, and the original complaint is no longer before the court.
The court proceeds to screen the Amended Complaint pursuant to 28
U.S.C. § 1915A(a), (b) and 28 U.S.C. § 1915(e)(2)(B).
In its initial screening order the court found that plaintiff
failed to state a cause of action against all the named defendants.
No claim was stated against the United States or the United States
1
Marshal Service (USMS) under any provisions asserted by plaintiff
because the United States and its agencies are immune to suit for
money damages under 28 U.S.C § 1331 and 42 U.S.C. § 1983.
Plaintiff
again names these two defendants in his Amended Complaint and again
asserts jurisdiction under § 1331.
as a basis for this lawsuit.
However, he has added the FTCA
He has also attached a copy of an
administrative claim to the USMS that does not include the “Date of
Claim.”
In its screening order, the court also found that plaintiff has
no cause of action in federal court against CCA employees under §
1331/Bivens and that his remedy, if any, was under state tort law,
citing Minneci v. Pollard, 132 S.Ct. 617, 626 (2012).
In addition,
the court noted that plaintiff cannot sue CCA employees in federal
court under the FTCA because the FTCA does not authorize suit based
upon the acts of independent contractors or their employees.
Nevertheless, in his Amended Complaint plaintiff again designates
unnamed CCA employees as defendants.
The court also found that the only persons alleged to have
personally participated in the acts that caused plaintiff’s alleged
injuries are the two unknown individuals employed by the CCA.
The
court further noted that allegations of malpractice or negligence
do not state a claim under the Eighth Amendment.
The court finds that plaintiff has failed in his First Amended
Complaint to cure significant deficiencies set forth in the court’s
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Memorandum and Order dated June 6, 2012.
FAILURE TO STATE CLAIM AGAINST ANY DEFENDANT UNDER § 1331
As the court previously explained to plaintiff, he states no
claim against the United States or the USMS under § 1331 due to
sovereign immunity.
In addition, plaintiff alleges no facts
whatsoever showing the personal participation of either of these
defendants in the van conditions, the driving, or the alleged medical
inattention that he claims gave rise to his injuries.
Plaintiff states no claim under § 1331 against the unknown CCA
employees because facts are not alleged to show that these private
prison employees acted as federal agents or government employees.
Plaintiff’s conclusory statement that he was being “held and
transported” by CCA employees “for the United States Government, U.S.
Marshal Service” is insufficient to transform either the van driver
or medical personnel employed by the CCA into federal employees or
agents for purposes of suit under § 1331.
Accordingly, the court
finds that plaintiff fails to state a plausible claim against any
defendant under § 1331.1
FAILURE TO STATE A CLAIM UNDER THE FTCA
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Plaintiff’s conclusory statement that his claim “stems from the 8th amendment
violation of constitutional right to be free of cruel and unusual punishment” does
not amount to facts showing either deliberate indifference to a serious medical
need or a failure to protect by a federal employee or agent so as to state a claim
under § 1331.
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Plaintiff’s conclusory statement is likewise insufficient to
allow consideration of either the van driver or medical personnel
employed by the CCA as federal employees for purposes of suing the
United States under the FTCA.
Plaintiff names the only defendant
that he can properly sue under the FTCA, and that is the United States.
However, his claims are not based upon tortious acts committed by
any U.S. Government employee within the scope of his or her federal
employment.
Accordingly, the court finds that plaintiff fails to
state sufficient facts to support a plausible claim under the FTCA.
NO JURISDICTION OVER STATE CLAIMS
Plaintiff’s claims, if any, appear to be against individual CCA
employees for negligence, malpractice, or some other state tort for
which remedies are available in state, not federal, court.
plaintiff
states
no
viable
claim
in
federal
court,
Since
pendent
jurisdiction over his state claims is not available.
For all the foregoing reasons, the court finds that plaintiff
fails to state a federal constitutional claim and fails to state a
claim against the defendants under the FTCA.
The court concludes
that this action must be dismissed without prejudice.
FILING FEE ASSESSED
Plaintiff has filed a Motion for Leave to Proceed without
Prepayment of Fees (Doc. 4), and has attached an Inmate Account
4
Statement in support as statutorily mandated.
As plaintiff was
warned, under 28 U.S.C. § 1915(b)(1) being granted such leave does
not relieve him of the obligation to pay the full fee of $350.00 for
filing this civil action.
Instead, it merely entitles him to pay
the filing fee over time through payments deducted automatically from
his inmate trust fund account as authorized by § 1915(b)(2).
Plaintiff’s motion is granted as it appears that he does not have
the funds to pay the filing fee in full up front.
However, he is
assessed the full filing fee to be paid in installments.
IT IS THEREFORE BY THE COURT ORDERED that this action is
dismissed and all relief is denied, without prejudice, for failure
to state facts to support a claim.
IT IS FURTHER ORDERED that plaintiff’s Application to Proceed
without Prepayment of Fees (Doc. 4) is granted and he is assessed
the filing fee of $350.00.
plaintiff
is
currently
The Finance Office of the Facility where
confined
is
directed
to
collect
from
plaintiff’s account and pay to the clerk of the court twenty percent
(20%) of the prior month’s income each time the amount in plaintiff’s
account exceeds ten dollars ($10.00) until plaintiff’s outstanding
filing fee obligation has been paid in full.
Plaintiff is directed
to cooperate fully with his custodian in authorizing disbursements
to satisfy the filing fee, including but not limited to providing
any written authorization required by the custodian or any future
custodian to disburse funds from his account.
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The clerk is directed to send copies of this order to plaintiff,
to the court finance office, and to the financial officer at the
institution in which plaintiff is currently confined.
IT IS SO ORDERED.
Dated this 22nd day of August, 2012, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
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