Alexander v. Egli et al

Filing 2

ORDER ENTERED: Plaintiff is granted thirty (30) days to EITHER pay the $350.00 district court filing fee OR submit a motion seeking leave to proceed in forma pauperis. Plaintiff is granted thirty (30) days to show cause why the complaint should not be dismissed as stating no claim upon which relief can be granted. Signed by Senior District Judge Sam A. Crow on 6/27/2012. (Mailed to pro se party Willie M. Alexander by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WILLIE M. ALEXANDER,
Plaintiff,
v.

CASE NO. 12-3101-SAC

RON EGLI, et al.,
Defendants.

O R D E R
Before the court is a form complaint presented for filing under
42 U.S.C.§ 1983, submitted pro se by a prisoner incarcerated in a
Federal Correctional Institution in Terre Haute, Indiana.
Filing Fee Obligation
The district court filing fee required for this civil action is
$350.00.

28 U.S.C. § 1914.

Because plaintiff is a prisoner, he is obligated to pay the
full district court filing fee.

28 U.S.C. § 1915(b)(1).

He may do

so over time by proceeding in forma pauperis and paying an initial
partial filing fee assessed by the court pursuant to § 1915(b)(1),
and through automatic payments thereafter from his inmate trust fund
account as authorized by § 1915(b)2). A motion for leave to proceed
in forma pauperis must be submitted on a court approved form with a
certified accounting of plaintiff’s inmate trust fund account for
the six month period prior to filing the instant complaint must be
attached.

See 28 U.S.C. § 1915(a)(stating requirements for a

prisoner’s in forma pauperis motion); D.Kan.Rule 9.1(court approved
forms required).

Plaintiff has not paid the district court filing fee, and has
not submitted a motion seeking leave to proceed in forma pauperis.
The court will grants plaintiff additional time to comply with one
of the statutory fee provisions for proceeding in federal court.
Screening of the Complaint
Also, a federal court must conduct an initial screening of any
action in which a prisoner seeks relief from a governmental entity
or an officer or employee of such an entity.
1915A(a).

See 28 U.S.C. §

In conducting the screening, the court must identify any

viable claim and must dismiss any part of the action which is
frivolous, malicious, fails to state a claim upon which relief may
be granted, or seeks monetary damages from a defendant who is immune
from such relief.
A

pro

se

See 28 U.S.C. § 1915A(b).
party’s

complaint

must

be

given

a

liberal

construction. Haines v. Kerner, 404 U.S. 519, 520 (1972). However,
a party proceeding pro se has “the burden of alleging sufficient
facts on which a recognized legal claim could be based.”

Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).
To state a claim for relief, the complaint must present
allegations of fact, assumed to be true, that “raise a right to
relief above the speculative level.”
Twombly, 550 U.S. 544, 555 (2007).

Bell Atlantic Corp. v.
The complaint must present

“enough facts to state a claim to relief that is plausible on its
face.”
leaded

Id. at 570.
allegations

At this stage, the court accepts all wellas

true

favorable to the plaintiff.

and

views

them

in

the

light

most

Id. at 555.

Having considered the complaint, the court finds it is subject
to

being

summarily

dismissed

for
2

reasons

including

the

two

identified below.
Plaintiff seeks relief on allegations of being denied necessary
and proper medical care while he was confined as a federal prisoner
in a facility operated by the Corrections Corporation of America
(CCA)during plaintiff’s confinement in Kansas.
First, to the extent plaintiff proceeds under § 1983 as titled
in

the

complaint,

no

claim

for

relief

is

presented.

A

constitutionally cognizable claim under 42 U.S.C. § 1983 must allege
the violation of a right secured by the Constitution or laws of the
United States, by a person acting under the color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).

Because plaintiff was

confined in the CCA facility as a federal prisoner, clearly none of
the CCA defendants named in the complaint acted “under color of
state law.”

The complaint thus presents no cause of action under

§ 1983.
Even if the court were to liberally construe the action as
seeking relief under Bivens,1 the federal analogue to suits brought
against state officials pursuant to § 1983, Hartman v. Moore, 547
U.S. 250, 255 n. 2 (2006), the Supreme Court has not extended Bivens
to allow a claim against a private corporation such as CCA, or to
CCA employees. See Correctional Services Corp. v. Malesko, 534 U.S.
61 (2001)(no implied private right of action, pursuant to Bivens,
for

damages

against

private

entities

engaged

in

alleged

constitutional violations while acting under color of federal law);
Minneci v. Pollard, __ U.S. __, 132 S.Ct. 617 (2012)(prison staff
1

See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 397 (1971)(citizens may sue federal
officials for monetary damages in relation to constitutional
deprivation).
3

at private prisons contracting with federal government cannot be
sued for constitutional violations where state tort law provides a
remedy).
Second, plaintiff filed his complaint on April 23, 2010,
alleging defendants ignored his obvious symptoms on March 19, 2010,
which resulted in plaintiff suffering a heart attack one week later.
It thus appears the complaint is not filed within the two year
limitations period provided for seeking relief under § 1983 or
Bivens.

See Baker v. Board of Regents of State of Kan., 991 F.2d

628, 630-31 (10th Cir.1993)(two-year limitations period in Kansas
for filing general personal injury suits applies to civil rights
actions brought pursuant to 42 U.S.C. § 1983); United States v.
Kubrick, 444 U.S. 111, 120 (1979)(“[A] Bivens action, like an action
brought pursuant to 42 U.S.C. § 1983, is subject to the statute of
limitations of the general personal injury statute in the state
where the action arose.”).
Notice and Show Cause Order Plaintiff
Plaintiff is granted thirty (30) days to either pay the $350.00
district court filing fee, or to submit an executed form motion for
seeking leave to proceed in forma pauperis without prepayment of the
district court filing fee.

The failure to do so in a timely manner

may result in the complaint being dismissed without prejudice, and
without further prior notice.
The

court

also

directs

plaintiff

to

show

cause

why

the

complaint should not be summarily dismissed as stating no claim for
relief.2

The failure to file a timely response may result in the

2

Plaintiff is advised that dismissal of the complaint as
stating no claim for relief, 28 U.S.C. § 1915A(b), will count as a
4

complaint being dismissed for the reasons stated herein, and without
further prior notice.
IT IS THEREFORE ORDERED that plaintiff is granted thirty (30)
days to EITHER pay the $350.00 district court filing fee OR submit
a motion seeking leave to proceed in forma pauperis.
IT IS FURTHER ORDERED that plaintiff is granted thirty (30)
days to show cause why the complaint should not be dismissed as
stating no claim upon which relief can be granted.
The clerk’s office is to provide plaintiff with court forms for
filing under 28 U.S.C. § 1915.
IT IS SO ORDERED.
DATED:

This 27th day of June 2012 at Topeka, Kansas.

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

“strike” under 28 U.S.C. 1915(g), a “3-strike” provision which
prevents a prisoner from proceeding in forma pauperis in bringing a
civil action or appeal if “on 3 or more prior occasions, while
incarcerated or detained in any facility, [the prisoner] brought an
action or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.”
5