Jones v. Corrections Corporation of America

Filing 5

ORDER ENTERED: Plaintiff is granted thirty (30) days in which to satisfy the filing fee by either paying the fee in full or submitting a propery supported motion to proceed without prepayment of fees. Within the same thirty-day period, plaintiff mu st submit his complaint upon court-provided forms, cure the deficiencies, and show cause why this action should not be dismissed for failure to state a claim in federal court. Signed by Senior District Judge Sam A. Crow on 6/8/2012. (Mailed to pro se party Andre D. Jones by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANDRE D. JONES,
Plaintiff,
v.

CASE NO.

12-3125-SAC

CORRECTIONS CORPORATION
OF AMERICA,
Defendant.
O R D E R
This civil complaint was mailed to the court by Mr. Jones from
the Leavenworth Detention Center, Leavenworth, Kansas (LDC), which
is owned and operated by Corrections Corporation of America (CCA).1
The court finds that plaintiff’s complaint is defective for several
reasons including that he fails to state a claim in federal court
against the CCA and its employees.

Plaintiff is given time to cure

the defects or suffer dismissal of this action.

ALLEGATIONS
As the factual basis for this complaint, Mr. Jones alleges as
follows.

On April 30, 2012, he was placed in “Segregation Unit

Shower # 5 for booking.”

He was told he had two disciplinary

reports that he never received.
and 24 minutes.
Presto.

He stood in the shower for 4 hours

His requests for a seat were refused by “CCA staff”

After 3 hours, he showed his left knee to Presto and

1
The inmate locator on the Bureau of Prisons’ website indicates that
Mr. Jones was released from federal custody on September 10, 2010; and does not
reflect that he is currently back in federal custody. Mr. Jones must inform the
court in his new complaint whether he is currently at the LDC due to new federal
charges, a supervised release violation, or for some other reason.

requested medical attention because it was swollen to twice its
normal size.

His two requests were denied.

His back and knee were

injured as a result of this “punishment.”

He was placed in a

segregation cell from May 1 to May 4, 2012.

He was never given a

hearing on his DR or a reason.

He was “seen by medical” on May 7,

2012.
Plaintiff does not specify what relief he seeks.

He is

required to submit his complaint upon forms. In his form complaint,
he must set forth what relief he is asking the court to order.

SUPPLEMENTS
Plaintiff has submitted a “to whom it may concern” statement to
the court in this case, which was liberally construed and docketed
as a Supplement to his complaint (Doc. 2).

His “Judicial Notice of

Appendix” (Doc. 3)2 and another letter to the Clerk of the Court
(Doc.

4)

have

also

been

considered

as

supplemental

material.

Plaintiff is directed to place the caption and case number on all
papers he sends to the court in connection with this case.

He is

also informed that he may not add claims to his complaint by simply
submitting

letters

or

statements

with

additional

allegations.

Plaintiff is not required to serve the defendants with materials he
files unless and until this matter survives screening.

Other than

rulings regarding materials plaintiff has submitted, the court
cannot provide legal assistance to one party in a lawsuit as
2
This appears to be a submission of exhibits in support of plaintiff’s
claims.
However, inside this “notice” plaintiff appears to request court
permission “to secure witness statement in person” of two witnesses. This is not
a proper motion, and even if it were construed as a proper motion, no factual or
legal basis is stated that would entitle plaintiff to this action by the court.
Plaintiff must show that he has a valid claim in federal court before he will be
required to present either exhibits or witness statements.

2

plaintiff requests, even when that party is pro se.3

FILING FEE
The statutory fee for filing a civil rights complaint in
federal court 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, Mr. Jones must satisfy the filing
fee in one of these two ways.

He 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).4

Motions

to proceed without prepayment of fees must be submitted upon courtapproved forms.
Furthermore, § 1915 requires that the prisoner seeking to
proceed without prepayment submit with his motion a “certified copy
of the trust fund account statement (or institutional equivalent)
for the prisoner for the 6-month 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. §

3
Plaintiff may file a motion for appointment of counsel. However, he
must file a separate motion with the case caption and the title “Motion for
Appointment of Counsel” on the first page. He is advised however that there is
no right to assistance of counsel in a civil action. Moreover, it appears that
his claim is subject to being dismissed upon screening.
The court cannot
recommend lawyers for plaintiff to contact. However, plaintiff may contact the
Kansas Bar Association for a list of lawyers or Legal Services for Prisoners.
4

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.

3

1915(a)(2). 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

filing

of

a

civil

action.

The

court

will

determine

the

appropriate assessment in this case once it receives plaintiff’s
financial information.

Plaintiff is given time to satisfy these

filing fee prerequisites.

If he fails to do so within the time

allotted, this action may be dismissed without further notice.

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

D.Kan. Rule 9.1(a).

Mr. Jones 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.

If he fails to

comply within the time allotted, this action may be dismissed
without further notice.

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

1915(e)(2)(B).

DEFECTS IN COMPLAINT

4

and

(b);

28

U.S.C.

§

Pro se litigants are not excused from adherence to the Federal
Rules.

Under Rule 10 of the Federal Rules of Civil Procedure all

parties must be named in the caption of the complaint.

This is a

basic pleading requirement with which even a pro se litigant can and
must comply, particularly after the deficiency is pointed out by the
court

and

deficiency.

the

litigant

is

given

the

opportunity

to

cure

the

If such basic requirements are not met at the start of

a lawsuit, service and notice problems inevitably follow.
In his complaint submitted upon forms, plaintiff must name all
defendants

he

intends

to

sue

in

the

caption

information required for each named defendant.

and

provide

the

He must also refer

to each defendant again in the body of the complaint and describe
that

defendant’s

personal

participation

in

the

allegedly

unconstitutional acts.
Even

though

constitutional

plaintiff

rights

and

claims
this

violation

court

has

of

his

federal

jurisdiction

over

constitutional claims, to proceed in federal court he must also
allege a cause of action that would entitle him to relief from the
named defendants.

It is settled law that an inmate does not have a

cause of action in federal court under either Bivens or 42 U.S.C. §
1983 against the CCA, because it 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
5

sustained serious 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 against private prison facilities is a
question for Congress, not the courts, to decide.

See id. at 72.

In short, because the CCA is a private entity, and Bivens and
Section 1983 do not extend to private entities, plaintiff has failed
to state a claim upon which relief can be granted in federal court
as against the CCA.

His recourse against this private corporation

is in state court.
The Supreme Court’s recent decision in Minneci v. Pollard, 132
S.Ct.

617

(2012)

requires

a

similar

result

with

regard

plaintiff’s claims, if any, against individual CCA employees.
at 624.

to
Id.

Mr. Jones’s allegations against any CCA employee fail to

state a claim under § 1331 and § 1983.

Id.; see also Peoples v. CCA

Detention Centers, 422 F.3d 1090, 1108 (10th Cir. 2005)(The Tenth
Circuit had 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 F.Supp.2d 1225, 1231 (D.Kan. 2008). Adequate
tort remedies are available in the state courts for claims against
employees of private corporations like the CCA.
For the foregoing reasons, the court finds that plaintiff’s
claims are subject to dismissal under the statutory directive that
a district court shall dismiss, at any time, any portion of a
6

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. Jones is given time
to show cause why his claims should not be dismissed, without
prejudice, for the reasons stated herein.
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is granted
thirty (30) days in which to satisfy the filing fee by either paying
the fee in full or submitting a properly supported motion to proceed
without prepayment of fees.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff must submit his complaint upon court-provided forms, cure
the deficiencies discussed herein, and show cause why this action
should not be dismissed for failure to state a claim in federal
court.5
The clerk is directed to send plaintiff forms for filing an IFP
motion and a § 1331 complaint.
IT IS SO ORDERED.
Dated this 8th day of June, 2012, at Topeka, Kansas.

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

5

Plaintiff must write the case number of this case, 12-3125, on the
first page of his new form complaint.

7