Hill v. Fort Leavenworth United States Disciplinary Barracks et al
NOTICE AND ORDER TO SHOW CAUSE ENTERED: Plaintiff is granted until April 28, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States District Judge, why Plaintiff's Complaint 1 should not be dismissed. Plai ntiff's motion to proceed in forma pauperis 2 is provisionally granted. Plaintiff is directed to submit a certified copy of the trust fund account statement (or institutional equivalent) for the 6-month period immediately preceding the filing of the Complaint, within fourteen (14) days of receipt of this Order. Signed by Magistrate Judge David J. Waxse on 03/13/17. Mailed to pro se party Steven E. Hill by regular mail. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
STEVEN E. HILL,
CASE NO. 16-3220-SAC-DJW
FORT LEAVEENWORTH UNITED STATES
DISCIPLINARY BARRACKS, et al.,
NOTICE AND ORDER TO SHOW CAUSE
Plaintiff Steven E. Hill is hereby required to show good cause, in writing, to the
Honorable Sam A. Crow, United States District Judge, why this action should not be dismissed
due to the deficiencies in Plaintiff’s Complaint that are discussed herein.
I. Nature of the Matter before the Court
This matter is a Bivens-type1 civil rights action filed pro se by a prisoner currently
incarcerated at Forrest City FCI in Forrest City, Arkansas. Plaintiff filed an Application to
Proceed without Prepayment of Fees (Doc. 2). The Court issued a Notice of Deficiency (Doc. 3)
to Plaintiff, advising Plaintiff that he failed to submit the financial information required to
support his motion and ordering him to submit his account statement for the appropriate sixmonth period.
The Court has examined the motion to proceed in forma pauperis and
provisionally grants the motion. Plaintiff will be directed to supplement the motion with his sixmonth account statement.
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff’s Complaint is based on an incident that occurred during his transport from the
United States Disciplinary Barrack, Fort Leavenworth, Kansas (“USDB”) by military personnel.
Plaintiff names as defendants USDB and three unknown military soldiers. Plaintiff alleges that
after a series of blackouts and seizures, he was transported by van to the hospital, accompanied
by three unknown military escorts. The military escorts failed to secure Plaintiff with a seatbelt,
and Plaintiff was injured when the driver drove off the road to get around a gate. Plaintiff was
thrown from one side of the van to the other when the van reentered the paved road. Plaintiff hit
his head, neck and face, but was not checked for a “new concussion.” As Count I, Plaintiff
claims “negligence per se” for failure to properly restrain him or use a seatbelt, failure to stay on
an approved route, and reckless driving. As Count II, Plaintiff alleges “failure to use seatbelt on
defenseless inmate.” As Count III, Plaintiff alleges “failure to stay on approved route” and
reckless endangerment. Plaintiff seeks $50,000 in damages.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a
governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be
granted, or that seek monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915A(b)(1)–(2).
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). In addition,
the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469
F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). The complaint’s “factual allegations must
be enough to raise a right to relief above the speculative level” and “to state a claim to relief that
is plausible on its face.” Id. at 555, 570.
In Feres v. United States, 340 U.S. 135 (1950), the United States Supreme Court
determined that the Federal Tort Claims Act did not operate as a waiver of sovereign immunity
in an action brought by active-duty military personnel.
The Court held that the federal
government “is not liable under the Federal Tort Claims Act for injuries to servicemen where the
injuries arise out of or are in the course of activity incident to service.” Id. at 146.
Federal courts have extended the “incident to service” test to bar other damages actions
against military personnel. In Chappell v. Wallace, 462 U.S. 296 (1983), the Court applied the
Feres doctrine to bar constitutional claims brought pursuant to Bivens, holding “that enlisted
military personnel may not maintain a suit to recover damages from a superior officer for alleged
constitutional violations.” Chappell, 462 U.S. at 305; see also United States v. Stanley, 483 U.S.
669, 681 (1987) (“Today, no more than when we wrote Chappell, do we see any reason why our
judgment in the Bivens context should be any less protective of military concerns than it has been
with respect to FTCA suits, where we adopted an ‘incident to service’ rule.”).
Plaintiff’s apparent status as a military prisoner dictates that his claims concerning his
injuries during transport and the failure to receive medical care following the incident, arise
incident to military service. In Ricks v. Nickels, 295 F.3d 1124 (10th Cir. 2002), the Tenth
Circuit noted that:
At the time he filed the original complaint, Ricks was serving his sentence at the
USDB in Fort Leavenworth, Kansas. The USDB is the Army Corrections System
maximum custody facility and provides long-term incarceration for enlisted and
officer personnel of the armed forces. No civilians are confined at the USDB.
The USDB is run by the Commandant, a United States Army military police
officer. Military police serve as correctional officers at the USDB, which does
not employ civilian guards. At the time of the complaint, all named Defendants
were active duty members of the United States Army, serving in their official
capacities as Commandant, noncommissioned officers, guards, and administrative
support for the USDB.
Id. at 1126 (rejecting military prisoner’s Bivens claim under Feres doctrine; plaintiff, although
discharged, remained subject to the Uniform Code of Military Justice). The Court held that
Ricks’ alleged injuries stemmed from his “military relationship such that it is ‘incident’ to his
military service, where he was convicted in a military court for offenses committed during active
duty; was confined in a military institution commanded and operated by military personnel,
subject to the USDB’s rules and regulation; and was subject to the UCMJ and could be tried by
court-martial for offenses during incarceration.
Likewise, Plaintiff’s claim for monetary
damages is “incident to military service” and therefore barred by the Feres doctrine.
IV. Response Required
For the reasons stated herein, it appears that this action is subject to dismissal in its
entirety. Plaintiff is therefore required to show good cause why his Complaint (Doc. 1) should
not be dismissed for the reasons stated herein. The failure to file a timely, specific response
waives de novo review by the District Judge, see Thomas v. Arn, 474 U.S. 140, 148–53 (1985),
and also waives appellate review of both factual and legal questions. Makin v. Col. Dept. of
Corr., 183 F.3d 1205, 1210 (10th Cir. 1999).
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until April
28, 2017, in which to show good cause, in writing, to the Honorable Sam A. Crow, United States
District Judge, why Plaintiff’s Complaint (Doc. 1) should not be dismissed for the reasons stated
IT IS FURTHER ORDERED that Plaintiff’s motion to proceed in forma pauperis
(Doc. 2) is provisionally granted. Plaintiff is directed to submit a certified copy of the trust
fund account statement (or institutional equivalent) for the 6-month period immediately
preceding the filing of the Complaint, within fourteen (14) days of receipt of this Order.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 13th day of March, 2017.
s/ David J. Waxse
David J. Waxse
U. S. Magistrate Judge
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