Jones v. Core Civic Corporation et al

Filing 22

MEMORANDUM AND ORDER granting 15 Motion to Dismiss for Failure to State a Claim; granting 18 Motion to Dismiss by the Government Defendants. Signed by District Judge Sam A. Crow on 10/19/2018. Mailed to Plaintiff Tanya Jones by regular mail. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
TANYA JONES,
Plaintiff,
v.

CASE NO. 17-3217-SAC

CORE CIVIC CORPORATION, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the Court on the motions to dismiss filed by Defendant CoreCivic
(Doc. 15) and by Defendants Wolf, Chin and Bodnar (Doc.18). The motions have been fully
briefed and are ripe for decision. Defendants’ motions are granted for the reasons stated herein.
I. Facts and Procedural History
Plaintiff brings this pro se civil rights action pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). At the time of filing, Plaintiff
was a pretrial detainee at CCA-Leavenworth in Leavenworth, Kansas.
Plaintiff leave to proceed in forma pauperis.

The Court granted

Plaintiff names as Defendants:

Core Civic

Corporation, also known as CCA (“CoreCivic”); and U.S. Marshals Steven Wolf, Edward Chin
and Ulana Bodnar (the “Government Defendants”).
Plaintiff alleges that while she was a pretrial detainee at CoreCivic, Defendants were
deliberately indifferent to her medical needs in violation of the Eighth Amendment,1 when she
was refused an eye examination and updated prescription eyewear because her visual acuity did
not meet Defendants’ requirements. Plaintiff requests “an eye exam and glasses” as well as:
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Plaintiff alleges that she was a pretrial detainee, rather than a convicted prisoner, at the time giving rise to the
allegations in her Complaint. That distinction, however, at least with regard to Plaintiff’s medical care claims, is not
critical here. “Under the Fourteenth Amendment due process clause, ‘pretrial detainees are . . . entitled to the degree
of protection against denial of medical attention which applies to convicted inmates’ under the Eighth Amendment.”
Martinez v. Beggs, 563 F.3d 1082, 1088 (10th Cir. 2009) (quoting Garcia v. Salt Lake County, 768 F.2d 303, 307
(10th Cir. 1985)).
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punitive damages in the form of a new system implemented that
allows inmates to be approved for eye exams. If they have poor
vision, it should be immediately authorized for eye exams, so that
there isn’t further damage to the eyes. It should not be based on
how poor their eyesight is. The amount of money damages:
$250,000.
Plaintiff also filed a “Motion for Medical Care” in her criminal case. See United States v.
Jones, Case No. 15-20091-JAR, Doc. 95. The Court granted her motion, finding that:
Tanya Jones shall be permitted to see the optometrist at Core Civic
at such optometrist’s next regularly scheduled visit. She shall be
given a more complete eye examination including an updated
prescription (for glasses) as determined by such optometrist.
Id. at Doc. 98. The order in Plaintiff’s criminal case was entered after a hearing on her Motion
for Medical Care. Plaintiff clarified to this Court that while she did see the optometrist at the
next visit, she continues to seek damages in the instant Bivens action. (Doc. 4, at 1.) Plaintiff
alleges that she suffered from migraines, blurry vision and watery eyes.
Plaintiff states in her Complaint that the basis of jurisdiction of her claims falls under 42
U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971). (Doc. 1, at 3.) The Government Defendants filed a motion to dismiss for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under
Fed. R. Civ. P. 12(b)(6). CoreCivic filed a motion to dismiss for failure to state a claim under
Fed. R. Civ. P. 12(b)(6).
II. Standard of Review
The Court must construe pro se filings liberally. See Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991)). The Court does not, however, “take on the responsibility of serving as the litigant’s

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attorney in constructing arguments and searching the record.” Id. Moreover, “pro se parties
[must] follow the same rules of procedure that govern other litigants.” Id.
A. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and, as such, must have a statutory or
constitutional basis to exercise jurisdiction. Montoya v. Chao, 296 F.3d 952, 955 (10th Cir.
2002); see United States v. Hardage, 58 F.3d 569, 574 (10th Cir. 1995) (“Federal courts have
limited jurisdiction, and they are not omnipotent. They draw their jurisdiction from the powers
specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1.” (internal
citations omitted)). The party who seeks to invoke federal jurisdiction bears the burden of
establishing that such jurisdiction is proper. Montoya, 296 F.3d at 955; see also Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (finding that because federal courts are
courts of limited jurisdiction, a presumption exists against jurisdiction, and “the burden of
establishing the contrary rests upon the party asserting jurisdiction”).

“Mere conclusory

allegations of jurisdiction are not enough.” United States ex rel. Hafter, D.O. v. Spectrum
Emergency Care, Inc., 190 F.3d 1156, 1160 (10th Cir. 1999) (citation omitted).
“Motions to dismiss for lack of subject matter jurisdiction generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.” City of Albuquerque v. U.S. Dep’t of Interior, 379 F.3d 901, 906 (10th Cir. 2004)
(internal citations omitted).

If the motion challenges the sufficiency of the complaint’s

jurisdictional allegations, the court must accept all such allegations as true. Holt v. United
States, 46 F.3d 1000, 1002 (10th Cir. 1995). If there is a challenge to the actual facts, the court
has discretion to allow affidavits and other documents to resolve disputed facts. Id. at 1003.

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B. Rule 12(b)(6)
A court may dismiss a complaint for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6). In order to withstand a motion to dismiss for failure to state a
claim, a complaint must contain enough allegations of fact to state a claim to relief that is
plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007)). All well-pleaded facts and
the reasonable inferences derived from those facts are viewed in the light most favorable to
plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations,
however, have no bearing upon the court’s consideration. Shero v. City of Grove, Okla., 510
F.3d 1196, 1200 (10th Cir. 2007).
III. Analysis
A. Plaintiff’s Claim Under 42 U.S.C. § 1983
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)
(citations omitted). A defendant acts “under color of state law” when he “exercise[s] power
‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with
the authority of state law.’” Id. at 49 (citations omitted).
Defendant CoreCivic is a private corporation. “In order to hold a private individual liable
under § 1983 for a constitutional violation requiring state action, a plaintiff must show under
Lugar, . . . that the individual’s conduct is ‘fairly attributable to the State.’” Pino v. Higgs, 75
F.3d 1461, 1465 (10th Cir. 1996) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982)). The requirement is satisfied if two conditions are met. First, the deprivation “must be

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caused by the exercise of some right or privilege created by the State or by a rule of conduct
imposed by the state or by a person for whom the State is responsible.” Yanaki v. Iomed, Inc.,
415 F.3d 1204, 1207–08 (10th Cir. 2005), cert. denied 547 U.S. 1111 (2006) (citing Lugar, 457
U.S. at 937). Second, the private party must have “acted together with or [ ] obtained significant
aid from state officials” or engaged in conduct “otherwise chargeable to the State.” Id. at 1208.
Plaintiff alleges no facts to support an inference that any defendant was acting under state
law or in conspiracy with any state official. Plaintiff also makes no allegation that Defendants
obtained significant aid from the state of Kansas or any other state or state officials, or that
Defendants engaged in conduct otherwise chargeable to the State. Plaintiff references only one
government agency in her Complaint—the U.S. Marshals Service, a federal, not state, agency.
See McKeighan v. Corr. Corp. of Am., No. 08-3173-SAC, 2008 WL 3822892, at *3 (D. Kan.
2008) (finding CCA not a “person” amenable to suit under § 1983, and CCA employees not
acting under color of state law). Plaintiff provides no factual claim or support for a claim that
Defendants acted under color of state law. Therefore, Plaintiff fails to state a claim for relief
under 42 U.S.C. § 1983.
B. Bivens Claim Against CoreCivic
The Supreme Court has held that a Bivens action does not lie against a private
corporation that manages a private prison. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63,
71–73 (2001) (holding that Bivens action does not lie against a private corporation operating a
halfway house under contract with the Bureau of Prisons). Although Plaintiff names CoreCivic
as a defendant, but fails to name any individual officers of employees of CoreCivic, an action
against CoreCivic employees would likewise be unavailable. The United States Supreme Court
has found that a Bivens remedy is not available to a prisoner seeking damages from the

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employees of a private prison for violation of the prisoner’s Eighth Amendment rights. Minneci
v. Pollard, 565 U.S. 118, 120–21 (2012) (refusing to imply the existence of a Bivens action
where state tort law authorizes alternate action providing deterrence and compensation); In
Minneci, the Supreme Court stated:
[W]here . . . a federal prisoner seeks damages from privately
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. We cannot imply a Bivens
remedy in such a case.
Minneci, 565 U.S. at 131.
The Supreme Court reasoned that “a critical difference” between cases where Bivens
liability applied and those where it did not was “employment status,” i.e., whether the defendants
were “personnel employed by the government [or] personnel employed by a private firm.” Id. at
126. Defendant CoreCivic is a private corporation contracting with the United States Marshals
Service, a federal law enforcement agency. The Supreme Court also rejected the argument that
private actors performing governmental functions should be considered federal agents for the
purposes of Bivens liability. Id. at 126–27.
The Supreme Court held in Minneci that the “ability of a prisoner to bring state tort law
damages action[s] against private individual defendants means that the prisoner does not ‘lack
effective remedies.’” Id. at 125 (citing Malesko, 534 U.S. at 72). They reasoned that “in the
case of a privately employed defendant, state tort law provides an ‘alternative, existing process’
capable of protecting the constitutional interests at stake.” Id. (citing Wilkie v. Robbins, 551 U.S.
537, 550 (2007)). They explained that, “[s]tate-law remedies and a potential Bivens remedy need
not be perfectly congruent” and even if “state tort law may sometimes prove less generous than
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would a Bivens action,” this fact is not a “sufficient basis to determine state law inadequate.” Id.
at 129 (finding that “federal law as well as state law contains limitations”).
The Supreme Court also found “specific authority indicating that state law imposes
general tort duties of reasonable care (including medical care) on prison employees in every one
of the eight States where privately managed secure federal facilities are currently located.” Id. at
128. “[I]n general, state tort law remedies provide roughly similar incentives for potential
defendants to comply with the Eighth Amendment while also providing roughly similar
compensation to victims of violations.” Id. at 130. In fact, Kansas is another state whose tort
law reflects the “general principles of tort law” recognized in Minneci and set forth in the
(Second) Restatement of Torts §§ 314A(4), 320 (1963–64). See Camp v. Richardson, No. 113128-SAC, 2014 WL 958741, at n.12 (D. Kan. 2014) (citing Estate of Belden v. Brown Cty., 261
P.3d 943 (Kan. App. 2011) (setting forth remedies available in Kansas)).
Likewise, the Tenth Circuit has previously stated that “the presence of an alternative
cause of action against individual defendants provides sufficient redress such that a Bivens cause
of action need not be implied.” Crosby v. Martin, 502 F. App’x 733, 735 (10th Cir. 2012)
(unpublished) (citing Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1102 (10th Cir. 2005)). The
Tenth Circuit found that where plaintiff “has an alternative cause of action against the defendants
pursuant to Kansas state law, he is precluded from asserting a Bivens action against the
defendants in their individual capacities,” and he is “barred by sovereign immunity from
asserting a Bivens action against the defendants in their official capacities.” Crosby, 502 F.
App’x at 735 (citing Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (finding that an
official-capacity claim “contradicts the very nature of a Bivens action. There is no such animal
as a Bivens suit against a public official tortfeasor in his or her official capacity.”)).

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Plaintiff’s remedy against CoreCivic and its employees, if any, is an action in state court
for negligence or other misconduct. See Harris v. Corr. Corp. of Am. Leavenworth Det. Ctr.,
No. 16-3068-SAC-DJW, 2016 WL 6164208, at *3 (stating that plaintiff has remedies for
injunctive relief in state court and citing Peoples, 422 F.3d at 1104–05 (individual CCA
defendants owed a duty to protect to plaintiff that if breached, would impose negligence
liability)); Lindsey, 557 F. Supp. 2d at 1225 (Kansas law generally provides an inmate with a
remedy against CCA employees for negligence and for actions amounting to violations of federal
constitutional rights.); see also Menteer v. Applebee, 2008 WL 2649504, at *8–9 (D. Kan.
June 27, 2008) (plaintiff’s state law negligence claim found to be equally effective, alternative
cause of action to Bivens claim). In addition, “[i]n Kansas, a prisoner may attack the terms and
conditions of his or her confinement as being unconstitutional through a petition filed under
K.S.A. 60-1501.” Harris, 2016 WL 6164208, at *3 (citing Jamerson v. Heimgartner, 326 P.3d
1091, at *1 (Kan. App. June 20, 2014) (unpublished)). Because Plaintiff has an alternative cause
of action pursuant to Kansas state law, she is precluded from asserting a Bivens action in federal
court against CoreCivic or its employees.
C. Claims Against the Government Defendants
1. Bivens Claim
Section 1331 provides that “[t]he district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
In Bivens, the Supreme Court set forth a remedy for constitutional violations committed by
federal officials. Bivens, 403 U.S. 388. “However, a Bivens claim can be brought only against
federal officials in their individual capacities” and cannot be asserted directly against the United
States, federal agencies, or federal officials acting in their official capacities. Smith v. United

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States, 561 F.3d 1090, 1099 (10th Cir. 2009) (citing Farmer v. Perrill, 275 F.3d 958, 963 (10th
Cir. 2001) and F.D.I.C. v. Meyer, 510 U.S. 471, 485–86 (1994)).
Plaintiff names as Defendants Dr. Edward Chin, Dr. Ulana Bodnar and Dr. Steven Wolf.
These Defendants are United States Public Health Service (“PHS”) officers who were acting
within the scope of their employment.2 In Hui v. Castaneda, the Supreme Court held that the
Public Health Service Act (“PHSA”), 42 U.S.C.A. § 233(a), precludes Bivens actions against
individual PHS officers or employees for constitutional violations arising out of their official
duties. Hui v. Castaneda, 559 U.S. 799 (2010). The Supreme Court noted that § 233(a) provides
that:
“[t]he remedy against the United States provided by
sections 1346(b) and 2672 of title 28 . . . for damage for personal
injury, including death, resulting from the performance of medical
. . . or related functions . . . by any commissioned officer of
employee of the Public Health Service while acting within the
scope of his office or employment, shall be exclusive of any other
civil action or proceeding by reason of the same subject-matter
against the officer or employee (or his estate) whose act or
omission gave rise to the claim.”
Id. at 805 (citing 42 U.S.C.A. § 233(a)) (emphasis added).
The Supreme Court held that § 233(a) “makes the FTCA remedy against the United
States ‘exclusive of any other civil action or proceeding’ for any personal injury caused by a
PHS officer or employee performing a medical or related function ‘while acting within the scope
of his office or employment.’” Id. at 802. Based on the plain language of § 233(a), the Supreme
Court held that PHS officers and employees are not personally subject to Bivens actions for
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Plaintiff does not allege that Defendants were acting outside the scope of their official duties. In fact, she alleges
that they were following the policy in effect at that time and sought to have a “new system implemented.” Doc. 1,
at 5. The Supreme Court also observed that “proof of scope is in most § 233(a) cases established by a declaration
affirming that the defendant was a PHS official during the relevant time period.” Hui, 559 U.S. at 811. The
doctor’s declarations in this case state that their actions with regard to Plaintiff were taken within the scope of their
official duties as a medical doctor with the United States Public Health Service and in accordance with USMS
policy and practice. See Doc. 19–1, at 4, ¶ 8 (Declaration of Edward Chin); Doc. 19–2, at 4, ¶ 7 (Declaration of
Ulana Bodnar); and Doc. 19–3, at 4, ¶ 7 (Declaration of Steven Wolf).
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harms arising out of such conduct. Id. Thus, “Section 233(a) grants absolute immunity to PHS
officers and employees for actions arising out of the performance of medical or related functions
within the scope of their employment by barring all actions against them for such conduct.” Id.
at 806.
2. Federal Tort Claims Act
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671–2680, “allows
the United States to be sued for claims arising out of negligent or wrongful acts or omissions of
its employees, when such employees are acting within the scope of their duties.” Ingram v.
Faruque, 728 F.3d 1239, 1245 (10th Cir. 2013) (citing § 1346(b)(1)). “The United States is the
only proper defendant in an FTCA action.” Smith, 561 F.3d at 1099 (quoting Oxendine v.
Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001)); see Hui, 559 U.S. at 801 (the FTCA
“generally authorizes substitution of the United States as the defendant.”). The FTCA “provides
the exclusive avenue to assert a claim sounding in tort against the United States.” Franklin Sav.
Corp., In re, 385 F.3d 1279, 1286 (10th Cir. 2004), cert. denied, 546 U.S. 814 (2005) (citing 28
U.S.C. § 2679(a), which provides that “the FTCA remedy is ‘exclusive’ for all ‘claims which are
cognizable under section 1346(b)’”).
The FTCA has procedural and jurisdictional requirements. See Staggs v. U.S. ex rel.
Dep’t of Health and Human Servs., 425 F.3d 881, 885 (10th Cir. 2005) (stating that the “FTCA’s
presentation requirements are jurisdictional and cannot be waived”) (citation omitted). The
Tenth Circuit has summarized the FTCA requirements as follows:
Under the FTCA, filing an administrative claim with the
appropriate federal agency is a prerequisite to bringing a civil
action against the United States for damages for the negligence or
wrongful act of any United States employee. 28 U.S.C. § 2675(a);
Three-M Enterprises, Inc. v. United States, 548 F.2d 293, 294
(10th Cir. 1977) . . . A claim is deemed presented when a federal
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agency receives from a claimant “an executed Standard Form 95 or
other written notification of an incident, accompanied by a claim
for money damages in sum certain for . . . personal injury, or death
alleged to have occurred by reason of the incident.” 28 C.F.R.
§ 14.2(a). “[B]ringing an administrative claim is a jurisdictional
prerequisite to suit, imposed by Congress, which the courts have
no power to waive.” Nero v. Cherokee Nation of Oklahoma, 892
F.2d 1457, 1463 (10th Cir. 1989); see also Bradley v. United
States, 951 F.2d 268, 270 (10th Cir. 1991).
Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 967 (10th Cir.
1994).3 Section 2675(a) provides that “[a]n action shall not be instituted” upon an FTCA claim
“unless the claimant shall have first presented the claim to the appropriate Federal agency and
his claim shall have been finally denied by the agency in writing . . . .” Id. at n.1. The amount of
damages claimed in a lawsuit under the FTCA is limited to “the amount of the claim presented to
the federal agency.” 28 U.S.C. § 2675(b); see McNeil v. United States, 508 U.S. 106, 108 n.2
(1993) (citing 28 U.S.C. § 2675(a)).
Therefore, exhaustion of administrative remedies is a prerequisite to suit under the
FTCA, and courts lack jurisdiction over FTCA claims not presented to the appropriate federal
agency. See 28 U.S.C. § 2675(a); Greenlee v. U.S. Postal Serv., 247 F. App’x 953, 954–55 (10th
Cir. 2007). “Because the FTCA constitutes a waiver of the government’s sovereign immunity,
the notice requirements established by the FTCA must be strictly construed.” Bradley v. United
States by Veterans Admin., 951 F.2d 268, 270 (10th Cir. 1991) (citation omitted).

“The

requirements are jurisdictional and cannot be waived.” Id. (citation omitted); Duplan v. Harper,
188 F.3d 1195, 1199 (10th Cir. 1999) (“As a jurisdictional prerequisite, the FTCA bars claimants
from bringing suit in federal court until they have exhausted their administrative remedies.”)

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Although Plaintiff suggests in her Response (Doc. 20) that her motions in her criminal case satisfy the exhaustion
requirements, her motions were not presented to “the appropriate federal agency” and were not “accompanied by a
claim for money damages in sum certain.” See United States v. Jones, Case No. 15-20091-JAR, Docs. 93, 95.
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(citing 28 U.S.C. § 2675(a); McNeil, 508 U.S. at 113; Pipkin v. U.S. Postal Service, 951 F.2d
272, 273 (10th Cir. 1991)).
Plaintiff has not alleged facts establishing that she exhausted the administrative tort claim
remedy in a proper and timely manner prior to filing this action. Because this Court cannot
exercise jurisdiction over an administratively unexhausted claim, Plaintiff’s potential FTCA
claim must be dismissed under Fed. R. Civ. P. 12(b)(1).
IV. Conclusion
Plaintiff has failed to allege state action to support a claim under 42 U.S.C. § 1983. A
Bivens remedy is not available against CoreCivic for violations of Plaintiff’s Eighth Amendment
rights. Section 233(a) grants absolute immunity to PHS officers and employees for actions
arising out of the performance of medical or related functions within the scope of their
employment by barring all actions against them for such conduct. Any potential claim Plaintiff
may have under the FTCA is dismissed for lack of subject matter jurisdiction because she has not
alleged that she exhausted the administrative tort claim remedy in a proper and timely manner
prior to filing this action.
IT IS THEREFORE ORDERED THAT the motion to dismiss filed by CoreCivic
(Doc. 15) is granted.
IT IS FURTHER ORDERED that the motion to dismiss filed by the Government
Defendants (Doc. 18) is granted.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 19th day of October, 2018.
s/ Sam A. Crow
Sam A. Crow
U.S. Senior District Judge

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