Petrovic v. USA

Filing 8

MEMORANDUM OPINION AND ORDER: (1) Federal constitutional claims asserted by Pla against Dfts Goodwin and Lawrence, in their individual capacities, are DENIED WITH PREJUDICE for failure to state a claim upon which relief can granted: (a) Petrovics Fif th Amendment claims alleging the denial of due process; (b) Petrovics First Amendment claims alleging the denial of freedom of speech; and (c) Petrovics Fourth Amendment claims alleging unreasonable search and seizure. (2) Petrovics Eighth Amendment individual capacity claims against Dft Goodwin and Lawrence, alleging deliberate indifference to his serious medical needs SHALL PROCEED, and Dfts must respond to those Eighth Amendment claims. (3) Petrovics FTCA claims against the USA, alleging negl igence and tortious conduct under Kentucky common law, SHALL PROCEED, and the USA must respond to those claims. (4) Clerk shall PREPARE a Service Packet for Dfts Goodwin and Lawrence and the USA. Service Packet shall include summons, 1 Complaint an d all attachments, this Order and USM 285. (5) Clerk shall SEND the Service Packets to USM in Lexington, KY. (6) USM shall SERVE Dfts Goodwin and Lawrence, FMC-Lexington Officers. (7) USM shall serve USA. (8) USM is responsible for ensuring that Dfts Goodwin and Lawrence are successfully served with process. (9) Within 40 days, USM shall send a Service Report to the Lexington Clerks Office for filing, which states whether service has been accomplished with respect to Dfts Goodwin and Lawrence. ( 10) Petrovic must immediately advise the Clerks Office of any change in his current mailing address. Failure to do so may result in dismissal of this case. (11) Petrovic must communicate with the Court solely through notices/motions. Court will disr egard correspondence sent directly to the undersigneds chambers. (12) With every notice/motion filed with the Court, Petrovic must (a) mail a copy to each Dft (or his/her attorney); and (b) at the end of the notice/motion, certify that he has mailed a copy to each Dft and the date on which this was done. Court will disregard any notice/motion which does not include this certification. Signed by Judge Karen K. Caldwell on December 19, 2016. Signed by Judge Karen K. Caldwell on December 19, 2016. (AWD) cc: Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
JOVICA PETROVIC,
Plaintiff,
v.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Civil No. 5:16-CV-167-KKC

MEMORANDUM OPINION
AND ORDER

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Plaintiff Jovica Petrovic is an inmate at the Federal Medical Center-Lexington in
Lexington, Kentucky.

Proceeding without an attorney, Petrovic has filed a civil rights

complaint [R. 1] asserting constitutional claims under 28 U.S.C. § 1331, pursuant to the
doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971). Petrovic also alleges negligence and common law tort claims under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. By separate Order, Petrovic has
granted in forma pauperis status in this proceeding.
The Court conducts a preliminary review of Petrovic’s civil rights complaint because
he asserts claims against government officials, and because he has been granted in forma
pauperis status in this action. 28 U.S.C. §§ 1915(e)(2)(B); 1915A. In such cases, a district
court must dismiss any action which (i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief against a defendant who is
immune from such relief. Id. Further, the Court liberally construes Petrovic’s claims and
accepts his factual allegations as true because he is proceeding without an attorney.

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Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555-56 (2007). As explained below, some of Petrovic’s claims will be allowed to proceed, but
others will be dismissed for failure to state a claim upon which relief can be granted.
ALLEGATIONS OF THE COMPLAINT
Petrovic alleges that he suffers from serious cardiac conditions, atrial fibrillation,
diabetes, high blood pressure, and heart palpitations. He claims that on July 19, 2015, in
disregard of his serious cardiac and related medical conditions, Defendant Goodwin (FMCLexington Officer), maliciously assigned him “extra duty” work assignments (pulling up
weeds) during extreme heat conditions, and that Defendant Lawrenz, FMC-Lexington
Officer, denied him water while he was performing his extra duty assignments. Petrovic
claims that the “extra duty” work assignments and denial of water exacerbated his cardiac
and other medical conditions, causing him to experience pain in his head and chest, chronic
physical suffering, and emotional distress.
Petrovic contends that the alleged actions of Defendants Goodwin and Lawrenz
constituted deliberate indifference to his serious medical needs, in violation of the Eighth
Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment, see R.
1, pp. 4-5, ¶ 14; ¶ 17; ¶ 20; ¶ 23; violated his right to due process of law, guaranteed by the
Fifth Amendment of the U.S. Constitution,1 see id., ¶ 16; ¶ 22; violated his right to free
speech, guaranteed by the First Amendment of the U.S. Constitution, see id., p. 5, ¶ 19; and
violated his right to remain free from unreasonable search and seizure, guaranteed by the
Fourth Amendment of the U.S. Constitution, see id., ¶ 21. Alternatively, Petrovic claims

Petrovic incorrectly alleges that the Fourteenth Amendment to the U.S. Constitution guarantees his right to
due process. [R. 1, p. 5, ¶ 22] The named defendants are federal actors, not state actors. Petrovic’s claim
alleging the denial of due process therefore falls under the Fifth Amendment of the U.S. Constitution, not the
Fourteenth Amendment, which applies to state actors.
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that the defendants’ alleged actions constituted negligence and tortious conduct (such as
assault and battery) under the common law of Kentucky, and thus are actionable under the
FTCA.

Petrovic seeks substantial compensatory and punitive damages from the

Defendants Goodwin and Lawrenz (in their individual capacities) under Bivens, and from
the United States, pursuant to the FTCA.2 [Id., p. 6]
DISCUSSION
The United States will be required to respond to Petrovic’s FTCA negligence and
common law tort claims. Defendants Goodwin and Lawrenz will be required to respond to
Petrovic’s Eighth Amendment claims alleging deliberate indifference to his serious medical
conditions. The Clerk will be instructed to issue summons for the named defendants as to
these specific claims, and the United States Marshal Service (“USMS”) will be directed to
serve Defendants Goodwin and Lawrenz according to the instructions set forth below.
But Petrovic’s other federal constitutional claims, alleging denial of due process,
freedom of speech, and unreasonable search and seizure, all fail to state claim upon which
relief can be granted. “[D]amage claims against governmental officials alleged to arise from
violations of constitutional rights cannot be founded upon conclusory, vague or general
allegations, but must instead, allege facts that show the existence of the asserted
constitutional rights violation recited in the complaint and what each defendant did to
violate the asserted right.” Terrance v. Northville Reg’l Psychiatric Hosp., 286 F.3d 834,
842 (6th Cir. 2002) (emphasis in original). “[A] plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the

Petrovic alleges that on November 5, 2015, he submitted an Administrative Tort Claim to the BOP, using
“Form OMB 1105-0008,” but that the BOP did not respond to his Tort Claim. [R. 1, p. 1, ¶ 2] Petrovic did not
attach a copy of the Claim Form which he allegedly submitted to the BOP, nor did he allege whether he
exhausted his administrative remedies with respect to his various constitutional claims asserted under Bivens
against Defendants Goodwin and Lawrenz.
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Constitution,” because vicarious liability is not applicable to civil rights actions. Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009).
While Petrovic alleges facts alleging plausible Eighth Amendment violations, to
which Defendants Goodwin and Lawrenz must respond, he alleges no facts in support of his
sweeping allegation that he was denied “due process.”

Petrovic fails to identify what

“process” (either substantive or procedural) was denied, nor does he explain when, where,
or how the defendants allegedly violated his broadly described right to “due process.” As
previously noted, Petrovic does not allege that he undertook steps in compliance with the
BOP’s four-step administrative remedy process, so he clearly fails to allege that any of his
rights associated with the BOP’s administrative remedy process were impaired or
obstructed. Even if Petrovic had specifically alleged that he pursued his administrative
remedies, but that he received either no response or an unsatisfactory response to same,
such allegations would not amount to a violation of due process, because Bivens liability
may not be imposed simply where a defendant denied an administrative grievance or failed
to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999).
A civil rights complaint need not contain “detailed factual allegations,” Twombly,
550 U.S. at 555, but it must have “more than an un-adorned, the defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 677. Petrovic’s broad and conclusory allegation
that he was denied some type of unidentified “due process” does not meet the minimal
pleading standard required by Iqbal and is factually unsupported.

Moreover, where a

particular constitutional amendment provides an explicit textual source of constitutional
protection against a particular sort of government behavior, that amendment, not the more

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generalized notion of “substantive due process,” must be the guide for analyzing such
claims. Graham v. Connor, 490 U.S. 386, 395 (1989); County of Sacramento v. Lewis, 523
U.S. 833, 843 (1998); Albright v. Oliver, 510 U.S. 266, 273 (1994) Petrovic’s claim alleging
the denial of “due process” will therefore be dismissed for failure to state a claim upon
which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
Petrovic alleges that his right to “freedom of speech” was violated, but alleges no
facts in support of that broad conclusory allegation. The Court observes that a federal
prisoner does not enjoy the same right to freedom of speech as that of a non-prisoner. “In
contrast to the rights of a free citizen under the First Amendment or Title VII, a prisoner's
rights are more limited, and the contours of a prisoner’s First Amendment right to freedom
of speech are unclear.” McKinney v. Rutenbar, No. 2:14-CV-220, 2016 WL 4144253, at *2
(W.D. Mich. Aug. 4, 2016) For the reasons set forth above, Petrovic’s vague and conclusory
claim alleging the denial of his “freedom of speech” is also fatally defective, and will be
dismissed for failure to state a claim upon which relief can be granted.

28 U.S.C. §

1915(e)(2)(B)(ii).
Finally to the extent that Petrovic alleges that he was subjected to “unreasonable
search and seizure,” in violation of the Fourth Amendment of the U.S. Constitution, he
again states no substantive claim for relief. The Fourth Amendment’s prohibition against
unreasonable search and seizure applies to persons who are not in custody; here, Petrovic is
unquestionably in federal custody. A prisoner is not entitled to the protection of the Fourth
Amendment against unreasonable searches and seizures. Hudson v. Palmer, 468 U.S. 517,
525-526 (1984) (holding that “…. the Fourth Amendment proscription against unreasonable
searches does not apply within the confines of the prison cell. The recognition of privacy

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rights for prisoners in their individual cells simply cannot be reconciled with the concept of
incarceration and the needs and objectives of penal institutions.”)
To the extent that Petrovic alleges that Defendants Goodwin and Lawrenz subjected
him to extreme heat and/or dangerous conditions of confinement in deliberate indifference
to his serious medical needs, he has already asserted an Eighth Amendment claim on this
same issue, to which the named defendants will be ordered to respond. Thus, Petrovic’s
Fourth Amendment claim alleging “unreasonable search and seizure” will be dismissed,
because it is subsumed within his enumerated Eight Amendment deliberate indifference
claims, and his allegation must therefore proceed under the Eighth Amendment’s criteria.
See Brooks v. Longcore, No. 1:11-CV-1060, 2012 WL 4501011, at *6, n. 2 (W.D. Mich. Jun.
15, 2012).
CONCLUSION
Accordingly, IT IS ORDERED that:
1.

The following federal constitutional claims asserted by Plaintiff Jovica

Petrovic’s against Defendants Goodwin and Lawrence (FMC-Lexington Officers), in their
individual capacities, are DENIED WITH PREJUDICE for failure to state a claim upon
which relief can be granted under 28 U.S.C. § 1915(e)(2)(B)(ii):
(a).
(b).

Petrovic’s First Amendment claims alleging the denial of freedom of s
speech; and

(c).
2.

Petrovic’s Fifth Amendment claims alleging the denial of due process;

Petrovic’s Fourth Amendment claims alleging unreasonable search
and seizure.

Petrovic’s Eighth Amendment individual-capacity claims against Defendants

Goodwin and Lawrence (FMC-Lexington Officers), alleging deliberate indifference to his

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serious medical needs SHALL PROCEED, and Defendants Goodwin and Lawrence must
respond to those Eighth Amendment claims.
3.

Petrovic’s FTCA claims against the United States of America, alleging

negligence and tortious conduct under Kentucky common law, SHALL PROCEED, and
the United States must respond to those claims.
4.

A Deputy Clerk in the Lexington Clerk’s Office shall PREPARE a “Service

Packet” for Defendants Goodwin and Lawrence (FMC-Lexington Officers), and the United
States of America. The Service Packet shall include:
(a).
(b).
(c).
(d).
5.

a completed summons form;
the Complaint [R. 1] and all attachments thereto;
this Order; and
a completed USM Form 285.

The Lexington Deputy Clerk shall SEND the Service Packets to the USMS in

Lexington, Kentucky.
6.

The USMS shall SERVE Defendants Goodwin and Lawrence, FMC-

Lexington Officers, by:
(a).
Sending a Service Packet by certified or registered mail to the Civil
Process Clerk at the Office of the United States Attorney for the Eastern
District of Kentucky;
(b).
Sending a Service Packet for Defendants Goodwin and Lawrence,
FMC-Lexington officers, by certified or registered mail to the Office of the
Attorney General of the United States in Washington, D.C.; and
(c). Personally serving Defendants Goodwin and Lawrence, FMC-Lexington
officers, with a Service Packet through arrangement with the BOP.
7.

The USMS shall serve the United States of America by sending a Service

Packet by certified or registered mail to:
(a).

the Civil Process Clerk at the Office of the United States Attorney for
the Eastern District of Kentucky, and;

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(b).
(c).
8.

the Office of the Attorney General of the United States in Washington,
D.C., and;
the Central Office of the Federal Bureau of Prisons in Washington,
D.C.

The USMS is responsible for ensuring that Defendants Goodwin and

Lawrence (FMC-Lexington Officers) are successfully served with process. In the event that
an attempt at service either of both of them is unsuccessful, the USMS shall make further
attempts and shall ascertain such information as is necessary to ensure successful service
9.

Within 40 days of the date of entry of this Order, the USMS Office shall send

a Service Report to the Lexington Clerk’s Office, which the Deputy Clerk shall file in the
record, which states whether service has been accomplished with respect to Defendants
Goodwin and Lawrence (FMC-Lexington Officers).
(a).

If either or both of the individually named defendants are served by

certified mail, the Service Report shall include:
(1).
(2).

(b).

a copy of the green card showing proof of service; or
a statement that the green card was not returned from the U.S.
Postmaster, along with a “Track-and-Confirm” report from the
U.S. Postal Service showing that a proof of delivery does not
exist.

If either or both of the individually named defendants are personally

served, the Service Report shall indicate:
(1).
(2).

10.

that either or both Defendants were successfully served, or
a statement explaining why either or both Defendants could
not be served and what efforts are being taken to locate and
accomplish personal service on either or both of them.

Petrovic must immediately advise the Lexington Clerk’s Office of any change

in his current mailing address. Failure to do so may result in dismissal of this case.

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11.

Petrovic must communicate with the Court solely through notices or motions

filed with the Lexington Clerk’s Office. The Court will disregard correspondence sent
directly to the undersigned’s chambers.
12.

With every notice or motion filed with the Court, Petrovic must (a)

mail a copy to each defendant (or his or her attorney); and (b) at the end of the
notice or motion, certify that he has mailed a copy to each defendant (or his or
her attorney) and the date on which this was done. The Court will disregard any
notice or motion which does not include this certification.
This December 19, 2016.

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