Warner v. Quintana

Filing 8

MEMORANDUM OPINION & ORDER: 1) 1 Complaint is DISMISSED W PREJUDICE w respect to all claims arising under Bivens. 2) 1 Complaint is DISMISSED W PREJUDICE w respect to all claims against Dft Francisco J. Quintana, Warden arising under the Federal Tort Claims Act. 3) As all claims against Dft Quintana have been dismissed, Quintana is DISMISSED as a dft in this action. 4) W/in 28 days from the date of this Order, Warner SHALL FILE into the record the Standard Form 95 he filed w BOP re the claims asserted in the complaint, as well as the BOP's denial of his request for admin settlement. Signed by Judge Joseph M. Hood on 11/21/2017.(SCD)cc: Pro Se Pla via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
MAURICIO WARNER,
Plaintiff,
V.
UNITED STATES OF AMERICA, et
al.,
Defendants.
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Civil No. 5: 16-365-JMH

MEMORANDUM
OPINION & ORDER

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Mauricio Warner is a prisoner incarcerated at the Federal
Medical Center-Lexington (“FMC-Lexington”) in Lexington, Kentucky.
Proceeding

without

an

attorney,

Warner

has

filed

a

document

captioned “Motion Under Bivens v. Six Unknown Federal Narcotics
Agents,” in which he asserts claims against the United States of
America

and

Francisco

J.

Quintana,

Warden

of

FMC-Lexington

pursuant to the doctrine announced in Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971) and the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80.

[D.E. 1]

Warner’s

“Motion” has been docketed as a complaint for administrative
purposes.
The Court must conduct a preliminary review of Warner’s
complaint because he has been granted permission to pay the filing
fee in installments [D.E. 7] and because he asserts claims against
government officials.

28 U.S.C. §§ 1915(e)(2), 1915A.

When

testing the sufficiency of the plaintiff’s complaint, the Court
affords it a forgiving construction, accepting as true all nonconclusory factual allegations and liberally construing its legal
claims in the plaintiff’s favor.

Davis v. Prison Health Servs.,

679 F.3d 433, 437-38 (6th Cir. 2012).

A district court must

dismiss any claim that is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief.

Hill v. Lappin,

630 F. 3d 468, 470-71 (6th Cir. 2010).
The only factual allegation of Warner’s complaint is that he
“was exposed to black mold and that medical staff at FMC Lexington
failed to treat him for exposure to black mold.”

[D.E. 1 at p. 2]

Warner claims that this “housing condition” constitutes “Cruel and
Unusual Punishment” in violation of the Eighth Amendment of the
United States Constitution.

[Id.]

He seeks relief from both

defendants pursuant to the doctrine announced in Bivens and the
FTCA.
With respect to Warner’s Bivens claim, the Bivens doctrine
allows a federal prisoner to bring a money-damages suit against
federal officers who violated his Eighth Amendment right to be
free from cruel and unusual punishment.
U.S. 14 (1980).

Carlson v. Green, 446

See also 42 U.S.C. § 1983 (providing redress for

violations of an injured party’s constitutional rights).

However,

a Bivens claim is only properly asserted against individual federal
2 

employees in their individual capacities.
F.2d 1015, 1018 (9th Cir. 1991).

Terrell v. Brewer, 935

Thus, Warner may not bring a

Bivens claim against the United States.

Correctional Services

Corp. v. Malesko, 534 U.S. 61, 72 (2001)(“If a federal prisoner in
a BOP facility alleges a constitutional deprivation, he may bring
a Bivens claim against the offending individual officer, subject
to the defense of qualified immunity.

The prisoner may not bring

a Bivens claim against the officer's employer, the United States,
or the BOP.”).

Accordingly, Warner’s Bivens claim against the

United States will be dismissed.
To the extent that Warner asserts a Bivens claim against
Quintana

individually,

in

order

to

recover

against

a

given

defendant in a Bivens action, the plaintiff “must allege that the
defendant [was] personally involved in the alleged deprivation of
federal rights.”

Nwaebo v. Hawk-Sawyer, 83 F. App’x 85, 86 (6th

Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)).
The requirement of personal involvement does not mean that the
particular defendant actually committed the conduct complained of,
but it does require a supervisory official to have “at least
implicitly authorized, approved, or knowingly acquiesced in the
unconstitutional conduct.” Hays v. Jefferson County, Kentucky, 668
F.2d 869, 874 (6th Cir. 1982). The mere fact of supervisory
capacity is not enough: respondeat superior is not an available

3 

theory of liability.

Polk County v. Dodson, 454 U.S. 312, 325-26

(1981).
Here, Warner makes no specific allegations at all with respect
to Quintana, much less any allegation that Quintana was personally
involved

in

the

conduct

which

purportedly

constituted

deprivation of his constitutionally-protected rights.

the

Rather,

Warner’s allegations consist entirely of conclusory statements and
legal conclusions. To state a viable claim for relief, a complaint
must do more: it must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The Supreme

Court has explained that:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the “grounds” of his
“entitle[ment] to relief” requires more than labels and
conclusions, and a formulaic recitation of a cause of
action’s elements will not do. Factual allegations must
be enough to raise a right to relief above the
speculative level on the assumption that all of the
complaint’s allegations are true.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Simply

labeling the defendants’ actions - whatever they might have been
- as “negligent” or as “deliberately indifferent” deprives the
defendants of notice of the conduct complained of, a notice to
which they are entitled.
Because the complaint does not provide any factual basis for
a Bivens claim against Quintana, but instead simply pleads legal
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conclusions

without

surrounding

facts

to

support

those

conclusions, it must be dismissed for failure to state a claim.
Grinter v. Knight, 532 F. 3d 567, 577 (6th Cir. 2008).
Turning to Warner’s claim under the FTCA, the “FTCA clearly
provides that the United States is the only proper defendant in a
suit alleging negligence by a federal employee.”

Allgeier v.

United States, 909 F.2d 869, 871 (6th Cir.1990) (citing 28 U.S.C.
§ 2679(a)). In addition, the Westfall Act, 28 U.S.C. § 2679(b)(1),
immunizes federal employees from tort liability for actions taken
within the scope of their employment.
191 F. App’x 338 (6th Cir. 2006).

Roberts v. United States,
The Court will, therefore,

dismiss the claims against Quintana, leaving only Warner’s claims
against the United States pursuant to the FTCA.
With respect to his FTCA claim against the United States,
ordinarily, the United States, as a sovereign entity, is immune
from suit absent its consent.
510 U.S. 471, 475 (1994).

Fed. Deposit Ins. Corp. v. Meyer,

The FTCA constitutes a limited waiver

of that immunity for suits sounding in tort against employees and
officers of the United States for acts committed within the scope
of their employment.

Ali v. Federal Bureau of Prisons, 552 U.S.

214, 217-18 (2008).

However, the FTCA permits the exercise of

subject matter jurisdiction over such a claim only if it has
already been presented to the agency for administrative settlement
and the agency has denied the request.
5 

28 U.S.C. § 2675(a); Myers

v. United States, 526 F.3d 303, 305 (6th Cir. 2008).

If the

plaintiff did not both file an administrative claim and receive a
denial from the agency before filing suit, the FTCA mandates the
dismissal of a suit against the United States.

McNeil v. United

States, 508 U.S. 106 (1993).
Here, Warner makes no allegation in his complaint that he
presented his claim to the Bureau of Prisons for administrative
settlement and was denied prior to filing suit, an allegation
necessary to establish the Court’s subject matter jurisdiction to
entertain

his

claim.

The

plaintiff

bears

demonstrating subject matter jurisdiction.

the

burden

of

RMI Titanium Co. v.

Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996).

The

Court has a continuing duty to satisfy itself that subject matter
jurisdiction is present, and accordingly may raise the issue at
any time during the course of an action.

Fed. R. Civ. P. 12(b)(1),

12(h)(3); Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 (6th Cir.
1992).

Once

challenged,

the

plaintiff

bears

the

burden

establishing that subject matter jurisdiction is present.
E.P.A., 270 F.3d 1129, 1131-32 (7th Cir. 2001);
Gaskill, 315 U.S. 442 (1942).

of

Frey v.

Thomason v.

To satisfy his burden, Warner must

file documents into the record establishing that he presented the
claims

asserted

administrative

in

his

settlement

present
and

that

denied.
6 

complaint
such

to

request

the
was

BOP

for

finally

Accordingly, IT IS ORDERED that:
1.

Warner’s complaint [R. 1] is DISMISSED WITH PREJUDICE

with respect to all claims arising under Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971).
2.

Warner’s complaint [R. 1] is DISMISSED WITH PREJUDICE

with respect to all claims against Defendant Francisco Quintana,
Warden, arising under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b), 2671-80.
3.

As

all

claims

against

Defendant

Quintana

have

been

dismissed, Quintana is DISMISSED as a defendant in this action.
4.

Within twenty-eight (28) days from the date of this

Order, Warner SHALL FILE into the record the Standard Form 95 he
filed with the Bureau of Prisons regarding the claims asserted in
the complaint, as well as the Bureau’s denial of his request for
administrative settlement.
This the 21st day of November, 2017.

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