Hanson v. USA et al

Filing 11

MEMORANDUM OPINION & ORDER: (1) Hanson's Bivens claim against the BOP is DISMISSED WITH PREJUDICE. The Clerk shall terminate the BOP as a dft from this action; (2) Hanson's Bivens claims against Warden Butler, Officer Harris, Office r Baker, and Medical Staff Member Wilson in their official and individual capacities are DISMISSED WITH PREJUDICE. The Clerk shall terminate these persons as dfts from this action; (3) Hanson's Bivens claim against Officer Mills in his off icial capacity is DISMISSED WITH PREJUDICE; (4) The Deputy Clerk shall prepare (3) "Service Packets" for service upon the USA and FCI-Manchester Officer Mills. (5) The Deputy Clerk shall send the Service Packets to the USMS in Lexington, KY, and note the date of delivery in the docket; (6) The USMS shall serve the USA by sending Service Packets by certified or registered mail to both the Civil Process Clerk at the United States Attorney EDKY and the Attorney US General in Washin gton, D.C.; (7) The USMS shall also personally serve Officer Mills at the Federal FCI in Manchester, KY through arrangement with the FBOP; (8) Hanson must immediately advise the Clerk's Office of any change in his current mailing address. If H anson fails to do so, the Court will dismiss his case; and (9) If Hanson wishes to seek relief from the Court, he must do so by filing a formal motion sent to the Clerk's Office. Every motion Hanson files must include a written certification t hat he has mailed a copy of it to the dfts or their counsel and statethe date of mailing. The Court will disregard letters sent to the Judge's chambers or motions lacking a certificate of service. Signed by Judge David L. Bunning on 03/13/2018.(KJA)cc: COR, mailed paper copy to pro se filer

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 18-17-DLB
BRYAN ALAN HANSON
VS.

PLAINTIFF

MEMORANDUM OPINION AND ORDER

UNITED STATES OF AMERICA, ET AL.

DEFENDANTS

*** *** *** ***
Bryan Alan Hanson is a federal prisoner who was recently confined at the Federal
Correctional Institution (FCI) in Manchester, Kentucky. Proceeding without a lawyer,
Hanson filed a Complaint alleging that, on August 21, 2016, FCI-Manchester Officer Mills
prevented him from using the toilet and, as a result, he soiled himself in public. (Doc. #1).
Hanson therefore brings a claim against Officer Mills pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971), and argues that Mills violated his
constitutional rights. Hanson also asserts Bivens claims against several other defendants,
including the Bureau of Prisons (BOP), Warden Butler, Officer Harris, Officer Baker, and
Medical Staff Member Wilson, and says that he is suing the defendants in both their
official and individual capacities. Hanson also claims that the United States is liable under
the Federal Tort Claims Act (FTCA). Hanson is seeking hundreds of thousands of dollars
in damages, among other remedies. This case is now before the Court on initial screening
pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

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As an initial matter, although Hanson names the BOP as a defendant, the Sixth
Circuit has made it clear that a plaintiff “cannot pursue a Bivens claim against the BOP
because such a claim may not be brought against a federal agency.” Okoro v. Scibana,
63 F. App’x 182, 184 (6th Cir. 2003). The Court will therefore dismiss Hanson’s Bivens
claim against the BOP.
Hanson’s claims against the defendants in their official capacities are barred by
sovereign immunity. That is because the United States as a sovereign is generally
immune from suit, see United States v. Sherwood, 312 U.S. 584, 586 (1941). This
immunity extends to claims against government agents acting in their official capacities.
See Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002). While the United States
can expressly waive its immunity, see Sherwood, 312 U.S. at 586, it has not done so in
Bivens actions. See Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348,
1351-52 (6th Cir. 1989). Therefore, Hanson’s Bivens claims against Officer Mills, Warden
Butler, Officer Harris, Officer Baker, and Medical Staff Member Wilson in their official
capacities are barred. Accordingly, the Court will dismiss these official-capacity claims.
The Court will also dismiss Hanson’s Bivens claims against Warden Butler, Officer
Harris, Officer Baker, and Medical Staff Member Wilson in their individual capacities.
Although Hanson names Warden Butler as a defendant, he does not allege that the
Warden was involved in the incident in question, and “the doctrine of respondeat superior
cannot provide the basis for liability in a Bivens action.” Okoro, 63 F. App’x at 184. And
although Hanson names Officer Harris, Officer Baker, and Medical Staff Member Wilson
as defendants, he does not allege in any clear way that these individuals were directly or
indirectly involved in the alleged decision to deny him access to the restroom. Instead,
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Hanson indicates that these individuals (and several inmates) only witnessed this incident
in which he soiled himself. (Doc. #1 at 5).1 Given these individuals’ apparent lack of
personal involvement in the alleged depravation of his rights, the Court will dismiss
Hanson’s Bivens claims against Officer Harris, Officer Baker, and Medical Staff Member
Wilson in their individual capacities. See Nwaebo v. Hawk-Sawyer, 83 F. App’x 85, 86
(6th Cir. 2003) (noting that, in order to recover against a defendant in a Bivens action, the
plaintiff must allege that the defendant was “personally involved in the alleged depravation
of federal rights.”).
This leaves Hanson’s Bivens claim against Officer Mills in his individual capacity
and the FTCA claim against the United States. The Court has conducted an initial review
of these claims and concludes that they require a response from the defendants. Since
the Court previously granted Hanson pauper status, the Clerk’s Office and the United
States Marshals Service (USMS) will serve Officer Mills and the United States with a
summons and copy of the Complaint on Hanson’s behalf. See Fed. R. Civ. P. 4(c)(3) and
28 U.S.C. § 1915(d).
Accordingly, it is ORDERED as follows:
(1)

Hanson’s Bivens claim against the BOP is DISMISSED WITH PREJUDICE.

The Clerk of the Court shall terminate the BOP as a defendant from this action;
(2)

Hanson’s Bivens claims against Warden Butler, Officer Harris, Officer

Baker, and Medical Staff Member Wilson in their official and individual capacities are

1

Hanson does say, “Further exacerbating the circumstances were the insensitive and degrading remarks
and comments by staff and inmates, [which] were completely uncalled for when all that was required was
to let me use the toilet.” (Doc. #1 at 5). However, Hanson does not indicate who made these alleged
comments.
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DISMISSED WITH PREJUDICE. The Clerk of the Court shall terminate these persons
as defendants from this action;
(3)

Hanson’s Bivens claim against Officer Mills in his official capacity is

DISMISSED WITH PREJUDICE;
(4)

The Deputy Clerk shall prepare three (3) “Service Packets” for service

upon the United States of America and FCI-Manchester Officer Mills.

The Service

Packets shall include:
(a)
(b)

the Complaint (Doc. #1);

(c)

this Order; and

(d)
(5)

a completed summons form;

a completed USM Form 285;

The Deputy Clerk shall send the Service Packets to the USMS in

Lexington, Kentucky, and note the date of delivery in the docket;
(6)

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

Packets by certified or registered mail to both the Civil Process Clerk at the Office of the
United States Attorney for the Eastern District of Kentucky and the Office of the Attorney
General of the United States in Washington, D.C.;
(7)

The USMS shall also personally serve Officer Mills at the Federal

Correctional Institution in Manchester, Kentucky through arrangement with the Federal
Bureau of Prisons;
(8)

Hanson must immediately advise the Clerk’s Office of any change in his

current mailing address. If Hanson fails to do so, the Court will dismiss his case; and

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(9)

If Hanson wishes to seek relief from the Court, he must do so by filing a

formal motion sent to the Clerk’s Office. Every motion Hanson files must include a written
certification that he has mailed a copy of it to the defendants or their counsel and state
the date of mailing. The Court will disregard letters sent to the Judge’s chambers or
motions lacking a certificate of service.
This 13th day of March, 2018.

K:\DATA\ORDERS\ProSe\Hanson 18-17-DLB Memorandum CDS.docx

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