Cardona v. Federal Bureau of Prisons et al

Filing 17

MEMORANDUM OPINION & ORDER: 1. Clerk shall TERMINATE the "Unknown Bonding Company" as dft, and shall SUBSTITUTE "United States of America" and the BOP, in place of "Unknown Bonding Company." 2. Cristobal� 39;s Eighth Amendment deliberate indifference claims against dfts USA and BOP are DISMISSED WITH PREJUDICE, because US and BOP are immune. 3. Cardona's Eighth Amendment deliberate indifference claims against dft "S." Slone, in h er official capacity, are DISMISSED WITH PREJUDICE for failure to state claim. 4. Cardona's Eighth Amendment Bivens claims against dft "S." Slone, in her individual capacity shall proceed, and Slone must res pond to claims asserted in Cardona's (R. 1 , and amended complaint 11 ). 5. Clerk shall prepare "Service Packet" for Dft "S. Slone, Administrator of Health Services at USP-Big Sandy, and Service Packet shall include: (a) summons ; (b) complaint and attachments; (c) Amended Complaint and attachments; (d) Orders entered 7 and 13 ; (e) this Order; and (f) USM 285. 6. Clerk shall send the Service Packet to USMS in Lexington, KY. 7. USMS shall serve Dft "S." Slone by : (a) Service Packet by certified mail to USA for EDKY; (b) Service Packet for Dft "S." Slone to US Attorney General; or (c) Personally serving Dft "S." Slone, with Service Packet through arrangement with BOP. 8. USMS responsible for ensuring dft is successfully served with process. If service unsuccessful, the USMS shall make further attempts and shall ascertain information to ensure successful service. 9. Within 40 days of entry of Order, the USMS shall send Service Report to Pikeville Clerk's Office, which Clerk shall file in record, which states has been accomplished. (a) If Dft is served, the Service Report shall include: (1). copy of green card showing proof of service, or (2). statement was not returned from US Postmaster, along with "Track-and-Confirm" report showing proof if delivery does not exist. (b) If Dft "S." Slone, is personally served, the Service Report shall indicate: (1) Slone was successfully served personally, or (2) statement explaining why Slone could not served and what efforts are being taken to locate dft and accomplish personal service on her. 10. Cardona must immediately advise Clerk's of current mailing address. Failure may result in the dismiss al of this case. Communicate with Court solely through notices or motions filed in Clerk's Office. Court will disregard correspondence sent directly to undersigned's chambers. 11. Every notice of motion filed, Cardona must (a) mail c opy to each dft (or attorney); and (b) certify he has mailed and date on which is was done. Court will disregard any notice or motion which does not include certification. Signed by Judge Karen K. Caldwell on 12/19/2016. (TDA) cc: Cardona & USM (with service packets)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE

JOSE CRISTOBAL CARDONA,

)
)
Plaintiff,
)
)
V.
)
)
FEDERAL BUREAU OF PRISONS, et al., )
)
Defendants.
)

Civil Action No. 7:15-CV-125-KKC

MEMORANDMUM OPINION
AND ORDER

*** *** *** ***
Plaintiff Jose Cristobal Cardona is an inmate confined by Bureau of Prisons (“BOP”)
at the United States Penitentiary (“USP”)-Big Sandy located in Inez, Kentucky. Cardona has
filed a pro se civil rights complaint [R. 1; as amended at R. 11] in which he asserts
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). Cardona has previously
been granted in forma pauperis status in this proceeding. See R. 13.1
The Court conducts a preliminary review of Cardona’s Bivens 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); 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

The Court has confirmed that on August 8, 2016, Cardona paid the assessed $29.68 initial
partial filing fee assessed in that same Order. As of November 10, 2016, the remaining balance
due on the assessed $350.00 filing fee is $320.32
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immune from such relief. Id. Because he is proceeding without any attorney, the Court
liberally construes Cardona’s claims and accepts his factual allegations as true. Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007).
ALLEGATIONS OF THE COMPLAINT
In his original complaint [R. 1, ¶ 28], and Amended Complaint [R. 11], Cardona
alleged that in August 2014, Defendant “S.” Slone, Administrator of Health Services at USPBig Sandy, to provide medical treatment for Hepatitis “C”, which caused him to suffer
stomach pain and other adverse medical effects. See R. 1; ¶ 28; R. 11, pp. 2-3, ¶¶ 6-13. In
both his original and amended complaints, Cardona further alleged Slone’s “Bonding
Company”—an unidentified entity--is liable for Slone’s alleged acts or omissions with
respect to the denial of his medical needs. He names an “Unknown “Bonding Company” as
defendant to this Bivens action. Cardona seeks unspecified compensatory and punitive
damages from Defendant “S.” Slone and her “Unknown Bonding Company;” an order
requiring Slone to provide him with medication for his Hepatitis “C’ condition; and all other
relief to which he may be entitled.

[R. 11, p. 3]

Cardona’s allegations of deliberate

indifference to his serious medical needs fall under the Eighth Amendment of the U.S.
Constitution, which prohibits cruel and unusual punishment.
DISCUSSION
Having reviewed Cardona’s complaint and amended complaint, the Court will require
Defendant “S.” Slone, Health Administrator at USP-Big Sandy, in her individual capacity, to
respond to Cardona’s Eighth Amendment Bivens claims alleging deliberate indifference to
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his serious medical needs set forth in his original and amended complaints. Cardona’s
Eighth Amendment claims asserted against Slone in her official capacity, will, however, be
dismissed with prejudice for failure to state a claim upon which relief can be granted, see 28
U.S.C. § 1915(e)(2)(ii), because a Bivens claim alleging a constitutional violation may not be
asserted against federal officers in their official capacities; such claims may only be asserted
against a federal officials in their individual capacities. Meyer, 510 U.S. at 484-86; Okoro,
63 F. App’x at 184 (citing Berger v. Pierce, 933 F.2d 393, 397 (6th Cir. 1991)); Blakely v.
United States, 276 F.3d 853, 870 (6th Cir. 2002) (federal employees sued in their official
capacity are immune from suit unless sovereign immunity has been expressly waived).
Cardona, a seasoned prisoner litigator, creatively alleges that an unidentified
“Bonding Company” is vicariously liable for Slone’s alleged acts, omissions, and
constitutional violations. No such “Unknown Bonding Company” exists; Slone is a federal
official employed in an administrative capacity at a federal prison, which means that she
works for the BOP, and hence, for the United States of America. The Court construes
Cardona’s claims against the defendant “Unknown Bonding Company” as an Eighth
Amendment Bivens claim for damages against the United States of America and/or the BOP.
That construed claim will be dismissed because a federal civil rights action can be
brought only against individual federal officials, not against the United States or its agencies.
Shaner v. United States, 976 F.2d 990, 994 (6th Cir. 1992); Fed. Deposit Ins. Corp. v. Meyer,
510 U.S. 471, 484–86, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (a Bivens claim may not be
brought against a federal agency); Okoro v. Scibana, 63 F. App’x 182, 184 (6th Cir. 2003).
Indeed, the United States is immune from suit unless sovereign immunity has been waived.
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United States v. Dalm, 494 U.S. 596, 608 (1990); Loeffler v. Frank, 486 U.S. 549, 554
(1988); see also United States v. Mitchell, 463 U.S. 206, 212 (1983) (“It is axiomatic that the
United States cannot be sued without its consent and that the existence of consent is a
prerequisite for jurisdiction.”).
A waiver of sovereign immunity must be clear and unequivocally expressed. United
States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); United States v. Nordic
Village Inc., 503 U.S. 30, 33–34 (1992). It has long been established that the United States
has not waived its immunity to suits asserting Bivens claims. Lundstrum v. Lyng, 954 F.2d
1142, 1146 (6th Cir.1991) (per curiam) (“A Bivens action may not be maintained against the
United States.”); Fagan v. Luttrell, No. 97-6333, 2000 WL 876775, at *3 (6th Cir. June 22,
2000) (“Bivens claims against the United States are barred by sovereign immunity. The
United States has not waived its immunity to suit in a Bivens action.”) (citation omitted).
Cardona’s claims seeking monetary damages from the United States and the BOP will be
dismissed with prejudice because these substituted defendants are immune from such claims.
28 U.S.C. § 1915(e)(2)(iii).
In summary, Cardona’s construed Eighth Amendment Bivens claims seeking damages
from the United States of America and/or the Bureau of Prisons (“BOP”) will be dismissed
with prejudice at this stage of the proceeding (preliminary review), because the United States
and the BOP are immune from such claims. 28 U.S.C. § 1915(e)(2)(iii). The Clerk of the
Court will be directed to terminate the “Unknown Bonding Company” as a defendant to this
action, and to substitute “the United States of America” and the BOP in its place. The Court
will dismiss with prejudice Cardona’s construed Eighth Amendment Bivens claims against
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the United States, the BOP, and Defendant “S.” Slone, in her official capacity, but will direct
the United States Marshals Service (“USMS”) for the Eastern District of Kentucky to serve
Defendant “S.” Slone, Administrator of Health Services at USP-Big Sandy (in her individual
capacity), with the summons, complaint, amended complaint and other necessary documents
on Cardona’s behalf, in accordance with the instructions set forth below. Fed. R. Civ. P.
4(c)(3); 28 U.S.C. § 1915(d).
CONCLUSION
Accordingly, IT IS ORDERED that:
1.

The Clerk of the Court shall TERMINATE, on the CM/ECF cover sheet, the

“Unknown Bonding Company” as a defendant to this proceeding, and shall SUBSTITUTE
“the United States of America” and the BOP, in place of the “Unknown Bonding Company.”
2.

Plaintiff Jose Cristobal’s construed Eighth Amendment deliberate indifference

claims against the substituted defendants, the United States of America and the BOP, are
DISMISSED WITH PREJUDICE, because the United States and the BOP are immune
from claims for damages based upon alleged constitutional violations.

28 U.S.C. §

1915(e)(2)(iii).
3.

Cardona’s Eighth Amendment deliberate indifference claims asserted against

Defendant “S.” Slone, Administrator of Health Services at USP-Big Sandy, in her official
capacity, are DISMISSED WITH PREJUDICE for failure to state a claim upon which
relief can be granted. 28 U.S.C. § 1915(e)(2)(ii).
4.

Cardona’s Eighth Amendment Bivens claims against Defendant “S.” Slone,

Administrator of Health Services at USP-Big Sandy, in her individual capacity, shall
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proceed, and Slone must respond to the claims asserted in Cardona’s complaint [R. 1, ¶ 28]
and amended complaint [R. 11].
5.

A Deputy Clerk in the Pikeville Clerk’s Office shall prepare a “Service

Packet” for Defendant “S.” Slone, Administrator of Health Services at USP-Big Sandy, and
the Service Packet shall include:
(a)
(b)
(c)
(d)
(e)
(f)
6.

a completed summons form;
the Complaint [R. 1] and all attachments thereto;
the Amended Complaint [R. 11] and all attachments thereto;
the Orders entered as R. 7 (May 6, 2016) and R. 13 (June 13, 2016)
this Order; and
a completed USM Form 285.

The Pikeville Deputy Clerk shall send the Service Packet to the USMS in

Lexington, Kentucky.
7.

The USMS shall serve Defendant “S.” Slone, Administrator of Health Services

at USP-Big Sandy, 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 Defendant “S.” Slone, Administrator of

Health Services at USP-Big Sandy, by certified or registered mail to the Office of the
Attorney General of the United States in Washington, D.C.; or
(c).

Personally serving Defendant “S.” Slone, Administrator of Health

Services at USP-Big Sandy, with a Service Packet through arrangement with the BOP.

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8.

The USMS is responsible for ensuring that Defendant “S.” Slone,

Administrator of Health Services at USP-Big Sandy, is successfully served with process. In
the event that an attempt at service upon her 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 Pikeville Clerk’s Office, which the Deputy Clerk shall file in the
record, which states whether service has been accomplished with respect to Defendant “S.”
Slone, Administrator of Health Services at USP-Big Sandy.
(a).

If Defendant “S.” Slone, Administrator of Health Services at USP-Big

Sandy is 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 Defendant “S.” Slone, Administrator of Health Services at USP-Big

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

10.

that Slone was successfully served personally, or
a statement explaining why Slone could not be served
and what efforts are being taken to locate the defendant and
accomplish personal service on her.

Cardona must immediately advise the Pikeville Clerk’s Office of any change

in his current mailing address. Failure to do so may result in dismissal of this case. Cardona
must communicate with the Court solely through notices or motions filed with the Pikeville

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Clerk’s Office.

The Court will disregard correspondence sent directly to the

undersigned’s chambers.
11.

With every notice or motion filed with the Court, Cardona 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.
Dated December 19, 2016.

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