Bush v. Corrections Corporation of America et al

Filing 4

Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion to Proceed In Forma Pauperis (ECF No. 2 ) is granted, and this action is dismissed pursuant to 28 U.S.C. § 1915(e). The dismissal is without prejudice to any valid state law claim Plaintiff may have under the facts alleged. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Benita Y. Pearson on 6/16/2016. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RICHARD ARNOLD BUSH,
Plaintiff,
v.
CORRECTIONS CORPORATION OF
AMERICA, et al.,
Defendants.

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CASE NO. 4:16CV0596

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER
[Resolving ECF No. 2]

Pro Se Plaintiff Richard Arnold Bush filed this Bivens1 action against Corrections
Corporation of America (“CCA”);2 NEOCC; NEOCC Clinical Supervisor Lacey Steepleton; and,
NEOCC Acting Warden Dennis Johnson. Plaintiff was a federal inmate incarcerated at NEOCC
at all times relevant to this action.3 In the Complaint (ECF No. 1), Plaintiff alleges his

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Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971) provides federal inmates and detainees with a cause of action analogous to 42
U.S.C. § 1983.
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A private corporation that owns and operates the Northeast Ohio Correctional
Center (“NEOCC”).
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According to the Bureau of Prisons (“BOP”) website
(http://www.bop.gov/inmateloc/ (last visited June 15, 2016)), Plaintiff is currently not in
BOP custody.
Plaintiff has failed to provide the court with his current address. It is the party,
not the court, who bears the burden of apprising the court of any changes to his mailing
address. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (citing Casimir v.
Sunrise Fin., Inc., 299 Fed.Appx. 591, 593 (7th Cir. 2008) (affirming district court’s
denial of Rule 60(b) motion when movants claimed due to house fire they did not receive
mail informing them of court’s entry of summary judgment); Soliman v. Johanns, 412
(continued...)

(4:16CV0596)
constitutional rights were violated while he was a detainee at NEOCC because he was not given
his daily dose of insulin during his 2015 criminal trial in the Western District of Pennsylvania.
He seeks injunctive and monetary relief. For the reasons stated below, Plaintiff’s action is
dismissed pursuant to 28 U.S.C. § 1915(e).
I. Standard for Dismissal
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it is frivolous or
malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.
In order to state a claim on which relief may be granted, a pro se complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.
See Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010) (holding that the dismissal standard
articulated in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S.
544 (2007), governs dismissals for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)). The
factual allegations in the pleading “must be enough to raise a right to relief above the speculative

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(...continued)
F.3d 920, 922 (8th Cir. 2005) (“[A] litigant who invokes the processes of the federal
courts is responsible for maintaining communication with the court during the pendency
of his lawsuit.”); Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th Cir. April
20, 1987) (affirming dismissal for failure to prosecute when appellant failed to provide
district court with “current address necessary to enable communication with him”)).
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level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. at 555.
II. Law and Analysis
Assuming arguendo that Plaintiff’s allegations are sufficient to characterize a
constitutional claim(s), he has not alleged a cognizable Bivens claim in the case at bar under the
Supreme Court’s decisions in Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001), and
Minneci v. Pollard, --- U. S. ---- , 132 S. Ct. 617 (2012). In Malesko, the Supreme Court held
that a private corporation that operates a federal prison cannot be sued for damages under Bivens.
The Court reasoned that the purpose of Bivens is to deter individual federal officials, not entities
such as the United States or its agencies, the Bureau of Prisons, or private entities that operate
federal prisons, from committing violations of constitutional rights. Accordingly, pursuant to
Malesko, Plaintiff has not alleged a cognizable federal Bivens claim against either CCA or
NEOCC. Malesko, 534 U.S. at 70-74.
Furthermore, in Minneci, the Supreme Court held that a federal prisoner could not assert a
Bivens claim against individual employees of a private prison because state tort law provided an
alternative existing process capable of protecting the constitutional interests at stake in such
instance. The Court noted it had “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,”
including Ohio. Minneci, 132 S. Ct. 617, 624-25. The Court held “where, as here, a federal
prisoner seeks damages from privately employed personnel working at a privately operated

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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” and may not pursue relief under Bivens. Id. at 626. Thus, under
Minneci, Plaintiff has not alleged a cognizable Bivens claim against NEOCC Clinical Supervisor
Lacey Steepleton or NEOCC Acting Warden Dennis Johnson as his allegations pertaining to his
medical care fall within the purview of state tort law.
III. Conclusion
Accordingly, Plaintiff’s Motion to Proceed In Forma Pauperis (ECF No. 2) is granted,
and this action is dismissed pursuant to 28 U.S.C. § 1915(e). The dismissal is without prejudice
to any valid state law claim Plaintiff may have under the facts alleged. The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good
faith.

IT IS SO ORDERED.

June 16, 2016
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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