Brown v. Hininger et al

Filing 5

Memorandum Opinion: Plaintiff's complaint fails to allege any plausible federal civil rights claim on which relief may be granted under Bivens, and this action is dismissed pursuant to 28 U.S.C. Section 1915(e)(2)(B). This dismissa l is without prejudice to any valid state law claim plaintiff may assert on the facts alleged. The Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this dismissal could not be taken in good faith. (Related Doc. No. 1 ). Judge Sara Lioi on 8/15/2017. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

DAMION BROWN,

PLAINTIFF,

vs.
CEO DAMON HININGER, et al.,

DEFENDANTS.

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CASE NO. 4:17-cv-0075

JUDGE SARA LIOI
MEMORANDUM OPINION

Pro se plaintiff Damion Brown is a federal pretrial detainee housed at the Northeast Ohio
Correctional Center (“NEOCC”). He has filed this in forma pauperis civil rights action pursuant
to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.
Ct. 1999, 29 L. Ed. 2d 619 (1971),1 against the prison warden, twelve employees, and the CEO of
CoreCivic, the private entity that operates the prison. (Doc. No. 1.) He alleges his rights under the
Eighth Amendment have been violated because NEOCC employees failed to protect him from
attacks and harassment by another inmate and thereafter failed to provide him adequate medical
care for his injuries. (Id. at 8-16; 17-19.) He also alleges a First Amendment claim based on
allegations that the warden and two NEOCC officers confiscated documentation and exhibits he
wished to present in this case and in another case in which he brought charges against his attacker.
(Id. at 16-17.)

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Bivens provides federal inmates and detainees with a limited cause of action for federal civil rights violations
analogous to that provided against state actors under 42 U.S.C. § 1983.

For relief, plaintiff seeks compensatory and punitive damages and “a preliminary
injunction against the refusal of NEOCC medical staff to provide him with medical treatment.”
(Id. at 20.)
I. Standard of Review
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365,
102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520, 92 S.
Ct. 594, 30 L. Ed. 2d 652 (1972), federal district courts are required, under 28 U.S.C. §
1915(e)(2)(B), to review all in forma pauperis actions, and to dismiss before service any such
action that the court determines 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) and Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (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 level . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (citations omitted).
II. Analysis
Upon review, the Court finds that plaintiff’s complaint must be dismissed under §
1915(e)(2)(B) because, even liberally construed, it fails to state any cognizable claim under Bivens.
First, plaintiff has failed to state any cognizable claims for damages under Bivens based
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on the Supreme Court’s decision in Minneci v. Pollard, 565 U.S. 118, 132 S. Ct. 617, 181 L. Ed.
2d 606 (2012). In Minneci, the Supreme Court held that a federal prisoner could not assert Bivens’
claims against privately-employed personnel working at a privately-operated federal prison. The
Court held:
where, as here, a federal prisoner seeks damages from privately employed
personnel working at a privately operated 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 . . ., the
prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy
in such a case.
Id. at 131.
The wrongful conduct plaintiff alleges in his complaint—negligent failure to protect him
from an attacker, confiscation and destruction of materials he wished to present in legal cases, and
failure to provide him necessary medical treatment—is all appropriately described as “of a kind
that typically falls within the scope of traditional state law.” Therefore, Minneci controls, and
plaintiff has no cognizable constitutional claim for damages against the defendants, all officials or
employees of a privately-run prison. See, e.g., Camp v. Richardson, No. 11-3128-SAC, 2014 WL
958741, at *1 (D. Kan. Mar. 11, 2014) (dismissing Bivens damages action against employees of a
privately-operated detention center in which the plaintiff alleged that the employees failed to
protect him from an attack by a cellmate and denied him medical and mental health treatment).
Second, to the extent plaintiff’s claim for “a preliminary injunction against the refusal of
NEOCC medical staff to provide him with medical treatment” is not barred by Minneci, his
allegations are insufficient to allege a plausible claim under the Eighth Amendment. Failure to
provide adequate medical treatment to a prisoner violates the Eighth Amendment’s prohibition
against cruel and unusual punishment only when it can be said to result from “deliberate
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indifference” to the prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.
Ct. 285, 50 L. Ed. 2d 251 (1976). To establish a claim, a plaintiff must show both that his medical
condition posed a “substantial risk of serious harm” to him, and that the prison official in question
acted with deliberate indifference to that risk. See Farmer v. Brennan, 511 U.S. 825, 828, 114 S.
Ct. 1970, 128 L. Ed. 2d 811 (1994) (citations omitted). “Deliberate indifference is characterized
by obduracy or wantonness – it cannot be predicated on negligence, inadvertence, or good faith
error.” Reilly v. Vadlamudi, 680 F.3d 617, 624 (6th Cir. 2012) (citation omitted).
Plaintiff’ allegations and exhibits he submits with his complaint indicate he was seen in the
prison medical department several times for his injuries. (See Doc. No. 1 at 17-18, Exs. A and B.)
He was given an X-ray, diagnosed with a concussion, and prescribed pain medication. The plaintiff
contends the treatment he has been provided is inadequate and that he is “not receiving the care he
needs.” (Id. at 19.) But it is well-established that “differences in judgment between an inmate and
prison medical personnel regarding the appropriate medical diagnosis or treatment are not enough
to state a deliberate indifference claim.” Ward v. Smith, 100 F.3d 958, 1996 WL 627724, at *1 (6th
Cir. Oct. 29, 1996). Rather, whereas here, “a prisoner has received some medical attention and the
dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess
medical judgments and to constitutionalize claims which sound in state tort law.” Westlake v.
Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976) (citations omitted).
Even assuming plaintiff’s allegations are sufficient to suggest a plausible claim for
negligence or medical malpractice under state tort law, they are insufficient to suggest he has been
subjected to cruel and unusual punishment within the meaning of the Eighth Amendment.

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III. Conclusion
Accordingly, for the reasons stated above, plaintiff’s complaint fails to allege any plausible
federal civil rights claim on which relief may be granted under Bivens, and this action is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B). This dismissal is without prejudice to any valid state law
claim plaintiff may assert on the facts alleged. The Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that an appeal from this dismissal could not be taken in good faith.
IT IS SO ORDERED.

Dated: August 15, 2017
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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