Schabert et al v. Nichols et al
Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's request to proceed in forma pauperis is granted and this action is dismissed under 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 7/28/2017. (JLG)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
JONATHON E. SCHUBERT,
HEALTH ADMIN. HIVNER, et al.,
CASE NO. 4:17CV0512
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 2]
Pro se Plaintiff Jonathon E. Schubert was formerly an federal inmate at the Northeast
Ohio Correctional Center, a privately held prison owned by Corrections Corporation of America
(CCA). He brings this in forma pauperis Eighth Amendment claim against Defendants CCA
Health Administrator Ms. Hivner, and CCA physicians James Nichols and Gary Kraker.
Plaintiff asserts in the Complaint that Defendants were deliberately indifferent to his medical
condition—Chron’s Colitis—because they did not provide timely examinations or sufficient and
timely medications, thus causing him extreme pain and suffering. ECF No. 1.
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam), the district court is required to dismiss an action under 28 U.S.C. §
1915(e) if it fails to state a claim upon which relief may be granted, or if it lacks an arguable
basis in law or fact.1 Neitzke v. Williams, 490 U.S. 319 (1989); Hill v. Lappin, 630 F.3d 468, 470
(6th Cir. 2010).
Even assuming Plaintiff set forth otherwise sufficient allegations to sustain a
constitutional claim based on deliberate indifference to his medical needs, such a claim is not
cognizable under Minneci v. Pollard, 565 U.S. 118 (2012). In Minneci, the Supreme Court held
a federal prisoner could not assert a Bivens2 claim for deliberate indifference to serious medical
needs under the Eighth Amendment because California state tort law provided an alternative,
existing process capable of protecting the constitutional interests at stake. Id. at 131. In so
holding, 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. Id. at 128. The Court also stated that “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 (such as the conduct
An in forma pauperis claim may be dismissed sua sponte, without prior notice to the
plaintiff and without service of process on the defendant, if the court explicitly states that
it is invoking 28 U.S.C. § 1915(e) [formerly 28 U.S.C. § 1915(d)] and is dismissing the
claim for one of the reasons set forth in the statute. Chase Manhattan Mortg. Corp. v.
Smith, 507 F.3d 910, 915 (6th Cir. 2007); Gibson v. R.G. Smith Co., 915 F.2d 260, 261
(6th Cir. 1990); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986).
Bivens v. Six Unknown Agents, 403 U.S. 383 (1971).
involving improper medical care at issue here), the prisoner must seek a remedy under state tort
law.” Id. at 131.
Therefore, even construing the Complaint liberally in a light most favorable to the
Plaintiff, it does not state a valid federal claim. See Brand v. Motley, 526 F.3d 921, 924 (6th Cir.
2008). Accordingly, the request to proceed in forma pauperis is granted and this action is
dismissed under 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.
July 28, 2017
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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