Moshir v. Minehart et al

Filing 7

Memorandum of Opinion and Order dismissing this action pursuant to 28 U.S.C. §1915A. 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(related doc 1 ). Judge Benita Y. Pearson on 11/17/2017 (C,KA)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALI MOSHIR,
Plaintiff,
v.
OFFICER MINEHART, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 4:17CV1458

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION
AND ORDER

Pro se Plaintiff Ali Moshir filed this civil rights action against Corrections Corporation
of America (“CCA”)/Core Civic, the Northeast Ohio Correctional Center (“NEOCC”), NEOCC
Officer Minehart, the NEOCC Warden, the United States Government, the United States
Marshal Service, the State of Ohio, Mahoning County, and “any other could be/would be added
at any point as deemed.” ECF No. 1. In the Complaint, Plaintiff alleges Officer Minehart
assigned him to a top bunk on the second floor despite his medical conditions. He seeks two
billion dollars in damages.
I. Background
Plaintiff’s Complaint is very brief. His claim, in its entirety, states:
July.06.2016 + July 27.2016 + What I don’t remember Officer
Minehart and any other booking/housing/etc, Associate kept housing
me on the top bunk, yet! on a/the second floor! with my/the medical
condition(s) as obvious as they were!!! Putting me through pain,
suffering agony repeatedly!!! In addition to already existing medical
conditions, pains, and sufferings.
Id. at PageID #: 5. He does not specify the legal claim he attempts to assert against Defendants.

(4:17CV1458)
II. Standard for Dismissal
A District Court is expressly authorized to dismiss any civil action filed by a prisoner
seeking relief from a governmental entity, as soon as possible after docketing, if the Court
concludes that the complaint fails to state a claim upon which relief may be granted, or if the
plaintiff seeks monetary relief from a cefendant who is immune from such relief. 28 U.S.C.
§1915A; Siller v. Dean,205 F.3d 1341 (Table), 2000 WL 145167, at *2 (6th Cir. Feb. 1, 2000);
see Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (citing numerous Supreme Court cases for
the proposition that attenuated or unsubstantial claims divest the District Court of jurisdiction);
In re Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988) (recognizing that federal question
jurisdiction is divested by unsubstantial claims).
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in the Complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). The factual allegations in the
pleading must be sufficient to raise the right to relief above the speculative level on the
assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. A
plaintiff is not required to include detailed factual allegations, but must provide more than “an
unadorned, the-Defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A
pleading that offers legal conclusions or a simple recitation of the elements of a cause of action
will not meet this pleading standard. Id. In reviewing a complaint, the Court must construe the
pleading in the light most favorable to the plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151

2

(4:17CV1458)
F.3d 559, 561 (6th Cir. 1998).
III. Law and Analysis
As an initial matter, the United States, the United States Marshal Service, and the State of
Ohio are immune from suit. The United States, as a sovereign, cannot be sued without its prior
consent, and the terms of its consent define the Court’s subject matter jurisdiction. McGinness v.
U.S., I.R.S., 90 F.3d 143, 145 (6th Cir. 1996). A waiver of sovereign immunity must be strictly
construed, unequivocally expressed, and cannot be implied. U.S. v. King, 395 U.S. 1, 4 (1969);
Soriano v. U.S., 352 U.S. 270, 276 (1957). The United States government has not consented to
suit in Bivens actions. Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991). The Eleventh
Amendment provides sovereign immunity to the State of Ohio. Latham v. Office of Atty. Gen. of
State of Ohio, 395 F.3d 261, 270 (6th Cir. 2005).
Plaintiff does not allege any wrong-doing by Mahoning County or the NEOCC
Warden. He cannot establish the liability of any Defendant absent a clear showing that the
Defendant was personally involved in the activities which form the basis of the alleged
unconstitutional behavior. Rizzo v. Goode, 423 U.S. 362, 371 (1976); Mullins v. Hainesworth,
66 F.3d 326 (Table), 1995 WL 559381 (6th Cir. Sept. 20, 1995). A municipality can only be
held liable when it unconstitutionally “implements or executes a policy statement, ordinance,
regulation, or decision officially adopted by that body’s officers.” See Monell v. Department of
Soc. Servs., 436 U.S. 658, 690 (1978). Plaintiff does not allege any facts suggesting how
Mahoning County, or the NEOCC Warden were involved in assigning him to a top bunk on the
second floor at NEOCC.

3

(4:17CV1458)
Additionally, Plaintiff cannot bring a Bivens claim against NEOCC or CCA. Bivens
provides a limited cause of action against individual federal government officers acting under
color of federal law alleged to have acted unconstitutionally. Correctional Services Corporation
v. Malesko, 534 U.S. 61, 70 (2001). Bivens’ purpose is to deter individual federal officers, not
the agency, from committing constitutional violations. A Bivens action, therefore, cannot be
brought against an entity such as a federal prison, the Bureau of Prisons, or the United States
Government. Id.
CCA, now known as Core Civic, owns and operates NEOCC, a private corporation. To
avoid imposing asymmetrical liability costs on private prison facilities, the Supreme Court
declined to expand Bivens to provide this cause of action against a private prison corporation.
Id. at 70-74 (holding that when a prisoner in a Bureau of Prisons facility alleges a constitutional
deprivation, his only remedy lies against the offending individual officer).
The Supreme Court also declined to extend Bivens to the employees of a private prison
under certain circumstances. Minneci v. Pollard, 565 U.S. 118, 131 (2012). “A federal prisoner
seeking 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
conduct involving the negligent or purposeful causation of pain due to the top bunk assignment),
must seek a remedy under state tort law.” Id. A Bivens remedy cannot be implied. Therefore,
Plaintiff’s Bivens claims against NEOCC Officer Minehart fail to state a claim upon which relief
may be granted.

4

(4:17CV1458)
IV. Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. §1915A. 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.

November 17 , 2017
Date

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

5