Banks v. Larose et al
Filing
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Memorandum of Opinion and Order For the reasons set forth herein, this action is remanded to the Mahoning County Court of Common Pleas, the state court in which it originated. Judge Benita Y. Pearson on 4/25/2018. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDERICK BANKS,
Plaintiff,
v.
WARDEN CHRISTOPHER LAROSE, et
al.,
Defendants.
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CASE NO. 4:17CV2479
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 4]
Defendants removed this action “under 42 U.S.C. § 1983, 28 U.S.C. §§ 1441, 1443,
1446, and to invoke this Court’s original jurisdiction under 28 U.S.C. §§ 1331 and 1332.” ECF
No. 1 at PageID#: 2. Pending is Defendants’ Motion to Dismiss Plaintiff’s Complaint pursuant
to Fed. R. Civ. P. 12(b)(6). ECF No. 4. Plaintiff responded, ECF No. 5, and Defendants replied,
ECF No. 7. For the following reasons, this action will be remanded to the state court.
I. Background
Pro se Plaintiff Frederick Banks filed this Bivens1 action in the Mahoning County Court
of Common Pleas against Defendants Northeast Ohio Correctional Center (“NEOCC”), NEOCC
Warden Christopher LaRose2, NEOCC Computer Services Employee Carey Adamson, NEOCC
Business Office Employee Angela Pastella, NEOCC Business Manager J. Klempay, Core Civic
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2
No. 1-1.
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).
Plaintiff incorrectly identifies Defendant as Warden Charles LaRose. See ECF
(4:17CV2479)
CEO Damon Hininger, and Core Civic. See ECF No. 1-1. In the Complaint, Plaintiff alleges
Defendants violated his constitutional right to equal protection because Defendants failed to
provide him, an inmate in segregation, with access to printers while inmates in the general prison
population have access to four printers. Id. at PageID#: 16
18. Additionally, Plaintiff claims
he ordered photographs from an approved vendor and, although money was deducted from his
account, the vendor did not receive it. Id. Plaintiff contends that Defendants Pastella and
Klempay’s refusal to credit his account amounts to the tort of conversion. Id. Plaintiff seeks
monetary relief. Id. at PageID#: 18
19.
On November 27, 2017, Defendants removed the action on the basis of federal question
jurisdiction, 28 U.S.C. § 1331, and subsequently filed a Motion to Dismiss. See ECF Nos. 1 and
4. Defendants concede diversity of citizenship jurisdiction is not present, as Plaintiff and four
Defendants are citizens of the same state. See ECF No. 1 at PageID#: 1
2. In their motion,
Defendants assert that Plaintiff did not state a claim for denial of equal protection because: (1) he
does not have a fundamental right to have access to a printer, (2) is not a member of a “suspect
class,” and (3) was not treated differently than others without a rational basis. ECF No. 4.
Defendants also contend that they cannot be held liable for conversion because, at best, they owe
Plaintiff the sum of $25.00, and not the specific currency3 deducted from his account, which is
3
Defendants correctly retort, “Plaintiff does not, however, allege that Defendants
Pastella and Klempay owe him specific money i.e., that they owe him the exact $25 that
was deducted from his account but only that they owe him the sum of $25. Nor has
Plaintiff alleged the money was required to be placed in any specific account or location
once it was deducted from his account, to be held pending completion of the order and
returned if the order was rejected or canceled for any reason. Plaintiff has therefore failed
(continued...)
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(4:17CV2479)
required to state a claim for conversion. See id. at PageID#: 48
50. Finally, Defendants assert
that, although Plaintiff named Hininger, NEOCC, and Core Civic as Defendants in this action,
Plaintiff’s Complaint “contains no factual allegations regarding any actions personally
performed” by these Defendants with regard to the constitutional claim. Id. at PageID#: 50
51.
II. Removal
A defendant may remove “any civil action brought in a state court of which the district
courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The Notice of
Removal of a civil action or proceeding must be filed within thirty days after the receipt by the
defendant through service or otherwise of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based. 28 U.S.C. § 1446(b). Moreover, when the
action is removed under § 1441(a), all of the defendants who have been properly served must
join in the removal or consent to it. 28 U.S.C. § 1446(b)(2)(A). Finally, when diversity of
citizenship is the basis for removal, the case cannot be removed from state court if any of the
Defendants are citizens of the state in which the action is brought. 28 U.S.C. § 1441(b)(2).
III. Law and Analysis
Defendants removed this action citing the presence of a federal question in the form of a
Bivens claim for denial of equal protection. See ECF Nos. 1 and 1-1. Because the alleged Bivens
claim is the sole basis for federal jurisdiction, the Court must decide whether Bivens provides a
cause of action, and consequently jurisdiction, in this context.
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(...continued)
to state a claim for conversion.” Id. at PageID#: 48
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50.
(4:17CV2479)
The United States Supreme Court recently clarified that federal courts should refrain from
extending Bivens outside of the three specific contexts in which it has already been applied,
absent the presence of special factors. Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Congress
provided a specific damages remedy for Plaintiffs whose constitutional rights were violated by
state officials through 42 U.S.C. § 1983; however, Congress did not provide a corresponding
remedy for constitutional violations by federal officials. In Bivens, decided in 1971, the Supreme
Court recognized an implied damages action to compensate persons injured by federal officers
who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Since then, the Supreme Court allowed
Bivens remedies in only two other contexts: (1) in a Fifth Amendment gender-discrimination
case, Davis v. Passman, 442 U.S. 228 (1979); and (2) in an Eighth Amendment Cruel and
Unusual Punishments Clause case, Carlson v. Green, 446 U.S. 14 (1980). The Supreme Court
has not approved of an implied damages remedy under the Constitution itself. Ziglar, 137 S.Ct.
at 1855.
In Ziglar, the Supreme Court explained its decision to limit the implied damages remedy
stating that, Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed
that a proper function of the courts was to “provide such remedies as are necessary to make
effective” a statute’s purpose. Id. at 1848 (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433
(1964)). The Supreme Court has since adopted a far more cautious approach, looking instead to
statutory intent to determine whether Congress intended to create a private right of action under
those circumstances. Id. (citing Alexander v. Sandoval, 532 U.S. 275, 286 (2001) and Touche
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(4:17CV2479)
Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)). “Similar caution must be exercised with
respect to damages actions implied to enforce the Constitution itself.” Id. While Bivens is still
well-settled law in its own context, expanding Bivens to new contexts is now “disfavored.”
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Therefore, when a Plaintiff seeks to assert an
implied cause of action under the Constitution, “separation-of-powers principles should be
central to the analysis.” Ziglar, 137 S.Ct. at 1857. Specifically, courts should ask whether
Congress or the judiciary should decide when to authorize a damages suit. Id. (citing Bush v.
Lucas, 462 U.S. 367, 380 (1983)). The Supreme Court states that most often, this question will
be answered in favor of Congress, because the Legislature is in a better position to determine if
the public interest will be better served by creating a “new substantive legal liability.” Id. Bivens
will not be extended to a new context if there are “‘special factors counselling hesitation in the
absence of affirmative action by Congress.’” Id. (quoting Carlson, 446 U.S. at 18). If there are
sound reasons to suppose Congress might doubt the efficacy or necessity of a damages remedy as
part of the system for enforcing the law and correcting a wrong, courts must refrain from creating
that kind of remedy. See id. at 1858. Furthermore, if there is an alternative remedial structure in
place to address a given situation, the court should not infer a new Bivens cause of action. Id.
In this case, Plaintiff seeks to assert an equal protection claim under Bivens based on the
classification of prisoners in segregation versus those who are held in the general prison
population. See ECF No. 1-1. Plaintiff’s claim does not fall under the existing contexts in which
a Bivens remedy has been implied. Furthermore, the Supreme Court has already declined to
extend Bivens to causes of action asserted against private prisons, Correctional Services Corp. v.
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Malesko, 534 U.S. 61, 68 (2001), and employees of private prisons when a remedy exists under
state law to address the injury, Minneci v. Pollard, 565 U.S. 118, 120 (2012). Therefore, given
the Supreme Court’s decision in Zigler, and its decisions in Malesko and Minnecci, the Court
will not imply a damages remedy under Bivens in this context.4
Without a Bivens claim to provide a federal cause of action, the Court lacks subject
matter jurisdiction to consider Plaintiff’s claims. Defendants acknowledge that diversity of
citizenship is not complete. Even if it were, the case is not removable on that basis because
Defendants LaRose, Adamson, Pastella and Klempay are citizens of Ohio, the state in which this
Court is located. 28 U.S.C. § 1441(b)(2) (an action is not removable solely on the basis of
diversity jurisdiction if any of the Defendants is a citizen of the state in which the action is
brought). Absent an identified federal cause of action, this Court lacks jurisdiction over
Plaintiff’s case.
IV. Conclusion
For the reasons set forth above, this action is remanded to the Mahoning County Court of
Common Pleas, the state court in which it originated.
IT IS SO ORDERED.
April 25, 2018
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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The Court does not express an opinion as to whether Plaintiff has a viable cause
of action under state law.
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