Banks v. Rosado et al

Filing 11

Memorandum of Opinion and Order For the reasons set forth herein, Defendants CO Rosado, Ms. Slattery, Ms. Scott, CO Giles, and CEO Damon Hininger's Motion to Dismiss the Complaint (ECF No. 3 ) is granted with respect to Plaintiff's federal constitutional claims; Plaintiff Frederick Banks' Motion for Sanctions (ECF No. 7 ) is denied; and Plaintiff's remaining state-law negligence claims are remanded to state court. The Court further 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 4/24/2018. (JLG)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

FREDERICK BANKS,

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Plaintiff,
v.
CO ROSADO, et al.,
Defendants.

CASE NO. 4:17CV2499

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER
[Resolving ECF Nos. 3 and 7]

Pending before the Court are Defendants CO Rosado, Ms. Slattery, Ms. Scott, CO Giles,
and CEO Damon Hininger’s Motion to Dismiss (ECF No. 3) and Plaintiff Frederick Banks’s
Motion for Sanctions (ECF No. 7).
For the reasons stated below, Defendants’ Motion to Dismiss is granted with respect to
Plaintiff’s federal claims; Plaintiff’s Motion for Sanctions is denied; and Plaintiff’s state-law
negligence claims are remanded to state court.
I. Background
Pro se Plaintiff Frederick Banks, a prisoner incarcerated in the Northeastern Ohio
Correctional Center (NEOCC) who has filed numerous frivolous cases in this and other courts,
filed this removed action against a number of employees of NEOCC and CoreCivic, the private
corporation that owns and operates the prison, in the Mahoning Court of Common Pleas. See
ECF No. 1-1. Seeking primarily monetary relief, he alleges two causes of action. Count I alleges

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a federal cause of action against the Defendants under the First Amendment and Fourteenth
Amendments on the basis that prison employees refused to allow him to receive a “Graphic
Novel” he ordered because it was pornographic. Id. at PageID #: 13. Plaintiff contends the novel
is not pornographic and that the Defendants discriminated against him in refusing to allow him to
receive it. Id. Count II alleges state-law negligence arising from alleged conduct of two
Defendants: Corrections Officers Giles and Rosado. Id. at PageID #: 14.
Defendants have filed a Motion to Dismiss the Complaint pursuant to Federal Rule of
Procedure 12(b)(6). ECF No. 3. Plaintiff has responded to the Motion (ECF No. 6) and filed a
Motion for Rule 11 (and other) Sanctions (ECF No. 7).
II. Standard of Review
A complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state a
claim on which relief can be granted. In deciding a motion to dismiss, the Court presumes the
complaint’s factual allegations are true and draws all reasonable inferences in the non-moving
party’s favor. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552
F.3d 430, 434 (6th Cir. 2008). In order to survive a dismissal, “the complaint must present
‘enough facts to state claim to relief that is plausible on its face.’” Id., citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544 (2007).
Although pro se pleadings are liberally construed and held to less stringent standards than
pleadings drafted by lawyers (see Haines v. Kerner, 404 U.S. 519, 520 (1972)), “the lenient
treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413,
416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). Even a pro se
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complaint must meet basic pleading requirements, and to survive a motion to dismiss, it must set
forth sufficient facts to state a claim to relief that is plausible on its face. See Barnett v. Luttrell,
414 F.App'x 784, 786 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
III. Discussion
Upon review, the Court finds Plaintiff has not alleged any plausible federal claim on
which the Court may grant relief in this case, but for reasons other than those argued by the
Defendants. To the extent Plaintiff seeks relief for federal constitutional violations based on
Defendants’ refusal to allow him to receive the graphic novel he ordered, Plaintiff does not set
forth allegations suggesting state action, and he does not have any recourse against Defendants
under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), which provides a limited cause of
action for constitutional rights violations against federal government employees and agents
analogous the remedy afforded against state actors under 42 U.S.C. § 1983.
Defendants are all employees of NEOCC, a private prison, or CoreCivic, a private
corporation that owns and operates NEOCC. The Supreme Court has held that privatelyemployed personnel working in a privately-operated prison may not be sued for certain
constitutional rights violations under Bivens. See Minneci v. Pollard, 565 U.S. 118, 132 S.Ct.
617, 622-23 (2012).
Additionally, the Supreme Court has recently held that implying a cause of action against
federal employees and agents under Bivens is “now a ‘disfavored’ judicial activity.” Ziglar v.
Abbasi, 137 S.Ct. 1843, 1857 (2017). Ziglar instructs that, due to separation-of-powers
concerns, “a Bivens remedy will not be available if there are ‘special factors counselling [sic]
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hesitation in the absence of affirmative action by Congress.’” Id., quoting Carlson v. Green, 446
U.S. 14, 18 (1980). In Howard v. Lackey, Case No. 7:16CV129, 2018 WL 1211113, at *3 (E. D.
Ky. Mar. 7, 2018), the district court found that special factors counseled hesitation from implying
a Bivens remedy in the context of a prisoner’s claim that prison personnel violated his
constitutional rights by confiscating his mail.
In Howard, the Court held that implying a Bivens remedy in the context of a plaintiff’s
claims (which the court found arose under the First Amendment) was unwarranted in light of the
fact that the Supreme Court has never previously recognized a Bivens remedy under the First
Amendment in any context; the plaintiff had other avenues for relief for the violation he alleged,
including through the BOP’s administrative remedy process; and because extending Bivens
liability in the context alleged would impose substantial costs on the government and potentially
increase the filing of frivolous prisoner lawsuits. See id. The Court reasoned that Congress, not
the courts, was best suited to evaluate whether relief should be permitted in the circumstances.
The Court agrees with the reasoning and analysis in Howard and finds that the same
factors articulated also counsel hesitation in extending a Bivens remedy to the federal
constitutional claims Plaintiff alleges in this case. For the reasons articulated in Howard, Bivens
does not extend to provide an available remedy to Plaintiff in connection with his claims that
prison employees or officials violated his federal constitutional rights in refusing to allow him to
receive the graphic novel he ordered.

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Accordingly, Plaintiff’s Complaint does not allege any plausible federal constitutional
claim on which the Court may grant relief. Therefore, Defendants’ Motion to Dismiss is granted
with respect to Plaintiff’s alleged federal claims.
There is no independent basis for the Court to exercise subject-matter jurisdiction over
Plaintiff’s remaining state-law negligence claims, as Defendants’ Notice of Removal indicates
the citizenship of the parties is not completely diverse. See ECF No. 1 at PageID #: 1-2. In light
of the dismissal of Plaintiff’s federal claims at this early stage, the Court declines to exercise
supplemental jurisdiction over Plaintiffs’ state-law claims and will remand them to state court
where they are better resolved. See Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d 1244,
1254–1255 (6th Cir. 1996) (“When all federal claims are dismissed before trial, the balance of
considerations usually will point to dismissing the state law claims, or remanding them to state
court if the action was removed.”).
Finally, Plaintiff’s Motion for Sanctions is denied, as the Court finds no basis to impose
the sanctions sought on the Defendants.
IV. Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss the Complaint Pursuant to
Federal Rule of Procedure 12(b)(6) is granted with respect to Plaintiff’s federal constitutional
claims; Plaintiff’s Motion for Sanctions is denied; and Plaintiff’s remaining state-law negligence
claims are remanded to state court.
The Court further certifies, pursuant to 28 U.S.C. §1915(a)(3), that an appeal from this

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decision could not be taken in good faith.

IT IS SO ORDERED.

April 24, 2018
Date

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

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