United States District Court, Eastern District of Arkansas, Eastern Division
November 5, 2014
CALVIN D. STRANGE, Jr., PLAINTIFF
UNITED STATES OF AMERICA, et al., DEFENDANTS
Calvin D Strange, Jr, Reg #20832-075, Plaintiff, Pro se, Nashville, TN.
PROPOSED FINDINGS AND RECOMMENDED PARTIAL DISPOSITION INSTRUCTIONS
J. Thomas Ray, UNITED STATES MAGISTRATE JUDGE.
The following partial recommended disposition has been sent to Chief United States District Judge Brian S. Miller. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections, include a " Statement of Necessity" that sets forth the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.
3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.
From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and " Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
Plaintiff, Calvin Strange, Jr., brings this action alleging that Defendants violated his constitutional rights during his incarceration at Federal Correctional Institution, Forrest City (" FCI Forrest City"). Doc. 2 . Specifically, Plaintiff alleges that Defendants exhibited deliberate indifference to his serious medical needs during his time at the facility. Id. The Court has reviewed Plaintiff's Complaint and determined that, for screening purposes only, he has stated viable claims against Defendants Hoy and Wingo. It also finds, however, that he has failed to state a claim upon which relief can be granted as to Defendants United States of America, Bureau of Prisons, C.V. Rivera, Rincon, and Doe.
The Prison Litigation Reform Act (PLRA) requires federal courts to screen prisoner complaints seeking relief against a governmental entity, officer, or employee. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that: (a) are legally frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
An action is frivolous if " it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Whether a plaintiff is represented by counsel or is appearing pro se, his complaint must allege specific facts sufficient to state a claim. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985).
An action fails to state a claim upon which relief can be granted if it does not plead " enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The factual allegations must be weighted in favor of Plaintiff. Denton v. Hernandez, 504 U.S. 25, 32, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). " In other words, the § 1915(d) frivolousness determination, frequently made sua sponte before the defendant has even been asked to file an answer, cannot serve as a fact-finding process for the resolution of disputed facts." Id.
In his Complaint, Plaintiff asserts a Bivens action against all Defendants in both their individual and official capacities. Doc. 2 at 15 . As relief, he seeks only monetary damages. Id.
Plaintiff alleges that, during his incarceration in FCI Forrest City, he was prescribed medication for liver disease. Id. at 10 . He claims that, beginning in November 2013, he made medical staff aware that he was not receiving all of his necessary medication. Id. Plaintiff alleges that he attempted to resolve the issue informally by communicating with Defendants Hoy and Wingo, but was unable, despite their assurances, to actually secure appropriate medication for his condition. Id. at 11-12 . He states that, in the absence of medication, he suffered increased pain from disc herniations and experienced headaches caused by elevated ammonia levels in his blood. Id. at 12 . The Court concludes, for screening purposes only, that Plaintiff has stated viable claims against Defendants Hoy and Wingo.
For the reasons discussed below, the Court concludes that all other named Defendants should be dismissed, without prejudice.
A. Defendant United States of America
Plaintiff names the United States of America as a defendant. The United States does not waive sovereign immunity for claims asserted against it in a Bivens action. Laswell v. Brown, 683 F.2d 261, 268 (8th Cir. 1982). Rather, Bivens implies a cause of action only against federal officials. Id. Plaintiff has made it unequivocally clear that, in this Bivens action, he seeks only money damages. Doc. 2 at 1, 15 . As such, the Court finds that his claims against the United States of America are barred by sovereign immunity. Therefore, as a matter of law, Plaintiff has failed to state a claim upon which relief can be granted as to this defendant.
B. Defendant Bureau of Prisons
Plaintiff also names the Bureau of Prisons as a Defendant. The United States Supreme Court has explicitly held that a Bivens action cannot be brought against federal agencies. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (" If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP."). Therefore, the Court recommends that Plaintiff's claims against the Bureau of Prisons be dismissed for failure to state a claim upon which relief can be granted.
C. Defendant CV Rivera
Plaintiff names CV Rivera, Warden of FCI Forrest City, as a Defendant. He does not allege, however, that Defendant Rivera was in any way involved with his medical treatment. Rather, Defendant Rivera is mentioned in the Complaint only with respect to his role in the administrative remedy process. Doc. 2 at 14 . Specifically, Plaintiff claims that an administrative remedy was denied because it failed to include a copy of Defendant Rivera's signed response. Id. This issue is entirely separate from Plaintiff's deliberate indifference claims and does not, based on the allegations presented, amount to a constitutional or statutory violation.
To the extent Plaintiff seeks to hold Defendant Rivera liable based on his supervisory position as warden, such a claim also fails. Bivens liability cannot be established based solely on a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Plaintiff makes no allegations that Defendant Rivera, through his own actions, violated Plaintiff's constitutional or statutory rights. Thus, because Plaintiff has failed to state a viable § 1983 claim against Defendant Rivera, the Court recommends that he be dismissed as a Defendant.
D. Defendants Rincon and Doe
While Plaintiff names Rincon and Doe as Defendants, they receive no mention in any of the claims he has asserted. Because no specific and discernable claims have been alleged allegations against them, the Court concludes that both of these Defendants should be dismissed, without prejudice.
IT IS THEREFORE RECOMMENDED THAT:
1. Plaintiff be allowed to proceed with his inadequate medical care claims against Defendants Hoy and Wingo.
2. Plaintiff's claims against Defendants United States of America, Bureau of Prisons, CV Rivera, Rincon, and Doe be DISMISSED, without prejudice, for failure to state a claim upon which relief can be granted.
3. The Court CERTIFY, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from any Order adopting this Recommended Partial Disposition would not be taken in good faith.