United States District Court, D. Kansas
MEMORANDUM AND ORDER
SAM A. CROW, District Judge.
In this pro se complaint filed pursuant to Bivens,  plaintiff seeks money damages for injuries sustained at a privately-run detention center where he was allegedly attacked by his cellmate and thereafter denied medical and mental health treatment. The court previously screened plaintiff's First Amended Complaint (Doc. 11), and entered an Order finding that this action should be summarily dismissed because plaintiff has no cause of action under Bivens against the CCA employees. The court further found that plaintiff's allegations, even if cognizable under Bivens, l failed to state a federal constitutional claim. Plaintiff was given the opportunity to show cause why this action should not be dismissed. He first filed an Interlocutory Appeal, which was summarily dismissed (Doc. 18) because no final order had been entered. He then filed a response "to save his suit." To determine whether or not plaintiff has shown good cause, the court has reviewed plaintiff's Response (Doc. 20) and his Amended Complaint (Doc. 10) with attachments, together with his Motion to Modify and Clarify the Record (Doc. 12) and his Memorandum in Opposition to Dismissal, as requested. The court concludes that plaintiff has not shown good cause and dismisses this action without prejudice for failure to state a federal cause of action and failure to state a federal constitutional claim.
ALLEGATIONS AND CLAIMS
Joseph Camp filed this action in July 2011, while he was a pretrial detainee at the Leavenworth Detention Center, Leavenworth, Kansas, which is operated by Corrections Corporation of America (CCA), a private corporation. He generally asserted jurisdiction under 28 U.S.C. § 1331 and Bivens while also listing 42 U.S.C. § 1983, and claimed cruel and unusual punishment along with denial of Due Process. The following defendants are sued in both their official and individual capacities: Shelton Richardson, Warden; Kenneth Daugherty, Chief of Unit Management; Wayne Bigelow, Corrections Counselor; and Brenda Miller, Unit Manager. The following defendants are sued in their official capacity only: Phillip Valdez, Former Assistant Warden; Tammy Perkins, Case Manager; and Daniel Prado, Assistant Warden. Julia Dorman, Former Unit Manager, is sued in her individual capacity only.
Plaintiff's allegations are repeated in his responsive materials and include the following. He arrived at the Leavenworth CCA in January 2011. On May 22, 2011, he was attacked by his cellmate BL. He suffered injuries to his face, neck, and ribs, and has since suffered migraine headaches, mental anguish and "extreme paranoia." Prior to the attack, BL had been incarcerated for 16 years, had a history of rape/predatory charges, was a "candidate for Armed Career Offender Status" and a "member of a white supremacy gang known as the "Peckerwoods." In addition, BL had "serious mental health issues, " Hepatitis C, and substantial substance abuse problems. Management Alerts on BL included "Health Issues" and "Predatory History." BL had been classified elsewhere as high security, but at the CCA was incorrectly classified as moderate security by defendant Bigelow. Plaintiff on the other hand was a non-violent, much younger and smaller, pretrial detainee awaiting trial on computer fraud charges. His only Management Alert was "Special Skills." Plaintiff had been classified elsewhere as low security but was incorrectly classified as moderate security at the CCA. Plaintiff and BL were not compatible under the criteria in CCA's policy for inmate security classification, which prohibited low custody inmates from being housed with high custody inmates. Defendant Bigelow circumvented CCA policy when he incorrectly classified plaintiff and BL and thereby allowed the attack to occur. Defendant Dorman assigned BL and plaintiff to the same two-man cell. Defendant Dorman was aware of the differing alerts on the two inmates and was deliberately indifferent to plaintiff's safety in that she failed to correct Bigelow's classifications and circumvention of CCA policy. Defendant Daugherty failed to review "security warnings" and designations and allowed reclassification of inmates contrary to CCA policy. Upon learning of BL's history and problems, plaintiff asked defendant Bigelow to move him to another cell "to no avail." Defendant Bigelow was negligent because he failed to respond after being verbally informed of the "substantial risk that plaintiff could be harmed." On the day of the attack, plaintiff was cleaning his cell and "accidentally woke" BL. BL told plaintiff to stop making noise and called him "cell-bitch." Later that day, defendant Bigelow spoke with BL, after which BL called plaintiff a snitch and referred to plaintiff's request to move. That afternoon, without provocation, BL attacked plaintiff for several minutes and then allowed him to call for help. Plaintiff was taken to the Captain's office and reported the incident. He was taken to the infirmary, and his visible injuries were photographed. He was then taken to segregation pending an investigation. BL was not punished for the attack, while plaintiff was punished by placement in segregation. Plaintiff has been the subject of "extreme retaliation since these events." Plaintiff told Dorman and Bigelow about his physical and mental suffering after the attack but they conspired to deprive him of medical and mental health treatment by stating that his pursuit of the matter would affect his criminal case. He was not effectively treated for his injuries. Defendants Valdez, Richardson, and Miller failed to investigate plaintiff's grievances and provide a satisfactory resolution, and a cover-up was attempted. This led to stress and unnecessary time in segregation for plaintiff, and showed deliberate indifference to plaintiff's mental health. The day after the attack, plaintiff filed an "Informal Resolution" which along with his "Formal Appeal" was unsatisfactory. Plaintiff alleges that he exhausted his administrative remedies.
Because the incident occurred while plaintiff was a pretrial detainee, he asserts violations under both the Fifth and Eighth Amendments. He seeks compensatory damages in the amount of 1.5 million dollars for pain, suffering, and mental anguish.
NO CAUSE OF ACTION UNDER BIVENS
As previously noted, this court has jurisdiction over actions "arising under the Constitution" pursuant to 28 U.S.C. § 1331, but plaintiff must also show the existence of a remedy by stating a claim for relief or a "cause of action" in federal court. After Mr. Camp filed this action and before his Amended Complaint was filed and screened, the United States Supreme Court decided Minneci v. Pollard, 132 S.Ct. 617 (2012). In Minneci the Court held:
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 involving improper medical care at issue here), the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.
Id. at 626. Upon screening the Amended Complaint, the court explained to plaintiff that under Minneci he had no cause of action or remedy under Bivens a gainst the defendant CCA employees. The court also cited Peoples v. CCA Detention Centers, 422 F.3d 1090, 1108 (10th Cir. 2005)(The Tenth Circuit previously held that "under Malesko, federal prisoners have no implied right of action for damages against an employee of a privately operated prison under contract with the United States Marshals Service when state or federal law affords the prisoner an alternative cause of action for damages for the alleged injury.") and Lindsey v. Bowlin, 557 F.Supp.2d 1225, 1230 (D.Kan. 2008)("[A] federal prisoner has no implied right of damages against an employee of a privately operated prison when state or federal law affords an alternate cause of action for the alleged injury."). Recently, the Tenth Circuit has provided additional persuasive reasoning:
This court has previously stated that "the presence of an alternative cause of action against individual defendants provides sufficient redress such that a Bivens cause of action need not be implied." Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1102 (10th Cir. 2005). This statement was recently reaffirmed by the Supreme Court in Minneci v. Pollard ....
Minneci, as well as our own ruling in Peoples, are controlling here. As the basis for his Bivens claim, Crosby alleges conduct that would typically fall within a state-law negligence claim. Id. at 625 ("State-law remedies and a potential Bivens remedy need not be perfectly congruent."); Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, 693 (1998)("To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.'")( quoting Honeycutt v. City of Wichita, 251 Kan. 451, 836 P.2d 1128, 1136 (1992)). Because Crosby has an alternative cause of action against the defendants pursuant to Kansas state law, he is precluded from asserting a Bivens action against the defendants in their individual capacities.
Crosby v. Martin, 502 Fed.Appx. 733, 735 (10th Cir. 2012).
Plaintiff has presented no additional facts, arguments or authority to refute that he has no cause of action under Bivens and that his claims in federal court fail under Minneci. Mr. Camp filed this action as a federal prisoner and seeks damages from privately-employed personnel who were working at the privately-operated Leavenworth CCA. He asserts that defendants breached their duty to protect him, negligently classified him and his attacker, and failed to provide necessary medical and mental health treatment after the attack. The conduct of defendants described by plaintiff "is of a kind that ...