United States District Court, D. Kansas
J. WAXSE U.S. MAGISTRATE JUDGE.
Plaintiff Abel Moctezuma is hereby required to show good
cause, in writing, to the Honorable Sam A. Crow, United
States District Judge, why this action should not be
dismissed due to the deficiencies in Plaintiff's
Complaint that are discussed herein.
Nature of the Matter before the Court
matter is a Bivens-type civil rights action filed
pro se by a prisoner currently incarcerated at
USP-Leavenworth in Leavenworth, Kansas (“USPL”).
Plaintiff's Complaint is based on actions occurring while
he was housed at FCI-Tallahassee. Plaintiff alleges that on
March 5, 2012, while housed at FCI-Tallahassee, the SWAT team
informed Plaintiff that he had to move to a cell with a
member of a rival gang. Plaintiff was attacked after moving
into the cell and a fight ensued. The SWAT team ran back into
the cell and broke up the fight using excessive force.
Plaintiff was placed in a monitoring cell and then in
Administrative Segregation until his release on February 27,
2013. During this time, Plaintiff was denied medical
treatment for his mental health and the back injury he
sustained as a result of the use of excessive force.
Plaintiff claims defendants failed to protect him, used
excessive force, and were indifferent to his serious medical
needs. Plaintiff names as defendants the Federal Bureau of
Prisons, FNU LNU Warden at FCI-Tallahasee, and (fnu) White,
Lieutenant at FCI-Tallahassee.
Statutory Screening of Prisoner Complaints
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
an employee of a governmental entity. 28 U.S.C. §
1915A(a). The Court must dismiss a complaint or portion
thereof if a plaintiff has raised claims that are legally
frivolous or malicious, that fail to state a claim upon which
relief may be granted, or that seek monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
liberally construes a pro se complaint and applies
“less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). In addition, the court accepts all well-pleaded
allegations in the complaint as true. Anderson v.
Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other
hand, “when the allegations in a complaint, however
true, could not raise a claim of entitlement to relief,
” dismissal is appropriate. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 558 (2007). The complaint's
“factual allegations must be enough to raise a right to
relief above the speculative level” and “to state
a claim to relief that is plausible on its face.”
Id. at 555, 570.
previously initiated an action in the Northern District of
Florida, Moctezuma v. Tallahassee FCI, Case No.
4:17-cv-14-MW-GRJ. In that case, Plaintiff alleged that the
same March 5, 2012 incident involved excessive force. The
court summarily dismissed that case as frivolous, finding
that it was barred by the statute of limitations. See
Moctezuma v. Tallahassee FCI, Case No.
14:17cv14-MW/GRJ, 2017 WL 379456 (N.D. Fla. Jan. 24, 2017)
(adopting Report and Recommendation at ECF No. 7).
filed the instant action in this Court based on the same
facts, presumably because he is currently incarcerated at
USPL. This is action is likewise subject to dismissal based
on a lack of personal jurisdiction and as barred by the
statute of limitation.
jurisdiction over an Eighth Amendment claim is available
under Bivens and 28 U.S.C. § 1331. See
Patel v. U.S., 399 F.App'x 355, 358 (10th Cir.
2010). However, Bivens claims cannot be asserted
directly against the United States, federal agencies, or
federal officials acting in their official capacities.
Smith v. U.S., 561 F.3d at 1099 (citing Farmer
v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (federal
agencies, officials in their official capacities),
F.D.I.C. v. Meyer, 510 U.S. 471, 485-86”
(1994)(federal agencies)). Instead, a “Bivens
claim can be brought only against federal officials in their
individual capacities.” Id. As a result,
Plaintiff's Bivens claims are subject to
dismissal as against all defendants except for those
involving individual federal employees acting in their
individual capacities. Id.
addition to subject matter jurisdiction, the court must have
authority or “personal jurisdiction” over the
parties “so that the court's decision will bind
them.” Hill v. Pugh, 75 F.App'x 715, 718
(10th Cir. 2003). Due process requires “that in order
to subject a defendant to a judgment in personam, if he be
not present within the territory of the forum, he have
certain minimum contacts with it such that the maintenance of
the suit does not offend ‘traditional notions of fair
play and substantial justice.'” Garrett v.
Klingner, 12 F.App'x 842, 844 (10th Cir. 2001)
(citing Int'l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S.
457, 463 (1940)); Burger King Corp. v. Rudzewicz,
471 U.S. 462, 471-72 (1985) (“The Due Process Clause
protects an individual's liberty interest in not being
subject to the binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.'”) (quoting Int'l Shoe, 326
U.S. at 319)). A court may “assert specific
jurisdiction over an out-of-state defendant . . . if the
defendant has ‘purposefully directed' his
activities at residents of the forum . . . and the litigation
results from alleged injuries that ‘arise out of or
relate to' those activities.” Id. at 472
(citations omitted). In addition, venue in a Bivens
action is determined pursuant to 28 U.S.C. § 1391(b).
Stafford v. Briggs, 444 U.S. 527 (1980). Under
Section 1391(b), suits against private persons for money
damages must be brought in the judicial district where all
defendants reside, or in which the claim arose.
provides no basis in his Complaint for the Court to conclude
that the Court has personal jurisdiction over the individual
defendants who worked at FCI-Tallahassee. There are no
grounds to support a finding that these defendants have the
minimum contacts with Kansas to subject them to a lawsuit in
this jurisdiction. Plaintiff's Bivens claims are
subject to dismissal against defendants White and the warden
at FCI-Tallahassee for lack of personal jurisdiction.
claims based on the March 5, 2012 incident are also subject
to dismissal as barred by the applicable statute of
limitations. See Industrial Constructors Corp. v. U.S.
Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994)
(finding that the statute of limitations for a personal
injury claim in Kansas is two years and applies to a
Bivens claim); see Moctezuma, 2017 WL
379456. Plaintiff did not file the instant case until March
15, 2017. It is clear from the face of the Complaint that the