United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow U.S. Senior District Judge
who is currently confined in the Leavenworth Detention Center
in Leavenworth, Kansas (“CCA” or
“CoreCivic”), filed this pro se civil
rights action pursuant to 42 U.S.C. § 1983 in the United
States District Court for the Western District of Missouri.
Because Plaintiff's Second Amended Complaint (Doc. 10)
named CCA and the CoreCivic warden as defendants, the case
was transferred to this Court pursuant to 28 U.S.C. §
1404(a). Plaintiff was granted leave to proceed in forma
pauperis. Plaintiff alleges in his Second Amended
Complaint that defendants delayed an x-ray of his injured
wrist. Plaintiff alleges that since his arrival at CCA he
complained about wrist pain but was denied medical treatment
for seven months. Plaintiff alleges that defendants told him
it was swollen and sprained from his handcuffs, but they did
not do an x-ray or give him an ace bandage. Plaintiff alleges
that they finally x-rayed his wrist after his third request
and they treated his torn quad in his leg before they worked
on his wrist. Plaintiff states that he thinks the police or a
detective had this overlooked so they would not look like
they were at fault for breaking Plaintiff's wrist.
Plaintiff names as defendants: the Leavenworth Detention
Center Medical Department; Core Civic of America; and (fnu)
Thomas, CCA Warden. Plaintiff seeks $600, 000 in compensatory
damages and $11, 000, 000 in punitive damages.
22, 2019, the Court entered a Memorandum and Order and Order
to Show Cause (Doc. 17) (“MOSC”) granting
Plaintiff until June 14, 2019, in which to show cause why his
Second Amended Complaint should not be dismissed for the
reasons set forth in the MOSC. Plaintiff was also given the
opportunity to file an amended complaint to cure the
deficiencies set forth in the MOSC. Plaintiff failed to
respond by the deadline.
Court found in the MOSC that Plaintiff fails to state a claim
for relief under 42 U.S.C. § 1983 where Plaintiff
provides no factual claim or support for a claim that
Defendants acted under color of state law; and Plaintiff does
not have an established cause of action against CoreCivic
under 28 U.S.C. § 1331 and Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 395-97 (1971). “[T]he presence of an
alternative cause of action against individual defendants
provides sufficient redress such that a Bivens cause
of action need not be implied.” Crosby v.
Martin, 502 Fed.Appx. 733, 735 (10th Cir. 2012)
(unpublished) (citing Peoples v. CCA Det. Ctrs., 422
F.3d 1090, 1102 (10th Cir. 2005)).
Tenth Circuit has found that where plaintiff “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, ” and he is “barred by
sovereign immunity from asserting a Bivens action
against the defendants in their official capacities.”
Crosby, 502 Fed.Appx. at 735 (citing Farmer v.
Perrill, 275 F.3d 958, 963 (10th Cir. 2001) (finding
that an official-capacity claim “contradicts the very
nature of a Bivens action. There is no such animal
as a Bivens suit against a public official
tortfeasor in his or her official capacity.”)).
remedy against CoreCivic and its employees, if any, is an
action in state court for negligence or other misconduct.
See Harris v. Corr. Corp. of Am. Leavenworth Det.
Ctr., No. 16-3068-SAC-DJW, 2016 WL 6164208, at *3
(stating that plaintiff has remedies for injunctive relief in
state court and citing Peoples, 422 F.3d at 1104-05
(individual CCA defendants owed a duty to protect to
plaintiff that if breached, would impose negligence
liability)); Lindsey, 557 F.Supp.2d at 1225 (Kansas
law generally provides an inmate with a remedy against CCA
employees for negligence and for actions amounting to
violations of federal constitutional rights.); see also
Menteer v. Applebee, 2008 WL 2649504, at *8-9 (D. Kan.
June 27, 2008) (plaintiff's state law negligence claim
found to be equally effective, alternative cause of action to
Bivens claim). In addition, “[i]n Kansas, a
prisoner may attack the terms and conditions of his or her
confinement as being unconstitutional through a petition
filed under K.S.A. 60-1501.” Harris, 2016 WL
6164208, at *3 (citing Jamerson v. Heimgartner, 326
P.3d 1091, at *1 (Kan. App. June 20, 2014) (unpublished)).
Because Plaintiff has an alternative cause of action pursuant
to Kansas state law, he is precluded from asserting a
Bivens action in federal court against CoreCivic or
Court also found in the MOSC that even if Plaintiff were not
precluded from proceeding against these defendants in federal
court, there are other problems with his Second Amended
Complaint. For instance, Plaintiff has failed to allege how
any of the defendants personally participated in the
deprivation of his constitutional rights. An essential
element of a civil rights claim against an individual is that
person's direct personal participation in the acts or
inactions upon which the complaint is based. Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985); Trujillo v.
Williams, 465 F.3d 1210, 1227 (10th Cir. 2006);
Foote v. Spiegel, 118 F.3d 1416, 1423-24 (10th Cir.
1997). Conclusory allegations of involvement are not
sufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) (“Because vicarious liability is inapplicable to
. . . § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.”).
As a result, a plaintiff is required to name each defendant
not only in the caption of the complaint, but again in the
body of the complaint and to include in the body a
description of the acts taken by each defendant that violated
plaintiff's federal constitutional rights.
supervisory status is insufficient to create personal
liability. Duffield v. Jackson, 545 F.3d 1234, 1239
(10th Cir. 2008) (supervisor status is not sufficient to
create § 1983 liability). An official's liability
may not be predicated solely upon a theory of respondeat
superior. Rizzo v. Goode, 423 U.S. 362, 371 (1976);
Gagan v. Norton, 35 F.3d 1473, 1476 FN4 (10th Cir.
1994), cert. denied, 513 U.S. 1183 (1995). A
plaintiff alleging supervisory liability must show “(1)
the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that
(2) caused the complained of constitutional harm, and (3)
acted with the state of mind required to establish the
alleged constitutional deprivation.” Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010),
cert. denied, 563 U.S. 960 (2011). “[T]he
factors necessary to establish a [supervisor's] §
1983 violation depend upon the constitutional provision at
issue, including the state of mind required to establish a
violation of that provision.” Id. at 1204
(citing Iqbal, 129 S.Ct. at 1949).
has failed to show good cause why his Second Amended
Complaint should not be dismissed due to the deficiencies set
forth in the MOSC.
IS THEREFORE ORDERED THAT this case is
dismissed for failure to state a claim.