United States District Court, D. Kansas
CHARLES E. FRANCIS, JR., Plaintiff,
CORRECTIONS CORPORATION OF AMERICA, Defendant.
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
matter is a civil rights action. By order dated April 11,
2019, the Court directed Plaintiff to show cause why his
complaint should not be dismissed for failure to state a
claim upon which relief may be granted, or, in the
alternative, to file an amended complaint curing the
deficiencies with the original complaint. Before the Court is
Plaintiff's amended complaint (ECF No. 10).
amended complaint fails to cure the deficiencies with the
original complaint identified by the Court in its order.
Plaintiff continues to name CCA as the only defendant to his
amended complaint. To state a claim in a § 1983 action
against a corporate entity, the plaintiff must allege that a
corporate employee or agent committed a constitutional
violation and that the violation was a direct result of some
policy or custom of the corporation. Myers v. Oklahoma
Cnty Bd. of Cnty. Comm'rs, 151 F.3d 1313, 1316 (10th
Cir. 1998); Monell v. Dept. of Social Services of the
City of New York, 436 U.S. 658, 690-95 (1978); City
of Oklahoma City v. Tuttle, 471 U.S. 808, 820 (1985);
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1216 (10th
Cir. 2003) (citations omitted). Plaintiff fails to include
sufficient factual allegations to show that any employee or
agent of CCA violated his constitutional rights, and he fails
to contend any policy or custom of CCA caused a violation of
his rights. Therefore, the amended complaint does not state a
claim under § 1983 against CCA. See Urioste v.
Corizon & Centurion Health Care Providers, No. CV
16-00755 JCH/KRS, 2019 WL 267467, at *4 (D.N.M. Jan. 18,
§ 1983 is inapplicable to Plaintiff's claims. To
proceed under 42 U.S.C. § 1983, “a plaintiff must
allege the violation of a right secured by the Constitution
and laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988). A defendant acts “under color of state
law” when he “exercise[s] power possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.”
Id. at 49.
does not dispute that he is a federal prisoner. His
confinement in CCA-Leavenworth was pursuant to the authority
of a federal entity to confine him, presumably
either the United States Marshal Service or the Bureau of
Prisons, thus his allegations fail to establish that any
defendant acted under color of state law for the
purpose of establishing a cause of action under 42 U.S.C.
CCA amenable to suit 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).
Bivens held that “plaintiffs may sue federal
officials in their individual capacities for damages for
Fourth Amendment violations, even in the absence of an
express statutory cause of action analogous to 42 U.S.C.
§ 1983.” Id.; Carlson v. Green, 446 U.S.
14, 18 (1980) (recognizing a parallel cause of action for
Eighth Amendment violations).
the proper defendant to a Bivens action is a federal
official or agent, not a private corporation. See
Correctional Services Corp. v. Malesko, 534 U.S. 61,
70-71 (2001) (a Bivens action does not lie against a
private entity acting under color of federal law). CCA is a
private company contracted by the federal government to house
federal prisoners in its private prison in Leavenworth.
Plaintiff's claims against CCA must be dismissed pursuant
Plaintiff had named an individual defendant, his complaint
would still be subject to dismissal. The personnel at CCA are
not federal officials or agents but rather employees of a
private company. The Supreme Court has found that a
Bivens remedy is not available to a prisoner seeking
damages from the employees of a private prison for violation
of the prisoner's Eighth Amendment rights. Minneci v.
Pollard, 565 U.S. 118, 125 (2012) (refusing to imply the
existence of a Bivens action where state tort law
authorizes alternate action providing deterrence and
compensation); see also Peoples v. CCA Detention
Centers, 422 F.3d 1090, 1101 (10th Cir. 2005) (there is
no right of action for damages under Bivens against
employees of a private prison for alleged constitutional
deprivations when alternative state causes of action for
damages, such as medical malpractice, are available to
Supreme Court reasoned that “a critical
difference” between cases where Bivens
liability applied and those where it did not was
“employment status, ” i.e., whether the
defendants were “personnel employed by the
government [or] personnel employed by a
private firm.” Minneci, 565 U.S. at
126 (emphasis in original). The Supreme Court rejected the
argument that private actors performing governmental
functions should be considered federal agents for the
purposes of Bivens liability. Id. at
Minneci, the Supreme Court held that the
“ability of a prisoner to bring state tort law damages
action[s] against private individual defendants means that
the prisoner does not ‘lack effective
remedies.'” Id. at 125 (citing
Malesko, 534 U.S. at 72). They reasoned that
“in the case of a privately employed defendant, state
tort law provides an ‘alternative, existing
process' capable of protecting the constitutional
interests at stake.” Id. (citing Wilkie v.
Robbins, 551 U.S. 537, 550 (2007)).
Supreme Court also found “specific authority indicating
that state law imposes general tort duties of reasonable care
. . . on prison employees in every one of eight States where
privately managed secure federal facilities are currently
located.” Id. at 128. “[I]n general,
state tort law remedies provide roughly similar incentives
for potential defendants to comply with the Eighth Amendment
while also providing roughly similar compensation to victims
of violations.” Id. at 130. Kansas is a state
whose tort law reflects the “general principles of tort
law” recognized in Minneci and set forth in
the (Second) Restatement of Torts §§ 314A(4), 320
(1963-64). See Camp v. Richardson, No. 11-3128-SAC,
2014 WL 958741, at n. 12 (D. Kan. March 11, 2014) (citing
Estate of Belden v. Brown Cty., 261 P.3d 943 (Kan.
App. 2011) (setting forth remedies available in Kansas)).
the Tenth Circuit has 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.” Crosby v.
Martin, 502 Fed.Appx. 733, 735 (10th Cir.
2012) (unpublished) (citing Peoples, 422 F.3d at
102). The Tenth Circuit 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)).
remedy, if any, against CCA or its employees is an action in
state court for negligence or other misconduct. See
Lindsey v. Corrections Corp. of America, No.
07-3067-EFM, 2009 WL 2703691, at *7 (D. Kan. Aug. 25, 2009)
(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, No. 04-3054-MLB, 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 v. Corr. Corp. of Am. Leavenworth
Det. Ctr., No. 16-3068-SAC-DJW, 2016 WL 6164208, at *3
(citing Jamerson v. Heimgarnter, 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 CCA or its
Court also found the original complaint was subject to
dismissal for failure to state a constitutional claim.
Plaintiff did not describe acts or omissions by particular
personnel at CCA-Leavenworth that were sufficiently harmful,
cruel or prolonged so as to support a claim of ...