United States District Court, D. Kansas
DIJON T. DIXON, Plaintiff,
CORE CIVIC, et al., Defendants.
MEMORANDUM AND ORDER
CROW U.S. Senior District Judge
proceeds pro se on a complaint filed under 42 U.S.C. §
1983. Plaintiff seeks relief on allegations that Defendants
CoreCivic and L. R. Thomas violated his constitutional rights
when he was exposed to CS gas during a prisoner protest at
the Leavenworth, Kansas, detention facility operated by
order dated April 30, 2019, the Court directed Plaintiff to
show cause why the complaint, filed as a § 1983 action
but construed as a Bivens action, should not be
dismissed as failing to state a claim for relief against
Defendants. Having reviewed Plaintiff's response, the
Court dismisses the complaint.
42 U.S.C. § 1983
filed his complaint under 42 U.S.C. § 1983. However,
§ 1983 is inapplicable to his 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 CoreCivic-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. § 1983.
does Plaintiff have an established cause of action against
Defendants 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).
CoreCivic is a private company contracted by the federal
government to house federal prisoners in its private prison
in Leavenworth, and Defendant Thomas is not a federal
official but rather an employee of a private company. As
previously explained, Plaintiff's claims against
CoreCivic must be dismissed pursuant to Correctional
Services Corp. v. Malesko, 534 U.S. 61, 70-71 (2001),
which held that a Bivens action does not lie against
a private entity acting under color of federal law, such as
CoreCivic here. Likewise, Plaintiff does not have a
Bivens claim against Defendant Thomas. 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 plaintiff)..
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)).
Quite similarly to Mr. Dixon's allegations here,
Crosby involved claims of excessive force and denial
of medical care in connection with the use of chemical spray
on the plaintiff. Id. at 734. The Tenth Circuit
affirmed the dismissal of the plaintiff's complaint for
failure to state a claim. Id. at 736.
remedy, if any, against CoreCivic and its employees such as
Defendant Thomas 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,