United States District Court, M.D. Georgia, Columbus Division
WALTER ANTONIO ZACARIAS-SALDANA, Plaintiff.
CORE CIVIC, Defendant.
D. LAND CHIEF U.S. DISTRICT COURT JUDGE MIDDLE DISTRICT OF
Walter Antonio Zacarias-Saldana, an immigration detainee
confined at Stewart Detention Center, has filed a 42 U.S.C.
§ 1983 civil rights action (ECF No. 1), a motion to
proceed in forma pauperis (ECF No. 6), and a motion
for protective order (ECF No. 2). Upon review of
Plaintiff's motion to proceed in forma pauperis,
the Court finds that Plaintiff is unable to prepay the
Court's filing fee. Accordingly, Plaintiff's motion
to proceed IFP (ECF No. 6) is GRANTED.
However, Plaintiff has failed to state a claim and his
complaint is hereby DISMISSED without
Standard for Preliminary Review of Plaintiff's
Plaintiff proceeds in forma pauperis in this action,
his complaint is subject to screening under 28 U.S.C. §
1915(e) which requires a district court to dismiss any
complaint that is frivolous, malicious, or fails to state a
claim upon which relief may be granted. When conducting a
preliminary review, the district court must accept all
factual allegations in the complaint as true and make all
reasonable inferences in the plaintiff's favor. See
Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004)
(stating that allegations in the complaint must be viewed as
true). Pro se pleadings are also “held to a
less stringent standard than pleadings drafted by attorneys,
” and a pro se compliant is thus
“liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam). The district court, however, cannot allow a
plaintiff to proceed with frivolous, conclusory, or
speculative claims. As part of the preliminary screening, the
court shall dismiss a complaint, or any part thereof, prior
to service, if it is apparent that the plaintiff's claims
are frivolous or if his allegations fail to state a claim
upon which relief may be granted - i.e., that the plaintiff
is not entitled to relief based on the facts alleged.
See § 1915(e).
state a viable claim, the complaint must include enough
factual matter to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alteration in original) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). There
must also be “enough fact to raise a reasonable
expectation that discovery will reveal evidence” to
prove the claim. Id. at 556. The claims cannot be
speculative or based solely on beliefs or suspicions; each
claim must be supported by allegations of relevant and
discoverable fact. Id. Thus, neither legal
conclusions nor a recitation of legally relevant terms,
standing alone, is sufficient to survive preliminary review.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”)
(quoting Twombly, 550 U.S. at 555). Claims without
“an arguable basis either in law or in fact” will
be dismissed as frivolous. Neitzke v. Williams, 490
U.S. 319, 325 (1989); accord Bilal v. Driver, 251
F.3d 1346, 1349 (11th Cir. 2001) (noting that claims are
frivolous if they are “clearly baseless” or are
based on an “indisputably meritless” legal
alleges that Officer Gluster, a Core Civic officer working at
Stewart Detention Center, slammed a door on Plaintiff's
left hand and injured it. Pl.'s Aff., ECF No. 1 at 7;
Social Worker Report, Dec. 16, 2016, ECF No. 1-1 at 6.
According to Plaintiff's medical records that were
attached to the Complaint, Plaintiff suffered “slight
swelling” and tenderness and was prescribed ibuprofen,
an “ace wrap, ” and “ice several times
daily.” Medical Report Dec. 15, 2016, ECF No. 1-1 at 2;
Medical Report Dec. 16, 2016, ECF No. 1-1 at 3. Plaintiff
also named as Defendants “Chief Blackmoon” and
“U/M Lane, ” but he did not allege any facts
regarding their involvement in the incident.
Plaintiff submitted his claim on the Court's standard
questionnaire for prisoners proceeding pro se under
42 U.S.C. § 1983, Plaintiff is a federal detainee
seeking relief for alleged constitutional violations
perpetrated by individuals and entities acting under color of
federal law. Therefore, his complaint will be construed as an
action brought pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Abella v. Rubino, 63 F.3d 1063, 1065
(11th Cir. 1995) (per curiam) (“A [Section] 1983 suit
challenges the constitutionality of the action of state
officials; a Bivens suit challenges the
constitutionality of the actions of federal
Bivens, the United States Supreme Court established
the availability of “a cause of action against federal
officials in their individual capacities for violations of
federal constitutional rights.” Nalls v. Coleman
Low Fed. Inst., 307 F. App'x 296, 298 (11th Cir.
2009) (per curiam). “The effect of Bivens was,
in essence, to create a remedy against federal officers,
acting under color of federal law, that was analogous to the
section 1983 action against state officials.”
Abella, 63 F.3d at 1065 (quoting Dean v.
Gladney, 621 F.2d 1331, 1336 (5th Cir.1980)). The
purpose of Bivens is to deter individual federal
officers from committing constitutional violations. Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 71 (2001). But the
Supreme Court “has ‘consistently refused to
extend Bivens to any new context or new category of
defendants.'” Ziglar v. Abbasi, 137 S.Ct.
1843, 1857 (2017) (quoting Malesko, 534 U.S. at 68)
(listing cases where the Supreme Court declined to expand the
Bivens remedy). Because Bivens is concerned
with deterring individual federal officers, it does not apply
to federal officers in their official capacities, it does not
apply to federal agencies, and it does not apply to corporate
entities acting under color of federal law. Malesko,
534 U.S. at 67, 69, 73-74.
states that he wishes to hold liable Core Civic, the private
corporate entity that operates Stewart Detention Center,
“through their officer.” Compl. 1. To the extent
that this means Plaintiff wishes to sue Core Civic or the
remaining Defendants in their official capacities,
Bivens is not applicable and Plaintiff has failed to
state a claim. See Malesko, 534 U.S. at
73-74 (declining to extend Bivens to Eighth
Amendment Claims against a private prison corporation).
also does not have a viable Bivens claim to the
extent that his complaint can be liberally construed as
bringing suit against Defendants Gluster, Blackmoon, and Lane
in their individual capacities. These Defendants are private
individuals, not federal officers, and Bivens does
not create a cause of action against “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. “ Minneci v. Pollard, 565 U.S. 118,
130 (2012). Here, Plaintiff complains that Officer Gluster
slammed a door on his hand and injured him. This conduct is
of a kind that typically falls within the scope of
traditional state tort law; Georgia law provides causes of
action for battery and negligence. Accordingly, Plaintiff
cannot proceed against Defendants Gluster, Blackmoon, and
Lane in their individual capacities under Bivens.
See, e.g, . Crosby v. Martin, 502 F. App'x 733,
735 (10th Cir. 2012) (affirming district court's
dismissal under 28 U.S.C. § 1915(e) of Eighth Amendment
Bivens claim against private prison company
employees); Ruiz v. Fed. Bureau of Prisons, 481 F.
App'x 738, 740-41 (3d Cir. 2012) (per curiam) (finding no
Bivens cause of action for Eighth Amendment claim
against private prison employees). Instead, he must seek a
remedy under state tort law. See Minneci, 565 U.S.
discussed above, Plaintiff failed to state a claim upon which
relief may be granted and this action is DISMISSED
without prejudice. Plaintiff's motion for
protective order is DENIED as moot.