United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER UNITED STATES MAGISTRATE JUDGE.
currently housed at the Federal Correctional
Institution-Williamsburg (“FCI Williamsburg”) in
Salters, South Carolina, filed this cause of action pursuant
to 42 U.S.C. § 1983 (recharacterized and analyzed as a
Bivens claim), contesting certain conditions of his
federal confinement. (Doc. 1.) For the reasons that follow,
the Court DENIES Plaintiff's Motion for
Leave to Proceed in Forma Pauperis. (Doc. 2.)
Furthermore, I RECOMMEND the Court
DISMISS WITHOUT PREJUDICE Plaintiff's
Complaint, DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY Plaintiff
leave to appeal in forma pauperis.
filed this cause of action on November 9, 2017, along with a
Motion for Leave to Proceed in Forma Pauperis.
(Docs. 1, 2.) In his Complaint, Plaintiff alleges that
Defendant, director of D. Ray James Federal Correctional
Institute, failed to protect him while he was housed there in
November 2015. (Doc. 1, p. 2-4.) Plaintiff states that
Defendant housed him with an inmate, known to be mentally
disturbed, who attacked Plaintiff on November 9, 2015,
causing him to completely lose his left eye. (Id.)
Though he was taken to the hospital following the attack,
Plaintiff alleges that Defendant denied him proper follow-up
medical care. (Id.) Plaintiff alleges that he was
not permitted to see an ocularist and did not receive a
prosthetic eye until June 2017, after he was transferred to
FCI Williamsburg. (Id.) As relief, Plaintiff
requests monetary damages for his physical and emotional
seeks to bring this action in forma pauperis. (Doc.
2). Under 28 U.S.C. § 1915(a)(1), the Court may
authorize the filing of a civil lawsuit without the
prepayment of fees if the plaintiff submits an affidavit that
includes a statement of all of his assets and shows an
inability to pay the filing fee and also includes a statement
of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court
must dismiss the action if it is frivolous or malicious, or
fails to state a claim upon which relief may be granted. 28
U.S.C. §§ 1915(e)(2)(B)(i)-(ii). Additionally,
pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a
governmental entity. Upon such screening, the Court must
dismiss a complaint, or any portion thereof, that is
frivolous or malicious, or fails to state a claim upon which
relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
reviewing a Complaint on an application to proceed in
forma pauperis, the Court is guided by the instructions
for pleading contained in the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 8 (“A pleading
that states a claim for relief must contain [among other
things] . . . a short and plain statement of the claim
showing that the pleader is entitled to relief.”);
Fed.R.Civ.P. 10 (requiring that claims be set forth in
numbered paragraphs, each limited to a single set of
circumstances). Further, a claim is frivolous under Section
1915(e)(2)(B)(i) “if it is ‘without arguable
merit either in law or fact.'” Napier v.
Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting
Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir.
a complaint fails to state a claim under Section
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6). Thompson v. Rundle, 393 F. App'x 675,
678 (11th Cir. 2010). Under that standard, this Court must
determine whether the complaint contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must assert “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not” suffice. Twombly,
550 U.S. at 555. Section 1915 also “accords judges not
only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual
allegations and dismiss those claims whose factual
contentions are clearly baseless.” Bilal, 251
F.3d at 1349 (quoting Neitzke v. Williams, 490 U.S.
319, 327 (1989)).
analysis, the Court will abide by the long-standing principle
that the pleadings of unrepresented parties are held to a
less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006)
(“Pro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys . . .
.”) (quoting Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003)). However, Plaintiff's
unrepresented status will not excuse mistakes regarding
procedural rules. McNeil v. United States, 508 U.S.
106, 113 (1993) (“We have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
Dismissal for Plaintiff's Failure to State a
proceeding pro se, filed this Complaint pursuant to
Section 1983. (Doc. 1, p. 3.) However, Plaintiff's claims
are against officials at a federal facility, which are not
cognizable under Section 1983 and must be asserted in a
Bivens action. Abella v. Rubino, 63 F.3d
1063, 1065 (11th Cir. 1995). Even so, “[f]ederal courts
sometimes will ignore the legal label that a pro se
litigant attaches to a motion and recharacterize the motion
in order to place it within a different legal
category.” Retic v. United States, 215 F.
App'x 962, 964 (11th Cir. 2007) (quoting Castro v.
United States, 540 U.S. 375, 381 (2003)). This Court may
“recharacterize a pro se litigant's motion
to create a better correspondence between the substance of
the motion and its underlying legal basis.” Rameses
v. United States Dist. Court, 523 F. App'x 691, 694
(11th Cir. 2013). In this case, however, it would be futile
to recharacterize Plaintiff's claims under Section 1983
as a Bivens action.
United States Supreme Court has held that a federal prisoner
cannot bring a Bivens claim against employees of a
privately operated federal prison seeking damages when state
tort law authorizes adequate alternative
remedies. Minneci v. Pollard, 565 U.S. 118,
131, 132 S.Ct. 617, 626 (2012). The Minneci Court
concluded an inmate in a privately operated federal prison
could not bring a Bivens claim against private
employees for conduct that violates the Eighth Amendment
because that conduct could be remedied through a negligence
or malpractice state tort claim. Id. The Court
stated 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. at 126
(quoting Wilkie v. Robbins, 551 U.S. 537, 559 (2007)
(declining to extend Bivens liability to allow a
landowner to pursue a private action against employees of the
Bureau of Land Development)); see also Goia v.
CitiFinancial Auto, 499 F. App'x 930, 936 (11th Cir.
2012) (“[T]he Supreme Court has declined to expand
Bivens to encompass a suit against private
corporations acting under color of federal law.”)
(citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61,
71, 74 (2001)). Thus, employees of privately operated federal
prisons are exempt from damages liability under
Bivens where state law provides a “roughly
similar” remedy. Minneci, 565 U.S. at 130.
James Correctional Facility is a private entity that operates
under a contract with the Bureau of Prisons. The employees of
D. Ray James are employees of The GEO Group, Inc., a private
entity. Like the plaintiffs in Minneci and
Alba, so long as Plaintiff has adequate state law
remedies available to him, he may not maintain a cause of
action pursuant to Bivens against Defendant because
The GEO Group, Inc. and its employees are private parties.
Thus, Plaintiff's cause of action against Defendant, if
any, lies in state court under general principles of tort
law, which provide “roughly similar” remedies in
this case.See Scotton v. Johns, No.
5:16-cv-40, 2017 WL 125039, at *5 (S.D. Ga. Jan. 12, 2017)
(discussing alternative remedies to Bivens available
under Georgia tort law, such as a negligence or malpractice
action), report and ...