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Leiva v. Riggs

United States District Court, S.D. Georgia, Waycross Division

July 16, 2018

PAVEL LEIVA, Plaintiff,
PA RIGGS; TRACY JOHNS; and J HURT, Defendants.



         Plaintiff, an inmate at the D. Ray James Correctional Institution in Folkston, Georgia (“D. Ray James”), filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Doc. 1.) Plaintiff also filed a Motion for Leave to Proceed in Forma Pauperis. (Doc. 2.) The Court has conducted an initial review of Plaintiff's Complaint, as required by 28 U.S.C. § 1915A. For the reasons set forth below, the Court DENIES Plaintiff's Motion. For these same reasons, I RECOMMEND that the Court DISMISS Plaintiff's Complaint, DIRECT the Clerk of Court to enter the appropriate judgment of dismissal and to CLOSE this case, and DENY Plaintiff leave to appeal in forma pauperis.[1]


         In his Complaint, Plaintiff makes Eighth Amendment deliberate indifference to serious medical needs claims against Defendants. (Doc. 1.) Plaintiff contends that, after he broke his leg playing soccer, Defendants delayed treatment for his injury for over a month. (Id. at p. 5.) Initially, Defendant Riggs determined Plaintiff's leg was not broken and only prescribed him Tylenol. Plaintiff continued to experience pain and was later given a wheel chair for his leg injury. Soon thereafter, Plaintiff contends Defendant Hurt forced him to stand up from his wheel chair during a search. Plaintiff was unable to stand on his own due to his leg injury and fell down, exacerbating his harm. Plaintiff underwent an x-ray following this incident, which revealed a broken leg that required two-screws and the insertion of a metal plate into Plaintiff's leg. Plaintiff implies that the doctor who performed his leg surgery told him that his two leg fractures had existed prior to the wheel chair incident. Plaintiff requests injunctive and monetary relief. (Id.)


         Plaintiff 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 5930633, at *1 (N.D.Ga. Oct. 18, 2012) (explaining that magistrate judge's R&R constituted adequate notice and petitioner's opportunity to file objections provided a reasonable opportunity to respond). Additionally, this R&R provides Plaintiff the opportunity to amend his Complaint to correct the deficiencies noted herein. See Fed.R.Civ.P. 15. Should Plaintiff seek to amend his Complaint, he must file the amendment within fourteen (14) days from the date of this R&R. 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. § 1915A(b).

         When 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. 2001)).

         Whether 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 Fed.Appx. 675, 678 (11th Cir. 2010) (per curiam). 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)).

         In its 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 . . . .”) (emphasis omitted) (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 without counsel.”).


         I. Dismissal of Bivens Claim Against Private Employee Defendants

         The United States Supreme Court has held that a federal prisoner cannot bring a Bivens claim against employees of a privately operated federal prison when state law authorizes adequate alternative actions.[3] Minneci v. Pollard, 565 U.S. 118, 131 (2012). 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 125 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (noting that Bivens liability has not been extended against private prisons)); see also Goia v. CitiFinancial Auto, 499 Fed.Appx. 930, 936 (11th Cir. 2012) (per curiam) (“[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)).

         The Court can only recognize a Bivens action if: (1) there are no adequate alternative remedies under state or federal law; and (2) no “special factors” counsel against implying a cause of action. Robles v. Kane, 550 Fed.Appx. 784, 787 (11th Cir. 2013) (per curiam) (declining to recognize a First Amendment Bivens claim against private employee defendants employed at D. Ray James). State tort law remedies are adequate when they provide roughly similar incentives for defendants to comply with the constitutional right at issue while also providing roughly similar compensation to victims of violations. Minneci, 565 U.S. at 129-130. The Eleventh Circuit Court of Appeals has held that, at least as to some claims, Georgia tort law provides federal prisoners held in privately-run facilities “arguably better remedies than a Bivens claim.” Robles, 550 Fed.Appx. at 788.

         D. Ray James is a private entity that operates under a contract with the Federal Bureau of Prisons. The employees of D. Ray James are employees of The GEO Group, Inc., a private entity. Thus, like the plaintiffs in Minneci, Alba, and Robles, so long as Plaintiff has adequate state law remedies available to him, he may not maintain a cause of ...

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