United States District Court, N.D. Texas, Abilene Division
ROBERT ALAN THOMPSON, Fed. Reg. # 17709-280, Plaintiff,
T. CRNKOVICH, et al, Defendants.
OPINION AND ORDER OF PARTIAL DISMISSAL UNDER 28
U.S.C. SS 1915A & 1915(E)(2)(B) 
SCOTT FROST UNITED STATES MAGISTRATE JUDGE
case is before the Court for review of
pro-se-inmate/plaintiff Robert Alan Thompson's pleadings
under the screening provisions of 28 U.S.C. §§
1915A and 1915(e)(2)(B). Thompson initially filed a complaint
with attachments, but after he sought leave, the Court
granted Thompson's motion to file an amended complaint.
(Docs. 10, 11.) After reviewing the amended complaint, the
Court directed Plaintiff to answer particular questions about
his pleadings and provide the answers in the form of a more
definite statement (MDS). (Doc. 17.) Plaintiff filed an MDS.
these pleadings, Robert Alan Thompson primarily complains
that he has been denied a total knee arthroplasty for the
right knee that was recommended by an outside doctor
recommendation. Amend. Compl. (doc. 11 .at 4.) Plaintiff
names as defendants the following persons: T. Crnkovich,
Health Service Administrator, FCI-Big Spring; Myron L. Batts,
Warden, FCI-Big Spring; J. A. Keller, Regional Director,
Bureau of Prisons; Ian Connors, Administrator, National
Inmate Appeals; and the Bureau of Prisons. Amend. Compl.
(doc. 11) at 2-3. Plaintiff names the defendants in both an
individual and official capacity. Plaintiff alleges against
each defendant that the denial of total knee arthroplasty
amounts to deliberate indifference to his serious medical
needs in violation of the Eighth Amendment, he alleges that
defendant Crnkovich's failure to provide him a walker
amounts to deliberate indifference, and he also alleges
claims under the Fourteenth Amendment for violations of the
right to due process of law and equal protection of law.
Amend. Compl. (doc. 11, at 5.) For relief, he seeks a
permanent injunction ordering that he be provided a total
knee arthroplasty, compensatory damages against each
defendant in the amount of $ 20, 000.00 and punitive damages
against each defendant in the amount of $2, 000, 000.00.
Amend. Compl. (doc. 11, at 5.)
PRELIMINARY SCREENING UNDER § 1915A and §
is an inmate who has been permitted to proceed in forma
pauperis. As a prisoner seeking redress from an officer
or employee of a governmental entity, his complaint is
subject to preliminary screening pursuant to 28 U.S.C. §
1915A. See Martin v. Scott, 156 F.3d 578, 579-80
(5th Cir. 1998) (per curiam). Because he is proceeding in
forma pauperis, his complaint is also subject to
screening under § 1915(e)(2). Both § 1915(e)(2)(B)
and § 1915A(b) provide for sua sponte dismissal
of the complaint, or any portion thereof, if the Court finds
it is frivolous or malicious, if it fails to state a claim
upon which relief may be granted, or if it seeks monetary
relief against a defendant who is immune from such relief.
complaint is frivolous when it "lacks an arguable basis
either in law or in fact." Neitzke v. Williams,
490 U.S. 319, 325 (1989). A claim lacks an arguable basis in
law when it is "based on an indisputably meritless legal
theory." Id. at 327. A claim that falls under
the rule announced in Heck v. Humphrey, 512 U.S. 477
(1994), "is legally frivolous unless the conviction or
sentence at issue has been reversed, expunged, invalidated,
or otherwise called into question." Hamilton v.
Lyons, 74 F.3d 99, 102 (5th Cir. 1996). A complaint
fails to state a claim upon which relief may be granted when
it fails to plead "enough facts to state a claim to
relief that is plausible on its face." Bell At!.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To avoid
dismissal for failure to state a claim, plaintiffs must
allege facts sufficient to "raise the right to relief
above the speculative level” Twombly, 550 U.S.
at 555. Mere "labels and conclusions" nor a
"formulaic recitation of the elements of a cause of
action" suffice to state a claim upon which relief may
be granted. Id.
No Liability as to Claims Against the Bureau of Prisons and
Defendants in an Official Capacity
seeks monetary damages, and invokes federal jurisdiction over
his case pursuant to 42 U.S.C. § 1983 and 28 U.S.C.
§ 1343(a)(3). Amend. Compl. (doc. 11) at 1. Because his
claims arose at the Bureau of Prisons FCI-Big Spring
facility, the Court liberally construes Plaintiffs claims to
arise under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388, 389-98
(1971). In the Bivens case, the Supreme Court
recognized an individual's right to seek recovery for
violation of constitutional rights by a person acting under
color of federal law. 403 U.S. at 297. Bivens is the
counterpart to 42 U.S.C. § 1983, and extends the
protections afforded under § 1983 to parties injured by
federal actors. See Evans v. Ball, 168 F.3d 856, 863
n. 10(5th Cir. 1999) ("A Bivens action is
analogous to an action under § 1983-the only difference
being that § 1983 applies to constitutional violations
by state, rather than federal officials"), overruled
on other grounds, Castellano v. Fragozo, 352 F.3d
939, 948-49 & n. 36 (5th Cir. 2003).
Bivens decision only provides a remedy for victims
of constitutional violations by government officers in their
individual capacities. A Bivens action does not
provide for a cause of action against the United States.
See Affiliated Prof I Home Health Care Agency v.
Shalala, 164 F. 3 d 282, 286 (5th Cir. 1999). Nor may
a Bivens action be brought against a federal agency,
such as Bureau of Prisons. See FDIC v. Meyer, 510
U.S. 471, 484-86 (1994); Moore v. United States Dep't
of Agric, 55 F.3d991, 995 (5th Cir. 1995). Claims
against federal employees in their official capacities based
on alleged constitutional violations are also barred under
Bivens because they are the equivalent to claims
against the federal agencies who employ the employees.
See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).
This is because the purpose of a Bivens action is to
deter a federal officer from violating a person's
constitutional rights. Meyer, 510 U.S. at 485;
Correctional Servs. Corp. v. Malesko, 534 U.S. 61,
70 (2001). Because a Bivens action cannot be brought
against a federal agency or individual employees in their
official capacities, Plaintiff has not alleged a viable
Bivens claim against the Bureau of Prisons or
against the individual defendants in an official capacity.
Lack of Sufficient Personal Involvement
order to state a Bivens claim, the claimant must
allege personal involvement of a defendant.
Guerrero-Aguilar v. Ruano,118 Fed.Appx. 832, 833
(5th Cir.2004). Federal officials cannot be held vicariously
liable for the acts of subordinates under the doctrine of
respondeat superior. Cronn v. Buffington,150F.3d
538, 544 (1998) (citing Abate v. Southern Pac. Transp.
Co.,993 F.2d 107, 110 (5th Cir. 1993)). Thus, in order
to be liable, a prison official must either be personally
involved in the acts that caused the constitutional
deprivation, or must "implement a policy so deficient
that the policy itself acts as a deprivation of
constitutional rights." Cronn, 150 F.3d at 544
(citing Thompkins v. Belt,828 F.2d 298, 304 (5th