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Thompson v. Crnkovich

United States District Court, N.D. Texas, Abilene Division

November 16, 2017

ROBERT ALAN THOMPSON, Fed. Reg. # 17709-280, Plaintiff,
v.
T. CRNKOVICH, et al, Defendants.

          OPINION AND ORDER OF PARTIAL DISMISSAL UNDER 28 U.S.C. SS 1915A & 1915(E)(2)(B) [1]

          E. SCOTT FROST UNITED STATES MAGISTRATE JUDGE

         This 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. (Doc. 18.)

         I. BACKGROUND/PLEADING

         In 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.)

         II. PRELIMINARY SCREENING UNDER § 1915A and § 1915(e)(2)(B)

         Plaintiff 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.

         A 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.

         III. ANALYSIS

         A. No Liability as to Claims Against the Bureau of Prisons and Defendants in an Official Capacity

         Plaintiff 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).

         But the 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.

         B. Lack of Sufficient Personal Involvement

         In 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 Cir. ...


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