United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order No. 3-251, this pro se
prisoner case has been automatically referred for findings,
conclusions, and recommendation. Based on the relevant
filings and applicable law, the plaintiff's complaint
should be DISMISSED.
January 26, 2017, Kent Eugene Turnbaugh (Plaintiff), filed
this lawsuit under the Federal Tort Claims Act (FTCA), 28
U.S.C. § 2671, et seq., and Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971),  expressly naming the United States, the
United States Attorney General, the Warden of the Federal
Correctional Institute at Seagoville, Texas (FCI-Seagoville),
and a corrections officer there as defendants. (See
doc. 1 at 1; doc. 16 at 1.)
claims that on December 23, 2014, he attempted to obtain pain
medicine at the pharmacy in FCI-Seagoville, where he was an
inmate, but was notified that the medicine had been
discontinued. (doc. 1 at 6.) He returned to the line to speak
to the pharmacist and was waiting when a corrections officer
told him to remove his headphones. He started to comply but
told the officer that the MP-3 player was not on. The officer
called him over and told him that he could not wear
headphones or have the MP-3 player on. (Id.)
officer noticed that Plaintiff's cap had his name written
on it and told him that he was not supposed to alter his
clothing. Plaintiff responded that he thought that he could
mark his personal clothing. When the officer moved within
inches of Plaintiff's face and said that this was not an
“‘a' or ‘b' conversation, ”
he asked the officer to step back from his personal space.
(Id.) T h e officer said that they were going to the
Lieutenant's office, grabbed Plaintiff's right arm,
and started walking him down a hall. (Id. at 7.)
Plaintiff, who has Parkinson's disease and was walking
with a cane in his right hand, lost his balance and started
to fall to the right. He tried to pull his right hand and arm
forward, which was away from the officer, to break his fall.
He landed on the left side of his body and face. The officer
moved on top of him, put his knee in Plaintiff's back to
hold him down as he tried to handcuff him, and used both
hands to push Plaintiff's upper body and face to the
floor “with great force.” He did not try to
resist being handcuffed. (Id.) Plaintiff received a
disciplinary case for “Assault on Staff, ” the
disciplinary case report rejected his version of the
incident, and he lost good conduct time as a result of the
disciplinary case. (Id. at 32.)
claims he was assaulted by the officer and suffered a
detached retina in his right eye from his face being
“smashed to the floor, ” and that supervisory
officials were responsible for the officer's actions.
(See doc. 1 at 9-11.) All of his claims arise from
the officer's alleged use of force. He seeks a finding
that the defendants violated his rights and monetary damages.
(See docs. 1 at 8; 16 at 2.)
is an inmate who has been permitted to proceed in forma
pauperis. As a prisoner, 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.
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 claim 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 Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
noted, Plaintiff sues under Bivens. In
Bivens, the Supreme Court held that the violation of
a person's constitutional rights by a federal official
may give rise to an action for monetary damages in federal
court. 403 U.S. at . Bivens is “the
counterpart to 42 U.S.C. § 1983, ” and it extends
the protections afforded under § 1983 to parties injured
by federal actors. Chapman v. United States, No.
4:06-CV-0426-Y, 2006 WL 3831227, at *1 n.8 (N.D. Tex. Dec.
27, 2006); see also Evans v. Ball, 168 F.3d 856, 863
n.10 (5th Cir. 1999) (recognizing that “[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,
Bivens action only provides a remedy for victims of
constitutional violations by government officers in their
individual capacities; it does not provide for a cause of
action against the United States. Affiliated Prof'l
Home Health Care Agency v. Shalala, 164 F.3d 282, 286
(5th Cir. 1999). Nor may a Bivens action be brought
against a federal agency. FDIC v. Meyer, 510 U.S.
471, 484-86 (1994); Moore v. United States Dep't of
Agriculture, 55 F.3d 991, 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 equivalent to claims against
the federal agencies who employ those employees. See
Kentucky v. Graham, 473 U.S. 159, 165-67 (1985). This is
because the purpose of a Bivens cause of action is
to deter a federal officer from violating a person's