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Turnbaugh v. United States

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

July 2, 2019

KENT EUGENE TURNBAUGH, ID # 727145, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By 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.

         I. BACKGROUND

         On 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), [1] 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.[2] (See doc. 1 at 1; doc. 16 at 1.)[3]

         Plaintiff 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.)

         The 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.)

         Plaintiff 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.)

         II. PRELIMINARY SCREENING

         Plaintiff 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.

         A claim 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).

         III. BIVENS

         As 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, officials”).

         A. Official Capacity

         A 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 constitutional ...


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