Bishawi v. Northeast Ohio Correctional Center

628 F. App'x 339
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 17, 2014
DocketNo. 14-3194
StatusPublished
Cited by77 cases

This text of 628 F. App'x 339 (Bishawi v. Northeast Ohio Correctional Center) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bishawi v. Northeast Ohio Correctional Center, 628 F. App'x 339 (6th Cir. 2014).

Opinion

ORDER

Ahmad Bishawi, a former federal prisoner proceeding pro se, appeals the district court’s judgment dismissing his civil rights complaint construed as filed pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). This case has been referred to a panel of the court pursuant to Federal Rule of Appellate Procedure 34(a)(2)(C). Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

Seeking monetary and declaratory relief, Bishawi filed a civil rights and state tort action against Northeast Ohio Correctional Center (“NEOCC”), Corrections Corporation of America (“CCA”), and fourteen of NEOCC’s employees. Bishawi alleged negligence, intentional and/or negligent infliction of mental or emotional distress, retaliation and cover-up, procedural and substantive due process violations, racial discrimination, cruel and unusual punishment, and conspiracy in violation of 42 U.S.C. §§ 1983, 1985, and 1986; and 18 U.S.C. § 241.

The district court construed the complaint as being filed pursuant to Bivens, and dismissed it under the screening provisions of 28 U.S.C. § 1915(e), concluding that: (1) under Correctional Services Comp. v. Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), Bivens does not extend to the claims against CCA and NEOCC; (2) under Minneci v. Pollard, — U.S. -, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012), Bivens does not provide a federal remedy for claims with alternative state tort law remedy, (3) Bishawi failed to state a claim for retaliation; (4) Bishawi failed to state a claim for a denial of procedural due process; (5) his substantive due process claim was duplicative of his First Amendment retaliation claim; (6) Bishawi failed to show an equal protection violation; (7) the prison conditions described by Bishawi did not amount to an Eighth Amendment violation; and (8) Bishawi failed to provide any factual allegations to support his conspiracy claims.

Bishawi moved for reconsideration under Federal Rule of Civil Procedure 59(e), arguing, in part, that § 1983 allows suit against NEOCC and its employees because NEOCC was a “state actor” under contract with the City of Youngstown, Ohio. The district court denied the motion.

On appeal, Bishawi argues that: (1) NEOCC is a state actor for the purposes of § 1983 because it operates under contract with the City of Youngstown; (2) the district court erred in requiring a heightened pleading standard; (3) the district court erred in denying Bishawi’s request that his complaint be dismissed “without prejudice” if his Rule 59(e) motion was denied; (4) the district court erred by denying him the opportunity to amend his complaint upon denying his Rule 59(e) motion; and (5) the district court “abused its discretion.”

[342]*342Under the Prison Litigation Reform Act, district courts must screen and dismiss any complaint filed by a prisoner against a govex-nmental entity or an officer or employee of a governmental entity that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a), (b); Grinter v. Knight, 532 F.3d 567, 572 (6th Cir.2008). We review de novo a district court’s dismissal of a suit under §§ 1915(e)(2) and 1915A. Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). “[T]o survive scrutiny under §§ 1915A(b)(l) and 1915(e)(2)(B)(ii), ‘a complaint must contain sufficient factual matter, accepted as trae, to state a claim to relief that is plausible on its face.’ ” Hill, 630 F.3d at 471 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

I. Section 1983 — Privately Owned Prisons

Bishawi first challenges the district court’s determination that his complaint could not be brought under § 1983. Bishawi argues that CCA, NEOCC, and its employees should be considered state actors because the prison was under contract with the City of Youngstown, Ohio, for conveyance of the land on which the prison was built and because NEOCC was subject to State of Ohio inspections. To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Federal Constitution or laws and that the violation was committed by a person acting under color of state law. Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir.2006) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)). When a defendant is a private entity, the entity can be held liable under § 1983 only if its conduct may be “faix-ly attributable to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982) (emphasis added); Richardson v. McKnight, 521 U.S. 399, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997).

At the time of the events complained of, Bishawi was incarcerated at NEOCC, a private prison owned and operated by CCA, a private corporation, to provide services for the federal government. Because NEOCC does not px'ovide sex-vices on behalf of the state, neither NEOCC nor CCA were acting under the color of state law for the purposes of § 1983. Further, NEOCC’s employees cannot be considered state actors because they are employees of a pxivately operated prison, operated for the federal government. Thus, the district court correctly found that § 1983 is not applicable to this case.

II. Bivens Claims

Bishawi next argues that, by dismissing his complaint for failure to state a claim, the district court erroneously required a heightened pleading standard. “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing, that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 677-78, 129 S.Ct. 1937 (quoting Fed.R.Civ.P.

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Bluebook (online)
628 F. App'x 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bishawi-v-northeast-ohio-correctional-center-ca6-2014.