Fambrough v. Schroeder

Opinion

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION

HEATHER L. FAMBROUGH and WILLIAM L. FAMBROUGH,

Plaintiffs,

v. Case No. 2:19-cv-00159-NKL

KENT SCHROEDER, JANET MCCARTHY, and BRUCE MCKIMENS,

Defendants. ORDER Defendant Janet McCarthy moves to dismiss for failure to state a claim the complaint brought against her by plaintiffs Heather L. Fambrough and William L. Fambrough. For the reasons discussed below, the motion to dismiss is GRANTED. I. ALLEGED FACTS The pro se plaintiffs’ complaint is on a form titled, “Complaint for Violation of Civil Rights.” Doc. 4 (Complaint). In a section titled, “Basis for Jurisdiction,” the form explains: “Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), you may sue federal officials for the violation of certain constitutional rights.” Id., p. 3. In that section, Plaintiffs checked a box indicating that they were suing “Federal officials (a Bivens claim).” Id. When asked to “explain how each defendant acted under color of federal law,” Plaintiffs stated, in relevant part, “The Social Security Administration refused to grant an appeal hearing as required by law; conducted an illegal search and seizure; and violated Heather Fambrough’s right to life, liberty, and property without due process. Kathy [sic] McCarthy’s false statements aided the Government in this endeavor . . . .” Id., p. 4. McCarthy moves to dismiss the complaint for failure to state a claim. Doc. 10.

II. DISCUSSION Plaintiffs’ complaint alleges Bivens violations by each defendant. It does not assert any other claims. McCarthy argues that the complaint against her must be dismissed because Bivens claims may be brought against only federal officials. Bivens permits suits against federal officials for the violation of certain constitutional rights. 403 U.S. at 388. The complaint form that Plaintiffs used explains this point. Doc. 4, p. 3. Bivens does not permit suits against private individuals. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (“In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed.2d 619 (1971), we recognized for the first time an implied private action for damages against

federal officers alleged to have violated a citizen’s constitutional rights. Respondent now asks that we extend this limited holding to confer a right of action for damages against private entities acting under color of federal law. . . . We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here.”). Plaintiffs’ complaint acknowledges—and Plaintiff’s response to the motion to dismiss in effect concedes—that McCarthy is the administrator of a private facility, Golden Living Center - Smithville, and not a federal official. Moreover, Plaintiffs do not allege that McCarthy acted under color of federal authority. Plaintiffs therefore cannot bring a Bivens claim against McCarthy. The complaint against McCarthy accordingly must be dismissed for failure to state a claim. III. CONCLUSION For the reasons discussed above, McCarthy’s motion to dismiss the complaint against her is GRANTED. The complaint against McCarthy is dismissed without prejudice.

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

Dated: July 11, 2019 Jefferson City, Missouri