IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
JOE LEWIS GOODWIN,
Plaintiff,
v. CASE NO. 24-3060-JWL
UNITED STATES PENITENTIARY LEAVENWORTH,
Defendant.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Joe Lewis Goodwin is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff, a federal prisoner, brings this pro se civil rights action under 42 U.S.C. §1983. Plaintiff is incarcerated at USP-Leavenworth in Leavenworth, Kansas (“USPL”). The Court granted Plaintiff leave to proceed in forma pauperis and he has paid his initial partial filing fee. Plaintiff alleges that during a USPL lockdown that started on February 29, 2024, he was deprived of water, hot meals, clean clothes, and proper restroom facilities, leaving him forced for 29 days to urinate and defecate in trash bags. (Doc. 1, p. 2.) Id. Plaintiff further alleges that on day 30 of the lockdown, cold water was restored, and hot water was restored after day 46. Id. Plaintiff names USPL as the sole defendant and, as the sole count, he alleges that his constitutional right to be free from cruel and unusual punishment was violated. Id. at 1-3, 5. For relief, Plaintiff seeks $500,000.00 and legal fees. Id. at 5. II. Statutory Screening The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)– (2). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570. Civil actions seeking relief from federal officials for alleged violations of constitutional rights are generally brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION 1. Improper Defendant
This matter is subject to dismissal because Plaintiff names USPL as the sole defendant and USPL is not a proper defendant for a Bivens action. Bivens actions must be brought against individual federal agents or officers; they may not be brought against an individual’s employer, the United States, or the Bureau of Prisons. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001); see also Harlin v. USP Leavenworth, 2022 WL 2791180, *2 (D. Kan. July 15, 2022) (holding in a Bivens action that “USPL is not a proper defendant in this matter”). In addition, as explained below, even if Plaintiff named a proper defendant, Plaintiff has not stated a plausible claim for relief. 2. Claims Under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971) In addition, this matter is subject to dismissal because Plaintiff has not shown that a Bivens remedy is available for his claims. The Tenth Circuit recently recognized the Supreme Court’s decision in Carlson v. Green, 446 U.S. 14 (1980), where the Supreme Court implied a damages action for a federal prisoner’s inadequate-care claim under the Eighth Amendment. Noe v. United States Gov’t, 2023 WL 8868491, at *2 (10th Cir. Dec. 22, 2023). The Tenth Circuit in Noe stated that: However, the Supreme Court has since “emphasized that recognizing a cause of action under Bivens is a disfavored judicial activity.” Egbert, 596 U.S.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
JOE LEWIS GOODWIN,
Plaintiff,
v. CASE NO. 24-3060-JWL
UNITED STATES PENITENTIARY LEAVENWORTH,
Defendant.
MEMORANDUM AND ORDER TO SHOW CAUSE
Plaintiff Joe Lewis Goodwin is hereby required to show good cause, in writing to the undersigned, why this action should not be dismissed due to the deficiencies in Plaintiff’s Complaint that are discussed herein. I. Nature of the Matter before the Court Plaintiff, a federal prisoner, brings this pro se civil rights action under 42 U.S.C. §1983. Plaintiff is incarcerated at USP-Leavenworth in Leavenworth, Kansas (“USPL”). The Court granted Plaintiff leave to proceed in forma pauperis and he has paid his initial partial filing fee. Plaintiff alleges that during a USPL lockdown that started on February 29, 2024, he was deprived of water, hot meals, clean clothes, and proper restroom facilities, leaving him forced for 29 days to urinate and defecate in trash bags. (Doc. 1, p. 2.) Id. Plaintiff further alleges that on day 30 of the lockdown, cold water was restored, and hot water was restored after day 46. Id. Plaintiff names USPL as the sole defendant and, as the sole count, he alleges that his constitutional right to be free from cruel and unusual punishment was violated. Id. at 1-3, 5. For relief, Plaintiff seeks $500,000.00 and legal fees. Id. at 5. II. Statutory Screening The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that
seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)– (2). A court liberally construes a pro se complaint and applies “less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). In addition, the court accepts all well-pleaded allegations in the complaint as true. Anderson v. Blake, 469 F.3d 910, 913 (10th Cir. 2006). On the other hand, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” dismissal is appropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). A pro se litigant’s “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555 (citations omitted). The complaint’s “factual allegations must be enough to raise a right to relief above the speculative level” and “to state a claim to relief that is plausible on its face.” Id. at 555, 570. Civil actions seeking relief from federal officials for alleged violations of constitutional rights are generally brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971). The Tenth Circuit Court of Appeals has explained “that, to state a claim in federal court, a complaint must explain what each defendant did to [the pro se plaintiff]; when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific legal right the plaintiff believes the defendant violated.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1163 (10th Cir. 2007). The court “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).
The Tenth Circuit has pointed out that the Supreme Court’s decisions in Twombly and Erickson gave rise to a new standard of review for § 1915(e)(2)(B)(ii) dismissals. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (citations omitted); see also Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009). As a result, courts “look to the specific allegations in the complaint to determine whether they plausibly support a legal claim for relief.” Kay, 500 F.3d at 1218 (citation omitted). Under this new standard, “a plaintiff must ‘nudge his claims across the line from conceivable to plausible.’” Smith, 561 F.3d at 1098 (citation omitted). “Plausible” in this context does not mean “likely to be true,” but rather refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it
innocent,” then the plaintiff has not “nudged [his] claims across the line from conceivable to plausible.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Twombly, 127 S. Ct. at 1974). III. DISCUSSION 1. Improper Defendant
This matter is subject to dismissal because Plaintiff names USPL as the sole defendant and USPL is not a proper defendant for a Bivens action. Bivens actions must be brought against individual federal agents or officers; they may not be brought against an individual’s employer, the United States, or the Bureau of Prisons. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001); see also Harlin v. USP Leavenworth, 2022 WL 2791180, *2 (D. Kan. July 15, 2022) (holding in a Bivens action that “USPL is not a proper defendant in this matter”). In addition, as explained below, even if Plaintiff named a proper defendant, Plaintiff has not stated a plausible claim for relief. 2. Claims Under Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971) In addition, this matter is subject to dismissal because Plaintiff has not shown that a Bivens remedy is available for his claims. The Tenth Circuit recently recognized the Supreme Court’s decision in Carlson v. Green, 446 U.S. 14 (1980), where the Supreme Court implied a damages action for a federal prisoner’s inadequate-care claim under the Eighth Amendment. Noe v. United States Gov’t, 2023 WL 8868491, at *2 (10th Cir. Dec. 22, 2023). The Tenth Circuit in Noe stated that: However, the Supreme Court has since “emphasized that recognizing a cause of action under Bivens is a disfavored judicial activity.” Egbert, 596 U.S. at 491 (internal quotation marks omitted). Accordingly, the Court eventually settled on a two-step analysis of proposed Bivens claims. At step one, a court has to consider “whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningfully’ different from the three cases in which the [Supreme] Court has implied a damages action.” Id. at 492 (brackets omitted) (quoting Ziglar v. Abbasi, 582 U.S. 120, 139 (2017)). And at step two, “if a claim arises in a new context, a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’ ” Id. (quoting Abbasi, 582 U.S. at 136).
Noe argues that his Bivens claim is cognizable because the factual context of his case is like the factual context in Carlson, and factual similarity is sufficient to permit [] Bivens claims to proceed regardless of whether a plaintiff has a meaningful alternative remedy. Noe also argues that the BOP’s Administrative Remedy Program (ARP) is not a meaningful alternative to a civil action. Because the district court dismissed the Bivens claim with prejudice for failure to state a claim for relief, our review is de novo. See Albers v. Bd. of Cnty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014).
We need not decide whether Noe’s case is meaningfully different from Carlson, because in the wake of Egbert and Silva v. United States, 45 F.4th 1134 (10th Cir. 2022), the availability of the ARP is sufficient to foreclose a Bivens claim despite any factual similarity between the two. In Silva, we observed that Egbert “appeared to alter the existing two-step Bivens framework by stating that ‘those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.’ ” 45 F.4th at 1139 (quoting Egbert, 596 U.S. at 492). And we viewed “the key takeaway from Egbert” as being “that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs.’ ” 45 F.4th at 1141 (quoting Egbert, 596 U.S. at 494) (emphasis and brackets in Silva). We concluded that, in light of Supreme Court precedent, “the [ARP] is an adequate ‘means through which allegedly unconstitutional actions can be brought to the attention of the BOP and prevented from recurring.’ ” Id. (ellipsis omitted) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)). And “ ‘[b]ecause Bivens is concerned solely with deterring the unconstitutional acts of individual officers,’ ” we determined that “the availability of the [ARP] offers an independently sufficient ground to foreclose [a] Bivens claim” brought by a federal prisoner. Id. (quoting Egbert, 596 U.S. at 498). [FN 3]
Read together, Egbert and Silva direct that where the government has provided an alternative remedy, a court generally should not recognize a Bivens claim even if the factual context is not meaningfully different from that in Bivens, Davis, or Carlson. And here, the ARP, which Silva says is an adequate alternative remedy, is available to Noe. Thus, Noe’s Bivens claim is, as the district court concluded, not cognizable.
As Noe points out, at least one district court (outside the Tenth Circuit) has said that if the context is not meaningfully different from Bivens, Davis, or Passman, the analysis ends there, and the Bivens claims can proceed without the step-two inquiry into whether an adequate alternative remedy exists. See Kennedy v. Massachusetts, 643 F. Supp. 3d 253, 259 (D. Mass. 2022) (“[B]ecause this court is not fashioning a new Bivens context, the Court need not consider alternative remedial structures.”). [FN 4] But precedential decisions of this court bind later panels unless there has been “en banc reconsideration or a superseding contrary decision of the U.S. Supreme Court.” United States v. Ensminger, 174 F.3d 1143, 1147 (10th Cir. 1999) (internal quotation marks omitted). Because neither of those conditions is satisfied, we are bound by Silva’s interpretation of Egbert.
Id. at *2–3 (footnotes omitted).1 Based on the reasoning set forth in the recent Tenth Circuit opinion in Noe, the Court finds that Plaintiff’s Complaint fails to state a claim for relief under Bivens.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until July 8, 2024, in which to show good cause, in writing to the undersigned, why Plaintiff’s Complaint should not be dismissed for the reasons stated herein. IT IS SO ORDERED. Dated June 6, 2024, in Kansas City, Kansas. S/ John W. Lungstrum JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
1 The Tenth Circuit noted in footnotes 3 and 4 that:
FN3: In Silva, we noted that Egbert did not overrule Abbasi and that there was some tension between Abbasi’s two- step approach and Egbert’s apparent collapsing of those two steps into one. See 45 F.4th at 1139 & n.4. But we “decline[d] to address or resolve any [such] tension . . . because it [was] not necessary to dispose of the appeal before us.” Id. Likewise, here, we may decide this appeal without resolving any tension between Abbasi and Egbert given our reliance on Silva’s interpretation of Egbert.
FN4: Noe relies on another case taking the same approach, Ibuado v. Federal Prison Atwater, No. 1:22-cv-00651, 2022 WL 16811880, at *4 (E.D. Cal. Nov. 8, 2022) (unpublished), but that decision—a magistrate judge’s recommendation—was vacated by the magistrate judge before the district court ever ruled on it, see 2023 WL 159568, at *1 (E.D. Cal. Jan. 11th, 2023) (unpublished).