Iran Dwayne Ketchup v. William Barr

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 3, 2021
• Docket: 21-10510
• Status: Unpublished

Opinion

USCA11 Case: 21-10510 Date Filed: 08/03/2021 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 21-10510 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-04517-MHC

IRAN DWAYNE KETCHUP,

Plaintiff-Appellant,

versus

WILLIAM BARR, U.S. Attorney General of the United States of America, D. J. HARMON, (Deceased), past Warden of U.S. Penitentiary Atlanta, W. MACKELBURG, past Acting Warden of U.S. Penitentiary Atlanta, D. BAYSORE, past Acting Warden of U.S. Penitentiary Atlanta, ANALYTICAL ENVIRONMENTAL SERVICES, INC., Federal Government Contractor,

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(August 3, 2021)

Before WILSON, ROSENBAUM and MARCUS, Circuit Judges. USCA11 Case: 21-10510 Date Filed: 08/03/2021 Page: 2 of 9

PER CURIAM:

Iran Dwayne Ketchup, a federal prisoner proceeding pro se, appeals the sua

sponte dismissal without prejudice of his civil rights complaint for failure to state a

claim. On appeal, Ketchup argues that he alleged cognizable constitutional claims

and that the district court failed to review his deliberate indifference claim. After

careful review, we affirm.

We review de novo a sua sponte dismissal for failure to state a viable claim

under 28 U.S.C. § 1915A. Leal v. Ga. Dep’t of Corr., 254 F.3d 1276, 1278-79 (11th

Cir. 2001). These dismissals are governed by the same standards we apply to

dismissals for failure to state a viable claim under Federal Rule of Civil Procedure

12(b)(6), and, like in those cases, we view the allegations in the complaint as true.

Jones v. Bock, 549 U.S. 199, 214-15 (2007) (discussing the standards that apply to

sua sponte dismissals, including dismissals under 28 U.S.C. § 1915A(b)(1), in the

context of Rule 12(b)(6) dismissals). Pro se pleadings are liberally construed.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

Section 1915A of the Prison Litigation Reform Act (“PLRA”) provides that

“[t]he court shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity.”

28 U.S.C. § 1915A(a). Upon review, the court is to identify cognizable claims, or

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dismiss the complaint or portions thereof that are frivolous, malicious, fail to state a

claim upon which relief may be granted, or seek monetary relief from a defendant

who is immune from such relief. Id. § 1915A(b). Additionally, a district court shall

dismiss an in forma pauperis action at any time if the court determines that the action

fails to state a claim on which relief may be granted. Id. § 1915(e)(2)(B)(ii).

To survive dismissal for failure to state a claim, “a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted); id. at

680-84 (noting that a viable complaint alleges facts sufficient to move claims across

the line from conceivable to plausible). Factual allegations must be enough to raise

a right to relief above the speculative level, and conclusory allegations that are just

a formulaic recitation of the elements of a constitutional claim will not be assumed

true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, “conclusory

allegations, unwarranted deductions of facts or legal conclusions masquerading as

facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d

1182, 1188 (11th Cir. 2002). A court cannot “read into the complaint facts that are

not there.” Beck v. Interstate Brands Corp., 953 F.2d 1275, 1276 (11th Cir. 1992).

In Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388 (1971), the Supreme Court recognized an implied cause of action for

damages against federal officials based on a violation of a federal constitutional

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right. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). To state a claim for

relief under Bivens, a plaintiff must show that he was deprived of a constitutional

right by a federal official. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990).

The United States and its agencies are not proper defendants in a Bivens action. See

F.D.I.C. v. Meyer, 510 U.S. 471, 484-85 (1994).

Under the Federal Tort Claims Act (“FTCA”), however, the United States is

the only proper defendant. See 28 U.S.C. § 2679(a), (d)(1). To state a claim under

the FTCA, a plaintiff must allege a violation of state tort law by an employee of the

federal government acting within the scope of his employment that resulted in, inter

alia, personal injury. Zelaya v. United States, 781 F.3d 1315, 1323-24 (11th Cir.

2015); 28 U.S.C. § 1346(b)(1). The FTCA expressly excludes contractors with the

United States from its definition of federal agencies. 28 U.S.C. § 2671. We’ve held

that, for constitutional claims, 42 U.S.C. § 1997e(e) bars prisoners from seeking

compensatory damages absent a showing of “more than de minimis” physical injury

but does not bar nominal damages. Brooks v. Warden, 800 F.3d 1295, 1307-08 (11th

Cir. 2015). We’ve also recently held that punitive damages may be recovered for

constitutional violations without a showing of compensable injury. Hoever v.

Marks, 993 F.3d 1353, 1361 (11th Cir. 2021) (en banc).

Under the Safe Drinking Water Act (“SDWA”), a citizen may bring a suit on

his own behalf against another person or government agency for violation of the

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SDWA only when he has given prior notice of his action to the administrator of the

SDWA or the Attorney General. 42 U.S.C. § 300j-8(b). The court, in a citizen’s

civil action under the SDWA, may award costs of litigation or implement a

temporary restraining order or preliminary injunction as remedy. Id. § 300j-8(d).

Eighth Amendment claims of cruel and unusual punishment in prison are

judged under the deliberate indifference standard. Johnson v. California, 543 U.S.

499, 511 (2005). The Eighth Amendment requires both an objective standard and a

subjective standard. LaMarca v. Turner, 995 F.2d 1526, 1535-36 (11th Cir. 1993).

To satisfy the subjective component, “a plaintiff must prove that the official

possessed knowledge both of the infirm condition and of the means to cure that

condition, so that a conscious, culpable refusal to prevent the harm can be inferred

from the defendant’s failure to prevent it.” Id. (quotation omitted) (holding that there

was sufficient evidence to survive summary judgment because complaint alleged

that a prison official was aware of the substantial risk of serious harm and that several

reasonable measures to reduce the risk were available that the prison official failed

to pursue). “Mere knowledge of a substantial risk of serious harm . . . is insufficient

to show deliberate indifference.” Hale v. Tallapoosa Cnty., 50 F.3d 1579, 1583

(11th Cir. 1995). Thus, a plaintiff must produce evidence that, with knowledge of

the substantial risk of serious harm, the government official knowingly or recklessly

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“disregarded that risk by failing to take reasonable measures to abate it.” Id.

(quotation and brackets omitted).

Under Rule 54(b), a decision that adjudicates fewer than all of the claims

presented by the parties does not end the action as to any of the claims or parties

until a final judgment is entered that adjudicates all of the claims of the parties. Fed.

R. Civ. P. 54(b). A judgment is defined as “a decree and any order from which an

appeal lies.” Fed. R. Civ. P. 54(a).

For starters, the record before us reveals that the district court addressed all of

Ketchup’s claims. In its order, the district court disposed of each claim -- including

his deliberate indifference claims -- as to each defendant based on Ketchup’s failure

to state a claim and his failure to allege a sufficient physical injury. Because the

district court entered a final judgment disposing of the entire complaint and

dismissing the action against all the defendants, we are unpersuaded by Ketchup’s

argument that we lack jurisdiction over his appeal. See 28 U.S.C. § 1291; Fed. R.

Civ. P. 54(b).

We also disagree with his argument that the defendants should have been

served or made to respond before his complaint was dismissed. Under the PLRA,

the district court is permitted to dismiss an IFP complaint at any time for failure to

state a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). The district court, therefore, was

permitted to apply § 1915(e)(2)(B)(ii) at the time it did in this case.

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Nor did the district court err by dismissing Ketchup’s complaint for failure to

state a claim against any of the named defendants. As for his claims against

Analytical Environmental Services, Inc. (“Analytical”), Ketchup alleged no facts to

indicate that Analytical was anything other than a private company contracted by the

federal government. This means that Analytical cannot be held liable under Bivens

or the FTCA because it is not an employee of the federal government or a federal

official. Powell, 914 F.2d at 1463; Zelaya, 781 F.3d at 1323-24; 28 U.S.C. § 2671.

To the extent Ketchup sought to raise claims under the SDWA against

William Barr, former Attorney General of the United States; D.J. Harmon, the

deceased past warden of the United States Penitentiary Atlanta (“USP Atlanta”); and

W. Mackelburg, past acting warden of USP Atlanta, these claims fail as well.

Among other things, Ketchup did not allege that he met the requirements for filing

an individual suit under the SDWA -- namely, that he gave proper notice to the

government. 42 U.S.C. § 300j-8(b). It’s also worth noting that he would not be

authorized to recover damages for any violation of the SDWA. Id. § 300j-8(d).

Accordingly, he failed to state a SDWA claim against the defendants.

As for Ketchup’s claims under the FTCA against Warden Mackelburg and D.

Baysore, past Public Information Officer/Executive Assistant, they do not state a

claim either. Notably, Ketchup failed to allege the violation of any state tort law, as

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required by the FTCA, and instead alleged violations of various federal statutes.

Zelaya, 781 F.3d at 1323-24.

As for Ketchup’s Eighth Amendment claims, he failed to allege how Barr, as

the Attorney General, had any involvement with or knowledge of the contamination

of the water system at USP Atlanta. Ketchup claimed that Attorney General Barr

should have known of the allegations of the contamination, but without plausible,

non-conclusory allegations that Barr both knew of his condition and had the means

to cure it, Ketchup’s claim fails under the Eighth Amendment. LaMarca, 995 F.2d

at 1535-36; see also Iqbal, 556 U.S. at 680-84.

Ketchup similarly did not allege how Baysore, in his role as public

information officer, was involved in monitoring the water at USP Atlanta or had the

means to prevent the inmates from drinking the water. Again, without an allegation

that Baysore knew of the condition and possessed the means to address it or cure it,

the Eighth Amendment claim against Baysore does not state a claim either.

LaMarca, 995 F.2d at 1535-36.

Finally, Ketchup failed to sufficiently state a claim for relief under the Eighth

Amendment against former Wardens Mackelburg and Harmon. As the record

reflects, his conclusory allegations were insufficient to support a conclusion that

either warden was liable for any alleged harm to him from the water at USP Atlanta.

For example, Ketchup did not allege when either Mackelburg or Harmon was acting

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in the role of warden, instead making identical allegations about their liability during

the same time period (November 2018 through February 2019), and failing to

provide whether either warden held that position during any relevant period. Nor

did Ketchup provide any other information to support his conclusory claim that

Mackelburg or Harmon were aware of the water’s conditions or its harmful effects

on Ketchup or were able to address the issue during the alleged time period. Beck,

953 F.2d at 1276. As a result, his Eighth Amendment claims against them do not

state a claim. LaMarca, 995 F.2d at 1535-36; see also Iqbal, 556 U.S. at 678;

Twombly, 550 U.S. at 555. Accordingly, Ketchup failed to state a claim against any

named defendant under the SDWA, the FTCA, or the Eighth Amendment, and we

affirm the district court’s sua sponte dismissal of the complaint.

AFFIRMED.