Marrero v. U S Bureau of Pris

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 26, 1996
• Docket: 95-30819
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-30819 Summary Calendar ___________________

ANTHONY MARRERO, Plaintiff-Appellant,

versus

U. S. BUREAU OF PRISONS; OFFICER ANTOINE; ROBERT BOYD Defendants-Appellees

________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (CA-94-1720) ________________________________________________

February 19, 1996 Before KING, GARWOOD and DENNIS, Circuit Judges.*

PER CURIAM:

Plaintiff-Appellant Anthony Marrero (Marrero), a federal

prisoner confined at F.C.I. Oakdale, Louisiana, brought this suit

against the U.S. Bureau of Prisons (the Bureau) and Bureau

officials Lieutenant Boyd (Boyd) and Officer Antoine (Antoine),

complaining that he was not protected from an assault by a fellow

inmate. The defendants filed a motion to dismiss under Rules

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 12(b)(1) and (6) directed to Marrero’s second amended, and final,

complaint; Morrero filed a response to the motion; the Magistrate

Judge thereafter issued a memorandum recommending that the motion

be granted and the suit be dismissed; Marrero filed objections; and

the district court, after reviewing the record, the recommendations

and the objections, accepted the report and dismissed the suit with

prejudice. Marrero appeals. We affirm in part and vacate and

remand in part.

Marrero has no claim under the Federal Tort Claims Act,

because the United States is the only proper defendant in such a

suit and because administrative remedies were not exhausted.

Vernell v. U.S. Postal Service, 819 F.2d 106, 109 (5th Cir. 1987);

McAfee v. Fifth Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert.

denied, 110 S.Ct. 1141 (1990). State law claims are likewise

prohibited as it is alleged that the individual defendants were

acting in the scope of their employment with the Bureau. See 28

U.S.C. § 2679(b)(1).

The question remains whether Marrero has alleged a claim under

Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) for violation of

his constitutional rights. However, such a claim does not run

against the United States or its agencies, such as the Bureau, but

only against individual defendants.1 As to individual defendants,

the relevant standard is that set out in Farmer v. Brennan, 114

1 F.D.I.C. v. Meyer, 114 S.Ct. 996, 1005-1006 (1994); Enplanar Inc. v. Marsh, 11 F.3d 1284, 1294 n.12 (5th Cir.), cert. denied, 115 S.Ct. 312 (1994); Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 380 (5th Cir. 1987).

2 S.Ct. 1970, 1976 (1994) holding that an Eighth Amendment failure to

protect claim may be made out if a prisoner is assaulted and

injured by other prisoners as a result of incarceration under

conditions posing a substantial risk of serious harm to his safety

and subjective deliberate indifference of the defendant prison

officials to the prisoner’s safety.

Considering Marrero’s pro se status, we conclude that for

purposes of a Rule 12(b)(6) motion he adequately alleged a

substantial risk of serious harm. As to Boyd, although the

complaint mostly alleged some variety of negligence, it plainly

charges Boyd with knowledge of the danger to Marrero and expressly

charges Boyd with “deliberate indifference.” While the complaint

should, but does not, allege what Boyd, with such deliberate

indifference, did or failed to do which contributed to the assault,

that defect was not asserted in the motion to dismiss or the

Magistrate Judge’s report, and under the circumstances, including

Marrero’s pro se status, should not have resulted in dismissal with

prejudice, as the matters alleged in the complaint do not suggest

that this deficiency cannot be remedied.2

On the other hand, as to Antoine only some form of negligence

is alleged. Thus it is alleged that Antoine was “negligent for

putting him in a cage with other inmates and also for opening the

cage without handcuffing the inmates and without assistance from

2 Granting a motion for more definite statement, or even perhaps a dismissal with leave to amend, would be appropriate; likewise, we do not suggest that Boyd may not be able to prevail on a motion for summary judgment (as to either prong of Farmer).

3 other staff”, and that “[t]he guard did not hurt the inmate

directly, but the guard’s unintentionally forgetfulness, (his

negligence) in putting the inmate in the same recreation cage with

other inmates and opening the cage without other staffs assistance

while other inmates were fighting caused inmate’s injuries.” It is

also alleged that when a fight between other inmates broke out in

the cage Antoine “opened the recreation cage to try to control the

situation”. There is no allegation that Antoine knew or had been

informed of threats or danger to Marrero or that any who might be

out to get him were in the cage. Under Farmer the allegations

against Antoine do not state a Bivens claim. See also Davidson v.

Cannon, 106 S.Ct. 668 (1986); Johnston v. Lucas, 786 F.2d 1254 (5th

Cir. 1986).

Accordingly, the judgment below is affirmed as to the Bureau

and Antoine, but as to Boyd it is vacated and the cause is remanded

as to him for further proceedings not inconsistent herewith.

AFFIRMED in part; VACATED and REMANDED in part.