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Petrovic v. United States

United States District Court, E.D. Kentucky, Central Division, Lexington

December 19, 2016

JOVICA PETROVIC, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         Plaintiff Jovica Petrovic is an inmate at the Federal Medical Center-Lexington in Lexington, Kentucky. Proceeding without an attorney, Petrovic has filed a civil rights complaint [R. 1] asserting constitutional claims under 28 U.S.C. § 1331, pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Petrovic also alleges negligence and common law tort claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. By separate Order, Petrovic has granted in forma pauperis status in this proceeding.

         The Court conducts a preliminary review of Petrovic's civil rights complaint because he asserts claims against government officials, and because he has been granted in forma pauperis status in this action. 28 U.S.C. §§ 1915(e)(2)(B); 1915A. In such cases, a district court must dismiss any action which (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. Id. Further, the Court liberally construes Petrovic's claims and accepts his factual allegations as true because he is proceeding without an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). As explained below, some of Petrovic's claims will be allowed to proceed, but others will be dismissed for failure to state a claim upon which relief can be granted.

         ALLEGATIONS OF THE COMPLAINT

         Petrovic alleges that he suffers from serious cardiac conditions, atrial fibrillation, diabetes, high blood pressure, and heart palpitations. He claims that on July 19, 2015, in disregard of his serious cardiac and related medical conditions, Defendant Goodwin (FMC-Lexington Officer), maliciously assigned him “extra duty” work assignments (pulling up weeds) during extreme heat conditions, and that Defendant Lawrenz, FMC-Lexington Officer, denied him water while he was performing his extra duty assignments. Petrovic claims that the “extra duty” work assignments and denial of water exacerbated his cardiac and other medical conditions, causing him to experience pain in his head and chest, chronic physical suffering, and emotional distress.

         Petrovic contends that the alleged actions of Defendants Goodwin and Lawrenz constituted deliberate indifference to his serious medical needs, in violation of the Eighth Amendment of the U.S. Constitution, which prohibits cruel and unusual punishment, see R. 1, pp. 4-5, ¶ 14; ¶ 17; ¶ 20; ¶ 23; violated his right to due process of law, guaranteed by the Fifth Amendment of the U.S. Constitution, [1] see id., ¶ 16; ¶ 22; violated his right to free speech, guaranteed by the First Amendment of the U.S. Constitution, see id., p. 5, ¶ 19; and violated his right to remain free from unreasonable search and seizure, guaranteed by the Fourth Amendment of the U.S. Constitution, see id., ¶ 21. Alternatively, Petrovic claims that the defendants' alleged actions constituted negligence and tortious conduct (such as assault and battery) under the common law of Kentucky, and thus are actionable under the FTCA. Petrovic seeks substantial compensatory and punitive damages from the Defendants Goodwin and Lawrenz (in their individual capacities) under Bivens, and from the United States, pursuant to the FTCA.[2] [Id., p. 6]

         DISCUSSION

         The United States will be required to respond to Petrovic's FTCA negligence and common law tort claims. Defendants Goodwin and Lawrenz will be required to respond to Petrovic's Eighth Amendment claims alleging deliberate indifference to his serious medical conditions. The Clerk will be instructed to issue summons for the named defendants as to these specific claims, and the United States Marshal Service (“USMS”) will be directed to serve Defendants Goodwin and Lawrenz according to the instructions set forth below.

         But Petrovic's other federal constitutional claims, alleging denial of due process, freedom of speech, and unreasonable search and seizure, all fail to state claim upon which relief can be granted. “[D]amage claims against governmental officials alleged to arise from violations of constitutional rights cannot be founded upon conclusory, vague or general allegations, but must instead, allege facts that show the existence of the asserted constitutional rights violation recited in the complaint and what each defendant did to violate the asserted right.” Terrance v. Northville Reg'l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir. 2002) (emphasis in original). “[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution, ” because vicarious liability is not applicable to civil rights actions. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).

         While Petrovic alleges facts alleging plausible Eighth Amendment violations, to which Defendants Goodwin and Lawrenz must respond, he alleges no facts in support of his sweeping allegation that he was denied “due process.” Petrovic fails to identify what “process” (either substantive or procedural) was denied, nor does he explain when, where, or how the defendants allegedly violated his broadly described right to “due process.” As previously noted, Petrovic does not allege that he undertook steps in compliance with the BOP's four-step administrative remedy process, so he clearly fails to allege that any of his rights associated with the BOP's administrative remedy process were impaired or obstructed. Even if Petrovic had specifically alleged that he pursued his administrative remedies, but that he received either no response or an unsatisfactory response to same, such allegations would not amount to a violation of due process, because Bivens liability may not be imposed simply where a defendant denied an administrative grievance or failed to act based upon information contained in a grievance. See Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999).

         A civil rights complaint need not contain “detailed factual allegations, ” Twombly, 550 U.S. at 555, but it must have “more than an un-adorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 677. Petrovic's broad and conclusory allegation that he was denied some type of unidentified “due process” does not meet the minimal pleading standard required by Iqbal and is factually unsupported. Moreover, where a particular constitutional amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that amendment, not the more generalized notion of “substantive due process, ” must be the guide for analyzing such claims. Graham v. Connor, 490 U.S. 386, 395 (1989); County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); Albright v. Oliver, 510 U.S. 266, 273 (1994) Petrovic's claim alleging the denial of “due process” will therefore be dismissed for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

         Petrovic alleges that his right to “freedom of speech” was violated, but alleges no facts in support of that broad conclusory allegation. The Court observes that a federal prisoner does not enjoy the same right to freedom of speech as that of a non-prisoner. “In contrast to the rights of a free citizen under the First Amendment or Title VII, a prisoner's rights are more limited, and the contours of a prisoner's First Amendment right to freedom of speech are unclear.” McKinney v. Rutenbar, No. 2:14-CV-220, 2016 WL 4144253, at *2 (W.D. Mich. Aug. 4, 2016) For the reasons set forth above, Petrovic's vague and conclusory claim alleging the denial of his “freedom of speech” is also fatally defective, and will be dismissed for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).

         Finally to the extent that Petrovic alleges that he was subjected to “unreasonable search and seizure, ” in violation of the Fourth Amendment of the U.S. Constitution, he again states no substantive claim for relief. The Fourth Amendment's prohibition against unreasonable search and seizure applies to persons who are not in custody; here, Petrovic is unquestionably in federal custody. A prisoner is not entitled to the protection of the Fourth Amendment against unreasonable searches and seizures. Hudson v. Palmer, 468 U.S. 517, 525-526 (1984) (holding that “…. the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.”)

         To the extent that Petrovic alleges that Defendants Goodwin and Lawrenz subjected him to extreme heat and/or dangerous conditions of confinement in deliberate indifference to his serious medical needs, he has already asserted an Eighth Amendment claim on this same issue, to which the named defendants will be ordered to respond. Thus, Petrovic's Fourth Amendment claim alleging “unreasonable search and seizure” will be dismissed, because it is subsumed within his enumerated Eight Amendment deliberate indifference claims, and his allegation must therefore proceed under the Eighth Amendment's criteria. See Brooks v. Longcore, No. 1:11-CV-1060, 2012 WL 4501011, at *6, n. 2 (W.D. Mich. Jun. 15, 2012).

         CONCLUSION Accordingly, I ...


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