United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDMUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Jose Cristobal Cardona is an inmate confined by Bureau of
Prisons (“BOP”) at the United States Penitentiary
(“USP”)-Big Sandy located in Inez, Kentucky.
Cardona has filed a pro se civil rights complaint
[R. 1; as amended at R. 11] in which he asserts
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). Cardona
has previously been granted in forma pauperis status
in this proceeding. See R. 13.
Court conducts a preliminary review of Cardona's
Bivens 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); 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. Because he is
proceeding without any attorney, the Court liberally
construes Cardona's claims and accepts his factual
allegations as true. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-56 (2007).
OF THE COMPLAINT
original complaint [R. 1, ¶ 28], and Amended Complaint
[R. 11], Cardona alleged that in August 2014, Defendant
“S.” Slone, Administrator of Health Services at
USP-Big Sandy, to provide medical treatment for Hepatitis
“C”, which caused him to suffer stomach pain and
other adverse medical effects. See R. 1; ¶ 28;
R. 11, pp. 2-3, ¶¶ 6-13. In both his original and
amended complaints, Cardona further alleged Slone's
“Bonding Company”-an unidentified entity--is
liable for Slone's alleged acts or omissions with respect
to the denial of his medical needs. He names an
“Unknown “Bonding Company” as defendant to
this Bivens action. Cardona seeks unspecified
compensatory and punitive damages from Defendant
“S.” Slone and her “Unknown Bonding
Company;” an order requiring Slone to provide him with
medication for his Hepatitis “C' condition; and all
other relief to which he may be entitled. [R. 11, p. 3]
Cardona's allegations of deliberate indifference to his
serious medical needs fall under the Eighth Amendment of the
U.S. Constitution, which prohibits cruel and unusual
reviewed Cardona's complaint and amended complaint, the
Court will require Defendant “S.” Slone, Health
Administrator at USP-Big Sandy, in her individual
capacity, to respond to Cardona's Eighth Amendment
Bivens claims alleging deliberate indifference to
his serious medical needs set forth in his original and
amended complaints. Cardona's Eighth Amendment claims
asserted against Slone in her official capacity,
will, however, be dismissed with prejudice for failure to
state a claim upon which relief can be granted, see
28 U.S.C. § 1915(e)(2)(ii), because a Bivens
claim alleging a constitutional violation may not be asserted
against federal officers in their official
capacities; such claims may only be asserted against a
federal officials in their individual capacities.
Meyer, 510 U.S. at 484-86; Okoro, 63 F.
App'x at 184 (citing Berger v. Pierce, 933 F.2d
393, 397 (6th Cir. 1991)); Blakely v. United States,
276 F.3d 853, 870 (6th Cir. 2002) (federal employees sued in
their official capacity are immune from suit unless sovereign
immunity has been expressly waived).
a seasoned prisoner litigator, creatively alleges that an
unidentified “Bonding Company” is vicariously
liable for Slone's alleged acts, omissions, and
constitutional violations. No such “Unknown Bonding
Company” exists; Slone is a federal official employed
in an administrative capacity at a federal prison, which
means that she works for the BOP, and hence, for the United
States of America. The Court construes Cardona's claims
against the defendant “Unknown Bonding Company”
as an Eighth Amendment Bivens claim for damages
against the United States of America and/or the BOP.
construed claim will be dismissed because a federal civil
rights action can be brought only against individual federal
officials, not against the United States or its agencies.
Shaner v. United States, 976 F.2d 990, 994 (6th Cir.
1992); Fed. Deposit Ins. Corp. v. Meyer, 510 U.S.
471, 484-86, 114 S.Ct. 996');">114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (a
Bivens claim may not be brought against a federal
agency); Okoro v. Scibana, 63 F. App'x 182, 184
(6th Cir. 2003). Indeed, the United States is immune from
suit unless sovereign immunity has been waived. United
States v. Dalm, 494 U.S. 596, 608 (1990); Loeffler
v. Frank, 486 U.S. 549, 554 (1988); see also United
States v. Mitchell, 463 U.S. 206, 212 (1983) (“It
is axiomatic that the United States cannot be sued without
its consent and that the existence of consent is a
prerequisite for jurisdiction.”).
waiver of sovereign immunity must be clear and unequivocally
expressed. United States v. White Mountain Apache
Tribe, 537 U.S. 465, 472 (2003); United States v.
Nordic Village Inc., 503 U.S. 30, 33-34 (1992). It has
long been established that the United States has not waived
its immunity to suits asserting Bivens claims.
Lundstrum v. Lyng, 1142');">954 F.2d 1142, 1146 (6th
Cir.1991) (per curiam) (“A Bivens action may
not be maintained against the United States.”);
Fagan v. Luttrell, No. 97-6333, 2000 WL 876775, at
*3 (6th Cir. June 22, 2000) (“Bivens claims
against the United States are barred by sovereign immunity.
The United States has not waived its immunity to suit in a
Bivens action.”) (citation omitted).
Cardona's claims seeking monetary damages from the United
States and the BOP will be dismissed with prejudice because
these substituted defendants are immune from such claims. 28
U.S.C. § 1915(e)(2)(iii).
summary, Cardona's construed Eighth Amendment
Bivens claims seeking damages from the United States
of America and/or the Bureau of Prisons (“BOP”)
will be dismissed with prejudice at this stage of the
proceeding (preliminary review), because the United States
and the BOP are immune from such claims. 28 U.S.C. §
1915(e)(2)(iii). The Clerk of the Court will be directed to
terminate the “Unknown Bonding Company” as a
defendant to this action, and to substitute “the United
States of America” and the BOP in its place. The Court
will dismiss with prejudice Cardona's
construed Eighth Amendment Bivens claims against the
United States, the BOP, and Defendant “S.” Slone,
in her official capacity, but will direct the United
States Marshals Service (“USMS”) for the Eastern
District of Kentucky to serve Defendant “S.”
Slone, Administrator of Health Services at USP-Big Sandy (in
her individual capacity), with the summons,
complaint, amended complaint and other necessary documents on
Cardona's behalf, in accordance with the instructions set
forth below. Fed.R.Civ.P. 4(c)(3); 28 U.S.C. § 1915(d).
IT IS ORDERED that:
Clerk of the Court shall TERMINATE, on the
CM/ECF cover sheet, the “Unknown Bonding Company”
as a defendant to this proceeding, and shall
SUBSTITUTE “the United States of