Cardona v. Federal Bureau of Prisons

          MEMORANDMUM OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         Plaintiff 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.^[1]

         The 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).

         ALLEGATIONS OF THE COMPLAINT

         In his 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 punishment.

         DISCUSSION

         Having 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).

         Cardona, 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.

         That 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.”).

         A 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).

         In 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).

         CONCLUSION

         Accordingly, IT IS ORDERED that:

         1. The 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 America” ...