Hanson v. United States

          MEMORANDUM OPINION AND ORDER

          David L. Banning, United States District Judge.

         Bryan Alan Hanson is a federal prisoner who was recently confined at the Federal Correctional Institution (FCI) in Manchester, Kentucky. Proceeding without a lawyer, Hanson filed a Complaint alleging that, on August 21, 2016, FCI-Manchester Officer Mills prevented him from using the toilet and, as a result, he soiled himself in public. (Doc. #1). Hanson therefore brings a claim against Officer Mills pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and argues that Mills violated his constitutional rights. Hanson also asserts Bivens claims against several other defendants, including the Bureau of Prisons (BOP), Warden Butler, Officer Harris, Officer Baker, and Medical Staff Member Wilson, and says that he is suing the defendants in both their official and individual capacities. Hanson also claims that the United States is liable under the Federal Tort Claims Act (FTCA). Hanson is seeking hundreds of thousands of dollars in damages, among other remedies. This case is now before the Court on initial screening pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A.

         As an initial matter, although Hanson names the BOP as a defendant, the Sixth Circuit has made it clear that a plaintiff “cannot pursue a Bivens claim against the BOP because such a claim may not be brought against a federal agency.” Okoro v. Scibana, 63 F. App'x 182, 184 (6th Cir. 2003). The Court will therefore dismiss Hanson's Bivens claim against the BOP.

         Hanson's claims against the defendants in their official capacities are barred by sovereign immunity. That is because the United States as a sovereign is generally immune from suit, see United States v. Sherwood, 312 U.S. 584, 586 (1941). This immunity extends to claims against government agents acting in their official capacities. See Blakely v. United States, 276 F.3d 853, 870 (6th Cir. 2002). While the United States can expressly waive its immunity, see Sherwood, 312 U.S. at 586, it has not done so in Bivens actions. See Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348, 1351-52 (6th Cir. 1989). Therefore, Hanson's Bivens claims against Officer Mills, Warden Butler, Officer Harris, Officer Baker, and Medical Staff Member Wilson in their official capacities are barred. Accordingly, the Court will dismiss these official-capacity claims.

         The Court will also dismiss Hanson's Bivens claims against Warden Butler, Officer Harris, Officer Baker, and Medical Staff Member Wilson in their individual capacities. Although Hanson names Warden Butler as a defendant, he does not allege that the Warden was involved in the incident in question, and “the doctrine of respondeat superior cannot provide the basis for liability in a Bivens action.” Okoro, 63 F. App'x at 184. And although Hanson names Officer Harris, Officer Baker, and Medical Staff Member Wilson as defendants, he does not allege in any clear way that these individuals were directly or indirectly involved in the alleged decision to deny him access to the restroom. Instead, Hanson indicates that these individuals (and several inmates) only witnessed this incident in which he soiled himself. (Doc. #1 at 5).^[1] Given these individuals' apparent lack of personal involvement in the alleged depravation of his rights, the Court will dismiss Hanson's Bivens claims against Officer Harris, Officer Baker, and Medical Staff Member Wilson in their individual capacities. See Nwaebo v. Hawk-Sawyer, 83 F. App'x 85, 86 (6th Cir. 2003) (noting that, in order to recover against a defendant in a Bivens action, the plaintiff must allege that the defendant was “personally involved in the alleged depravation of federal rights.”).

         This leaves Hanson's Bivens claim against Officer Mills in his individual capacity and the FTCA claim against the United States. The Court has conducted an initial review of these claims and concludes that they require a response from the defendants. Since the Court previously granted Hanson pauper status, the Clerk's Office and the United States Marshals Service (USMS) will serve Officer Mills and the United States with a summons and copy of the Complaint on Hanson's behalf. See Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915(d).

         Accordingly, it is ORDERED as follows:

         (1) Hanson's Bivens claim against the BOP is DISMISSED WITH PREJUDICE. The Clerk of the Court shall terminate the BOP as a defendant from this action;

         (2) Hanson's Bivens claims against Warden Butler, Officer Harris, Officer Baker, and Medical Staff Member Wilson in their official and individual capacities are DISMISSED WITH PREJUDICE. The Clerk of the Court shall terminate these persons as defendants from this action;

         (3) Hanson's Bivens claim against Officer Mills in his official capacity is DISMISSED WITH PREJUDICE;

         (4) The Deputy Clerk shall prepare three (3) “Service Packets” for service upon the United States of America and FCI-Manchester Officer Mills. The Service Packets shall include:

(a) a completed summons form;

(b) the Complaint (Doc. ...