United States District Court, E.D. Kentucky, Southern Division, London
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. ...