United States District Court, E.D. Kentucky, Northern Division
MICHAEL D. SMITH, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
R. Wilhoit. Jr. United States District Judge
Michael D. Smith is an inmate currently confined at the
Ashland Federal Prison Camp ("FPC") in Ashland,
Kentucky. Proceeding without an attorney, Smith has filed a
civil rights action against the United States of America
pursuant to the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671-80 ("FTCA"). By separate
order, the Court has granted Smith's motion to proceed
without prepayment of the filing fee. [D.E. No. 11]
Court must conduct a preliminary review of Smith's
complaint because he has been granted permission to pay the
filing fee in installments and because he asserts claims
against government officials. 28 U.S.C. §§
1915(e)(2), 1915A. A district court must dismiss any claim
that is frivolous or malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. Hill v.
Lappin, 630 F.3d 468, 470-71 (6th Cir. 2010). When
testing the sufficiency of Smith's complaint, the Court
affords it a forgiving construction, accepting as true all
non-conclusory factual allegations and liberally construing
its legal claims in the plaintiffs favor. Davis v. Prison
Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
complaint, Smith alleges that he has suffered from chronic
sickness and discomfort in his lungs as a result of the
quality of air at FPC-Ashland. [D.E. No. 1] The Court has
reviewed Smith's complaint and finds that, to the extent
that Smith alleges an FTCA claim against the United States, a
response is required from the United States before this
matter may proceed further. Because the Court has waived
payment of the filing fee, the Clerk of the Court's
Office and the United States Marshals Service
("USMS") will serve the summons and Complaint on
Smith's behalf. Fed.R.Civ.P. 4(c)(3); 28 U.S.C. §
although Smith repeatedly characterizes his claim as a tort
claim against the United States filed pursuant to the FTCA,
he also claims that the United States violated his Eighth
Amendment rights. [D.E. No. 1 at p. 7] To the extent that
Smith alleges violations of his constitutional rights, such
claims may only be brought pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
The Bivens doctrine allows a federal prisoner to
bring a money-damages suit against federal officers who
violated certain constitutional rights, including the Eighth
Amendment right to be free from cruel and unusual punishment.
Carlson v. Green, 446 U.S. 14 (1980). However, a
Bivens claim is only properly asserted against
individual federal employees in their individual capacities.
Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.
1991). Thus, Smith may not bring a Bivens claim
against the United States. Correctional Services Corp. v.
Malesko, 534 U.S. 61, 72 (2001)("If a federal
prisoner in a BOP facility alleges a constitutional
deprivation, he may bring a Bivens claim against the
offending individual officer, subject to the defense of
qualified immunity. The prisoner may not bring a
Bivens claim against the officer's employer, the
United States, or the BOP."). Accordingly, to the extent
that Smith's complaint alleges constitutional
Bivens claims against the United States, these
claims will be dismissed.
it is ORDERED as follows:
the extent that Smith's complaint alleges a
constitutional Bivens claim against the United
States of America, this claim is DISMISSED.
Deputy Clerk shall prepare a "Service Packet" for
service upon the United States of America. The Service Packet
a. a completed summons form;
b. the complaint [D.E. No. 1];
c. the Order granting Plaintiff in forma pauperis
status [D.E. No. 11];
d. this Order; and e. a completed USM Form 285.
Deputy Clerk shall deliver the Service Packets to the USMS in
Lexington, Kentucky and note the date of delivery in the
USMS shall serve the United States of America by sending a
Service Packet by certified or registered mail to the Civil
Process Clerk at the Office of the United States Attorney for
the Eastern District of Kentucky; and the ...