United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
Gregory F. Van Tatenhove United States District Judge
Michael Greene is an inmate confined at the United States
Penitentiary (“USP”)-Canaan in Waymart,
Pennsylvania. Proceeding without an attorney, Greene filed a
civil rights action against prison officials pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971), the Federal Tort Claims Act, 28 U.S.C.
§§ 1346(b), 2671-80 (“FTCA”), and
Kentucky state law. [R. 6, 6-1]
separate order, the Court has granted Greene's motion to
proceed without prepayment of the filing fee. [R. 9] Thus,
the Court must conduct a preliminary review of Greene's
complaint pursuant to 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. McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997),
abrogated on other grounds, Jones v. Bock, 549 U.S.
Court evaluates Greene's complaint under a more lenient
standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003).
At this stage, the Court accepts the plaintiff's factual
allegations as true, and his legal claims are liberally
construed in his favor. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007). However, the
principles requiring generous construction of pro se
pleadings are not without limits. Wells v. Brown,
891 F.2d 591, 594 (6th Cir. 1989); Wilson v. Lexington
Fayette Urban County Government, No. 07-cv-95-KSF, 2007
WL 1136743 (E.D. Ky. April 16, 2007). A complaint must set
forth claims in a clear and concise manner, and must contain
sufficient factual matter, accepted as true, to “state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
See also Fed. R. Civ. P. 8. In addition, “a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of a cause
of action's elements will not do.”
Twombly, 550 U.S. at 555.
although the Court has an obligation to liberally construe a
complaint filed by a person proceeding without counsel, that
obligation does not extend so far as to require or permit it
to create arguments or claims that the plaintiff has not
made. Coleman v. Shoney's, Inc., 79 Fed.Appx.
155, 157 (6th Cir. 2003) (“Pro se parties must still
brief the issues advanced with some effort at developed
argumentation.”). Thus, vague allegations that one or
more of the defendants acted wrongfully or violated the
plaintiff's constitutional rights are not sufficient.
Laster v. Pramstaller, No. 08-CV-10898, 2008 WL
1901250, at *2 (E.D. Mich. April 25, 2008). The Court is not
required to create a claim for the plaintiff, nor to
“conjure up unpled allegations.” Moorman v.
Herrington, No. CIV A 4:08-CV-P127-M, 2009 WL 2020669,
at *1 (W.D. Ky. July 9, 2009)(citations omitted).
reviewing the substance of Greene's claims, the Court
must first address the manner in which Greene has chosen to
proceed in this litigation thus far. Greene's original
complaint [R. 1] consists of a 10-page, single-spaced
document typed in an extremely small font that purports to
bring fifteen different types of claims against twenty-one
different defendants at two different federal Bureau of
Prisons (“BOP”) facilities, with no real effort
to articulate which particular type of claim (e.g., excessive
force, negligence, assault and battery, intentional
infliction of emotion distress, etc.) is alleged against each
individual defendant. In addition, Greene's claims are
confusingly set forth in a narrative form that is rambling,
repetitive, and often digresses into commentary offering
Greene's own subjective theories and opinions on various
practices and procedures followed by the BOP and the
Department of Justice (“DOJ”). Because
Greene's original complaint was not filed on a form
approved for use by this Court as required by Local Rule
5.2(a)(4), the Court forwarded the appropriate form to Greene
and directed him to re-file his complaint using the
Court's form. [R. 5] The Court further instructed Greene
to “describe the facts of his case,
specifically identifying the people, dates, places, and
actions which are relevant to his claims, and explain what he
wants the Court to do.” [Id. (emphasis in
the Court's instructions to describe only the facts of
his claims, Greene re-filed his complaint using the form
provided by the Court and incorporated his original complaint
by reference. [R. 6, 6-1] This approach directly contradicts
the Court's clear instructions, which were actually
intended to help Greene simplify his complaint so that it
might comply with the requirements of the Federal Rules of
Civil Procedure. Indeed, Greene's “amended”
complaint continues to run afoul of Rule 8 of the Federal
Rules of Civil Procedure, which requires a complaint to set
forth its claims in a manner that is “short and
plain.” See generally Fed. R. Civ. P. 8(a).
Despite these shortcomings, the Court will nevertheless
review Greene's claims in order to move this matter
sure, Greene's allegations sweep broadly, alleging a
variety of claims against twenty-one defendants at two
different federal facilities based upon multiple separate
incidents.However, from what the Court is able to
ascertain, Greene's complaint arises from several
separate incidents that he claims occurred throughout 2017
and 2018 at both USP-Big Sandy in Inez, Kentucky, and at
USP-McCreary in Pine Knot, Kentucky.
alleges that, in November 2017, Defendant Officer Amanda
Hirst watched him shower, which he claims female officers are
not allowed to do. He further alleges that, in December 2017,
Defendant Officer Uzley strip-searched Greene while Officer
Hirst watched. Greene claims that he was then retaliated
against for a complaint he filed against Officers Hirst and
Uzley alleging violations of the Prison Rape Elimination Act
(“PREA”), 42 U.S.C. § 15601 et seq.
based upon these incidents. Specifically, he alleges that
Officers Hirst and Uzley threatened and intimidated him;
Officer Ferguson used excessive force against him in an
incident which he claims was orchestrated by Officer Hirst;
and Officer Hirst, Officer Ferguson, and two other male
officers conspired to issue a fraudulent incident report
issued against Greene falsely accusing him of threatening
further alleges that, after he notified Lt. Kuntzman of
“serious staff misconduct” related to Officers
Hirst and Uzley, Lt. Kuntzman retaliated against him.
According to Greene, Lt. Kuntzman falsely cited Greene's
use of a window covering in his cell as justification for
spraying Greene's cell with an excessive amount of
“OC spray, ” which cut off Greene's breathing
and burned his skin, which Greene claims was an excessive use
of force. He further claims that, after he was extracted from
his cell and taken to a shower area for decontamination, Lt.
Kuntzman and staff intentionally made the water too hot so
that he could not shower, then denied Greene shoes, forcing
him to walk barefoot through an area contaminated with human
feces and urine.
claims that, after Greene returned to his cell, he covered
his window again, at which point Lt. Kuntzman and staff
returned to his cell, led him to the USP-Big Sandy medical
department and placed him in four-point restraints. He then
claims that, after Greene told Lt. Armes that he had not been
allowed to properly decontaminate after he had been sprayed
with the OC spray, Lt. Armes told him that he would allow
Greene to decontaminate if Greene engaged in a sexual act
with Officer Mitchell. Greene claims that he refused, but
that Lt. Armes continued to threaten Greene with sexual
assault. He claims that this incident constitutes
“calculated torture” and was the result of a
conspiracy among Lt. Meade, Lt. Kuntzman, Lt. Armes, USP-Big
Sandy's Captain, Warden Kizziah, Officer Mitchell, and
John Does, as these Defendants all had a duty to protect
Greene from the use of excessive force, cruel and unusual
punishment and torture and/or report that it had occurred.
Greene alleges that, by failing to do so, each Defendant
became “complicit conspirators” in a conspiracy
to violate Greene's “civil rights, constitutional
rights, [Greene's] rights related to Kentucky Laws and
the Federal Tort Claims Act.” Greene then claims that
he was forced to return to his cell that had been sprayed
with “O.C. spray gas, ” but had not been
Greene alleges that, in February 2018, Greene was interviewed
by Defendant Special Agent McMahan (whom Greene identifies as
a special agent with the DOJ's Office of the Inspector
General) regarding Greene's claims of sexual misconduct.
Greene states that he asked Special Agent McMahan why it had
taken him so long to show up and McMahan responded,
“This is the federal government everything moves
slow.” Greene alleges that the failure of the DOJ to
timely intervene after his complaints caused Greene's
physical assault by Officer Ferguson. He also alleges that
the DOJ failed to properly supervise Special Agent McMahan to
ensure that he timely responded to Greene's PREA
complaints. Greene also refers to some difficulty he
encountered obtaining BP-8 forms from Counselor Lockwood and
Associate Warden Garza, although neither Lockwood nor Garza
are identified as Defendants.
alleges that he was then transferred to USP-McCreary. With
respect to the staff at USP-McCreary, Greene alleges that: 1)
he was strip-searched by Officer Gadsbury “for no
legitimate reason” while Gadsbury stared at
Greene's private parts; 2) Dr. Parsons failed to provide
him with brochures and documents that he claims a non-profit
organization had left with her to give to Greene, acting with
deliberate indifference to Greene's mental health needs;
3) when questioned by “plaintiff B.M.” (it is
unclear if this is a reference to Greene or another inmate),
Warden Gregory Kizziah stated that an officer may stick his
hands in the front of an inmates' pants during a pat
search; 4) in May 2018, a nurse with USP-McCreary's
medical department was deliberately indifferent to
Greene's medical needs when he requested treatment for
the burns he claims to have suffered at USP-Big Sandy.
remainder of Greene's complaint expresses dissatisfaction
with a variety of the policies and practices of the DOJ and
the BOP. For example, he alleges that the DOJ's practices
with respect to PREA complaints are wholly inadequate,
grossly negligent, and violate inmates' constitutional
rights. He also complains of the BOP's policies regarding
the use of chemical spray, four-point restraints, strip
searches, pat downs, as well as its policies regarding sexual
on his allegations, Greene alleges the following claims
(although it is not entirely clear which claims he alleges
against which defendant): excessive force, cruel and unusual
punishment, negligence, assault and battery, intentional
infliction of emotional distress, torture, conspiracy to
violate plaintiff's civil and constitutional rights,
negligent hiring, training, supervising, evaluating and
retention, conditions of confinement, inadequate and
deliberately indifferent medical and mental health care,
sexual harassment, sexual assault, failure to protect,
invasion of privacy, and denial of due process. [R. 6-1 at p.
1] Greene seeks damages in the amount of $39, 700, 000.00. He
further states that he is suing each named Defendant in their
individual and official capacities.
sure, it is not clear whether Greene has fully exhausted his
administrative remedies with respect to any of his claims. He
claims that he has “vigorously attempted” to do
so, but his efforts have been thwarted by BOP staff. [R. 6-1
at p. 2] Moreover, in light of the vague nature of
Greene's allegations, coupled with the lack of clarity
regarding his efforts (if any) to pursue his administrative
remedies, it appears possible that at least some of his
claims are barred by the applicable statute of limitations.
However, these are affirmative defenses and it is not clear
from the face of his complaint the extent to which
Greene's administrative remedies have been exhausted, nor
whether his complaint was timely filed. Accordingly, the
resolution of these issues must wait for another day.
Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir.
Greene's Tort Claims
extent that Greene seeks to pursue claims sounding in tort
law (i.e., negligence, assault and battery, intentional
infliction of emotional distress, negligent hiring, medical
malpractice, sexual harassment, and/or invasion of privacy),
claims predicated upon the negligence or wrongful acts or
omissions of federal employees acting within the scope of
their employment may only be pursued under the Federal Tort
Claims Act, 28 U.S.C. § 2670 et seq.
(“FTCA”). This includes Greene's claims based
on his allegations that various BOP and DOJ policies (such as
the policies regarding sexual misconduct, investigation of
PREA complaints, reporting policies, use of chemical spray,
use of restraints, and prisoner “pat down”
policies) were either negligently or wrongfully enforced by
various BOP and DOJ officials.
“FTCA clearly provides that the United States is the
only proper defendant in a suit alleging negligence by a
federal employee.” Allgeier v. United States,
909 F.2d 869, 871 (6th Cir. 1990) (citing 28 U.S.C. §
2679(a)). In addition, the Westfall Act, 28 U.S.C. §
2679(b)(1), immunizes federal employees from tort liability
for actions taken within the scope of their employment.
Roberts v. United States, 191 Fed.Appx. 338 (6th
Cir. 2006). Because the remedy against the United States
provided by the FTCA is exclusive with respect to claims that
fall within its scope, a plaintiff may not circumvent its
exhaustion or limitations provisions merely by pursuing a
tort claim under state law directly against the federal
employee in his or her individual capacity. 28 U.S.C. §
Greene names the United States Bureau of Prisons and the
United States Department of Justice/OIG as Defendants, he
does not name the United States as a Defendant, as is
required for an FTCA claim. However, in light of the generous
construction allowed pro se pleadings, the Court
will direct the Clerk of the Court to dismiss the United
States Department of Justice/OIG and the Bureau of Prisons as
Defendants and substitute the United States as the Defendant
with respect to Greene's tort claims. While it is unclear
whether Greene presented any of these tort-based claims to
either the BOP or DOJ for administrative settlement prior to
filing his claims, 28 U.S.C. § 2675(a), and/or whether
Greene's claims are subject to dismissal for other
reasons, a response is required from the United States before
these issues may be considered further.
Greene's Constitutional Claims
complaint appears to invoke two provisions of the United
States Constitution - the First Amendment (retaliation) and
the Eighth Amendment (excessive force, failure to protect,
and deliberate indifference). To the extent that Greene alleges
these constitutional claims against any of the Defendants,
those claims may only be pursued under Bivens, which
held that an individual may “recover money damages for
any injuries...suffered as a result of [federal] agents'
violation of” his constitutional rights.
Bivens 403 U.S. at 397.
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, Greene may not bring a Bivens claim
against the United States, the BOP, or the DOJ.
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