United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge.
Cory Lee Jacobs is a prisoner currently confined at the
United States Penitentiary (“USP”)-McCreary
located in Pine Knot, Kentucky. Proceeding without counsel,
Jacobs has filed a pleading styled as a “Complaint and
Motion for Appoint [sic] Counsel and Relief and Evidentiary
Hearing.” [R. 1].
has not paid the $350.00 filing fee and the $50.00
administrative fee, nor has he filed a motion to proceed
in forma pauperis pursuant to 28 U.S.C. §
1915(a). Even so, the Court may conduct a preliminary review
of Jacobs's complaint 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 Jacobs'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 plaintiff's favor. Davis v.
Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
of the rambling nature and lack of detail in Jacobs's
complaint, it is difficult to ascertain the exact nature of
his claims. From what the Court can tell, Jacobs alleges that
staff at USP-McCreary threw five stamps in the trash and
would neither reimburse Jacobs for their cost nor retrieve
them from the trash. Jacobs also alleges that “[s]taff
was notified that grievances is needed, use of law library,
paper, envelopes and means to communicate.” [R. 1]. He
further alleges that staff threw away personal and legal
property “accumulating to a value of over $100.00
U.S.D.” [Id.] Finally, he states the
In the provided copy the unit team received it states that
all other U.S.P. facilities, except the ones specified, are
to be regarded as a safety and security risk and if something
happens at these camps if not transferred to the one with no
issues, there shall be no type of action or prosecution
brought forth on Plaintiff. And this is hereby NOTICE to
[Id.] He purports to bring his claims 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 Florida state law.
complaint must set forth sufficient allegations to
“state a claim to relief that is plausible on its face,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
and the Court must dismiss any complaint that fails to do so,
Hill v. Lappin, 630 F.3d 468, 470-71 (6th Cir.
2010). The Court's obligation to liberally construe
pro se pleadings does not extend so far as to
require it to conjure unpled facts or create claims for the
plaintiff. Moorman v. Herrington, No.
4:08-cv-P127-M, 2009 WL 2020669, at *1 (W.D. Ky. July 9,
2009) (citations omitted). In addition, “a district
court may, at any time, sua sponte dismiss a
complaint for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure when
the allegations of a complaint are totally implausible,
attenuated, unsubstantial, frivolous, devoid of merit, or no
longer open to discussion.” Apple v. Glenn,
183 F.3d 477, 479 (6th Cir. 1999).
Court has thoroughly reviewed Jacobs's complaint and
concludes that it must be dismissed. First, the complaint
fails to name a viable defendant. To the extent that Jacobs
seeks to pursue a tort claim under the FTCA, the “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)).
However, Jacobs does not name the United States as a
Defendant, nor does he allege negligence by a federal
employee. Rather, he alleges prison staff intentionally threw
away his property.
extent that Jacobs seeks to pursue constitutional claims
based upon his allegations, such 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.
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, Jacobs may not bring a Bivens
claim against “USP-McCreary, ” which is, in
essence, a claim against the Bureau of Prisons, a federal
agency. 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
he bring his claim against the Warden, absent an
allegation-which is absent here-that the Warden was
“personally involved in the alleged deprivation of
federal rights.” Nwaebo v. Hawk-Sawyer, 83
Fed.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)). While
Bivens expressly validated the availability of a
claim for damages against a federal official in his or her
individual capacity, an officer is only responsible for his
or her own conduct. Iqbal, 556 U.S. at 676-677;
see also Ziglar v. Abbasi, 137 S.Ct. 1843, 1860
(2017). Indeed, “[e]ven a pro se prisoner must link his
allegations to material facts . . . and indicate what each
defendant did to violate his rights . . . .”
Sampson v. Garrett, 917 F.3d 880, 882 (6th Cir.
2019) (citing Hill v. Lappin, 630 F.3d 468, 471 (6th
Cir. 2010); Lanman v. Hinson, 529 F.3d 673, 684 (6th
Cir. 2008)). Jacobs's complaint fails to comply with
these requirements with respect to any Defendant.
Jacobs's complaint, at most, alleges property loss due to
the intentional acts of unidentified prison staff. However,
the requirements of due process are satisfied, even for
intentional deprivations of property, where there are
adequate post- deprivation remedies available to compensate
the inmate, none of which Jacobs alleges are inadequate.
Hudson v. Palmer, 468 U.S. 517, 531-34 (1984);
see also Daniels v. Williams, 474 U.S. 327, 330-32
(1986) (overruling in part Parratt v. Taylor, 451
U.S. 527 (1981)).
of these reasons, the Court will dismiss this action for
failure to state a claim for relief.
it is hereby O ...