Kristich v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ORIN KRISTICH, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-23-544-R
)
FNU Casady, et al., 	)
)
Defendants. 	)
ORDER
Plaintiff Orin Kristich, a federal prisoner proceeding pro se and in forma pauperis,
initiated this civil rights actions under 42 U.S.C § 1983 and Bivens alleging that his
constitutional rights were violated while he was incarcerated at Cimarron Correctional
Facility and while in the custody of the Bureau of Prisons. The matter was referred to
United State Magistrate Judge Shon T. Erwin for initial proceedings in accordance with
28 U.S.C. § 636(b)(1)(B) and (C). Judge Erwin issued a Report and Recommendation
[Doc. No. 20] recommending that the federal claims asserted in Plaintiff’s Amended
Complaint [Doc. No. 18] be dismissed upon screening and that the Court decline to
exercise supplemental jurisdiction over the state law claims. Plaintiff filed a timely
Objection [Doc. No. 29] and the Court must therefore make a de novo determination of
those portions of the Report to which a specific objection is made. 28 U.S.C. § 636(b)(1);
Fed R. Civ. P. 72(b)(3).
Plaintiff’s 	Amended 	Complaint 	alleges 	that 	his 	Eighth 	Amendment 	right 	to
adequate medical treatment was violated when medical staff at the Cimarron Correctional
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Facility failed to treat his dislocated shoulder for approximately thirty hours. The Amended
Complaint further alleges that prison officials harassed and retaliated against him by
placing him in segregated housing on false charges, stripping him of program hours,
interfering with his legal mail, and filing false program reviews. As defendants, Plaintiff
has named specific employees of the Cimarron Correctional Facility and employees of the
Bureau 	of 	Prisons 	in 	both 	their 	official 	and 	individual 	capacities. 	The 	Cimarron
Correctional Facility is a private prison operated by CoreCivic.1
Judge Erwin recommends the official capacity claims against the BOP employees
be dismissed because the doctrine of sovereign immunity precludes a Bivens action against
the United States. See Watson v. Hollingsworth, 741 F. App'x 545, 550 (10th Cir. 2018).
Judge 	Erwin 	also 	recommends 	the 	official 	capacity 	claims 	against 	the 	Cimarron
Correctional Facility employees be dismissed because, as employees of a private prison,
they are not state actors and therefore do not have an official capacity. See Jones v. Barry,
33 F. App'x 967, 972 n. 5 (10th Cir. 2002). Plaintiff’s objection presents no persuasive
argument or authority that would cause this Court to reject Judge Erwin’s conclusions on
these points. Further, despite Plaintiff’s assertion to the contrary, the Amended Complaint,
even liberally construed, does not appear to seek any form of injunctive relief.
Judge Erwin next recommends the individual capacity claims against the BOP
employees be dismissed for failure to state a claim. To make out a viable § 1983 or Bivens
claim, “it is incumbent upon a plaintiff to identify specific actions taken by particular
1 See https://www.corecivic.com/facilities/cimarron-facility .
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defendants” to show their personal involvement in the alleged constitutional violation.
Pahls v. Thomas, 718 F.3d 1210, 1226 (10th Cir. 2013) (quotation omitted, emphasis in
Pahls); see also Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (“Therefore
it is particularly important in such circumstances that the complaint make clear exactly who
is alleged to have done what to whom, to provide each individual with fair notice as to the
basis of the claims against him or her, as distinguished from collective allegations against
the state.”). The Amended Complaint does not identify any specific actions taken by any
particular BOP Defendants or include sufficient factual content to plausibly infer that any
of the BOP Defendants personally participated in the conduct comprising Plaintiff’s
claims. Thus, the Court finds that Plaintiff’s allegations regarding the BOP employees are
too conclusory to state a plausible claim.
Last, Judge Erwin recommends that the claims against the Cimarron Correctional
Facility employees be dismissed for failure to state a claim. The Court finds that these
claims should be dismissed because Plaintiff has no cause of action under 42 U.S.C. § 1983
or Bivens against these particular defendants. “Section 1983 only allows suit against
individual defendants who are acting under color of state law and does not apply to
individuals acting as agents of the federal government.” Lopez v. Vladimir, No. CIV-20-
255-SLP, 	2020 	WL 	8671937, 	at 	*3 	(W.D. 	Okla. 	Nov. 	18, 	2020), 	report 	and
recommendation adopted, No. CIV-20-255-SLP, 2021 WL 741783 (W.D. Okla. Feb. 25,
2021). The Amended Complaint indicates that Plaintiff is a federal prisoner housed in a
private prison. Given those assertions, Plaintiff has not shown that the defendants were
acted under color of state law as required by § 1983. See id. (dismissing federal prisoner’s
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claims against private prison employees). A Bivens action is also not available under these
circumstances:
[W]here, as here, a federal prisoner seeks damages from privately employed
personnel working at a privately operated federal prison, where the conduct
allegedly amounts to a violation of the Eighth Amendment, and where that
conduct is of a kind that typically falls within the scope of traditional state
tort law (such as the conduct involving improper medical care at issue here),
the prisoner must seek a remedy under state tort law. We cannot imply a
Bivens remedy in such a case.
Minneci v. Pollard, 565 U.S. 118 (2012). See also Brewster v. Doe 1, No. 20-3172-SAC,
2020 WL 4530458, at *2 (D. Kan. Aug. 6, 2020) (dismissing federal claims against
CoreCivic employees).
The Court therefore ADOPTS the Report and Recommendation [Doc. No. 20] and,
as set out above, dismisses the official capacity claims against all Defendants with
prejudice and dismisses the individual capacity claims without prejudice. The Court
declines to exercise supplemental jurisdiction over the state law claims in the absence of a
viable federal claim. Additionally, Plaintiff’s Motions seeking to engage in Discovery
[Doc. Nos. 3, 19] are DENIED as moot and Plaintiff’s Motion for Leave to Amend [Doc.
No. 30] is DENIED without prejudice as Plaintiff failed to comply with Local Court Rule
15.1, which requires the proposed amended pleading to be attached to the motion as an
exhibit. Although the Court concludes that Plaintiff has failed to state a claim, the Court
will withhold entry of judgment to permit Plaintiff to properly seek leave to amend. Should
Plaintiff fail to file a motion seeking leave to amend by March 7, 2024, the Court will
dismiss this action in accordance with this Order.
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IT IS SO ORDERED this 9 th day of February, 2024.
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