FILED
United States Court of Appeals
Tenth Circuit
November 16, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GREGORY D. CROSBY,
Plaintiff-Appellant,
v. No. 12-3163
LT. MARTIN; FNU JOHNSON; FNU (D.C. No. 5:09-CV-03179-SAC)
FULLER; FNU LNU; JOHN (D. Kan.)
SCHILLINGS; KEN DAUGHTERY,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Plaintiff-Appellant Gregory D. Crosby, a federal prisoner appearing pro se,
appeals the dismissal of his complaint asserting a claim for damages pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971), alleging violations of his constitutional rights while being held in
federal prison. Crosby brought suit against employees of Leavenworth Detention
Center, a private prison operated by the Corrections Corporation of America
(CCA), in their individual and official capacities, for excessive force and denial
of medical care in violation of his Eighth Amendment rights. R. at 4, 9. We
exercise jurisdiction under 28 U.S.C. § 1291 and affirm.
I.
In his complaint, Crosby alleges that he was taken into a strip cell, ordered
to strip, and sprayed with chemicals for no reason. R. at 7. He was then left in
the cell with the food slot closed for three to five minutes. All of which resulted
in his having trouble breathing. Id. at 8. Crosby complained that the chemicals
burned his skin and requested medical attention, but was told to wash off in the
shower. Id. After his request, a nurse responded by telling him to wash his body,
but she did not conduct a medical assessment. Id. Crosby alleged that he did not
receive adequate medical attention in response to his request. Crosby further
alleged that he was returned to the strip cell for seven days during which he was
only fed “finger food” and was also denied adequate medical care and water. Id.
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II.
Shortly after Crosby filed his complaint, the district court granted Crosby
in forma pauperis status and ordered him to show cause why the complaint should
not be dismissed for failure to state a claim. R. at 14-15. Crosby filed a response
to the order to show cause. To the extent that Crosby asserted a Bivens claim
against the defendants in their official capacities, the district court concluded that
the complaint was subject to dismissal. Id. at 15. To the extent Crosby asserted a
Bivens claim against the defendants in their individual capacities, the district
court concluded that dismissal was warranted because Bivens has not been
extended to reach the conduct of private-corporation employees when alternative
state causes of action are available. Id. at 14-15. In response to the district
court’s order, Crosby emphasized that he was subjected to cruel and unusual
punishment and denied medical care, but he did not address the points of concern
raised by the district court. Id. at 18-21. Accordingly, the district court
dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Id. at 32-34.
III.
We review de novo a district court’s § 1915(e)(2) dismissal of a complaint
for failure to state a claim, accepting the allegations as true and viewing them in
the light most favorable to the plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217
(10th Cir. 2007). Because Crosby filed his complaint pro se, we construe his
pleadings liberally. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).
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IV.
This court has previously stated that “the presence of an alternative cause of
action against individual defendants provides sufficient redress such that a Bivens
cause of action need not be implied.” Peoples v. CCA Det. Ctrs., 422 F.3d 1090,
1102 (10th Cir. 2005). This statement was recently reaffirmed by the Supreme Court
in Minneci v. Pollard, 132 S. Ct. 617 (2012), which held that
where, 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.
Id. at 626.
Minneci, as well as our own ruling in Peoples, are controlling here. As the
basis for his Bivens claim, Crosby alleges conduct that would typically fall within
a state-law negligence claim. Id. at 625 (“State-law remedies and a potential Bivens
remedy need not be perfectly congruent.”); Schmidt v. HTG, Inc., 961 P.2d 677, 693
(Kan. 1998) (“‘To recover for negligence, the plaintiff must prove the existence of
a duty, breach of that duty, injury, and a causal connection between the duty
breached and the injury suffered. Whether a duty exists is a question of law.
Whether the duty has been breached is a question of fact.’” (quoting Honeycutt v.
City of Wichita, 836 P.2d 1128, 1136 (Kan. 1992)). Because Crosby has an
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alternative cause of action against the defendants pursuant to Kansas state law, he
is precluded from asserting a Bivens action against the defendants in their individual
capacities.
We also agree with the district court’s conclusion that Crosby is barred by
sovereign immunity from asserting a Bivens action against the defendants in their
official capacities. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)
(finding that an official-capacity claim “contradicts the very nature of a Bivens
action. There is no such animal as a Bivens suit against a public official
tortfeasor in his or her official capacity”).
Finally, to the extent that Crosby seeks to fashion a claim under 42 U.S.C.
§ 1983, we agree with the district court that he has not sufficiently alleged that
state action resulted in the violation of his constitutional rights. See West v.
Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and laws of the United
States, and must show that the alleged deprivation was committed by a person
acting under color of state law.”). Accordingly, we affirm the district court’s
dismissal of Crosby’s complaint for failure to state a claim.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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