United States District Court, D. Colorado
ORDER DIRECTING PLAINTIFF TO FILE AMENDED COMPLAINT
BOYD N. BOLAND, Magistrate Judge.
Plaintiff, Jesus Hall, is a prisoner in the custody of the federal Bureau of Prisons at the United States Penitentiary in Florence, Colorado. He initiated this action by submitting pro se a Complaint asserting a deprivation of his constitutional rights pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), as well as a claim against the United States of America pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§2671-2680. Mr. Hall has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Mr. Hall filed a previous action against the same Defendants, Jesus Hall v. J. Brown, et al., Civil Action No. 12-cv-03204-CMA-KLM, in which he asserted Bivens claims arising from the same set of operative facts. In the earlier case, the claim(s) against Defendant P.A. Cink were dismissed by Senior Judge Lewis T. Babcock, sua sponte, under 28 U.S.C. § 1915(e)(2)(B), because Plaintiff failed to allege facts in the operative pleading to demonstrate an arguable Eighth Amendment violation by Defendant Cink. ( See No. 12-cv-03204-CMA-KLM, at ECF No. 28, at 4, 6). The dismissal of the claim(s) against Defendant Cink was with prejudice. The remaining claims were drawn to District Judge Arguello and Magistrate Judge Mix. ( See id. at 6). On April 29, 2014, Magistrate Judge Mix issued a Recommendation that the Defendants' motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) be granted. ( Id. at 62). Specifically, Magistrate Judge Mix found that the Court lacked subject matter jurisdiction over the Bivens claims asserted against the United States and the individual Defendants in their official capacities because the claims were barred by the doctrine of sovereign immunity. ( Id. at 10-11). Magistrate Judge Mix recommended dismissal of the constitutional claims against the individual defendants, sued in their personal capacities, because Plaintiff had failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ( Id. at 14-18). On June 4, 2014, District Judge Arguello affirmed the April 29, 2014 Recommendation and dismissed the action without prejudice. (No. 12-cv-03204-CMA-KLM, at ECF No. 65). Final Judgment was entered on June 6, 2014. ( Id., ECF No. 66). On July 25, 2014, Mr. Hall filed a "Motion to Reinstate the Case to Be Heard on Its Merits Now That Exhaustion Requirements Ha[ve] Been Met" ( Id., ECF No. 67). District Judge Arguello denied the Motion to Reinstate Case on July 29, 2014, and advised Mr. Hall that he could initiate a new civil action if he so desired. ( Id., ECF No. 68). Mr. Hall initiated the present action on August 27, 2014.
The Court must construe the Prisoner Complaint liberally because Mr. Hall is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed the Complaint and has determined that it is deficient. For the reasons discussed below, Mr. Hall will be ordered to file an Amended Complaint.
A. Bivens claims against United States and the Defendants in their Official Capacities
Mr. Hall cannot maintain Bivens claims against the United States and the individual Defendants sued in their official capacities. A suit for damages against the United States is barred by sovereign immunity unless immunity has been waived. See Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989) (citing Kentucky v. Graham, 473 U.S. 159, 165-67 (1985)). The United States has not waived sovereign immunity for itself or its agencies under Bivens for constitutional tort claims and therefore cannot be sued in a Bivens action. See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 483-86 (1994) (holding that a Bivens action may not be brought against the United States). Further, the official-capacity claims against the individual Defendants are construed as claims against the United States and are also barred by sovereign immunity. See Kentucky, 473 U.S. at 165-66; see also Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001) ("There is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity. Instead, any action that charges such an official with wrongdoing while operating in his or her official capacity as a United States agent operates as a claim against the United States.").
The Court lacks subject matter jurisdiction to hear claims that are barred by the doctrine of sovereign immunity. See Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir. 1997). Accordingly, Mr. Hall cannot maintain Bivens claims against the United States or the Defendants sued in their official capacities.
B. Bivens Claim Against Defendant Cink
Mr. Hall cannot seek Bivens relief against Defendant P.A. Cink in this action because he sues Cink based on the same conduct which the Court concluded failed to state an arguable constitutional claim in the earlier action. As discussed above, the claim(s) asserted against Defendant Cink in the previous action were dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B).
Claims may be dismissed as frivolous or malicious under 28 U.S.C. § 1915(e)(2) if they duplicate previous litigation. See McWIlliams v. State of Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997) (citing Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988)); see also Griffin v. Zavaras, No. 09-1165, 336 F.Appx. 846, 849 (10th Cir. July 14, 2009) (unpublished).
Furthermore, res judicata, or claim preclusion, applies to limit a party from bringing before the court a matter that has been or could have been raised in an earlier proceeding. See Allen v. McCurry, 449 U.S. 90, 94 (1980) ("Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action."). Claim preclusion applies if (1) there was a final judgment on the merits in the earlier action; (2) the parties are identical or in privity in both cases; (3) the cause of action is the same; and (4) the plaintiff had a full and fair opportunity to litigate the claim in the prior suit. Nwosun v. General Mills Rests., 124 F.3d 1255, 1257 (10th Cir. 1997).
The Court may raise the affirmative defense of claim preclusion sua sponte if the face of the pleading demonstrates that the defense bars the Plaintiff's suit. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) ("A complaint may be dismissed sua sponte under § 1915 based on an affirmative defense... only when the defense is obvious from the face of the complaint and no further factual record is required..." (internal quotations and citation omitted)); see also Arizona v. California, 530 U.S. 392, 412 (2000) (quoting United States v. Sioux Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting) ("if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been raised. This result is fully consistent with the policies underlying res judicata:... the avoidance of unnecessary judicial waste.'") (internal citations omitted).
The Court finds that principles of claim preclusion and case law prohibiting duplicative litigation bar Mr. Hall's Bivens claim(s) against Defendant Cink in this action because the same claim(s) were ...