United States District Court, D. Colorado
WALTER LEE GILBERT, aka LAMARCUS L. HILLARD, Plaintiff,
JACK FOX, Complex Warden Custodian, LORETTA LYNCH, U.S. Attorney General, Trustee, and JERRY WILLIAMS, MDOC Director of Institutions, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK
Plaintiff, Walter Lee Gilbert, also known as Lamarcus L. Hillard, is a Mississippi state prisoner currently incarcerated at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. He initiated this action by filing pro se a Prisoner Complaint (ECF No. 1) requesting that the Court order the Federal Bureau of Prisons (BOP) and “interactive parties” to correct the name being used to identify him in all prison and court records. (Id., at 8). He has paid the $400.00 filing fee.
On February 18, 2016, Magistrate Judge Gordon P. Gallagher reviewed the Complaint and found it deficient for many reasons. (See ECF No. 4). Specifically, Magistrate Judge Gallagher determined that the Complaint did not comply with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure because Plaintiff failed to provide a short and plain statement of (1) the grounds for the court’s jurisdiction, and (2) his claims showing he is entitled to relief. (Id., at 2, 5). Magistrate Judge Gallagher further found that Plaintiff could not assert a claim under 42 U.S.C. § 1983 against the named defendants because none of the United States agencies listed in the caption “act under color of state law, ” a requirement to state a § 1983 claim. (Id., at 3). Magistrate Judge Gallagher also informed Plaintiff that the United States agencies could not be sued in an action brought pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). (Id., at 3-4). Magistrate Judge Gallagher further held that Plaintiff could not assert a private cause of action under 18 U.S.C. § 1028. (Id., at 4). Finally, Magistrate Judge Gallagher found that Plaintiff was not entitled to a correction of documents kept by the BOP under the Privacy Act. (Id., at 5). Magistrate Judge Gallagher instructed Plaintiff to file an amended complaint that identifies an applicable basis for this Court’s jurisdiction and sets forth the specific claims he is asserting, the specific facts that support each asserted claim, and what each defendant did that allegedly violated his rights. (Id.).
On February 29, 2016, Plaintiff filed an Amended Prisoner Complaint (ECF No. 6) pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) against Defendants Jack Fox, Complex Warden Custodian, Loretta Lynch, U.S. Attorney General, Trustee, and Jerry Williams, MDOC Director of Institutions. He also asserts jurisdiction pursuant to “28 U.S.C. 2201-02, 28 USCS -1361, Title 22 - USCS - 3602(b), Canal Zone, 28-USC-1333, 28-USC-1604, 18-USC-2631, 28 USCS-1441.” (Id., at 3).
The Court must construe the Amended Complaint liberally because Plaintiff is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110.
Pursuant to 28 U.S.C. § 1915A, the Court must review the Amended Complaint because Plaintiff is a prisoner and he is seeking redress from officers or employees of a governmental entity. Pursuant to § 1915A(b), the Court is required to dismiss the Amended Complaint, or any portion of the Amended Complaint, that is legally frivolous, malicious, or fails to state a claim upon which relief may be granted. A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 324 (1989). For the reasons stated below, the Court will dismiss the Amended Complaints pursuant to § 1915A(b).
In the Amended Complaint, which is verbose and at times unintelligible, Plaintiff asserts three claims. First, he raises a cruel and unusual punishment claim in violation of the Eighth Amendment because his life is “in imminent danger” “by refusing to correct proper identity and remove misnomer” and by “sending Plaintiff to Federal Custody under misnomer and falsified transfer documents.” (ECF No. 6, at 4). Second, he alleges a violation of the First Amendment by “abridging my right to petition the Court, communicate with Family, correct my true identity peacefully.” (Id., at 7). He further states that he endures “much stealing of legal mail containing identification documents, namely Social Security Card, Judgement and Commitment Orders, Certified Certificate of Live Birth documents to this Court.” (Id.). Third, Plaintiff asserts a Fifth Amendment violation “by illegally housing undersigned Walter Lee Gilbert, Date of Birth April 19, 1980, Social Security Number [ ] in United States territory under military feudal solitary confinement without jurisdiction under a misnomer identification.” (Id., at 8). As relief, Plaintiff seeks money damages; an “injunction enjoining Defendants from continuing to use misnomer, incorrect social security number, incorrect date of birth on any records, door tag, PSI, remove Plaintiff via emergency transfer to Butner Correctional Facility;” and declaratory judgment stating that Plaintiff’s “name is in fact Walter Lee Gilbert.” (Id., at 10).
In short, Plaintiff asserts that Defendants have violated his constitutional rights by erroneously referring to Plaintiff in court and prison records as Lamarcus L. Hillard, the name under which he was convicted and sentenced in Mississippi state courts, instead of his alleged birth name, Walter Lee Gilbert. For the reasons discussed below, Plaintiff fails to allege a basis for this Court’s jurisdiction, and fails to state a viable claim under Bivens.
Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994). Plaintiff asserts jurisdiction pursuant to the following statues: “28 U.S.C. 2201-02, 28 USCS - 1361, Title 22 - USCS - 3602(b), Canal Zone, 28-USC-1333, 28-USC-1604, 18-USC-2631, 28 USCS-1441.” (ECF No. 6, at 3). None of these statutes, however, provide a basis for this Court’s jurisdiction in the instant action.
Plaintiff also asserts jurisdiction pursuant to 28 U.S.C. § 1331 and Bivens, which recognizes that a plaintiff can recover from an individual federal agent for constitutional violations committed while “acting under color of his authority.” 403 U.S. at 389. However, “[t]o state a Bivens action, [a] plaintiff must allege circumstances sufficient to characterize defendants as federal actors.” Romero v. Peterson, 930 F.2d 1502, 1506 (10th Cir. 1991). Here, Plaintiff cannot maintain a Bivens claim against Defendant Jerry Williams, MDOC Director of Institutions, because Plaintiff does not allege any circumstances sufficient to characterize Defendant Williams as a federal actor. See e.g., Murphy v. Hylton, 281 Fed. App’x 818, 820-21 (10th Cir. 2008) (holding that inmate failed to allege facts to support contention that physician was federal actor for Bivens claim). Thus, the claim against Defendant Williams must be dismissed under § 1915A(b).
Plaintiff also cannot maintain a Bivens claim against Defendant Loretta Lynch, U.S. Attorney General, Trustee, because he fails to allege the requisite personal participation of Defendant Lynch. A plaintiff must allege specific facts to show that the named defendant’s own conduct violated his constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); Steele v. Fed. Bur. of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003). There must be an affirmative link between the alleged constitutional violation and each defendant’s participation, control or direction, or failure to supervise. See Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (citations and quotations omitted); Dodds v. Richardson, 614 F.3d 1185, 1200-1201 (10th Cir. 2010). A supervisor can only be held liable for his own deliberate intentional acts. See Iqbal, 556 U.S. at 676-77, 683. In the Amended Complaint, Plaintiff does not allege any facts demonstrating that Defendant Lynch was personally involved in the alleged unconstitutional conduct. Thus, the claim against Defendant Lynch must be dismissed under § 1915A(b).
Plaintiff also fails to state a plausible claim for relief against Defendant Jack Fox, Complex Warden Custodian. In the Amended Complaint, Plaintiff first contends that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishment because the use of the name, Lamarcus L. Hillard, has put his life “in imminent danger by refusing to correct proper identity and remove misnomer” and by “sending Plaintiff to Federal Custody under misnomer and falsified transfer documents.” (ECF No. 6, at 4).
The Eighth Amendment requires prison officials to maintain “humane conditions of confinement” by ensuring that inmates receive adequate food, clothing, shelter, and medical care, and taking “reasonable measures to guarantee the safety of the inmates.” See Farmer v. Brennan, 511 U.S. 825, 832 (1994). Absent allegations of a “‘specific deprivation’ of a ‘human need, ’ an Eighth Amendment claim based on prison conditions must fail." Shifrin v. Fields, 39 F.3d 1112, 1114 (10th Cir. 1994) (citing Wilson v. Seiter, 501 U.S. 294, 303-05 (1991)). To establish an Eighth Amendment violation, a plaintiff must demonstrate that the deprivation is objectively “sufficiently serious, ” and that the prison official had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834, 847 (holding that “a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.”).
No such violation can be shown here. Plaintiff’s conclusory and vague allegation that his life is in danger because he is being housed under the name, Lamarcus L. Hillard, does not support an Eighth Amendment claim because he does not allege any specific threat to his personal safety caused by this fact. The Court cannot find that the prison’s use of his commitment name rises to the level of a violation of the ...