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Hector Ayon v. Neocc

October 31, 2011

HECTOR AYON,
PLAINTIFF,
v.
NEOCC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge John R. Adams

MEMORANDUM OF OPINION AND ORDER

Pro se Plaintiff Hector Ayon filed this Bivens*fn1 action against the Northeast Ohio Correctional Center ("NEOCC"), and NEOCC Warden Roddie Rushing. He also asserted a claim under the Federal Torts Claim Act (FTCA), 28 U.S.C. § 1346(b)(1) against the United States.*fn2 In the Complaint, Plaintiff alleges Defendants allowed tear gas from an outdoor training exercise to seep into his housing unit. He seeks monetary damages.

I. Background

Plaintiff is a federal inmate incarcerated at NEOCC, a private prison owned and operated by Corrections Corporation of America ("CCA"). He alleges the prison's SWAT team was conducting training exercises on the roof of the prison between 3:00 a.m. and 5:00 a.m. on September 23, 2010. At some point in the training, the officers discharged tear gas. As they continued their activities, the gas began to seep through the ventilation system into the housing units where the inmates were sleeping. Plaintiff awoke to find he was having difficulty breathing. He attempted to open his cell door, but found it locked. Although the inmates were evacuated to the sally port area, several officers argued that they should be returned to their cells. He alleges that one of the officers was taken to the hospital for treatment. He filed grievances; however, all of them were denied. He claims the Defendants were negligent in their use of tear gas, denied him due process, and subjected him to cruel and unusual punishment.

II. Legal Standard

Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), the district court is required to dismiss an in forma pauperis action under 28 U.S.C. §1915(e) if it fails to state a claim upon which relief can be granted, or if it lacks an arguable basis in law or fact. McGore v. Wrigglesworth, 114 F.3d 601, 608-09 (6th Cir. 1997). A claim lacks an arguable basis in law or fact when it is premised on an indisputably meritless legal theory or when the factual contentions are clearly baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). A cause of action fails to state a claim upon which relief may be granted when it lacks "plausibility in the complaint." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009). The factual allegations in the pleading must be sufficient to raise the right to relief above the speculative level on the assumption that all the allegations in the Complaint are true. Bell Atl. Corp., 550 U.S. at 555. Plaintiff is not required to include detailed factual allegations, but must provide more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading that offers legal conclusions or a simple recitation of the elements of a cause of action will not meet this pleading standard. Id. In reviewing a Complaint, the Court must construe the pleading in the light most favorable to the Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir.1998).

III. Law and Analysis

A. Federal Tort Claims Act

Plaintiff first seeks relief against the United States under the Federal Tort Claims Act ("FTCA"). The FTCA waives the United States Government's sovereign immunity for the negligent acts of government employees. 28 U.S.C. § 1346(b)(1); see Montez v. United States, 359 F.3d 392, 395 (6th Cir.2004). The statute defines "government employees" as "officers and employees of any federal agency." 28 U.S.C. 2671. The definition does not include independent contractors such as CCA, or the employees of the independent contractors. See United States v. Orleans, 425 U.S. 807, 813-14 (1976). The actions that give rise to Plaintiff's tort claim were committed by employees of CCA. Consequently, the United States is not liable under the FTCA for these acts.

B. Bivens Claims against NEOCC

NEOCC also is not a proper party to a Bivens action. It is a prison facility owned and operated by CCA, a private corporation. A private corporation cannot be sued for damages under Bivens. Correctional Services Corporation v. Malesko, 534 U.S. 61, 70-74 (2001). Bivens provides a cause of action against individual officers acting under color of federal law alleged to have acted unconstitutionally. Id. at 70. Bivens claims cannot be brought against a federal prison, the Bureau of Prisons, or the United States Government. Id. The Supreme Court declined to expand Bivens to provide this cause of action against a private prison corporation.

B. Due Process

Plaintiff next claims he was denied due process. This assertion is not well pled and can be construed in two ways. First, it is possible that Plaintiff is asserting he was denied due process when his grievances were denied. It is also possible, however, that he is claiming the actions of the SWAT team were so egregious that they denied him substantive due process. The Court will examine both of these claims.

To the extent Plaintiff asserts he was denied due process because his grievances were denied, his claim is without merit. Responding to a grievance or otherwise participating in the grievance procedure is insufficient to trigger liability in a civil ...


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