United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
Y. PEARSON UNITED STATES DISTRICT JUDGE.
se Plaintiff Ali Moshir filed this civil rights action
against Corrections Corporation of America
(“CCA”)/Core Civic, the Northeast Ohio
Correctional Center (“NEOCC”), NEOCC Officer
Minehart, the NEOCC Warden, the United States Government, the
United States Marshal Service, the State of Ohio, Mahoning
County, and “any other could be/would be added at any
point as deemed.” ECF No. 1. In the Complaint,
Plaintiff alleges Officer Minehart assigned him to a top bunk
on the second floor despite his medical conditions. He seeks
two billion dollars in damages.
Complaint is very brief. His claim, in its entirety, states:
July.06.2016 July 27.2016 What I don't remember
Officer Minehart and any other booking/housing/etc, Associate
kept housing me on the top bunk, yet! on a/the second floor!
with my/the medical condition(s) as obvious as they were!!!
Putting me through pain, suffering agony repeatedly!!! In
addition to already existing medical conditions, pains, and
Id. at PageID #: 5. He does not specify the legal
claim he attempts to assert against Defendants.
Standard for Dismissal
District Court is expressly authorized to dismiss any civil
action filed by a prisoner seeking relief from a governmental
entity, as soon as possible after docketing, if the Court
concludes that the complaint fails to state a claim upon
which relief may be granted, or if the plaintiff seeks
monetary relief from a cefendant who is immune from such
relief. 28 U.S.C. §1915A; Siller v.
Dean, 205 F.3d 1341 (Table), 2000 WL 145167, at *2 (6th
Cir. Feb. 1, 2000); see Hagans v. Lavine, 415 U.S.
528, 536-37 (1974) (citing numerous Supreme Court cases for
the proposition that attenuated or unsubstantial claims
divest the District Court of jurisdiction); In re
Bendectin Litig., 857 F.2d 290, 300 (6th Cir. 1988)
(recognizing that federal question jurisdiction is divested
by unsubstantial claims).
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, 556
U.S. 662, 677-78 (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. A plaintiff is not required to
include detailed factual allegations, but must provide more
than “an unadorned, the-Defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. 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.
Law and Analysis
initial matter, the United States, the United States Marshal
Service, and the State of Ohio are immune from suit. The
United States, as a sovereign, cannot be sued without its
prior consent, and the terms of its consent define the
Court's subject matter jurisdiction. McGinness v.
U.S., I.R.S., 90 F.3d 143, 145 (6th Cir. 1996). A waiver
of sovereign immunity must be strictly construed,
unequivocally expressed, and cannot be implied. U.S. v.
King, 395 U.S. 1, 4 (1969); Soriano v. U.S.,
352 U.S. 270, 276 (1957). The United States government has
not consented to suit in Bivens actions. Berger v.
Pierce, 933 F.2d 393, 397 (6th Cir.1991). The Eleventh
Amendment provides sovereign immunity to the State of Ohio.
Latham v. Office of Atty. Gen. of State
of Ohio, 395 F.3d 261, 270 (6th Cir. 2005).
does not allege any wrong-doing by Mahoning County or the
NEOCC Warden. He cannot establish the liability of any
Defendant absent a clear showing that the Defendant was
personally involved in the activities which form the basis of
the alleged unconstitutional behavior. Rizzo v.
Goode, 423 U.S. 362, 371 (1976); Mullins v.
Hainesworth, 66 F.3d 326 (Table), 1995 WL 559381 (6th
Cir. Sept. 20, 1995). A municipality can only be held liable
when it unconstitutionally “implements or executes a
policy statement, ordinance, regulation, or decision
officially adopted by that body's officers.” See
Monell v. Department of Soc. Servs., 436
U.S. 658, 690 (1978). Plaintiff does not allege any facts
suggesting how Mahoning County, or the NEOCC Warden were
involved in assigning him to a top bunk on the second floor
Plaintiff cannot bring a Bivens claim against NEOCC or CCA.
Bivens provides a limited cause of action against individual
federal government officers acting under color of federal law
alleged to have acted unconstitutionally. Correctional
Services Corporation v. Malesko, 534 U.S. 61, 70
(2001). Bivens' purpose is to deter individual federal
officers, not the agency, from committing constitutional
violations. A Bivens action, therefore, cannot be brought
against an entity such as a federal prison, the Bureau of
Prisons, or the United States Government. Id.
now known as Core Civic, owns and operates NEOCC, a private
corporation. To avoid imposing asymmetrical liability costs
on private prison facilities, the Supreme Court declined to
expand Bivens to provide this cause of action against a
private prison corporation. Id. at 70-74 (holding
that when a prisoner in a Bureau of Prisons facility ...