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Banks v. Rosado

United States District Court, N.D. Ohio, Eastern Division

April 24, 2018

FREDERICK BANKS, Plaintiff,
v.
CO ROSADO, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [Resolving ECF 3 and 7 ]

          Benita Y. Pearson United States District Judge.

         Pending before the Court are Defendants CO Rosado, Ms. Slattery, Ms. Scott, CO Giles, and CEO Damon Hininger's Motion to Dismiss (ECF No. 3) and Plaintiff Frederick Banks's Motion for Sanctions (ECF No. 7).

         For the reasons stated below, Defendants' Motion to Dismiss is granted with respect to Plaintiff's federal claims; Plaintiff's Motion for Sanctions is denied; and Plaintiff's state-law negligence claims are remanded to state court.

         I. Background

         Pro se Plaintiff Frederick Banks, a prisoner incarcerated in the Northeastern Ohio Correctional Center (NEOCC) who has filed numerous frivolous cases in this and other courts, filed this removed action against a number of employees of NEOCC and CoreCivic, the private corporation that owns and operates the prison, in the Mahoning Court of Common Pleas. See ECF No. 1-1. Seeking primarily monetary relief, he alleges two causes of action. Count I alleges (4:17CV2499)

         a federal cause of action against the Defendants under the First Amendment and Fourteenth Amendments on the basis that prison employees refused to allow him to receive a “Graphic Novel” he ordered because it was pornographic. Id. at PageID #: 13. Plaintiff contends the novel is not pornographic and that the Defendants discriminated against him in refusing to allow him to receive it. Id. Count II alleges state-law negligence arising from alleged conduct of two Defendants: Corrections Officers Giles and Rosado. Id. at PageID #: 14.

         Defendants have filed a Motion to Dismiss the Complaint pursuant to Federal Rule of Procedure 12(b)(6). ECF No. 3. Plaintiff has responded to the Motion (ECF No. 6) and filed a Motion for Rule 11 (and other) Sanctions (ECF No. 7).

         II. Standard of Review

         A complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6) if it fails to state a claim on which relief can be granted. In deciding a motion to dismiss, the Court presumes the complaint's factual allegations are true and draws all reasonable inferences in the non-moving party's favor. Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). In order to survive a dismissal, “the complaint must present ‘enough facts to state claim to relief that is plausible on its face.'” Id., citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

         Although pro se pleadings are liberally construed and held to less stringent standards than pleadings drafted by lawyers (see Haines v. Kerner, 404 U.S. 519, 520 (1972)), “the lenient treatment generally accorded to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996) (citing Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991)). Even a pro se complaint must meet basic pleading requirements, and to survive a motion to dismiss, it must set forth sufficient facts to state a claim to relief that is plausible on its face. See Barnett v. Luttrell, 414 Fed.Appx. 784, 786 (6th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         III. Discussion

         Upon review, the Court finds Plaintiff has not alleged any plausible federal claim on which the Court may grant relief in this case, but for reasons other than those argued by the Defendants. To the extent Plaintiff seeks relief for federal constitutional violations based on Defendants' refusal to allow him to receive the graphic novel he ordered, Plaintiff does not set forth allegations suggesting state action, and he does not have any recourse against Defendants under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), which provides a limited cause of action for constitutional rights violations against federal government employees and agents analogous the remedy afforded against state actors under 42 U.S.C. § 1983.

         Defendants are all employees of NEOCC, a private prison, or CoreCivic, a private corporation that owns and operates NEOCC. The Supreme Court has held that privately-employed personnel working in a privately-operated prison may not be sued for certain constitutional rights violations under Bivens. See Minneci v. Pollard, 565 U.S. 118, 132 S.Ct. 617, 622-23 (2012).

         Additionally, the Supreme Court has recently held that implying a cause of action against federal employees and agents under Bivens is “now a ‘disfavored' judicial activity.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). Ziglar instructs that, due to separation-of-powers concerns, “a Bivens remedy will not be available if there are ‘special factors counselling [sic] hesitation in the absence of affirmative action by Congress.'” Id., quoting Carlson v. Green, 446 U.S. 14, 18 (1980). In Howard v. Lackey, Case No. 7:16CV129, 2018 WL 1211113, at *3 (E. D. Ky. Mar. 7, 2018), the district court found that special ...


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