United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [Resolving ECF 3 and
Y. Pearson United States District Judge.
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).
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
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)
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 #:
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
Standard of Review
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
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)).
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.
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,
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 ...