United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF, 4
Y. Pearson Date United States District Judge.
removed this action “under 42 U.S.C. § 1983, 28
U.S.C. §§ 1441, 1443, 1446, and to invoke this
Court's original jurisdiction under 28 U.S.C.
§§ 1331 and 1332.” ECF No. 1 at PageID#:
2. Pending is Defendants' Motion to Dismiss
Plaintiff's Complaint pursuant to Fed. R. Civ.
P. 12(b)(6). ECF No. 4. Plaintiff responded, ECF No.
5, and Defendants replied, ECF No. 7. For the
following reasons, this action will be remanded to the state
se Plaintiff Frederick Banks filed this
Bivens action in the Mahoning County Court of
Common Pleas against Defendants Northeast Ohio Correctional
Center (“NEOCC”), NEOCC Warden Christopher
LaRose, NEOCC Computer Services Employee Carey
Adamson, NEOCC Business Office Employee Angela Pastella,
NEOCC Business Manager J. Klempay, Core Civic CEO Damon
Hininger, and Core Civic. See ECF No. 1-1. In the
Complaint, Plaintiff alleges Defendants violated his
constitutional right to equal protection because Defendants
failed to provide him, an inmate in segregation, with access
to printers while inmates in the general prison population
have access to four printers. Id. at PageID#: 16 18.
Additionally, Plaintiff claims he ordered photographs from an
approved vendor and, although money was deducted from his
account, the vendor did not receive it. Id.
Plaintiff contends that Defendants Pastella and Klempay's
refusal to credit his account amounts to the tort of
conversion. Id. Plaintiff seeks monetary relief.
Id. at PageID#: 18 19.
November 27, 2017, Defendants removed the action on the basis
of federal question jurisdiction, 28 U.S.C. §
1331, and subsequently filed a Motion to Dismiss.
See ECF Nos. 1 and 4. Defendants
concede diversity of citizenship jurisdiction is not present,
as Plaintiff and four Defendants are citizens of the same
state. See ECF No. 1 at PageID#: 1 2. In their
motion, Defendants assert that Plaintiff did not state a
claim for denial of equal protection because: (1) he does not
have a fundamental right to have access to a printer, (2) is
not a member of a “suspect class, ” and (3) was
not treated differently than others without a rational basis.
ECF No. 4. Defendants also contend that they cannot
be held liable for conversion because, at best, they owe
Plaintiff the sum of $25.00, and not the specific
currency deducted from his account, which is
required to state a claim for conversion. See id. at
PageID#: 48 50. Finally, Defendants assert that, although
Plaintiff named Hininger, NEOCC, and Core Civic as Defendants
in this action, Plaintiff's Complaint “contains no
factual allegations regarding any actions personally
performed” by these Defendants with regard to the
constitutional claim. Id. at PageID#: 50 51.
defendant may remove “any civil action brought in a
state court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
The Notice of Removal of a civil action or proceeding must be
filed within thirty days after the receipt by the defendant
through service or otherwise of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based. 28 U.S.C. § 1446(b).
Moreover, when the action is removed under §
1441(a), all of the defendants who have been properly
served must join in the removal or consent to it. 28 U.S.C.
§ 1446(b)(2)(A). Finally, when diversity of citizenship
is the basis for removal, the case cannot be removed from
state court if any of the Defendants are citizens of the
state in which the action is brought. 28 U.S.C. §
Law and Analysis
removed this action citing the presence of a federal question
in the form of a Bivensclaim for denial of equal
protection. See ECF Nos. 1 and
1-1. Because the alleged Bivens claim is
the sole basis for federal jurisdiction, the Court must
decide whether Bivensprovides a cause of action, and
consequently jurisdiction, in this context.
United States Supreme Court recently clarified that federal
courts should refrain from extending Bivensoutside
of the three specific contexts in which it has already been
applied, absent the presence of special factors. Ziglar
v. Abbasi, 137 S.Ct. 1843 (2017). Congress provided a
specific damages remedy for Plaintiffs whose constitutional
rights were violated by state officials through 42 U.S.C.
§ 1983; however, Congress did not provide a
corresponding remedy for constitutional violations by federal
officials. In Bivens, decided in 1971, the Supreme
Court recognized an implied damages action to compensate
persons injured by federal officers who violated the Fourth
Amendment's prohibition against unreasonable searches and
seizures. Bivens v. Six Unknown Agents, 403 U.S. 388
(1971). Since then, the Supreme Court allowed
Bivensremedies in only two other contexts: (1) in a
Fifth Amendment gender-discrimination case, Davis v.
Passman, 442 U.S. 228 (1979); and (2) in an Eighth
Amendment Cruel and Unusual Punishments Clause case,
Carlson v. Green, 446 U.S. 14 (1980). The Supreme
Court has not approved of an implied damages remedy under the
Constitution itself. Ziglar, 137 S.Ct. at 1855.
Ziglar, the Supreme Court explained its decision to
limit the implied damages remedy stating that,
Bivens, Davis, and Carlsonwere
decided at a time when the prevailing law assumed that a
proper function of the courts was to “provide such
remedies as are necessary to make effective” a
statute's purpose. Id. at 1848 (quoting J.I.
Case Co. v. Borak, 377 U.S. 426, 433 (1964)). The
Supreme Court has since adopted a far more cautious approach,
looking instead to statutory intent to determine whether
Congress intended to create a private right of action under
those circumstances. Id.(citing Alexander v.
Sandoval, 532 U.S. 275, 286 (2001) and Touche Ross
& Co. v. Redington, 442 U.S. 560, 568 (1979)).
“Similar caution must be exercised with respect to
damages actions implied to enforce the Constitution
itself.” Id. While Bivensis still
well-settled law in its own context, expanding
Bivensto new contexts is now
“disfavored.” Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009). Therefore, when a Plaintiff seeks to
assert an implied cause of action under the Constitution,
“separation-of-powers principles should be central to
the analysis.” Ziglar, 137 S.Ct. at 1857.
Specifically, courts should ask whether Congress or the
judiciary should decide when to authorize a damages suit.
Id.(citing Bush v. Lucas, 462 U.S. 367, 380
(1983)). The Supreme Court states that most often, this
question will be answered in favor of Congress, because the
Legislature is in a better position to determine if the
public interest will be better served by creating a
“new substantive legal liability.” Id.
Bivens will not be extended to a new context if there are
“‘special factors counselling hesitation in the
absence of affirmative action by Congress.'”
Id.(quoting Carlson, 446 U.S. at 18). If
there are sound reasons to suppose Congress might doubt the
efficacy or necessity of a damages remedy as part of the
system for enforcing the law and correcting a wrong, courts
must refrain from creating that kind of remedy. See
id. at 1858. Furthermore, if there is an alternative remedial
structure in place to address a given situation, the court
should not infer a new Bivenscause of action.
case, Plaintiff seeks to assert an equal protection claim
under Bivensbased on the classification of prisoners
in segregation versus those who are held in the general
prison population. See ECF No. 1-1. Plaintiff's
claim does not fall under the existing contexts in which a
Bivensremedy has been implied. Furthermore, the
Supreme Court has already declined to extend
Bivensto causes of action asserted against private
prisons, Correctional Services Corp. v. Malesko, 534
U.S. 61, 68 (2001), and employees of private prisons when a
remedy exists under state law to address the injury,
Minneci v. Pollard, 565 U.S. 118, 120 (2012).
Therefore, given the Supreme Court's decision in
Zigler, and its decisions in Maleskoand
Minnecci, the Court will not imply a damages remedy
under Bivensin this context.
a Bivensclaim to provide a federal cause of action,
the Court lacks subject matter jurisdiction to consider
Plaintiff's claims. Defendants acknowledge that diversity
of citizenship is not complete. Even if it were, the case is
not removable on that basis because Defendants LaRose,
Adamson, Pastella and Klempay are citizens of Ohio, the state
in which this Court is located. 28 U.S.C. § 1441(b)(2)
(an action is not removable solely on the basis of diversity
jurisdiction if any of the Defendants is a citizen of the
state in which the action is brought). Absent an identified
federal cause of action, this Court lacks jurisdiction over