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Palermo v. United States

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

July 31, 2018

ROBERT PALERMO, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

          MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 3 AND 5]

          BENITA Y. PEARSON JUDGE

         Pro Se Plaintiff Robert Palermo filed this action asserting claims under Bivens[1] and the Federal Tort Claims Act against the United States of America, the United States Marshals Service, United States Marshal John Doe, and Defense Attorney Paul J. Vacca, Jr. He was a federal inmate incarcerated at the Northeast Ohio Correctional Center (“NEOCC”) at all times relevant to this action. Plaintiff alleges that he was held without a hearing as a pretrial detainee for 21 months in solitary confinement at NEOCC. Complaint (ECF No. 1). He asserts this was a violation of his Fifth, Eighth, and Fourteenth Amendment rights. He seeks monetary relief.

         I. Background

         On April 3, 2013, Plaintiff was charged in the United States District Court for the Western District of New York with two counts of a sex trafficking of children by force, fraud or coercion with regard to a minor female. United States v. Palermo, et al. (W.D.N.Y. filed July 9, 2013). He was incarcerated in the Monroe County Jail. While those charges were still pending, he was questioned by federal agents regarding an October 31, 2013 murder for hire plot involving the alleged minor female victim in his criminal case. Based on the information they obtained, federal agents transported Plaintiff to NEOCC on November 1, 2013, where he was held in solitary confinement pending trial.

         Plaintiff alleges that placement in solitary confinement for 21 months played a role in his decision to enter into a plea deal with the government. When Plaintiff asked why he was being held in solitary confinement, he claims he was told that the Marshals ordered his placement in that unit. He claims his move to Ohio made it difficult for him to communicate with his New York criminal defense attorney. Plaintiff alleges he was not permitted to have telephone calls or visits with family or friends. Although his attorney was able to visit him, he contends the attorney did not do so, and only called Plaintiff one time while he was housed at NEOCC. Plaintiff indicates his attorney did not file motions or obtain discovery. He states that on February 9, 2015, he pled guilty to conspiracy to murder a witness because he feared being in prison for sex trafficking of a minor, and no longer wanted to remain in solitary confinement. He contends he was denied due process and was subjected to cruel and unusual punishment.

         II. Standard for Dismissal

         Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), 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. Neitzke v. Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law when a defendant is immune from suit or when a plaintiff claims a violation of a legal interest which clearly does not exist. Neitzke, 490 U.S. at 327. An action has no arguable factual basis when the allegations are delusional or rise to the level of the irrational or “wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). See also Lawler, 898 F.2d at 1199.

         When determining whether a plaintiff has stated a claim upon which relief can be granted, the court must construe the complaint in the light most favorable to the plaintiff, accept all factual allegations as true, and determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff's obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Although a complaint need not contain detailed factual allegations, its “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true.” Id.(citation omitted). The court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         The Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), further explains the “plausibility” requirement, stating that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Furthermore, “[t]he plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.(quoting Twombly, 550 U.S. at 556). This determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679.

         III. Law and Analysis

         A. Bivens Claims

         Before proceeding to the merits of these claims, the Court must decide whether Bivens provides a cause of action in this context. Plaintiff sues the United States, the United States Marshals Service, and his criminal defense attorney. Bivens provides a cause of action against individual officers acting under color of federal law alleged to have acted unconstitutionally. Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001). It does not support an action against the United States government or any of its agencies, like the Marshals Service. Id.; see F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994). Similarly, Vaca, a criminal defense attorney, is not considered a federal government official and cannot be sued in a Bivens action. See Polk County v. Dodson, 454 U.S. 312, 321 (1981) (finding a defense attorney did not qualify as a government actor for purposes of 42 U.S.C. § 1983).

         United States Marshal John Doe is an individual federal government officer. In order to state a claim under Bivens, however, Plaintiff must allege facts suggesting the individual defendant was personally involved in the alleged deprivation of the plaintiff's constitutional rights. See Nwaebo v. Hawk-Sawyer, 83 Fed.Appx. 85, 86 (6th Cir. 2003) (citing Rizzo v. Goode, 423 U.S. 362, 373-77 (1976)). Plaintiff alleges only that he was told the Marshals requested his placement in solitary confinement. He does not describe with specificity who this individual marshal is or what he did personally to violate Plaintiff's constitutional rights.

         The United States Supreme Court recently clarified that federal courts should refrain from extending Bivens outside 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). The Constitution does not directly provide for damages for alleged constitutional violations. Sanders v. Prentice-Hall Corp. Sys., Inc., No. 97-6138, 1999 WL 115517 (6th Cir. Feb. 8, 1999). Congress provided a damages remedy for Plaintiffs whose constitutional rights were violated by state officials through 42 U.S.C. § 1983; however, they 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. Since then, the Court allowed Bivens remedies in only two other contexts: (1) in a Fifth Amendment gender-discrimination ...


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