United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NOS. 3
Y. PEARSON JUDGE
Se Plaintiff Robert Palermo filed this action asserting
claims under Bivens 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.
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.
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
Standard for Dismissal
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.
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,
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.
Law and Analysis
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).
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.
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 ...