United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER
Y. Pearson, United States District Judge.
se Plaintiff Corey Bonds is a federal prisoner currently
incarcerated in Fort Dix, New Jersey. He filed this in
forma pauperis civil action in the District of New
Jersey in 2018, seeking relief against the United States
under the Federal Tort Claims Act (“FTCA”). ECF
No. 1. After he filed an Amended Complaint (ECF No. 4)
seeking relief against federal employees at FCI Elkton under
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971),
the District Court for the District of New Jersey transferred
the action to the Northern District of Ohio, Eastern
Division. See ECF No. 5 at PageID #: 81.
Amended Complaint, Plaintiff claims he was sexually assaulted
and harassed by prison officers. He contends that these
actions entitle him to damages against FCI Elkton Warden
Steven Merlak, Corrections Officer Long, and Lieutenant
(“Lt.”) Carter. For the reasons that follow, the
Court dismisses Plaintiff's claims against all
alleges that on February 22, 2017, in the “chow hall,
” Officer Long walked up to him from behind, grabbed
his buttocks, and walked away. ECF No. 4 at PageID #: 33. Two
days later, Officer Long again walked up behind Plaintiff and
pulled Plaintiff, by his pants, toward Long until Plaintiff
felt Officer Long's genitals against him. Id.
The next day, Officer Long walked up behind Plaintiff and
told the Plaintiff he would “miss him” when he
was gone. Id. at PageID #: 33-34. Plaintiff, fearing
for his safety, filed a complaint with the Department of
Justice. Id. at PageID #: 34.
March 2, 2017, Plaintiff reported Officer Long's conduct
to “Psychology.” Id. His complaint was
forwarded from Psychology to Special Investigative Services
for further investigation. Id. Plaintiff told a
lieutenant he feared for his life and he did not want to
remain on the compound. Id. He was then placed in
the Special Housing Unit. Id. at PageID #: 35.
March 7, 2017, Lt. Carter allegedly “cursed out”
Plaintiff for making allegations against Officer Long and
gave Plaintiff two “shots” in retaliation for
filing grievances. Id. Plaintiff claims Lt. Carter
continued to verbally harass him. Id. Plaintiff
alleges he now suffers from anxiety and depression and has
been put on medication. Id. at PageID #: 35-36.
Standard of Review
pro se pleadings are liberally construed and held to
less stringent standards than formal pleadings drafted by
lawyers, Boag v. MacDougall, 454 U.S. 364, 365
(1982) (per curiam); Haines v. Kerner, 404 U.S. 519,
520 (1972), federal district courts are required under 28
U.S.C. §§ 1915(e)(2)(B) to screen and dismiss
before service any in forma pauperis action that the
court determines is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief.
Furthermore, 28 U.S.C. § 1915A requires a district court
to dismiss similar complaints in which prisoners seek redress
from governmental entities, officers, and employees. See
Hill v. Lappin, 630 F.3d 468, 470 (6th Cir. 2010).
alleges claims against Defendants, in their official and
individual capacities, under Bivens. He avers that
Officer Long sexually assaulted him, and that Lt. Carter then
harassed him. He also claims Defendants violated his due
process rights and subjected him to cruel and unusual
punishment by failing to protect him from harassment and
initial matter, federal officials sued in their official
capacity are shielded by sovereign immunity from
Bivens actions, absent an explicit waiver of that
immunity. Belt v. Fed. Bureau of Prisons, 336
F.Supp.3d 428, 435 (D.N.J. 2018); see also F.D.I.C. v.
Meyer, 510 U.S. 471, 484-86 (1994). Accordingly,
Plaintiff's claims against Defendants in their official
capacity are barred.
Plaintiff has failed to allege any facts showing that Warden
Merlak was personally involved in any alleged violation of
his constitutional rights. “Absent vicarious liability,
each Government official, his or her title notwithstanding,
is only liable for his or her own misconduct.”
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009).
Plaintiff pleads that “[t]he warden falls below the
standards in his supervisory capacity” and “the
Warden [is] implemented in this civil action for poor
training of [his] employees” (ECF No. 4 at PageID #:
32, 37) but alleges no facts in support of these assertions.
Plaintiff's claims against Warden Merlak therefore fail.
alleges that Lt. Carter “cursed [him] out . . . for
making allegations against Officer Long[, ]” harassed
him, and “gave [him] two (2) shots in retaliation for
writing up Defendant [Long].”). ECF No. 4 at PageID #:
35. But, verbal abuse or harassment by prison officials
towards an inmate, without more, does not constitute a
violation of the Eighth Amendment. See Ivey v.
Wilson,832 F.2d 950, 954-55 (6th Cir. 1987). Moreover,
Plaintiff fails to plead any harm plausibly resulting from
Lt. Carter's alleged failure to protect him from Officer
Long's sexual assault. Without doing so, he cannot
maintain a Bivens claim for failure to protect.
See Bistrian v. Levi,696 F.3d 352, 367 (3d Cir.
2012) (“To state a claim for damages against a prison
official for failure to protect . . . the official's
deliberate indifference [must cause] him harm.”)
(citing Farmer v. ...