Menteer v. Applebee , 196 F. App'x 624 ( 2006 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES CO URT O F APPEALS
    August 10, 2006
    FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
    Clerk of Court
    JUNIOR CLAYTON M ENTEER,
    Plaintiff-Appellant,
    v.                                                 No. 05-3052
    (D.C. No. 04-CV-3054-M LB)
    APPLEBEE, Lieutenant of the G uard                    (D . Kan.)
    Force; DR. BOW LIN; FREDERICK
    LAU REN CE, W arden; HELEN
    (LNU), Lieutenant; (FNU) (LNU),
    Laundry Lady; UN ITED STATES
    M ARSHAL, for District of K ansas;
    U N ITED STA TES O F A M ER ICA;
    UN ITED STATES ATTO RN EY
    G EN ER AL; C OR REC TIO N S
    C ORPO RA TIO N O F A M ER IC A,
    Defendants-Appellees.
    OR D ER AND JUDGM ENT *
    Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument. This order and judgment is
    not binding precedent, except under the doctrines of law of the case, res judicata,
    and collateral estoppel. The court generally disfavors the citation of orders and
    judgments; nevertheless, an order and judgment may be cited under the terms and
    conditions of 10th Cir. R. 36.3.
    Plaintiff Junior Clayton M enteer, appearing pro se, appeals from the district
    court’s memorandum and order granting defendants’ motions to dismiss.
    Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm in part, reverse in part,
    and remand for further proceedings.
    M r. M enteer is a federal prisoner who, at the time relevant to the facts
    underlying this case, was incarcerated in the Leavenworth Detention Center, a
    private prison run by defendant Corrections Corporation of America (CCA)
    pursuant to a contract with the United States M arshals Service. He alleged that,
    after he slipped on a wet floor and sprained his ankle, he was given only an ace
    bandage. He also alleged that, in a later incident, CCA employees denied his
    requests for new shoes and, as a result, he tripped on a loose flap hanging from
    his worn pair, fell down the stairs, and fractured his ankle and finger. He further
    alleged that CCA medical personnel provided inadequate treatment for this injury,
    including delay in treating the injury appropriately and denying his requests for
    pain medication both before and after surgery on his ankle.
    In his complaint, M r. M enteer asserted a claim under Bivens v. Six
    Unknown Named Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971), for
    violations of his Fifth Amendment right to due process and his Eighth
    Amendment right to be free of cruel and unusual punishment. He also brought a
    claim under the Federal Tort Claims Act, 
    28 U.S.C. §§ 1346
    (b), 2671-2680
    (FTCA), and a breach of contract claim pursuant to the Tucker Act, 28 U.S.C.
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    § 1346(a)(2), that was based on a third-party beneficiary theory. Each claim was
    directed at all defendants, and he sought $3 million in damages. The United
    States, the United States M arshal for the District of Kansas, and the United States
    Attorney General (together, Federal Defendants) filed a motion to dismiss or, in
    the alternative, for summary judgment. The remaining defendants (CCA
    Defendants) filed a motion to dismiss. Both motions to dismiss relied on
    Fed. R. Civ. P. 12(b)(1) and (6). The district court granted both motions to
    dismiss and dismissed the complaint. This appeal followed.
    W e review de novo the district court’s dismissal of a complaint for lack of
    subject matter jurisdiction and for failure to state a claim upon which relief can be
    granted. U.S. West, Inc. v. Tristani, 
    182 F.3d 1202
    , 1206 (10th Cir. 1999); Sutton
    v. Utah State Sch. for the Deaf & Blind, 
    173 F.3d 1226
    , 1236 (10th Cir. 1999).
    Because M r. M enteer appears pro se, we review his pleadings and other papers
    liberally and hold them to a less stringent standard than those drafted by
    attorneys. See Haines v. Kerner, 
    404 U.S. 519
    , 520 (1972); Hall v. Bellmon,
    
    935 F.2d 1106
    , 1110 & n.3 (10th Cir. 1991). 1
    1
    M r. M enteer’s form brief on appeal is completely blank. Thus, he failed to
    identify any issues for appeal or provide any argument. W e caution M r. M enteer
    that such deficiencies ordinarily result in waiver. See, e.g., United States v.
    Clingman, 
    288 F.3d 1183
    , 1187 (10th Cir. 2002). Nevertheless, we will exercise
    our discretion to review the district court’s rulings. Cf. Murrell v. Shalala,
    
    43 F.3d 1388
    , 1389-90 & n.2 (10th Cir. 1994) (summarily considering, in the
    alternative, the merits of an issue not challenged and otherw ise deemed waived).
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    The district court dismissed the breach of contract claim against the Federal
    Defendants for lack of subject matter jurisdiction pursuant to the Tucker Act,
    which provides for exclusive jurisdiction in the Court of Federal Claims for
    breach of contract claims seeking in excess of $10,000, see 
    28 U.S.C. §§ 1346
    (a)(2), 1491. The court dismissed the breach of contract claim as to the
    CCA Defendants because M r. M enteer had alleged no jurisdictional basis other
    than the Tucker Act, which only authorizes jurisdiction over breach of contract
    claims brought against the United States, see 
    id.
     § 1346(a)(2). W e agree with
    these rulings and affirm them for substantially the same reasons as set forth in the
    district court’s memorandum and order.
    The district court dismissed the FTCA claim as to all defendants except the
    United States because “[t]he United States is the only proper defendant in an
    FTCA action[,]” Oxendine v. Kaplan, 
    241 F.3d 1272
    , 1275 n.4 (10th Cir. 2001).
    The district court then dismissed the FTCA claim as to the United States under
    the independent contractor exception set forth in Logue v. United States, 
    412 U.S. 521
     (1973). In Logue, the Supreme Court held that an FTCA claim could not be
    maintained against the United States for the acts of a prison contractor where the
    contract “clearly contemplated that the day-to-day operations of the contractor’s
    facilities were to be in the hands of the contractor, with the Government’s role
    limited to the payment of sufficiently high rates to induce the contractor to do a
    good job,” 
    id. at 529
    , and where the government did not supervise the contractor’s
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    daily operations, 
    id. at 530
    . Perceiving no error, we affirm the district court’s
    rulings on the FTCA claim for substantially the same reasons as set forth in the
    court’s memorandum and order.
    In its analysis of the Bivens claim, the district court granted the Federal
    Defendants’ motion to dismiss as to the United States for lack of subject matter
    jurisdiction based on sovereign immunity, see Farm er v. Perrill, 
    275 F.3d 958
    ,
    963 (10th Cir. 2001). For the same reason, the district court dismissed the Bivens
    claim as to the U.S. Attorney General and the U.S. M arshal in their official
    capacities, see 
    id.
     The district court also dismissed the Bivens claim against the
    U.S. Attorney General and the U.S. M arshal in their individual capacities for
    failure to allege personal participation or actual knowledge and acquiescence, see
    Woodward v. City of Worland, 
    977 F.2d 1392
    , 1400 (10th Cir. 1992). For
    substantially the same reasons as set forth in the district court’s memorandum and
    order, we affirm these rulings.
    As to the corporate entity, CCA, the district court dismissed the Bivens
    claim pursuant to Correctional Services Corp. v. M alesko, 
    534 U.S. 61
     (2001).
    In M alesko, the Supreme Court declined to infer a constitutional tort remedy
    against a private corporation. 
    Id. at 70-71
    . W e therefore affirm this ruling for
    substantially the same reasons as set forth in the district court’s memorandum and
    order.
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    The court next extended the reasoning of M alesko to the individual CCA
    defendants:
    W hen an employee of a private corporation has allegedly violated an
    individual’s constitutional right and an alternative remedy is
    available, a Bivens action cannot be maintained. See Peoples v.
    CCA Detention Center[s], [No. 03-3129-KHV,] 2004 W L 74317
    (D. Kan. Jan. 15, 2004). In this case, plaintiff could pursue a
    negligence claim in state court and, in so doing, have a lesser
    standard to meet than the heightened “deliberate indifference”
    standard of the Eighth Amendment. Since plaintiff has alternative
    state remedies available, the Bivens claim against the [individual
    CCA] defendants is dismissed.
    R., Doc. 30 at 7.
    The district court’s reliance on the Peoples case cited in the foregoing
    passage (Peoples I) indicates that the basis for the dismissal of the Bivens claim
    as to the individual CCA defendants was lack of subject matter jurisdiction. See
    Peoples I, 2004 W L 74317, at *7 (dismissing such a claim for lack of subject
    matter jurisdiction). This disposition, however, was improper. After the district
    court’s decision, a panel of this court reversed Peoples I, clarifying that the
    appropriate basis for dismissing a Bivens claim is failure to state a claim upon
    which relief can be granted, not lack of subject matter jurisdiction. See Peoples
    v. CCA Det. Ctrs., 
    422 F.3d 1090
    , 1096 (10th Cir. 2005) (Peoples III), vacated in
    part on other grounds by Peoples v. CCA Det. Ctrs., 
    449 F.3d 1097
    , 1099
    (10th Cir. 2006) (en banc) (per curiam) (Peoples IV). The panel noted that
    “jurisdiction is not defeated if the complaint could have stated a cause of action
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    for violation of state law.” Peoples III, 
    422 F.3d at
    1096 n.3 (citing Bell v. Hood,
    
    327 U.S. 678
    , 680 (1946)). The en banc court in Peoples IV affirmed this portion
    of Peoples III, and reversed and remanded Peoples I for further proceedings. See
    Peoples IV, 
    449 F.3d at 1099
    . Likew ise here, we reverse the district court’s
    dismissal of the Bivens claim against the individual CCA employees for lack of
    subject matter jurisdiction and remand the matter for further proceedings on this
    single claim.
    The judgment of the district court is AFFIRM ED in part, REVERSED in
    part, and REM AND ED for further proceedings consistent with this order and
    judgment. M r. M enteer’s application to proceed in forma pauperis is
    GR ANTED, and we remind him of his obligation to make partial payments until
    the entire fee has been paid, see 
    28 U.S.C. § 1915
    (b).
    Entered for the Court
    M ichael R. M urphy
    Circuit Judge
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