United States District Court, D. Montana, Great Falls Division
ORDER AND FINDINGS AND RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE
Johnston, United States Magistrate
Thomas Alvarado, an inmate proceeding in forma pauperis and
without counsel, filed an Amended Complaint (Doc. 9) alleging
Defendants denied him medical care. (Doc. 9.) The Court
screened the Amended Complaint pursuant to 28 U.S.C. §
1915. Because Mr. Alvarado was a federal prisoner at the time
his allegations arose, his claims were construed as being
brought pursuant to pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). The Court determined that Defendants Sharpe,
Yaskew, Finn/Linn, Weaver, Randolph, and Correctional
Corporation of America were required to respond to Mr.
Alvarado's allegations that he was denied
over-the-counter pain relievers and/or other treatment for
his broken finger and injured knee from November 5, 2013 to
November 11, 2013. (Doc. 10 at 8.) Defendants have now filed
a motion for summary judgment arguing that Mr. Alvarado
cannot bring a Bivens claim against the named
Defendants. (Doc. 79.) The Motion for Summary Judgment should
judgment is appropriate if there is no genuine issue of
material fact and the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). The party moving for
summary judgment has the initial burden of showing there is
no genuine issue of material fact. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970). If the moving party
makes a prima facie showing that summary judgment is
appropriate, the burden shifts to the opposing party to show
the existence of a genuine issue of material fact.
Id. On summary judgment, all inferences should be
drawn in the light most favorable to the party opposing
summary judgment. Id. at 159.
is material if it might affect the outcome of the suit under
the governing law. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
notice provided on September 25, 2017 (Doc. 84), Mr. Alvarado
was advised of the requirements for opposing a motion brought
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir.
1998)(en banc); Klingele v. Eikenberry, 849 F.2d 409
(9th Cir. 1988).
Alvarado was convicted in federal court and sentenced on
October 21, 2013 to the custody of the Bureau of Prisons.
See United States v. Alvarado, 13-CR-00026-BLG-SPW,
Doc. 127. He was held at Crossroads Correctional Center
(“CCC”) in Shelby, Montana, at various times,
first, from 4/12/13 to 5/9/13, again from 5/30/13 to 10/2/13,
and last from 10/23/13 to 11/12/13. (Statement of Undisputed
Facts, Doc. 81 (“SUF”) at ¶ 1.) At all times
while Mr. Alvarado was housed at CCC, he was an inmate in the
custody of the United States Marshals Service. (SUF at ¶
2.) Mr. Alvarado fell in his cell and injured his knee and
little finger on Sunday, November 3, 2013. (SUF at ¶ 4.)
He claims Defendants denied him x-rays and failed to provide
him with any pain relief for his injuries. (SUF at ¶ 5;
Complaint, Doc. 2.)
is a private prison where Mr. Alvarado was incarcerated under
an agreement with the United States Marshals. Even though the
Crossroads' employees are private individuals, Mr.
Alvarado was in federal custody while incarcerated at
Crossroads, therefore Defendants are considered federal
actors rather than state actors for purposes of this case.
Pollard v. GEO Group, Inc., 607 F.3d 583, 588-89
(9th Cir. 2010), rev'd on other grounds sub nom.
Minneci v. Pollard, 565 U.S. 118 (2012); see also
Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 940-41
(1982); Florer v. Congregation Pidyon Shevuyim,
N.A., 639 F.3d 916, 922 (9th Cir. 2011).
an action for constitutional violations committed by federal
actors can be brought under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). The United States Supreme Court, however, has made
clear that a prisoner cannot assert a Bivens claim
for damages against private prison employees or the
corporations who own and operate private correctional
facilities. Minneci, 565 U.S. 118; Correctional
Services Corp. v. Malesko, 534 U.S. 61 (2001).
Minneci, the plaintiff was a federal inmate, housed
at a facility operated by a private company, who sought
relief against its employees for the deprivation of adequate
medical care. Minneci, 565 U.S. at 121. The Supreme
Court declined to extend Bivens in this situation,
because the plaintiff could seek a remedy under state tort
law. Id. at 131. Specifically, the Court stated:
[W]here . . . a federal prisoner seeks damages from privately
employed personnel working at a privately operated federal
prison, where the conduct allegedly amounts to a violation of
the Eighth Amendment, and where that conduct is of a kind
that typically falls within the scope of traditional state
tort law (such as the conduct involving improper medical care
at issue here), the ...