United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JOHNSTON, UNITED STATES MAGISTRATE JUDGE
Shawn Ball, a federal inmate proceeding in forma pauperis and
without counsel, filed a Complaint under 42 U.S.C. Â§ 1983
alleging Defendants violated his Eighth Amendment rights
during his incarceration at Crossroads Correctional Center.
Mr. Ball is a prisoner proceeding in forma pauperis, the
Court must review his Complaint under 28 U.S.C. §§
1915, 1915A. Sections 1915A(b) and 1915(e)(2)(B) require the
Court to dismiss a complaint filed in forma pauperis and/or
by a prisoner against a governmental defendant before it is
served if it 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.
complaint is frivolous if it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). “A case is
malicious if it was filed with the intention or desire to
harm another.” Andrews v. King, 398 F.3d 1113,
1121 (9th Cir. 2005). A complaint fails to state a claim upon
which relief may be granted if a plaintiff fails to allege
the “grounds” of his “entitlement to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation omitted).
of the Federal Rules of Civil Procedure provides that a
complaint “that states a claim for relief must contain
. . . a short and plain statement of the claim showing that
the [plaintiff] is entitled to relief.” Fed.R.Civ.P.
8(a)(2). This rule requires a complaint to “contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted).
complaint's allegations must cross “the line from
conceivable to plausible.” Iqbal, 556 U.S. at
680. There is a two-step procedure to determine whether a
complaint's allegations cross that line.
Twombly, 550 U.S. at 556; Iqbal, 556 U.S.
662. First, the Court must identify “the allegations in
the complaint that are not entitled to the assumption of
truth.” Iqbal, 556 U.S. at 679, 680. Factual
allegations are not entitled to the assumption of truth if
they are “merely consistent with liability, ” or
“amount to nothing more than a ‘formulaic
recitation of the elements' of a constitutional”
claim. Id. at 679, 681. A complaint stops short of
the line between probability and the possibility of relief
where the facts pled are merely consistent with a
defendant's liability. Id. at 678.
the Court must determine whether the complaint states a
“plausible” claim for relief. Iqbal, 556
U.S. at 679. A claim is “plausible” if the
factual allegations, which are accepted as true,
“allow[ ] the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. at 678. This inquiry is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. at 679 (citation omitted). If the factual
allegations, which are accepted as true, “do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
“show[n]”-“that the pleader is entitled to
relief.” Id. (citing Fed.R.Civ.P.
8(a)(2)). “A document filed pro se is
‘to be liberally construed,' and ‘a pro
se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.'” Erickson v. Pardu, 551 U.S. 89,
94 (2007); cf. Fed. Rule Civ. Proc. 8(e)
(“Pleadings must be construed so as to do
Ball alleges that on January 5, 2019, Defendants placed him
in general population where he was singled out because of the
sexual nature of his charges and attacked by other inmates.
He claims Defendants failed to protect him. (Complaint, Doc.
2 at 8.)
Ball lists 42 U.S.C. § 1983 as the basis for
jurisdiction in this case. (Complaint, Doc. 2 at 6, ¶
II.) The Court, however, takes judicial notice of the docket
in Mr. Ball's criminal case, Criminal Action No.
18-cr-00112-BLG-SPW which indicates that he was taken into
federal custody on September 20, 2018. Because Mr. Ball was
in federal custody at all times giving rise to his
allegations, his claims arise under Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971). Bivens is the “federal
analogue” to § 1983. Hartman v. Moore,
547 U.S. 250, 254, 255 n.2 (2006). Bivens provides
for a private cause of action for damages to proceed against
federal actors for constitutional torts. Ashcroft v.
Iqbal, 556 U.S. 662, 675 (2009) (citing Corr. Serv.
Corp. v. Malesko, 534 U.S. 61, 66 (2001)).
is a private prison where Mr. Ball was incarcerated
presumably under an agreement with the United States
Marshals. Accordingly, although the Crossroads' employees
are private individuals, they 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, 132 S.Ct. 617 (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, however, the
United States Supreme Court has made clear that a prisoner
cannot assert an Eighth Amendment Bivens claim for
damages against private prison employees. Minneci v.
Pollard, 565 U.S. 118, 132 S.Ct. 617, 181 L.Ed.2d 606
(2012). In Minneci, the U.S. Supreme Court
considered whether a Bivens action based on the
Eighth Amendment was available against employees of a
privately operated federal prison. The plaintiff in
Minneci was a prisoner at a federal facility
operated by a private company and filed an Eighth Amendment
claim against the prison medical staff. Id. at 121.
The Court held that a person cannot assert an Eighth
Amendment Bivens claim based on insufficient medical
treatment against employees of a private prison. Id.
at 131. The Court noted that a Bivens action will
not succeed when there is an existing alternative process
that provides adequate protection. Id. at 118,
120-121 (citing Wilkie v. Robbins, 551 U.S. 537, 550
Montana, state tort law provides for ordinary negligence
actions. A negligence claim depends upon establishment of a
legal duty on the part of the defendant, breach of that duty,
causation, and damages. Lopez v. Great Falls Pre-Release
Services, 1999 MT 199, ¶ 18, 295 Mont. 416, 986
P.2d 1081. Determination of the existence of a duty is an
issue of law. Lopez, ¶ 31. Under the public
duty doctrine, a government officer may have an actionable
duty to a particular individual where the government has
actual custody of ...