Gonzalez v. Gillis

LOUIS GONZALEZ, A#209-413-252 also known as Carlos Ramos Sanchez, PLAINTIFF v. WARDEN SHAWN R. GILLIS, ET AL., DEFENDANTS

Civil Action No. 5:20-cv-158-DCB-MTP

United States District Court, S.D. Mississippi, Western Division

August 5, 2021

REPORT AND RECOMMENDATION

MICHAEL T. PARKER, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on the Motion to Dismiss, or in the Alternative, for a More Definite Statement [37] filed by Defendants Shawn R. Gillis, Joseph January, Tatyana Lewis Cynthia Pernell, and Randy Woods, Jr, and the Joinder in Motion to Dismiss, or in the Alternative, for More Definite Statement [40] filed by Unknown Blanson, Unknown Brown Unknown Norman, and Unknown Wells. Having considered the parties' submissions and the applicable law, the undersigned recommends that the Motion to Dismiss be granted and that the Complaint be dismissed with prejudice.

BACKGROUND

Plaintiff, proceeding pro se and in forma pauperis, is an alien in the custody of U.S. Immigration and Customs Enforcement (“ICE”) who at the time of the events alleged in his Complaint [1] was detained at Adams County Correctional Center (“ACCC”).^[1] See [1] at 3. Plaintiff has filed five suits in the Southern District of Mississippi since April of 2020, all complaining of various alleged deprivations of his constitutional rights.^[2] Plaintiff also previously filed a petition for writ of habeas corpus which was denied by this Court. An appeal is pending before the Fifth Circuit.^[3]

On July 29, 2020, Plaintiff filed his Complaint [1] alleging that his constitutional rights were violated while he was detained at ACCC. Plaintiff asserts many instances of alleged injustices including that he believes there is an unfair distribution of television remote controls, cleaning supplies, and extra leftover food such as chicken. See [1] at 7-10. Plaintiff also attempts to assert claims of racial discrimination, violation of equal protection, violation of the constitutional right to freedom of association, violation of the right to contract, ^[4] violation of employment equality secured to plaintiff under the First Amendment, and intentional infliction of emotional distress. Id. at 10-13. He generally asserts that black detainees at ACCC are treated better than Hispanic detainees.

Plaintiff's Complaint [1] purported to bring a class action on behalf of all Hispanic detainees at ACCC. As a pro se detainee, Plaintiff is not in a position to represent a class, and the Court ordered Plaintiff to amend his pleadings to remove any class action allegations. See Order 32. On January 11, 2021, Plaintiff filed his Amended Complaint [24]. While it is substantially the same as his initial Complaint [1], Plaintiff added four employees of ACCC as Defendants. See [34] at 3-5.

On February 1, 2021, Defendants filed their Motion to Dismiss, or in the Alternative, for a More Definite Statement [38].^[5] In the Motion, Defendants assert that Plaintiff has failed to state a claim upon which relief can be granted, and that this action should be dismissed. Plaintiff filed his Response [42], and this matter is now ripe for review.

ANALYSIS

Requests for Injunctive Relief

In his Amended Complaint [34], Plaintiff requests injunctive relief. On May 3, 2021, Plaintiff filed a notice with the Court that he was transferred to a detention center in Gadsden, Alabama. See [43]. The transfer of a prisoner from an allegedly offending institution generally renders his claims for injunctive relief moot. See Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002); see also Stern v. Hinds Cty., Miss., 436 Fed.Appx. 381, 382 (5th Cir. 2011) (applying the same logic to a pretrial detainee). In order for Plaintiff's claims for injunctive relief to remain viable, he must establish a “demonstrated probability” or a “reasonable expectation” that he will be transferred back to ACCC. Id.; see also Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (finding that “any suggestion of relief based on the possibility of transfer back ... is too speculative to warrant relief”).

Nothing in the record suggests that Plaintiff may be transferred back to ACCC. Thus, Plaintiff's claims for injunctive relief should be dismissed as moot.

Plaintiff's § 1983 Claims

Because Plaintiff's claims for injunctive relief should be denied as moot as a result of his transfer, the only remaining claims are those for monetary damages. Plaintiff requests an undisclosed amount of damages as well as punitive damages and attorney's fees. See [34] at 27-28. Plaintiff asserts that his claims arise under 42 U.S.C. § 1983. See [1] at 1.

Section 1983 allows for a civil action to be brought against state actors for constitutional violations. See Izen v Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). However, Plaintiff has not named any state actors in this action. All of the named Defendants are employees at a private facility where Plaintiff was detained while in federal custody. With no state actors involved, Plaintiff's claims fail under 1983. However, a Bivens action mirrors a civil rights action brought under 42 U.S.C. § 1983 but allows plaintiffs to pursue claims, in limited instances, against federal actors. Id. The undersigned will, therefore, construe Plaintiff's claim as one under Bivens.

Bivens Claims

While Bivens is the federal version a §1983 claim, it does not apply to all of the same activities. The U.S. Supreme Court has only recognized three implied remedies under the Constitution against federal actors: for violations of the prohibition against unreasonable search and seizures, to provide a damage remedy for gender discrimination by a Congressman against his employee, and for failure to provide adequate medical treatment under the Eighth Amendment's cruel and unusual punishment clause. See Ziglar, 137 S.Ct. at 1855 (2017). Expansion of the Bivens remedy is a “disfavored” judicial activity, and the Supreme Court has “consistently refused to extend Bivens to any new context or new category of defendants.” Id. at 1857.

All of the named Defendants are employees of ACCC, and Plaintiff named all of them in both their official and individual capacities. In their official capacities, the Defendants are representatives of ACCC, and the Supreme Court has declined to extend Bivens to lawsuits against private entities acting under color of federal law. See Corr. Sers. Corp. v. Malesko, 534 U.S. 61, 63 (2001); see also Marsaw v. Thompson, 133 Fed.Appx. 946, 948 (5th Cir. 2005) (“[T]here is no implied right of action, pursuant to Bivens, for damages against private entities… that engage in constitutional deprivations while acting under color of federal law.”). Likewise, the Supreme Court has refused to extend Bivens liability to allow federal prisoners to sue employees of a privately operated prison. See Minneci v. Pollard, 132 S.Ct. 617 (2012) (refusing to extend the Bivens remedy to Eighth Amendment violations against personnel at a privately owned prison).

The Supreme Court has not recognized a cause of action under Bivens against employees of a privately owned prison, and expansion of Bivens is a disfavored judicial activity. As Plaintiff's claims are not cognizable under § 1983 or Bivens, they should be dismissed.

Claims on Behalf of Other Detainees

In his initial Complaint [1], Plaintiff purported that he was bringing a class action on behalf of all Hispanic detainees housed at ACCC. The Court denied Plaintiff's request for class certification and directed Plaintiff to amend his complaint to assert only claims he asserts against the Defendants on his own behalf. See Order [32]. Despite the Court's order, Plaintiff's Amended Complaint [34] contains numerous references to incidents involving other detainees where Plaintiff was not involved. See [34] at 7, 8, 11-12, 16.

On January 21, 2021, Plaintiff filed a document titled “Exhibits Related to the Amended Complain [sic] Under the Civil Rights Act Title 42 Section 1983 U.S. Code” [36]. The purported exhibits include documents titled “GRIEVANCE” and “Sworn Affidavit” none of which are signed or notarized and some of which are from detainees identified only as “John Doe.” The events described by Plaintiff are the same as those contained in his Amended Complaint [34]. Some of the documents purport to be statements from other detainees alleging various acts of discrimination by ACCC staff. See [36-5] [36-6] [36-7] [36-8] [36-9].

The Fifth Circuit held that “in federal court, a party can represent himself or be represented by an attorney but cannot be represented by a nonlawyer.” Gonzales v. Wyatt, 157 F.3d 1016, 1021 (5th Cir. 1998). Plaintiff is not an attorney and has already been advised that he may only represent himself in this Court. As such, the claims Plaintiff asserts against Defendants on behalf of other detainees should be dismissed.

Conspiracy Claims

Plaintiff also asserts that Defendants have conspired “to deprive plaintiff and other Hispanic detainees of their constitutional rights” in violation of 42 U.S.C. § 1985(3). [34] at 24.

In order for a plaintiff to recover under 42 U.S.C. § 1985(3) he must show:

(1) a conspiracy involving two or more persons; (2) for the purpose of depriving, directly or indirectly, a person or class of person of the equal protection of the laws; and (3) an act in furtherance of the conspiracy; (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. In so doing the plaintiff must show that the conspiracy was motivated by a class-based animus.

Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir. 1994). The Fifth Circuit requires that the conspirators under § 1985(3) be motivated by race. See Newsome v E.E.O.C., 301 F.3d 227, 232 (5th Cir....