Spurlock v. Jones

         SECTION P

          MEMORANDUM ORDER

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a civil rights complaint filed pursuant to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), by pro se plaintiff John Thomas Spurlock (“Spurlock”), who is not proceeding in forma pauperis in this matter. Spurlock appears to have been released from federal custody, but was an inmate at the Federal Correctional Institute at Oakdale, Louisiana (“FCIO”), when the complained-of events occurred and at the time this suit was filed. Doc. 1; see doc. 4 (notice of change of address).

         This matter was referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this court.

         I.

         Background

         Spurlock alleges that Medical Staff Nurse Phillips and Administrator Clint Sonnier, defendants in this matter and staff members at FCIO, altered and deleted medical records he had requested from January and February 2014. Doc. 1, p. 4. He maintains that these records “implicate several staff members” in denying him medical care, and that the failure of FCIO staff to properly diagnose and treat him after he had contracted H1N1 influenza led to near fatal complications. Id. He also alleges that FCIO Health Services Administrator Johnson and Acting Warden Becky Clay “failed to supervise the collection, retention and release to [him of his] complete medical record without omission.” Id. Spurlock names other FCIO staff as defendants, but does not allege any specific wrongdoing on their part. See Id. at 2-4. In relief he seeks “actual and punitive damages” in the amount of $1, 000, 000. Id. at 4.

         II.

         Law & Analysis A. Frivolity Review

         Spurlock's claims are subject to screening under the Prison Litigation Reform Act. 28 U.S.C. § 1915A. Under that law, a district court is required to review any civil complaint in which a prisoner seeks relief against a government entity, officer, or employee, regardless of whether he has paid the filing fee, and to dismiss same under § 1915A(b)(1) if the complaint is frivolous.^[1]Thompson v. Hayes, 542 Fed. App'x 420, 420-21 (5th Cir. 2013). A complaint is frivolous if it lacks an arguable basis in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998). When determining whether a complaint is frivolous, the court must accept plaintiff's allegations as true. Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995).

         B. Bivens/42 U.S.C. § 1983

         Federal law provides a cause of action against any person who, under the color of state law, acts to deprive another of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. A Bivens action is the counterpart for those acting under color of federal law of a suit brought under § 1983. E.g., Abate v. Southern Pacific Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993); see also Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980) (“The effect of Bivens was, in essence, to create a remedy for federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials.”) In order to hold the defendants liable, a plaintiff must allege facts to show (1) that a constitutional right has been violated and (2) that the conduct complained of was committed by a person acting under color of federal law; that is, that the defendant was a government actor. See West v. Atkins, 108 S.Ct. 2250, 2254-55 (1988).

         C. Rule 8 Considerations

         Rule 8 of the Federal Rules of Civil Procedure requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under Rule 8, the complaint must allege “sufficient facts from which the court can determine the existence of subject matter jurisdiction and from which the defendants can fairly appreciate the claim made against them.” Bynum v. Terrebonne Parish Consol. ...