United States District Court, W.D. Louisiana, Alexandria Division
DEE D. DRELL JUDGE.
JOSEPH H.L. PEREZ-MONTES UNITED STATES
the Court is a Complaint filed by pro se Plaintiff Joshua
Dewayne Cordier (“Cordier”) (#55271-177) under
Bivens v. Six Unknown Agents of the Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Cordier is currently
incarcerated at the Dallas County Jail. However, at the time
of filing, he was in the custody of the Federal Bureau of
Prisons (“BOP”), incarcerated at the United
States Penitentiary in Pollock, Louisiana
(“USP-P”). Cordier alleges that Defendants failed
to protect him from being attacked by a gang member.
a Bivens claim cannot be brought against a building,
a federal agency, or an employee in his official capacity,
Cordier's claims against the BOP, USP-P, and Officers
Hodges and Kindsey in their official capacities should be
DISMISSED WITH PREJUDICE. Additionally, because Cordier fails
to state a claim against Warden Johnson, Cordier's claims
against him should be DISMISSED WITH PREJUDICE.
alleges that he was assigned to a cell with a gang affiliate.
Cordier claims that he tried to refuse the placement,
requested to be placed in another cell, and requested
placement in the Segregated Housing Unit (“SHU”),
but his requests were denied. (Doc. 11, p. 3). Cordier was
assaulted by his cellmate and allegedly suffered serious
injuries requiring outside emergency medical treatment. (Doc.
11, p. 3).
Law and Analysis
Cordier's complaint is subject to screening under
§§ 1915(e)(2) and 1915A.
is a prisoner who has been allowed to proceed in forma
pauperis. (Doc. 14). As a prisoner seeking redress from an
officer or employee of a governmental entity, Cordier's
Complaint is subject to preliminary screening pursuant to 28
U.S.C. § 1915A. See Martin v. Scott, 156 F.3d
578, 579-80 (5th Cir. 1998) (per curiam). Because he is
proceeding in forma pauperis, Cordier's Complaint is also
subject to screening under § 1915(e)(2). Both §
1915(e)(2)(B) and § 1915A(b) provide for sua sponte
dismissal of a complaint, or any portion thereof, if the
Court finds it is frivolous or malicious, if it fails to
state a claim upon which relief may be granted, or if it
seeks monetary relief against a defendant who is immune from
complaint is frivolous when it “lacks an arguable basis
either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A claim lacks an
arguable basis in law when it is “based on an
indisputably meritless legal theory.” Id. at
327. A complaint fails to state a claim upon which relief may
be granted when it fails to plead “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Cordier fails to state a claim against the BOP, USP-P, or
Defendants in their official capacities.
Bivens, the Supreme Court recognized an
individual's right to seek recovery for the violation of
constitutional rights by a person acting under color of
federal law. Bivens, 403 U.S. at 297.
Bivens is the counterpart to 42 U.S.C. § 1983
and extends the protections afforded under § 1983 to
parties injured by federal actors. See Evans v.
Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) (“A
Bivens action is analogous to an action under §
1983-the only difference being that § 1983 applies to
constitutional violations by state, rather than federal
officials.”), overruled on other grounds,
Castellano v. Fragozo, 352 F.3d 939, 948-49 & n.
36 (5th Cir. 2003).
does not provide for a cause of action against the United
States or a federal agency, such as the BOP. See FDIC v.
Meyer, 510 U.S. 471, 484-86 (1994); Affiliated
Prof'l Home Health Care Agency v. Shalala, 164 F.3d
282, 286 (5th Cir. 1999); Moore v. United States
Dep't of Agric., 55 F.3d 991, 995 (5th Cir. 1995).
Additionally, a claim against a federal employee in his
official capacity based on an alleged constitutional
violation is also barred under Bivens, because it is
equivalent to a claim against the federal agency itself.
See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985).
Rule of Civil Procedure 17(b) provides that the capacity to
sue or be sued shall be determined by the law of the state in
which the district court is located. Thus, Louisiana law
governs whether the USP-P is an entity that has the capacity
to be sued. Under Louisiana law, to possess such a capacity,
an entity must qualify as a “juridical person.”
This term is defined by the Louisiana Civil Code as “an
entity to which the law attributes personality, such as a
corporation or partnership.” La. Civ. ...