                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                     August 10, 2006
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    JUNIOR CLAYTON M ENTEER,

             Plaintiff-Appellant,

     v.                                                 No. 05-3052
                                                (D.C. No. 04-CV-3054-M LB)
    APPLEBEE, Lieutenant of the G uard                    (D . Kan.)
    Force; DR. BOW LIN; FREDERICK
    LAU REN CE, W arden; HELEN
    (LNU), Lieutenant; (FNU) (LNU),
    Laundry Lady; UN ITED STATES
    M ARSHAL, for District of K ansas;
    U N ITED STA TES O F A M ER ICA;
    UN ITED STATES ATTO RN EY
    G EN ER AL; C OR REC TIO N S
    C ORPO RA TIO N O F A M ER IC A,

             Defendants-Appellees.




                            OR D ER AND JUDGM ENT *


Before L UC ER O, EBEL, and M U RPH Y, Circuit Judges.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      Plaintiff Junior Clayton M enteer, appearing pro se, appeals from the district

court’s memorandum and order granting defendants’ motions to dismiss.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part,

and remand for further proceedings.

       M r. M enteer is a federal prisoner who, at the time relevant to the facts

underlying this case, was incarcerated in the Leavenworth Detention Center, a

private prison run by defendant Corrections Corporation of America (CCA)

pursuant to a contract with the United States M arshals Service. He alleged that,

after he slipped on a wet floor and sprained his ankle, he was given only an ace

bandage. He also alleged that, in a later incident, CCA employees denied his

requests for new shoes and, as a result, he tripped on a loose flap hanging from

his worn pair, fell down the stairs, and fractured his ankle and finger. He further

alleged that CCA medical personnel provided inadequate treatment for this injury,

including delay in treating the injury appropriately and denying his requests for

pain medication both before and after surgery on his ankle.

      In his complaint, M r. M enteer asserted a claim under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for

violations of his Fifth Amendment right to due process and his Eighth

Amendment right to be free of cruel and unusual punishment. He also brought a

claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680

(FTCA), and a breach of contract claim pursuant to the Tucker Act, 28 U.S.C.

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§ 1346(a)(2), that was based on a third-party beneficiary theory. Each claim was

directed at all defendants, and he sought $3 million in damages. The United

States, the United States M arshal for the District of Kansas, and the United States

Attorney General (together, Federal Defendants) filed a motion to dismiss or, in

the alternative, for summary judgment. The remaining defendants (CCA

Defendants) filed a motion to dismiss. Both motions to dismiss relied on

Fed. R. Civ. P. 12(b)(1) and (6). The district court granted both motions to

dismiss and dismissed the complaint. This appeal followed.

      W e review de novo the district court’s dismissal of a complaint for lack of

subject matter jurisdiction and for failure to state a claim upon which relief can be

granted. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999); Sutton

v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

Because M r. M enteer appears pro se, we review his pleadings and other papers

liberally and hold them to a less stringent standard than those drafted by

attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). 1




1
       M r. M enteer’s form brief on appeal is completely blank. Thus, he failed to
identify any issues for appeal or provide any argument. W e caution M r. M enteer
that such deficiencies ordinarily result in waiver. See, e.g., United States v.
Clingman, 288 F.3d 1183, 1187 (10th Cir. 2002). Nevertheless, we will exercise
our discretion to review the district court’s rulings. Cf. Murrell v. Shalala,
43 F.3d 1388, 1389-90 & n.2 (10th Cir. 1994) (summarily considering, in the
alternative, the merits of an issue not challenged and otherw ise deemed waived).

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      The district court dismissed the breach of contract claim against the Federal

Defendants for lack of subject matter jurisdiction pursuant to the Tucker Act,

which provides for exclusive jurisdiction in the Court of Federal Claims for

breach of contract claims seeking in excess of $10,000, see 28 U.S.C.

§§ 1346(a)(2), 1491. The court dismissed the breach of contract claim as to the

CCA Defendants because M r. M enteer had alleged no jurisdictional basis other

than the Tucker Act, which only authorizes jurisdiction over breach of contract

claims brought against the United States, see id. § 1346(a)(2). W e agree with

these rulings and affirm them for substantially the same reasons as set forth in the

district court’s memorandum and order.

      The district court dismissed the FTCA claim as to all defendants except the

United States because “[t]he United States is the only proper defendant in an

FTCA action[,]” Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001).

The district court then dismissed the FTCA claim as to the United States under

the independent contractor exception set forth in Logue v. United States, 412 U.S.

521 (1973). In Logue, the Supreme Court held that an FTCA claim could not be

maintained against the United States for the acts of a prison contractor where the

contract “clearly contemplated that the day-to-day operations of the contractor’s

facilities were to be in the hands of the contractor, with the Government’s role

limited to the payment of sufficiently high rates to induce the contractor to do a

good job,” id. at 529, and where the government did not supervise the contractor’s

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daily operations, id. at 530. Perceiving no error, we affirm the district court’s

rulings on the FTCA claim for substantially the same reasons as set forth in the

court’s memorandum and order.

         In its analysis of the Bivens claim, the district court granted the Federal

Defendants’ motion to dismiss as to the United States for lack of subject matter

jurisdiction based on sovereign immunity, see Farm er v. Perrill, 275 F.3d 958,

963 (10th Cir. 2001). For the same reason, the district court dismissed the Bivens

claim as to the U.S. Attorney General and the U.S. M arshal in their official

capacities, see id. The district court also dismissed the Bivens claim against the

U.S. Attorney General and the U.S. M arshal in their individual capacities for

failure to allege personal participation or actual knowledge and acquiescence, see

Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992). For

substantially the same reasons as set forth in the district court’s memorandum and

order, we affirm these rulings.

         As to the corporate entity, CCA, the district court dismissed the Bivens

claim pursuant to Correctional Services Corp. v. M alesko, 534 U.S. 61 (2001).

In M alesko, the Supreme Court declined to infer a constitutional tort remedy

against a private corporation. Id. at 70-71. W e therefore affirm this ruling for

substantially the same reasons as set forth in the district court’s memorandum and

order.




                                            -5-
      The court next extended the reasoning of M alesko to the individual CCA

defendants:

      W hen an employee of a private corporation has allegedly violated an
      individual’s constitutional right and an alternative remedy is
      available, a Bivens action cannot be maintained. See Peoples v.
      CCA Detention Center[s], [No. 03-3129-KHV,] 2004 W L 74317
      (D. Kan. Jan. 15, 2004). In this case, plaintiff could pursue a
      negligence claim in state court and, in so doing, have a lesser
      standard to meet than the heightened “deliberate indifference”
      standard of the Eighth Amendment. Since plaintiff has alternative
      state remedies available, the Bivens claim against the [individual
      CCA] defendants is dismissed.

R., Doc. 30 at 7.

      The district court’s reliance on the Peoples case cited in the foregoing

passage (Peoples I) indicates that the basis for the dismissal of the Bivens claim

as to the individual CCA defendants was lack of subject matter jurisdiction. See

Peoples I, 2004 W L 74317, at *7 (dismissing such a claim for lack of subject

matter jurisdiction). This disposition, however, was improper. After the district

court’s decision, a panel of this court reversed Peoples I, clarifying that the

appropriate basis for dismissing a Bivens claim is failure to state a claim upon

which relief can be granted, not lack of subject matter jurisdiction. See Peoples

v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir. 2005) (Peoples III), vacated in

part on other grounds by Peoples v. CCA Det. Ctrs., 449 F.3d 1097, 1099

(10th Cir. 2006) (en banc) (per curiam) (Peoples IV). The panel noted that

“jurisdiction is not defeated if the complaint could have stated a cause of action



                                          -6-
for violation of state law.” Peoples III, 422 F.3d at 1096 n.3 (citing Bell v. Hood,

327 U.S. 678, 680 (1946)). The en banc court in Peoples IV affirmed this portion

of Peoples III, and reversed and remanded Peoples I for further proceedings. See

Peoples IV, 449 F.3d at 1099. Likew ise here, we reverse the district court’s

dismissal of the Bivens claim against the individual CCA employees for lack of

subject matter jurisdiction and remand the matter for further proceedings on this

single claim.

      The judgment of the district court is AFFIRM ED in part, REVERSED in

part, and REM AND ED for further proceedings consistent with this order and

judgment. M r. M enteer’s application to proceed in forma pauperis is

GR ANTED, and we remind him of his obligation to make partial payments until

the entire fee has been paid, see 28 U.S.C. § 1915(b).



                                                    Entered for the Court



                                                    M ichael R. M urphy
                                                    Circuit Judge




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