FILED

UNITED sTATEs DISTRICT coURT OCT ‘| 4 2914
FoR THE D!STRICT oF CoLUMBIA mem u_s_ Dlsmct and

Bankruptcy Courts
Thomas Jefferson Breland, )
Plaintiff, §
v. § Civil Action No. 14-0988 (UNA)

Charles E. Samuels, Jr. et al., §
Defendants. §

)

MEMORANDUM OPINION

Plaintiff seeks reconsideration of the August 22, 2014 Order dismissing this case for his
failure to comply with the filing fee requirements of the Prison Litigation Reform Act ("PLRA").
He has attached the requested financial information to his Motion for Reconsideration to warrant
granting the motion and vacating the dismissal order. However, the Court has reviewed the
complaint in accordance with the PLRA’s screening provisions set out at 28 U.S.C. § l9l5A and
concludes that the complaint fails to state a claim upon which relief can be granted. Hence, the
dismissal will stand.

Plaintiff is currently incarcerated at the Federal Correctional lnstitution in Loretto,
Pennsylvania. The complaint is based on alleged inadequate medical treatment plaintiff claims
he has received since entering the Bureau of Prisons ("BOP") in September l998. See Compl. at
2. Claiming negligence and violations of the Eighth Amendment’s proscription against cruel and
unusual punishment, id. at 7, plaintiff names as defendants Bureau of Prisons Director Charles E.

Samuels and three other high-level officials based at BOP headquarters in Washington, D.C., id.

at 4. Plaintiff purports to sue the defendants in their official and personal capacities; he seeks
monetary damages exceeding $70,000 and declaratory relief. Id. at 7.

Plaintiff complains about medical treatment he received in different years of his
incarceration without identifying the particular BOP facility or the medical personnel who
provided the services. See Compl. at 4-6. lie faults the named defendants for "policy, practice
and procedure . . . of medical indifference to plaintiff and similarly situated [prisoners]." Id. at
l4. Plaintiff has mistakenly invoked 42 U.S.C. § 1983 as the basis of jurisdiction since, by its
terms, that statute applies only to state action. Plaintiff s claim is properly considered under the
analogous cause of action against federal officials recognized in Bz`vens v. Six Unknown Named
Agents ofFea'. Bureau ofNarcotz`cs, 403 U.S. 388 (1971).

ln a Bivens lawsuit, "a plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal,
556 U.S. 662, 676 (2009); see Cameron v. Thornburgh, 983 F.Zd 253, 258 (D.C. Cir. 1993)
(dismissing Bivens claim based "on the bare assumption that policy decision made in
Washington might have affected Cameron’s treatment in Terre Haute"); see also Farmer v.
Morilsugu, 163 F.3d 610, 615-16 (D.C. Cir. 1998) (explaining that "the most important point in
this case is that Moritsugu [as the overseer of medical operations in BOP facilities nationwide] is
not the person within the BOP who determines whether [a certain treatment] is required in a
given case . . . . Such determinations are made at the local level, z`.e., within individual BOP
institutions," and finding "untenable" the idea that the BOP Medical Director could be "liable for
all alleged mistakes in the individual diagnoses of every inmate in the BOP system, simply by
virtue of an inmate’s complaint"); Iqbal at 676-77 (respondeat superior and vicarious liability

theories found inapplicable to Bivens claim). Since the named officials are not alleged to have

participated in plaintiffs actual care at a BOP facility, they cannot be held personally liable for
money damages under Bivens.

Plaintiff s official-capacity lawsuit for damages essentially is against the United States,
which is subject to suit only upon consent "unequivocally expressed in statutory text[.]" Lane v.
Pena, 518 U.S. 187, 192 (1996); accord United States v. Mz'tchell, 445 U.S. 535, 538 (l980).
The Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-80, provides a limited waiver
of the sovereign’s immunity for money damages "under circumstances where the United States,
if a private person, would be liable to the claimant in accordance with the law of the place where
the act or omission occurred." Id., § l346(b)(l). The United States has not consented to be sued
for constitutional violations. See FDIC v. Meyer, 510 U.S. 47l, 476-78 (1994). To the extent
that plaintiff is seeking damages for negligence, he cannot maintain that claim before exhausting
his administrative remedies by "first present[ing] the claim to the appropriate Federal agency. . .
.," 28 U.S.C. § 2675. See Abdurrahman v. Engstrom, 168 Fed.Appx. 445, 445 (D.C. Cir. 2005)
@er curiam) (affirming the district court’s dismissal of unexhausted FTCA claim "for lack of
subject matter jurisdiction"); accord Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 371
(D.C. Cir. 2007).

In the absence of a Bz`vens claim or subject matter jurisdiction over any FTCA claim, the
Court has no basis to entertain plaintiffs claim for declaratory relief since "the availability of
[declaratory] relief presupposes the existence of a judicially remediable right." Ali v. Rumsfeld,
649 F.3d 762, 778 (D.C. Cir. 2011). Hence, the complaint will be dismissed in its entirety. A
separate Order accompanies this Memorandum Opinion.

4a :lz/<l~\

(6 U'nitied S`ates District Judge
DATE: October , 2014

