                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 16, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 GREGORY D. CROSBY,

          Plaintiff-Appellant,
 v.                                                      No. 12-3163
 LT. MARTIN; FNU JOHNSON; FNU                  (D.C. No. 5:09-CV-03179-SAC)
 FULLER; FNU LNU; JOHN                                    (D. Kan.)
 SCHILLINGS; KEN DAUGHTERY,

          Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, 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        This order and judgment is not binding precedent, except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Plaintiff-Appellant Gregory D. Crosby, a federal prisoner appearing pro se,

appeals the dismissal of his complaint asserting a claim for damages pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), alleging violations of his constitutional rights while being held in

federal prison. Crosby brought suit against employees of Leavenworth Detention

Center, a private prison operated by the Corrections Corporation of America

(CCA), in their individual and official capacities, for excessive force and denial

of medical care in violation of his Eighth Amendment rights. R. at 4, 9. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

                                         I.

      In his complaint, Crosby alleges that he was taken into a strip cell, ordered

to strip, and sprayed with chemicals for no reason. R. at 7. He was then left in

the cell with the food slot closed for three to five minutes. All of which resulted

in his having trouble breathing. Id. at 8. Crosby complained that the chemicals

burned his skin and requested medical attention, but was told to wash off in the

shower. Id. After his request, a nurse responded by telling him to wash his body,

but she did not conduct a medical assessment. Id. Crosby alleged that he did not

receive adequate medical attention in response to his request. Crosby further

alleged that he was returned to the strip cell for seven days during which he was

only fed “finger food” and was also denied adequate medical care and water. Id.




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                                          II.

      Shortly after Crosby filed his complaint, the district court granted Crosby

in forma pauperis status and ordered him to show cause why the complaint should

not be dismissed for failure to state a claim. R. at 14-15. Crosby filed a response

to the order to show cause. To the extent that Crosby asserted a Bivens claim

against the defendants in their official capacities, the district court concluded that

the complaint was subject to dismissal. Id. at 15. To the extent Crosby asserted a

Bivens claim against the defendants in their individual capacities, the district

court concluded that dismissal was warranted because Bivens has not been

extended to reach the conduct of private-corporation employees when alternative

state causes of action are available. Id. at 14-15. In response to the district

court’s order, Crosby emphasized that he was subjected to cruel and unusual

punishment and denied medical care, but he did not address the points of concern

raised by the district court. Id. at 18-21. Accordingly, the district court

dismissed his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Id. at 32-34.

                                         III.

      We review de novo a district court’s § 1915(e)(2) dismissal of a complaint

for failure to state a claim, accepting the allegations as true and viewing them in

the light most favorable to the plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007). Because Crosby filed his complaint pro se, we construe his

pleadings liberally. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).

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                                        IV.

      This court has previously stated that “the presence of an alternative cause of

action against individual defendants provides sufficient redress such that a Bivens

cause of action need not be implied.” Peoples v. CCA Det. Ctrs., 422 F.3d 1090,

1102 (10th Cir. 2005). This statement was recently reaffirmed by the Supreme Court

in Minneci v. Pollard, 132 S. Ct. 617 (2012), which held that

      where, as here, a federal prisoner seeks damages from privately
      employed personnel working at a privately operated federal prison,
      where the conduct allegedly amounts to a violation of the Eighth
      Amendment, and where that conduct is of a kind that typically falls
      within the scope of traditional state tort law (such as the conduct
      involving improper medical care at issue here), the prisoner must seek
      a remedy under state tort law. We cannot imply a Bivens remedy in
      such a case.

Id. at 626.

      Minneci, as well as our own ruling in Peoples, are controlling here. As the

basis for his Bivens claim, Crosby alleges conduct that would typically fall within

a state-law negligence claim. Id. at 625 (“State-law remedies and a potential Bivens

remedy need not be perfectly congruent.”); Schmidt v. HTG, Inc., 961 P.2d 677, 693

(Kan. 1998) (“‘To recover for negligence, the plaintiff must prove the existence of

a duty, breach of that duty, injury, and a causal connection between the duty

breached and the injury suffered. Whether a duty exists is a question of law.

Whether the duty has been breached is a question of fact.’” (quoting Honeycutt v.

City of Wichita, 836 P.2d 1128, 1136 (Kan. 1992)).         Because Crosby has an


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alternative cause of action against the defendants pursuant to Kansas state law, he

is precluded from asserting a Bivens action against the defendants in their individual

capacities.

      We also agree with the district court’s conclusion that Crosby is barred by

sovereign immunity from asserting a Bivens action against the defendants in their

official capacities. See Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001)

(finding that an official-capacity claim “contradicts the very nature of a Bivens

action. There is no such animal as a Bivens suit against a public official

tortfeasor in his or her official capacity”).

      Finally, to the extent that Crosby seeks to fashion a claim under 42 U.S.C.

§ 1983, we agree with the district court that he has not sufficiently alleged that

state action resulted in the violation of his constitutional rights. See West v.

Atkins, 487 U.S. 42, 48 (1988) (“To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws of the United

States, and must show that the alleged deprivation was committed by a person

acting under color of state law.”). Accordingly, we affirm the district court’s

dismissal of Crosby’s complaint for failure to state a claim.

                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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