                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

ANTHONY RICE,                                )
                                             )
                    Plaintiff,               )
                                             )
               v.                            )       Civ. Action No. 12-0883 (ABJ)
                                             )
ERIC HIMPTON HOLDER, JR. et al.,             )
                                             )
               Defendants.                   )
_______________________________              )


                                 MEMORANDUM OPINION

       Plaintiff, proceeding pro se and in forma pauperis, is a resident of Riverdale, Maryland,

suing twenty individuals for alleged constitutional and statutory violations stemming from his

former incarceration at the Rivers Correctional Institution (“RCI”) in Butner, North Carolina. 1

Plaintiff sues such high-level officials as U.S. Attorney General Eric Holder, Jr., District of

Columbia Congresswoman Eleanor Holmes Norton, former Bureau of Prisons (“BOP”) Director

Harley Lappin, and North Carolina Governor Beverly Perdue, as well as employees of the BOP

and RCI, each in his or her individual capacity. Compl. ¶¶ 1-15.

       Plaintiff alleges that on August 11, 2011, he “was extradited illegally via designation to

[RCI] a privatized prison in North Carolina.” Compl. ¶ 17. Plaintiff further alleges that during

his confinement there, he was deprived of adequate dental and medical care, “denationalized,”

and subjected to retaliation, among other wrongs. See id. ¶¶ 26-46. Plaintiff seeks $1.5 million

in monetary damages from each defendant. Id. ¶¶ 1-5, 59-60.

1
  Rivers Correctional Institution is a private contract facility housing Bureau of Prison inmates.
See http://www.bop.gov (Prison Facilities); Davis v. Fed. Bureau of Prisons, 535 F. Supp. 2d
42, 43 (D.D.C. 2008) (RCI is “a contract correctional facility administered by the Wackenhut
Corrections Corporation.”).


                                                 1
       Governor Perdue moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure to dismiss the complaint for failure to state a claim upon which relief can be granted.

Mot. to Dismiss [Dkt. # 16].       Plaintiff has opposed this motion mostly by reframing the

complaint’s allegations. See generally Response to Mot. to Dismiss [Dkt. # 36]. In addition,

Congresswoman Holmes Norton moves to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) and

28 U.S.C. § 1915(e)(2)(B)(i). Mot. to Dismiss [Dkt. # 42]. Plaintiff has yet to respond to this

motion. See Min. Order of October 12, 2012 (enlarging the time to November 9, 2012, for

plaintiff to respond to any outstanding motions to dismiss). The court nevertheless is required to

dismiss the complaint of an individual proceeding in forma pauperis “at any time” it determines

that the complaint fails to state a claim upon which relief can be granted. 28 U.S.C. §

1915(e)(2)(B)(ii). Since the complaint against Congresswoman Holmes Norton qualifies for

such treatment, the court will grant her motion, along with Governor Perdue’s motion to dismiss.

In addition, the court, acting on its own motion, will dismiss the complaint against Attorney

General Holder and former BOP Director Lappin, who have yet to respond to the complaint,

under § 1915(e)(2)(B)(ii).

       Plaintiff’s Causes of Action

       As an initial matter, plaintiff purports to sue “for money damages” under “the First,

Fourth, Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the United States

Constitution[,] Title 28 U.S.C. 2441(c),(3), Federal Tort Claims Act, 1974 Privacy Act 5 U.S.C.

552(a)(1) (g)(4); Bivens Action 1331, North Carolina General Statute sec. 1D-15, Respondeat

Superior Theory, Title 18 sec. 371 (Conspiracy).” Compl. at 1. In Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court recognized an

implied right of action for damages against federal officials in their personal capacity for certain



                                                  2
constitutional violations. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009); see Corr. Servs. Corp. v.

Malesko, 534 U.S. 61, 66-68 (2001) (discussing limitations of Bivens). But neither the Privacy

Act, the Federal Tort Claims Act, nor the federal criminal conspiracy statute plaintiff has cited,

18 U.S.C. § 371, provides a private right of action against individuals. See Martinez v. Bureau of

Prisons, 444 F.3d 620, 624 (D.C. Cir. 2006) (Privacy Act is against agencies only); 28 U.S.C. §

2674 (extending FTCA liability only to “the United States”); Keyter v. Bush, Civ. Action No. 03-

2496, 2004 WL 3591125, *2 (D.D.C. Aug. 6, 2004) (listing the criminal conspiracy statute as

one of criminal code provisions not conveying a private right of action). Hence, the court,

construing the complaint liberally, finds the only cognizable federal claim among plaintiff’s

laundry list of causes to be brought under Bivens. And liability under Bivens cannot be based on

plaintiff’s asserted “Respondeat Superior Theory,” Compl. at 1. See Iqbal, 556 U.S. at 676.

        Defendants’ Motions to Dismiss

        1. Legal Standard

        “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face . . . . A claim

has facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678 (internal quotation marks and citations omitted); see Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007) (a plaintiff's “[f]actual allegations must be enough to raise a right to relief

above the speculative level . . . .”) (citations omitted).

        In considering a motion to dismiss for failure to state a claim, a court generally “must

accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551

U.S. 89, 94 (2007), and “grant plaintiff[] the benefit of all inferences that can be derived from the



                                                    3
facts alleged.” Kowal v. MCI Commun’s Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However,

the court need not accept a plaintiff's legal conclusions or the inferences he draws if those

inferences are unsupported by the alleged facts.         Id.   “Nor must the court accept legal

conclusions cast as factual allegations.” Id.; see Warren v. District of Columbia, 353 F.3d 36,

39-40 (D.C. Cir. 2004) (differentiating unacceptable conclusions of law from acceptable

conclusions of fact).

       2. Analysis

       To be held liable under Bivens, the individual defendant must have participated

personally in the alleged wrongdoing. See Iqbal, 556 U.S. at 676; Simpkins v. District of

Columbia Gov't, 108 F.3d 366, 369 (D.C. Cir. 1997). Plaintiff alleges that Governor Perdue

“consented to allow a Private Corporation to enslave, denationalize, extradite, and incarcerate the

plaintiff in exile against his will within the state of N.C. . . . She also is complicit to the

transporting of the plaintiff across state lines by armed guards while in shackles.” Compl. ¶ 20.

He makes similar allegations against Congresswoman Holmes Norton. Id. ¶ 19. Since these

conclusory statements fail to establish either defendant’s personal involvement in the alleged

wrongdoing at RCI, and plaintiff cannot state any credible facts to cure this defect, the Court will

grant each official’s motion to dismiss under Rule 12(b)(6). 2         See Iqbal, 556 U.S. at 676



2
    Congresswoman Holmes Norton also argues for dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction on the ground that plaintiff has not established his standing to sue her
because “he has not satisfied the causation prong of the standing analysis as to her.” Mem. of P.
& A. in Supp. of Mot. to Dismiss of Def. The Hon. Eleanor Holmes Norton [Dkt. # 42] at 2-3.
Plaintiff’s allegation that Congresswoman Holmes Norton conspired with other defendants to
deprive him of a constitutional right – albeit far-fetched – suffices to establish his standing to sue
when viewed through the liberal lens accorded a pro se pleading. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992) (at a minimum, standing requires (1) an “injury in fact”
suffered by the plaintiff, (2) a causal connection between the alleged injury and the defendant’s
alleged conduct, and (3) the likelihood that the court can redress the injury). Hence, the court
will not dismiss the complaint under Rule 12(b)(1).
                                                  4
(“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each

Government-official defendant, through the official's own individual actions, has violated the

Constitution.”); Cameron v. Thornburgh, 983 F.2d 253, 257-58 (D.C. Cir. 1993) (dismissing

claims against high-level policymakers “[i]n the absence of any [factual] allegations specifying

[their] involvement” in prisoner’s treatment at a BOP facility in Terre Haute, Indiana); accord

Brown v. Fogle, 819 F. Supp. 2d 23, 28 (D.D.C. 2011).

       Since the same reasoning applies to plaintiff’s similarly styled allegations against

Attorney General Holder, Compl. ¶ 18, and plaintiff has alleged no facts supporting his puzzling

conclusion that former BOP Director Lappin “violated Article 6 Cl. 3 of the Federal Constitution

in violation of N.C. Gen. Stat. 148-37.1,” id. ¶ 21, the complaint against these defendants, too,

will be dismissed for failure to state a claim upon which relief can be granted.

                                         CONCLUSION

       For the foregoing reasons, the court will grant the separate motions of defendants Beverly

Perdue and Eleanor Holmes Norton to dismiss the complaint under Rule 12(b)(6), and, acting

sua sponte, will dismiss the complaint against defendants Eric H. Holder, Jr., and Harley G.

Lappin under 28 U.S.C. § 1915(e)(2)(B)(ii). A separate order accompanies this Memorandum

Opinion.

                                                      ____________s/___________
                                                      AMY BERMAN JACKSON
                                                      United States District Judge
DATE: October 17, 2012




                                                 5
