                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0670n.06

                                          No. 11-4328                                   FILED

                              UNITED STATES COURT OF APPEALS                        Jun 22, 2012
                                   FOR THE SIXTH CIRCUIT                     LEONARD GREEN, Clerk

HECTOR AYON,                                        )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE NORTHERN DISTRICT OF
NORTHEAST OHIO CORRECTIONAL                         )       OHIO
CENTER; RUDDIE RUSHING, Warden,                     )
                                                    )
       Defendants-Appellees.                        )
                                                    )


Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*


       PER CURIAM. Hector Ayon, a federal prisoner proceeding pro se, appeals a district court

judgment dismissing his civil rights complaint filed under 42 U.S.C. § 1983, but construed by the

district court as being filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).

       Ayon is incarcerated at the Northeast Ohio Correctional Center, which is owned and operated
by Corrections Corporation of America. The Federal Bureau of Prisons has contracted with

Corrections Corporation to house and provide services to federal prisoners. In September 2010,

Ayon alleged that prison officers deployed tear gas as part of a training exercise. During the

exercise, tear gas seeped into the housing unit’s ventilation system, causing Ayon to experience

difficulty breathing. Ayon was unable to evacuate his locked cell for hours. Once evacuated, he was

not treated for gas inhalation. Ayon did file grievances, but the grievances were denied.




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
                                            No. 11-4328
                                                -2-

        Ayon filed his complaint pursuant to section 1983, alleging that the defendants denied him

due process and subjected him to cruel and unusual punishment. The district court construed Ayon’s

complaint as a Bivens action because there was no allegation under color of state law. Ayon also

brought a claim under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), alleging that the

defendants were negligent in their use of the tear gas. The district court dismissed Ayon’s action for

failure to state a claim. Ayon now argues that the district court erred in construing his section 1983

claims under Bivens and in dismissing his action.

        We review the district court’s judgment de novo. Grinter v. Knight, 532 F.3d 567, 571–72

(6th Cir. 2008). In order to avoid dismissal, “a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks and citation omitted).

        The district court properly construed Ayon’s complaint under Bivens because a Bivens action

arises out of a violation of an individual’s federal constitutional rights by one who is acting under

color of federal law. Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 n.1 (6th Cir. 2000).

        The district court properly held that the prison cannot be sued for damages under Bivens. See

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 n.2 (2001). Nor is there a Bivens remedy against

Warden Ruddie Rushing because state tort remedies are available. See Minneci v. Pollard, 132 S.

Ct. 617, 625-26 (2012).

        The district court also properly dismissed Ayon’s Federal Tort Claims Act allegation. Under

the statute, the United States has waived its sovereign immunity for the negligent acts of government

employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). Independent

contractors are not government employees. See United States v. Orleans, 425 U.S. 807, 813–14

(1976). Therefore, the United States is not liable for the acts of Corrections Corporation or its

employees. See id. at 816.

        The judgment of the district court is affirmed.
