Georgacarakos v. Nalley ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 16, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
PETER N. GEORGACARAKOS,
Plaintiff - Appellant, No. 09-3224
v. (D. Kansas)
MICHAEL NALLEY, BOP Regional (D.C. No. 5:08-CV-03279-SAC)
Director, Kansas City, Kansas; (FNU)
DENNEY, Regional Psychologist,
Kansas City, Kansas,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO, McKAY, and MURPHY, 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 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This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Peter Georgacarakos appeals from the district court’s dismissal of his civil
rights suit brought pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Georgacarakos sued Michael Nalley,
the Regional Director of the Bureau of Prisons North Central Region, and “Dr.
Denney,” listed in the complaint as the Regional Psychologist of the Bureau of
Prisons North Central Region. Concluding Georgacarakos’s complaint failed to
state sufficient facts, which if true, would establish that Nalley or Denney
personally participated in any violation of his constitutional rights, the district
court dismissed the complaint for failure to state a claim. 28 U.S.C.
§ 1915A(b)(1). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court
affirms.
Upon its filing, the district court screened Georgacarakos’s complaint
pursuant to 28 U.S.C. § 1915A(a). As a result of that review, the district court
ordered Georgacarakos to show cause why his complaint should not be dismissed
for failure to state a valid civil rights claim against Nalley or Denney. 28 U.S.C.
§ 1915(b)(1). In particular, the district court noted Georgacarakos’s complaint
failed to allege any specific action on the part of the defendants in the alleged
violation of his rights. Instead, the complaint merely asserted, in completely
cursory fashion, that Nalley and Denney had participated in an amorphous
conspiracy to violate his rights or had “condoned” the conduct of their
subordinates in violating his rights. See Tonkovich v. Kan. Bd. of Regents, 159
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F.3d 504, 533 (10th Cir. 1998) (holding conclusory allegations of conspiracy are
insufficient to state a valid civil rights claim); Ashcroft v. Iqbal, 129 S. Ct. 1937,
1948 (2009) (holding government officials cannot be held vicariously liable for
conduct of their subordinates). When Georgacarakos’s response to the order to
show cause did not cure the deficiencies previously identified, the district court
dismissed the complaint for failure to state a claim. 28 U.S.C. § 1915A(b)(1).
This court reviews de novo the district court’s dismissal of a prisoner’s
complaint under § 1915A(b)(1). Young v. Davis, 554 F.3d 1254, 1256 (10th Cir.
2009). Consideration of the entire record and de novo review of the district
court’s order of dismissal demonstrates the district court correctly resolved this
case. In particular, as noted by the district court, Georgacarakos’s complaint
utterly fails to demonstrate Nalley or Denney personally participated in the
alleged violations of his constitutional rights. Furthermore, the district court
quite properly refused to transfer the case to the United States District Court for
the District of Colorado, as that court had previously dismissed these very claims
because it lacked personal jurisdiction over Nalley and Denney. Chrysler Credit
Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991) (“[Section]
1404(a) does not allow a court to transfer a suit to a district which lacks personal
jurisdiction over the defendants . . . .”).
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The United States District Court for the District of Kansas is hereby
AFFIRMED for substantially those reasons set out in its order of dismissal dated
July 29, 2009.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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