Marrero v. U S Bureau of Pris

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30819
Summary Calendar
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ANTHONY MARRERO,
Plaintiff-Appellant,
versus
U. S. BUREAU OF PRISONS;
OFFICER ANTOINE; ROBERT BOYD
Defendants-Appellees
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Appeal from the United States District Court for the
Western District of Louisiana
(CA-94-1720)
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February 19, 1996
Before KING, GARWOOD and DENNIS, Circuit Judges.*
PER CURIAM:
Plaintiff-Appellant Anthony Marrero (Marrero), a federal
prisoner confined at F.C.I. Oakdale, Louisiana, brought this suit
against the U.S. Bureau of Prisons (the Bureau) and Bureau
officials Lieutenant Boyd (Boyd) and Officer Antoine (Antoine),
complaining that he was not protected from an assault by a fellow
inmate. The defendants filed a motion to dismiss under Rules
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
12(b)(1) and (6) directed to Marrero’s second amended, and final,
complaint; Morrero filed a response to the motion; the Magistrate
Judge thereafter issued a memorandum recommending that the motion
be granted and the suit be dismissed; Marrero filed objections; and
the district court, after reviewing the record, the recommendations
and the objections, accepted the report and dismissed the suit with
prejudice. Marrero appeals. We affirm in part and vacate and
remand in part.
Marrero has no claim under the Federal Tort Claims Act,
because the United States is the only proper defendant in such a
suit and because administrative remedies were not exhausted.
Vernell v. U.S. Postal Service, 819 F.2d 106, 109 (5th Cir. 1987);
McAfee v. Fifth Circuit Judges, 884 F.2d 221 (5th Cir. 1989), cert.
denied, 110 S.Ct. 1141 (1990). State law claims are likewise
prohibited as it is alleged that the individual defendants were
acting in the scope of their employment with the Bureau. See 28
U.S.C. § 2679(b)(1).
The question remains whether Marrero has alleged a claim under
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) for violation of
his constitutional rights. However, such a claim does not run
against the United States or its agencies, such as the Bureau, but
only against individual defendants.1 As to individual defendants,
the relevant standard is that set out in Farmer v. Brennan, 114
1
F.D.I.C. v. Meyer, 114 S.Ct. 996, 1005-1006 (1994); Enplanar
Inc. v. Marsh, 11 F.3d 1284, 1294 n.12 (5th Cir.), cert. denied,
115 S.Ct. 312 (1994); Williamson v. U.S. Dept. of Agriculture, 815
F.2d 368, 380 (5th Cir. 1987).
2
S.Ct. 1970, 1976 (1994) holding that an Eighth Amendment failure to
protect claim may be made out if a prisoner is assaulted and
injured by other prisoners as a result of incarceration under
conditions posing a substantial risk of serious harm to his safety
and subjective deliberate indifference of the defendant prison
officials to the prisoner’s safety.
Considering Marrero’s pro se status, we conclude that for
purposes of a Rule 12(b)(6) motion he adequately alleged a
substantial risk of serious harm. As to Boyd, although the
complaint mostly alleged some variety of negligence, it plainly
charges Boyd with knowledge of the danger to Marrero and expressly
charges Boyd with “deliberate indifference.” While the complaint
should, but does not, allege what Boyd, with such deliberate
indifference, did or failed to do which contributed to the assault,
that defect was not asserted in the motion to dismiss or the
Magistrate Judge’s report, and under the circumstances, including
Marrero’s pro se status, should not have resulted in dismissal with
prejudice, as the matters alleged in the complaint do not suggest
that this deficiency cannot be remedied.2
On the other hand, as to Antoine only some form of negligence
is alleged. Thus it is alleged that Antoine was “negligent for
putting him in a cage with other inmates and also for opening the
cage without handcuffing the inmates and without assistance from
2
Granting a motion for more definite statement, or even
perhaps a dismissal with leave to amend, would be appropriate;
likewise, we do not suggest that Boyd may not be able to prevail on
a motion for summary judgment (as to either prong of Farmer).
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other staff”, and that “[t]he guard did not hurt the inmate
directly, but the guard’s unintentionally forgetfulness, (his
negligence) in putting the inmate in the same recreation cage with
other inmates and opening the cage without other staffs assistance
while other inmates were fighting caused inmate’s injuries.” It is
also alleged that when a fight between other inmates broke out in
the cage Antoine “opened the recreation cage to try to control the
situation”. There is no allegation that Antoine knew or had been
informed of threats or danger to Marrero or that any who might be
out to get him were in the cage. Under Farmer the allegations
against Antoine do not state a Bivens claim. See also Davidson v.
Cannon, 106 S.Ct. 668 (1986); Johnston v. Lucas, 786 F.2d 1254 (5th
Cir. 1986).
Accordingly, the judgment below is affirmed as to the Bureau
and Antoine, but as to Boyd it is vacated and the cause is remanded
as to him for further proceedings not inconsistent herewith.
AFFIRMED in part; VACATED and REMANDED in part.
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