Abdel Eltayib v. Cornell Companies, Inc.

Case: 12-11100 Document: 00512202660 Page: 1 Date Filed: 04/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 9, 2013
No. 12-11100
Summary Calendar Lyle W. Cayce
Clerk
ABDEL ELTAYIB,
Plaintiff-Appellant
v.
CORNELL COMPANIES INC; GEO GROUP, INC.; DAVID JUSTICE; STEVE
MCDANIEL; JOHN FARQUHAR; JOHN DOE #1; JOHN DOE #2; JOHN DOE
#3; HARLEY LAPPIN; DONNA MELLENDICK; GLENN BALINAO; LOUIE
ESCOBELL; FEDERAL BUREAU OF PRISONS,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:10-CV-296
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Abdel Eltayib, formerly federal prisoner # 13882-050, appeals the
dismissal of a civil rights complaint he filed while imprisoned at Big Spring
Correctional Center (BSCC). Eltayib relied mainly on 42 U.S.C. § 1983, and
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). Defendants included Cornell Companies, Inc. (Cornell) and GEO
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-11100
Group, Inc. (GEO), private corporations that were or are managing BSCC.
Eltayib also named several former or current employees of Cornell or GEO at
BSCC, and he sued Federal Bureau of Prisons (BOP) director Harley Lappin,
BOP privatization administrator Donna Mellendick, and the BOP.
Cornell, GEO, and their employees are not subject to suit as state actors
under § 1983. BSCC is a federal prison and “§ 1983 applies to constitutional
violations by state, rather than federal, officials.” Evans v. Ball, 168 F.3d 856,
863 n.10 (5th Cir.1999) (emphasis added), overruled on other grounds by
Castellano v. Fragozo, 352 F.3d 939 (5th Cir. 2003).
In addition, Cornell, GEO, and their employees cannot be liable as private
actors under Bivens. See Minneci v. Pollard, 132 S. Ct. 617, 626 (2012);
Correctional Services Corp. v. Malesko, 534 U.S. 61, 63-64 (2001). The BOP itself
also cannot be sued under Bivens. Malesko, 534 U.S. at 72. The Bivens claims
against BOP defendants Lappin and Mellendick, were properly dismissed
because they cannot be vicariously liable and because Eltayib failed to allege
facts that would show that their “own individual actions . . . violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
In support of his Fifth Amendment Equal Protection claim, Eltayib asserts
that the district court erred because the defendants had “policies . . . to transfer
[a] certain class of inmates to private facilities.” He does not identify this
“certain class” or explain why it was wrong to send anyone to a privately
managed prison. His amorphous conclusion of discrimination fails to show that
the district court erred by dismissing this claim. See Sossamon v. Lone Star
State of Texas, 560 F.3d 316, 336 (5th Cir. 2009).
Although Eltayib concedes that his request for a transfer is moot in light
of his release from prison, he argues that the court erred by dismissing as moot
his request for injunctive relief seeking the immediate cessation of all prisoner
transfers to BSCC. He does not offer any basis for the district court to make
such a sweeping order. Except for the limited purpose of correcting proven
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No. 12-11100
constitutional violations, federal courts are neither empowered nor equipped to
second-guess prison administrators or to engage in prison management. Ruiz
v. Estelle, 679 F.2d 1115, 1126 (5th Cir. 1982) (and cases cited therein), vacated
in part on other grounds 688 F.2d 266 (5th Cir. 1982). This contention is
frivolous.
The district court did not abuse its discretion by dismissing Eltayib’s state-
law claims because it properly dismissed any federal claims that might have
supported supplemental jurisdiction. See Noble v. White, 996 F.2d 797, 799-800
(5th Cir. 1993). Eltayib’s vague and conclusional assertions also fail to establish
diversity jurisdiction. See St. Paul Reinsurance Co. v. Greenberg, 134 F.3d 1250,
1254 (5th Cir. 1998).
Because Eltayib raises no relevant, nonfrivolous challenge to the dismissal
of his claims, the judgment of the district court is AFFIRMED. Eltayib’s motion
for the appointment of counsel is DENIED.
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