2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-8-2014

Marco Robertson v. Executive Director Brain Insti

Precedential or Non-Precedential: Non-Precedential

Docket No. 14-1514

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Recommended Citation

"Marco Robertson v. Executive Director Brain Insti" (2014). 2014 Decisions. Paper 1056.

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ALD-333 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-1514

___________

MARCO MIGUEL ROBERTSON,

Appellant

v.

EXECUTIVE DIRECTOR BRAIN INSTITUTE 

GEISINGER MEDICAL CENTER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-14-cv-00010)

District Judge: Honorable A. Richard Caputo

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect and Possible Dismissal 

Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit 

L.A.R. 27.4 and I.O.P. 10.6

August 14, 2014

Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

(Opinion filed: October 8, 2014)

_________

OPINION

_________

PER CURIAM

Pro se litigant Marco Miguel Robertson, proceeding in forma pauperis, appeals the 

District Court’s order dismissing his complaint against the Executive Director of the 
2

Brain Institute at Geisinger Medical Center. For the reasons set forth below, we will 

summarily affirm the District Court’s judgment.

Robertson is incarcerated at the United States Penitentiary in Lewisburg, 

Pennsylvania. He initiated this action in the Middle District of Pennsylvania in January 

2014, asserting Eighth Amendment violations against the Defendant, pursuant to Bivens 

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). As 

relief, Robertson requested transfer to another facility and “all applicable monetary 

damages.”

Because he filed in forma pauperis, Robertson’s complaint was subject to the 

screening requirements of 28 U.S.C. § 1915A. The Magistrate Judge recommended that 

the complaint be dismissed because this action against the Brain Institute’s Executive 

Director, a private party, cannot lie under Bivens; only federal officials can be sued in a 

such an action. The Magistrate Judge also noted that Robertson’s complaint requested 

relief that the Defendant could not possibly provide, as the Executive Director of the 

Brain Institute does not control where prisoners are incarcerated. Robertson filed 

objections to the Magistrate Judge’s report, but in his eight pages of argument addressed 

only the first issue, and then in a single, passing reference. He wrote: “Though 

Geisinger Medical Center in Danville, Pa. is a private entity[,] what’s now here before 

[the] court is heavily intertwined with deliberately indifferent sadistic minded staff, 

which did and does have [an] adverse effect on defendant doing vital job properly.”
3

The District Court reviewed Robertson’s objections, adopted the Magistrate 

Judge’s report in its entirety, and dismissed the complaint. The dismissal was without 

prejudice, allowing Robertson 20 days to correct the complaint’s defects. Robertson 

declined to do so and filed a timely notice of appeal instead. We have jurisdiction under 

28 U.S.C. § 12911 and exercise plenary review over the District Court’s order dismissing 

the complaint. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). 

The District Court did not err in dismissing the complaint. It is well-settled that a 

Bivens action can only be brought against federal officials, not private entities. See Corr. 

Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001); see also Minneci v. Pollard, 132 S. Ct. 

617, 626 (2012). This is true even if the private entity being sued was acting under color 

of federal law. See Malesko, 534 U.S. at 66. The Brain Institute’s Executive Director, as 

a private entity, is thus not subject to Bivens liability. Because the sole defendant has no 

liability for the claims presented, the complaint was properly dismissed.

Accordingly, we will affirm the District Court’s judgment. 

 

1

 Although Robertson was given leave to amend, this appeal presents no jurisdictional 

problem. Robertson clearly demonstrated his election to stand on the complaint when he 

filed his notice of appeal within the 20-day amendment period. See Batoff v. State Farm 

Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir. 1992).