IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

FERNANDO DURAZO-MENDEZ, §

(BOP No. 58828-008) §

 § CIVIL ACTION NO.4:05-CV-786-Y VS. 

§

 §

UNITED STATES OF AMERICA, et al.§

 

ORDER OF PARTIAL DISMISSAL OF SEVERAL DEFENDANTS UNDER 28 U.S.C. §

1915(E)(2) AND 28 U.S.C. § 1915A(b), AND ORDER REGARDING COMPLETION

 AND SERVICE OF SUMMONS UPON THE REMAINING DEFENDANTS 

(With Special Instructions to the Clerk of Court)

The United States magistrate judge permitted plaintiff,

Fernando Durazo-Mendez, to proceed in the above-styled and numbered

cause pursuant to 28 U.S.C. § 1915, and Plaintiff was ordered to

pay the full filing fee consistent with the Prison Litigation

Reform Act(“PLRA”). By order of this Court, Durazo-Mendez was then

required to file a more definite statement as to particular factual

allegations against the named defendants. Durazo-Mendez timely

filed a more definite statement on June 9, 2006. After review and

consideration of the complaint and more definite statement, the

Court concludes that some of the defendants and some claims must be

dismissed, and that Plaintiff must provide completed summons forms

to the Court in order to effect service upon the remaining

defendants.

 

 Case 4:05-cv-00786-Y Document 9 Filed 11/28/06 Page 1 of 10 PageID 179
1Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2006)(emphasis added). 

2See 28 U.S.C.A. § 1915(e)(2)(West Supp. 1999); see Adepegba v. Hammons,

103 F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281

(5th Cir. 1990)(discussing authority to dismiss at any time under prior §

1915(d)).

3See 28 U.S.C.A. § 1915A(a)(West Supp. 2006).

4See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

2

A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1 Under 28

U.S.C. § 1915(e)(2), a district court retains broad discretion in

determining at any time whether an in-forma-pauperis claim should

be dismissed.2 Furthermore, as a part of the PLRA, Congress enacted

28 U.S.C. § 1915A, which requires the Court to review a complaint

from a prisoner seeking relief from a governmental entity or

governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await any responsive

pleading to conduct its § 1915 inquiry.4 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”5 The Court concludes that some of Plaintiff’s claims must be dismissed.

 

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6The clerk of Court is directed to add to the docket as a party defendant

in place of John Doe Number One Dr. Benjamin. 

7See Schultea, 47 F.3d at 1433; see also Wesson, 910 F.2d at 281("An IFP

complaint that recites bare legal conclusions, with no suggestion of supporting

facts, or that postulates facts of an entirely fanciful nature, is a prime

candidate for dismissal under § 1915(d)[now § 1915(e)(2)(B)]").

3

In his complaint, Durazo-Mendez included several John and Jane

Does as unnamed defendants, but he failed to list any factual

allegations against these unnamed defendants. In response to the

Court’s question in the order for more definite statement asking

Plaintiff to identify any such persons and state facts of any

involvement, he listed only Dr. Benjamin as John Doe Number One.

(June 9, 2006, More Definite Statement (“MDS”) at ¶ 8.) In

response to another question from the Court about adding any other

defendants, Plaintiff against listed only Dr. Benjamin. (MDS at ¶

11.) Thus, although Dr. Benjamin will replace John Doe Number One

as a defendant in this action,6 as to the remaining Doe defendants,

as Plaintiff has failed to identify them, and has failed to state

any factual allegations or involvement, his claims against them

will be dismissed.7 

Durazo-Mendez’s claims arise from two separate periods of time

and in two separate areas of the country. The later claims arise

while he was housed at FMC--Fort Worth after April 2003. Prior to

that time, Durazo-Mendez generally alleges that he was not afforded

proper medical care or treatment while housed at the Corrections

Corporation of America’s (“CCA’s”) facility in Florence, Arizona

 

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8403 U.S. 388, 297 (1971). Bivens, of course, is the counterpart to 42

U.S.C. § 1983, and extends the protections afforded under § 1983 to parties

injured by federal actors. See Evans v. Ball, 168 F.3d 856, 863 n. 10(5th Cir.

1999) (“A Bivens action is analogous to an action under § 1983--the only

difference being that § 1983 applies to constitutional violations by state,

rather than federal officials.”),citing Abate v. Southern Pacific Transp. Co.,

993 F.2d 107, 110 n. 14 (5th cir. 1993). 

9See Brown v. Nationsbank Corp., et al., 188 F.3d 579,590 (5th Cir. 1999),

cert. den’d, 530 U.S. 1274 (2000), citing Alford v. United States, 693 F.2d 498,

499 (5th Cir. 1982).

4

from August 2002 until April 2003. (Compl. ¶¶ 13-25.) With regard

to Dr. Benjamin, Plaintiff did not recite any factual allegations

other than that Benjamin was a medical doctor employed or under

contract with CCA. Instead, Durazo-Mendez simply noted that Dr.

Benjamin was referred to in paragraphs 17, 20, and 23 of the

complaint. (MDS at ¶¶ 8-9.) Those paragraphs recite Plaintiff’s

allegations that although he was having pain in his right shoulder

and neck in the fall of 2002, he did not receive a cervical fusion

surgery until December 2002, and then when taken to a physician for

follow-up care in February 2003, other than x-rays, he was not

given any treatment. But, Plaintiff’s claims against Dr. Benjamin

appear to be barred by limitations. 

Although it is unclear whether Dr. Benjamin is alleged to be

a federal employee, to the extent Plaintiff alleges he acted under

color of federal law, Plaintiff’s constitutional claims should be

evaluated under Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics (“Bivens”).8 The United States Court of Appeals

for the Fifth Circuit held that a Bivens action is controlled by

the applicable state statute of limitations.9 In Texas the

 

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10See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)(noting that

district courts in Texas must use Texas's general two-year, personal injury

limitations period); see TEX. CIV. PRAC. & REM. CODE 16.003(a)(Vernon Supp.

2005)(Texas’s two-year personal injury limitations statute). 

11Brown, 188 F.3d at 590, citing Pena v. United States, 157 F.3d 984, 987

(5th Cir. 1998). 

12Moore, 30 F.3d at 620, citing Gartrell V. Gaylor, 981 F.2d 254, 256 (5th

Cir.1993).

13See Harris v. Hegmann, 198 F.3d. 153, 157 (5th Cir. 1999), citing Jackson

v. Johnson, 950 F.2d 263, 265 (5th Cir. 1992).

5

applicable limitations period is two years.10 Thus, the applicable

limitations period on a Bivens claim filed in Texas is two years.11

A district court may dismiss claims sua sponte under § 1915 where

it is clear from a review of the complaint that the alleged claims

are barred by the applicable statute of limitations.12 Federal

courts look to federal law to determine when a civil-rights action

accrues, and under federal law a cause of action accrues when the

plaintiff knows or has reason to know of the injury that is the

basis for his action.13 Plaintiff’s last allegation against Dr.

Benjamin occurred in February 2003. Since Durazo-Mendez did not

file this suit until December 2005, several months after the twoyear limitations period expired, his claims against Dr. Benjamin

must be dismissed.

Plaintiff also seeks recovery for alleged violation of

constitutional rights against CCA under Bivens. There is no implied

private right of action, pursuant to Bivens, against private

entities that engage in alleged constitutional violations while

 

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14See Correctional Services. Corp. v. Malesko, 534 U.S. 61, 67 (2001).

15See Id., at 72.

16See F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994).

1728 U.S.C.A. § 1346(b)(West Supp. 2006);28 U.S.C.A. § 2679(b)(1)(West

1994).

6

acting under color of federal law.14 Thus, Plaintiff’s claims

against CCA must be dismissed. 

Durazo-Mendez alleges that he was housed at the CCA facility

under authority of the United States marshal, and he also seeks

recovery for alleged violations of his constitutional rights under

Bivens against both the United States of America and the United

States Marshal Service.(Compl. ¶¶ 14, 45, 48.) But a prisoner may

not bring a Bivens claim against the United States,15 or against an

agency of the United States or a government officer in an official

capacity.16 Thus, Plaintiff’s claims under Bivens against the United

States Marshal Service and the United States of America must be

dismissed. 

In his complaint and more definite statement, Durazo-Mendez

references his filing of administrative claims for federal tort

claim relief, although he does not actually state causes of action

under the Federal Tort Claims Act (“FTCA”). The FTCA provides that

the jurisdiction authorized under 28 U.S.C. § 1346(b) for civil

actions for loss of property, personal injury or death caused by

the negligent or wrongful act or omission of any employee of the

government while acting within the scope of his employment, is an

exclusive remedy against the United States.17 To the extent Durazo-

 

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18United States v. Testan, 424 U.S. 392, 399 (1976).

19Lehman v. Nakshian, 453 U.S. 156, 161 (1981)(citations omitted).

2028 U.S.C.A. § 2675(a)(West 1994). 

2128 U.S.C.A. § 2401(b)(West 1994). 

22Scott v. United States Veteran’s Admin., 929 F.2d 146, 147 (5th Cir.

1991), citing Vernell v. United States Postal Service, 819 F.2d 108, 111 (5th

Cir. 1987). 

7

Mendez’s reference to the filing of administrative tort claims, his

naming of the United States of America, and his attachment of the

letters showing resolution of claims by the United States Marshals

Service (“USMS”) and by the Bureau of Prisons (“BOP”) could be said

to state claims under the FTCA, the Court will address them. 

The United States is immune from suit unless it consents to be

sued, and the terms of such consent, or waiver of its sovereign

immunity, “define [the] Court’s jurisdiction to entertain the

suit.”18 The Supreme Court has recognized that “limitations and

conditions upon which the Government consents to be sued must be

strictly observed and exceptions thereto are not to be implied.”19

One of the prerequisites to filing suit under the FTCA is that the

claimant must have first presented the claim to the appropriate

Federal agency, and obtained either a written denial or await six

months after filing to deem the agency decision as a final denial.20

Thereafter, any suit must be commenced within six months of the

date of mailing of the notice of final denial by the agency to

which it was presented.21 The six month limitation period begins the

day after the denial notice is sent and ends the day before the

same calendar date six months later.22

 

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23See Rochon v. Dawson, 828 F.2d 1107, 1109-1110 (5th Cir. 1987).

8

With regard to Durazo-Mendez’s claims that he was not provided

proper medical care for injuries allegedly sustained when he fell

from a bunk bed while housed at a CCA facility in Arizona in August

2002, he provided a copy of the June 10, 2004, letter from the USMS

denying such claim. Likewise, Durazo-Mendez’s separate claims that

he not provided medical care at that same facility on August 18,

2002, was denied in a separate June 10, 2004, letter from the USMS.

(Compl., attachments.) In each letter, Durazo-Mendez was informed

of the requirement that he file suit within six months. In

response to this Court’s inquiry, Durazo-Mendez acknowledged that

he had not filed any other suit other than this action. (MDS at ¶

4.) This suit was not filed until December 8, 2005. Thus, all of

Durazo-Mendez’s claims under the FTCA arising from the alleged lack

of medical care while he was housed at a CCA facility in Arizona

must be dismissed. 

 With regard to any remaining claims against the United States

of America under the FTCA, and the remaining claims against

individual defendants Paul Celestin, John Mills, D.O., and Hernan

Reyes, the Court concludes that, pursuant to 28 U.S.C. § 1915(d)

and Federal Rule of Civil Procedure 4(c)(2), Plaintiff is entitled

to have the summons, complaint, and more definite statement served

upon them by a United States marshal or deputy United States

marshal.23 In order to serve the complaint and more definite

statement, Plaintiff must fill out and return to the clerk of Court

 

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24The court notes that Federal Rule of Civil Procedure 4(i)(1)(A) and (B)

requires that service upon the United states of America must be through service

upon the United States Attorney for the Northern District of Texas, addressed to

“Civil Process Clerk,” and the Attorney General of the United States of America.

25Although the officers of the Court will issue and serve process, they are

not authorized to research the proper identity of parties and/or the service

address of a party. 

9

one Form 285 and two summons forms for each person to be served.24

The Court will direct the clerk of Court to provide the Forms 285

and the summons forms to Plaintiff. Upon their return, the clerk

will then forward the completed summons forms and the completed

Forms 285 to the marshal for service.

The following claims are DISMISSED WITH PREJUDICE to the

refiling of same pursuant to 28 U.S.C. § 1915A(b)(1) or,

alternatively, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii):

Plaintiff's Bivens claims against the United States of America; all

claims against the United States of America arising from

Plaintiff’s period of detention in a Corrections Corporation of

America facility in Arizona; and all claims against Dr. Benjamin,

John Does number two through five, Jane Does number one through

five, Corrections Corporation of America, and the United States

Marshals Service. 

The clerk of Court shall mail to Plaintiff ten blank summonses

and five Forms 285. Plaintiff is advised that it is his

responsibility to complete the summonses and Forms 285 with correct

information as to the appropriate names and the appropriate

addresses of the remaining defendants for service.25

Plaintiff shall, if he wishes to proceed with this action as

 

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26See FED. R. CIV. P. 41(b). 

10

to his remaining claims, complete the summonses and Forms 285 and

return them to the clerk within 30 days of the date of this order.

Failure of Plaintiff to complete the forms and to timely return

same to the clerk could result in the dismissal of the remaining

claims in this action without further notice for lack of

prosecution.26

Upon receipt of the completed forms, the clerk of Court is

ORDERED to issue summonses for the remaining Defendants with

attached thereto a copy of the complaint, the June 9, 2006, more

definite statement, and this order, and deliver them to the United

States marshal for service. 

Upon receipt of the appropriate forms completed by Plaintiff,

the summonses and copies of the complaint and more definite

statement shall be served upon the remaining defendants by the

United States marshal or Deputy United States marshal. 

SIGNED November 28, 2006.

 

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