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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

JASON WILLIE BREWER,

Plaintiff,

v. CASE NO. 5:10-cv-113-RS-GRJ

JOSE SANCHEZ, and

JOHN HENREY,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff, a federal prisoner formerly incarcerated at FCI Marianna, initiated this

case by filing a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), and has been granted leave to proceed as a

pauper. Docs. 1 and 2. Upon careful consideration of the Complaint, it is

recommended that this case be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim upon which relief can be granted. 

Plaintiff contends that while he was incarcerated at FCI Marianna during 2003-

2004 he worked in the prison’s UNICOR facility that recycled used computer parts. 

Plaintiff alleges that while he was working in the facility he was exposed to “dangerous

toxic dust levels (lead).” Plaintiff alleges that Defendant John Henrey was the warden

of FCI Marianna during the relevant time period, and Defendant Jose Sanchez was the

associate warden and UNICOR factory manager. Plaintiff alleges that each Defendant

“failed to formulate, and adopt and enforce safety protocols,” that would have prevented

Plaintiff’s exposure. More specifically, Plaintiff alleges that Defendants are “vicariously
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liable” for the failure to formulate, adopt, and enforce safety protocols and that

Defendants “failed or refused to act with reasonable care by violating [their] duty to

provide proper safety gear and equipment to protect [Plaintiff] from high levels of

dangerous lead dust.” Plaintiff alleges that as a proximate result of Defendants’

negligence, he has suffered physical injuries, mental anguish, and pain. Plaintiff does

not state when he learned of his alleged injuries. For relief, Plaintiff seeks

compensatory damages and punitive damages. Doc. 1. 

Discussion

Pursuant to 28 U.S.C. § 1915(e)(2), “notwithstanding any filing fee, or any

portion thereof, that may have been paid, the court shall dismiss the case at any time if

the court determines that . . . the action . . . fails to state a claim upon which relief may

be granted.” 

To state a claim for relief that will survive a motion to dismiss or screening by the

Court, a plaintiff must make factual allegations that are “enough to raise a right to relief

above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

The complaint “must contain something more . . . than . . . a statement of facts that

merely creates a suspicion [of] a legally cognizable right of action.” Id.; Ashcroft v.

Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951-53 (2009) (Twombly “expounded the

pleading standard for all civil actions,” and conclusory allegations that “amount to

nothing more than a formulaic recitation of the elements of a constitutional . . . claim”

are “not entitled to be assumed true,” and, to escape dismissal, complaint must allege

facts sufficient to move claims “across the line from conceivable to plausible.”).

A pro se litigant's allegations are entitled to the benefit of liberal construction.

Case No: 5:10-cv-113-RS-GRJ
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Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a court does not have “license .

. . to rewrite an otherwise deficient pleading [by a pro se litigant] in order to sustain an

action.” GJR Investments v. County of Escambia, Fla., 132 F.3d 1359, 1369 (11th

Cir.1998) (overruled on other grounds by Iqbal).

In Bivens, the Supreme Court held that injured plaintiffs can bring a cause of

action for damages against individual federal officers based on violations of

constitutional rights. Bivens involved alleged violations of the Fourth Amendment, but

the Supreme Court has also allowed Bivens actions for violations of other constitutional

rights. See Davis v. Passman, 442 U.S. 228 (1979) (equal protection component of the

Fifth Amendment’s Due Process Clause); Carlson v. Green, 446 U.S. 14 (1980) (Eighth

Amendment’s cruel and unusual punishments clause).

The instant complaint fails to allege that the named Defendants violated any of

Plaintiff’s constitutional rights. Plaintiff alleges only that Defendants were negligent

with regard to safety standards at the UNICOR facility. While a prisoner can sue for

personal injuries sustained as the result of a federal employee’s negligence under the

Federal Tort Claims Act, the only proper defendant in such an action is the United

States, not the individual federal employees. Moreover, “when a federal prisoner’s

injuries are work-related, the Supreme Court has held that the prisoner’s exclusive

remedy against the government is the Inmate Accident Compensation Act; he cannot

sue the government under the FTCA.” Smith v. United States, 561 F.3d 1090, 1099

(10 Cir. 2009) (citing United States v. Demko, 385 U.S. 149, 152-54)). th

The Inmate Accident Compensation Act does not preclude a Bivens Eighth

Amendment claim stemming from a prison workplace injury, but to state such a claim a

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Plaintiff must allege that each defendant acted with “deliberate indifference -- that he or

she both knew of and disregarded an excessive risk to inmate health or safety.” Id.

(citing Farmer v. Brennan, 51 U.S. 825, 837 (1994)). 

The Eleventh Circuit has explained that to state an Eighth Amendment claim, a

prisoner must allege facts to satisfy both an objective and subjective inquiry regarding a

prison official's conduct. Chandler v. Crosby, 379 F.3d 1278, 1289 (11th Cir.2004). 

Under the objective component, a prisoner must allege a prison condition that is so

extreme that it poses an unreasonable risk of serious damage to the prisoner's health

or safety. To satisfy the subjective component, the prisoner must allege that the prison

official, at a minimum, acted with a state of mind that constituted deliberate indifference.

“[D]eliberate indifference has three components: (1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct that is more than mere

negligence.” Farrow v. West, 320 F.3d 1235, 1245 (11th Cir.2003) (internal quotations

and citations omitted).

Plaintiff’s allegation that Defendants negligently failed to prevent his alleged

exposure to lead dust plainly fails to satisfy the deliberate-indifference standard. 

Moreover, Plaintiff has alleged no facts from which the Court could reasonably infer that

Defendants actions amounted to deliberate indifference. 

Accordingly, it is respectfully RECOMMENDED that the Complaint, Doc. 1, be

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DISMISSED pursuant to 28 U.S.C § 1915(e)(2)(B)(ii) for failure to state a claim upon

which relief may be granted..

IN CHAMBERS this 18 day of April 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14

days after being served with a copy thereof. Failure to file specific objections

limits the scope of review of proposed factual findings and recommendations.

Case No: 5:10-cv-113-RS-GRJ