2012 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2012/1123NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 1 0

- 3733

___________ JOSE PEREZ

- BARRON ,

Appellant

v. UNITED STATES; FBOP; REGIONAL DIRECTO R OF FBOP; MR. P. JUSTEN , SSIM/BOP; CORNELL COMPANIES, INC.; MVCC WARDEN,MICHAEL ZENK; MARIA DAWSON;DR.CONRADA AGRA

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 3

- 09

- cv - 0 017 3 ) District Judge: Honorable Kim R. Gibson

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

A pri l 4, 2012 Before: FUENTES, GREENAWAY, JR. AND GREENBERG , Circuit Judges

(Opinion filed : April 20 , 2012 )

_________ OPINION

_________ PER CURIAM
Jos e Perez

- Barron appeals pro se from a District Court judgment in favor of the defendants in his civil rights action. For the reasons that follow, we will affirm the District Court’s judgment.2

I. Background
Jose Perez

- Barron is a fede ral prisoner confined at the Moshannon Valley Correctional Center (“MVCC”), a private correctional facility in Pennsylvania , owned and operated by Cornell Companies, Inc. In April 2009, Perez

- Barron filed a complaint against employees of MVCC, the United States of America, the Fed eral Bureau of Prisons (“FBOP”), employees of FBOP , and Cornell Companies, Inc. In his complaint,
Perez

- Barron asserted that defendants denied him proper medical care , which the District Court interpreted as alleging violation s o f the Eighth Amendment under Bivens 1 and the Federal Tort Claims Act (“FTCA”) , 28 U.S.C. § 2671 et seq. 2 In November 2006, prior to his arrest and conviction, Perez

- Barron suffered an accident, in which he lost one

- quarter of his skull. He claimed that his general doctor recommended that he might need reconstructive surgery. Perez

- Barron stated that the

1 Bivens v. Six Unknown Named Agents of the Fed. B ureau of Narcotics , 403 U.S. 388 (1971).

2 Although Perez

- Barron’s complaint state s that his claim of the denial of proper medical care is a violation of his Fourtee nth Amendment due process right, the District Court “look[ed] behind the label” given by the pro se inmate and determined that the allegations in the complaint should be con strued as claims asserting a violation of the Eighth Amendment and FTCA

. See United States v. Miller , 197 F.3d 644, 648 (3d Cir. 1999).3

Government was notified of his medical condition at sentencing, and that he informed MVCC staff about his medical condition upon his arrival at MVCC i n October 2008

. While at MVCC, Perez

- Barron stated that he complained of headaches, constant severe pain, blurred vision, difficulty speaking, difficulty in moving his arm and legs, and abnormal sleep. H e was prescribed naproxyn and Motrin, which he sta ted provided relief for only short periods of time.
I n November 2008, Perez

- Barron filed an inmate informal resolution form, addressed to Michael Zenk, Warden of MVCC, and P. Justen, requesting better medical attention because his medical condition had deteriorated. The Medical Administrator responded, informing Perez

- Barron that his medical condition had been properly treated.
Perez

- Barron then filed a formal administrative remedy form, explaining his symptoms, stating that he needs reconstructive su rgery, and requesting proper medical care. Zenk responded, informing Perez

- Barron that he had been examined by medical staff, his headaches are the result of a chronic skull injury from a traumatic event, he should purchase Motrin from the commissary for his pain, and he would be issued Motrin if he beca me indigent. Perez

- Barron filed an appeal, which was denied because administrative review of his medical concerns and pertinent clinical data indicated that he had received and continued to receive appropr iate medical care.
Perez

- Barron then filed suit in the District Court against Warden Zenk; Dr. Agra, a medical doctor at MVCC; Ms. Dawson, Administrative Medical Director; Justen; the United States of America; FBOP ; FBOP Regional Director; FBOP General Co unsel4

Director; and Cornell Companies, Inc . He alleged that defendants denied him proper medical care, claiming that they failed to implement adequate medical treatment, such as transferring him to a FBOP medical facility where adequate care would be prov ided ; failed to comply with advice given by his general doctor , who recommended that Perez

Barron mi ght need reconstructive surgery; and failed to examine his skull. He alleged that a s a result of defendants’ deliberate indifference, he has suffered and c ontinues to suffer from prolonged and extreme pain, such as frequent headaches, nightmares, sleep disorder, pupils not reacting to light, blurred vision, and weak joints. He also claimed that his condition has been further complicated with likely nerve da mage and inability to move joints. Cornell Companies, Inc. , Agra, Dawson, and Zenk (“Cornell defendants”) filed a motion to dismiss , and Justen , United States of America, FBOP, FBOP Regional Director, and FBOP General Counsel Director (“ federal defendants ”) filed a motion to dismiss or, in the alternative, for summary judgment. The District Court adopted the Magistrate Judge’s report and recommendation to grant the defendants’ motions. 3 Perez

Barron filed a timely appeal. In his reply brief, Perez

- Barro n asks the Court to appoint counsel to represent him.

3 The District Court converted the federal defendants’ motion to dismiss or, in the alternative, for summary judgment , to a motion for summary judgment. The Magistrate Judge’s report and recommendation placed Perez

- Barron on notice that the Court was considering the motion as a motion for summary judgment and Perez

- Barron did not object to the federal defendants’ submiss ion of an affidavit to support their motion. See Hilfirty v. Shipman , 91 F.3d 573, 578

- 79 (3d Cir. 1996).5

II. Discussion We have jurisdiction pursuant to 28 U.S.C. § 1291

. Our review of the District Court’s dismissal for failure to state a claim, as well as its grant of summary judgment, is plenary. Bar efoot Archite ct, Inc. v. Bunge , 632 F.3d 822, 826 (3d Cir. 2011).
A. Cornell Defendants
Perez

- Barron raised Eighth Amendment claims under Bivens against Cornell Companies Inc. , a private corporatio n that owns and operates MVCC , and its employees, Agra, Dawson, and Zenk. Bivens actions , however, may not be brought against private corporations

. S ee Corr. Servs. Corp. v. Malesko , 534 U. S. 61, 63 (2001) (holding no action lies under Bivens against a private corporation operating a halfway house under a

con tract with the Bureau of Prisons) . Additionally , the Supreme Court recently refused
to imply the existence of a Bivens action where “a federal prisoner seeks damages from privately employed personnel working at a pri vate operated federal prison, w h e re the conduct allegedly amounts t o a violation of the Eighth Amendment, and w here that conduct is of a kind t h a t typically falls within t h e scope of traditional state tort law (such as the conduct involving improper medical care at issue here). ” Minneci v. Pol lard , ___ U.S. ___, 132 S. Ct. 617, 626 (2012). Accordingly , the District Court properly granted the Cornell defendants’ motion to dis miss, as Perez

- Barron ’s complaint failed to allege facts that state d a plausible claim to relief against the Cornell defe ndants. See Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009).6

B. Federal Defendants
Perez

- Barron also raised Eighth Amendment claims under Bivens against t he United States, FBOP, and FBO P employees . He alleged that the federal defendants a re liable because they are responsib le for all facets of the prison, including the delivery of medical care to inmates. The United States, FBOP, and the individual FBOP employees in their official capacity , however, are barred from suit by the doctrine of sovereign immunity. See FDIC v. Meyer , 510 U.S. 471, 486 (1994); Chinchello v. Fenton , 805 F.2d 126 , 130 n.4 (3d Cir. 1986)

. Additionally, Perez

- Barron ’s Bivens claim s against the
FBOP employees in their individual capacities fail. Perez

- Barron did not allege or present evidence that the FBOP employees had any personal involvement in the denial of his medical care, and a Bivens claim cannot be premised upon a theory of respondeat superior. See Iqbal , 129 S. Ct. at 1948

- 49; Rode v. Dellarciprete , 845 F. 2d 1195, 1207 (3d Cir. 1988)

. Thus, the District Court properly grant ed the federal defendants’ motion for summary judgment as to the Bivens claims

. The District Court also properly granted the federal defendants’ motion for summary judgment as to the FT CA claim

. Under the FTCA, federal prisoners may recover damages from the United States for injury sustained during confinement as a result of the negligent or wrongful act or omission by any Government employee, acting within the scope of his employment, under circumstances where a private person would be liable under the law of the place where the act or omission occurred. 28 U.S.C. §§ 1346(b), 2674. The FTCA delineates that a plaintiff may sue only the United States, and7

cannot institute suit until he presents the claim to a federal agency and receives a final decision on the claim. See 28 U.S.C. § § 1346(b), 2675(a); McNeil v. United States , 508 U.S. 106, 112 (1993). In their motion to dismiss or, in the alternative, for summary judgment , the federal defendants attached an affidavit of Vanessa Herbin

- Smith, a FBOP supervisory paralegal, who stated that based on her review of the FBOP tort claim database, she determined that Perez

- Barron had not filed any administrative tort claims.
Perez

- Barron did no t contest this finding. Perez

- Barron was therefore barred from bringin g a FTCA claim in federal court because he did not exhaust his administrative remedies

. See McNeil , 508 U.S. at 113. For the foregoing reasons, we will affirm the District Court’s judg ment. Perez

Barron’s request for appointment of counsel is denied. See Tabron v. Grace , 6 F.3d 147, 155 (3d Cir. 1993).