2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-20-2012

Jose Perez-Barron v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-3733

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2012

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2012 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Jose Perez-Barron v. USA" (2012). 2012 Decisions. Paper 1123.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/1123
NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3733

___________

JOSE PEREZ-BARRON,

Appellant

v.

 UNITED STATES; FBOP; REGIONAL DIRECTOR 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-00173)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 4, 2012

Before: FUENTES, GREENAWAY, JR. AND GREENBERG, Circuit Judges

(Opinion filed: April 20, 2012)

_________

OPINION

_________

PER CURIAM

Jose 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 federal 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 Federal 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 violations of the Eighth Amendment under Bivens1and 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. Bureau of Narcotics, 403 

U.S. 388 (1971).

2 Although Perez-Barron’s complaint states that his claim of the denial of proper 

medical care is a violation of his Fourteenth 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 construed 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 in 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. He was prescribed naproxyn and Motrin, which he stated provided relief 

for only short periods of time. 

In 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 surgery, 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 

became 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 appropriate 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 Counsel 
4

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 provided;

failed to comply with advice given by his general doctor, who recommended that PerezBarron might need reconstructive surgery; and failed to examine his skull. He alleged 

that as a result of defendants’ deliberate indifference, he has suffered and continues 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 damage 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 PerezBarron filed a timely appeal. In his reply brief, Perez-Barron 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’ submission 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. Barefoot Architect, 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 corporation that owns and operates MVCC, and its employees, 

Agra, Dawson, and Zenk. Bivens actions, however, may not be brought against private 

corporations. See 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 

contract 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 private operated federal prison, where the

conduct allegedly amounts to a violation of the Eighth Amendment, and where that

conduct is of a kind that typically falls within the scope of traditional state tort law (such 

as the conduct involving improper medical care at issue here).” Minneci v. Pollard, ___ 

U.S. ___, 132 S. Ct. 617, 626 (2012). Accordingly, the District Court properly granted 

the Cornell defendants’ motion to dismiss, as Perez-Barron’s complaint failed to allege 

facts that stated a plausible claim to relief against the Cornell defendants. 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 the 

United States, FBOP, and FBOP employees. He alleged that the federal defendants are 

liable because they are responsible 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 claims 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 granted 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 FTCA 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, and 
7

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 not contest this finding. Perez-Barron was therefore barred from 

bringing 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 judgment. PerezBarron’s request for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 

155 (3d Cir. 1993).