UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JUNIOR CLAYTON MENTEER,

Plaintiff-Appellant,

v.

APPLEBEE, Lieutenant of the Guard Force; DR. BOWLIN; FREDERICK LAURENCE, Warden; HELEN (LNU), Lieutenant; (FNU) (LNU), Laundry Lady; UNITED STATES MARSHAL, for District of Kansas; UNITED STATES OF AMERICA; UNITED STATES ATTORNEY

GENERAL; CORRECTIONS CORPORATION OF AMERICA,

Defendants-Appellees.

No. 05-3052

(D.C. No. 04-CV-3054-MLB)

(D. Kan.)

ORDER AND JUDGMENT*

Before LUCERO, EBEL, and MURPHY, Circuit Judges.

Plaintiff Junior Clayton Menteer, appearing pro se, appeals from the district court's memorandum and order granting defendants' motions to dismiss. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further proceedings.

Mr. Menteer is a federal prisoner who, at the time relevant to the facts underlying this case, was incarcerated in the Leavenworth Detention Center, a private prison run by defendant Corrections Corporation of America (CCA) pursuant to a contract with the United States Marshals Service. He alleged that, after he slipped on a wet floor and sprained his ankle, he was given only an ace bandage. He also alleged that, in a later incident, CCA employees denied his requests for new shoes and, as a result, he tripped on a loose flap hanging from his worn pair, fell down the stairs, and fractured his ankle and finger. He further alleged that CCA medical personnel provided inadequate treatment for this injury, including delay in treating the injury appropriately and denying his requests for pain medication both before and after surgery on his ankle.

In his complaint, Mr. Menteer asserted a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of his Fifth Amendment right to due process and his Eighth Amendment right to be free of cruel and unusual punishment. He also brought a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), and a breach of contract claim pursuant to the Tucker Act, 28 U.S.C. § 1346(a)(2), that was based on a third-party beneficiary theory. Each claim was directed at all defendants, and he sought $3 million in damages. The United States, the United States Marshal for the District of Kansas, and the United States Attorney General (together, Federal Defendants) filed a motion to dismiss or, in the alternative, for summary judgment. The remaining defendants (CCA Defendants) filed a motion to dismiss. Both motions to dismiss relied on Fed. R. Civ. P. 12(b)(1) and (6). The district court granted both motions to dismiss and dismissed the complaint. This appeal followed.

We review de novo the district court's dismissal of a complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1206 (10th Cir. 1999); Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Because Mr. Menteer appears pro se, we review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991).1

The district court dismissed the breach of contract claim against the Federal Defendants for lack of subject matter jurisdiction pursuant to the Tucker Act, which provides for exclusive jurisdiction in the Court of Federal Claims for breach of contract claims seeking in excess of $10,000, see 28 U.S.C. §§ 1346(a)(2), 1491. The court dismissed the breach of contract claim as to the CCA Defendants because Mr. Menteer had alleged no jurisdictional basis other than the Tucker Act, which only authorizes jurisdiction over breach of contract claims brought against the United States, see id. § 1346(a)(2). We agree with these rulings and affirm them for substantially the same reasons as set forth in the district court's memorandum and order.

The district court dismissed the FTCA claim as to all defendants except the United States because "[t]he United States is the only proper defendant in an FTCA action[,]" Oxendine v. Kaplan, 241 F.3d 1272, 1275 n.4 (10th Cir. 2001). The district court then dismissed the FTCA claim as to the United States under the independent contractor exception set forth in Logue v. United States, 412 U.S. 521 (1973). In Logue, the Supreme Court held that an FTCA claim could not be maintained against the United States for the acts of a prison contractor where the contract "clearly contemplated that the day-to-day operations of the contractor's facilities were to be in the hands of the contractor, with the Government's role limited to the payment of sufficiently high rates to induce the contractor to do a good job," id. at 529, and where the government did not supervise the contractor's daily operations, id. at 530. Perceiving no error, we affirm the district court's rulings on the FTCA claim for substantially the same reasons as set forth in the court's memorandum and order.

In its analysis of the Bivens claim, the district court granted the Federal Defendants' motion to dismiss as to the United States for lack of subject matter jurisdiction based on sovereign immunity, see Farmer v. Perrill, 275 F.3d 958, 963 (10th Cir. 2001). For the same reason, the district court dismissed the Bivens claim as to the U.S. Attorney General and the U.S. Marshal in their official capacities, see id. The district court also dismissed the Bivens claim against the U.S. Attorney General and the U.S. Marshal in their individual capacities for failure to allege personal participation or actual knowledge and acquiescence, see Woodward v. City of Worland, 977 F.2d 1392, 1400 (10th Cir. 1992). For substantially the same reasons as set forth in the district court's memorandum and order, we affirm these rulings.

As to the corporate entity, CCA, the district court dismissed the Bivens claim pursuant to Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001). In Malesko, the Supreme Court declined to infer a constitutional tort remedy against a private corporation. Id. at 70-71. We therefore affirm this ruling for substantially the same reasons as set forth in the district court's memorandum and order.

The court next extended the reasoning of Malesko to the individual CCA defendants:

When an employee of a private corporation has allegedly violated an individual's constitutional right and an alternative remedy is available, a Bivens action cannot be maintained. See Peoples v. CCA Detention Center[s], [No. 03-3129-KHV,] 2004 WL 74317 (D. Kan. Jan. 15, 2004). In this case, plaintiff could pursue a negligence claim in state court and, in so doing, have a lesser standard to meet than the heightened "deliberate indifference" standard of the Eighth Amendment. Since plaintiff has alternative state remedies available, the Bivens claim against the [individual CCA] defendants is dismissed.

R., Doc. 30 at 7.

The district court's reliance on the Peoples case cited in the foregoing passage (Peoples I) indicates that the basis for the dismissal of the Bivens claim as to the individual CCA defendants was lack of subject matter jurisdiction. See Peoples I, 2004 WL 74317, at *7 (dismissing such a claim for lack of subject matter jurisdiction). This disposition, however, was improper. After the district court's decision, a panel of this court reversed Peoples I, clarifying that the appropriate basis for dismissing a Bivens claim is failure to state a claim upon which relief can be granted, not lack of subject matter jurisdiction. See Peoples v. CCA Det. Ctrs., 422 F.3d 1090, 1096 (10th Cir. 2005) (Peoples III), vacated in part on other grounds by Peoples v. CCA Det. Ctrs., 449 F.3d 1097, 1099 (10th Cir. 2006) (en banc) (per curiam) (Peoples IV). The panel noted that "jurisdiction is not defeated if the complaint could have stated a cause of action for violation of state law." Peoples III, 422 F.3d at 1096 n.3 (citing Bell v. Hood, 327 U.S. 678, 680 (1946)). The en banc court in Peoples IV affirmed this portion of Peoples III, and reversed and remanded Peoples I for further proceedings. See Peoples IV, 449 F.3d at 1099. Likewise here, we reverse the district court's dismissal of the Bivens claim against the individual CCA employees for lack of subject matter jurisdiction and remand the matter for further proceedings on this single claim.

The judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this order and judgment. Mr. Menteer's application to proceed in forma pauperis is GRANTED, and we remind him of his obligation to make partial payments until the entire fee has been paid, see 28 U.S.C. § 1915(b).

Entered for the Court

Michael R. Murphy

Circuit Judge