United States District Court, N.D. West Virginia
ORDER GRANTING DEFENDANT ANN HUNT'S MOTION TO
PRESTON BAILEY UNITED STATES DISTRICT JUDGE
pending before this Court is Defendant Ann Hunt's Motion
to Dismiss [Doc. 60], which was filed on August 22, 2018.
Because the plaintiff is proceeding pro se, a
Roseboro Notice was issued [Doc. 65] informing the
plaintiff of his obligations. Following two motions for
extension of the Response deadline, plaintiffs response was
due December 24, 2018. To date, the plaintiff has failed to
respond, and the deadline to do so has expired. For the
reasons that follow, Defendant's Motion to Dismiss
[Doc. 60] is GRANTED.
action was originally filed in this Court on January 12,
2018, as a Bivens action [Doc. 1].
Subsequently, the plaintiff was granted leave to file an
amended complaint [Doc. 34], which he filed on June 11, 2018.
Therein, plaintiff names the United States as a defendant and
indicates that he filed an administrative tort claim (SF-95).
(Id.). Therefore, this Court advised the plaintiff
of the drawbacks of pursuing claims under both the FTCA and
Bivens [Doc. 35]. Plaintiff then filed his
Notification that he was only proceeding with the
Bivens action against the named defendants [Doc.
Rule 12(b)(6) Standard
complaint must be dismissed if it does not allege
"'enough facts to state a claim to relief that is
plausible on its face.' Bell Atl.
Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)
(emphasis added)." Giarratano v. Johnson, 521
F.3d 298, 302 (4th Cir. 2008). When reviewing a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must assume all of the allegations
to be true, must resolve all doubts and inferences in favor
of the plaintiffs, and must view the allegations in a light
most favorable to the plaintiffs. Edwards v. City of
Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999).
rendering its decision, the Court should consider only the
allegations contained in the Complaint, the exhibits to the
Complaint, matters of public record, and other similar
materials that are subject to judicial notice.
Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312
(4th Cir. 1995). In Twombly, the Supreme Court,
noting that "a plaintiffs obligation to provide the
'grounds' of his 'entitlement to relief requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do,"
id. at 1964-65, upheld the dismissal of a complaint
where the plaintiffs did not "nudge[ ] their claims
across the line from conceivable to plausible."
Id. at 1974.
Bivens v. Six Unknown Named Agents of the Federal Bureau
of Narcotics, 403 U.S. 388 (1971), the Supreme Court
authorized suits against federal employees in their
individual capacities. Such claims, however, require two
essential elements be proven: (1) a violation of the
plaintiffs constitutional rights (2) by agents acting
undercolor of federal law. Goldstein v. Moatz, 364
F.3d 205, 210 n.8 (4th Cir. 2004). Because Bivens
only applies to agents acting under color of federal law, the
Fourth Circuit has expressly declined to extend a
Bivens action to employees of a wholly private
corporation in which the federal Government has no stake
other than a contractual relationship. Holly v.
Scott, 434 F.3d 287, 291 (4th Cir. 2006).
not disputed that defendant Hunt is a contract employee
rather than a Government employee [Doc. 34 at p. 16].
Plaintiff also does not allege that Hunt was somehow acting
as an agent under color of federal law. Finally, there are no
allegations that the federal Government has any stake in
defendant Hunt's employer. Accordingly, there can be no
liability under Bivens for defendant Hunt.
Holly, 434 at 294 (declining to extend
Bivens liability to individual employees of a
private corporation that operated a correctional facility);
see also O'Neil v. Anderson, 372 Fed.Appx. 400,
404 (4th Cir. 2010)(affirming dismissal of
Bivens action against a private
physician who was contracted to provide healthcare services
to a federal correctional institution).
reasons stated above, Defendant Ann Hunt's Motion to
Dismiss [Doc. 60] is
GRANTED. Accordingly, defendant Ann Hunt is
DISMISSED as a party to this action.
Clerk is directed to transmit copies of this Order to all
counsel of record herein and to mail a certified copy, ...