United States District Court, S.D. Mississippi, Northern Division
ORDER OF PARTIAL DISMISSAL
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE.
pro se prisoner case is before the Court, sua sponte, for
consideration of dismissal. Plaintiff Byron Joseph Knox is
incarcerated with the Federal Bureau of Prisons, and he
brings this action challenging the conditions of his prior
confinement at the Federal Correctional Institution in Yazoo
City, Mississippi (“FCI-Yazoo City”), under 42
U.S.C. § 1983 and Bivens v. Six Unknown Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
The Court has considered and liberally construed the
pleadings. As set forth below, the § 1983 claims, as
well as the Bivens claims against Defendants Zachary
Myrick and Nurse Twiner, are dismissed.
currently incarcerated at the Federal Correctional
Institution in Ashland, Kentucky. At the time Knox filed this
suit, he was housed at FCI-Yazoo City. Defendants include
correctional staff and medical personnel employed at that
prison as well as a private medical provider. Defendants
Doctors Anthony Joseph Chambers and R. Newland; Warden C.
Rivers; Nurses S. McCoy, Johnson, Huff, E. Micou, and Twiner;
and Administrator E. Porter are all employed at the federal
prison. Defendant Zachary Myrick is a private healthcare
provider employed by Buckner Prosthetics and Orthotics in
Jackson, Mississippi. Plaintiff generally alleges a denial of
medical care and verbal harassment.
first alleges that he is a diabetic and was prescribed
“custom bilateral orthopaedic shoes with custom molded
inlays to help prevent the pronation of the foot and ankle
and . . . treat his bilateral bunions” on both feet.
Compl. Ex. [1-1] at 1. For this foot condition, Plaintiff was
referred to Myrick. Myrick allegedly provided orthopedic
shoes, but Knox contends that they were two and a half sizes
too big. Knox claims that he was denied the correct size and
was also denied heel cups and replacement insoles by Nurse
McCoy, Dr. Chambers, Myrick, Nurse Micou, and Nurse Johnson.
Knox alleges that the insoles were supposed to be replaced
every two months. Knox also maintains that Dr. Newland
refused to provide him with the correct size shoes and
replacement insoles. Nurse Huff purportedly did not issue
Knox a new “soft shoe pass.” Pl.'s 3d Am.
Compl. Ex. [7-1] at 1. Administrator Porter is alleged to
have denied Knox the insoles and heel cups. Knox further
claims that he has athlete's foot for which he was denied
fungal cream by Nurse McCoy and Dr. Chambers.
says he developed sores and cuts on his feet because
Defendants denied him the correct shoes and fungal cream. Dr.
Chambers and Nurses Micou and Johnson allegedly denied Knox
pain medicine and ointment to treat these additional issues.
Knox also says Warden Rivers knew about his painful feet, but
he was still denied treatment for approximately one year.
trouble with his feet, on February 4, 2019, Knox claims he
had a rash all over his body. Nurse Micou allegedly refused
to treat him. Finally, Knox claims that Nurse Twiner
“harass[ed] me so bad[ly] and pick[ed] with me every
day she work[ed].” Pl.'s 3d Resp.  at 3.
filed this action on December 27, 2018, specifically invoking
“[42 U.S.C. §] 1983 Bivens Civil Right[s].”
Pl.'s Ltr. . Knox seeks injunctive relief and
Prison Litigation Reform Act of 1996 applies to prisoners
proceeding in forma pauperis in this Court. One of
the provisions reads, “the court shall dismiss the case
at any time if the court determines that . . . the action . .
. (i) is frivolous or malicious; (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The statute
“accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the
complaint's factual allegations and dismiss those claims
whose factual contentions are clearly baseless.”
Denton v. Hernandez, 504 U.S. 25, 32 (1992).
“[I]n an action proceeding under [28 U.S.C. §
1915, a federal court] may consider, sua sponte, affirmative
defenses that are apparent from the record even where they
have not been addressed or raised.” Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The Court has permitted Knox to proceed in
forma pauperis in this action. The Complaint is subject
to sua sponte dismissal under § 1915.
Claims Against Zachary Myrick
Knox sues Myrick, a private medical provider, under both
§ 1983 and Bivens. To establish a claim under
§ 1983, the plaintiff must show the defendant acted
under color of state law. 42 U.S.C. § 1983.
Here, Myrick acted under a contract with the federal
government, so § 1983 is inapplicable. Sandoval v.
Wackenhut Corr. Corp., No. 93-8582, 1994 WL 171703 at *2
n.3 (5th Cir. Apr. 28, 1994) (rejecting federal inmate's
§ 1983 claim against company acting pursuant to a
contract with the federal government). Knox cannot sue Myrick
under § 1983.
federal inmate may, however, assert a
conditions-of-confinement claim under Bivens, as
Knox does here. To state a Bivens claim, Knox must
allege that an individual acting under federal law deprived
him of a right secured by the United States Constitution.
Bivens, 403 U.S. at 395-97.
Minneci v. Pollard, the United States Supreme Court
addressed whether Bivens applies to claims asserted
by a federal prisoner seeking relief against individual
employees of a private prison. 565 U.S. 118 (2012). The
plaintiff in that case was a federal inmate, housed at a
private facility, who sought relief against its employees for
withholding adequate medical care. Id. at 121. The
Court declined to extend Bivens in this ...