October 3, 2013
Felix Garcia-Godoy, Plaintiff,
CCI Florence Warden John Doe, et al., Defendants.
DAVID G. CAMPBELL, District Judge.
Plaintiff Felix Garcia-Godoy, who was then-confined in the Giles W. Dalby Correctional Institution in Post, Texas, filed a pro se civil rights Complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and an Application to Proceed In Forma Pauperis. On April 8, 2013, Plaintiff filed a Notice of Change of Address indicating he would be transferred from Dalby Correctional Institution and deported. At that time, it appeared that Plaintiff had been released. For that reason, the Court denied his in forma pauperis application and ordered him to pay the $350.00 filing fee or show cause why he could not. (Doc. 6.)
Plaintiff filed two in forma pauperis applications to show cause why he could not pay the $350.00 filing fee. Further, he submitted a letter with one of the applications in which he explained that he was then held in the Metropolitan Detention Center in Los Angeles for a probation violation and that he would be held there until December 2013. He further indicated that he filed the notice of change of address so that filings from the Court would be forwarded to his daughter, who would in turn notify Plaintiff. The Court will discharge the show cause Order and grant Plaintiff's application to proceed in forma pauperis. Plaintiff is warned that he is responsible for ensuring that he promptly and timely meets deadlines in this case and he must promptly notify the Court when and if he is released from incarceration.
I. Application to Proceed In Forma Pauperis and Filing Fee
Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. 28 U.S.C. § 1915(b)(1). The statutory fee will be collected monthly in payments of 20% of the previous month's income each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.
II. Statutory Screening of Prisoner Complaints
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).
A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.
But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).
If the Court determines that a pleading could be cured by the allegation of other facts, a pro se litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) ( en banc ). The Court should not, however, advise the litigant how to cure the defects. This type of advice "would undermine district judges' role as impartial decisionmakers." Pliler v. Ford, 542 U.S. 225, 231 (2004); see also Lopez, 203 F.3d at 1131 n.13 (declining to decide whether the court was required to inform a litigant of deficiencies). The Court will dismiss Plaintiff's Complaint for failure to state a claim, but because the Complaint may possibly be saved by amendment, the Court will dismiss the Complaint with leave to amend.
Plaintiff alleges one count for threat to safety or denial of medical care and negligence. Plaintiff sues John Doe 1, warden of "CCI-Florence" in Florence, Arizona, and CCI-Florence. Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.
Plaintiff alleges the following in his Complaint: on November 2, 2012, Plaintiff slipped and fell in water on the floor and injured his back. Sergeant Francisca sent Plaintiff immediately to the medical department. A doctor recommended Anaprophen 220 grams. Plaintiff apparently also had x-rays taken of his back. Plaintiff was not examined by an orthopedist. He claims Defendants failed to provide appropriate medical treatment. Plaintiff asserts the warden of the facility and the facility are liable due to negligence. After several days, Plaintiff was transferred to another facility.
IV. Failure to State a Claim
To state a Bivens claim, a plaintiff must allege that persons acting under color of federal law violated a federal constitutional right. Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Thus, an action under Bivens is analogous to one brought pursuant to 42 U.S.C. § 1983, except for the replacement of a state actor under § 1983 by a federal actor under Bivens. Id.
To state a valid constitutional claim, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). In addition, not every claim by a prisoner relating to inadequate medical treatment states a violation of the Eighth or Fourteenth Amendment. To state a medical claim, a plaintiff must show that the defendants acted with "deliberate indifference to serious medical needs." Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A plaintiff must show (1) a "serious medical need" by demonstrating that failure to treat the condition could result in further significant injury or the unnecessary and wanton infliction of pain and (2) the defendant's response was deliberately indifferent. Jett, 439 F.3d at 1096 (quotations omitted).
"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). To act with deliberate indifference, a prison official must both know of and disregard an excessive risk to inmate health; "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference in the medical context may be shown by a purposeful act or failure to respond to a prisoner's pain or possible medical need and harm caused by the indifference. Jett, 439 F.3d at 1096. Deliberate indifference may also be shown when a prison official intentionally denies, delays, or interferes with medical treatment or by the way prison doctors respond to the prisoner's medical needs. Estelle, 429 U.S. at 104-05; Jett, 439 F.3d at 1096. Negligence is not sufficient to state a claim. Daniels v. Williams, 474 U.S. 327, 330-31 (1986).
Plaintiff alleges that he slipped and fell in water on the floor at CCI-Florence. Plaintiff appears to be referring to a Corrections Corporation of America (CCA) facility in Florence, Arizona, where he was held under a contract with the federal government.
Plaintiff fails to state a claim for several reasons. First, his allegations concerning the fall support and subsequent treatment support nothing more than negligence. As noted above, negligence is not a basis for relief under Bivens. Moreover, a Bivens claim may only be maintained against officials acting under color of federal law in their individual capacities; neither the United States, nor an agency or penitentiary, is a proper defendant for Bivens claims. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (federal agencies are not proper defendants in a Bivens action); Myers v. U.S. Marshals Serv., No. CV10-2662, 2011 WL 671998, at *2 (S.D. Cal. Feb. 15, 2011). In addition, the United States Supreme Court has declined to expand Bivens to include a private right of action against a private entity under contract with the federal government. Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001). For that reason, Plaintiff may not seek relief against CCA or against a CCA facility in an action under Bivens.
Further, Plaintiff appears to be seeking relief for alleged violations of his constitutional rights against employees of a private prison operating under contract with the federal government. In Minneci v. Pollard, 132 S.Ct. 617, 623 (2012), the Supreme Court declined to expand Bivens to include a private right of action for damages against employees of a private entity under contract with the federal government where state tort law provides an alternative, existing process capable of protecting the constitutional interests at stake. Arizona tort law provides such an alternative for denial of adequate medical care. Thus, to the extent that Plaintiff is attempting to allege a constitutional violation against any CCA employee, including the warden, he cannot maintain a Bivens claim.
Although it appears that Plaintiff cannot amend his Complaint to name a proper defendant under Bivens for any constitutional violation, in an abundance of caution, the Court will dismiss the Complaint with leave to amend. In any amended complaint, Plaintiff must name a defendant, who can be sued under Bivens, and allege facts to support that such defendant violated his constitutional rights.
V. Leave to Amend
For the foregoing reasons, Plaintiff's Complaint will be dismissed for failure to state a claim upon which relief may be granted. Within 30 days, Plaintiff may submit a first amended complaint to cure the deficiencies outlined above. The Clerk of Court will mail Plaintiff a court-approved form to use for filing a first amended complaint. If Plaintiff fails to use the court-approved form, the Court may strike the amended complaint and dismiss this action without further notice to Plaintiff.
Plaintiff must clearly designate on the face of the document that it is the "First Amended Complaint." The first amended complaint must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Complaint by reference. Plaintiff may include only one claim per count.
A first amended complaint supersedes the original complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original complaint as nonexistent. Ferdik, 963 F.2d at 1262. Any cause of action that was raised in the original complaint is waived if it is not raised in a first amended complaint. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release. Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result in dismissal of this action.
B. Address Changes
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
D. Possible "Strike"
Because the Complaint has been dismissed for failure to state a claim, if Plaintiff fails to file an amended complaint correcting the deficiencies identified in this Order, the dismissal may count as a "strike" under the "3-strikes" provision of 28 U.S.C. § 1915(g). Under the 3-strikes provision, a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis under 28 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
E. Possible Dismissal
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The Show Cause Order is discharged. (Doc. 7.)
(2) Plaintiff' Application to Proceed In Forma Pauperis is granted. (Doc. 8.)
(3) As required by the accompanying Order to the appropriate government agency, Plaintiff must pay the $350.00 filing fee and is not assessed an initial partial filing fee.
(4) The Complaint (Doc. 1) is dismissed for failure to state a claim. Plaintiff has 30 days from the date this Order is filed to file a first amended complaint in compliance with this Order.
(5) If Plaintiff fails to file an amended complaint within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action with prejudice that states that the dismissal may count as a "strike" under 28 U.S.C. § 1915(g).
(6) The Clerk of Court must mail Plaintiff a court-approved form for filing a civil rights complaint by a prisoner.