Glenn Bosworth v. United States of America et al, No. 2:2014cv00498 - Document 7 (C.D. Cal. 2014)
Court Description: MEMORANDUM DECISION AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal. If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order with in which to file a Second Amended Complaint. Plaintiff is strongly encouraged to utilize the standard civil rights complaint form when filing any amended complaint, a copy of which is attached. Plaintiff is further advised that if he no longer wishes to pursue this action, he may voluntarily dismiss it by filing a Notice of Dismissal in accordance with Federal Rule of Civil Procedure 41(a)(1). A form Notice of Dismissal is attached for Plaintiff's convenience. (See document for further details). (Attachments: # 1 Civil Rights Complaint Form, # 2 Notice of Dismissal Form) (mr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GLENN BOSWORTH, Plaintiff, 12 MEMORANDUM DECISION AND ORDER v. 13 14 Case No. CV 14-0498 DMG (SS) DISMISSING FIRST AMENDED UNITED STATES OF AMERICA, et al., 15 COMPLAINT WITH LEAVE TO AMEND Defendants. 16 17 I. 18 INTRODUCTION 19 On 20 January 22, 2014, Plaintiff, a federal prisoner 21 proceeding pro se, filed a civil action under the Federal Tort 22 Claims Act ( FTCA ), 28 U.S.C. §§ 1346, 2671 et seq.; Bivens v. 23 Six Unknown Named Agents, 403 U.S. 388 (1971); and 42 U.S.C. 24 § 1983. 25 leave to amend due to various pleading defects.1 The Court subsequently dismissed the Complaint with On July 28, 26 27 28 1 Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 795 (9th Cir. 1991). 1 2014, Plaintiff filed a First Amended Complaint ( FAC ). 2 reasons stated below, the FAC is dismissed with leave to amend. For the 3 4 Congress mandates that district courts perform an initial 5 screening of complaints in civil actions where a prisoner seeks 6 redress 7 § 1915A(a). 8 portions thereof, before service of process if it concludes that 9 the complaint (1) is frivolous or malicious, (2) fails to state a 10 claim upon which relief can be granted, or (3) seeks monetary 11 relief from a defendant who is immune from such relief. 12 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 13 1126-27 & n.7 (9th Cir. 2000) (en banc). from a governmental entity or employee. 28 U.S.C. This Court may dismiss such a complaint, or any 28 14 15 II. 16 FACTUAL ALLEGATIONS AND CLAIMS 17 18 Plaintiff (2) names the as 21 Information Technician Valerie Ericksen, (5) counselor Baltazar 22 Magana,2 and (6) correctional officer E. Lewis; (7) 23 Lompoc 24 escort detail when he was hospitalized in April 2012, identified 25 as DOE Defendants 1-7 and ROE Defendant 1; and (8) employees of officers Richard assigned to ( LVMC ); of Lompoc correctional Center States 20 physician Medical United America; (3) Valley (1) the 19 employees Lompoc Defendants Gross, (4) Plaintiff s FCI- Health the FCImedical 26 27 28 2 Although the caption of the FAC does not include Magana among its list of Defendants, he is named in the body of the FAC. (FAC at 3). 2 1 the 2 plaintiff s hospitalization, identified as DOE Defendants 8-10 3 and ROE Defendants 2-10. 4 Ericksen, 5 capacities only. public entity Magana Defendant and LVMC who (FAC at 4).3 Lewis are were present (FAC at 2-4). sued in their during Gross, individual (Id. at 3). 6 7 Plaintiff states that two days after suffering a serious 8 injury to his left wrist, he 9 was underwent a surgery procedure. taken to LVMC, (Id. at 8-9). where he Plaintiff was 10 shackled on both arms and both legs en route to the hospital. 11 (Id. at 8). 12 13 At the hospital, Plaintiff was admitted to a private room 14 where he was ordered to change clothes and lie down on the bed. 15 (Id.). 16 right arm in a manner that forced [Plaintiff] to lie in a fixed, 17 prone position with no ability to move any extremity in any 18 manner whatsoever. 19 to 20 Plaintiff. 21 approximately 8:00 p.m. on April 10, 2012 until 8 p.m. on April 22 11, 23 shackling 24 hospitalizations . . . . 25 though he posed no threat or danger to anyone . . . . 26 27 28 the Shackles were applied to both legs and his uninjured use 2012. of the (Id.). (Id. (Id.). at LVMC employees watched and consented hospital These 9). inmate/patients bed to shackles LVMC has to their (Id.). 3 excessively remained a policy beds in of restrain place from excessively during inmates Plaintiff was shackled even (Id.). Plaintiff states that DOE Defendants 8-10 and ROE Defendants 210 may include C. Saber, J. Lipazana, C. Hernandez, and E.R. Wallace. However, the FAC appears to stop short of actually naming them as Defendants. (FAC at 4). 3 1 Plaintiff s left injury his Plaintiff was 4 However, Plaintiff was not examined by a neurologist until April 5 8, 6 Sympathetic Dystrophy diagnosis. 7 suffered additional degenerative conditions including physical 8 deformity and loss of functional use of his left hand, fingers, 9 wrist 2014, approximately and arm. a year (Id.). Dystrophy. and a (Id.). The 2012, since diagnosed Sympathetic 20, healed 3 Reflex November not surgery. with Around has 2 10 (Id.). arm half after at his 10). Reflex By that time, Plaintiff treatment neurologist has not yet been provided. (Id. recommended by the (Id.). 11 12 Plaintiff states that his underwear was unlawfully removed 13 by force and interwoven through his leg shackles. 14 11). 15 (Id. at 10- underwear was removed. However, the FAC does not state when, where, or why his 16 17 Finally, in Plaintiff January alleges FCI- 20 serious 21 However, 22 three times since his arrival, in March and September 2011 and 23 April 24 treatment 25 2012 . . . . 26 provide regular dermatological treatment poses an increased risk 27 of a recurrence of melanoma. 28 Plaintiff is alleging that his skin cancer has actually returned. Plaintiff 2012. for has (Id.). his (Id.). been cancer examined Plaintiff serious Plaintiff by has skin a not argues semi-annual melanoma. cancer (Id.). 4 and for at examinations and treatment from a dermatologist for his known skin approved arrived 19 of was he Lompoc need he when 18 medical 2011, that (Id.). dermatologist been provided since that only the April failure any 13, to It is unclear whether 1 The FAC raises seven claims. In Claim One, Plaintiff 2 alleges that the United States is liable under the FTCA for 3 assault 4 fixed, spread eagle position to his hospital bed for twenty- 5 four hours. 6 FTCA, 7 constitutes sexual battery because it inflicted a harmful or 8 offensive contact with Plaintiff s genitals. 9 Three, Plaintiff claims that Magana, Lewis, DOE Defendants 1-7 and battery a (Id. at 6). Plaintiff ROE as alleges Defendant of his being shackled in a In Claim Two, also brought under the that the underwear (Id.). him 12 Plaintiff states 13 violated the Eighth Amendment by pulling down his underwear in 14 violation 15 § 1395, which Plaintiff believes precludes any Federal Officer 16 or employee from participating in any manner, [sic] in a medical 17 procedure. that the Lewis BOP s bed. and Zero Amendment In Claim shackling hospital Eighth his 11 his his of and to violated removal 10 of 1 result (Id.) DOE In Defendants Tolerance Policy rights Claim 4 and Four, and/or 42 by 8 U.S.C. (Id. at 6 & 11). 18 19 In Claim Five, Plaintiff states that Dr. Gross was 20 deliberately indifferent to his serious medical needs because 21 Plaintiff 22 sixteen 23 Dystrophy and still has not been provided with the neurologist s 24 recommended (though unidentified) treatment. 25 Claim 26 Information Technician Ericksen were deliberately indifferent to 27 his serious medical needs because Plaintiff has not been examined 28 by a dermatologist for 28 months to check on his known serious was months Six, not examined after Plaintiff being or treated diagnosed contends that 5 by with Dr. a neurologist Reflex Gross for Sympathetic (Id. at 7). and/or In Health 1 medical needs of skin cancer and/or melanoma. 2 Finally, in Claim Seven, Plaintiff states that Magana, Lewis, DOE 3 Defendants 4 process rights by preventing his freedom of bodily movement 5 when he was shackled to his hospital bed. 1-7, ROE Defendant 1, and LVMC (Id. at 7). violated his due (Id.). 6 7 Plaintiff seeks $500,000 each in compensatory damages for 8 his FTCA claims alleging assault and battery and sexual battery 9 (Claims 10 $500,000 11 force 12 Plaintiff seeks $2,500,000 for his deliberate indifference claim 13 relating to the alleged delay in treating his Reflex Sympathetic 14 Dystrophy (Claim Five). 15 the Court is missing page 13, so the Court is unable to discern 16 what damages, if any, Plaintiff is seeking for his deliberate 17 indifference 18 melanoma (Claim Six) and his freedom of bodily movement due 19 process claim (Claim Seven). 20 seeks $1,000,000 in punitive damages for his civil rights claims. 21 (Id. at 14). One and each and Two). for sexual claim his (Id. civil abuse at rights (Claims (Id.). relating 12). Plaintiff claims Three also alleging and Four). seeks excessive (Id.). The copy of the FAC filed with to the delay in examining (See id. at 12-14). his Plaintiff 22 23 III. 24 DISCUSSION 25 26 The Court finds that the FAC must be dismissed due to myriad 27 pleading defects too numerous to address in detail. 28 se litigants in civil rights cases must be given leave to amend 6 However, pro 1 their 2 deficiencies cannot be cured by amendment. 3 at 1128-29. 4 to amend, as further explained below. complaints unless it is absolutely clear that the See Lopez, 203 F.3d Accordingly, the Court dismisses the FAC with leave 5 6 A. The Complaint Fails To Satisfy Rule 8 7 8 Federal Rule of Civil Procedure 8(a)(2) requires that a 9 complaint contain a short and plain statement of the claim 10 showing that the pleader is entitled to relief, in order to 11 give the defendant fair notice of what the . . . claim is and 12 the grounds upon which it rests. 13 550 U.S. 544, 555 (2007). 14 averment of a pleading shall be simple, concise, and direct. 15 complaint violates Rule 8 if a defendant would have difficulty 16 understanding and responding to the complaint. 17 rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1059 18 (9th Cir. 2011). Bell Atl. Corp. v. Twombly, Rule 8(e)(1) instructs that [e]ach A Cafasso, U.S. ex 19 20 Although Rule 8 s notice pleading requirements are 21 minimal, Alvarez v. Hill, 518 F.3d 1152, 1157 (9th Cir. 2008), 22 a plaintiff must still plead enough facts to state a claim to 23 relief that is plausible on its face. 24 A 25 factual content that allows the court to draw the reasonable 26 inference that 27 alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 28 Ninth Circuit has explained, claim has facial the plausibility defendant is 7 Twombly, 550 U.S. at 570. when liable the for plaintiff the pleads misconduct As the 1 Plausibility requires pleading facts, as opposed to 2 conclusory allegations or the formulaic recitation of 3 the elements of a cause of action, Twombly, 550 U.S. 4 at 555, 127 S. Ct. 1955, and must rise above the mere 5 conceivability or possibility of unlawful conduct that 6 entitles the pleader to relief, Iqbal, 556 U.S. at 7 678 79, 129 S. Ct. 1937. 8 enough 9 speculative level. to raise a Factual allegations must be right to relief above the Twombly, 550 U.S. at 555, 127 S. 10 Ct. 1955. Where a complaint pleads facts that are 11 merely 12 stops 13 plausibility of entitlement to relief. 14 U.S. at 678, 129 S. 15 omitted); 16 896, 911 (9th Cir. 2012) (en banc). consistent short of accord with the a defendant s line between liability, possibility it and Iqbal, 556 Ct. 1937 (citation and quotes Lacey v. Maricopa Cnty., 693 F.3d 17 18 Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013); see 19 also Iqbal, 556 U.S. at 679 (plausibility determination is a 20 context-specific task that requires the reviewing court to draw 21 on 22 Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (district court did 23 not 24 plaintiff s] fanciful 25 conspiracies, clearly 26 constitutional rights ). 27 \\ 28 \\ its judicial abuse its experience discretion and by common refusing allegations without sense ); to 8 indulge regarding foundation, Hemmings to v. [prisoner wide-ranging violate his 1 Pro se pleadings are to be liberally construed and are held 2 to a less stringent standard than those drafted by a lawyer. 3 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 4 court does not have to accept as true mere legal conclusions. 5 See Iqbal, 556 U.S. at 664. 6 interpretation to a pro se complaint, the court may not supply 7 essential elements of a claim that were not initially pled. 8 v. Gardner, 976 F.2d 469, 471 72 (9th Cir. 1992). However, the Furthermore, in giving liberal Pena 9 10 Here, all of Plaintiff s claims violate Rule 8 because they 11 give no notice to Defendants of what Plaintiff believes they 12 specifically did that harmed him, and in most instances, who he 13 believes 14 more than labels and conclusions to satisfy even the minimal 15 pleading standard under the Federal Rules. 16 555. 17 (assault and battery, excessive force, and restraint on bodily 18 movement ), 19 Defendants are liable because they put shackles on Plaintiff or 20 because they did not remove them, and does not clearly explain 21 what about the particular way he was shackled caused him harm, if 22 any. 23 sexual abuse of a ward claims, Plaintiff appears to allege that 24 Lewis 25 Plaintiff s underwear and locking them to his ankles. 26 6). 27 when, under what circumstances and for what purpose Lewis and the 28 DOE and ROE Defendants allegedly committed this act. performed the wrongful act. Plaintiff must provide Twombly, 550 U.S. at For example, in his claims alleging unlawful shackling Plaintiff (FAC at 6-7). violated his does not state whether individual Additionally, in his sexual battery and constitutional rights by pulling down (Id. at However, the FAC provides absolutely no details about where, 9 Plaintiff 1 also 2 situation, 3 violated his rights. 4 Gross and Ericksen were deliberately indifferent to his serious 5 medical needs, but does not explain at all what role they had in 6 providing health care to Plaintiff, when and how they learned 7 about his serious medical needs, and what they specifically did 8 or did not do after being armed with that knowledge that put 9 Plaintiff s health at serious risk. does not explain Plaintiff why, in believes the the context removal of that of his specific underwear Similarly, Plaintiff baldly states that (Id. at 7). 10 11 To satisfy Rule 8, Plaintiff must identify each Defendant, 12 including each DOE and ROE Defendant by number, who he believes 13 is 14 statement what he contends each Defendant specifically did. 15 FAC s conclusory allegations do not give Defendants notice of the 16 claims against them. 17 leave to amend. liable for each claim and describe in a short and plain The Accordingly, the FAC is dismissed, with 18 19 20 C. Plaintiff s Allegations Of Excessive Restraints Fail To State A Claim 21 22 Plaintiff repeatedly, and formulaically, alleges that 23 Defendants applied excessive restraints with no medical nor 24 penological need therein by shackling both of his legs and his 25 uninjured right arm to his hospital bed, such that Plaintiff was 26 forced to lie in a fixed, spread eagle position. 27 Plaintiff 28 unwarranted because there existed other reasonable options to appears to argue that 10 shackling in any (FAC at 6). manner was 1 shackling and under the medical circumstances in this case, he 2 posed 3 disturbance to quell, nor was there any immediate nor foreseeable 4 threat 5 According 6 assault and battery under the FTCA and violated both his Eighth 7 Amendment right to be free from excessive force and his Fifth 8 Amendment 9 (Id. no of at threat any to or danger pending process 7). anyone, disturbance Plaintiff, due to the to the of no (Id. shackling freedom FAC s was quell. excessive right However, to there at 9). constituted bodily allegations prior movement. of excessive 10 restraint fail to state a claim under any of these causes of 11 action. 12 13 1. Assault and Battery (FTCA) 14 15 16 Plaintiff s first excessive restraint claim alleges a cause of action for assault and battery. Under California law, 17 18 The elements of a cause of action for assault are: 19 (1) the defendant acted with intent to cause harmful 20 or 21 plaintiff in a harmful or offensive manner; (2) the 22 plaintiff 23 touched 24 reasonably 25 defendant was about to carry out the threat; (3) the 26 plaintiff did not consent to the defendant's conduct; 27 (4) the plaintiff was harmed; and (5) the defendant s 28 conduct offensive contact, reasonably in was a or believed harmful appeared a threatened to or he was substantial 11 the about to be or it plaintiff factor touch manner offensive the to in that causing the the 1 plaintiff s harm. 2 for 3 plaintiff, or caused the plaintiff to be touched, with 4 the intent to harm or offend the plaintiff; (2) the 5 plaintiff did not consent to the touching; (3) the 6 plaintiff was harmed or offended by the defendant s 7 conduct; 8 plaintiff s position would have been offended by the 9 touching. battery and The elements of a cause of action are: (4) (1) a the defendant reasonable touched person in the the 10 11 Carlsen v. Koivumaki, 227 Cal. App. 4th 879, 890 (2014) (internal 12 citations omitted). 13 14 To the extent that Plaintiff s claim is based merely on the 15 fact that he was shackled at all, the FAC fails to state a claim 16 for assault or battery. 17 several years left to serve on his sentence and was taken to a 18 public hospital outside the prison, where there was an obvious 19 risk of escape or harm to others, despite Plaintiff s injured 20 left hand. 21 circumstances does not state a claim for assault because it does 22 not show that Defendants acted with intent to harm. 23 of the mere fact of shackling also do not state a claim for 24 battery, both because they do not show that Defendants acted with 25 intent to harm and because a reasonable person in Plaintiff s 26 position 27 prison would not have been offended by the shackling. as Plaintiff is a convicted felon with The mere fact that Plaintiff was shackled under these a convicted felon receiving 28 12 treatment Allegations outside of 1 It is unclear whether Plaintiff is attempting to argue that 2 he was harmed not just because he was put in shackles but also 3 because 4 Plaintiff 5 fixed, spread eagle position for the twenty-four hours he was 6 in hospital. 7 provide 8 Defendants applied the shackles in such a way as to show an 9 intent to harm and an offensive touching. of the states manner that in due which to (FAC at 6). enough would information restrict the the shackles shackles, he were was applied. put in a This cursory allegation does not for the to determine if It is obvious that 10 shackles 11 Conclusory 12 malicious and sadistic do not suffice to make that showing. 13 Accordingly, the FAC fails to state a claim for assault and 14 battery. allegations Plaintiff s Court that the ability to move freely. application of shackles was 15 16 2. Eighth Amendment Cruel And Unusual Punishment (Bivens) 17 18 The Eighth Amendment governs an inmate s excessive force 19 claim against prison officials. 20 inquiry is whether force was applied in a good-faith effort to 21 maintain or restore discipline, or maliciously and sadistically 22 to cause harm. 23 Courts considering a prisoner s Eighth Amendment claim must ask 24 both if the officials act[ed] with a sufficiently culpable state 25 of mind and if the alleged wrongdoing was objectively harmful 26 enough 27 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). 28 established that the use of shackles to restrain a prisoner, by to In such a claim, the relevant Hudson v. McMillian, 503 U.S. 1, 7 (1992). establish a constitutional 13 violation. Id. at 8 It is well 1 itself, does not violate the Eighth Amendment. 2 12 F.3d 1444, 1457 (9th Cir. 1993) (requiring prisoner to shower 3 while shackled is not cruel and unusual punishment where the 4 purpose of the restraints is not to injure [plaintiff] or make it 5 difficult for him to shower, but . . . to protect staff ). LeMaire v. Maass, 6 7 The FAC alleges that Plaintiff was shackled, but does not 8 allege facts showing that Defendants put Plaintiff in shackles 9 for the purpose of harming him. The mere fact that Plaintiff was 10 shackled the entire time he was outside the prison in a public 11 hospital does not, by itself, establish that Defendants acted 12 with 13 Plaintiff s 14 shackling was objectively harmful. 15 Plaintiff alleges that he was in hospital for approximately 24 16 hours. 17 significant percentage of that time because he was either asleep 18 or under sedation. 19 caused 20 appears 21 unnecessary. 22 Amendment claim. a culpable Eighth (FAC him to state at allege mind. Amendment 9). great of Furthermore, claim Plaintiff does not show as pled, that the Hudson, 503 U.S. at 7. was likely not awake for a Plaintiff does not allege that the shackles pain or that even the Accordingly, bruises. shackles the FAC At were most, Plaintiff uncomfortable fails to state On Bodily an and Eighth 23 24 25 3. Fifth Amendment Restraint Movement Due Process Claim (Bivens) 26 27 Plaintiff also argues that the shackles denied him freedom 28 of bodily movement in violation of his due process protections 14 1 under the Fifth Amendment. 2 claim, a plaintiff must identify the deprivation of a protected 3 interest. 4 Ariz., 24 F.3d 56, 62 (9th Cir. 1994) ( A threshold requirement 5 to 6 plaintiff s showing of a liberty or property interest protected 7 by 8 always been at the core of the liberty protected by the Due 9 Process Clause from arbitrary governmental action. a the (Id. at 7). To assert a due process Wedges/Ledges of California, Inc. v. City of Phoenix, substantive or procedural Constitution. ). 504 U.S. due Freedom has Foucha v. government, pursuant to its police power, may of course imprison 12 convicted 13 retribution. 14 arbitrary bodily restraint by the government survives criminal 15 conviction and incarceration. 16 316 (1982). 17 atypical and significant hardship on the inmate in relation to 18 the ordinary incidents of prison life. 19 U.S. 472, 484 (1995). the (emphasis restraint the 11 Id. (1992) bodily is Louisiana, for 80 from claim 10 criminals 71, process purposes of added). deterrence The and However, the liberty interest in freedom from Youngberg v. Romeo, 457 U.S. 307, A restraint violates due process when it imposes Sandin v. Conner, 515 20 21 Plaintiff has not shown that the use of shackles in his 22 specific case constituted an atypical and significant hardship. 23 The use of shackles and handcuffs are restraints commonly used 24 on inmates, even those of a preferred status. 25 864 F.2d 1235, 1244 (5th Cir. 1989). 26 that shackles are not customarily used on prisoners when they are 27 taken to outside medical facilities for treatment, and likely 28 cannot plausibly do so. Jackson v. Cain, Plaintiff does not allege See Odell v. Litscher, 2003 WL 23282749 15 1 at *4 (W.D. Wis. Jan. 6, 2003) ( [T]he fact that respondents 2 shackled petitioner in public and allowed guards to remain in the 3 room 4 hardship in relation to the ordinary incidents of prison life. ). 5 Nor does Plaintiff allege facts showing that the specific way in 6 which shackles were applied to him was atypical or caused him 7 significant hardship. 8 due process claim. during medical exams is not an atypical or significant Accordingly, the FAC fails to state a 9 10 Because Plaintiff s excessive restraint claims all fail to 11 state a claim, the FAC is dismissed with leave to amend. 12 Plaintiff is strongly cautioned that he may not raise claims for 13 which he does not have a legal or factual basis. 14 15 16 D. Plaintiff Does Not State A Claim For Sexual Battery Or Sexual Abuse 17 18 1. Sexual Battery (FTCA) 19 20 As the Court has previously explained, under the FTCA, a 21 court must look to state law for the purpose of defining the 22 actionable wrong for which the United States shall be liable 23 . . . . 24 922 (9th Cir. 2009) (internal quotation marks omitted); see also 25 28 U.S.C. § 1346(b). 26 the government s actions, if committed by a private party, would 27 constitute a tort under state law. 28 F.3d 642, 644 (9th Cir. 1995). United States v. Park Place Assoc., Ltd., 563 F.3d 907, To state a claim, a plaintiff must show Love v. United States, 60 Under California law, a person 16 1 commits sexual battery when he [a]cts with the intent to cause a 2 harmful or offensive contact with an intimate part of another, 3 and a sexually offensive contact with that person directly or 4 indirectly results. 5 Shanahan v. State Farm General Ins. Co., 193 Cal. App. 4th 780, 6 788 (2011) ( [T]he tort of sexual battery requires an intent to 7 cause a harmful or offensive contact. ) (internal quotation marks 8 omitted; brackets in original). Cal. Civ. Code § 1708.5(a)(1); see also 9 10 As discussed above, the FAC does not give any details at all 11 about when, where or why Plaintiff s underwear was removed. 12 FAC 13 underwear 14 penological need or justification (id. at 10) do not show facts 15 that would enable the Court to determine whether this claim meets 16 the plausibility standard. 17 1117, 1121 (9th Cir. 2014) ( The plaintiff must allege facts, not 18 mere legal conclusions, in compliance with the pleading standards 19 established by [Iqbal and Twombly]. ). 20 contending that the removal took place while he was in hospital, 21 Plaintiff is cautioned that allegations concerning the removal of 22 a patient s underwear in connection with a surgical procedure, 23 without 24 4 25 26 27 28 at 10-11). was more, Plaintiff s unlawfully do not conclusory removed state . . . allegations with no (See that medical his or See Leite v. Crane Co., 749 F.3d a However, if Plaintiff is claim for sexual battery.4 The original Complaint provided some context to the incident, even though it, too, failed to state a claim. In the Complaint, Plaintiff alleged that he discovered that his underwear had been removed when he returned to his hospital room following his operation. (Complaint at 18-19). The Court concluded that these allegations failed to state a claim because it is common practice for a patient s underwear to be removed so that a catheter can be inserted when a patient is under sedation. The omission of these 17 1 Furthermore, 2 through his leg shackles does not support a tort claim for sexual 3 battery, 4 intentional touching of an intimate part of a person s body. 5 Cal. Civ. Code § 1708.5(a)(1). 6 state a claim for sexual battery. the which fact that requires a Plaintiff s harmful or underwear offensive was and woven unwanted Accordingly, the FAC does not 7 8 2. Sexual Abuse Of A Ward (Bivens) 9 10 In his sexual abuse of a ward claim, Plaintiff argues that 11 the removal of his underwear violated the BOP s Zero Tolerance 12 Policy and 42 U.S.C. § 1395. 13 regulation, which the FAC does not identify, without more, does 14 not state a claim under Bivens. 15 766 F.2d 1358, 1364 (9th Cir. 1985) (agency s violation of its 16 own 17 constitutionally cognizable claim as [t]o hold otherwise would 18 immediately 19 Constitution ); see also Arcoren v. Peters, 829 F.2d 671, 676-77 20 (8th Cir. 1987) (violation of a regulation does not suffice under 21 Bivens unless the regulation supplies the basis for a claim of a 22 constitutional right). 23 \\ 24 \\ 25 \\ 26 27 28 regulation does not incorporate The mere violation of a prison See Clemente v. United States, ordinarily virtually provide every the basis regulation for into a the and other allegations from Plaintiff s FAC not only renders the pleading conclusory and insufficient to state a claim, but also suggests that Plaintiff is attempting to manipulate the facts to state a claim where one might not otherwise exist. 18 1 It is unclear why Plaintiff believes that 42 U.S.C. § 1395, 2 the opening provision of the Medicare Act, is relevant to his 3 claims. It provides: 4 5 Nothing in this 6 authorize any Federal officer or employee to exercise 7 any 8 medicine or the manner in which medical services are 9 provided, supervision or subchapter or shall control over construed the practice selection, officer of tenure, of 11 institution, agency, 12 services; or to exercise any supervision or control 13 over 14 institution, agency, or person. administration person or employee or compensation or or to 10 the any the over be of providing operation of any health any such 15 16 Section 1395 of the Medicare Act expresses the intent of Congress 17 not to preempt the entire field of regulating the provision of 18 medical care to the elderly and disabled. 19 State of New York v. Cuomo, 976 F.2d 812, 818 (2d Cir. 1992); see 20 also Penn. Med. Soc y v. Marconis, 942 F.2d 842, 849 (3d Cir. 21 1991) 22 regulating 23 irrelevant to Plaintiff s claims. 24 state a claim for sexual abuse. (the Medicare medical Act did billing not See Medical Soc y of preempt practices). The state legislation Medicare Act is Accordingly, the FAC does not 25 26 Plaintiff s allegations regarding the removal of his 27 underwear as pled in the FAC are fatally vague and fail to state 28 a claim. Although the Court is skeptical that Plaintiff will be 19 1 able to state a claim based on this incident if his underwear was 2 removed simply in connection with his operation, pro se litigants 3 in 4 complaints unless it is absolutely clear that the deficiencies 5 cannot be cured by amendment. 6 Accordingly, the FAC is dismissed, with leave to amend. civil rights cases must be given leave to amend their See Lopez, 203 F.3d at 1128 29. 7 8 9 E. Plaintiff Fails To State A Claim For Deliberate Indifference To Serious Medical Needs (Bivens) 10 11 Plaintiff alleges that Dr. Gross was deliberately 12 indifferent to his medical needs because there was an alleged 13 delay before Plaintiff was examined by a neurologist to treat his 14 Reflex 15 alleges that Dr. Gross and/or Health Information Technician 16 Erickson were deliberately indifferent to his skin cancer and/or 17 melanoma because it has been 28 months since Plaintiff was last 18 examined 19 deliberate indifference to serious medical needs, a prisoner must 20 show that he was confined under conditions posing a risk of 21 objectively, sufficiently serious harm and that the officials 22 had a sufficiently culpable state of mind in denying the proper 23 medical care. 24 2006). 25 part of the official resulting in harm to Plaintiff. 26 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). 27 purposefully ignore or fail to respond to a prisoner s pain or 28 possible medical need in order for deliberate indifference to be Sympathetic by a Dystrophy. dermatologist. (FAC (Id.). at 7). To Plaintiff state a claim also for Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. There must be a purposeful act or failure to act on the 20 See Jett v. A defendant must 1 established. 2 (internal quotation marks omitted). May v. Baldwin, 109 F.3d 557, 566 (9th Cir. 1997) 3 4 As stated in Part III.A, Plaintiff fails to state a claim 5 against Defendants Gross or Erickson because he does not explain 6 how and when they learned of his serious medical condition or 7 what 8 Plaintiff 9 delayed, without showing the role Defendants had in causing that 10 delay and the harm resulting from the delay, does not state a 11 claim for deliberate indifference. 12 must be dismissed, with leave to amend. they did after harm. The learning mere of that condition fact that medical that caused treatment was Accordingly, the Complaint 13 14 F. The FAC Does Not State A Claim Against LVMC Or Its Employees 15 16 According to the FAC, DOE Defendants 8-10 and ROE Defendants 17 2-10 are LVMC employees who 18 hospitalization. 19 Defendants violated his due process right to be free of arbitrary 20 bodily restraints because they stood by, watching, and consented 21 to the use of the LVMC bed upon which to excessively restrain him 22 [sic], and prevented his freedom of bodily movement. 23 7). 24 longstanding policy 25 excessively shackling 26 inmates 27 allegations fail to state a claim. (FAC at 4). were present during Plaintiff s Plaintiff alleges that the LVMC (Id. at Plaintiff also summarily alleges that LVMC has an ongoing, and/or patter inmate/patients hospitalizations . . . . 28 21 of [sic] to their (FAC at practice beds 9). of during These 1 Plaintiff does not show the personal participation of any 2 DOE or ROE Defendant in the alleged violation, except to note 3 that they observed that Plaintiff was shackled to a hospital bed 4 and failed to intervene. 5 (9th Cir. 2011) (requiring sufficient allegations of underlying 6 facts 7 constitutional violation to state a claim). 8 doubtful that any LVMC employee would have had the authority to 9 order the removal of Plaintiff s shackles because the BOP, not showing hospital, the was See Starr v. Baca, 652 F.3d 1202, 1216 involvement ultimately of each defendant in the Furthermore, it is 10 the 11 Plaintiff did not escape or harm anyone while outside the prison. 12 Plaintiff s 13 practice of excessively shackling prisoner patients fails because 14 Plaintiff 15 participated in any constitutional violation. 16 does 17 exercised 18 Plaintiff s 19 dismissed, with leave to amend. conclusory has Plaintiff any failed show allegation to how allege LVMC custodial claims responsible that any -- as control against LVMC LVMC facts its ensuring has a showing that policy that or LVMC Nowhere in the FAC opposed over and for him. to the BOP -- Accordingly, employees must be 20 21 IV. 22 CONCLUSION 23 24 Plaintiff has already had two opportunities to state a claim 25 in this action based on his hospitalization and health care at 26 FCI-Lompoc. 27 to state a non-frivolous claim that is supported by facts and not 28 merely by legal conclusions. The Court will grant Plaintiff one more opportunity The Court advises Plaintiff that in 22 1 light of the many largely baseless multi-claim actions he has 2 filed in this Court, and the numerous frivolous motions that 3 Plaintiff has filed in those actions,5 Plaintiff appears to be 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff filed four civil complaints alleging Bivens and Federal Tort Claims Act claims and two habeas petitions within a one-year period in this Court, all of which are still pending. (See Bosworth v. United States, EDCV 13-0348 DMG (SS) (FTCA claims, filed February 25, 2013); Bosworth v. Escalante, CV 132924 DMG (SS) (Bivens claims, filed April 25, 2013; Bosworth v. United States, CV 13-8352 ODW (section 2255 habeas petition, filed November 12, 2013); Bosworth v. United States, CV 14-0283 DMG (SS) (FTCA and Bivens claims, filed January 13, 2014); Bosworth v. United States, CV 14-0498 DMG (SS) (FTCA and Bivens claims, filed January 22, 2014), and Bosworth v. Ives, CV 14-1089 DMG (SS) (section 2241 habeas petition, filed February 12, 2014)). In Escalante, the undersigned Magistrate Judge issued a Report and Recommendation recommending that the action be dismissed with prejudice for failure to state a claim. (Escalante, CV 13-2924, Dkt. No. 37). In another case challenging the validity of Petitioner s plea and conviction, the Court issued an Order to Show Cause Why Plaintiff s Claims Are Not Barred By Heck v. Humphrey, 512 U.S. 477 (1994). (See Bosworth, CV 14-0283, Dkt. No. 3). Plaintiff has filed numerous frivolous motions in connection with these cases. Indeed, in just one of Plaintiff s pending actions, the Court has denied over ten baseless or unnecessary motions. (See, e.g., Bosworth v. U.S.A., EDCV 13-0348 DMG (SS), Dkt. No. 9 (order denying request for status update); Dkt. No. 13 (order denying motion to require BOP to grant Plaintiff access to LEXIS); id., Dkt. 14 (order denying request for complete copy of local rules); id., Dkt. No. 31 (order denying request for default judgment); id., Dkt. No. 46 (order denying motion for order requiring FCI-Lompoc to provide deposition facilities for failure to properly serve deposition notices); id., Dkt. No. 47 (order denying Plaintiff s motion for cease and desist order); id., Dkt. No. 56 (order denying Plaintiff s motion to compel discovery responses for failure to identify contents of requests at issue); id., Dkt. No. 58 (order denying Plaintiff s motion for protective order); id., Dkt. No. 69 (order denying Plaintiff s motion to compel supplemental answers to interrogatories, requests for admission, and production of documents); id., Dkt. No. 80 (order denying request for entry of default)). 23 1 abusing 2 share of the Court s resources that could be spent on other 3 matters. 4 unsupported claims in this action in disregard of the Court s 5 instructions 6 Plaintiff be deemed a vexatious litigant. the legal The is process and continued likely is usurping assertion to result a of in disproportionate non-cognizable a recommendation or that 7 8 9 For the reasons stated above, however, the Court dismisses the FAC with leave to amend. If Plaintiff still wishes to pursue 10 this action, he is granted thirty (30) days from the date of this 11 Memorandum 12 Complaint 13 shall not include new defendants or new allegations that are not 14 reasonably related 15 complaint. If 16 allegations, such claims or allegations will be striken and may 17 result in the dismissal of the action entirely. Plaintiff shall 18 only Second 19 Complaint, if any, shall be complete in itself and shall bear 20 both 21 number and Order within that cures the include the to properly designation defects the Plaintiff which new claims. Amended to a Second above. asserted includes Second file described claims exhausted assigned to in claims The Complaint this Amended Plaintiff the original or unrelated and Amended the case action. 22 23 24 25 26 27 28 In addition to the cases filed in the Central District, on May 21, 2014, Plaintiff filed an appeal in the Ninth Circuit of an interlocutory order in Plaintiff s section 2241 habeas action, which the court denied on June 6, 2014 for lack of jurisdiction. (See Bosworth v. Ives, 9th Cir. Case No. 14-55861). The Court takes judicial notice of Plaintiff s other pending cases in the Central District and the Ninth Circuit. See In re Korean Air Lines Co., Ltd., 642 F.3d 685, 689 n.1 (9th Cir. 2011) (a court may take judicial notice of a court s own records in other cases and the records of other courts). 24 1 It 2 complaint in this matter. shall not refer in any manner to any previously filed 3 4 In any amended 5 allegations 6 claims. 7 Civil Procedure 8(a), all that is required is a short and plain 8 statement of the claim showing that the pleader is entitled to 9 relief. 10 standard 11 complaint, a 12 complaint, Plaintiff 13 allegations give rise to his claims. 14 omit any claims for which he lacks a sufficient factual basis as 15 they will be subject to dismissal. 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ to complaint, those operative Plaintiff facts should supporting confine each of his his Plaintiff is advised that pursuant to Federal Rule of Plaintiff civil is rights copy strongly complaint of which should is make 27 28 25 encouraged form when filing attached. clear to what utilize the any amended any amended specific factual In Plaintiff is advised to 1 Plaintiff is explicitly cautioned that failure to timely 2 file 3 deficiencies described above, will result in a recommendation 4 that 5 prosecute and/or failure to obey Court orders pursuant to Federal 6 Rule of Civil Procedure 41(b). 7 if he no longer wishes to pursue this action, he may voluntarily 8 dismiss it by filing a Notice of Dismissal in accordance with 9 Federal Rule of Civil Procedure 41(a)(1). 10 a Second this Amended action be Complaint, dismissed or with failure to prejudice for correct failure the to Plaintiff is further advised that A form Notice of Dismissal is attached for Plaintiff s convenience. 11 12 DATED: September 4, 2014 13 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 THIS MEMORANDUM IS NOT INTENDED 17 INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE 18 SUCH AS WESTLAW OR LEXIS. 19 20 21 22 23 24 25 26 27 28 26 FOR PUBLICATION NOR IS IT
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