(PC)Hunt v. Matevousian et al, No. 1:2016cv01560 - Document 29 (E.D. Cal. 2018)

Court Description: ORDER VACATING 16 Screening Order of November 17, 2017; AMENDED Screening Order and FINDINGS and RECOMMENDATIONS Recommending Dismissal of 1 Action, with Prejudice, for Failure to State a Claim signed by Magistrate Judge Barbara A. McAuliffe on 6/14/2018. Referred to Judge Lawrence J. O'Neill. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE HUNT, 12 Plaintiff, 13 14 ORDER VACATING SCREENING ORDER OF NOVEMBER 17, 2017 (ECF No. 16) v. MATEVOUSIAN, et al., 15 Defendants. 16 AMENDED SCREENING ORDER AND FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM FOURTEEN (14) DAY DEADLINE 17 18 Case No. 1:16-cv-01560-LJO-BAM (PC) I. Background 19 Plaintiff Maurice Hunt (“Plaintiff”) is a federal prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under Bivens v. Six Unknown Named Agents of Fed. Bureau 21 of Narcotics, 403 U.S. 388 (1971). 22 On November 17, 2017, the Court issued a screening order granting Plaintiff leave to file 23 a first amended complaint. (ECF No. 16.) The Court found that Plaintiff stated a cognizable 24 claim for excessive force against Defendants Helling, Gunn, and Graham and a failure to 25 intervene claim against Defendant Hellmuth arising out of allegations that Plaintiff was assaulted 26 on August 6, 2015. Plaintiff also stated a cognizable claim for excessive force against Defendant 27 Villegas arising out of events on November 26, 2015. Plaintiff failed to state any other 28 cognizable claims. Plaintiff was informed that claims regarding the events of August 6, 2015 and 1 1 claims regarding the events of November 26, 2015 were improperly joined in this action. (Id.) On December 14, 2017, Plaintiff filed a motion for clarification of the Court’s screening 2 3 order, requesting that the Court consider the prejudice to Plaintiff by dismissing this action rather 4 than severing the improperly joined claims, due to potential statute of limitation issues. (ECF No. 5 17.) On December 18, 2017, the Court issued an order granting the motion. (ECF No. 18.) The 6 order explained that Plaintiff must file a first amended complaint to pursue claims in this action, 7 and at that time the Court would conduct the appropriate prejudice analysis and address the 8 disposition of any improperly joined claims.1 The Court extended the deadline for Plaintiff to file 9 a first amended complaint until thirty days following service of that order. (Id.) 10 On January 8, 2018, Plaintiff filed a notice of appeal. (ECF No. 19.) As no final order 11 had been entered in this action, the Court treated Plaintiff’s appeal as an interlocutory appeal. 12 Thus, when Plaintiff failed to file a first amended complaint within the allotted time, the Court 13 issued findings and recommendations recommending dismissal of this action, without prejudice, 14 due to Plaintiff’s failure to obey a court order and failure to prosecute. (ECF No. 22.) Plaintiff 15 timely filed objections on February 9, 2018, arguing that he believed, in good faith, that the filing 16 of his notice of appeal divested the Court of jurisdiction over this action, and therefore he was not 17 required to file an amended complaint. (ECF No. 23.) 18 On February 27, 2018, the Court of Appeals for the Ninth Circuit issued an order 19 dismissing Plaintiff’s appeal for lack of jurisdiction because the orders challenged in the appeal 20 were not final or appealable. (ECF No. 24.) In light of Plaintiff’s pro se status and the filing of his notice of appeal, the Court found it 21 22 appropriate to vacate its findings and recommendations and granted Plaintiff a final opportunity 23 to file a first amended complaint. (ECF No. 25.) 24 On May 14, 2018, Plaintiff filed a motion again requesting that the Court sever any claims 25 it considers improperly joined in the original complaint, in consideration of the prejudicial impact 26 of requiring Plaintiff to file a first amended complaint. (ECF No. 27.) Plaintiff further requests 27 In that order, the Court also noted the Supreme Court’s recent decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), but expressed no opinion at that time whether a Bivens remedy would be available to Plaintiff under that standard. 1 28 2 1 that the Court issue an order directing prison officials at the institution where he was recently 2 transferred to provide Plaintiff with his legal property, specifically a copy of his original 3 complaint. The Court construes this request as a motion for preliminary injunctive relief. 4 Finally, Plaintiff requests a thirty-day continuance due to his lack of legal property. (Id.) Upon further consideration and review of Plaintiff’s motion, it is apparent that Plaintiff 5 6 does not wish to file a first amended complaint to correct the deficiencies identified in the Court’s 7 prior screening order, including the improper joinder of claims. Therefore, the Court VACATES 8 the November 17, 2017 screening order, (ECF No. 16), and issues the following Amended 9 Screening Order and Findings and Recommendations. 10 II. Findings and Recommendations on Complaint 11 A. Screening Requirement and Standard 12 The Court is required to screen complaints brought by prisoners seeking relief against a 13 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. § 14 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or 15 malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 16 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2); 28 U.S.C. 17 § 1915(e)(2)(B)(ii). 18 A complaint must contain “a short and plain statement of the claim showing that the 19 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 22 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964-65 23 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required to indulge 24 unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 25 (internal quotation marks and citation omitted). 26 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 27 liberally construed and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 28 342 (9th Cir. 2010) (citations omitted). To survive screening, Plaintiff’s claims must be facially 3 1 plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each 2 named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 3 (quotation marks omitted); Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 4 2009). The sheer possibility that a defendant acted unlawfully is not sufficient, and mere 5 consistency with liability falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 6 129 S.Ct. at 1949 (quotation marks omitted); Moss, 572 F.3d at 969. 7 Bivens actions and actions under 42 U.S.C. § 1983 “are identical save for the replacement 8 of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 9 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual 10 capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 11 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the 12 United States was violated, and (2) that the alleged violation was committed by a federal actor. 13 B. Bivens Actions Following Ziglar v. Abbasi 14 The Supreme Court has recently made clear that “expanding the Bivens remedy is now a 15 disfavored judicial activity,” and has “consistently refused to extend Bivens to any new context or 16 new category of defendants. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (citations omitted). 17 Ziglar sets forth a two-part test to determine whether a Bivens claim may proceed. A district 18 court must first consider whether the claim presents a new context from previously established 19 Bivens remedies. If so, it must then apply a “special factors” analysis to determine whether 20 “special factors counsel hesitation” in expanding Bivens absent affirmative action by Congress. 21 Id. at 1857, 1875. 22 “If [a] case is different in a meaningful way from previous Bivens cases decided by [the 23 Supreme Court], the context is new.” Id. at 1859. Ziglar provides several examples of 24 differences meaningful enough to make a given context a new one, including “the constitutional 25 right at issue.” Id. at 1860. To date, the Supreme Court has only recognized a Bivens remedy in 26 the context of the Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388 (Fourth 27 Amendment prohibition against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 28 228 (1979) (Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) 4 1 2 (Eighth Amendment Cruel and Unusual Punishments Clause). If the claim presents a new context in Bivens, the court must consider whether there are 3 special factors counseling against extension of Bivens into this area. “[T]he inquiry must 4 concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to 5 consider and weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 137 6 S.Ct. at 1857–58. This requires the court to assess the impact on governmental operations 7 system-wide, including the burdens on government employees who are sued personally, as well 8 as the projected costs and consequences to the government itself. Id. at 1858. In addition, “if 9 there is an alternative remedial structure present in a certain case, that alone may limit the power 10 of the Judiciary to infer a new Bivens cause of action.” Id. Plaintiff’s Allegations 11 C. 12 Plaintiff is currently housed at the U.S. Penitentiary Canaan in Waymart, Pennsylvania. 13 The events in the complaint are alleged to have occurred while Plaintiff was housed at Atwater 14 United States Penitentiary (“Atwater”) in Atwater, California. Plaintiff names the following 15 defendants: (1) Warden Andre Matevousian; (2) Lieutenant Helling; (3) Correctional Officer W. 16 Gunn; (4) Correctional Officer Graham; (5) Correctional Officer Hellmuth; (6) Correctional 17 Officer G. Villegas; (7) Atwater’s Medical Department; (8) Associate Warden Snider; (9) Facility 18 Captain Garcia; (10) Western Regional Office, Bureau of Prisons; and (11) Central Office, 19 Bureau of Prisons. 20 Claim 1: 21 In claim 1, Plaintiff alleges that on August 6, 2015, he was assaulted by Correctional 22 Officers Helling, W. Gunn, and Graham. Correctional Officer Hellmuth was watching, but did 23 not participate. Plaintiff asserts that earlier that day, he had been complaining to Correctional 24 Officer Hansen that he needed access to a handicap toilet and shower due to his disability, which 25 had been an ongoing request since Plaintiff’s arrival at Atwater on July 21, 2015. 26 On July 30, 2015, Plaintiff spoke directly to the Warden regarding his handicap needs and 27 appropriate housing to accommodate his disability, Plaintiff pointed out to the Warden, while he 28 was standing at the entrance of Plaintiff’s cell, that the cell lacked any handrails or pull bars 5 1 around the toilet or shower. The Warden advised that he had been on vacation the week of 2 Plaintiff’s arrival. Plaintiff further informed the Warden that Captain Garcia confiscated 3 Plaintiff’s assistive devices, which were authorized by Atwater Medical Personnel on the day of 4 his arrival. The Warden informed Plaintiff that his medically prescribed assistive devices would 5 be returned and he would have Plaintiff moved to handicap housing. 6 The next day, on July 31, 2015, Associate Warden Snider came to Plaintiff’s cell in the 7 SHU and brought him a cane, orthotic foot brace and ankle guard. Plaintiff inquired about his 8 other medically prescribed assistive devices and assignment to a handicap accessible cell. 9 Associate Warden Snider informed Plaintiff that the handicap accessible cell in the SHU was 10 11 inoperable and that was all of the assistive devices that Plaintiff was getting. On August 4, 2015, Plaintiff again spoke to Associate Warden Snider about access to a 12 handicap accessible toilet and shower. Plaintiff informed Associate Warden Snider that prisons 13 are required to provide handicap accessible showers and toilets pursuant to Supreme Court 14 opinion. Associate Warden Snider again informed Plaintiff that cell #112 was inoperable and 15 there were no other handicap accessible cells available. 16 On August 6, 2015, Plaintiff and his cellmate were ordered to pack in order to move to 17 cell #112. Plaintiff immediately inquired as to the operability of the cell, but staff members did 18 not know. Approximately 20 minutes later, Plaintiff and his cellmate were transferred to cell 19 #112. Upon entering the cell, Plaintiff saw why the Associate Warden informed him that the cell 20 was inoperable. The shower was broken, with the handicap seat dangling attached to strips of 21 torn sheets. Plaintiff began to protest that not only did the cell not accommodate his disability, 22 but it also posed a clear hazard to his safety. At this point, Lieutenant Helling told Plaintiff that 23 he was getting sick of his complaining. Plaintiff countered that the cell was out of compliance 24 with the Americans with Disabilities Act. Lieutenant Helling told Plaintiff that he either went 25 into cell #112 or back to his previous cell. Plaintiff verbally objected to both. Lieutenant Helling 26 then told Plaintiff’s cellmate to step out of the cell and that he did not need to be a part of what 27 was going to happen to Plaintiff. Plaintiff was then left alone in cell #112 while restrained in 28 handcuffs. About 10 minutes later, Lieutenant Helling returned and informed Plaintiff that 6 1 someone from the facilities department was coming to fix the shower and he was temporarily 2 placing Plaintiff in another cell while the cell was being fixed. 3 Plaintiff was wheeled to another cell and pushed inside, where he remained strapped in the 4 restraint chair in handcuffs. After about 30-40 minutes, the facility worker was standing outside 5 Plaintiff’s cell. Plaintiff asked if he fixed the shower. The facility worker informed Plaintiff that 6 he was unable to fix the shower properly and he would need a new shower seat. About 5 minutes 7 later, Lieutenant Helling returned and ordered his staff to wheel Plaintiff to cell #112. Plaintiff 8 verbally objected, informing Lieutenant Helling what the facility worker told him and demanding 9 the basic necessities of a handicap accessible toilet and shower. Lieutenant Helling ordered 10 Correctional Officer Graham to remove the straps that were restraining Plaintiff to the restraint 11 chair. Once the straps were removed, Lieutenant Helling ordered Plaintiff to get out of the chair 12 while still handcuffed and enter the cell. Plaintiff refused, reiterating his request for handicap 13 accommodations. Lieutenant Helling and Officer Graham then lifted Plaintiff out of the chair and 14 walked him into the center of the cell where Correctional Office W. Gunn waited. Plaintiff was 15 turned around to face the entrance of the cell. Seconds after Plaintiff stopped walking, Lieutenant 16 Helling and Correctional Officers Gunn and Graham began to punch Plaintiff in the back and the 17 side of his head with closed fists. After numerous punches, Lieutenant Helling slammed Plaintiff 18 on the ground and all three started kicking Plaintiff repeatedly in the leg and side torso until 19 Lieutenant Helling yelled at them to stop. During the assault, Correctional Officer Hellmuth 20 stood at the entrance of the cell doorway and watched. Plaintiff alleges that Defendant Hellmuth 21 failed to act to protect him from the assault. 22 Once the assault stopped, Lieutenant Helling ordered Correctional Officer Hellmuth to get 23 some shackles and a camera. Plaintiff was then placed in the restraint chair, strapped in and 24 wheeled to see a nurse. Plaintiff immediately told the nurse that he had been assaulted. While 25 detailing the assault, the nurse told the officers to get him out of there because he was being 26 uncooperative. Plaintiff contends that he received no medical attention, though he was in great 27 pain. Plaintiff was then wheeled back to cell #112 and placed on the floor of the cell still 28 restrained, where he was left for a couple of hours. 7 1 Plaintiff asserts that Warden Matevousian was aware that Plaintiff had been complaining 2 daily of the confiscation of his assistive devices and lack of access to a handicap toilet and 3 shower. Warden Matevousian also was aware that Captain Garcia had assembled numerous use- 4 of-force teams that were used for movement to and from the shower area as well as the housing 5 units. Plaintiff alleges that the Warden knew or should have known, or was deliberately 6 indifferent to the situation that Plaintiff was complaining about and that this may lead to the 7 assault. Plaintiff further alleges that Warden Matevousian has a duty to protect inmates from staff 8 abuse once he becomes aware that there is an ongoing problem between staff and an inmate. 9 Plaintiff contends that the Warden failed to act to prevent an escalation of events that resulted in 10 11 Plaintiff being assaulted. Plaintiff further alleges that Captain Garcia created the atmosphere that led to Plaintiff’s 12 assault. Plaintiff contends that Captain Garcia assembled a use of force team to greet Plaintiff 13 upon his arrival at Atwater and immediately confiscated his assistive devices. Plaintiff also 14 contends that Captain Garcia assembled 3-4 use of force teams against Plaintiff, and by August 6, 15 2015, it was widely known by prison staff that Plaintiff was a problem inmate. Plaintiff alleges 16 that Captain Garcia knew or should have known or was deliberately indifferent that his orders to 17 staff to assemble use of force teams to deal with a handicapped inmate was a potentially serious 18 situation that may lead to Plaintiff being assaulted by staff. 19 Claim 2 20 In claim 2, Plaintiff alleges that on November 26, 2015, he was assaulted by Correctional 21 Officer G. Villegas. After the assault, a lieutenant responded to Plaintiff’s location to take 22 photographs of his injured left hand. The next morning, paramedic staff Stacey Vasquez 23 responded to Plaintiff’s cell to assess his injured hand. Without looking at his hand, Paramedic 24 Vasquez informed Plaintiff that he would be placed on the list for x-rays and to see the doctor. 25 Several days later, Plaintiff was transported to the x-ray department, but no x-ray was taken. The 26 x-ray tech claimed that her paperwork reflected that it was Plaintiff’s right hand that was injured 27 and that she was only authorized to x-ray his right hand. The next day, Plaintiff informed 28 Paramedic Vasquez about the x-ray. Paramedic Vasquez informed Plaintiff that she would 8 1 submit the request again reflecting his left hand. Plaintiff alleges that he never received any x-ray 2 of his left hand or any treatment for it. Plaintiff informed the Western and Regional Offices that 3 he had been denied medical treatment, but both offices failed to act on his written complaints. 4 Claim 3 5 In claim 3, Plaintiff alleges that on November 26, 2015, he was assaulted by Correctional 6 Officer G. Villegas during the dinnertime meal. Plaintiff contends that he was standing at his cell 7 door with his hand on the open food port door attempting to complain to Correctional Officer 8 Villegas about the quantity of his meal. Realizing that his attempt to informally resolve the issue 9 was futile, Plaintiff requested to speak to the on-duty lieutenant or duty officer. Officer Villegas 10 became upset that Plaintiff was requesting to speak to his supervisor. Officer Villegas told 11 Plaintiff that he was not talking to anyone and ordered Plaintiff to remove his hand from the door 12 or he would break it. Plaintiff told Officer Villegas that he was not going to remove his hand 13 until he spoke with the Lieutenant as he believed that Officer Villegas had tampered with the 14 quantity of his meal. Officer Villegas then slammed up the tray door, smashing Plaintiff’s hand 15 between the tray door and the cell door. Plaintiff began screaming, while Officer Villegas 16 continued to apply pressure. After about a minute and a half, Officer Villegas let the tray door 17 fall over, looked through the tray door into the cell and snatched Plaintiff’s walking cane, causing 18 Plaintiff to fall to the ground. Plaintiff asked to see medical for his hand and to speak with the 19 Lieutenant. Officer Villegas snatched the cane out of the cell and shouted that he was going to 20 write Plaintiff up for assaulting him with the cane. Officer Villegas then closed the tray door and 21 exited with the cane. 22 23 24 D. Discussion 1. Violation of Fifth and Fourteenth Amendments Although not entirely clear, it appears that Plaintiff is attempting to assert a due process or 25 equal protection claim by invoking both the Fourteenth and Fifth Amendments to the United 26 States Constitution. As a federal prisoner, however, Plaintiff’s purported due process or equal 27 protection claim is secured by the Fifth Amendment, not the Fourteenth Amendment. Castillo v. 28 McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment prohibits the federal 9 1 government from depriving persons of due process by the several States.”); Consejo de 2 Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1170 n.4 (9th Cir. 3 2007) (Fifth Amendment’s Due Process Clause subjects the federal government to constitutional 4 limitations that are equivalent of those imposed on the states by the Equal Protection Clause of 5 the Fourteenth Amendment) (citations and quotations omitted). Accordingly, Plaintiff cannot 6 state a cognizable Fourteenth Amendment claim. 7 Insofar as Plaintiff is attempting to pursue a claim for violation of the Fifth Amendment, 8 as noted above, the Supreme Court has only recognized a Bivens remedy in the context of the 9 Fourth, Fifth, and Eighth Amendments. Ziglar, 137 S.Ct. at 1860 (Supreme Court has approved 10 three Bivens claims in the past: “a claim against FBI agents for handcuffing a man in his own 11 home without a warrant; a claim against a Congressman for firing his female secretary; and a 12 claim against prison officials for failure to treat an inmate’s asthma.”) (internal citations omitted). 13 The Supreme Court has never recognized a Bivens remedy for a Fifth Amendment due 14 process claim relating to the alleged failure of a prison official to provide due process. As 15 Plaintiff’s Fifth Amendment claim clearly presents a new context in Bivens, this requires the 16 consideration of any special factors counseling against extension of Bivens into this area, 17 including whether there is any alternative, existing process for protecting Plaintiff’s interests. 18 As discussed in Ziglar, “the existence of alternative remedies usually precludes a court 19 from authorizing a Bivens action.” Ziglar, 137 S.Ct. at 1865. It is clear that Plaintiff has 20 alternative remedies available to him, including the Bureau of Prisons administrative grievance 21 process, the filing of a writ of habeas corpus, and injunctive relief. 22 23 24 25 26 27 28 Moreover, “legislative action suggesting that Congress does not want a damages remedy is itself a factor counseling hesitation.” Id. As noted by the Supreme Court: Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner abuse claims must be brought in federal court. So it seems clear that Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act’s exhaustion provisions would apply to Bivens suits. But the Act itself does not provide for a standalone damages remedy against federal jailers. It could be 10 1 2 argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment. 3 Id. (internal citations omitted). Congress has been active in the area of prisoners’ rights, and its 4 actions do not support the creation of a new Bivens claim. 5 For the foregoing reasons, the Court finds that special factors counsel hesitation in this 6 context, and declines to find an implied Bivens cause of action for Fifth Amendment due process. 7 This deficiency is not subject to cure by amendment of the complaint. 8 9 10 11 2. Eighth Amendment – Excessive Force Plaintiff alleges that Defendants Helling, Gunn, and Graham assaulted him on August 6, 2015. Plaintiff also has alleged that Defendant Hellmuth failed to intervene to stop the assault. As indicated above, in Carlson, the Supreme Court extended Bivens to a claim arising 12 from the Cruel and Unusual Punishments Clause of the Eighth Amendment based on the failure to 13 provide adequate medical treatment. 446 U.S. 14. However, deliberate indifference to a serious 14 medical need, see Carlson, 446 U.S. at 16 n.1, is different than Plaintiff’s claims arising out of 15 assault by officers and failure to intervene in such an assault. Accordingly, because Plaintiff’s 16 Eighth Amendment excessive force claims arise in a different context from those of Carlson, the 17 Court also must employ a special factors analysis for this claim. For the same reasons that 18 counsel hesitation in the Fifth Amendment context discussed above, the Court declines to find an 19 implied Bivens cause of action arising out of Plaintiff’s Eighth Amendment excessive force claim 20 in these circumstances. This deficiency cannot be cured by amendment. 21 22 3. Eighth Amendment – Denial of Medical Care “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 23 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 24 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Plaintiff must show 25 (1) a serious medical need and (2) defendant’s response to the need was deliberately indifferent. 26 Jett, 439 F.3d at 1096. Deliberate indifference is shown by “a purposeful act or failure to respond 27 to a prisoner’s pain or possible medical need, and harm caused by the indifference.” Jett, 439 28 F.3d at 1096 (citing McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992). To establish a 11 1 deliberate indifference claim arising from a delay in providing medical care, a plaintiff must 2 allege facts showing that the delay was harmful. See Berry v. Bunnell, 39 F.3d 1056, 1057 (9th 3 Cir. 1994); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989); Shapley v. Nevada Bd. of 4 State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff’s allegations are insufficient to state a claim against Atwater Medical Staff or the 5 6 Bureau of Prisons Offices. First, Plaintiff has not alleged any harm resulting from the delay in 7 receiving an x-ray. To the extent that the order for an x-ray improperly identified his right hand, 8 a complaint of negligence does not state a valid claim under the Eighth Amendment. See 9 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012). Second, Plaintiff has not alleged any 10 harm to his hand resulting from the failure to receive x-rays or the failure to receive treatment. 11 Third, Plaintiff has failed to adequately identify individual Atwater Medical Staff or Bureau of 12 Prison Offices staff and has failed to link them to a violation of his constitutional rights. 13 Although Plaintiff may sue individual prison employees for damages under Bivens, he must link 14 each named defendant to a violation of his constitutional rights. In addition, there is no 15 respondeat superior liability under Bivens. Iqbal, 556 U.S. at 676-77 (“In a § 1983 suit or a 16 Bivens action . . . the term “supervisory liability” is a misnomer.”) A government official is only 17 liable for his or her own misconduct. Id.; Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), 18 cert. denied, 566 U.S. 982 (2012); Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010). 19 III. 20 21 22 Motion for Preliminary Injunction In his May 14, 2018 motion, Plaintiff also requests that the Court issue an order directing prison officials to provide him with his legal property. (ECF No. 27.) “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter 23 v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). “A plaintiff seeking a 24 preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to 25 suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his 26 favor, and that an injunction is in the public interest.” Id. at 20 (citations omitted). An injunction 27 may only be awarded upon a clear showing that the plaintiff is entitled to relief. Id. at 22 (citation 28 omitted). 12 1 Federal courts are courts of limited jurisdiction and in considering a request for 2 preliminary injunctive relief, the Court is bound by the requirement that as a preliminary matter, it 3 have before it an actual case or controversy. City of L.A. v. Lyons, 461 U.S. 95, 102 (1983); 4 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 5 464, 471 (1982). If the Court does not have an actual case or controversy before it, it has no 6 power to hear the matter in question. Id. Requests for prospective relief are further limited by 18 7 U.S.C. § 3626(a)(1)(A) of the Prison Litigation Reform Act, which requires that the Court find 8 the “relief [sought] is narrowly drawn, extends no further than necessary to correct the violation 9 of the Federal right, and is the least intrusive means necessary to correct the violation of the 10 Federal right.” 11 Furthermore, the pendency of this action does not give the Court jurisdiction over prison 12 officials in general. Summers v. Earth Island Inst., 555 U.S. 488, 491–93 (2009); Mayfield v. 13 United States, 599 F.3d 964, 969 (9th Cir. 2010). The Court’s jurisdiction is limited to the parties 14 in this action and to the viable legal claims upon which this action is proceeding. Summers, 555 15 U.S. at 491−93; Mayfield, 599 F.3d at 969. 16 Plaintiff has not met the requirements for the injunctive relief he seeks in this motion. In 17 light of the Court’s findings above, the Court cannot find that Plaintiff has shown a likelihood of 18 success on the merits. In addition, no defendant has been ordered served, and no defendant has 19 yet made an appearance. Thus, the Court lacks personal jurisdiction over any prison officials at 20 U.S. Penitentiary Canaan, and it cannot issue an order requiring them to take any action. 21 IV. Conclusion and Order 22 Plaintiff’s complaint fails to state any cognizable claims for relief. Despite being 23 provided with the relevant pleading and legal standards, as well as multiple opportunities to file a 24 first amended complaint in compliance with such standards, Plaintiff has been unable and 25 unwilling to cure the deficiencies by amendment. In light of Plaintiff’s repeated refusals to file an 26 amended complaint and the above analysis pursuant to Ziglar, further leave to amend would be 27 futile and is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 28 /// 13 1 2 3 Accordingly, the Court HEREBY VACATES the screening order issued on November 17, 2017, (ECF No. 16). Furthermore, IT IS HEREBY RECOMMENDED that: 4 1. This action be DISMISSED, with prejudice, for failure to state a claim; and 5 2. Plaintiff’s motion for preliminary injunctive and other relief, (ECF No. 27), be DENIED. 6 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 9 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 10 file written objections with the Court. The document should be captioned “Objections to 11 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file 12 objections within the specified time may result in the waiver of the “right to challenge the 13 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 14 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 18 IT IS SO ORDERED. Dated: /s/ Barbara June 14, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 14