Victor Curry v. FPC Lompoc Med Director et al

Filing 22

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND by Magistrate Judge Suzanne H. Segal, re: First Amended Complaint, 19 . If Plaintiff still wishes to pursue this action, he is granted thirty (30) days from the date of this Memorandum and Order within which to file a Second Amended Complaint. (Attachments: # 1 Notice of Dismissal Form, # 2 Civil Rights Complaint Form) (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 VICTOR CURRY, 11 Case No. CV 16-7523 AB (SS) Plaintiff, 12 MEMORANDUM AND ORDER v. 13 DISMISSING FIRST AMENDED FPC LOMPOC MED DIRECTOR, et al., 14 15 COMPLAINT WITH LEAVE TO AMEND Defendants. 16 17 18 I. 19 INTRODUCTION 20 21 On October 4, 2016, Victor Curry (“Plaintiff”), a federal 22 prisoner proceeding pro se, filed a complaint alleging violations 23 under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and 24 the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et 25 seq. 26 with leave to amend due to defects in pleading.1 27 1 28 (“Complaint,” Dkt. No. 3). The Court dismissed the Complaint (Dkt. No. 9). Magistrate judges may dismiss a complaint with leave to amend without approval of the district judge. See McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 1 Plaintiff subsequently filed the instant First Amended Complaint. 2 (“FAC,” Dkt. No. 19). 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 relief 11 from a defendant who is immune from such relief. 12 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & 13 n.7 (9th Cir. 2000) (en banc). 14 FAC is DISMISSED with leave to amend. from a governmental entity or employee. 28 U.S.C. This Court may dismiss such a complaint, or any 28 U.S.C. § For the reasons stated below, the 15 16 II. 17 ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 18 19 Plaintiff sues five unnamed employees and one prisoner at the 20 “Federal Prison Camp” in Lompoc, California: (1) “John Doe/Jane 21 Doe,” 22 (2) “Richard Roe,” the warden (“Warden”); (3) “Bobby Do[e],” the 23 acting warden in the warden’s absence (“Acting Warden”); (4) “Jimmy 24 Doe,” the correctional officer in charge of the prison’s special 25 housing 26 disciplinary hearing officer (“Hearing Officer”); and (6) Kenyon 27 Payne (“Payne”), a fellow prisoner whom Plaintiff maintains is also 28 a “contract employee” of the Federal Bureau of Prisons (“BOP”). the prison’s unit (“SHU medical director Lieutenant”); 2 (5) (“Medical “Perry Director”); Doe,” a prison 1 (FAC at 3-4). All six Defendants are sued in both their individual 2 and official capacities, “together with insurers by this 3rd party 3 beneficiary.” (Id.). 4 5 The FAC2 alleges that on an unspecified date at FPC Lompoc, 6 Payne attacked and beat Plaintiff until he lost consciousness and 7 “for some time” thereafter. (Id. at 5). No staff member intervened 8 to stop the attack, which did not end until “Payne tired on his 9 own.” (Id. at 8). Plaintiff suffered “profuse” internal and 10 external bleeding and a broken jaw; permanently lost sight in one 11 eye and hearing in one ear; and to this day urinates blood and 12 endures “pain of body and mind that will not abate,” including 13 migraine headaches that last “indefinitely.” (Id. at 5). 14 15 Plaintiff was rushed to the hospital, where doctors 16 recommended that he remain overnight and return soon after for 17 “after-care” consultations. 18 officer returned Plaintiff to the SHU that very night. (Id.). However, an unidentified duty (Id.). 19 20 The SHU Lieutenant kept Plaintiff in the SHU instead of 21 returning him to the general population, even though he was the 22 23 24 25 26 27 28 The FAC attaches among its many exhibits a photocopy of the original Complaint, which Plaintiff captions as the “Amended Complaint Continued.” (FAC at 11-18). Because the Court has already dismissed the original Complaint as defective, the Court will not address the “Amended Complaint Continued.” Plaintiff should not attempt to incorporate dismissed versions of his claims by attaching copies of prior complaints as “continuations” of the allegations in subsequent pleadings. The Court will cite to the other exhibits where necessary as though the FAC and its attachments were consecutively paginated. 2 3 1 victim of the attack. 2 treatment recommended by the hospital doctors and was not taken 3 back to the hospital for follow-up care. 4 and medical staff “did not take [Plaintiff’s] injuries seriously” 5 and “ignored his pleas for help.” 6 “detail 7 Recreation cage with PAYNE” and encouraged them to fight. officers” Plaintiff did not receive the medical attempted to (Id.). (Id.). place The prison SHU On one occasion, SHU Plaintiff “in a locked (Id.). 8 9 While in the SHU, Plaintiff was “processed for misconduct” in 10 a disciplinary proceeding in connection with the incident. (Id.). 11 The Hearing Officer concluded, based on “false reports,” that 12 Plaintiff had participated in a “mutual fight” and “ratified” the 13 loss of good time credits and “sanctions” against Plaintiff. 14 at 6). 15 the decision, and but they both “shrugged it off.” (Id. Plaintiff spoke to the Warden and an administrator about (Id.). 16 17 Plaintiff was then transferred to his current prison in Ohio. 18 (Id.). FPC Lompoc Medical staff “violated every rule in the book” 19 by allowing him to be transferred in his injured condition without 20 following 21 operations, medical review and analysis.” 22 Medical 23 inflammatory drugs) even though Plaintiff had suffered “obvious 24 kidney damage.” the staff hospital’s also “recommendation prescribed NSAIDs for after-care, (Id.). FPC Lompoc (non-steroidal anti- (Id.). 25 26 Plaintiff states that he filed claims, including a tort claim, 27 related to the incident, “knowing full well that all [Defendants] 28 4 1 were insured.”3 (Id.). 2 requirements,” Defendants conspired to falsely characterize the 3 attack “in their books” as a mutual fight in violation of their 4 “medical 5 ethics,” and ignored his plea for compensation. professional However, to “evade claims reporting ethics” and “corrections professional (Id.). 6 7 Although the FAC purports to be a Bivens action, the Request 8 for Relief does not clearly include any Bivens claims at all. 9 Instead, Plaintiff states that business he is damages “discriminatory 11 “supervisory negligence and contract breach,” “medical malpractice 12 and 13 violations/human rights breach,” and “forgery and falsification of 14 records 15 record/accounting laws & claim processing state laws.” 16 Plaintiff seeks over $5 million in monetary damages, (id.), and an 17 order 18 recreation cages for the days when Plaintiff was signed up for 19 recreation. to conceal requiring FPC “correctional wrongdoing” Lompoc to staff in produce “personal for 10 negligence,” practices,” seeking injury,” conduct violation state of videotapes law “business (Id. at 9). of the SHU (Id. at 8). 20 21 III. 22 DISCUSSION 23 24 25 Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff’s Complaint due to defects in pleading. Pro se litigants 26 27 28 The FAC attaches a copy of the tort claim Plaintiff submitted to the BOP along with a letter from the government acknowledging its receipt. (FAC at 48-54). 3 5 1 in civil rights cases, however, must be given leave to amend their 2 complaints unless it is absolutely clear that the deficiencies 3 cannot be cured by amendment. 4 Accordingly, the Court grants leave to amend. See Lopez, 203 F.3d at 1128-29. 5 6 7 A. The Complaint Fails To Satisfy Federal Rule Of Civil Procedure 8 8 9 Federal Rule of Civil Procedure 8(a)(2) requires that a 10 complaint contain “‘a short and plain statement of the claim showing 11 that the pleader is entitled to relief,’ in order to ‘give the 12 defendant fair notice of what the . . . claim is and the grounds 13 upon which it rests.’” 14 544, 555 (2007). 15 a pleading shall be simple, concise, and direct.” Bell Atlantic Corp. v. Twombly, 550 U.S. Rule 8(e)(1) instructs that “[e]ach averment of 16 17 The FAC does not comply with the standards of Rule 8. 18 Plaintiff once again fails to clearly specify the particular claims 19 he wishes to pursue, the facts supporting each individual claim, 20 and the specific Defendants who are allegedly liable under each 21 particular claim. 22 “discriminatory business practices” and “contract breach,” are 23 mentioned only in the Request for Relief and seemingly have no 24 connection to the wrongs alleged in the body of the FAC. 25 alleges no facts showing discrimination. 26 does Plaintiff fail to identify the contract 27 breached, 28 constitutional claim and generally is not actionable under the but Many purported “claims,” such as the claims for more importantly, 6 breach The FAC Furthermore, not only of he believes was contract is not a 1 FTCA. See Love v. United States, 915 F.2d 1242, 1246 (9th Cir. 2 1989) (actions 3 undertaking” where liability “depends wholly upon the government’s 4 alleged promise” may not be brought under the FTCA). 5 “claims,” 6 violations/human 7 record/accounting laws & claim processing state laws” by definition 8 do not state a violation of the federal constitution. 9 repeated, vague references to insurers, insurance laws and third 10 such “essentially as for “correctional rights breach,” breach staff or of a contractual Still other conduct violations state of law “business Finally, the party beneficiaries are simply nonsensical. 11 12 The FAC also violates Rule 8 to the extent that it attaches 13 many exhibits which appear unnecessary to Plaintiff’s allegations. 14 Plaintiff is advised that he is not required at this stage of the 15 litigation to submit evidence in support of the claims. 16 example, Plaintiff improperly attaches a declaration captioned as 17 a “Statement of Injury and Loss of Victor Curry Regarding Event of 18 Civil Rights Violations and Negligence Attributable to LOMPOC Jail 19 Hospital/Med Ctr.” 20 “declarations . . . are not allowed as pleading exhibits unless 21 they form the basis of the complaint.” 22 342 F.3d 903, 908 (9th Cir. 2003). 23 form the basis” of a complaint when, as here, “it is merely a piece 24 of evidentiary matter that does not exist independently of the 25 complaint.” 26 (S.D. Cal. 2001) (citations omitted)). 27 assertions in the declaration are either irrelevant or duplicative 28 of the allegations in the FAC. (Id. at 19-22). For “Written instruments” such as United States v. Ritchie, A declaration “clearly does not DeMarco v. DepoTech Corp., 149 F. Supp. 2d 1212, 1220 7 Moreover, many of the 1 The FAC also violates Rule 8 to the extent that it includes 2 unnecessary and irrelevant discussions of law. For example, 3 Plaintiff requests review under the Administrative Procedure Act, 4 5 U.S.C. § 706, which provides for the scope of judicial review of 5 administrative law claims, which are not at issue here. 6 8). 7 is bringing this action under 42 U.S.C. § 1983 as well as Bivens. 8 Section 9 constitutional or statutory rights by persons acting under color 10 of state law, and none of the Defendants is employed by the state 11 of California. 12 2006). (FAC at Additionally, the caption erroneously indicates that Plaintiff 1983 claims must allege a violation of federal Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 13 14 The FAC also improperly seeks as “injunctive relief” an order 15 from the Court requiring the BOP to provide surveillance tapes to 16 Plaintiff. 17 things are governed by Federal Rule of Civil Procedure 34 as part 18 of discovery, generally without the intervention of the Court. 19 FAC fails to provide Defendants with fair notice of the claims in 20 a short, clear and concise statement. 21 555. Requests for production of documents and tangible The See Twombly, 550 U.S. at Accordingly, the FAC must be dismissed, with leave to amend. 22 23 B. The FAC’s Official Capacity Claims Are Improper 24 25 A suit for damages against federal employees in their official 26 capacity is functionally a suit against the United States. 27 v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). 28 rights action against a federal defendant under Bivens may be 8 Gilbert However, a civil 1 brought only against the offending individual officer, not the 2 United States or its agencies. Correctional Services Corp. v. 3 Malesko, 534 U.S. 61, 72 (2001). As such, no cause of action is 4 available under Bivens against individual federal employees sued 5 in their official capacities. 6 538 F.3d 1250, 1257 (9th Cir. 2008). Ibrahim v. Dept. of Homeland Sec., 7 8 9 Furthermore, the United States is the only proper defendant in an action under the FTCA. 28 U.S.C. § 2679(b)(1). While a 10 government official in his official capacity may stand in proxy for 11 the United States, “in suits against either federal officials in 12 their official capacities or the United States pursuant to the 13 FTCA, the United States is the real defendant . . . .” 14 v. Sears, 33 F.3d 182, 187 (2d Cir. 1994). 15 Plaintiff is in fact attempting to assert a claim under the FTCA, 16 he 17 Accordingly, the official capacity claims in the FAC are improper. should name the United States directly Armstrong To the extent that as a Defendant. 18 19 20 C. The FAC Fails To Allege Personal Participation By The Warden, Acting Warden, SHU Lieutenant, Or Medical Director 21 22 The FAC contains few, if any, allegations invovling the 23 Warden, Acting Warden, SHU Lieutenant, or Medical Director. To the 24 extent that the FAC attempts to state a claim against any of these 25 Defendants, their liability appears to be based on the theory that 26 they are responsible for acts committed by their subordinates. 27 (Id. at 4-6). 28 Bivens. However, there is no supervisory liability under 9 1 As the Court previously explained, in a civil rights action, 2 “each Government official, his or her title notwithstanding, is 3 only liable for his or her own misconduct.” 4 F.3d 1202, 1220 (9th Cir. 2011).4 5 each Government-official defendant, through the official’s own 6 individual actions, has violated the constitution.” Ashcroft v. 7 Iqbal, 556 U.S. 662, 676 (2009) (italics omitted). To be held 8 liable, a supervising officer has to personally take some action 9 against the plaintiff or “set in motion a series of acts by others 10 . . . which he knew or reasonably should have known, would cause 11 others to inflict the constitutional injury” on the plaintiff. 12 Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) 13 (internal quotation marks and citation omitted; emphasis added). 14 For 15 “implement[s] a policy so deficient that the policy ‘itself is a 16 repudiation of constitutional rights’ and is ‘the moving force of 17 a constitutional violation.’” 18 977 (9th Cir. 2013) (quoting Hansen v. Black, 885 F.2d 642, 646 19 (9th Cir. 1989)). example, a supervisor may be Starr v. Baca, 652 “A plaintiff must plead that held liable if he or she Crowley v. Bannister, 734 F.3d 967, 20 21 Accordingly, to state a Bivens claim against supervisors such 22 as the Warden, Acting Warden, the SHU Lieutenant or the Medical 23 Director, Plaintiff must allege facts showing that the Defendant 24 either personally participated in the violation or committed some 25 specific act as a supervisor with a direct causal connection to the 26 27 28 Actions under 42 U.S.C. § 1983 and Bivens are identical except for the replacement of a state actor under Section 1983 with a federal actor under Bivens, and may be cited interchangeably. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). 4 10 1 constitutional violation committed by subordinates. The primary 2 allegations against the Warden are that he is the “CEO” of the 3 prison, (FAC at 5), and that even though Plaintiff told him about 4 the unfair results of the disciplinary proceeding, the Warden did 5 nothing to “nullify or reverse” the Hearing Officer’s decision 6 resulting in the loss of Plaintiff’s good time credits.5 7 6). 8 assertion, 9 knowledge (Id. at The only allegation against the Acting Warden is the vague unsupported that the by any facts, treatment that prescribed he for “had personal [Plaintiff] by 10 [hospital doctors] was not being followed and did nothing.” 11 at 4). 12 that he kept Plaintiff in the SHU after his return from the 13 hospital. 14 facts showing what the Medical Director personally did that caused 15 him harm, or even suggesting that the Medical Director was aware 16 of Plaintiff’s medical condition. 17 Defendants personally participated in the harms he suffered, or 18 show how what they did or did not do as a supervisor directly led 19 to those harms. 20 of their positions, had the power to right the wrongs committed by 21 their subordinates are insufficient to state a claim. 22 must correct these defects in any amended complaint. 23 \\ 24 \\ 25 \\ 26 27 28 (Id. The only specific allegation against the SHU Lieutenant is (Id. at 5). Similarly, Plaintiff does not allege any Plaintiff must show that these Vague allegations that these Defendants, by virtue Plaintiff As explained in Part E immediately below, the Hearing Officer’s decision to revoke good time credits is not actionable. Accordingly, the Warden’s failure to reverse the Hearing Officer’s decision is also not actionable. 5 11 1 D. The FAC Fails To State A Claim Against The Hearing Officer 2 3 Plaintiff alleges that the Hearing Officer, relying on 4 information in “false reports,” “ratified” the loss of Plaintiff’s 5 good time credits. 6 is not a cognizable civil rights claim unless the decision revoking 7 the credits has been invalidated. 8 477 (1994), the Supreme Court held that a prisoner-plaintiff’s 9 civil rights complaint must be dismissed if judgment in favor of 10 the plaintiff would undermine the validity of his conviction or 11 sentence, unless the plaintiff can demonstrate that the conviction 12 or sentence has already been invalidated. 13 Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court extended 14 the Heck rule to civil rights claims that, if successful, would 15 imply the invalidity of deprivations of good-time credits in prison 16 disciplinary proceedings. 17 Prunty, 108 F.3d 251, 255 (9th Cir. 1997) (affirming dismissal 18 without prejudice of prisoner plaintiff’s “claims arising from his 19 challenge to the prison’s disciplinary proceeding, because they 20 could fairly be construed as a challenge for loss of good time 21 credit”). 22 amend. A challenge to the loss of good time credits In Heck v. Humphrey, 512 U.S. Id. at 486-87. In Id. at 643-47; see also Blueford v. Accordingly, the FAC must be dismissed, with leave to 23 24 E. Plaintiff Fails To State A Civil Rights Claim Against Payne 25 26 It is unclear exactly what claim or claims Plaintiff may be 27 attempting to allege against Payne. 28 explained, to state a claim under Bivens, a plaintiff must allege 12 As the Court previously 1 that a person acting under color of federal law deprived him of a 2 right secured by the federal constitution or statutory law. Bivens, 3 403 U.S. at 392. 4 dismissing the original Complaint with leave to amend, a private 5 actor may be deemed to be acting under color of law only in very 6 specific circumstances not present here. 7 F.3d 1088, 1093-95 (9th Cir. 2003) (describing “public function,” 8 “joint 9 “government nexus” tests pursuant to which actions by a private 10 actor may be attributed to the government for purposes of a civil 11 rights claim). action,” As discussed in depth in the Court’s Order “governmental coercion Kirtley v. Rainey, 326 or compulsion” and 12 13 Plaintiff now contends that Payne was a “contract employee of 14 [the] BOP.” (FAC at 3). 15 Payne’s purported employment was or allege that Payne was acting 16 in the course of his employment when he attacked Plaintiff. 17 if it had, courts have routinely found that prisoners who harm 18 other prisoners do not act under color of state or federal law. 19 See, e.g., Jackson v. Foster, 372 F. App’x 770, 771 (9th Cir. 2010) 20 (“The 21 excessive force claim because inmate Doakes did not act under color 22 of state law under any formulation of the governmental actor 23 tests.”); Bolton v. Washington, 2013 WL 1163938, at *6 (W.D. Wash. 24 Feb. 15, 2013) (a prisoner is not a government “employee” acting 25 under color of law). 26 attempting to sue Payne personally for civil rights violations, the district court However, the FAC does not state what properly dismissed Even [prisoner-plaintiff’s] Accordingly, to the extent that Plaintiff is 27 28 13 1 FAC must be dismissed, with leave to amend.6 Plaintiff may not 2 assert any claim against Payne unless he has a proper factual and 3 legal basis. 4 5 F. 6 The FAC Fails To State A Claim For Deliberate Indifference To Serious Medical Needs 7 8 To state an Eighth Amendment claim based on a prisoner’s 9 medical treatment, the prisoner must demonstrate that the defendant 10 was “deliberately indifferent” to his “serious medical needs.” 11 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); see also West 12 v. Atkins, 487 U.S. 42, 49 (1988). 13 need,” the prisoner must demonstrate that “failure to treat a 14 prisoner’s condition could result in further significant injury or 15 the ‘unnecessary and wanton infliction of pain.’” 16 at 1096 (citation omitted); see also Morgan v. Morgensen, 465 F.3d 17 1041, 1045 (9th Cir. 2006) (the existence of a serious medical need 18 is determined by an objective standard). To establish a “serious medical Jett, 439 F.3d 19 20 To establish “deliberate indifference” to such a need, the 21 prisoner must demonstrate: “(a) a purposeful act or failure to 22 respond to a prisoner’s pain or possible medical need, and (b) harm 23 caused by the indifference.” 24 indifference “may appear when prison officials deny, delay or 25 intentionally interfere with medical treatment, or it may be shown 26 27 28 (Id.) (emphasis added). Deliberate Even if Plaintiff could assert a Bivens claim against Payne in his individual capacity, which he cannot, prevailing on such a claim would have no practical benefit if Payne is indigent because Plaintiff would be unable to collect damages. 6 14 1 by the way in which prison physicians provide medical care.” 2 (citations omitted). 3 aware 4 disregarded that risk. 5 An “isolated exception” to the defendant’s “overall treatment” of 6 the prisoner does not state a deliberate indifference claim. 7 439 F.3d at 1096. of a (Id.) The defendant must have been subjectively serious risk of harm and must have consciously See Farmer v. Brennan, 511 U.S. 825 (1994). Jett, 8 9 The FAC fails to state a deliberate indifference claim against 10 any of the Defendants. The FAC does not adequately allege facts 11 showing that the Medical Director personally knew about Plaintiff’s 12 serious medical need and deliberately chose to ignore it, either 13 by seriously delaying or denying care, thereby putting Plaintiff 14 at risk of injury. 15 leave to amend. Accordingly, the FAC must be dismissed, with 16 17 G. The FAC Fails To State A Claim Under The FTCA 18 19 To state a claim against the United States under the FTCA, 20 Plaintiff must show, among other things, that the person who 21 committed the tort was a “federal employee[] acting within the 22 scope of [his] employment.” 23 U.S. Tr., 327 F.3d 903, 908 (9th Cir. 2003) (citing 28 U.S.C. 24 §§ 1346(b)(1), 2674). 25 federal employee, no FTCA action can be brought based on wrongs 26 that Payne allegedly committed. 27 FAC seeks damages for personal injury caused by Payne, the FAC 28 fails to state an FTCA claim. Balser v. Dep’t of Justice, Office of Because it does not appear that Payne was a Therefore, to the extent that the 15 1 The FAC also fails to state an FTCA claim based on the actions 2 of the other Defendants, even though they are federal employees. 3 The FAC does not specifically name the United States as a defendant, 4 even though the United States is the only proper defendant under 5 the FTCA. 6 clearly state that he is asserting an FTCA claim. 7 identify which specific torts he is alleging, what the wrongful 8 conduct 9 Accordingly, the FAC must be dismissed, with leave to amend. Jachetta, 653 F.3d at 904. was, and who committed the Plaintiff does not even wrongful, Nor does he tortious act. 10 11 12 H. The FAC Fails To State A Claim For Alleged Violations Of “Records” And “Insurance” Laws Or Against Unnamed “Insurers” 13 14 Plaintiff continues to allege that prison officials violated 15 “express and implied insurance 16 violations.” 17 reporting 18 compensation 19 occurrence term or claims-made term Commercial Liability Coverage 20 and property/premises insurance as well as bonding and coverage on 21 all individuals and offices involved.” 22 for relief, Plaintiff states that “ALL DAMAGES are sought against 23 insurances [sic] by this 3rd party beneficiary AFTER LIABILITY IS 24 FOUND . . . .” (FAC at 5). requirements,” for law” and committed “records The FAC states that “to evade claims Defendants permanent injury,” ignored even “his though (Id. at 6). pleas “they for have In the prayer (Id. at 8). 25 26 As discussed above, under Bivens, a plaintiff may bring an 27 action only 28 invaded.” where his “federally Bivens, 403 U.S. at 392. 16 protected rights have been Plaintiff does not allege 1 violations of his federal constitutional or statutory rights with 2 respect to these unidentified “express and implied insurance” laws 3 and “records violations.” 4 Plaintiff 5 violations of “records and insurance laws” harmed him personally. does not Even if he could, which he cannot, attempt to explain how these purported 6 7 Finally, Plaintiff’s repeated assertions that Defendants are 8 sued “together with insurers by this 3rd party beneficiary” are 9 both unclear and improper. (FAC at 3-4). No insurers are named 10 in if they 11 government actors subject to suit under Bivens or, through the 12 United States, the FTCA. 13 party beneficiary” of the unidentified policies he that he imagines 14 exist. 15 party must show the contract was specifically intended to be for 16 that 17 Patterson, 15 F. Supp. 2d 990, 994 (D. Or. 1998) (emphasis added). 18 Plaintiff does not, and apparently cannot, allege that the parties 19 entered into some unidentified contract with the specific intention 20 of benefitting him personally. 21 dismissed, with leave to amend. this action, and even they were, are likely not Additionally, Plaintiff is not a “third “For a party to sue as a third party beneficiary, the third party’s direct benefit.” Klamath Water Users Ass’n v. Accordingly, the FAC must be 22 23 24 I. The FAC Fails To State Claims Under 18 U.S.C. §§ 241, 242, 4041, Or 4042 Or The Ninth Amendment 25 26 Plaintiff alleges that Defendants violated 18 U.S.C. § 241, 27 which prohibits conspiracies to deprive an individual of his or her 28 federal constitutional or statutory 17 rights, and § 242, which 1 prohibits the deprivation of rights under the color of law on 2 account of a person’s race, color, or alienage. 3 sections 241 and 242 are criminal statutes that do not provide for 4 a private right of action. 5 F.3d 1044, 1048 (9th Cir. 2006) (neither 18 U.S.C. § 241 nor § 242 6 provides a private right of action). 7 assert claims under these statutes. (FAC at 4). Both See Allen v. Gold Country Casino, 464 Accordingly, Plaintiff cannot 8 9 The FAC also states that Defendants “jointly and severally” 10 breached 18 U.S.C. §§ 4041 and 4042. 11 respectively provide that the BOP shall be run by a director serving 12 directly 13 responsibilities of the BOP (§ 4042). 14 to this action because apart from any other deficiencies such a 15 claim might have, there is no dispute that the BOP has a director. 16 Furthermore, courts have repeatedly found that “section 4042 does 17 not create a private right of action against federal officials” in 18 civil rights actions. 19 (D.C. Cir. 1996); see also Williams v. United States, 405 F.2d 951, 20 954 (9th Cir. 1969) (“[§ 4042] does not impose a duty on any 21 officials who may be responsible to the Bureau of Prisons, and does 22 not establish a civil cause of action against anyone in the event 23 the Bureau’s duty is breached.”); Martinez v. United States, 812 24 F. Supp. 2d 1052, 1061 (C.D. Cal. 2010) (same) (citing Williams). 25 Accordingly, Plaintiff cannot state a claim under these statutes. under the Attorney (FAC at 4). General (§ 4041), Those statutes and list the Section 4041 is not relevant Harper v. Williford, 96 F.3d 1526, 1527 26 27 The FAC further alleges that Plaintiff’s “unenumerated common 28 law jural rights embodied at [the] 9th amendment were taken absent 18 1 due process of the law.” (FAC at 5). While these allegations are 2 unclear, to the extent that Plaintiff is attempting to state a 3 claim directly under the Ninth Amendment, the FAC fails to state a 4 claim. 5 Constitution, of certain rights, shall not be construed to deny or 6 disparage others retained by the people.” 7 However, 8 independently securing any constitutional right, for purposes of 9 pursuing a civil rights claim.” The Ninth Amendment provides that “[t]he enumeration in the “the ninth amendment has U.S. Const. amend. IX. never been recognized as Strandberg v. City of Helena, 791 10 F.2d 744, 748 (9th Cir. 1986); see also Jenkins v. C.I.R., 483 F.3d 11 90, 93 (2d Cir. 2007) (“The Ninth Amendment is not an independent 12 source of individual rights . . . .”). To the extent that Plaintiff 13 is attempting to raise a due process claim, he does not identify 14 the “jural rights” of which he was allegedly deprived or who 15 deprived him of those rights, or explain what process he was due. 16 Accordingly, the FAC must be dismissed, with leave to amend. 17 18 IV. 19 CONCLUSION 20 21 For the reasons stated above, the Complaint is dismissed with 22 leave to amend. If Plaintiff still wishes to pursue this action, 23 he is granted thirty (30) days from the date of this Memorandum and 24 Order within which to file a Second Amended Complaint. 25 amended complaint, Plaintiff shall 26 above. 27 allegations that are not reasonably related to the claims asserted 28 in the original Complaint. Plaintiff shall not cure the defects include new In any described defendants or new The Second Amended Complaint, if any, 19 1 shall be complete in itself and shall bear both the title “Second 2 Amended Complaint” and the case number assigned to this action. 3 shall not refer in any manner to the original Complaint. 4 shall limit his action only to those Defendants who are properly 5 named 6 discussed above. in such a complaint, consistent with the It Plaintiff authorities 7 8 9 In any amended complaint, Plaintiff should confine his allegations to those operative facts supporting each of his claims. 10 Plaintiff is advised that pursuant to Federal Rule of Civil 11 Procedure 8(a), all that is required is a “short and plain statement 12 of the claim showing that the pleader is entitled to relief.” 13 Plaintiff is strongly encouraged to utilize the standard civil 14 rights complaint form when filing any amended complaint, a copy of 15 which is attached. 16 clear the nature and grounds for each claim and specifically 17 identify the Defendants he maintains are liable for that claim. 18 Plaintiff shall not assert any claims for which he cannot allege a 19 proper factual basis. In any amended complaint, Plaintiff should make 20 21 Plaintiff is explicitly cautioned that failure to timely file 22 a Second Amended Complaint, or failure to correct the deficiencies 23 described above, will result in a recommendation that this action 24 be dismissed with prejudice for failure to prosecute and obey Court 25 orders pursuant to Federal Rule of Civil Procedure 41(b). Plaintiff 26 is further advised that if he no longer wishes to pursue this 27 action, he may voluntarily 28 Dismissal in accordance dismiss it by filing a Notice of with Federal 20 Rule of Civil Procedure 1 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 2 convenience. 3 4 DATED: April 26, 2017 5 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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