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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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

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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.

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