Patrick Jackson v. Dale E Stringer et al

Filing 9

ORDER by Magistrate Judge Karen E. Scott: Dismissing Complaint with Leave to Amend (mt)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PATRICK JACKSON,
Plaintiff,

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v.

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DALE E. STRINGER, et al.,

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Defendants.

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) Case No. EDCV 15-02565-DMG (KES)
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) ORDER DISMISSING COMPLAINT
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) WITH LEAVE TO AMEND
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On December 16, 2015, pro se Plaintiff Patrick Jackson (“Plaintiff”), a

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federal prisoner at U.S.P. Allenwood, filed a civil rights complaint

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accompanied by an application to proceed In Forma Pauperis (“IFP”). (Dkt. 1

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“Complaint;” Dkt. 2.) His IFP application was denied without prejudice due

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to his failure to provide a copy of his prison trust account statement. (Dkt. 4.)

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On February 22, 2016, Plaintiff submitted a copy of his prison trust

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account statement showing that his six-month average daily balance was

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$315.97. (Dkt. 6.) The Court granted his IFP application, but ordered him to

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pay an initial filing fee of $20. (Dkt. 7.)

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On March 14, 2016, the Court received a letter brief from Plaintiff

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advising that he was currently unable to pay the initial filing fee, but requesting

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that the Court nevertheless move forward with screening his Complaint. (Dkt.

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8.) Accordingly, the Court reviewed the Complaint and identified the pleading

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deficiencies described below.

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I.

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SUMMARY OF PLAINTIFF’S ALLEGATIONS

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Plaintiff alleges that in February 2015, he had a cellmate named Shelton

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Johnson. (Complaint at 12.1) Plaintiff knew that Johnson was a “prison

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snitch” and had been stealing from Plaintiff’s locker. (Id.)

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On February 17, 2015, a correctional officer wrote an “Incident Report”

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arising out of the cell shared by Plaintiff and Johnson. (Id. at 18.) The officer

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found a weapon (a sharpened piece of plastic) in the common area hidden in a

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box. (Id.) When asked to comment, Plaintiff claimed it was Johnson’s knife.

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(Id.) Plaintiff was charged with a violation of Bureau of Prison (“BOP”)

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regulations. (Id. at 19 [acknowledgment of rights dated 2/23/15].)

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A few days later, Plaintiff got into a fight with Johnson and suffered a

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broken jaw bone on the left side of his face. (Id. at 12.) On February 26, 2015,

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Plaintiff was transported to the hospital for treatment. (Id. at 11.) Plaintiff

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alleges that the oral surgeons, Defendants Dr. Stringer and Dr. Partner, “failed

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to sanitize” the hardware they inserted to repair his broken jaw, resulting in an

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infection, dental abscess, additional surgeries, nerve damage, deformation of

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the left side of his face, pain and suffering. (Id. at 1.) Plaintiff alleges that

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these doctors “are employed privately by Loma Linda University Medical

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Center.” (Id. at 2.)

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In addition to suing the two doctors, Plaintiff is also suing three BOP

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staff members assigned to his unit: Defendants Counselor Melendez, Unit

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All page references are to the CM/ECF pagination.

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Manager Sylvester and Case Manager Warren (collectively, the “BOP

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Defendants”). According to Plaintiff, the BOP Defendants knew that the

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situation between Plaintiff and Johnson “could blow at any time,” but failed to

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“take preventative action.” (Id. at 12-13.)
On these facts, Plaintiff alleges claims under Bivens v. Six Unknown

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Named Agents, 403 U.S. 388 (1971), 42 U.S.C. § 1983 and 42 U.S.C. § 1985.

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(Id. at 10.) Plaintiff sues all Defendants in both their individual and official

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capacities. (Id.)

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II.

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PLEADING DEFICIENCIES

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A.

Plaintiff’s Official Capacity Claims Against the BOP Defendants Fail.
A lawsuit against federal public employees in their official capacity is

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equivalent to a lawsuit against the federal government. Due to sovereign

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immunity, Bivens claims or Section 1985 claims are not available against

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federal agents in their official capacity. Consejo De Desarrollo Economico De

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Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007); Jachetta

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v. United States, 653 F.3d 898, 908 (9th Cir. 2011).

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B.

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Bivens Claims.
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Plaintiff’s Individual Capacity Bivens Claims Against the BOP
Defendants Fail as Drafted, But May Be Amended.

A prison official’s “deliberate indifference” to a substantial risk of serious

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harm to an inmate violates the Eighth Amendment. Farmer v. Brennan, 511

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U.S. 825, 828 (1994). A prison official cannot be found liable under the Eighth

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Amendment, however, “unless the official knows of and disregards an

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excessive risk to inmate health or safety; the official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious

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harm exists, and he must also draw the inference.” Id. at 837.

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Here, while Plaintiff alleges in conclusory terms that the BOP
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Defendants knew about tension between Johnson and Plaintiff, Plaintiff does

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not allege sufficient facts to show knowledge of a substantial risk of harm to

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Plaintiff (e.g., Did Plaintiff submit complaints or talk to the Defendants about

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Johnson? If so, what did he tell them and when?). Plaintiff also does not

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allege facts sufficient to show that the risk of an altercation between him and

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his cellmate was one that should have been viewed as a “substantial risk of

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serious harm” to Plaintiff (e.g., How long had they been cellmates? Had there

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been violence between them before? How did the fight on February 26, 2015

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start?).

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2.

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Plaintiff Cannot State a Bivens Claims Against Dr. Stringer or
Dr. Partner.

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Federal inmates have no Bivens claims against employees of private

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entities, even if the BOP contracts with those entities for inmate care. See

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Karboau v. Clark, 577 Fed. App’x 678, 679 (9th Cir. 2014), citing Minneci v.

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Pollard, -- U.S. --, 132 S. Ct. 617, 626 (2012) (federal inmate has no Bivens

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claims against private employees working at a privately operated federal prison

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for denial of medical care or similar conduct). Plaintiff’s remedy against these

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doctors would be to pursue an action in state court for medical malpractice or

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other torts.

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C.

1983 Claims.

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Because Plaintiff alleges that all of the Defendants were private or

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federal actors (and not state actors), all of Plaintiff’s section 1983 claims fail as

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a matter of law.

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D.

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1985 Claims.
Section 1985 proscribes conspiracies to interfere with certain civil rights.

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A claim under this section must allege facts to support the allegation that

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defendants conspired together. A mere allegation of conspiracy without

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factual specificity is insufficient. Karim-Panahi v. Los Angeles Police Dep’t,
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839 F.2d 621, 626 (9th Cir. 1988). In addition, no cause of action exists unless

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the conspirators were motivated by discriminatory animus. Gillespie v.

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Civiletti, 629 F.2d 637, 641 (9th Cir. 1980).

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Here, Plaintiff fails to plead facts concerning the nature of the alleged

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conspiracy or its members. Plaintiff fails to allege that he is a member of any

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protected class and that Defendants’ alleged wrongdoing was motivated by

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their desire to discriminate against that class. His section 1985 claims are

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therefore dismissed with leave to amend.

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III.

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LEAVE TO AMEND

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If Plaintiff still desires to pursue this action, he is ORDERED to file a

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First Amended Complaint within thirty (30) days of the date of this Order

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remedying the deficiencies discussed above.

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If Plaintiff chooses to file a First Amended Complaint, it should bear the

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docket number assigned in this case; be labeled “First Amended Complaint”;

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and be complete in and of itself without reference to the original Complaint or

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any other pleading, attachment or document.

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The Clerk is directed to send Plaintiff a blank Central District civil rights
complaint form, which Plaintiff is encouraged to utilize.
Plaintiff is admonished that, if he fails to timely file a First Amended
Complaint, the Court will recommend that this action be dismissed with
prejudice on the grounds set forth above and for failure to diligently
prosecute.
Dated: March 17, 2016
______________________________
KAREN E. SCOTT
United States Magistrate Judge
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FULL NAME
COMMITTED NAME (if different)

FULL ADDRESS INCLUDING NAME OF INSTITUTION

PRISON NUMBER (if applicable)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER
To be supplied by the Clerk

PLAINTIFF,
v.

DEFENDANT(S).

CIVIL RIGHTS COMPLAINT
PURSUANT TO (Check one)
G 42 U.S.C. § 1983
G Bivens v. Six Unknown Agents 403 U.S. 388 (1971)

A. PREVIOUS LAWSUITS
1. Have you brought any other lawsuits in a federal court while a prisoner: G Yes

G No

2. If your answer to “1.” is yes, how many?
Describe the lawsuit in the space below. (If there is more than one lawsuit, describe the additional lawsuits on an
attached piece of paper using the same outline.)

CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

Page 1 of 6

a. Parties to this previous lawsuit:
Plaintiff
Defendants
b. Court
c. Docket or case number
d. Name of judge to whom case was assigned
e. Disposition (For example: Was the case dismissed? If so, what was the basis for dismissal? Was it
appealed? Is it still pending?)
f.

Issues raised:

g. Approximate date of filing lawsuit:
h. Approximate date of disposition
B. EXHAUSTION OF ADMINISTRATIVE REMEDIES
1. Is there a grievance procedure available at the institution where the events relating to your current complaint
occurred? G Yes G No
2. Have you filed a grievance concerning the facts relating to your current complaint? G Yes

G No

If your answer is no, explain why not

3. Is the grievance procedure completed? G Yes

G No

If your answer is no, explain why not

4. Please attach copies of papers related to the grievance procedure.
C. JURISDICTION
This complaint alleges that the civil rights of plaintiff
(print plaintiff's name)

who presently resides at

(mailing address or place of confinement)

,

were violated by the actions of the defendant(s) named below, which actions were directed against plaintiff at
(institution/city where violation occurred)

CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

Page 2 of 6

on (date or dates)
NOTE:

(Claim I)

,

(Claim II)

,

(Claim III)

.

You need not name more than one defendant or allege more than one claim. If you are naming more than
five (5) defendants, make a copy of this page to provide the information for additional defendants.

1. Defendant

resides or works at

(full name of first defendant)
(full address of first defendant)
(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual

G official capacity.

Explain how this defendant was acting under color of law:

2. Defendant

resides or works at

(full name of first defendant)
(full address of first defendant)
(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual

G official capacity.

Explain how this defendant was acting under color of law:

3. Defendant

resides or works at

(full name of first defendant)
(full address of first defendant)
(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual

G official capacity.

Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

Page 3 of 6

4. Defendant

resides or works at

(full name of first defendant)
(full address of first defendant)
(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual

G official capacity.

Explain how this defendant was acting under color of law:

5. Defendant

resides or works at
(full name of first defendant)
(full address of first defendant)
(defendant's position and title, if any)

The defendant is sued in his/her (Check one or both): G individual

G official capacity.

Explain how this defendant was acting under color of law:

CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

Page 4 of 6

D. CLAIMS*
CLAIM I
The following civil right has been violated:

Supporting Facts: Include all facts you consider important. State the facts clearly, in your own words, and without
citing legal authority or argument. Be certain you describe, in separately numbered paragraphs, exactly what each
DEFENDANT (by name) did to violate your right.

*If there is more than one claim, describe the additional claim(s) on another attached piece of paper using the same
outline.
CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

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E. REQUEST FOR RELIEF
I believe that I am entitled to the following specific relief:

(Date)

(Signature of Plaintiff)

CIVIL RIGHTS COMPLAINT
CV-66 (7/97)

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