Brown v. United States of America, et al.

Filing 60

FINDINGS and RECOMMENDATIONS Recommending that this 55 Action be Dismissed, with Prejudice, for Failure to State a Bivens Claim; Objections, if any, Due within Thirty Days signed by Magistrate Judge Gary S. Austin on 9/13/2014. Referred to Judge Anthony W. Ishii. Objections to F&R due by 10/20/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH A. BROWN,

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Plaintiff,

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vs.
UNITED STATES OF AMERICA, et al.,

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Defendants.

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I.

1:12-cv-00165-AWI-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS ACTION
BE DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A BIVENS CLAIM
(Doc. 55.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

BACKGROUND

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Joseph A. Brown ("Plaintiff") is a federal prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). Plaintiff filed the Complaint commencing this action on February 6, 2012. (Doc. 1.)

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On April 4, 2012, Plaintiff filed the First Amended Complaint. (Doc. 7.) On February 8, 2013,

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Plaintiff filed the Second Amended Complaint, with leave of court. (Doc. 21.) On September

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23, 2013, Plaintiff filed the Third Amended Complaint, with leave of court. (Doc. 37.) On

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December 12, 2013, Plaintiff filed the Fourth Amended Complaint, with leave of court. (Doc.

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48.) The court screened the Fourth Amended Complaint and issued an order on February 6,

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2014, dismissing the Fourth Amended Complaint for failure to state a claim, with leave to

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amend. (Doc. 51.) On March 3, 2014, Plaintiff filed the Fifth Amended Complaint, which is

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now before the court for screening. (Doc. 55.)
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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

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A complaint is required to contain Aa short and plain statement of the claim showing

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that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but A[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

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1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

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(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

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unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

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(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

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matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S.

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at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

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To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

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state a plausible claim for relief. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572

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F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this

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plausibility standard. Id.

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III.

SUMMARY OF FIFTH AMENDED COMPLAINT

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Plaintiff is a prisoner in the custody of the federal Bureau of Prisons, presently

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incarcerated at the United States Penitentiary (USP) in Allenwood, Pennsylvania. The events

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at issue in the Fifth Amended Complaint allegedly occurred at USP-Atwater in Atwater,

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California, when Plaintiff was incarcerated there. Plaintiff names as sole defendant Paul
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Copenhaven (Warden of USP-Atwater) (“Defendant”). Plaintiff's factual allegations follow, in

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their entirety:
“After I was vindicated in 2011 of a criminal case in U.S. District
Court (case dismissed) concerning an incident that occurred with
a staff officer in (USP) Atwater in 2008, RETALIATION was
inflicted and used by the Warden of (USP) Atwater Paul
Copenhaven when he was notified and made aware that I suffer
from a very significant mental illness (See Exhibits A&B) before
he referred me to be sent to a lockdown, control-unit facility that
was in violation of my protected conduct, by acting with an
adverse action. There was a casual [sic] connection of his actions
with the incident I was vindicated of. The defendant also
violated B.O.P. Policy statement 541.41(c)(1)(c) by making the
referral. As a result of his adverse actions to retaliate, I have
suffered numerous traumatic injuries due to causation that
include being stabbed, & suffering numerous assaults, & the
worsening of my mental illness, etc.” (Fifth Amended Complaint
at 3 ¶IV.)

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Plaintiff requests monetary damages as relief.
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IV.

PLAINTIFF’S CLAIMS

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A Bivens action is the federal analog to suits brought against state officials under 42
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U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695 (2006). AActions under '
1983 and those under Bivens are identical save for the replacement of a state actor under '

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1983 by a federal actor under Bivens.@ Van Stum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991.)
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The basis of a Bivens action is some illegal or inappropriate conduct on the part of a federal
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official or agent that violates a clearly established constitutional right. Baiser v. Department of
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Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003). ATo state a claim for relief
under Bivens, a plaintiff must allege that a federal officer deprived him of his constitutional

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rights.@ Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citing see Shwarz v. United
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States, 234 F.3d 428, 432 (9th Cir. 2000). A Bivens claim is only available against officers in
their individual capacities, Morgan v. U.S., 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v.

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Dobre, 81 F.3d 854, 857 (9th Cir. 1996), and Plaintiff must allege facts linking each named
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defendant to the violation of his rights, Iqbal, 556 U.S. at 676; Simmons v. Navajo County,
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Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235
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(9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). AA plaintiff must plead
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more than a merely negligent act by a federal official in order to state a colorable claim under

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Bivens.@ O'Neal v. Eu, 866 F.2d 314, 314 (9th Cir.1988). The factual allegations must be

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sufficient to state a plausible claim for relief, and the mere possibility of misconduct falls short

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of meeting this plausibility standard. Iqbal, 556 U.S. at 678-78; Moss, 572 F.3d at 969.

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A.

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Plaintiff brings this action against Defendant in both his official and individual capacity.

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Plaintiff may not bring suit against Defendant in his official capacity. As noted above, a

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Bivens claim is only available against officers in their individual capacities.

Official Capacity

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Bivens provides that “federal courts have the inherent authority to award damages

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against federal officials to compensate plaintiffs for violations of their constitutional rights.”

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Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a

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Bivens action may only be brought against the responsible federal official in his or her

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individual capacity. Morgan, 323 F.3d at 780 n.3; Vaccaro, 81 F.3d at 857.

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Accordingly, Plaintiff fails to state a claim for damages against Defendant in his official
capacity.

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B.

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Allegations of retaliation against a prisoner's First Amendment rights to speech or to

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petition the government may support a § 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th

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Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); Pratt v.

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Rowland, 65 F.3d 802, 807 (9th Cir. 1995). The Supreme Court has not recognized a claim

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sounding in the First Amendment under Bivens; however, Athe Court assum[ed] without

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deciding [in Iqbal] that Iqbal=s First Amendment claim [was] actionable in a Bivens action.@

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Iqbal, 556 U.S. at 663, 675. Even assuming that Bivens liability extends to First Amendment

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claims, Plaintiff fails to state a cognizable claim for retaliation.

Retaliation

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AWithin the prison context, a viable claim of First Amendment retaliation entails five

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basic elements: (1) An assertion that a [governmental] actor took some adverse action against

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an inmate (2) because of (3) that prisoner=s protected conduct, and that such action (4) chilled

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the inmate=s exercise of his First Amendment rights, and (5) the action did not reasonably
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advance a legitimate correctional goal.@ Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.

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2005)) (quotation marks omitted); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.

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2009).

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Plaintiff alleges that Defendant referred him to a lockdown facility after Defendant was

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notified, by way of Plaintiff’s 2008 criminal case and Plaintiff’s submission of inmate

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grievances at USP-Atwater, that Plaintiff suffers from mental illness. Plaintiff satisfies the first

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element of a retaliation claim, that a governmental actor, Defendant, took some adverse action

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against him. However, Plaintiff fails to establish a nexus between Plaintiff’s exercise of

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protected conduct and the adverse action. While it is true that Plaintiff alleges he participated

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in the inmate grievance process, which is protected conduct, Plaintiff has not demonstrated that

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Defendant acted against him because he exercised his right to file grievances. Further, Plaintiff

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has not alleged that his placement in lockdown did not reasonably advance a legitimate

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correctional goal. Therefore, Plaintiff fails to state a claim for retaliation.

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C.

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The Due Process Clause of the Fifth Amendment provides that no one shall “be

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deprived of life, liberty, or property without due process of law.” U.S. Const. amend. V. The

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Due Process Clause protects prisoners from being deprived of liberty without due process of

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law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

Due Process

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To state a cause of action for deprivation of procedural due process, a plaintiff must first

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establish the existence of a liberty interest for which the protection is sought. Plaintiff claims

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that his rights to due process were violated by his detention in “a lockdown control-unit

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facility.” (Fifth Amended Complaint at 3 ¶IV.) The Due Process Clause itself does not confer

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on inmates a liberty interest in avoiding Amore adverse conditions of confinement,@ Wilkinson

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v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393 (2005), or in being confined in the general

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prison population instead of administrative segregation, see Hewitt v. Helms, 459 U.S. 460,

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466-68 (1983); see also May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (convicted inmate=s

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due process claim fails because he has no liberty interest in freedom from state action taken

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within sentence imposed and administrative segregation falls within the terms of confinement
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ordinarily contemplated by a sentence) (quotations omitted); Resnick v. Hayes, 213 F.3d 443,

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447 (9th Cir. 2000) (plaintiff=s placement and retention in the SHU was within range of

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confinement normally expected by inmates in relation to ordinary incidents of prison life and,

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therefore, plaintiff had no protected liberty interest in being free from confinement in the SHU)

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(quotations omitted).

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The existence of a liberty interest created by prison regulations is determined by

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focusing on the nature of the deprivation. Sandin v. Conner, 515 U.S. 472, 481-84 (1995).

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Liberty interests created by prison regulations are limited to freedom from restraint which

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Aimposes atypical and significant hardship on the inmate in relation to the ordinary incidents of

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prison life.@ Id. at 484.

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Plaintiff does not explain in his allegations why he was placed on lockdown or how

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long he was housed there, nor do his exhibits to the Fifth Amended Complaint offer

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explanation. Plaintiff makes vague allegations that he was stabbed and assaulted, and that his

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mental illness worsened, and he alleges that Defendant violated B.O.P. Policy Statement

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541.41(c)(1)(c) by referring him, an inmate with mental illness, to segregated housing. These

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allegations do not rise to the level of an atypical and significant hardship to establish the

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existence of a protected liberty interest in remaining free from segregated housing. A plaintiff

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must assert a “dramatic departure” from the standard conditions of confinement before due

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process concerns are implicated. Sandin, 515 U.S. at 485–86; see also Keenan v. Hall, 83 F.3d

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1083, 1088–89 (9th Cir. 1996). Plaintiff’s allegations are not sufficient to show that Plaintiff

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himself was subject to a “dramatic departure” from standard conditions at the prison outside of

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segregated housing. Therefore, Plaintiff fails to establish the existence of a protected liberty

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interest and thus fails to state a claim for violation of due process.

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D.

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AAn Eighth Amendment claim that a prison official has deprived inmates of humane

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conditions of confinement must meet two requirements, one objective and the other subjective.@

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Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) cert. denied, 514 U.S. 1065 (1995). The

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objective requirement is met if the prison official=s acts or omissions deprived a prisoner of Athe

Conditions of Confinement -- Eighth Amendment Violation

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minimal civilized measure of life=s necessities.=@ Id. (quoting Farmer v. Brennan, 511 U.S. 825,

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834, 114 S.Ct. 1970 (1994)). To satisfy the subjective prong, a plaintiff must show more than

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mere inadvertence or negligence. The plaintiff must allege facts sufficient to support a claim

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that prison officials knew of and disregarded a substantial risk of serious harm to the plaintiff.

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E.g., Farmer, 511 U.S. at 847; (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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The circumstances, nature, and duration of the deprivations are critical in determining whether

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the conditions complained of are grave enough to form the basis of a viable Eighth Amendment

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claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). A[R]outine discomfort inherent in

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the prison setting@ does not rise to the level of a constitutional violation. Id. at 731. Neither

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negligence nor gross negligence will constitute deliberate indifference. Farmer, 511 U.S. at

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833, & n. 4; Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Farmer court concluded that

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Asubjective recklessness as used in the criminal law is a familiar and workable standard that is

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consistent with the Cruel and Unusual Punishments Clause@ and adopted this as the test for

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deliberate indifference under the Eighth Amendment. Farmer, 511 U.S. at 839-40.

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Plaintiff makes vague allegations that he was stabbed and assaulted, and that his mental

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health worsened, due to his conditions of confinement. However, Plaintiff has not alleged facts

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demonstrating that Warden Copenhaven acted against him while knowing of and purposely

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disregarding a substantial risk of serious harm to Plaintiff. Plaintiff alleges that the Warden

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referred him to be sent to a lockdown, control-unit facility, in violation of a BOP Policy

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Statement that prohibits the Warden from referring an inmate for placement in a control unit if

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the inmate shows evidence of a significant mental disorder as documented in a mental health

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evaluation.

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negligence, which is not actionable under Bivens. Therefore, Plaintiff fails to state a claim for

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adverse conditions of confinement under the Eighth Amendment.

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V.

With these allegations, Plaintiff may, at most, be able to state a claim for

CONCLUSION AND RECOMMENDATIONS

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The Court finds that Plaintiff=s Fifth Amended Complaint fails to state any cognizable

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claims upon which relief may be granted under Bivens. In this action, the Court previously

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gave Plaintiff ample guidance and granted him multiple opportunities to amend. Plaintiff has
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now filed six complaints. The Court finds that the deficiencies outlined above are not capable

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of being cured by amendment, and therefore further leave to amend should not be granted. 28

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U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Therefore, IT IS HEREBY RECOMMENDED that:

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Pursuant to 28 U.S.C. ' 1915A and 28 U.S.C. ' 1915(e), this action be

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DISMISSED with prejudice for failure to state a claim upon which relief may be

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granted under Bivens; and

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2.

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This dismissal be subject to the Athree-strikes@ provision set forth in 28 U.S.C. '
1915(g).

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within thirty

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days after being served with these findings and recommendations, Plaintifff may file written

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objections with the court. Such a document should be captioned "Objections to Magistrate

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court's order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

September 13, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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