Ward v. Ives et al

Filing 58

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/4/2014 DENYING plaintiff's 41 motion to amend and 52 motion to compel, and GRANTING his 56 request to supplement his opposition to defendants&# 039; motion to dismiss; and RECOMMENDING that defendants' 44 motion to dismiss be granted; plaintiff's FTCA and First Amendment claims be dismissed without leave to amend and with prejudice; plaintiff's Eighth Amendment claim agains t defendants Salinas, Binford and Fieber be dismissed with leave to amend; and plaintiff be granted leave to file a third amended complaint, consistent with these findings and recommendations within 30 days of the filing of any order adopting these recommendations. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN C. WARD, 11 12 13 No. 2:11-cv-1657-GEB-EFB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS RICHARD IVES, et al., 14 Defendants. 15 16 Plaintiff, a federal prisoner, is proceeding without counsel in this constitutional tort action 17 brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 18 U.S. 388 (1971). He also asserts a common law tort claim pursuant to the Federal Tort Claims 19 Act, 28 U.S.C. § 1346. There are several motions pending before the court which include: (1) 20 plaintiff’s motion to amend (ECF No. 41); (2) defendants United States of America, Jay Salinas, 21 Ryan Binford, and Joe Fieber’s motion to dismiss (ECF No. 44); (3) plaintiff’s motion to compel 22 (ECF No. 52); and (4) plaintiff’s request to supplement his opposition to defendants’ motion to 23 dismiss (ECF No. 56). For the reasons stated below, plaintiff’s motions to amend and to compel 24 are denied and his request to supplement his opposition to defendants’ motion to dismiss is 25 granted. In addition, the court finds that defendants’ motion to dismiss must be granted. 26 I. 27 Plaintiff sustained a head injury while working in the recycling department at the Federal 28 Plaintiff’s Allegations Correctional Institution (“FCI”) Herlong. In the second amended complaint, he claims that on 1 1 July 13, 2009, while on his work assignment, he fell from a bin, approximately ten feet above the 2 pavement. ECF No. 15, § III, ¶ 1; § IV, ¶¶ 3, 5. He was taken to the hospital, where he received 3 a CAT scan and nineteen staples to close the wound to the back of his head. Id. § III, ¶ 1; § IV, 4 ¶ 5. 5 Plaintiff claims that defendant Fieber, the institution’s “Safety Specialist” and “Recycle 6 Supervisor,” “was told immediately prior to the accident that [plaintiff] was in danger of falling 7 and refused to act,” even though another prisoner had fallen and broken his arm while performing 8 the same task, just six months earlier. Id. § I(B), ¶ 5; § IV, ¶¶ 10, 58. 9 The recycling supervisors, defendants Binford and Salinas, claimed that they did not learn 10 about plaintiff’s accident until two days afterward. Id. § IV, ¶¶ 2, 9. Nevertheless, it was 11 allegedly their responsibility to provide plaintiff with an accident report. Id. § III, ¶ ; § IV, ¶¶ 15- 12 17. Plaintiff claims that they failed in this regard. Id. § IV, ¶¶ 14, 18. 13 In the months following the accident, plaintiff purportedly experienced seizures, dizziness, 14 ringing in his ears, and problems with vision, balance, focus, and memory. Id. § III, ¶¶ 2, 5. He 15 claims it was difficult to obtain medical treatment because the medical department had no record 16 of the accident, and plaintiff believed that providing the department with a copy of the accident 17 report would help him obtain the treatment he needed. Id. § IV, ¶¶ 19, 22, 60. 18 On November 1, 2010, plaintiff filed an administrative appeal requesting a copy of the 19 accident report. Id. § IV, ¶ 19. On November 29, 2010, Binford allegedly told plaintiff that he 20 would give him the accident report and other relevant documents, but only if plaintiff withdrew 21 his appeal. Id. § IV, ¶ 21. Binford and Salinas subsequently presented plaintiff with an 22 incomplete and backdated accident report. Id. § IV, ¶¶ 23-24. After seeing the deficient report, 23 plaintiff refused to cancel his appeal, and defendants refused to provide him with any accident 24 report. Id. § IV, ¶ 26. Defendants Binford and Salinas allegedly claimed that plaintiff was not on 25 his work assignment when the injury occurred (an assertion with which plaintiff adamantly 26 disagrees), and were therefore not required to produce such a report. Id. § IV, ¶¶ 38-42, 63-65. 27 ///// 28 ///// 2 1 Plaintiff claims that his medical care was further delayed following the filing of his 2 administrative appeal. Id. § IV, ¶ 49. However, he notes that when he told Binford he could not 3 get a doctor’s appointment, Binford secured an appointment for him. Id. § IV, ¶ 32. 4 According to plaintiff, defendants Salinas, Binford, and Fieber violated his Eighth 5 Amendment rights by “requiring him to work in conditions that were likely to cause serious 6 injury and did result in serious injury. They were deliberately indifferent to a serious known risk, 7 after [a] previous injury [had] recently occurred in the same work area.” Id. § V, ¶ 1. Plaintiff 8 also claims that Salinas and Binford “acted in a retaliatory manner when the[y] promised to 9 provide a belated accident report, brought it to Plaintiff, but refused to hand it over when Plaintiff 10 refused to dismiss his administrative remedy.” Id. § V, ¶ 4. Lastly, plaintiff claims that 11 defendant, the United States of America, is liable under the Federal Torts Claims Act because the 12 “Defendants are federal employees and Plaintiff suffered a serious head injury while on the work 13 assignment he was required to report to each day.” Id. § V, ¶ 5. 14 II. 15 Plaintiff’s Motion to Amend (ECF No. 41) a. Background 16 Plaintiff filed his original complaint in June 2011. ECF No. 1. The court screened the 17 complaint in accordance with 28 U.S.C. § 1915A, determined it did not state a claim upon which 18 relief could be granted, and dismissed it with leave to amend. ECF No. 11. Plaintiff filed a first 19 amended complaint in December 2011. ECF No. 12. Upon screening the first amended 20 complaint, the court found that some of the allegations therein were cognizable while others were 21 not. ECF No. 14. The court informed plaintiff that he could proceed with the claims identified 22 by the court as cognizable or instead, file a second amended complaint. Id. Plaintiff then filed a 23 second amended complaint. ECF No. 15. The court determined that for the limited purposes of 24 section 1915A screening and liberally construed, the second amended complaint stated potentially 25 cognizable Eighth Amendment claims against defendants Salinas, Binford, Fieber, and Gulani,1 26 ///// 27 28 1 Later, plaintiff voluntarily dismissed defendant Gulani. ECF Nos. 31, 36. 3 1 a First Amendment retaliation claim (and conspiracy to retaliate claim) against defendants Salinas 2 and Binford, and a Federal Tort Claims Act claim against the United States. ECF No. 20. 3 Plaintiff subsequently moved to amend his complaint to assert a claim against defendant 4 “Graves” for violating an unspecified Federal Bureau of Prisons (“BOP”) rule, regulation, or 5 policy. ECF No. 31. After the court denied that motion on August 21, 2013, plaintiff renewed 6 his request, which is now before the court. ECF No. 41. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Discussion Like the initial motion, plaintiff’s renewed motion to amend is denied. The order denying plaintiff’s initial motion provided as follows: Plaintiff also requested leave to further amend his complaint to add “G. Graves” as a defendant, based upon allegations that Graves violated “BOP rules, regulation and policies . . . wrongfully issue[d] keys to heavy equipment forklift, a motor vehicle truck and compactor/bailer to an inmate, without authorization and no staff supervision to wit multiple accidents occur[r]ed specifically one with the plaintiff.” ECF No. 31, ¶ 72. *** Here, the claim plaintiff wants to add is so lacking in detail that it cannot be determined what specific cause of action plaintiff intends to assert. There[fore], the request to amend the complaint must be denied as futile because the proposed amendment simply fails to state a claim upon which relief may be granted. Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). In plaintiff’s proposed amended complaint, he does not identify which of the BOP “rules, regulations, and policies” Graves allegedly violated. Moreover, it is doubtful that any private right of action would exist based on Graves’ purported breach of a BOP regulation. See Opera Plaza Residential Parcel Homeowners Ass’n v. Hoang, 376 F.3d 831, 836 (9th Cir. 2004) (“[I]t is the relevant laws passed by Congress, and not rules or regulations passed by an administrative agency, that determine whether an implied cause of action exists.”); Alexander v. Sandoval, 532 U.S. 275, 291 (2001) (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”). Thus, plaintiff’s motion to amend his complaint in order to state a claim against Graves for violating an unspecified BOP rule, regulation, or policy, is denied. ECF No. 36 at 2-3. 4 1 That same analysis pertains here. Plaintiff’s renewed motion to amend does not 2 materially differ from the original motion. He again seeks to add Graves (a federal employee) as 3 a defendant, claiming that Graves was negligent because he did not comply with certain BOP 4 regulations. See ECF No. 41 (“[i]f Graves had followed BOP policy and not issued keys to heavy 5 equipment without supervision [the] accident could not have happened, therefore proximate cause 6 is established”). Once again, plaintiff fails to plead sufficient facts as to Graves to state a 7 cognizable claim for relief. Assuming from plaintiff’s conclusory allegations that he intends to 8 assert a claim for negligence, i.e. that Graves owed plaintiff a duty of care and that he breached 9 that duty, allegations which the complaint fails to clearly state, such a claim fails as a matter of 10 law. The Federal Tort Claims Act provides the exclusive remedy for “injury or loss of property, 11 or personal injury or death arising or resulting from the negligent or wrongful act of omission of 12 any employee of the Government while acting within the scope of his office or employment,” 28 13 U.S.C. § 2679(b)(1), and the United States is the only proper defendant in a suit brought pursuant 14 to the FTCA. FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the exclusive 15 remedy for tortious conduct by the United States, and it only allows claims against the United 16 States.”). Because only the United States may be sued for injuries arising from the negligent act 17 of a BOP employee, any negligence claim against Graves necessarily fails. For these reasons, 18 plaintiff’s renewed motion to amend (ECF No. 41) is denied.2 19 III. 20 Plaintiff has also filed what he describes as a “motion to compel to dismiss defendants’ Plaintiff’s Motion to Compel (ECF No. 52) 21 motion to dismiss.” ECF No. 52. While not entirely clear, plaintiff appears to argue that 22 defendants failed to respond to his discovery requests and, as a result, defendants’ motion to 23 dismiss must be denied. His discovery requests sought information about why defendant Binford 24 is no longer employed by the Bureau of Prisons. Plaintiff has not shown that he actually served 25 defendants with any requests for discovery, but even if he had, the consequence of defendants’ 26 27 28 2 The motion to amend is denied without further leave to amend because, as explained infra, any FTCA claims against the United States arising from plaintiff’s July 2009 injury are jurisdictionally barred. 5 1 failure to respond would not be denial of their motion to dismiss. As a threshold matter, the court 2 generally only authorizes discovery following the resolution of any motions to dismiss and the 3 defendants’ filing of an answer. Here, there is no reason to depart from that general practice, as 4 any discovery related to Binford’s employment status and/or history would not assist the court in 5 resolving defendants’ motion to dismiss, which turns on purely questions of law and the 6 sufficiency of allegations in the complaint. Accordingly, plaintiff’s motion to compel is denied. 7 IV. 8 Defendants argue in their motion to dismiss that plaintiff’s Federal Tort Claims Act 9 Defendants’ Motion to Dismiss (ECF No. 44) (“FTCA”) claim against the United States is barred due plaintiff’s failure to timely present an 10 administrative claim. They further argue that the second amended complaint fails to plead 11 sufficient facts to state either a First or Eighth Amendment claim. See Fed. R. Civ. P. 12(b)(1), 12 12(b)(6). 13 A. Legal Standards Under Rule 12(b)(1) 14 “Federal courts are courts of limited jurisdiction. They possess only that power 15 authorized by Constitution and statute . . . .” Kokkonen v. Guardian Life Ins. Co. of Am., 511 16 U.S. 375, 377 (1994) (internal citations omitted). Rule 12(b)(1) allows a party to seek dismissal 17 of an action where federal subject matter jurisdiction is lacking. “When subject matter 18 jurisdiction is challenged under Federal Rule of Procedure 12(b)(1), the plaintiff has the burden of 19 proving jurisdiction in order to survive the motion.” Tosco Corp. v. Cmtys. for a Better Env't, 20 236 F.3d 495, 499 (9th Cir. 2001). 21 A party may seek dismissal for lack of jurisdiction “either on the face of the pleadings or 22 by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 23 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). In a factual challenge, 24 the court may consider evidence demonstrating or refuting the existence of jurisdiction. Kingman 25 Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008). “In such 26 circumstances, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of 27 disputed material facts will not preclude the trial court from evaluating for itself the merits of 28 jurisdictional claims.” Id. (quoting Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987)). 6 1 B. Legal Standards Under Rule 12(b)(6) 2 To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a 3 complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell 4 Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55, 562-63, 570 (2007) (stating that the 12(b)(6) 5 standard that dismissal is warranted if plaintiff can prove no set of facts in support of his claims 6 that would entitle him to relief “has been questioned, criticized, and explained away long 7 enough,” and that having “earned its retirement,” it “is best forgotten as an incomplete, negative 8 gloss on an accepted pleading standard”). Thus, the grounds must amount to “more than labels 9 and conclusions” or a “formulaic recitation of the elements of a cause of action.” Id. at 1965. 10 Instead, the “[f]actual allegations must be enough to raise a right to relief above the speculative 11 level on the assumption that all the allegations in the complaint are true (even if doubtful in 12 fact).” Id. (internal citation omitted). Dismissal may be based either on the lack of cognizable 13 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 14 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 15 The complaint’s factual allegations are accepted as true. Church of Scientology of Cal. v. 16 Flynn, 744 F.2d 694, 696 (9th Cir. 1984). The court construes the pleading in the light most 17 favorable to plaintiff and resolves all doubts in plaintiff’s favor. Parks Sch. of Bus., Inc. v. 18 Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). General allegations are presumed to include 19 specific facts necessary to support the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 20 (1992). 21 The court may disregard allegations contradicted by the complaint’s attached exhibits. 22 Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987); Steckman v. Hart Brewing, 23 Inc., 143 F.3d 1293, 1295-96 (9th Cir.1998). Furthermore, the court is not required to accept as 24 true allegations contradicted by judicially noticed facts. Sprewell v. Golden State Warriors, 266 25 F.3d 979, 988 (9th Cir. 2001) (citing Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 26 1987)). The court may consider matters of public record, including pleadings, orders, and other 27 papers filed with the court. Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 28 1986) (abrogated on other grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104 7 1 (1991)). “[T]he court is not required to accept legal conclusions cast in the form of factual 2 allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. 3 Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Nor need the court accept 4 unreasonable inferences, or unwarranted deductions of fact. Sprewell, 266 F.3d at 988. 5 C. Pro Se Standards 6 The court is cognizant of plaintiff’s pro se status. Pro se pleadings are held to a less 7 stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 8 Unless it is clear that no amendment can cure its defects, a pro se litigant is entitled to notice and 9 an opportunity to amend the complaint before dismissal. Lopez v. Smith, 203 F.3d 1122, 1127-28 10 11 (9th Cir. 2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). D. Discussion3 12 13 a. Federal Tort Claims Act Claim Plaintiff’s tort claims against the United States must comply with the procedural 14 requirements imposed by Congress, including the requirement for timely exhaustion of an 15 administrative claim process. Under the doctrine of sovereign immunity, actions against the 16 United States may not be maintained except by its express consent. United States v. Testan, 424 17 U.S. 392, 400 (1976); Doe v. Attorney Gen. of U.S., 941 F.2d 780, 788 (9th Cir. 1991). Although 18 Congress has consented to suits against the United States under the FTCA, prior to litigating a tort 19 claim against the United States, a plaintiff must first file an administrative claim with the 20 appropriate federal agency. 28 U.S.C. § 2675(a). Presentation of an FTCA claim must be made 21 within two years of the accrual of the claimant’s cause of action. 28 U.S.C. § 2401(b). A claim is 22 deemed “presented” to the federal agency upon its receipt. See 28 C.F.R. § 14.2(a); Vacek v. U.S. 23 Postal Service, 447 F.3d 1248, 1249 (9th Cir. 2006) (mailbox rule does not apply to FTCA 24 3 25 26 27 28 After defendants’ motion to dismiss was fully briefed and submitted for consideration by the court, plaintiff requested that the court consider several “supplemental” filings in opposition to defendants’ motion, including his: (1) February 18, 2014 “Response to Defendants’ Reply” and attached exhibits (ECF No. 51); and (2) May 22, 2014 affidavit (ECF No. 55). See ECF No. 56. These filings are neither authorized by the Federal Rules of Civil Procedure nor the court’s local rules. In an abundance of caution, however, the above filings have been considered in resolving defendants’ motion. 8 1 cases). A civil action may not be instituted until an administrative claim has “been finally denied 2 by the agency in writing and sent by certified or registered mail.” Id. The administrative claim 3 requirement under the FTCA is jurisdictional and cannot be waived. Cadwalder v. United States, 4 45 F.3d 297, 300 (9th Cir. 1995). In addition, courts are required to strictly construe the 5 exhaustion requirement. Vacek, 447 F.3d at 1250; see id. (where exhaustion conditions not 6 satisfied, action may not proceed “merely because dismissal would visit a harsh result upon the 7 plaintiff”). 8 9 Here, plaintiff failed to allege that he presented an FTCA claim within two years of the incident giving rise to his claims. He argues in his opposition brief that he satisfied the FTCA’s 10 claim requirement because he submitted numerous prison grievance forms and some of the 11 responses thereto were either delayed or never received. ECF No. 49 at 1-2; see also ECF No. 51 12 at 8-10.4 He also suggests that the letters he wrote on November 18, 2010 and December 22, 13 2010, regarding his efforts to exhaust the prison grievance process, satisfy the FTCA’s claim 14 presentation requirement. ECF No. 49 at 4, 43-44. Plaintiff’s arguments necessarily fail. 15 “[P]rison grievances are not sufficient to exhaust administrative remedies under the FTCA 16 because ‘exhaustion requirements for administrative remedies through the BOP’s inmate 17 grievance system differ from the exhaustion requirements for filing a claim under the FTCA.’” 18 Petty v. Shojaei, No. EDCV 12-1220 JAK, 2013 U.S. LEXIS 156636, at *7 n.3 (C.D. Cal. Sept. 19 27, 2013) (quoting McDaniels v. Richland Co. Public Defenders Office, 2012 U.S. Dist. LEXIS 20 65262, 2012 WL 1565618 at *5 (D. S.C. Mar. 27, 2012)). Similarly, the letters to which plaintiff 21 refers were not properly filed “claims” for purposes of the FTCA. See 28 C.F.R. § 543.31 (Filing 22 a Claim); Blair v. United States, 304 F.3d 861, 864 (9th Cir. 2002) (requiring that a claim include 23 (1) a written statement sufficiently describing the injury to enable the agency to begin its own 24 investigation, and (2) a “sum certain damages claim”). Thus, plaintiff’s prison grievance filings 25 and his related efforts to exhaust that grievance process neither replace nor satisfy the FTCA’s 26 claim presentation requirements. 27 28 4 For ease of reference, all references to page numbers in plaintiff’s filings are to those assigned via the court’s electronic filing system. 9 1 In addition, plaintiff’s suggestion that his claim did not actually accrue until January 15, 2 2013, the date he claims he “finally” received a diagnosis related to the injuries he sustained in 3 the 2009 fall, must also be rejected. ECF No. 49 at 3-4; see also ECF No. 51 at 6 (arguing he did 4 not know, until years after the accident, that the accident had “caused his [medical] problems”). 5 “As a general rule, a claim accrues when a plaintiff knows or has reason to know of the injury 6 which is the basis of his action” and when “plaintiffs [know] both the fact of injury and its 7 immediate physical cause.” Hensley v. United States, 531 F.3d 1052, 1056, 1057 (9th Cir. 2008) 8 (internal quotations omitted). It is readily apparent from plaintiff’s own allegations that his claim 9 accrued immediately upon his injury in July 2009, and that he could have timely complied with 10 the FTCA’s claim presentation requirement. See generally ECF No. 15 (Second Amended 11 Complaint); see also ECF No. 49 at 13-14 (explaining that on July 13, 2009, he fell from ten feet 12 onto the pavement, was knocked unconscious into a “pool of [his] own blood,” “stopped 13 breathing for five minutes or more,” suffered a wound to the back of his head “shaped like a 14 spider web,” received nineteen stitches and a CAT scan, and “started having seizures a few 15 months later”). Plaintiff had all of the information he needed in order to timely comply with the 16 FTCA claim presentation requirements; he did not need to know the full extent of his injuries in 17 order to so comply. 18 Exhibits attached to plaintiff’s opposition (also confirmed by evidence submitted with 19 defendants’ motion5) show that it was not until September 13, 2012, that plaintiff completed the 20 proper form for filing an FTCA claim and demanded a sum certain. ECF No. 49 at 27, 34; ECF 21 No. 44-1 (Declaration of Jennifer Vickers, “Vickers Decl.”). Another exhibit shows that the U.S. 22 Department of Justice denied plaintiff’s September 2012 claim because it was not timely 23 presented within two years of the accrual of his claim. ECF No. 49 at 35; Vickers Decl. 24 ///// 25 5 26 27 28 Consideration of material outside the pleadings does not necessarily convert a Rule 12(b)(1) motion into one for summary judgment. Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). Here, defendants’ evidence simply confirms what is established the complaint itself, as the plaintiff’s attachments are part of the complaint and may be properly considered on a Rule 12(b) motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). 10 1 Plaintiff contends that the time for presenting an FTCA claim should be tolled in light of 2 his “diminished capacity” following his injury, coupled with the fact that he is uneducated in the 3 law and has limited legal resources. ECF No. 49 at 2; see also ECF No. 55 at 4 (claiming he was 4 “confused” as to when he should file his FTCA claim). In the two years following the July 2009 5 incident, however, plaintiff was able to draft numerous letters and prison grievances related to his 6 claim of injury. See, e.g., id. at 23 (January 29, 2011 prison grievance); 39 (November 4, 2010 7 request for injury form); 42 (November 18, 2010 request regarding medical care for injuries 8 stemming from July 2009 head injury); 66 (November 19, 2010 request for BOP documents 9 related to July 2009 injury). Plaintiff’s own writings demonstrate that he was fully capable of 10 presenting an FTCA claim within the time allowed, but failed to do so. Accordingly, even 11 assuming it would otherwise be available, there is no basis for equitable tolling here. 12 Because plaintiff did not file an FTCA administrative claim until September 2012, his 13 claim was untimely and any attempt to cure now would be futile. Therefore, the court lacks 14 subject matter jurisdiction over plaintiff’s FTCA claim and it must be dismissed with prejudice.6 15 b. First Amendment Claim 16 Defendants argue that plaintiff fails to state a First Amendment retaliation claim against 17 either Binford or Salinas. To state a viable First Amendment retaliation claim, a prisoner must 18 allege five elements: “(1) An assertion that a state actor took some adverse action against an 19 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the 20 inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 21 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). The 22 First Amendment protects a prisoner’s right to file prison grievances. Id. at 567. 23 Defendants note that plaintiff’s chief complaint against them is they did not provide him 24 with an accident report. Although plaintiff’s complaint refers to this conduct as “retaliatory,” 25 defendants contend that a fair reading of the complaint does not support plaintiff’s claim that their 26 27 28 6 For that reason, the court need not address defendants’ alternate arguments for dismissal of the FTCA claim. See ECF No. 44 at 4-5 (arguing that the FTCA claim must be dismissed because the Inmate Accident Compensation Act is plaintiff’s exclusive remedy against the United States). 11 1 failure to provide the report was in retaliation for plaintiff’s filing of the grievance requesting the 2 report. Rather, plaintiff alleges in the complaint that defendants would not produce the report on 3 the grounds that his accident was not work-related. See ECF No. 15, § IV, ¶¶ 38-40 (“when I 4 asked for the accident report, Binford and Salinas attempted to change the designation to make it 5 appear I was only working for ‘Safety,’”); ¶¶ 41-42 (“I requested that staff change the erroneous 6 report that stated I was ‘not specifically assigned to the recycling detail,’ . . . [as] they are trying 7 to make it appear that [safety and recycling] are separate departments, since the accident”); ¶¶ 63- 8 64 (“Salinas and Binford have deliberately lied to state that such a report doesn’t need to be filled 9 out under this work assignment situation”); ¶ 65 (“Salinas and Binford lied when they stated that 10 Plaintiff’s work assignment did not include recycling duties”). Indeed, in explaining defendants’ 11 motive for refusing to produce the report as requested in his grievance, plaintiff claims that 12 defendants went “out of their way to obfuscate and confuse the issues,” “deny any 13 accountability,” and “tr[ied] to block [his] efforts, claiming that the injury was not work related 14 . . . .” Id. § IV, ¶ 28. These allegations suggest, at most, that Binford and Salinas were 15 attempting to defeat plaintiff’s grievance, not that they were retaliating against him for having 16 filed it. 17 Plaintiff’s arguments in opposition to defendants’ motion only support defendants’ 18 reading of the complaint. Plaintiff asserts that defendants responded to his grievance with the 19 following statement: 20 21 22 Please be advised that there’s no BP-140 Form (accident report) for the injury sustained. It has been determined you were working outside of your job you were assigned according to the BP-169 (A&O job description forms). You are to do only the job assigned and trained for. The safety department has not authorized you to work on recycling equipment or in recycling detail. 23 24 ECF No. 49 at 12. Plaintiff argues that “it is evident from what [he] observed” that defendants 25 actions were “retaliatory,” given their “failure to provide accident reports” and “clear appearance 26 of vindictiveness.” ECF No. 55 at 4. He further asserts that defendants’ failure to provide an 27 accident report was done to “hid[e] their inappropriate action” and violated the First Amendment 28 because “witnesses and the Plaintiff were never allowed to tell their stories and accounts.” ECF 12 1 No. 51 at 11. Plaintiff also maintains that an accident report should have been issued and that 2 defendants “willfull[y] conceal[ed] [] reports” and “with[eld] evidence.” ECF No. 49 at 7-8. 3 Plaintiff confuses alleged improper handling of a complaint with acts of reprisal for 4 having filed it. None of plaintiff’s contentions lend support to a viable claim of retaliation. 5 Rather, they suggest that defendants did not want to be held responsible for plaintiff’s accident, 6 refused to classify it as work related, and on that basis, refused to produce a report. The 7 allegations, if taken as true, fail to establish that defendants took any adverse action against 8 plaintiff because he engaged in protected conduct through the prison’s grievance process. 9 Accordingly, plaintiff fails to state a plausible First Amendment retaliation claim (and conspiracy 10 11 to retaliate claim). Plaintiff was previously informed of the requirements for stating a First Amendment 12 retaliation claim. See ECF No. 11 at 8. He makes no showing through his opposition that the 13 deficiencies in his retaliation claim could be cured by further amendment. Accordingly, the claim 14 should be dismissed without further leave to amend. See Silva v. Di Vittorio, 658 F.3d 1090, 15 1105 (9th Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it 16 is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 17 (internal quotation marks omitted)); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (“[A] 18 district court should grant leave to amend even if no request to amend the pleading was made, 19 unless it determines that the pleading could not be cured by the allegation of other facts.”). 20 c. Eighth Amendment Claim 21 Plaintiff also claims that defendants Binford, Salinas, and Fieber violated his Eighth 22 Amendment rights by “requiring him to work in conditions that were likely to cause serious 23 injury and . . . were deliberately indifferent to a serious known risk, after [a] previous injury [had] 24 recently occurred in the same work area.” ECF No. 15, § V, ¶ 1. Defendants argue that plaintiff 25 has not alleged sufficient facts to make out an Eighth Amendment violation. 26 It is important to differentiate a common law personal injury tort claim for negligence 27 from an Eighth Amendment claim of cruel and unusual punishment. “[O]nly those deprivations 28 denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis 13 1 of an Eighth Amendment violation.” Wilson v. Seiter, 501U.S. 294, 298 (1991) (internal citations 2 omitted). A prison official violates the Eighth Amendment’s proscription of cruel and unusual 3 punishment where he or she deprives a prisoner of those necessities with a “sufficiently culpable 4 state of mind.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). A showing of negligence or gross 5 negligence is not sufficient. Id. at 835-36; Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 6 1990). Rather, a prisoner must show that the defendant acted with “deliberate indifference” to his 7 health or safety. Farmer, 511 U.S. at 834. To do so, the prisoner must establish that the 8 defendant knew of and disregarded an excessive risk to his health or safety. Id. at 837, 842 9 (knowledge can be inferred from the obviousness of the risk). A prison official may thus be free 10 from liability if he or she did not know of the risk or took reasonable action in response to the 11 risk. Id. at 844. 12 Here, plaintiff’s allegations as to his working conditions do not establish that any 13 defendant knowingly disregarded an excessive risk to plaintiff’s safety. He plainly alleges that he 14 fell while working and was seriously injured. However, it is not at all clear from the complaint 15 exactly what caused plaintiff to fall, i.e., a loss of balance, faulty equipment, etc. The vague 16 allegation that another prisoner broke his arm “while assisting with the same task 6 months 17 previous,” is not enough to demonstrate that the working conditions themselves posed an 18 excessive safety risk, that the defendants knew of that risk, and that they knowingly disregarded 19 it. ECF No. 15, § IV, ¶ 10. Nor does the allegation demonstrate that Binford, Salinas, or Fieber 20 were aware of the previous accident. In fact, plaintiff alleges that “[n]o accident report was filed” 21 with respect to the prior accident. Id., § IV, ¶ 58. 22 Moreover, plaintiff does not allege that any of the named defendants intended the accident 23 or were otherwise directly responsible for it. Plaintiff claims that neither Binford nor Salinas 24 were at work on the day of the accident, and that neither learned of the accident until two days 25 after it happened. Id., § IV, ¶¶ 7, 9. The only allegation that relates to Fieber is that he was told 26 “immediately prior to the accident that [plaintiff] was in danger of falling and refused to act.” Id., 27 § IV, ¶ 10. Plaintiff implies that Fieber could have and should have prevented him from falling, 28 ///// 14 1 but provides no facts to support such an allegation. At best, plaintiff alleges that someone told 2 Fieber that he might fall, and Fieber failed to act when he could have. 3 For these reasons, plaintiff does not sufficiently allege that his working conditions posed 4 an excessive risk to his safety, or that any defendant knowingly disregarded that risk. At worst, 5 plaintiff’s allegations suggest that defendants were negligent. Negligence, however, is 6 insufficient to support an Eighth Amendment claim. See O’Neal v. Eu, 866 F.2d 314, 314 (9th 7 Cir. 1989) (per curiam); see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (allegedly unlawful 8 action “must involve more than ordinary lack of due care for the prisoner’s interests or safety.”). 9 Therefore, defendants’ motion to dismiss the Eighth Amendment claim must be granted. 10 Additional allegations included in plaintiff’s opposition to defendants’ motion to dismiss 11 raise the question of whether the deficiencies in plaintiff’s claim could be cured by further 12 amendment. First, plaintiff more clearly explains the cause of his fall. See, e.g., ECF No. 49 at 13 13-14 (explaining that his job was to bail cans from the recycle bins into the crusher, that to 14 completely remove all of the cans it was necessary for him to step into the bin to shovel them out, 15 and that while performing this task, the “crudely made” bin, constructed of plywood, tipped, 16 causing him to be thrown from the bin to the asphalt below). He also explains why the process of 17 bailing cans from the recycling bins was dangerous. See, e.g., id. at 11 (alleging that instead of 18 using the proper metal recycling bins, Salinas and Binford fabricated “makeshift” bins out of used 19 wood pallets); ECF No. 51 at 2 (alleging that the previously injured inmate “was doing the same 20 job, using the same process, using the ill-made wood boxes, when he had the same accident that 21 shattered his elbow and upper arm”). In addition, plaintiff alleges new facts suggesting that 22 defendants Salinas, Binford, and Fieber were aware of the dangerous working conditions, but 23 disregarded the known safety risks and ordered plaintiff to continue working. ECF No. 51 at 2 24 (alleging that Fieber and “recycling staff” chose to “hide” the prior accident); id. (alleging that 25 Salinas and Binford had issued a “standing order” for plaintiff to do his job); id. at 4 (alleging that 26 “[a]ll Defendants had prior knowledge of the dangerous hazardous work recycling process”); id. 27 at 2 & ECF No. 49 at 8, 84 (alleging that Fieber, who knew of the “makeshift” process, had been 28 warned that plaintiff’s attempt to empty the cans from the bin “looked . . . like an accident waiting 15 1 to happen, and [that] another inmate had broke[n] his arm doing the same job a few months 2 previous”). In light of these additional allegations, which are not in the current complaint, 3 whether plaintiff will be able to amend his complaint to properly state an Eighth Amendment 4 Bivens claim is a close enough question that he should be granted leave to amend his Eighth 5 Amendment claim against defendants Salinas, Binford, and Fieber. 6 Order and Recommendation 7 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions to amend and to compel 8 (ECF Nos. 41, 52) are denied, and his request to supplement his opposition defendants’ motion to 9 dismiss (EF No. 56) is granted. 10 Further, IT IS HEREBY RECOMMENDED that: 11 1. Defendants’ motion to dismiss (ECF No. 44) be granted; 12 2. Plaintiff’s FTCA and First Amendment claims be dismissed without leave to amend, 13 and with prejudice; 14 3. Plaintiff’s Eighth Amendment claim against defendants Salinas, Binford, and Fieber 15 be dismissed with leave to amend; 16 4. Plaintiff be granted leave to file a third amended complaint, consistent with these 17 findings and recommendations and limited to an Eighth Amendment claim against 18 defendants Salinas, Binford, and Fieber, within thirty days of the filing date of any 19 order adopting these recommendations. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 25 ///// 26 ///// 27 ///// 28 ///// 16 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: September 4, 2014. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17

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