James v. United States Marshals Service Agents et al

Filing 18

ORDER (1) Dismissing Civil Action For Failing To State A Claim And (2) Denying Motion To Proceed In Forma Pauperis (Dkt # 9 ): The Court grants forty-five (45) days leave in which to file an Amended Complaint. If Plaintiff fails to file an Amended Complaint, the Court will enter a final Order dismissing this civil action. Signed by Judge William Q. Hayes on 8/8/2017. (All non-registered users served via U.S. Mail Service.) (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KYLE JAMES,
CDCR #AL-1830,

Case No.: 17-cv-0414-WQH-BLM

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v.

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1) DISMISSING CIVIL ACTION
FOR FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §
1915A(b)(1)

Plaintiff,

UNITED STATES MARSHALS
SERVICE AGENTS, et al.

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AND

Defendants.

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2) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS MOOT [ECF Doc. No. 9]

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Kyle James (“Plaintiff”), currently housed at the California Men’s Colony located

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in San Luis Obispo, California, and proceeding pro se, filed this action pursuant to 42

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U.S.C. § 1983 and the Federal Tort Claims Act (“FTCA”). (ECF No. 1). Plaintiff did not

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prepay the civil filing fees required by 28 U.S.C. § 1914(a) at the time of filing; instead he

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has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)

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(ECF No. 9).

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I.

Sua Sponte Screening Pursuant to 28 U.S.C. § 1915A(b)

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The Court may conduct a sua sponte review of Plaintiff’s pleading because he was

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“incarcerated or detained in any facility [and] is accused of, sentenced for, or adjudicated
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delinquent for, violations of criminal law or the terms or conditions of parole, probation,

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pretrial release, or diversionary program” at the time he filed this action. See 28 U.S.C.

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§ 1915A(a), (c).

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Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of

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prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state

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a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson,

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135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

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“The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need

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not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

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2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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2012)).

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A.

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As an initial matter, the Court takes judicial notice that Plaintiff filed similar claims

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in an action filed in 2014. A court “‘may take notice of proceedings in other courts, both

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within and without the federal judicial system, if those proceedings have a direct relation

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to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting

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Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).

Previous action

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Here, Plaintiff filed nearly identical claims against the same Defendants in James v.

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Unnamed Defendants, et al., S.D. Cal. Civil Case No. 3:14-cv-02936-WQH-JMA (“James

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I”). In the First Amended Complaint filed in James I, Plaintiff claimed that United States

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Deputy Marshals “maliciously” slandered him “by lying to everyone I’ve ever known and

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associated with that I am a violent child rapist capable of murder.” (James I, ECF No. 3,

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at 3.) Plaintiff also alleged that a prosecutor with the United States Attorney’s Office

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“maliciously turned over jurisdiction” of his criminal matter involving a robbery to the San

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Diego County District Attorney’s Office in order to give Plaintiff a “life sentence” instead

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of the ten to fifteen years he would have faced under federal criminal sentencing. (Id. at

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4.)

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In James I, the Court granted Plaintiff’s Motion to Proceed IFP but simultaneously
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dismissed his amended complaint on the grounds that he had failed to state a claim upon

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which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1).

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(James I, ECF No. 4 at 7-8.) Specifically, to the extent that Plaintiff alleged actions on the

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part of the defendants that influenced his ongoing criminal proceedings, the Court found

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that his claims amounted to “an attack on the validity of his underlying criminal

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proceeding, and as such, are not addressable under 42 U.S.C. § 1983, unless he alleges and

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can ultimately show that conviction has already been invalidated.” Id. at 4. Plaintiff’s

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claims were dismissed for failing to state a claim “without prejudice to Plaintiff’s right to

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file a new action if he succeeds in invalidating his conviction.” Id. at 5 (citing Edwards v.

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Balisok, 520 U.S. 641, 649 (1997)).

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In addition, the Court found that Plaintiff’s claims, while brought pursuant to 42

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U.S.C. § 1983, in fact arose under Bivens v. Six Unknown Named Agents of the Federal

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Bureau of Narcotics, 403 U.S. 388 (1971). (James I, ECF No. 4 at 5-6). The Court

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dismissed some of the named defendants because they were federal agencies and Bivens

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does not authorize a suit against the government or its agencies for monetary relief. Id. at

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6 (citing FDIC v. Meyer, 510 U.S. 471, 486 (1994)).

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Plaintiff was granted forty five (45) days to file an amended pleading in order to

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correct the deficiencies identified in the Court’s Order. Id. at 8. However, Plaintiff failed

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to do so and therefore, on April 22, 2015 the Court dismissed the entire action without

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prejudice for failing to comply with a Court Order and for the reasons set forth in the

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Court’s January 15, 2015 Order. (James I, ECF No. 8.) Judgment was entered the

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following day on April 23, 2015. (James I, ECF No. 9.)

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B.

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Plaintiff filed this current action on February 24, 2017 (“James II”). (ECF No. 1.)

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Plaintiff purports to bring this action pursuant to “5 U.S.C. § 702, Federal Question

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Jurisdiction and 42 U.S.C. § 1983 and F.T.C.A and Pendent Jurisdiction 28 U.S.C. § 1367.”

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(Id. at 1.)

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Current litigation

1.

Factual allegations
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Plaintiff claims that he was on federal probation in 2013 when he “absconded Dec

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2013 - March 17, 2014 with an active Federal warrant giving the United States Marshals

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Service (“USMS”) jurisdiction” over him. Id. Plaintiff claims that in March of 2014, the

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USMS “worked with the San Diego Sheriff’s Dep’t as part of the Regional Fugitive Task

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Force.” Id. at 2. Plaintiff claims that he was charged with crimes that were “unfounded

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and unsupported by evidence” and some of these charges were dismissed in September of

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2016 while Plaintiff was convicted of bank robbery. Id. Plaintiff alleges that five unnamed

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USMS Deputies, along with USMS Deputy Brown and USMS Deputy Laney “acted

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maliciously” and “slandered” Plaintiff in March of 2014. Id. at 7. Plaintiff claims that they

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lied to his “friends, family, and associates” by claiming that Plaintiff had “raped a little

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girl.” (Id.) As a result of these actions, Plaintiff alleges he was the “target for serious harm

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and injury to the point of death.” (Id.) Plaintiff also alleges that “due to the actions and

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misconduct of the ‘Marshals,’ people to this day think/believe that the lies the Marshals

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told are true putting the Plaintiff’s life at risk in the future.” (Id. at 7-8.)

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2.

Bivens and 42 U.S.C. § 1983

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As the Court informed Plaintiff in the James I matter, because he is naming federal

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officials as Defendants, his claims of constitutional violations arise under Bivens rather

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than 42 U.S.C. § 1983. Bivens established that “compensable injury to a constitutionally

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protected interest [by federal officials alleged to have acted under color of federal law]

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could be vindicated by a suit for damages invoking the general federal question jurisdiction

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of the federal courts [pursuant to 28 U.S.C. § 1331].” Butz v. Economou, 438 U.S. 478,

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486 (1978); Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir.

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2000) (under Bivens, “federal courts have the inherent authority to award damages against

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

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To state a claim under Bivens, Plaintiff must allege that a person acting under color

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of federal law deprived him of his constitutional rights. See Serra v. Lappin, 600 F.3d

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1191, 1200 (9th Cir. 2010). Thus, the Ninth Circuit considers “[a]ctions under § 1983 and

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those under Bivens [as] identical save for the replacement of a state actor under § 1983 by
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a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991);

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Hartman v. Moore, 547 U.S. 250, 254, 254 n.2 (2006) (a suit brought pursuant to Bivens is

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the “federal analogue” to § 1983).

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3.

Eighth Amendment claims

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Plaintiff claims that his “life is at risk in the future” due to the fact that the USMS

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Deputies have labeled him a child molester. (ECF No. 1 at 8). Plaintiff refers to this claim

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as a “deliberate indifference to safety claim” and thus, the Court will construe this claim as

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arising under the Eighth Amendment as Plaintiff is currently incarcerated. Plaintiff also

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purports to bring an Eighth Amendment “cruel and unusual punishment” claim based on

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the “malicious and sadistic actions of the U.S. Marshals in 2014 March lying telling my

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entire community that I was a child rapist.” Id. at 13. Plaintiff alleges that the statements

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by the Defendants “amounted to cruel and unusual punishment” and were “such a severe

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threat” that Plaintiff “ended up in prison for 38 years to life for 2 bank Robberies.” Id.

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Plaintiff contends that the threat created by Defendants’ statements “pushed [him] into

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robbing a bank because I felt I had no other option and that I had to . . . survive the ‘wildfire’

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the Marshals spread.” Id.

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The Eighth Amendment prohibits cruel and unusual punishment of a person

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convicted of a crime. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000) (citing U.S.

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Const. amend. VIII). “After incarceration, only the unnecessary and wanton infliction of

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pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”

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Ingraham v. Wright, 430 U.S. 651, 670 (1977) (citations omitted).

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The Eighth Amendment requires that prison officials take reasonable measures to

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guarantee the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832–

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33 (1994); Johnson, 217 F.3d at 731. To state an Eighth Amendment failure to protect

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claim, Plaintiff must allege facts sufficient to plausibly show that (1) he faced conditions

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posing a “substantial risk of serious harm” to his health or safety, and (2) the individual

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prison officials he seeks to hold liable were “deliberately indifferent” to those risks.

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Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). To
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demonstrate deliberate indifference, Plaintiff must show that the defendant both knew of

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and disregarded a substantial risk of serious harm to his health and safety. Farmer, 511

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U.S. at 837. Thus, Plaintiff must allege “the official [was] both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exist[ed], and

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[that] he . . . also dr[e]w that inference.” Id.

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There are no facts from which the Court could conclude that Defendants acted with

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“deliberate indifference” to a serious risk of harm to Plaintiff. Plaintiff’s allegations are

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broad, vague, and fail to identify how any inmate he is currently incarcerated with is aware

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of the comments allegedly made by Defendants. Instead, Plaintiff claims defamation and

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injuries to his reputation with his friends, family, and community, which is not a federally

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protected right.

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publication, however seriously it may have harmed someone’s reputation, did not deprive

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him of any liberty or property interest protected by the Due Process Clause). Further,

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Plaintiff fails to allege sufficient facts to establish that the alleged statements by Defendants

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made prior to Plaintiff’s conviction for robbery and current incarceration constitute cruel

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and unusual punishment prohibited by the Eighth Amendment. For these reasons, the

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Court finds Plaintiff’s Eighth Amendment claims must be dismissed for failing to state a

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claim pursuant to 28 U.S.C. § 1915A(b)(1).

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4.

See Paul v. Davis, 424 U.S. 785, 708-712 (1976) (a defamatory

FTCA claims

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Plaintiff also purports to bring claims under the FTCA alleging defamation, slander,

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negligence and intentional infliction of mental or emotional distress. (ECF No. 1 at 9-12).

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The FTCA provides a remedy “for injury or loss of property or personal injury or death

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caused by the negligent or wrongful act or omission” of a federal employee. 28 U.S.C. §

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2672. However, the FTCA provides that the exclusive remedy for torts committed by

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federal employees is a suit against the United States. 28 U.S.C. § 2679(b)(1). While

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Plaintiff did name the United States as a Defendant, he also named the United States

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Marshal Service, which is an agency of the federal government. (ECF No. 1 at 1, 4.) The

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sole permissible Defendant in a claim under the FTCA is the United States and thus, the
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Court DISMISSES any FTCA claims against the United States Marshals Service and

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individual defendants. See 28 U.S.C. §§ 1346(b), 2679(a); Allen v. Veterans Admin., 749

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F.2d 1386, 1388 (9th Cir. 1984).

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To the extent that Plaintiff seeks to pursue claims of defamation and slander against

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the United States under the FTCA, these claims must be dismissed. The FTCA does not

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waive sovereign immunity as to claims arising out of “libel, slander, misrepresentation,

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deceit and interference with contract rights.” 28 U.S.C. § 2680(h). The Court lacks subject

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matter jurisdiction to hear these claims and thus, these claims are DISMISSED without

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leave to amend as amendment would be futile.

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Plaintiff also brings a negligence and an intentional infliction of emotional distress

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(“IIED”) claim arising from the same set of facts he attributes to his defamation and slander

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causes of action. (ECF No. 1 at 9-12). “In determining whether a claim ‘arises out of’ one

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of the enumerated torts, we look beyond a plaintiff’s classification of the cause of action

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to examine whether the conduct upon which the claim is based constitutes one of the torts

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listed in § 2680(h).” Sabow v. U.S., 93 F.3d 1445, 1456 (9th Cir. 1996).

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As to Plaintiff’s IIED claim, he alleges that Defendants lied “to the entire community

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convincing people I was a child rapist.” (ECF No. 1 at 9.) As for Plaintiff’s negligence

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claim, he claims that Defendants told “lies” that he had “allegedly raped a little girl” and

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they “convince[ed] the public that I was a ‘child rapist.’” Id. at 11. These facts upon which

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these claims are based arise from the same set of facts that Plaintiff seeks to pursue in his

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defamation and slander claims which are barred under the FTCA. See 28 U.S.C. § 2680(h).

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Accordingly, because Plaintiff’s negligence and IIED claims arise from the alleged

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defamation and slander claims, these claims are also barred by § 2680(h). Thomas-Lazear

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v. Federal Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir. 1988).
Thus, the Court DISMISSES all of Plaintiff’s claims brought pursuant to the FTCA

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for failing to state a claim upon which relief may be granted.

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III.

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Conclusion and Order
For the reasons explained, the Court:
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(1) DISMISSES Plaintiff’s Complaint for failing to state a claim upon which relief

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may be granted pursuant to 28 U.S.C. § 1915A(b), and GRANTS him forty-five (45) days

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leave from the date of this Order in which to file an Amended Complaint which cures all

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the deficiencies of pleading noted. Plaintiff’s Amended Complaint must be complete by

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itself without reference to his original pleading. Defendants not named and any claim not

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re-alleged in his Amended Complaint will be considered waived. See S.D. CAL. CIVLR

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15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

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1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are

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not re-alleged in an amended pleading may be “considered waived if not repled.”).

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If Plaintiff fails to file an Amended Complaint within the time provided, the Court

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will enter a final Order dismissing this civil action based both on Plaintiff’s failure to state

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a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

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1915A(b), and his failure to prosecute in compliance with a court order requiring

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amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does

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not take advantage of the opportunity to fix his complaint, a district court may convert the

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dismissal of the complaint into dismissal of the entire action.”).

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(2)

DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 9) as moot and

without prejudice to be re-opened if Plaintiff files an amended pleading.
Dated: August 8, 2017

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