Beltran v. United States of America et al
Filing
35
Opinion and Order - Defendants' Motion to Dismiss for Failure to State a Claim (Dkt. 29 ) is granted. Beltran's first amended complaint was substantially identical to his original complaint. Accordingly, the Court finds that leave to amend would be futile. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (A district court does not err in denying leave to amend where the amendment would be futile.). Beltran's claims against Warden Marion Feather and Counselors Perez, Mock, Ruiz, and Earhart are dismissed with prejudice. Signed on 6/1/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GEORGE A. BELTRAN,
Plaintiff,
Case No. 3:15-cv-00785-SI
OPINION AND ORDER
v.
UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
FEDERAL SATELLITE PRISON CAMP
AT SHERIDAN, WARDEN MARION
FEATHERS IN THE FEDERAL PRISON
CAMP, in her individual capacity,
COUNSELOR PEREZ, in his individual
capacity, COUNSELOR MOCK, in his
individual capacity, COUNSEL RUIZ, in his
individual capacity, COUNSELOR
EVERHART,1
Defendants.
George A. Beltran, Reg. #29768-298, Sheridan Federal Correctional Institution, P.O. Box 6000,
Sheridan, OR 97378, pro se.
Billy J. Williams, United States Attorney, and Jared Hager, Assistant United States Attorney,
U.S. ATTORNEY’S OFFICE DISTRICT OF OREGON, CIVIL DIVISION, 1000 SW Third Avenue, Suite
600, Portland, Oregon 97204. Of Attorneys for Defendants.
1
As noted in the Court’s November 30, 2015 Opinion and Order, Dkt. 26 at 1, “Warden
Marion Feathers” is Marion Feather; “Counselor Perez” is Efren Perez; “Counselor Mock” is
Robin Mock; and “Counselor Everhart” is Carl Earhart, Jr. “Counselor Ruiz” has not yet been
identified.
PAGE 1 – OPINION AND ORDER
Michael H. Simon, District Judge.
Plaintiff George A. Beltran (“Beltran” or “Plaintiff”), a prisoner at the Satellite Federal
Correctional Institution in Sheridan, Oregon (“Sheridan”), brings suit against Defendants
Warden Marion Feather (“Warden Feather”) and Counselors Perez, Mock, Ruiz, and Earhart
(collectively “Defendants”).2 Beltran brings his claims under 42 U.S.C. § 1983 for alleged
violations of the First, Fourth, Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendments. In his
first amended complaint (“FAC”), Beltran alleges that Defendants’ denied him an extra mattress
for his back pain and punished him for having an unauthorized extra mattress by taking away his
telephone privileges for 30 days and his commissary privileges for 60 days. According to
Beltran, these policies and procedures violate his free speech and due process rights. Beltran
further alleges that Defendants have acted with deliberate indifference toward his medical
requirements in violation of the Eighth Amendment. Beltran requests injunctive relief and
2
The Court does not address Beltran’s renewed claims against the United States, the
Federal Bureau of Prisons, and Sheridan because the Court dismissed these claims with prejudice
in the Court’s November 30, 2015 Opinion and Order, Beltran v. United States, 2015 WL
7722414 (D. Or. Nov. 30, 2015), Dkt. 26, and Beltran has not asked for leave to re-plead these
claims. In any event, Beltran’s invocation of the Federal Tort Claims Act (“FTCA”) does not
cure the defects in his claims against the United States and the federal agencies. The FTCA
waives the sovereign immunity of the United States and its agencies and allows federal district
courts to hear tort actions against the federal government for “injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment.” 28 U.S.C.
§ 1346(b)(1). Beltran does not allege any tort claim, other than an unsupported, conclusory
statement that Defendants are retaliating against him, but rather continues to allege violations of
his constitutional rights, for which the United States has not waived sovereign immunity. See
Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991). Additionally, Beltran does not allege
that he followed the proper administrative procedures to bring a claim under the FTCA as
required by 28 U.S.C. § 2675(a). See McNeil v. United States, 508 U.S. 106, 113 (1993) (“The
FTCA bars claimants from bringing suit in federal court until they have exhausted their
administrative remedies.”).
PAGE 2 – OPINION AND ORDER
monetary damages.3 Defendants move to dismiss the FAC for failure to state a claim or, in the
alternative, for summary judgment for failure to exhaust administrative remedies. For the reasons
stated below, the Court grants Defendants’ motion to dismiss.
STANDARDS
A motion to dismiss for failure to state a claim may be granted only when there is no
cognizable legal theory to support the claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629
F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint
“may not simply recite the elements of a cause of action, but must contain sufficient allegations
of underlying facts to give fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from
the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the
3
Beltran also requests relief permitted under 28 U.S.C. § 2284. This statute provides for
the convening of a panel of three district court judges when required by a congressional act.
§ 2284(a). Beltran argues that he is entitled to such a panel under 18 U.S.C. § 3626 because he
challenges the constitutionality of his prison conditions. Under § 3626, the three judge panel may
issue a prison release order “only if the court finds by clear and convincing evidence that—(i)
crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will
remedy the violation of the Federal right.” § 3626(a)(3)(E). Because Beltran has not alleged
either element required under the statute, he has not stated a claim under 18 U.S.C. § 3626 and is
not entitled to a three-judge panel under 28 U.S.C. § 2284.
PAGE 3 – OPINION AND ORDER
plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678-79 (2009).
A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the
benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Under
Federal Rule of Civil Procedure 8(a)(2), every complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” This standard “does not
require ‘detailed factual allegations,’” but does demand “more than an unadorned, the defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S.
at 555).
BACKGROUND
Beltran is currently serving a 120-month sentence at Sheridan. Beltran bases his
complaint, in part, on events that occurred in April 2015. According to Beltran, prison counselors
searched his cell and confiscated an extra mattress that Beltran had placed on his bed to alleviate
his back pain. Because Beltran had an extra mattress without authorization, prison policy
required Beltran to participate in a Unit Disciplinary Committee (“UDC”) hearing. At the
hearing, prison counselors determined that Beltran had violated internal Code 305 by possessing
“anything not authorized.” Therefore, Beltran lost telephone privileges for 30 days and
commissary privileges for 60 days. Beltran did not file an appeal from the UDC determination.
In May 2015, Plaintiff filed his original complaint. Defendants moved to dismiss for
failure to state a claim and, in the alternative, for summary judgment for failure to exhaust
administrative remedies. On November 30, 2015, the Court granted Defendants’ motion to
dismiss and dismissed Beltran’s claims against the United States, Bureau of Prisons, and
PAGE 4 – OPINION AND ORDER
Sheridan with prejudice. The Court granted Beltran leave to file an amended complaint with
respect to his claims against Warden Feather and Counselors Perez, Mock, Ruiz, and Earhart.
Beltran filed the FAC on January 11, 2016. Defendants again move to dismiss the complaint and,
in the alternative, for summary judgment.
DISCUSSION
The Court construes Beltran’s complaint as alleging claims under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).4 A Bivens claim is “the
federal analog to suits brought against state officials under . . . 42 U.S.C. § 1983.” Hartman v.
Moore, 547 U.S. 250, 254 n.2 (2006). Bivens provides “an implied private action for damages
against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 66 (2001).
A. Claims Against Individual Officers
Defendants argue that all of Beltran’s claims against the remaining individual officers
should be dismissed. Beltran alleges that Defendants violated: (1) his First Amendment rights by
suspending his telephone privileges; (2) his Fourth Amendment rights by searching his bunk;
(3) his Fifth Amendment rights by not conducting a proper UDC hearing; (4) his Sixth
Amendment rights by not giving him a fair UDC hearing; (5) his Seventh Amendment rights by
impeding his right to a fair trial by jury; (6) his Eighth Amendment rights by acting with
deliberate indifference toward his medical needs; and (7) his Fourteenth Amendment rights by
depriving him of due process of law.5
4
Beltran’s objections to the Court’s characterization of his claims as Bivens claims are
unfounded. 42 U.S.C. § 1983 allows for claims against state agents, whereas Bivens allows for
claims against federal agents. Here, Beltran brings claims against federal agents.
5
Beltran also states that Defendants are retaliating against him. He alleges no facts and
advances no arguments about why Defendants are retaliating against him. He also does not
PAGE 5 – OPINION AND ORDER
For the reasons stated in the Court’s previous Opinion and Order, Beltran has failed to
state a claim under the First Amendment. The Court previously analyzed Beltran’s 30-day
telephone suspension under the four factors in Turner v. Safley, 482 U.S. 78, 89-91 (1987). The
Court found that: (1) prison administrators could reasonably have believed that the threat of
restrictions on telephone use serves to deter possession of unauthorized items; (2) Beltran has
alternative means of exercising his right to free speech; (3) the restriction on Beltran’s telephone
use is limited; and (4) Beltran has not met his burden to show that available alternatives are
obvious and easy ways to deter the possession of unauthorized items.
The only new facts that Beltran asserts in relation to his First Amendment claim are that
he communicates with his son more effectively over the telephone than through letters and that
his family lives far from Sheridan. The Court is sympathetic that Beltran’s son benefits from
telephone calls with his father and that Beltran’s family lives too far away to reasonably visit
Sheridan. The Turner test does not require, however, that prison administrators implement the
“least restrictive alternative.” Id. at 90-91. The Supreme Court instructs that “prison
administrators . . . , and not the courts, [are] to make the difficult judgments concerning
institutional operations.” Id. at 89 (alteration in original) (quoting Jones v. N.C. Prisoners’ Labor
Union, Inc., 433 U.S. 119, 128 (1977)). Particularly when a prisoner retains other avenues
through which he may assert his free speech rights, “courts should be particularly conscious of
the ‘measure of judicial deference owed to corrections officials . . . in gauging the validity of the
regulation.’” Id. at 90 (alteration in original) (quoting Pell v. Procunier, 417 U.S. 817, 827
contend that the extra mattress found in his cell was anything other than an unauthorized item for
which Defendants could find him in violation of Code 305. “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Therefore, the Court finds that Beltran has
failed to state a claim for retaliation.
PAGE 6 – OPINION AND ORDER
(1974)). Beltran’s 30-day telephone suspension still allows him to send letters that other
members of his family may read to his son. Additionally, the suspension is limited in duration.
According Defendants the appropriate measure of judicial deference to determine prison
regulations, the Court finds that Beltran’s temporary suspension does not create an unreasonable
restriction on Beltran’s right to free speech.
Additionally, the Court explained in its previous Opinion and Order that Beltran failed to
state a claim under the Fourth, Sixth, and Fourteenth Amendments. Beltran v. United States,
2015 WL 7722414, at *4 (D. Or. Nov. 30, 2015).6 Beltran has not rectified these claims in the
FAC. Beltran has not stated a claim under the Fourth Amendment because he has no expectation
of privacy in his prison cell. Hudson v. Palmer, 468 U.S. 517, 526 (1984). Beltran has not stated
a claim under the Sixth Amendment because the Sixth Amendment applies only to criminal
prosecutions and Beltran has not alleged any facts relating to his criminal prosecution. U.S.
Const. amend. VI. Beltran also has not stated a claim under the Fourteenth Amendment because
the Fourteenth Amendment applies to states, not to the federal government, and Beltran has not
alleged claims against any state government official.
Beltran’s factual assertions in support of his Fifth and Eighth Amendment claims in the
FAC are also materially identical to the claims in his original complaint. For the reasons stated in
the Court’s previous Opinion and Order, these assertions fail to state a claim under both
amendments. Beltran, 2015 WL 7722414, at *6-7.7 In particular, Beltran does not identify “a
protected liberty interest” or an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting
6
Dkt. 26 at 7-8.
7
Dkt. 26 at 12-16.
PAGE 7 – OPINION AND ORDER
Sandin v. Conner, 515 U.S. 472, 484 (1995)). Additionally, Beltran’s allegations that he received
inadequate medical treatment do not implicate the named individual officers, who are not alleged
to have any medical treatment roles at Sheridan. The emails to and from Health Services that
Beltran attaches as exhibits to the FAC also show repeated responses to Beltran’s concerns and
attention to Beltran’s medical needs.8 Beltran asserts that medical staff have not given him the
correct prescriptions for his pain, but “[a] difference of opinion does not amount to a deliberate
indifference to [Beltran’s] serious medical needs.” Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir.
1989).
Finally, Beltran has not stated a claim under the Seventh Amendment. The Seventh
Amendment provides for the right to a trial by jury in certain civil cases. U.S. Const. amend. VII.
The Seventh Amendment is violated when “an individual is not afforded, for any significant
period of time, a jury trial he would otherwise receive.” Armster v. U.S. Dist. Court for the Cent.
Dist. of Cal., 792 F.2d 1423, 1430 (9th Cir. 1986). Beltran has not asserted any facts showing
that Defendants have prevented Beltran from being afforded a civil jury trial. Moreover, for the
reasons discussed above, Beltran has not asserted any facts showing that he is entitled to a civil
jury trial on any of his claims.
B. Claims Against Warden Feather
Defendants move to dismiss Beltran’s claims against all defendants, including Warden
Feather. Beltran’s claims against Warden Feather rest on “[Warden Feather’s] passive or active
participation for the UDC hearing determinations exerted upon the inmate-plaintiff for her role
8
The Court considers these exhibits without converting the motion to dismiss into a
motion for summary judgment pursuant to the standards set forth in United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003).
PAGE 8 – OPINION AND ORDER
and authority to decide upon the medical requests that were made to her.”9 In his response to
Defendants’ motion, Beltran also argues that Warden Feather violated Beltran’s Eighth
Amendment right against cruel and unusual punishment because “she should have known that
the grade of care provided to Beltran for his claims of pain and deliberate indifference were
triggered at the moment that Perez decided to ignore Beltran’s physical condition requiring
adequate medical care.”10 Bivens does not allow for holding a supervisor vicariously liable.
Iqbal, 556 U.S. at 676. To state a Bivens claim against a supervisor, “a plaintiff must plead that
each Government-official defendant, through the official’s own individual actions, has violated
the Constitution.” Id.
Beltran does not assert that he made any complaint or requests for medical care directly
to Warden Feather. Nor does Beltran assert that Warden Feather took any direct action that
infringed his constitutional rights. Beltran argues instead that Warden Feather “should have
known” that he received inadequate medical care and that Warden Feather demonstrated
“deliberate indifference” to his medical needs. If a plaintiff shows “that a supervisor acted, or
failed to act, in a manner that was deliberately indifferent to an inmate’s Eighth Amendment
rights,” then a supervisor may be held liable for his or her involvement in the constitutional
deprivation. Starr, 652 F.3d at 1206-07. The plaintiff must show, however, “a sufficient causal
connection between the supervisor’s wrongful conduct and the constitutional violation.” Id. at
1207 (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989)). As discussed above, Beltran
has failed to state a claim for any constitutional deprivation under the Eighth Amendment.
9
Dkt. 28 at 7.
10
Dkt. 31 at 17.
PAGE 9 – OPINION AND ORDER
Accordingly, he has failed to plead sufficient facts to state a claim for supervisor liability under
Eighth Amendment deliberate indifference jurisprudence.
C. Exhaustion Requirement
Defendants argue that this is one of the rare cases in which the plaintiff’s failure to
exhaust administrative remedies under the Prison Litigation Reform Act (“PLRA”) is clear from
the face of the complaint such that the Court can grant a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“In the rare
event that a failure to exhaust is clear on the face of the complaint, a defendant may move for
dismissal under Rule 12(b)(6)”). In the alternative, Defendants argue that summary judgment is
appropriate. Defendants offer evidence that Beltran did not submit any administrative appeal or
request related to his Code 305 violation or medical care.
The PLRA provides: “No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The Supreme Court has stressed that the PLRA requires “proper
exhaustion” so that the state grievance system receives “a fair opportunity to consider the
grievance.” Woodford v. Ngo, 548 U.S. 81, 95 (2006). Such a fair opportunity does not exist
“unless the grievant complies with the system’s critical procedural rules.” Id. Congress intended
42 U.S.C. § 1997e(a) “to reduce the quantity and improve the quality of prisoner suits . . . . In
some instances, corrective action taken in response to an inmate’s grievance might improve
prison administration and satisfy the inmate, thereby obviating the need for litigation.” Porter v.
Nussle, 534 U.S. 516, 524-25 (2002). Additionally, “the internal review might ‘filter out some
frivolous claims’” and, for those claims brought to court, create “an administrative record that
PAGE 10 – OPINION AND ORDER
clarifies the contours of the controversy.” Id. at 525 (quoting Booth v. Churner, 532 U.S. 731,
737 (2001)).
“Nonexhaustion” is “an affirmative defense” and defendants have the burden of
“prov[ing] that there was an available administrative remedy, and that the prisoner did not
exhaust that available remedy.” Albino, 747 F.3d at 1171-72. A remedy is “available” where it is
“capable of use; at hand.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting
Albino, 747 F.3d at 1171). Grievance procedures that do not allow for all types of relief sought
are still “available” as long as the procedures may afford “some relief.” Booth, 532 U.S. at 738.
If a defendant meets the initial burden, a plaintiff then must “come forward with evidence
showing that there is something in his particular case that made the existing and generally
available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172.
Remedies are “effectively unavailable” where they are “ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile.” Id. (quoting Hilao v. Estate of Marcos, 103 F.3d
767, 778 n.5 (9th Cir. 1996)). “[T]he ultimate burden of proof,” however, never leaves the
defendant. Id.
The Federal Bureau of Prisons (“BOP”) administrative remedy process allows inmates to
file a grievance related to any aspect of confinement. See 28 C.F.R. § 542.10. If an inmate cannot
informally resolve a grievance, the inmate may submit a formal request for a remedy to the
Warden. § 542.14(a). The inmate has 20 days to appeal any decision by the Warden to the
Regional Director. § 542.15(a). The inmate then has 30 days to appeal the Regional Director’s
response to the General Counsel in the Central Office of the BOP. Id. Only after following this
administrative procedure may an inmate file a federal lawsuit. 42 U.S.C. § 1997e(a).
PAGE 11 – OPINION AND ORDER
In the FAC, Beltran contends that his claims are not subject to the PLRA’s exhaustion
requirements, implicitly acknowledging that he failed to exhaust his administrative remedies.11
Additionally, the FAC expressly incorporates the allegations in Beltran’s original complaint.12 In
the original complaint, Beltran stated he could have asked for administrative relief but that such a
request would have been futile.13 He explicitly acknowledges that he chose not to submit a
formal request for an administrative remedy as required by 28 C.F.R. §§ 542.10-542.19 Thus,
although failure to exhaust administrative remedies is an affirmative defense, it is clear from the
face of the FAC that Beltran did not exhaust his administrative remedies as required by the
PLRA.
In his response to Defendants’ motion, Beltran cites case law explaining the futility
doctrine. Beltran does not, however, allege any facts showing that following the required
administrative procedures would have been futile. For example, Beltran does not assert that
prison staff led him to believe a formal grievance was unnecessary or would not be considered in
his case. He does not assert that he had any reason to believe he would have been denied an extra
mattress or phone privileges if he had formally appealed the disciplinary decision. Thus, Beltran
fails to plead sufficient facts showing that exhaustion would have been futile. The Court
dismisses the FAC based on Beltran’s failure to state a claim and failure to exhaust his
administrative remedies, which is clear on the face of the complaint and appropriately addressed
11
Dkt. 28 at 16. Beltran is mistaken when he asserts that his claims are exempted from
the PLRA’s requirements. The Supreme Court has held that the PLRA’s exhaustion requirements
apply to claims for money damages based on constitutional violations. Booth, 532 U.S. at 741.
12
Dkt. 28 at 7.
13
Dkt. 2 at 4.
PAGE 12 – OPINION AND ORDER
through a motion to dismiss. Because the Court dismisses the complaint, the Court does not
address arguments concerning Defendants’ motion for summary judgment.14
CONCLUSION
Defendants’ Motion to Dismiss for Failure to State a Claim (Dkt. 29) is granted. Beltran’s
first amended complaint was substantially identical to his original complaint. Accordingly, the
Court finds that leave to amend would be futile. See DeSoto v. Yellow Freight Sys., Inc., 957
F.2d 655, 658 (9th Cir. 1992) (“A district court does not err in denying leave to amend where the
amendment would be futile.”). Beltran’s claims against Warden Marion Feather and Counselors
Perez, Mock, Ruiz, and Earhart are dismissed with prejudice.
IT IS SO ORDERED.
DATED this 1st day of June, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
14
On May 4, 2016, Beltran filed a motion for default judgment based on his assertion that
he has asked several times that Defendants and their attorney give him access to discovery and
disclose all evidence related to this matter under Federal Rules of Civil Procedure 26. According
to Beltran, he “has been prejudicially ignored.” Dkt. 33 at 5. Because the Court grants
Defendants’ motion to dismiss, the Court denies Beltran’s motion for default judgment (Dkt. 33)
as moot.
PAGE 13 – OPINION AND ORDER
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