Brown v. Pond et al

Filing 39

OPINION AND ORDER: I GRANT Defendant's Motion to Dismiss 32 .Plaintiff's claims against Defendants Pond and Miller are dismissed with prejudice, and Plaintiff's claims against the United States are dismissed without prejudice. Signed on 3/13/19 by Judge Michael W. Mosman. (dls) Modified on 3/13/2019 (dls).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CURTIS LAMONT BROWN,
No. 3:17-cv-01434-MO
Plaintiff,
OPINION AND ORDER
V.

J. POND, D. MILLER, and THE UNITED
STATES OF AMERICA,
Defendants.

MOSMAN,J.,
This case comes before me on Defendants' Motion to Dismiss [32]. For the following
reasons, I GRANT the Motion to Dismiss. Plaintiff's claims against Defendants Pond and Miller
are dismissed with prejudice, and Plaintiff's claims against the United States are dismissed
without prejudice.
BACKGROUND
Plaintiff Cmiis Lamont Brown is cunently incarcerated in the custody of the United
States and located at the Federal Correctional Institution, Sheridan ("FCI Sheridan"). Brown has

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filed a Bivens action against Defendants Darrell Miller, a co1Tections officer at FCI Sheridan,
Jennifer Pond, a certified nursing assistant at FCI Sheridan, in their individual capacities. Brown
has also filed claims against the United States as the employer of Pond and Miller. Brown
alleges that over several years Pond misdiagnosed his eye disease, resulting in pain and the
eventual loss of his eye.
Brown also alleges that as Miller was transporting Brown from a hospital visit back to
FCI Sheridan, Miller walked Brown across wet grass when Brown was wearing ankle shackles,
handcuffs, a black-box restraint device on his hands, and slide sandals. As Brown entered the
transport van, he nearly slipped on the steps up. Entering behind Brown, Miller fell and landed
on Brown's shackled wrists. Brown info1med Miller that his wrists hmi, but Miller did not
remove the shackles or black-box during the ride back to FCI Sheridan. Upon returning to FCI
Sheridan, Miller took Brown to receive medical attention for his wrist. Brown alleges that
Miller's fall onto his wrists damaged caiiilage and ligaments, required surgery, and causes him
pain and continued discomfmi.
Brown filed informal and fmmal grievances regarding his eye and Miller's fall onto
Brown's wrists. Brown exhausted his administrative remedies for both injuries, then filed this
suit, which Defendants have moved to dismiss.

LEGAL STANDARD
A motion to dismiss will be granted when, viewing the facts in the light most favorable to
the plaintiff, the complaint fails to state a claim upon which relief may be granted. Bell Atl.

C01p. v. Twombly, 550 U.S. 544, 555-56 (2007). A comi ruling on a Rule 12(b)(6) motion
accepts as true all well-pleaded allegations, but the "[£]actual allegations must be enough to raise
a right to relief above the speculative level." Id., 550 U.S. at 555. "A claim has facial plausibility
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when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
Review of a 12(b)(6) motion is limited to the contents of the complaint. Enesco C01p. v.
Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998). Courts may also "consider 'documents
whose contents are alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the [plaintiffs] pleading."' Northstar Fin. Advisors Inc. v. Schwab
Invs., 779 F.3d 1036, 1043 (9th Cir. 2015).
"Bivens established that compensable injury [by federal officials] to a constitutionally
protected interest could be vindicated by a suit for damages invoking the general federalquestionjurisdiction of the federal courts[.]" Butz v. Economou, 438 U.S. 478, 486 (1978). To
bring a Bivens claim, a plaintiff must allege that the defendants are (1) federal agents, (2) who
violated plaintiffs constitutional rights, (3) while acting under the color of federal
law. See Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388
(1999).

DISCUSSION

Brown brings six claims. The first claim is against Pond for deliberate indifference to
Brown's medical needs in violation of the Eighth Amendment. Brown's second and third claims
are against Miller for use of excessive force and deliberate indifference. Brown brings
negligence and vicarious liability claims against the United States for Miller's decision to walk
Brown across wet grass and for Miller falling on Brown's wrist. Brown also bring claims
against the United States for negligent training and direct liability for not training Miller to walk

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along designated paths when transporting inmates, and a claim for medical negligence for Pond's
misdiagnosis of Brown's eye disease.
I.

Claim 1 - Pond's Deliberate Indifference

42 U.S.C. § 233(a) "grants absolute immunity to Public Health Service (PHS) officers
and employees for actions arising out of the performance of medical or related functions within
the scope of their employment by baITing all actions against them for such conduct." Hui v.

Castaneda, 559 U.S. 799, 806 (2010). "By its terms,§ 233(a) limits recovery for such conduct
to suits against the United States." Id. The immunity provided by§ 233(a) precludes Bivens
actions against individual PHS officers or employees for hmms arising out of constitutional
violations committed while acting within the scope of their office or employment. See id at 81213.
Defendants argue that the language of§ 233(a) of the Public Health Service Act
precludes any liability in a Bivens action for PHS officers sued for "actions arising out of the
perfmmance of medical or related functions within their scope of employment." Mot. to Dismiss
[32] at 10. Hui v. Castaneda, 599 U.S. 799, 805-06 (2010). Because Pond was a PHS officer
acting within the scope of her employment when she treated and diagnosed Brown, she has
absolute immunity from this Bivens action.
Brown alleges that Pond acted outside the scope of her employment, and therefore should
not be eligible for immunity. But this argument fails because if Pond was not a federal agent
acting within the scope of her employment, she is no longer subject to a Bivens claim. For these
reasons, I grant Defendants' Motion to Dismiss on Brown's first claim against Pond.

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II.

Claims 2 and 3 Against Miller

Brown alleges two Eighth Amendment claims against Defendant Miller, both arising
from Miller transporting Brown. In Claim 2, Brown alleges that Miller used excessive force in
double locking his handcuffs. In Claim 3, Brown advances two theories: deliberate indifference
in not removing or adjusting Brown's handcuffs during transport, and deliberate indifference in
walking Brown across wet grass.
A. Claim 2-Miller's Excessive Force in Double Locking Handcuffs
Brown's second claim has two fatal defects. First, Brown has not alleged the s01i of
excessive force courts find to be a violation of the Eighth Amendment. Second, Brown has not
exhausted this claim.
1. Failure to Allege Excessive Force
"[W]henever prison officials stand accused of using excessive physical force in violation
of the [Eighth Amendment], the core judicial inquiry is ... whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously and sadistically to cause hatm."

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). "A plaintiff cannot prove an Eighth Amendment
violation without showing that force was employed 'maliciously and sadistically' for the purpose
of causing harm." Rodriguez v. County of Los Angeles, 891 F.3d 776, 796 (9th Cir. 2018).
Brown alleges that Miller used excessive force in double locking Brown's handcuffs, but
argues that the technique of double locking was excessive, not that the application of the
handcuffs was forceful in any manner. Defendants explain that the double-lock technique is
Federal Bureau of Prisons (BOP) policy, that BOP practice and training is to use double-lock
restraints, and that the BOP form authorizing Brown's transport on the day in question required
BOP staff to use full restraints for the duration of Brown's trip to and from the hospital.

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OPINION AND ORDER

Additionally, Brown has not alleged that the handcuffs were applied "maliciously and
sadistically" or for the purpose of causing hmm. While I do not deny that harm may have been
caused, showing hmm with no allegations of intent fails to meet the required burden. The cases
Brown relies on in making his claim of excessive force all involve situations in which excessive
force was used in the application of handcuffs or steps leading to handcuffing, not the tightness
of the handcuffing itself. Brown did not allege intentional tightening or application of handcuffs
in the manner comis have found to be a violation of the Eighth Amendment.
2. Administrative Exhaustion
Brown has not fully exhausted his administrative remedies on this claim. The Prison
Litigation Reform Act (PLRA) requires prisoners to exhaust all available administrative
remedies on federal claims before bringing them in a lawsuit. See 42 U.S.C. § 1997e(a). Brown
first accused Miller of intentionally tightening the handcuffs in his Response to Defendants'
Motion to Dismiss. Brown has not raised this issue in any of the administrative complaints he
filed with the BOP. One administrative complaint was about the misdiagnosis of Brown's eye,
another was about Miller slipping and falling on Brown's wrists. Because Brown never made a
complaint about the alleged intentional tightening, he has not exhausted his administrative
remedies. Due to the failure to exhaust and the pleading failure, I grant Defendants' Motion to
Dismiss on Brown's second claim.
B. Claim 3 -Miller's Deliberate Indifference in Not Adjusting or Removing
Handcuffs
To show deliberate indifference in violation of the Eighth Amendment, an inmate must
show (1) there was a risk of an "objectively, sufficiently serious hmm," and (2) the official was
subjectively aware and had a "sufficiently culpable state of mind" in denying access to proper

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medical care. Clement v. Gomez, 298 F.3d 898, 904 (9th Cir. 2002) (quoting Wallis v. Baldwin,
70 F.3d 1074, 1076 (9th. Cir. 1995)). In the prison context, the Eighth Amendment's prohibition
on cruel and unusual punishment prevents government officials from acting with deliberate
indifference to a prisoner's health, safety, or serious medical needs. Hope v. Pelzer, 536 U.S.
730, 737-38 (2002); Estelle v. Gamble, 429 U.S. 97, 104 (1976). In some cases, it may be
important to balance the "competing tensions" between "the prisoners' need for medical
attention and the government's need to maintain order and discipline," in determining the prison
officials' subjective intent. Clement, 298 F.3d at 905 n.4.
In Brown's Amended Complaint, he alleges that once his wrists began to hmi on the
drive back to FCI Sheridan, he repeatedly informed Miller of the pain he was in and Miller
ignored his pleas. According to the medial record of the injury, Miller took Brown to receive
medical attention upon returning to FCI Sheridan.
Even viewing the facts alleged in the light most favorable to Brown, he has failed to
allege that Miller denied him access to medical care or that Miller had a culpable state of mind in
doing so. The facts as alleged indicate that Miller got Brown medical attention as quickly as
possible. Brown argues that handcuffing him was excessive and unnecessary because he was
tired, was complying with orders, and posed no safety risk, and not removing the handcuffs was
deliberate indifference. But Brown offers no support for his contention that Miller had the
authority to make this decision. Miller was following BOP protocol in the method in which he
restrained Brown. Because Brown has failed to show that Miller exhibited deliberate
indifference in not adjusting or removing the handcuffs, I grant Defendants' Motion to Dismiss
Brown's third claim as it pertains to not removing or adjusting Brown's handcuffs.
C. Claim 3 -Miller's Deliberate Indifference in Ignoring a Hazardous Condition

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In the Eighth Amendment context, an official may be liable for denying an inmate
humane conditions of confinement only if "the official knows of and disregards an excessive risk
to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Frost v.

Agnos, 152 F.3d 1124, 1128-29 (9th Cir. 1998).
Brown's claim fails to meet the pleading requirements for two reasons. First, walking
across wet grass is not an excessive risk to inmate health or safety. No official should reasonably
expect that walking across wet grass could result in serious hmm to an inmate.
Second, Brown was not injured by the hazard he has complained of in his pleading.
Brown alleges that Miller knew of and disregarded the serious danger posed by the wet grass.
Brown argues that the wet grass was an excessive risk because he had limited mobility as he was
shackled and in sandals. Brown's argument about any danger due to his limited mobility is
ilTelevant, however, as Brown was not injured by falling. Brown was instead injured by Miller
falling as Miller entered the van. Finally, Brown has not alleged that Miller's fall was anything
more than an accident. Miller slipped, accidentally, fell on Brown, and injured Brown's wrist.
Brown has failed to meet the pleading standards for his argument as alleged. Walking
across wet grass does not constitute a substantial risk of serious harm and falling is simply an
accident. Therefore, I find that Brown has not stated a claim upon which relief can be granted,
and I grant Defendants' Motion to Dismiss Brown's third claim as it pe1iains to walking across
wet grass.
III.

Claims 4, 5, & 6- Claims Against the United States

Defendants move for dismissal on all claims against the United States because Brown did
not file his Complaint within the statutorily required period. The Federal Tmi Claims Act

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(FTCA) requires a claimant to initiate any tort claim against the United States within six months
ofreceiving notice of final denial of an administrative agency claim. 28 U.S.C.A. § 2401(b).
Brown filed two administrative claims with the Bureau of Prisons (BOP), one for injury
to his wrists causde by Miller's fall, and one for damage to his eye due to Pond's misdiagnosis.
The claim for Brown's wrist injury was denied on May 18, 2016, and the claim for Brown's eye
was denied on January 5, 2017. Brown filed his Complaint with this Court on September 11,
2017-fifteen months after the denial of his first claim and eight months after the denial of his
second claim. Both claims therefore fall outside of the six-month period required by the FTCA.
Brown believes that he filed more claims than are cmTently available on the record.
Because I find that Brown's cu11'ent complaints against the United States are time ba11'ed, I
GRANT Defendants' Motion to Dismiss as to the claims against the United States, but do so
without prejudice to allow Brown leave to replead. Brown may file an amended complaint
within thirty days of this Order.
CONCLUSION
For the aforementioned reasons, I GRANT Defendant's Motion to Dismiss [32].
Plaintiff's claims against Defendants Pond and Miller are dismissed with prejudice, and
Plaintiff's claims against the United States are dismissed without prejudice.

IT IS SO ORDERED.
DATED this

il day of March, 2019.

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