Opinion
Case No. EDCV 15-1368 DOC(JC)
09-14-2015
HEZEKIAH BERNARD DRAYTON, Plaintiff, v. UNITED STATES, Defendant.
ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND
I. BACKGROUND AND SUMMARY
On July 8, 2015, plaintiff Hezekiah Bernard Drayton ("plaintiff"), who is currently in custody at the United States Penitentiary at Hazelton, West Virginia ("USP Hazelton") and has been granted leave to proceed in forma pauperis, filed a pro se Civil Rights Complaint ("Complaint") with attached exhibits ("Complaint Exhibits") purportedly raising claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA") against a single defendant, the United States. (Complaint at 1, 4). Very liberally construed, the Complaint appears to seek monetary relief based on the alleged negligence of multiple officials with USP Hazelton and with the United States Penitentiary at Victorville, California ("USP Victorville") where plaintiff was previously housed. (Complaint at 6-8).
Since internal page numbering for the Complaint is inconsistent, for ease of reference the Court cites to the Complaint pages in the order in which they appear, beginning with page one.
Because the Complaint is deficient in multiple respects, including those detailed below, it is dismissed with leave to amend.
II. GOVERNING LEGAL STANDARDS
Federal courts are courts of limited jurisdiction. Kokonnen v. Guardian Life Insurance Co., 511 U.S. 375, 377 (1994). The Court may raise the absence of subject matter jurisdiction sua sponte, and must dismiss an action if it determines at any time that it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (if court determines at any time that it lacks subject matter jurisdiction, it must dismiss action); Steel v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (court bound to ask and answer for itself, whether it has jurisdiction, even when not otherwise suggested); Fiedler v. Clark, 714 F.2d 77, 78 (9th Cir. 1983) (federal court may dismiss sua sponte if jurisdiction lacking).
Further, as plaintiff is a prisoner proceeding in forma pauperis on a civil rights complaint against governmental defendants, the Court must screen the Complaint, and is required to dismiss the case at any time it concludes the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c).
In determining whether a complaint fails to state a viable claim for purposes of screening, the Court applies the same pleading standard from Rule 8 of the Federal Rules of Civil Procedure ("Rule 8") as it would when evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). Under Rule 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require detailed factual allegations, a complaint must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted). "[W]ell-pleaded factual allegations" in a complaint are presumed true, while "[t]hreadbare recitals of the elements of a cause of action" (i.e., legal conclusions) and "legal conclusions couched as a factual allegation" are not. Id. (citation and quotation marks omitted).
Thus, to survive screening, a civil rights complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (citations and quotation marks omitted). A claim is "plausible" when the facts alleged in the complaint would support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. Iqbal, 556 U.S. at 678 (citation omitted). Allegations that are "merely consistent with" a defendant's liability, or reflect only "the mere possibility of misconduct" do not "show[] that the pleader is entitled to relief" (as required by Fed. R. Civ. P. 8(a)(2)), and thus are insufficient to state a claim that is "plausible on its face." Id. at 678-79 (citations and quotation marks omitted).
Pro se complaints in civil rights cases are liberally construed to give plaintiffs "the benefit of any doubt." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citation and internal quotation marks omitted). If a pro se complaint is dismissed for failure to state a claim, the court must "freely grant leave to amend" if it is "at all possible" that the plaintiff could correct pleading deficiencies by alleging different or new facts. Cafasso v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation omitted); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc) (citation omitted).
III. THE COMPLAINT
Liberally construed, the Complaint essentially alleges the following:
On April 22, 2012, while plaintiff was an inmate at USP Victorville, Officer S. Torres escorted plaintiff from a special housing unit to an outside appointment while plaintiff was in "full restraints." (Complaint at 6). Officer Torres failed to have a second officer with him while escorting plaintiff, which was a violation of USP Victorville rules. (Complaint at 6). Operation Lieutenant Patterson identified plaintiff "to leave," but "did nothing about providing a second officer to help [Officer] Torres escort plaintiff." (Complaint at 6). As a result, plaintiff tripped and fell face down on the ground, which caused plaintiff to sustain injuries to his face, shoulders, arms, and neck. (Complaint at 6-7). Thereafter Lieutenant Patterson still did nothing to provide a second officer to help Officer Torres escort plaintiff. (Complaint at 6-7).
In December 2012, Dr. Ross Quinn had plaintiff's neck x-rayed, which revealed a bump on plaintiff's neck. (Complaint at 7). From December 2012 to July 23, 2013, Dr. Quinn failed to provide reasonable care to plaintiff for his neck injury, which aggravated plaintiff's condition, and caused plaintiff to suffer additional pain. (Complaint at 7).
In December 2012, Dr. Angel Ortiz reviewed plaintiff's x-ray with Dr. Quinn, saw the bump on plaintiff's neck, but failed to provide plaintiff with reasonable care for his neck condition. (Complaint at 7). As a result, plaintiff suffered additional pain and injury. (Complaint at 7).
On February 13, 2013, Dr. Jesus Fernandez claimed that he ordered an MRI to evaluate plaintiff's April 22, 2012 spine injury, but as of July 23, 2013, no MRI had been performed. (Complaint at 7). As a result, plaintiff's neck condition was aggravated and plaintiff suffered additional pain. (Complaint at 7).
On July 23, 2013, plaintiff was transferred from USP Victorville to USP Hazelton. (Complaint at 7).
On February 12, 2014, Dr. Chris Vasilakis sent a request to Dr. Gregory S. Mims, III to provide plaintiff with a stronger medication for his pain, and to have plaintiff evaluated for possible spine surgery. (Complaint at 7). As of the date the Complaint was drafted, Dr. Mims had not complied with Dr. Vasilakis' request. (Complaint at 7-8). Dr. Mims failed to provide reasonable care for plaintiff's neck injury. (Complaint at 8). As a result, plaintiff's neck condition was aggravated and plaintiff suffered additional pain. (Complaint at 7-8).
The Complaint alleges that the foregoing violated plaintiff's rights under the FTCA. (Complaint at 6) (citing 28 U.S.C. §§ 1346(b), 2671 et seq.).
IV. DISCUSSION
First, to the extent the Complaint against the United States is predicated on Bivens, it fails to state a claim as a matter of law and must be dismissed. To state a claim for relief under Bivens, a plaintiff must allege that "a federal officer deprived him of his constitutional rights." Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citation omitted). A plaintiff may not maintain a Bivens action against the United States or its agencies. See Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 484-85 (1993). The United States may be sued only to the extent that it has waived sovereign immunity and expressly consented to suit. See id. at 475 (1993); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The United States has not waived sovereign immunity with respect to constitutional claims. Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991).
Second, to the extent the Complaint attempts to state a negligence claim against any of the mentioned individual actors, it likewise fails to state a claim under Bivens as a Bivens action may only be brought against a responsible federal official in his or her individual capacity for money damages predicated on constitutional violations, not negligence. See Serra, 600 F.3d 1191, 1200 (9th Cir. 2010) ("To state a claim for relief under Bivens, a plaintiff must allege that a federal officer deprived him of his constitutional rights.") (citation omitted); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); O'Neal v. Eu, 866 F.2d 314, 314 (9th Cir.) (plaintiff must plead more than merely negligent act by federal official in order to state colorable claim under Bivens), cert. denied, 492 U.S. 909 (1989); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988) ("mere negligence" insufficient to establish constitutional violation) (citation omitted).
Third, to the extent the Complaint asserts an FTCA claim against the United States, it must be dismissed because it fails to allege compliance with the FTCA's jurisdictional administrative exhaustion requirement. A federal court does not have subject matter jurisdiction over an FTCA claim unless the plaintiff first presented the underlying tort claim to the "appropriate Federal agency" and the claim was "finally denied" by the agency. See 28 U.S.C. § 2675(a) (stating same and noting that failure of agency to make final disposition of claim within sixth months after filing may be deemed final denial of claim); McNeil v. United States, 508 U.S. 106, 111-13 (1993) (strictly construing administrative exhaustion requirement in 28 U.S.C. § 2675(a) and holding that FTCA action filed before exhaustion completed could not proceed in district court); Brady v. United States, 211 F.3d 499, 502-03 (9th Cir. 2000) (administrative exhaustion requirement in 28 U.S.C. § 2675(a) is jurisdictional), cert. denied, 531 U.S. 1037 (2000); cf. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632-33 (FTCA statute of limitations contained in 28 U.S.C. § 2401(b) not jurisdictional); see also 28 C.F.R. §§ 543.30-32 (setting forth procedures for presenting FTCA claims to BOP). A plaintiff has the burden to plead and prove compliance with the FTCA administrative claim requirements. See, e.g., Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (administrative claim presentation is jurisdictional prerequisite to bringing of suit under FTCA and as such, should be affirmatively alleged in complaint; district court may dismiss complaint for failure to allege such jurisdictional prerequisite); Bruce v. United States, 621 F.2d 914, 918 (8th Cir. 1980) (district court lacked subject matter jurisdiction over FTCA claim because plaintiff "failed to allege compliance with the [FTCA] administrative claim procedure set forth in 28 U.S.C. [§] 2675"); Franklin v. United States, 2013 WL 2902844, *2 (E.D. Cal. June 13, 2013) (dismissing FTCA claim where pro se plaintiff in BOP custody "failed to allege facts sufficient to satisfy the Court that he [] complied with the exhaustion requirements of the FTCA [under 28 U.S.C. § 2675]"); Connors v. Heywright, 2003 WL 21087886, *4 (S.D.N.Y. May 12, 2003) (dismissing FTCA claim without prejudice where "complaint [did] not allege compliance with the [administrative exhaustion] requirements of the FTCA").
Exhaustion under the FTCA is distinct from exhaustion under the Prison Litigation Reform Act ("PLRA") and exhaustion of a claim under the latter does not constitute exhaustion under the former. See Champion v. Smith, 2012 WL 930858, *2 (E.D. Cal. Mar. 19, 2012) ("[T]he exhaustion requirements under the PLRA and the Federal Tort Claims Act . . . are separate and distinct, and the satisfaction of one does not constitute satisfaction[ ] of the other.") (citations and internal quotation marks omitted); Walker v. United States, 2009 WL 3011626, *4 (E.D. Cal. Sep. 17, 2009) ("[E]xhaustion of FTCA claims is not governed by the PLRA."); Smith v. United States, 2011 WL 4591971, *4 (E.D. Ky. Sept. 30, 2011) ("The FTCA, which concerns both prisoners and non-prisoners, has its own exhaustion process which is completely separate from and independent of the BOP's four-step administrative process . . . . that an inmate must follow to exhaust a Bivens claim."). Here, it appears from the Complaint Exhibits that plaintiff at least attempted to exhaust his claims under the PLRA. However, notwithstanding the fact that one Complaint Exhibit reflects that a BOP official advised plaintiff that "a tort claim" was to be "filed with the Region on Form SF-95," and that such BOP official supplied plaintiff with a copy of such pertinent form, there is no indication that plaintiff completed such form or otherwise exhausted his claims under the FTCA.
V. ORDERS
In light of the foregoing, IT IS HEREBY ORDERED:
1. The Complaint is dismissed with leave to amend. If plaintiff intends to pursue this matter, he shall file a First Amended Complaint within fourteen (14) days of the entry of this Order which cures the pleading defects set forth herein. If, in light of the contents of this Order, plaintiff elects not to proceed with this action, he may expedite matters by signing and returning the attached Notice of Dismissal by the foregoing deadline which will result in the voluntary dismissal of this action without prejudice.
2. Plaintiff is cautioned that, absent further order of the Court, plaintiff's failure timely to file a First Amended Complaint or Notice of Dismissal, may result in the dismissal of this action with or without prejudice on the grounds set forth above and/or for failure diligently to prosecute.
IT IS SO ORDERED. DATED: 09/14/15
/s/_________
HONORABLE DAVID O. CARTER
UNITED STATES DISTRICT JUDGE
Attachment