Opinion
Case No. 5:18-cv-00506-JFW-KES
04-10-2019
MICHAEL FIORITO, Plaintiff, v. DR. ANDERSON, et al., Defendants.
AMENDED REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Amended Report and Recommendation ("R&R") is submitted to the Honorable John F. Walter, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I.
INTRODUCTION
Michael Fiorito ("Plaintiff"), an inmate in the custody of the federal Bureau of Prisons ("BOP"), filed this pro se civil rights action alleging inadequate medical care and retaliation. This Amended R&R recommends dismissing some of Plaintiff's claims without leave to amend because he has failed to cure defects previously identified by the Magistrate Judge. The Amended R&R recommends that this action be allowed to proceed as to Plaintiff's other claims.
An initial R&R recommending a similar result was issued on March 19, 2019. (Dkt. 32-1.) Plaintiff timely filed objections to that R&R and requested leave to submit additional documents showing that he satisfied the pre-suit administrative exhaustion requirements of the Federal Tort Claims Act ("FTCA"). This Amended R&R addresses Plaintiff's objections.
II.
BACKGROUND
Plaintiff's initial complaint, filed in March 2018, alleged an ongoing denial of medical care by Defendants in three different states at three different BOP facilities. (Dkt. 1.) The Court severed the claims against the non-California Defendants and transferred them to the appropriate courts in West Virginia and Kentucky. (Dkt. 16, 17, 21.)
After Plaintiff filed a First Amended Complaint ("FAC" at Dkt. 26), the Court screened it under the Prison Litigation Reform Act ("PLRA") and dismissed it with leave to amend, finding as follows:
• The FAC stated claims against Defendants Peikar, Hoang, Coleman, Bueno, Poyner, Warden Entzel, and John/Jane Does who acted as sick call gatekeepers ("Doe Gatekeepers") for deliberate indifference under the Eighth Amendment and retaliation under the First Amendment. (Dkt. 27 at 6-7, 9-10.)
• The FAC stated a claim for conspiracy under Bivens. (Id. at 8-9.)
• The FAC failed to state a claim against Defendants Sylvester, Sousa, and Raygosa because, although listed in the caption, they were largely not
mentioned in the rest of the FAC. (Id. at 4.)The Court instructed Plaintiff to (1) file a Second Amended Complaint ("SAC"), (2) voluntarily dismiss the claims found to be insufficient, or (3) "re-file the FAC without any change or file a brief memorandum of law ... explaining why Plaintiff believes none of the claims therein should be dismissed." (Id. at 14.) The Magistrate Judge noted that, if Plaintiff chose the third option, "the Magistrate Judge may recommend that the District Judge dismiss the claims listed above with prejudice and/or without leave to amend." (Id.)
• The FAC failed to state a claim against John/Jane Does who responded to grievances filed by Plaintiff ("Doe Grievance Reviewers") because the FAC failed to allege sufficient personal involvement in the denial of medical care. (Id. at 5-6.)
• The FAC failed to state a claim for conspiracy under 42 U.S.C. § 1985 or California law. (Id. at 7-9.)
• The FAC failed to state a claim under California common law or the California Bane Act because such claims, when brought against federal employees like Defendants, are governed by the Federal Tort Claims Act ("FTCA") and the FAC failed to allege compliance with the FTCA's pre-suit notice requirements. (Id. at 11-13.) Additionally, negligent infliction of emotional distress and retaliation are not torts recognized by California law. (Id. at 11.)
• The FAC failed to state a claim under California Government Code section 845.6 because, when brought against federal employees like Defendants, this claim is governed the FTCA, and the FTCA does not waive sovereign immunity for such claims. (Id. at 13.)
Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff filed an SAC. (Dkt. 27.) Plaintiff voluntarily dismissed: (a) the claims against Defendants Sylvester, Sousa, and Raygosa, (b) any claim for civil conspiracy under 42 U.S.C. § 1985, and (c) the claims under California Government Code section 845.6. Plaintiff argues, however, that the remaining claims dismissed in the Court's prior order are sufficient as pled in the FAC. (SAC at 15-17.) For the reasons explained below, it is recommended that Plaintiff's claims for Eighth Amendment violations against Doe Defendants who reviewed his grievances, for negligent infliction of emotional distress, and for common law retaliation be dismissed without leave to amend, but that Plaintiff's other claims be allowed to proceed.
III.
LEGAL STANDARD
The PLRA requires the Court to screen a prisoner's pro se civil rights complaint before ordering service on the defendants, to determine whether the action is frivolous or malicious, fails to state a claim on which relief might be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A.
A complaint may fail to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). In determining whether a complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Further, where the plaintiff is appearing pro se, the court must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, the liberal pleading standard only applies to a plaintiff's factual allegations. "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). "To avoid dismissal, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
Federal Rule of Civil Procedure 15(a) provides, "The court should freely give leave [to amend pleadings] when justice so requires." The Ninth Circuit "considers the following five factors to assess whether to grant leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015). "Absent prejudice, or a strong showing of any of the remaining ... factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). The Ninth Circuit has further instructed that "[l]eave to amend ... should be granted more liberally to pro se plaintiffs." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).
IV.
DISCUSSION
A. Eighth Amendment Claims against Doe Grievance Reviewers.
The Court's prior screening order found that Plaintiff's allegations against these Doe Defendants were insufficient because reviewing a grievance, alone, is insufficient to impose liability on these Defendants. (Dkt. 27 at 5-6.) Plaintiff argues that precedent "clearly allows such 'Doe' defendants to be named and maintained in such a case...." (Id. at 16.) He cites district court cases that he states support his position. See Stevenson v. Beard, 16-03079, 2018 U.S. Dist. LEXIS 70639 at *25, 2018 WL 1963674 at *9 (S.D. Cal. Apr. 26, 2018) ("Presumably, reviewers at each level of appeal conduct personal reviews of the appeals before drafting a letter either granting or rejecting the appeal. This personal review of the appeal amounts to personal participation in the Plaintiff's alleged constitutional injury....").
Plaintiff also cites Hernandez v. Cate, 918 F. Supp. 2d 987 (C.D. Cal. 2013), but that case held in relevant part, "Ruling against a prisoner on an administrative complaint does not cause or contribute to [a section 1983] violation." Id. at 1010 (quoting George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007)). To the extent the court denied the motion to dismiss claims plausibly suggesting that other defendants "were involved in authorizing or implementing the modified programs at issue," id. at 1018, that holding is inapplicable here because the SAC does not include similar allegations against the Doe Grievance Reviewers.
The Court respectfully disagrees with the reasoning of this case and finds that the weight of authority is against imposing liability solely based on the defendant's review of an administrative grievance. As the Seventh Circuit has reasoned:
[A] brief word about George's claims against the defendants who handled his administrative protests concerning the events covered by the complaint. ... George's argument on the merits is that anyone who knows about a violation of the Constitution, and fails to cure it, has violated the Constitution himself. That proposition ... is not correct. Only persons who cause or participate in the violations are responsible. ... Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation. A guard who stands and watches while another guard beats a prisoner violates the Constitution; a guard who rejects an administrative complaint about a completed act of misconduct does not.George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007). Courts in this circuit generally agree that denying an inmate appeal does not, by itself, lead to liability. See Phillipi v. Patterson, No. 13-01514, 2014 U.S. Dist. LEXIS 105865 at *7, 2014 WL 11774836 at *3 (E.D. Cal. Aug. 1, 2014) (citing George for the proposition that "denial of an inmate appeal ... does not state a cognizable constitutional violation"), aff'd, 599 F. App'x 288 (9th Cir. 2015); Baldhosky v. Hubbard, No. 12-01200, 2018 U.S. Dist. LEXIS 45667 at*8-9, 2018 WL 1392058, at *3 (E.D. Cal. Mar. 20, 2018) (dismissing "claims alleging that individuals who[se] identities are apparently presently unknown reviewed his health care services requests and failed to act in violation of his constitutional rights," citing George, and noting that "denial of a prisoner's administrative requests generally does not cause or contribute to any underlying constitutional violation" unless prison administrators "willfully turn a blind eye to constitutional violations being committed by subordinates"); Thomas v. Matevousian, No. 17-1592, 2018 U.S. Dist. LEXIS 46663 at*9, 2018 WL 1452261 at *4 (E.D. Cal. Mar. 21, 2018) ("Actions in reviewing a prisoner's administrative appeal generally cannot serve as the basis for liability in a section 1983 action.").
Additionally, Plaintiff argues that he "cannot anticipate who the defendants will point the finger at, especially this warden" and the "Court should allow all of the Doe Defendants to remain or in the alternate reserve its opinion on them until the case progresses." (SAC at 16 ¶¶ 78, 80.) He complains that, in another action he filed against prison authorities, he attempted to add the warden's assistant as a defendant in place of the warden—after the warden stated that the assistant was the one who reviewed Plaintiff's grievances—but his motion to amend was denied because "the Court stated too much time had passed and Plaintiff should have uncovered her name earlier." (SAC at 15-16 ¶¶ 74, 75.)
After Defendants have answered the operative pleading in this case, the Court will enter a case management order setting deadlines to, among other things, amend the pleadings. The Court will endeavor to set a deadline that allows Plaintiff time to conduct any necessary discovery regarding his claims. If he uncovers facts that he thinks suggest additional persons should be held liable, he may move to amend the operative complaint to add those persons as defendants. Speculation that Plaintiff may miss the amended pleadings deadline is not grounds for leaving the Doe Grievance Reviewers in the case, because the Court concludes that the simple act of reviewing a grievance (without more) is insufficient to hold these persons liable for constitutional violations under § 1983. If Plaintiff uncovers facts indicating that BOP officials previously identified as Doe Grievance Reviewers had additional involvement in the alleged violations of his constitutional rights (i.e., that they did more than simply deny Plaintiff's grievances), then Plaintiff may seek leave to add them as Defendants. B. State Law Claims.
Plaintiff brings the following claims sounding in state law: conspiracy, medical malpractice, negligent infliction of emotional distress, negligence, retaliation, and claims under the California Bane Act. (SAC at 10, 13-14.) He names both the United States and its employees as Defendants. (SAC at 3-4.)
As noted above in the Background section, the FAC also brought a claim under California Government Code Section 845.6, but Plaintiff voluntarily dismissed this claim after the Court dismissed it without prejudice in the prior screening order. (SAC at 15 ¶ 73.)
1. The claims for negligent infliction of emotional distress and retaliation should be dismissed with prejudice for failure to state a claim.
California does not recognize a separate tort for negligent infliction of emotional distress, although a plaintiff may seek damages for emotional injury caused by a defendant's negligence. See Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088, 1125 (E.D. Cal. 2014); see also Garber v. United States, No. 15-05867-CAS-JPRx, 2017 U.S. Dist. LEXIS 29059 at *12 n.8, 2017 WL 797096 at *6 n.8 (C.D. Cal. Feb. 27, 2017), aff'd, 709 F. App'x 485 (9th Cir. 2018).
To the extent Plaintiff is attempting to bring a state law tort claim for "retaliation," the Court has found no authority (and Plaintiff has provided none) indicating that this is a tort claim separate from Plaintiff's First Amendment retaliation claim. Plaintiff was given an opportunity to amend this claim and has not explained why it should not be dismissed. See generally Roth v. Garcia Marquez, 942 F.2d 617, 628 (9th Cir. 1991) ("courts have discretion to deny leave to amend a complaint for 'futility'").
Accordingly, these claims should be dismissed with prejudice for failure to state a claim.
2. The other state law claims should be allowed to proceed.
Plaintiff brings claims "against the defendants" for "state law claims that mirror the federal claims outlined in this complaint," i.e., "medical malpractice" and "negligence." (SAC at 13 ¶¶ 54-55.) Plaintiff alleges, "As a result of the medical defendants' actions outlined in this complaint[,] the U.S. is guilty of malpractice and negligence." (Id. at 4 ¶ 7.) Plaintiff also alleges that Defendants violated the California Bane Act. (Id. at 14 ¶ 63.)
"The essence of a § 52.1 claim [under the Bane Act] is that the defendant, by the specified improper means (i.e., 'threats, intimidation or coercion'), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law." McFarland v. City of Clovis, 163 F. Supp. 3d 798, 806 (E.D. Cal. 2016) (quotation marks and citation omitted). A Bane Act claim may be based on deliberate indifference to the plaintiff's medical needs. See, e.g., M.H. v. County of Alameda, 90 F. Supp. 3d 889, 896 (N.D. Cal. 2013); Atayde v. Napa State Hosp., No. 16-00398, 2016 WL 4943959, at *7 (E.D. Cal. Sept. 16, 2016).
The prior R&R concluded that these state law claims should be dismissed for failure to comply with the FTCA's pre-suit administrative exhaustion requirements. (Dkt. 32-1 at 9-14.) Plaintiff objected to this finding and filed a "Motion Requesting to Submit Documents in Support of His FTCA Claim...." (Dkt. 34 at 1.) He submits a letter from the BOP, dated November 9, 2017, which cites an administrative claim number and states in relevant part:
This is to acknowledge receipt of your Claim for Damage, Injury, or Death (Standard Form 95) submitted or forwarded to this
office under the provisions of the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, et seq. Your claim is accepted for allegations of personal injury sustained during transfers occurring between September 10, 2015, to September 10, 2017, the date of your claim[;] alleged failure to treat your left ankle and back trauma beginning September 10, 2015, to September 10, 2017, the date of your claim[;] and alleged denial of medical care at FCC Victorville.(Dkt. 34 at 5.)
Your condition of confinement complaints are denied as they are not proper under the FTCA. Please note the Administrative Remedy Program allows for a formal review of an issue relating to any aspect of your confinement and is the proper avenue for your transfer and designation complaints. If you are not satisfied with this determination, you are afforded six months form the post-marked date of this letter to bring suit in the appropriate United States District Court.
This letter indicates that Plaintiff at least attempted to administratively exhaust his claims under the FTCA prior to filing the initial Complaint in March 2018. (Dkt. 1.) His administrative claim also appears to have complained about the same incidents as this action. Based on this letter, it is recommended that these claims be allowed to proceed, at least for purposes of PLRA screening by the Court.
Nothing in this Amended R&R prevents any Defendant who is later served from arguing that Plaintiff failed to properly exhaust his state law claims under the FTCA. --------
V.
RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and accepting this R&R; (2) dismissing the Eighth Amendment claims against the Doe Grievance Reviewers with prejudice and without leave to amend; and (3) dismissing the tort claims for negligent infliction of emotional distress and retaliation with prejudice and without leave to amend.
This action would then proceed on the following claims: (1) the Eighth Amendment claims against Defendants Peikar, Hoang, Coleman, Bueno, Poyner, the Doe Gatekeepers, and Entzel; (2) the civil conspiracy claim under Bivens; (3) the First Amendment retaliation claim against Defendant Entzel; and (4) state law claims for medical malpractice, negligence, and violation of the Bane Act. DATED: April 10, 2019
/s/_________
KAREN E. SCOTT
United States Magistrate Judge