1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRENCE MACK CARTER, Case No.: 3:20-cv-00525-JAH-AGS Reg. No. 47098-298, 12 ORDER DIRECTING U.S. Plaintiff, 13 MARSHAL TO EFFECT SERVICE v. OF FIRST AMENDED COMPLAINT 14 PURSUANT TO UNITED STATES OF AMERICA, 15 28 U.S.C. § 1915(d) AND Defendant. Fed. R. Civ. P. 4(c)(3) 16 17 18 I. Procedural History 19 On March 20, 2020, Terrence Mack Carter (“Plaintiff”), currently incarcerated at the 20 Federal Correctional Institution in Mendota (“FCI Mendota”), California, and proceeding 21 pro se, filed a civil complaint pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 22 § 1346 and § 2674. See ECF No. 1 at 1. In his Complaint, Plaintiff claimed a prison officer 23 “unreasonably chest bumped” him without consent and that the incident was caught on one 24 of the prison’s security cameras. Id. at 2. In addition, Plaintiff submitted a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). See ECF No. 2. 26 The Court GRANTED Plaintiff’s Motion to Proceed IFP on May 28, 2020. See ECF 27 No. 5 at 7. However, the Court DISMISSED Plaintiff’s Complaint sua sponte and in its 28 entirety based on his failure to state a claim upon which relief can be granted pursuant to 1 the mandatory screening required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). Id. at 6. The 2 Court found that Plaintiff did not allege any physical injury, and thus failed to state a 3 plausible FTCA claim. Id. Therefore, the Court granted leave to amend. Id. at 6-8. 4 On June 23, 2020, Plaintiff filed a First Amended Complaint (“FAC”) re-alleging 5 his FTCA claim against the United States. See FAC, ECF No. 6 at 1. Plaintiff’s FAC no 6 longer names FCI Mendota as a Defendant.1 Id. 7 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 A. Standard of Review 9 As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is 10 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 12 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 13 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 14 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 16 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 17 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 18 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 23 24 1 It was not clear in Plaintiff’s Complaint whether he was attempting to sue FCI Mendota 25 and the United States. However, in his FAC, Plaintiff clearly names the United States as the sole Defendant. See FAC at 1; see also Dubon v. GEO Corrections and Detention, No. 26 18-CV-686-CAB-RBB, 2018 WL 4002620, at *2 (S.D. Cal. Aug. 22, 2018) (“Under the 27 FTCA, the United States is the only proper defendant and is the sole party that may be sued.”) (quoting Kennedy v. U.S. Postal Service, 145 F.3d 1077 (9th Cir. 1998)). 28 1 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 10 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 12 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 13 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 B. Plaintiff’s Allegations 15 Plaintiff seeks damages against the United States for an incident that occurred while 16 he was incarcerated at FCI Mendota. See FAC, at 1. In October 2019, Plaintiff claims an 17 officer made “a racial slur” and “unreasonably chest bump[ed]” him. Id. Plaintiff alleges 18 that the incident was caught on one of the prison’s security cameras. Id. Moreover, Plaintiff 19 claims the officer’s “force caused [him] to pull something in his lower back.” Id. As a 20 result, Plaintiff claims he “has been taking [over-the-counter] medication” for his injury. 21 Id. He seeks $1 million in compensatory damages and “all other relief that is just and 22 proper.” Id. 23 C. FTCA Claim 24 The FTCA waives sovereign immunity for claims arising out of common law torts 25 committed by federal employees. It “authorizes private tort actions against the United 26 States ‘under circumstances where the United States, if a private person, would be liable 27 to the claimant in accordance with the law of the place where the act or omission 28 occurred.’” U.S. v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)). 1 Moreover, the FTCA includes an exception which expressly bars claims “arising out of” 2 an intentional tort, including assault, battery, false imprisonment, false arrest, and 3 malicious prosecution, among others. See Simmons v. Mischel, No. 18-CV-02193-VKD, 4 2020 WL 1032233, at *7 (N.D. Cal. Mar. 3, 2020) (quoting 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERRENCE MACK CARTER, Case No.: 3:20-cv-00525-JAH-AGS Reg. No. 47098-298, 12 ORDER DIRECTING U.S. Plaintiff, 13 MARSHAL TO EFFECT SERVICE v. OF FIRST AMENDED COMPLAINT 14 PURSUANT TO UNITED STATES OF AMERICA, 15 28 U.S.C. § 1915(d) AND Defendant. Fed. R. Civ. P. 4(c)(3) 16 17 18 I. Procedural History 19 On March 20, 2020, Terrence Mack Carter (“Plaintiff”), currently incarcerated at the 20 Federal Correctional Institution in Mendota (“FCI Mendota”), California, and proceeding 21 pro se, filed a civil complaint pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. 22 § 1346 and § 2674. See ECF No. 1 at 1. In his Complaint, Plaintiff claimed a prison officer 23 “unreasonably chest bumped” him without consent and that the incident was caught on one 24 of the prison’s security cameras. Id. at 2. In addition, Plaintiff submitted a Motion to 25 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)(1). See ECF No. 2. 26 The Court GRANTED Plaintiff’s Motion to Proceed IFP on May 28, 2020. See ECF 27 No. 5 at 7. However, the Court DISMISSED Plaintiff’s Complaint sua sponte and in its 28 entirety based on his failure to state a claim upon which relief can be granted pursuant to 1 the mandatory screening required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). Id. at 6. The 2 Court found that Plaintiff did not allege any physical injury, and thus failed to state a 3 plausible FTCA claim. Id. Therefore, the Court granted leave to amend. Id. at 6-8. 4 On June 23, 2020, Plaintiff filed a First Amended Complaint (“FAC”) re-alleging 5 his FTCA claim against the United States. See FAC, ECF No. 6 at 1. Plaintiff’s FAC no 6 longer names FCI Mendota as a Defendant.1 Id. 7 II. Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) 8 A. Standard of Review 9 As the Court previously informed Plaintiff, because Plaintiff is a prisoner and is 10 proceeding IFP, his FAC also requires a pre-answer screening pursuant to 28 U.S.C. 11 § 1915(e)(2) and § 1915A(b). Under these statutes, the Court must sua sponte dismiss a 12 prisoner’s IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a 13 claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 14 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. 15 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The 16 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not 17 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) 18 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)). 19 “The standard for determining whether a plaintiff has failed to state a claim upon 20 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 21 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 22 23 24 1 It was not clear in Plaintiff’s Complaint whether he was attempting to sue FCI Mendota 25 and the United States. However, in his FAC, Plaintiff clearly names the United States as the sole Defendant. See FAC at 1; see also Dubon v. GEO Corrections and Detention, No. 26 18-CV-686-CAB-RBB, 2018 WL 4002620, at *2 (S.D. Cal. Aug. 22, 2018) (“Under the 27 FTCA, the United States is the only proper defendant and is the sole party that may be sued.”) (quoting Kennedy v. U.S. Postal Service, 145 F.3d 1077 (9th Cir. 1998)). 28 1 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard 3 applied in the context of failure to state a claim under Federal Rule of Civil Procedure 4 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted 5 as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 6 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121. 7 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 8 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 9 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief 10 [is] ... a context-specific task that requires the reviewing court to draw on its judicial 11 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, 12 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 13 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). 14 B. Plaintiff’s Allegations 15 Plaintiff seeks damages against the United States for an incident that occurred while 16 he was incarcerated at FCI Mendota. See FAC, at 1. In October 2019, Plaintiff claims an 17 officer made “a racial slur” and “unreasonably chest bump[ed]” him. Id. Plaintiff alleges 18 that the incident was caught on one of the prison’s security cameras. Id. Moreover, Plaintiff 19 claims the officer’s “force caused [him] to pull something in his lower back.” Id. As a 20 result, Plaintiff claims he “has been taking [over-the-counter] medication” for his injury. 21 Id. He seeks $1 million in compensatory damages and “all other relief that is just and 22 proper.” Id. 23 C. FTCA Claim 24 The FTCA waives sovereign immunity for claims arising out of common law torts 25 committed by federal employees. It “authorizes private tort actions against the United 26 States ‘under circumstances where the United States, if a private person, would be liable 27 to the claimant in accordance with the law of the place where the act or omission 28 occurred.’” U.S. v. Olson, 546 U.S. 43, 44 (2005) (quoting 28 U.S.C. § 1346(b)(1)). 1 Moreover, the FTCA includes an exception which expressly bars claims “arising out of” 2 an intentional tort, including assault, battery, false imprisonment, false arrest, and 3 malicious prosecution, among others. See Simmons v. Mischel, No. 18-CV-02193-VKD, 4 2020 WL 1032233, at *7 (N.D. Cal. Mar. 3, 2020) (quoting 28 U.S.C. § 2680(h)). 5 However, an “exception to the exception” also exists. Tekle v. United States, 511 6 F.3d 839, 51 n. 9 (9th Cir. 2007). The FTCA “does not bar a claim against the United States 7 for intentional torts such as assault and battery where the perpetrator is a federal 8 investigative or law enforcement officer.” Black v. United States, No. C13-5415RBL, 2013 9 WL 5214189, at *2 (W.D. Wash. Sept. 17, 2013). “[T]he waiver effected by the law 10 enforcement proviso extends to acts or omissions of law enforcement officers that arise 11 within the scope of their employment, regardless of whether the officers are engaged in 12 investigative or law enforcement activity, or are executing a search, seizing evidence, or 13 making an arrest.” Millbrook v. United States, 569 U.S. 50, 57 (2013); but see Hashemian 14 v. United States Marshals, No. 3:18-CV-00286-TMB, 2019 WL 6736197, at *5 (D. Alaska 15 Dec. 11, 2019) (“No prisoner convicted of a felony ‘may bring a civil action against the 16 United States or an agency, officer, or employee of the Government, for mental or 17 emotional injury suffered while in custody without a prior showing of physical injury.’”) 18 (emphasis added) (quoting 28 U.S.C. § 1346(b)(2)). 19 Here, because Plaintiff now alleges he suffered a physical injury due to a battery by 20 a federal law enforcement officer, the Court finds his FAC contains a plausible FTCA claim 21 sufficient to survive the “low threshold” set for sua sponte screening as required by 28 22 U.S.C. §§ 1915(e)(2) and 1915A(b). See Millbrook, 569 U.S. at 57; Wilhelm, 680 F.3d at 23 1123; Iqbal, 556 U.S. at 678. 24 Therefore, the Court shall order U.S. Marshal service on Plaintiff’s behalf. See 25 Lopez, 203 F.3d at 1126-27; 28 U.S.C. § 1915(d) (“The officers of the court shall issue and 26 serve all process, and perform all duties in [IFP] cases.”); FED. R. CIV. P. 4(c)(3) (providing 27 that “service be effected by a United States marshal, deputy United States marshal, or 28 other officer specially appointed by the court . . . when the plaintiff is authorized to proceed 1 in forma pauperis pursuant to 28 U.S.C. § 1915.”). 2 III. Conclusion and Orders 3 Based on the foregoing, the Court: 4 1. DIRECTS the Clerk of the Court to issue a summons as to Plaintiff’s First 5 Amended Complaint (ECF No. 6) upon Defendant the UNITED STATES OF AMERICA 6 and forward it to Plaintiff. Because Plaintiff is suing the United States, he must serve 7 Defendant in accordance with Rule 4(i). See Fed. R. Civ. P. 4(i)(1). The Clerk is hereby 8 directed to include in Plaintiff’s IFP package two separate copies of this Order and its May 9 28, 2020 Order Granting IFP (ECF No. 5), Plaintiff’s FAC (ECF No. 6), the summons, and 10 two blank USM Form 285s for Plaintiff’s use in serving the United States via the United 11 States Attorney for the Southern District of California and the Attorney General of the 12 United States in Washington, D.C. See Fed. R. Civ. P. 4(i)(1)(A)(i). Upon receipt of this 13 “IFP Package,” Plaintiff must complete the Form 285s as completely and accurately as 14 possible, include addresses where the Defendant may be served, see S.D. Cal. CivLR 4.1.c, 15 and return them to the United States Marshal according to the instructions the Clerk 16 provides in the letter accompanying his IFP package, no later than July 31, 2020. 17 2. ORDERS the U.S. Marshal or deputy marshal to serve a copy of the First 18 Amended Complaint and summons upon Defendant the UNITED STATES OF AMERICA 19 as directed by Plaintiff on the USM Form 285s provided to him upon receipt, and in no 20 case later than October 1, 2020. The U.S. Marshal or deputy marshal must immediately 21 thereafter file proof of that service, or proof of his or her inability to execute service, with 22 the Clerk of the Court. All costs of that service will be advanced by the United States. See 23 28 U.S.C. § 1915(d); Fed. R. Civ. P. 4(c)(3). 24 3. ORDERS Defendant the UNITED STATES OF AMERICA, once served, to 25 reply to Plaintiff’s First Amended Complaint within the time provided by the applicable 26 provisions of Federal Rule of Civil Procedure 12(a). See 42 U.S.C. § 1997e(g)(2) (while 27 defendants may occasionally be permitted to “waive the right to reply to any action brought 28 by a prisoner confined in any jail, prison, or other correctional facility under section 1983,” 1 || once the Court has conducted its sua sponte screening pursuant to 28 U.S.C. § 1915A(b), 2 ||and thus, has made a preliminary determination based on the face on the pleading alone 3 ||that Plaintiff has a “reasonable opportunity to prevail on the merits,” defendants are 4 required to respond). 5 4. ORDERS Plaintiff, after service has been effected by the U.S. Marshal, to 6 ||serve upon Defendant the UNITED STATES OF AMERICA, or, if appearance has been 7 ||entered by counsel, upon Defendant’s counsel, a copy of every further pleading, motion, 8 || or other document submitted for the Court’s consideration pursuant to Fed. R. Civ. P. 5(b). 9 || Plaintiff must include with every original document he seeks to file with the Clerk of the 10 || Court, a certificate stating the manner in which a true and correct copy of that document 11 ||has been was served on Defendant or its counsel, and the date of that service. See S.D. Cal. 12 ||CivLR 5.2. Any document received by the Court which has not been properly filed with 13 || the Clerk, or which fails to include a Certificate of Service upon the Defendants, may be 14 || disregarded. 15 5. DIRECTS the Clerk of the Court to terminate FCI MENDOTA as a party to 16 || this action. 17 IT IS SO ORDERED. 18 19 || Dated: June 30, 2020 VU 20 n. John A. Houston 1 nited States District Judge 22 23 24 25 26 27 28 6