David Atwood, II v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2018
• Docket: 17-56010
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID GARLAND ATWOOD II, AKA No. 17-56010 David Smith, D.C. No. 3:17-cv-01315-MMA- Plaintiff-Appellant, BLM

v. MEMORANDUM* UNITED STATES OF AMERICA; U.S. PROBATION,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

David Garland Atwood II, AKA David Smith, a federal prisoner on

supervised release at the time he filed this action, appeals pro se from the district

court’s judgment dismissing his action brought under Bivens v. Six Unknown

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), challenging a

condition of his supervised release and alleging inadequate medical care. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Watson v. Carter, 668

F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B));

Cement Masons Health & Welfare Trust Fund for N. Cal. v. Stone, 197 F.3d 1003,

1005 (9th Cir. 1999) (dismissal for lack of subject matter jurisdiction). We affirm

in part, reverse in part, and remand.

As an initial matter, we note that Atwood’s supervised release was revoked

while this appeal was pending and that he is currently incarcerated in a federal

prison. We conclude that the portion of Atwood’s action seeking declaratory and

injunctive relief relating to a transfer to the San Diego Probation Office is now

moot. See Alvarez v. Hill, 667 F.3d 1061, 1063-64 (9th Cir. 2012) (claims for

declaratory and injunctive relief moot where inmate no longer had a legally

cognizable interest in the outcome of the case). However, Atwood’s request for

monetary relief based on denial of adequate medical care is not moot.

The district court properly dismissed Atwood’s action against the United

States and the United States Probation Office on the basis of sovereign immunity.

See Cato v. United States, 70 F.3d 1103, 1110-11 (9th Cir. 1995) (explaining that a

Bivens action cannot be brought against the United States or its agencies).

However, the district court abused its discretion in denying leave to amend because

2 17-56010 Atwood could amend to allege deliberate indifference against an individual federal

official, and such a claim is not barred by Heck v. Humphrey, 512 U.S. 477 (1994).

See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (setting forth

standard of review, and explaining that it is an abuse of discretion to deny leave to

amend when amendment is not futile); cf. Thornton v Brown, 757 F.3d 834, 843

(9th Cir. 2014) (challenge to parole conditions was not Heck-barred where plaintiff

“does not challenge his status as a parolee or the duration of his parole and, even if

he succeeds in [his] action, nearly all of his parole conditions will remain in

effect”). We reverse the judgment in part and remand to allow Atwood an

opportunity to amend his complaint.

Appellees’ request for judicial notice (Docket Entry No. 18) is granted.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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