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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 D.D., Case No. 5:22-cv-00061-JGB-JC
12 Plaintiff, ORDER DISMISSING COMPLAINT 13 WITH LEAVE TO AMEND, v. DIRECTING PLAINTIFF TO 14 RESPOND TO ORDER, AND DENYING REQUEST TO SEAL 15 UNITED STATES, et al., WITHOUT PREJUDICE 16 Defendants. 17 18 19 I. SUMMARY 20 On January 10, 2022, plaintiff “D.D.”,1 a federal prison inmate who is 21 proceeding pro se and has been granted leave to proceed without prepayment of the 22 filing fee (“IFP)”), filed a Civil Rights Complaint (“Complaint” or “Comp.”) 23 pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), and the Federal 24 Tort Claims Act (“FTCA”). (Docket No. 1). Plaintiff sues the United States, the 25 Bureau of Prisons (“BOP”), and eight BOP employees who worked at the United 26 27 28 1For purposes of this Order, the Court will refer to the plaintiff as D.D. or plaintiff. His desire to proceed via a pseudonym will be addressed further below. Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 2 of 18 Page ID #:49
1 States Penitentiary in Victorville, California (“USP Victorville”): Correctional 2 Officers Martini, Montgomery, Zachary, and Moreno; Lieutenants Stencil and 3 Hoffman; Unit Manager O’Brien; and an unknown Administrative Remedy 4 Coordinator. (Comp. at 1, 3-6, 8 (as paginated on the Court’s electronic docket)). 5 All defendants are sued in both their individual and official capacities. (Comp. at 6 3-6). 7 Also on January 10, 2022, plaintiff filed a Notice of Intent to Proceed 8 Anonymously (“Notice”), which, among other things, asks the Court to order the 9 Clerk of the Court to “generate a sealed event” allowing plaintiff to file unspecified 10 documents under seal. (Docket No. 2). 11 For the reasons discussed herein, plaintiff’s Complaint is deficient and is 12 dismissed with leave to amend and his request to “generate a sealed event” is 13 denied without prejudice. 14 II. THE COMPLAINT 15 Plaintiff alleges he is a member of a class of “uncovered” offenders “who in 16 their instant offense or in their background have (a) sex offense, (b) application of 17 [Section] 5K1.1 [of the United States Sentencing Guidelines (“Guidelines”)2] or 18 (c) Rule 35 motions.”3 (Comp. ¶¶ 15, 17 (footnotes added)). He asserts that 19 because his offense is “uncovered,” he cannot be designated to serve his sentence 20 in an “active yard” since “[d]oing so will result in him being confined to [a] 21 22 2Section 5K1.1 permits a district court to depart from the Guidelines upon motion of the 23 government stating that the defendant has provided substantial assistance in the investigation or 24 prosecution of another person who has committed an offense. United States v. Flores, 559 F.3d 1016, 1019 (9th Cir. 2009) (quoting United States Sentencing Guidelines § 5K1.1). 25 3Subject to certain requirements and limitations, Rule 35 of the Federal Rules of Criminal 26 Procedure authorizes a court to correct an error in sentencing that resulted from arithmetical, 27 technical, or other clear error, and to reduce a sentence when the defendant has provided substantial assistance to the government. United States v. Kelley, 962 F.3d 470, 476 n.8 (9th Cir. 28 2020) (citation omitted), cert. denied, 141 S. Ct. 2878 (2021). 2 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 3 of 18 Page ID #:50
1 Secured Housing Unit [(“SHU”)] for his own safety and security.” (Comp. ¶ 17). 2 USP Victorville “is an active yard” facility “where uncovered offender[s] . . . 3 cannot walk the yard . . . without risking [their] safety and security[.]” (Comp. 4 ¶ 16). Nevertheless, plaintiff was classified and designated to serve his sentence at 5 USP Victorville. (Comp. ¶ 19). 6 Plaintiff contends that between May 18, 2019, and January 6 or 7, 2020, he 7 was confined in the SHU 24 hours a day and 7 days a week “under disciplinary 8 sanctions and loss of population privileges.” (Comp. ¶¶ 18, 53). During that time, 9 he was denied the recreational opportunities afforded all SHU inmates. (Comp. 10 ¶ 53). He was also prevented from practicing his religious beliefs in that he was 11 refused no-meat vegetarian meals and was told to separate the meat from the rest of 12 the meal and eat whatever remained or not to eat at all and, as a result, he lost 13 nearly 35 pounds during his confinement. (Comp. ¶ 53). 14 Plaintiff asserts that after 10:00 p.m. on May 18, 2019, Martini and “Doe” 15 (not a defendant) verbally abused plaintiff about his conviction and encouraged 16 plaintiff’s cellmate to physically and sexually assault plaintiff, and Martini turned 17 off the duress alarm to assist the cellmate. (Comp. ¶ 19). Plaintiff states that 18 “[e]xcept for [a] light scuffle, indecent exposure, and ejaculation [on plaintiff’s] 19 face, the night was uneventful.” (Comp. ¶ 19). 20 The next morning, the matter was reported to Lieutenant Bouche in a Prison 21 Rape Elimination Act (“PREA”) alert, but since there was no sexual penetration, it 22 was not deemed worthy of PREA reporting. (Comp. ¶ 20). Bouche told plaintiff 23 that Martini was a respectable officer and it was unimaginable that he would have 24 engaged in such misconduct. (Comp. ¶ 20). Nevertheless, plaintiff was assured 25 that the incident would be investigated and plaintiff was transferred to a different 26 cell. (Comp. ¶ 20). 27 /// 28 /// 3 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 4 of 18 Page ID #:51
1 On May 20, 2019, plaintiff disclosed the incident to Dr. DePierre during a 2 psychological screening, and Dr. DePierre encouraged plaintiff to report the 3 incident to O’Brien and the Warden. (Comp. ¶ 21). 4 Additionally, on seven days in June 2019, plaintiff sent written requests to 5 O’Brien seeking O’Brien’s assistance in contacting plaintiff’s appellate counsel 6 and in other matters requiring discretion. (Comp. ¶ 23). On July 2, 2019, O’Brien 7 met with plaintiff in the SHU corridor and denied plaintiff’s requests. (Comp. 8 ¶ 24). According to plaintiff, O’Brien loudly screamed “‘nothing unforseen has 9 happened’” and suggested plaintiff either openly discuss the sexual abuse and 10 misconduct or drop it since O’Brien was aware of what had occurred and it was not 11 a grave PREA concern. (Comp. ¶ 24). O’Brien then warned plaintiff not to send 12 any more written requests, informed him it would be 6-8 months before 13 redesignation to another facility could be considered, and warned plaintiff that any 14 attempts to escalate the matter would only aggravate plaintiff’s situation. (Comp. 15 ¶ 24). 16 On July 16, 2019, plaintiff made an institutional remedy request to the 17 warden raising all of plaintiff’s issues, but withholding Martini’s name because 18 plaintiff feared retaliation. (Comp. ¶ 26). The administrative remedy coordinator 19 received this request on July 22, 2019, and it was ultimately denied. (Comp. ¶¶ 26, 20 50). 21 Plaintiff was at some point charged in an incident report with refusing to 22 program in violation of BOP Prohibited Acts Code 306. (Comp. ¶ 27); see also 28 23 C.F.R. § 541.3, Table 1, 306. On July 24, 2019, Disciplinary Hearing Officer 24 Godwin found plaintiff guilty of violating Code 306, and plaintiff was fined $50.00 25 and lost 14 days of good time credit. (Comp. ¶ 28). Plaintiff appealed this 26 decision, but his appeals were denied. (Comp. ¶¶ 28, 50). 27 On July 27, 2019, a “kite” began circulating discussing plaintiff’s underlying 28 conviction and how it would be beneficial to physically or sexually assault 4 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 5 of 18 Page ID #:52
1 plaintiff. (Comp. ¶ 29). It reached plaintiff’s cellmate, who physically assaulted 2 plaintiff and broke plaintiff’s right leg at the knee. (Comp. ¶ 29). Plaintiff then 3 used the duress alarm, and Martini, Montgomery and Hoffman responded to the 4 alarm. (Comp. ¶ 29). Plaintiff informed them of the attack and an impending 5 sexual assault, showed them his injuries, and requested immediate medical 6 assistance and a cell change. (Comp. ¶ 29). However, Martini told Hoffman that 7 plaintiff’s leg injury was an attempt to feign illness and implicate plaintiff’s 8 cellmate, the cellmate was a good inmate, and it was a false alarm. (Comp. ¶ 30). 9 Martini then turned off the duress alarm and, with regard to plaintiff’s fears of 10 being sexually assaulted, Martini told Hoffman “‘unless there is a dick in his ass 11 and semen around it, [it’s] not a rape or assault.’” (Comp. ¶ 29). Hoffman agreed 12 and Montgomery laughed. (Comp. ¶ 29). Hoffman then asked plaintiff’s cellmate 13 if he felt safe with a “‘piece of shit’” in the cell, everyone laughed and the cellmate 14 responded negatively. (Comp. ¶ 29). Hoffman advised the cellmate to use caution 15 and “take care in the ‘activity.’” (Comp. ¶ 29). Martini told plaintiff the only ways 16 to escape were “to either ‘fight’ or ‘fuck’” or to hang himself. (Comp. ¶ 29). 17 Before leaving, Martini said “‘have a good time.’” (Comp. ¶ 29). 18 Thereafter, plaintiff excreted and urinated on himself to prevent being 19 sexually assaulted. (Comp. ¶ 31). He then began pounding on the cell door until 20 both his hands were bloody while plaintiff’s cellmate went through plaintiff’s 21 property and tore up documents. (Comp. ¶ 31). After two hours, an unknown 22 correctional officer called Lieutenant Allen, who moved plaintiff to suicide watch. 23 (Comp. ¶¶ 31-32). Plaintiff’s property was confiscated during the move, he was 24 not provided a confiscation slip, and his property was not timely returned. (Comp. 25 ¶¶ 32, 46). 26 A doctor examined plaintiff’s knee while plaintiff was on suicide watch and 27 determined it was not broken, but x-rays were ordered because of the swelling and 28 plaintiff was advised to not put any pressure on the leg. (Comp. ¶ 33). 5 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 6 of 18 Page ID #:53
1 On July 28 and 29, 2019, Hoffman warned plaintiff to stop further escalation 2 of this matter; however, on July 30, 2019, Dr. DePierre visited plaintiff and advised 3 him to make a report. (Comp. ¶¶ 34-35). 4 On July 30, 2019, despite his protests, plaintiff was moved from suicide 5 watch and placed with another cellmate. (Comp. ¶ 36). Plaintiff began a hunger 6 strike in protest and the cellmate informed plaintiff that he had been placed on a 7 “‘mad bone hit’” list and had to be assaulted.4 (Comp. ¶ 36). The cellmate then 8 attempted to force himself on plaintiff and ejaculated on plaintiff multiple times. 9 (Comp. ¶ 36). Dr. DePierre attempted to have plaintiff moved to another unit, but 10 the request was rejected and plaintiff’s pleas “to change cells were met with 11 mockery to bloody hands once again.” (Comp. ¶ 36). 12 On July 31, 2019, when his cell’s food trap was opened, plaintiff locked his 13 hands inside to prevent the trap from being secured and requested a cell change and 14 to speak to Lieutenant Allen. (Comp. ¶ 37). Plaintiff’s requests were denied, and a 15 correctional officer attempted to forcefully close the trap, bruising plaintiff’s 16 forearm. (Comp. ¶ 37). Stencil was called to resolve the standoff, and he denied 17 plaintiff’s requests to change cells or speak to Allen or the warden. (Comp. ¶ 37). 18 Stencil warned plaintiff of a fierce attack if he did not let go of the trap while 19 plaintiff’s cellmate held a “pick” on plaintiff’s neck and told plaintiff he was 20 “‘dead meat’” if he let the trap down. (Comp. ¶ 37). Stencil, Zachary and other 21 correctional officers knew that plaintiff’s cellmate was holding plaintiff on the cell 22 door and Zachary told plaintiff that even if it was possible to help plaintiff, he was 23 not going to do it because plaintiff “is a piece of shit (because of his conviction) 24 and deserved the fuck.” (Comp. ¶ 37). Stencil suggested that it appeared plaintiff 25 was holding his cellmate hostage and proposed that he would forget the incident 26 27 4Plaintiff explains that a “mad bone hit” list is “an assault on sight or opportunity order” and that an inmate who succeeds in assaulting someone on such a list is rewarded for the attack. 28 (Comp. ¶ 9). 6 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 7 of 18 Page ID #:54
1 and change plaintiff’s cell the following week if plaintiff let go of the trap; 2 however, if he did not do so, Stencil would order a “‘team raid.’” (Comp. ¶ 37). 3 Plaintiff responded that his leg was broken, showed the officers his swollen leg, 4 and said he was on a hunger strike and not a threat and he just needed a cell change 5 and to speak to Allen or the Warden; however, Stencil mocked plaintiff and denied 6 his requests while plaintiff’s cellmate smacked plaintiff. (Comp. ¶ 37). Stencil 7 then ended negotiations and ordered a response team. (Comp. ¶ 37). 8 Plaintiff’s cellmate then padded the cell for the incoming attack. (Comp. 9 ¶ 38). A correctional officer knocked on the door and told plaintiff “enjoy this for 10 not heeding to stop the activism and [for] being a paper pusher” and stated plaintiff 11 deserved this because of his conviction. (Comp. ¶ 38). The correctional officer 12 also informed plaintiff’s cellmate that he would report him as an inmate under a 13 hostage situation and congratulated him for “conquering a ‘dip shit’ on [the] ‘mad 14 bone hit’ list.” (Comp. ¶ 38). 15 Plaintiff states that after he rejected a last warning to surrender, a response 16 team of ten or more officers fully armed in riot gear approached the cell and 17 plaintiff moved away from the food trap. (Comp. ¶ 39). The officers hurled eight 18 “flash bangs” into the cell, discharged multiple chemical weapons and shot 19 numerous rubber pellets with pepper bombs through the food trap. (Comp. ¶ 39). 20 All of this occurred in a 6x9 cell which had no ventilation. (Comp. ¶ 39). The 21 response team then breached the cell and punched, kneed and smacked plaintiff, 22 hurting plaintiff’s ribs. (Comp. ¶ 40). Plaintiff was then dragged from the cell and 23 slammed to the ground with his legs pinned on the floor while he screamed in pain 24 for help. (Comp. ¶ 40). Plaintiff states there is a videotape of the incident. (Comp. 25 ¶ 39). 26 Plaintiff was examined by a nurse, who determined plaintiff was not injured. 27 (Comp. ¶ 41). Plaintiff was then shackled and placed in a dry cell for eight hours. 28 (Comp. ¶ 41). Stencil, Zachary and another correctional officer visited plaintiff in 7 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 8 of 18 Page ID #:55
1 the dry cell, Stencil thanked plaintiff for making the night fun and eventful, 2 Zachary said “it was fun to see a ‘dip shit’ suffer,” and the other officer told 3 plaintiff “it is better to suck a dick than ask [for] a cell change if one is on [the] 4 ‘mad bone hit’ list.” (Comp. ¶ 42). Plaintiff was then informed it would be futile 5 to escalate this matter further because nothing untoward happened and it would be 6 the statements of honest officers against the claims of a heinous convict. (Comp. 7 ¶ 42). Plaintiff was told that if he ceased all reporting efforts immediately, Stencil 8 was willing to drop the charge of taking plaintiff’s cellmate as a hostage, but if he 9 did not do so, the United States Attorney’s Office was prepared to indict him and 10 other forms of force would be used against him. (Comp. ¶ 42). 11 On August 1, 2019, an incident report was issued charging plaintiff with 12 threatening another with bodily harm or any other offense in violation of BOP 13 Prohibited Acts Code 203 for allegedly threatening to sexually assault a 14 correctional officer. (Comp. ¶ 43); see also 28 C.F.R. § 541.3, Table 1, 203. 15 On August 21, 2019, plaintiff was found guilty of the Code 203 violation 16 and he was fined $90.00 and lost 27 days of good time credit and four months of 17 privileges. (Comp. ¶ 44). Plaintiff appealed this decision, and the incident report 18 was later expunged. (Comp. ¶¶ 44, 51). 19 During these events, plaintiff had a direct appeal of his criminal conviction 20 pending; however, his SHU confinement precluded his access to counsel. (Comp. 21 ¶ 22). Plaintiff was denied legal calls to his counsel, who filed an appeal without 22 considering issues plaintiff wanted to raise. (Comp. ¶ 45). And due to plaintiff’s 23 traumatic experiences, he could not support the claims he wished counsel to raise 24 on direct appeal, and his motions to relieve appointed counsel were denied as 25 frivolous. (Comp. ¶¶ 45, 53). 26 While plaintiff was confined at USP Victorville, Martini continued his daily 27 harassment of plaintiff with impunity. (Comp. ¶ 48). Plaintiff was finally 28 transferred to the United States Penitentiary in Tucson, Arizona on January 7, 8 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 9 of 18 Page ID #:56
1 2020, where he was safely assigned to the general population. (Comp. ¶ 49). 2 During this transfer, his property was lost at USP Victorville. (Comp. ¶ 49). 3 Plaintiff asserts that Moreno, Martini, Montgomery, Zachary, Hoffman, and Stencil 4 are responsible for the two times he lost property. (Comp. ¶ 54). 5 Plaintiff filed a combined tort claim for all incidents on April 8, 2021, and it 6 was received on April 16, 2021. (Comp. ¶ 52). 7 Based on these allegations, plaintiff seeks: injunctive relief “on such 8 negligent and reckless classification and designation process on the uncovered 9 class of inmates and any disciplinary proceeding pursuant to such classification and 10 designation be declared illegal, and to conserve waste”; “from the year 2000, all the 11 penalties assessed in the form of loss of good time credit pursuant to such 12 classification and designation be returned to those inmates who are still 13 incarcerated and those inmates who have been released, their loss of good time 14 credits be monetized and equally distributed to criminal justice non-profits listed in 15 interested parties”; that any monetary penalties assessed against “such 16 classification and designations be equally distributed to criminal justice non-profits 17 listed in interested parties”; and damages against the named defendants. (Comp. at 18 23). 19 III. STANDARD OF REVIEW 20 Since plaintiff is a prisoner proceeding IFP on a complaint seeking redress 21 against governmental defendants, his Complaint is subject to sua sponte review and 22 must be dismissed if it is: (1) frivolous or malicious; (2) fails to state a claim upon 23 which relief may be granted; or (3) seeks monetary relief from a defendant immune 24 from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; Rhodes v. Robinson, 25 621 F.3d 1002, 1004 (9th Cir. 2010); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 26 2000); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc). 27 Dismissal for failure to state a claim is appropriate if plaintiff fails to proffer 28 “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 9 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page 10o0f18 Page ID #:57
1 || v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 2 || (2009). “A claim has facial plausibility when the plaintiff pleads factual content 3 || that allows the court to draw the reasonable inference that the defendant is liable 4 || for the misconduct alleged.” Iqbal, 556 U.S. at 678; Hartmann v. Cal. Dep’t of 5 || Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). Although plaintiff must 6 || provide “more than labels and conclusions, and a formulaic recitation of the 7 || elements of a cause of action will not do,” Twombly, 550 U.S. at 555; Iqbal, 556 8 | U.S. at 678, “[s]pecific facts are not necessary; the [complaint] need only give the 9 || [defendants] fair notice of what the . . . claim is and the grounds upon which it 10 || rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (citations and 11 || internal quotation marks omitted); Twombly, 550 U.S. at 555. 12 In considering whether to dismiss a complaint, the Court must accept the 13 | factual allegations of the complaint as true,’ Wood v. Moss, 572 U.S. 744, 755 n.5 14 || (2014); Erickson, 551 U.S. at 93-94, construe the pleading in the light most 15 || favorable to the pleading party, and resolve all doubts in the pleader’s favor. 16 || Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122, 17 | 1125 (9th Cir. 2005). Pro se pleadings are “to be liberally construed” and are held 18 |] to a less stringent standard than those drafted by a lawyer. Erickson, 551 U.S. at 19 | 94; Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Hebbe v. 20 || Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the Twombly 21 || pleading standard and Twombly did not alter courts’ treatment of pro se filings; 22 23] 4 [T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of 25 || action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678; Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017). Likewise, the Court “need not accept as 26 true allegations contradicting documents that are referenced in the complaint or that are properly 27 || subject to judicial notice.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2006); Seven Arts Filmed Entm’t Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 28 |] 2013). 10
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1 || accordingly, we continue to construe pro se filings liberally when evaluating them 2 || under Iqbal.”’). Dismissal for failure to state a claim can be warranted based on 3 || either the lack of a cognizable legal theory or the absence of factual support for a 4 || cognizable legal theory. See Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015), cert. 5 || denied, 136 S. Ct. 929 (2016); Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 6 || 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state 7 || aclaim if it discloses some fact or complete defense that will necessarily defeat the 8 || claim. See Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013), 9 || cert. denied, 573 U.S. 916 (2014). 10], 1V. DISCUSSION 11 The Court has reviewed the Complaint under the aforementioned standards 12 || and has concluded the Complaint is deficient and must be dismissed with leave to 13 | amend. 14 Initially, it appears that plaintiff is attempting to bring a class action or at 15 || least raise class allegations. (See, e.g., Comp. at 23 & 1-17). However, 16 || plaintiff, who is proceeding pro se, cannot represent other individuals in this 17 || action. The privilege to represent oneself pro se “is personal to the litigant and 18 || does not extend to other parties or entities.” Simon v. Hartford Life, Inc., 546 F.3d 19 || 661, 664 (9th Cir. 2008); see also Johns v. Cnty. of San Diego, 114 F.3d 874, 876 20 || (9th Cir. 1997) (“While a non-attorney may appear pro se on his own behalf, ‘[h]e 21 || has no authority to appear as an attorney for others than himself.’” (quoting C.E. 22 || Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987)). Nor may a 23 || pro se plaintiff represent a class in a class action. See McShane v. United States, 24 || 366 F.2d 286, 288 (9th Cir. 1966) (non-lawyer had no authority to appear as an 25 || attorney for other persons in a purported class action); DeBrew v. Atwood, 792 26 | F.3d 118, 132 (D.C. Cir. 2015) (A “pro se litigant who is not trained as a lawyer is 27 || simply not an adequate class representative.”’); Oxendine v. Williams, 509 F.2d 28 | 1405, 1407 (4th Cir. 1975) (per curiam) (“Ability to protect the interests of the 11
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1 || class depends in part on the quality of counsel, and we consider the competence of 2 || a layman representing himself to be clearly too limited to allow him to risk the 3 || rights of others.’’); see also Simon, 546 F.3d at 664 (“[C]ourts have routinely 4 || adhered to the general rule prohibiting pro se plaintiffs from pursuing claims on 5 || behalf of others in a representative capacity.”). 6 Moreover, “a pro se litigant is not excused from knowing the most basic 7 || pleading requirements.” American Ass’n of Naturopathic Physicians v. Hayhurst, 8 || 227 F.3d 1104, 1107-08 (9th Cir. 2000), cert. denied, 532 U.S. 1008 (2001). For 9 || instance, Fed. R. Civ. P. 10(a) requires that the “[t]he title of the complaint must 10 || name all the parties.” Here, the title of plaintiff's Complaint lists the defendants as 11 || the “United States, BOP, Martini, et al.[,]” while the body of the Complaint 12 || identifies ten defendants. (Complaint at 1, 4-6). This does not satisfy Rule 10(a). 13 || See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir.), cert. denied, 506 U.S. 14 | 915 (1992). 15 Plaintiff's Complaint also violates Fed. R. Civ. P. 10(b), which requires that 16 || a “party must state its claims or defenses in numbered paragraphs, each limited as 17 || far as practicable to a single set of circumstances. ... If doing so would promote 18 || clarity, each claim founded on a separate transaction or occurrence . . . must be 19 || stated in a separate count....” ‘““Separate counts will be required if necessary to 20 || enable the defendant to frame a responsive pleading or to enable the court and the 21 || other parties to understand the claims.’” Bautista v. Los Angeles Cnty., 216 F.3d 22 || 837, 840 (9th Cir. 2000) (citation omitted). “Courts have required separate counts 23 || where multiple claims are asserted, where they arise out of separate transactions or 24 || occurrences, and where separate statements will facilitate a clear presentation.” Id. 25 || at 840-41. “In such cases, separate counts permit pleadings to serve their intended 26 || purpose to frame the issue and provide the basis for informed pretrial proceedings.” 27 || Id. at 841. “‘Experience teaches that, unless cases are pled clearly and precisely, 28 || issues are not joined, discovery is not controlled, the trial court’s docket becomes 12
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1 || unmanageable, the litigants suffer, and society loses confidence in the court’s 2 || ability to administer justice.’” Id. (citations omitted). Here, the Complaint 3 || includes fifteen pages of allegations against the defendants in a single claim that 4 || posits no legal theory, but discusses, among other things, several alleged sexual 5 || assaults and physical attacks, multiple disciplinary proceedings, purported 6 || interference with plaintiffs ability to communicate with his appellate counsel, 7 || excessive force, placing plaintiff on a hit list, recreational deprivation, and denial 8 || of religiously appropriate meals.° (See Comp. at 8-22). 9 Given the Rule 10 violations, plaintiff's Complaint must be dismissed with 10 || leave to amend. The Court will nevertheless highlight several other deficiencies in 11 || the Complaint. 12 Plaintiff has filed this action against the United States and the BOP, among 13 || other parties. (Comp. at 1, 4). However, “[u]nder settled principles of sovereign 14 || immunity, the United States, as sovereign, is immune from suit save as it consents 15 || to be sued .. . and the terms of its consent to be sued in any court define that 16 || court’s jurisdiction to entertain suit.” United States v. Dalm, 494 U.S. 596, 608 17 || (1990) (citations and internal quotation marks omitted); Hercules, Inc. v. United 18 || States, 516 U.S. 417, 422 (1996). Bivens “does not provide a means of cutting 19 | through the sovereign immunity of the United States itself,” Arnsberg v. United 20 || States, 757 F.2d 971, 980 (9th Cir. 1985), cert. denied, 475 U.S. 1010 (1986); Cato 2 | ao 22 °For the same reasons, plaintiff's Complaint also at least arguably violates Fed. R. Civ. P. 8, which requires that a complaint contain “a short and plain statement of the claim showing that 23 || the pleader is entitled to relief].]” Fed. R. Civ. P. 8(a)(2); see also Fed. R. Civ. P. 8(d)(1) (“Each 4 allegation must be simple, concise, and direct.”); Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (“The ‘short and plain statement’ must provide the defendant with ‘fair notice of 25 || what the plaintiff's claim is and the grounds upon which it rests.’” (citation omitted)); McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996) (Rule 8 is not satisfied when “one cannot 26 determine from the complaint who is being sued, for what relief, and on what theory, with 27 || enough factual detail to guide discovery.”); Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984) (“[A] pleading must give fair notice and state the elements of the claim 28 || plainly and succinctly.” (citation and internal punctuation omitted)). 13
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1 || v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995), nor may a Bivens claim be 2 || brought against an agency of the United States, such as the BOP. Federal Deposit 3 || Ins. Corp. v. Meyer, 510 U.S. 471, 483-86 (1994); Western Radio Servs. Co. v. 4 || United States Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009), cert. denied, 559 5 || U.S. 1106 (2010); Bruns v. National Credit Union Admin., 122 F.3d 1251, 1255 6 || (9th Cir. 1997). Accordingly, plaintiff cannot maintain a Bivens action against the 7 || United States or BOP. Meyer, 510 U.S. at 483-86; see also Correctional Servs. 8 || Corp. v. Malesko, 534 U.S. 61, 72 (2001) (A “prisoner may not bring a Bivens 9 || claim against... . the United States[] or the BOP.”); DaVinci Aircraft, Inc. v. 10 || United States, 926 F.3d 1117, 1128 (9th Cir.) (“[T]he district court properly 11 || dismissed the Bivens claims against the United States for lack of subject matter 12 || jurisdiction.”), cert. denied, 140 S. Ct. 439 (2019). 13 Similarly, plaintiff has sued the eight individual defendants in both their 14 || individual and official capacities. (Comp. at 1, 4-6). However, “[a]n action against 15 || an officer, operating in his or her official capacity as a United States agent, 16 || operates as a claim against the United States.” Ministerio Roca Solida v. 17 | McKelvey, 820 F.3d 1090, 1095 (9th Cir. 2016); see also Kentucky v. Graham, 18 | 473 U.S. 159, 165-66 (1985) (“Official-capacity suits, in contrast, ‘generally 19 || represent only another way of pleading an action against an entity of which an 20 || officer is an agent.’” (quoting Monell v. New York City Dep’t of Soc. Servs., 436 21} U.S. 658, 690 n.55 (1978)). Therefore, plaintiff cannot maintain a Bivens action 22 || against the individual defendants in their official capacities. See Ibrahim v. Dep’t 23 || of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008) (“[N]o Bivens-like cause of 24 || action is available against federal agencies or federal agents sued in their official 25 || capacities.”); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 26 || 482 F.3d 1157, 1173 (9th Cir. 2007) ( “‘[A] Bivens action can be maintained 27 || against a defendant in his or her individual capacity only, and not in his or her 28 || official capacity.’ This is because a Bivens suit against a defendant in his or her 14
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1 || official capacity would merely be another way of pleading an action against the 2 || United States, which would be barred by the doctrine of sovereign immunity.” 3 || (quoting Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987))). 4 Furthermore, to the extent plaintiff seeks injunctive relief requiring 5 || governmental action (see Complaint at 23), such relief is not properly sought under 6 || Bivens. See Ministerio Roca Solida, 820 F.3d at 1094 (“[R]elief under Bivens 7 || does not encompass injunctive and declaratory relief where, as here, the equitable 8 |] relief sought requires official government action.”); Higazy v. Templeton, 505 F.3d 9 || 161, 169 (2d Cir. 2007) (“The only remedy available in a Bivens action is an award 10 || for monetary damages from defendants in their individual capacities.”). 11 In addition to Bivens, plaintiff also briefly references the FTCA (see Comp. 12 || at 3 & 4 52; see also Notice at 1), “which waive[s] the sovereign immunity of the 13 || United States for certain torts committed by federal employees.” Meyer, 510 U.S. 14 || at 475-76; Ali v. Federal Bureau of Prisons, 552 U.S. 214, 217-18 (2008). It is 15 || unclear exactly what claim, if any, plaintiff may be raising under the FTCA but, in 16 || any event, plaintiff cannot state an FTCA claim against the BOP or any of the 17 || individual defendants since the “United States is the only proper defendant in an 18 | FTCA action.” Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (per 19 || curiam); Kennedy v. United States Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 20 || 1998) (per curiam); see also Federal Deposit Ins. Co. v. Craft, 157 F.3d 697, 706 21 | (9th Cir. 1998) (per curiam) (“The FTCA is the exclusive remedy for tortious 22 || conduct by the United States, and it only allows claims against the United States. 23 || Although such claims can arise from the acts or omissions of United States 24 || agencies, an agency itself cannot be sued under the FTCA.” (citation omitted)). 25 || Moreover, “the United States . . . has not rendered itself liable under [the FTCA] 26 || for constitutional tort claims.” Meyer, 510 U.S. at 478; Cato, 70 F.3d at 1110-11; 27 || see also Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011) (“Although 28 || these claims may be characterized as constitutional torts, they are not actionable 15
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1 under the FTCA because any liability would arise under federal rather than state 2 law. Accordingly, the FTCA does not provide a waiver of sovereign immunity for 3 these claims.”). 4 While the nature of the Complaint’s deficiencies necessarily limits the 5 Court’s ability to fully address its pleading defects,7 for all the reasons set forth 6 herein, plaintiff’s Complaint must be dismissed with leave to amend. 7 Finally, in his Notice, plaintiff states that he “intends to move this Court [for] 8 leave to proceed anonymously and grant of leave to proceed under such pseudonym 9 [D.D.] and disclose his true identify under seal[,]” and he asks the Court to Order 10 the Clerk of Court “to generate a sealed event, where he could provide all the 11 relevant documents and [a] motion in support thereof, for [the Court’s] 12 determination to either grant leave to proceed anonymously or deny it.” (Notice at 13 2). 14 Plaintiff’s request to “generate a sealed event” is denied without prejudice. 15 If plaintiff wishes to file any document under seal, he must comply with the Court’s 16 Local Rules. See Local Rule 79-5 (setting forth procedures for filing documents 17 under seal); SGII, Inc. v. Suon, 2021 WL 6752324, *6 (C.D. Cal. 2021) (“‘Parties 18 seeking to file documents under seal with this Court must follow the procedures set 19 forth in the Local Rules [C.D. Cal. L.R. 79-5 et seq.].’” (citation omitted; brackets 20 in original)). 21 Since plaintiff has not yet sought leave to proceed anonymously, and as the 22 Court is dismissing his Complaint with leave to amend (and has referred to plaintiff 23 only by his preferred pseudonym in this Order), the Court at this time need not 24 further address whether it is appropriate to allow plaintiff to proceed anonymously. 25 26 7That is, the Court will require plaintiff to comply with the Federal Rules of Civil 27 Procedure rather than attempt to guess what Bivens claims plaintiff is attempting to state against each BOP officer sued in his or her individual capacity or divine the nature and scope of any 28 possible FTCA claims plaintiff might be bringing against the United States. 16 Case 5:22-cv-00061-JGB-JC Document 8 Filed 02/22/22 Page17of18 Page ID #:64
1 || Instead, if plaintiff “wishes to maintain anonymity in this action, he must file ‘a 2 || well-reasoned motion to proceed anonymously’ . . . before or contemporaneously 3 || with [any] amended [complaint] if he wishes to file that pleading anonymously.” 4 || Arizona Bd. of Regents v. Doe, 2020 WL 5057628, *2 (D. Ariz. 2020) (citation 5 || omitted); see also Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 6 || 1067-69 (9th Cir. 2000) (discussing factors courts consider in determining whether 7 || a party has set forth “special circumstances” justifying allowing the party to 8 || proceed anonymously in judicial proceedings). 9 | V. ORDERS* 10 In light of the foregoing, IT IS HEREBY ORDERED that the Complaint is 11 || dismissed with leave to amend and plaintiff's request to “generate a sealed event” 12 || is denied without prejudice. 13 IT IS FURTHER ORDERED that within twenty (20) days of the date of this 14 || Order, plaintiff must do one of the following: 15 l. File a First Amended Complaint which cures the pleading defects set 16 || forth herein;’ or 17 18 *The Magistrate Judge’s orders herein constitute non-dispositive rulings on pretrial 19 || matters. See McKeever v. Block, 932 F.2d 795, 797-98 (9th Cir. 1991) (magistrate judges can dismiss complaints with leave to amend; dismissal of complaint with leave to amend is 20 || non-dispositive matter). To the extent a party disagrees with such non-dispositive rulings, such 1 party may file a motion for review by the assigned District Judge within fourteen (14) days. See Local Rule 72-2.1. To the extent a party believes the rulings to be dispositive, rather than non- 22 || dispositive, such party has the right to object to this Court’s determination that the rulings are non-dispositive within fourteen (14) days. A party will be foreclosed from challenging the 23 rulings herein if such party does not seek review thereof, or object thereto. 24 *The Clerk is directed to provide plaintiff with a Central District of California Civil 25 || Rights Complaint Form, CV-66, to facilitate plaintiff's filing of a First Amended Complaint if he elects to proceed in that fashion. Any First Amended Complaint must: (a) be labeled “First 26 Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original 27 || Complaint — i.e., it must include all claims on which plaintiff seeks to proceed (Local Rule 15-2); (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R. Civ. P. 8(a)); 28 (continued...) 17
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1 2. Sign and file the attached Notice of Dismissal which will result in 2 the voluntary dismissal of this action without prejudice; or 3 3. File a Notice of Intent to Stand on Complaint, indicating plaintiff’s 4 intent to stand on the original Complaint despite the pleading defects set forth 5 herein, which may result in the dismissal of this action based upon such defects. 6 Plaintiff is cautioned that his failure timely to file a First Amended 7 Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint 8 may be deemed plaintiff’s admission that amendment is futile, and may result 9 in the dismissal of this action with or without prejudice on the grounds set 10 forth above, on the ground that amendment is futile, for failure diligently to 11 prosecute and/or for failure to comply with this Order. 12 IT IS SO ORDERED. 13 DATED: February 22, 2022 14 ______________/s/_____________________ Honorable Jacqueline Chooljian 15 UNITED STATES MAGISTRATE JUDGE 16 17 Attachments 18 19 20 21 22 23 9(...continued) (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) set forth 24 clearly the sequence of events giving rise to the claim(s) for relief; (f) allege specifically what 25 each defendant did and how that individual’s conduct specifically violated plaintiff’s civil rights; (g) for each claim asserted, specifically identify which defendants are being sued and in what 26 capacity; (h) not add defendants or claims that are not reasonably related to the claims asserted in 27 the original Complaint; (i) include a title naming all the parties (Fed. R. Civ. P. 10(a)); and (j) set forth “each claim founded on a separate transaction or occurrence . . . in a separate count[.]” 28 Fed. R. Civ. P. 10(b). 18