Gonzales v. Noonan

Opinion

JESUS PEDRITO GONZALES, Case No.: 3:22-cv-0106-DMS-MSB BOP# 96408298, ORDER DISMISSING FIRST Plaintiff, AMENDED COMPLAINT FOR vs. FAILING TO STATE A CLAIM

E. NOONAN; M. SMITH; [ECF No. 9] R. STEWERT; T. HARLEY; MR. CORVET; GEO WESTERN DETENTION FACILITY , Defendants. I. Procedural History On January 24, 2022, Jesus Pedrito Gonzales, (“Plaintiff”), currently incarcerated at the Federal Correctional Institution located in Adelanto, and proceeding pro se, filed this civil rights action (ECF No. 1). In addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). This Court conducted the required sua sponte screening of Plaintiff’s Complaint and dismissed his Complaint for failing to state an Eighth or Fourteenth Amendment claim. (See ECF No. 4.) Plaintiff was granted forty-five days leave to file an amended complaint in order to correct the deficiencies of pleading identified by the Court. (Id.) After later receiving an extension of time to file his pleading, Plaintiff filed his First Amended Complaint (“FAC”) on July 25, 2022. In his FAC, Plaintiff indicates that he is no longer pursing his Fourteenth Amendment claim and requests that the Court enter a dismissal of his Fourteenth Amendment claim, as well as all claims against Defendant Smith. See ECF No. 9 at 9. The Court will GRANT this request and for the reasons set forth below, Plaintiff’s entire FAC is dismissed because he cannot state an Eighth Amendment claim against any of the named Defendants. II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) A. Standard of Review As the Court previously informed Plaintiff, because he is a prisoner, his FAC requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B). A complaint filed by any person proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.”) “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “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, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting that standard. Id. B. Analysis Plaintiff is bringing an Eighth Amendment claim against all of the named Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.”) All of the named Defendants in this action are employees of the GEO Group, Inc., a private corporation operating the WRDF under a contract with the federal government. See ECF No. 9 at 1-2. As the Court previously informed Plaintiff, he cannot maintain a Bivens cause of action against the individual Defendants under the Eighth Amendment. “Where, as here, a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law . . ., the prisoner must seek a remedy under state tort law. We cannot simply imply a Bivens remedy in such a case.” Minneci v. Pollard, 565 U.S. 118, 131 (2012). The Ninth Circuit has applied Pollard to preclude Bivens remedies for Eighth Amendment claims against employees of the GEO Group, Inc. in its capacity of operating a federal immigration detention facility. See Karboau v. Clark, 577 Fed.Appx. 678, 679 (9th Cir. 2014) (affirming dismissal of Eighth Amendment claims against individual employees of GEO Group, Inc., because the exclusive remedy is pursuant to state tort law). Accordingly, the Court sua sponte dismisses all claims in the FAC against all Defendants because as currently drafted the Complaint fails to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. C. Leave to Amend Because Plaintiff has already been provided a short and plain statement of his pleading deficiencies, as well as an opportunity to amend those claims to no avail, the Court finds granting further leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’’’) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend and has subsequently failed to add the requisite particularity to its claims, [t]he district court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks omitted) (second alteration in original)). For the foregoing reasons, the Court: 1) DISMISSES this civil action without further leave to amend for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); 2) | CERTIEFIES that an IFP appeal would not be taken in good faith pursuant to U.S.C. § 1915(a)(3), and 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the file. IT IS SO ORDERED. > Dated: August 9, 2022 a Yn: 56 Hon. Dana M. Sabraw, Chief Judge United States District Court 4