1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS PEDRITO GONZALES, Case No.: 3:22-cv-0106-DMS-MSB BOP# 96408298, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILING TO STATE A CLAIM 14
E. NOONAN; M. SMITH; 15 [ECF No. 9] R. STEWERT; T. HARLEY; 16 MR. CORVET; GEO WESTERN DETENTION FACILITY , 17 Defendants. 18 19 20 21 22 I. Procedural History 23 On January 24, 2022, Jesus Pedrito Gonzales, (“Plaintiff”), currently incarcerated 24 at the Federal Correctional Institution located in Adelanto, and proceeding pro se, filed 25 this civil rights action (ECF No. 1). In addition, Plaintiff filed a Motion to Proceed In 26 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). This Court 27 conducted the required sua sponte screening of Plaintiff’s Complaint and dismissed his 28 Complaint for failing to state an Eighth or Fourteenth Amendment claim. (See ECF No. 1 4.) Plaintiff was granted forty-five days leave to file an amended complaint in order to 2 correct the deficiencies of pleading identified by the Court. (Id.) After later receiving an 3 extension of time to file his pleading, Plaintiff filed his First Amended Complaint 4 (“FAC”) on July 25, 2022. 5 In his FAC, Plaintiff indicates that he is no longer pursing his Fourteenth 6 Amendment claim and requests that the Court enter a dismissal of his Fourteenth 7 Amendment claim, as well as all claims against Defendant Smith. See ECF No. 9 at 9. 8 The Court will GRANT this request and for the reasons set forth below, Plaintiff’s entire 9 FAC is dismissed because he cannot state an Eighth Amendment claim against any of the 10 named Defendants. 11 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 12 A. Standard of Review 13 As the Court previously informed Plaintiff, because he is a prisoner, his FAC 14 requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B). A complaint 15 filed by any person proceeding IFP is subject to sua sponte dismissal if it is “frivolous, 16 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 17 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun 18 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 19 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 20 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district 21 court to dismiss an in forma pauperis complaint that fails to state a claim.”) 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 25 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain 26 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. 28 Twombly, 550 U.S. 544, 570 (2007). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 that standard. Id. 8 B. Analysis 9 Plaintiff is bringing an Eighth Amendment claim against all of the named 10 Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 11 Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 12 1991) (“Actions under § 1983 and those under Bivens are identical save for the 13 replacement of a state actor under § 1983 by a federal actor under Bivens.”) 14 All of the named Defendants in this action are employees of the GEO Group, Inc., 15 a private corporation operating the WRDF under a contract with the federal government. 16 See ECF No. 9 at 1-2. 17 As the Court previously informed Plaintiff, he cannot maintain a Bivens cause of 18 action against the individual Defendants under the Eighth Amendment. “Where, as here, 19 a federal prisoner seeks damages from privately employed personnel working at a 20 privately operated federal prison, where the conduct allegedly amounts to a violation of 21 the Eighth Amendment, and where that conduct is of a kind that typically falls within the 22 scope of traditional state tort law . . ., the prisoner must seek a remedy under state tort 23 law. We cannot simply imply a Bivens remedy in such a case.” Minneci v. Pollard, 565 24 U.S. 118, 131 (2012). The Ninth Circuit has applied Pollard to preclude Bivens remedies 25 for Eighth Amendment claims against employees of the GEO Group, Inc. in its capacity 26 of operating a federal immigration detention facility. See Karboau v. Clark, 577 27 Fed.Appx. 678, 679 (9th Cir. 2014) (affirming dismissal of Eighth Amendment claims 28 against individual employees of GEO Group, Inc., because the exclusive remedy is 1 || pursuant to state tort law). 2 Accordingly, the Court sua sponte dismisses all claims in the FAC against all 3 || Defendants because as currently drafted the Complaint fails to state a claim upon which 4 ||relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 5 C. Leave to Amend 6 Because Plaintiff has already been provided a short and plain statement of his 7 || pleading deficiencies, as well as an opportunity to amend those claims to no avail, the 8 Court finds granting further leave to amend would be futile. See Gonzalez v. Planned 9 || Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment can, by itself, 10 || justify the denial of ... leave to amend.’’’) (quoting Bonin v. Calderon, 59 F.3d 815, 845 11 || (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 12 2009) (“[W]here the plaintiff has previously been granted leave to amend and has 13 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 14 || discretion to deny leave to amend is particularly broad.” (internal quotation marks 15 || omitted) (second alteration in original)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JESUS PEDRITO GONZALES, Case No.: 3:22-cv-0106-DMS-MSB BOP# 96408298, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT FOR vs. FAILING TO STATE A CLAIM 14
E. NOONAN; M. SMITH; 15 [ECF No. 9] R. STEWERT; T. HARLEY; 16 MR. CORVET; GEO WESTERN DETENTION FACILITY , 17 Defendants. 18 19 20 21 22 I. Procedural History 23 On January 24, 2022, Jesus Pedrito Gonzales, (“Plaintiff”), currently incarcerated 24 at the Federal Correctional Institution located in Adelanto, and proceeding pro se, filed 25 this civil rights action (ECF No. 1). In addition, Plaintiff filed a Motion to Proceed In 26 Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). This Court 27 conducted the required sua sponte screening of Plaintiff’s Complaint and dismissed his 28 Complaint for failing to state an Eighth or Fourteenth Amendment claim. (See ECF No. 1 4.) Plaintiff was granted forty-five days leave to file an amended complaint in order to 2 correct the deficiencies of pleading identified by the Court. (Id.) After later receiving an 3 extension of time to file his pleading, Plaintiff filed his First Amended Complaint 4 (“FAC”) on July 25, 2022. 5 In his FAC, Plaintiff indicates that he is no longer pursing his Fourteenth 6 Amendment claim and requests that the Court enter a dismissal of his Fourteenth 7 Amendment claim, as well as all claims against Defendant Smith. See ECF No. 9 at 9. 8 The Court will GRANT this request and for the reasons set forth below, Plaintiff’s entire 9 FAC is dismissed because he cannot state an Eighth Amendment claim against any of the 10 named Defendants. 11 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 12 A. Standard of Review 13 As the Court previously informed Plaintiff, because he is a prisoner, his FAC 14 requires a pre-answer screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B). A complaint 15 filed by any person proceeding IFP is subject to sua sponte dismissal if it is “frivolous, 16 malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary 17 relief from a defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun 18 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 19 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 20 1127 (9th Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district 21 court to dismiss an in forma pauperis complaint that fails to state a claim.”) 22 “The standard for determining whether a plaintiff has failed to state a claim upon 23 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 24 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 25 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain 26 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 27 face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. 28 Twombly, 550 U.S. 544, 570 (2007). 1 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 2 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 3 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for 4 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 5 judicial experience and common sense.” Id. The “mere possibility of misconduct” or 6 “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting 7 that standard. Id. 8 B. Analysis 9 Plaintiff is bringing an Eighth Amendment claim against all of the named 10 Defendants pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 11 Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 12 1991) (“Actions under § 1983 and those under Bivens are identical save for the 13 replacement of a state actor under § 1983 by a federal actor under Bivens.”) 14 All of the named Defendants in this action are employees of the GEO Group, Inc., 15 a private corporation operating the WRDF under a contract with the federal government. 16 See ECF No. 9 at 1-2. 17 As the Court previously informed Plaintiff, he cannot maintain a Bivens cause of 18 action against the individual Defendants under the Eighth Amendment. “Where, as here, 19 a federal prisoner seeks damages from privately employed personnel working at a 20 privately operated federal prison, where the conduct allegedly amounts to a violation of 21 the Eighth Amendment, and where that conduct is of a kind that typically falls within the 22 scope of traditional state tort law . . ., the prisoner must seek a remedy under state tort 23 law. We cannot simply imply a Bivens remedy in such a case.” Minneci v. Pollard, 565 24 U.S. 118, 131 (2012). The Ninth Circuit has applied Pollard to preclude Bivens remedies 25 for Eighth Amendment claims against employees of the GEO Group, Inc. in its capacity 26 of operating a federal immigration detention facility. See Karboau v. Clark, 577 27 Fed.Appx. 678, 679 (9th Cir. 2014) (affirming dismissal of Eighth Amendment claims 28 against individual employees of GEO Group, Inc., because the exclusive remedy is 1 || pursuant to state tort law). 2 Accordingly, the Court sua sponte dismisses all claims in the FAC against all 3 || Defendants because as currently drafted the Complaint fails to state a claim upon which 4 ||relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 5 C. Leave to Amend 6 Because Plaintiff has already been provided a short and plain statement of his 7 || pleading deficiencies, as well as an opportunity to amend those claims to no avail, the 8 Court finds granting further leave to amend would be futile. See Gonzalez v. Planned 9 || Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) (‘Futility of amendment can, by itself, 10 || justify the denial of ... leave to amend.’’’) (quoting Bonin v. Calderon, 59 F.3d 815, 845 11 || (9th Cir. 1995)); Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 12 2009) (“[W]here the plaintiff has previously been granted leave to amend and has 13 subsequently failed to add the requisite particularity to its claims, [t]he district court’s 14 || discretion to deny leave to amend is particularly broad.” (internal quotation marks 15 || omitted) (second alteration in original)). 16 CONCLUSION 17 For the foregoing reasons, the Court: 18 1) DISMISSES this civil action without further leave to amend for failure to 19 || state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); 20 2) | CERTIEFIES that an IFP appeal would not be taken in good faith pursuant to 21 U.S.C. § 1915(a)(3), and 22 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 23 || the file. 24 IT IS SO ORDERED. > 25 ||Dated: August 9, 2022 a Yn: 56 Hon. Dana M. Sabraw, Chief Judge United States District Court 27 28 4