1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 SHANNON K KANE, Case No.: 2:20-cv-01037-JAD-VCF
4 Plaintiff Order Screening Complaint 5 v. and Resolving Pending Motions
6 CORE CIVIC, et al., [ECF Nos. 4, 5, 6, 9, 11, 13]
7 Defendants
9 Plaintiff Shannon K Kane, who is currently in the custody of the Nevada Southern 10 Detention Center (“NSDC”) brings this civil-rights action, claiming that his due-process right is 11 being violated because he has not been transferred to a residential reentry center and that his 12 Eighth Amendment rights have been violated by the facility’s COVID-19 action or inaction. 13 I find that Kane qualifies for in forma pauperis, so I screen his complaint under 28 U.S.C. 14 § 1915A. Although Kane’s complaint states that this is a 42 U.S.C. § 1983 action, it is clear 15 from the complaint that Kane is a federal inmate. A § 1983 action can target only actions by 16 state actors, and Kane does not allege any facts that could indicate that any of the defendants 17 were acting under color of state law. So, I liberally construe Kane’s action as one under § 18 1983’s federal corollary—the case known as Bivens v. Six Unknown Named Agents of Fed. 19 Bureau of Narcotics.1 Upon doing so, I find that he has failed to state a colorable Bivens due- 20 process claim and cannot state one, so I dismiss Kane’s Bivens claims with prejudice. But I give 21 Kane leave to file an amended complaint by August 20, 2020, alleging a non-Bivens Eighth 22 Amendment claim for injunctive relief that is based on 28 U.S.C. § 1331 and the court’s inherent 23
1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 1 equitable powers. And because the relief Kane seeks in his remaining motions is dependent on a 2 viable claim—which Kane does not yet have—I deny all of Kane’s remaining motions. 3 I. Application to Proceed In Forma Pauperis [ECF No. 6] 4 Kane has applied to proceed in forma pauperis.2 Based on the financial information 5 provided, I find that Kane is unable to prepay the full filing fee in this matter, so I grant the
6 application. This means only that Kane need not pay an initial installment fee, prepay fees or 7 costs or provide security for fees or costs, but he is still required to pay the full $350 filing fee 8 under 28 U.S.C. § 1915, as amended. That full filing fee will remain due and owing even if this 9 case is dismissed or otherwise unsuccessful. In order to ensure that plaintiff pays the full filing 10 fee, his institution will be directed to take money from his account monthly until the fee is fully 11 paid. 12 II. Procedural background 13 Michael A. Bacon, who is a prisoner and not an attorney, filed a complaint with this court 14 and initiated an action on his own behalf.3 That complaint was not signed by Kane. Bacon then
15 filed a “motion for judicial notice,” seeking to add Kane as a plaintiff.4 I informed Kane that a 16 person who is not represented by counsel is required to sign a complaint and that, because Kane 17 had not filed a signed complaint, Kane was not a party to Bacon’s action.5 I did not screen a 18 complaint for Kane because Kane had not filed a complaint, and I screened only Bacon’s 19 complaint.6 I informed Kane that, if he wanted to bring claims in this court, he must file a signed 20
21 2 ECF No. 6. 3 2:20-cv-00914-JAD-VCF, ECF No. 1-1. 22 4 2:20-cv-00914-JAD-VCF, ECF No. 4. 23 5 ECF No. 1 at 2. 6 Id. at 5. 1 complaint within 30 days in a separate case.7 I did not instruct Kane to file an amended 2 complaint because he had not filed a complaint that he could amend. Nevertheless, and even 3 though Kane had not initiated an action by filing a complaint, he proceeded to file multiple 4 motions, including a motion for appointment of counsel, before filing what he has called a first 5 amended complaint.8 This document filed by Kane is not an amended complaint but instead is
6 the original complaint in this case. It is the operative complaint, and I now proceed to screen that 7 complaint. 8 III. Screening Discussion 9 A. Overview of Kane’s action 10 Kane sues United States Marshal Jefferson, private entity Core Civic, and Core Civic 11 employees Warden Brian Koehn, Deputy Warden Laurer, and John Does.9 Kane seeks damages 12 for due-process and Eighth Amendment violations. I screen each claim in turn. 13 B. Screening standard 14 Federal courts must conduct a preliminary screening in any case in which a prisoner
15 seeks redress from a governmental entity or an officer or employee of a governmental entity.10 16 In its review, the court must identify any cognizable claims and dismiss any claims that are 17 frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek 18 monetary relief from a defendant who is immune from such relief.11 All or part of the complaint 19 may be dismissed sua sponte if the prisoner’s claims lack an arguable basis in law or fact. This 20
21 7 Id. at 5, 23. 8 ECF No. 10. I also deny the motion for an extension of time to file an amended complaint. 22 9 ECF No. 10 at 1–2. 23 10 See 28 U.S.C. § 1915A(a). 11 See 28 U.S.C. § 1915A(b)(1)(2). 1 includes claims based on legal conclusions that are untenable, like claims against defendants who 2 are immune from suit or claims of infringement of a legal interest which clearly does not exist, as 3 well as claims based on fanciful factual allegations or fantastic or delusional scenarios.12 4 Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot 5 prove any set of facts in support of the claim that would entitle him or her to relief.13 In making
6 this determination, the court takes all allegations of material fact as true and construes them in 7 the light most favorable to the plaintiff.14 Allegations of a pro se complainant are held to less 8 stringent standards than formal pleadings drafted by lawyers,15 but a plaintiff must provide more 9 than mere labels and conclusions.16 “While legal conclusions can provide the framework of a 10 complaint, they must be supported with factual allegations.”17 “Determining whether a complaint 11 states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court 12 to draw on its judicial experience and common sense.”18 13 C. Analysis of Kane’s claims 14 1. Claims against Core Civic
15 Kane alleges that Core Civic is contracted to run the private facility NSDC for the 16 Department of Justice and United States Marshal Service.19 Because Core Civic is a private 17
12 See Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); see also McKeever v. Block, 932 F.2d 18 795, 798 (9th Cir. 1991). 19 13 See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). 14 See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 20 15 Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 21 696, 699 (9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed). 16 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 22 17 Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 23 18 Id. 19 ECF No. 10 at 1, 2. 1 entity, it may not be held liable in a Bivens action.20 I therefore dismiss Kane’s Bivens claims 2 against Core Civic with prejudice, as amendment would be futile. 3 2. Count 1–Due-process Violation for failure to release Kane to the RCC 4 In Count 1, Kane alleges a due-process claim based on his allegation that he remains at 5 NSDC though he should have been released to a Residential Re-entry Center (“RCC”).21 Kane
6 alleges that he was sentenced in the District of Nevada and was serving that sentence in an 7 RCC.22 While at the RCC, he was cited for an infraction and was sent to NSDC, where he saw 8 the Inmate Disciplinary Hearing Officer and was disciplined by being required to spend 41 days 9 at NSDC for the infraction. Those 41 days have come and gone, and Kane is still there. On May 10 7, 2020, Kane sent an e-mail request to Defendant Jefferson asking why he was still at NSDC 11 even though he should have been sent back to the RCC. Defendant Jefferson responded to 12 Kane’s inquiry by saying that Kane was correct that he is designated to RCC, but no answer was 13 given as to why Kane had not been sent back to the RCC given that the 41 days had passed. On 14 June 19, 2020, Kane spoke to Captain Henderson about still being at NSDC instead of the RCC.
15 Captain Henderson wrote down Kane’s name and his Bureau of Prisons number to investigate 16 the issue, but Kane has not heard from Captain Henderson about his inquiry.23 Kane concludes 17 that he was not afforded “due process” to be kept at NSDC beyond the 41 days.24 18 19 20 20 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (holding that Bivens does not extend to 21 private entities acting under color of federal law). 21 These facts are taken from the plaintiff’s allegations and are not intended as findings of fact. 22 22 ECF No. 10 at 2. 23 23 Id. at 2–3. 24 Id. at 3. 1 Although Kane concludes that he was denied “due process,” he labels this claim as a 2 Fourteenth Amendment claim for “equal protections under the law.”25 I find no basis in Kane’s 3 allegations for invoking a right to equal protection. I therefore construe this claim as a due- 4 process claim. Because Kane is a federal prisoner, his due-process claim falls under the Fifth 5 Amendment’s Due Process Clause.26
6 Kane also appears to be asserting this due-process claim against Defendant Jefferson, as 7 he is the only defendant mentioned in the allegations in Claim 1. A defendant is liable in a 8 Bivens action only upon a showing of personal participation by the defendant; a defendant cannot 9 be held liable merely because his subordinates violated the constitution.27 10 Two statutory provisions govern the Bureau of Prison’s (BOP’s) authority to place 11 inmates in its custody in RRCs: 18 U.S.C. §§ 3621(b) and 3624(c). Section 3621 governs the 12 authority of the BOP to designate a prisoner’s placement in general. Section 3624(c) authorizes 13 the BOP to prepare prisoners for reentry to the community during the final months of their terms 14 of imprisonment.28 Under this section, prisoners may be placed in an RRC before being released
15 from BOP custody. Kane does not allege that Jefferson decided not to send him to the RCC as 16 disciplinary punishment for an infraction. But Kane does allege that his due-process rights have 17 been violated because he is still being housed at NSDC rather than being transferred to the RCC. 18 19 20 25 Id. at 2. 21 26 See Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005). 22 27 Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official 23 defendant, through the official’s own individual actions, has violated the Constitution”). 28 See 18 U.S.C. § 3624(c). 1 In order to state a cause of action for deprivation of procedural due process, a plaintiff 2 must first establish the existence of a liberty interest for which the protection is sought.29 But a 3 prisoner has no liberty interest in a particular classification or in placement at any particular 4 facility even if the degree of confinement in one facility is significantly different from that in 5 another facility.30 Nor do inmates have a due-process liberty interest in their eligibility for
6 rehabilitation programs.31 7 In Bivens, the United States Supreme Court held that, even absent statutory authorization, 8 it would enforce a damages remedy to compensate persons injured by federal officers who 9 violated the prohibition against unreasonable search and seizures. The High Court later 10 expanded Bivens damages claims in specific gender-discrimination and inadequate-medical- 11 treatment scenarios involving defendants who were federal employees.32 Then in Ziglar v. 12 Abbasi, the Court significantly limited the availability of Bivens actions, cautioning lower courts 13 not to expand Bivens remedies outside those specific three scenarios very specific contexts 14 without special circumstances.33
15 29 Swarthout v. Cooke, 562 U.S. 216, 219 (2011). 16 30 Olim v. Wakinekona, 461 U.S. 238, 244–45 (1983); Meachum v. Fano, 427 U.S. 215, 224–25 17 (1976); Moody v. Daggett, 429 U.S. 78, 88 n. 9 (1976); see also Stevens v. Thomas, No. 11-CV- 790-MA, 2011 WL 3563131, at *5 (D. Or. Aug. 10, 2011) (concluding that prisoner did not have 18 a liberty interest in RRC placement). 31 See Moody, 429 U.S. at 88 n. 9. 19 32 See Davis v. Passman, 442 U.S. 228, 248–49 (1979) (permitting a damages remedy for gender discrimination under the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14, 20 19 (1980) (allowing a damages remedy for an Eighth Amendment violation for failure to provide adequate medical treatment); see also Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) 21 (“A Bivens claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.”). 22 33 Ziglar v. Abbasi, 137 S. Ct. 1843, 1854–55, 1857–61 (2017) (explaining that a context is new 23 if the case differs in any meaningful way from the three previous Bivens cases); see also Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (“A Bivens claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages 1 When a Bivens action is brought in a context different from the three recognized 2 situations, as is the situation in Kane’s case, the availability of alternative remedies will generally 3 preclude the Bivens claim.34 The alternative remedies and a potential Bivens remedy “need not 4 be perfectly congruent.”35 Bivens does not extend to new situations if there is an alternative 5 remedial structure like tort law, injunction actions, or remedial mechanisms established by the
6 BOP for review of a federal prisoner’s issues concerning confinement under 28 C.F.R. 542.10.36 7 Because here, Kane has alternative remedies available, like the BOP’s remedial process under 28 8 9 10 11 12 remedy was previously recognized.”); Minneci v. Pollard, 565 U.S. 118, 126 (2012) (recognizing 13 that defendant’s status as private employee is a new context). 14 34 Ziglar, 137 S. Ct. at 1858, 1864–65; Vega v. United States, 881 F.3d 1146, 1153–55 (9th Cir. 2018) (declining to extend Bivens to Fifth Amendment due-process claim). 15 35 Minneci v. Pollard, 565 U.S. 118, 129 (2012); see also Vega, 881 F.3d at 1155 (recognizing that the alternative remedial structure and the potential Bivens remedy need not be identical, 16 and “any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from a new and freestanding remedy in damages”). 17 36 See Minneci, 565 U.S. at 131 (holding that Bivens claim may not be brought against employees working at a privately operated federal prison where the allegedly wrongful conduct 18 is of a kind that typically falls within the scope of traditional state tort law); Malesko, 534 U.S. at 74 (declining to apply Bivens where inmate in privately operated prison had full access to the 19 remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program as set forth in 28 20 C.F.R. 542.10); Vega, 881 F.3d at 1148 (holding that Bivens did not apply to Fifth Amendment due process claim because plaintiff had alternative means for relief against private entity’s 21 employees through 28 C.F.R. 542.10); Schwarz v. Meinberg, 761 F. App’x 732, 734–35 (9th Cir. 2019) (refusing to extend Bivens remedy to Fifth Amendment claim regarding BOP’s refusal to 22 place the plaintiff in a camp or to Eighth Amendment unsanitary cell conditions claim because alternative remedies were available); Jones v. Shinn, No. CV 15-00486 LEK-KJM, 2020 WL 23 1529354, at *8–10 (D. Haw. Mar. 30, 2020) (holding that Bivens did not extend to claim for unsafe shower conditions because alternative tort remedy was available). 1 CFR § 542.10,37 injunction actions, and state tort actions, I dismiss his Bivens due-process claim 2 with prejudice because amendment would be futile.38 3 3. Count 2—Claims related to COVID-19 management at NSDC 4 In Count 2, Kane seeks damages for the way that the COVID-19 pandemic is being 5 handled at NSDC.39
6 a. Kane’s COVID-19 factual allegations 7 Kane alleges that, in “March 2020 to present,” the Warden, Deputy Warden, Director of 8 Medical, and Mr. Jefferson personally and falsely told Kane that: (1) all NSDC staff are screened 9 for COVID-19; (2) NSDC stopped movement of inmates and detainees among its facilities 10 because of COVID-19 concerns; (3) social distancing would be created by using every other 11 bunk for placement (even though this is not possible in a dorm setting of 96 people); (4) inmates 12 in quarantine units would be served food on Styrofoam trays; (5) NSDC is equipped to provide 13 appropriate care for COVID-19 (even though no place is equipped to provide appropriate care 14 for COVID-19 much less a prison facility that is a dorm setting for 96 people who share 8
15 showers, 8 sinks, and 5 toilets); 6) defendants would implement cleaning and disinfectant 16 procedures; and 7) defendants would reinforce healthy hygiene practices (but there have been 17 times when no soap was available).40 18 19
20 37 See 28 CFR § 542.10 (2001) (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). 21 38 I would apply the same reasoning and reach the same conclusion even if I construed this claim 22 as an equal-protection claim. 39 All of the facts recited in this order are taken from the plaintiff’s allegations and are not 23 intended as findings of fact. 40 ECF No. 10 at 3–4. 1 He further alleges that “NSDC” now says that it will not stop movements of inmates and 2 detainees between facilities because it has a contract. Kane and others repeatedly asked the 3 Warden, Deputy Warden, Jefferson, and “staff” for NSDC to cease movements between 4 facilities, but they continued to move inmates from infected facilities to NSDC, and this caused 5 an outbreak of COVID-19 to occur.41
6 On April 10, 2020, a female staff member came in to do count. Plaintiff and others were 7 raising concerns about COVID-19 and she said that, if they did not stop, she would cough on 8 them and everywhere in the unit, and then she did so. 9 Kane claims that detainees are not given proper masks. Staff members do not always 10 wear them or sometimes wear them improperly, and the masks are not “CDC compliant.”42 11 One of the COVID-19 patients at NSDC did not show symptoms until 17 days after he 12 arrived there, showing that there are asymptomatic detainees at NSDC. Plaintiff and other 13 detainees have asked the Warden, Deputy Warden, head of medical, and Mr. Jefferson for 14 months for detainees to be tested because of concerns over asymptomatic people with COVID-
15 19. Plaintiff said that it is a fact that, if one person in the prison has COVID-19, the odds are that 16 there are asymptomatic people and testing is needed to protect the detainees and contain the 17 virus. Their response was that they do not have the tests and do not need them. On May 27, 18 2020, Mr. Sapp stated that at least 60% to 70% of NSDC’s detainees had asymptomatic COVID- 19 19 but that they would not be tested unless they had 2 or 3 symptoms. 20 21 22
23 41 Id. 42 Id. at 4. 1 On May 25, 2020, Plaintiff and others put in requests to be tested because of concerns 2 relating to people who are asymptomatic. Medical responded by saying that only symptomatic 3 people are tested.43 4 The nurses who pass out medications do not always change gloves or wipe down the 5 medical cart when they come out of the quarantine section and go into regular housing.44
6 On May 31, 2020, a riot broke out45 due to a staff member’s use of excessive force. “OC 7 spray” was used, causing everyone, including those were not rioting, to suffer from shortness of 8 breath and have a hard time breathing. The detainees were taken to administrative segregation to 9 sort things out. Detainees from administrative segregation were placed in G-2 even though these 10 new arrivals were supposed to be in quarantine according to the BOP and CDC guidelines. 11 Kane’s wellbeing was placed at risk because he was placed in G-2 with a sick person, exposing 12 him to a person who was sick when he came to NSDC and subsequently tested positive for 13 COVID-19. Mr. Sapp, the G-2 unit manager, and the head of Medical came into G-2 and 14 confirmed that positive test. They admitted that this person was not quarantined properly. This
15 person already was sick when he arrived at NSDC, traveling to NSDC with a bus full of people 16 and spending only four days in quarantine before being placed in a dorm of about 96 people. 17 Plaintiff is now in mental and emotional distress. Kane believes that this could have been 18 19 20
21 43 Id. at 4–5. 44 Id. at 5. 22 45 Kane alleges that on June 19, 2020, a race riot broke out between Mexican and black detainees. OC spray again was used. Black detainees were removed. The Deputy Director 23 threatened to put the black and Mexican inmates together after she separated the detainees who caused the problem. Id. at 8. 1 prevented. Five other detainees from G-2 showed symptoms and were taken out of the unit. 2 Five people from the unit tested positive. The remaining detainees in G-2 were not tested.46 3 Kane theorizes that detainees could be put in cells instead of a dorm setting of 96 people 4 sharing showers, sinks, and toilets but “they” have refused that suggestion. There also are not 5 enough negative-pressure cells to provide COVID-19 care if the number of infected detainees
6 continues to rise. NSDC cannot contain the virus or “satisfy COVID-19 care.” Another section 7 was quarantined after another person tested positive for COVID-19.47 8 Kane and another detainee started feeling sick on June 12, 2020, but they were told that 9 this was not a great concern because they did not have temperatures of 101 degrees or more.48 10 On June 19, 2020, the Deputy Warden, Head of Medical, and a Captain came into section 11 G-2. They stated that NSDC did not have to quarantine new arrivals for 14 days. The Deputy 12 Warden said that they would not stop moving people into NSDC because they have a contract to 13 do so. When half the people present, including Kane, said that they had been feeling sick, the 14 Deputy Warden and the Medical Director said that they would not test people and provide
15 medical treatment unless the detainees had temperatures, even if the detainees had multiple other 16 symptoms. They made that decision even though many of the detainees reminded them that the 17 NSDC postings said that there are symptoms other than fevers that can indicate COVID-19.49 18 19 20 21 46 Id. at 5–8. 22 47 Id. at 6–7. 23 48 Id. at 7. 49 Id. at 7–8. 1 On June 24 2020, the Captain came into G-2 due to an incident and said that the reason 2 the detainees there had not been tested was because, if the tests came back positive, the NSDC 3 does not want to be liable.50 4 On June 28, 2020, two staff members in G-2 said that they had been sick for days but still 5 were required to work or they would be written up. One of these staff members said that he had
6 a couple of symptoms for COVID-19 but was having difficulty getting a test.51 7 b. Eighth Amendment analysis 8 Based on these allegations, Kane concludes that his Eighth Amendment rights have been 9 violated.52 Kane appears to be alleging claims for deliberate indifference to both his serious 10 medical needs and safety. The Eighth Amendment prohibits the imposition of cruel and unusual 11 punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, 12 humanity, and decency.’”53 A prison official violates the Eighth Amendment when he acts with 13 “deliberate indifference” to the safety or serious medical needs of an inmate.54 “To establish an 14 Eighth Amendment violation, a plaintiff must satisfy both an objective standard—that the
15 deprivation was serious enough to constitute cruel and unusual punishment—and a subjective 16 standard—deliberate indifference.”55 17 18 19
20 50 Id. at 9. 21 51 Id. 52 Id. at 3. 22 53 Estelle v. Gamble, 429 U.S. 97, 102 (1976). 23 54 Farmer v. Brennan, 511 U.S. 825, 828 (1994). 55 Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). 1 i. Eighth Amendment medical-needs claim 2 To establish the first prong of a medical-needs claim under the Eighth Amendment, “the 3 plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s 4 condition could result in further significant injury or the unnecessary and wanton infliction of 5 pain.”56 To prove deliberate indifference, a plaintiff must prove that the prison official “knows
6 of and disregards an excessive risk to inmate health or safety; the official must both be aware of 7 facts from which the inference could be drawn that a substantial risk of serious harm exists, and 8 he must also draw the inference.”57 Thus, “a complaint that a physician has been negligent in 9 diagnosing or treating a medical condition does not state a valid claim of medical mistreatment 10 under the Eighth Amendment. Medical malpractice does not become a constitutional violation 11 merely because the victim is a prisoner.”58 Even gross negligence is insufficient to establish 12 deliberate indifference to serious medical needs.59 When a prisoner alleges deliberate 13 indifference based on a delay in medical treatment, he must show that the delay led to further 14 harm.60 Prison officials who know of a substantial risk to an inmate’s health and safety are liable
15 only if they responded unreasonably to the risk, even if the harm ultimately was not averted.61 16 17 18
56 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). 19 57 Farmer, 511 U.S. at 837; see also Peralta v. Dillard, 744 F.3d 1076, 1086 (9th Cir. 2014) (en 20 banc). 58 Estelle, 429 U.S. at 106. 21 59 See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). 22 60 See Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate 23 medical indifference”). 61 Farmer, 511 U.S. at 844. 1 ii. Eighth Amendment safety claim 2 In addition to circumstances involving current medical conditions, the Eighth 3 Amendment protects against unsafe conditions of confinement that pose a threat to future health 4 and safety.62 In the context of a current risk of future harm, the plaintiff must allege facts 5 sufficient to show an objectively intolerable risk of harm.63 To demonstrate the subjective
6 element of a claim for deliberate indifference to a serious threat to the inmate’s safety, the 7 prisoner must allege facts sufficient to show that “the official [knew] of and disregard[ed] an 8 excessive risk to inmate . . . safety; the official must both be aware of facts from which the 9 inference could be drawn that a substantial risk of serious harm exists, and [the official] must 10 also draw the inference.”64 Thus, mere negligence is insufficient to show a violation of a 11 plaintiff’s Eighth Amendment rights.65 If a court finds that the Eighth Amendment’s subjective 12 and objective requirements are satisfied regarding a current and ongoing significant risk of 13 serious harm to future health, it may grant appropriate injunctive relief.66 14 c. Kane has not pled facts to support an Eighth Amendment claim.
15 Kane appears to be alleging that Defendant Laurer, who is an employee of a private 16 prison, was deliberately indifferent to his serious medical needs by refusing to provide treatment 17 when he was sick. Kane also appears to allege that Defendants Koehn, Laurer, and Jefferson 18 have been deliberately indifferent to unsafe prison conditions. I find that these allegations fail to 19 state a cognizable claim for damages by a federal prisoner. All of these claims are different from 20
21 62 Helling v. McKinney, 509 U.S. 25, 31 (1993). 63 Farmer, 511 U.S. at 846. 22 64 Id. at 837. 23 65 Id. at 835–36. 66 Id. at 846. 1 the three previous contexts in which the Supreme Court has recognized that a Bivens damages 2 action may be brought, and as I explained above, expansion of Bivens claims to new contexts is 3 very limited. Regardless, Bivens claim may not be brought against employees of a privately 4 operated federal prison where the allegedly wrongful conduct is the type of conduct that can be 5 remedied by traditional state tort law, and all of Kane’s medical-care allegations can.67 Kane’s
6 claim against Laurer for deliberate indifference to serious medical needs therefore is not 7 cognizable. In addition, if tort or injunction actions provide an alternative remedy, courts 8 repeatedly have refused to extend Bivens to Eighth Amendment conditions-of-confinement 9 claims.68 Kane’s access to the Administrative Remedy Program also may provide an alternative 10 remedy precluding extension of Bivens in this context.69 So, Bivens cannot be extended to 11 Kane’s damages claims for deliberate indifference to unsafe conditions either. I therefore 12 dismiss these Eighth Amendment damages claims with prejudice, as amendment would be futile. 13 4. Bivens claims against Doe Defendants 14 Kane states in the complaint that there are defendants who are “John Does,” and it
15 appears that these people are staff members employed by Core Civic whose names are not 16 known to Kane at this time.70 As a general rule, the use of “Doe” pleading to identify a 17 defendant is not favored.71 However, courts recognize that there are situations “where the 18 19 67 See Minneci v. Pollard, 565 U.S. 118, 131 (2012). 20 68 See supra note 36. 21 69 See Malesko, 534 U.S. at 74 (declining to apply Bivens where inmate in privately operated prison had full access to the remedial mechanisms established by the BOP, including suits in 22 federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program as set forth in 28 C.F.R. 542.10); Vega, 881 F.3d at 1152–55. 23 70 ECF No. 10 at 2. 71 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 1 identity of alleged defendants will not be known prior to the filing of a complaint.”72 Therefore, 2 if a plaintiff adequately describes the Doe defendant so that the identity of that person can easily 3 be identified through discovery and if the plaintiff alleges specific acts by that particular Doe 4 defendant that states a colorable claim against that Doe defendant, then a court later will permit 5 the plaintiff to engage in discovery to attempt to learn his or her name.73 Here, Kane has not
6 described who any of these John Does are, but it appears that they are staff members referred to 7 in the complaint. For the reasons discussed in my analysis of Count 1 and Count 2, I find that 8 Kane has not stated colorable Bivens claims against any of these people. So, I dismiss any 9 claims against these unknown staff members with prejudice, as amendment would be futile. 10 IV. Leave to amend 11 Because I’ve dismissed Kane’s Bivens damages claims with prejudice, he may not file an 12 amended complaint that includes those claims. However, out of an abundance of caution, I am 13 giving Kane leave to amend his complaint to include a non-Bivens Eighth Amendment 14 conditions-of-confinement claim for injunctive relief. It may very well be that Kane does not
15 wish to pursue such a claim and desired only to seek damages. My order that informed Kane of 16 the requirement that he file his own complaint also screened Bacon’s complaint and informed 17 Bacon of the availability of such a claim and the relevant law regarding such a claim.74 Kane 18 nevertheless did not pursue such a claim when he filed his own complaint. However, in that 19 order, I was not screening a complaint filed by Kane, and it is possible that Kane did not read 20 21 22 72 Id. 23 73 Id. at 642–43. 74 ECF No. 1 at 13–14, 21. 1 that part of the order and did not make a conscious decision not to pursue such a claim. So, I 2 will give Kane an opportunity to amend his complaint to allege such a claim. 3 Therefore, I inform Kane that, in some circumstances, plaintiffs may file non-Bivens 4 actions for injunctive relief to stop Eighth Amendment violations based on conditions of 5 confinement.75 Injunctive relief to put an end to an Eighth Amendment violation may be
6 available where a plaintiff states a colorable Eighth Amendment claim, invokes jurisdiction 7 under 28 U.S.C. § 1331, and asks the court to exercise its traditional powers of equity in a 8 constitutional suit seeking injunctive relief against federal officers in their official capacity.76 If 9 Kane wishes to pursue such a cause of action, he must allege facts sufficient to state a colorable 10 ongoing Eighth Amendment claim,77 sue and identify the person who would be responsible for 11 carrying out any order for injunctive relief, and request particular injunctive relief that is 12
13 75 Hodges v. Matevousian, No. 118CV00790AWIEPGPC, 2020 WL 1139427, at *1 (E.D. Cal. Mar. 9, 2020). 14 76 Id.; see also Malesko, 534 U.S. at 74 (“injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally”). 15 77 The “treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). 16 The Eighth Amendment imposes duties on prison officials to take reasonable measures to guarantee the health and safety of inmates. Farmer, 511 U.S. at 832. To challenge the 17 conditions of confinement under the Eighth Amendment, a plaintiff must meet both an objective and subjective test. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). The objective prong 18 requires a plaintiff to allege facts sufficient to show a condition that is sufficiently serious to form the basis for an Eighth Amendment violation. Id. In the context of a current risk of future 19 harm, the plaintiff must allege facts sufficient to show an objectively intolerable risk of harm. Farmer v. Brennan, 511 U.S. 825, 846 (1994). To demonstrate the subjective element of 20 deliberate indifference to a serious threat to the inmate’s safety, the prisoner must allege facts sufficient to show that “the official [knew] of and disregard[ed] an excessive risk to inmate . . . 21 safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [the official] must also draw the inference.” Farmer, 22 511 U.S. at 837. Thus, mere negligence is insufficient to show a violation of a plaintiff’s Eighth Amendment rights. Id. at 835–36. If a court finds that the Eighth Amendment’s subjective and 23 objective requirements are satisfied regarding a current and ongoing significant risk of serious harm to future health, it may grant appropriate injunctive relief. Farmer, 511 U.S. at 846. 1 specifically and narrowly targeted to resolving the ongoing Eighth Amendment violation. 2 Damages would not be available as relief for such a cause of action. 3 Kane is instructed to carefully read this entire order before deciding whether and how to 4 amend his complaint. If Kane chooses to file an amended complaint, he is advised that an 5 amended complaint replaces the original complaint, so the amended complaint must be complete
6 in itself.78 If Kane chooses to file an amended complaint, he should review the Eighth 7 Amendment law outlined above and allege facts sufficient to show what each defendant is doing 8 to violate his Eighth Amendment rights. In accordance with Rule 8 of the Federal Rules of Civil 9 Procedure, a plaintiff may not allege facts that are extraneous and not part of the factual basis for 10 the particular constitutional claims he includes in the complaint.79 So, Kane should not include 11 extraneous facts that are unrelated to the alleged ongoing Eighth Amendment violation. 12 Kane must file any amended complaint by August 20, 2020. If Kane amends the 13 complaint to brings a claim for injunctive relief that is based on 28 U.S.C. § 1331 and the court’s 14 inherent equitable powers, rather than based on Bivens, he must make that clear in the complaint.
15 If Kane seeks preliminary injunctive relief, he must file a separate motion for preliminary 16 injunctive relief in addition to a complaint stating a claim for injunctive relief and that motion 17 must specify the requested preliminary injunctive relief that is tailored to the Eighth Amendment 18 complaint alleged in the amended complaint. 19 20 78 See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 21 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 22 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). 23 79 See Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (recognizing that Rule 8 can be violated when the plaintiff says too much). 1 V. Motion for appointment of counsel [ECF Nos. 5, 9] 2 Like many prisoners who file civil-rights claims, Kane asks the court to find and appoint 3 him a free lawyer—he asked for one even before he filed a complaint in this case.80 A litigant 4 does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil-rights 5 claims.81 The statute that governs this type of litigation, 28 U.S.C. § 1915(e)(1), provides that
6 “[t]he court may request an attorney to represent any person unable to afford counsel.” 7 However, the court will appoint counsel for indigent civil litigants only in “exceptional 8 circumstances.”82 “When determining whether ‘exceptional circumstances’ exist, a court must 9 consider ‘the likelihood of success on the merits as well as the ability of the petitioner to 10 articulate his claims pro se in light of the complexity of the legal issues involved.”83 “Neither of 11 these considerations is dispositive and instead must be viewed together.”84 12 In this case, I do not find exceptional circumstances that warrant the appointment of 13 counsel. It is rare for this court to appoint counsel and even more rare to appoint counsel before 14 screening and service of a complaint. Kane filed this motion before he had filed a complaint, so
15 he clearly had not established any likelihood of success at all. Although Kane subsequently filed 16 a complaint, he chose to include only Bivens claims that I am dismissing with prejudice. 17 Therefore, I deny without prejudice the motion for appointment of counsel. I also deny as moot 18 the motion for a decision on the motion for appointment of counsel,85 and I caution Kane that he 19
20 80 ECF No. 5. 21 81 Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). 82 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). 22 83 Id. 23 84 Id. 85 ECF No. 9. 1 need not file motions seeking court action on pending requests. Doing so only clogs the docket 2 and creates needless additional work for this court, which delays rulings. 3 VI. Motions for Judicial Notice [ECF Nos. 11, 13] 4 Kane has also filed two motions “for judicial notice.” This term does not mean what 5 Kane thinks it means. “Judicial notice” is a legal term of art, and it does not mean that a litigant
6 just wants to tell the court something. Federal Rule of Evidence 201 permits the court to take 7 judicial notice of an adjudicative fact that is “not subject to reasonable dispute” because it is 8 either “generally known within the trial court’s territorial jurisdiction” or “can be accurately and 9 readily determined from sources whose accuracy cannot reasonably be questioned.”86 For 10 example, a party could ask the court to take judicial notice that Christmas Day in 2019 fell on a 11 Wednesday. 12 Kane has offered nothing that this court can properly take judicial notice of under the 13 Rules of Evidence. Instead, it appears that he is using this term when he just wants to tell or ask 14 the court something—when he wants to notify the court of some reason or desire. This is not a
15 proper use of a motion for judicial notice, and Kane is cautioned not to utilize a motion for 16 judicial notice to tell the court things he wants it to know.87 17 18 19 86 Fed. R. Evid. 201(b)(1), (2); accord U.S. v. Chapel, 41 F.3d 1338, 1342 (9th Cir. 1994). 20 87 In his second motion for judicial notice, ECF No. 13, Kane is asking the court to “proceed” with his action so he can “achieve the level Mr. Bacon is at” in his litigation. Kane is advised 21 that all cases proceed at different rates for different reasons, and he should not expect that his case will move at the speed or in the same course as any other person’s case. And again, filing a 22 motion to ask the court to issue a decision on a pending motion only serves to further delay a case. The court is aware of what motions it has pending; if it hasn’t ruled on them, it’s probably 23 because the court has hundreds of other motions in hundreds of other cases. Because of this court’s significant caseload, rulings on motions often take many months. 1 VII. Opposition to the Court’s order [ECF No. 8] 2 Kane filed a document that styled as a “Reply Memorandum in Opposition to the Courts 3 Order.”88 He filed this document before filing his complaint. In it, Kane refers to previously 4 requesting certification for a class action.89 This appears to be a reference to Bacon’s complaint 5 that included a request for class certification. As I have stated, Kane was not and is not a party to
6 that action, and Bacon’s complaint is not Kane’s complaint. Kane therefore had not made a 7 request for class certification at the time of my order. Furthermore, Kane appears to misinterpret 8 my ruling as being a substantive ruling on the request Bacon made in his complaint for class 9 certification. In my ruling, I explicitly stated that I did not need to address Bacon’s request for 10 class certification at that time and merely noted that Bacon could not serve as an attorney on 11 behalf of the class because he is not an attorney.90 In his opposition, Kane asks the court to grant 12 class certification, and he made this request before he even filed a complaint.91 Kane 13 subsequently filed a complaint, but I am dismissing all the claims in that complaint, so there are 14 no claims that could provide the basis for a class certification at this time. Therefore, it is
15 unnecessary for me to rule on any request by Kane for class certification at this time and I will 16 not do so. 17 Conclusion 18 IT IS THEREFORE ORDERED that Kane’s original complaint is the complaint filed on 19 July 6, 2010 (ECF No. 10) and is the operative complaint. 20 IT IS FURTHER ORDERED that: 21 88 ECF No. 8. 22 89 Id. at 1. 23 90 ECF No. 1 at 2 n.7. 91 ECF No. 8 at 4. 1 • Kane’s application to proceed in forma pauperis [ECF No. 6] is GRANTED. Plaintiff 2 need not pay an initial installment fee, prepay fees or costs or provide security for fees or 3 costs, but he is still required to pay the full $350 filing fee under 28 U.S.C. § 1915, as amended. This full filing fee will remain due and owing even if this case is dismissed or 4 otherwise unsuccessful. In order to ensure that plaintiff pays the full filing fee, IT IS 5 FURTHER ORDERED that the Nevada Department of Corrections must pay to the 6 Clerk of the United States District Court, District of Nevada, 20% of the preceding 7 month’s deposits to the account of Shannon K Kane, # 46827-048, in the months 8 that the account exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk is directed to SEND a copy of this order to (1) the Finance Division 9 of the Clerk’s Office and (2) the Chief of Inmate Services for Core Civic, 2190 East 10 Mesquite Ave., Pahrump, NV 89060. 11 12 IT IS FURTHER ORDERED that all of the Bivens claims are dismissed with 13 prejudice, as amendment would be futile. 14 IT IS FURTHER ORDERED that Kane has leave to file an amended complaint 15 alleging a non-Bivens Eighth Amendment claim for injunctive relief that is based on 28 16 U.S.C. § 1331 and the court’s inherent equitable powers. If Kane chooses to file an amended 17 complaint, he must write the words “First Amended Complaint” in the caption. The amended 18 complaint will be screened in a separate screening order. If Kane does not file an amended 19 complaint by August 20, 2020, this action will be dismissed for failure to state a colorable 20 claim. 21 IT IS FURTHER ORDERED that Kane’s pending motions [ECF Nos. 4, 5, 9, 11, and 22 13] are DENIED. 23 1 IT IS FURTHER ORDERED that I decline to rule on any request for class certification at this time. 3 Dated: July 20, 2020 7 es U.S. District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23