Michael McRae v. Bairamian Dikran

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 2019
• Docket: 18-17019
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL SCOTT McRAE, No. 18-17019

Plaintiff-Appellant, D.C. No. 1:16-cv-01066-LJO-GSA

v. MEMORANDUM* BAIRAMIAN DIKRAN, Health Care Provider at Memorial Medical Center Modesto; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Federal prisoner Michael Scott McRae appeals pro se from the district

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

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Federal Tort Claims Act (“FTCA”), alleging claims stemming from his medical

treatment. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C.

§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (dismissal

under 28 U.S.C. § 1915(e)(2)(B)(ii)). We affirm in part, reverse in part, and

remand.

The district court properly dismissed McRae’s FTCA claim because McRae

failed to allege facts sufficient to state a cognizable claim. See Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (a plaintiff must allege facts that “allow[] the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged”); McNeil v. United States, 508 U.S. 106, 113 (1993) (the FTCA bars a

claimant from bringing suit in federal court unless the claimant has first exhausted

administrative remedies); Lance v. United States, 70 F.3d 1093, 1095 (9th Cir.

1995) (“The United States is the only proper defendant in an FTCA action.”).

The district court dismissed McRae’s deliberate indifference claim on the

basis that McRae’s allegations were too conclusory to infer that any of the

defendants knew of and disregarded a substantial risk of serious harm to McRae’s

health. However, McRae alleged in his second amended complaint that defendants

2 18-17019 performed surgery on McRae’s back without his consent. Liberally construed,

these allegations “are sufficient to warrant ordering [defendants] to file an answer.”

Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); Toguchi v. Chung, 391

F.3d 1051, 1057 (9th Cir. 2004) (a prison official is deliberately indifferent only if

he or she knows of and disregards an excessive risk to inmate health); see also

Carlson v. Green, 446 U.S. 14, 17-18 (1980) (recognizing a Bivens claim for

deliberate indifference to serious medical needs under the Eighth Amendment).

We therefore reverse the judgment on this claim only and remand for further

proceedings.

Because we reverse the dismissal on one of McRae’s federal claims, we also

remand for the district court to reconsider whether it will exercise supplemental

jurisdiction over McRae’s state law claims.

We reject as unpersuasive McRae’s contentions regarding the district court’s

dismissal of his action prior to defendants being served.

AFFIRMED in part, REVERSED in part, and REMANDED.

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