1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NORVELL ANDREW, Case No.: 1:22-cv-01290-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF 13 v. PLAINTIFF’S THIRD AMENDED COMPLAINT 14 UNITED STATES OF AMERICA, et al., (Doc. 54) 15 Defendants. 14-DAY OBJECTION DEADLINE 16
17 Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in 18 this civil rights action. 19 I. RELEVANT BACKGROUND 20 On March 26, 2025, the assigned district judge issued his Order Adopting in Part Findings 21 and Recommendations. (Doc. 49.) Judge Sherriff found that Plaintiff could proceed on her Eighth 22 Amendment Bivens1 claims against Defendants Palentghi, Spheres, and Placencia for deliberate 23 indifferent to serious medical needs. (Id. at 4-5.) However, Judge Sherriff determined Plaintiff 24 could not state a Bivens action against the defendants for a failure to protect violation of the 25 Eighth Amendment. (Id. at 5-6.) Next, Judge Sherriff found Plaintiff’s second amended complaint 26 failed to sufficiently allege a claim under the Federal Tort Claims Act (FTCA). (Id. at 6-7.) 27
1 1 Plaintiff was granted leave to “amend her complaint to allow her to attempt to sufficiently plead 2 her compliance with the FTCA’s administrative claim requirement and the timeliness of her filing 3 of her FTCA claim in federal court, or to establish why equitable tolling would apply to excuse 4 any failure to meet such FTCA deadlines.” (Id. at 8.) Therefore, Judge Sherriff ordered the action 5 may proceed on Plaintiff’s Bivens claim against Palentghi, Spheres, and Placencia for deliberate 6 indifference to Plaintiff’s serious medical needs, dismissed all other claims and defendants for a 7 failure to state a claim, excepting Plaintiff’s potential FTCA claim, and directed Plaintiff, within 8 30 days, to file: (1) a third amended complaint including her FTCA claim and her Bivens claims 9 against Defendants Palentghi, Spheres, and Placencia for deliberate indifference to Plaintiff’s 10 serious medical needs; or (2) written notice to the Court that Plaintiff wished to forego 11 amendment and to proceed only on the Bivens claims in Plaintiff’s second amended complaint 12 against Defendants Palentghi, Spheres, and Placencia for deliberate indifference to her serious 13 medical needs; or (3) a notice of voluntary dismissal if Plaintiff no longer wished to pursue this 14 action. (Id. at 8-9.) Further, Judge Sherriff ordered that, unless Plaintiff responded to the Court’s 15 within 30 days, this action was to proceed “only on the Bivens claim” against Defendants 16 Palentghi, Spheres, and Placencia for deliberate indifference to Plaintiff’s serious medical needs. 17 (Id. at 9.) 18 On May 2, 2025, when Plaintiff did not respond to Judge Sherriff’s March 26, 2025, 19 order, the undersigned issued the Order Finding Service of Second Amended Complaint 20 Appropriate and Forwarding Service Documents to Plaintiff for Completion and Return Within 21 Thirty Days. (Doc. 50.) 22 On June 12, 2025, when Plaintiff had failed to timely respond to the Court’s order to 23 return certain service documents, the undersigned issue an Order to Show Cause (OSC) Why 24 Action Should Not Be Dismissed for Failure to Obey Court Order. (Doc. 51.) Plaintiff was 25 directed to show cause in writing why she had not complied with the Court’s May 2, 2025, order, 26 or, alternatively, to return the completed service documents, within 14 days. (Id. at 2.) 27 Plaintiff filed her response to the OSC on July 8, 2025. (Doc. 52.) Plaintiff states she did 1 repeatedly denied access to her legal documentation. She also asked the Court to comply with 2 Bureau of Prisons criteria for addressing legal mail to be opened in the presence of an inmate. 3 Further, Plaintiff sought permission to file a third amended complaint and asked for a formal 4 investigation into mail tampering and access to her legal documentation and property. (Id. at 1-4.) 5 On July 14, 2025, the Court issued its Order Discharging Order to Show Cause, Order 6 Vacating Order Regarding Service Issued May 2, 2025, and Order Granting Extension of Time 7 Within Which to File Third Amended Complaint. (Doc. 53.) As to the latter, Plaintiff was 8 directed to file any third amended complaint within 30 days. (Id. at 3.)2 9 On August 12, 2025, Plaintiff filed her third amended complaint.3 (Doc. 54.) 10 II. SCREENING REQUIREMENT 11 The Court is required to screen complaints brought by prisoners seeking relief against a 12 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 13 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 14 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 15 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 16 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 17 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 18 III. PLEADING REQUIREMENTS 19 A. Federal Rule of Civil Procedure 8(a) 20 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 21 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 22 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 23 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 24 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 25
26 2 The Court also directed the Clerk of the Court to re-serve Plaintiff with Judge Sherriff’s March 26, 2025, order. Further, Plaintiff’s address of record now includes the following notation: “SPECIAL MAIL Open Only in the 27 Presence of Inmate.”
3 1 quotation marks & citation omitted). 2 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 3 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 4 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 5 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 6 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 7 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 8 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 9 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 10 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 11 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 12 of a civil rights complaint may not supply essential elements of the claim that were not initially 13 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 14 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 15 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 16 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 17 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 18 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 19 B. Linkage and Causation 20 Section 1983 provides a cause of action for the violation of constitutional or other federal 21 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 22 section 1983, a plaintiff must show a causal connection or link between the actions of the 23 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 24 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 25 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 26 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 27 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 1 C. Supervisory Liability 2 Liability may not be imposed on supervisory personnel for the actions or omissions of 3 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 4 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 5 adduce evidence the named supervisory defendants “themselves acted or failed to act 6 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 7 Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 8 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 9 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 10 no respondeat superior liability under section 1983”). 11 Supervisors may be held liable only if they “participated in or directed the violations, or 12 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 13 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 14 ‘series of acts by others which the actor knows or reasonably should know would cause others to 15 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 16 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 17 inaction in the training and supervision of subordinates). 18 Supervisory liability may also exist without any personal participation if the official 19 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 20 rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 942 21 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 22 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 23 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 24 deprivation resulted from an official policy or custom established by a ... policymaker possessed 25 with final authority to establish that policy.” Waggy v. Spokane Cnty. Washington, 594 F.3d 707, 26 713 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such 27 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 1 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 2 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 3 IV. DISCUSSION 4 A. Plaintiff’s Third Amended Complaint 5 On the face of the third amended complaint, Plaintiff has selected the box denoting a 6 Bivens action and added boxes with check marks for the “Federal Tort Claims Act” and “§ 2241 7 Habeas Corpus.” (Doc. 54 at 1.) Plaintiff names the following entities and/or individuals as 8 Defendants: 9 United States of America 10 Andrew Ciolli 11 Kimberly Bennett 12 Counselor Lyons 13 Counselor Haslett 14 Unit Manager Schaffer 15 Counselor Beaudreau 16 Case Manager Bollinger 17 Nurse Steven Spheres 18 Nurse Young 19 Dr. Unknown Palentghi 20 Lieutenant Lemur 21 Lieutenant Heldman 22 Lieutenant Dewilde 23 Officer Barnes 24 Officer McClure 25 Officer Ceja 26 Officer Lopez 27 Officer Gene Simpson 1 S.I.S.
2 (Doc. 54 at 1-2, 5.) Plaintiff seeks “to have [her] left eye [and left hand] reset,” $15,000,000 in 3 damages from Defendant United States, $507,000 in damages from the remaining Defendants, 4 and “immediate release.” (Id. at 7.) 5 B. The Factual Allegations 6 On or about February 20, 2020, Plaintiff arrived at USP Atwater. (Doc. 54 at 5.) She was 7 immediately placed in a cell with an active Vice Lords gang member who told Plaintiff she could 8 not live with him because “it’s against gang laws for him to live with a homosexual.” (Id.) 9 Plaintiff and the inmate promptly went to the officer’s station and advised Defendant Barnes 10 about the situation. (Id. at 5-6.) Barnes separated the two and moved Plaintiff to an empty cell, 11 where she remained for about two weeks. (Id. at 6.) 12 On about March 5, 2020, Defendant Lyons directed Plaintiff to pack her belongings 13 because she was being moved and would share a cell with inmate Brooks. (Id.) Plaintiff asserts 14 she advised Lyons that Brooks had already indicated to Plaintiff that he did not want to share a 15 cell with homosexuals. (Id.) Plaintiff advised Lyons “that she did not want to die about a 16 government cell” and asked not to be placed with Brooks. (Id. at 8.) Further, Plaintiff “offered a 17 feasible alternative by telling Lyons there was another trans person on the unit James Mitchell” 18 and asked to be housed with Mitchell. (Id.) Lyons denied Plaintiff’s request and indicated 19 “Mitchell could not have a celly at the moment and would remain in a single cell.” (Id.) Lyons 20 then advised Plaintiff she could move to the cell shared with Brooks or go to special housing. 21 (Id.) Plaintiff told Lyons that “she was not fighting anyone for a cell and she did not know what 22 (weapons) Brooks had in his cell and [she] would rather go to SHU than be stabbed.” (Id.) Lyons 23 “called compound” and Plaintiff was escorted “to SHU.” (Id.) Plaintiff later received an incident 24 report “for a 306 infraction refusing to program.” (Id.) 25 Plaintiff remained in the SHU for seven days until March 12, 2020, when she was placed 26 “back in cell 224 with inmate Brooks.” (Doc. 54 at 8-9.) That same date, inmate Rosen was 27 released from the SHU and assigned to cell 224. (Id. at 9.) Because three persons were assigned 1 was willing to house with inmate Mitchell. (Id.) Instead, Lyons housed Plaintiff in “Unit 6-B in 2 cell 109 alone” for about four days. (Id.) 3 On or about March 16, 2020, Defendant Haslett advised Plaintiff he believed she was 4 “trying to manipulate the system and was going to get a cellmate.” (Doc. 54 at 9.) When Plaintiff 5 asked Haslett to be housed with inmate Mitchell, Haslett denied the move and housed Plaintiff in 6 “Unit 6-A with inmate James Ladson.” (Id. at 9-10.) Ladson advised Plaintiff that it was against 7 his Jewish faith to be housed with a homosexual; the two then “spoke with the unknown officers 8 who were in the office.” (Id. at 10.) Plaintiff and Ladson were advised by the officers that they 9 “could not do cell moves” and directed them to speak with the lieutenant during chow. (Id.) 10 Plaintiff and Ladson spoke with Defendant Lemur; Lemur advised that “if there were any empty 11 cells in the unit [to] tell the unit officer to move [Plaintiff].” (Id.) Further, Lemur stated that if the 12 officer refused to do so, Plaintiff and Ladson were to “tell them to call him (Lemur).” (Id.) On 13 their way back to the housing unit, Ladson and Plaintiff stopped to speak with Haslett who was 14 “in front of the housing Unit 6-B;” Haslett told them they were “not in his unit.” (Id.) 15 Plaintiff alleges that she spoke with Defendant Bollinger on March 17, 2020, asking to be 16 moved. (Doc. 54 at 10-11.) Bollinger stated he was not responsible for cell moves and referred 17 her to Defendant Beaudreau. (Id. at 11.) When Plaintiff learned Beaudreau was not working on 18 that date, Plaintiff told Bollinger that inmate Ladson had pulled a knife on her the night before 19 and given Plaintiff a deadline by which to move out of Ladson’s cell. (Id.) Bollinger called 20 Defendant Schaffer in response to Plaintiff’s assertion; Schaffer told Bollinger that Plaintiff was 21 trying to manipulate the system to get a single cell. (Id.) Plaintiff told Bollinger she was not 22 seeking a single cell, rather she sought to live with another inmate peacefully and indicated her 23 desire to house with inmate Mitchell. (Id.) Further discussion was had and Bollinger called 24 Schaffer again, but Schaffer refused to allow Plaintiff to move. (Id.) Later that day, Plaintiff 25 spoke with Defendants Scott and Bennett, who told Plaintiff to “‘get a knife.’” (Id.) Defendants 26 Vandenhover and Zaragoza were also present. (Id.) After Plaintiff returned to the shared cell, 27 Ladson continued to threaten Plaintiff. (Id.) 1 situation. (Doc. 54 at 11.) Schaffer then appeared and whispered in Ciolli’s ear, who then told 2 Plaintiff to come and see him tomorrow. (Id. at 11-12.) When Plaintiff stated to Ciolli that “she 3 may be dead tomorrow,” Ciolli left. (Id. at 12.) Later that evening, Ladson threatened Plaintiff 4 with a knife and gave her 24 hours to “be out of” their cell. (Id.) 5 On March 19, 2020, pursuant to a “call-out for medical,” Plaintiff was seen by Defendants 6 Palentghi and Young. (Doc. 54 at 12.) Upon returning to her assigned cell, Plaintiff was stabbed 7 in the face and beaten with a lock by inmate Ladson. (Id.) Plaintiff defended herself before two 8 “unknown unit officers” responded, but by then the attack had ceased. (Id.) Plaintiff was 9 restrained and returned to medical. (Id.) Plaintiff told Palentghi that she had been attacked by 10 Ladson due to her sexual preferences; Palentghi “crack[ed] jokes” and stitched Plaintiff’s left eye 11 to stop it from bleeding. (Id.) As Palentghi treated the stab wound to Plaintiff’s face, the Q-Tip 12 swab “came away a vibrant blue.” (Id.) At one point, Palentghi commented that Plaintiff “‘must 13 be a crip you bleed blue.’” (Id.) Eventually Palentghi declared he was finished and released 14 Plaintiff. (Id.) Once in a cell in the SHU, Plaintiff saw something protruding from her face. (Id. at 15 12-13.) She worked it free after poking and prodding it, realizing then the object was colored 16 pencil lead. (Id. at 13.) Defendant Simpson responded to Plaintiff pressing “the duress button.” 17 (Id.) When more lead protruded from Plaintiff’s face, Simpson returned her to medical. (Id.) After 18 joking about how Plaintiff must miss him, Palentghi extracted more lead and swabbed the area for 19 about 30 minutes, before stating his belief he “got most of the lead out” and that Plaintiff should 20 be okay because most colored pencils were not toxic. (Id.) 21 On or about March 21, 2020, Defendants Lopez and Ceja approached Plaintiff in the 22 SHU, accompanied by inmate Jefrontys Clyburn. (Doc. 54 at 13.) Clyburn told Lopez and Ceja 23 that as an active gang member he could not live with a homosexual. (Id.) Lopez and Ceja replied 24 that Plaintiff and Clyburn “were compatible on paper and that’s all that matters.” (Id.) Plaintiff 25 asked to speak with the lieutenant on shift. (Id.) Simpson then responded to the area and directed 26 Plaintiff “to submit to handcuffs for a celly.” (Id.) Plaintiff advised Simpson she had just been 27 stabbed and beaten with a lock for a similar reason, was in no shape to defend herself against a 1 that Plaintiff and Clyburn were compatible on paper. (Id. at 14.) Plaintiff asked to see the 2 lieutenant; Defendant Cervantes responded about an hour later and ordered Plaintiff to cuff up. 3 (Id.) When Plaintiff tried to explain, Cervantes “began to scream as loud as he could to drown” 4 Plaintiff out. (Id.) Cervantes threatened Plaintiff with “mace, restraints, incident reports & still 5 being housed with Clyburn.” (Id.) Plaintiff tried again to speak with Cervantes, but he “became 6 belligerent.” (Id.) Ultimately, as Plaintiff submitted to handcuffs, Clyburn was moved into the cell 7 and his handcuffs were removed. (Id.) Clyburn immediately turned and punched Plaintiff, who 8 fell to the ground, then began kicking her. (Id.) Officers responded by spraying chemical agents 9 and ordering Clyburn to stop attacking Plaintiff. (Id.) Plaintiff asserts the attack continued “until 10 [Clyburn] was tired,” only then did Clyburn cease his attack. (Id.) Clyburn then told Ceja, Lopez, 11 and Cervantes that he would kill any inmate he did not want to be celled with before submitting 12 to handcuffs. (Id.) 13 After Clyburn’s attack, Plaintiff was taken to medical and treated by Defendants Palentghi 14 and Spheres. (Doc. 54 at 14.) Spheres restitched Plaintiff’s left eye as the wound had opened. (Id.) 15 Palentghi eventually told Plaintiff that her hand was broken during the altercation with inmate 16 Ladson and provided her with a brace and an Ace bandage to wrap “her hand up once she [was] 17 back in her assigned cell.” (Id. at 15.) The wound on Plaintiff’s face had a scab so Palentghi did 18 not swab it and left it to heal. (Id.) Plaintiff complained to both Palentghi and Spheres about pain 19 and “that her left eye is off center and constantly jumps and twitches,” causing headaches. (Id.) 20 Spheres stated Plaintiff probably had an orbital fracture, but it was “too expensive to fix.” (Id.) 21 Plaintiff was treated with Tylenol with codeine for pain as Ibuprofen “was not working and 22 [Plaintiff] had taken a whole bottle in two (2) days.” (Id.) 23 On or about April 12, 2020, while housed in the “SHU overflow unit,” Plaintiff and her 24 cellmate Ira Taylor were being escorted to the shower by Defendants McClure and Barnes. (Doc. 25 54 at 15.) Taylor began speaking with a “fellow gang member named Tim,” who asked Taylor 26 about Plaintiff. (Id.) Tim advised Taylor it was against gang law to house with Plaintiff and that 27 Taylor should get out of the cell immediately, stating “or you know what’s up.” (Id.) The 1 Barnes returned about ten minutes later, directing inmates to submit to restraints for a return to 2 their cells. (Id.) When Barnes asked Plaintiff “what’s going on” during the escort back to her cell, 3 Plaintiff asked Barnes “did he not hear the conversation between Taylor and his gang brother 4 when dude just told Taylor to get out of the cell with [Plaintiff] immediately or suffer the 5 consequences.” (Id. at 15-16.) Barnes then left Plaintiff in her cell. (Id. at 16.) About an hour 6 later, the emergency response team arrived with Defendants Heldman and Dewilde. (Id.) 7 Heldman heard Plaintiff’s explanation of the situation while the others “congregated at the 8 shower dealing with” Taylor. (Id.) After Taylor eventually submitted to handcuffs and was 9 returned to their shared cell, Plaintiff states she “refused to accept Taylor” so she could 10 “document on camera that there was a threat & [she] did not feel safe in the cell with inmate 11 Taylor.” (Id.) Dewilde called the response team to the cell and Plaintiff began speaking “on tape” 12 to Heldman, explaining her life was in danger if she was forced to house with Taylor. (Id.) 13 Heldman ignored Plaintiff and advised she would be given three verbal commands to comply 14 with restraints; a refusal to submit would result in chemical agents. (Id.) Plaintiff submitted to 15 restraints and Taylor was brought to the cell where his restraints were removed. (Id.) Taylor then 16 began punching and kicking Plaintiff before Taylor was forcibly removed. (Id.) Plaintiff states 17 she was placed in the shower to be seen by medical but was left there “for hours” until Defendant 18 Placencia arrived. (Id.) Placencia told Plaintiff there was nothing wrong with her because he “was 19 about to get off work & left.” (Id.) 20 Concerning her administrative remedies, Plaintiff states she “filed BP 8, 9, 10, and 11 on 21 every one (1) of these issues yet never received a response to any of them.” (Doc. 54 at 16.) 22 Plaintiff asserts she filed a “Form 95 Federal Tort Claim Act to Western Regional Office” after 23 she left Atwater and completed the process while housed in “AUSP Thompson.” (Id.) Plaintiff 24 states that in November or December 2021, she was “working on her lawsuit yet was shipped 25 from” that facility “in May of 2022 to USP Coleman I and did not receive her property … until 26 June of 2022.” (Id.) Plaintiff then asserts she “began working on the case but was forced to sign 27 on protective custody because she had just left the RHU program in AUSP Thompson and as a 1 compound.” (Id. at 16-17.) Next, Plaintiff asserts she “went to the SHU and did not receive her 2 legal work until August of 2022.” (Id.) Plaintiff further asserts she was immediately transferred to 3 the SHU at USP Coleman II, before she obtained her legal work in late August and “completed 4 the suit at hand and got it to this court.” (Id.) Plaintiff states the complaint “was about two (2) 5 months late due to [her] constantly being sent to SHU denied access to legal work & being 6 shipped from prison to prison.” (Id.) 7 Next, Plaintiff contends all Defendants were “negligent in the scope of their duties.” (Doc. 8 54 at 17.) She maintains the Bureau of Prisons “makes it mandatory that all inmates have a 9 cellmate,” and that “the only thing they look for is prior incidents & geographics, so sexual 10 preference, gang affiliation, religions, get lost in the equation.” (Id.) Plaintiff contends that 11 “mandating cellmates is to attempt to eliminate suicides. But it increases homicides & assaults” 12 when staff place incompatible inmates together, refusing to move them. (Id.) She asserts the 13 United States “is negligent through policies that were created & implement[ed] by its employees, 14 who seem to forget that inmate safety is also in the policy, and to fail to protect inmates creates an 15 [independent] due process violation because BOP staff fail to follow their own procedural rules.” 16 (Id.) 17 Under a heading titled “Habeas Corpus § 2241,” Plaintiff states the Bureau of Prisons has 18 “continuously placed” her in imminent danger. (Doc. 54 at 17.) She asserts the water is 19 contaminated at USP Coleman II. (Id.) Plaintiff alleges inmates are placed in unsafe conditions 20 and that her “eye is giving [her] real problems & being ignored.” (Id.) She states the “wrong 21 continues on every level” and asks “to be released so” she can “go get the medical care” she 22 needs. (Id.) 23 C. Plaintiff’s Claims 24 Plaintiff asserts a cause of action titled “Deliberate Indifference, Negligence, Failure to 25 Protect, Cruel & Unusual Punishment.” (Doc. 54 at 5.) 26 Bivens Actions 27 Prisoners may bring claims under 42 U.S.C. section 1983 for violations of constitutional 1 cause of action for the deprivation of any rights, privileges, or immunities secured by the 2 Constitution and laws of the United States.” Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508 (1990) 3 (quoting 42 U.S.C. § 1983). A civil rights action under section 1983 is the proper remedy for a 4 constitutional challenge to the conditions of imprisonment. See Preiser v. Rodriguez, 411 U.S. 5 475, 499 (1973) (“[A] § 1983 action is a proper remedy for a state prisoner who is making a 6 constitutional challenge to the conditions of his prison life, but not to the fact or length of his 7 custody”). 8 An action under Bivens is the federal analog to suits brought against state officials under 9 section 1983. Iqbal, 556 U.S. at 676-77 (quoting Hartman v. Moore, 547 U.S. 250, 254, n.2 10 (2006)). Bivens actions and section 1983 claims “are identical save for the replacement of a state 11 actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th 12 Cir. 1991). Pursuant to Bivens, under limited circumstances, federal actors can be liable for a 13 violation of an individual’s civil rights. Minneci v. Pollard, 565 U.S. 118, 122–23 (2012). A 14 plaintiff may sue a federal officer in his or her individual capacity for damages for violating the 15 plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must 16 allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that 17 the alleged violation was committed by a federal actor. Kandi v. Mgmt. & Training Corp., No. 18 1:16-cv-00794-BAM (PC), 2017 WL 2081117, at *3 (E.D. Cal. May 15, 2017). 19 Plaintiff Improperly Asserts Previously Dismissed Claims 20 As noted above, Judge Sherriff issued an order on March 26, 2025, addressing the claims 21 asserted in Plaintiff’s second amended complaint. (Doc. 49.) Following de novo review, Plaintiff 22 was permitted to proceed on her Bivens claims for deliberate indifference to serious medical 23 needs against Defendants Palentghi, Spheres, and Placencia. (Id. at 2, 4-5, 8.) Judge Sherriff also 24 found Plaintiff failed to state a claim against Defendant Young concerning deliberate indifference 25 to serious medical needs and against Defendant United States. (Id. at 2, 8.) Plaintiff was granted 26 leave to amend her complaint to assert her claims under the Federal Tort Claims Act (FTCA) 27 against the United States. (Id. at 6-8.) However, concerning Plaintiff’s failure to protect claims 1 dismissed those claims without leave to amend. (See id. at 5-6, 8.) 2 Therefore, Plaintiff may not state Eighth Amendment failure to protect claims against 3 Defendants Barnes, Beaudreau, Bennett, Bollinger, Ceja, Ciolli, Dewilde, Haslett, Heldmann, 4 Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson. Plaintiff was not granted leave to amend 5 her failure to protect claims against those individuals because such claims are not cognizable and 6 the claims against the previously named defendants — including those named above in Plaintiff’s 7 third amended complaint — were dismissed. (See Doc. 49 & 50.) 8 To the extent Plaintiff intended to assert failure to protect claims against named 9 Defendants “Officer Unknown #2” and “S.I.S.” in her third amended complaint, any such claim is 10 not cognizable for the same reasons Eighth Amendment failure to protect claims are not 11 cognizable against the other named Defendants. 12 Given the above, the undersigned does not address any failure to protect allegation 13 asserted in Plaintiff’s third amended complaint as such claims are not cognizable in this action. 14 See Marquez v. Rodriguez, 81 F.4th 1027, 1031 (9th Cir. 2023) (failure to protect claim not 15 cognizable under Bivens); see also Garraway v. Ciufo, No. 1:17-cv-00533-KJM-GSA, 2025 WL 16 1027523, at *4-6 (E.D. Cal. Apr. 7, 2025) (granting government’s motion for reconsideration of 17 prior denial of government’s motion for judgment on the pleadings and dismissing Garraway’s 18 Eighth Amendment failure to protect claims with prejudice, citing Marquez).4 Accordingly, the 19 undersigned will recommend dismissal of those claims. 20 Deliberate Indifference to Serious Medical Needs 21 Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a 22 prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need 23 is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton 24 infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. 25 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 26 4 See also Chambers v. Herrera, 78 F.4th 1100, 1105 (9th Cir. 2023) (plaintiff’s “Eighth Amendment failure to 27 protect claim fails to state a claim under Egbert”); Fisher v. Hollingsworth, 115 F.4th 197, 206 (3d Cir. 2024) (“there is no implied constitutional damages action against federal officials who fail to protect prisoners from the criminal 1 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th 2 Cir. 1997) (en banc)). 3 To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must 4 first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition 5 could result in further significant injury or the unnecessary and wanton infliction of pain. Second, 6 the plaintiff must show the defendants’ response to the need was deliberately indifferent.” 7 Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 8 (quotation marks omitted)). 9 As to the first prong, indications of a serious medical need “include the existence of an 10 injury that a reasonable doctor or patient would find important and worthy of comment or 11 treatment; the presence of a medical condition that significantly affects an individual’s daily 12 activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 13 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 14 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs 15 include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and 16 worthy of comment or treatment; the presence of a medical condition that significantly affects an 17 individual’s daily activities; or the existence of chronic and substantial pain”). 18 As to the second prong, deliberate indifference is “a state of mind more blameworthy than 19 negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or 20 safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). 21 Deliberate indifference is shown where a prison official “knows that inmates face a substantial 22 risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” 23 Id. at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a 24 prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 25 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was 26 substantial; however, such would provide additional support for the inmate’s claim that the 27 defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 1 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 2 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from 3 which the inference could be drawn that a substantial risk of serious harm exists,’ but that person 4 ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison 5 official should have been aware of the risk, but was not, then the official has not violated the 6 Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson, 290 F.3d at 1188). 7 To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted 8 from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see Jett, 439 F.3d at 1096; 9 Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference 10 based on delay in treatment must show delay led to further injury). 11 As before, the undersigned finds Plaintiff states plausible deliberate indifference to serious 12 medical needs claims against Defendants Palentghi, Spheres, and Placencia. (See Doc. 46 at 15- 13 16.) Once again, the undersigned finds Plaintiff fails to state a claim against Defendant Young. 14 The only factual allegation involving Young is Plaintiff’s assertion that she was seen by Young 15 on March 19, 2020, before Ladson’s attack. Plaintiff makes no further reference to Young, nor 16 does she assert any allegation that can liberally construed as deliberate indifference. (See Doc. 46 17 at 16 [“No facts indicate Young took any action or inaction amounting to deliberate indifference 18 to Plaintiff’s serious medical needs”].) 19 Even assuming Plaintiff was given leave to amend her claim against Defendant Young, 20 she fails to cure the deficiency identified in this Court’s previous screening order. Because 21 Plaintiff’s third amended complaint is deficient for the same reasons as those articulated in the 22 Court’s screening order involving her second amended complaint, and because Plaintiff has failed 23 to remedy that deficiency, the Court assesses that Plaintiff cannot cure her pleadings and, thus, 24 that leave to amend would be futile. See Hartman v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 25 2013) (affirming dismissal of first amended complaint and finding leave to amend futile where 26 complaint’s allegations belied plaintiff’s entitlement to relief). 27 In sum, the undersigned will recommend this action proceed on Plaintiff’s deliberate 1 and that any claim against Defendant Young be dismissed without leave to amend. 2 Plaintiff’s FTCA Claims 3 As indicated above, the assigned district judge granted Plaintiff leave to amend her tort 4 claims against Defendant United States. (Doc. 49 at 6-8.) Specifically, Plaintiff was advised that 5 she had failed to sufficiently allege that she had timely complied with the relevant claim filing 6 deadline and had timely filed this action. (Id. at 6.) Further, the assigned district judge held: 7 [T]o allege timely filing under the FTCA, plaintiff must allege facts sufficient to show both (1) that she timely filed [the] claim with the 8 Federal Bureau of Prisons (“BOP”) within two years of its accrual, and, (2) if BOP issued a denial of her claim, that she filed this case 9 within six months of that denial, or in the case of a failure to meet either or both of those deadlines, that she is entitled to equitable 10 tolling as to any deadline that was not met. See [U.S. v.] Wong, 575 U.S. [402,] 420 [(2015)]. 11 Plaintiff’s alleged injuries occurred during the timeframe from 12 February 20, 2020, to April 21, 2020. See generally SAC. Plaintiff’s SAC fails to establish that she timely filed any administrative FTCA 13 claims within two years of the accrual of her claims, and therefore she fails to establish a cause of action under the FTCA. However, 14 plaintiff attached to her initial complaint letters from the Federal Bureau of Prisons denying her administrative claims under the 15 FTCA. Doc. 1 at 35–36. These denial letters appear to reflect that plaintiff timely filed her FTCA claims with BOP within two years of 16 her alleged injuries, but plaintiff did not include those letters with her SAC and there are no such allegations in the SAC. An amended 17 complaint “supersedes the original, the latter being treated thereafter as non-existent.” Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 18 2011). If plaintiff elects to file a third amended complaint, she must include all required allegations concerning her FTCA claim, 19 including that she timely filed her administrative claims within two years of the claims’ accrual. 20 It also appears that plaintiff may not have timely filed her FTCA 21 claim in federal court. The BOP letters denying her administrative FTCA claims are dated between November 24, 2021, and December 22 13, 2021. Id. at 33–36. Plaintiff filed her initial complaint with this Court on September 29, 2022, over nine months later, well after the 23 six-month statutory deadline under 28 U.S.C. § 2401(b). Doc. 1. 24 While the limitations periods in 28 U.S.C. § 2401(b) are subject to the doctrine of equitable tolling, a claimant has a high bar to make 25 such a showing. Wong, 575 U.S. at 411. To claim equitable tolling, a litigant must establish “(1) that he has been pursuing his rights 26 diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Smith v. Davis, 953 F.3d 582, 588 27 (9th Cir. 2020) (internal quotations omitted). In any third amended complaint, plaintiff must sufficiently allege facts establishing why 1 federal court after the six-month statutory deadline. 2 (Doc. 49 at 6-7.) 3 Generally, the United States only waives sovereign immunity if an FTCA claim is: (1) 4 against the United States; (2) for money damages; (3) for injury or loss of property, personal 5 injury, or death; (4) that was “caused by the negligent or wrongful act or omission of any 6 employee of the Government;” (5) while such employee is “acting within the scope of their 7 employment;” and (6) “under circumstances where the United States, if a private person, would 8 be liable to the claimant in accordance with the law of the place where the act or omission 9 occurred.” 28 U.S.C. § 1346(b)(1). In addition, FTCA claims are subject to a statute of 10 limitations. Specifically, “the FTCA provides that a tort claim against the United States ‘shall be 11 forever barred’ unless it is presented to the “appropriate Federal agency within two years after 12 such claim accrues” and then brought to federal court ‘within six months’ after the agency acts on 13 the claim.” United States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C. § 2401(b)). 14 Although the Court expressly admonished Plaintiff that any amended complaint must be 15 complete in and of itself, without reference to any prior complaint (see Doc. 49 at 8; see also Doc. 16 19 at 15 [same] & Doc. 35 at 18 [same]), she fails to identify or reference in the amended 17 complaint the dates she purportedly filed the “BP 8, 9, 10, and 11” forms, and does not provide a 18 date for the purported filing of “Form 95” to the “Western Regional Office.” Relevant here, the 19 presiding district judge extended to Plaintiff “one final opportunity to amend her complaint to 20 allow her to attempt to sufficiently plead her compliance with the FTCA’s administrative claim 21 requirement and the timeliness of her filing of her FTCA claim in federal court.” (Doc. 49 at 8) 22 (emphasis in original.) As pled, the Court cannot discern whether Plaintiff presented her claim 23 against the United States within two years of its accrual. Nor has Plaintiff provided any 24 documentation in support of her FTCA claims asserted in the third amended complaint. Thus, 25 even liberally construed and accepting all facts as true, Plaintiff fails to state any cognizable 26 FTCA claim against Defendant United States. 27 Again, because Plaintiff’s third amended complaint is deficient for the same reasons as those previously articulated and because Plaintiff has failed to remedy those deficiencies, the 1 Court assesses that Plaintiff cannot cure her pleadings and, thus, that leave to amend would be 2 futile. See Hartman, 707 F.3d at 1129-30. 3 Plaintiff’s Request for a Release from Custody is Improper 4 Plaintiff seeks a release from custody so that she may seek medical treatment, citing to “§ 5 2241 Habeas Corpus.” (Doc. 54 at 1, 17.) Thus, it appears Plaintiff intends for her third amended 6 complaint to also serve as a petition for writ of habeas corpus pursuant to 28 U.S.C. section 2241. 7 Habeas relief is available if the prisoner's claim in the petition attacks the legality or 8 duration of the petitioner's confinement. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Preiser v. 9 Rodriguez, 411 U.S. 475, 484-86 (1973). And habeas relief is not cognizable if a favorable 10 judgment for the petitioner would not “necessarily lead to his immediate or earlier release from 11 confinement.” Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). 12 “A habeas corpus action is the proper mechanism for a prisoner to challenge the fact or 13 duration of his confinement. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983, where 14 the defendants are state actors, or an action pursuant to Bivens … where the defendants are 15 federal actors, is the proper method for a prisoner to seek monetary or injunctive relief based on a 16 challenge to the conditions of that confinement.” McCoy v. Warden, USP Atwater, No. 1:24-cv- 17 00121-NODJ-SKO (HC), 2024 WL 774922, at *1 (E.D. Cal. Feb. 26, 2024) (citations omitted). 18 Here, Plaintiff’s claims do not attack the legality or duration of her confinement. 19 Wilkinson, 544 U.S. at 82; Preiser, 411 U.S. at 484-86; see Ramirez v. Galaza, 334 F. 3d 850, 20 859 (9th Cir. 2003) (“habeas jurisdiction is absent, and a Section 1983 action is proper, where a 21 successful challenge to a prison condition will not necessarily shorten the prisoner's sentence”). 22 Nor would a favorable judgment for Plaintiff in this case necessarily lead to her immediate or 23 earlier release from confinement. Nettles, 830 F.3d at 935. 24 Therefore, to the extent Plaintiff seeks relief in the form of a release from custody, such 25 relief is improper in this civil rights action. 26 D. Screening Summary 27 In summary, the undersigned concludes that the Eighth Amendment failure to protect 1 Heldmann, Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson were previously dismissed by 2 the assigned district judge on March 26, 2025, and thus did not consider those claims. Further, the 3 undersigned will recommend that: (1) the Eighth Amendment failure to protect claims asserted 4 against Defendants “Officer Unknown #2” and “S.I.S.” be dismissed because, like those 5 previously dismissed, such claims do not state a cognizable Bivens claim; (2) this action proceed 6 on Plaintiff’s deliberate indifference to serious medical needs claims against Defendants 7 Palentghi, Spheres, and Placencia; (3) any claim against Defendant Young be dismissed without 8 leave to amend; (4) the FTCA claim against the United States be dismissed without leave to 9 amend; and (5) any relief in the form of a release from custody be denied. 10 V. CONCLUSION AND RECOMMENDATION 11 Based upon the foregoing, the undersigned HEREBY RECOMMENDS that: 12 1. To the extent Plaintiff reasserts any previously dismissed claims against Defendants 13 Barnes, Beaudreau, Bennett, Bollinger, Ceja, Ciolli, Dewilde, Haslett, Heldmann, 14 Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson, any claims against these 15 individuals be dismissed without leave to amend; 16 2. Plaintiff’s Eighth Amendment failure to protect claims against Defendants “Officer 17 Unknown #2” and “S.I.S.” be dismissed without leave to amend; 18 3. Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claim 19 against Defendant Young be dismissed without leave to amend; 20 4. The FTCA claim against Defendant United States be dismissed without leave to 21 amend; 22 5. This action proceeds only on Plaintiff’s deliberate indifference to serious medical 23 needs claims against Defendants Palentghi, Spheres, and Placencia; and 24 6. Any requested relief in the form of a release from custody, referring to 28 U.S.C. 25 section 2241, be denied as improper. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 1 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 2 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 3 | leave of Court and good cause shown. The Court will not consider exhibits attached to the 4 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 5 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 6 || reference the exhibit with specificity. Any pages filed in excess of the fifteen 15-page limitation 7 | may be disregarded by the District Judge when reviewing these Findings and Recommendations 8 | under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time 9 | may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 10 | Cir. 2014). 11 | ITIS SO ORDERED. 12 Dated: _ October 24, 2025 | hannD Pr 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21