Norvell Andrew v. United States of America, et al.

Opinion

NORVELL ANDREW, Case No.: 1:22-cv-01290-KES-CDB Plaintiff, FINDINGS AND RECOMMENDATIONS FOLLOWING SCREENING OF v. PLAINTIFF’S THIRD AMENDED COMPLAINT UNITED STATES OF AMERICA, et al., (Doc. 54) Defendants. 14-DAY OBJECTION DEADLINE

Plaintiff Norvell Andrew is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action. I. RELEVANT BACKGROUND On March 26, 2025, the assigned district judge issued his Order Adopting in Part Findings and Recommendations. (Doc. 49.) Judge Sherriff found that Plaintiff could proceed on her Eighth Amendment Bivens1 claims against Defendants Palentghi, Spheres, and Placencia for deliberate indifferent to serious medical needs. (Id. at 4-5.) However, Judge Sherriff determined Plaintiff could not state a Bivens action against the defendants for a failure to protect violation of the Eighth Amendment. (Id. at 5-6.) Next, Judge Sherriff found Plaintiff’s second amended complaint failed to sufficiently allege a claim under the Federal Tort Claims Act (FTCA). (Id. at 6-7.)

1 Plaintiff was granted leave to “amend her complaint to allow her to attempt to sufficiently plead her compliance with the FTCA’s administrative claim requirement and the timeliness of her filing of her FTCA claim in federal court, or to establish why equitable tolling would apply to excuse any failure to meet such FTCA deadlines.” (Id. at 8.) Therefore, Judge Sherriff ordered the action may proceed on Plaintiff’s Bivens claim against Palentghi, Spheres, and Placencia for deliberate indifference to Plaintiff’s serious medical needs, dismissed all other claims and defendants for a failure to state a claim, excepting Plaintiff’s potential FTCA claim, and directed Plaintiff, within 30 days, to file: (1) a third amended complaint including her FTCA claim and her Bivens claims against Defendants Palentghi, Spheres, and Placencia for deliberate indifference to Plaintiff’s serious medical needs; or (2) written notice to the Court that Plaintiff wished to forego amendment and to proceed only on the Bivens claims in Plaintiff’s second amended complaint against Defendants Palentghi, Spheres, and Placencia for deliberate indifference to her serious medical needs; or (3) a notice of voluntary dismissal if Plaintiff no longer wished to pursue this action. (Id. at 8-9.) Further, Judge Sherriff ordered that, unless Plaintiff responded to the Court’s within 30 days, this action was to proceed “only on the Bivens claim” against Defendants Palentghi, Spheres, and Placencia for deliberate indifference to Plaintiff’s serious medical needs. (Id. at 9.) On May 2, 2025, when Plaintiff did not respond to Judge Sherriff’s March 26, 2025, order, the undersigned issued the Order Finding Service of Second Amended Complaint Appropriate and Forwarding Service Documents to Plaintiff for Completion and Return Within Thirty Days. (Doc. 50.) On June 12, 2025, when Plaintiff had failed to timely respond to the Court’s order to return certain service documents, the undersigned issue an Order to Show Cause (OSC) Why Action Should Not Be Dismissed for Failure to Obey Court Order. (Doc. 51.) Plaintiff was directed to show cause in writing why she had not complied with the Court’s May 2, 2025, order, or, alternatively, to return the completed service documents, within 14 days. (Id. at 2.) Plaintiff filed her response to the OSC on July 8, 2025. (Doc. 52.) Plaintiff states she did repeatedly denied access to her legal documentation. She also asked the Court to comply with Bureau of Prisons criteria for addressing legal mail to be opened in the presence of an inmate. Further, Plaintiff sought permission to file a third amended complaint and asked for a formal investigation into mail tampering and access to her legal documentation and property. (Id. at 1-4.) On July 14, 2025, the Court issued its Order Discharging Order to Show Cause, Order Vacating Order Regarding Service Issued May 2, 2025, and Order Granting Extension of Time Within Which to File Third Amended Complaint. (Doc. 53.) As to the latter, Plaintiff was directed to file any third amended complaint within 30 days. (Id. at 3.)2 On August 12, 2025, Plaintiff filed her third amended complaint.3 (Doc. 54.) The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A. Federal Rule of Civil Procedure 8(a) “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal

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 Presence of Inmate.”

3 quotation marks & citation omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal conclusions are not. Id. (citing Twombly, 550 U.S. at 555). The Court construes pleadings of pro se prisoners liberally and affords them the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal quotation marks & citation omitted), and courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). B. Linkage and Causation Section 1983 provides a cause of action for the violation of constitutional or other federal rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under section 1983, a plaintiff must show a causal connection or link between the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legal required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, C. Supervisory Liability Liability may not be imposed on supervisory personnel for the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to adduce evidence the named supervisory defendants “themselves acted or failed to act unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983”). Supervisors may be held liable only if they “participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “The requisite causal connection may be established when an official sets in motion a ‘series of acts by others which the actor knows or reasonably should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on inaction in the training and supervision of subordinates). Supervisory liability may also exist without any personal participation if the official implemented “a policy so deficient that the policy itself is a repudiation of the constitutional rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). To prove liability for an action or policy, the plaintiff “must ... demonstrate that his deprivation resulted from an official policy or custom established by a ... policymaker possessed with final authority to establish that policy.” Waggy v. Spokane Cnty. Washington, 594 F.3d 707, 713 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). A. Plaintiff’s Third Amended Complaint On the face of the third amended complaint, Plaintiff has selected the box denoting a Bivens action and added boxes with check marks for the “Federal Tort Claims Act” and “§ 2241 Habeas Corpus.” (Doc. 54 at 1.) Plaintiff names the following entities and/or individuals as Defendants: United States of America Andrew Ciolli Kimberly Bennett Counselor Lyons Counselor Haslett Unit Manager Schaffer Counselor Beaudreau Case Manager Bollinger Nurse Steven Spheres Nurse Young Dr. Unknown Palentghi Lieutenant Lemur Lieutenant Heldman Lieutenant Dewilde Officer Barnes Officer McClure Officer Ceja Officer Lopez Officer Gene Simpson

(Doc. 54 at 1-2, 5.) Plaintiff seeks “to have [her] left eye [and left hand] reset,” $15,000,000 in damages from Defendant United States, $507,000 in damages from the remaining Defendants, and “immediate release.” (Id. at 7.) B. The Factual Allegations On or about February 20, 2020, Plaintiff arrived at USP Atwater. (Doc. 54 at 5.) She was immediately placed in a cell with an active Vice Lords gang member who told Plaintiff she could not live with him because “it’s against gang laws for him to live with a homosexual.” (Id.) Plaintiff and the inmate promptly went to the officer’s station and advised Defendant Barnes about the situation. (Id. at 5-6.) Barnes separated the two and moved Plaintiff to an empty cell, where she remained for about two weeks. (Id. at 6.) On about March 5, 2020, Defendant Lyons directed Plaintiff to pack her belongings because she was being moved and would share a cell with inmate Brooks. (Id.) Plaintiff asserts she advised Lyons that Brooks had already indicated to Plaintiff that he did not want to share a cell with homosexuals. (Id.) Plaintiff advised Lyons “that she did not want to die about a government cell” and asked not to be placed with Brooks. (Id. at 8.) Further, Plaintiff “offered a feasible alternative by telling Lyons there was another trans person on the unit James Mitchell” and asked to be housed with Mitchell. (Id.) Lyons denied Plaintiff’s request and indicated “Mitchell could not have a celly at the moment and would remain in a single cell.” (Id.) Lyons then advised Plaintiff she could move to the cell shared with Brooks or go to special housing. (Id.) Plaintiff told Lyons that “she was not fighting anyone for a cell and she did not know what (weapons) Brooks had in his cell and [she] would rather go to SHU than be stabbed.” (Id.) Lyons “called compound” and Plaintiff was escorted “to SHU.” (Id.) Plaintiff later received an incident report “for a 306 infraction refusing to program.” (Id.) Plaintiff remained in the SHU for seven days until March 12, 2020, when she was placed “back in cell 224 with inmate Brooks.” (Doc. 54 at 8-9.) That same date, inmate Rosen was released from the SHU and assigned to cell 224. (Id. at 9.) Because three persons were assigned was willing to house with inmate Mitchell. (Id.) Instead, Lyons housed Plaintiff in “Unit 6-B in cell 109 alone” for about four days. (Id.) On or about March 16, 2020, Defendant Haslett advised Plaintiff he believed she was “trying to manipulate the system and was going to get a cellmate.” (Doc. 54 at 9.) When Plaintiff asked Haslett to be housed with inmate Mitchell, Haslett denied the move and housed Plaintiff in “Unit 6-A with inmate James Ladson.” (Id. at 9-10.) Ladson advised Plaintiff that it was against his Jewish faith to be housed with a homosexual; the two then “spoke with the unknown officers who were in the office.” (Id. at 10.) Plaintiff and Ladson were advised by the officers that they “could not do cell moves” and directed them to speak with the lieutenant during chow. (Id.) Plaintiff and Ladson spoke with Defendant Lemur; Lemur advised that “if there were any empty cells in the unit [to] tell the unit officer to move [Plaintiff].” (Id.) Further, Lemur stated that if the officer refused to do so, Plaintiff and Ladson were to “tell them to call him (Lemur).” (Id.) On their way back to the housing unit, Ladson and Plaintiff stopped to speak with Haslett who was “in front of the housing Unit 6-B;” Haslett told them they were “not in his unit.” (Id.) Plaintiff alleges that she spoke with Defendant Bollinger on March 17, 2020, asking to be moved. (Doc. 54 at 10-11.) Bollinger stated he was not responsible for cell moves and referred her to Defendant Beaudreau. (Id. at 11.) When Plaintiff learned Beaudreau was not working on that date, Plaintiff told Bollinger that inmate Ladson had pulled a knife on her the night before and given Plaintiff a deadline by which to move out of Ladson’s cell. (Id.) Bollinger called Defendant Schaffer in response to Plaintiff’s assertion; Schaffer told Bollinger that Plaintiff was trying to manipulate the system to get a single cell. (Id.) Plaintiff told Bollinger she was not seeking a single cell, rather she sought to live with another inmate peacefully and indicated her desire to house with inmate Mitchell. (Id.) Further discussion was had and Bollinger called Schaffer again, but Schaffer refused to allow Plaintiff to move. (Id.) Later that day, Plaintiff spoke with Defendants Scott and Bennett, who told Plaintiff to “‘get a knife.’” (Id.) Defendants Vandenhover and Zaragoza were also present. (Id.) After Plaintiff returned to the shared cell, Ladson continued to threaten Plaintiff. (Id.) situation. (Doc. 54 at 11.) Schaffer then appeared and whispered in Ciolli’s ear, who then told Plaintiff to come and see him tomorrow. (Id. at 11-12.) When Plaintiff stated to Ciolli that “she may be dead tomorrow,” Ciolli left. (Id. at 12.) Later that evening, Ladson threatened Plaintiff with a knife and gave her 24 hours to “be out of” their cell. (Id.) On March 19, 2020, pursuant to a “call-out for medical,” Plaintiff was seen by Defendants Palentghi and Young. (Doc. 54 at 12.) Upon returning to her assigned cell, Plaintiff was stabbed in the face and beaten with a lock by inmate Ladson. (Id.) Plaintiff defended herself before two “unknown unit officers” responded, but by then the attack had ceased. (Id.) Plaintiff was restrained and returned to medical. (Id.) Plaintiff told Palentghi that she had been attacked by Ladson due to her sexual preferences; Palentghi “crack[ed] jokes” and stitched Plaintiff’s left eye to stop it from bleeding. (Id.) As Palentghi treated the stab wound to Plaintiff’s face, the Q-Tip swab “came away a vibrant blue.” (Id.) At one point, Palentghi commented that Plaintiff “‘must be a crip you bleed blue.’” (Id.) Eventually Palentghi declared he was finished and released Plaintiff. (Id.) Once in a cell in the SHU, Plaintiff saw something protruding from her face. (Id. at 12-13.) She worked it free after poking and prodding it, realizing then the object was colored pencil lead. (Id. at 13.) Defendant Simpson responded to Plaintiff pressing “the duress button.” (Id.) When more lead protruded from Plaintiff’s face, Simpson returned her to medical. (Id.) After joking about how Plaintiff must miss him, Palentghi extracted more lead and swabbed the area for about 30 minutes, before stating his belief he “got most of the lead out” and that Plaintiff should be okay because most colored pencils were not toxic. (Id.) On or about March 21, 2020, Defendants Lopez and Ceja approached Plaintiff in the SHU, accompanied by inmate Jefrontys Clyburn. (Doc. 54 at 13.) Clyburn told Lopez and Ceja that as an active gang member he could not live with a homosexual. (Id.) Lopez and Ceja replied that Plaintiff and Clyburn “were compatible on paper and that’s all that matters.” (Id.) Plaintiff asked to speak with the lieutenant on shift. (Id.) Simpson then responded to the area and directed Plaintiff “to submit to handcuffs for a celly.” (Id.) Plaintiff advised Simpson she had just been stabbed and beaten with a lock for a similar reason, was in no shape to defend herself against a that Plaintiff and Clyburn were compatible on paper. (Id. at 14.) Plaintiff asked to see the lieutenant; Defendant Cervantes responded about an hour later and ordered Plaintiff to cuff up. (Id.) When Plaintiff tried to explain, Cervantes “began to scream as loud as he could to drown” Plaintiff out. (Id.) Cervantes threatened Plaintiff with “mace, restraints, incident reports & still being housed with Clyburn.” (Id.) Plaintiff tried again to speak with Cervantes, but he “became belligerent.” (Id.) Ultimately, as Plaintiff submitted to handcuffs, Clyburn was moved into the cell and his handcuffs were removed. (Id.) Clyburn immediately turned and punched Plaintiff, who fell to the ground, then began kicking her. (Id.) Officers responded by spraying chemical agents and ordering Clyburn to stop attacking Plaintiff. (Id.) Plaintiff asserts the attack continued “until [Clyburn] was tired,” only then did Clyburn cease his attack. (Id.) Clyburn then told Ceja, Lopez, and Cervantes that he would kill any inmate he did not want to be celled with before submitting to handcuffs. (Id.) After Clyburn’s attack, Plaintiff was taken to medical and treated by Defendants Palentghi and Spheres. (Doc. 54 at 14.) Spheres restitched Plaintiff’s left eye as the wound had opened. (Id.) Palentghi eventually told Plaintiff that her hand was broken during the altercation with inmate Ladson and provided her with a brace and an Ace bandage to wrap “her hand up once she [was] back in her assigned cell.” (Id. at 15.) The wound on Plaintiff’s face had a scab so Palentghi did not swab it and left it to heal. (Id.) Plaintiff complained to both Palentghi and Spheres about pain and “that her left eye is off center and constantly jumps and twitches,” causing headaches. (Id.) Spheres stated Plaintiff probably had an orbital fracture, but it was “too expensive to fix.” (Id.) Plaintiff was treated with Tylenol with codeine for pain as Ibuprofen “was not working and [Plaintiff] had taken a whole bottle in two (2) days.” (Id.) On or about April 12, 2020, while housed in the “SHU overflow unit,” Plaintiff and her cellmate Ira Taylor were being escorted to the shower by Defendants McClure and Barnes. (Doc. 54 at 15.) Taylor began speaking with a “fellow gang member named Tim,” who asked Taylor about Plaintiff. (Id.) Tim advised Taylor it was against gang law to house with Plaintiff and that Taylor should get out of the cell immediately, stating “or you know what’s up.” (Id.) The Barnes returned about ten minutes later, directing inmates to submit to restraints for a return to their cells. (Id.) When Barnes asked Plaintiff “what’s going on” during the escort back to her cell, Plaintiff asked Barnes “did he not hear the conversation between Taylor and his gang brother when dude just told Taylor to get out of the cell with [Plaintiff] immediately or suffer the consequences.” (Id. at 15-16.) Barnes then left Plaintiff in her cell. (Id. at 16.) About an hour later, the emergency response team arrived with Defendants Heldman and Dewilde. (Id.) Heldman heard Plaintiff’s explanation of the situation while the others “congregated at the shower dealing with” Taylor. (Id.) After Taylor eventually submitted to handcuffs and was returned to their shared cell, Plaintiff states she “refused to accept Taylor” so she could “document on camera that there was a threat & [she] did not feel safe in the cell with inmate Taylor.” (Id.) Dewilde called the response team to the cell and Plaintiff began speaking “on tape” to Heldman, explaining her life was in danger if she was forced to house with Taylor. (Id.) Heldman ignored Plaintiff and advised she would be given three verbal commands to comply with restraints; a refusal to submit would result in chemical agents. (Id.) Plaintiff submitted to restraints and Taylor was brought to the cell where his restraints were removed. (Id.) Taylor then began punching and kicking Plaintiff before Taylor was forcibly removed. (Id.) Plaintiff states she was placed in the shower to be seen by medical but was left there “for hours” until Defendant Placencia arrived. (Id.) Placencia told Plaintiff there was nothing wrong with her because he “was about to get off work & left.” (Id.) Concerning her administrative remedies, Plaintiff states she “filed BP 8, 9, 10, and 11 on every one (1) of these issues yet never received a response to any of them.” (Doc. 54 at 16.) Plaintiff asserts she filed a “Form 95 Federal Tort Claim Act to Western Regional Office” after she left Atwater and completed the process while housed in “AUSP Thompson.” (Id.) Plaintiff states that in November or December 2021, she was “working on her lawsuit yet was shipped from” that facility “in May of 2022 to USP Coleman I and did not receive her property … until June of 2022.” (Id.) Plaintiff then asserts she “began working on the case but was forced to sign on protective custody because she had just left the RHU program in AUSP Thompson and as a compound.” (Id. at 16-17.) Next, Plaintiff asserts she “went to the SHU and did not receive her legal work until August of 2022.” (Id.) Plaintiff further asserts she was immediately transferred to the SHU at USP Coleman II, before she obtained her legal work in late August and “completed the suit at hand and got it to this court.” (Id.) Plaintiff states the complaint “was about two (2) months late due to [her] constantly being sent to SHU denied access to legal work & being shipped from prison to prison.” (Id.) Next, Plaintiff contends all Defendants were “negligent in the scope of their duties.” (Doc. 54 at 17.) She maintains the Bureau of Prisons “makes it mandatory that all inmates have a cellmate,” and that “the only thing they look for is prior incidents & geographics, so sexual preference, gang affiliation, religions, get lost in the equation.” (Id.) Plaintiff contends that “mandating cellmates is to attempt to eliminate suicides. But it increases homicides & assaults” when staff place incompatible inmates together, refusing to move them. (Id.) She asserts the United States “is negligent through policies that were created & implement[ed] by its employees, who seem to forget that inmate safety is also in the policy, and to fail to protect inmates creates an [independent] due process violation because BOP staff fail to follow their own procedural rules.” (Id.) Under a heading titled “Habeas Corpus § 2241,” Plaintiff states the Bureau of Prisons has “continuously placed” her in imminent danger. (Doc. 54 at 17.) She asserts the water is contaminated at USP Coleman II. (Id.) Plaintiff alleges inmates are placed in unsafe conditions and that her “eye is giving [her] real problems & being ignored.” (Id.) She states the “wrong continues on every level” and asks “to be released so” she can “go get the medical care” she needs. (Id.) C. Plaintiff’s Claims Plaintiff asserts a cause of action titled “Deliberate Indifference, Negligence, Failure to Protect, Cruel & Unusual Punishment.” (Doc. 54 at 5.) Bivens Actions Prisoners may bring claims under 42 U.S.C. section 1983 for violations of constitutional cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). A civil rights action under section 1983 is the proper remedy for a constitutional challenge to the conditions of imprisonment. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) (“[A] § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody”). An action under Bivens is the federal analog to suits brought against state officials under section 1983. Iqbal, 556 U.S. at 676-77 (quoting Hartman v. Moore, 547 U.S. 250, 254, n.2 (2006)). Bivens actions and section 1983 claims “are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Pursuant to Bivens, under limited circumstances, federal actors can be liable for a violation of an individual’s civil rights. Minneci v. Pollard, 565 U.S. 118, 122–23 (2012). A plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. Kandi v. Mgmt. & Training Corp., No. 1:16-cv-00794-BAM (PC), 2017 WL 2081117, at *3 (E.D. Cal. May 15, 2017). Plaintiff Improperly Asserts Previously Dismissed Claims As noted above, Judge Sherriff issued an order on March 26, 2025, addressing the claims asserted in Plaintiff’s second amended complaint. (Doc. 49.) Following de novo review, Plaintiff was permitted to proceed on her Bivens claims for deliberate indifference to serious medical needs against Defendants Palentghi, Spheres, and Placencia. (Id. at 2, 4-5, 8.) Judge Sherriff also found Plaintiff failed to state a claim against Defendant Young concerning deliberate indifference to serious medical needs and against Defendant United States. (Id. at 2, 8.) Plaintiff was granted leave to amend her complaint to assert her claims under the Federal Tort Claims Act (FTCA) against the United States. (Id. at 6-8.) However, concerning Plaintiff’s failure to protect claims dismissed those claims without leave to amend. (See id. at 5-6, 8.) Therefore, Plaintiff may not state Eighth Amendment failure to protect claims against Defendants Barnes, Beaudreau, Bennett, Bollinger, Ceja, Ciolli, Dewilde, Haslett, Heldmann, Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson. Plaintiff was not granted leave to amend her failure to protect claims against those individuals because such claims are not cognizable and the claims against the previously named defendants — including those named above in Plaintiff’s third amended complaint — were dismissed. (See Doc. 49 & 50.) To the extent Plaintiff intended to assert failure to protect claims against named Defendants “Officer Unknown #2” and “S.I.S.” in her third amended complaint, any such claim is not cognizable for the same reasons Eighth Amendment failure to protect claims are not cognizable against the other named Defendants. Given the above, the undersigned does not address any failure to protect allegation asserted in Plaintiff’s third amended complaint as such claims are not cognizable in this action. See Marquez v. Rodriguez, 81 F.4th 1027, 1031 (9th Cir. 2023) (failure to protect claim not cognizable under Bivens); see also Garraway v. Ciufo, No. 1:17-cv-00533-KJM-GSA, 2025 WL 1027523, at *4-6 (E.D. Cal. Apr. 7, 2025) (granting government’s motion for reconsideration of prior denial of government’s motion for judgment on the pleadings and dismissing Garraway’s Eighth Amendment failure to protect claims with prejudice, citing Marquez).4 Accordingly, the undersigned will recommend dismissal of those claims. Deliberate Indifference to Serious Medical Needs Prison officials violate the Eighth Amendment if they are “deliberate[ly] indifferen[t] to [a prisoner’s] serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A medical need is serious if failure to treat it will result in ‘“significant injury or the unnecessary and wanton infliction of pain.”’” Peralta v. Dillard, 744 F.3d 1076, 1081-82 (9th Cir. 2014) (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 4 See also Chambers v. Herrera, 78 F.4th 1100, 1105 (9th Cir. 2023) (plaintiff’s “Eighth Amendment failure to 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 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). To maintain an Eighth Amendment claim based on medical care in prison, a plaintiff must first “show a serious medical need by demonstrating that failure to treat a prisoner’s condition could result in further significant injury or the unnecessary and wanton infliction of pain. Second, the plaintiff must show the defendants’ response to the need was deliberately indifferent.” Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012) (quoting Jett, 439 F.3d at 1096 (quotation marks omitted)). As to the first prong, indications of a serious medical need “include the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014) (citation & internal quotation marks omitted); accord Wilhelm, 680 F.3d at 1122; Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (“Examples of serious medical needs include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain”). As to the second prong, deliberate indifference is “a state of mind more blameworthy than negligence” and “requires ‘more than ordinary lack of due care for the prisoner’s interests or safety.’” Farmer, 511 U.S. at 835 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). Deliberate indifference is shown where a prison official “knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.” Id. at 847. In medical cases, this requires showing: (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference. Wilhelm, 680 F.3d at 1122 (quoting Jett, 439 F.3d at 1096). “A prisoner need not show his harm was substantial; however, such would provide additional support for the inmate’s claim that the defendant was deliberately indifferent to his needs.” Jett, 439 F.3d at 1096 (citing McGuckin, 974 Deliberate indifference is a high legal standard. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting Gibson, 290 F.3d at 1188). To prevail on a deliberate-indifference claim, a plaintiff must also show that harm resulted from a defendant’s wrongful conduct. Wilhelm, 680 F.3d at 1122; see Jett, 439 F.3d at 1096; Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (prisoner alleging deliberate indifference based on delay in treatment must show delay led to further injury). As before, the undersigned finds Plaintiff states plausible deliberate indifference to serious medical needs claims against Defendants Palentghi, Spheres, and Placencia. (See Doc. 46 at 15- 16.) Once again, the undersigned finds Plaintiff fails to state a claim against Defendant Young. The only factual allegation involving Young is Plaintiff’s assertion that she was seen by Young on March 19, 2020, before Ladson’s attack. Plaintiff makes no further reference to Young, nor does she assert any allegation that can liberally construed as deliberate indifference. (See Doc. 46 at 16 [“No facts indicate Young took any action or inaction amounting to deliberate indifference to Plaintiff’s serious medical needs”].) Even assuming Plaintiff was given leave to amend her claim against Defendant Young, she fails to cure the deficiency identified in this Court’s previous screening order. Because Plaintiff’s third amended complaint is deficient for the same reasons as those articulated in the Court’s screening order involving her second amended complaint, and because Plaintiff has failed to remedy that deficiency, the Court assesses that Plaintiff cannot cure her pleadings and, thus, that leave to amend would be futile. See Hartman v. CDCR, 707 F.3d 1114, 1129-30 (9th Cir. 2013) (affirming dismissal of first amended complaint and finding leave to amend futile where complaint’s allegations belied plaintiff’s entitlement to relief). In sum, the undersigned will recommend this action proceed on Plaintiff’s deliberate and that any claim against Defendant Young be dismissed without leave to amend. Plaintiff’s FTCA Claims As indicated above, the assigned district judge granted Plaintiff leave to amend her tort claims against Defendant United States. (Doc. 49 at 6-8.) Specifically, Plaintiff was advised that she had failed to sufficiently allege that she had timely complied with the relevant claim filing deadline and had timely filed this action. (Id. at 6.) Further, the assigned district judge held: [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 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 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 tolling as to any deadline that was not met. See [U.S. v.] Wong, 575 U.S. [402,] 420 [(2015)]. Plaintiff’s alleged injuries occurred during the timeframe from February 20, 2020, to April 21, 2020. See generally SAC. Plaintiff’s SAC fails to establish that she timely filed any administrative FTCA claims within two years of the accrual of her claims, and therefore she fails to establish a cause of action under the FTCA. However, plaintiff attached to her initial complaint letters from the Federal Bureau of Prisons denying her administrative claims under the 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 her alleged injuries, but plaintiff did not include those letters with her SAC and there are no such allegations in the SAC. An amended complaint “supersedes the original, the latter being treated thereafter as non-existent.” Lopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011). If plaintiff elects to file a third amended complaint, she must include all required allegations concerning her FTCA claim, including that she timely filed her administrative claims within two years of the claims’ accrual. It also appears that plaintiff may not have timely filed her FTCA claim in federal court. The BOP letters denying her administrative FTCA claims are dated between November 24, 2021, and December 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 six-month statutory deadline under 28 U.S.C. § 2401(b). Doc. 1. 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 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 diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (internal quotations omitted). In any third amended complaint, plaintiff must sufficiently allege facts establishing why federal court after the six-month statutory deadline. (Doc. 49 at 6-7.) Generally, the United States only waives sovereign immunity if an FTCA claim is: (1) against the United States; (2) for money damages; (3) for injury or loss of property, personal injury, or death; (4) that was “caused by the negligent or wrongful act or omission of any employee of the Government;” (5) while such employee is “acting within the scope of their employment;” and (6) “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In addition, FTCA claims are subject to a statute of limitations. Specifically, “the FTCA provides that a tort claim against the United States ‘shall be forever barred’ unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court ‘within six months’ after the agency acts on the claim.” United States v. Wong, 575 U.S. 402, 405 (2015) (quoting 28 U.S.C. § 2401(b)). Although the Court expressly admonished Plaintiff that any amended complaint must be complete in and of itself, without reference to any prior complaint (see Doc. 49 at 8; see also Doc. 19 at 15 [same] & Doc. 35 at 18 [same]), she fails to identify or reference in the amended complaint the dates she purportedly filed the “BP 8, 9, 10, and 11” forms, and does not provide a date for the purported filing of “Form 95” to the “Western Regional Office.” Relevant here, the presiding district judge extended to Plaintiff “one final opportunity to amend her complaint to allow her to attempt to sufficiently plead her compliance with the FTCA’s administrative claim requirement and the timeliness of her filing of her FTCA claim in federal court.” (Doc. 49 at 8) (emphasis in original.) As pled, the Court cannot discern whether Plaintiff presented her claim against the United States within two years of its accrual. Nor has Plaintiff provided any documentation in support of her FTCA claims asserted in the third amended complaint. Thus, even liberally construed and accepting all facts as true, Plaintiff fails to state any cognizable FTCA claim against Defendant United States. 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 Court assesses that Plaintiff cannot cure her pleadings and, thus, that leave to amend would be futile. See Hartman, 707 F.3d at 1129-30. Plaintiff’s Request for a Release from Custody is Improper Plaintiff seeks a release from custody so that she may seek medical treatment, citing to “§ 2241 Habeas Corpus.” (Doc. 54 at 1, 17.) Thus, it appears Plaintiff intends for her third amended complaint to also serve as a petition for writ of habeas corpus pursuant to 28 U.S.C. section 2241. Habeas relief is available if the prisoner's claim in the petition attacks the legality or duration of the petitioner's confinement. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005); Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973). And habeas relief is not cognizable if a favorable judgment for the petitioner would not “necessarily lead to his immediate or earlier release from confinement.” Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). “A habeas corpus action is the proper mechanism for a prisoner to challenge the fact or duration of his confinement. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983, where the defendants are state actors, or an action pursuant to Bivens … where the defendants are federal actors, is the proper method for a prisoner to seek monetary or injunctive relief based on a challenge to the conditions of that confinement.” McCoy v. Warden, USP Atwater, No. 1:24-cv- 00121-NODJ-SKO (HC), 2024 WL 774922, at *1 (E.D. Cal. Feb. 26, 2024) (citations omitted). Here, Plaintiff’s claims do not attack the legality or duration of her confinement. Wilkinson, 544 U.S. at 82; Preiser, 411 U.S. at 484-86; see Ramirez v. Galaza, 334 F. 3d 850, 859 (9th Cir. 2003) (“habeas jurisdiction is absent, and a Section 1983 action is proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence”). Nor would a favorable judgment for Plaintiff in this case necessarily lead to her immediate or earlier release from confinement. Nettles, 830 F.3d at 935. Therefore, to the extent Plaintiff seeks relief in the form of a release from custody, such relief is improper in this civil rights action. D. Screening Summary In summary, the undersigned concludes that the Eighth Amendment failure to protect Heldmann, Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson were previously dismissed by the assigned district judge on March 26, 2025, and thus did not consider those claims. Further, the undersigned will recommend that: (1) the Eighth Amendment failure to protect claims asserted against Defendants “Officer Unknown #2” and “S.I.S.” be dismissed because, like those previously dismissed, such claims do not state a cognizable Bivens claim; (2) this action proceed on Plaintiff’s deliberate indifference to serious medical needs claims against Defendants Palentghi, Spheres, and Placencia; (3) any claim against Defendant Young be dismissed without leave to amend; (4) the FTCA claim against the United States be dismissed without leave to amend; and (5) any relief in the form of a release from custody be denied. Based upon the foregoing, the undersigned HEREBY RECOMMENDS that: 1. To the extent Plaintiff reasserts any previously dismissed claims against Defendants Barnes, Beaudreau, Bennett, Bollinger, Ceja, Ciolli, Dewilde, Haslett, Heldmann, Lemur, Lopez, Lyons, McClure, Schaffer, and Simpson, any claims against these individuals be dismissed without leave to amend; 2. Plaintiff’s Eighth Amendment failure to protect claims against Defendants “Officer Unknown #2” and “S.I.S.” be dismissed without leave to amend; 3. Plaintiff’s Eighth Amendment deliberate indifference to serious medical needs claim against Defendant Young be dismissed without leave to amend; 4. The FTCA claim against Defendant United States be dismissed without leave to amend; 5. This action proceeds only on Plaintiff’s deliberate indifference to serious medical needs claims against Defendants Palentghi, Spheres, and Placencia; and 6. Any requested relief in the form of a release from custody, referring to 28 U.S.C. section 2241, be denied as improper. These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave of Court and good cause shown. The Court will not consider exhibits attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise reference the exhibit with specificity. Any pages filed in excess of the fifteen 15-page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). ITIS SO ORDERED. Dated: _ October 24, 2025 | hannD Pr UNITED STATES MAGISTRATE JUDGE 21