1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY LAMAR BLACK, No. 2:21-cv-02167-TLN-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. THOMPSON, et al., 15 Defendants. 16 17 Plaintiff is a federal inmate proceeding without counsel in a civil right action brought 18 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 19 (1971). Pursuant to 28 U.S.C. § 1915A(a), the court determined that plaintiff’s first amended 20 complaint (FAC), ECF No. 34, alleged a potentially cognizable Eighth Amendment claim against 21 defendants David Allred, M.D. and B. Birch for deliberate indifference to serious medical needs. 22 ECF No. 38. Defendants now move to dismiss the FAC pursuant to Rule 12(b)(6), Federal Rules 23 of Civil Procedure, for failing to state a recognized cause of action under Bivens. ECF Nos. 57. 24 Plaintiff opposes the motion and has also filed his own motion which he styles as a motion for 25 judgment on the pleadings. ECF Nos. 64. Finally, plaintiff has filed pleadings captioned as 26 “notices” which the court construes as motions to amend his FAC. ECF Nos. 53, 56, 63. 27 //// 28 //// 1 I. Background 2 The FAC alleges that plaintiff tested positive for Covid-19 and was placed in isolation for 3 11 days.1 ECF No. 34 at 3-4. Plaintiff asserts that he asked to see a doctor and Allred saw him 6 4 days later.2 Id. at 4. Plaintiff asked Allred for medication for breathing problems, Covid-19, and 5 headaches. Id. Allred did not prescribe medication and told plaintiff he could buy over-the- 6 counter medicine from the commissary. Id. at 5. 7 Birch was head of the commissary. Id. Birch allegedly did not allow plaintiff to purchase 8 over-the-counter medication “and covered his backside with a lie.” Id. The FAC alleges email 9 correspondence between Allred and Birch and implies that Birch represented that he had never 10 denied an inmate the right to medication. Id. 11 Plaintiff asserts that he informed Allred he was unable to purchase from the commissary 12 but Allred still refused to prescribe medicine for plaintiff. Id. Plaintiff alleges that he still suffers 13 after-effects of breathing problems, headaches, and pain all over his body, which have not been 14 treated. Id. Plaintiff requests a jury trial and an unspecified amount of damages. Id. at 9. 15 II. Defendants’ Rule 12(b)(6) Motion to Dismiss, ECF No. 57 16 Defendants move to dismiss arguing that plaintiff’s claims are not cognizable under 17 Bivens. ECF No. 57 at 5. They argue that the Supreme Court has implied a Bivens cause of 18 action for money damages against federal agents in only a limited number of contexts not 19 applicable here. 3 Id. at 3-4. Specifically, they argue that an implied Bivens action for a jailor’s
20 1 The FAC does not allege when this occurred. The original complaint alleges plaintiff tested positive for Covid-19 on September 9, 2021, was placed in isolation, and was released 21 from isolation 11 days later, on September 20, 2021. ECF No. 1 at 4-5. This corresponds to the allegation in the FAC that plaintiff was isolated for 11 days. 22 The FAC also alleges that plaintiff was “taken to the hospital” on August 10, 2022. ECF 23 No. 34 at 4-5. Plaintiff’s hospital visit in August 2022 thus appears to be a separate event, and not the occurrence on which his claims are based. 24 2 The FAC’s allegation of a 6-day wait to be seen by Allred repeats plaintiff’s allegation 25 in his original complaint that he waited 6 days to see Allred. ECF No. 1 at 5.
26 3 Three distinct categories of Bivens-type causes of action have been recognized by the Supreme Court, as discussed in Part II(B)(1). Other than these three categories of claims, the 27 Supreme Court has “consistently rebuffed requests to add to the claims allowed under Bivens.” Hernández v. Mesa, 589 U.S. 93, 102 (2020); see also Egbert v. Boule, 596 U.S. 482, 486 (2022) 28 (since Bivens, the Supreme Court has “declined 11 times to imply a similar cause of action for 1 failure to provide adequate medical care, first recognized in Carlson v. Green, 446 U.S. 14 2 (1980), is unavailable for the claims plaintiff alleges here. 3 A. Rule 12(b)(6) Standard 4 In considering a motion to dismiss, the court must accept as true the allegations of the 5 complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), 6 construe the pleading in the light most favorable to the party opposing the motion, and resolve all 7 doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 8 869 (1969). Further, “a document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus, 9 551 U.S. 89, 93-94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “a 10 liberal interpretation of a civil rights complaint may not supply essential elements of the claim 11 that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 12 1982). 13 To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege enough specific 14 facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon 15 which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); 16 see also Rule 8(a). “Vague and conclusory allegations of official participation in civil rights 17 violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of Univ. of 18 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, “a complaint must contain sufficient factual 19 matter … to ‘state a claim to relief that is plausible on its face.’ A claim has factual plausibility 20 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 21 that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009) (citation omitted). 23 B. Defendants’ Challenge to Plaintiff’s Eighth Amendment Bivens Claims 24 1. The Carlson Line of Bivens Claims 25 The Supreme Court has recognized only three categories of implied causes of actions for 26 damages against federal officials for constitutional violations: (1) claims for violation of Fourth 27 Amendment unreasonable search and seizure rights, Bivens, 403 U.S. at 397; (2) claims for
28 other alleged constitutional violations”). 1 violation of Fifth Amendment due process rights in the context of employment discrimination, 2 Davis v. Passman, 442 U.S. 228, 245 (1979); and (3) claims for deliberate indifference to serious 3 medical needs in violation of the Eighth Amendment, Carlson, 446 U.S. at 20. Because Bivens- 4 type actions are implied, they are disfavored.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY LAMAR BLACK, No. 2:21-cv-02167-TLN-EFB (PC) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 P. THOMPSON, et al., 15 Defendants. 16 17 Plaintiff is a federal inmate proceeding without counsel in a civil right action brought 18 under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 19 (1971). Pursuant to 28 U.S.C. § 1915A(a), the court determined that plaintiff’s first amended 20 complaint (FAC), ECF No. 34, alleged a potentially cognizable Eighth Amendment claim against 21 defendants David Allred, M.D. and B. Birch for deliberate indifference to serious medical needs. 22 ECF No. 38. Defendants now move to dismiss the FAC pursuant to Rule 12(b)(6), Federal Rules 23 of Civil Procedure, for failing to state a recognized cause of action under Bivens. ECF Nos. 57. 24 Plaintiff opposes the motion and has also filed his own motion which he styles as a motion for 25 judgment on the pleadings. ECF Nos. 64. Finally, plaintiff has filed pleadings captioned as 26 “notices” which the court construes as motions to amend his FAC. ECF Nos. 53, 56, 63. 27 //// 28 //// 1 I. Background 2 The FAC alleges that plaintiff tested positive for Covid-19 and was placed in isolation for 3 11 days.1 ECF No. 34 at 3-4. Plaintiff asserts that he asked to see a doctor and Allred saw him 6 4 days later.2 Id. at 4. Plaintiff asked Allred for medication for breathing problems, Covid-19, and 5 headaches. Id. Allred did not prescribe medication and told plaintiff he could buy over-the- 6 counter medicine from the commissary. Id. at 5. 7 Birch was head of the commissary. Id. Birch allegedly did not allow plaintiff to purchase 8 over-the-counter medication “and covered his backside with a lie.” Id. The FAC alleges email 9 correspondence between Allred and Birch and implies that Birch represented that he had never 10 denied an inmate the right to medication. Id. 11 Plaintiff asserts that he informed Allred he was unable to purchase from the commissary 12 but Allred still refused to prescribe medicine for plaintiff. Id. Plaintiff alleges that he still suffers 13 after-effects of breathing problems, headaches, and pain all over his body, which have not been 14 treated. Id. Plaintiff requests a jury trial and an unspecified amount of damages. Id. at 9. 15 II. Defendants’ Rule 12(b)(6) Motion to Dismiss, ECF No. 57 16 Defendants move to dismiss arguing that plaintiff’s claims are not cognizable under 17 Bivens. ECF No. 57 at 5. They argue that the Supreme Court has implied a Bivens cause of 18 action for money damages against federal agents in only a limited number of contexts not 19 applicable here. 3 Id. at 3-4. Specifically, they argue that an implied Bivens action for a jailor’s
20 1 The FAC does not allege when this occurred. The original complaint alleges plaintiff tested positive for Covid-19 on September 9, 2021, was placed in isolation, and was released 21 from isolation 11 days later, on September 20, 2021. ECF No. 1 at 4-5. This corresponds to the allegation in the FAC that plaintiff was isolated for 11 days. 22 The FAC also alleges that plaintiff was “taken to the hospital” on August 10, 2022. ECF 23 No. 34 at 4-5. Plaintiff’s hospital visit in August 2022 thus appears to be a separate event, and not the occurrence on which his claims are based. 24 2 The FAC’s allegation of a 6-day wait to be seen by Allred repeats plaintiff’s allegation 25 in his original complaint that he waited 6 days to see Allred. ECF No. 1 at 5.
26 3 Three distinct categories of Bivens-type causes of action have been recognized by the Supreme Court, as discussed in Part II(B)(1). Other than these three categories of claims, the 27 Supreme Court has “consistently rebuffed requests to add to the claims allowed under Bivens.” Hernández v. Mesa, 589 U.S. 93, 102 (2020); see also Egbert v. Boule, 596 U.S. 482, 486 (2022) 28 (since Bivens, the Supreme Court has “declined 11 times to imply a similar cause of action for 1 failure to provide adequate medical care, first recognized in Carlson v. Green, 446 U.S. 14 2 (1980), is unavailable for the claims plaintiff alleges here. 3 A. Rule 12(b)(6) Standard 4 In considering a motion to dismiss, the court must accept as true the allegations of the 5 complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), 6 construe the pleading in the light most favorable to the party opposing the motion, and resolve all 7 doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 8 869 (1969). Further, “a document filed pro se is ‘to be liberally construed.’” Erickson v. Pardus, 9 551 U.S. 89, 93-94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, “a 10 liberal interpretation of a civil rights complaint may not supply essential elements of the claim 11 that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 12 1982). 13 To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege enough specific 14 facts to provide both “fair notice” of the particular claim being asserted and “the grounds upon 15 which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation omitted); 16 see also Rule 8(a). “Vague and conclusory allegations of official participation in civil rights 17 violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd. of Regents of Univ. of 18 Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Rather, “a complaint must contain sufficient factual 19 matter … to ‘state a claim to relief that is plausible on its face.’ A claim has factual plausibility 20 when the plaintiff pleads factual content that allows the court to draw the reasonable inference 21 that the defendant is liable for the alleged misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009) (citation omitted). 23 B. Defendants’ Challenge to Plaintiff’s Eighth Amendment Bivens Claims 24 1. The Carlson Line of Bivens Claims 25 The Supreme Court has recognized only three categories of implied causes of actions for 26 damages against federal officials for constitutional violations: (1) claims for violation of Fourth 27 Amendment unreasonable search and seizure rights, Bivens, 403 U.S. at 397; (2) claims for
28 other alleged constitutional violations”). 1 violation of Fifth Amendment due process rights in the context of employment discrimination, 2 Davis v. Passman, 442 U.S. 228, 245 (1979); and (3) claims for deliberate indifference to serious 3 medical needs in violation of the Eighth Amendment, Carlson, 446 U.S. at 20. Because Bivens- 4 type actions are implied, they are disfavored. Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). If a 5 case presents a “new Bivens context,” then the court must consider whether special factors 6 indicate that the courts are at least arguably less equipped than Congress to weigh the costs and 7 benefits of allowing a new type of damages action. Marquez v. Rodriguez, 81 F.4th 1027, 1030 8 (9th Cir. 2023) (citations omitted). If Congress might be better equipped than the courts, the 9 damages action may not proceed. Id. 10 Plaintiff’s claims in this lawsuit proceed, if at all, under the Carlson line of Bivens-type 11 claims. Carlson involved an inmate who was not given prescribed medications and suffered an 12 asthma attack. Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978). There was no physician on 13 duty, nor consulted, for the eight hours he was in medical crisis. Id. An unlicensed nurse tried to 14 use a broken respirator, then administered an antipsychotic medication contraindicated for 15 asthmatic attacks. Id. The inmate died from respiratory arrest. Id. 16 2. Defendants’ Pre-Stanard Argument 17 Defendants argue that plaintiff’s allegations do not describe a life-threatening medical 18 emergency such as in Carlson and therefor his FAC cannot be actionable under Bivens. ECF No. 19 57 at 5. Defendants contend that allowing plaintiff to proceed on the allegations of the FAC 20 would imply a new form of constitutional tort liability based on inadequate non-emergency care 21 relating to Covid-19. ECF No. 59 at 1-2 (citing Washington v. Federal Bureau of Prisons, 2022 22 WL 3701577, at *5 (D.S.C. Aug. 26, 2022)).4 Stated another way, they argue that the allegations 23 present a new Bivens context and there are “special factors” present here which counsel against 24 extending Bivens liability to these circumstances. ECF No. 57 at 7-8. 25 As to the “special factors,” defendants point to an alternative remedial structure in the 26 form of a grievance system and argue that Congress is better equipped than the courts to
27 4 Washington and other cases finding new Bivens contexts are discussed in Feao v. Ponce, 696 F. Supp. 3d 887, 907-908 (C.D. Cal. 2023). See also infra Part II(B)(4). 28 1 determine whether plaintiff should have a claim for monetary damages available to him. Id. at 9- 2 10. They contend that providing a Bivens remedy in these circumstances would require the court 3 to wade into, and adversely impact, prison management policies and create an influx of claims. 4 Id. at 9-10. 5 After the close of briefing on the motion, the Ninth Circuit decided Stanard v. Dy, 88 6 F.4th at 817 (9th Cir. 2023), and the defendants filed a request for supplemental briefing to 7 address it. ECF. No. 60. As defendants acknowledge in their supplemental brief, the Ninth 8 Circuit held that differences in the degree of deficient medical care are not so meaningful as to 9 give rise to a new Bivens context such that a claim predicated on Carlson, 446 U.S. at 20, would 10 imply a new constitutional tort. Id. at 1 (citing Stanard, 88 F.4th at 817). The inmate in Stanard 11 was denied treatment for Hepatitis C Virus for a period of time after he had initially declined it. 12 88 F.4th at 817. The Ninth Circuit held that an inmate’s claim seeking “a damages remedy for 13 failure to provide medical attention evidencing deliberate indifference to serious medical needs” 14 falls within “every dimension the Supreme Court has identified as relevant” to the question 15 whether the claim is meaningfully different than Carlson. Id. (citing Hicks v. Ferreyra, 965 F.3d 16 302, 311 (9th Cir. 2020) (internal quotation marks omitted)). 17 3. Defendants’ Post-Stanard Argument 18 Defendants nevertheless argue that Stanard does not dictate that plaintiff’s claims must 19 proceed. Defendants contend that Stanard is factually distinguishable from this case, which 20 simply begs the question addressed in Stanard that factual distinctions must be ones that present 21 meaningful differences. Defendants also note that Stanard was fully briefed before the Supreme 22 Court issued its decision in Egbert v. Boule, 596 U.S. 482, 492 (2022). Defendants argue that: 23 The opinion in Stanard does not “bear on the relevant point” in Egbert: that the “Judiciary is comparatively ill suited to decide whether a damages remedy 24 . . . is appropriate[,]” even in cases involving “similar allegations of” deliberate indifference to medical care that “present ‘almost parallel circumstances’ or a 25 similar ‘mechanism of injury’” to Carlson, because such “superficial similarities are not enough to support the judicial creation of a cause of action.” 26 27 ECF No. 60 at 2 (citing Egbert, 596 U.S. at 495 (internally quoting Ziglar v. Abbasi, 582 U.S. 28 120, 139 (2017))). 1 Even though Stanard was briefed before Egbert was decided, the Ninth Circuit Court had 2 the benefit of and explicitly acknowledged the Egbert decision in deciding Stanard, see 88 F.4th 3 at 815-816. Accordingly, Stanard must be understood to have fully considered Egbert’s analysis 4 in reaching its holding. This brings us back to considering how Stanard affects the analysis of 5 whether plaintiff’s Eighth Amendment claims present a new Bivens context. 6 Defendants maintain that “Stanard did not hold that all prisoner medical claims fall within 7 Carlson’s context,” ECF No. 60 at 3, and that there are meaningful differences between this case 8 and Carlson. Defendants argue it is a “fact” that plaintiff “did not face a life-threatening medical 9 issue.” Id. Based on this assertion, defendants propose three reasons why differences between 10 this case and Carlson are meaningful: (1) claims based on routine and non-emergency medical 11 care cases risk more disruption by the judiciary on the executive; (2) the judiciary has less clear 12 guidance as to how medical providers should respond to non-emergency medical care for Covid- 13 19 compared to a life-threatening disease as in Carlson; and (3) “potential” special factors that 14 were not considered in Carlson are present here, namely the post-Carlson enactment of the Prison 15 Litigation Reform Act (PLRA) and the alternative potential relief available through the Bureau of 16 Prisons’s (BOP’s) administrative remedy program. Id. at 3-4. Plaintiff responds that Covid-19 is 17 a life-threatening disease and that he still suffers from its long-term after-effects. ECF No. 62 at 18 1. 19 4. Analysis 20 Defendants’ arguments, and plaintiff’s response, highlight the difficulty with attempting 21 to identify new Bivens contexts in Eighth Amendment claims on a motion to dismiss: the 22 undeveloped state of the record at this stage. Defendants insist that this case presents a new 23 Bivens context because it is a “fact” that plaintiff’s medical issue was not life-threatening. Yet, 24 the complaint does not state that as a fact and nothing in the record establishes it. Further, it is 25 not always possible to conclusively establish the life-threatening (or not) nature of a plaintiff’s 26 medical issue as a “fact” at the pleading stage. The essence of plaintiff’s medical issue is that he 27 could not access medications recommended by his physician while infected with a potentially 28 life-threatening disease. Lack of medication was the beginning of the chain of events in Carlson 1 that ultimately led to the inmate’s death. It cannot be presumed that inability to access 2 medications is not life-threatening, even if that were the standard articulated in Stanard, which it 3 is not. The Ninth Circuit’s holding in Stanard was that an Eighth Amendment claim seeking 4 damages for failure to provide medical attention evidencing deliberate indifference to serious 5 medical needs is not meaningfully different than Carlson and does not present a new Bivens 6 context. 88 F.4th at 817. 7 Contrary to defendant’s first argument, a life-threatening or emergency/non-emergency 8 medical issue is not the standard stated in Standard. Plaintiff’s Eighth Amendment claim checks 9 all the boxes described by the Ninth Circuit in Stanard and therefore does not present a new 10 Bivens context. See Sides v. Hosseini, No. 2:22-cv-08334-DMG (GJG), 2024 WL 2867802, at 11 *15 (C.D. Cal. Mar. 6, 2024) (the Stanard panel did not find meaningful differences between a 12 “potentially fatal asthma attack versus delay in HCV treatment,” which indicates that severity of 13 medical need does not present new Bivens context); see also Faeo, 696 F. Supp. 3d at 908-909 14 (holding, before Stanard was issued, that the court “[was] not persuaded that the long-term 15 mismanagement of a serious condition, resulting in an inmate’s death, is meaningfully different 16 from the more immediate mismanagement issue in Carlson, at least for purposes of determining 17 whether a Bivens remedy should be available” and noting that “such a conclusion would 18 essentially limit Carlson to its facts”). 19 Defendants’ second argument, that the judiciary has less clear guidance how medical 20 providers should respond to non-emergency needs for Covid-19 medical care, fails for similar 21 reasons. Stanard does not hold that new Bivens contexts may be based on the type of disease or 22 medical need. Also, the judiciary is no more or less equipped to address deliberate indifference to 23 medical needs as to certain types of such needs, versus other types of medical needs. 24 Defendant’s third argument, that the Prison Litigation Reform Act (PLRA) was enacted 25 after Carlson was decided and that the BOP has an administrative remedy program, is 26 unpersuasive. Carlson was decided in 1980. The PLRA was enacted in 1996 and became 27 effective in 1997.5 In the decades since the PLRA was enacted, courts have continued to apply
28 5 Pub. L. No. 104-134, §§ 801-10, 110 Stat. 1321, 1321-66 to -77 (1996) (codified as 1 Carlson to find implied causes of action for Eighth Amendment prisoner claims for deliberate 2 indifference to serious medical needs. Defendants cite to five decisions issued by district courts 3 in 2023 that found certain prisoner medical care claims presented “new contexts.” ECF No. 60 at 4 4-5. These five cases were all decided after the Supreme Court’s June 8, 2022 decision in Egbert 5 but before the Ninth Circuit issued its December 11, 2023 decision in Stanard. Stanard did not 6 directly address the effect, if any, of the PLRA or the BOP’s administrative remedy program.6 7 However, the Ninth Circuit Court did describe the Stanard plaintiff’s efforts to pursue the BOP’s 8 administrative remedies. 88 F.4th at 814; see also Porter v. Nussle, 534 U.S. 516, 524 (2002) 9 (PLRA’s exhaustion requirements applies to federal prisoners pursuing Bivens claims). At least 10 implicitly, the Stanard decision appears to refute defendants’ argument that the BOP’s 11 administrative remedies – and whether administrative remedies were exhausted or otherwise 12 excused as required by the PLRA – constituted any “new context.” 13 Although defendants’ arguments fail to convince that plaintiff’s claims should be 14 dismissed on this Rule 12(b)(6) motion, it is equally true that just because the FAC has survived 15 screening does not negate plaintiff’s burden to prove the objective and subjective elements of his 16 Eighth Amendment claims for deliberate indifference to a serious medical need. See, e.g., 17 Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Just as defendants are unable at this 18 stage to rely on a “fact” that plaintiff “did not face a life-threatening medical issue,” so also 19 plaintiff has not yet proven as a “fact” that he had a serious medical condition. His allegation that 20 he did suffices to survive this Rule 12(b)(6) motion. But this case should proceed to resolve the 21 merits of plaintiff’s Eighth Amendment claims, including resolution of any disputed facts 22 regarding whether plaintiff had a serious medical need that defendants disregarded with deliberate 23 indifference. For all the above reasons, it is recommended that defendants’ Rule 12(b)(6) motion 24 amended in scatter sections of 11, 18, 28, and 42 U.S.C.). 25 6 Stanard did consider, and rejected, an argument that the prisoner in that case “unlike the 26 inmate in Carlson,” was “challenging a broadly applicable BOP policy governing HCV treatment protocol in federal prisons, rather than a non-policy based pattern of neglect.” 88 F.4th at 817. 27 The inmate’s claim in Stanard was about the “actions and state of mind of Defendants in denying him HCV treatment” and was not “simply challenging a broadly applicable BOP policy.” Id. at 28 818. 1 to dismiss be denied. 2 III. Plaintiff’s Motions And Evidentiary Matters 3 A. Rule 12(c) Motion for Judgment on the Pleadings, ECF No. 64 4 Plaintiff has filed a motion for judgment on the pleadings asking the court to rule on this 5 case on the grounds that this case is “ripe.” ECF No. 64 at 1. Plaintiff argues that he has 6 prevailed because the court denied his motion for a jury trial and that “[t]he only question left is 7 the damages phase.” Id. at 2. His point is difficult to discern as plaintiff cites no authority and 8 makes no substantive argument. 9 Defendants responded that the motion should be denied because their motion to dismiss is 10 pending. ECF No. 65. Plaintiff reply asserts that defendants’ argument is “time barred” or 11 “procedurally barred.” Whatever plaintiff’s point, he simply misunderstands the nature of a 12 motion for judgment on the pleadings. 13 A motion for judgment on the pleadings is governed by Rule 12(c) of the Rules of Civil 14 Procedure, and like a motion under Rule 12(b)(6), seeks to have a plaintiff’s complaint dismissed 15 for failure to state a claim. Plaintiff fails to understand that the motion is essentially the same as a 16 motion under Rule 12(b)(6), and its purpose is to test the sufficiency of the pleadings. Granda v. 17 California Public Employees’ Retirement Sys., 620 F. Supp. 3d 1038, 1041 (E.D. Cal. 2022). 18 Plaintiff seems to believe, mistakenly, that judgment can be entered on his behalf solely 19 on the basis of his FAC, and because the court denied his request for a jury trial. The court’s 20 denial of a jury trial simply means that this case will be tried before the court without a jury. See 21 Fed. R. Civ. P. 38, 39. For these reasons, it is recommended that plaintiff’s Rule 12(c) motion for 22 judgment on the pleadings be denied. 23 B. Motions to Amend The FAC, ECF Nos. 53, 56, 63 24 After plaintiff’s amended complaint was screened and he elected to proceed only with his 25 Eighth Amendment claims against defendants Allred and Birch, he filed a “notice of retaliation 26 by B.O.P.,” ECF No. 53, and another pleading captioned “retaliation for above case as follows,” 27 ECF No. 56. Plaintiff has also filed a “notice of B.O.P. impairment,” which does not explicitly 28 reference retaliation but implies that the BOP has interfered with plaintiff’s right of access to the 1 courts by losing his legal mail. ECF No. 63.7 2 Plaintiff was informed in the screening order that he may not change the nature of this suit 3 by alleging new, unrelated claims. ECF No. 38 at 5 (citing George v. Smith, 507 F.3d 605, 607 4 (7th Cir. 2007)). Any claims that plaintiff might seek to add to this lawsuit based on allegations 5 of retaliation, or of interference with plaintiff’s right of access to the courts, are unrelated and 6 would change the nature of this suit. Plaintiff’s pleadings docketed at ECF Nos. 53, 56, and 63, 7 construed as motions to further amend his complaint to add claims against prison officials who 8 have allegedly retaliated against him for pursuing this lawsuit, should be denied. 9 C. Plaintiff’s Evidentiary References 10 Plaintiff’s FAC refers to, and presumes to rely upon, documents that he believes “the 11 court” has in its possession.8 He has not supplied them nor explained why they are appropriate 12 for consideration on the Rule 12(b)(6) motion. Courts normally do not look beyond the 13 complaint in resolving a Rule 12(b)(6) motion. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 248 14 (9th Cir.1997); see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001) (a court may 15 consider material that the plaintiff properly submitted as part of the complaint or, even if not 16 physically attached to the complaint, material that is not contended to be inauthentic and that is 17 necessarily relied upon by the plaintiff's complaint). Whatever the nature of the documents 18 plaintiff references, he has not provided copies nor made clear what he might be attempting to 19 incorporate by reference. 20 Even if this were a motion under Rule 56, the court cannot import nor infer plaintiff’s 21 evidentiary record in this case based on vague references to documents that may or may not be in
22 7 Plaintiff filed similar pleadings alleging or implying forms of retaliation, ECF Nos. 6, 15, 26, before the court accepted the cognizable claim stated in the FAC and plaintiff elected to 23 proceed on that claim. ECF Nos. 34, 38, 41. These earlier pleadings were mooted by plaintiff’s election to proceed on only the Eighth Amendment claim against Allred and Birch as stated in the 24 FAC. ECF No. 41.
25 8 The FAC cites to a document that plaintiff apparently believes the court has in its possession. ECF No. 34 at 4 (stating “see Court’s copy”). Plaintiff also alleges he received a 26 “sales slip”, but he was denied medical treatment and medicine. Id. at 6. Plaintiff again refers the 27 court to records he says the court has in its possession. Id. at 5 (“I have no copies but this Court has several slips.”). 28 1 the record of this case, or that may be in pleadings or exhibits filed in another lawsuit.9 See Bias 2 v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007) (“[a] district court does not have a duty to 3 search for evidence that would create a factual dispute” on summary judgment, not even within 4 the record of the case before the court, and not even for pro se litigants (citation omitted)); Justice 5 v. Rockwell Collins, Inc., 117 F. Supp. 3d 1119, 1128 (D. Ore. 2015) (a pro se plaintiff’s initial 6 pleadings are held to less stringent standards, but at summary judgment the plaintiff’s burden of 7 proof and the elements he must prove are not relaxed). Even if pleadings or exhibits plaintiff has 8 filed in other cases might contain documents relevant to the resolution of his claims in this case, 9 plaintiff is cautioned that the court will not undertake to examine those records to attempt to infer 10 plaintiff’s evidence or arguments for him. Plaintiff must adhere to the Federal and Local Rules 11 governing presentation and filing of his pleadings and evidentiary exhibits. 12 IV. Recommendations 13 Accordingly, for all the reasons stated above, IT IS HEREBY RECOMMENDED that: 14 1. Plaintiff’s motions to amend his complaint, ECF Nos. 53, 56, and 63 be DENIED. 15 2. Defendants’ motion to dismiss, ECF No. 57, be DENIED. 16 3. Plaintiff’s motion for judgment on the pleadings, ECF No. 64, be DENIED. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 22 objections shall be filed and served within fourteen days after service of the objections. The 23 parties are advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 DATED: August 29, 2024
26 27 9 Plaintiff is a three-strikes litigant who has litigated in multiple jurisdictions. ECF No. 28 32 at 1-2.