(PC) Gelazela v. United States of America

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 MARK A. GELAZELA, Case No. 1:22-cv-01540-JLT-SKO (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS 12 FOLLOWING SCREENING OF v. PLAINTIFF’S SECOND AMENDED 13 COMPLAINT UNITED STATES OF AMERICA, et al., 14 14-DAY OBJECTION PERIOD Defendants. 15 16 17 Plaintiff Mark Gelazela is a former federal prisoner proceeding pro se and in forma 18 pauperis in this action. 19 I. PROCEDURAL BACKGROUND 20 On December 1, 2022, this action was opened following issuance of the Order Adopting 21 Findings and Recommendations and Order Severing Claims and Directing Clerk to Open New 22 Actions in this Court’s case number 1:21-cv-01499-AWI-EPG (PC). (Doc. 2.) The operative 23 complaint was Plaintiff’s first amended complaint. (Doc. 1.) 24 On December 19, 2022, Plaintiff filed a document titled “Second Amended Complaint for 25 Damages” in this action. (Doc. 12.) That same date, in another action filed following the order 26 severing (1:22-cv-01539), Plaintiff filed a document titled “Second Amended Complaint for 27 Damages,” asserting a single Eighth Amendment threat to safety claim. 28 1 On January 11, 2023, this Court issued its “Order Directing Clerk of the Court to Strike 2 the Second Amended Complaint Filed December 19, 2022, in this Action and to Substitute 3 Another Pleading Filed Erroneously in Another Action.” (Doc. 13.) The Order directed the Clerk 4 to substitute one pleading for another (Doc. 14 for Doc. 12), following a filing error by Plaintiff 5 resulting from a technical violation of the severing order issued by District Judge Anthony W. 6 Ishii. 7 The Court now screens Plaintiff’s second amended complaint. 8 II. SCREENING REQUIREMENT 9 The Court is required to screen complaints brought by prisoners seeking relief against a 10 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 11 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious, 12 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant 13 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if 14 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal 15 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 16 III. PLEADING REQUIREMENTS 17 A. Federal Rule of Civil Procedure 8(a) 18 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 19 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain 20 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R. 21 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the 22 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal 23 quotation marks & citation omitted). 24 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 25 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 26 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must 27 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” 28 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal 1 conclusions are not. Id. (citing Twombly, 550 U.S. at 555). 2 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of 3 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the 4 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal 5 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation 6 of a civil rights complaint may not supply essential elements of the claim that were not initially 7 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal 8 quotation marks & citation omitted), and courts “are not required to indulge unwarranted 9 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation 10 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not 11 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s 12 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted). 13 B. Linkage and Causation 14 Section 1983 provides a cause of action for the violation of constitutional or other federal 15 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under 16 section 1983, a plaintiff must show a causal connection or link between the actions of the 17 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode, 18 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the 19 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative 20 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required 21 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 22 743 (9th Cir. 1978) (citation omitted). 23 C. Supervisory Liability 24 Liability may not be imposed on supervisory personnel for the actions or omissions of 25 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g., 26 Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to 27 adduce evidence the named supervisory defendants “themselves acted or failed to act 28 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v. 1 C’nty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934 2 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section 3 1983 there must be a showing of personal participation in the alleged rights deprivation: there is 4 no respondeat superior liability under section 1983”). 5 Supervisors may be held liable only if they “participated in or directed the violations, or 6 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th 7 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a 8 ‘series of acts by others which the actor knows or reasonably should know would cause others to 9 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord 10 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on 11 inaction in the training and supervision of subordinates). 12 Supervisory liability may also exist without any personal participation if the official 13 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 14 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 15 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other 16 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 17 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his 18 deprivation resulted from an official policy or custom established by a ... policymaker possessed 19 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 20 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between 21 the defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 22 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the 23 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v. 24 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 25 // 26 // 27 // 28 // 1 IV. DISCUSSION 2 A. Plaintiff’s Second Amended Complaint1 3 Plaintiff’s second amended complaint names the United States of America, Mendota FCI, 4 the Bureau of Prisons, Warden Douglas White, Case Manager K. Lehman, and Correctional 5 Officer Alcantor as Defendants. (Doc. 1-2.) Plaintiff seeks money damages of $10,000,000, 6 “censure of the named parties involved (especially Lehman),” legal fees including “any fees 7 required for the travel of witnesses,” and any further relief deemed appropriate by the Court. (Id. 8 at 17.) 9 B. Factual Allegations 10 Plaintiff contends he was fully exonerated of any wrongdoing in his criminal case. (Doc. 11 14 at 5.) Plaintiff asserts, the exoneration “occurred after the verdict so this did not prevent the 12 Plaintiff from being wrongfully incarcerated pending appeal for a new trial.” (Id.) Plaintiff 13 contends he was “’fresh’ off crutches after surgery and was wearing a metal leg-brace” at the time 14 he was remanded into custody. (Id. at 5-6.) Plaintiff asserts “[t]he parties involved in the first 15 ‘related case referenced above [id. at 2, referring to “SA-CV-21-1126-JWH (DFM)”]’ willfully 16 re-damaged the Plaintiff’s surgical repair when ‘indoctrinating’ him.” (Id. at 6.) 17 Plaintiff contends that upon arriving at Mendota FCI, he explained his surgery to Dr. 18 Thomas Moore, but Moore accused him of faking his injury. (Doc. 14 at 6.) Plaintiff contends he 19 was at that time “a 50% service-connected, disabled Marine Corps veteran,” having honorably 20 served for ten years, with well documented knee issues. (Id.) He further contends his knee issue 21 was “documented by those in the criminal administration system” before his arrival at Mendota 22 FCI. (Id.) In addition to wearing the full-length metal knee brace, Plaintiff possessed “surgical 23 internal knee photos from the actual knee surgery,” and “a copy of a letter from his world- 24 25

26 1 The Court notes that in his “Closing,” Plaintiff “makes a plea to the Court for the appointment of legal counsel.” (Doc. 14 at 18.) Plaintiff is advised his request must be submitted as a motion. See this Court’s 27 Local Rules 230(b) [Notice, Motion, Brief and Evidence] and 230(l) (“All motions, except motions to dismiss for lack of prosecution … shall be submitted upon the record without oral argument unless 28 otherwise ordered by the Court. Such motions need not be noticed on the motion calendar”). 1 renown, high-profile surgeon describing the surgery and the Plaintiff’s tender physical condition” 2 indicating mobility restrictions. (Id.) 3 Plaintiff asserts that over the one and a half years, Dr. Moore willfully neglected to 4 provide “any care to the Plaintiff’s knee” and Defendants did nothing to correct the situation 5 despite having knowledge of it. (Doc. 14 at 6.) Moore refused to put Plaintiff on limited duty 6 status, thus threatening Plaintiff’s safety, and ignored Plaintiff’s requests to be sent for an MRI 7 “to ‘re-prove’” his knee injury as mandated. (Id.) Plaintiff also asserts Moore refused to issue the 8 necessary form for an additional form-fitting specialized knee brace after three months as ordered 9 by the surgeon. (Id.) Plaintiff further contends Moore refused to issue Ibuprofen. (Id.) Plaintiff 10 contends he had “no choice but to send the brace in anyway but to ‘unit team’, hoping they would 11 exercise clemency where Moore would not.” (Id.) He asserts the brace was “thrown in the trash” 12 although “Officer Goodrich, the mail room officer” told Plaintiff it was returned. (Id.) The brace 13 was not returned and there is no record of it being returned. (Id.) 14 Plaintiff contends he completed “dozens of Medical ‘cop-outs’ requesting care and other 15 administrative actions that the Defendants were aware of.” (Doc. 14 at 7.) He did not receive an 16 MRI until May 2021, and received the MRI results in June 2021—one and a half years after 17 incarceration. (Id.) The MRI confirmed his knee had been reinjured, “fully torn ACL and both 18 meniscus being torn,” and it also revealed a cyst had formed, pressing on the nerve. (Id.) Plaintiff 19 lost feeling in his leg and foot. (Id.) Moore refused to place Plaintiff on light duty status for 20 fourteen months. (Id.) Plaintiff contends that having to perform regular duties during that period 21 “certainly further damaged his knee which continued to deteriorate badly.” (Id.) 22 Post MRI, Plaintiff asserts he was denied any care for his condition until a lieutenant with 23 prison internal affairs asked Plaintiff whether he had received any post MRI care. (Doc. 14 at 7.) 24 Plaintiff replied that he had not received post MRI care. (Id.) Plaintiff contends Moore was 25 “finally forced to minimally issue” anti-inflammatories and pain medications, but only a month 26 and a half prior to his release. (Id.) Due to the long delay, “the external doctor/radiologist” who 27 saw Plaintiff advised that surgery could not be scheduled or performed before Plaintiff’s 28 anticipated release. (Id.) He claims “[a]ll of this was a threat to the Plaintiff’s safety.” (Id.) 1 Plaintiff contends he is “now permanently crippled despite having eventually received another 2 complex surgery on the ‘outside.’” (Id.) 3 Plaintiff next contends Acting Warden C. Lepe admitted to Plaintiff in an email that his 4 request for compassionate release in April 2020 had been lost. (Doc. 14 at 7.) Plaintiff 5 resubmitted the request, but the delay contributed to Plaintiff contracting COVID. (Id.) As a 6 result, Plaintiff was unable to get knee surgery “before permanent damage set in.” (Id.) Plaintiff 7 contends “White was made aware of this delay” but failed to expedite or address the resubmitted 8 request for compassionate release. (Id. at 7-8.) Plaintiff asserts that action “was a threat to the 9 Plaintiff’s safety and it also makes the U.S. liable given that this is violation of a ‘strict liability 10 tort’ where the specific action(s) of the Defendants resulted in damage regardless of their intent; a 11 Prima Facie tort (damaging on its face) and negligence (gross and negligent infliction of 12 emotional distress) under the FTCA/CTCA.” (Id. at 8.) 13 Plaintiff states that Warden White was the “official in charge during” these events. (Doc. 14 14 at 8.) Plaintiff tried to contact White several times, but his efforts were ignored or dismissed. 15 (Id.) Plaintiff alleges D. Blocher answered the Warden’s emails “for him at least in part” but he, 16 too, “ignored, dismissed or worked actively to derail” the requests. (Id.) 17 Plaintiff “has a long and virulent history of upper respiratory infections,” has had “part of 18 his immune system removed” and has a “perpetually low white blood cell count.” (Doc. 14 at 8.) 19 He states Lehman “flatly refused to even accept” his “BP-8, CARES Act release package” and 20 military records until Plaintiff complained to the Warden. (Id.) He contends he “pressed other 21 BOP employees to agree to testify to the truth about some of the corruption that acting Warden 22 M. Lejeune (White had retired at some point) was then ‘convinced’ (email dated 07/12/21) to 23 force Lehman to allow the Plaintiff to finally submit” his CARES Act package and related 24 materials. (Id. at 8-9.) Plaintiff states it should not have taken over a year to have the package 25 accepted for review. (Id. at 9.) He contends “the damages caused are irreparable, and it was a 26 threat to the Plaintiff’s safety, and it also makes the U.S. liable under the FTCA/CTCA given that 27 this is violation of a ‘intentional tort’ (intentional infliction of emotional distress), ‘strict liability 28 tort’ where the specific action(s) of the Defendants resulted in damage regardless of their intent; a 1 Prima Facie tort (damaging on its face) and negligence (gross, negligent infliction of emotional 2 distress and willful misconduct).” (Id.) 3 Plaintiff next contends someone from Mendota FCI “fraudulently back-dated a made-up, 4 September 8th, 2020, denial to the Regional BOP regarding one of [his] initial requests for 5 compassionate release” and Plaintiff has evidence to prove it. (Doc. 14 at 9.) He asserts “three 6 aforementioned Mendota staff members have stated they are willing to testify to this” because 7 Plaintiff was “not the only one ‘fed up’ with the corruption at Mendota FCI.” (Id.) 8 Plaintiff contends that his “attempts to pursue legal action were knowingly subjugated at 9 every opportunity” by White. (Doc. 14 at 9.) Access to the law library, chapel and programs were 10 common when an inmate was “caught with ‘contraband.’” (Id.) Courses shown on the televisions 11 could not be completed because the televisions were “shut off,” resulting in an inability to access 12 Earned Time Credits (ETC) and extending sentences. (Id. at 10.) He contends the “denial of 13 access to the law library and denial of ETC’s extended” his custody unnecessarily. (Id.) It 14 “contributed to the Plaintiff’s threat to safety for the reasons explained herein, and it makes the 15 U.S. liable under the FTCA/CTCA given that this is violation of a ‘intentional tort’ (personal 16 injury, intentional infliction of emotional distress), ‘strict liability tort’ where the specific 17 action(s) of the Defendants resulted in damage regardless of their intent; a Prima Facie tort 18 (damaging on its face) and negligence (gross, negligent infliction of emotional distress and willful 19 misconduct).” (Id.) 20 Plaintiff alleges White “and the other Defendants were extremely uncooperative and 21 deliberate in their causing threats to the Plaintiff’s safety.” (Doc. 14 at 10.) He states “Lehman 22 even refused to sign something as simple an ‘in Forma Pauperis’ form” and refused to accept 23 Plaintiff’s BP-8 CARES Act submission. (Id.) Plaintiff contends that in this Court’s case number 24 1:21-cv-00002, when the Court issued “an Order ‘expediting’” his “petition and ‘emergency 25 motion to compel,’” White “and the Defendants” ignored the Court’s order. (Id. at 10-11.) He 26 contends this was a threat to his “safety and it also makes the U.S. liable under the FTCA/CTCA 27 given that this is violation of a ‘intentional tort’ (personal injury, intentional infliction of 28 emotional distress), ‘strict liability tort’ where the specific action(s) of the Defendants resulted in 1 damage regardless of their intent; a Prima Facie tort (damaging on its face) and negligence (gross 2 and willful misconduct).” (Id. at 11.) 3 Plaintiff contends “[a]ll of these delays” caused his continued incarceration, contraction of 4 COVID and near death. (Doc. 14 at 11.) He alleges that had Lehman processed his CARES Act 5 package, he “would have been released to the safety of Home Confinement” before a massive 6 outbreak on August 25, 2021. (Id.) Officer Galan admitted to another inmate that his children had 7 tested positive for COVID, but he continued to work. (Id.) Plaintiff contends that two days later 8 “everyone started getting COVID.” (Id.) At the same time, he was “finally called to go to 9 mandatory quarantine for 21 days prior to release under the CARES Act.” (Id.) He contends this 10 too “was a Threat to Safety of the Plaintiff in violation of his constitutional rights, and it also 11 makes the U.S. liable under the FTCA/CTCA given that this is violation of a ‘intentional tort’ 12 (personal injury, intentional infliction of emotional distress), ‘strict liability tort’ where the 13 specific action(s) of the Defendants resulted in damage regardless of their intent; a Prima Facie 14 tort (damaging on its face) and negligence (gross, negligent infliction of emotional distress and 15 willful misconduct).” (Id. at 11-12.) Plaintiff contends that while in quarantine, Officer Alcantor 16 brought another inmate into Plaintiff’s cell over the objection of Plaintiff and the other inmate. 17 (Id. at 12.) The other inmate had been tested for COVID, having been exposed by Officer Galan, 18 but had not yet received the results. (Id.) When that inmate’s results came back positive, both the 19 inmate and Plaintiff were moved to medical isolation, where Plaintiff tested positive. (Id.) 20 Plaintiff asserts he “almost died, could not eat food for three days, nor sleep; he lost a lot of 21 weight, and the pain was so intense in his throat that he woke up every time he swallowed ….” 22 (Id.) Plaintiff states he wished to go to the hospital for treatment “but dared not ask for fear that 23 he would have to stay at Mendota for an extended period and also given all the abuses there.” 24 (Id.) 25 Plaintiff contends that had Alcantor followed policy, he would not have contracted 26 COVID and would have remained alone in quarantine because the other inmate would not have 27 been placed in Plaintiff’s cell before learning the results of the COVID test. (Doc. 14 at 12.) 28 Plaintiff contends the COVID outbreak “spread like wildfire” and “became a truly harrowing and 1 damaging experience for weeks on end.” (Id. at 12-13.) He asserts that had he been released just a 2 week sooner, he could have avoided the outbreak entirely. (Id. at 13.) Instead, due to Defendants’ 3 willful and needless delays, his CARES Act package was delayed “for at least two months.” (Id.) 4 This “was a Threat to Safety of the Plaintiff in violation of his constitutional rights, and it also 5 makes the U.S. liable under the FTCA/CTCA given that this is violation of a ‘intentional tort’ 6 (personal injury, intentional infliction of emotional distress), ‘strict liability tort’ where the 7 specific action(s) of the Defendants resulted in damage regardless of their intent; a Prima Facie 8 tort (damaging on its face) and negligence (gross, negligent infliction of emotional distress and 9 willful misconduct).” (Id.) 10 Plaintiff next contends that on April 22, 2020, White ordered that the entire population be 11 “moved ‘across the street’ to the Mendota medium facility … in retribution for inmates exercising 12 their administrative remedies but under the ‘guise’ of COVID.” (Doc. 14 at 13.) At that facility, 13 the ice machine did not work and Plaintiff was unable to use ice for his knee pain. (Id.) Plaintiff 14 also contends the “air conditioning didn’t work more than 50% of the time,” power shut off 15 entirely on occasion, and inmates “sat in what became dark sauna boxes in 120 degrees desert 16 heat because officers were tired of getting maintenance to come and reset the ‘breaker.’” (Id.) The 17 lack of ice and the heat caused Plaintiff’s knee to swell “to monstrous proportions while making it 18 impossible to even try and ‘self-rehab.” (Id.) Plaintiff and his fellow inmates were subjected to 19 these conditions for three months before being returned “to the camp” in August 2020. (Id.) He 20 contends that “[a]ll of the above was a Threat to Safety of the Plaintiff by the Defendants in 21 violation of his constitutional rights, and it also makes the U.S. liable under the FTCA/CTCA 22 given that this is violation of a ‘intentional tort’ (personal injury, intentional infliction of 23 emotional distress), ‘strict liability tort’ where the specific action(s) of the Defendants resulted in 24 damage regardless of their intent; a Prima Facie tort (damaging on its face) and negligence (gross, 25 negligent infliction of emotional distress and willful misconduct).” (Id. at 13-14.) 26 Plaintiff next asserts that when the “Taft private prison closed, 160 inmates were 27 transferred to Mendota” at the height of the pandemic and none were tested for COVID before 28 being transferred. (Doc. 14 at 14.) The inmates’ release into general population exposed 1 everyone. (Id.) Plaintiff contends that when “CDC finally came through to inspect Mendota 2 sometime in mid-August of 2020, and two days before they arrived, White and the Defendants 3 (not including Alcantor) ‘put on a show’ that would have made ‘Cirque du Soliel’ seem lame by 4 comparison.” (Id.) They put up signs about the virus “and how to cough,” added tape “to 5 designate social distancing” and separated inmates by a vacant chair in the dining hall. (Id.) 6 Plaintiff asserts thirty inmates were taken “to the SHU for no good reason just so that when CDC 7 came through the camp housing unit it would look like there was social distancing for those who 8 were left.” (Id.) Plaintiff alleges this was “an obvious ploy to make Mendota’s neglect of 9 following CDC guidelines” seem non-existent. (Id.) He contends on the day of the inspection, 10 White and his staff had forty inmates huddled behind a “scrap heap junk pile” behind a 11 warehouse “until the Inspectors and Mendota staff were gone,” making it “impossible to expose 12 the Defendant’s violations/health concerns to the CDC staff.” (Id. at 14-15.) Plaintiff alleges this 13 “was a Threat to Safety of the Plaintiff and against his constitutional rights and it also makes the 14 U.S. liable under the FTCA/CTCA given that this is violation of a ‘intentional tort’ (personal 15 injury, intentional infliction of emotional distress), ‘strict liability tort’ where the specific 16 action(s) of the Defendants resulted in damage regardless of their intent; a Prima Facie tort 17 (damaging on its face) and negligence (gross, negligent infliction of emotional distress and willful 18 misconduct) and is such obvious corruption, breech of protocol, safety and policy that it should 19 concern everyone involved.” (Id. at 15.) 20 C. Plaintiff’s Claims 21 Plaintiff identifies his claim as “CLAIM VI: Threat to Safety.” (Doc. 14 at 15.) He 22 contends he was continually denied care for his knee, was placed in situations that further 23 damaged his knee, and was constantly subjected to unsanitary and dangerous living conditions. 24 (Id.) He was “needlessly exposed to COVID and his knee was needlessly crippled.” (Id.) Plaintiff 25 maintains “[t]hese are violations of ‘torts’ … under the FTCA/CTCA and violations of Plaintiff’s 26 8th Amendment constitutional rights.” (Id.) He contends it is beyond dispute “that any of this was 27 done for penal reasons.” (Id.) Plaintiff “got extremely sick and almost died, and he was offered no 28 care for his COVID infection” by the Defendants. (Id. at 16.) Plaintiff also contends “had the 1 Defendant’s acted to ensure that the Plaintiff was not left on ‘regular duty’ whereby threatening 2 his safety, he would not now be permanently crippled.” (Id.) 3 Plaintiff alleges he suffered “physical, emotional and mental” damages. (Doc. 14 at 16.) 4 He contends the “Defendants were certainly aware that the power, AC, and ice were not working 5 in the building C1 incident, and given that Mendota is in the middle of the desert and it was the 6 height of the summer, there is no chance they can claim ignorance to the potential for harm.” (Id.) 7 He states Defendants made an intentional decision regarding his confinement, placed him at 8 substantial risk of suffering serious harm, and Defendants did not take reasonable available 9 measures to abate the risk, thereby causing him injury. (Id.) 10 Plaintiff contends Defendants “are all party to this claim (the U.S. for its violation of the 11 ‘torts’ … under the FTCA/CTCA and the other Defendants for violating the Plaintiff’s 12 constitutional rights), as they all had knowledge of, and actively participated in the threats to the 13 safety of the Plaintiff as outlined in this complaint.” (Doc. 14 at 16-17.) 14 D. Analysis 15 1. Bivens Claims 16 Individuals may sue federal officials for damages for constitutional violations under 17 certain circumstances. Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). A 18 Bivens action is the federal analog to suits brought against state officials under 42 U.S.C. § 1983. 19 Hartman v. Moore, 547 U.S. 250 (2006). The basis of a Bivens action is some illegal or 20 inappropriate conduct on the part of a federal official or agent that violates a clearly established 21 constitutional right. Baiser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 22 (9th Cir. 2003). Actions under Bivens and actions under § 1983 “are identical save for the 23 replacement of a state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 24 940 F.2d 406, 409 (9th Cir. 1991). 25 “To state a claim for relief under Bivens, a plaintiff must allege that a federal officer 26 deprived him of his constitutional rights.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) 27 (citing Schearz v. United States, 234 F.3d 428, 432 (9th Cir. 2000)). A Bivens claim is only 28 available against officers in their individual capacities. Morgan v. U.S., 323 F.3d 776, 780 n.3 1 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). 2 “A plaintiff must plead more than a merely negligent act by a federal official in order to 3 state a colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 314 (9th Cir. 1988). Plaintiff 4 must allege facts linking each named defendant to the violation of his rights. Iqbal, 556 U.S. at 5 676. The factual allegations must be sufficient to state a plausible claim for relief, and the mere 6 possibility of misconduct falls short of meeting this plausibility standard. Id., at 678-79. A 7 plaintiff must also demonstrate that each named defendant personally participated in the 8 deprivation of his rights. Id., at 676-77. In other words, there must be an actual connection or link 9 between the actions of the defendants and the deprivation alleged to have been suffered by 10 Plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695 (1978). 11 2. Eighth Amendment: Threat to Safety/Failure to Protect 12 A federal inmate can bring suit for money damages against federal prison officials under 13 the Eighth Amendment. Carlson v. Green, 446 U.S. 14, 24 (1980). The Eighth Amendment 14 protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 15 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison 16 officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal 17 safety. Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Prison officials have a duty “to take 18 reasonable measures to guarantee the safety of inmates, which has been interpreted to include a 19 duty to protect prisoners.” Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th 20 Cir. 2013) (citing Farmer, 511 U.S. at 832-33 & Hearns v. Terhune, 413 F.3d 1036, 1040 (9th 21 Cir. 2005)). To establish a violation of this duty, a prisoner must “show that the officials acted 22 with deliberate indifference to threat of serious harm or injury to an inmate.” Labatad, 714 F.3d at 23 1160 (citing Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)). 24 A failure to protect claim under the Eighth Amendment requires a showing that “the 25 official [knew] of and disregard[ed] an excessive risk to inmate ... safety.” Farmer, 511 U.S. at 26 837. “Whether a prison official had the requisite knowledge of a substantial risk is a question of 27 fact subject to demonstration in the usual ways, including inference from circumstantial evidence, 28 ... and a factfinder may conclude that a prison official knew of a substantial risk from the very 1 fact that the risk was obvious.” Id. at 842 (citations omitted). The duty to protect a prisoner from 2 serious harm requires that prison officials take reasonable measures to guarantee the safety and 3 well-being of the prisoner. Id. at 832-33; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). As 4 “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” plaintiff 5 must allege facts showing the defendant acted with a “sufficiently culpable state of mind.” 6 Wilson, 501 U.S. 294, 297 (1991) (internal quotations marks, emphasis & citations omitted). 7 a. Defendant White 8 Plaintiff alleges that “White’s negligence” permitted Taft inmates to be moved into the 9 FCI Mendota population without COVID testing, needlessly exposing all present. (Doc. 14 at 14.) 10 Plaintiff contends White was involved in “put[ting] on a show” in August 2020 when Centers for 11 Disease Control (CDC) staff visited the prison facility. (Id.) Plaintiff asserts “White and the 12 Defendants” suddenly placed COVID signage and implemented social distancing measures. (Id.) 13 On the day of the inspection, in “an obvious ploy to mask Mendota’s neglect of following CDC 14 guidelines,” Plaintiff contends White directed his staff to “tell the remaining inmates in the 15 housing unit to ‘get scarce’ for the day and gave no guidance what this meant, so more than forty 16 inmates literally huddled by themselves (Plaintiff included) behind the scrap heap junk pile 17 behind one of the warehouses” until the inspection was complete. (Id. at 14-15.) 18 b. Defendant Lehman 19 Plaintiff contends Defendant Lehman refused to accept Plaintiff’s BP-8 CARES Act 20 release package “until two months after the Plaintiff complained to the Warden” in emails dates 21 May 7 and July 12, 2021. (Doc. 14 at 8.) Plaintiff contends this delay caused him irreparable 22 damage and “was a threat to” his safety. (Id. at 8-9.) Plaintiff states Lehman “refused to sign 23 something as simple as an ‘in Forma Pauperis’ form, despite being shown the Federal Rules of 24 Criminal Procedure and the requirement that “the warden or other appropriate officer of the 25 institution” do so. (Id. at 10.) Plaintiff alleges that had Lehman “not repeatedly refused” his 26 CARES Act release package, he “would have been released to the safety of Home Confinement 27 before the massive COVID outbreak that occurred … on August 25, 2021.” (Id. at 11.) Plaintiff 28 asserts Lehman was involved in bringing “the ENTIRE CAMP over to the Quarantine unit (CI) 1 were Plaintiff was, so it then became one massive isolation unit” after the COVID outbreak. (Id. 2 at 12-13.) 3 c. Defendant Alcantor 4 Plaintiff contends that Alcantor moved a quarantined “Inmate X” into Plaintiff’s cell when 5 that inmate’s COVID test results were not yet known. (Doc. 14 at 12.) Plaintiff asserts if Alcantor 6 had followed protocol, Plaintiff would have remained celled alone in quarantine and would have 7 avoided coming into contact with “Inmate X,” where the inmate received a positive COVID test 8 result the day after being housed with Plaintiff. (Id.) Plaintiff tested positive days later. (Id.) 9 Plaintiff alleges he could not eat or sleep, lost weight, endured intense throat pain, and nearly died 10 as a result. (Id.) 3. Plaintiff’s Threat to Safety/Failure to Protect Claims Present 11 Claims in a New Bivens Context and Should Be Dismissed 12 This Court must first determine whether Plaintiff’s Eighth Amendment threat to 13 safety/failure to protect claims against Defendants White, Lehman and Alcantor are actionable 14 under Bivens. As addressed below, this determination requires the Court to decide whether the 15 claims arise in a new Bivens context, and if so, whether special factors counsel against extending 16 the Bivens remedy to that context. 17 To date, the Supreme Court has only recognized a Bivens remedy in the context of the 18 Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388 (Fourth Amendment prohibition 19 against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979) (Fifth 20 Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment 21 Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment). The 22 Supreme Court has recently made clear that “expanding the Bivens remedy is now a disfavored 23 judicial activity,” and has “consistently refused to extend Bivens to any new context or new 24 category of defendants. Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 1857 (2017) (citations 25 omitted); Egbert v. Boule, ––– U.S. ––––, 142 S. Ct. 1793, 1797 (2022) (The Court reiterated that 26 “a cause of action under Bivens is ‘a disfavored judicial activity’”). 27 If a claim presents a new context in Bivens, the court must consider whether there are 28 1 special factors counseling against extension of Bivens into this area. Abassi, 137 S. Ct. at 1857. 2 The Supreme Court's precedents “now make clear that a Bivens remedy will not be available if 3 there are ‘special factors counselling hesitation in the absence of affirmative action by 4 Congress.’” Id. Thus, “the inquiry must concentrate on whether the Judiciary is well suited, 5 absent congressional action or instruction, to consider and weigh the costs and benefits of 6 allowing a damages action to proceed.” Id. at 1857–58. This requires the court to assess the 7 impact on governmental operations system-wide, including the burdens on government 8 employees who are sued personally, as well as the projected costs and consequences to the 9 government itself. Id. at 1858. In addition, “if there is an alternative remedial structure present in 10 a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of 11 action.” Id. 12 Traditionally, courts have applied a two-part test to determine the propriety of extending a 13 Bivens cause of action. The Court first examined whether the claim arises in a “new context” or 14 involves a “new category of defendants.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). If the 15 claim does indeed arise in a new context, the Court next assessed whether there exists any 16 “special factors counselling hesitation in the absence of affirmative action by Congress.” Abassi, 17 137 S. Ct. at 1857 (internal quotations omitted). The Supreme Court recently reformulated this 18 test. 19 In Egbert v. Boule, 142 S. Ct. at 1803, the Supreme Court determined that these two steps 20 can be distilled to one single inquiry: “whether there is any reason to think that Congress might be 21 better equipped to create a damages remedy.” The Court stated that if there is even one rational 22 reason to defer to Congress to afford a remedy, “a court may not recognize a Bivens remedy.” Id. 23 The Court concluded that a rational reason for deference to Congress will exist “in most every 24 case.” Id. 25 Recently, the Ninth Circuit held that “’[u]nder Egbert, rarely if ever is the Judiciary 26 equally suited as Congress to extend Bivens even modestly. That is because ‘[t]he creation of a 27 new cause of action is inherently legislative, not adjudicative.’ Essentially then, future extensions 28 of Bivens are dead on arrival.” Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023) (internal 1 citations omitted). 2 Finally, the presence of an alternative remedial structure counsels against extending 3 Bivens to a new cause of action. “Under Egbert, a court may not fashion a Bivens remedy if 4 Congress has already provided, or has authorized the Executive to provide, an alternative 5 remedial structure.” Harper, 71 F.4th at 1188 (internal citations & quotations omitted). The Court 6 may not even determine the adequacy of the alternative remedy, as this too is a task left to 7 Congress. Egbert, 142 S. Ct. at 1807. Indeed, “[s]o long as Congress or the Executive has created 8 a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts 9 cannot second-guess that calibration by superimposing a Bivens remedy.” Id. This remains true 10 “even if a court independently concludes that the Government's procedures are ‘not as effective as 11 an individual damages remedy.’” Id. (quoting Bush v. Lucas, 462 U.S. 367, 372 (1983)). 12 As noted above, Plaintiff asserts an Eighth Amendment failure to protect claim against 13 three individual Defendants: (1) Defendant White for failing to protect Plaintiff from the 14 substantial risk presented by COVID by allowing inmates transferred from Taft to Mendota to be 15 housed without COVID testing; (2) Defendant Lehman for a failing to protect Plaintiff by 16 repeatedly refusing to accept Plaintiff’s CARES Act package and for creating a “massive 17 isolation unit” following a COVID outbreak; and (3) Defendant Alcantor for breaking quarantine 18 protocol and failing to protect Plaintiff from contracting the virus after a COVID-positive inmate 19 was placed in Plaintiff’s cell. All three of these situations present a new Bivens context because 20 Plaintiff’s claims are unlike Bivens (Fourth Amendment prohibition against unreasonable 21 searches and seizures), Davis (Fifth Amendment gender-discrimination), or Carlson. While 22 Carlson involved an actionable Eighth Amendment failure to provide adequate medical care 23 claim, Plaintiff’s claims assert a failure to protect or threat to safety. Thus, this Court must 24 consider whether there is any reason to believe that Congress might be better equipped to create a 25 damages remedy. 26 The Ninth Circuit recently held an Eighth Amendment failure to protect claim represents a 27 new Bivens context. Chambers v. Herrera, --- F.4th ---, 2023 WL 5211040, at *4 (9th Cir. Aug. 28 15, 2023). The plaintiff in Chambers contended his Eighth Amendment failure to protect claim 1 did not represent a new Bivens context because it was like the existing Bivens actions in Farmer, 2 511 U.S. 825, and Carlson, 446 U.S. 14. Id. The Ninth Circuit found that Chambers’ claim 3 differed from Carlson and represented a new Bivens context. Id. That Court held, in relevant part: 4 [T]he mechanism of injury in Chambers’ claim is different than in Carlson. Carlson relied on failure to provide adequate medical 5 treatment, while this claim relies on a failure to protect Chambers against Officer Herrera. No case has extended Bivens to claims that 6 BOP employees violated the Eighth Amendment by failing to protect an inmate from other staff members. Carlson also concerned specific 7 actions taken against an individual inmate, whereas Chambers’ failure to protect claim would impose Bivens liability for inaction.” 8 9 Id. 10 Further, the Ninth Circuit held “extending Bivens here would create a broad new source of 11 liability for prison officials” and that “alone is enough to place it beyond the purview of the courts 12 to create a remedy, because courts may not ‘independently assess the costs and benefits of 13 implying a cause of action.’” Chambers 2023 WL 5211040, at *5 (citation omitted). The Ninth 14 Circuit held “the PLRA gives authority to the BOP, as part of the Executive Branch, to structure 15 grievance procedures. Therefore, just as we declined to second-guess Congress’s establishment of 16 remedies under the Civil Reform Act in Harper, we decline to second-guess the remedial 17 structure as set forth by the BOP here.” Id. (citations omitted). Finally, in determining Chambers 18 had no Bivens claim, the Ninth Circuit stated, 19 any decision by Congress or the Executive not to create an express Eighth Amendment failure to protect cause of action for prisoners, 20 where it has legislated, suggests that they have decided against creating such an action. These reasons constitute any rational reason 21 (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed. 22 23 Id. at *5 (emphasis in original; citation & internal quotation marks omitted). 24 Here, as in Chambers, Plaintiff’s Eighth Amendment failure to protect claims against 25 Defendants White, Lehman and Alcantor differ from Carlson because they do not concern a 26 failure to provide adequate medical treatment. Chambers, 2023 WL 5211040, at *4. No case has 27 extended Bivens to claims asserting a failure to protect against federal correctional officers. Id. As 28 noted by the Ninth Circuit, such an extension “would create a broad new source of liability for 1 prison officials,” placing it beyond this Court’s purview. Id. at *5. Plaintiff’s remedy lies with the 2 BOP’s grievance procedure and this Court will not “second-guess” that remedy. Id. Because 3 Congress has not created “an express Eighth Amendment failure to protect cause of action for 4 prisoners,” this Court may not create one. Id. 5 As Plaintiff's claims arise in a new Bivens context and because Congress is better suited to 6 create an Eighth Amendment failure to protect cause of action but has not done so, the Court will 7 recommend that this these claims be dismissed with prejudice for Plaintiff’s failure to state a 8 claim. Chambers, 2023 WL 5211040, at *4-5. Granting Plaintiff leave to amend these claims 9 would be futile for the reasons discussed above. Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th 10 Cir. 2013) (“A district court may deny leave to amend when amendment would be futile”). 11 4. A Bivens Action Cannot Lie Against the United States, Mendota FCI or the Bureau of Prisons 12 13 A Bivens claim is only available against federal officers in their individual capacities. 14 Morgan, 323 F.3d at 780 n.3. The Supreme Court has declined to extend Bivens remedies to 15 federal agencies. F.D.I.C. v. Meyer, 510 U.S. at 486; see also Consejo de Desarrollo Economico 16 de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (“a Bivens suit against a 17 defendant in his or her official capacity would merely be another way of pleading an action 18 against the United States, which would be barred by the doctrine of sovereign immunity. 19 Therefore, the Supreme Court has refused to extend Bivens remedies from individuals to 20 agencies”) (citation omitted). 21 Here, Plaintiff cannot assert Bivens claims against agencies such as Defendants United 22 States, FCI Mendota, and the Bureau of Prisons. Thus, Plaintiff’s Bivens claims against 23 Defendants United States, FCI Mendota, and the Bureau of Prisons should also be dismissed with 24 prejudice because granting Plaintiff leave to amend would be futile. Hartmann, 707 F.3d at 1130. 25 5. The Federal Tort Claims Act 26 “[T]he district courts … have exclusive jurisdiction of civil actions on claims against the 27 United States, for money damages … for injury or loss of property, or personal injury or death 28 1 caused by the negligent or wrongful act or omission of any employee of the Government while 2 acting within the scope of his office or employment, under circumstances where the United 3 States, if a private person, would be liable to the claimant in accordance with the law of the place 4 where the act or omission occurred.” 28 U.S.C. § 1346(b). 5 The Federal Tort Claims Act (“FTCA”) provides that the United States shall be liable for 6 tort claims “in the same manner and to the same extent as a private individual under like 7 circumstances.” 28 U.S.C. § 2674. “The [FTCA] is a limited waiver of sovereign immunity, 8 making the Federal Government liable to the same extent as a private party for certain torts of 9 federal employees acting within the scope of their employment.” United States v. Orleans, 425 10 U.S. 807, 813 (1976). The United States is not liable under the FTCA for constitutional tort 11 claims. F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). The FTCA “makes the United States liable 12 ‘in the same manner and to the same extent as a private individual under like circumstances.’” 13 United States v. Olson, 546 U.S. 43, 46 (2005) (emphasis omitted) (quoting 28 U.S.C. § 2674). 14 “The law of the place in § 1346(b) has been construed to refer to the law of the state where the act 15 or omission occurred. Thus, any duty that the United States owe[s] to plaintiff[] must be found in 16 California state tort law.” Delta Sav. Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2001) 17 (citations & internal quotation marks omitted). Additionally, administrative exhaustion is a 18 required element of a claim under the FTCA. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 19 1980) (“The timely filing of an administrative claim is a jurisdictional prerequisite to the bringing 20 of a suit under the FTCA, and, as such, should be affirmatively alleged in the complaint”) 21 (citation omitted). 22 Plaintiff cannot assert FTCA claims against individual Defendants White, Lehman and 23 Alcantor because the only proper defendant for purposes of an FTCA claim or claims is the 24 United States of America. See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998) 25 (“the United States is the only proper party defendant in an FTCA action”). BOP is also an 26 agency and is not a proper defendant in an FTCA action. See FDIC v. Craft, 157 F.3d 697, 706 27 (9th Cir. 1998) (although FTCA claims can arise from acts or omissions of federal agencies, “an 28 agency itself cannot be sued under the FTCA”). 1 Plaintiff alleges he “submitted an SF-95 to the regional BOP counsel (Administrative 2 Claim No. TRT-WXR-2021-02085) ….” (Doc. 14 at 17.) Therefore, Plaintiff has exhausted his 3 administrative remedies regarding his FTCA claims. See 28 C.F.R. § 14.2(a); Warren v. U.S. 4 Dep't of Interior Bureau of Land Mgmt., 724 F.2d 776, 780 (9th Cir. 1984). However, Plaintiff’s 5 FTCA claims are insufficiently pled. “A claim is actionable if it alleges the six elements of § 6 1346(b), which are that the claim be: [1] against the United States, [2] for money damages, ... [3] 7 for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful 8 act or omission of any employee of the Government [5] while acting within the scope of his office 9 or employment, [6] under circumstances where the United States, if a private person, would be 10 liable to the claimant in accordance with the law of the place where the act or omission occurred.” 11 Brownback v. King, 141 S. Ct. 740, 746 (2021) (internal citation & quotation marks omitted). 12 Here, Plaintiff’s second amended complaint repeatedly refers to the “FTCA” or the 13 “FTCA/CTCA” in a conclusory fashion. Simply stating something is a violation of the 14 “FTCA/CTCA” and alleging “personal injury” or “emotional distress” is insufficient. See e.g., 15 Harris v. United States, No. 2:19-cv-03314-AG-JDE, 2019 WL 7834813, *4 (C.D. Cal. Nov. 1, 16 2019) (“in the FTCA Section, Plaintiff purports to identify eight ‘Government Tort Claims’ and 17 five ‘California Laws for Persons Wrongfully Convicted and Wrongfully Imprisoned’ … but does 18 not explain how any of these ‘tort claims’ or ‘California laws’ are applicable in his case. Such 19 ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 20 statements’ fail to comply with Rule 8”), R&R adopted 2020 WL 402126 (C.D. Cal. Jan. 24, 21 2020). Accordingly, Plaintiff’s second amended complaint fails to state a claim or claims in this 22 regard. 23 If the Court finds that a complaint should be dismissed for failure to state a claim, the 24 Court has discretion to dismiss with or without leave to amend. Lopez v. Smith, 203 F.3d 1122, 25 1126–30 (9th Cir. 2000) (en banc). Leave to amend should be granted if it appears possible that 26 the defects in the complaint could be corrected, especially if a plaintiff is pro se. Id. at 1130–31.2 27 2 Plaintiff may not change the nature of this suit by adding new, unrelated claims in his amended 28 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” complaints). 1 Here, Plaintiff will be granted leave to amend his complaint to cure the deficiencies concerning 2 his FTCA claims as this Court has not previously considered them at screening. 3 3 In any third amended complaint, Plaintiff should explain how each of the involved 4 individual’s conduct meets each of the state law claims he intends to assert against the United 5 States. As noted above, while an FTCA claim is based upon conduct or actions taken by federal 6 employees during the course and scope of employment, the only proper defendant is the United 7 States of America. If Plaintiff wishes to assert an FTCA claim or claims against the United States 8 for conduct by Warden White, Plaintiff should identify the state law tort claim or claims 9 specifically related to White’s conduct and demonstrate how White’s actions or inactions meet 10 the elements of the state law tort claim or claims asserted. If, for example, that state law tort claim 11 is negligence,4 Plaintiff is required to demonstrate how White’s conduct meets each of the 12 elements of a negligence claim. This Court “may not supply essential elements of the claim that 13 were not initially pled,” Bruns, 122 F.3d at 1257, and is “not required to indulge unwarranted 14 inferences.” Doe I, 572 F.3d at 681. 15 The allegations asserted in Plaintiff’s second amended complaint also involve facts 16 unrelated to Plaintiff’s potentially cognizable FTCA claims. Plaintiff simply repeats the various 17 factual allegations from his earlier complaints. Since this action was severed from Plaintiff’s 18 original action and concerns only Plaintiff’s original “Claim VI,” facts concerning a lack of 19

20 Plaintiff is also advised that an amended complaint supersedes the original complaint. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, any third amended complaint must be “complete in 21 itself without reference to the prior or superseded pleading.” Local Rule 220.

22 3 Judge Grosjean did not address the FTCA claims asserted in Plaintiff’s original complaint. See Gelazela v. United States, No. 1:21-cv-01499-AWI-EPG (PC), 2021 WL 11088349, at *1, n.1 (E.D. Cal. Nov. 16, 23 2021). Concerning the first amended complaint, Judge Grosjean determined Plaintiff had adequately pled 24 an FTCA claim against the United States based on the treatment Plaintiff received or failed to receive for his knee from defendant Moore. See Gelazela v. United States, No. 1:21-cv-01499-AWI-EPG (PC), 2022 25 WL 843446, at *9-10 (E.D. Cal. Mar. 22, 2022).

26 4 Under California law, to “establish a cause of action for negligence, the plaintiff must show that the defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or 27 legal cause of the resulting injury.” Brown v. USA Taekwondo, 11 Cal.5th 204, 213 (Cal. 2021) (internal quotation marks omitted). 28 1 medical care for Plaintiff’s knee are not relevant to this action and are the subject of another 2 action: Gelazela v. United States of America, No. 1:21-cv-01499-JLT-EPG (PC). Similarly, facts 3 concerning Plaintiff’s right to access the court or a violation of Plaintiff’s due process rights are 4 not relevant to this action—those claims are the subject to another action: Gelazela v. United 5 States of America, No. 1:22-cv-01539-ADA-EPG (PC). In other words, facts unrelated to the 6 specific claims that are the subject of this action should not be included in any third amended 7 complaint. 8 E. California Government Claims Act 9 The California Government Claims Act5 requires that a tort claim against a public entity 10 or its employees be presented to the California Victim Compensation and Government Claims 11 Board no more than six months after the cause of action accrues. Cal. Gov't Code §§ 905.2, 910, 12 911.2, 945.4, 950–950.2. Presentation of a written claim, and action on or rejection of the claim 13 are conditions precedent to suit. State v. Superior Ct. of Kings County (Bodde), 32 Cal.4th 1234, 14 1239 (Cal. 2004). The “failure to timely present a claim for money or damages to a public entity 15 bars a plaintiff from filing a lawsuit against that entity.” Id. at 1239; Karim-Panahi v. L.A. Police 16 Dep't, 839 F.2d 621, 627 (9th Cir. 1988). 17 The California Government Claims Act concerns claims brought against a California 18 public entity or its employees. See, e.g., Govt. Code, § 905.2 (“This section shall apply to claims 19 against the state …”). Plaintiff has not named a California public entity or employee in this 20 action. Although Plaintiff invokes the “CTCA” on numerous occasions in his second amended 21 complaint, Plaintiff’s FTCA claims provide a remedy for the actions or conduct of federal 22 employees and rely upon California substantive law. See, e.g., Rayonier Inc. v. United States, 352 23 U.S. 315, 318 (1957) (to demonstrate a claim under the FTCA, a plaintiff must prove the same 24 elements that state law requires for the substantive causes of action). Therefore, to the extent 25 Plaintiff intended to assert separate “CTCA” claims, those claims should be dismissed without 26

27 5 This Act was formerly known as the California Tort Claims Act. City of Stockton v. Superior Court, 42 Cal.4th 730, 741-42 (Cal. 2007) (adopting the practice of using Government Claims Act rather than 28 California Tort Claims Act). 1 leave to amend. 2 V. CONCLUSION AND RECOMMENDATIONS 3 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff’s Bivens claims against all named Defendants be DISMISSED WITH 5 PREJUDICE and without leave to amend; 6 2. Plaintiff’s state law or “CTCA” claims against all Defendants be DISMISSED 7 without leave to amend; and 8 3. The following Defendants be DISMISSED from this action: 9 a. Warden Douglas White 10 b. Case Manager K. Lehman 11 c. Correctional Officer Alcantor 12 d. Mendota FCI and 13 e. Bureau of Prisons 14 4. Plaintiff be GRANTED leave to amend his Federal Tort Claims Act (FTCA) claims 15 against Defendant United States of America; specifically, that Plaintiff be directed to 16 file a third amended complaint, curing the deficiencies identified in these findings, 17 within 30 days of the date of any order adopting these findings by the assigned 18 district judge. 19 These Findings and Recommendations will be submitted to the district judge assigned to 20 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 21 Findings and Recommendations, a party may file written objections with the Court. The 22 document should be captioned, “Objections to Magistrate Judge’s Findings and 23 Recommendations.” Failure to file objections within the specified time may result in waiver of 24 // 25 // 26 // 27 // 28 // 1 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4

5 Dated: September 12, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6

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