(PC) Her v. Warden Mendota Prison

• Court: District Court, E.D. California
• Decided: June 16, 2023
• Docket: 1:23-cv-00488
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NOU HER, Case No. 1:23-cv-00488-BAM (PC) 12 Plaintiff, SCREENING ORDER GRANTING PLAINTIFF LEAVE TO AMEND 13 v. (ECF No. 1) 14 WARDEN MENDOTA PRISON, et al.,

15 Defendants. THIRTY-DAY DEADLINE 16 17 Plaintiff Nou Her (“Plaintiff”) is a federal prisoner proceeding pro se and in 18 forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Names Agents of Fed. 19 Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff’s complaint, filed on March 31, 2023, is 20 currently before the Court for screening. (ECF No. 1.) 21 I. Screening Requirement and Standard 22 The Court is required to screen complaints brought by prisoners seeking relief against a 23 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 25 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 26 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b); 27 1915(e)(2)(B)(ii). 28 /// 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 6 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 7 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 8 To survive screening, Plaintiff’s claims must be facially plausible, which requires 9 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 10 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 12 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 13 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 14 II. Plaintiff’s Allegations 15 Plaintiff is currently housed at FCI, Mendota, in Mendota, California, where the events in 16 the complaint are alleged to have occurred. Plaintiff names the following defendants: (1) 17 Warden FCI Mendota; (2) Dr. Moon, D.D.S., contract dental provider; and (3) Medical Director, 18 FCI Mendota. 19 Plaintiff alleges medical malpractice by a dental provider during tooth extraction. 20 Specifically, Plaintiff alleges that when he arrived for a tooth extraction from FCI Mendota 21 Medical/Dental and Dr. Moon, he “already had his jaw wired together in 5 places from injuries 22 sustained in his [past].” (ECF No. 1 at p. 3.) Dr. Moon could not perform the “intended 23 extraction due to existing wires from the jawbone injury.” (Id.) Dr. Moon utilized a pair of wire 24 cutters and cut the wires holding Plaintiff’s jaw together. Plaintiff “revisited medical/dental 25 because . . . the tips of the cut wires were eating into [his] gums, and causing extreme pain.” (Id.) 26 Plaintiff asked Dr. Moon why he cut the wires, but Dr. Moon denied cutting them. Plaintiff 27 indicates that Dr. Moon is a private contractor, but the action occurred under “BOP contract.” 28 Plaintiff claims Dr. Moon is liable under both the contract and through his practice. 1 Plaintiff complains that he has no relief, and he soon will be released. He alleges that he 2 is “in extreme pain, at risk for infection, and cannot properly eat.” (Id.) Plaintiff contends that 3 Dr. Moon’s intentional actions were a “short cut” with no regard for Plaintiff’s health or well- 4 being. (Id.) Plaintiff contends that Dr. Moon’s actions, amounting to medical malpractice, have 5 caused him lifelong damages and pain. As relief, Plaintiff requests compensatory damages, 6 immediate treatment, and transfer to an appropriate facility. (Id. at p. 4.) 7 III. Discussion 8 For the reasons discussed below, Plaintiff’s complaint fails to state a cognizable claim for 9 relief. It does not appear that Plaintiff can cure the identified deficiencies. However, as Plaintiff 10 is proceeding pro se, and in an abundance of caution, the Court will grant Plaintiff leave to amend 11 his complaint to the extent he can do so in good faith. 12 A. Bivens Actions Following Ziglar v. Abbasi 13 Plaintiff is a federal prisoner alleging that Dr. Moon, a contract dentist, failed to provide 14 him with appropriate dental care in violation of the Eighth Amendment. As he is a federal 15 prisoner, Plaintiff’s claims proceed under Bivens, 403 U.S. 388 (1971). To date, the Supreme 16 Court has only recognized a Bivens remedy in the context of the Fourth, Fifth, and Eighth 17 Amendments. See Bivens, 403 U.S. 388 (Fourth Amendment prohibition against unreasonable 18 searches and seizures); Davis v. Passman, 442 U.S. 228 (1979) (Fifth Amendment gender- 19 discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment Cruel and Unusual 20 Punishments Clause for failure to provide adequate medical treatment). The Supreme Court has 21 recently made clear that “expanding the Bivens remedy is now a disfavored judicial activity,” and 22 has “consistently refused to extend Bivens to any new context or new category of defendants. 23 Ziglar v. Abbasi, 582 U.S. 120, 137 S.Ct. 1843, 1857 (2017) (citations omitted); see Egbert v. 24 Boule, 142 S.Ct. 1793, 1803 (2022) (The Court reiterated that “recognizing a cause of action 25 under Bivens is ‘a disfavored judicial activity.’). 26 Traditionally, courts applied a two-part test to determine the appropriateness of extending 27 a Bivens cause of action. First, the Court examined whether the claim arises in a “new context” or 28 involves a “new category of defendants.” Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). Second, 1 if the claim does indeed arise in a new context, the Court assessed whether there exists any 2 “special factors counselling hesitation in the absence of affirmative action by Congress.” Ziglar, 3 582 U.S. at 136, 137 S.Ct. at 1857 (internal quotations omitted). However, the Supreme Court 4 recently reformulated this test. In Egbert, 142 S.Ct. at 1803, the Supreme Court determined that 5 these two steps can be distilled to one single inquiry; that is, “whether there is any reason to think 6 that Congress might be better equipped to create a damages remedy.” Further, the Court specified 7 that if there is even one rational reason to defer to Congress to afford a remedy, then “a court may 8 not recognize a Bivens remedy.” Id. Practically, the Court concluded that a rational reason for 9 deference to Congress will exist “in most every case.” Id. 10 Finally, the presence of an alternative remedial structure counsels against extending 11 Bivens to a new cause of action. The Court may not even determine the adequacy of the 12 alternative remedy, as this too is a task left to Congress. Egbert, 142 S.Ct at 1807. Indeed, “[s]o 13 long as Congress or the Executive has created a remedial process that it finds sufficient to secure 14 an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing 15 a Bivens remedy.” Id. This remains true “even if a court independently concludes that the 16 Government’s procedures are ‘not as effective as an individual damages remedy.’” Id. (quoting 17 Bush v. Lucas, 462 U.S. 367, 372 (1983)). 18 The Court recognizes that in Carlson v. Green, the Supreme Court found that there was an 19 available Bivens remedy for a federal prisoner’s Eighth Amendment claim for failure to provide 20 adequate medical treatment. 446 U.S. 14. Although Carlson created a Bivens remedy for certain 21 Eighth Amendment violations, Carlson did not create a blanket rule for all Eighth Amendment 22 claims brought under Bivens. See Martinez v. Bureau of Prisons, 830 F. App’x 234, 235 (9th Cir. 23 2020); see also Hernandez, 140 S. Ct. at 743 (“A claim may arise in a new context even if it is 24 based on the same constitutional provision as a claim in a case in which a damages remedy was 25 previously recognized.”). 26 In this district, in at least one instance, a Bivens remedy has not been extended to include a 27 plaintiff's medical indifference claim premised on dental pain and care. See Mendez v. United 28 States, No. 1:17-cv-00555-NONE-JLT (PC), 2020 WL 8513584, at *12-*14 (E.D. Cal. Mar. 24, 1 2020), report and recommendation adopted, No. 17-cv-0555-NONE-JLT (PC), 2021 WL 537271 2 (E.D. Cal. Feb. 12, 2021) (declining to extend Bivens to claims premised on dental care; 3 identifying availability of alternative remedies, including administrative grievance system, letters 4 and requests to doctor and Warden, and Federal Tort Claims Act claim for medical malpractice, 5 which counseled against extending Bivens remedy). Further, there appears to be alternative 6 remedies available, including additional visits at FCI Mendota for dental care, the administrative 7 grievance system, and, potentially, a claim for medical malpractice. 8 Additionally, Bivens remedies are not available against a private actor not directly 9 employed by the federal government. See Martinez v. Geo Grp., Inc., No. ED CV 18-1125-SP, 10 2020 WL 2496063, at *18 (C.D. Cal. Jan. 7, 2020) (“Bivens has never been applied to an 11 individual who was not in the direct employ of the federal government.”); Dubon v. GEO Corr. & 12 Detention, No. 3:18cv686-CAB-RBB, 2018 WL 4002620, at *3 (S.D. Cal. Aug. 22, 2018) 13 (explaining that the Supreme Court has refused to extend liability for constitutional violations to 14 private actors who contract with the federal government) (citing Corr. Servs. Corp. v. Malesko, 15 534 U.S. 61, 69, 74 (2001)). 16 For these reasons, the Court finds that Plaintiff’s complaint fails to state a plausible claim 17 against Defendant Moon. Even if the Court were to assume that a Bivens remedy was available, 18 Plaintiff’s complaint fails to state a cognizable claim under the Eighth Amendment against 19 Defendant Moon. 20 B. Eighth Amendment – Deliberate Indifference 21 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in 22 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate 23 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 24 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference 25 requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a 26 prisoner's condition could result in further significant injury or the ‘unnecessary and wanton 27 infliction of pain,’ ” and (2) “the defendant's response to the need was deliberately indifferent.” 28 Jett, 439 F.3d at 1096. 1 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 2 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 3 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 4 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 5 shown where there was “a purposeful act or failure to respond to a prisoner's pain or possible 6 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this standard, 7 the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have been 8 abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 9 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 10 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross 11 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood 12 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 13 Here, Plaintiff does not allege that Defendant Moon was deliberately indifferent to his 14 need for an extraction or dental care. Rather, Plaintiff alleges that Defendant Moon committed 15 medical malpractice in cutting the wire in his jaw with wire cutters. As indicated above, medical 16 malpractice is not sufficient to establish deliberate indifference to serious medical needs. 17 Moreover, even negligence or gross negligence will not support an Eight Amendment claim for 18 deliberate indifference. 19 C. Supervisory Liability - Bivens 20 Plaintiff also names as defendants the Warden and the Medical Director at FCI, Mendota. 21 Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages 22 for violating the plaintiff’s constitutional rights. See Bivens, 403 U.S. at 397. There is no 23 respondeat superior liability under Bivens. Iqbal, 556 U.S. at 677 (“In a § 1983 suit or a Bivens 24 action ... the term “supervisory liability” is a misnomer.”). A government official is only liable 25 for his or her own misconduct. Id.; Starr v. Baca, 652 F.3d 1202, 1205–08 (9th Cir. 2011), cert. 26 denied, 566 U.S. 982 (2012); Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010). 27 Plaintiff’s complaint does not include any allegations of misconduct by the Warden or 28 Medical Director at FCI, Mendota. Plaintiff’s complaint does not suggest that the Warden or the 1 Medical Director personally participated in or caused Plaintiff to suffer any constitutional injury. 2 IV. Conclusion and Order 3 Plaintiff’s complaint fails to state a cognizable claim for relief under Bivens. In an 4 abundance of caution, the Court will grant Plaintiff an opportunity to amend his complaint to cure 5 the identified deficiencies to the extent he is able to do so in good faith. Lopez v. Smith, 203 F.3d 6 1122, 1130 (9th Cir. 2000). 7 Plaintiff’s amended complaint should be brief, Fed. R. Civ. P. 8(a), but it must state what 8 each named defendant did that led to the deprivation of Plaintiff’s constitutional rights, Iqbal, 556 9 U.S. at 678-79. Although accepted as true, the “[f]actual allegations must be [sufficient] to raise 10 a right to relief above the speculative level . . . .” Twombly, 550 U.S. at 555 (citations omitted). 11 Additionally, Plaintiff may not change the nature of this suit by adding new, unrelated claims in 12 his first amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no “buckshot” 13 complaints). Finally, Plaintiff is advised that an amended complaint supersedes the original 14 complaint. Lacey v. Maricopa Cnty., 693 F.3d 896, 927 (9th Cir. 2012). Therefore, Plaintiff’s 15 amended complaint must be “complete in itself without reference to the prior or superseded 16 pleading.” Local Rule 220. 17 Based on the foregoing, it is HEREBY ORDERED that: 18 1. The Clerk’s Office shall send Plaintiff a complaint form; 19 2. Within thirty (30) days from the date of service of this order, Plaintiff shall file an 20 amended complaint curing the deficiencies identified by the Court in this order (or file a notice of 21 voluntary dismissal); and 22 3. If Plaintiff fails to file an amended complaint in compliance with this order, the 23 Court will recommend dismissal of this action, with prejudice, for failure to obey a court order 24 and for failure to state a claim. IT IS SO ORDERED. 25

26 Dated: June 16, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27