Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 1 of 5 Page ID #:196
1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT O. DINKINS, ) Case No. 2:21-cv-08942-CAS (KES) ) 12 ) Plaintiff, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 UNITED STATES, et al., ) 16 ) ) Defendants. ) 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 20 herein, including the Third Amended Complaint (Dkt. 10, “TAC”), the Report and 21 Recommendation of the United States Magistrate Judge (Dkt. 13, “Report”), and 22 plaintiff’s Objections to the Report (Dkt. 15, “Objection”). Pursuant to 28 U.S.C. 23 § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo 24 review of the matters to which objections have been stated. Petitioner’s assertions 25 and arguments have been reviewed carefully. The Court, however, concludes that 26 nothing set forth in the Objection or otherwise in the record for this case affects, 27 alters, or calls into question the findings and analysis set forth in the Report. 28 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 2 of 5 Page ID #:197
1 Therefore, the Court concurs with and accepts the findings and recommendations 2 of the Magistrate Judge. 3 Plaintiff has filed a civil rights complaint under Bivens v. Six Unknown 4 Agents, 403 U.S. 388 (1971). Plaintiff, a prisoner at U.S. Penitentiary in Lompoc, 5 California, has alleged the following claims in his third amended complaint: (1) 6 Eighth Amendment violation based on medical treatment for a sinus blockage; (2) 7 Eighth Amendment violation based on failure to provide plaintiff with a 8 wheelchair-accessible cell; (3) Eighth Amendment claim based on failure to 9 protect plaintiff from COVID-19; (4) an Equal Protection Clause violation for 10 failing to release plaintiff during the COVID-19 pandemic; and (5) Due Process 11 Clause violations for failing to properly process grievances in prison, improperly 12 punishing disabled prisoners for refusing to accept cell assignments, and failing to 13 employ fair procedures in declining to transfer plaintiff to home confinement. See 14 generally Dkt. 10 (“TAC”). 15 The Magistrate Judge has undertaken screening of plaintiff’s third amended 16 complaint in accordance with the Prison Litigation Reform Act’s pre-screening 17 requirements set forth in 28 U.S.C. § 1915(e)(2), 1915A. See Report at 3–5. As 18 part of this screening, the Magistrate Judge recommends dismissing with prejudice 19 all of plaintiff’s claims. Id. at 35. The Magistrate Judge recommends that 20 plaintiff’s Eighth Amendment medical treatment claim and Equal Protection claim, 21 be dismissed for failure to state a claim. Id. at 32. As to the other Bivens Eighth 22 Amendment and Due Process claims, the Magistrate Judge recommends dismissal 23 24 without leave to amend because the claims fail as a matter of law. Id. at 35. 25 Specifically, the Magistrate Judge found that those Bivens claims fail the Supreme 26 Court’s test set forth in cases like Ziglar v. Abbasi and Egbert v. Boule, that forbid 27 extended Bivens to causes of action not previously recognized by the Supreme 28 Court and where “special factors . . . counsel hesitation in doing so.” See id. at 3 2 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 3 of 5 Page ID #:198
1 (citing Ziglar v. Abbasi, --- U.S. ---, 137 S. Ct. 1843 (2017) and Egbert v. Boule, -- 2 U.S. ---, 142 S. Ct. 1793 (2022)). 3 Plaintiff’s Objection essentially raises two grounds: (1) that the Magistrate 4 Judge has not considered his motion to be appointed counsel pursuant to 28 U.S.C. 5 § 1915(e); and (2) that the Magistrate Judge and the Court fail to see the harm 6 alleged in his complaint. See Objection at 1, 5. The Court finds and concludes 7 that all of plaintiff’s objections are without merit. 8 First, plaintiff argues that the Court has erred in refusing to grant his motion 9 to be appointed counsel. The decision whether to appoint counsel under 28 U.S.C. 10 § 1915(e) “is within the sound discretion of the trial court and is granted only in 11 exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 12 (9th Cir. 2004) (citation omitted). “A finding of the exceptional circumstances . . . 13 requires at least (1) an evaluation of the likelihood of the plaintiff’s success on the 14 merits and (2) an evaluation of the plaintiff’s ability to articulate his claims in light 15 of the complexity of the legal issues involved.” Id. (citation omitted). The 16 Magistrate Judge previously denied his motion on August 19, 2022, due to 17 plaintiff’s failure to satisfy the second factor. Dkt. 12. Here, appointment of 18 counsel is inappropriate under the first factor, in accordance with the same analysis 19 that dismissal of plaintiff’s claims is appropriate for the reasons outlined below and 20 in the Magistrate Judge’s Report. 21 Second, plaintiff claims that the Magistrate Judge and the Court “continue to 22 state things like plaintiff [didn’t] claim harm from delay [of] treatment when [he] 23 24 clearly did so.” Objection at 5. In the Report, the Magistrate Judge wrote that 25 plaintiff’s deliberate indifference claim “seems to be based primarily on the delay 26 in receiving the ‘joint sinus and blockage surgery’ allegedly recommended by 27 doctor(s) at USP Atlanta” but that the TAC admits that plaintiff ultimately received 28 this surgery and in the intervening months, received “blockage” surgery and 3 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 4 of 5 Page ID #:199
1 medication to treat his sinus problems. Report at 14; see also TAC at 20. 2 Like the Magistrate Judge, the Court finds that under the controlling case 3 law “[t]he USP Lompoc doctor’s choice to first attempt less aggressive forms of 4 treatment does not plausibly suggest deliberate indifference.” Report at 14–15; see 5 Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) 6 (“[M]ere delay of surgery, without more, is insufficient to state a claim of 7 deliberate medical indifference”; a prisoner has “no claim for deliberate medical 8 indifference unless the denial [of surgery] was harmful.”); Wood v. Housewright, 9 900 F.2d 1332, 1335 (9th Cir. 1990) (“Nor does the delay in treatment . . . 10 constitute an Eighth Amendment violation; the delay must have caused substantial 11 harm . . . . Given the seriousness of his condition and the treatment Wood actually 12 received such harm was not present here.”). Neither the Magistrate Judge nor the 13 Court deny that plaintiff alleges harm—rather, plaintiff throughout every iteration 14 of his complaint “fails to state a claim under the Eighth Amendment based on the 15 delay in performing” a specific type of surgery to treat plaintiff’s problems. Id. at 16 16.
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Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 1 of 5 Page ID #:196
1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT O. DINKINS, ) Case No. 2:21-cv-08942-CAS (KES) ) 12 ) Plaintiff, ) ORDER ACCEPTING FINDINGS 13 ) AND RECOMMENDATIONS OF ) v. ) UNITED STATES MAGISTRATE 14 ) JUDGE ) 15 UNITED STATES, et al., ) 16 ) ) Defendants. ) 17 18 19 Pursuant to 28 U.S.C. § 636, the Court has reviewed the records and files 20 herein, including the Third Amended Complaint (Dkt. 10, “TAC”), the Report and 21 Recommendation of the United States Magistrate Judge (Dkt. 13, “Report”), and 22 plaintiff’s Objections to the Report (Dkt. 15, “Objection”). Pursuant to 28 U.S.C. 23 § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo 24 review of the matters to which objections have been stated. Petitioner’s assertions 25 and arguments have been reviewed carefully. The Court, however, concludes that 26 nothing set forth in the Objection or otherwise in the record for this case affects, 27 alters, or calls into question the findings and analysis set forth in the Report. 28 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 2 of 5 Page ID #:197
1 Therefore, the Court concurs with and accepts the findings and recommendations 2 of the Magistrate Judge. 3 Plaintiff has filed a civil rights complaint under Bivens v. Six Unknown 4 Agents, 403 U.S. 388 (1971). Plaintiff, a prisoner at U.S. Penitentiary in Lompoc, 5 California, has alleged the following claims in his third amended complaint: (1) 6 Eighth Amendment violation based on medical treatment for a sinus blockage; (2) 7 Eighth Amendment violation based on failure to provide plaintiff with a 8 wheelchair-accessible cell; (3) Eighth Amendment claim based on failure to 9 protect plaintiff from COVID-19; (4) an Equal Protection Clause violation for 10 failing to release plaintiff during the COVID-19 pandemic; and (5) Due Process 11 Clause violations for failing to properly process grievances in prison, improperly 12 punishing disabled prisoners for refusing to accept cell assignments, and failing to 13 employ fair procedures in declining to transfer plaintiff to home confinement. See 14 generally Dkt. 10 (“TAC”). 15 The Magistrate Judge has undertaken screening of plaintiff’s third amended 16 complaint in accordance with the Prison Litigation Reform Act’s pre-screening 17 requirements set forth in 28 U.S.C. § 1915(e)(2), 1915A. See Report at 3–5. As 18 part of this screening, the Magistrate Judge recommends dismissing with prejudice 19 all of plaintiff’s claims. Id. at 35. The Magistrate Judge recommends that 20 plaintiff’s Eighth Amendment medical treatment claim and Equal Protection claim, 21 be dismissed for failure to state a claim. Id. at 32. As to the other Bivens Eighth 22 Amendment and Due Process claims, the Magistrate Judge recommends dismissal 23 24 without leave to amend because the claims fail as a matter of law. Id. at 35. 25 Specifically, the Magistrate Judge found that those Bivens claims fail the Supreme 26 Court’s test set forth in cases like Ziglar v. Abbasi and Egbert v. Boule, that forbid 27 extended Bivens to causes of action not previously recognized by the Supreme 28 Court and where “special factors . . . counsel hesitation in doing so.” See id. at 3 2 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 3 of 5 Page ID #:198
1 (citing Ziglar v. Abbasi, --- U.S. ---, 137 S. Ct. 1843 (2017) and Egbert v. Boule, -- 2 U.S. ---, 142 S. Ct. 1793 (2022)). 3 Plaintiff’s Objection essentially raises two grounds: (1) that the Magistrate 4 Judge has not considered his motion to be appointed counsel pursuant to 28 U.S.C. 5 § 1915(e); and (2) that the Magistrate Judge and the Court fail to see the harm 6 alleged in his complaint. See Objection at 1, 5. The Court finds and concludes 7 that all of plaintiff’s objections are without merit. 8 First, plaintiff argues that the Court has erred in refusing to grant his motion 9 to be appointed counsel. The decision whether to appoint counsel under 28 U.S.C. 10 § 1915(e) “is within the sound discretion of the trial court and is granted only in 11 exceptional circumstances.” Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 12 (9th Cir. 2004) (citation omitted). “A finding of the exceptional circumstances . . . 13 requires at least (1) an evaluation of the likelihood of the plaintiff’s success on the 14 merits and (2) an evaluation of the plaintiff’s ability to articulate his claims in light 15 of the complexity of the legal issues involved.” Id. (citation omitted). The 16 Magistrate Judge previously denied his motion on August 19, 2022, due to 17 plaintiff’s failure to satisfy the second factor. Dkt. 12. Here, appointment of 18 counsel is inappropriate under the first factor, in accordance with the same analysis 19 that dismissal of plaintiff’s claims is appropriate for the reasons outlined below and 20 in the Magistrate Judge’s Report. 21 Second, plaintiff claims that the Magistrate Judge and the Court “continue to 22 state things like plaintiff [didn’t] claim harm from delay [of] treatment when [he] 23 24 clearly did so.” Objection at 5. In the Report, the Magistrate Judge wrote that 25 plaintiff’s deliberate indifference claim “seems to be based primarily on the delay 26 in receiving the ‘joint sinus and blockage surgery’ allegedly recommended by 27 doctor(s) at USP Atlanta” but that the TAC admits that plaintiff ultimately received 28 this surgery and in the intervening months, received “blockage” surgery and 3 Case 2:21-cv-08942-CAS-KES Document 16 Filed 10/27/22 Page 4 of 5 Page ID #:199
1 medication to treat his sinus problems. Report at 14; see also TAC at 20. 2 Like the Magistrate Judge, the Court finds that under the controlling case 3 law “[t]he USP Lompoc doctor’s choice to first attempt less aggressive forms of 4 treatment does not plausibly suggest deliberate indifference.” Report at 14–15; see 5 Shapley v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) 6 (“[M]ere delay of surgery, without more, is insufficient to state a claim of 7 deliberate medical indifference”; a prisoner has “no claim for deliberate medical 8 indifference unless the denial [of surgery] was harmful.”); Wood v. Housewright, 9 900 F.2d 1332, 1335 (9th Cir. 1990) (“Nor does the delay in treatment . . . 10 constitute an Eighth Amendment violation; the delay must have caused substantial 11 harm . . . . Given the seriousness of his condition and the treatment Wood actually 12 received such harm was not present here.”). Neither the Magistrate Judge nor the 13 Court deny that plaintiff alleges harm—rather, plaintiff throughout every iteration 14 of his complaint “fails to state a claim under the Eighth Amendment based on the 15 delay in performing” a specific type of surgery to treat plaintiff’s problems. Id. at 16 16. 17 Moreover, while plaintiff does not raise specific challenges to the Magistrate 18 Judge’s analysis with respect to the rest of his claims, the Court in its de novo 19 review agrees with the Magistrate Judge’s recommendation that the other Eighth 20 Amendment claims, as well as the Equal Protection and Due Process claims, be 21 dismissed for both failing the Ziglar test for Bivens claims and for additionally 22 failing to state a claim. The Court specifically notes that plaintiff has alternative 23 24 means to address his allegations on ongoing harm or conduct, including the BOP’s 25 Administrative Remedy Program established by 28 C.F.R. § 542.10-542.19 and 26 plaintiff’s participation in the class action lawsuit in Torres v. Milusnic, 20-CV- 27 04450-CBM-PVC (C.D. Cal.). See Report at 22, 26, 31. 28 / / / 4 ase 2:21-cv-08942-CAS-KES Document16 Filed 10/27/22 Page5of5 Page ID #:20
1 Having completed its review, the Court accepts the findings and 2 ||recommendations set forth in the Report. In accordance with the foregoing, the 3 || Court concludes that Judgment should be entered DISMISSING this action 4 || WITH PREJUDICE. 5 || Dated: October 27, 2022 6 harold Pryde CHRISTINA A.SNYDER 8 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28