Young v. Federal Bureau of Prisons

• Court: District Court, S.D. California
• Decided: January 7, 2025
• Docket: 3:22-cv-00125
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELISSA YOUNG, Case No.: 22-cv-00125-AJB-KSC

12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS 14 LOUIS WILLIAMS, II, THE GEO 15 GROUP, INC., a Florida corporation; (Doc. Nos. 48, 49) JOHN or JANE DOE 1-30, Correctional 16 Officers and Staff of the Federal Bureau 17 of Prisons and JOHN or JANE DOES 16-30 Correctional Officers and Staff at 18 the GEO GROUP, INC., 19 Defendants. 20

21 This is a civil rights action arising out of Melissa Young’s (“Plaintiff”) time in 22 custody. The operative complaint is the Second Amended Complaint (“SAC”), which 23 Plaintiff brings against Louis Williams, II, (“Williams”), the warden employed by the 24 Federal Bureau of Prisons at Metropolitan Correctional Center, San Diego, the GEO Group 25 Inc. (“GEO”), and their respective Correctional Officers and Staff (all Defendants 26 collectively, “Defendants”). (Doc. No. 34.) Before the Court are two motions: (1) 27 Defendant Williams’ motion to dismiss, (Doc. No. 48); and (2) Defendant GEO’s motion 28 1 57.) For the reasons set forth below, the Court GRANTS IN PART and DENIES IN 2 PART Defendants’ motions to dismiss. 3 I. BACKGROUND1 4 On November 17, 2019, the Chula Vista Police Department placed Plaintiff into 5 custody. (Second Amended Complaint, (“SAC”), Doc. No. 34, ¶ 15.) That same day, 6 Plaintiff experienced a seizure and was taken to Scripps Chula Vista Emergency Room for 7 treatment. (Id.) She was then transported to GEO’s Western Region Detention Facility. 8 (Id.) On December 4, 2019, Plaintiff was released on bond and entered a residential drug 9 treatment program. (Id. ¶¶ 18–19.) Plaintiff was discharged from the program on January 10 23, 2020, and reported to Pretrial Services the next day. (Id. ¶ 19.) Plaintiff was then 11 transported to Metropolitan Correction Center (“MCC San Diego”), a facility operated by 12 the Bureau of Prisons (“BOP”). (Id.) 13 At some point between mid-November 2019 and early February 2020, BOP assigned 14 Plaintiff to a top bunk at MCC San Diego. (Id. ¶ 24.) She informed the Corrections Office 15 at MCC San Diego that due to her seizures, she required a bottom bunk, but the Corrections 16 Office ignored her request. (Id.) Plaintiff also requested to go to the medical department 17 and completed a form to obtain her prescribed medications. (Id. 18 ¶ 25.) Plaintiff alleges those requests were also ignored. (Id. ¶¶ 26–27.) 19 On January 29, 2020, Plaintiff felt ill, asked to be seen by the medical unit at MCC 20 San Diego, but was again ignored. (Id. ¶ 27.) She thereafter had a seizure and fell from her 21 top bunk. (Id.) When other inmates attempted to get help, the officers claimed that Plaintiff 22 was faking the seizure, and one of them kicked her. (Id. ¶¶ 28–29.) The corrections officers 23 did not contact emergency medical services. (Id. ¶¶ 29–30.) Plaintiff’s defense counsel 24 learned about Plaintiff’s condition and contacted MCC San Diego. (Id. ¶ 30.) She was then 25 transported to UC San Diego (“UCSD”) Hospital, where she underwent emergency brain 26 surgery. (Id. ¶ 32.) 27

28 1 The following facts are taken from the SAC and assumed true for purposes of this motion. See Cahill v. 1 Plaintiff returned to MCC San Diego on February 3, 2020, and was again assigned 2 to a top bunk. (Id. ¶ 34.) A fellow inmate switched bunks with Plaintiff so Plaintiff could 3 have a bottom bunk. (Id.) On February 5, 2020, Plaintiff entered another residential 4 treatment program. (Id. ¶ 44.) Plaintiff felt ill the next day and requested to go to an 5 emergency room. (Id. ¶ 45.) The medical staff informed her that she had been medically 6 cleared and does not need emergency care. (Id.) Plaintiff then called her sister, who took 7 her to Sharp Chula Vista Emergency Room. (Id.) The Sharp Chula Vista Emergency Room 8 admitted Plaintiff and kept her under observation. (Id.) She was later transferred to UCSD 9 Hospital’s neurology department for her post-surgery follow-up and discharged on 10 February 7, 2020. (Id. ¶ 46.) 11 After discharge, Plaintiff was placed in GEO’s medical unit, where she remained for 12 three days. (Id. ¶ 48.) Plaintiff was then placed in GEO’s general population until her 13 release on February 26, 2020. (Id. ¶¶ 49–50.) During her time in general population, 14 Plaintiff alleges that GEO corrections officers banged on the cell bars daily, yelling “free 15 headaches.” (Id. ¶ 50.) Plaintiff informed the officers of her recent brain surgery and 16 requested they stop. (Id. ¶ 51.) The officers told her that “headaches were funny” and 17 ignored her requests to stop. (Id.) Plaintiff alleges suffering pain and discomfort from the 18 banging of the officers’ mallets on the cell bars. (Id.) According to Plaintiff, she also 19 struggled to get her medication and see the medical unit at GEO. (Id. ¶ 52.) 20 Plaintiff alleges that MCC and GEO failed to protect and ensure her safety by not 21 conducting appropriate health and medical evaluations. (Id. ¶¶ 36–41, 52, 54–57.) She also 22 claims that MCC’s failure to provide timely and necessary medical intervention caused the 23 brain bleed that necessitated her surgery. (Id. ¶ 41.) 24 Plaintiff brought suit against Defendants in 2022. (Doc. No. 1.) The Court dismissed 25 the First Amended Complaint, (Doc. No. 33), and Plaintiff later filed the SAC. Plaintiff 26 alleges Eighth Amendment claims for deliberate indifference for failure to protect (Count 27 1), and deliberate indifference to serious medical needs (Count 3) against Williams and 28 John or Jane Doe 1–15 BOP Correctional Officers and Staff (“BOP Officers”). (SAC ¶¶ 1 58–71; 84–96.) Plaintiff also brings an Eighth Amendment excessive force claim (Count 2 2) only against BOP Officers. (Id. ¶¶ 72–83.) The SAC includes claims for intentional 3 infliction of emotional distress (Count 4) against GEO and John or Jane Doe 16–30 GEO 4 Officers (“GEO Officers”), and negligence (Count 5) against GEO Officers. (Id. ¶¶ 97– 5 110.) Finally, Plaintiff brings a claim under the Bane Act (Count 6) against all Defendants. 6 (Id. ¶¶ 111–13.) Defendants Williams and GEO filed separate motions to dismiss the SAC. 7 (Doc. Nos. 48, 49.) This Order follows. 8 II. LEGAL STANDARD 9 A motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 10 tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 11 2001). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 12 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 13 556 U.S. 662, 678 (2009) (citation omitted). Facial plausibility is satisfied “when the 14 plaintiff pleads factual content that allows the court to draw the reasonable inference that 15 the defendant is liable for the misconduct alleged.” Id. To determine the sufficiency of the 16 complaint, the court must assume the truth of all factual allegations therein and construe 17 them in the light most favorable to the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 18 336, 337–38 (9th Cir. 1996). Although a court must take all of the factual allegations in a 19 complaint as true, it is not required to accept conclusory statements. Iqbal, 556 U.S. at 678. 20 Additionally, a party may seek dismissal of an action pursuant to Rule 12(b)(1) for 21 lack of subject-matter jurisdiction “either on the face of the pleadings or by presenting 22 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 23 2003). The party asserting subject-matter jurisdiction has the burden of persuasion for 24 establishing it. Hertz Corp. v. Friend, 559 U.S. 77, 96 (2010). 25 III. DISCUSSION 26 Defendants Williams and GEO separately move pursuant to Federal Rules of Civil 27 Procedures 12(b)(6) and 12(b)(1) to dismiss with prejudice Plaintiff’s SAC. (Doc. Nos. 48, 28 49.) Williams moves to dismiss Plaintiff’s three claims brought pursuant to Bivens v. Six 1 Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), where Plaintiff 2 alleges constitutional violations under the Eighth Amendment by federal officials for 3 failure to protect (Count 1), excessive force (Count 2), and deliberate indifference to 4 serious medical needs (Count 3) (collectively, the “Bivens claims”). (Doc. No. 49 at 9–17.) 5 Williams also argues he is entitled to qualified immunity. (Id. at 17.) GEO moves to dismiss 6 Plaintiff’s claims for negligence (Count 4) and intentional infliction of emotional distress 7 (Count 5). (Doc. No. 48 at 5–7.) Both Williams and GEO move to dismiss Plaintiff’s Bane 8 Act claim (Count 6). (Doc. Nos. 48 at 7–9; 49 at 18–19.) 9 A. Plaintiff’s Three Bivens Claims Under the Eighth Amendment 10 In the SAC, Plaintiff asserts three Bivens causes of action under the Eighth 11 Amendment against BOP Officers for: (1) failure to protect (Count 1); (2) excessive force 12 (Count 2); and (3) deliberate indifference to serious medical needs (Count 3). (SAC 13 ¶¶ 58–96.) Plaintiff also brings the failure to protect (Count 1) and deliberate indifference 14 to serious medical needs (Count 3) Bivens claims against Defendant Williams. (Id. ¶¶ 58– 15 71, 84–96.) 16 The Supreme Court established an implied private right of action for tortious 17 deprivation of constitutional rights against federal officials in their personal capacity in 18 only three contexts. First, in Bivens, the Supreme Court held that a plaintiff alleging to have 19 been subject to an unlawful arrest and search could bring a Fourth Amendment claim for 20 damages against federal agents, even though no federal statute authorized such a claim. 21 Bivens, 403 U.S. at 396; see also Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020). Then, in 22 Davis v. Passman, the Court held that the Fifth Amendment Due Process Clause gave the 23 plaintiff, a former congressional staffer, a damages remedy for gender discrimination when 24 no alternative remedy existed. 442 U.S. 228, 248 (1979). In Carlson v. Green, the Court 25 held that the Eighth Amendment’s Cruel and Unusual Punishments Clause gave decedent’s 26 estate a damages remedy when federal jailers failed to treat decedent’s asthma, resulting in 27 his death. 446 U.S. 14, 25 (1980). 28 1 Expanding the Bivens remedy beyond these three scenarios is a “disfavored” judicial 2 activity. Iqbal, 556 U.S. at 675; see also Chambers v. C. Herrera, 78 F.4th 1100, 1104 (9th 3 Cir. 2023) (“[T]he Court recently issued a trilogy of cases reinforcing said disfavor.”) 4 (citing Egbert v. Boule, 596 U.S. 482, 484 (2022); Hernandez v. Mesa, 140 S. Ct. 735, 741 5 (2020); and Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). The Supreme Court has 6 “consistently refused to extend Bivens to any new context or new category of defendants.” 7 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001). When deciding whether to provide 8 a damages remedy, “Congress is in a better position [than the courts] to decide whether or 9 not the public interest would be served” by imposing a “new substantive legal 10 liability.” Schweiker v. Chilicky, 487 U.S. 412, 426–27 (1988) (quoting Bush v. Lucas, 462 11 U.S. 367, 390 (1983)). 12 The Court addresses each of Plaintiff’s three Bivens claims by proceeding in two 13 steps. “First, we ask whether the case presents ‘a new Bivens context’—i.e., is it 14 ‘meaningful[ly]’ different from the three cases in which the Court has implied a damages 15 action.” Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 1849). Second, if a case 16 presents a new Bivens context, then the Court examines whether “there are ‘special factors’ 17 indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the 18 costs and benefits of allowing a damages action to proceed.’” Id. (quoting Ziglar, 582 U.S. 19 at 1854). These steps will “often resolve to a single question: whether there is any reason 20 to think that Congress might be better equipped to create a damages remedy.” Id. “In 21 practice, the Supreme Court’s stringent test will foreclose relief in all but the most 22 extraordinary cases.” Marquez v. C. Rodriguez, 81 F.4th 1027, 1030 (9th Cir. 2023). 23 a. Eighth Amendment – Failure to Protect (Count 1) 24 In the SAC, Plaintiff alleges that Defendant Williams and BOP Officers acted with 25 deliberate indifference to substantial risk of physical assault in violation of the Eighth 26 Amendment by subjecting Plaintiff to dangerous conditions of confinement and violating 27 her right to safe and humane confinement. (SAC ¶¶ 58–71.) Williams argues that the claim 28 must be dismissed because the Ninth Circuit found that a Bivens cause of action may not 1 be found on allegations of failure to protect under the Eighth Amendment. (Doc. No. 49 at 2 9, 11–12 (citing Chambers, 78 F.4th at 1105; Marquez, 81 F.4th at 1030–31).) Plaintiff 3 does not dispute Defendant Williams’ assertion, and instead responds that Williams is 4 liable for failure to protect under the Fourteenth Amendment’s Due Process Clause. (Doc. 5 No. 51 at 4–5.) 6 The Ninth Circuit has declined to extend a Bivens action to failure-to-protect claims 7 brought under the Eighth Amendment, Chambers, 78 F.4th at 1105, and the Fifth 8 Amendment, Marquez, 81 F.4th at 1028. In Chambers, the Ninth Circuit held that a failure- 9 to-protect claim brought by a plaintiff alleging assault by a federal prison guard represented 10 a new Bivens context because “it is distinct from the three actions recognized in Bivens, 11 Davis, and Carlson.” Chambers, 78 F.4th at 1107. The Ninth Circuit reasoned that 12 extending Bivens to an Eighth Amendment failure-to-protect claim “would interfere with 13 the administration of the federal prison system” that offered prisoner grievance procedures 14 that the plaintiff elected not to use. Id. It also “decline[d] to craft an action for damages 15 when Congress could have done so but did not.” Id. at 1108. 16 Similarly, in Marquez, the Ninth Circuit rejected extending Bivens to a pretrial 17 detainee’s failure-to-protect claim under the Fifth Amendment for suffering injuries after 18 being denied protective custody. 81 F.4th at 1032–33. There, the Ninth Circuit found that 19 the claim involved a new Bivens context in part because the plaintiff, a pretrial detainee, 20 was temporarily held in jail, whereas the Supreme Court only previously considered Bivens 21 claims brought by convicted individuals in prison. Id. at 1032. The Ninth Circuit 22 determined the “difference in setting . . . significant.” Id. Additionally, the Ninth Circuit 23 established that special factors counseled against extending Bivens because the plaintiff 24 had remedies available other than a Bivens claim, including BOP administrative review 25 procedures, as well as declaratory or injunctive relief. Id. at 1033. 26 The present case is analogous to both Chambers and Marquez. First, like in 27 Chambers and Marquez, Plaintiff’s claim involves a new Bivens context. The failure-to- 28 protect claim “is distinct from the three actions recognized in Bivens, Davis, and Carlson,” 1 Chambers, 78 F.4th at 1107, none of which involved a failure-to-protect claim. 2 Additionally, like the plaintiff in Marquez, the Plaintiff here was a pretrial detainee at the 3 time of the alleged brain bleed and assault, and not a prisoner. Marquez, 81 F.4th at 1032. 4 Second, the special factors in Chambers equally apply here: 1) Plaintiff does not allege that 5 she used any of the BOP administrative procedures to address her grievance, and 2) the 6 Court will not extend an action for damages where “Congress could have done so but did 7 not.” Chambers, 78 F.4th at 1107–08. While Plaintiff cites to Farmer v. Brennan, 511 U.S. 8 825, 825 (1994) in support of holding a prison official liable under the Eighth Amendment 9 for acting with deliberate indifference to inmate health or safety, the Ninth Circuit recently 10 held that “Farmer is not a recognized Bivens context.” Marquez, 81 F.4th at 1030 (citing 11 Ziglar, 582 U.S. 120 (2017) (Bivens, Davis, and Carlson “represent the only instances in 12 which the Court has approved of an implied damages remedy under the Constitution 13 itself.”)). 14 Plaintiff’s attempt to amend the SAC in her opposition brief to allege a failure-to- 15 protect claim in violation of the Fourteenth Amendment fares no better. First, the SAC does 16 not mention the Fourteenth Amendment and amending a claim in an opposition brief to a 17 motion to dismiss is improper. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 18 2001) (“[W]hen the legal sufficiency of a complaint’s allegations is tested by a motion 19 under Rule 12(b)(6), [r]eview is limited to the complaint.”) (internal quotation marks and 20 citation omitted). Second, Defendants Williams, as warden of MCC, and BOP Officers 21 were federal employees at the time the events in this case occurred. (Doc. No. 49 at 7.) It 22 is well-settled law that “actions of the Federal Government and its officers are beyond the 23 purview of the [Fourteenth] Amendment.” D.C. v. Carter, 409 U.S. 418, 424 (1973); see 24 also Hall v. Mueller, 84 F.App’x 814, 815 (9th Cir. 2003) (affirming dismissal of 25 Fourteenth Amendment claims against individual defendants because the Fourteenth 26 Amendment “do[es] not apply to federal government actors.”) Accordingly, a Fourteenth 27 Amendment claim brought against Defendants Williams and BOP Officers fails as a matter 28 of law and amending the operative complaint to include such a claim would be futile. 1 As in Chambers and Marquez, because Plaintiff does not state a failure-to-protect 2 claim under the Eighth Amendment, the Court GRANTS Defendant Williams’s motion to 3 dismiss Plaintiff’s Bivens failure-to-protect claim. See Fed. R. Civ. P. 8, 12(b)(6). Further, 4 because Plaintiff has not raised additional facts or argument to support a viable failure-to- 5 protect claim against Defendants Williams or BOP Officers, the Court finds amendment 6 would be futile. Accordingly, the Court DISMISSES the purported failure-to-protect claim 7 against Defendants Williams and BOP Officers WITHOUT LEAVE TO AMEND. See 8 Fed. R. Civ. P.12(b)(6); see Saul v. United States, 928 F.2d 829, 843 (9th Cir. 1991) (“A 9 district court does not err in denying leave to amend where the amendment would be 10 futile.”). 11 b. Eighth Amendment – Excessive Force (Count 2) 12 Plaintiff’s second cause of action alleges a Bivens claim for excessive force in 13 violation of the Eighth Amendment. (SAC ¶¶ 72– 83.) Plaintiff alleges that BOP Officers’ 14 “assault and battery upon Ms. Young on January 29, 2020, by kicking her, was 15 unauthorized, unlawful, and applied maliciously and sadistically to cause Ms. Young 16 physical injury and done while she was in medical peril.” (Id. ¶ 79.) Williams argues that 17 Plaintiff’s second cause of action should be dismissed because the Ninth Circuit has 18 declined to extend a Bivens remedy to Eighth Amendment excessive force claims. (Doc. 19 No. 49 at 12 n. 1.) The Court agrees. 20 In Chambers, the Ninth Circuit found that under Egbert, “even plausible allegations 21 could not constitute a Bivens claim for excessive force[.]” 78 F.4th at 1107; see also 22 Williams v. Baker, No. 116CV01540ADAHBK, 2023 WL 7323332, at *4 (E.D. Cal. Nov. 23 7, 2023), report and recommendation adopted, No. 1:16-CV-01540-NODJ-HBK (PC), 24 2024 WL 1333172 (E.D. Cal. Mar. 28, 2024), appeal dismissed, No. 24-3525, 2024 WL 25 4063618 (9th Cir. June 20, 2024) (“[B]inding Ninth Circuit case law now holds that under 26 Egbert, this Court may not extend a Bivens remedy to an Eighth Amendment excessive use 27 of force claim.”) The Ninth Circuit determined that an Eighth Amendment Bivens claim 28 “rooted in excessive force” “represents a new Bivens context because it is distinct from the 1 three actions recognized in Bivens, Davis, and Carlson.” Id.; see also Hunt v. Matevousian, 2 No. 18-17464, 2023 WL 8064536, at *1 (9th Cir. Nov. 21, 2023) (“The district court 3 properly dismissed [plaintiff’s] Eighth Amendment claims for excessive force and failure 4 to protect because a Bivens remedy is unavailable for such claims.”) Further, the Ninth 5 Circuit identified special factors that foreclosed a Bivens excessive force claim by stating, 6 “[b]ecause Carlson involved an entirely different claim, it provides no judicial guidance 7 on how prison officials should handle excessive force claims” and “to expand Bivens here 8 would risk the exact ‘disruptive intrusion by the Judiciary’ that Ziglar forecloses.” 9 Chambers, 78 F.4th at 1108 (quoting Ziglar, 582 U.S. at 140). 10 Plaintiff’s reliance on Kingsley v. Hendrickson, 576 U.S. 389 (2015) for the 11 appropriateness of a pretrial detainee’s excessive force claim is also inapposite because 12 there, the pretrial detainee brought a Section 1983 action for excessive force against county 13 jail officers, alleging that they used excessive force in violation of his Fourteenth 14 Amendment rights. As stated above, neither the Fourteenth Amendment nor Section 1983 15 applies to individual federal government actors. See Hall, 84 F. App’x at 815–16. Because 16 neither the Supreme Court nor the Ninth Circuit have recognized a Bivens remedy for an 17 Eighth Amendment excessive force claim, and amendment would be futile, the Court 18 DISMISSES the Bivens excessive force claim against BOP Officers WITHOUT LEAVE 19 TO AMEND. See Chambers, 78 F.4th at 1107 (“Because even plausible allegations could 20 not constitute a Bivens claim for excessive force under Egbert, it is absolutely clear that 21 amendment would be futile.”) (internal quotation marks and citation omitted); see also 22 Saul, 928 F.3d at 843. 23 c. Eighth Amendment – Deliberate Indifference to Serious Medical 24 Needs (Count 3) 25 Plaintiff’s final Bivens claim is for deliberate indifference to serious medical needs 26 under the Eighth Amendment. (SAC ¶¶ 84–96.) Plaintiff alleges that Defendants Williams 27 and BOP Officers knew or should have known of Plaintiff’s seizure condition, including 28 that it required medication and medical care, which was not provided to Plaintiff, and that 1 Williams and BOP Officers failed to provide Plaintiff with adequate treatment for her head 2 injuries sustained on January 29, 2020, when she fell from her top bunk following a seizure. 3 (Id.) Williams argues that this claim should be dismissed because 1) Plaintiff’s deliberate 4 indifference claim is conclusory, 2) Plaintiff does not allege that Williams was personally 5 involved in the alleged constitutional violations, and vicarious liability is inapplicable to 6 Bivens suits, 3) Plaintiff was a pretrial detainee at the time of the alleged events, rather than 7 a convicted inmate, so her claims are properly raised under the Fifth Amendment, not the 8 Eighth Amendment, and 4) Plaintiff had alternative remedies other than bringing a Bivens 9 claim. (Doc. No. 49 at 12–13.) Plaintiff responds that she adequately plead her deliberate 10 indifference to medical needs claim and that Williams is liable under both the Eighth and 11 Fourteenth Amendments. (Doc. No. 51 at 4, 6.) 12 Plaintiff does not dispute that the Eighth Amendment protects adequate medical care 13 for prisoners, but not pretrial detainees. (Doc. No. 51 at 5); see also Bell v. Wolfish, 441 14 U.S. 520, 535 n.16 (1979) (claims by federal pretrial detainees “properly rel[y] on the Due 15 Process Clause [of the Fifth Amendment] rather than the Eighth Amendment”). Instead, 16 Plaintiff argues that pretrial detainees are guaranteed adequate medical care under the 17 Fourteenth Amendment’s Due Process Clause. (Id.) However, Plaintiff cannot amend the 18 SAC in her opposition brief to state a new claim under the Fourteenth Amendment, Lee, 19 250 F.3d at 688, and the Fourteenth Amendment does not apply to individual federal 20 government actors, Hall, 84 F. App’x at 815–16. Accordingly, on these bases, the Court 21 DISMISSES Plaintiff’s third cause of action WITH LEAVE TO AMEND. Considering 22 leave should be freely given and amendment may not be futile, the Court GRANTS 23 Plaintiff leave to amend the SAC so Plaintiff may bring a deliberate indifference to serious 24 medical needs claim under the Fifth Amendment. See Fed. R. Civ. P. 15(a); Johnson v. 25 Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (“[L]eave to amend should 26 be granted unless amendment would cause prejudice to the opposing party, is sought in bad 27 faith, is futile, or creates undue delay.”). To avoid dismissal, Plaintiff must ensure any third 28 1 amended complaint contains factual allegations showing a violation of clearly established 2 law. See Fed. R. Civ. P. 8, 12. 3 B. Negligence 4 Plaintiff alleges a claim of negligence against Defendants GEO and GEO Officers 5 for disregarding the safety of Plaintiff, failing to follow GEO’s policies and procedures, 6 delaying providing medical attention to Plaintiff, and negligently hiring, training, 7 developing, managing, and supervising GEO Officers. (SAC ¶ 99.) Plaintiff brings the 8 claim against GEO Officers with respondeat superior liability for GEO. (Id. ¶¶ 114–15.) 9 Defendant GEO argues that Plaintiff fails to adequately plead causation or harm elements 10 to state a claim for negligence. (Doc. No. 48 at 3–4.) 11 The Court agrees with Defendants.2 As an initial matter, Plaintiff admits that the 12 negligence count in the SAC “inaccurately states Federal Bureau of Prisons” when she 13 intended to refer to the GEO. (Id.) However, the Court cannot assume facts not alleged. 14 See Assoc. Gen. Contractors of California, Inc. v. Cal. State Council of Carpenters, 459 15 U.S. 519, 526 (1983) (“It is not . . . proper to assume that the [plaintiff] can prove facts that 16 it has not alleged.”). Even had the SAC referenced GEO rather than the Federal Bureau of 17 Prisons, the SAC does not contain sufficient specificity or facts to state a claim for 18 negligence. For instance, Plaintiff broadly alleges delays in receiving medical attention, 19 but does not plead the specific harm she suffered due to the delays. (SAC ¶¶ 97 –103.) 20 Further, Plaintiff does not connect any negligence in hiring, training, developing, 21 managing, or supervising GEO Officers with any specific harm. (Id.) Finally, while 22 Plaintiff alleges that GEO “[f]ailed to follow policies and procedures contained in the 23 Defendant GEO’s Policies and Procedures Manual,” amongst other policies, (id. ¶ 99(d)), 24 Plaintiff does not identify how GEO Officers failed to adhere to the policies, or whether 25

26 2 The Court does not agree with Defendant GEO’s contention that “the only causation of harm or injury alleged in the [SAC] is Plaintiff’s allegation that while in federal custody at MCC, she fell off her top 27 bunk to the floor on January 29, 2020 . . . .” (Doc. No. 48 at 2.) Plaintiff also alleges that GEO Officers’ 28 repeated act of “banging [an orange mallet] on the cell bars . . . caused her severe pain and discomfort[.]” 1 she experienced harm as a result. (Id.) Accordingly, the Court GRANTS Defendant GEO’s 2 motion to dismiss Plaintiff’s negligence claim WITH LEAVE TO AMEND. See Fed. R. 3 Civ. P.12(b)(6). 4 Considering leave should be freely given and amendment may not be futile, the 5 Court GRANTS Plaintiff leave to amend the SAC to cure the deficiencies with respect to 6 the claims against GEO and GEO Officers. See Fed. R. Civ. P. 15(a); Johnson v. Mammoth 7 Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (“[L]eave to amend should be granted 8 unless amendment would cause prejudice to the opposing party, is sought in bad faith, is 9 futile, or creates undue delay.”). 10 C. Intentional Infliction of Emotional Distress 11 Plaintiff alleges a claim of Intentional Infliction of Emotional Distress (“IIED”) 12 against Defendant GEO Officers for “using an orange mallet to hit the bars of the cells 13 yelling ‘free headaches[,]’ causing Ms. Young extreme pain and stress.” (SAC ¶¶ 51, 105.) 14 Plaintiff alleges the GEO Officers engaged in such behavior daily for the sixteen days 15 Plaintiff was in custody at GEO’s Western Regional Detention Facility from February 10, 16 2020, until February 26, 2020, following Plaintiff’s brain surgery. (Id. ¶ 50.) Plaintiff 17 alleges that she “begged” the GEO Officers to stop, but they responded that “headaches 18 were funny.” (Id. ¶ 51.) As a result of GEO Officers’ actions, Plaintiff alleges “sustain[ing] 19 severe, serious and permanent injuries to her person. . . .” (SAC ¶ 107.) Plaintiff brings the 20 claim against GEO Officers with respondeat superior liability for GEO. (Id. ¶¶ 114–15.) 21 Defendant GEO argues that Plaintiff’s allegations are insufficient to show 22 outrageous conduct, (Doc. No. 48 at 6–7), and further asserts that GEO cannot be liable 23 under respondeat superior where Plaintiff does not name the officer(s) who allegedly 24 engaged in the conduct, (id. at 7), and where the alleged conduct falls outside the scope of 25 the GEO Officers’ employment. (Doc. No. 57 at 3.) Plaintiff counters that the GEO 26 Officers’ conduct was outrageous and their alleged reference to “free headaches” 27 demonstrates that their conduct was directed at Plaintiff and her medical condition 28 following brain surgery. (Doc. No. 52 at 4.) 1 A claim for IIED requires a prima facie showing of “(1) extreme and outrageous 2 conduct by the defendant with the intention of causing, or reckless disregard of the 3 probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme 4 emotional distress; and (3) actual and proximate causation of the emotional distress by 5 defendant’s outrageous conduct.” Sabow v. United States, 93 F.3d 1445, 1454 (9th Cir. 6 1996). For the conduct to be considered outrageous, it “must be so extreme as to exceed all 7 bounds of that usually tolerated in a civilized community.” Cervantez v. J.C. Penny Co., 8 24 Cal. 3d 579, 593 (1979), overturned on other grounds by legislative action, Cal. Penal 9 Code § 243. “Under California’s law of respondeat superior, employers are liable for acts 10 of their employees occurring within the scope of their employment.” Nationwide Mut. Ins. 11 Co. v. Liberatore, 408 F.3d 1158, 1163 (9th Cir. 2005). “[E]ven tortious conduct that 12 violates an employee’s official duties or disregards the employer’s express order may 13 nonetheless be within the scope of employment.” Wilson v. Drake, 87 F.3d 1073, 1076 (9th 14 Cir. 1996) (internal quotation marks and citation omitted). 15 Here, Plaintiff adequately pleads an IIED claim. First, perhaps in recognition that 16 Plaintiff alleges outrageous conduct, Defendant GEO concedes that Plaintiff’s “allegations 17 are preposterous.” (Doc. No. 48 at 7 n.3.)3 Plaintiff alleges she notified the GEO Officers 18 that she “just had brain surgery,” (SAC ¶ 51), yet they allegedly persisted to bang their 19 mallets on the cell bars, creating noise that led Plaintiff to experience severe pain and 20 discomfort. (Id. ¶¶ 51, 56.) Second, the facts alleged suggest that the GEO Officers engaged 21 in outrageous conduct while working in “the halls” of their place of employment, (SAC ¶ 22 50), so a question of whether the GEO Officers were acting within their scope of 23 employment remains, which need not be addressed at the motion to dismiss stage. Gurrola 24 v. Jervis, No. CV 08-8029-GW JTLX, 2009 WL 9548218, at *10 (C.D. Cal. Apr. 2, 2009) 25 (“[W]hether or not [employee] was acting within the course and scope of his employment 26 would appear to be a fact question better left for the summary judgment stage[.]”) 27

28 3 At the motion to dismiss stage, a court must take all of the factual allegations in a complaint as true. See 1 Accordingly, Plaintiff has adequately pled an IIED claim and Defendant GEO’s motion to 2 dismiss the IIED claim is DENIED. 3 D. Bane Act 4 Plaintiff’s sixth cause of action against all Defendants alleges violations of 5 California’s Bane Act. The Bane Act, California Civil Code § 52.1, provides for a claim 6 against anyone who “interferes by threats, intimidation, or coercion, or attempts to interfere 7 by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or 8 individuals of rights secured by the Constitution or laws of the United States, or of the 9 rights secured by the Constitution or laws of this state. . . .” The Bane Act does not require 10 that a “threat, intimidation or coercion” be “independent” from the threats, intimidation, or 11 coercion inherent in the underlying constitutional or statutory violation. See Cornell v. City 12 & Cnty. of San Francisco, 17 Cal. App. 5th 766, 800 (2017); see also Craig v. Cty. of Santa 13 Clara, No. 17-CV-02115-LHK, 2018 WL 3777363, at *19 (N.D. Cal. Aug. 9, 2018). While 14 the Bane Act does not apply to underlying negligence claims brought about by human error, 15 see Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947 (2012), alleged intentional 16 conduct violating a constitutional or statutory right “which could be reasonably perceived 17 as threatening, intimidating, or coercive” is sufficient to state a Bane Act claim. See Skeels 18 v. Pilegaard, No. C12-2175 TEH, 2013 WL 970974, at *4 (N.D. Cal. Mar. 12, 2013); see 19 also M.H. v. Cnty. of Alameda, 90 F. Supp. 3d 889, 898 (N.D. Cal. 2013) (“[A]t the 20 pleading stage, the relevant distinction for purposes of the Bane Act is between intentional 21 and unintentional conduct, and that Shoyoye applies only when the conduct is 22 unintentional.”) Both government actors and private actors may be held liable under the 23 Bane Act. See e.g. Van v. Wal-Mart Stores, Inc., 583 F. App’x 761, 763 (9th Cir. 2014) 24 (Plaintiff sufficiently pled Bane Act claim against Wal-Mart security guards). 25 Because Plaintiff has not adequately pled that Defendants Williams and BOP 26 Officers interfered with any state or federal statutory or constitutional rights in an 27 underlying violation, the Court DISMISSES Plaintiff’s Bane Act claim against Defendants 28 Williams and BOP Officers WITH LEAVE TO AMEND. See Cravotta, 717 F. Supp. 3d 1 at 965 (dismissing Bane Act claim against defendants where Plaintiff failed to sufficiently 2 plead deliberate indifference claim against defendants). 3 Similarly, Plaintiff does not plead an underlying constitutional or statutory violation 4 against Defendant GEO Officers that implicate Plaintiff’s civil rights. Indeed, “the Bane 5 Act is not intended to be just a codification of intentional tort law; it is designed to provide 6 redress when an ‘underlying violation of rights is sufficiently egregious to warrant 7 enhanced statutory remedies, beyond tort relief.’” Rodriguez v. Cnty. of Los Angeles, 654 8 F. Supp. 3d 1029, 1053 (C.D. Cal. 2023) (quoting Cornell, 17 Cal. App. 5th at 800)). 9 Accordingly, the Court DISMISSES Plaintiff’s Bane Act claim brought against 10 Defendants GEO Officers WITH LEAVE TO AMEND. 11 Considering leave should be freely given and amendment may not be futile, the 12 Court GRANTS Plaintiff leave to amend the SAC to cure the deficiencies with respect to 13 the Bane Act claim against all Defendants. See Fed. R. Civ. P. 15(a); Johnson v. Mammoth 14 Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (“[L]eave to amend should be granted 15 unless amendment would cause prejudice to the opposing party, is sought in bad faith, is 16 futile, or creates undue delay.”). 17 IV. CONCLUSION 18 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 19 Defendants’ motions to dismiss. (Doc. Nos. 48, 49.) Plaintiff’s Eighth Amendment claims 20 against Defendant Williams and BOP Officers for failure to protect (Count 1) and excessive 21 force (Count 2) are DISMISSED WITHOUT LEAVE TO AMEND. Plaintiff’s Eighth 22 Amendment claim against Defendant Williams and BOP Officers for deliberate 23 indifference to serious medical needs is DISMISSED WITH LEAVE TO AMEND. 24 Plaintiff’s Bane Act (Count 6) claim against Defendants Williams and BOP Officers is 25 DISMISSED WITH LEAVE TO AMEND. Plaintiff’s negligence (Count 4) and Bane 26 Act (Count 6) claims against Defendants GEO and GEO Officers are dismissed WITH 27 LEAVE TO AMEND. Defendant GEO’s motion to dismiss Plaintiff’s IIED claim (Count 28 5) is DENIED. 1 Should Plaintiff wish to amend her complaint, she must file a Third Amended 2 || Complaint, along with a redlined version, no later than January 21, 2025. In the interest 3 a clear record, the Court ORDERS all remaining Defendants (including those that have 4 previously filed an Answer) to file their responsive pleading to any Third Amended 5 || Complaint, no later than February 10, 2025. See generally KST Data, Inc. v. DXC Tech. 6 || Co., 980 F.3d 709, 715 (9th Cir. 2020) (indicating that a defendant should file a new answer 7 an amended complaint where the amendment “change[s] the theory or scope of the 8 || case.”). 9 IT IS SO ORDERED. 10 || Dated: January 6, 2025 © ¢ Hon. Anthony J. attaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28