Young v. Federal Bureau of Prisons

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 DEFENDANT’S 13 v. MOTION TO DISMISS

14 LOUIS WILLIAMS, et al., (Doc. No. 65) 15 Defendants. 16 17 18 19 This is a civil rights action arising out of Melissa Young’s (“Plaintiff”) time in 20 custody. The operative complaint is the Third Amended Complaint (“TAC”), which 21 Plaintiff brings against Louis Williams, II, (“Defendant”), the warden employed by the 22 Federal Bureau of Prisons at Metropolitan Correctional Center, San Diego, the GEO Group 23 Inc. (“GEO”), and their respective Correctional Officers and Staff (collectively, 24 “Defendants”). (Doc. No. 64–1.) Before the Court is Defendant Williams’ motion to 25 dismiss. (Doc. No. 65.) The motion to dismiss is fully briefed. (Doc. Nos. 68, 69.) For the 26 reasons set forth below, the Court GRANTS Defendant’s motions to dismiss. 27 /// 28 /// 1 I. BACKGROUND 2 On November 17, 2019, the Chula Vista Police Department placed Plaintiff into 3 custody. (TAC ¶ 15.) That same day, Plaintiff experienced a seizure and was taken to 4 Scripps Chula Vista Emergency Room for treatment. (Id.) She was then transported to 5 GEO’s Western Region Detention Facility. (Id.) On December 4, 2019, Plaintiff was 6 released on bond and entered a residential drug treatment program. (Id. ¶¶ 18–19.) Plaintiff 7 was discharged from the program on January 23, 2020, and reported to Pretrial Services 8 the next day. (Id. ¶ 19.) Plaintiff was then transported to Metropolitan Correction Center 9 (“MCC San Diego”), a facility operated by the Bureau of Prisons (“BOP”). (Id. ¶ 20.) 10 At some point between mid-November 2019 and early February 2020, BOP assigned 11 Plaintiff to a top bunk at MCC San Diego. (Id. ¶ 24.) She informed the Corrections Office 12 at MCC San Diego that due to her seizures, she required a bottom bunk, but the Corrections 13 Office ignored her request. (Id.) Plaintiff also requested to go to the medical department 14 and completed a form to obtain her prescribed medications. (Id. 15 ¶ 25.) Plaintiff alleges those requests were also ignored. (Id. ¶¶ 26–27.) 16 On January 29, 2020, Plaintiff felt ill, asked to be seen by the medical unit at MCC 17 San Diego, but was again ignored. (Id. ¶ 27.) She thereafter had a seizure and fell from her 18 top bunk. (Id.) When other inmates attempted to get help, the officers claimed Plaintiff was 19 faking the seizure, and one of them kicked her. (Id. ¶¶ 28–29.) The corrections officers did 20 not contact emergency medical services. (See id. ¶¶ 29–30.) Plaintiff’s defense counsel 21 learned about Plaintiff’s condition and contacted MCC San Diego. (Id. ¶ 30.) She was then 22 transported to University of California San Diego (“UCSD”) Hospital, where she 23 underwent emergency brain surgery. (Id. ¶ 32.) 24 Plaintiff returned to MCC San Diego on February 3, 2020, and was again assigned 25 to a top bunk. (Id. ¶ 34.) A fellow inmate switched bunks with Plaintiff so she could have 26 a bottom bunk. (Id.) On February 5, 2020, Plaintiff entered another residential treatment 27

28 1 The following facts are taken from the TAC and assumed true for purposes of this motion. See Cahill v. 1 program. (Id. ¶ 44.) Plaintiff felt ill the next day and requested to go to an emergency room. 2 (Id. ¶ 45.) The medical staff informed her that she had been medically cleared and did not 3 need emergency care. (Id.) Plaintiff then called her sister, who took her to Sharp Chula 4 Vista Emergency Room. (Id.) The Sharp Chula Vista Emergency Room admitted Plaintiff 5 and kept her under observation. (Id.) She was later transferred to UCSD Hospital’s 6 neurology department for her post-surgery follow-up and discharged on February 7, 2020. 7 (Id. ¶ 46.) 8 After discharge, Plaintiff was placed in GEO’s medical unit for three days, followed 9 by assignment to the general population until her release on February 26, 2020. (Id. ¶¶ 48– 10 50.) During her time in general population, Plaintiff alleges GEO officers would “daily 11 take an orange mallet and walk down the halls banging it on the cell bars yelling ‘free 12 headaches.’” (Id. ¶¶ 50, 89b.) Plaintiff alleges Defendant and John or Jane Doe 1–15 BOP 13 Correctional Officers and Staff (“BOP Officers”) also intentionally traumatized her by 14 using an “orange mallet to hit the bars of the cells yelling ‘free headaches.’” (Id. ¶¶ 74f, 15 81.) 16 Plaintiff asserts Defendant and BOP Officers failed to provide timely and necessary 17 medical intervention; she states these omissions caused the brain bleed that necessitated 18 her surgery. (Id. ¶ 41.) 19 Plaintiff brought suit against Defendants in 2022. (Doc. No. 1.) The Court dismissed 20 the First Amended Complaint, (Doc. No. 33), and the Second Amended Complaint, (Doc. 21 No. 58). Plaintiff later filed the TAC. Plaintiff alleges Fifth Amendment Due Process 22 violation claims for deliberate indifference to serious medical needs (Count 1) against 23 Defendant and BOP Officers. (Id. ¶¶ 58–71.) Plaintiff also brings a claim under the Bane 24 Act (Count 2) against all Defendants. (Id. ¶¶ 72–79.) The TAC includes claims for 25 intentional infliction of emotional distress (Count 3) against GEO and John or Jane Doe 26 16–30 GEO Officers (“GEO Officers”), and negligence (Count 4) against GEO Officers. 27 (Id. ¶¶ 80–92.) This Order follows. 28 /// 1 II. LEGAL STANDARD 2 A motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) 3 tests the legal sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 4 2001). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 5 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 6 556 U.S. 662, 678 (2009) (citation omitted). Facial plausibility is satisfied “when the 7 plaintiff pleads factual content that allows the court to draw the reasonable inference that 8 the defendant is liable for the misconduct alleged.” Id. To determine the sufficiency of the 9 complaint, the court must assume the truth of all factual allegations therein and construe 10 them in the light most favorable to the plaintiff. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 11 336, 337–38 (9th Cir. 1996). Although a court must take all the factual allegations in a 12 complaint as true, it is not required to accept conclusory statements. Iqbal, 556 U.S. at 678. 13 Additionally, a party may seek dismissal of an action pursuant to Rule 12(b)(1) for 14 lack of subject-matter jurisdiction “either on the face of the pleadings or by presenting 15 extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 16 2003). The party asserting subject-matter jurisdiction has the burden of persuasion for 17 establishing it through proving the insufficiency of a plaintiff’s pleadings. See Hertz Corp. 18 v. Friend, 559 U.S. 77, 96 (2010). 19 III. DISCUSSION 20 Defendant moves pursuant to Federal Rules of Civil Procedures 12(b)(6) and 21 12(b)(1) to dismiss with prejudice Plaintiff’s TAC. (Doc. No. 65 at 7.) Defendant moves 22 to dismiss two of Plaintiff’s claims in the TAC. (Id.) First, Defendant moves to dismiss 23 Plaintiff’s Fifth Amendment Due Process claim brought pursuant to Bivens v. Six Unknown 24 Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), where Plaintiff alleges 25 constitutional violations under the Fifth Amendment by federal officials for deliberate 26 indifference to serious medical needs (Count 1) (the “Bivens claim”). (Id. at 9–16.) 27 Defendant also argues he is entitled to qualified immunity. (Id. at 16–17.) Second, 28 Defendant moves to dismiss Plaintiff’s Bane Act claim (Count 2). (Id. at 17–18.) 1 A. Plaintiff’s Fifth Amendment Due Process Claim 2 In the TAC, Plaintiff asserts one cause of action for a violation of Fifth Amendment 3 Due Process against Defendant for deliberate indifference to serious medical needs (Count 4 1). (TAC ¶¶ 58–71.) Plaintiff asserts that her Fifth Amendment claim brought against 5 Defendant for damages is not brought under Bivens. (Doc. No. 68 at 5–6.) However, a 6 claim asserting constitutional violations against a federal employee for monetary damages 7 is inherently a Bivens claim. See Bivens, 403 U.S. at 397. In Bivens, the Supreme Court 8 established an implied private right of action for damages against federal officials in their 9 personal capacity alleged to have violated a citizen’s constitutional rights. Id.; Corr. Servs. 10 Corp. v. Malesko, 534 U.S. 61, 66 (2001) (recognizing Bivens as the first-time courts 11 confirmed an implied private action for damages against federal officers). Plaintiff cannot 12 assert a Fifth Amendment claim for compensatory and punitive damages, (TAC ¶100), 13 without bringing a Bivens claim. See Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006) 14 (quoting Carlson v. Green, 446 U.S. 14, 18 (1980) (“Bivens established that the victims of 15 a constitutional violation by a federal agent have a right to recover damages against the 16 official in federal court despite the absence of any statute conferring such a right.”)). 17 Plaintiff relies on Bell v. Wolfish, 441 U.S. 520 (1979), to support the statement that 18 “the Supreme Court has recognized that the Fifth Amendment Due Process Clause provides 19 a direct cause of action to pretrial detainees alleging deliberate indifference to medical 20 needs.” (Doc. No. 68 at 5–6.) However, Plaintiff’s reliance and interpretation of Wolfish is 21 misplaced. In Wolfish, the plaintiff was seeking an injunction, not damages. See 441 U.S. 22 at 544–51 (“petitioners request this Court to review the District Court’s injunction”) 23 (emphasis added). Wolfish does not provide an implied private right of action for damages, 24 as Plaintiff argues it does. Id. at 523 (stating the district court “‘intervened broadly into 25 almost every facet of the institution’ and enjoined no fewer than 20 MCC practices on 26 constitutional and statutory grounds”) (emphasis added). There are only three established 27 contexts under Bivens in which the Court has approved of an implied damages remedy 28 under the Constitution itself.” Ziglar v. Abbasi, 582 U.S. 120, 131 (2017) (emphasis 1 added). Therefore, the Court will proceed with its analysis of Plaintiff’s Fifth Amendment 2 Due Process claim under Bivens. 3 1. Bivens Analysis 4 The Supreme Court established an implied private right of action for tortious 5 deprivation of constitutional rights against federal officials in their personal capacity in 6 only three contexts. Egbert v. Boule, 596 U.S. 482, 486 (2022); see also Kekai Watanabe 7 v. Derr, 115 F.4th 1034, 1036 (9th Cir. 2024). First, in Bivens, the Supreme Court held a 8 plaintiff alleging to have been subject to an unlawful arrest and search could bring a Fourth 9 Amendment claim for damages against federal agents, even though no federal statute 10 authorized such a claim. Bivens, 403 U.S. at 396; see also Hernandez v. Mesa, 589 U.S. 11 93, 98–99 (2020). Second, in Davis v. Passman, the Court held the Fifth Amendment Due 12 Process Clause gave the plaintiff, a former congressional staffer, a damages remedy for 13 gender discrimination when no alternative remedy existed. 442 U.S. 228, 248 (1979). 14 Finally, in Carlson v. Green, the Court held the Eighth Amendment’s Cruel and Unusual 15 Punishments Clause gave decedent’s estate a damages remedy when federal jailers failed 16 to treat decedent’s asthma, resulting in his death. 446 U.S. at 25. 17 Expanding the Bivens remedy beyond these three scenarios is “disfavored.” Iqbal, 18 556 U.S. at 675; see also Chambers v. Herrera, 78 F.4th 1100, 1104 (9th Cir. 2023) (“[T]he 19 Court recently issued a trilogy of cases reinforcing said disfavor.”) (citing Egbert, 596 U.S. 20 at 484; Mesa, 589 U.S. at 98–99; and Abbasi, 582 U.S. at 135). The Supreme Court has 21 “consistently refused to extend Bivens to any new context or new category of defendants.” 22 Malesko, 534 U.S. at 68. When deciding whether to provide a damages remedy, “Congress 23 is in a better position [than the courts] to decide whether or not the public interest would 24 be served” by imposing a “new substantive legal liability.” Schweiker v. Chilicky, 487 U.S. 25 412, 426–27 (1988) (quoting Bush v. Lucas, 462 U.S. 367, 390 (1983)). 26 The Court addresses Plaintiff’s Bivens claim by proceeding in two steps. “First, we 27 ask whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different 28 from the three cases in which the Court has implied a damages action.” Egbert, 596 U.S. 1 at 492 (quoting Abbasi, 582 U.S. at 1849). Second, if a case presents a new Bivens context, 2 then the Court examines whether “there are ‘special factors’ indicating that the Judiciary 3 is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing 4 a damages action to proceed.’” Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 1854). 5 These steps resolve to a single question: “whether there is any reason to think that Congress 6 might be better equipped to create a damages remedy.” Egbert, 596 U.S. at 492; see also 7 Marquez v. Rodriguez, 81 F.4th 1027, 1030 (9th Cir. 2023) (stating the Bivens test “will 8 foreclose relief in all but the most extraordinary cases”). 9 Plaintiff brings a Bivens claim against Defendant under the Fifth Amendment for 10 deliberate indifference to Plaintiff’s serious medical needs. (See TAC ¶¶ 58–71.) Plaintiff 11 alleges Defendant knew or should have known of Plaintiff’s seizure condition, including 12 that it required medication and medical care, which was not provided to Plaintiff, and that 13 Defendant failed to provide Plaintiff with adequate treatment for her head injuries sustained 14 on January 29, 2020, when she fell from her top bunk following a seizure. (Id.) Defendant 15 argues this claim should be dismissed because 1) Plaintiff’s deliberate indifference claim 16 is conclusory, 2) Plaintiff does not allege that Defendant was personally involved in the 17 alleged constitutional violations, and supervisory liability is inapplicable to Bivens suits, 18 3) Plaintiff’s Bivens claim presents a new context and special factors counsel against 19 extension, and 4) Plaintiff had alternative remedies other than bringing a Bivens claim. 20 (Doc. No. 65 at 9–16.) Plaintiff responds that the cause of action arises under the Fifth 21 Amendment Due Process Clause itself and not Bivens. (Doc. No. 68 at 5 (citing TAC 22 ¶¶ 58–71).) Plaintiff asserts she adequately plead her deliberate indifference to serious 23 medical needs claim and that Defendant is liable under the Fifth Amendment. (Doc. No. 24 68 at 6.) 25 i. Supervisory Liability 26 Federal Rules of Civil Procedure 8 and 12(b)(6) require a complaint to “contain 27 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 28 face.” Iqbal, 556 U.S. at 678 (internal quotations omitted). Threadbare recitals of the 1 elements of a cause of action, supported by mere conclusory statements, do not suffice to 2 establish that a defendant personally violated a plaintiff’s clearly established constitutional 3 rights. See Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 4 (2007)). The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully- 5 harmed me accusation[s]” fall short of meeting this plausibility standard. Iqbal, 556 U.S. 6 at 678; see also Luvdarts, LLC v. AT&T Mobility, LLC, 710 F.3d 1068, 1072 (9th Cir. 7 2013). A Bivens claim is brought against an individual official for their “own acts, not the 8 acts of others.” Abbasi, 582 U.S. at 140. To state a Bivens claim against a government 9 official in their individual capacity, a plaintiff must plead “each Government-official 10 defendant, through the official’s own individual actions, has violated the Constitution.” 11 Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Iqbal, 556 U.S. at 676). 12 “Bivens is not designed to hold officers responsible for acts of their subordinates.” Id. at 13 141; see also Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the 14 unconstitutional conduct of their subordinates under a theory of respondeat superior.”). 15 Defendant argues Plaintiff is alleging a Bivens cause of action that is conclusory and 16 “based on [Defendant’s] position as a supervisor, with no allegations concerning his own 17 individual involvement in the alleged violations[.]” (Doc. No. 65 at 6.) Here, the TAC 18 attempts to impose supervisory liability upon Defendant based solely on his position as the 19 warden employed by the BOP at MCC San Diego. (See TAC ¶¶ 40, 61.) The TAC contains 20 no allegations of specific acts or omissions of Defendant against Plaintiff. (See id. ¶¶ 39– 21 41.) Plaintiff alleges Defendant: (1) knew of and disregarded an excessive risk to Ms. 22 Young’s health; (2) caused the risk and continued to do so despite obvious evidence of 23 serious harm; (3) tolerated and fostered an environment of disorganization within the 24 facility; (4) failed to properly staff the unit; (5) failed to hire competent staff personnel; (6) 25 failed to train correctional officers and ensure timely screening, assessment, and medical 26 treatment for injured inmates; (7) took no effective measures to protect Plaintiff or ensure 27 her safety, including conducting appropriate health assessments or medical evaluations; 28 1 and (8) failed to initiate necessary medical interventions or transport Plaintiff to an 2 appropriate medical facility promptly. (Id. ¶¶ 39–41.) 3 Plaintiff fails to mention facts of Defendant’s individual actions or omissions that 4 support these conclusory allegations. (See, e.g., id.) Plaintiff does not connect any 5 deliberate indifference by Defendant in hiring, training, assessing, managing, or 6 supervising BOP Officers with any specific harm to Plaintiff. (Id. ¶¶ 39–41.) While 7 Plaintiff alleges that Defendant tolerated and fostered an environment of disorganization 8 within the facility, Plaintiff does not identify how Defendant fostered an environment of 9 disorganization, or whether she experienced harm as a result. (Id.) 10 Plaintiff also fails to identify how Defendant did not initiate necessary medical 11 interventions. (See generally id.) In the TAC, Plaintiff alleges she had a known seizure 12 disorder requiring medication and that Defendant was put on notice of this condition. (Id. 13 ¶¶ 39, 60, 63.) Plaintiff, however, does not describe how Defendant was put on notice of 14 her seizure condition. (See generally id.) In response, Defendant states Plaintiff 15 “inconsistently refers to her medical situation has an ‘undiagnosed seizure condition,’ 16 [Doc.] No. 64 ¶ 23, and ‘a known seizure condition requiring prescribed medication,’ 17 [Doc.] No. 64 at ¶ 60.” (Doc. No. 65 at 2 n.1.) Plaintiff clarified in her Opposition to 18 Defendant’s motion to dismiss that her seizure condition was unknown “until the point she 19 suffered her first seizure in the custody of the Chula Vista Police Department.” (Doc. No. 20 68 at 6 n.1.) 21 At the motion to dismiss stage, the Court is limited to the facts pled within the four 22 corners of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009); MCI Communs. 23 Servs. v. City of Eugene, 359 F. App’x 692, 697 (9th Cir. 2009). The Court has previously 24 advised Plaintiff not to amend her pleadings in opposition to the motion to dismiss. (Doc. 25 No. 59 at 11 (“Plaintiff cannot amend the SAC in her opposition brief to state a new claim 26 under the Fourteenth Amendment.”).) Plaintiff has again failed to properly amend her 27 pleadings in the TAC. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) 28 (explaining when the legal sufficiency of a complaint’s allegations is tested by a motion to 1 dismiss, the court may only review the operative complaint) (citing Cervantes v. City of 2 San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993)). 3 The above-mentioned allegations fail to identify Defendant’s individual conduct that 4 led to the deprivation of Plaintiff’s Fifth Amendment Due Process rights. See Starr, 652 5 F.3d at 1206 (confirming supervisory liability as inapplicable to Bivens claims without 6 proof that official violated plaintiff’s rights through their own individual actions). Even 7 though dismissal of Plaintiff’s Fifth Amendment Due Process claim is warranted, the Court 8 will nevertheless address Plaintiff’s Bivens claim. 9 ii. Existing Bivens Contexts 10 Recognizing a Bivens cause of action in this case would require extending Bivens to 11 a new context, as this case is materially different from the Bivens, Davis, and Carlson 12 contexts. See Lanuza v. Love, 899 F.3d 1019, 1027 n.5 (9th Cir. 2018) (listing Ninth Circuit 13 cases where plaintiff’s Bivens claim extended to a new context). The Supreme Court has 14 declined to provide an exhaustive list of differences that are meaningful enough to make a 15 given context new, but it noted the following examples: 16 [T]he rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance 17 as to how an officer should respond to the problem or emergency to be 18 confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning 19 of other branches; or the presence of potential special factors that 20 previous Bivens cases did not consider. 21 Abbasi, 582 U.S. at 139–40. Only in three instances has the Ninth Circuit recognized 22 sufficiently similar situations to sustain a Bivens cause of action without creating a new 23 context. See, e.g., Ioane v. Hodges, 939 F.3d 945, 952 (9th Cir. 2018); Brunoehler v. 24 Tarwater, 743 F. App’x. 740, 742 (9th Cir. 2018); Reid v. United States, 825 F. App’x. 25 442, 444–46 (9th Cir. 2020). Ioane and Brunoehler both involved Fourth 26 Amendment claims indistinguishable from Bivens itself. See Ioane, 939 F.3d at 952; see 27 also Brunoehler, 743 F. App’x. at 742. Reid involved similar Eighth Amendment prisoner 28 mistreatment claims as those at issue in Carlson. Reid, 825 F. App’x. at 444–46. 1 In Bivens, a plaintiff alleging to have been subject to an unlawful arrest and search 2 was permitted to bring a Fourth Amendment claim for damages against federal agents. 3 Bivens, 403 U.S. at 389. Here, Plaintiff is bringing a Fifth Amendment Due Process 4 violation against BOP officers during pretrial detention for deliberate indifference to 5 medical needs. (TAC ¶¶ 58–71.) This context differs from Bivens where the claim was 6 against federal agents who allegedly “manacled the plaintiff and threatened his family 7 while arresting him for narcotics violations.” Egbert, 596 U.S. at 490 (citing Bivens, 403 8 U.S. at 397). The difference in constitutional rights brought pursuant to the Fifth 9 Amendment, rather than the Fourth Amendment, is also meaningful. See Abbasi, 582 U.S. 10 at 148 (recognizing a case “can present a new context for Bivens purposes if it implicates 11 a different constitutional right”). 12 In Davis, a plaintiff alleging to have been subject to gender discrimination through 13 her employment was permitted to bring a Fifth Amendment Due Process claim for damages 14 against a former congressional staffer. Davis, 442 U.S. at 248. Here, the officers alleged to 15 have violated Plaintiff’s Fifth Amendment rights are BOP officers, not congressional 16 staffers. Although Davis recognized a Fifth Amendment Bivens remedy, the nature of the 17 violation at issue, employment discrimination, was drastically different from the violation 18 here, deliberate indifference to serious medical needs. A claim may arise in a 19 new context even if it is based on the same constitutional provision as a claim in a case 20 recognized as one of the three Bivens contexts. Hernandez, 589 U.S. at 103. 21 Carlson presents the closest comparison to Plaintiff’s Bivens claim. See Carlson, 22 446 U.S. at 16–19. In Carlson, a plaintiff alleging to have been subject to cruel and unusual 23 punishment was permitted to bring an Eighth Amendment claim for damages against 24 federal jailers who failed to treat decedent’s asthma, resulting in his death. Id. at 25. 25 However, Carlson nonetheless differs meaningfully from Plaintiff’s claim. 26 First, Carlson differs because the case involved an Eighth Amendment claim brought by a 27 convicted prisoner, as opposed to this Fifth Amendment Due Process violation claim 28 brought by a plaintiff when she was a pretrial detention. See Abbasi, 582 U.S. at 1 148 (holding Bivens claim under the Fifth Amendment alleging abuse of pretrial detainees 2 presented new Bivens context partially because Carlson was predicated on the Eighth 3 Amendment); see also Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015) (distinguishing 4 language of the Fifth Amendment Due Process clause and Eighth Amendment Cruel and 5 Unusual Punishment clause). 6 Second, the difference between convicted prisoners and pretrial detainees is not a 7 “mere superficial distinction.” Hernandez v. Cnty. of Los Angeles, No. 2:20-cv-03869- 8 DSF-JC, 2023 WL 5917422, at *7 (C.D. Cal. July 19, 2023), report and recommendation 9 adopted by 2023 WL 5916446 (Sept. 11, 2023); see also Kingsley, 576 U.S. at 400–02. 10 The Ninth Circuit recently refused to extend a Bivens context to a pretrial detainee seeking 11 damages against federal correctional officers at MCC San Diego based on the Fifth 12 Amendment’s Due Process Clause. Rodriguez, 81 F.4th at 1028. The plaintiff in Rodriguez 13 alleged that the officers were deliberately indifferent to a substantial risk of serious harm 14 when they failed to protect him from the other detainees. Id. at 1028–29. The court ruled 15 the Carlson context, for convicted prisoners, does not apply to pretrial detainees due to 16 significant differences between the two groups including the nature and duration of their 17 confinement, facility design, inmate safety risks, and overall operational considerations. 18 Id. at 1032; see also Smith-Garcia v. Burke, 815 F. App’x. 187, 188 (9th Cir. 19 2020) (unpublished) (finding new Bivens context for Eighth Amendment claim that 20 probation officer was deliberately indifferent to a probationer’s medical care). 21 The legal standard for evaluating whether a federal officer violated an individual’s 22 constitutional rights is also different for pretrial detainees and convicted prisoners. 23 See Kingsley, 576 U.S. 389 at 400. Claims brought by pretrial detainees for deliberate 24 indifference are reviewed under an objective standard, meanwhile claims brought by 25 convicted prisoners are reviewed under a subjective standard. See Castro v. Cnty. of Los 26 Angeles, 833 F.3d 1060, 1067–68 (9th Cir. 2016), cert. denied, 580 U.S. 1099 (2017) 27 (affirming there is no single deliberate indifference standard for both pretrial detainees and 28 convicted prisoners); Cramer v. Jenkins, No. CV 23-4659-SSS(E), 2023 WL 6783509, at 1 *4 (C.D. Cal. Sept. 7, 2023) (“An objective deliberate indifference standard applies to 2 claims brought by pretrial detainees, whereas a subjective deliberate indifference standard 3 applies to claims brought by convicted prisoners.”). 4 To bring a claim against federal officers as a convicted prisoner, the plaintiff must 5 prove the officer’s subjective awareness of the serious medical needs. Farmer v. Brennan, 6 511 U.S. 825, 837 (1994); Estate of Ford v. Ramirez-Palmer, 301 F.3d 1043, 1050 (9th 7 Cir. 2002) (finding convicted prisoners must prove official’s subjective knowledge, 8 awareness of facts from which the inference could be drawn that a substantial risk exists, 9 and that the official drew the inference). Meanwhile, a pretrial detainee does not need to 10 prove those subjective elements about the officer’s actual awareness.” Castro, 833 F.3d 11 1071. The objective standard for Plaintiff as a pretrial detainee differs from the subjective 12 standard used in Carlson. See Abbasi, 582 U.S. at 140. The difference in the two legal 13 standards is sufficiently material to create a new Bivens context. See id. at 148 (clarifying 14 the fact that the differences between a “given claim and previous Bivens cases are small is 15 insignificant” considering the Supreme Court’s reluctancy to extend the Bivens remedy). 16 Finally, Plaintiff’s claims of deliberate indifference to serious medical needs differ 17 from the claims in Carlson. In Carlson, the inmate suffered from chronic asthma that 18 ultimately led to the prisoner’s death. See Carlson, 446 U.S. at 16 n.1. Here, Plaintiff 19 alleges she undertook emergency brain surgery due to a brain bleed she had sustained from 20 seizing and falling off the top bunk. (See TAC ¶ 32.) Both seizures and emergency brain 21 surgery are undoubtedly serious medical conditions. 22 Even accepting, arguendo, that her medical need was objectively serious, Plaintiff 23 fails to plausibly allege that Defendant was put on notice of her medical needs and failed 24 to provide adequate medical treatment. In Carlson, the officers kept the inmate in an 25 inadequate facility against doctors’ advice and gave him the wrong treatments, such as 26 “contra-indicated drugs which made his attack more severe” and “a respirator known to be 27 inoperative” that only worsened his breathing. Carlson, 446 U.S. at 16–18. Here, Plaintiff 28 alleges Defendant placed her in a top bunk, denied her prescribed medication for five days, 1 and ignored repeated medical requests. (TAC ¶ 67.) In the TAC, Plaintiff asserts “[a]t the 2 time of her intake, Ms. Young had a known seizure condition requiring prescribed 3 medication. Despite this, Defendants assigned her to a top bunk in the general population— 4 a decision that directly disregarded her medical condition and posed a substantial risk of 5 harm.” (Id. ¶ 60.) 6 Plaintiff fails to allege how Defendant was put on notice of her seizure condition 7 when she was admitted to the facility. (See generally TAC.) Plaintiff clarifies in her 8 Opposition that her seizure condition was unknown to Defendant “until the point she 9 suffered her first seizure in the custody of the Chula Vista Police Department.” (Doc. No. 10 68 at 6 n.1.) Defendant did not have the same notice of Plaintiff’s seizure condition as the 11 officers in Carlson had of the inmate’s asthma condition. See Martinez v. United States 12 Bureau of Prisons, No. 5:15-cv-02160-TJH (AFM), 2019 WL 5432052, at *9 (C.D. Cal. 13 Aug. 20, 2019) (determining the prisoner’s medical condition, albeit serious, did not fit in 14 the same context as Carlson because the defendant did not demonstrate the same level of 15 notice and deliberate indifference through the provided medical care); see also Jett v. 16 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (explaining prisoners must demonstrate both 17 (1) a serious medical need and (2) defendant’s response to the need was deliberately 18 indifferent). The facts here thus render Plaintiff’s medical care claims meaningfully 19 different from Carlson. See Davis v. Fed. Bureau of Prisons, No. 5:21-cv-1475-CAS (SK), 20 2022 WL 18460704, at *2 (C.D. Cal. Dec. 8, 2022) (holding claim that nurse performed 21 unnecessary surgery on inmate’s leg meaningfully differed from Carlson), report and 22 recommendation adopted, 2023 WL 405319 (C.D. Cal. Jan. 24, 2023); Mendez v. United 23 States, No.: 1:17-cv-00555-NONE-JLT (PC), 2020 WL 8513584, at *14 (E.D. Cal. Mar. 24 24, 2020) (comparing the type of care provided in Carlson to the plaintiff’s allegedly 25 deficient care: giving the inmate counterproductive drugs and an inoperative respirator 26 resulting in death versus specific actions not shown to be improper to address plaintiff’s 27 pain resulting in two months of tooth pain), report and recommendation adopted, 2021 WL 28 537271 (E.D. Cal. Feb. 12, 2021). 1 Even if these differences may seem small, they nonetheless satisfy the new-context 2 inquiry for Bivens claims. See Abbasi, 582 U.S. at 149. Plaintiff’s claim in this action 3 presents a new Bivens context because it implicates constitutional rights not at issue 4 in Carlson, among other differences noted above. See id. at 148. Because this case presents 5 a new Bivens context, the Court must turn to the second part of the inquiry, to determine 6 whether there are special factors indicating the Judiciary is less equipped than Congress to 7 “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. 8 at 492 (quoting Abbasi, 582 U.S. at 136). 9 iii. Special Contexts 10 “If there are alternative remedial structures in place, ‘that alone,’ like any special 11 factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of 12 action.’” Egbert, 596 U.S. at 493 (quoting Abbasi, 582 U.S. at 137). The alternative 13 remedial structure does not need to afford damages or a right of judicial review. See Egbert, 14 596 U.S. at 493; see also Pettibone v. Russell, 59 F.4th 449, 456–57 (9th Cir. 2023). Here, 15 Plaintiff had the ability to pursue an alternative remedy through the BOP’s administrative 16 remedy. See 28 CFR § 542.13–15. The availability of the BOP’s administrative remedy 17 program suffices to preclude recognizing a Bivens remedy for Plaintiff’s claims here. See, 18 e.g., Malesko, 534 U.S. at 74 (holding BOP’s administrative remedy program as reason to 19 decline to recognize a Bivens claim); Chambers, 78 F.4th at 1107 (same); see also Toney 20 v. Williams, No. 3:18-cv-2786-WQH (KSC), 2020 WL 1912168, at *5–6 (S.D. Cal. Apr. 21 4, 2020) (dismissing an Bivens claim because alternative remedial structure existed through 22 the BOP administrative grievance process); Rodriguez, 81 F.4th at 1033 (declining to 23 extend Bivens to federal pretrial detainee’s Fifth Amendment claim due to availability of 24 the BOP administrative remedy procedures). 25 Accordingly, as no Bivens remedy is available here, Plaintiff’s claim against 26 Defendant in his individual capacity cannot proceed in this action. Further amendment 27 would be futile as this is Plaintiff’s fourth time filing a complaint. (Doc. Nos. 1, 10, 34, 28 64.) Therefore, the claim should be dismissed without leave to amend. See Mujica v. 1 AirScan Inc., 771 F.3d 580, 593 & n.8 (9th Cir. 2014) (recognizing leave to amend 2 complaint as unwarranted where amendment would be futile), cert. denied, 577 U.S. 1049 3 (2015); Miller v. Yokohama TireCorp., 358 F.3d 616, 622 (9th Cir. 2004) (finding the 4 district court’s discretion to deny leave to amend is “particularly broad” where the plaintiff 5 has previously filed an amended complaint). Considering neither the Supreme Court nor 6 the Ninth Circuit have recognized a Bivens remedy for a Fifth Amendment claim for 7 deliberate indifference to serious medical needs for pretrial detainees, and amendment 8 would be futile, the Court DISMISSES Plaintiff’s Bivens claim against Defendant 9 WITHOUT LEAVE TO AMEND. 10 B. Qualified Immunity 11 Defendant argues he is entitled to qualified immunity, and that Plaintiff does not 12 overcome the defense because the TAC fails to state a claim for a violation of a 13 constitutional right. (Doc. No. 65 at 16–17.) Plaintiff asserts Defendant’s qualified 14 immunity defense is premature. (Doc. No. 68 at 7.) 15 Qualified immunity under federal law shields government officials from liability for 16 civil damages, provided their conduct does not violate “clearly established statutory or 17 constitutional rights of which a reasonable person would have known.” Harlow v. 18 Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity gives government officials 19 breathing room to make reasonable but mistaken judgments about open legal questions.” 20 Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). The Ninth Circuit has emphasized 21 that qualified immunity is a fact specific analysis not generally resolved in a motion to 22 dismiss. See Keates v. Koile, 883 F.3d 1228, 1234–35 (9th Cir. 2018) (noting determining 23 claims of qualified immunity at the motion-to-dismiss stage raises issues for legal decision 24 making); see also Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001) (clarifying Rule 25 12(b)(6) dismissals are not appropriate unless the court can determine that qualified 26 immunity applies based solely on the complaint). 27 The Court finds it is premature to conduct a fact intensive determination at this state 28 of the proceedings. See O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (stating 1 defendants will be free to assert a qualified immunity defense only once an evidentiary 2 record has been developed through discovery); see also Chavez v. Wynar, 421 F. Supp. 3d 3 891, 903–04 (C.D. Cal. Nov. 8, 2019) (ruling it is premature to decide whether qualified 4 immunity applies at the motion-to-dismiss stage because the factual record has not been 5 developed); United States ex rel. Darian v. Accent Builders, Inc., No. CV 00-10255 FMC 6 (JWJx), 2005 WL 8161698, at *4 (C.D. Cal. Jan. 7, 2005) (same). As the Court is granting 7 the motion to dismiss on the grounds discussed above, the Court need not address the 8 merits of this qualified immunity argument at this time. See Myles v. United States, No. 9 5:19-cv-02036-WLH-(KKx), 2023 WL 11820027, at *6, (C.D. Cal. July 7, 2023) 10 (declining to address qualified immunity because the court was granting the motion to 11 dismiss on the Bivens claim). 12 C. Bane Act Claim 13 Plaintiff’s second cause of action against Defendant alleges violations of 14 California’s Bane Act. The Bane Act, California Civil Code § 52.1, provides for a claim 15 against anyone who “interferes by threats, intimidation, or coercion, or attempts to interfere 16 by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or 17 individuals of rights secured by the Constitution or laws of the United States, or of the 18 rights secured by the Constitution or laws of this state[.]” The Bane Act does not require a 19 “threat, intimidation or coercion” to be “independent” from the threats, intimidation, or 20 coercion inherent in the underlying constitutional or statutory violation. See Cornell v. City 21 & Cnty. of San Francisco, 17 Cal. App. 5th 766, 800 (2017); see also Craig v. Cnty. of 22 Santa Clara, No. 17-CV-02115-LHK, 2018 WL 3777363, at *19 (N.D. Cal. Aug. 9, 2018). 23 Alleged intentional conduct violating a constitutional or statutory right “which could be 24 reasonably perceived as threatening, intimidating, or coercive” is sufficient to state a Bane 25 Act claim. See Skeels v. Pilegaard, No. C12-2175 TEH, 2013 WL 970974, at *4 (N.D. Cal. 26 Mar. 12, 2013); see also M.H. v. Cnty. of Alameda, 90 F. Supp. 3d 889, 898 (N.D. Cal. 27 2013) (“[A]t the pleading stage, the relevant distinction for purposes of the Bane Act is 28 between intentional and unintentional conduct, and that Shoyoye applies only when the 1 conduct is unintentional.”). Both government actors and private actors may be held liable 2 under the Bane Act. See, e.g., Van v. Wal-Mart Stores, Inc., 583 F. App’x. 761, 763 (9th 3 Cir. 2014) (Plaintiff sufficiently pled Bane Act claim against Wal-Mart security guards). 4 Defendant argues Plaintiff does not allege with specificity that Defendant was 5 personally involved in any alleged constitutional violations, nor does she plead a sufficient 6 causal connection between the alleged constitutional violation and some wrongful conduct 7 by Defendant. (Doc. No. 65 at 17.) Plaintiff asserts she has clearly alleged that Defendants 8 interfered with Plaintiff’s right to adequate medical care by denying her care, physically 9 abusing her, and intentionally harassing her despite knowing that Plaintiff had just 10 undergone brain surgery. (Doc. No. 68 at 8.) Defendant responds that Plaintiff fails to 11 provide any specific notice of how Defendant independently violated her rights as she 12 alleged “that Defendants interfered with Plaintiff’s right.” (Doc. No. 69 (citing Doc. No. 13 68 at 8 (emphasis added)).) Defendant also notes the violative conduct attributed to 14 Defendant and BOP officers in the TAC is also attributed to GEO officers. (Doc. No. 69 at 15 5.) 16 Plaintiff has failed to sufficiently allege her Fifth Amendment Due Process rights 17 were violated by Defendant’s conduct. Because the Court finds Plaintiff has not sufficiently 18 pleaded the violation of this right by Defendant, there is no constitutional or statutory right 19 that is at issue. See Pryor v. City & Cnty. of San Francisco, 672 F. App’x 751, 752 (9th 20 Cir. 2017) (determining plaintiff’s Bane Act claim fails because there was no constitutional 21 violation); see also Williamson v. City of Nat’l City, 23 F.4th 1146, 1155 (9th Cir. 2022) 22 (same). 23 The lack of specificity in the TAC of Defendant’s individual conduct does not meet 24 the required pleading standard to give notice to Defendant of how he violated Plaintiff’s 25 rights. Plaintiff first alleges Defendant and BOP officers “intentionally harassed Plaintiff 26 by creating loud noise disturbances, despite knowing that Plaintiff had just undergone brain 27 surgery.” (Doc. No. 68 at 8.) Later, Plaintiff alleges GEO officers also intentionally 28 harassed her by creating loud noises. (Id.) Plaintiff assigns her claim of “striking metal bars 1 with a mallet while yelling ‘free headaches,’ causing severe pain and psychological 2 distress” to Defendant and BOP officers, (Doc. No. 64–1 ¶¶ 74f, 81) (“taunting and 3 harassing Ms. Young daily”), while also alleging the conduct as attributable to GEO 4 officers. (Id. at ¶¶ 50, 89b.) 5 Plaintiff’s inconsistent allegations are insufficient to provide “a showing of 6 [D]efendant’s specific intent to violate [her] constitutional rights.” Rodriquez v. Cnty of 7 L.A., 891 F.3d 776, 802 (9th Cir. 2018); see also Ramirez v. City of San Jose, No. 21-cv- 8 08127-VKD, 2022 WL 875643, at *6 (N.D. Cal. Mar. 24, 2022) (dismissing claim against 9 federal officer where “potentially inconsistent allegations do not give each defendant fair 10 notice of the basis for the claim asserted against him”). Plaintiff has failed to prove how 11 Defendant individually and intentionally violated her constitutional rights through his 12 conduct. Because Plaintiff has not sufficiently alleged a constitutional or statutory 13 violation, there is no reason to enquire further into the merits of his claim against 14 Defendant. See Cravotta, 717 F. Supp. 3d at 965 (dismissing Bane Act claim where 15 plaintiff failed to sufficiently plead deliberate indifference claim against defendants). 16 Plaintiff has failed to provide factual allegations showing a violation of clearly 17 established in her TAC, as previously required by the Court. (See Doc. No. 59 at 11–12 18 (“To avoid dismissal, Plaintiff must ensure any third amended complaint contains factual 19 allegations showing a violation of clearly established law.”).) Because Plaintiff has not 20 adequately pled that Defendant individually and intentionally interfered with any state or 21 federal statutory or constitutional rights in an underlying violation, the Court DISMISSES 22 Plaintiff’s Bane Act claim against Defendant WITHOUT LEAVE TO AMEND. See 23 Swallow v. Torngren, 789 F. App’x 610, 612 (9th Cir. 2020) (affirming that district court 24 did not abuse its discretion when it denied leave to amend after plaintiff amended once as 25 matter of right); see also Hills v. City of Chula Vista, No. 23-cv-1067-DMS-DDL, at * 2– 26 3 (S.D. Cal. May 1, 2025), Doc. No. 69 (dismissing plaintiff’s Bane Act claim with 27 prejudice after court previously granted leave to amend to fix conclusory allegations and 28 plaintiff failed to do so). Considering leave has previously been given and amendment may 1 || be futile, the Court DENIES Plaintiff leave to amend. See Fed. R. Civ. P. 15(a); Johnson 2 Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992) (finding leave to amend 3 ||should be granted unless amendment is futile). 4 D. CONCLUSION 5 For the foregoing reasons, the Court GRANTS Defendant’s motions to dismiss. 6 ||(Doc. No. 65.) Plaintiff's Fifth Amendment claim against Defendant for deliberate 7 || indifference to serious medical needs (Count 1) is DISMISSED WITHOUT LEAVE TO 8 || AMEND. Plaintiff's Bane Act (Count 2) claim against Defendant is DISMISSED 9 || WITHOUT LEAVE TO AMEND. 10 Counsel are ordered to contact the assigned Magistrate Judge to set an Early Neutral 11 || Evaluation, and Case Management Conference. 12 IT IS SO ORDERED. 13 Dated: July 31, 2025 © ¢ 14 Hon. Anthony J. attaglia 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28