Opinion
Civil No. 05cv2156-JAH (WMc).
January 24, 2006
Terry J. Smith, a federal prisoner incarcerated at the Federal Medical Center in Rochester, Minnesota, at the time of initiating this action, and proceeding pro se, has submitted a civil action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). Plaintiff alleges that two unknown United States Marshals acted negligently when Plaintiff was in the San Diego Federal Courthouse by handcuffing him to a member of the Hells Angels Motorcycle gang, who assaulted Plaintiff. (Compl. at 2.) Plaintiff seeks monetary damages only. (Id.) Plaintiff has also submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a).
I. Consent to Magistrate Judge per Local Civil Rule 72.3
This case has been referred to the Honorable Magistrate Judge William McCurine, Jr., pursuant to Local Rule 72.3, "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges" and 28 U.S.C. § 636(b)(1). Unless all parties to this action file written consent to magistrate judge jurisdiction, Magistrate Judge McCurine will conduct all necessary post-service hearings and submit proposed findings of fact and recommendations for the disposition of all motions in this matter excluded from magistrate judge jurisdiction by 28 U.S.C. § 636(b)(1)(a). See S.D.CAL.CIVLR 72.3(e); Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997) and Nasca v. Peoplesoft, 160 F.3d 578, 580 (9th Cir. 1999) (both holding that magistrate judge has no jurisdiction to hear case when record contains no written consent of the parties); FED.R.CIV.P. 73(b); 28 U.S.C. § 636(c)(1).
II. Motion to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Prisoners granted leave to proceed IFP however, remain obligated to pay the entire fee in installments, regardless of whether the action is ultimately dismissed for any reason. See 28 U.S.C. § 1915(b)(1) (2).
Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (" PLRA"), a prisoner seeking leave to proceed IFP must submit a "certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the six-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2). From the certified trust account statement, the Court must assess an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month's income, in any month in which the prisoner's account exceeds $10, and forward those payments to the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
The Court finds that Plaintiff has submitted an affidavit which complies with 28 U.S.C. § 1915(a)(1), and has attached a certified copy of his trust account statement pursuant to 28 U.S.C. § 1915(a)(2) and S.D. CAL. CIVLR 3.2. Plaintiff's trust account statement shows an average monthly balance of $54.00 and for the 6-month period immediately preceding the filing of his Complaint, and a current balance of $50.34. Based upon this financial information, the Court GRANTS Plaintiff's Motion to Proceed IFP and assesses an initial partial filing fee of $10.80 pursuant to 28 U.S.C. § 1915(b)(1). The remaining balance shall be collected and forwarded to the Clerk of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) as set forth at the end of this Order. III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
Plaintiff has apparently been released from custody since the initiation of this action. The fact that Plaintiff may no longer have an inmate trust account does not affect the grant of IFP.
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal to the extent it is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases,"Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
Plaintiff alleges that while he was in the Federal Courthouse in San Diego on October 14, 2003, he was assaulted by another prisoner. (Compl. at 2.) He contends two United States Marshals were negligent in handcuffing Plaintiff to the other prisoner, who was a member of the Hells Angels motorcycle gang, and that Plaintiff suffered a heart seizure after he was struck in the chest by the other prisoner which required three days of hospitalization. (Id.)
First, Plaintiff's Complaint must be dismissed for failing to state a claim as to any named defendant pursuant to 42 U.S.C. § 1983. There is no valid basis for a claim under section 1983, in that Plaintiff's allegations are against federal officials acting under color of federal law. Section 1983 provides a remedy only for deprivation of constitutional rights by persons acting under color of state law. See Daly-Murphy v. Winston, 837 F.3d 348, 355 (9th Cir. 1987). Thus, when a plaintiff seeks damages for violation of his constitutional rights by a federal actor, "the only possible action is an action under the authority of Bivens." Id.
Plaintiff has also brought this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). " Bivens established that compensable injury to a constitutionally protected interest [by federal officials alleged to have acted under color of federal law] could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331]." Butz v. Economou, 438 U.S. 478, 486 (1978). "Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). To state a private cause of action underBivens, Plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988).
To the extent Plaintiff intended to sue the Defendants in their official capacity, he has failed to state a claim because aBivens action can only be brought against Defendants for unconstitutional acts alleged to have been taken in their individual capacities. See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding that a Bivens action will not lie against the United States, agencies of the United States, or federal agents in their official capacity); Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000) (holding that plaintiff suing under Bivens "cannot state a claim against the federal officers in their official capacities unless the United States waives its sovereign immunity."); Vacarro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) ("[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.") (citing Daly-Murphy, 837 F.2d at 355).
Plaintiff has also failed to state a Bivens claim with respect to the two Defendants in their individual capacities. Traditional Eighth Amendment principles provide that prison officials must act reasonably in protecting inmates from violence suffered at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833 (1994); Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). However, to state a failure to protect claim, Plaintiff must allege facts sufficient to show that Defendants were "deliberately indifferent," that they were aware of, but nevertheless consciously disregarded an excessive risk to his health or safety. Farmer, 511 U.S. at 834. If the official is not alleged to have actual knowledge of a serious risk of harm, but is alleged to be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, the plaintiff must further allege that the official "also dr[ew] the inference." Id. at 837; Wilson, 501 U.S. at 303.
Here, Plaintiff fails to identify any specific serious risk to his safety that was known to any Defendant prior to the assault. Rather, Plaintiff alleges the two Defendant Marshals acted negligently in handcuffing Plaintiff to the other prisoner. (Comp. at 2.) Plaintiff must plead more than mere negligence in order to state a claim under Bivens. See Daniels v. Williams, 474 U.S. 327, 330-31 (1986) (plaintiff must plead more that mere negligence to state a claim under 42 U.S.C. § 1983). Plaintiff does allege that the two Defendants were "also at fault in that they knew that they were to keep the segregation prisoners from the violent unit away from the other prisoners." (Compl. at 2.) However, Plaintiff fails to allege that either Defendant was personally aware, or were aware of facts from which they reasonably should have become aware, that the other prisoner was a violent prisoner who posed an excessive risk to Plaintiff's safety by being handcuffed to Plaintiff, and nevertheless consciously disregarded that known risk. Farmer, 511 U.S. at 834. Even to the extent Plaintiff alleges the Defendants were negligent in following standard policy or procedures in failing to segregate the violent prisoners from the non-violent prisoners (see Compl. at 2), as set forth above, negligence in this regard is insufficient to state an Eighth Amendment claim.
The Court therefore finds that Plaintiff's Complaint must be dismissed sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2). Lopez, 203 F.3d at 1127. If Plaintiff wishes to proceed with an Eighth Amendment failure to protect claim against the two Defendants, he must file an amended complaint alleging facts which, if proven true, would demonstrate the Defendants knew of and consciously disregarded an excessive risk to Plaintiff's safety when they handcuffed him to the other prisoner.
Plaintiff does not indicate whether his injury occurred while he was incarcerated following conviction of a crime or whether he was a pre-trial detainee at the time. In this Order the Court has set forth the standards for Eighth Amendment claims which apply to persons who have been convicted of a crime. The exact contours of substantive due process protections in the area of medical care to pre-trial detainees is still an open question. The Ninth Circuit has indicated:
[Plaintiff] has not argued for a more demanding standard of care and we therefore do not pursue the issue. See Marsh v. Butler County, 268 F.3d 1014, 1024 n. 5 (11th Cir. 2001) (declining to decide how the Eighth and Fourteenth Amendment standards for evaluating medical needs claims differs given the lack of argument); see also Gibson, 290 F.3d at 1189 n. 9 ("It is quite possible . . . that the protections provided pretrial detainees by the Fourteenth Amendment in some instances exceed those provided convicted prisoners by the Eighth Amendment."); cf. Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1121 (9th Cir. 2003) (holding that "the substantive due process rights of incapacitated criminal defendants are not governed solely by the deliberate indifference standard"); Jensen v. Lane County, 312 F.3d 1145, 1147 (9th Cir. 2002) (concluding that to comport with due process, committing physicians must exercise judgment "on the basis of substantive and procedural criteria that are not substantially below the standards generally accepted in the medical community").Lolli v. County of Orange, 351 F.3d 410, 419 n. 6 (9th Cir. 2003). Because Plaintiff has not stated a claim under the standard applicable to Eighth Amendment claims, and because he has not alleged that he was incarcerated awaiting trial at the time he suffered the injury, the Court need not determine the exact contours of such a claim at this time. However, if Plaintiff was incarcerated awaiting trial at the time of the injury, he should say so in his amended complaint.
IV. Conclusion and Order
Based on the foregoing, IT IS ORDERED that:
1. Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) is GRANTED.
2. The Warden of the Federal Medical Center, or his or her designee, is ordered to collect from Plaintiff's prison trust account, if such an account still exists, a $10.80 initial filing fee and the $239.20 balance of the filing fee owed in this case by collecting monthly payments from the trust account in an amount equal to twenty percent (20%) of the preceding month's income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2).
3. The Clerk of the Court is directed to serve a copy of this order on Warden, Federal Medical Center, P.O. Box 4000, Rochester, MN, 55903-4000.
IT IS FURTHER ORDERED that:
4. Plaintiff's Complaint is DISMISSED sua sponte without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff is GRANTED thirty (30) days leave from the date this Order is stamped "Filed" to file a First Amended Complaint which addresses all the deficiencies of pleading set forth above. Plaintiff is cautioned that his First Amended Complaint must be complete in itself without reference to his original Complaint and that any defendant not named and any claim not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Moreover, if Plaintiff's Amended Complaint still fails to state a claim upon which relief can be granted or otherwise fails to survive the screening provisions of 28 U.S.C. § 1915(e)(2) for any reason, it may be subject to dismissal without any further leave to amend. See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
IT IS SO ORDERED.