Bryan Kerr Dickson v. The United States of America

NOTICE OF MOTION AND MOTION to Dismiss Case and to Revoke Plaintiff's in forma pauperis Status, Memorandum of Points and Authorities

C.D. Cal.July 12, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division DAVID PINCHAS (Cal. Bar No. 130751) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2920 Facsimile: (213) 894-7819 E-mail: david.pinchas@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION BRYAN KERR DICKSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. ED CV 15-151 DMG (JCx) Hearing Date: August 19, 2016 Hearing Time: 9:30 a.m. Courtroom: 7- Second Floor U.S. Courthouse Hon. Dolly M. Gee 1. DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS AND TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS; 2. MEMORANDUM OF POINTS AND AUTHORITIES. Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 1 of 9 Page ID #:318 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS AND TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS PLEASE TAKE NOTICE that on August 19, 2016 at 9:30 a.m., or as soon thereafter as they may be heard, Defendant United States of America will, and hereby does, move this Court for an order dismissing this action. This Motion will be made in the Spring Street Courthouse before the Honorable Dolly M. Gee, United States District Judge, located at 312 N. Spring Street, Los Angeles, CA 90012. Defendant brings the motion on the ground that Plaintiff’s Tort Claim Complaint fails to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and 42 U.S.C. § 1997e(e). In addition, the pro se inmate Plaintiff is subject to the “three strikes” bar set forth in 28 U.S.C. § 1915(g). Accordingly, Plaintiff should not be permitted to proceed in forma pauperis in this action. This motion is made upon this Notice, the attached Memorandum of Points and Authorities, and all pleadings, records, and other documents on file with the Court in this action, and in Plaintiff’s prior actions. // // // // // // // // // // // // // Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 2 of 9 Page ID #:319 iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Central District Local Rule 16-12, the provisions of Local Rule 7-3 do not apply in this case because Plaintiff is appearing pro se, is in custody, and is not an attorney. Dated: July 12, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ David Pinchas DAVID PINCHAS Assistant United States Attorney Attorneys for Defendant United States of America Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 3 of 9 Page ID #:320 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff is an inmate in the custody of the federal Bureau of Prisons for a felony crime against a minor. See Complaint at 2 of 30. (Dkt# 1.) He sues for damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (the “FTCA”), for actions that allegedly took place in United States Penitentiary at Victorville, California (“USP Victorville”), where Plaintiff was an inmate from April 2013 to November 2013. See Complaint at 2 of 30. Plaintiff has filed numerous complaints in other jurisdictions while a federal inmate. See, e.g., Dickson v. United States, CV 16-29 KKC (E.D. Ky.); Dickson v. United States, CV 14-244 TUC-CKJ-PSOT (D. Ariz.); Dickson v. United States, CV 14-1109 –C (W.D. Okla). Pursuant to 28 U.S.C. § 1915, a prisoner may bring an action without pre-payment of court fees by filing an application to proceed in forma pauperis. In this case Plaintiff has done so. However, a prisoner is barred from proceeding in forma pauperis if he has, on three or more prior occasions while incarcerated, brought an action that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. Id. 1915(g). II. REQUEST FOR JUDICIAL NOTICE Chief Judge Karen K. Caldwell of the Eastern District of Kentucky recently denied Plaintiff’s motion to proceed in forma pauperis in his FTCA action in that district pursuant to § 1915(g). See Dickson v. United States, 2016 WL 866962 (E.D. Ky. Mar. 3, 2016). In addition, in his own May 2, 2015 filing in his case in the Western District of Oklahoma, Plaintiff admitted that he filed three prior actions under 28 U.S.C. § 1983, all of which were dismissed for failing to state a claim upon which relief could be granted. A copy of Plaintiff’s filing in his Western District of Oklahoma case number CV 14- 1108-C is attached hereto as Exhibit A. Defendant requests that the Court take judicial notice of Judge Caldwell’s Order and Plaintiff’s filing pursuant to Fed.R.Ev. 201. Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 4 of 9 Page ID #:321 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ALLEGATIONS OF THE INSTANT COMPLAINT According to the instant Complaint, Plaintiff was transferred to USP Victorville on or about April 11, 2013 from another penal institution. Complaint ¶ 22. Plaintiff alleges that on the bus from “the plane to USP Victorville, he was told that one black inmate told another that Plaintiff was going to be killed.” Id. ¶ 25. When he arrived at USP Victorville, Plaintiff was immediately placed in “protective custody” and housed in the Special Housing Unit (“SHU”). Id. ¶ 26. Plaintiff claims that he was unable to sleep due to his fears that he would be killed or seriously hurt by his cellmates. Id. ¶ 28. Plaintiff also claims that he learned later that one of his cellmates knew of his prior conviction for molestation but Plaintiff does not contend that this cellmate actually harmed him. Id. ¶ 31. Plaintiff also alleges that another cellmate, Tedmond Butts, physically threatened him. See Part two of Complaint (Dkt# 1-1) at 32 of 39. Plaintiff also alleges that he was harassed by yet another cellmate, Phil Archuleta, who, he claims, swung his penis near him. Id. Plaintiff further alleges that Archuleta “ran his finger along [Plaintiff’s] butt” while Plaintiff was sleeping, but it is unclear whether Plaintiff was actually aware of this or was told this by another inmate. Id. Although there was certainly tension between Archuleta and Plaintiff, Plaintiff avers that they almost, but never actually, “came to blows.” Id. Plaintiff also alleges that prisoner George Calvin Miles aka “Hollywood” asked Plaintiff’s cellmate to seriously hurt or kill Plaintiff. Id. ¶ 55. However, Plaintiff’s cellmate refused to do so. Id. Thus, the gravamen of the Complaint is that Plaintiff was afraid he might be harmed at USP Victorville, but no physical action was actually taken against him in that institution. See also Complaint ¶¶ 33, 49, 53, 57. Plaintiff also appears to allege that Bureau of Prisons (“BOP”) personnel retaliated against him for exercising his First Amendment rights by refusing to issue forms to complete the BOP’s administrative remedies process and denying him access to the SHU law library. Id. ¶¶ 43-47. Plaintiff further alleges that his requests for eye glasses, Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 5 of 9 Page ID #:322 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 dentures and knee replacements were ignored. Id. ¶¶ 63-64, 65. Plaintiff made the same allegations in his complaint in the Eastern District of Kentucky, except that Plaintiff alleged therein that he was denied eyeglasses “for an eighteen month period beginning on June 27, 2012.” Dickson, 2016 WL 866962 at * 3. Accordingly, it appears that his claim for eyeglasses is now moot. See DuPree v. Alameida, 290 Fed.Appx. 32 (9th Cir. 2008) (prisoner’s claim for diversion of funds became moot when his inmate trust account was reimbursed). IV. STANDARDS OF REVIEW In order to survive a motion to dismiss for failure to state a claim upon which relief can be granted, the complaint must contain factual allegations which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, a court need not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) amended on other grounds by 275 F.3d 1187 (9th Cir. 2001). In Twombly, the Court required a plaintiff opposing a motion under Fed.R.Civ.P. 12(b)(6) to proffer enough facts to state a claim for relief that is plausible on its face. 550 U.S. at 555. Under Twombly, Plaintiff’s obligation to provide the grounds for relief requires more than labels and conclusions, or a formulaic recitation of the elements of a cause of action. Id. A claim is facially plausible when the pleadings allow the court to draw the inference that defendant is liable for the misconduct alleged. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. See Mitman v. Feeney, 497 F.Supp.2d 1113, 1124 (C.D. Cal. 2007) (quoting Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988), overruled on other grounds, Twombly, 550 U.S. at 570.). As discussed below, the Complaint fails to satisfy these standards. Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 6 of 9 Page ID #:323 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. ARGUMENT A. The Complaint Fails to Allege Physical Injury The FTCA provides that an inmate may not bring a civil action against the United States for mental or emotional injury suffered while in custody without a prior showing of a physical injury or the commission of a sex act1. See 28 U.S.C. § 1346(b). The Complaint does not plausibly allege that Plaintiff suffered any actual physical injury at USP Victorville. Thus, Plaintiff cannot maintain an action for the emotional fear that he claims to have suffered at that institution. See Merz v. United States, 532 Fed. Appx. 677. 678 (9th Cir. 2013) (affirming dismissal of prisoner complaint that did not allege physical injury). In addition, to the extent Plaintiff bases his claims on the grounds that the BOP “fails to follow regulations not having the discretionary ability to ignore them,” see Complaint at pages 18 and 20 of 30, the Complaint fails to state a claim upon which relief can be granted because an FTCA action cannot be premised on a violation of federal law. See Delta Savings Bank v. United States, 265 F.3d 1017, 1025 (9th Cir. 2011). Moreover, Plaintiff appears to allege a First Amendment retaliation claim against the United States, and possibly other Constitutional violations. See Complaint ¶¶ 43-47. However, Plaintiff cannot maintain suit thereon because the law is settled that the United States has not waived its sovereign immunity to be sued for Constitutional violations. See FDIC v. Meyer, 510 U.S. 471, 484 (1994). Thus, Plaintiff’s claims based on violations of federal law should be dismissed for these reasons. B. Plaintiff’s In Forma Pauperis Status Should be Revoked Defendant also moves that Plaintiff’s in forma pauperis status be revoked pursuant to § 1915(g). As Eastern District of Kentucky Chief Judge Caldwell found, 1 The term “sex act” is defined as contact between the penis and the vulva or the anus; contact between the mouth and the penis, vulva, or anus; or penetration of the anal opening or genital opening. 18 U.S.C. § 2246(a)(2). The Complaint does not allege any such acts took place. Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 7 of 9 Page ID #:324 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and Plaintiff himself admitted in his Western District of Oklahoma action, at least three of Plaintiff’s prior complaints have been dismissed for failure to state a claim upon which relief can be granted.2 A noted above, § 1915(g) contains an exception to its “three strikes” bar, when the plaintiff is under imminent danger of serious injury. This exception is not applicable to Plaintiff. Here, the instant Complaint concerns actions that took place at USP Victorville but a review of the instant Complaint reveals that, at the time Plaintiff filed the instant action, he had already been transferred from USP Victorville to the Federal Correctional Institution at Marianna, Florida. See Complaint at 1, section III (place of present confinement). Eastern District of Kentucky Chief Judge Caldwell, who considered Plaintiff’s identical complaint and conclusory request to be in “a safe environment,” found that Plaintiff had not sufficiently alleged any real or proximate danger of harm. Dickson, 2016 WL 866962 at * 3. Indeed, Plaintiff was already confined in FCI-Marianna, Florida and thus, there was nothing that a court in Kentucky could do for him. Id. at * 4. This is also the case in the instant action because Plaintiff was also in the Marianna, Florida facility at the time he filed this action, and he continues to be incarcerated there. Thus, Plaintiff’s conclusory allegations fail to plausibly allege imminent danger of serious harm. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (the availability of the exception turns on the conditions the prisoner faced at the time the complaint was filed, not at some earlier or later time); Abdul–Akbar v. McKelvie, 239 F.3d 307, 312-13 (3d Cir.2001) (allegations of past danger insufficient to allow prisoner to proceed in forma pauperis); ; Young v. Luna, 2013 WL 6576038 at * 3 (E.D. Cal. Dec. 23, 2013) (speculative allegations of future harm insufficient); Marshall v. Florida Dept. of Corrections, 2009 WL 1873745 at *1 (N.D. Fla. June 27, 2009) (vague and non- 2 In the instant Complaint, Plaintiff admits three prior actions of his were dismissed in 2011. See Complaint at pages 7-8 of 30. Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 8 of 9 Page ID #:325 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 specific threats of danger insufficient). Accordingly, if this case is not dismissed, Plaintiff should be stripped of his in forma pauperis status and required to pay his full filing fee before proceeding any further in this case. VI. CONCLUSION For all the above reasons, Defendant requests that Plaintiff’s Complaint be dismissed and his in forma pauperis status be revoked. Dated: July 12, 2016 Respectfully submitted, EILEEN M. DECKER United States Attorney DOROTHY A. SCOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division /s/ David Pinchas DAVID PINCHAS Assistant United States Attorney Attorneys for Defendant United States of America Case 5:15-cv-00151-DMG-JC Document 54 Filed 07/12/16 Page 9 of 9 Page ID #:326 EXHIBIT A 7 Case 5:15-cv-00151-DMG-JC Document 54-1 Filed 07/12/16 Page 1 of 1 Page ID #:327 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EILEEN M. DECKER United States Attorney DOROTHY A. SCHOUTEN Assistant United States Attorney Chief, Civil Division ROBYN-MARIE LYON MONTELEONE Assistant United States Attorney Chief, General Civil Section, Civil Division DAVID PINCHAS (Cal. Bar No. 130751) Assistant United States Attorney Federal Building, Suite 7516 300 North Los Angeles Street Los Angeles, California 90012 Telephone: (213) 894-2920 Facsimile: (213) 894-7819 E-mail: david.pinchas@usdoj.gov Attorneys for Defendant United States of America UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION BRYAN KERR DICKSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. No. ED CV 15-151 DMG (JCx) ORDER GRANTING MOTION TO DISMISS AND REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS After full consideration of the evidence and authorities cited by the parties, Defendant’s Motion to Dismiss is hereby GRANTED. The Court finds Plaintiff’s pro se complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The Court further finds that Plaintiff’s in forma pauperis status must be revoked pursuant to 28 U.S.C. § 1915(g). IT IS SO ORDERED. Dated: _________________________________ UNITED STATES DISTRICT JUDGE Case 5:15-cv-00151-DMG-JC Document 54-2 Filed 07/12/16 Page 1 of 1 Page ID #:328 Re: Dickson v. United States of America; Case No. ED CV 15-151 DMG (JCx) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY MAILING I am over the age of 18 and not a party to the within action. I am employed by the Office of United States Attorney, Central District of California. My business address is 300 North Los Angeles Street, Suite 7516, Los Angeles, California 90012. On July 12, 2016 I served DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS AND TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER GRANTING MOTION TO DISMISS AND REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS on persons or entities named below by enclosing a copy in envelope addressed as shown below and placing the envelope for collection and mailing on the date and at the place shown below following our ordinary office practices. I am readily familiar with the practice of this office for collection and processing collection and mailing, it is deposited in the ordinary course of business within the United States Postal Service in a sealed envelope with postage fully prepaid. Date of mailing: July 12, 2016 Place of mailing: Los Angeles, California PERSON(S) AND/OR ENTITIES TO WHOM MAILED: Bryan Kerr Dickson REG 39172-177 Federal Correctional Institution Creek B Unit PO Box 7007 Marianna, FL 32447-7007 PRO SE I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on: July 12, 2016 at Los Angeles, California. /s/ Steven P. Stassi Steven P. Stassi Case 5:15-cv-00151-DMG-JC Document 54-3 Filed 07/12/16 Page 1 of 1 Page ID #:329