(PC) Van Gessel v. Moore

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 CHRISTOPHER ALLEN VAN GESSEL, 1:18-cv-01478-DAD-GSA-PC

12 Plaintiff, FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT THIS CASE

13 vs. PROCEED AGAINST DEFENDANTS

MOORE, ALTUIRE, AND BALLESIL ON

14 THOMAS MOORE, et al., PLAINTIFF’S MEDICAL CLAIMS UNDER

THE EIGHTH AMENDMENT AND

15 Defendants. MALPRACTICE CLAIMS UNDER THE

FTCA, AND THAT ALL OTHER CLAIMS

16 AND DEFENDANTS BE DISMISSED, WITH

PREJUDICE, FOR PLAINTIFF’S FAILURE

17 TO STATE A CLAIM

18 OBJECTIONS, IF ANY, DUE WITHIN

FOURTEEN (14) DAYS

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20

21 I. BACKGROUND

22 Christopher Allen Van Gessel (“Plaintiff”) is a federal prisoner proceeding pro se and in

23 forma pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403

24 U.S. 388 (1971) and the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). On October 26,

25 2018, Plaintiff filed the Complaint commencing this action. (ECF No. 1.) On September 24,

26 2019, the court issued an order for Plaintiff to either file an amended complaint or notify the

27 court he was willing to proceed only with the claims found cognizable by the court against

28 defendants Dr. Thomas Moore, Physician’s Assistant Altuire, and Physician’s Assistant Ballesil

1 for inadequate medical care under the Eighth Amendment. (ECF No. 8.) On October 7, 2019,

2 Plaintiff filed the First Amended Complaint, which is now before the court for screening. 28

3 U.S.C. § 1915A. (ECF No. 10.)

4 II. SCREENING REQUIREMENT

5 The court is required to screen complaints brought by prisoners seeking relief against a

6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

7 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

10 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

11 dismiss the case at any time if the court determines that the action or appeal fails to state a claim

12 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

13 A complaint is required to contain “a short and plain statement of the claim showing that

14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

18 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

19 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

20 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

21 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

22 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

23 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this

24 plausibility standard. Id.

25 III. SUMMARY OF FIRST AMENDED COMPLAINT

26 Plaintiff is presently incarcerated at the United States Penitentiary-Atwater in Atwater,

27 California, in the custody of the Federal Bureau of Prisons, where the events at issue in the First

28 Amended Complaint allegedly occurred. Plaintiff names as defendants Dr. Thomas Moore, the

1 United States, Physician’s Assistant Ballesil, Food Services Director R.W. Madan, Jr., Safety

2 Officer Marquez, and Physician’s Assistant Altuire (collectively, “Defendants”).

3 A summary of Plaintiff’s allegations follows:

4 On March 12, 2018, Plaintiff was cleaning his work area known as the Satellite Feeding

5 Room in Food Service with hot water from the steam kettle. Plaintiff accidently spilled the hot

6 water onto his left work boot. The hot water soaked into his boot and his sock badly burning his

7 foot.

8 It took Plaintiff time to take off his boot because it was tied on very tightly. Plaintiff

9 screamed for help, but no one came. He finally got his boot and sock off, but it was too late. He

10 had suffered second degree burns on both sides of his foot. The water temperature was at least

11 240 degrees Fahrenheit, and his boots were not waterproof.

12 Plaintiff’s co-worker, inmate Hawkins, heard Plaintiff and went for help. Hawkins and

13 another inmate, Maurice Franklin, carried Plaintiff to Medical, escorted by Plaintiff’s supervisor,

14 C/O Duncan [not a defendant]. Plaintiff arrived at Medical in excruciating pain. C/O Duncan

15 asked defendant Ballesil if he needed him to stay, and Ballesil told him no. C/O Duncan left and

16 defendants Physician’s Assistants Ballesil and Altuire asked Plaintiff what happened. Plaintiff

17 told them. Plaintiff’s vital signs were not taken. Plaintiff was ice cold and shaking, yet his foot

18 was burning and hurting him very badly. He was in severe shock due to his injury. Defendant

19 Ballesil told him that next time he was burned he should run cold water on the burn to stop it

20 from burning. Plaintiff asked defendant Ballesil for pain medication, but Ballesil said that only

21 a doctor could give him medication. Plaintiff asked for some aspirin but was denied again.

22 Plaintiff asked how long it would take for his foot to heal, and Defendant Altuire said it was

23 different for each person, but Plaintiff should drink lots of water, sleep a lot, and buy vitamins

24 from the commissary to ward off infection, and take aspirin for pain. Plaintiff’s commissary

25 day was two days later, on March 14, 2018. Defendant Altuire told Plaintiff he (Plaintiff) would

26 not be working for a while. Defendant Ballesil applied burn cream to Plaintiff’s foot and wrapped

27 it in gauze. Plaintiff was given crutches and told to come back the next day to have his dressing

28 changed. Plaintiff was never taken to a hospital emergency room to see a real doctor who

1 specializes in burns, and he was never given any special protective clothing to cover his burn and

2 protect it. Plaintiff left Medical on crutches and in severe pain, returned to his housing unit and

3 called his mother to tell her what happened. It was about 3:50 p.m. on March 12, 2018.

4 The next morning, on March 13, 2018, Plaintiff went to Medical and had his bandage

5 changed by defendants Ballesil and Altuire. Defendant Ballesil called three other medical

6 personnel into the room asking if they wanted to see a burn. All three were females and only

7 one, Ms. Ybarra [not a defendant] spoke to Plaintiff. She asked him for his name and told him

8 she would send a medical encounter report to the Facility Safety Officer, defendant C/O Marquez.

9 She also told Plaintiff to tell his supervisor, C/O Duncan, to file an injury report. Plaintiff asked

10 defendant Ballesil for pain medication but was denied. Plaintiff was still in excruciating pain.

11 He left Medical with a clean bandage but missed seeing the doctor. Defendant Ballesil told

12 Plaintiff to “put a cop-out in” if he wanted to see him for sick call. FAC at 10.

13 On March 14, 2018, Plaintiff went to Medical to have his bandage changed again, but the

14 woman at the pill window, Physician’s Assistant Putnam [not a defendant], told him that Medical

15 was closed and no one was there. Plaintiff told her he needed his bandage changed and she said

16 she would call Plaintiff’s housing unit when they were ready for him to come back. Plaintiff

17 came back at lunch and spoke to Physician’s Assistant Silva [not a defendant] about his problem.

18 She said she would look into it. Luckily for Plaintiff, Ms. Ybarra saw him through the window,

19 let him in, and changed his dressing. She told Plaintiff his injury looked normal and did not smell

20 bad. Plaintiff asked whether he needed a skin graft and Ms. Ybarra told Plaintiff that his burn

21 was only three layers deep and would heal over time.

22 On March 15, 2018, Plaintiff went to Medical and had his bandage changed by Ms.

23 Ybarra while Defendant Altuire watched. Defendant Dr. Moore, the facility doctor, came to get

24 his keys from defendant Ybarra, saw Plaintiff’s foot, and asked him what happened. Plaintiff

25 told him and asked for pain medication. Dr. Moore said Plaintiff’s foot looked good and told

26 Plaintiff he could buy medication at the commissary. Plaintiff was finished and left.

27 On March 16, 2018, Plaintiff went to Medical and Ms. Ybarra changed his bandage.

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1 On March 17, 2018, Plaintiff went to Medical and defendant Ballesil changed his

2 bandage. Plaintiff asked Ballesil for pain medication again but was denied. Plaintiff asked for

3 photos to be taken of his foot for the records, but Ballesil said he had no camera. Ballesil laughed

4 when Plaintiff told him to call the Lieutenant’s office. Then Plaintiff went to the Lieutenant’s

5 office and spoke to Lt. Belaski [not a defendant] about taking pictures for his protection. Lt.

6 Belaski told Lt. Martinez [not a defendant] to take pictures of Plaintiff’s foot the next day.

7 On March 18, 2018, Plaintiff went to Medical and Spears [not a defendant] changed his

8 bandage. No pictures were taken of Plaintiff’s foot that day.

9 On March 19, 2018, Plaintiff went to Medical to have his bandage changed. Ms. Ybarra

10 told him to come back later because she was busy. Plaintiff returned at 12:15 p.m. and C/O

11 Moreno [not a defendant] took pictures of Plaintiff’s foot before Spears [not a defendant] changed

12 his bandage. Plaintiff left Medical to see defendant Safety Officer Marquez. C/O Alameda [not

13 a defendant] led Plaintiff into his office. Defendant Marquez asked Plaintiff questions about his

14 foot, like whether he could put a shoe or boot on his foot. Plaintiff said he could not even put a

15 sock on his foot. Plaintiff asked how long it would be until he could go to work. Marquez told

16 Plaintiff to submit a Medical Idle form telling how long he would be laid in, and then Plaintiff

17 would receive 75% of his pay from Workman’s Compensation. Plaintiff got the form from

18 Medical and did this.

19 On March 20, 2018, Plaintiff went to Medical and had his bandage changed by Spears.

20 Spears asked Plaintiff what he was doing to take care of himself, and Plaintiff answered that he

21 was just reading and staying off his foot as much as possible. Plaintiff got his pictures from C/O

22 Moreno and the prison went on lockdown.

23 On March 21, 2018, at 6:25 p.m., defendant Ballesil came to Plaintiff’s cell #299 in Unit

24 4B and gave him some cream for his foot. Plaintiff’s bandage finally came off for good, so now

25 air could get to his foot and it would heal faster.

26 On March 22, 2018, no medical personnel came to check on Plaintiff.

27 On March 26, 2018, the facility came off lockdown and Plaintiff tried to see Medical to

28 have his foot checked.

1 On March 27, 2018, Plaintiff went to Medical for a check-up of his injury. Defendant

2 Ballesil checked the foot and told Plaintiff he might be able to return to work the next week.

3 Plaintiff asked him why his foot still hurt and if he could get some pain medicine for the

4 excruciating pain. Ballesil said he did not know why his foot still hurt, that Plaintiff would not

5 get pain medicine, and that Plaintiff should ask the doctor to look at his foot. Physician’s

6 Assistant Areco [not a defendant] came into the examination room and told defendant Ballesil to

7 document everything because she (Areco) said Plaintiff wrote them up for not giving him medical

8 care. Plaintiff alleges that this is false. The BP-8 complaint, which is a federal document that

9 Plaintiff turned into Counselor Reyes [not a defendant] sometime in March 2018, stated that he

10 filed the BP-8 because he was being denied pain medication for intense pain, not for being denied

11 medical care and attention. Plaintiff questions how she (Reyes) knew that Plaintiff filed a BP-8

12 if Plaintiff never received a response.

13 That same day, the prison went on lockdown and Plaintiff could not go to the commissary

14 to buy aspirin for his pain, since Medical and Dr. Moore would not give him anything for pain.

15 Plaintiff alleges that defendant Ballesil lied on his medical report because Plaintiff’s pain was 10

16 on the pain scale, not 4. The photos show that Plaintiff’s wound was not a minor wound like

17 defendant Ballesil claims in his report. Plaintiff had to cut one of his t-shirts apart to cover and

18 protect his burn so he could sleep. Plaintiff was still in severe pain with no medicine.

19 On April 1, 2018, Plaintiff had no more cream for his burn, or medicine for pain. As the

20 medical report states, the doctor never prescribed him medication for the pain. Plaintiff had not

21 seen anyone from Medical since March 26, 2018.

22 On April 5, 2018, no one from Medical came to check up on him or his foot, or to give

23 him any pain medication. Plaintiff had not received a response to the BP-8 complaint he filed

24 about three weeks ago.

25 On April 12, 2018, at 7:30 a.m., Plaintiff went to Medical to be medically cleared to work

26 for Food Service. Ms. Ybarra told Plaintiff that the doctor would schedule Plaintiff for a follow-

27 up if the doctor wanted to see him or give him a medical clearance.

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1 When Plaintiff was burned, his foot swelled up but he did not receive any antibiotics to

2 fight off infection or keep his foot from swelling up, or any medication for the intense pain he

3 was experiencing.

4 April 15, 2018--Three days ago, Plaintiff noticed that his foot hurt badly when he was at

5 work in Food Service. Plaintiff was never medically cleared to go back to work, but he thought

6 he was ready to return. He noticed that the skin under his big toenail, on both sides of his big toe

7 and all the way back to the side of his ankle, was really red. At the time Plaintiff did not know

8 there was fluid under his toenail from the infection he contracted from his burn. He had to take

9 a razor blade himself and cut a small hole in his skin to relieve the pressure. A lot of yellow fluid

10 and blood shot out from under his toenail. Plaintiff had an infection. Dr. Moore still had not

11 arranged for him to get medication for his infection or to clear him to return to Food Service.

12 Plaintiff told defendant Safety Officer Marquez that he was able to return to his job and Marquez

13 said thanks for keeping him updated.

14 On April 17, 2018, Plaintiff told his supervisor, C/O Duncan, about his infection and what

15 he (Plaintiff) had to do to relieve the pressure. Duncan said it was crazy that Medical did not

16 help him.

17 April 24, 2018 -- Fluid is no longer coming from under Plaintiff’s skin. He lost his toenail

18 because of complete lack of professionalism. Plaintiff still had no response to his BP-8

19 complaint. He never received any safety equipment from the Food Service staff to properly do

20 his job. Plaintiff was never given anything from Medical for the excruciating pain he was

21 suffering, and he was denied access to Dr. Moore. Plaintiff had to prop up his foot to sleep.

22 Plaintiff is grateful for the only two Medical staff members who treated him with respect

23 and professionalism, Physician’s Assistants Ybarra and Spears. Plaintiff believes that defendant

24 Dr. Moore should have his medical license revoked for not seeing Plaintiff, not issuing a

25 prescription for Plaintiff’s pain, and not allowing him to be taken to an outside doctor specializing

26 in burns. About March 17, 2018, when Plaintiff went to Medical to have his bandage changed,

27 he spotted Dr. Moore in the hallway and tried to speak with him in a polite manner. The doctor

28 completely ignored Plaintiff and went about his business. Plaintiff believes that defendants

1 Physician’s Assistants Altuire and Ballesil should not be allowed to work in the medical field

2 because they treated Plaintiff with a lackadaisical attitude towards his injury. Plaintiff also

3 believes that C/O Moreno tried to destroy evidence by making the pictures of Plaintiff’s foot so

4 blurry.

5 Plaintiff’s work supervisor at the time of his injury was C/O Choudhry [not a defendant].

6 He would instruct Plaintiff to clean his work area before leaving for the day. The floors in Food

7 Service are made of tile and get very greasy and wet. Cold water does not clean the grease off

8 the floor. Only hot water and soap used with a deck brush works. Plaintiff had asked C/O

9 Choudhry on numerous occasions for proper safety equipment to do his job safely while cleaning

10 with hot water. Chaudry told Plaintiff that only the people who worked in the dishroom with

11 pots and pans, and the cooks were allowed to have rubber boots or yellow slip-on boot covers,

12 along with sanitation workers. Plaintiff asked defendant Madan, Food Services Director, if he

13 could have some of those boots to protect him while doing his job, and defendant Madan told

14 Plaintiff to ask his supervisor. Plaintiff has worked in Food Service for two years and the boots

15 that are issued to inmate workers are shoddy, dangerous to work in, not waterproof, and not slip-

16 resistant. Plaintiff worked at Wolverine Worldwide Boot Manufacturer in Rockford, MI in 2001,

17 and he knows good safe work boots when he sees them. The boots provided for inmate workers

18 at the prison are not safe at all. Plaintiff has had at least 7 pairs of boots since working in Food

19 Service. They break down and are complete garbage. Since Plaintiff’s injury defendant Madan

20 has spent thousands of dollars on new kitchen equipment such as tables, cooking kettles, eight

21 new hot carts for the Satellite Feeding Room, and hot and cold boxes for the serving line, yet he

22 cannot even spend $2,000 of his budget to purchase brand new quality work boots and personal

23 protective equipment for inmate employees to be safe while performing their jobs. Plaintiff

24 claims that defendant Madan is violating Plaintiff’s Fifth Amendment due process rights to be

25 treated equally like other employees in similar work conditions at similar work sites. Plaintiff

26 also claims that defendant Madan is violating OSHA’s policies and regulations, which would

27 protect employees from unsafe work conditions. Plaintiff fears some type of retaliation from

28 defendant Madan when the court receives Plaintiff’s complaint.

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2 The United States is in clear violation of Plaintiff’s Eighth Amendment rights because it

3 did not provide Plaintiff with medication for his excruciating pain.

4 Defendant Safety Officer Marquez is in clear violation of not only OSHA’s safety policies

5 regarding issuing proper safety equipment to inmate employees to use while working in unsafe

6 work conditions, but also of not forcing defendant Madan to issue inmate kitchen workers the

7 proper personal protective equipment to be used while working with hot water to do their jobs

8 effectively. Defendant Madan also failed to give Plaintiff the form called Inmate Accident

9 Compensation Form when Plaintiff asked him numerous times, so that Plaintiff could file a claim

10 in federal court and seek relief from his injuries.

11 Plaintiff requests monetary damages, including punitive damages.

12 IV. PLAINTIFF’S CLAIMS

13 A. Bivens

14 Bivens actions are identical to civil rights actions under 42 U.S.C. § 1983 except for the

15 replacement of state actor under § 1983 by federal actor under Bivens. Starr v. Baca, 652 F.3d

16 1202, 1206 (9th Cir. 2011) (“Although more limited in some respects, a Bivens action is the

17 federal analog to an action against state or local officials under § 1983.”) (internal quotation

18 marks omitted); See Bivens, 403 U.S. 388 (1971).

19 The basis of a Bivens action is some illegal or inappropriate conduct on the part of a

20 federal official or agent that violates a clearly established constitutional right. Balser v.

21 Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003). “To state a

22 claim for relief under Bivens, a plaintiff must allege that a federal officer deprived him of his

23 constitutional rights.” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (citing see Shwarz

24 v. United States, 234 F.3d 428, 432 (9th Cir. 2000). A Bivens claim is only available against

25 officers in their individual capacities. Morgan v. U.S., 323 F.3d 776, 780 n.3 (9th Cir. 2003);

26 Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). “A plaintiff must plead more than a merely

27 negligent act by a federal official in order to state a colorable claim under Bivens.” O’Neal v.

28 Eu, 866 F.2d 314, 314 (9th Cir. 1988). Prisoners proceeding pro se in civil rights actions are

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2 entitled to have their pleadings liberally construed and to have any doubt resolved in their favor.

3 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted).

4 Relief under Bivens does not encompass injunctive and declaratory relief where the

5 equitable relief sought requires official government action. Solida v. McKelvey, 820 F.3d 1090,

6 1093-94 (9th Cir. 2016). Bivens is both inappropriate and unnecessary for claims seeking solely

7 equitable relief against actions by the federal government; by definition, Bivens suits are

8 individual capacity suits and thus cannot enjoin official government action. Id. at 1094-95.

9 Therefore, Plaintiff is not entitled to injunctive or declaratory relief in this action.

10 A Bivens claim is brought against the individual official for his or her own acts, not the

11 acts of others. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017). Bivens is not designed to hold

12 officers responsible for acts of their subordinates. Id. Government officials may not be held

13 liable, under § 1983 or a Bivens action, for unconstitutional conduct of their subordinates under

14 a theory of respondeat superior. Iqbal, 556 U.S. 676.

15 Bivens After Ziglar v. Abbasi

16 “The Supreme Court made clear that ‘expanding the Bivens remedy is now a disfavored

17 judicial activity,’ and has ‘consistently refused to extend Bivens to any new context or new

18 category of defendants.’” Buenrostro v. Fajardo, 1:14-cv-00075-DAD-BAM (PC), 2017 WL

19 6033469, at *2 (E.D. Cal. Dec. 5, 2017) (quoting Ziglar, 137 S.Ct. at 1857). “Ziglar sets forth a

20 two-part test to determine whether a Bivens claim may proceed.” Buenrostro, 2017 WL

21 6033469, at *2. “A district court must first consider whether the claim presents a new context

22 from previously established Bivens remedies.” Id. The proper test involves a consideration of

23 Bivens cases decided by the Supreme Court, not by the Courts of Appeals. Ziglar, 137 S. Ct. at

24 1859 (“If the case is different in a meaningful way from previous Bivens cases decided by this

25 Court, then the context is new.”). If not, the action proceeds. “If so, [the court] must then apply

26 a ‘special factors’ analysis to determine whether ‘special factors counsel hesitation’ in expanding

27 Bivens absent affirmative action by Congress.” Buenrostro, 2017 WL 6033469, at *2 (quoting

28 Ziglar, 137 S.Ct at 1857, 1875.)

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2 “Ziglar provides several examples of differences meaningful enough to make a given

3 context a new one, including ‘the constitutional right at issue.’”1 Buenrostro at *2 (quoting Ziglar

4 at 1860). “To date, the Supreme Court has only recognized a Bivens remedy in the context of

5 the Fourth, Fifth, and Eighth Amendments.” See Bivens, 403 U.S. 388 (Fourth Amendment

6 prohibition against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979)

7 (Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth

8 Amendment Cruel and Unusual Punishments Clause for failure to provide adequate medical

9 treatment).

10 The Supreme Court has “consistently refused to extend Bivens to any new context or new

11 category of defendants.” Ziglar, 137 S.Ct. at 1857. If a claim presents a new context in Bivens,

12 then the court must consider whether there are special factors counseling against extension of

13 Bivens into this area. Id. The Supreme Court’s precedents “now make clear that a Bivens remedy

14 will not be available if there are ‘special factors counselling hesitation in the absence of

15 affirmative action by Congress.’” Id. “[I]f there is an alternative remedial structure present in a

16 certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of

17 action.” Id.; but see Lanuza v. Love, 899 F.3d 1019, 1031n.7 (9th Cir. 2018) (“We read [Ziglar’s]

18 special-factors analysis as encompassing all circumstances that counsel against extending a

19 Bivens remedy, including” alternative remedies). The “special factors” inquiry “must concentrate

20 on whether the Judiciary is well suited, absent congressional action or instruction, to consider

21 and weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, at 1857-58.

22 “In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a

23 damages remedy as part of the system for enforcing the law and correcting a wrong, the courts

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25 1 The Supreme Court has declined “to create an exhaustive list of differences that are meaningful

enough to make a given context a new one” but provided instructive examples: “A case might differ in a meaningful

26 way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to

27 be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive

intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that

28 previous Bivens cases did not consider.” Ziglar, 137 S.Ct. at 1859–60.

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2 must refrain from creating the remedy in order to respect the role of Congress in determining the

3 nature and extent of federal-court jurisdiction under Article III.” Id.

4 C. Sovereign Immunity -- Defendant United States

5 Plaintiff names the United States as a defendant in this case.

6 1. Bivens Claims Cannot be Brought Against United States

7 Plaintiff is advised that he may not sustain a Bivens action against the United States.

8 Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.

9 F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 1000, 127 L. Ed. 2d 308 (1994); Loeffler

10 v. Frank, 486 U.S. 549, 554, 108 S.Ct. 1965, 1968, 100 L.Ed.2d 549 (1988); Federal Housing

11 Administration v. Burr, 309 U.S. 242, 244, 60 S.Ct. 488, 490, 84 L.Ed. 724 (1940); see also

12 United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983) ( “It

13 is axiomatic that the United States may not be sued without its consent and that the existence of

14 consent is a prerequisite for jurisdiction”).

15 The United States has not waived its sovereign immunity for actions brought pursuant to

16 Bivens. See Kaiser v. Blue Cross, 347 F.3d 1107, 1117 (9th Cir. 2003) (noting that there has

17 been no waiver of sovereign immunity under Bivens); Holloman v. Watt, 708 F.2d 1399, 1401-

18 02 (9th Cir. 1983) (per curiam) (holding that a Bivens claim may be maintained only against

19 federal employees in their individual rather than official capacities). Therefore, a Bivens action

20 will not lie against the United States, agencies of the United States, or federal agents in their

21 official capacity. See F.D.I.C, 510 U.S. at 486; Vaccaro, 81 F.3d at 857; Cato v. United States,

22 70 F.3d 1103, 1110 (9th Cir. 1995).

23 2. United States is the Only Proper Defendant in Claim Brought Under

24 Federal Tort Claims Act

25 The FTCA allows suit against the federal government for torts committed by its

26 employees, but federal employees are absolutely immune as individuals from suit for torts. 28

27 U.S.C. § 2679(b)(1); Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 425-26, 115 S.Ct. 2227

28 (1995). The only proper defendant in an FTCA case is the United States. Jackson v. Kotter, 541

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2 F.3d 688, 793 (7th Cir. 2008). Therefore, Plaintiff’s claims against the United States under the

3 FTCA are not barred by the doctrine of sovereign immunity.

4 D. Supervisory Liability

5 Plaintiff names defendants in the amended complaint who appear to hold supervisory

6 positions, such as defendants R.W. Madan, Jr. (Food Services Director) and Marquez (Safety

7 Officer).

8 Liability may not be imposed on supervisory personnel under Bivens on the theory of

9 respondeat superior. Bibeau v. Pacific Northwest Research Foundation, Inc., 188 F.3d 1105,

10 1114 (9th Cir. 1999) (respondeat superior and such liability does not lie in either Bivens or

11 section 1983 actions); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Each defendant

12 is only liable for his or her own misconduct, and Plaintiff must demonstrate that each defendant,

13 through his or her own individual actions, violated Plaintiff’s constitutional rights. Iqbal, 556

14 U.S. at 676-77 (emphasis added). The required causal connection between supervisor conduct

15 and the deprivation of a constitutional right is established either by direct personal participation

16 or by setting in motion a “series of acts by others which the actor knows or reasonably should

17 know would cause others to inflict the constitutional injury.” Johnson v. Duffy, 588 F.2d 740,

18 743-44 (9th Cir. 1978). A supervisor is only liable for the constitutional violations of . . .

19 subordinates if the supervisor participated in or directed the violations, or knew of the violations

20 and failed to act to prevent them. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989.) Therefore,

21 to the extent that Plaintiff seeks to impose liability upon any of the Defendants in their

22 supervisory capacity, Plaintiff fails to state a claim.

23 E. Bivens is Available For Plaintiff’s Eighth Amendment Medical Claim

24 The nature of Plaintiff’s Eighth Amendment claims includes assertions that he was denied

25 pain medication for excruciating pain in his foot following a severe burn with steaming hot water.

26 Plaintiff alleges that he was denied pain medication for more than a month, despite several

27 requests to defendants Dr. Moore and Physician’s Assistants Ballesil and Altuire.

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1 As indicated above, in Carlson, the Supreme Court extended Bivens to a claim arising

2 from the Cruel and Unusual Punishments Clause of the Eighth Amendment based on the failure

3 to provide adequate medical treatment. 446 U.S. 14. Here, Plaintiff’s claim for deliberate

4 indifference to a serious medical need does not present a new context from the previously

5 established claim in Carlson for deliberate indifference to a serious medical need. The claim in

6 Plaintiff’s case, that federal prison officials refused to provide him with pain medication after his

7 foot was severely burned with hot water, is not different in a meaningful way from the claim in

8 Carlson that federal prison officials failed to give the plaintiff, a federal inmate, proper medical

9 attention for personal injuries from which he subsequently died. There is no discernable

10 difference in the constitutional right at issue, which is the right to adequate medical treatment

11 under the Eighth Amendment. Accordingly, the court finds that a Bivens claim is available to

12 Plaintiff for deliberate indifference to a serious medical need in violation of the Eighth

13 Amendment.

14 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate

15 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091,

16 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for

17 deliberate indifference requires the plaintiff to show (1) “‘a serious medical need’ by

18 demonstrating that ‘failure to treat a prisoner’s condition could result in further significant injury

19 or the unnecessary and wanton infliction of pain,’” and (2) “the defendant’s response to the need

20 was deliberately indifferent.” Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050,

21 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133,

22 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown

23 by “a purposeful act or failure to respond to a prisoner’s pain or possible medical need, and harm

24 caused by the indifference.” Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference

25 may be manifested “when prison officials deny, delay or intentionally interfere with medical

26 treatment, or it may be shown by the way in which prison physicians provide medical care.” Id.

27 Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to

28 further harm in order for the prisoner to make a claim of deliberate indifference to serious medical

1 needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm’rs, 766 F.2d 404,

2 ///

3 407 (9th Cir. 1985)). Deliberate indifference to serious medical needs of prisoners constitutes

4 the “unnecessary and wonton infliction of pain.” Estelle, 427 U.S. at 104.

5 “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051,

6 1060 (9th Cir. 2004). “Under this standard, the prison official must not only ‘be aware of the

7 facts from which the inference could be drawn that a substantial risk of serious harm exists,’ but

8 that person ‘must also draw the inference.’” Id. at 1057 (quoting Farmer v. Brennan, 511 U.S.

9 825, 837 (1994)). “‘If a prison official should have been aware of the risk, but was not, then the

10 official has not violated the Eighth Amendment, no matter how severe the risk.’” Id. (quoting

11 Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). “A showing of

12 medical malpractice or negligence is insufficient to establish a constitutional deprivation under

13 the Eighth Amendment.” Id. at 1060. “[E]ven gross negligence is insufficient to establish a

14 constitutional violation.” Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

15 “A difference of opinion between a prisoner-patient and prison medical authorities

16 regarding treatment does not give rise to a § 1983 claim.” Franklin v. Oregon, 662 F.2d 1337,

17 1344 (9th Cir. 1981) (internal citation omitted). To prevail, a plaintiff “must show that the course

18 of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . .

19 that they chose this course in conscious disregard of an excessive risk to plaintiff’s health.”

20 Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).

21 Here, Plaintiff alleges that his foot was severely burned on March 12, 2018, when he

22 accidently spilled steaming hot water into his boot, and he suffered excruciating pain and

23 subsequently developed an infection. These allegations are sufficient to show that Plaintiff had

24 a serious medical need.

25 Plaintiff also alleges sufficient facts demonstrating that defendants Moore, Ballesil, and

26 Altuire possessed the requisite mental state for deliberate indifference to his serious medical

27 need. Plaintiff alleges that when he met with defendants Ballesil and Altuire immediately after

28 the accident on March 12, 2018, he had a serious burn on his left foot, was in excruciating pain,

1 and was ice cold and shaking, which defendants would have observed when they examined him.

2 Plaintiff alleges that he remained in excruciating pain for days. Plaintiff was denied any

3 medication for pain and was told he could go to the commissary, but his commissary day was

4 not until two days later. He requested medication but was never given any pain medication for

5 his burn by Dr. Moore or either of the Physician’s Assistants. Plaintiff alleges he was still in

6 severe pain on March 29, 2018.

7 These allegations are sufficient to state an Eighth Amendment medical claim against Dr.

8 Moore, Physician’s Assistant Ballesil, and Physician’s Assistant Altuire.

9 F. Bivens is Not Available for Plaintiff’s Failure to Protect Claim

10 As discussed above, “Ziglar sets forth a two-part test to determine whether a Bivens claim

11 may proceed.” Buenrostro, 2017 WL 6033469, at *2. “A district court must first consider

12 whether the claim presents a new context from previously established Bivens remedies.” Id. “If

13 so, it must then apply a ‘special factors’ analysis to determine whether ‘special factors counsel

14 hesitation’ in expanding Bivens absent affirmative action by Congress.” Id. (quoting Ziglar, 137

15 S.Ct at 1857, 1875.)

16 Plaintiff alleges that defendants Food Services Director R. W. Madan, Jr. and Facility

17 Safety Officer Marquez failed to protect him under the Eighth Amendment from a severe burn

18 to his left foot caused by steaming hot water because they did not provide Plaintiff, a prison

19 kitchen employee, with proper safety equipment, such as waterproof high quality boots when

20 working with hot water doing his job in the kitchen. Plaintiff also claims that defendant Marquez

21 failed to protect him because Marquez did not force Madan to issue inmate workers proper

22 protective equipment for working with hot water.

23 As discussed above, the Supreme Court has approved of only one Bivens damages

24 remedy under the Eighth Amendment – specifically for failure to provide medical care. Carlson,

25 446 U.S. at 16 n.1, 18-23. In this case, Plaintiff’s Eighth Amendment claim differs meaningfully

26 from the Eighth Amendment claim in Carlson because Plaintiff’s claim arises out of allegations

27 that the Food Services Director and Facility Safety Officer at USP-Atwater did not provide

28

1 Plaintiff with rubber boots or yellow slip-on boot covers that the cooks, dishroom workers, and

2 sanitation workers were allowed to have.

3 ///

4 The Eighth Amendment protects prisoners from inhumane conditions of confinement.

5 Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be

6 restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter,

7 sanitation, medical care, and personal safety. Farmer, 511 U.S. at 832-33 (internal citations and

8 quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from

9 physical abuse, id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005), and the failure

10 of prison officials to protect inmates from attacks by other inmates may rise to the level of an

11 Eighth Amendment violation where prison officials are deliberately indifferent to a substantial

12 risk of serious harm to the plaintiff, e.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040.

13 The Supreme Court has not approved an Eighth Amendment Bivens claim for failure to

14 protect a prisoner from injury while doing his job at the prison. In fact, the Supreme Court has

15 held that Eighth Amendment conditions of confinement claims, such as Plaintiff’s failure to

16 protect claim, present a new Bivens context because while arising under the cruel and unusual

17 punishment clause, Carlson concerned inadequate medical care, not failure to protect the

18 plaintiff. See Thomas v. Matevousian, No. 1:17-cv-01592-AWI-GSA, 2019 WL 266323, at *1–

19 2 (E.D. Cal. Jan. 18, 2019) (declining to adopt magistrate judge’s finding that conditions of

20 confinement claim was similar to Eighth Amendment claim raised in Carlson); Mercer v.

21 Matevousian, No. 1:18-cv-00265-DAD-BAM, 2018 WL 4859312, at *3 (E.D. Cal. Oct 5, 2018)

22 (“Plaintiff’s allegations are properly characterized as a conditions of confinement claim, which

23 differs from [the Carlson] claim for failure to provide medical care or treatment.”). Further, the

24 Ninth Circuit in an unpublished decision held that an “Eighth Amendment claim regarding

25 unsanitary cell conditions presents a new Bivens context because [the petition] does not allege a

26 failure to treat a serious medical condition, which was the issue in Carlson . . . [and] resembles

27 the conditions of the confinement claim the Supreme Court rejected in [Ziglar v. ]Abassi.”

28 Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir.), reh’g denied, Nos. 17-55298, 17-56216,

1 761 Fed.Appx. 732, 2019 U.S. App. LEXIS 12909 (9th Cir. Apr. 29, 2019), petition for cert.

2 filed, No. 19-5776 (U.S. July 24, 2019).

3 ///

4 While there is some similarity in the constitutional basis of [Plaintiff’s] claims with

5 previously recognized Bivens claims, [Plaintiff’s] claims nevertheless “arise[ ] in a new Bivens

6 context.” See Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018) (quoting [Ziglar v.

7 ]Abbasi, 137 S.Ct. at 1864). In other words, the claims are different in a meaningful way from

8 previous Bivens cases decided by the Supreme Court. “Given [the Supreme] Court’s expressed

9 caution about extending the Bivens remedy . . . the new-context inquiry is easily satisfied.”

10 Ziglar, 137 S.Ct. at 1865. Based on the foregoing, the court finds that Plaintiff is seeking a Bivens

11 remedy in a new context. Therefore, the court must determine whether special factors counsel

12 hesitation in expanding the Bivens remedy in this case.

13 Special Factors

14 In [Ziglar v. ]Abbasi, the Supreme Court appeared to suggest that the Prison Litigation

15 Reform Act of 1995 (“PLRA”) is a factor counseling hesitation. Although “it seems clear that

16 Congress had specific occasion to consider the matter of prisoner abuse and to consider the proper

17 way to remedy those wrongs,” some fifteen years after Carlson was decided the PLRA “itself

18 does not provide for a standalone damages remedy against federal jailers.” [Ziglar v. ]Abbasi,

19 137 S. Ct. at 1865. The Supreme Court reasoned, “It could be argued that this suggests Congress

20 chose not to extend the Carlson damages remedy to cases involving other types of prisoner

21 mistreatment,” and “legislative action suggesting that Congress does not want a damages remedy

22 is itself a factor counseling hesitation.” Id.

23 Here, Plaintiff had alternative remedies for the alleged violation of his Eighth

24 Amendment rights. First, Plaintiff had access to the Federal Bureau of Prisons’ Administrative

25 Remedy Program, as previously discussed in this order. “[A]n alternative remedy need not be

26 ‘perfectly congruent’ with Bivens or ‘perfectly comprehensive[.]’” Rodriguez v. Swartz, 899

27 F.3d 719, 739 (9th Cir. 2018) (citations and footnotes omitted). “So long as the plaintiff ha[s] an

28 avenue for some redress, bedrock principles of separation of powers foreclose[ ] judicial

1 imposition of a new substantive liability.” Correctional Services Corp. v. Malesko, 534 U.S. 61,

2 69, 122 S.Ct. 515 (2001).

3 ///

4 Second, Plaintiff could initiate an action for declaratory and injunctive relief, see 18

5 U.S.C. § 3626 (providing remedies in any civil action with respect to prison conditions), and

6 third, as Plaintiff has done in this case, prisoners can bring an action against the United States

7 pursuant to the Federal Tort Claims Act. Alternative remedies may also include a “writ of habeas

8 corpus or some other form of equitable relief.” See Ziglar, 137 S. Ct. at 1865); W. Radio Servs.

9 Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) (noting that while the APA2 does

10 not provide for monetary damages or right to a jury trial, such remedial schemes may be adequate

11 if the absence of such features was not inadvertent on part of Congress); Libas Ltd. v. Carillo,

12 329 F.3d 1128, 1130 (9th Cir. 2003) (noting Bivens claims are precluded where Congress

13 provided an alternative mechanism for relief that it considers adequate to remedy constitutional

14 violations, and the failure to provide monetary damages or other relief was not inadvertent).

15 “[W]hen alternative methods of relief are available, a Bivens remedy usually is not.” Ziglar, 137

16 S. Ct. at 1863. Since Plaintiff has or had alternative remedies available to him, this special factor

17 counsels against extending a Bivens damages remedy to Plaintiff’s Eighth Amendment failure to

18 protect claim.

19 Finally, the court concurs with Ziglar that the “decision to recognize a damages remedy

20 impacts governmental operations systemwide . . . includ[ing] the burdens on Government

21 employees who are sued personally, as well as the projected costs and consequences to the

22 Government itself when the tort and monetary liability mechanisms of the legal system are used

23 to bring about the proper formulation and implementation of public policies.” Ziglar, 137 S. Ct.

24 at 1858. The Supreme Court has repeatedly acknowledged the significant impact of Bivens

25

26

2 5 USC §551 et seq. (1946). The Administrative Procedure Act (APA) governs the process by

27 which federal agencies develop and issue regulations. https://www.epa.gov/laws-regulations/summary-

administrative-procedure-act (last visited February 16, 2020).

28

1 remedies on government operations. See Bush v. Lucas, 462 U.S. 367, 389 (1983) (“In all events,

2 Congress is in a far better position than a court to evaluate the impact of a new species of litigation

3 between federal employees on the efficiency of the civil service.”); Anderson v. Creighton, 483

4 U.S. 635, 638 (1987) (“[P]ermitting damages suits against government officials can entail

5 substantial social costs, including the risk that fear of personal monetary liability and harassing

6 litigation will unduly inhibit officials in the discharge of their duties.”); Schweiker v. Chilicky,

7 487 U.S. 412, 425 (1988) (“The prospect of personal liability for official acts . . . would

8 undoubtedly lead to new difficulties and expense in recruiting administrators for the programs

9 Congress has established.”).

10 The factors discussed above counsel hesitation in extending a Bivens remedy to the

11 failure to protect claims alleged in this action. Further, there is no binding authority which has

12 extended a Bivens remedy to a failure to protect claim and the Supreme Court “has made clear

13 that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar, 137 S. Ct. at

14 1857 (quoting Iqbal, 556 U.S. at 675).

15 For the foregoing reasons, the court finds that special factors counsel hesitation in this

16 context and thus, the court should decline to recognize an implied Bivens Eighth Amendment

17 failure to protect cause of action. Therefore, based on the foregoing analysis, the court finds that

18 Plaintiff fails to state a Bivens failure to protect claim under the Eighth Amendment.

19 G. Bivens is Not Available for Plaintiff’s Denial of Access to Courts Claims

20 Plaintiff alleges that his First Amendment rights were violated because he was denied

21 access to the courts when defendant Madan failed to give Plaintiff the form called Inmate

22 Accident Compensation Form after Plaintiff asked him numerous times so that Plaintiff could

23 file a claim in federal court and seek relief from his injuries. Plaintiff also appears to allege that

24 he was denied access to the courts because he did not receive a response to his BP-8 prison

25 complaint. Plaintiff’s BP-8 complaint, which is a federal document that Plaintiff submitted to

26 Counselor Reyes [not a defendant] sometime in March 2018, stated that Plaintiff filed the BP-8

27 because he was being denied pain medication for intense pain. By April 24, 2018, Plaintiff still

28 had no response to his BP-8 complaint.

1 New Context

2 As set forth above, the Supreme Court has only recognized a Bivens remedy in the context

3 of the Fourth, Fifth, and Eighth Amendments. Ziglar, 137 S. Ct. at 1860 (Supreme Court has

4 approved three Bivens claims in the past: “a claim against FBI agents for handcuffing a man in

5 his own home without a warrant; a claim against a Congressman for firing his female secretary;

6 and a claim against prison officials for failure to treat an inmate’s asthma.”) (internal citations

7 omitted). Thus, it appears that Plaintiff’s First Amendment denial of access to courts claims do

8 not fall within such contexts.

9 The Supreme Court “ha[s] never held that Bivens extends to First Amendment claims.”

10 See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends

11 to First Amendment claims.”); Iqbal, 556 U.S. at 675 (“we have declined to extend Bivens to a

12 claim sounding in the First Amendment”). Therefore, any claims pursuant to the First

13 Amendment would require an extension of Bivens, which is disfavored. In Bush, 462 U.S. 367,

14 the Supreme Court refused to extend Bivens to a First Amendment free speech and retaliatory

15 demotion claim by a federal employee against the employee’s supervisor on the ground that

16 “Congress is in a better position to decide whether or not the public interest would be served by

17 creating” a new substantive legal damages remedy in the action’s specific First Amendment

18 context. Bush, 462 U.S. at 390.

19 Therefore, the court finds that Plaintiff’s claims for denial of access to the courts and

20 failure to respond to Plaintiff’s prison complaint in violation of the First Amendment present new

21 Bivens contexts. Hence, the Court must evaluate whether special factors counsel against

22 extending the Bivens damages remedy to these new contexts.

23 Special Factors

24 Here, the court finds that special factors counsel hesitation in implying a Bivens damages

25 remedy in the context of a First Amendment claim for denial of access to the court or failure to

26 respond to prison appeals.

27 This court recently declined to find a Bivens cause of action for First Amendment

28 retaliation and denial of access to the courts claims because alternative remedies such as the

1 Bureau of Prisons administrative grievance process, a federal tort claims action, and a writ of

2 habeas corpus were available, and the actions of Congress “do not support the creation of a new

3 ///

4 Bivens claim” in the area of prisoners’ rights. Winstead v. Matevousian, 2018 WL 2021040, at

5 *2-3 (E.D. Cal. May 1, 2018)

6 The courts have found that “extending Bivens to [Plaintiff’s First Amendment claims]

7 would substantially affect government operations and unduly burden [prison] officials who must

8 defend against this suit in their personal capacities.” Schwarz, 761 F. App’x at 735 (declining to

9 extend Bivens remedies to a plaintiff’s access to courts claim under the First and Fifth

10 Amendments and a Fifth Amendment claim regarding denial of plaintiff’s request for camp

11 placement); see also Anderson, 483 U.S. at 638 (“[P]ermitting damages suits against government

12 officials can entail substantial social costs, including the risk that fear of personal monetary

13 liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”).

14 Moreover, to the extent that Plaintiff raises a constitutional claim for denial of access to

15 the courts, Plaintiff must allege that he suffered an “actual injury” that was caused by the action

16 of a specific defendant. See Lewis v. Casey, 518 U.S. 343, 354-55 (1996). To state a viable

17 claim for relief, Plaintiff must show that he suffered an actual injury, which requires “actual

18 prejudice to contemplated or existing litigation” by being shut out of court. Nevada Dep’t of

19 Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis, 518 U.S. at 348, 351);

20 Christopher v. Harbury, 536 U.S. 403, 415 (2002); Phillips v. Hust, 588 F.3d 652, 655 (9th Cir.

21 2009). The complaint should state the underlying claim in accordance with Federal Rule of Civil

22 Procedure 8(a), just as if it were being independently pursued, and a like plain statement should

23 describe any remedy available under the access claim and presently unique to it. Christopher,

24 536 U.S. 403. Plaintiff has not done so. Here, Plaintiff does not allege that the actions of any

25 defendant frustrated his efforts to pursue a nonfrivolous legal claim. See, e.g., Bounds v. Smith,

26 430 U.S. 817, 824-25 (1977); Phillips, 588 F.3d at 655.

27 Therefore, the court finds that special factors counsel hesitation in this context and, thus,

28 declines to find an implied Bivens cause of action against any of the defendants for denial of

1 access to courts under the First Amendment. See Free v. Peikar, No. 1:17-cv-00159-AWI-MJS

2 (PC), 2018 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) (“Nationwide, district courts seem to

3 be in agreement that, post-[Ziglar], prisoners have no right to bring a Bivens action for violation

4 of the First Amendment.”). Consequently, Plaintiff has failed to state a cognizable claim for

5 denial of his rights in violation of the First Amendment. Since this is a deficiency that cannot be

6 cured by amendment, the court concludes that granting leave to amend would be futile.

7 H. Bivens is Not Available for Plaintiff’s Due Process and Equal Protection

8 Claims under the Fifth Amendment

9 In the First Amended Complaint, Plaintiff seeks money damages for Defendants’

10 violation of his Fifth Amendment rights. Plaintiff appears to allege that his due process rights

11 were violated when Defendants failed to respond to his BP-8 federal prison appeal. Plaintiff

12 also claims that his Fifth Amendment equal protection rights to be treated equally like other

13 employees in similar work conditions were violated by defendant Madan when he failed to spend

14 part of his budget to purchase brand new, good quality work boots and personal protective

15 equipment for inmate employees to be safe while performing their jobs properly. (ECF No. 10

16 at 18.) Therefore, the court must determine whether Plaintiff’s due process claims attempt to

17 extend Bivens to a new context, and, if so, whether special factors counsel against such an

18 extension. Ziglar, 137 S. Ct. at 1858.

19 As set forth above, the Supreme Court has only recognized a Bivens remedy in the context

20 of the Fourth, Fifth, and Eighth Amendments. Ziglar, 137 S. Ct. at 1860 (Supreme Court has

21 approved three Bivens claims in the past: “a claim against FBI agents for handcuffing a man in

22 his own home without a warrant; a claim against a Congressman for firing his female secretary;

23 and a claim against prison officials for failure to treat an inmate’s asthma.”) (internal citations

24 omitted).

25 It appears that Plaintiff’s due process claims do not fall within such contexts. The

26 Supreme Court has not recognized a Bivens remedy for a Fifth Amendment claim for the alleged

27 failure of a prison official to provide due process or equal protection. See Buenrostro, 2017 WL

28 6033469, at *3 (declining to find an implied Bivens cause of action for Fifth Amendment due

1 process), subsequently aff’d sub nom. Luis Buenrostro v. Fajardo, 770 F. App’x 807 (9th Cir.

2 2019). Indeed, the Supreme Court has consistently declined to expand an implied right of action

3 to procedural and substantive due process claims. Vega, 881 F.3d at 1152 n.2 (discussing FDIC

4 v. Meyer, 510 U.S. at 473-74 (procedural due process)); Schweiker, 487 U.S. at 414 (procedural

5 due process); United States v. Stanley, 483 U.S. 669, 671-72 (1987) (substantive due process);

6 Chappell v. Wallace, 462 U.S. 296, 297, 304-05 (1983) (substantive due process).

7 The Ninth Circuit has extended Bivens to a Fifth Amendment procedural due process

8 claim in Lanuza, 899 F.3d 1019. However, the Supreme Court instructs that Bivens cases are

9 decided by reviewing only Supreme Court decisions. Ziglar, 137 S. Ct. at 1859. In any event,

10 Lanuza differs in a meaningful way from Plaintiff’s claims because Lanuza involved a

11 government attorney’s intentional forgery of immigration documents. See id., 899 F.3d at 1021.

12 Ziglar, 137 S. Ct. at 1859; see also Vega, 881 F.3d at 1153 (Fifth Amendment procedural due

13 process claims present new contexts under Bivens and declined to extend Bivens remedies).

14 Plaintiff alleges violations of due process in connection with Defendants’ failure to respond to

15 his BP-8 federal prison appeal and failure to be treated equally like other employees in similar

16 work conditions. These claims are unlike any that the Supreme Court has recognized in previous

17 Bivens cases, and the court finds that the Bivens remedy should not be extended in this action.

18 Moreover, Plaintiff does not have a federal constitutional right to an effective grievance

19 or appeal procedure, and the mere participation of a prison official in Plaintiff’s administrative

20 appeal process does not give rise to a federal civil rights claim against such defendant. See

21 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that a prisoner has no

22 constitutional right to an effective grievance or appeal procedure); Mann v. Adams, 855 F.2d

23 639, 640 (9th Cir. 1988) (an inmate has “no legitimate claim of entitlement to a grievance

24 procedure”); Larkin v. Watts, 300 F. App’x 501, 502 (9th Cir. Nov. 12, 2008) (a Fifth

25 Amendment due process claim arising from a prison official’s alleged improper processing of

26 administrative grievances “does not give rise to a cognizable constitutional or Bivens claim”)

27 (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3); see also Lee v.

28

1 Matevousian, 2018 WL 5603593, at *5 (E.D. Cal. Oct. 26, 2018) (a federal prisoner “cannot state

2 a due process claim based on the handling of his grievances”).

3 Further, Plaintiff’s equal protection claim bears little resemblance to the claim for gender

4 discrimination in employment recognized under the equal protection component of the Fifth

5 Amendment’s Due Process Clause in Davis, 442 U.S. 228. In that case, the female plaintiff had

6 been terminated by her employer, a United States Congressman, because the Congressman had

7 decided that Davis’ position should be filled by a male. Id., 442 U.S. at 230. The Supreme Court

8 held that Davis had no effective means other than the judiciary to raise her claim of employment

9 discrimination in federal employment. Id., 442 U.S. at 244. Subsequently, the Supreme Court

10 clarified that Bivens is a disfavored remedy, and a Bivens remedy should not be extended where

11 alternative methods of relief are available. Ziglar, 137 S. Ct. at 1857, 1863.

12 To the extent that Plaintiff could set forth factual allegations to raise a plausible claim

13 under the Due Process Clause or Equal Protection Clause of the Fifth Amendment against any

14 named defendant, he would have alternative remedies available such as pursuing his

15 administrative grievances through each level of the Bureau of Prison’s grievance procedure.

16 I. Federal Tort Claims Act (FTCA)

17 The Federal Tort Claims Act provides district courts exclusive jurisdiction over civil

18 actions against the United States for money damages “for injury or loss of property, or personal

19 injury or death caused by the negligent or wrongful act or omission of any employee” of the

20 federal government while acting within the scope of his office or employment. 28 U.S.C. §

21 1346(b). Under the FTCA, an “action shall not be instituted upon a claim against the United

22 States for money damages” unless a plaintiff has exhausted administrative remedies by filing a

23 claim with the appropriate federal agency within two years of the act or injury. 28 U.S.C. §

24 2675(a). Thus, only after an administrative claim is denied, or deem denied, may a claimant file

25 an action in federal court. Id.; see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“The

26 FTCA bars claimants from bringing suit in federal court until they have exhausted their

27 administrative remedies.”). Significantly, exhaustion of administrative remedies is jurisdictional,

28 and cannot be waived. Brady v. United States, 211 F.3d 499, 503 (9th Cir. 2000); see also Vacek

1 v. United States Postal Service, 447 F.3d 1248, 1250 (9th Cir. 2006) (“We have repeatedly held

2 that the exhaustion requirement is jurisdictional in nature and must be interpreted strictly.”).

3 However, it is subject to equitable tolling in certain instances. See United States v. Kwai Fun

4 Wong, 135 S. Ct. 1625, 1638 (2015).

5 Here, Plaintiff has provided evidence that he filed a timely tort claim with the Federal

6 Bureau of Prisons and that his claim was denied on June 20, 2018. (ECF No. 1 at 52.)

7 Accordingly, Plaintiff has sufficiently alleged fulfillment of the claim presentation requirement.

8 Also, Plaintiff has named the proper defendant, the United States, to state a claim under the

9 FTCA. The court finds that Plaintiff states cognizable claims for medical malpractice, a form of

10 negligence, against the United States under the FTCA.

11 In California, “[t]he elements of a negligence cause of action are the existence of a legal

12 duty of care, breach of that duty, and proximate cause resulting in injury.” McIntyre v. The

13 Colonies-Pac., LLC, 228 Cal. App. 4th 664, 671, 175 Cal. Rptr. 3d 440, 444 (2014).

14 Plaintiff brings a claim for medical malpractice based on allegations against defendants

15 Dr. Moore, Physician’s Assistant Ballesil, and Physician’s Assistant Altuire. Under California

16 law, as stated in Powell v. Kleinman, “[m]edical providers must exercise that degree of skill,

17 knowledge, and care ordinarily possessed and exercised by members of their profession under

18 similar circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, 83

19 Cal.Rptr.2d 145, 972 P.2d 966.) Thus, in ‘any medical malpractice action, the plaintiff must

20 establish: ‘“(1) the duty of the professional to use such skill, prudence, and diligence as other

21 members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a

22 proximate causal connection between the negligent conduct and the resulting injury; and (4)

23 actual loss or damage resulting from the professional’s negligence.” [Citation.]’” (Hanson v.

24 Grode (1999) 76 Cal.App.4th 601, 606, 90 Cal.Rptr.2d 396 (Hanson ).)” Powell v. Kleinman,

25 151 Cal. App. 4th 112, 122, 59 Cal. Rptr. 3d 618, 626 (2007).

26 The court finds that Plaintiff has stated cognizable medical malpractice claims under the

27 FTCA against the United States for failure to provide Plaintiff with appropriate pain medication

28 to treat Plaintiff’s excruciating pain.

1 J. OSHA Violations

2 Plaintiff brings a claim under the Occupational Safety and Health Act of 1970 (OSHA),

3 29 U.S.C. §§ 651 et seq. Plaintiff alleges that defendant Madan “is violating . . . OSHA’s policies

4 and regulations to protect employees from unsafe work conditions,” (ECF No. 10 at 18), and

5 “Safety Officer Marquez is . . . in clear violation of OSHA’s safety policies regarding issuing

6 inmate employees proper safety equipment to be used while working with hot water to do their

7 jobs effectively.” (ECF No. 10 at 20).

8 The federal OSHA was passed in 1970 “for the purpose of assuring ‘safe and healthful

9 working conditions’ for all private sector workers.” Cabrera v. Martin, 973 F.2d 735, 737–38

10 (9th Cir. 1992). The Ninth Circuit has held that “OSHA violations do not themselves constitute

11 a private cause of action for breach.” Crane v. Conoco Inc., 41 F.3d 547, 553 (9th Cir. 1994)

12 (citing language in 29 U.S.C. § 653(b)(4) that “nothing in this chapter shall be construed to . . .

13 enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or

14 liabilities of employers and employees”); Glanton v. Harrah’s Entm’t, Inc., 297 F. Appx. 685,

15 687 (9th Cir. 2008) (“OSHA does not provide a private cause of action” for employees to bring

16 claims in federal court based on alleged violations of its provisions or regulations) (citable for its

17 persuasive value pursuant to Ninth Circuit Rule 36–3). Rather, “OSHA creates an intra-agency

18 mechanism by which an alleged violation can be raised by a private actor, . . . suggesting that

19 Congress did not intend for OSHA–based actions to be litigated by private actors in federal

20 court.” Id. (emphasis added).

21 This ends the inquiry insofar as Plaintiff’s OSHA claim is concerned. The court shall

22 recommend that Plaintiff’s OSHA claim be dismissed with prejudice.

23 V. CONCLUSION AND RECOMMENDATIONS

24 The court finds that Plaintiff states medical claims under the Eighth Amendment and

25 malpractice claims under the FTCA against defendants Dr. Thomas Moore, Physician’s Assistant

26 Altuire, and Physician’s Assistant Ballesil, but no other claims.

27 Under Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give

28 leave to amend when justice so requires.” Here, the court previously granted Plaintiff leave to

1 amend the complaint, with ample guidance by the court. The court is persuaded that Plaintiff is

2 unable to allege any facts, based upon the circumstances he challenges, that would state

3 additional cognizable claims. “A district court may deny leave to amend when amendment would

4 be futile.” Hartmann v. CDCR, 707 F.3d 1114, 1130 (9th Cir. 2013). The court finds that the

5 deficiencies outlined above are not capable of being cured by amendment, and therefore further

6 leave to amend should not be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d

7 1122, 1127 (9th Cir. 2000).

8 Based on the foregoing, IT IS HEREBY RECOMMENDED that:

9 1. This case proceed only with Plaintiff’s medical claims under the Eighth

10 Amendment and medical malpractice claims under the FTCA, against defendants

11 Dr. Thomas Moore, Physician’s Assistant Altuire, and Physician’s Assistant

12 Ballesil, but no other claims; and

13 2. All remaining claims and defendants be DISMISSED, with prejudice, for

14 Plaintiff’s failure to state a claim upon which relief may be granted.

15 These findings and recommendations are submitted to the United States District Judge

16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

17 (14) days after the date of service of these findings and recommendations, Plaintiff may file

18 written objections with the court. Such a document should be captioned “Objections to

19 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

20 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

21 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

22 (9th Cir. 1991)).

23

IT IS SO ORDERED.

24

25 Dated: February 24, 2020 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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