Toney v. Gwathey M.D.

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 STEPHEN TONEY, Case No.: 3:18-CV-2786-WQH-KSC

BOP #68132298,

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ORDER:

Plaintiff,

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vs. (1) GRANTING DEFENDANT

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WILLIAMS’ MOTION TO DISMISS

15 PLAINTIFF’S SECOND AMENDED

L. WILLIAMS II, COMPLAINT [ECF No. 56];

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Defendant.

17 (2) DENYING AS MOOT

PLAINTIFF’S REQUEST FOR

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ENTRY OF DEFAULT [ECF No. 47,

19 at 28-29];

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(3) DENYING AS MOOT

21 PLAINTIFF’S SECOND MOTION

FOR APPOINTMENT OF COUNSEL

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[ECF No. 47, at 26-27]

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24 Stephen Toney, (“Plaintiff”), currently housed at the Western Region Detention

25 Facility in San Diego, California, is proceeding pro se and in forma pauperis in this civil

26 rights action which the Court has previously construed as arising under Bivens v. Six

27 Unknown Named Agents, 403 U.S. 399 (1971).

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1 Currently before this Court is Defendant Williams’ Motion to Dismiss Plaintiff’s

2 Second Amended Complaint, (ECF No. 47, SAC). (See ECF No. 56.) Plaintiff has filed

3 an Opposition and Williams has filed a Reply. (ECF Nos. 58, 59.) Attached to Plaintiff’s

4 Second Amended Complaint is a Second Motion for Appointment of Counsel. (See SAC

5 at 26-27). Also attached to the Second Amended Complaint are two documents Plaintiff

6 submitted apparently in response to an order to show cause issued by the Court in its order

7 on a prior motion to dismiss, (see ECF No. 46, at 15), directing Plaintiff to address the

8 apparent failure to serve two John Doe defendants (the “Doe Defendants”) named in

9 Plaintiff’s First Amended Complaint. Plaintiff describes the first document as a

10 “Declaration in Support of Proper Served Amended Complaint on the two Doe

11 Defendants,” (see SAC at 16), and the second as a “Declaration for Entry of Default”

12 against the two Doe Defendants. (See id. at 28-29).

13 Having carefully considered Defendant Williams’ Motion, Plaintiff’s Second

14 Amended Complaint, and his Opposition, the Court GRANTS Defendant’s Motion to

15 Dismiss Plaintiff’s Second Amended Complaint and DISMISSES the Second Amended

16 Complaint without further leave to amend. The Court further DENIES as moot Plaintiff’s

17 Motion for Appointment of Counsel and Plaintiff’s Request for Entry of Default against

18 the Doe Defendants.

19 I. Plaintiff’s Allegations

20 In 2018, while Plaintiff was a pretrial detainee housed at the Metropolitan

21 Correctional Center (“MCC”), he began experiencing symptoms “known to be caused by

22 Hepatitis C” “unlike []ever before.” (See SAC at 4.) Plaintiff requested treatment for his

23 symptoms, which included pain in his “liver areas; [his] lower abdomen and lower back,

24 in [his] gro[i]n, [and his] testicle[s] . . . .” (See id.) After two doctors informed him that

25 “BOP does not approve Hepatitis C treatment for detainees in pre-trial status,” Plaintiff

26 filed an administrative grievance requesting care. (See id.)

27 Plaintiff’s grievance was forwarded to Defendant Williams, the Warden of the MCC.

28 (See id.) Williams, who Plaintiff describes as a “non-medical official making medical

1 treatment” decisions, (see id. at 5), allegedly denied Plaintiff’s grievance, stating among

2 other things that Plaintiff had not provided medical records substantiating his claim that he

3 had Hepatitis C. (Id. at 4; see also id. at 20 (attaching grievance decision stating that

4 Plaintiff “provided no previous medical records to MCC San Diego”).) According to

5 Plaintiff, this response “appeared . . . to be another way to deny [him] Hepatitis C

6 treatment,” even though Plaintiff was in custody “well over the time it take[s] to receive a

7 complete round of treatment . . . .” (Id.) Plaintiff further alleges that in the decision

8 denying Plaintiff’s grievance Williams falsely stated that Plaintiff “never complained of

9 any symptom . . . .” (Id. at 6; see also id. at 20 (attaching Williams’ decision stating in

10 relevant part “[Plaintiff] also stated that [he] ha[s] no active symptoms” of Hepatitis C).)

11 In fact, Plaintiff alleges that when he met with a physician he complained of “having pain

12 around [his] liver areas,” and that he was prescribed pain medication. (See id. at 6.)

13 Plaintiff argues that Williams’ denial of his grievance violated Plaintiff’s right to

14 medical care and constitutes cruel and unusual punishment, and that as a result of the denial

15 of treatment he “ha[s] been enduring se[vere] emotional and physical pain . . . .” (Id. at 5.)

16 According to Plaintiff, Defendant Williams is aware that failing to treat Plaintiff’s Hepatitis

17 C increases his risk of “advance liver damage” as well. (Id. at 5.) Plaintiff also asserts that

18 Defendant Williams’ denial of treatment to Plaintiff constitutes “discrim[i]nation and not

19 providing [him] the equal protection of law.” (Id.) Plaintiff seeks compensatory and

20 punitive damages, as well as injunctive relief. (Id. at 8.)

21 II. Procedural History

22 Plaintiff filed this action on December 10, 2018, alleging that numerous Defendants

23 including Williams violated his right to medical care and to be free “from cruel and unusual

24 punishment” by denying him care for Hepatitis C while he was a pretrial detainee. (See

25 ECF No. 1, at 3-6.) The Court subsequently granted Plaintiff’s motion to proceed in forma

26 pauperis, screened Plaintiff’s Complaint pursuant to 28 U.S.C. Sections 1915(e)(2) and

27 1915A, and ordered the U.S. Marshal to serve the Complaint on the named Defendants.

28 (See ECF No. 7, at 9.) After Defendant Williams, together with three others, Gwathney,

1 Nolte, and Samuels, moved to dismiss pursuant to Federal Rules of Civil Procedure

2 12(b)(1) and 12(b)(6), (see ECF No. 22), Plaintiff filed a First Amended Complaint, (ECF

3 No. 25), pursuant to Federal Rule of Civil Procedure 15(a)(1)(B). The First Amended

4 Complaint largely mirrored Plaintiff’s initial Complaint, but added allegations against

5 additional Defendants, Ghayour and Noonan, who allegedly failed to provide Plaintiff with

6 adequate medical care, and the Doe Defendants, who were alleged to have participated in

7 denying Plaintiff’s administrative appeals. (See ECF No. 25, at 10-13.)

8 Defendants Gwathney, Nolte, Samuels, Williams moved to dismiss Plaintiff’s First

9 Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

10 (See ECF No. 30.) In an order granting in part and denying in part Defendants’ motion to

11 dismiss, the Court: (1) dismissed the claims against Gwathney and Nolte on the grounds

12 that they are immune from liability pursuant to the Public Health Service Act (“PHSA”),

13 42 U.S.C. Section 233; (2) dismissed a First Amendment retaliation claim against Williams

14 on the grounds that it would require an extension of Bivens contrary to the Supreme Court’s

15 decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017); (3) dismissed a deliberate indifference

16 claim against Williams for failing to allege plausibly that Williams was aware of Plaintiff’s

17 medical condition or how Williams allegedly violated Plaintiff’s constitutional rights; and

18 (4) dismissed medical care claims against Samuels on qualified immunity grounds. (See

19 ECF No. 30, at 4-13.) In addition to dismissing the aforementioned claims on Defendants’

20 motion, pursuant to 28 U.S.C. Section 1915(e)(2), the Court dismissed sua sponte

21 Plaintiff’s claims against two additional Defendants, Ghayour and Noonan, who were

22 employed by a private entity and thus were not subject to liability under Bivens. (See id.

23 at 14.) Finally, noting that “[a] review of the Court’s docket indicates that Plaintiff has

24 failed to properly serve Defendants John Doe, Appeals Coordinator and John Doe,

25 Administrative Appeal Specialist,” the Court ordered Plaintiff to show cause why the

26 claims against the Doe Defendants should not be dismissed for failure to prosecute pursuant

27 to Federal Rule of Civil Procedure 4(m). (Id. at 15.) The Court granted Plaintiff leave to

28 amend “as to his claims of deliberate indifference to serious medical need as to Defendant

1 Williams only,” and denied leave to amend as to the remaining dismissed Defendants. (See

2 id. at 16.)

3 On October 30, 2019, Plaintiff filed his Second Amended Complaint, amending his

4 allegations that Defendant Williams violated Plaintiff’s “right to medical care, Due

5 Process, and Freedom from Cruel and Unusual Punishment (sic).” (SAC at 4.) Although

6 the Second Amended Complaint does not reprise the allegations from the First Amended

7 Complaint against the Doe Defendants, Plaintiff attached several documents to the Second

8 Amended Complaint apparently in response to the Court’s order to show cause. (See SAC

9 at 9-19, 28-34.) Among these documents are USM-285 forms dated August 16, 2019 for

10 the individuals Plaintiff alleges are the Doe Defendants, J. Baltazar and Ian Connors. (See

11 id. at 12-13.) Plaintiff argues that these forms show that both Doe Defendants were

12 properly served. (See SAC at 30-31; see also id. at 12-13.)

13 Also attached to Plaintiff’s Second Amended Complaint is a “S[e]cond Motion for

14 Appointment of Counsel,” (see id. at 26-27), and a “Declaration for Entry of Default”

15 against the Doe Defendants. (See id. at 28-29.) In the latter submission, Plaintiff states

16 that the Doe Defendants “were served by the United States Marshal . . . on [sic] July 2019,”

17 and argues that because “more than 60 days has elapsed since the date on which Defendant

18 J. Baltazar [sic] the ‘Regional Director’ and Defendant Ian Connors ‘National Inmates

19 Appeals Administrator[’] herein were served with summons and a copy of plaintiffs’ [sic]

20 complaint” and they “failed to answer or otherwise defend as to Plaintiffs’ [sic]

21 Complaint,” default should be entered. (See id. at 28-29.)

22 III. Motion to Dismiss

23 A. Standard of Review

24 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss

25 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.”1

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1 Defendant Williams initially asserted that the availability of a Bivens remedy for the alleged

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1 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

2 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Bryan v. City

3 of Carlsbad, 207 F. Supp. 3d 1107, 1114 (S.D. Cal. Mar. 20, 2018).

4 Because Rule 12(b)(6) focuses on the “sufficiency” of a claim rather than the claim’s

5 substantive merits, “a court may [ordinarily] look only at the face of the complaint to decide

6 a motion to dismiss,” Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th

7 Cir. 2002), including the exhibits attached to it. See Fed. R. Civ. P. 10(c) (“A copy of a

8 written instrument that is an exhibit to a pleading is a part of the pleading for all

9 purposes.”); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555

10 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc., 583 F.2d 426

11 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the complaint may be

12 considered” in ruling on a Rule 12(b)(6) motion to dismiss.) However, exhibits that

13 contradict the claims in a complaint may fatally undermine the complaint’s allegations. See

14 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (a plaintiff can “plead

15 himself out of a claim by including . . . details contrary to his claims.”) (citing Steckman v.

16 Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (courts “are not required to

17 accept as true conclusory allegations which are contradicted by documents referred to in

18 the complaint.”))); see also Nat’l Assoc. for the Advancement of Psychoanalysis v. Cal. Bd.

19 of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (courts “may consider facts contained

20 in documents attached to the complaint” to determining whether the complaint states a

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be reviewed under the standards of review applicable to motions to dismiss pursuant to Federal Rule of

23 Civil Procedure 12(b)(1). See Mot. at 2-3. In his Reply, however, Defendant Williams disclaims reliance

on Rule 12(b)(1), instead arguing that “it would be more appropriate to dismiss the claim for failure to

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allege a cognizable claim pursuant to Fed. R. Civ. P. 12(b)(6).” See Reply at 3 n.6. This approach is

25 consistent with that of the Ninth Circuit, which has affirmed district court decisions dismissing claims

under Rule 12(b)(6) for seeking unwarranted extensions of Bivens. See, e.g., Schwarz v. Meinberg, 761

26 F. App’x 732, 733-34 (9th Cir. 2019) (affirming orders granting a motion for summary judgment and a

motion to dismiss pursuant to Rule 12(b)(6) on the grounds that plaintiff’s claims sought to inappropriately

27 extend Bivens). Although the Court agrees with Williams and follows the Ninth Circuit in applying Rule

12(b)(6) to Williams’ entire motion, the Court also notes that dismissal is warranted regardless of whether

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1 claim for relief).

2 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,

3 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

4 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007));

5 Villa v. Maricopa Cnty., 865 F.3d 1224, 1228-29 (9th Cir. 2017). A claim is facially

6 plausible “when the plaintiff pleads factual content that allows the court to draw the

7 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

8 U.S. at 678. Plausibility requires pleading facts, as opposed to conclusory allegations or

9 the “formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555,

10 which rise above the mere conceivability or possibility of unlawful conduct. Iqbal, 556

11 U.S. at 678-79; Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013). “Threadbare

12 recitals of the elements of a cause of action, supported by mere conclusory statements, do

13 not suffice.” Iqbal, 556 U.S. at 678. While a pleading “does not require ‘detailed factual

14 allegations,’” Rule 8 nevertheless “demands more than an unadorned, the defendant-

15 unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

16 555).

17 Therefore, “[f]actual allegations must be enough to raise a right to relief above the

18 speculative level.” Twombly, 550 U.S. at 555. “Where a complaint pleads facts that are

19 merely consistent with a defendant’s liability, it stops short of the line between possibility

20 and plausibility of entitlement to relief.” Iqbal, 556 U.S. at 678 (citation and quotes

21 omitted); accord Lacey v. Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (en banc).

22 “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual

23 content,’ and reasonable inferences [drawn] from that content, must be plausibly suggestive

24 of a claim entitling the plaintiff to relief.” Moss v. United States Secret Serv., 572 F.3d 962,

25 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).

26 B. Analysis

27 1. Bivens

28 As the Court has previously explained, because Plaintiff seeks damages for alleged

1 civil rights violations by federal officials, his claims arise under the implied federal cause

2 of action established by the Supreme Court in Bivens. (See ECF No. 46, at 1.) “In Bivens

3 v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, the Court broke new ground by

4 holding that a person claiming to be a victim of an unlawful arrest and search could bring

5 a Fourth Amendment claim for damages against the responsible agents even though no

6 federal statute authorized such a claim.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020)

7 (internal parallel citations omitted).

8 Since Bivens was decided, the Supreme Court has “only expanded this ‘implied

9 cause of action’ twice.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). First, in Davis v.

10 Passman, 442 U.S. 228 (1979), the Court recognized a Bivens remedy in the context of a

11 Fifth Amendment claim based on gender discrimination. See Abbasi, 137 S. Ct. at 1854.

12 Second, in Carlson v. Green, 446 U.S. 14, 24-25 (1980), the Court expanded Bivens to

13 Eighth Amendment inadequate medical care claims raised by a federal prisoner’s

14 decedents. Abbasi, 137 S. Ct. at 1854 (citing Carlson, 446 U.S. at 24-25 (concluding that

15 “[a] federal official contemplating unconstitutional conduct [in the context of an Eighth

16 Amendment] medical care [claim] . . . must be prepared to face the prospect of a Bivens

17 action.”)).

18 In Ziglar v. Abbasi, the Court made clear that “expanding the Bivens remedy is now

19 a ‘disfavored’ judicial activity.” 137 S. Ct. at 1857 (citing Iqbal, 556 U.S. at 675); see also

20 Hernandez, 140 S. Ct. at 742-43 (“We have stated that expansion of Bivens is ‘a disfavored

21 judicial activity,’ and have gone so far as to observe that if ‘the Court’s three Bivens cases

22 [had] been . . . decided today,’ it is doubtful that we would have reached the same

23 result . . . .” (quoting Abbasi, 137 S. Ct. at 1856-57) (internal citations and quotation marks

24 omitted) (alterations in original)). Accordingly, when asked to extend Bivens, courts must

25 engage in a two-step inquiry. See Hernandez, 140 S. Ct. at 743. “We first inquire whether

26 the request involves a claim that arises in a ‘new context’ or involves a ‘new category of

27 defendants.’” Id. (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). The

28 term “new context” is broad, and refers to claims that are “‘different in a meaningful way

1 from previous Bivens cases decided by [the Supreme] Court.’” See id. (quoting Abbasi,

2 137 S. Ct. at 1859). “A case might differ in a meaningful way because of the rank of the

3 officers involved; the constitutional right at issue; the generality or specificity of the official

4 action; the extent of judicial guidance as to how an officer should respond to the problem

5 or emergency to be confronted; the statutory or other legal mandate under which the officer

6 was operating; the risk of disruptive intrusion by the Judiciary into the functioning of the

7 other branches; or the presence of potential special factors that previous Bivens cases did

8 not consider.” Abbasi, 137 S. Ct. at 1860. Second, if the claim arises in a new context, the

9 Court must then ask whether there are “‘special factors counseling hesitation’” in extending

10 Bivens “‘in the absence of affirmative action by Congress.’” Id. at 1857 (quoting Carlson,

11 446 U.S. at 18). In deciding whether “special factors exist, “the inquiry must concentrate

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

13 consider and weigh the costs and benefits of allowing a damages action to proceed.” Id.

14 at 1857-58.

15 Williams argues that Plaintiff’s claims present a new Bivens context, and that special

16 factors counsel against extending Bivens to cover Plaintiff’s allegations. As outlined

17 above, Plaintiff’s claims stem from Williams’ denial of Plaintiff’s grievance seeking

18 treatment for Hepatitis C while Plaintiff was a pre-trial detainee, which Plaintiff alleges

19 deprived him of the rights to medical care and to be free from cruel and unusual

20 punishment, due process, and equal protection. (See SAC at 4.) Specifically, Plaintiff

21 alleges that after two doctors at the MCC informed him that “BOP does not approve

22 Hepatitis C treatment for detainees in pre-trial status,” he filed a grievance request that was

23 reviewed and denied by Williams. (See id.) Plaintiff takes issue with Williams’ ultimate

24 decision, arguing that it resulted in him “endur[ing] severe pain for over one year,” but also

25 the reasoning Williams used, contending that certain factual assertions contained in

26 Williams’ written decision were incorrect. (See id. at 5-6.)

27 Because Plaintiff is a pre-trial detainee alleging that federal officials violated his

28 rights to medical care and due process, and his right to be free from cruel and unusual

1 punishment, his claims arise under the Fifth, not the Eighth Amendment. See, e.g., Kost v.

2 Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (applying Fifth Amendment Due Process

3 Clause to federal pretrial detainees’ inadequate medical care claims); see also Bell v.

4 Wolfish, 441 U.S. 520, 530, 535 (1979) (holding that the Fifth Amendment’s Due Process

5 Clause prohibits subjecting federal pretrial detainees to conditions of confinement that

6 “amount to punishment”). As Williams acknowledges, of the cases in which the Supreme

7 Court has previously extended Bivens, Plaintiff’s claims most closely resemble those at

8 issue in Carlson. (See ECF No. 56, at 16.)

9 In Carlson, a prisoner alleged that prison officials “being fully apprised of the gross

10 inadequacy of medical facilities and staff” at a federal correctional facility “and of the

11 seriousness of [the prisoner’s] chronic asthmatic condition, nonetheless kept him in that

12 facility against the advice of doctors, failed to give him competent medical attention for

13 some eight hours after he had an asthmatic attack, administered contra-indicated drugs

14 which made his attack more severe, attempted to use a respirator known to be inoperative

15 which further impeded his breathing, and delayed for too long a time his transfer to an

16 outside hospital.” 446 U.S. at 17. The Supreme Court concluded that this conduct

17 supported a Bivens claim against the responsible officials under the Eighth Amendment.

18 See id. at 17 & n.1.

19 In ruling on the motion to dismiss Plaintiff’s First Amended Complaint, the Court

20 held that Plaintiff’s claims against BOP Director Samuels “for implementing the ‘Hepatitis

21 C treatment guidelines that all BOPs under [Samuels’] jurisdiction must [abide] by’” was

22 sufficiently similar to the claims in Carlson that Plaintiff did not allege a “‘new Bivens

23 context.’” (See ECF No. 46, at 7 (“Here, while the appropriate constitutional claim is one

24 brought under the Fifth Amendment rather than the Eighth Amendment . . . the Court finds

25 that a claim of deliberate indifference to a serious medical need through the denial of a

26 treatment based on a policy while incarcerated or detained is sufficiently similar to the

27 claims raised in Carlson. Therefore, the Court does not find that Plaintiff’s claim against

28 Samuels alleges a ‘new Bivens context.’” (quoting Abassi, 137 S. Ct. at 1864)).) There are

1 important differences, however, between the claims at issue in this motion and those

2 asserted by the prisoner in Carlson and by Plaintiff against BOP Director Samuels in the

3 First Amended Complaint.

4 First, Williams’ degree of involvement in the alleged denial of medical care is

5 different from the officials in Carlson or Defendant Samuels. Unlike Williams, the

6 defendant prison officials in Carlson disregarded the advice of doctors, failed to provide

7 competent medical care, and delayed the prisoner’s transfer to a hospital. See Carlson, 446

8 U.S. at 17 & n.1. Likewise, Plaintiff alleged in the First Amended Complaint that BOP

9 Director Samuels was “responsible for implementing the ‘Hepatitis C treatment guidelines

10 that all BOPs under his jurisdiction must [abide] by.’” (ECF No. 46, at 6 (quoting First

11 Am. Compl. at 9).) Williams, however, is not alleged to have been directly involved in the

12 decision to deny Plaintiff access to Hepatitis C treatment while in pre-trial status, nor did

13 he implement a BOP-wide policy of denying such treatment to pre-trial detainees. (See

14 SAC at 4-5.) Rather, Williams, a non-medical official, allegedly followed existing BOP

15 policy and the decisions of medical professionals like Drs. Gwathney and Nolte—decisions

16 that Plaintiff does not allege were medically unreasonable. See Hayes v. Snyder, 546 F.3d

17 516, 527 (7th Cir. 2008) (noting that “non-medical officials are entitled to defer to the

18 professional judgment of the facility’s medical officials” while rejecting allegations of

19 deliberate indifference against non-medical officials who reviewed plaintiff’s

20 administrative grievances); cf. Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004)

21 (“[A] mere ‘difference of medical opinion . . . [is] insufficient, as a matter of law, to

22 establish deliberate indifference” (quoting Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

23 1996))). Second, and relatedly, Plaintiff’s claims arise not from Williams directly denying

24 medical care to Plaintiff, but from Williams’ denials of Plaintiff’s grievance—a factor that

25 further distinguishes Plaintiff’s claim from the claim at issue in Carlson. See Cunningham

26 v. Milusnic, No. 5:19-cv-01244-JFW (AFM), 2019 WL 6435130, at *3 (C.D. Cal. Oct. 9,

27 2019) (concluding that Fifth Amendment Due Process Clause claims for, among other

28 things, failing to respond to grievances or address prisoner complaints, were “unlike any

1 that the Supreme Court has recognized in previous Bivens cases . . . .”); cf. Martinez v. U.S.

2 Bureau of Prisons, No. 5:15-cv-02160-TJH (AFM), 2019 WL 5432052, at *8-9 (C.D. Cal.

3 Aug. 20, 2019) (concluding that a claim for failure to treat a prisoner’s hypertension

4 presented a new Bivens context because “the alleged deprivation is demonstrably different

5 in kind and severity from that of Carlson” and due to the availability of administrative

6 remedies”). Finally, despite Plaintiff’s efforts to recharacterize Williams’ actions as

7 “discrimination” that “do[es] not have anything to do with Warden Williams” denying his

8 grievance, (see ECF No. 58, at 10), such equal protection claims are even further afield

9 from the Supreme Court’s prior Bivens cases. See Van Gessel v. Moore, No. 1:18-cv-

10 01478-DAD-GSA-PC, 2020 WL 905216, at *14-15 (E.D. Cal. Feb. 25, 2020) (“Plaintiff’s

11 equal protection claim bears little resemblance to the claim for gender discrimination in

12 employment recognized under the equal protection component of the Fifth Amendment’s

13 Due Process Clause in Davis . . . .” (citation omitted)).

14 As the Supreme Court has explained, even if a case has “significant parallels” to

15 previous Bivens cases and would result in only a “modest extension” of Bivens, it

16 nevertheless arises in a new context. See Abbasi, 137 S. Ct. at 1864. Thus, the Court finds

17 that the first prong of Abbasi is satisfied, and that Plaintiff’s claims arise in a new Bivens

18 context. Accordingly, the Court must analyze whether there are “‘special factors

19 counseling hesitation’” against extending Bivens “‘in the absence of affirmative action by

20 Congress.’” Id. at 1857 (quoting Carlson, 446 U.S. at 18).

21 In deciding whether “special factors exist, “the inquiry must concentrate on whether

22 the Judiciary is well suited, absent congressional action or instruction, to consider and

23 weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. As

24 the Ninth Circuit has observed, the presence of an “alternative remedial structure limits

25 [courts’] authority to infer a new Bivens cause of action.” Luis Buenrostro v. Fajardo, 770

26 F. App’x 807, 808 (9th Cir. 2019). In Luis Buenrostro, the Ninth Circuit found that “an

27 alternative remedial structure [to Bivens] exists, including through the Bureau of Prisons

28 administrative grievance process.” 770 F. App’x at 808. If, as the Ninth Circuit has

1 concluded, the administrative grievance process is an alternative remedial structure

2 limiting the ability of Courts to infer a Bivens cause of action, then it would be puzzling if

3 Plaintiff, dissatisfied with the results of that alternative process, could now bring a Bivens

4 claim based on the grievance process. Cf. Vega v. United States, 881 F.3d 1146, 1155 (9th

5 Cir. 2018) (“[N]o court has held that the plaintiff’s lack of success . . . while pursuing

6 alternative remedies provides a basis for Bivens relief.”); Larkin v. Watts, 300 F. App’x

7 501, 502 (9th Cir. Nov. 12, 2008) (improperly processing administrative grievances “does

8 not give rise to a cognizable constitutional or Bivens claim”). Additionally, even if a

9 damages remedy is unavailable, Plaintiff and other prisoners who believe their rights are

10 being violated by prison officials or BOP policies still may bring claims for declaratory or

11 injunctive relief outside of Bivens. See 18 U.S.C. § 3626; Malesko, 534 U.S. at 74

12 (“[U]nlike the Bivens remedy, which [has] never [been] considered a proper vehicle for

13 altering an entity’s policy, injunctive relief has long been recognized as the proper means

14 for preventing entities from acting unconstitutionally.”). Thus, Plaintiff’s assertions that

15 “Bivens is the only [l]aw I can use to challenge my claim,” are incorrect. (ECF No. 58, at

16 6.)

17 Because “any alternative, existing process for protecting the [Plaintiff’s] interest

18 amounts to a convincing reason for the Judicial Branch to refrain from providing a new

19 and freestanding remedy in damages,” the Court concludes that special factors counsel

20 against extending a Bivens remedy to Plaintiff’s claims. See Wilkie v. Robins, 551 U.S.

21 537, 550 (2007). Accordingly, Williams’ motion to dismiss is GRANTED.

22 2. Failure to State a Claim

23 Even assuming that Plaintiff’s allegations do not seek an improper extension of

24 Bivens, Plaintiff nevertheless fails to state a cognizable claim.

25 “In the limited settings where Bivens does apply, the implied cause of action is the

26 ‘federal analog to suits brought against state officials under Rev. Stat. § 1979, 42 U.S.C.

27 § 1983.’” Iqbal, 556 U.S. at 675-76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2

28 (2006)). Plaintiffs who seek to challenge the sufficiency of medical treatment provided

1 while in pretrial detention pursuant to 42 U.S.C. Section 1983 must allege facts sufficient

2 to show that:

3 (i) [each] defendant made an intentional decision with respect to the

conditions under which [he] was confined; (ii) those conditions put [him] at

4

substantial risk of suffering serious harm; (iii) [each] defendant did not take

5 reasonable available measures to abate that risk, even though a reasonable

official in the circumstances would have appreciated the high degree of risk

6

involved—making the consequences of the defendant’s conduct obvious; and

7 (iv) by not taking such measures, [each] defendant caused [his] injuries.

8 Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018); see also Bell, 441 U.S.

9 at 535 (holding that when considering the conditions of pretrial detention, courts consider

10 whether the conditions amount to punishment); cf. Toguchi, 391 F.3d at 1057 (prison

11 officials act with deliberate indifference under the Eighth Amendment only if they know

12 of and disregard an excessive risk to the prisoner’s health); see also Blankenship v. Shinn,

13 696 F. App’x 237-38 (9th Cir. 2017) (affirming dismissal of federal pretrial detainee’s

14 inadequate medical care claims pursuant Bivens because, “under any potentially applicable

15 standard, [plaintiff] failed to allege facts sufficient to show that [defendant] knew of or

16 disregarded an excessive risk to [plaintiff’s] back problem.”).

17 In dismissing Plaintiff’s claims against Defendant Williams in the First Amended

18 Complaint, the Court noted that “[w]hile Plaintiff contends that Williams denied his

19 administrative grievance seeking medical treatment, he offers no other factual allegations

20 regarding Williams. Plaintiff does not allege that Williams had any specific factual

21 knowledge regarding his medical condition. Moreover, Plaintiff fails to explain how

22 Williams violated his constitutional rights through his ‘own misconduct.’” (ECF No. 46,

23 at 11 (citing Iqbal, 556 U.S. at 677).) In the Second Amended Complaint, Plaintiff alleges

24 that “William[s] is a non-medical official making medical treatment conditions from that

25 being said William[s] have to have knowledge of the risk of advance liver damage I face

26 at presents and in the future . . . .” (SAC at 5 (errors in original).) Elsewhere, Plaintiff

27 alleges that Williams misstated the contents of various medical records he reviewed in

28 deciding Plaintiff’s administrative grievance, and that “since Warden William[s] is allowed

1 to make medical decisions, have had to are [sic] should by me not[] receiving treatment it

2 puts my illness to be in jeopardy of advance liver damage now and in the future.” (Id. at 6

3 (errors in original).)

4 These allegations fail to state a claim against Williams because “the mere

5 participation of a prison official in plaintiff’s administrative appeal process does not give

6 rise to a federal civil rights claim against such defendant.” Cunningham, 2019 WL

7 6435130; see also Lee v. Matevousian, No. 1:18-cv-00169-GSA-PC, 2018 WL 5603593,

8 at *5 (E.D. Cal. Oct. 26, 2018) (“[A] prisoner cannot state a due process claim based on

9 the handling of his grievances.”). This is because, as the Ninth Circuit has explained,

10 “inmates lack a separate constitutional entitlement to a specific prison grievance

11 procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see also Mann v.

12 Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There is no legitimate claim of entitlement to

13 a grievance procedure.”). The Ninth Circuit has made clear that this rule applies equally

14 to claims brought pursuant to 42 U.S.C. Section 1983 and Bivens. See Larkin, 300 F. App’x

15 at 501 (“Larkins’ claim that the defendants improperly processed his administrative

16 complaints or grievances does not give rise to a cognizable constitutional or Bivens claim”

17 (citing Ramirez, 334 F.3d at 860)); see also Fisher v. United States, No. CV 14-6499-

18 MMM (RNB), 2015 WL 5723638, at *9 (C.D. Cal. June 18, 2015) (“[T]o the extent that

19 plaintiff’s claim(s) against Warden Fox and/or Director Castillo are based on their role in

20 the denial of plaintiff’s administrative appeals, plaintiff’s allegations are insufficient to

21 state a Bivens claim against those defendants because the Ninth Circuit has held that a

22 prisoner has no constitutional right to an effective grievance or appeal procedure.”

23 (citations omitted)).

24 This rule bars Plaintiff’s claims even though the Second Amended Complaint

25 repeatedly characterizes Defendant Williams as “mak[ing] medical decisions” or “making

26 medical treatment conditions.” (See SAC at 5-6.) As the Second Amended Complaint

27 makes clear, Williams only became involved in Plaintiff’s requests for treatment “[a]fter

28 [Plaintiff] had been informed by Dr. Gwathney and Dr. Nolte that [Plaintiff] w[ould] not

1 be treated at Metropolit[a]n Correctional Center [because] BOP does not approve Hepatitis

2 C treatment for detainees in pre-trial status . . . .” (SAC at 4; see also ECF No. 58, at 3

3 (Plaintiff’s opposition to Williams’ motion, explaining that Williams became involved

4 only after the “Cheif [sic] Medical Officer,” and Dr. Gwathney told Plaintiff that he “would

5 not be treated due to [his] pre-trial custody status.”).) And other than the conclusory

6 statements about Williams making “medical decisions,” the only involvement Williams is

7 alleged to have had with Plaintiff is reviewing and denying his grievance.2 (See id. at 4-

8 6.) As other courts have held, only individuals who cause or participate in civil rights

9 violations can be held liable, and “[r]uling against a prison on an administrative complaint

10 does not cause or contribute to the violation.” See George v. Smith, 507 F.3d 605, 609-10

11 (7th Cir. 2007) (“A guard who stands and watches while another guard beats a prisoner

12 violates the Constitution; a guard who rejects an administrative complaint about a

13 completed act of misconduct does not.”). Accordingly, Plaintiff’s statements about

14 Williams making “medical decisions” are simply “unadorned, the defendant-unlawfully-

15 harmed-me accusations” that are insufficient to plead a plausible claim for relief. Iqbal,

16 556 U.S. at 678.

17 Finally, although Plaintiff repeatedly describes Williams’ actions as constituting

18 “discrimination,” he also fails to state an equal protection claim. (See, e.g., SAC at 5; ECF

19 No. 58, at 6.) The “Equal Protection Clause of the Fourteenth Amendment commands that

20 no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’

21 which is essentially a direction that all persons similarly situated should be treated alike.”

22 City of Cleburn v. Cleburn Living Ctr., 473 U.S. 432, 439 (1985). Plaintiff does not allege

23 any facts suggesting that he was treated differently from others similarly situated based on

24

25

2 Plaintiff’s opposition brief does state that “[i]t[’]s not that Warden Williams denied [his]

26 grievance request, however; he used Administration power to deny [him] Hepatitis C Medical Treatment,”

however Plaintiff does not allege any facts concerning the use of “Administration power” in the Second

27 Amended Complaint or explain how, if at all, Williams denied him treatment except indirectly through

denying Plaintiff’s grievance. (See ECF No. 58, at 6.)

28

1 his membership in a protected class, nor does he allege a classification that implicates

2 fundamental rights. See Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). As

3 a result, Plaintiff’s only remaining avenue is a “class of one” equal protection claim. See

4 N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (“When an equal

5 protection claim is premised on unique treatment rather than on a classification, the

6 Supreme Court has described it as a ‘class of one’ claim.”). “In order to claim a violation

7 of equal protection in a class of one case, the plaintiff must establish that the [defendant]

8 intentionally, and without rational basis, treated the plaintiff differently from others

9 similarly situated.” Id.; see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)

10 (“Equal protection rights are violated when (1) a person is a member of an identifiable

11 class; (2) that person is intentionally treated differently from others similarly situated; and

12 (3) there is no rational basis for the difference in treatment.”).

13 Plaintiff has not alleged any of the necessary elements of a claim for denial of equal

14 protection. Plaintiff has not alleged that he was “intentionally treated differently from

15 others similarly situated.” See Vill. of Willowbrook, 528 U.S. at 564. Plaintiff’s merely

16 alleges that Williams “discriminated” against him in some unspecified manner, or at best,

17 that he was intentionally treated differently from individuals who were not in pretrial

18 detention. (See SAC at 5 (“William[s’] denial can also be noted in the discrimination and

19 not providing me the equal protection of law.”).) These conclusory allegations are

20 insufficient. See, e.g., George v. Uribe, No. 11-CV-70 JLS (RBB), 2012 WL 993243, at

21 *6 (S.D. Cal. Mar. 23, 2012) (concluding that allegations that defendants “intentionally

22 treated Plaintiff differently from others” who participated in a prison riot was insufficient

23 without supporting facts). Additionally, Plaintiff fails to allege any facts from which the

24 Court could conclude that Williams’ actions were irrational or lacked a legitimate

25 penological interest. See Barbarin v. Dep’t of Corrs. & Rehab., No. 3:19-cv-1714-JAH-

26 RBB, 2019 WL 5454435, at *4 (S.D. Cal. Oct. 24, 2019) (plaintiff “fail[ed] to allege any

27 facts from which the Court could conclude that [defendants’] policy . . . lacks a rational or

28 penological interest.”).

1 Accordingly, Defendant Williams’ Motion to Dismiss the claims against him for

2 failing to state a claim is GRANTED.3

3 C. Leave to Amend

4 Because Plaintiff has already had the opportunity to amend in response to both

5 Defendants’ first motion to dismiss, and the Court’s order on Defendants’ second motion

6 to dismiss to no avail, and given the application of the Supreme Court’s decision in Abbasi

7 to Plaintiff’s claims against Defendant Williams as outlined above, the Court finds that

8 granting further leave to amend would be futile. See Gonzalez v. Planned Parenthood, 759

9 F.3d 1112, 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial

10 of . . . leave to amend.’”) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995));

11 Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (“[W]here the

12 plaintiff has previously been granted leave to amend and has subsequently failed to add the

13 requisite particularity to its claims, [t]he district court’s discretion to deny leave to amend

14 is particularly broad.” (internal quotation marks omitted) (second alteration in original)).

15 The Court also finds that granting leave to amend with respect to the Doe Defendants,

16 against whom Plaintiff has not alleged any claims in the Second Amended Complaint,

17 would be futile since they, like Williams, are allegedly to have violated Plaintiff’s rights

18 solely through their denials of his administrative appeals.

19 IV. Plaintiff’s Request for Entry of Default

20 In its order on Defendants’ prior motion to dismiss the Court noted that

21 “the . . . docket indicates that Plaintiff has failed to properly serve Defendants John Doe,

22 Appeals Coordinator and John Doe, Administrative Appeal Specialist,” and ordered

23 Plaintiff to show cause why his claims against these Defendants should not be dismissed

24

25

26 3 Because the Court has found that Defendant Williams is entitled to dismissal as to all of Plaintiff’s

claims, it need not reach any issues regarding qualified immunity. See Saucier v. Katz, 533 U.S. 194, 201

27 (2001) (“If no constitutional right would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.”).

28

1 for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m). (See ECF No.

2 46, at 15.) Plaintiff subsequently filed his Second Amended Complaint, attaching a

3 “Declaration In Support of Proper Served [sic] Amended Complaint on the two Doe

4 Defendants” and completed USM-285 forms for the individuals, J. Baltazar and Ian

5 Connors, dated August 16, 2019 that he argues show that both were properly served. (See

6 SAC at 30-31; see also id. at 12-13.) Also attached to Plaintiff’s Second Amended

7 Complaint is a “Declaration for Entry of Default” against the Doe Defendants. (See id. at

8 28-29.) In it, Plaintiff states that the Doe Defendants “were served by the United States

9 Marshal . . . on [sic] July 2019,” and argues that because “more than 60 days has elapsed

10 since the date on which Defendant J. Baltazar [sic] the ‘Regional Director’ and Defendant

11 Ian Connors ‘National Inmates Appeals Administrator[’] herein were served with

12 summons and a copy of plaintiffs’ [sic] complaint” and they “failed to answer or otherwise

13 defend as to Plaintiffs’ [sic] Complaint,” default should be entered. (See id. at 28-29.) The

14 Court construes this document as a request for entry of default against the Doe Defendants.

15 Contrary to Plaintiff’s characterization, the Doe Defendants were not served in July

16 2019. Although the Marshal’s Service first mailed the request for waiver of service to

17 Defendant Baltazar on August 30, 2019, service was not (and could not be) effected merely

18 by mailing that form. See Fed. R. Civ. P. 4(d)-(e) (specifying rules of waiver of service of

19 process, which may be accomplished by mail, and service of process, which is required in

20 the absence of a waiver and may not ordinarily be effected by mail). A notation on the

21 form states that on October 28, 2019, “per legal [Baltazar] no longer employed there will

22 forward to US Armed Forces.” (See ECF No. 49, at 1.) Another request for waiver of

23 service was sent that day, evidently to a more current address. (Id. at 2.) On November

24 14, 2019, Baltazar signed and returned that waiver form, which stated that “I [Baltazar]

25 understand that a judgment may be entered against me . . . if an answer or motion under

26 Rule 12 is not served . . . within 60 days after October 28, 2019,” but by the time he agreed

27 to waive service no answer or motion was required from him because Plaintiff’s operative

28 complaint was the Second Amended Complaint, which contains no claims against him.

1 See Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“[A]n

2 amended complaint supersedes the original, the latter being treated thereafter as non-

3 existent.”). As a result, Plaintiff’s “Declaration for Entry of Default” against Defendant

4 Baltazar is DENIED as moot.

5 Although the facts are somewhat different with respect to Defendant Connors, the

6 result is the same. According to a proof of service form, Defendant Connors was personally

7 served with the summons and complaint on October 2, 2019. (See ECF No. 54, at 2; but

8 see ECF No. 56, at 2 n.6 (Government’s brief asserting without explanation that “Mr.

9 Connors has not yet been served.”).) Assuming that Defendant Connors was served with

10 the summons and complaint on that date, he had 21 days to file an answer or responsive

11 motion. See Fed. R. Civ. P. 12(a)(1)(A)(i). Defendant Connors did not, however, file a

12 responsive pleading or motion on or before October 23, 2019. (See ECF No. 56, at 2 n.6

13 (noting that the Assistant United States Attorney representing Defendant Williams

14 “recently received permission to represent . . . Mr. Connors in [his] individual capacit[y],”

15 and arguing that because “the SAC does not allege any claims against [him] . . . , there is

16 nothing for [him] . . . to respond to.”).) Even if these actions constituted a default at the

17 time, however, Plaintiff’s decision to file a Second Amended Complaint shortly after

18 October 23, 2019 omitting any claims against Defendant Connors rendered any request for

19 entry of default against Defendant Connors moot. See, e.g., ThermoLife Int’l, LLC v.

20 Sechel Holdings, Inc., No. CV 14-2291-PHX-JAT, 2015 WL 1521779, at *1 (D. Ariz. Apr.

21 3, 2015) (concluding that filing an amended complaint renders “a default based on the

22 original complaint . . . ineffectual and non-existent” and thus denying a motion for default

23 judgment as moot); see also Ogunsalu v. Nair, 264 F. App’x 672, 674 (9th Cir. 2008)

24 (affirming denial of motion for entry of default judgment where plaintiff’s subsequent

25 filings superseded the original complaint). Accordingly, Plaintiff’s “Declaration for Entry

26 of Default” against Defendant Connors is DENIED as moot as well.

27 ///

28 ///

1 Second Motion for Appointment of Counsel

2 Because the Court dismisses Plaintiff’s Second Amended Complaint without further

3 || leave to amend, Plaintiffs motion for appointment of counsel, (See SAC at 26-27), is moot,

4 is therefore DENIED.

5 || VI. Conclusion and Orders

6 Accordingly, the Court:

7 (1) GRANTS Defendant Williams’ Motion to Dismiss Plaintiff's claims (ECF

8 || No. 56);

9 (2) DENIES as moot Plaintiff's Request for Entry of Default against the Doe

10 || Defendants (SAC at 28-29);

11 (3) DENIES as moot Plaintiff's Second Motion for Appointment of Counsel

12 ||(SAC at 26-27); and

13 (4) DENIES further leave to amend as futile. See Schmier v. U.S. Court of

14 || Appeals for the Ninth Circuit, 279 F.3d 817, 824 (9th Cir. 2002) (recognizing that “[fJutility

15 || of amendment” is a proper basis for dismissal without leave to amend).

16 The Clerk shall enter judgment accordingly and close the file.

17 IT IS SO ORDERED.

18 || Dated: April 20, 2020 itt Z. A a

19 Hon. William Q. Hayes

0 United States District Court

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