Fernandez v. MCC

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6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

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9 MARCELO LARIOS FERNANDEZ Case No.: 3:20-cv-01265-GPC-AHG

BOP #87515-298,

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ORDER:

Plaintiff,

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vs. 1) DISMISSING SECOND

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AMENDED AND SUPPLEMENTAL

METROPOLITAN CORRECTIONAL

13 SECOND AMENDED COMPLAINTS

CENTER; C/O SANDOVAL,

FOR FAILING TO STATE A CLAIM

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Defendants. PURSUANT TO 28 U.S.C. § 1915(e)(2)

15 AND 28 U.S.C. § 1915A(b)

[ECF Nos. 20, 22]

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17 2) DENYING REQUEST FOR U.S.

MARSHAL SERVICE AS

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PREMATURE [ECF No. 25]

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AND

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21 3) GRANTING LEAVE TO FILE

THIRD AMENDED COMPLAINT

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24 Plaintiff Marcelo Larios Fernandez (“Plaintiff”), currently convicted, but awaiting

25 sentence at the Otay Mesa Detention Center in San Diego, California,1 is proceeding pro

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1 Plaintiff was arrested on September 16, 2019, at the San Ysidro Port of Entry by a Customs and Border

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1 se and in forma pauperis (“IFP”) in this civil action pursuant to Bivens v. Six Unknown

2 Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

3 I. Procedural History

4 In both his original and Amended Complaints, Plaintiff sought $840,000 in general

5 and punitive damages against the Metropolitan Correctional Center (“MCC”) based on

6 claims that unidentified correctional officers or “C/Os” there “abused their power” and

7 inflicted “cruel and unusual punishment” upon him while he was “going to court” on

8 October 14 or 15, 2019. See Compl., ECF No. 1 at 2‒3, 5; Amend. Compl., ECF No. 3 at

9 1‒3, 7.

10 More than a year ago, on September 14, 2020, the Court granted Plaintiff’s Motion

11 to Proceed IFP, but dismissed his Amended Complaint sua sponte pursuant to 28 U.S.C.

12 § 1915(e)(2) and § 1915A(b). See ECF No. 4. The Court liberally construed Plaintiff’s

13 claims to arise under Bivens instead of 42 U.S.C. § 1983 as his Amended Complaint

14 alleged, because he sought monetary damages against unidentified federal, not state

15 actors. See id. at 6‒8. However, because Plaintiff named only the MCC as a Defendant,

16 his Amended Complaint was dismissed for failing to state a claim upon which Bivens

17 relief could be granted. Id. at 8‒9. The Court granted Plaintiff 45 days leave in which to

18 file a Second Amended Complaint that corrected his pleading deficiencies, but cautioned

19 that should he fail to amend in compliance with its Order, and specifically, identify the

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22 and 960. See United States v. Larios-Fernandez, 3:19-cr-04102-BAS-1. See ECF No. 1 (“Complaint”).

On September 23, 2019, he was ordered detained pending trial in that case. Id., ECF No. 10. The case was

23 dismissed on the government’s oral motion on January 10, 2020. Id., ECF No. 26. On January 9, 2020,

however, Plaintiff was indicted by a federal grand jury on one count of importation of heroin in violation

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of 21 U.S.C. §§ 952 and 960 in the related case entitled United States v. Marcelo Larios-Fernandez, 3:20-

25 cr-0162-BAS-1. See id., ECF Nos. 1, 2; Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (A court

“‘may take notice of proceedings in other courts, both within and without the federal judicial system, if

26 those proceedings have a direct relation to matters at issue.’”) (quoting Bennett v. Medtronic, Inc., 285

F.3d 801, 803 n.2 (9th Cir. 2002)). Plaintiff entered a Change of Plea to a superseding Information on

27 February 8, 2021, and a sentencing hearing date is currently set for October 18, 2021, before the Honorable

Cynthia Bashant. See United States v. Marcelo Larios-Fernandez, 3:20-cr-0162-BAS-1 (ECF Nos. 47‒

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1 individual MCC officers alleged to have assaulted him, his case would be dismissed. Id.

2 at 8‒10. On November 12, 2020, two weeks after the time to amend expired, but before

3 the Court entered a final dismissal and clerk’s judgment, Plaintiff submitted a letter

4 requesting an extension of time in which to amend. See ECF No. 6 at 1.

5 On November 17, 2020, the Court granted Plaintiff’s request for more time to

6 amend, and ordered him to file his Second Amended Complaint on or before December

7 18, 2020. See ECF No. 7 at 3-4. Plaintiff did not comply. Instead, on December 18, 2020,

8 he submitted another letter requesting an extension of time and asking for help

9 identifying the Defendants. See ECF No. 9 at 1.

10 On January 7, 2021, the Court granted Plaintiff’s second motion for an extension

11 of time to amend, but denied his request for assistance identifying the MCC officers he

12 seeks to sue. See ECF No. 10 at 4. Plaintiff was ordered to file his Second Amended

13 Complaint no later than March 1, 2021, and explicitly advised that no further extensions

14 of time would be granted. Id. at 5. But on February 26, 2021, Plaintiff filed a third motion

15 requesting an extension of time, this time claiming he needed 60 more days to “access to

16 the computer [at MCC] for case law.” See ECF No. 13 at 1‒2. On March 9, 2021, the

17 Court once again granted Plaintiff’s request and gave him until May 10, 2021 to submit

18 his pleading, but cautioned that his requests for extension of time “must end somewhere.”

19 Id. at 4.

20 In lieu of amendment, on April 13, 2021, Plaintiff filed another motion, this time

21 requesting expedited discovery. See ECF No. 19. But Magistrate Judge Goddard quickly

22 denied Plaintiff’s request as premature, in part because he did not show good cause or

23 establish that his “yet-to-be-filed amended complaint would not be dismissed on other

24 grounds.” See ECF No. 17 at 5 (citing Wakefield v. Thompson, 177 F. 3d 1160, 1163 (9th

25 Cir. 1999); Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980)).

26 A week later, on April 22, 2021, Plaintiff filed a fourth motion requesting

27 extension of time to amend. See ECF No. 18. Plaintiff claimed he was “still waiting” for

28 a response to his medical records request from the Health Services Unit at MCC, and

1 believed he would have “better luck” discovering the true names of the officers he wishes

2 to hold liable for the “beat[ing]” he claims to have sustained once MCC officials released

3 his medical records. Id. at 2. Based on these allegations, on May 4, 2021, the Court

4 granted Plaintiff one final extension of time in which to amend. See ECF No. 19.

5 On May 12, 2021, Plaintiff filed his Second Amended Complaint (“SAC”) (ECF

6 No. 20). Soon after, however, on May 20, 2022, Plaintiff filed a subsequent document

7 entitled “Second Amended (1) Violation of Constitutional Right MCC Officers (2)

8 Violation of Civil Rights by MCC Officers.” See ECF No. 22 (“Supplemental SAC”). In

9 this document, Plaintiff requests the Court’s permission to “submit[] the second part of

10 [his] Second Amended [Complaint] with one of the officers[’] name.” See id. at 4.

11 Plaintiff then identifies C/O Sandoval as “responsible for [his] beating, because he

12 “happen[ed] to be working on the floor when [he] was beat[en]” and was “the first officer

13 who began beating [him].” Id. He has since submitted a letter to the Court requesting

14 U.S. Marshal Service upon C/O Sandoval. See ECF No. 25.

15 Thus, because Plaintiff’s SAC names only the MCC as a Defendant, but his

16 Supplemental SAC now identifies both the MCC and Correctional Officer Sandoval as

17 Defendants, the Court will liberally construe and consider both pleadings together in

18 order to determine whether Plaintiff now states a plausible claim for relief pursuant to 28

19 U.S.C. § 1915(e)(2) and § 1915A(b), and concurrently decide whether U.S. Marshal

20 service pursuant to 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3) upon C/O Sandoval is

21 yet warranted.2

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2 “A document filed pro se is ‘to be liberally construed,’ and “a pro se complaint, however inartfully

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pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v.

25 Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted); Eldridge v. Block, 832 F.2d 1132, 1137 (9th

Cir. 1987) (per curiam) (noting that the liberal construction of a pro se litigant’s pleadings “is particularly

26 important in civil rights cases”); Jeffries v. Foodland Grocery, No. CV 20-00304 JMS-RT, 2020 WL

5505123, at *2 n.3 (D. Haw. Sept. 11, 2020) (liberally construing original pro se complaint, exhibits, and

27 amended complaint together for purposes of initial screening pursuant to 28 U.S.C. § 1915A, but advising

plaintiff that any future amended complaint “must be a stand-alone document without reference to other

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1 II. Screening of SAC & Supplemental SAC

2 As Plaintiff now knows, the Prison Litigation Reform Act (“PLRA”) requires the

3 Court to review complaints filed by all persons proceeding IFP and by those, like him,

4 who are “incarcerated or detained in any facility [and] accused of, sentenced for, or

5 adjudicated delinquent for, violations of criminal law or the terms or conditions of parole,

6 probation, pretrial release, or diversionary program,” at the time of filing “as soon as

7 practicable after docketing.” See 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Under these

8 statutes, the Court must sua sponte dismiss complaints, or any portions thereof, which are

9 frivolous, malicious, fail to state a claim, or which seek damages from defendants who

10 are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A; Lopez v. Smith, 203 F.3d 1122,

11 1126-27 (9th Cir. 2000) (en banc) (citing § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d

12 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).

13 A. Standard of Review

14 “The purpose of § 1915A is ‘to ensure that the targets of frivolous or malicious

15 suits need not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920

16 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681

17 (7th Cir. 2012)). “The standard for determining whether a plaintiff has failed to state a

18 claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the

19 Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v.

20 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); accord Wilhelm v. Rotman, 680 F.3d 1113,

21 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the

22 familiar standard applied in the context of failure to state a claim under Federal Rule of

23 Civil Procedure 12(b)(6)”).

24 Every complaint must contain “a short and plain statement of the claim showing

25 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations

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15.1 (“Every pleading to which an amended is … allowed by court order[] must be complete in itself

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1 are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported

2 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Bell

3 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “When there are well-pleaded

4 factual allegations, a court should assume their veracity, and then determine whether they

5 plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a

6 complaint states a plausible claim for relief [is] ... a context-specific task that requires the

7 reviewing court to draw on its judicial experience and common sense.” Id. The “mere

8 possibility of misconduct” falls short of meeting this plausibility standard. Id.; see also

9 Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

10 While a plaintiff’s factual allegations are taken as true, courts “are not required to

11 indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th

12 Cir. 2009) (internal quotation marks and citation omitted). Indeed, while courts “have an

13 obligation where the petitioner is pro se, particularly in civil rights cases, to construe the

14 pleadings liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler,

15 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1

16 (9th Cir. 1985)), it may not “supply essential elements of claims that were not initially

17 pled.” Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir.

18 1982). Even before Iqbal, “[v]ague and conclusory allegations of official participation in

19 civil rights violations” were not “sufficient to withstand a motion to dismiss.” Id.

20 B. Allegations in SAC & Supplemental SAC

21 Plaintiff’s SAC, like his original Complaint and Amended Complaints, contains

22 few facts and instead simply recounts his previous allegations and the procedural history

23 of his case. See ECF No. 20 at 2‒6. As before, Plaintiff continues to broadly conclude

24 only that several “unknown BOP officers” at MCC inflicted “cruel and unusual

25 punishment” upon him while he was “going to court” on October 14 or 15, 2019. Id. at 2.

26 On that day, Plaintiff contends he “had trouble taking off [his] jumpsuit,”

27 complained that his handcuffs were too tight, and requested they be loosened or removed.

28 Id. at 3. In response, Plaintiff alleges he was placed in a small room where “4 or 5

1 officers, including a SGT … beat [him] all over upon the back, arms, legs [and] head.”

2 Id. Only in his Supplemental SAC does Plaintiff now identify C/O Sandoval as “the first

3 officer who began the beating.” See ECF No. 22 at 4. On October 15, 2019, he was

4 transported to Paradise Valley Hospital “where he remained for more than two weeks.”

5 See ECF No. 20 at 3. Plaintiff claims to have sustained back, arm, brain, and vision

6 injuries as result of the incident, and seeks to recover $840,000 in damages “under 42

7 U.S.C. § 1983 for unreasonable and excessive use of force.” Id. at 3‒4, 9.

8 Plaintiff’s SAC and his Supplemental SAC still name the MCC as a Defendant,

9 however, and he admits that, with the exception of C/O Sandoval, he has not “able to

10 provide this court with the [other] BOP officers[’] names,” despite his efforts to discover

11 them through the production of his medical records. See ECF No. 20 at 5, 7; ECF No. 22

12 at 4.

13 C. 42 U.S.C. § 1983

14 First, as the Court noted in its previous screening Order, “[t]o establish § 1983

15 liability, Plaintiff must show both (1) deprivation of a right secured by the Constitution

16 and laws of the United States, and (2) that the deprivation was committed by a person

17 acting under color of state law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th

18 Cir. 2012); see Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020)

19 (“Pursuant to § 1983, a defendant may be liable for violating a plaintiff’s constitutional

20 rights only if the defendant committed the alleged deprivation while acting under color of

21 state law.”). Plaintiff remains in federal custody and seeks damages against the MCC for

22 injuries he alleges to have sustained at the hands of mostly unidentified MCC officers in

23 October 2019 before he entered a change of plea on February 8, 2021.3 He fails to allege

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3 Because Plaintiff was a pretrial detainee in October 2019, and he asserts a violation of his right to be

26 “free[] from cruel and unusual punishment,” see SAC at 2, the Court presumes his claims would arise

under the Fifth Amendment’s Due Process Clause, which is applicable to the federal government, see

27 Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008), and not the Eighth Amendment, which only

applies after conviction. See Bell v. Wolfish, 441 U.S. 520, 536–37 (1979) (noting that while due process

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1 that the MCC or any MCC officer alleged to have beaten him acted under color of state

2 law. Therefore, he fails to state a claim under § 1983. Tsao, 698 F.3d at 1138; Rawson,

3 975 F.3d at 747.

4 D. Bivens

5 However, because Plaintiff is proceeding pro se and his original Complaint

6 invoked federal jurisdiction pursuant to Bivens, the Court will continue to liberally

7 construe the allegations in his SAC and his Supplemental SAC to determine whether they

8 state a plausible claim for relief under Bivens and its progeny. See Iqbal, 556 U.S. at 675

9 (assuming, but not deciding, that a Fifth Amendment equal protection Bivens claim was

10 actionable in order to determine whether plaintiff’s complaint stated a claim to relief).

11 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of

12 action for damages against federal officers alleged to have violated a citizen’s

13 constitutional rights.’” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018)

14 (quoting Hernandez v. Mesa, __U.S. __, 137 S. Ct. 2003, 2006 (2017) (citation omitted)).

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

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

17 § 1983.’” Iqbal, 556 U.S. at 675‒76 (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2

18 (2006)). Thus, to state a Bivens claim for damages, the plaintiff must allege facts showing

19 that: (1) a right secured by the Constitution or laws of the United States was violated,4

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restrictions and conditions of the detention facility,” … “those conditions and restrictions [may] not

22 amount to punishment, or otherwise violate the Constitution.”); DeShaney v. Winnebago Cty. Dep’t of

Soc. Servs., 489 U.S. 189, 199 n.6 (1989) (“The Eighth Amendment applies ‘only after the State has

23 complied with the constitutional guarantees traditionally associated with criminal prosecutions....[T]he

State does not acquire the power to punish with which the Eighth Amendment is concerned until after it

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has secured a formal adjudication of guilt in accordance with due process of law.’” (quoting Ingraham v.

25 Wright, 430 U.S. 651, 671–672, n. 40 (1977)).

26 4 The Supreme Court has cautioned against expanding Bivens’ implied right of action into new contexts

beyond those already recognized. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). Although Bivens

27 applies to alleged violations of the Fourth Amendment’s protection against unreasonable searches and

seizures by federal agents, see Bivens, 403 U.S. at 391, and to inadequate medical care claims alleged by

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1 and (2) the alleged deprivation was committed by a federal actor. Van Strum v. Lawn, 940

2 F.2d 406, 409 (9th Cir. 1991).

3 To the extent Plaintiff continues to seek to hold the MCC liable for damages

4 incurred at the MCC but for allegedly wrongful acts committed by a group of mostly

5 unidentified individual officers, he fails to state a plausible claim for relief. See Iqbal,

6 556 U.S. at 679. A Bivens action may only be brought against a federal official in his or

7 her individual capacity. See Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) (a Bivens

8 action “can be maintained against a defendant in his or her individual action only, and not

9 in his or her official capacity.”). A Bivens claim cannot stand against the United States, or

10 any of its departments, offices, or agencies, like the BOP or MCC. See FDIC v. Meyer,

11 510 U.S. 471 (1994). “[T[he purpose of Bivens is to deter the officer,” not the agency. Id.

12 at 485; see also Lanuza v. Love, 899 F.3d 1019, 1029–32 (9th Cir. 2018) (noting that a

13 claim for damages based on individualized mistreatment by rank-and-file federal officers

14 is what Bivens was meant to address). Indeed, the Supreme Court has held that “[a]n

15 extension of Bivens to agencies of the Federal Government is not supported by the logic

16 of Bivens itself.” Meyer, 510 U.S. at 486. Therefore, because Plaintiff continues to name

17 the MCC as a Defendant, both his SAC and his Supplemental SAC fail to state a claim

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remains unclear whether a Bivens cause action may be pursued by a federal pretrial detainee alleging

21 excessive force. See e.g., Williams v. Fed. Bureau of Prisons, No. CV 19-00081 JMS-KJM, 2019 WL

2518444, at *2 (D. Haw. June 18, 2019) (assuming on screening that Bivens applies to pretrial detainee’s

22 excessive force and unconstitutional conditions of confinement claims). As before, this Court will

continue to assume such a claim may be actionable, and that Plaintiff is not seeking to extend a Bivens

23 remedy “to any new context or new category of defendants,” Corr. Services Corp. v. Malesko, 534 U.S.

61, 68 (2001)‒‒but it makes no express findings in that regard, and assumes so for initial screening

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purposes only. See e.g., Reid v. United States, 825 F. App’x 442, 445 (9th Cir. 2020) (finding federal

25 prisoner’s “plausibly pleaded” Eighth Amendment excessive force claims did not “present a new Bivens

context” under Abbasi, and that district court “erred by dismissing th[o]se claims pursuant to the screening

26 requirements of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A.”); Self v. Warden, MCC,

2019 WL 497731, at *4 & n.4 (S.D. Cal. Feb. 8, 2019) (assuming on screening that Bivens applies to

27 pretrial detainee medical care claims); Iqbal, 556 U.S. at 677‒78 (assuming claims actionable under

Bivens for purposes of determining whether complaint contained sufficient factual matter, accepted as

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1 upon which Bivens relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28 U.S.C.

2 § 1915A(b)(1).

3 Finally, while Plaintiff now identifies C/O Sandoval as “the first officer who began

4 the beating,” together with “four other [still unidentified] C/Os,” see ECF No. 22 at 4, he

5 nevertheless still fails to allege facts that describe what Sandoval individually did or how

6 his or her actions were “excessive” or unreasonable under the circumstances. See Iqbal,

7 556 U.S. at 676; Abbasi, 137 S. Ct. at 1860 (“[A] Bivens claim is brought against the

8 individual official for his or her own acts, not the acts of others.”); Jones v. Williams, 297

9 F.3d 930, 934 (9th Cir. 2002) (plaintiff must allege facts sufficient to plausibly show how

10 each defendant personally participated in the deprivation of his constitutional rights).

11 “[A] pretrial detainee must show … that the force purposely or knowingly used

12 against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396‒

13 97 (2015). “A court (judge or jury) cannot apply this standard mechanically.” Id. at 397.

14 Rather, “details … matter[,]” and the inquiry “requires careful attention to the facts and

15 circumstances of each particular case.” Lombardo v. City of St. Louis, Missouri, __ U.S.

16 __, 141 S. Ct. 2239, 2241 (2021) (citation omitted). Those circumstances include: “the

17 relationship between the need for the use of force and the amount of force used; the

18 extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the

19 amount of force; the severity of the security problem at issue; the threat reasonably

20 perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576

21 U.S. at 397. “Vague and conclusory allegations of official participation in civil rights

22 violations are not sufficient to withstand a motion to dismiss” or to survive screening

23 under 28 U.S.C. § 1915(e)(2) or § 1915A. Ivey, 673 F.2d at 268; see also Iqbal, 556 U.S.

24 at 678 (“Nor does a complaint suffice if it tenders naked assertions devoid of further

25 factual enhancement.” (internal quotation marks and alteration omitted)).

26 Here, while Plaintiff does offer some detail with respect to the extent of his injury,

27 see ECF No. 20 at 3, he includes no further factual allegations with respect to any of the

28 remaining Kingsley factors, and instead claims only in conclusory fashion that C/O

1 Sandoval and other “unknown BOP officers” as a group “committed a felony by beating

2 [him],” see id. at 8‒9, “assaulted [him] on the head and body,” and “inflicted ‘cruel and

3 unusual punishment’” upon him “while he was ‘going to court’ on October 14 or 15,

4 2019.” Id. at 2. Specifically lacking is any “factual content” that explains or discounts

5 Sandoval’s need to use force under the circumstances, identifies any effort or lack of

6 effort Sandoval made to temper or limit the use of force, refutes or proclaims as non-

7 existent any threat to security he may have posed during his transport, see ECF No. 20 at

8 2, or denies any active resistance on his part. Kingsley, 576 U.S. at 397; Iqbal, 556 U.S.

9 at 678; see also Williams v. Fed. Bureau of Prisons, No. CV 19-00081 JMS-KJM, 2019

10 WL 2518444, at *3 (D. Haw. June 18, 2019) (finding “conclusory claim that a tactical

11 team at FDC Honolulu used excessive force several times” on a pretrial detainee and

12 “forc[ed] [him] into SHU cells where inmates posed a violent risk to [him],” insufficient

13 to state a plausible claim for relief under Kingsley because plaintiff failed to “provide[]

14 … facts regarding when [the incident] occurred, why force was needed to move him into

15 cells with other inmates, how [he] responded, what injuries he suffered, [or] what actions

16 were taken before and after the move.”).

17 Thus, as pleaded, the Court finds Plaintiff’s SAC, considered together with his

18 Supplemental SAC, still fails to state a claim upon which Bivens relief may be granted

19 and must be dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1).

20 See Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121. At most, Plaintiff now

21 identifies Sandoval as one of the officers who assaulted him and describes his injuries. To

22 state a plausible Bivens claim for relief, however, he must provide “more than an

23 unadorned, the defendant-unlawfully-harmed-me accusation,” and plead additional

24 “factual content that allows the court to draw the reasonable inference that [Sandoval] is

25 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. His currently “threadbare

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

27 not suffice.” Id. Consequently, Plaintiff’s letter requesting U.S. Marshal service on C/O

28 Sandoval (ECF No. 25) must also be denied without prejudice as premature.

1 E. Leave to Amend

2 The Court first explained Plaintiff’s pleading deficiencies on September 14, 2020,

3 and because it was not absolutely clear he could not allege additional facts to state a

4 plausible Bivens claim for relief, granted him leave to amend. See ECF No. 4 at 9 (citing

5 Aktar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)). After having four separate

6 extensions of time to amend since, Plaintiff’s SAC and his Supplemental SAC still fail to

7 state any plausible claim for relief pursuant to 42 U.S.C. § 1983 or any Bivens claim

8 against the MCC. Therefore, the Court finds further amendment with respect to

9 Defendant MCC would be futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112,

10 1116 (9th Cir. 2014) (“‘Futility of amendment can, by itself, justify the denial of ... leave

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

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

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

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

15 amend is particularly broad.” (internal quotation marks omitted) (second alteration in

16 original)).

17 With respect to Plaintiff’s excessive force claim against C/O Sandoval pursuant to

18 Bivens, however, the Court will grant him one final opportunity to amend in order to

19 address the pleading deficiencies identified in this Order. See Akhtar, 698 F.3d at 1212

20 (“A district court should not dismiss a pro se complaint without leave to amend unless it

21 is absolutely clear that [its] deficiencies … could not be cured by amendment.”).

22 III. Conclusion and Order

23 Based on the foregoing, the Court:

24 1) DISMISSES both Plaintiff’s Second Amended and Supplemental Second

25 Amended Complaints (ECF Nos. 20, 22) for failure to state a claim upon which relief can

26 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b);

27 2) DENIES Plaintiff’s request for U.S. Marshal service upon C/O Sandoval

28 (ECF No. 25) without prejudice as premature; and

1 3) GRANTS Plaintiff 45 days leave from the date of this Order in which to file

2 ||a Third Amended Complaint which cures the deficiencies of pleading noted only with

3 || respect to C/O Sandoval and any of other individual MCC or BOP officer he is able to

4 identify as having participated in his alleged assault on October 14 or 15, 2019.

5 || Plaintiff's Third Amended Complaint must be complete by itself without reference to any

6 || of his previous complaints. Any Defendant not named and any claim not re-alleged in the

7 || Third Amended Complaint will be considered waived. See S.D. Cal. CivLR 15.1; Hal

8 || Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)

9 || (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693 F.3d

10 || 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which are not

11 |/re-alleged in an amended pleading may be “considered waived if not repled.”’).

12 If Plaintiff fails to file his Third Amended Complaint within 45 days, the Court

13 || will enter a final Order dismissing this civil action based both on his failure to state a

14 claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and

15 || § 1915A(b) and his failure to prosecute in compliance with a court order requiring

16 ||amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does

17 ||not take advantage of the opportunity to fix his complaint, a district court may convert the

18 || dismissal of the complaint into dismissal of the entire action.”’).

19 IT IS SO ORDERED.

20 ||Dated: October 18, 2021 <=

2 United States District Judge

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