Michael Fiorito v. Dr. Anderson

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

Case No. 5:18-cv-00506-JFW-KES

11 MICHAEL FIORITO,

12 Plaintiff, AMENDED REPORT AND

13 v. RECOMM ENDATION OF U.S.

MAGISTRATE JUDGE

14 DR. ANDERSON, et al.,

15 Defendants.

16

17

18 This Amended Report and Recommendation (“R&R”) is submitted to the

19 Honorable John F. Walter, United States District Judge, pursuant to the provisions

20 of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for

21 the Central District of California.

22 I.

23 INTRODUCTION

24 Michael Fiorito (“Plaintiff”), a prisoner in the custody of the federal Bureau

25 of Prisons (“BOP”), filed a pro se civil rights complaint. (Dkt. 1 [“Complaint”].)

26 The Complaint alleges that an “ongoing denial of medical care span[ning] almost 3

27 years in 3 different states at 3 different BOP facilities” violated the Eighth

28

1 Amendment’s ban on cruel and unusual punishment. (Compl. at 12.) The BOP

2 Federal Correctional Facilities (“FCIs”) at issue are FCI Gilmer in West Virginia,

3 FCI Ashland in Kentucky, and FCI Victorville II in California. Plaintiff is

4 currently housed at the United States Penitentiary (“USP”) in Atlanta, Georgia.

5 (Dkt. 14 at 1; Dkt. 15 at 21.)1

6 For the reasons explained below, it is recommended that the claims against

7 Defendants at FCI Gilmer and FCI Ashland be severed from this action and

8 transferred to the appropriate districts in West Virginia and Kentucky. It is also

9 recommended that certain claims and Defendants be dismissed without leave to

10 amend. This Amended R&R addresses Plaintiff’s objections to the initial R&R.

11 (Dkt. 15 [“Objs.”].)

12 II.

13 LEGAL STANDARDS

14 A. Screening under the Prison Litigation Reform Act (“PLRA”).

15 Under 28 U.S.C. § 1915A, the Court must screen any “complaint in a civil

16 action in which a prisoner seeks redress from a governmental entity, or from an

17 officer or employee of a governmental entity” and must dismiss any claims that are

18 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted” or

19 “seek[] monetary relief from a defendant who is immune from such relief.” 28

20 U.S.C. § 1915A(a)-(b).

21 A complaint may fail to state a claim for two reasons: (1) lack of cognizable

22 legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v.

23 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990) (as amended). In

24 determining whether a complaint states a claim on which relief may be granted, its

25

26 1 See also BOP Inmate Locator, https://www.bop.gov/inmateloc/. The Clerk

27 is directed to update Petitioner’s current mailing address on CM/ECF to the Atlanta

address reflected in his most recent filings.

28

1 allegations of material fact must be taken as true and construed in the light most

2 favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989).

3 Further, where the plaintiff is appearing pro se, the court must construe the

4 allegations of the complaint liberally and must afford the plaintiff the benefit of any

5 doubt. Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir.

6 1988). However, the liberal pleading standard only applies to a plaintiff’s factual

7 allegations. “[A] liberal interpretation of a civil rights complaint may not supply

8 essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit

9 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of

10 Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

11 Moreover, with respect to a plaintiff’s pleading burden, the Supreme Court

12 has held that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to

13 relief’ requires more than labels and conclusions, and a formulaic recitation of the

14 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550

15 U.S. 544, 55 (2007) (internal citations omitted, alteration in original). “Factual

16 allegations must be enough to raise a right to relief above the speculative level …

17 on the assumption that all the allegations in the complaint are true (even if doubtful

18 in fact).” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (To avoid

19 dismissal for failure to state a claim, “a complaint must contain sufficient factual

20 matter, accepted as true, to state a claim to relief that is plausible on its face. A

21 claim has facial plausibility when the plaintiff pleads factual content that allows the

22 court to draw the reasonable inference that the defendant is liable for the

23 misconduct alleged.”) (internal citation and quotation marks omitted).

24 B. Deliberate Indifference under the Eighth Amendment.

25 The “unnecessary and wanton infliction of pain” upon incarcerated

26 individuals under color of law constitutes a violation of the Eighth Amendment and

27 is actionable under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 104 (1976).

28 The government must provide medical care for those whom it punishes by

1 incarceration, and cannot be deliberately indifferent to the medical needs of its

2 prisoners. Id. “Deliberate indifference” can arise in the medical care itself, or

3 when prison officials “deny, delay, or intentionally interfere with medical

4 treatment.” Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988).

5 However, “[m]ere negligence in diagnosing or treating a medical condition,

6 without more, does not violate a prisoner’s Eighth Amendment rights.” Estelle,

7 429 U.S. at 106. Furthermore, a difference of medical opinion cannot support a

8 claim of deliberate indifference. Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.

9 2004). “In other words, where a defendant has based his actions on a medical

10 judgment that either of two alternative courses of treatment would be medically

11 acceptable under the circumstances, plaintiff has failed to show deliberate

12 indifference, as a matter of law.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir.

13 1996).

14 Additionally, to establish an Eighth Amendment violation, a prisoner must

15 satisfy the objective and subjective components of a two-part test. Hallett v.

16 Morgan, 296 F.3d 732, 744 (9th Cir. 2002). To meet the objective element of the

17 standard, a plaintiff must demonstrate a serious medical need. Estelle, 429 U.S. at

18 104. A serious need exists if failure to treat the injury or condition could result in

19 further significant injury or cause the unnecessary and wanton infliction of pain.

20 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006), overruled in part on other

21 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc).

22 A prison official is deliberately indifferent under the subjective element of the test

23 only if the official knows of and disregards an excessive risk to inmate health and

24 safety. Toguchi, 391 F.3d at 1057. This requires more than ordinary lack of due

25 care. Farmer v. Brennan, 511 U.S. 825, 835 (1994). “[T]he official must both be

26 aware of facts from which the inference could be drawn that a substantial risk of

27 serious harm exists, and he must also draw the inference.” Id. at 837.

28

1 C. Joinder of Multiple Defendants in the Same Action.

2 In cases of misjoinder, “On motion or on its own, the court may at any time,

3 on just terms, add or drop a party” or “sever any claim against a party.” Fed. R.

4 Civ. P. 21. “Because Rule 21 provides no standards to determine if parties are

5 misjoined, courts look to Rule 20 for guidance.” Dunbar v. Medtronic, Inc., No.

6 14-01529-RGK-AJW, 2014 WL 3056081 at *2, 2014 U.S. Dist. LEXIS 94918 at

7 *4 (C.D. Cal. June 25, 2014). Rule 20 provides that defendants may be joined in

8 one action if:

9 (A) any right to relief is asserted against them jointly, severally, or in

10 the alternative with respect to or arising out of the same transaction,

11 occurrence, or series of transactions or occurrences; and

12 (B) any question of law or fact common to all defendants will arise in

13 the action.

14 Fed. R. Civ. P. 20(a)(2). “[T]he mere fact that all Plaintiffs’ claims arise under the

15 same general law does not necessarily establish a common question of law or fact.”

16 Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997).

17 D. Dismissal or Transfer Where Venue is Improper.

18 Defendants may waive improper venue, but a court may sua sponte consider

19 whether venue is proper if the defendants have not yet appeared in the action.

20 Costlow v. Weeks, 790 F.2d 1486, 1488 (9th Cir. 1986). 28 U.S.C. § 1391, which

21 governs venue for civil actions filed in the federal courts, provides that an action

22 may be brought in:

23 (1) a judicial district in which any defendant resides, if all defendants

24 are residents of the State in which the district is located;

25 (2) a judicial district in which a substantial part of the events or

26 omissions giving rise to the claim occurred, or a substantial part of

27 property that is the subject of the action is situated; or

28 (3) if there is no district in which an action may otherwise be brought

1 as provided in this section, any judicial district in which any defendant

2 is subject to the court’s personal jurisdiction with respect to such action.

3 28 U.S.C. § 1391(b).

4 “The district court of a district in which is filed a case laying venue in the

5 wrong division or district shall dismiss, or if it be in the interest of justice, transfer

6 such case to any district or division in which it could have been brought.” 28

7 U.S.C. § 1406(a). Thus, where venue is improper, the “court has some discretion in

8 choosing between these two options [dismissal or transfer], though generally it is

9 preferred to transfer the case rather than dismissing it altogether.” Abrams Shell v.

10 Shell Oil Co., 165 F. Supp. 2d 1096, 1103 (C.D. Cal. 2001). “[D]istrict courts who

11 dismiss rather than sever must conduct a prejudice analysis, including loss of

12 otherwise timely claims if new suits are blocked by statutes of limitations.” Rush v.

13 Sport Chalet, Inc., 779 F.3d 973, 975 (9th Cir. 2015) (quotation marks and citation

14 omitted).

15 Transferring claims that are subject to dismissal under PLRA screening

16 would not be in the interest of justice under § 1406(a). See, e.g., Doe v. Mitchell,

17 No. 09-00016, 2009 WL 838050 at *4, 2009 U.S. Dist. LEXIS 29928 at *11(D.

18 Nev. Mar. 26, 2009) (“Doe’s claims against Defendants Stickney and Lindsay are

19 legally untenable, and should be dismissed rather than transferred.”); Minnfee v.

20 Assoc. Atty. Gen., No. 07-399, 2007 WL 1287880 at *2, 2007 U.S. Dist. LEXIS

21 31887 (W.D. Wash. May 1, 2007) (“[I]t would not be ‘in the interests of justice’

22 to transfer this action to a different venue because plaintiff has not adequately

23 alleged in his complaint any viable cause of action under § 1983, because it is not

24 entirely clear which district would be the proper district to receive a transfer, and

25 because transferring the action might allow plaintiff to circumvent filing

26 requirements imposed upon him by other federal district courts.”).

27

28

1 III.

2 ALLEGATIONS IN THE COMPLAINT

3 At this stage of the case, the well-pleaded factual allegations in the

4 Complaint are assumed to be true. Love, 915 F.2d at 1245. The Complaint alleges

5 as follows:

6 Plaintiff is a prisoner in federal custody. Prior to July 2015, Plaintiff was

7 housed at FCI Pekin in Illinois. (Compl. at 12 ¶ 2.) There, an orthopedic surgeon

8 named Dr. Clark treated him for ankle pain. (Id.) Dr. Clark gave Plaintiff cortisone

9 shots in his left ankle and “wrote an order that the shots should be administered

10 every 90 days[.]” (Id.) He also recommended that Plaintiff see a foot and ankle

11 specialist. (Id.)

12 A. Defendants at FCI Gilmer in West Virginia.

13 Between approximately July 2015 and July 2016, Plaintiff was housed at FCI

14 Gilmer in West Virginia. (Compl. at 12 ¶ 2.) He sought medical treatment for

15 depression, post-traumatic stress disorder (“PTSD”), and traumatic brain injury

16 (“TBI”). (Id.) Medical staff at FCI Gilmer refused to give Plaintiff cortisone shots,

17 prescribe Provigil for his depression and PTSD, or give him a lower tier bunk.

18 (Compl. at 12-14 ¶¶ 6, 9-10, 12, 22, 24.)

19 After approximately 10 months, Plaintiff was seen by a foot and ankle

20 specialist, Dr. Persaad, who recommended Plaintiff receive pain relief injections in

21 his ankle every 90 days, and prescribed an ankle brace and Voltran gel. (Compl. at

22 13-14 ¶¶ 11, 14-17, 23.) Medical staff at FCI Gilmer at first refused to order the

23 Voltran gel on the grounds that it was “non-formulary and too expensive,” but

24 eventually ordered it for Plaintiff after Dr. Persaad insisted. (Compl. at 14 ¶¶ 18-

25 20.)

26 The Complaint names the following Defendants at FCI Gilmer: (1) Dr.

27 Anderson, (2) Hospital Services Administrator (“HSA”) Weaver, and (3) Doe

28 Defendants “responsible for scheduling Plaintiff’s treatments and trips to see the

1 foot and ankle specialist in West Virginia.” (Compl. at 3.)

2 B. Defendants at FCI Ashland in Kentucky.

3 In August 2016, Plaintiff was transferred to FCI Ashland. (Compl. at 15

4 ¶ 28.) Medical staff at first refused to provide pain relief injections “stating they

5 were too expensive,” but eventually did more than a year later, in October 2017.

6 (Compl. 15, 17 at ¶¶ 30, 53.) In November 2017, medical staff “declared that

7 Plaintiff’s left ankle was fine” and thereafter refused to treat it. (Compl. at 16-17

8 ¶¶ 45, 48-52.)

9 Staff at the prison also assigned Plaintiff to work in food service to retaliate

10 against him for filing grievances, even though this was against medical work

11 restrictions that had previously been recommended for Plaintiff. (Compl. at 15-16

12 ¶¶ 33-41.) When he fell and injured himself at work, his supervisor “refused to

13 report it or allow Plaintiff to go to medical” and “never took any action to ensure

14 Plaintiff’s safety.” (Compl. at 15 ¶¶ 36-37.)

15 The Complaint names the following Defendants at FCI Ashland: (1) Dr.

16 Thomas Love, (2) Dr. Gomez, (3) Unit Manager Edwards, and (4) Plaintiff’s

17 supervisors in food service, Ms. Brown and Mr. Stewart. (Compl. at 4-6.)

18 C. Defendants at FCI Victorville in California.

19 In February 2017, Plaintiff was transferred to FCI Victorville. (Compl. at 19

20 ¶ 73.) “Plaintiff went to sick call 10 times requesting help and to see the prison

21 doctor.” (Compl. at 19 ¶ 76.) Defendant physician’s assistants (“PAs”) Hoang and

22 Coleman refused Plaintiff’s requests for Provigil, a new ankle brace, pain relief

23 shots, Voltran gel, and a referral to an orthopedic surgeon “for no reason and

24 without an examination.” (Compl. at 19 ¶¶ 77-79.) After hearing the same

25 requests, Defendant Dr. Peikar initially “stated he would look into it” but did not,

26 and later told Plaintiff, “[W]e don’t have the staff or funds to see everyone.”

27 (Compl. at 20 ¶¶ 81-82.)

28 Plaintiff eventually purchased an ankle brace from an outside vendor and had

1 it shipped to the prison. (Compl. at 20 ¶ 90.) When the brace arrived, Plaintiff was

2 in the Special Housing Unit (“SHU”),2 and Defendants Poyner and Dr. Peikar

3 “refused to let Plaintiff have the ankle brace in the [SHU] stating it was plastic and

4 could be used as a weapon,” even though other inmates in the SHU “were allowed

5 plastic razors, radios, pill bottles, and plastic wheelchairs as well as plastic spoons

6 and trays.” (Compl. at 21 ¶ 94.) When Plaintiff pointed this out, HSA Poyner

7 “replied he didn’t care and would not allow other staff to give Plaintiff his ankle

8 brace.” (Compl. at 21 ¶ 94.)

9 Plaintiff was later placed “in a wheelchair due to his inability to put any

10 weight on his … ankle.” (Compl. at 20 ¶ 83.) Plaintiff requested medical treatment

11 from Dr. Bueno for pain and depression, but—without examining Plaintiff or his

12 medical records—Dr. Bueno told Plaintiff to “deal with it” and do “exercises.”

13 (Compl. at 20 ¶ 84, 86.) Dr. Bueno also did not authorize a special mattress for

14 lower back pain, as Plaintiff requested. (Compl. at 20 ¶ 87.)

15 Warden Entzel “knew of all of the Defendants’ illegal conduct outlined in

16 this Complaint because [Plaintiff] personally told her about her staff’s actions on

17 several occasions and for no penological reason Warden Entzel took no curative

18 actions … which caused Plaintiff to suffer more pain needlessly and caused him

19 severe mental anguish.” (Compl. at 21 ¶ 96.)

20 The Complaint names the following Defendants at FCI Victorville: (1) Dr.

21 Peikar, (2) Dr. Bueno, (3) PA Coleman, (4) PA Hoang, (5) Warden Entzel, (6) HSA

22 Poyner, and (7) Doe Defendants, “sick call schedulers and those who screened the

23 grievances for medical staff.” (Compl. at 7-10.)

24

25

2 Although the Complaint states that Plaintiff was placed in the SHU in

26

retaliation for his filing of grievances against staff at FCI Victorville (Compl. at 21

27 ¶ 92), he does not appear to be bringing a claim for First Amendment retaliation

based on his placement in the SHU.

28

1 D. Defendants in Washington, DC.

2 Plaintiff names the United States as a Defendant. (Compl. at 9 ¶ 4.) Plaintiff

3 also brings a claim against Ian Connor, “Washington D.C. Administrative Remedy

4 Coordinator,” as well as “John and Jane Does in his office.” (Compl. at 21 ¶ 97.)

5 Plaintiff alleges, “Over a 2 year period on approximately 12 occasions Plaintiff sent

6 [grievances] to Connor requesting adequate medical care, diagnosis and treatment

7 for his illness[es] and sought help from the BOP’s Central Office for the issues

8 outlined in this Complaint.” (Compl. at 22 ¶ 101.) “Connor denied every

9 [grievance] submitted by Plaintiff” and “took no action.” (Compl. at 22 ¶ 102.)

10 The John and Jane Does are named “in the event Connor claims he delegates the

11 reading, writing and/or answering of [the grievances] to other employees, an

12 assistant or contractor.” (Compl. at 22 ¶ 103.)

13 E. Relief Sought.

14 Plaintiff seeks both equitable relief and monetary damages. He seeks: (1) a

15 declaratory judgment that all Defendants violated Plaintiff’s Eighth Amendment

16 rights, (2) “an injunction against the United States to provide Plaintiff with

17 adequate medical care for the medical issues he’s outlined,” (3) “an injunction

18 preventing Defendant Connor and his staff from reviewing and deciding any

19 [grievances] sent to their office by Plaintiff in the future” and requiring “that every

20 [grievance] submitted by Plaintiff to Defendant Connor between July 2015 and

21 November 2017 be re-reviewed and decided by an independent party.” (Compl. at

22 24.) Additionally, Plaintiff seeks compensatory and punitive damages, as well as

23 the costs of bringing the present action. (Id.)

24 IV.

25 DISCUSSION

26 A. Plaintiff’s Claims against Medical Providers at Multiple Prisons are Not

27 Properly Joined in a Single Action.

28 Multiple courts have found that, where a federal inmate brings claims of

1 deliberate indifference to his serious medical needs against prison officials at

2 different federal prisons, the claims are not properly joined in a single action. See,

3 e.g., Fisher v. United States, No. 14-6499-MMM-RNB, 2015 WL 5723638 at *4,

4 2015 U.S. Dist. LEXIS 131689 (C.D. Cal. June 18, 2015), R&R approved, 2015

5 WL 5705926, 2015 U.S. Dist. LEXIS 131666 (C.D. Cal. Sept. 29, 2015); Sheffield

6 v. Rios, No. 09-01851-JLT-PC, 2012 WL 928717 at *5, 2012 U.S. Dist. LEXIS

7 36804 at *12-13 (E.D. Cal. Mar. 19, 2012); Peterson v. United States, No. 14-134,

8 2015 WL 278093 at *7, 2015 U.S. Dist. LEXIS 7461 at *17 (E.D. Ky. Jan. 22,

9 2015). As one court explained:

10 [P]laintiff’s Bivens[3] claims against the USP-Lompoc defendants

11 arise from the medical care that plaintiff received while incarcerated at

12 USP-Lompoc from April 2012 until his transfer in October 2014.

13 Plaintiff’s Bivens claim against Dr. Lin, however, arises from separate

14 actions taken by Dr. Lin in providing medical care after plaintiff was

15 transferred to FCI-La Tuna in October 2014. … All of plaintiff's

16 interactions with the USP-Lompoc defendants occurred prior to his

17 transfer, and plaintiff’s [complaint] does not purport to allege that any

18 USP-Lompoc defendant had any personal involvement in his medical

19 care once he had arrived at FCI-La Tuna. Further although plaintiff

20 alleges that the defendants at the two prisons each provided inadequate

21 medical care, the alleged incidents occurred at different times, at

22 different prisons, and involved different medical providers.

23 Fisher, 2015 WL 5723638 at *4, 2015 U.S. Dist. LEXIS 131689 at *11-12; see also

24 Sheffield, 2012 WL 928717 at *5, 2012 U.S. Dist. LEXIS 36804 at *12-13 (“Here,

25 though [the plaintiff] claims repeated failures to provide him adequate medical care,

26 each incident of inadequate medical care occurred for different reasons, [and] the

27

3 Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

28

1 events occurred over many years at different prisons at the hands of different

2 defendants.”).

3 This logic is equally applicable to Plaintiff’s claims. Between July 2015 and

4 July 2016, he was housed at FCI Gilmer in West Virginia, where he was allegedly

5 denied adequate medical care by Defendants Anderson and Weaver. (Compl. at 12-

6 14.) Between August 2016 and February 2017, Plaintiff was housed at FCI

7 Ashland in Kentucky, where he was allegedly denied adequate medical care by

8 Defendants Gomez, Love, Edwards, Stewart, Brown, Keller, Guthrie, and Bishop.

9 (Id. at 15-19.) In February 2017, Plaintiff was transferred to FCI Victorville II,

10 where he was allegedly denied adequate medical care by Defendants Peikar, Bueno,

11 Coleman, Hoang, Poyner, and Entzel. (Id. at 19-21.)

12 There are similarities between some of Plaintiff’s claims, because Plaintiff

13 was seeking treatment for alleged ongoing medical conditions (depression, PTSD,

14 ankle and back pain, and rheumatoid arthritis) and he often requested, and was

15 refused, the same types of treatment (cortisone shots, referral to an orthopedic

16 specialist, and an ankle brace). Yet these refusals occurred at different times, in

17 different places, and under different circumstances. The details of these

18 circumstances will be paramount to determining the validity of Plaintiff’s Eighth

19 Amendment claims.

20 Plaintiff attempts to tie all of the claims together by alleging a conspiracy

21 between all of the Defendants. (Compl. at 23.) “To state a claim for a conspiracy

22 to violate one’s constitutional rights … the plaintiff must state specific facts to

23 support the existence of the claimed conspiracy.” Burns v. Cty. of King, 883 F.2d

24 819, 821 (9th Cir. 1989). Plaintiff fails to allege facts plausibly demonstrating the

25 existence of such a conspiracy. He alleges:

26 All of the Defendants work for the same organization [the BOP]; they

27 all have access to Plaintiff’s medical and mental health care records

28 stored at other prisons; all Defendants are/were aware of Plaintiff’s

1 serious, well documented medical problems; [a]ll Defendants were

2 aware of recommendations of specialists Dr. Clark in Illinois and Dr.

3 Persaad in West Virginia and chose to ignore those doctors’ orders;

4 Plaintiff made the same medical complaints to all the Defendants at

5 each prison reference in this Complaint[.] [I]t is thus impossible that

6 the Defendants were unaware of Plaintiff’s ongoing, serious medical

7 injuries.

8 (Id. at 23 ¶ 109.)

9 In other words, Plaintiff alleges that all Defendants worked for the BOP, had

10 access to Plaintiff’s medical records, and reached similar conclusions about what

11 medical care Plaintiff should receive. This is insufficient to demonstrate that

12 Defendants at different institutions in different states were part of a conspiracy to

13 violate his constitutional rights, such that they should all be considered part of the

14 same transaction or occurrence of purposes of Rule 20. Plaintiff does not allege

15 any facts indicating, for example, that Defendants at different prisons ever directly

16 communicated with one another or that they shared some common desire to

17 conspire against him. See Cox v. Ashcroft, 603 F. Supp. 2d 1261, 1271 (E.D. Cal.

18 2009) (“Plaintiff’s complaint is completely devoid of any factual allegations that

19 the … Defendants had an agreement or ‘meeting of the minds’ to conspire to

20 violate Plaintiff’s constitutional rights.”); see also Robben v. Norling, No. 16-2699,

21 2017 WL 3315250 at *3, 2017 U.S. Dist. LEXIS 122824 at *6 (E.D. Cal. Aug. 3,

22 2017) (claim of conspiracy “requires allegations of specific facts showing that two

23 or more persons intended to accomplish an unlawful objective of causing plaintiff

24 harm and took some concerted action in furtherance thereof”). Cf. Twombly, 550

25 U.S. at 556 (stating a claim for conspiracy under the Sherman Act “requires a

26 complaint with enough factual matter (taken as true) to suggest that an agreement

27 was made”; reasoning that “[a]sking for plausible grounds to infer an agreement

28 does not impose a probability requirement at the pleading stage; it simply calls for

1 enough fact to raise a reasonable expectation that discovery will reveal evidence of

2 illegal agreement”).4

3 Thus, the claims against Defendants at different prisons should be severed,

4 such that the claims against staff at FCI Gilmer, FCI Ashland, and FCI Victorville

5 II are brought in three separate actions.

6 B. Venue is Improper as to the West Virginia and Kentucky Defendants,

7 and Those Claims Should be Transferred.

8 For the claims against staff at FCI Gilmer, the proper venue is the Northern

9 District of West Virginia. For the claims against staff at FCI Ashland, the proper

10 venue is the Eastern District of Kentucky.5 Those are the judicial districts where “a

11 substantial part of the events or omissions giving rise to the claim occurred.” 28

12 U.S.C. § 1391(b)(2). The Complaint alleges that Plaintiff was denied proper

13 medical care in those districts, where Plaintiff resided and the relevant Defendants

14 worked. Venue is improper in the Central District of California as to these

15 Defendants because no allegations in the Complaint indicate that any of these

16 Defendants reside here, that any events giving rise to these claims occurred here, or

17 that any of these Defendants have any contacts with California that would subject

18 them to personal jurisdiction here. See generally Goodyear Dunlop Tires

19 Operations v. Brown, 564 U.S. 915, 923 (2011) (to exercise personal jurisdiction

20

4 To the extent Plaintiff wishes to amend his Complaint to “recharacterize[]”

21 and “reconfigure[]” his conspiracy count “to include only the Victorville

Defendants” (Objs. at 15-16), the Magistrate Judge will separately set a deadline to

22

file a First Amended Complaint after the District Judge has decided whether or not

23 to adopt the Amended R&R.

24 5 See BOP, FCI Gilmer, https://www.bop.gov/locations/institutions/gil/ (FCI

25 Gilmer is located in Gilmer County); 28 U.S.C. § 129 (Gilmer County is in the

Northern District of West Virginia); BOP, FCI Ashland, https://www.bop.gov/

26

locations/institutions/ash/ (FCI Ashland is in Boyd County); 28 U.S.C. § 97 (Boyd

27 County is in the Eastern District of Kentucky). The Court takes judicial notice of

the locations of the prisons. See generally Fed. R. Evid. 201.

28

1 over a nonresident defendant, the defendant must have at least “minimum contacts”

2 with the state, such that the exercise of jurisdiction “does not offend traditional

3 notions of fair play and substantial justice”).

4 Transfer of the claims against the FCI Gilmer and FCI Ashland Defendants

5 to the appropriate districts, rather than dismissal, is in the interests of justice. See

6 28 U.S.C. § 1406(a). The claims are not clearly deficient on their face6 and

7 transfer, rather than dismissal, would avoid any timeliness problem which requiring

8 Plaintiff to re-file the claims might create.

9 C. Claims against Ian Connor and the Doe Defendants in Washington, DC

10 Should be Dismissed.

11 As noted above, Plaintiff alleges that Ian Connor, the BOP’s Washington

12 D.C. Administrative Remedy Coordinator, and/or Connor’s staff, denied 12

13 administrative appeals filed by Plaintiff. (Compl. at 21-22 ¶¶ 97-103.) These

14 allegations fail to state a claim for relief. As the Seventh Circuit has explained:

15 [A] brief word about George’s claims against the defendants who

16 handled his administrative protests concerning the events covered by

17 the complaint. … George’s argument on the merits is that anyone who

18 knows about a violation of the Constitution, and fails to cure it, has

19 violated the Constitution himself. That proposition … is not correct.

20 Only persons who cause or participate in the violations are responsible.

21 … Ruling against a prisoner on an administrative complaint does not

22 cause or contribute to the violation. A guard who stands and watches

23 while another guard beats a prisoner violates the Constitution; a guard

24 who rejects an administrative complaint about a completed act of

25

26 6 This order is not meant to preclude further screening of these claims by the

27 transferee courts under § 1915A of the PLRA, should the transferee courts believe

appropriate.

28

1 misconduct does not.

2 George v. Smith, 507 F.3d 605, 609-10 (7th Cir. 2007) (emphasis added). Courts in

3 this circuit generally agree that denying an inmate appeal does not, by itself, lead to

4 liability. See Phillipi v. Patterson, No. 13-01514, 2014 WL 11774836 at *3, 2014

5 U.S. Dist. LEXIS 105865 at *7 (E.D. Cal. Aug. 1, 2014) (citing George for the

6 proposition that “denial of an inmate appeal … does not state a cognizable

7 constitutional violation”), aff’d sub nom. Phillippi v. Patterson, 599 F. App’x 288

8 (9th Cir. 2015); Baldhosky v. Hubbard, No. 12-01200, 2018 WL 1392058, at *3,

9 2018 U.S. Dist. LEXIS 45667 at*8-9 (E.D. Cal. Mar. 20, 2018) (dismissing “claims

10 alleging that individuals who[se] identities are apparently presently unknown

11 reviewed his health care services requests and failed to act in violation of his

12 constitutional rights,” citing George, and noting that “denial of a prisoner’s

13 administrative requests generally does not cause or contribute to any underlying

14 constitutional violation” unless prison administrators “willfully turn a blind eye to

15 constitutional violations being committed by subordinates”); Thomas v.

16 Matevousian, No. 17-1592, 2018 WL 1452261 at *4, 2018 U.S. Dist. LEXIS 46663

17 at*9 (E.D. Cal. Mar. 21, 2018) (“Actions in reviewing a prisoner’s administrative

18 appeal generally cannot serve as the basis for liability in a section 1983 action.”);

19 Hernandez v. Cate, 918 F. Supp. 2d 987, 1018 (C.D. Cal. 2013) (dismissing claims

20 “based solely on [the defendants’] role in the inmate appeals process” but denying

21 motion to dismiss claims plausibly suggesting that other defendants “were involved

22 in authorizing or implementing the modified programs at issue”). But see

23 Stevenson v. Beard, 16-03079, 2018 WL 1963674 at *9, 2018 U.S. Dist. LEXIS

24 70639 at *25 (S.D. Cal. Apr. 26, 2018) (“Presumably, reviewers at each level of

25 appeal conduct personal reviews of the appeals before drafting a letter either

26 granting or rejecting the appeal. This personal review of the appeal amounts to

27 personal participation in the Plaintiff’s alleged constitutional injury….”). Courts in

28 Washington, DC—where these claims would likely be transferred, were the Court

1 to transfer them rather than dismiss them under § 1406(a)—have reasoned likewise.

2 See, e.g., Gonzalez v. Holder, 763 F. Supp. 2d 145, 150 (D.D.C. 2011) (“[A] prison

3 official’s decision on an inmate grievance with respect to an alleged constitutional

4 violation does not itself render him personally liable under Bivens.”).

5 The Complaint alleges that Connor and the Doe Defendants are in

6 Washington DC, not at the prisons where the alleged constitutional violations

7 occurred. Their only connection to the instant dispute was their review and denial

8 of the grievances Plaintiff sent them. Plaintiff argues that the above-cited cases are

9 distinguishable because he sent Defendant Connor more than a dozen grievances

10 and letters over a period of three years, and because Connor allegedly “had the

11 power to compel the medical providers/defendants to provide Plaintiff with proper

12 medical care….” (Objs. at 6-7.) The number of grievances Plaintiff filed does not

13 change the Court’s analysis of this issue. Plaintiff has not pled any facts supporting

14 the contention that Connor, who is identified as an “Administrative Remedy

15 Coordinator at BOP Central Office” (Compl. at 11 ¶ 5), had the kind of supervisory

16 authority over the other Defendants as in the case law Plaintiff cites. Compare Jett

17 v. Penner, 439 F.3d 1091, 1098 (9th Cir. 2006) (“As prison administrators, Dr.

18 Peterson and Cheryl Pliler are liable for deliberate indifference when they

19 knowingly fail to respond to an inmate’s requests for help.”) (emphasis added); see

20 Hernandez, 918 F. Supp. 2d at 1017-18 (dismissing claims that were “based solely

21 on [the defendants’] role in processing plaintiff’s appeals” but denying motion to

22 dismiss claims against the warden who had “authority and discretion to justify the

23 modified programs at issue and deny plaintiff [administrative] relief”).7

24

25 7 To the extent Plaintiff’s objections rely on Padilla v. Kernan, No. 16-2339,

2018 U.S. Dist. LEXIS 3218 at *18-19, 2018 WL 325041 at *7 (S.D. Cal. Jan. 8,

26

2018), the Court respectfully disagrees with the reasoning of that case and of

27 Stevenson, cited above, and agrees with the reasoning of the other district court

cases cited above.

28

1 Because the Complaint does not plausibly allege that the Washington, DC

2 Defendants who processed Plaintiff’s grievances caused or participated in the

3 alleged constitutional violations, the Complaint fails to state a claim against them.

4 D. Claims for Monetary Damages against Individual Defendants in their

5 Official Capacity Should be Dismissed.

6 The Complaint alleges that Defendants “denied Plaintiff adequate medical

7 care and as a result subjected him to cruel and unusual punishment” under the

8 Eighth Amendment. (Compl. at 24 ¶ 1.) He attempts to bring an Eighth

9 Amendment claim against the United States and against each of the individual

10 Defendants in both their individual and official capacities. (Compl. at 3-11.) He

11 seeks both injunctive relief and damages. (Compl. at 24.)

12 In Bivens, “the Supreme Court held that an action for money damages may

13 be brought against federal agents acting under color of their authority for injuries

14 caused by their unconstitutional conduct.” Vaccaro v. Dobre, 81 F.3d 854, 856 (9th

15 Cir. 1996) (emphasis added). Bivens attempted to “fill[] a gap in cases where

16 sovereign immunity bars a damages action against the United States” and injunctive

17 relief would not “obviate the harm” at issue. Solida v. McKelvey, 820 F.3d 1090,

18 1094 (9th Cir. 2016). “[A] Bivens action is, by definition, against defendants in

19 their individual and not their official capacity.” Vaccaro, 81 F.3d at 856. “This is

20 because a Bivens suit against a defendant in his or her official capacity would

21 merely be another way of pleading an action [for damages] against the United

22 States, which would be barred by the doctrine of sovereign immunity.” Consejo de

23 Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173

24 (9th Cir. 2007); see also Solida, 820 F.3d at 1095 (“An action against an officer,

25 operating in his or her official capacity as a United States agent, operates as a claim

26 against the United States.”).

27 Thus, to the extent Plaintiff is seeking monetary damages against the United

28 States and against the individually named Defendants in their official capacity for

1 violations of the Eighth Amendment, the Complaint fails to state a claim.

2 E. Claims for Malpractice or Negligence against the United States.

3 In the prior R&R, the Court noted that the Complaint contained isolated

4 allegations that the United States was liable for the “malpractice and negligence” of

5 the other Defendants (Compl. at 9, 22 ¶¶ 4, 104), but the majority of the Complaint

6 asserted violations of Plaintiff’s Eighth Amendment rights. The Court noted that

7 Plaintiff did not appear to be attempting to bring claims against the United States

8 under the Federal Tort Claims Act (“FTCA”), particularly since the FTCA’s waiver

9 of sovereign immunity does not extend to constitutional claims. (Dkt. 7 at 17-18.)

10 In his objections, Plaintiff explains that he does wish to bring FTCA claims

11 against the United States “related to nearly all of the claims contained in his

12 complaint.” (Objs. at 13 ¶ 55.) He contends that the United States “is a proper

13 defendant in this case due to the malpractice and negligence of its Federal

14 Employees” and clarifies that he “is not alleging any constitutional violations

15 against the U.S. nor is he including the U.S. in the Bivens section of his complaint.”

16 (Id. at 13 ¶¶ 59-60.)

17 The proper venue for an FTCA action against the United States is the judicial

18 district: (1) where the plaintiff resides, or (2) wherein the act or omission

19 complained of occurred. 28 U.S.C. § 1402(b). Plaintiff currently resides at the

20 USP Atlanta. The acts or omissions he complains of occurred in California, West

21 Virginia, and Kentucky. To the extent his FTCA claims against the United States

22 are based on the actions of the California Defendants, they are properly brought in

23 this action. To the extent his FTCA claims are based on the actions of the West

24 Virginia and Kentucky Defendants, however, they are not properly brought in

25 California. The latter FTCA claims should be severed and transferred to the same

26 judicial districts as Plaintiff’s related Bivens claims.

27 //

28 //

1 IV.

2 RECOMMENDATION

3 IT IS THEREFORE RECOMMENDED that the District Court issue an

4 | Order:

5 (1) approving and accepting this Amended R&R;

6 (2) dismissing without leave to amend the claims against Ian Connor and the

7 | Doe Defendants located in Washington DC;

8 (3) dismissing without leave to amend the damages claims against the

9 | individual Defendants in their official capacities;

10 (4) severing Plaintiff's Bivens claims against Defendants Dr. Anderson, HSA

11 | Weaver, and the Doe Defendants at FCI Gilmer, as well as the FTCA claims

12 | against the United States based on these Defendants’ behavior, and transferring

13 | them to the Northern District of West Virginia; and

14 (5) severing Plaintiff's Bivens claims against Defendants Dr. Thomas Love,

15 | Dr. Gomez, Unit Manager Edwards, Ms. Brown and Mr. Stewart, as well as the

16 | FTCA claims against the United States based on these Defendants’ behavior, and

17 | transferring them to the Eastern District of Kentucky.

18

19 | DATED: September 24, 2018

20 Venus S cot?

21 KAREN E. SCOTT

02 United States Magistrate Judge

23

24

25

26

27

28