The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 NICHOLAS FERGUSON, Case No.: 3:26-cv-1689-DMS-MMP
12 Plaintiff,
ORDER: (1) GRANTING MOTION
13 vs. TO PROCEED IN FORMA
PAUPERIS [ECF No. 2];
14
15 CORECIVIC CORPORATION OTAY (2) DISMISSING COMPLAINT
MESA DETENTION CENTER, DR. WITHOUT PREJUDICE FOR
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PURVIANCE, DR. UCHE, SERGEANT FAILURE TO STATE A CLAIM
17 RODIL, CHRISTOPHER LAROSE, PURSUANT TO 28 U.S.C.
LIEUTENANT AYON, UNNAMED §§ 1915(e)(2)(B) AND 1915A(b)
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CORRECTIONAL OFFICERS 1–3,
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20 Defendants.
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22 Plaintiff Nicholas Ferguson (“Plaintiff” or “Ferguson”), a federal prisoner
23 proceeding pro se,1 has filed a civil rights action, along with a motion to proceed in forma
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1 The Court takes judicial notice of Plaintiff’s criminal case, United States v. Ferguson, Case No.
3:11-cr-0805-JH (S.D. Cal.). See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (stating
27 a court may take judicial notice of any “proceedings in other courts, both within and without the
federal judicial system”). Ferguson was taken into federal custody on November 17, 2025 for a
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1 pauperis (“IFP”). ECF Nos. 1, 2. In his Complaint, Ferguson alleges Defendants violated
2 his constitutional rights under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents
3 of Fed. Bureau of Narcotics, 403 U.S. 388, 388 (1971). See ECF No. 1. For the reasons
4 discussed below, the Court grants Plaintiff’s IFP motion and dismisses the complaint
5 without prejudice.
6 I. IFP MOTION
7 All parties instituting any civil action, suit or proceeding in a district court of the
8 United States, except an application for writ of habeas corpus, must pay a filing fee of
9 $405.2 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire
10 fee at the time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant
11 to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007);
12 cf. Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an]
13 IFP application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the
14 fee[s] [a]re paid.”).
15 To proceed IFP, prisoners must “submit an affidavit that includes a statement of all
16 assets they possess,” as well as a “certified copy of their trust fund account statement (or
17 institutional equivalent) for the 6-month period immediately preceding the filing of the
18 complaint.” 28 U.S.C. § 1915(a)(1), (2) (citation modified). Using this financial
19 information, the court assesses an initial partial filing fee which is “calculated based on
20 ‘the average monthly deposits to the prisoner’s account’ or ‘the average monthly balance
21 in the prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in
22 ‘monthly payments of 20 percent of the preceding month’s income credited to the
23 prisoner’s account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). In short,
24 while prisoners may qualify to proceed IFP without having to pay the full statutory filing
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2 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of
27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee
Schedule, § 14 (eff. Dec. 1, 2023). The additional $55 administrative fee does not apply to persons
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1 upfront, they remain obligated to pay the full amount due in monthly payments. See Bruce
2 v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2).
3 In support of his IFP Motion, Ferguson has provided a signed copy of his prison trust
4 account statement which reflects an average monthly balance of $114.52, average monthly
5 deposits of $200.00, and an available account balance of $0.00. ECF No. 2 at 2.
6 Accordingly, the Court GRANTS Plaintiff’s IFP motion. Because Plaintiff has no funds
7 on account, the Court assesses no initial partial filing fee. See 28 U.S.C. § 1915(b)(4)
8 (providing that a prisoner should not be prohibited from bringing a civil action or appealing
9 a civil action solely because he has no assets and no means to pay the initial partial filing
10 fee). The facility where Plaintiff is detained must collect the full balance of the $350 fee
11 owed and forward payments to the Clerk of the Court as provided by 28
12 U.S.C. § 1915(b)(2).
13 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) & 1915A(b)
14 A. Standard of Review
15 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), the Court must screen a
16 prisoner’s IFP complaint and sua sponte dismiss it to the extent that it is frivolous,
17 malicious, fails to state a claim, or seeks damages from defendants who are immune. See
18 Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. Robinson,
19 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether Plaintiff has
20 failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the
21 same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.”
22 Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that a
23 complaint to “contain sufficient factual matter . . . to state a claim to relief that is plausible
24 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
25 While detailed factual allegations are not required, “[t]hreadbare recitals of the elements
26 of a cause of action, supported by mere conclusory statements, do not suffice” to state a
27 claim. Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
28 harmed me accusation[s]” fall short of meeting this plausibility standard. Id.
1 B. Plaintiff’s Allegations
2 The allegations in Ferguson’s Complaint concern incidents which occurred while he
3 was in federal custody at Otay Mesa Detention Facility (“OMDF”),3 which is operated by
4 CoreCivic, a private corporation. ECF No. 1 at 7, 9.
5 Plaintiff alleges that on February 18, 2026, medical staff “forced” him to sign a
6 contract in order to keep receiving his medication (Suboxone), as part of his medication
7 assisted treatment (“MAT”) for addiction. Id. at 7, 10. Ferguson states Suboxone is
8 supposed to be “absorbed under the tongue” but OMDF staff administered the medication
9 in a manner contrary to the manufacturer’s directions––by crushing it, putting it in water
10 and having Ferguson drink the mixture. Id. at 7. As a result, Ferguson states he has suffered
11 “severe pain of withdrawal.” Id.
12 Ferguson further alleges that on February 21, 2026 or February 22, 2026, Sergeant
13 Rodil was escorting Ferguson out of his cell. Id. at 9. Plaintiff, who was handcuffed, turned
14 to tell Rodil that he was twisting his wrist and causing him pain and Rodil responded by
15 “throw[ing] [Plaintiff] into the wall,” causing Plaintiff to hit his jaw and forehead. Id. Rodil
16 then threw Plaintiff onto the floor, causing an injury to Plaintiff’s pinky finder, which “felt
17 broke.” Id. A dentist later examined Ferguson and told him he “most likely [had] nerve
18 damage.” Id. at 9, 16.
19 Ferguson alleges that on another occasion three unidentified officers opened his cell
20 door without first handcuffing him, which is against CoreCivic policy. Id. at 6. One officer
21 stated, “Please come close and do something we’ll beat your ass then choke your ass dead!”
22 Id. The officers then grabbed Plaintiff’s food tray and left his cell laughing. Id.
23 On March 5, 2026, Lieutenant Ayon “antagoniz[ed]” Ferguson by cursing at him
24 and reaching through the “feeding slot multiple times, hitting [Plaintiff] once in the leg
25 causing a large bruise. Id. at 6. Later that same evening, Ayon “forced” Plaintiff to have an
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3 Since filing his Complaint, Ferguson has been transferred to the Metropolitan Correctional
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1 x-ray taken of his stomach because officers suspected Plaintiff had hidden contraband in
2 his anus. Id.at 6, 12. Officers also threatened to put Plaintiff in a “dry cell.” Id. at 6. At
3 some point that evening, Ferguson was taken to Paradise Valley Hospital and an x-ray was
4 taken of his abdomen but “nothing was found.” Id. at 12.
5 Ferguson further alleges OMDF officials “took money [his] family [had] sent him,”
6 approximately $300, from his trust account unlawfully. Id. at 15. Officials told Ferguson it
7 was for “restitution,” but Ferguson states it was not “court ordered.” Id.
8 C. Discussion
9 In his Complaint, Ferguson names nine defendants: OMDF Warden LaRose,
10 CoreCivic Corporation, Dr. Uche, Dr. Purviance, Sergeant Rodil, Lieutenant Ayon, and
11 three unnamed CoreCivic correctional officers. See ECF No. 1 at 1–4. He raises seven
12 claims under both 42 US.C. § 1983 and Bivens, 403 U.S. 388, alleging violations of the
13 Eighth Amendment and the Due Process Clause. Id. at 3.
14 1. 42 U.S.C. § 1983
15 First, to the extent seeks to raise constitutional claims pursuant to 42 U.S.C. § 1983,
16 ECF No. 1 at 1, they must be dismissed. “To establish § 1983 liability, a plaintiff must
17 show both (1) deprivation of a right secured by the Constitution and laws of the United
18 States, and (2) that the deprivation was committed by a person acting under color of state
19 law.” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012).
20 Plaintiff is a federal prisoner whose claims arose while he was held at OMDC, a for-
21 profit detention facility privately-owned and operated by CoreCivic under federal contract,
22 and it appears all Defendants are OMDF staff. See ECF No. 1 at 2–4. Thus, Ferguson fails
23 to allege any Defendant acted under color of state law. As such, he necessarily fails to state
24 a claim under § 1983. Tsao, 698 F.3d at 1138; Russell v. U.S. Dep’t of the Army, 191 F.3d
25 1016, 1019 (9th Cir. 1999) (“Section 1983 . . . provides no right of action against federal
26 (rather than state) officials.”). And to the extent Plaintiff seeks recovery from individual
27 employees of a private detention facility under contract with the federal government, his
28 constitutional claims must be brought in federal court, if at all, pursuant to Bivens. Agyeman
1 v. Corr. Corp. of Am., 390 F.3d 1101, 1104 (9th Cir. 2004) (stating suit against individual
2 employees of a private facility under contract with the federal government had to be
3 brought as a Bivens action). Therefore, because Plaintiff is not suing state actors, his claims
4 raised pursuant to § 1983 are dismissed.
5 2. Bivens
6 In Bivens, the Supreme Court “recognized for the first time an implied private action
7 for damages against federal officers alleged to have violated a citizen’s constitutional
8 rights.” Iqbal, 556 U.S. at 675 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66
9 (2001). Bivens, however, provides a judicially recognized remedy for constitutional
10 violations committed by federal actors only in limited circumstances.
11 Since Bivens was decided, the Supreme Court has expressly recognized an implied
12 cause of action in only three types of cases: (1) Bivens itself, which recognized an implied
13 cause of action for violation of the Fourth Amendment’s right against unreasonable
14 searches and seizures; (2) Davis v. Passman, 442 U.S. 228 (1979), which recognized a
15 claim for gender discrimination in the employment context under the Fifth Amendment’s
16 Due Process Clause; and (3) Carlson v. Green, 446 U.S. 14 (1980), which recognized a
17 claim against prison officials for inadequate medical care in the prison context under the
18 Eighth Amendment. Apart from these cases, the Court has “consistently refused to extend
19 Bivens liability” to other contexts. Malesko, 534 U.S. at 68.
20 The Supreme Court has “clarified [a] two-step framework that courts must use to
21 decide whether to recognize an implied cause of action against federal agents for
22 constitutional violations.” Schwartz v. Miller, 153 F.4th 918, 926 (9th Cir. 2025) (citing
23 Ziglar v. Abbasi, 582 U.S. 120, 135–37 (2017)). The first step requires courts to ask
24 whether the case arises in a new context, i.e., “is different in a meaningful way from
25 previous Bivens cases decided by [the Supreme] Court.” Id. (citing Ziglar, 582 U.S. at 139.)
26 “If the case does differ, then courts must consider whether ‘there are special factors
27 counselling hesitation in the absence of affirmative action by Congress.’” Id. (quoting
28 Ziglar, 582 U.S. at 136). “This second step focuses on whether the Judiciary is well suited,
1 absent congressional action or instruction, to consider and weigh the costs and benefits of
2 allowing a damages action to proceed.” Id.
3 a. Official Capacity Bivens Claims
4 As an initial matter, while Ferguson sues all Defendants in both their individual and
5 official capacities, see ECF No. 1 at 2–4, his official-capacity Bivens claims must be
6 dismissed. “A Bivens action can be maintained against a defendant in his or her individual
7 capacity only, and not in his or her official capacity.” Consejo de Desarrollo Economico
8 de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (internal quotation
9 marks, brackets, and citation omitted). “This is because a Bivens suit against a defendant
10 in his or her official capacity would merely be another way of pleading an action against
11 the United States, which would be barred by the doctrine of sovereign immunity.” Id.
12 (citation omitted). “There is no such animal as a Bivens suit against a public official
13 tortfeasor in his or her official capacity.” Solida v. McKelvey, 820 F.3d 1090, 1094 (9th
14 Cir. 2016) (internal quotation marks and citation omitted). Accordingly, the Court
15 dismisses Plaintiff’s official-capacity Bivens claims against all Defendants. See 28 U.S.C.
16 §§ 1915(e)(2)(B)(ii) and 1915A(b).
17 b. CoreCivic Corporation and Warden LaRose (Claims Five and Seven)
18 Plaintiff fails to state Bivens claims against Defendants CoreCivic and LaRose. In
19 Claim Five, Ferguson states only that “Warden LaRose and Corecivic Corporation had
20 authority over everything and allowed [it] to occur and condoned it.” ECF No. 1 at 13. And
21 in Claim Seven, Plaintiff alleges CoreCivic improperly deducted approximately $300 from
22 his trust account for restitution. Id. at 15.
23 First, Ferguson cannot state a Bivens claim against CoreCivic because such claims
24 are not available against private corporations acting under contract with the federal
25 government. See Malesko, 534 U.S. at 63–64, 74 (declining to apply Bivens to private
26 corporations); Agyeman, 390 F.3d at 1103 (“[T]o the extent that Agyeman sought to hold
27 Corrections Corporation itself liable, the case could not be brought under [Bivens], since
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1 Corrections Corporation is a private corporation.”); see also FDIC v. Meyer, 510 U.S. 471,
2 484–86, (1994) (concluding no Bivens action may be brought against a federal agency).
3 And to the extent Plaintiff alleges Defendant LaRose is liable because, as OMDF
4 Warden, he “had authority over everything and allowed the [alleged constitutional
5 violations] to occur,” ECF No. 1 at 13, he has not stated a claim. “In the limited settings
6 where Bivens does apply, . . . Government officials may not be held liable for the
7 unconstitutional conduct of their subordinates under a theory of respondeat superior.”
8 Iqbal, 556 U.S. at 676 (citations omitted). “[A] Bivens claim is brought against the
9 individual official for his or her own acts, not the acts of others . . . because “[t]he purpose
10 of Bivens is to deter the officer.” Ziglar, 582 U.S. at 140 (internal quotation marks and
11 citation omitted). “Bivens is not designed to hold officers responsible for acts of their
12 subordinates.” Id. (citing Iqbal, 556 U.S. at 676). Thus, in order for Ferguson to state a
13 claim against Warden LaRose, he must plausibly allege LaRose violated his rights through
14 his own actions. See Chavez v. United States, 683 F.3d 1102, 1109 (9th Cir. 2012) (“Bivens
15 claims cannot proceed on a theory of respondeat superior, but must instead [a plaintiff
16 must] plead that a supervisor, by her ‘own individual actions,’ violated the Constitution.”).
17 Therefore, Ferguson fails to state a Bivens claim against Defendants CoreCivic and LaRose
18 and as such, Claims Five and Seven4 are dismissed. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
19 1915A(b).
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4 In addition, it is unlikely Plaintiff could state a due process claim for deprivation of property
22 under Bivens against any individual. A due process claim of deprivation of property is unlike the
issues the Supreme Court has decided may proceed under Bivens. Vega v. United States, 881 F.3d
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1146, 1153 (9th Cir. 2018) (“[N]either the Supreme Court nor [the Ninth Circuit] ha[s] expanded
24 Bivens in the context of a prisoner’s . . . Fifth Amendment procedural due process claims.”).
Indeed, in at least one unpublished decision, the Ninth Circuit stated that the deprivation of
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property involved a new Bivens context and is not an actionable claim. See Jackson v. McNeil,
26 No. 20-35991, 2023 WL 3092302, at *1 (9th Cir. Apr. 26, 2023); accord Panschow v. Murillo,
2020 WL 292182, at *3 (C.D. Cal. Jan. 17, 2020) (stating that where federal prisoner brought
27 Fifth Amendment claim concerning a deprivation of property, holding “any Fifth Amendment due
process claim by plaintiff lacks an arguable basis in law because it would require a disfavored
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1 c. Eighth Amendment Medical Care (Claim Two)
2 In Claim Two, Ferguson appears to raise a Bivens claim alleging his Eighth
3 Amendment right to adequate medical care was violated by CoreCivic employees Dr. Uche
4 and Dr. Purviance.5 ECF No. 1 at 7. Specifically, Ferguson alleges he was improperly
5 administered his Suboxone medication by dissolving it in water, when it should be taken
6 by placing it under the tongue. Id. at 7, 10. Plaintiff, however, may not proceed with Eighth
7 Amendment medical care claim against these two defendants under Bivens. The Supreme
8 Court has stated: “Where . . . a federal prisoner seeks damages from privately employed
9 personnel working at a privately operated federal prison, where the conduct allegedly
10 amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that
11 typically falls within the scope of traditional state tort law (such as the conduct involving
12 improper medical care at issue here), the prisoner must seek a remedy under state tort law.
13 We cannot simply imply a Bivens remedy in such a case.” Minneci v. Pollard, 565 U.S.
14 118, 131 (2012). Therefore, to the extent Plaintiff raises an Eighth Amendment claim
15 regarding inadequate medical care against Defendants Uche and Purviance, privately
16 employed personnel, he cannot state a Bivens claim. See Valdovinos-Blanco v. Adler, 585
17 F. App’x. 586, 587 (9th Cir. 2014) (affirming sua sponte dismissal pursuant to 28 U.S.C.
18 § 1915(e)(2) of claims precluded by Minneci); Karboau v. Clark, 577 F. App’x. 678, 679
19 (9th Cir. 2014) (affirming dismissal of Eighth Amendment claims against individual
20 employees of GEO Group, Inc., because the exclusive remedy is pursuant to state tort law).
21
22
23
2019) (finding federal prisoner could not proceed with Fifth Amendment procedural due process
24 claim under Bivens with respect to deprivation of property in light of Abbassi); Childress v.
Palmer, 2018 WL 4282601, at *3 (S.D. Cal. Sept. 7, 2018) (“As stated above, the Supreme Court
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has not expanded Bivens to include a Fifth Amendment claim based on procedural due process
26 arising from a deprivation of property. Therefore, Plaintiff’s claims present a ‘new context’ under
Abbasi.”).
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5 While Plaintiff lists Uche and Purviance as Defendants as to Claim Two, the factual allegations
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1 Accordingly, Ferugson cannot state an Eighth Amendment medical care claim under
2 Bivens against Defendants Uche and Purviance and as such, Claim Two is dismissed for
3 failure to state a claim. See 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b).
4 d. Eighth Amendment Excessive Force (Claims One and Three)
5 In Claims One and Three, Plaintiff alleges CoreCivic correctional staffers Rodil and
6 Ayon (respectively) violated his Eighth Amendment right by using excessive force against
7 him. The Ninth Circuit has specifically declined to extend a Bivens remedy to an Eighth
8 Amendment excessive force claim. Chambers v. C. Herrera, 78 F.4th 1100, 1107 (9th Cir.
9 2023) (stating “even plausible allegations could not constitute a Bivens claim for excessive
10 force under Egbert [v. Boule, 596 U.S. 482, 484 (2022)]”); see also Williams v. Baker, No.
11 1:16-cv-1540-ADA-HBK, 2023 WL 7323332, at *4 (E.D. Cal. Nov. 7, 2023), report and
12 recommendation adopted, No. 1:16-cv-01540-NODJ-HBK (PC), 2024 WL 1333172 (E.D.
13 Cal. Mar. 28, 2024), appeal dismissed, No. 24-3525, 2024 WL 4063618 (9th Cir. June 20,
14 2024) (“[B]inding Ninth Circuit case law now holds that under Egbert, this Court may not
15 extend a Bivens remedy to an Eighth Amendment excessive use of force claim.”). The
16 Ninth Circuit determined that an Eighth Amendment Bivens claim “rooted in excessive
17 force” “represents a new Bivens context because it is distinct from the three actions
18 recognized in Bivens, Davis, and Carlson.” Chambers, 78 F.4th at 1107; see also Hunt v.
19 Matevousian, No. 18-17464, 2023 WL 8064536, at *1 (9th Cir. Nov. 21, 2023) (“The
20 district court properly dismissed [plaintiff’s] Eighth Amendment claims for excessive force
21 and failure to protect because a Bivens remedy is unavailable for such claims.”). Further,
22 the Ninth Circuit identified special factors that foreclosed a Bivens excessive force claim
23 by stating, “[b]ecause Carlson involved an entirely different claim, it provides no judicial
24 guidance on how prison officials should handle excessive force claims” and “to expand
25 Bivens here would risk the exact ‘disruptive intrusion by the Judiciary’ that Ziglar
26 forecloses.” Chambers, 78 F.4th at 1108 (quoting Ziglar, 582 U.S. at 140).
27 Therefore, Ferguson has failed to state an Eighth Amendment excessive force claim
28 under Bivens and as such, Claims One and Three are dismissed. See 28 U.S.C.
1 §§ 1915(e)(2)(B)(ii) and 1915A(b).
2 e. Contraband X-Ray and Inappropriate Comments (Claim Four)
3 In Claim Four, Ferguson alleges he was “forced” to submit to an x-ray of his
4 abdomen after Defendant Ayon falsely accused him of hiding contraband inside his body.
5 ECF No. 1 at 6, 12. He also alleges Ayon made “sexual comments while laughing at [him]”
6 and threatened to place Plaintiff in a “dry cell” if he did not agree to the x-ray. Id. at 12.
7 While not entirely clear, Plaintiff appears to allege this amounted to a violation of the
8 Eighth Amendment. As discussed above, however, such a claim presents a “new context”
9 See Chambers, 78 F.4th at 1107, 1110 (declining to recognize a cause of action under
10 Bivens for an inmate’s Eighth Amendment claims alleging excessive force and failure to
11 protect). But even if the Court were to presume Bivens relief were possible, Plaintiff fails
12 to state sufficient facts to show how being compelled to have an x-ray taken of his abdomen
13 was so egregiously harmful as to violate the Eighth Amendment. Nor are Plaintiff’s vague
14 allegations regarding Ayon’s “sexual comments” sufficient to state a plausible Eighth
15 Amendment claim. See Watison, 668 F.3d at 1112–13 (holding that humiliation from brief
16 incident of alleged sexual harassment did not rise to level of severe psychological pain
17 required to state Eighth Amendment claim).
18 Furthermore, to the extent the claim can be liberally construed under the Fourth
19 Amendment, it also fails, regardless of whether Bivens relief is available. Prisoners retain
20 only “a limited right to bodily privacy” under the Fourth Amendment. Michenfelder v.
21 Sumner, 860 F.2d 328, 333–34 (9th Cir. 1988). It is well-established, for instance, that strip
22 searches generally do not violate a prisoner’s Fourth Amendment rights. Id.; accord
23 Thompson v. Souza, 111 F.3d 694, 699 (9th Cir. 1997). Nor do routine visual body cavity
24 searches. Bell v. Wolfish, 441 U.S. 520, 558 (1979); accord Thompson, 111 F.3d at 700.
25 Given these more invasive methods do not amount to a violation of the Fourth Amendment
26 in the prison context, the Court finds the allegation of contraband search of a prisoner via
27 x-ray falls well short of stating a plausible Fourth Amendment claim. In sum, Plaintiff has
28
1 failed to state a claim against Defendant Ayon and Claim Four is dismissed. See 28 U.S.C.
2 §§ 1915(e)(2)(B)(ii) and 1915A(b).
3 f. Unnamed Defendants 1–3 (Claim Six)
4 Finally, in Claim Six, Ferguson alleges three unnamed CoreCivic correctional
5 officers opened his cell door without cuffing him, which is against CoreCivic policy. ECF
6 No. 1 at 6, 12. These officers also taunted Plaintiff, stating, “Please come close and do
7 something we’ll beat your ass then choke your ass.” Id. at 6. The unnamed officers then
8 took Plaintiff’s food tray and left his cell “laughing.” Id.
9 Although the use of fictitiously unnamed “Doe” defendants is generally not favored,
10 Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980), amendment is allowed to substitute
11 true names for fictitiously named defendants, Merritt v. County of Los Angeles, 875 F.2d
12 765, 768 (9th Cir. 1989). Here, however, Ferguson has failed to make any specific
13 allegations against any separately identified unnamed officer. Instead, he refers to
14 unidentified officers collectively. If Plaintiff wants to state claims against unknown
15 defendants, he must identify them individually (i.e. Doe 1, Doe 2, etc.) and specify what
16 each unknown individual did. And he “must allege sufficient facts to show how each doe
17 defendant individually violated his constitutional rights.” Finefeuiaki v. Maui Police Dep’t,
18 2018 WL 4839001, at *3 (D. Haw. Oct. 4, 2018) (citing Wakefield v. Thompson, 177 F.3d
19 1160, 1163 (9th Cir. 1999)). Because plaintiff has not identified any specific action taken
20 by any separately identified Doe defendant, and he also fails to identify a constitutional
21 basis for his Bivens claim, Plaintiff has failed to state any claim against the three unnamed
22 Defendants.
23 In addition, even assuming Plaintiff had alleged an Eighth Amendment violation,
24 and further assuming Bivens relief were possible, he cannot state a claim because “the
25 exchange of verbal insults between inmates and guards is a constant, daily ritual observed
26 in this nation’s prisons of which we do not approve, but which do[es] not violate the Eighth
27 Amendment.” Watison, 668 F.3d at 1113 (9th Cir. 2012) (internal quotation marks
28 omitted). A mere naked threat does not violate the Eighth Amendment. See Gaut v. Sunn,
1 810 F.2d 923, 925 (9th Cir. 1987) (holding that “it trivializes the [E]ighth [A]mendment to
2 believe a threat constitutes a constitutional wrong”); Ferguson v. Pagati, No. 12-cv-0653-
3 VBF-DTB, 2013 WL 3989426, at *5 (C.D. Cal. Aug. 1, 2013) (“[T]he Court finds no
4 authority for the proposition that allegations of threats of physical violence, without more,
5 can suffice to state a Bivens claim). Therefore, Plaintiff has failed to state a claim against
6 the three unnamed Defendants and as such, Claim Six is dismissed. See 28 U.S.C.
7 §§ 1915(e)(2)(B)(ii) and 1915A(b).
8 D. Leave to Amend
9 Given Plaintiff’s pro se status, the Court grants Plaintiff leave to amend his
10 complaint. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court
11 should not dismiss a pro se complaint without leave to amend [pursuant to 28 U.S.C.
12 § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the deficiencies of the complaint
13 could not be cured by amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
14 Cir. 2012)).
15 III. CONCLUSION AND ORDER
16 For reasons discussed above, the Court:
17 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)
18 (ECF No. 2).
19 2. DIRECTS the Warden of the Metropolitan Correctional Center, their
20 designee, or any agency later having custody, to collect from Plaintiff’s trust account the
21 $350 filing fee owed in this case by garnishing monthly payments in an amount equal to
22 twenty percent (20%) of the preceding month’s income and forwarding those payments to
23 the Clerk of the Court each time the amount in the account exceeds $10 pursuant to 28
24 U.S.C. § 1915(b)(2).
25 3. DIRECTS the Clerk of the Court to serve a copy of this Order on Warden,
26 Metropolitan Correction Center, 808 Union Street, San Diego, California 92101.
27 4. DISMISSES Plaintiff’s Complaint for failing to state a claim pursuant to 28
28 U.S.C. § 1915(e)(2) and § 1915A(b) without prejudice.
l 5. GRANTS Plaintiff sixty (60) days leave from the date of this Order in which
2 ||to file a First Amended Complaint which cures the deficiencies of pleading noted in this
3 || Order. Plaintiff's Amended Complaint must be complete by itself without reference to his
4 || original Complaint. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner
5 || & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the
6 || original.’”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims
7 || dismissed with leave to amend which are not re-alleged in an amended pleading may be
8 “considered waived if not repled.’’).
9 If Plaintiff fails to timely file a First Amended Complaint, the Court will enter a final
10 || Order dismissing this civil action based both on failure to state a claim upon which relief
11 be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and failure to
12 || prosecute in compliance with a court order requiring amendment. See Lira v. Herrera, 427
13 1164, 1169 (9th Cir. 2005) (“Ifa plaintiff does not take advantage of the opportunity
14 ||to fix his complaint, a district court may convert the dismissal of the complaint into
15 || dismissal of the entire action.”).
16 IT IS SO ORDERED. f
17 || Dated: June 26, 2026 vr by Yn.
18 Hon. Dana M. Sabraw
19 United States District Judge
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