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Alexander v. Bay


February 11, 2009


The opinion of the court was delivered by: James V. Selna United States District Judge




In June 2006, Plaintiff Kenneth S. Alexander, proceeding pro se, filed a Civil Rights Complaint in the United States District Court for the District of Columbia. On September 26, 2006, that court dismissed some of the defendants and transferred the action to this Court, where it was filed on December 28, 2006.

On January 12, 2007, Plaintiff filed in this Court his First Amended Complaint. On May 4, 2007, the Court dismissed the First Amended Complaint with leave to amend. On May 24, 2007, Plaintiff filed the present Second Amended Complaint pursuant to 42 U.S.C. § 1983.

On December 12, 2007, Defendants Becky Bay, David Keene, Duc Nguyen, Vache Chakmakian, B.G. Compton, Jeff Brewer, Cheryl Hiatt, Jesus Fernandez, Lilia Castillo, Victoria Malingkas, Joe Norwood, S.A. Holencik, Clover Clinton, and Michael Hill filed the first of the Motions to Dismiss the Second Amended Complaint under consideration herein. On January 8, 2008, Defendants Joe Schmidt, A. Miroshnick, and Simms filed the second of the Motions to Dismiss under consideration herein. Only Defendant George T. Craig has not moved to dismiss the Second Amended Complaint. However, the Court has screened the Second Amended Complaint as concerning Defendant Craig. The Second Amended Complaint should be dismissed as follows.


All of plaintiff's claims address what he considers to be substandard care by federal prison officials with respect to Plaintiff's injured hand. (See Second Amended Complaint, at 3-15.)

The Second Amended Complaint must be dismissed, however, because Plaintiff has filed for relief only pursuant to 42 U.S.C. § 1983 (see Second Amended Complaint, at 1), which applies solely to state agents. Each of the Defendants is a federal agent and acted under color of federal law; therefore, section 1983, which provides relief only against state actors acting under color of state law, is irrelevant to Plaintiff's claims. See Billings v. United States, 57 F.3d 797, 801 (9th Cir. 1995). Relief against federal agents could be sought only pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971), which provides an analogous cause of action against federal actors. See also Hartman v. Moore, 547 U.S. 250, 254 n.2, 126 S.Ct. 1695, 164 L.Ed. 2d 441 (2006).

For this reason, Plaintiff has not stated a cause of action against any of the Defendants. The Second Amended Complaint must be dismissed with leave to amend.


Claims against Defendants Schmidt, Miroshnick, Sims, Bay, and Keene must be dismissed without leave to amend because the Court lacks personal jurisdiction over these five Defendants. Defendants Schmidt, Miroshnick, and Sims moved to dismiss as they are residents of Alaska and all alleged actions taken by them took place in that state. (See Second Amended Complaint, at 5, 11-12.) Defendants Bay and Keane moved to dismiss because they are residents of Washington and Oregon and all of their alleged actions took place in those states. (See Second Amended Complaint, at 3, 6, 12.)

Where a defendant moves to dismiss for lack of personal jurisdiction, the burden is with the plaintiff to make a prima facie showing that jurisdiction exists. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004). Where, as here, no federal statute governs personal jurisdiction, this Court must apply the law of the forum state. Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). California's long-arm statute is co-extensive with federal standards, so this Court may exercise personal jurisdiction if doing so meets federal constitutional due process standards. Id., at 1320. "For a court to exercise personal jurisdiction over a nonresident defendant, that defendant must have at least 'minimum contacts' with the relevant forum such that the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger, 374 F.3d at 801 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).

There are two types of personal jurisdiction that a forum state may exercise over a nonresident defendant -- general jurisdiction and specific jurisdiction. "Unless a defendant's contacts with a forum are so substantial, continuous, and systematic that the defendant can be deemed to be 'present' in that forum for all purposes, a forum may exercise only 'specific' jurisdiction -- that is, jurisdiction based on the relationship between the defendant's forum contacts and plaintiff's claims." Menken v. Emm, 503 F.3d 1050, 1056-57 (9th Cir. 2007).

Plaintiff did not reply to Defendants' argument that the Court lacked personal jurisdiction over these five Defendants, none of whom, according to Plaintiff's allegations, resides in California or committed acts against Plaintiff in California. It is clear from the pleadings that general personal jurisdiction is not present in this case. Therefore, the only question is whether the Court has specific personal jurisdiction over these five Defendants, which is analyzed via a three-part test:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;

(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and

(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Id., 503 F.3d at 1057.

Plaintiff makes no allegations that any of the five Defendants had any connection with California. All of the alleged actions took place outside California, in federal prisons situated in the other states, and the actions at issue had no conceivable connection with California.

Plaintiff has not made a prima facie showing that personal jurisdiction is appropriate. Therefore, Defendants Schmidt, Miroshnick, Sims, Bay, and Keene should be dismissed from the action.


Next, Defendants move to dismiss on the grounds of improper service. The motion to dismiss should be granted on this basis as well. A Bivens action, which as discussed above, is the proper basis for Plaintiff to sue the named federal agent Defendants, can be maintained against a defendant only in his or her individual capacity. Castenada v. United States, 546 F.3d 682, 689 (9th Cir. 2008). Service in general is governed by Rule 4 of the Federal Rules of Civil Procedure, which requires that service be effected by someone over 18 years of age and not a party to the litigation. Fed. R. Civ. P. 4(c)(2).

Service of federal defendants sued in their individual capacity is governed by Fed. R. Civ. P. 4(i)(3) which requires that the United States be served pursuant to Fed. R. Civ. P. 4(i)(1) (requiring service to Washington D.C. offices of the United States Attorney and Attorney General) and that the individual officer be served pursuant to Fed. R. Civ. P. 4 (e), (f), or (g). Neither Rule 4(f) or (g) is applicable here. Plaintiff, therefore, must effectuate service of the federal agent Defendants pursuant to Rule 4(e). Subsection (1) of this rule allows service pursuant to state law. In California, service is governed by California Code of Civil Procedure § 415.10 et. seq. Service may be effected: (1) by personal service of the summons and complaint in accordance with Cal. C.C.P. § 415.10, (2) by leaving a copy of summons and complaint at a defendant's office or mailing address and also by mailing the summons and complaint to the defendant in accordance with Cal. C.C.P. § 415.20, or (3) by mailing a copy of the summons and complaint, two copies of the notice and acknowledgment provided in the statutory section, and a return envelope postage prepaid to the sender in accordance with Cal. C.C.P. § 415.30 (or by mailing to an out of state defendant in accordance with Cal. C.C.P. § 415.40). Subsection (2) of the federal rule allows service by any of the following means:

(A) delivering a copy of the summons and of the complaint to the individual personally;

(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or

(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e)(2).

Here, it appears that Plaintiff attempted service pursuant to California Code of Civil Procedure sections 415.20 and/or 415.30 and/or pursuant to Rule 4(e)(2)(B) and/or (C) of the Federal Rules of Civil Procedure. Plaintiff complied with the requirements of none of the state statutes, however. He also attempted to serve documents himself, which is not permitted pursuant to Rule 4(c)(2) of the federal rules. Since Plaintiff has failed to properly serve any of the Defendants named in the instant motion to dismiss, the action is subject to dismissal for failure to serve in conformity with the requirements of Rule 4(e) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(5).


Federal Rule of Civil Procedure 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." In considering the motion to dismiss, the Court must accept all of Plaintiff's factual allegations as true and construe them in the light most favorable to Plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). The complaint must only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not necessary to survive a motion to dismiss. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed. 2d 929 (2007). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed. 2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Bell Atlantic Corp., 127 S.Ct. at 1964-65 (some citations omitted).

In a pro se civil rights case, the complaint must be construed liberally to afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 623 (9th Cir. 1988). Before dismissing a pro se civil rights complaint for failure to state a claim, the plaintiff should be given a statement of the complaint's deficiencies and an opportunity to cure. Id. Only if it is absolutely clear that the deficiencies cannot be cured by amendment should the complaint be dismissed without leave to amend. Id.

A. Failure to Provide Adequate Medical Care

Plaintiff's claims are based on federal prison officials' response to an injury to Plaintiff's hand. Plaintiff alleges that doctors and other prison officials failed to provide adequate medical care and therefore violated Plaintiff's constitutional rights.

The Eighth Amendment prohibits the imposition of cruel and unusual punishment and "embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency." Estelle v. Gamble, 429 U.S. 97, 102, 97 S.Ct. 285, 50 L.Ed. 2d 251 (1976). [A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, "sufficiently serious". . . The second requirement follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eight Amendment." To violate the Cruel and Unusual Punishments Clause, a prison official must have a "sufficiently culpable state of mind," . . . deliberate indifference.

Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed. 2d 811 (1994) (citations omitted). To act with deliberate indifference an official must have knowledge of an excessive or substantial risk of serious harm to the inmate's health and must deliberately disregard that risk. Id., 511 U.S. at 837; Johnson v. Lewis, 217 F.3d 726, 734 (9th Cir. 2000). Deliberate indifference describes a state of mind more blameworthy than negligence. Farmer, 511 U.S. at 835.

Deliberate indifference "may be manifested in two ways. It may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights. Id.

Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend "evolving standards of decency" in violation of the Eighth Amendment.

Estelle, 429 U.S. at 106.

Plaintiff alleges that Defendants Nguyen, Chakmakian, Compton, Fernandez, Craig, Castillo, Malingkas, Norwood, and Holencik failed to provide adequate medical care for Plaintiff's hand. (Second Amended Complaint, at 3-4, 6-7, 12-14, 17-18.) However, Plaintiff's allegations are not sufficient to constitute a violation of the Eighth Amendment. In sum, Plaintiff's allegations are that prison medical officials at the various institutions disagreed over treatment plans or -- at worst -- that they were negligent in the care of Plaintiff's injury. Neither rises to the level of "deliberate indifference" required to plead an Eight Amendment claim: "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." Estelle, 429 U.S. at 106; Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) ("Mere negligence in diagnosing or treating a medical condition, without more, does not violate a prisoner's Eighth Amendment rights.") (quotation omitted). The same is true of Plaintiff's allegations that medical personnel came to differing conclusions about his condition. See Estelle, 429 U.S. at 107 ("[T]he question whether an x-ray or additional diagnostic techniques or forms of treatment is indicated is a classic example of a matter for medical judgment. A medical judgment not to order an x-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice . . .); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) ("[A] plaintiff's showing of nothing more than 'a difference of medical opinion' as to the need to pursue one course of treatment over another [is] insufficient, as a matter of law, to establish deliberate indifference.").

Accordingly, Plaintiff has not sufficiently pleaded an Eighth Amendment claim against any of the named medical personnel.

Moreover, Plaintiff has failed to state a claim against Defendants Compton, Norwood, and Holencik to the extent that Plaintiff alleges they acted in a supervisory role in his medical treatment. "[A] supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." MacKinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995) (quotation omitted). Since Plaintiff has not stated a constitutional violation in his care, he also has not set forth a cognizable claim against any of the supervisors of his medical care. City of Los Angeles v. Heller, 475 U.S. 796, 798-99, 106 S.Ct. 1571, 89 L.Ed. 2d 806 (1986).

Thus, the Second Amended Complaint must be dismissed with leave to amend to allow Plaintiff to properly plead an Eighth Amendment claim, if the facts and circumstances warrant such a claim.

B. Conspiracy

Plaintiff alleges that Defendants Brewer, Hiatt, Clinton, and Hill "conspired to obstruct justice" and to deny medical care. (Second Amended Complaint, at 8-9.) Plaintiff offers no other details in support of this broad allegation. A plaintiff may allege that defendants conspired to violate the plaintiff's constitutional rights but in order to do so successfully must include allegations of unlawful intent. See Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 920 (9th Cir. 2004). Plaintiff has not done so. Of course, here, Plaintiff also has not alleged any facts demonstrating any constitutional violation. Accordingly, the conspiracy claims must be dismissed with leave to amend should the facts warrant amendment. Id.

C. Retaliation for Exercising First Amendment Rights

Finally, the Court understands Plaintiff to allege that he was retaliated against by Defendants Compton, Brewer, Hiatt, Norwood, Clinton, and Hill for exercising his First Amendment rights to grieve his medical treatment. (Second Amended Complaint, at 8-9, 13-14, 16-18.) Retaliation claims may state a valid civil rights cause of action. Pratt v. Rowland, 65 F.3d 802, 806 (9th Cir. 1995).

However, in order to state a claim for relief, a plaintiff must aver that the allegedly retaliatory action (here, reclassification or housing placement) "did not advance legitimate goals of the correctional institution or was not tailored narrowly enough to achieve such goals." Id. Plaintiff has made no such allegations. Moreover, to the extent that the retaliation claim is not clearly pleaded, it cannot withstand dismissal. Therefore, Plaintiff's retaliation claims must be dismissed with leave to amend. Any new claims must be plainly explained to the Court.

D. Racial and/or Religious Discrimination

Plaintiff makes a vague allegation that racial and/or religious were at play in his medical treatment. (Second Amended Complaint, at 16.) This is the least developed of his claims: he adds no allegations that any particular Defendant acted on the basis of such discrimination rather than for an appropriate purpose. This vague claim cannot be the basis for relief. It is dismissed with leave to amend should the facts warrant amendment.


For all the foregoing reasons, it is hereby ORDERED as follows:

1. Defendants' Motions to Dismiss (docket nos. 44, 46) are GRANTED;

2. The Second Amended Complaint is dismissed with leave to amend for failure to state a claim pursuant to 42 U.S.C. § 1983, for improper service, and for failure to state any substantive claim for relief as to Defendants Nguyen, Chakmakian, Compton, Brewer, Hiatt, Fernandez, Castillo, Malingkas, Norwood, Craig, Holencik, Clinton, and Hill;

3. The Second Amended Complaint is dismissed without leave to amend for lack of jurisdiction as to Defendants Schmidt, Miroshnick, Sims, Bay, and Keane.

Plaintiff shall have twenty-one (21) days from the date of this Order to file a Third Amended Complaint. The Third Amended Complaint must comply with all the applicable provisions of the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (codified in Sections of Titles 18, 28 and 42 U.S.C.), the Federal Rules of Civil Procedure, and the Local Rules for the Central District of California.

The Third Amended Complaint must be labeled with the case number assigned to this case, and must be labeled "Third Amended Complaint." In addition, Plaintiff is informed that the Court cannot refer to a prior pleading in order to make Plaintiff's Third Amended Complaint complete. Local Rule 15-2 requires that an amended complaint be complete in and of itself without reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

Any amended complaint must comply with Federal Rule of Civil Procedure 8(a) and 8(e), which require, inter alia, a short and plain statement of Plaintiff's complaints. Plaintiff must discretely number each claim and present supporting facts and legal authority in a clear and concise manner. Plaintiff is encouraged to use the Court's form civil rights complaint to aid the Court's review. The Court Clerk is hereby directed to enclose with this Order two copies of the form civil rights complaint.

Plaintiff shall not add any new claims to the Third Amended Complaint without requesting leave to amend. The leave to amend granted in this Order refers only to the claims specified above. Plaintiff also is cautioned that because he has been granted leave to amend before, he should not anticipate receiving further opportunities to amend any Third Amended Complaint.

Plaintiff may request service by the United States Marshal. Fed. R. Civ. P. 4(c)(3). The Court will defer determining whether to issue an order directing service of process by the United States Marshal upon any Defendant pending receipt of a Third Amended Complaint which states a cognizable claim for relief. At such time, the Court also will consider extending the time for service beyond the 120-day limit (which ran from the date of the filing of the original complaint). See Fed. R. Civ. Proc. 4(m).

If Plaintiff elects not to file a Third Amended Complaint within twenty-one (21) days from the date of this Order, this Court will recommend that this action be dismissed with prejudice for failure to prosecute and/or failure to comply with this Court's order. See Fed. R. Civ. P. 41(b); Local Rules of the Central District of California, Rule 41-1; see also Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed. 2d 734 (1962).

DATED: January 29, 2009

JEFFREY W. JOHNSON United States Magistrate Judge


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