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Corrow v. Bureau of Prisons

May 22, 2009

NEIL CORROW, PLAINTIFF,
v.
BUREAU OF PRISONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Terry J. Hatter, Jr. United States District Judge

MEMORANDUM AND ORDER DISMISSING CIVIL RIGHTS COMPLAINT WITH PREJUDICE IN PART AND WITH LEAVE TO AMEND IN PART

I. BACKGROUND

On September 9, 2008, plaintiff Neil Corrow, a federal prisoner proceeding pro se, filed in this Court a Civil Rights Complaint under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) (hereinafter "Complaint"). This Court has screened the Complaint pursuant to 28 U.S.C. § 1915A, the Federal Rules of Civil Procedure and the Local Rules of the Central District of California.

Plaintiff alleges that defendants Federal Correctional Institute, Warden Linda Sanders, Dr. Nguyen, Counselor Cunningham, Case Worker DeBoise, and Unit Manager Johnson violated plaintiff's rights while plaintiff was incarcerated at Lompoc Federal Correctional Institute in Lompoc, California.

(Complaint, pp. 2-5.) Plaintiff also names the Bureau of Prisons and Dr. Patel as defendants in the caption of the Complaint.*fn1 (Id. at 1.) Plaintiff names defendants Sanders, Nguyen, Cunningham, DeBoise, and Johnson in their individual and official capacities. (Id. at 3-4.)

Plaintiff alleges that defendants Nguyen and Sanders were responsible for plaintiff's not receiving his prescribed medication. (Id. at 5.) Plaintiff claims that he submitted requests for a longer stay at a halfway house and for information about a compassionate release. Plaintiff appears to allege that defendants Deboise, Cunningham, and Johnson were responsible for not accommodating plaintiff's requests. (Id. at 5.) Plaintiff seeks $1,000,000.00 in damages from each defendant, and an additional $10,000,000.00 in damages from the Federal Bureau of Prisons. (Id. at 6.)

For the reasons discussed below, the Complaint is dismissed with prejudice in part and dismissed with leave to amend in part.

II. STANDARD OF REVIEW

A court may dismiss a claim upon motion of the defendants or sua sponte pursuant to Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." See Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). A complaint may be dismissed for failure to state a claim upon which relief can be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed. 2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957)). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 48 L.Ed. 2d 338 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed. 2d 404 (1969). However, the "court is not required to accept legal conclusions cast in the form of factual allegations that cannot reasonably be drawn from the facts alleged [citations omitted]." Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994).

Review of a complaint for failure to state a claim is generally limited to the contents of the complaint. See Buckey v. City of Los Angeles, 968 F.2d 791, 794 (9th Cir.), cert. denied, 506 U.S. 999, 113 S.Ct. 599, 121 L.Ed. 2d 536 (1992). However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss, and such material is not "outside" the complaint if the complaint specifically refers to the document(s) and its authenticity is not questioned. See Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (citations omitted), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed. 2d 832 (1994). The Court may also properly consider material submitted as exhibits to the complaint, see Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 (9th Cir. 1990), and documents crucial to the plaintiff's claims, but not explicitly incorporated in the complaint. See Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 510, 142 L.Ed. 2d 423 (1998) (citing Branch v. Tunnell, 14 F.3d at 454). The Court may properly consider matters of public record: for example, pleadings, orders and other papers on file in another action pending before the court, records and reports of administrative bodies, or the legislative history of laws, rules or ordinances. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986).

The complaint may be dismissed where it discloses some fact that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). However, in a pro se civil rights case, the complaint must be construed liberally to afford the plaintiff the benefit of any doubt. KarimPanahi 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. Karim-Panahi, 839 F.2d at 623; see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

III. DISCUSSION

A. Sovereign Immunity

As a sovereign, the United States is immune from suit unless it expressly waives its immunity and consents to be sued. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The United States has not waived its sovereign immunity for suits seeking money damages under Bivens. Arnsberg v. United States, 757 F.2d 971, 980 (9th Cir. 1984), cert. denied, 475 U.S. 1010 (1986). Since the United States is immune from suit, and plaintiff has made no showing that the United States has expressly waived its immunity as to any of ...


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