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Smith v. Puentes

October 14, 2009

JONAS DAVID SMITH, PLAINTIFF,
v.
GEORGINA PUENTES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE DISTRICT COURT GRANT DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM AND DENY DEFENDANTS' MOTION TO STRIKE AS MOOT IN LIGHT OF DISMISSAL OF COMPLAINT

(Doc. 17)

OBJECTIONS DUE WITHIN THIRTY DAYS

Findings and Recommendations on Defendants' Motion to Dismiss

I. Procedural and Factual Background

Plaintiff Jonas David Smith, a former federal prisoner at Taft Correctional Center ("TCI"), proceeds pro se in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors.*fn1 Plaintiff also alleges claims for intentional infliction of emotional distress and negligent hiring and supervision under California law. Plaintiff filed his first amended complaint on February 19, 2009 (doc. 7). On March 20, 2009, defendants filed a motion to dismiss the complaint under F.R.Civ.P. 12(b)(6) and a motion to strike the punitive damages claim under F.R.Civ.P. 12(f) (doc. 17).*fn2

Facts Alleged in Complaint. Plaintiff entered TCI on August 5, 2005. Before his incarceration, plaintiff injured his back and neck. Accordingly, Nedukwe Odeluga, M.D., a TCI physician, restricted plaintiff's activities, prescribing no food service, a lower bunk with a second mattress, no stair or ladder climbing, and no lifting of objects weighing more than fifteen pounds. Odeluga prescribed Naproxen*fn3 for pain.

Despite plaintiff's medical restrictions, he was assigned to work as an orderly in the power house, responsible for unspecified care of the building's interior and exterior, including the sewage grinder. Plaintiff's job aggravated his pre-existing back and neck injuries. On October 27, 2005, plaintiff saw the nurse and complained of increased back pain, a sharp pain in his right shoulder blade, and numbness in his right arm and hand. The nurse advised plaintiff that no doctor's appointment was available for at least four weeks. (The complaint does not disclose whether plaintiff was given an appointment or later saw a doctor.) On November 8 and 14, 2005, complaining of flu-like symptoms and continued neck, arm, hand, shoulder, and lower back pain, plaintiff again saw the nurse. Each time that plaintiff reported to sick call, he was able only to see a nurse, not a doctor, and each time, the nurse advised plaintiff that she was not authorized to grant him sick leave from his job. During the third visit, the nurse suggested that plaintiff discuss violations of his medical restrictions with his prison counselor.

Plaintiff's unnamed girlfriend is a physician. When she visited on November 4 and 5, 2005, she examined plaintiff by feeling his neck and back through his clothing. Plaintiff alleges that the examination was observed by a guard stationed within fifteen feet of the couple but no incident report was filed. On November 9, 2005, plaintiff's girlfriend wrote to Dr. Odeluga, reporting plaintiff's neck and back pain, and indicating her concern that permanent injury could result.

On November 13, 2005, plaintiff file a request for extended visitation with his girlfriend when she visited on December 2 and 3, 2005. The complaint alleges that plaintiff received no response, but discloses nothing further.

On November 21, 2005, plaintiff met with his counselor, defendant Oliver. Oliver reassigned plaintiff to another orderly position, which only required plaintiff to clean sinks.

On December 2, 2005, plaintiff's girlfriend arrived at TCI and was denied visitation. She contacted Oliver, who did not provide a reason for her removal from plaintiff's visitor list. After plaintiff learned that his girlfriend was denied visitation, defendant Soto, plaintiff's unit manager, advised him that his girlfriend had been removed from the visitor list because of her letter to Dr. Odeluga.

Thereafter, plaintiff filed an administrative appeal which was denied at all levels. The complaint does not disclose the content of plaintiff's grievance.

Plaintiff also secured a letter to prison administrators from Senator Patty Murray, advocating for plaintiff's health care and visitation rights.

Plaintiff's girlfriend was not permitted to visit until May 11, 2006, nearly six months later. According to plaintiff, his girlfriend's visitation rights were only reinstated after he threatened to file federal civil rights litigation.

In addition to defendants Soto and Oliver, plaintiff names as defendants Georgina Puentes, TCI camp administrator and assistant warden; Bernard Ellis, TCI warden; Dale Patrick, TCI administrative remedy coordinator; and The GEO Group, Inc., TCI's corporate operator.

II. Standard of Review -- Rule 12(b)(6) Motion to Dismiss

"The focus of any Rule 12(b)(6) dismissal . . . is the complaint." Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998). A court may not look outside of the pleadings to resolve the motion.*fn4 In considering a motion to dismiss for failure to state a claim, a court must accept as true the allegations of the complaint in question, construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 740 (1976); Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969).

"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949, quoting Twombly, 550 U.S. at 555.

While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949. The statement must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. The court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended by 275 F.3d 1187 (2001).

Plaintiff's amended complaint fails at this elementary level. Plaintiff's claims are vague and unsupported, and, for the most part, fail to identify which defendants are liable for each alleged violation and what facts support that liability. The complaint sets forth few factual allegations and does not tie those facts to its legal claims. As a result, the court is left to guess what each claim is really about. Because of the total absence of facts to support each conclusory legal claim, plaintiff's amended complaint includes no federal civil rights claim on which relief may be granted.

III. Bivens Claims

A Bivens cause of action is a judicially created counterpart to 42 U.S.C. § 1983 for claims against federal officers. Since federal officials do not ordinarily act under color of state law, constitutional violations by federal officials are generally beyond the reach of § 1983. In Bivens, the Supreme Court established that "victims of a constitutional violation by a federal agent have a right to recover damages against the ...


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