The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART (Doc. 43.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
James R. Willis ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiff filed the Complaint commencing this action on September 28, 2009. (Doc. 1.) The case now proceeds with the Third Amended Complaint filed on July 8, 2011, against defendant United States for negligence under the FTCA; and against defendants Warden Dennis Smith, Associate Warden Belinda Avalos, Lieutenant ("Lt.") Cobb, Lt. Paul, Unit Manager Devere, Unit Manager Mrs. Bowles, Case Manager Liwag,*fn1 and Associate Warden Carolyn Gant for failure to protect Plaintiff, in violation of the Eighth Amendment.*fn2 (Doc. 24.)
On June 20, 2012, Defendants filed a motion to dismiss the Third Amended Complaint under Rule 12(b)(6) for failure to state a claim, to dismiss Plaintiff's negligence claims under Rule 12(b)(1) for want of subject matter jurisdiction, to dismiss Plaintiff's Bivens claims based on qualified immunity, and to dismiss defendant Gant under Rule 12(b)(5) for failure to effect service. (Doc. 43.) On July 16, 2012, Plaintiff filed an opposition to the motion. (Docs. 47, 48.) On August 20, 2012, Defendants filed a reply to the opposition. (Doc. 51.) Defendants' motion to dismiss is now before the Court.
II. MOTION TO DISMISS -- RULE 12(b)(6)
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the complaint. The first step in testing the sufficiency of the complaint is to identify any conclusory allegations. Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1950 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citations and quotation marks omitted). Although the court must accept well-pleaded factual allegations of the complaint as true for purposes of a motion to dismiss, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id.
After assuming the veracity of all well-pleaded factual allegations, the second step is for the court to determine whether the complaint pleads "a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949, 1950 (citing Twombly, 550 U.S. at 556, 570) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). A claim is facially plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949 (citing Twombly, 550 U.S. at 556). The standard for plausibility is not akin to a "probability requirement," but it requires "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. 556).
III. SUMMARY OF THE THIRD AMENDED COMPLAINT
Plaintiff is currently incarcerated at the United States Penitentiary in Tucson, Arizona ("USP-Tucson"). The events at issue in the Third Amended Complaint allegedly occurred at the United States Penitentiary in Atwater, California ("USP-Atwater"), while Plaintiff was incarcerated there. Plaintiff names as defendants Warden Dennis Smith, Associate Warden Belinda Avalos, Associate Warden Carolyn Gant, Lieutenant Cobb (Special Investigation Supervisor ("SIS")), Lieutenant Paul, Mr. Devere (Unit Manager for Buildings 4A, 5A, and 5B), Mrs. Bowles (Unit Manager for Building 6), Mr. Li Wag (Case Manager), and the United States.
Plaintiff alleges as follows in the Third Amended Complaint.
On April 15, 2007, Plaintiff was assaulted at the United States Penitentiary in Victorville, California ("USP-Victorville") and was subsequently transferred to USP-Atwater. It was documented in Plaintiff's Central File that he was assaulted because of his sex-offender label.
On June 12, 2007, upon arrival at USP-Atwater, Plaintiff was interviewed by defendant Lt. Cobb. Plaintiff told defendant Cobb about his assault at USP-Victorville due to his status as a sex-offender and told Cobb that he had at least one known enemy at USP-Atwater. Defendant Cobb acknowledged that he was aware of Plaintiff's history and knew Plaintiff's enemy, Kenneth Mattox. Defendant Cobb placed Plaintiff in the Special Housing Unit ("SHU"), pending an investigation.
On June 14, 2007, Plaintiff spoke to his case manager, defendant Wag, explained his situation, and gave him a Cop-Out (written request) explaining his safety concerns. Defendant Wag did not respond to the Cop-Out.
On June 21, 2007, Plaintiff spoke to defendant Warden Smith about his situation. Warden Smith told Plaintiff that when the investigation was concluded, a decision would be made whether to transfer Plaintiff.
In late June or early July of 2007, Plaintiff explained his situation to defendant Unit Manager Devere. Defendant Devere told Plaintiff that he would contact SIS Lt. Cobb about the investigation. Defendant Devere told Plaintiff he was going on sick leave, and defendant Bowles would be handling his caseload during his absence.
On July 7, 2007, Plaintiff wrote a letter to Regional Director Robert McFadden, explaining his situation. The letter was received by McFadden on July 12, 2007. A copy was forwarded to Warden Smith. On August 13, 2007, Warden Smith responded that the investigation was completed, the threat against Plaintiff was unverified, and Plaintiff would be released into the General Population. SIS never interviewed Plaintiff while he was in the SHU. Upon receipt of this information, Plaintiff sought a transfer and enlisted his mother's assistance. Plaintiff's mother called and spoke to defendants Wag and Devere, reiterating Plaintiff's safety concerns and pleading for a transfer, but the transfer was not granted. She wrote at least four letters, two to Mr. McFadden, one to Harley Lappin (Director of the BOP), and one to Warden Smith, during August and September 2007. These letters were sent down the chain of command to Warden Smith, defendant Devere, and defendant Wag, and placed in Plaintiff's Central File.
In August 2007, Plaintiff wrote a Cop-Out to defendant Wag, requesting a transfer and reminding Wag of his safety concerns.
On August 17, 2007, Plaintiff wrote Cop-Outs to Warden Smith, conveying his concerns that the threat against him was determined to be unverified. Plaintiff explained the history of threats against him due to his sex-offender status and told the Warden that he feared for his life if forced into the General Population. Plaintiff knew that USP-Atwater was a very violent and dangerous prison controlled by gangs, and that inmates labeled as sex offenders or snitches were routinely assaulted.
On August 17, 2007, Plaintiff wrote a Cop-Out to defendant Bowles about his known enemy, Kenneth Mattox, and the threats against Plaintiff. Plaintiff handed the Cop-Out to Bowles, who assured Plaintiff she would look into this matter, but she never responded to the Cop-Out. A record of this Cop-Out is in Plaintiff's Central File.
Associate Warden Gant responded to the Cop-Out Plaintiff sent to Warden Smith. Plaintiff spoke to Gant on at least three occasions, during her routine visits to the SHU, informing her of the threat that existed against him.
On August 24, 2007, Associate Warden Avalos responded to Plaintiff's mother's correspondence, on Warden Smith's behalf. Avalos stated that the threat against Plaintiff was not substantiated, but USP-Atwater staff had decided to transfer Plaintiff. No such transfer occurred.
In September 2007, Plaintiff spoke to Associate Warden Avalos and told her that the SIS Department had not come to see him about the investigation since his placement in the SHU, and that he was not scheduled for transfer. Plaintiff told her of his safety concerns and asked for the investigation to be reopened. Avalos said she would look into the matter, but Plaintiff did not receive a new investigation or a transfer.
On September 14, 2007, Plaintiff filed a BP-8 informal resolution form with his Unit Counselor Mr. Putnam, requesting administrative remedies. The BP-8 form was never responded to. Plaintiff proceeded to file a BP-9 form, Log number #466507-F1, with defendants Wag and Devere, explaining his safety concerns and requesting a transfer. The BP-9 form was rejected because the BP-8 form was not attached as required, even though a BP-9 form of a serious or life threatening nature should be processed without completion of a BP-8 informal resolution.
On September 19, 2007, Plaintiff spoke to defendant Lt. Paul in Paul's office about his safety concerns, and Paul agreed that if Plaintiff's allegations were true, Plaintiff would be in danger in the General Population. Although Plaintiff pleaded with Lt. Paul to place him on Protective Custody status, Lt. Paul told Plaintiff he would be ordered to the General Population, and if he refused the order, he would receive incident reports for refusing to program.
On September 25, 2007, Plaintiff was ordered to leave the SHU and was placed in the General Population. Plaintiff was approached by several gang members who told him that Kenneth Mattox was waiting to see him. Plaintiff met with Mattox, who was accompanied by several other gang members, without incident. On September 26, 2007, Plaintiff again encountered Mattox, who was accompanied by six other inmates. Mattox told Plaintiff there was a rumor that Plaintiff was a "RAPO" (imprisoned on a sex offense), and Plaintiff had three weeks to produce paperwork disproving it. Immediately after this confrontation, Plaintiff spoke to his Unit Manager defendant Devere and told him about the conversation with Mattox. Devere took no action to protect Plaintiff.
On October 9, 2007, during the noon meal, Plaintiff was attacked and brutally assaulted by six inmates, while inmate Mattox acted as a lookout. There were no correctional officers present on the sidewalk at the time of the assault. The assault occurred in plain view of Housing Units 6A and 6B, the Lieutenants Office, and the Central Yard tower, but staff did not assist Plaintiff. Plaintiff was severely beaten for three to five minutes, and kicked and stomped with hard-toed boots. Plaintiff's head was severely swollen and misshapen, his left eye was swollen completely shut, his nose was broken, his left sinus cavity was fractured, and he had deep lacerations on his scalp and multiple scrapes and contusions all over his body. Plaintiff was taken to Mercy Medical Center in Merced, California, and required corrective surgery to repair his face. Plaintiff also suffered a concussion.
Plaintiff continues to have headaches, blurred vision, and dizzy spells. Plaintiff also suffers from panic attacks, paranoia, and violent nightmares as a result of the attack.
A. Negligence Claims -- Federal Tort Claims Act (FTCA)
Plaintiff brings a negligence claim under the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, which waives the sovereign immunity of the United States for certain torts committed by federal employees. FDIC v. Meyer, 114 S.Ct. 996, 1000 (1994).
The elements of a negligence claim are duty, breach of duty, proximate cause, and damages. Minch v. Department of California Highway Patrol, 140 Cal.App.4th 895, 900-01 (Cal. App. 2006). Plaintiff alleges that the United States owed him a duty to protect him from being assaulted and breached that duty due to the negligent acts or omissions of its agents, the Defendants. Plaintiff alleges that Defendants failed to investigate Plaintiff's repeated requests for protective custody, failed to transfer Plaintiff, failed to monitor the movement of inmates at the time Plaintiff was assaulted, failed to process Plaintiff's prison grievance, failed to notice indicators that an assault was about to occur, and failed to render assistance to Plaintiff while he was being assaulted. Plaintiff alleges that as a result of Defendants' conduct, he suffered serious injuries.
The Court found that Plaintiff states a claim for negligence against the United States for the conduct of defendants Smith, Avalos, Cobb, Paul, Devere, Bowles, Wag, and Gant. (Doc. 29.)
A Bivens action is the federal analog to suits brought against state officials under 42 U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695 (2006). Plaintiff alleges that individual prison employees at USP-Atwater violated his constitutional rights, which suggests a Bivens claim against federal officers. Iqbal, 129 S.Ct. at 1947-48 (citing Bivens, 403 U.S. 388, 91 S.Ct. 1999 (1971)); Correctional Serv. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 519 (2001); Pollard v. GEO Group, Inc., 629 F.3d 843, 854 (9th Cir. 2010). A Bivens claim is only available against officers in their individual capacities, Morgan v. U.S., 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996), and Plaintiff must allege facts linking each named defendant to the violation of his rights, Iqbal, 129 S.Ct. at 1948; Simmons v. Navajo County,Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The factual allegations must be sufficient to state a plausible claim for relief, and the mere possibility of misconduct falls short of meeting this plausibility standard. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
Eighth Amendment Claim - Failure to Protect
In 1980, the Supreme Court held that a federal inmate could bring suit for money damages against federal prison officials under the Eighth Amendment. Carlson v. Green, 446 U.S. 14, 24, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). The Eighth Amendment protects prisoners from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970 (1994) (internal citations and quotations omitted). Prison officials have a duty to take reasonable steps to protect inmates from physical abuse, Id. at 833; Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir. 2005), and the failure of prison officials to protect inmates from attacks by other inmates may rise to the level of an Eighth Amendment violation where prison officials know of and disregard a substantial risk of serious harm to the plaintiff, e.g., Farmer, 511 U.S. at 847; Hearns, 413 F.3d at 1040.
The Court found that Plaintiff states cognizable claims against defendants Smith, Avalos, Cobb, Paul, Devere, Bowles, Wag, and Gant for failure to protect him, in violation of the Eighth Amendment. (Doc. 29.)
V. DEFENDANTS' MOTION TO DISMISS
Defendants seek to dismiss the Third Amended Complaint under Rule 12(b)(6) for failure to state a claim, to dismiss Plaintiff's negligence claims under Rule 12(b)(1) for want of subject matter jurisdiction, to dismiss Plaintiff's Bivens claims based on qualified immunity, and to dismiss defendant Gant under Rule 12(b)(5) for failure to effect service.
A. Rule 12(b)(1) - Subject Matter Jurisdiction
Defendants argue that the Court lacks subject matter jurisdiction over Plaintiff's negligence claims under the FTCA, because the prison officials' actions are protected by the discretionary function exception ("DFE").
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994). The district courts "have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Rule 12(b)(1) of the Federal Rules of Civil Procedure permits dismissal for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).
Discretionary Function Exception of the FTCA
The FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, waives the sovereign immunity of the United States for certain torts committed by federal employees. Meyer, 114 S.Ct. at 1000. "That waiver, however, is limited." Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002). Liability cannot be imposed if the tort claims stem from a federal employee's exercise of 'discretionary function.'" Id. "[T]he discretionary function exception provides an exception to the waiver of immunity from suit under the FTCA for '[a]ny claim based on an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.' 28 U.S.C. § 2680(a)." Green v. U.S., 630 F.3d 1245 (9th Cir. 2011). "The discretionary function exception . . . marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755 (1984) (discretionary function exception barred airline action against the government for negligent aircraft inspection). See ...