The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge
MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND
Plaintiff, a federal prisoner proceeding pro se and in forma pauperis, filed a civil rights complaint, pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999 (1971), on August 2, 2012. Plaintiff denominated the complaint a First Amended Complaint, although it was the first complaint filed in this action.*fn1
In screening a pro se civil rights complaint, the Court must construe its allegations liberally and must afford the plaintiff the benefit of any doubt. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). The standard applicable on screening is the standard for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Id. The complaint need not contain detailed factual allegations, but must contain sufficient factual matter to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). If a complaint is dismissed, a pro se litigant must be given leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
Plaintiff is currently incarcerated at the Federal Correctional Institution at Lompoc ("Lompoc"). (First Amended Complaint at 1.) He has sued the following Lompoc officials: B. Halbeisen, activities lieutenant; C. Espinoza, recreation specialist; Victor Flores, unit manager; E. Tan, mid-level practitioner (MLP); David Escalante, counselor; Valerie Ericksen, medical department records and administration employee; Leonardo Giron, medical department director and physician; Dr. Gross, physician; Dr. Dahli-Wahl, medical department administrator; D. Baker, lieutenant; J. Lane-Lewis, lieutenant; A. Salandana, assistant health services administrator (AHSA); J. Brewer, case manager; and Linda Sanders, warden.*fn2 (Id. at 1, 6.) Plaintiff also names as defendants the Federal Bureau of Prisons ("BOP") and Robert McFadden, BOP regional director. (Id.) The BOP is named as a defendant solely for purposes of plaintiff's "alternative claim" under the Federal Tort Claims Act. (Id. at 7.)
Plaintiff alleges that he was refused visitation with his common law wife, Tamyra Love Nesbitt, who was approved as a visitor in 2008 and visited him many times at the two BOP correctional facilities where he was previously incarcerated.*fn3 (First Amended Complaint at 10-11, Ex. 1A.) Plaintiff was told that Nesbitt was not approved as a visitor, because she failed to include her 2001 misdemeanor conviction in her Lompoc visitor update form. (Id. at 10-11.) Nesbitt disclosed this conviction in her original visitor information form, which was on file in the BOP centralized system, and she was told by officials at plaintiff's prior facility that she did not need to mention it again in the update form. (Id. at 10-12, Ex. 1B.)
After plaintiff filed a grievance regarding the matter, defendant Brewer offered to approve Nesbitt as a visitor if plaintiff withdrew his grievance. (First Amended Complaint at 13.) Plaintiff agreed, but a week later Brewer told him that Warden Sanders had intervened and refused to approve Nesbitt as a visitor. (Id.) Plaintiff then proceeded with his grievance. (Id.)
Plaintiff contends that Nesbitt and all others previously approved as his visitors were denied approval to visit him at Lompoc, including his terminally ill mother, who had wanted to visit him one last time, with Nesbitt helping her make the journey. (First Amended Complaint at 14, 18.) Plaintiff's mother died on April 9, 2011, and Warden Sanders refused plaintiff's request for a furlough to attend her funeral. (Id. at 18; Exs. 1D, 1E.)
Plaintiff alleges that, after he filed a grievance contesting the refusal to approve Nesbitt as a visitor, defendant Escalante, who reviewed the grievance in his capacity as plaintiff's counselor, told plaintiff that Warden Sanders would not like it and would "go against" anything plaintiff sought through the administrative remedy process. (First Amended Complaint at 18.) Plaintiff contends that Escalante's comment shows that Warden Sanders refused to permit him to attend his mother's funeral for retaliatory reasons. (Id. at 18-19.) Moreover, on April 8, 2011, defendant Flores told plaintiff, using a racial epithet, that he would "wipe [his] ass" with any administrative grievance plaintiff filed. (First Amended Complaint at 17, Exs. 2A, 2B.)
About a month earlier, on March 4, 2011, plaintiff slipped and fell on a wet spot on the gym floor and ruptured his right Achilles tendon. (First Amended Complaint at 20.) Defendant Espinosa, who was supervising the gym that evening, had previously been informed of the wet spot but did not order it cleaned up. (Id.; Exs. 3A-3C.)
Plaintiff alleges that he received inadequate medical care for his ruptured Achilles tendon. (First Amended Complaint at 23.) Defendant Tan initially diagnosed a sprained ankle and did not order pain medication, although plaintiff was in a wheelchair, unable to walk, and in obvious pain. (Id.) Four days later, plaintiff was prescribed pain medication, but he was directed not to take it until after his surgery. (Id.) Plaintiff finally received pain medication seven days after the injury. (Id. at 23-24.) However, although his surgeon had prescribed Vicodin, Dr. Gross prescribed Tylenol 3, which did nothing to alleviate plaintiff's severe post-surgery pain. (Id. at 24.)
After plaintiff filed a grievance regarding his pain medication, he was instructed to meet with defendant Ericksen. Ericksen told plaintiff that he would be given Vicodin if he withdrew his grievance. (First Amended Complaint at 27.) Plaintiff signed the withdrawal form but never received the promised medication. (Id.)
Plaintiff also alleges that his surgeon prescribed physical therapy, but he has not received any and defendant Giron has declined to order a transfer to an institution where rehabilitative therapy could be provided. (First Amended Complaint at 29, Ex. 3D.) As a result, 15 months after the surgery, plaintiff has difficulty with full extension of the tendon while walking and suffers from tightness and a burning sensation in the affected area. (First Amended Complaint at 29.)
On December 16, 2011, when plaintiff was leaving the dining hall, defendant Halbeisen searched him and found a calendar in his possession, of a type distributed by the prison chaplain to Lompoc inmates. (First Amended Complaint at 30.) According to an attached declaration by another inmate, a clerk at the religious services office had given him some calendars to distribute, and he had given three to plaintiff, asking him to give two of them to other inmates. (Id., Ex. 4A.) Immediately before searching plaintiff, Halbeisen had searched the other inmate, who had the same calendar in his possession, and had returned his calendar to him without taking any action. (Id., Ex. 4A.) Halbeisen and defendant Lane-Lewis took plaintiff into custody, disregarding the other inmate's explanation that plaintiff's calendar was the same as his. (First Amended Complaint at 30, 32.) Defendant Baker helped escort plaintiff. (Id. at 32.) Plaintiff was charged with possession of unauthorized property. (Id.) He was confined to the Special Housing Unit (SHU) for 28 days, fired from his job at Unicor, and his telephone and commissary privileges were suspended. (Id.) This is the first disciplinary punishment plaintiff has received during his ten years of incarceration. (Id. at 31.)
While in the SHU, defendant Halbeisen told plaintiff that Halbeisen "might not let [plaintiff] get out" because Halbeisen "didn't like [plaintiff]'s kind," i.e., "not prisoners, not Mexicans, but your kind." (First Amended Complaint at 30, Exs. 4B, 4C, 4D.) Plaintiff is African-American. (First Amended Complaint at 30.) He and the other inmates who heard the comment, including his Mexican-American cellmate, interpreted it as a racial slur and a threat. (First Amended Complaint at 30, Exs. 4B, 4C.)
Before the religious calendar incident, on Thanksgiving day, plaintiff observed Officer Camacho physically accost an inmate. (First Amended Complaint at 35.) Camacho reported that the inmate was the aggressor. (Id.) On December 19, 2011, plaintiff wrote an affidavit on behalf of the inmate setting forth what he saw. (Id.) After his release from the SHU, plaintiff was questioned regarding the matter. (Id.) Defendant Escalante later told him that defendant Flores had refused to approve his visitor's list because plaintiff provided an affidavit in the Camacho matter. (Id.)
In his "Statement of Claims," plaintiff lists the following claims:
(1) a First Amendment free association claim against Escalante based on his refusal to approve plaintiff's visitor list; (2) retaliation claims against Brewer and Sanders based on their refusal to approve plaintiff's visitor list; (3) retaliation and Title VII claims against Flores for using a racial slur against plaintiff and threatening retaliation for filing grievances; (4) a First Amendment claim against Escalante for threatening adverse action by the warden unless plaintiff withdrew a grievance; (5) an Eighth Amendment claim against Espinoza for deliberate indifference to plaintiff's safety; (6) a negligence claim under the FTCA against the BOP and Espinoza; (7) Eighth Amendment claims for deliberate indifference to plaintiff's serious medical needs against Gross, Dahli-Wahl, Tan, Giron, and Salandana; (8) a tort claim (alleged as a First Amendment retaliation claim in the body of the First Amended Complaint) against Ericksen for misleading plaintiff into withdrawing his grievance; (9) a Title VII claim against defendant Halbeisen for directing a racial slur and threat against plaintiff; and (10) retaliation claims against defendants Halbeisen, Lane-Lewis, and Baker based on plaintiff's disciplinary charge. (First Amended Complaint at 8-9.)
Plaintiff seeks damages and protection from further retaliation. (First Amended Complaint at 37-40.)
I. PLAINTIFF FAILS TO STATE A FIRST AMENDMENT FREE ASSEMBLY CLAIM BASED ON DENIAL OF VISITATION.
Plaintiff asserts a First Amendment freedom of association claim against defendant Escalante for refusing to approve Nesbitt as a visitor. (First Amended Complaint at 8, 10.)
"[F]reedom of association is among the rights least compatible with incarceration," and some curtailment must be expected in the prison context. Overton v. Bazzetta, 539 U.S. 126, 131, 1213 S. Ct. 2162, 2167 (2003). In Overton, the Supreme Court declined to define the extent to which the First Amendment right of association survives incarceration, because it found that the challenged regulations, although quite restrictive, withstood constitutional scrutiny under the four-part test of Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 2261-62 (1987).*fn5
Here, plaintiff is not challenging the Lompoc visitation policy; he is challenging the refusal to approve particular visitors. "[T]here is no constitutional right to 'access to a particular visitor.'" Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996)(quoting Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 461, 109 S. Ct. 1904, 1909 (1989)(holding that "denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and therefore is not independently protected by the Due Process Clause")). A denial of visits by a particular visitor, or a temporary denial of all visitation, does not raise the same constitutional concerns as a blanket withdrawal of all visitation privileges for a protracted period, especially if imposed arbitrarily or irrationally. Dunn v. Castro, 621 F.3d 1196, 1203-05 (9th Cir. 2010); see Overton, 359 U.S. at 137, 123 S. Ct. at 2170 ("If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations").
Applying these principles, the Court finds that plaintiff has not alleged sufficient factual content to plead a First Amendment denial of visitation claim under the Iqbal standards. First, it is unclear whether he is, in fact, alleging a complete denial of visitation during his time at Lompoc. Moreover, except for Nesbitt, he has not alleged what reasons were given to him for the refusal to approve his visitors. If no reasons were given, plaintiff should clearly say so. Finally, although plaintiff asserts this claim against defendant Escalante, he does not allege that Escalante made the decision not to ...