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Williams v. Sanders

United States District Court, Ninth Circuit

May 9, 2013

Scott Williams
Linda Sanders, et al.


OSWALD PARADA, Magistrate Judge.



On April 30, 2013, Scott Williams ("Plaintiff") lodged for filing what purports to be a Civil Rights Complaint pursuant to Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ("Complaint"), along with an in forma pauperis application in order to proceed without payment of the full filing fee and a motion for a temporary restraining order/preliminary injunction. (ECF No. 1.) Because Plaintiff has requested leave to proceed in forma pauperis, the Court has screened the Complaint for the purpose of determining whether the action is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. ยงยง 1915(e)(2), 1915A.

For the reasons set forth below, Plaintiff is ordered to show cause why his in forma pauperis application should not be denied.



A. Summary of Plaintiff's Allegations.

The named Defendants in the Complaint are as follows: (1) Linda Sanders, former Warden of the Federal Correctional Complex ("FCC") at Lompoc, California; (2) Oscar Salcido, mid-level practitioner at FCC Lompoc; (3) H. Rada, mid-level practitioner at FCC Lompoc; (4) E. Casino, mid-level practitioner at FCC Lompoc; (5) Richard Gross, D.O. (Doctor of Osteopathy) at FCC Lompoc; (6) Leonardo Giron, M.D. and Clinical Director at FCC Lompoc; (7) Jaspal Dahliwahl, M.D. at FCC Lompoc; (8) Evelyn Castro, M.D. at Federal Correctional Institution ("FCI") at Terminal Island, California; (9) Jose Esquentini, physician's assistant at FCC Victorville; (10) Jesus Fernandez, M.D. at FCC Victorville; (11) Bridgette Wolverton, physician's assistant at FCC Victorville; (12) Ladrew Price, emergency medical technician at FCC Victorville; (13) Angel Ortiz, M.D. and Clinical Director at FCC Victorville; (14) Federal Bureau of Prisons; (15) FCI Terminal Island; and (16) United States of America. Plaintiff alleges two claims, an Eighth Amendment claim based on deliberate indifference to his serious medical needs and a negligence claim under the Federal Tort Claims Act ("FTCA"). Plaintiff does not indicate whether Defendants are sued in the individual or official capacities. Plaintiff seeks damages, declaratory relief, and injunctive relief. (Compl. at 1-6.)

In the Complaint, Plaintiff alleges that he sustained injuries to his neck and back after falling off his upper bunk in March 2012 while housed at FCC Lompoc. He had previously undergone surgery and treatment for brain cancer. He was prescribed 200mg of morphine sulfate twice daily as part of his treatment regimen. The crux of Plaintiff's allegations are that he was not given sufficient amounts of morphine sulfate to manage his pain by Defendants Salcido, Rada, Casino, Gross, Giron, Dahliwahl, and Sanders while housed at FCC Lompoc, by Defendants Price, Ortiz, Esquentini, and Wolverton while housed at FCC Victorville, and by Defendants Fernandez and Castro while housed at FCI Terminal Island. Plaintiff also appears to allege that Defendants Salcido and Castro improperly delayed performing an x-ray and/or MRI on Plaintiff's neck. Plaintiff was housed at FCC Lompoc sometime before March 2012 until May 2012. He was then transferred to FCC Victorville on May 29, 2012. He was finally transferred to FCI Terminal Island on or about June 2, 2012. (Id. at 3-6.)

B. The Complaint Is Subject to Dismissal Based on Sovereign Immunity.

Absent an express waiver, sovereign immunity shields the Federal Government and its agencies from suit. Loeffler v. Frank , 486 U.S. 549, 554, 108 S.Ct. 1965, 100 L.Ed.2d 549 (1988); Federal Housing Administration v. Burr , 309 U.S. 242, 244, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the "terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also United States v. Mitchell , 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) ("It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction."); Arnsberg v. United States , 757 F.2d 971, 977-78 (9th Cir. 1985) (no right to money damages against United States without sovereign immunity waiver). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed" by Congress. United States v. King , 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). Without such a waiver, the courts have no jurisdiction to entertain a suit against the United States. Sherwood , 312 U.S. at 586; Gilbert v. DaGrossa , 756 F.2d 1455, 1458 (9th Cir. 1985) (where suit has not been consented to by United States, dismissal of action is required.).

Moreover, the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants when such suit is based on actions done in their official capacities. See Gilbert , 756 F.2d at 1458. However, a Complaint that seeks damages against government officials in their individual capacity would not be barred by sovereign immunity. Id. at 1459.

The United States, through the FTCA[1], has made a limited waiver of sovereign immunity. FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (Federal Tort Claims Act waived sovereign immunity for "certain torts committed by federal employees."). The FTCA waiver of sovereign immunity does not, however, extend to constitutional claims. Although individual employees of the Federal Government may be sued for alleged violations of a plaintiff's constitutional rights, see generally Bivens , 403 U.S. at 388, such claims may not be asserted against the Federal Government itself. See FDIC , 510 U.S. at 477-78; Clemente v. United ...

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