ORDER SUA SPONTE DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)
GONZALO P. CURIEL, District Judge.
On September 5, 2012, Dwight Boyd Taylor ("Plaintiff"), currently detained at the San Diego Correctional Facility located in San Diego, California, and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1) Plaintiff did not prepay $350 filing fee mandated by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). On October 16, 2012, District Judge Irma E. Gonzalez granted Plaintiff's Motion to Proceed IFP but simultaneously dismissed his Complaint for failing to state a claim upon which relief may be granted. (ECF No. 3.) Plaintiff was granted leave to file an Amended Complaint in order to correct the deficiencies of pleading identified in the Court's Order. ( Id. at 6-7.) On October 22, 2012, this matter was transferred to the docket of United States District Judge Gonzalo P. Curiel. (ECF No. 4.) Plaintiff filed his First Amended Complaint ("FAC") which was also sua sponte dismissed by the Court for failing to state a claim upon which relief could be granted. (ECF No. 6.) Plaintiff has now filed his Second Amended Complaint ("SAC"). (ECF No. 7.)
In the Court's previous Orders, Plaintiff was cautioned that any Defendants not named and any claims not re-alleged in his Amended Complaint would be considered waived. (ECF No. 6 at 6 citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)). In Plaintiff's Second Amended Complaint, he no longer names Defendants DHS/ICE El Centro Detention Center or El Centro Processing Center. Thus, these Defendants are DISMISSED from this action.
SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)
Any complaint filed by a person proceeding IFP is subject to sua sponte dismissal by the Court to the extent it contains claims which are "frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim."). "[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6).").
The Court notes that while Plaintiff again purportedly brings this action under § 1983, the Court will liberally construe his claims to arise under Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971) because Plaintiff claims violations of his civil rights by a federal actors. Bivens established that "compensable injury to a constitutionally protected interest [by federal officials alleged to have acted under color of federal law] could be vindicated by a suit for damages invoking the general federal question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331]." Butz v. Economou, 438 U.S. 478, 486 (1978). "Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens. " Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).
To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor. Id .; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988). Bivens provides that "federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights." Western Center for Journalism v. Cederquist, 235 F.3d 1153, 1156 (9th Cir. 2000). However, a Bivens action may only be brought against the responsible federal official in his or her individual capacity. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Bivens does not authorize a suit against the government or its agencies for monetary relief. FDIC v. Meyer, 510 U.S. 471, 486 (1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988); Daly-Murphy, 837 F.2d at 355.
Plaintiff's Second Amended Complaint, while far from clear, appears to allege that Defendants failed to provide him with adequate medical care while he was housed at the El Centro Processing Center in violation of his Eighth Amendment rights. (SAC at 3-5.) It appears as though Plaintiff is a detainee at the time the claims found in his Second Amended Complaint arose. Thus, the Eighth Amendment may not apply to him. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) ("Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.... [and] the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law."); Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) ("Because [petitioner] had not been convicted of a crime, but had only been arrested, his rights derive from the due process clause rather than the Eighth Amendment's protection against cruel and unusual punishment.").
Rather, if Plaintiff was a detainee at the time his claims arose, his conditions of confinement claims must be analyzed under "the more protective" substantive due process standard. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir. 2004); see also Wolfish, 441 U.S. at 538-39 ("Absent a showing of an express intent to punish on the part of detention facility officials, ... if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment.'"); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) ("The concept of substantive due process, ' semantically awkward as it may be, forbids the government from depriving a person of life, liberty, or property in such a way that shocks the conscience' or interferes with rights implicit in the concept of ordered liberty.'") (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). However, "the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: persons in custody ha(ve) the established right not to have officials remain deliberately indifferent'" to their needs. Gibson, 290 F.3d at 1187 (quoting Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Court will therefore look to Eighth Amendment standards to determine the minimum level of protection afforded Plaintiff.
The Eighth Amendment prohibits any punishment which violates civilized standards of decency or involves the "unnecessary and wanton infliction of pain." Ingraham v. Wright, 430 U.S. 651, 670 (1977) (citing Estelle v. Gamble, 429 U.S. 97, 102-03 (1976)). Where an inmate's claim is one of inadequate medical care, the inmate must allege "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Such a claim has two elements: "the seriousness of the prisoner's medical need and the nature of the defendant's response to that need." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1991), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997). A medical need is serious "if the failure to treat the prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" McGuckin, 974 F.2d at 1059 (quoting Estelle, 429 U.S. at 104). Indications of a serious medical need include "the presence of a medical condition that significantly affects an individual's daily activities." Id. at 1059-60. By establishing the existence of a serious medical need, an inmate satisfies the objective requirement for proving an Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Even if Plaintiff has alleged facts sufficient to establish the existence of a serious medical need, he must also allege that each Defendant's response to his need was deliberately indifferent. Farmer, 511 U.S. at 834. In general, deliberate indifference may be shown when prison officials deny, delay, or intentionally interfere with a prescribed course of medical treatment, or it may be shown by the way in which prison medical officials provide necessary care. Hutchinson v. United States, 838 F.2d 390, 393-94 (9th Cir. 1988). Before it can be said that an inmate's civil rights have been abridged with regard to medical care, however, "the indifference to his medical needs must be substantial. Mere indifference, ' negligence, ' or medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-06). See also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
While Plaintiff's Second Amended Complaint is not entirely clear, the facts Plaintiff alleges are insufficient to find deliberate indifference on the part of any named Defendant. Plaintiff claims that he fell in the shower and injured his knee on June 24, 2012. (SAC at 3.) Following this incident, Plaintiff informs the Court that he was examined by Defendant Johnson, who referred Plaintiff to an outside hospital where he received further medical treatment, including an MRI of his knee. ( Id. ) The only allegations against Defendant Been relate to Plaintiff's allegations that Defendant Been, a medical provider, reassigned Plaintiff to be housed in general population without first reviewing the results of Plaintiff's MRI. ( Id. ) Plaintiff's own allegations demonstrate that he received treatment and medication following his injury. There are simply no factual allegations that any of the named Defendants were deliberately indifferent to his serious medical need and thus, Plaintiff's claims of inadequate medical care must be dismissed for failing to state a claim.
Plaintiff also alleges that Defendants failed to protect him from harm when he fell in the shower and injured his knee. ( See SAC at 3.) In order to state a failure to protect claim, Plaintiff must allege facts sufficient to show that Defendants were "deliberately indifferent, " that they were aware of, but nevertheless consciously disregarded an excessive risk to his health or safety. Farmer, 511 U.S. at 834. If the official is not alleged to have actual knowledge of a serious risk of harm, but is alleged to be aware of facts from which the inference could be drawn that a substantial risk of ...