United States District Court, E.D. California
JOHN C. WARD, Plaintiff,
RICHARD IVES, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff, a federal prisoner, is proceeding without counsel in this constitutional tort action brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). He also asserts a common law tort claim pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346. There are several motions pending before the court which include: (1) plaintiff's motion to amend (ECF No. 41); (2) defendants United States of America, Jay Salinas, Ryan Binford, and Joe Fieber's motion to dismiss (ECF No. 44); (3) plaintiff's motion to compel (ECF No. 52); and (4) plaintiff's request to supplement his opposition to defendants' motion to dismiss (ECF No. 56). For the reasons stated below, plaintiff's motions to amend and to compel are denied and his request to supplement his opposition to defendants' motion to dismiss is granted. In addition, the court finds that defendants' motion to dismiss must be granted.
I. Plaintiff's Allegations
Plaintiff sustained a head injury while working in the recycling department at the Federal Correctional Institution ("FCI") Herlong. In the second amended complaint, he claims that on July 13, 2009, while on his work assignment, he fell from a bin, approximately ten feet above the pavement. ECF No. 15, § III, ¶ 1; § IV, ¶¶ 3, 5. He was taken to the hospital, where he received a CAT scan and nineteen staples to close the wound to the back of his head. Id. § III, ¶ 1; § IV, ¶ 5.
Plaintiff claims that defendant Fieber, the institution's "Safety Specialist" and "Recycle Supervisor, " "was told immediately prior to the accident that [plaintiff] was in danger of falling and refused to act, " even though another prisoner had fallen and broken his arm while performing the same task, just six months earlier. Id. § I(B), ¶ 5; § IV, ¶¶ 10, 58.
The recycling supervisors, defendants Binford and Salinas, claimed that they did not learn about plaintiff's accident until two days afterward. Id. § IV, ¶¶ 2, 9. Nevertheless, it was allegedly their responsibility to provide plaintiff with an accident report. Id. § III, ¶; § IV, ¶¶ 15-17. Plaintiff claims that they failed in this regard. Id. § IV, ¶¶ 14, 18.
In the months following the accident, plaintiff purportedly experienced seizures, dizziness, ringing in his ears, and problems with vision, balance, focus, and memory. Id. § III, ¶¶ 2, 5. He claims it was difficult to obtain medical treatment because the medical department had no record of the accident, and plaintiff believed that providing the department with a copy of the accident report would help him obtain the treatment he needed. Id. § IV, ¶¶ 19, 22, 60.
On November 1, 2010, plaintiff filed an administrative appeal requesting a copy of the accident report. Id. § IV, ¶ 19. On November 29, 2010, Binford allegedly told plaintiff that he would give him the accident report and other relevant documents, but only if plaintiff withdrew his appeal. Id. § IV, ¶ 21. Binford and Salinas subsequently presented plaintiff with an incomplete and backdated accident report. Id. § IV, ¶¶ 23-24. After seeing the deficient report, plaintiff refused to cancel his appeal, and defendants refused to provide him with any accident report. Id. § IV, ¶ 26. Defendants Binford and Salinas allegedly claimed that plaintiff was not on his work assignment when the injury occurred (an assertion with which plaintiff adamantly disagrees), and were therefore not required to produce such a report. Id. § IV, ¶¶ 38-42, 63-65.
Plaintiff claims that his medical care was further delayed following the filing of his administrative appeal. Id. § IV, ¶ 49. However, he notes that when he told Binford he could not get a doctor's appointment, Binford secured an appointment for him. Id. § IV, ¶ 32.
According to plaintiff, defendants Salinas, Binford, and Fieber violated his Eighth Amendment rights by "requiring him to work in conditions that were likely to cause serious injury and did result in serious injury. They were deliberately indifferent to a serious known risk, after [a] previous injury [had] recently occurred in the same work area." Id. § V, ¶ 1. Plaintiff also claims that Salinas and Binford "acted in a retaliatory manner when the[y] promised to provide a belated accident report, brought it to Plaintiff, but refused to hand it over when Plaintiff refused to dismiss his administrative remedy." Id. § V, ¶ 4. Lastly, plaintiff claims that defendant, the United States of America, is liable under the Federal Torts Claims Act because the "Defendants are federal employees and Plaintiff suffered a serious head injury while on the work assignment he was required to report to each day." Id. § V, ¶ 5.
II. Plaintiff's Motion to Amend (ECF No. 41)
Plaintiff filed his original complaint in June 2011. ECF No. 1. The court screened the complaint in accordance with 28 U.S.C. § 1915A, determined it did not state a claim upon which relief could be granted, and dismissed it with leave to amend. ECF No. 11. Plaintiff filed a first amended complaint in December 2011. ECF No. 12. Upon screening the first amended complaint, the court found that some of the allegations therein were cognizable while others were not. ECF No. 14. The court informed plaintiff that he could proceed with the claims identified by the court as cognizable or instead, file a second amended complaint. Id. Plaintiff then filed a second amended complaint. ECF No. 15. The court determined that for the limited purposes of section 1915A screening and liberally construed, the second amended complaint stated potentially cognizable Eighth Amendment claims against defendants Salinas, Binford, Fieber, and Gulani,  a First Amendment retaliation claim (and conspiracy to retaliate claim) against defendants Salinas and Binford, and a Federal Tort Claims Act claim against the United States. ECF No. 20.
Plaintiff subsequently moved to amend his complaint to assert a claim against defendant "Graves" for violating an unspecified Federal Bureau of Prisons ("BOP") rule, regulation, or policy. ECF No. 31. After the court denied that motion on August 21, 2013, plaintiff renewed his request, which is now before the court. ECF No. 41.
Like the initial motion, plaintiff's renewed motion to amend is denied. The order denying plaintiff's initial motion provided as follows:
Plaintiff also requested leave to further amend his complaint to add "G. Graves" as a defendant, based upon allegations that Graves violated "BOP rules, regulation and policies... wrongfully issue[d] keys to heavy equipment forklift, a motor vehicle truck and compactor/bailer to an inmate, without authorization and no staff supervision to wit multiple accidents occur[r]ed specifically one with the plaintiff." ECF No. 31, ¶ 72.
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Here, the claim plaintiff wants to add is so lacking in detail that it cannot be determined what specific cause of action plaintiff intends to assert. There[fore], the request to amend the complaint must be denied as futile because the proposed amendment simply fails to state a claim upon which relief may be granted. Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires a complaint to include a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). In plaintiff's proposed amended complaint, he does not identify which of the BOP "rules, regulations, and policies" Graves allegedly violated. Moreover, it is doubtful that any private right of action would exist based on Graves' purported breach of a BOP regulation. See Opera Plaza Residential Parcel Homeowners Ass'n v. Hoang, 376 F.3d 831, 836 (9th Cir. 2004) ("[I]t is the relevant laws passed by Congress, and not rules or regulations passed by an administrative agency, that determine whether an implied cause of action exists."); Alexander v. Sandoval, 532 U.S. 275, 291 (2001) ...