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Bosworth v. United States

United States District Court, C.D. California

September 4, 2014

GLENN BOSWORTH, Plaintiff,
v.
UNITED STATES OF AMERICA, et al., Defendants.

MEMORANDUM DECISION AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

SUZANNE H. SEGAL, Magistrate Judge.

I.

INTRODUCTION

On January 22, 2014, Plaintiff, a federal prisoner proceeding pro se, filed a civil action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq.; Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971); and 42 U.S.C. § 1983. The Court subsequently dismissed the Complaint with leave to amend due to various pleading defects.[1] On July 28, 2014, Plaintiff filed a First Amended Complaint ("FAC"). For the reasons stated below, the FAC is dismissed with leave to amend.

Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith , 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II.

FACTUAL ALLEGATIONS AND CLAIMS

Plaintiff names as Defendants (1) the United States of America; (2) the Lompoc Valley Medical Center ("LVMC"); FCI-Lompoc employees (3) physician Richard Gross, (4) Health Information Technician Valerie Ericksen, (5) counselor Baltazar Magana, [2] and (6) correctional officer E. Lewis; (7) the FCI-Lompoc correctional officers assigned to Plaintiff's medical escort detail when he was hospitalized in April 2012, identified as DOE Defendants 1-7 and ROE Defendant 1; and (8) "employees of the public entity Defendant LVMC who were present during plaintiff's hospitalization, " identified as DOE Defendants 8-10 and ROE Defendants 2-10. (FAC at 4).[3] (FAC at 2-4). Gross, Ericksen, Magana and Lewis are sued in their individual capacities only. (Id. at 3).

Plaintiff states that two days after suffering a "serious injury" to his left wrist, he was taken to LVMC, where he underwent a "surgery procedure." (Id. at 8-9). Plaintiff was shackled on both arms and both legs en route to the hospital. (Id. at 8).

At the hospital, Plaintiff was admitted to a private room where he was ordered to change clothes and lie down on the bed. (Id.). Shackles were applied to both legs and his uninjured right arm "in a manner that forced [Plaintiff] to lie in a fixed, prone position with no ability to move any extremity in any manner whatsoever." (Id.). LVMC employees watched and consented to the use of the hospital bed "to excessively restrain" Plaintiff. (Id.). These shackles remained in place from approximately 8:00 p.m. on April 10, 2012 until 8 p.m. on April 11, 2012. (Id. at 9). LVMC has a policy of "excessively shackling inmate/patients to their beds during inmates' hospitalizations...." (Id.). Plaintiff was shackled even though "he posed no threat or danger to anyone...." (Id.).

Plaintiff's left arm injury has not healed since his surgery. (Id.). Around November 20, 2012, Plaintiff was diagnosed with Reflex Sympathetic Dystrophy. (Id. at 10). However, Plaintiff was not examined by a neurologist until April 8, 2014, approximately a year and a half after his Reflex Sympathetic Dystrophy diagnosis. (Id.). By that time, Plaintiff suffered "additional degenerative conditions including physical deformity and loss of functional use of his left hand, fingers, wrist and arm." (Id.). The treatment recommended by the neurologist has not yet been provided. (Id.).

Plaintiff states that his underwear was unlawfully removed by force and interwoven through his leg shackles. (Id. at 10-11). However, the FAC does not state when, where, or why his underwear was removed.

Finally, Plaintiff alleges that when he arrived at FCI-Lompoc in January 2011, he was approved for semi-annual examinations and treatment from a dermatologist "for his known serious medical need of skin cancer and melanoma." (Id.). However, Plaintiff has been examined by a dermatologist only three times since his arrival, in March and September 2011 and April 2012. (Id.). Plaintiff has "not been provided any treatment for his serious skin cancer since April 13, 2012...." (Id.). Plaintiff argues that the failure to provide regular dermatological treatment poses an "increased risk of a recurrence of melanoma." (Id.). It is unclear whether Plaintiff is alleging that his skin cancer has actually returned.

The FAC raises seven claims. In Claim One, Plaintiff alleges that the United States is liable under the FTCA for assault and battery as a result of his being shackled in a "fixed, spread eagle position" to his hospital bed for twenty-four hours. (Id. at 6). In Claim Two, also brought under the FTCA, Plaintiff alleges that the removal of his underwear constitutes sexual battery because it inflicted a "harmful or offensive contact with Plaintiff's genitals." (Id.). In Claim Three, Plaintiff claims that Magana, Lewis, DOE Defendants 1-7 and ROE Defendant 1 violated his Eighth Amendment rights by shackling him to his hospital bed. (Id.) In Claim Four, Plaintiff states that Lewis and DOE Defendants "4 and/or 8" violated the Eighth Amendment by pulling down his underwear in violation of the BOP's Zero Tolerance Policy and 42 U.S.C. § 1395, which Plaintiff believes precludes "any Federal Officer or employee from participating in any manner, [sic] in a medical procedure." (Id. at 6 & 11).

In Claim Five, Plaintiff states that Dr. Gross was deliberately indifferent to his serious medical needs because Plaintiff was not examined or treated by a neurologist for sixteen months after being diagnosed with Reflex Sympathetic Dystrophy and still has not been provided with the neurologist's recommended (though unidentified) treatment. (Id. at 7). In Claim Six, Plaintiff contends that Dr. Gross "and/or" Health Information Technician Ericksen were deliberately indifferent to his serious medical needs because Plaintiff has not been examined by a dermatologist for 28 months to check on his "known serious medical needs of skin cancer and/or melanoma." (Id. at 7). Finally, in Claim Seven, Plaintiff states that Magana, Lewis, DOE Defendants 1-7, ROE Defendant 1, and LVMC violated his due process rights by preventing "his freedom of bodily movement" when he was shackled to his hospital bed. (Id.).

Plaintiff seeks $500, 000 each in compensatory damages for his FTCA claims alleging assault and battery and sexual battery (Claims One and Two). (Id. at 12). Plaintiff also seeks $500, 000 each for his civil rights claims alleging excessive force and sexual abuse (Claims Three and Four). (Id.). Plaintiff seeks $2, 500, 000 for his deliberate indifference claim relating to the alleged delay in treating his Reflex Sympathetic Dystrophy (Claim Five). (Id.). The copy of the FAC filed with the Court is missing page 13, so the Court is unable to discern what damages, if any, Plaintiff is seeking for his deliberate indifference claim relating to the delay in examining his melanoma (Claim Six) and his "freedom of bodily movement" due process claim (Claim Seven). (See id. at 12-14). Plaintiff seeks $1, 000, 000 in punitive damages for his civil rights claims. (Id. at 14).

III.

DISCUSSION

The Court finds that the FAC must be dismissed due to myriad pleading defects too numerous to address in detail. However, pro se litigants in civil rights cases must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez , 203 F.3d at 1128-29. ...


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