United States District Court, N.D. California
ORDER OF SERVICE
CHARLES R. BREYER, District Judge.
Plaintiff, a federal prisoner at the United States Penitentiary in Lompoc, California (USP - Lompoc), has filed a pro se "hybrid" complaint for damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (FTCA), and Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging that, while he was a pretrial detainee at the Federal Detention Center in Dublin, California (FDC - Dublin), prison medical staff delayed providing him with adequate medical care for a hand and wrist injury he sustained after falling off his bunk bed.
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted, " or "seeks monetary relief from a defendant who is immune from such relief." Id . § 1915A(b). Pro se pleadings must be liberally construed, however. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
B. Legal Claims
Plaintiff alleges that medical staff at FDC - Dublin, which is part of the larger Federal Correctional Institution in Dublin, California (FCI - Dublin), delayed for months providing him with adequate medical care for a hand and wrist injury despite his repeated pleas for help from both medical staff and from other prison officials. Plaintiff further alleges that the delay in getting adequate medical care caused irreparable damage to his hand and wrist, and subjected him to constant and excruciating pain.
The FTCA provides that district courts have exclusive jurisdiction of civil actions against the United States for money damages "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee" of the federal government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b). The United States is only liable "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id . Put simply, the United States waives sovereign immunity only under circumstances where local law would make a private person liable in tort. United States v. Olson, 546 U.S. 43 (2005).
Liberally construed, plaintiff's allegations of medical malpractice and negligence by employees of the Federal Bureau of Prison at FCI - Dublin state a cognizable FTCA claim for damages against the United States and will be ordered served.
To state a claim under Bivens, and its progeny, plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (42 U.S.C. § 1983 and Bivens actions are identical save for replacement of state actor under § 1983 by federal actor under Bivens).
Deliberate indifference to serious medical needs violates the Eighth Amendment's proscription against cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). A "serious medical need" exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992) (citing Estelle, 429 U.S. at 104), overruled in part on other grounds by WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A prison official is "deliberately indifferent" if he knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Liberally construed, plaintiff's allegations state a cognizable § 1983 claim for damages for deliberate indifference to serious medical needs against the named FCI - Dublin defendants - Belen Ezaz, Randy Tews, Ms. Basile, A. W. Syed, V. Bautista and Raul Cespedes - and will be ordered served on them. See McGuckin, 974 F.2d at 1062 (deliberate indifference may appear when prison officials deny, delay or intentionally ...