United States District Court, C.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITH LEAVE
HONORABLE KENLY KIYA KATO United States Magistrate Judge
Gerald Carter (“Plaintiff”) filed a pro
se Second Amended Complaint (“SAC”) pursuant
to Bivens v. Six Unknown Named Agents of the Fed. Bureau
of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971) against defendants Richard Ives, P.A. Wolverton,
Dr. Allen, Mr. Simpson, Juan D. Castillo, and Ian Connors
(“Defendants”) in their individual and official
capacities for deliberate indifference to his serious medical
needs in violation of the Eighth Amendment. As discussed
below, the Court dismisses the SAC with leave to amend.
20, 2016, Plaintiff, an inmate in the custody of the Federal
Bureau of Prisons (“BOP”) at United States
Penitentiary Victorville (“USP Victorville”),
constructively filed a Complaint alleging Defendants violated
his Eighth Amendment right by failing to treat him for Human
Immunodeficiency Virus (“HIV”). ECF Docket No.
(“Dkt.”) 1, Compl. Though Plaintiff expressed his
personal belief he was HIV positive, it was unclear from the
Complaint whether Plaintiff had actually been diagnosed and
whether prison officials knew about the alleged diagnosis.
Id. Thus, on September 29, 2016, the Court dismissed
Plaintiff's original Complaint with leave to amend for
failure to state a claim. Dkt. 14, Order.
October 13, 2016, Plaintiff constructively filed a First
Amended Complaint (“FAC”) against Defendants in
both their official and individual capacities. Dkt. 15, FAC
at 3-4. In the FAC, Plaintiff alleged Defendants failed to
provide him with appropriate treatment for his alleged HIV
and fungal diagnosis in violation of the Eighth Amendment.
Id. at 3-6. Plaintiff, however, appeared to concede
he had never been diagnosed as HIV positive. See id.
at 10, 11, 13, 15-17, 25. In fact, Plaintiff conceded
Defendants had administered an HIV test, and the results were
negative. See id. Thus, on November 9, 2016, the
Court again dismissed Plaintiff's FAC with leave to amend
for failure to state a claim and granted Plaintiff until
November 30, 2016 to file a SAC. Dkt. 16, Order.
November 29, 2016, Plaintiff filed a request for an extension
of time to file a SAC. Dkt. 17, Request. On December 7, 2016,
the Court granted Plaintiff's request, allowing Plaintiff
until January 10, 2017 to file a SAC. Dkt. 18, Order.
January 25, 2017, the Court issued a Report and
Recommendation (“Report”) that the matter be
dismissed for failure to prosecute and to comply with court
orders. Dkt. 19. On February 6, 2017, Plaintiff filed
Objections to the Report claiming he mailed a SAC on January
6, 2017. Dkt. 21. Hence, on February 24, 2017, the Court
vacated its Report and ordered Plaintiff file a SAC no later
than March 24, 2017. Dkt. 22.
March 23, 2017, the Court received a request for an extension
of time to file a SAC from Plaintiff. Dkt. 23. The Court
granted Plaintiff's request and ordered the SAC filed by
April 27, 2017. Dkt. 24. On May 3, 2017, the Court issued a
Report and Recommendation that the matter be dismissed for
failure to prosecute and to comply with court
orders. Dkt. 25.
April 25, 2017, Plaintiff constructively filed the instant
ALLEGATIONS IN THE SAC
SAC, Plaintiff alleges Defendants have failed to treat him
for his “serious medical issue.” Dkt. 27, SAC at
5. Plaintiff alleges he “knows his health is getting
worse as time goes on;” yet, he is not receiving any
treatment. Id. Plaintiff additionally claims he
cannot “hold  food [i]n his stomach, ” and he
must “use the restroom [during] every meal.”
Id. Plaintiff alleges Defendants are “aware of
the serious medical issue” and that he “spoke to
medical about these serious medical issue[s], [but] they
refuse to treat the ailment.” Id. Plaintiff
claims “Defendants can not argue they did not know
about the complaints that [he] made to the medical department
and to them.” Dkt. 27-2 at 1.
result of his injuries, Plaintiff is seeking
“declaratory, monetary, [and] punitive damages”
for “a total of $1, 000, 000.00”; and injunctive
relief to obtain from an outside health care giver an
independent test for HIV.” Dkt. 27 at 6. Plaintiff
requests the Court grant his “civil rights complaint
facts about [his] HIV-AIDS that is pending in  this
honorable court.” Dkt. 27-1 at 1.