Poole v. Milusnic

          ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND

          JOSEPHINE L. STATON U.S. DISTRICT JUDGE.

         On September 16, 2019, Plaintiff, a federal inmate at FCI-Victorville proceeding pro se, filed a civil-rights action in the Southern District of California; on September 27, it was transferred here. He was subsequently granted leave to proceed in forma pauperis. On October 11, 2019, he stated new factual allegations in a “motion for supplement complaint.”

         Plaintiff sues four employees of FCI-Victorville - Warden L.J. Milusnic, Assistant Warden C. Swain, and correctional officers Johnson and Patrick - in their official and individual capacities^[1] under “42 U.S.C. § 1983.”^[2] His claims stem from his transfer from a handicap-accessible cell to a non-handicap-accessible cell in violation of the medical staff's orders and from the injuries he allegedly suffered as a result. He sues for damages and injunctive relief.

         As an initial matter, Plaintiff improperly brings his claims under § 1983: as a federal prisoner challenging the actions of federal employees, his claims arise under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which is the “federal analog to suits brought against state officials under [§ 1983].” Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006); see Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011). “[L]iberally constru[ing]” Plaintiff's pro se filings, however, as the Court must, Erickson v. Pardus, 551 U.S. 89, 94 (2007), it construes the lawsuit as a Bivens action. See Valdovinos-Blanco v. Adler, 585 Fed.Appx. 586, 587 (9th Cir. 2014) (“Because [plaintiff] alleged wrongdoing at a federal prison[, ] . . . the magistrate judge properly characterized [his] claims as an action under [Bivens], not an action under [§ 1983].”).

         After screening the Complaint and Supplemental Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A, the Court finds that their allegations largely fail to state a claim on which relief might be granted. Because at least some of the claims might be cured by amendment, the Complaint and Supplemental Complaint are dismissed with leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (holding that pro se litigant must be given leave to amend complaint unless absolutely clear that deficiencies cannot be cured). If Plaintiff desires to pursue any of his claims, he is ORDERED to file a first amended complaint within 28 days of the date of this order, remedying the deficiencies discussed below.

         PLAINTIFF'S ALLEGATIONS

         In early August 2019, Plaintiff was housed in a “handicapped cell” in FCI-Victorville's Special Housing Unit. (Compl. at 5, 8.) Earlier that year, medical staff had ordered that he be housed in one through June 2020 because he was suffering from “recurrent episodes of syncope, ”^[3] “dizziness[, ] [and] vertigo” stemming from his heart disease. (Id. at 5; see id. at 8-10; id., Exs. B at 1-3 (medical records), C at 1-2 (medical records), E at 1 (July 10, 2019 status sheet indicating that Plaintiff should be housed in handicap-accessible cell), F at 1 (June 7, 2019 status sheet indicating same).) Specifically, he needed to be housed in a cell with safety rails so that he could “hold on every time he st[oo]d up or use[d] the rest room.” (Id., Ex. D at 1; see id. at 5, 11.)

         On August 4, correctional officers Johnson and Patrick removed Plaintiff and his cellmate, Kenneth Wilcox, from their cell so that work could be done on its “backed up sewer drain” and transferred them to a non-handicap-accessible cell. (Id. at 5; see id. at 8; Wilcox Decl. at 1-2.)^[4] When Plaintiff arrived at the new cell, he showed Johnson his status sheets instructing that he be housed in a handicap-accessible cell with rails. (Compl. at 5, 8; Wilcox Decl. at 2.) Johnson responded, “Sex offenders do not need handicapped cells” and “[i]f you had not checked in into [sic] protective custody for being a cho-mo, ^[5] you would not have not have [sic] had to move at all; [f]uck your medical needs.” (Compl. at 5; see Wilcox Decl. at 3.)

         The next day, Plaintiff “experienced an episode of vertigo” while attempting to stand up and fell to the floor, “cutting and scraping” his right wrist and forearm on the “bottom edge of [the cell's] shower which had been recently damaged, exposing a razor sharp edge.” (Compl. at 5, 11.) He fell again on August 17, 2019, once more injuring his right wrist and forearm. (Id.)

         On September 29, 2019, Plaintiff fell while getting out of bed, “injuring his head and back.” (Suppl. Compl. at 2.) He remained on the floor for two hours after staff had been notified that he needed medical attention, but none was provided. (Id.) When Patrick finally responded and was “informed of [Plaintiff's] medical needs, ” he did not help. (Id.) The next day, Plaintiff again fell and could not get up. (Id. at 3.) When Patrick responded, he stated, “Being on the floor with an injured back is no emergency.” (Id.) Later that day, Plaintiff's cellmate placed a note in the cell door stating that Plaintiff was having chest pains and needed medical assistance. (Id.) Patrick passed by the cell and stated, “I can see he's at least breathing, so he must be alive.” (Id.)

         STANDARD OF REVIEW

         A complaint may be dismissed as a matter of law for failure to state a claim “where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (as amended) (citation omitted); accord O'Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008). In considering whether a complaint states a claim, a court must generally accept as true all the factual allegations in it. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Hamilton v. Brown, 630 F.3d 889, 892-93 (9th Cir. 2011). The court need not accept as true, however, “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (citation omitted); see also Shelton v. Chorley, 487 Fed.Appx. 388, 389 (9th Cir. 2012) (finding that district court properly dismissed civil-rights claim when plaintiff's “conclusory allegations” did not support it).

         Although a complaint need not include detailed factual allegations, it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Yagman v. Garcetti, 852 F.3d 859, 863 (9th Cir. 2017). A claim is facially plausible when it “allows the court to ...