United States District Court, C.D. California
ORDER DISMISSING COMPLAINT WITH LEAVE TO
JOSEPHINE L. STATON U.S. DISTRICT JUDGE.
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
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 under “42 U.S.C. §
1983.” 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.
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].”).
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
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, ” “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
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.) 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,  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.)
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.
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
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).
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 ...