Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 1 of 10 Page ID #:18

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 VINCENT REED, Case No. 2:22-cv-03973-JLS-JC

12 Plaintiff,

ORDER DISMISSING COMPLAINT

13 v. WITH LEAVE TO AMEND AND

DIRECTING PLAINTIFF TO

14 [UNSPECIFIED], RESPOND TO ORDER 15 Defendants. 16 17 I. INTRODUCTION 18 On June 9, 2022, Plaintiff Vincent Reed, a federal prisoner currently housed 19 at the Federal Correctional Institution in Phoenix, Arizona, who was previously 20 housed at the United States Penitentiary in Lompoc, California (“USP Lompoc”) 21 filed a “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” (“Complaint” or 22 “Comp.”), seeking damages against one or more unspecified Defendants based on 23 his treatment at USP Lompoc after Plaintiff contracted COVID-19. (Docket No. 24 1). Plaintiff is proceeding pro se and has been granted leave to proceed without 25 prepayment of the filing fee (“IFP”). (Docket Nos. 2, 4). 26 As the Complaint is deficient in multiple respects, including those detailed 27 below, it is dismissed with leave to amend. 28 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 2 of 10 Page ID #:19

1 II. THE COMPLAINT 2 The Complaint is fragmentary, containing only pages 1, 2, 4, and 5 of an 3 apparently six-page form. Liberally construed, the Complaint asserts a single 4 claim for relief alleging that unidentified Defendant(s) at USP Lompoc, sued in 5 their individual and official capacities, violated Plaintiff’s constitutional rights as 6 follows: 7 On March 26, 2020, Defendant confined [Plaintiff] to the SHU after 8 contracting COVID-19. Additionally Defendant forced [Plaintiff] to 9 take medication which has negatively affected [Plaintiff’s] body. 10 Furthermore, Defendant deprived [Plaintiff] of medical treatment for 11 several days after contracting COVID-19 while [Plaintiff] was housed 12 in the SHU at [USP Lompoc], on March 30, 2020. 13 (Comp. at 1-2, 4). Plaintiff seeks $300,000 in damages. (Comp. at 5).1 14 III. PERTINENT LAW 15 As plaintiff is a prisoner proceeding IFP on a civil rights complaint 16 presumably against government defendants, the Court must screen the Complaint 17 and is required to dismiss the case at any time it concludes the action is frivolous or 18 malicious, fails to state a claim upon which relief may be granted, or seeks 19 monetary relief from a defendant immune from such relief. See 28 U.S.C. 20 §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c); Byrd v. Phoenix Police Dep’t, 21 885 F.3d 639, 641-42 (9th Cir. 2018) (discussing prisoner civil rights litigation 22 screening requirement). 23 24 1Plaintiff previously was a part of a pending class action lawsuit seeking declaratory and injunctive relief for, in part, adequate medical care for those prisoners in custody at USP 25 Lompoc who contract COVID-19. See Garries et al. v. Milusnic, Case No. 2:20-cv-04450- CBM-PVCx, Docket No. 426 (summarizing action and noting that Plaintiff was dismissed from 26 the case when he no longer was in custody at USP Lompoc); see also Fed. R. Evid. 201(c); 27 Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public record, including documents on file in federal or state courts.”) 28 (citation omitted). 2 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 3 of 10 Page ID #:20

1 When screening a complaint to determine whether it states any claim that is 2 viable, the Court applies the same standard as it would when evaluating a motion 3 to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso, 4 791 F.3d 1037, 1039 (9th Cir. 2015) (citation omitted). Rule 12(b)(6), in turn, is 5 read in conjunction with Rule 8(a) of the Federal Rules of Civil Procedure. 6 Zixiang Li v. Kerry, 710 F.3d 995, 998-99 (9th Cir. 2013). Under Rule 8, each 7 complaint filed in federal court must contain a “short and plain statement of the 8 claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While 9 Rule 8 does not require detailed factual allegations, at a minimum a complaint 10 must allege enough specific facts to provide both “fair notice” of the particular 11 claim being asserted and “the grounds upon which [that claim] rests.” Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 & n.3 (2007) (citation and quotation 13 marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (Rule 8 14 pleading standard “demands more than an unadorned, the-defendant-unlawfully- 15 harmed-me accusation”) (citing Twombly, 550 U.S. at 555). 16 To avoid dismissal on screening, a complaint must “contain sufficient 17 factual matter, accepted as true, to state a claim to relief that is plausible on its 18 face.” Byrd, 885 F.3d at 642 (citations omitted); see also Johnson v. City of 19 Shelby, Mississippi, 574 U.S. 10, 12 (2014) (per curiam) (Twombly and Iqbal 20 instruct that plaintiff “must plead facts sufficient to show that [plaintiff’s] claim 21 has substantive plausibility”). A claim is “plausible” when the facts alleged in the 22 complaint would support a reasonable inference that the plaintiff is entitled to relief 23 from a specific defendant for specific misconduct. Iqbal, 556 U.S. at 678 (citation 24 omitted); see also Keates v. Koile, 883 F.3d 1228, 1242 (9th Cir. 2018) (“[A] 25 [Section 1983] plaintiff must plead that each Government-official defendant, 26 through the official’s own individual actions, has violated the Constitution.”) 27 (quoting Iqbal, 556 U.S. at 676); Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 28 (N.D. Cal. 1988) (complaint “must allege the basis of [plaintiff’s] claim against 3 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 4 of 10 Page ID #:21

1 each defendant” to satisfy Rule 8 requirements) (emphasis added). Allegations 2 that are “merely consistent with” a defendant’s liability, or reflect only “the mere 3 possibility of misconduct” do not “show[] that the pleader is entitled to relief” (as 4 required by Rule 8(a)(2)), and thus are insufficient to state a claim that is 5 “plausible on its face.” Iqbal, 556 U.S. at 678-79 (citations and quotation marks 6 omitted). 7 At this preliminary stage, “well-pleaded factual allegations” in a complaint 8 are assumed true, while “[t]hreadbare recitals of the elements of a cause of action” 9 and “legal conclusion[s] couched as a factual allegation” are not. Id. (citation and 10 quotation marks omitted); Jackson v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) 11 (“mere legal conclusions ‘are not entitled to the assumption of truth’”) (quoting 12 Iqbal, 556 U.S. at 678-79), cert. denied, 574 U.S. 1077 (2015). In addition, the 13 Court is “not required to accept as true conclusory allegations which are 14 contradicted by documents referred to in the complaint,” Steckman v. Hart 15 Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998) (citation omitted), and 16 “need not [] accept as true allegations that contradict matters properly subject to 17 judicial notice or by exhibit,” Sprewell v. Golden State Warriors, 266 F.3d 979, 18 988 (9th Cir.), amended on denial of reh’g, 275 F.3d 1187 (9th Cir. 2001) (citation 19 omitted). 20 In general, civil rights complaints are interpreted liberally in order to give 21 pro se plaintiffs “the benefit of any doubt.” Byrd, 885 F.3d at 642 (citations and 22 internal quotation marks omitted). Nonetheless, a pro se plaintiff must still follow 23 the rules of procedure that govern all litigants in federal court, including the 24 Rule 8 requirement that a complaint minimally state a short and plain statement of 25 a claim that is plausible on its face. See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 26 1995) (per curiam) (“Although we construe pleadings liberally in their favor, pro 27 se litigants are bound by the rules of procedure.”) (citation omitted), cert. denied, 28 516 U.S. 838 (1995); see also Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 4 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 5 of 10 Page ID #:22

1 954 (9th Cir. 2011) (en banc) (“[A] liberal interpretation of a . . . civil rights 2 complaint may not supply essential elements of [a] claim that were not initially 3 pled.”) (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)) (quotation 4 marks omitted; ellipses in original). 5 If a pro se complaint is dismissed because it does not state a viable claim, 6 the court must freely grant “leave to amend” (that is, give the plaintiff a chance to 7 file a new, corrected complaint) if it is “at all possible” that the plaintiff could fix 8 the identified pleading errors by alleging different or new facts. Cafasso, U.S. ex 9 rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058 (9th Cir. 2011) (citation 10 omitted); Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000) (en banc) 11 (citations and internal quotation marks omitted). 12 IV. DISCUSSION 13 For the reasons explained below, the Complaint is dismissed with leave to 14 amend. 15 A. Rule 8 16 The Complaint violates Rule 8 at least because it fails to provide any 17 Defendant with “fair notice” of the claims being asserted. The purpose of Rule 18 8(a) is to ensure that a complaint “fully sets forth who is being sued, for what 19 relief, and on what theory, with enough detail to guide discovery.” McHenry v. 20 Renne, 84 F.3d 1172, 1177 (9th Cir. 1996); see also Cafasso, 637 F.3d at 1058 (a 21 complaint violates Rule 8 if a defendant would have difficulty understanding and 22 responding to the complaint); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 23 1991) (noting that under Rule 8(a) a complaint must contain “sufficient allegations 24 to put defendants fairly on notice of the claims against them”) (citations omitted). 25 Here, among other deficiencies, the Complaint never even identifies a Defendant 26 /// 27 /// 28 /// 5 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 6 of 10 Page ID #:23

1 and the Court cannot even discern how many Defendant(s) Plaintiff intends to sue.2 2 McHenry v. Renne, 84 F.3d at 1178 (complaint is subject to dismissal if one 3 cannot determine from the complaint who is being sued and on what theory of 4 relief). Because the Complaint fails to provide any Defendant with fair notice of 5 the claims and allegations against them, it is dismissed with leave to amend for 6 violation of Rule 8. 7 B. Rule 10 8 Rule 10(a) of the Federal Rules of Civil Procedure requires that the “[t]he 9 title of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). Here, the 10 portion of the Complaint caption which calls for Plaintiff to name the Defendants 11 is entirely blank. (Comp. at 1). Because the caption lists no Defendants, it is 12 unclear who is actually being sued in this action. Accordingly, the Complaint 13 warrants dismissal with leave to amend for violation of Rule 10(a). See Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1263 (9th Cir.) (affirming dismissal of action based on 15 failure to comply with court order that complaint be amended to name all 16 defendants in caption as required by Rule 10(a)), cert. denied, 506 U.S. 915 (1992). 17 In any amended pleading, Plaintiff must clearly indicate the Defendant(s) he is 18 suing, and name those Defendants in the caption. 19 C. Failure to State a Claim/Other Deficiencies 20 Plaintiff’s Complaint allegations – as quoted above – are entirely conclusory 21 and fall well short of stating a viable claim for relief. The Complaint accordingly 22 /// 23 24 2Claims against “unknown” defendants are disfavored, Wakefield v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999), and while a plaintiff may sue a defendant whose name is unknown 25 initially by using a fictitious name (e.g., “John Doe” or “Jane Doe”), Plaintiff here does not even do that and instead merely generally refers to unidentified “Defendants.” Local Rule 19-1 26 provides that “[n]o complaint or petition shall be filed that includes more than ten (10) Doe or 27 fictitiously named parties.” C.D. Cal. L.R. 19-1. To state claims against Doe Defendants, Plaintiff must articulate, at the very least, what conduct each respective Doe Defendant is 28 responsible for and how such conduct violated Plaintiff’s rights. See McHenry, 84 F.3d at 1178. 6 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 7 of 10 Page ID #:24

1 is subject to dismissal on such basis. Aside from such fundamental flaw, the 2 Complaint is also deficient in at least the following respects. 3 First, Plaintiff fails to state any claim arising under 42 U.S.C. § 1983 4 because Section 1983 does not afford a cause of action against federal officials 5 acting under color of federal law, as appears to be alleged here. See Billings v. 6 United States, 57 F.3d 797, 801 (9th Cir. 1995) (Section 1983 “provides no cause 7 of action against federal agents acting under color of federal law.”) (citation 8 omitted); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) (“There is 9 no valid basis for a claim under section 1983, in that [plaintiff’s] allegations are 10 against federal officials actiging under color of federal law.”). Instead, to the 11 extent Plaintiff intends to sue federal officials in their individual capacities for 12 damages based on alleged violations of his federal constitutional rights, any such 13 claim arises (if at all), under Bivens v. Six Unknown Named Agents of the Federal 14 Bureau of Narcotics, 403 U.S. 388 (1971), which is the federal analog to suits 15 brought against state officials under 42 U.S.C. § 1983 and permits individuals to 16 sue federal officials for damages for constitutional violations under certain 17 circumstances). See Carlson v. Green, 446 U.S. 14 (1980) (Bivens remedy is 18 available for a federal prisoner’s Eighth Amendment claim for failure to provide 19 adequate medical treatment); see also Morgan v. United States, 323 F.3d 776, 780 20 n.3 (9th Cir. 2003) (Bivens claim only available against federal officials in their 21 individual capacities) (citation omitted; emphasis added). 22 Second, to the extent Plaintiff intends to sue federal officials in their official 23 capacities or to sue USP Lompoc/the United States itself for damages arising from 24 constitutional violations, he fails to state/cannot state such a claim. The Supreme 25 Court has declined to extend Bivens remedies to federal agencies, F.D.I.C. v. 26 Meyer, 510 U.S. 471, 486 (1994), and a Bivens suit against a defendant in his/her 27 official capacity would merely be another way of pleading an action against the 28 United States, which would be barred by the doctrine of sovereign immunity. See 7 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 8 of 10 Page ID #:25

1 Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 2 1157, 1173 (9th Cir. 2007). 3 Third, to the extent Plaintiff seeks to recover damages for medical 4 negligence or malpractice (i.e., non-constitutional torts) against federal officials in 5 their official capacities – a claim which would be construed to be against the 6 United States – any relief must be sought under the Federal Tort Claims Act 7 (“FTCA”), which is a limited waiver of sovereign immunity, making the federal 8 government liable to the same extent as a private party for certain torts of federal 9 employees acting within the scope of their employment. See United States v. 10 Orleans, 425 U.S. 807, 813 (1976). Here, however, Plaintiff fails to state a viable 11 FTCA claim over which the Court has subject matter jurisdiction because he has 12 not affirmatively alleged exhaustion with any particularity, which is a jurisdictional 13 prerequisite to pursuing such a claim in federal court. See Brady v. United States, 14 211 F.3d 499, 502 (9th Cir. 2000) (claimant must comply with 28 U.S.C. § 2675(a) 15 before a district court can exert jurisdiction over the claim), cert. denied, 531 U.S. 16 1037 (2000); 28 U.S.C. § 2675. Exhaustion under the Prison Litigation Reform 17 Act does not satisfy the exhaustion requirement under the FTCA. Compare 18 28 C.F.R. §§ 542.13-15 (Bureau of Prisons administrative grievance procedure) 19 with 28 C.F.R. §§ 543.30-32 (administrative exhaustion procedures for the FTCA 20 within the Bureau of Prisons). Here, Plaintiff’s general allegations that he has filed 21 a grievance concerning the facts alleged in the Complaint and completed the 22 grievance procedure at USP Lompoc, without providing any details regarding the 23 same, do not establish exhaustion to clearly confer jurisdiction with this Court 24 under the FTCA, even assuming he had otherwise stated a viable FTCA claim. 25 /// 26 /// 27 /// 28 /// 8 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 9 of 10 Page ID #:26

1 V. ORDERS3 2 In light of the foregoing, IT IS HEREBY ORDERED that the Complaint is 3 dismissed with leave to amend. 4 IT IS FURTHER ORDERED that within twenty (20) days of the date of this 5 Order, Plaintiff must do one of the following: 6 1. File a First Amended Complaint which cures the pleading defects set 7 forth herein;4 or 8 2. Sign and file the attached Notice of Dismissal which will result in 9 the voluntary dismissal of this action without prejudice; or 10 3. File a Notice of Intent to Stand on Complaint, indicating Plaintiff’s 11 intent to stand on the original Complaint despite the pleading defects set forth 12 herein, which may result in the dismissal of this action in its entirety based upon 13 such defects. 14 /// 15 16 3The Magistrate Judge’s orders herein constitute non-dispositive rulings on pretrial matters. To the extent a party disagrees with such non-dispositive rulings, such party may file a 17 motion for review by the assigned District Judge within fourteen (14) days. See Local Rule 72- 2.1. To the extent a party believes the rulings to be dispositive, rather than non-dispositive, such 18 party has the right to object to this Court’s determination that the rulings are non-dispositive 19 within fourteen (14) days. A party will be foreclosed from challenging the rulings herein if such party does not seek review thereof, or object thereto. 20 4The Clerk is directed to provide Plaintiff with a Central District of California Civil 21 Rights Complaint Form, CV-66, to facilitate Plaintiff’s filing of a First Amended Complaint if he 22 elects to proceed in that fashion. Any First Amended Complaint must: (a) be labeled “First Amended Complaint”; (b) be complete in and of itself and not refer in any manner to the original 23 Complaint – i.e., it must include all claims on which Plaintiff seeks to proceed (Local Rule 15- 24 2); (c) contain a “short and plain” statement of each of the claim(s) for relief (Fed. R. Civ. P. 8(a)); (d) make each allegation “simple, concise and direct” (Fed. R. Civ. P. 8(d)(1)); (e) set 25 forth clearly the sequence of events giving rise to the claim(s) for relief in sequentially “numbered paragraphs, each limited as far as practicable to a single set of circumstances” (Fed. 26 R. Civ. P. 10(b)); (f) allege specifically what each defendant did and how that individual’s 27 conduct specifically violated Plaintiff’s civil rights; (g) state the names of all Defendants in the caption (Fed. R. Civ. P. 10(a)); and (h) not add Defendants or claims that are not reasonably 28 related to the claims asserted in the original Complaint. 9 Case 2:22-cv-03973-JLS-JC Document 5 Filed 06/22/22 Page 10 of 10 Page ID #:27

1 Plaintiff is cautioned that Plaintiff’s failure timely to file a First 2 Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on 3 Complaint may be deemed Plaintiff’s admission that amendment is futile, and 4 may result in the dismissal of this action with or without prejudice on the 5 grounds set forth above, on the ground that amendment is futile, for failure 6 diligently to prosecute and/or for failure to comply with this Order. 7 IT IS SO ORDERED. 8 DATED: June 22, 2022 9 10 _______________/s/____________________ 11 Honorable Jacqueline Chooljian

UNITED STATES MAGISTRATE JUDGE

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