1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 IGNACIO SALIDO, JR., No. 1:23-cv-01395-JLT-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

RECOMMENDING DISMISSAL OF ACTION

13 v. (ECF No. 11) 14 BUREAU OF PRISONS, 15 Defendant. 16 17 Plaintiff is proceeding pro se in this action filed pursuant to Bivens v. Six Unknown 18 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 19 Plaintiff’s complaint in this action was filed on September 25, 2023. (ECF No. 1.) 20 On November 8, 2023, the Court screened the complaint, found that Plaintiff failed to state 21 a cognizable claim for relief, and granted Plaintiff thirty days to file an amended complaint. 22 (ECF No. 10.) 23 Plaintiff failed to file an amended complaint or otherwise respond to the November 8, 24 2023 order. Therefore, on December 19, 2023, the Court issued an order for Plaintiff to show 25 cause why the action should not be dismissed. (ECF No. 11.) Plaintiff has failed to respond to 26 the order to show cause and the time to do so has now passed. Accordingly, dismissal of the 27 action is warranted. 28 /// 1 I. 2 SCREENING REQUIREMENTS 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 5 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 6 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 7 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 8 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 14 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 15 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 16 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 17 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 18 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 19 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 20 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 21 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 22 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 23 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 24 at 969. 25 II. 26 COMPLAINT ALLEGATIONS 27 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 28 the sua sponte screening requirement under 28 U.S.C. § 1915. 1 On April 17, 2023, Plaintiff underwent bunionectomy on the right foot to remove bunion. 2 Two weeks into the surgery something went wrong and Plaintiff returned to medical to request 3 crutches. By May 30 and 31, 2023, an x-ray and blood work had been ordered. 4 Although the test results were fine, Plaintiff’s foot was swollen to the size of a baseball. 5 Plaintiff continued to pursue appointment with a specialist or emergency care. During this time, a 6 request was sought by regional to approve specialist appointment, and the appointment was 7 approved, but nothing was scheduled in June or July. 8 Plaintiff continued to seek medical attention and contacted the acting director from the 9 health department. Plaintiff would go to sick call early in the morning and would not be seen. 10 Plaintiff would be asked to come back the next day, but sometimes the Doctor would not be in the 11 office. One day Plaintiff was taken by the acting medical director to the lieutenant’s office and 12 told to report emergencies to officer in the unit. It was clear that there was something wrong with 13 Plaintiff’s foot. 14 On July 31, 2023, the swelling opened the wound. The next day, Plaintiff went to the 15 medical unit and insisted on being sent to the hospital. The Doctor was not in so Plaintiff was 16 told to return after lunch. When Plaintiff later returned the office was closed. 17 Plaintiff went back to the dining hall where the Warden was posted. Plaintiff showed the 18 Warden his foot and she asked how it had “gotten like that.” One of the lieutenants approached 19 the Warden who said that Plaintiff needed to be transported to a hospital. The medical unit 20 requested that Plaintiff go the following day when the Doctor would be in the office. 21 When Plaintiff arrived at the hospital he was admitted with the suspicion of an infection 22 with can lead to amputation or loss of life. Plaintiff was hospitalized from August 1 to August 23 17, 2023, and had two surgeries. Plaintiff could not be transferred to a medical facility because of 24 his custody level. 25 Plaintiff’s current medical issues of which professionals are aware: cyst in groin from 26 fungus, MRI for misaligned spine, prosthetics appointment for ongoing issue with feet from 27 surgeries, stress test for heart, internal hemorrhoid and gastritis follow-up appointments with 28 podiatrist. The Bureau of Prisons (BOP) is responsible for medical care. 1 III. 2 DISCUSSION 3 Not all constitutional cases against federal officers for damages may proceed as Bivens 4 claims. There is a two-part test to determine whether a Bivens action may proceed. Ziglar v. 5 Abbasi, 582 U.S. 138-139 (2017). To determine whether a Bivens claim is cognizable, a court 6 first “ask[s] whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ 7 different from the three cases in which the Court has implied a damages action.” Egbert v. Boule, 8 142 S. Ct. 1793, 1803 (2022) (quoting Ziglar v. Abbasi, 582 U.S. at 139). That is, the Court must 9 determine whether the claim presents a new context from the three cases the Supreme Court has 10 allowed to proceed under Bivens: Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 11 (1971); Davis v. Passman, 442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14 (1980). If the 12 answer is no, the claim may proceed. If the answer is yes, the court must apply a “special factors” 13 analysis to determine whether “special factors counsel hesitation” in expanding Bivens to the 14 action. Abbasi, 582 U.S. at 136. 15 The Ninth Circuit has summarized those special factors as follows:

16 the rank of the officer involved; whether Bivens is being used as a vehicle to alter an 17 entity's policy; the burden on the government if such claims are recognized; whether litigation would reveal sensitive information; whether Congress has indicated that it does 18 not wish to provide a remedy; whether there are alternate avenues of relief available; and whether there is adequate deterrence absent a damages remedy, among other factors. But 19 the most important question for us to examine is whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of 20 allowing a damages action to proceed. If there are sound reasons to think Congress might 21 doubt the efficacy or necessity of a damages remedy the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of 22 federal-court jurisdiction under Article III. 23 Lanuza v. Love, 899 F.3d 1019, 1028 (9th Cir. 2018) (alterations, citations, and internal quotation 24 marks omitted). 25 A. Deliberate Indifference to Serious Medical Need 26 Plaintiff’s claim regarding the failure to provide adequate medical care does not arise in a 27 new Bivens context because it presents a similar Eighth Amendment claim as Carlson. See Soria 28 v. Zungia, Case No. 1:18-cv-0635-NONE-JLT (PC), 2020 WL 8483841, at *4 (E.D. Cal. Dec. 2, 1 2020) (collecting cases supporting the proposition that an Eighth Amendment claim alleging 2 denial of medical care does not present a new Bivens context), report and recommendation 3 adopted, 2021 WL 490419 (E.D. Cal. Feb. 10, 2021). Nonetheless, for the reasons explained 4 below, Plaintiff fails to state a cognizable claim under the Eighth Amendment. 5 While the Eighth Amendment of the United States Constitution entitles Plaintiff to 6 medical care, the Eighth Amendment is violated only when a prison official acts with deliberate 7 indifference to an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th 8 Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th 9 Cir. 2014); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006). The two-part test for deliberate 10 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 11 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 12 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 13 indifferent.” Jett, 439 F.3d at 1096 (citation omitted). 14 “A medical need is serious if failure to treat it will result in significant injury or the 15 unnecessary and wanton infliction of pain.” Peralta v. Dillard, 744 F.3d at 1081 (citation and 16 internal quotation marks omitted). “Indications that a plaintiff has a serious medical need include 17 ‘[t]he existence of an injury that a reasonable doctor or patient would find important and worthy 18 of comment or treatment; the presence of a medical condition that significantly affects an 19 individual’s daily activities; or the existence of chronic and substantial pain.’” Colwell v. 20 Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014). Furthermore, mere delay of medical treatment, 21 “without more, is insufficient to state a claim of deliberate medical indifference.” Shapley v. Nev. 22 Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Where a prisoner alleges that 23 delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay 24 caused “significant harm and that defendants should have known this to be the case.” Hallett v. 25 Morgan, 296 F.3d 732, 745-46 (9th Cir. 2002). 26 Section 1983 provides a cause of action for the violation of Plaintiff’s constitutional or 27 other federal rights by persons acting under color of state law. Nurre v. Whitehead, 580 F.3d 28 1087, 1092 (9th Cir 2009); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); 1 Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). “Section 1983 is not itself a source of 2 substantive rights, but merely provides a method for vindicating federal rights elsewhere 3 conferred.” Crowley v. Nevada ex rel. Nevada Sec’y of State, 678 F.3d 730, 734 (9th Cir. 2012) 4 (citing Graham v. Connor, 490 U.S. 386, 393-94 (1989)) (internal quotation marks omitted). To 5 state a claim, Plaintiff must allege facts demonstrating the existence of a link, or causal 6 connection, between each defendant’s actions or omissions and a violation of his federal rights. 7 Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074-75 (9th Cir. 2013); Starr v. 8 Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011). 9 Here, Plaintiff only names the Bureau of Prison as the responsible entity for his medical 10 treatment. However, a Bivens claim is only available against officers in their individual 11 capacities. Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2003). The Supreme Court 12 has declined to extend Bivens remedies to federal agencies, such as the BOP. F.D.I.C. v. Meyer, 13 510 U.S. 471, 486 (1994); see also Consejo de Desarrollo Economico de Mexicali, A.C. v. United 14 States, 482 F.3d 1157, 1173 (9th Cir. 2007) (“[A] Bivens suit against a defendant in his or her 15 official capacity would merely be another way of pleading an action against the United States, 16 which would be barred by the doctrine of sovereign immunity. Therefore, the Supreme Court has 17 refused to extend Bivens remedies from individuals to agencies.”) (citation omitted). Thus, the 18 basis of a Bivens action is some illegal or inappropriate conduct on the part of a federal official or 19 agent. Baiser v. Department of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003). 20 Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (“To state a claim for relief under Bivens, a 21 plaintiff must allege that a federal officer deprived him of his constitutional rights.”) (citing 22 Schearz v. United States, 234 F.3d 428, 432 (9th Cir. 2000). Accordingly, Plaintiff cannot 23 proceed with a Bivens claim against the BOP. 24 IV. 25 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 26 Here, the Court screened Plaintiff’s complaint, and on November 8, 2023, an order issued 27 providing Plaintiff with the legal standards that applied to his claims, advising him of the 28 deficiencies that needed to be corrected, and granting him leave to file an amended complaint 1 within thirty days. (ECF No. 10.) Plaintiff did not file an amended complaint or otherwise respond 2 to the Court’s November 8, 2023 order. Therefore, on December 19, 2023, the Court ordered 3 Plaintiff to show cause within fourteen (14) days why the action should not be dismissed. (ECF 4 No. 11.) Plaintiff failed to respond to the December 19, 2023 order and the time to do so has 5 passed. 6 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 7 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 8 . . . within the inherent power of the Court.” The Court has the inherent power to control its docket 9 and may, in the exercise of that power, impose sanctions where appropriate, including dismissal 10 of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 11 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 12 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 13 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 14 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 15 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 16 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. United 17 States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court 18 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 19 prosecution and failure to comply with local rules). 20 “In determining whether to dismiss an action for lack of prosecution, the district court is 21 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 22 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 23 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 24 sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide 25 a court in deciding what to do, and are not conditions that must be met in order for a court to take 26 action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th 27 Cir. 2006) (citation omitted). 28 In this instance, the public’s interest in expeditious resolution of the litigation and the 1 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 2 Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint 3 within thirty days of November 8, 2023 and has not done so. Plaintiff’s failure to comply with the 4 order of the Court by filing an amended complaint hinders the Court’s ability to move this action 5 towards disposition. This action can proceed no further without Plaintiff’s compliance with the 6 order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 7 action. 8 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 9 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 10 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 11 The public policy in favor of deciding cases on their merits is greatly outweighed by the 12 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 13 for this action to proceed, Plaintiff is required to file an amended complaint curing the deficiencies 14 in the operative pleading. Despite being ordered to do so, Plaintiff did not file an amended 15 complaint or respond to the order to show cause and this action cannot simply remain idle on the 16 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 17 failure to comply with the Court’s orders. 18 Finally, a court’s warning to a party that their failure to obey the court’s order will result 19 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 20 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 8, 2023, order 21 requiring Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an 22 amended complaint in compliance with this order, the Court will recommend to a district ju6dge 23 that this action be dismissed consistent with the reasons stated in this order.” (ECF No. 10.) In 24 addition, the Court’s December 19, 2023, order to show cause specifically stated: “Plaintiff’s 25 failure to comply with this order will result in a recommendation to dismiss the action for the 26 reasons stated above.” (ECF No. 11.) Thus, Plaintiff had adequate warning that dismissal would 27 result from her noncompliance with the Court’s order. 28 /// 1 V. 2 RECOMMENDATIONS 3 The Court has screened Plaintiff's complaint and directed Plaintiff to file an amended 4 complaint within thirty days. Plaintiff has failed to comply with the Court’s order to file an 5 amended and has not responded to the Court’s order to show why the action should not be 6 dismissed. In considering the factors to determine if this action should be dismissed, the Court 7 finds that this action should be dismissed for Plaintiff's failure to obey the November 8, 2023 and 8 December 19, 2023 orders, failure to prosecute this action, and failure to state a cognizable claim 9 for relief. 10 Accordingly, it is HEREBY RECOMMENDED that this action be dismissed for Plaintiff’ s 11 failure to comply with a court orders, failure to prosecute, and failure to state a cognizable claim 12 for relief. 13 These Findings and Recommendations will be submitted to the United States District 14 || Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 15 || (14) days after being served with these Findings and Recommendations, Plaintiff may file written 16 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 || Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED. F- 2 ee 23 | Dated: _ January 26, 2024 _ ef

UNITED STATES MAGISTRATE JUDGE

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