Curry v. Director, Case No. CV 16-7523 AB (SS)
| Decision Date | 26 April 2017 |
| Docket Number | Case No. CV 16-7523 AB (SS) |
| Court | U.S. District Court — Central District of California |
| Parties | VICTOR CURRY, Plaintiff, v. FPC LOMPOC MED DIRECTOR, et al., Defendants. |
On October 4, 2016, Victor Curry ("Plaintiff"), a federal prisoner proceeding pro se, filed a complaint alleging violations under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671, et seq. ("Complaint," Dkt. No. 3). The Court dismissed the Complaint with leave to amend due to defects in pleading.1 (Dkt. No. 9).Plaintiff subsequently filed the instant First Amended Complaint. ("FAC," Dkt. No. 19).
Congress mandates that district courts perform an initial screening of complaints in civil actions where a prisoner seeks redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if it concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1-2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc). For the reasons stated below, the FAC is DISMISSED with leave to amend.
Plaintiff sues five unnamed employees and one prisoner at the "Federal Prison Camp" in Lompoc, California: (1) "John Doe/Jane Doe," the prison's medical director ("Medical Director"); (2) "Richard Roe," the warden ("Warden"); (3) "Bobby Do[e]," the acting warden in the warden's absence ("Acting Warden"); (4) "Jimmy Doe," the correctional officer in charge of the prison's special housing unit ("SHU Lieutenant"); (5) "Perry Doe," a prison disciplinary hearing officer ("Hearing Officer"); and (6) Kenyon Payne ("Payne"), a fellow prisoner whom Plaintiff maintains is also a "contract employee" of the Federal Bureau of Prisons ("BOP").(FAC at 3-4). All six Defendants are sued in both their individual and official capacities, "together with insurers by this 3rd party beneficiary." (Id.).
The FAC2 alleges that on an unspecified date at FPC Lompoc, Payne attacked and beat Plaintiff until he lost consciousness and "for some time" thereafter. (Id. at 5). No staff member intervened to stop the attack, which did not end until "Payne tired on his own." (Id. at 8). Plaintiff suffered "profuse" internal and external bleeding and a broken jaw; permanently lost sight in one eye and hearing in one ear; and to this day urinates blood and endures "pain of body and mind that will not abate," including migraine headaches that last "indefinitely." (Id. at 5).
Plaintiff was rushed to the hospital, where doctors recommended that he remain overnight and return soon after for "after-care" consultations. (Id.). However, an unidentified duty officer returned Plaintiff to the SHU that very night. (Id.).
The SHU Lieutenant kept Plaintiff in the SHU instead of returning him to the general population, even though he was thevictim of the attack. Plaintiff did not receive the medical treatment recommended by the hospital doctors and was not taken back to the hospital for follow-up care. (Id.). The prison SHU and medical staff "did not take [Plaintiff's] injuries seriously" and "ignored his pleas for help." (Id.). On one occasion, SHU "detail officers" attempted to place Plaintiff "in a locked Recreation cage with PAYNE" and encouraged them to fight. (Id.).
While in the SHU, Plaintiff was "processed for misconduct" in a disciplinary proceeding in connection with the incident. (Id.). The Hearing Officer concluded, based on "false reports," that Plaintiff had participated in a "mutual fight" and "ratified" the loss of good time credits and "sanctions" against Plaintiff. (Id. at 6). Plaintiff spoke to the Warden and an administrator about the decision, and but they both "shrugged it off." (Id.).
Plaintiff was then transferred to his current prison in Ohio. (Id.). FPC Lompoc Medical staff "violated every rule in the book" by allowing him to be transferred in his injured condition without following the hospital's "recommendation for after-care, operations, medical review and analysis." (Id.). FPC Lompoc Medical staff also prescribed NSAIDs (non-steroidal anti-inflammatory drugs) even though Plaintiff had suffered "obvious kidney damage." (Id.).
Plaintiff states that he filed claims, including a tort claim, related to the incident, "knowing full well that all [Defendants]were insured."3 (Id.). However, to "evade claims reporting requirements," Defendants conspired to falsely characterize the attack "in their books" as a mutual fight in violation of their "medical professional ethics" and "corrections professional ethics," and ignored his plea for compensation. (Id.).
Although the FAC purports to be a Bivens action, the Request for Relief does not clearly include any Bivens claims at all. Instead, Plaintiff states that he is seeking damages for "discriminatory business practices," "personal injury," "supervisory negligence and contract breach," "medical malpractice and negligence," "correctional staff conduct state law violations/human rights breach," and "forgery and falsification of records to conceal wrongdoing" in violation of "business record/accounting laws & claim processing state laws." (Id. at 9). Plaintiff seeks over $5 million in monetary damages, (id.), and an order requiring FPC Lompoc to produce videotapes of the SHU recreation cages for the days when Plaintiff was signed up for recreation. (Id. at 8).
Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's Complaint due to defects in pleading. Pro se litigantsin civil rights cases, however, must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants leave to amend.
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rule 8(e)(1) instructs that "[e]ach averment of a pleading shall be simple, concise, and direct."
The FAC does not comply with the standards of Rule 8. Plaintiff once again fails to clearly specify the particular claims he wishes to pursue, the facts supporting each individual claim, and the specific Defendants who are allegedly liable under each particular claim. Many purported "claims," such as the claims for "discriminatory business practices" and "contract breach," are mentioned only in the Request for Relief and seemingly have no connection to the wrongs alleged in the body of the FAC. The FAC alleges no facts showing discrimination. Furthermore, not only does Plaintiff fail to identify the contract he believes was breached, but more importantly, breach of contract is not a constitutional claim and generally is not actionable under theFTCA. See Love v. United States, 915 F.2d 1242, 1246 (9th Cir. 1989) (). Still other "claims," such as "correctional staff conduct state law violations/human rights breach," or violations of "business record/accounting laws & claim processing state laws" by definition do not state a violation of the federal constitution. Finally, the repeated, vague references to insurers, insurance laws and third party beneficiaries are simply nonsensical.
The FAC also violates Rule 8 to the extent that it attaches many exhibits which appear unnecessary to Plaintiff's allegations. Plaintiff is advised that he is not required at this stage of the litigation to submit evidence in support of the claims. For example, Plaintiff improperly attaches a declaration captioned as a "Statement of Injury and Loss of Victor Curry Regarding Event of Civil Rights Violations and Negligence Attributable to LOMPOC Jail Hospital/Med Ctr." (Id. at 19-22). "Written instruments" such as "declarations . . . are not allowed as pleading exhibits unless they form the basis of the complaint." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A declaration "clearly does not form the basis" of a complaint when, as here, "it is merely a piece of evidentiary matter that does not exist independently of the complaint." DeMarco v. DepoTech Corp., 149 F. Supp. 2d 1212, 1220 (S.D. Cal. 2001) (citations omitted)). Moreover, many of the assertions in the declaration are either irrelevant or duplicative of the allegations in the FAC.
The FAC also violates Rule 8 to the extent that it includes unnecessary and irrelevant discussions of law. For example, Plaintiff requests review under the Administrative Procedure Act, 5 U.S.C. § 706, which provides for the scope of judicial review of administrative law claims, which are not at issue here. (FAC at 8). Additionally, the caption erroneously indicates that Plaintiff is bringing this action under 42 U.S.C. § 1983 as well as Bivens. Section 1983 claims must allege a violation of federal constitutional or statutory rights by persons acting under color of state law, and none of the Defendants is employed by the state of California. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006).
The FAC also improperly seeks as "injunctive relief" an order from the Court requiring the BOP to provide surveillance tapes to Plaintiff. Requests for production of documents and tangible things are governed by Federal Rule of Civil Procedure 34 as part of discovery,...
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