Anaya v. Vasquez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RIVERA ANAYA, Case No.: 24cv0863-CAB (JLB) BOOKING #44512359, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 AS MOOT, and WARDEN V. VASQUEZ, ASSISTANT 16 WARDEN T. HARTLEY and HEALTH (3) DISMISSING FIRST AMENDED SERVICES ADMINISTRATOR 17 COMPLAINT PURSUANT TO 28 LOVELESS, U.S.C. § 1915(e)(2)(B) 18 Defendants. 19 20 21 22 On May 14, 2024, Plaintiff Daniel Rivera Anaya, detained at the GEO Western 23 Region Detention Facility in San Diego, California, proceeding pro se, filed this civil rights 24 action along with a motion to proceed in forma pauperis (“IFP”) and a request for service 25 of the Complaint. (ECF Nos. 1-3.) On May 17, 2024, the Court granted Plaintiff’s IFP 26 motion, dismissed the Complaint for failure to state a claim, and denied his motion for 27 service as moot. (ECF No. 4.) The Court found that Plaintiff’s claim based on the denial 28 of prescription eyeglasses was foreclosed by Supreme Court precedent and that his claim 1 of denial of due process based on the handling of his inmate grievances did not state a 2 federal constitutional claim. (Id. at 5-6.) Although it appeared unlikely Plaintiff could cure 3 those defects of pleading, in an abundance of caution the Court granted leave to amend. 4 (Id. at 7.) Plaintiff has now filed a First Amended Complaint and a second motion to 5 proceed IFP. (ECF Nos. 7-8.) 6 I. Motion to Proceed IFP 7 Because Plaintiff has already been granted leave to proceed IFP in this action, his 8 second motion to proceed IFP (ECF No. 8) is DENIED as moot. 9 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) 10 As Plaintiff was instructed in the Court’s prior dismissal Order, a complaint filed by 11 anyone proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious, 12 fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a 13 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 14 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. 15 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th 16 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to 17 dismiss an in forma pauperis complaint that fails to state a claim.”) 18 The Defendants named in this action include employees of the GEO Group, Inc., a 19 private corporation operating the GEO Western Region Detention Facility under a contract 20 with the federal government who are sued pursuant to Bivens v. Six Unknown Named 21 Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Van Strum v. Lawn, 940 22 F.2d 406, 409 (9th Cir. 1991) (Bivens provides a private right of action against individuals 23 who, acting under color of federal law, violate federal constitutional or statutory rights); 24 Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (detainees 25 in a private facility run under a federal government contract are required to bring 26 constitutional claims in federal court, if at all, pursuant to Bivens). 27 However, as Plaintiff was notified in the Court’s prior dismissal Order, he cannot 28 maintain a Bivens cause of action against the individual Defendants for an Eighth 1 Amendment violation arising from the delay in providing him with, or denial of, 2 prescription eyeglasses. “Where, as here, a federal prisoner seeks damages from privately 3 employed personnel working at a privately operated federal prison, where the conduct 4 allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a 5 kind that typically falls within the scope of traditional state tort law . . ., the prisoner must 6 seek a remedy under state tort law. We cannot simply imply a Bivens remedy in such a 7 case.” Minneci v. Pollard, 565 U.S. 118, 131 (2012) (federal inmate has no Bivens claims 8 against private employees working at a privately operated federal prison for denial of 9 medical care or similar conduct that typically falls within the scope of traditional state tort 10 law). The Ninth Circuit has applied Pollard to preclude Bivens remedies for claims against 11 employees of the GEO Group, Inc. in its capacity of operating a federal immigration 12 detention facility. See Karboau v. Clark, 577 Fed.Appx. 678, 679 (9th Cir. 2014) 13 (affirming dismissal of Eighth Amendment claims against individual employees of GEO 14 Group, Inc., because the exclusive remedy is pursuant to state tort law). 15 Plaintiff has not cured this defect of pleading in the First Amended Complaint, which 16 merely repeats the allegations in the original Complaint of a delay in providing him with, 17 or denial of, prescription eyeglasses. (See ECF No. 7 at 3.) In addition, Plaintiff indicates 18 he has waived his due process claim based on the handling of his grievance, the only other 19 claim presented in this action. (See id. at 4.) 20 Accordingly, the Court sua sponte dismisses all claims in the First Amended 21 Complaint against all Defendants for failure to state a claim upon which relief may be 22 granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 23 D. Leave to Amend 24 Because it is now absolutely clear that further amendment would be futile, the 25 dismissal is without further leave to amend. See Rosati v. Igbinoso, 791 F.3d 1037, 1039 26 (9th Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to 27 amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it is absolutely clear that the 28 deficiencies of the complaint could not be cured by amendment.’”), quoting Akhtar v. 1 || Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 2 (9th Cir. 1996) (denial of leave to amend is not an abuse of discretion where further 3 ||amendment would be futile); Newland v. Dalton, 81 F.3d 904, 907 (9th Cir. 1996) (“While 4 || Fed.R.Civ.P. 15(a) encourages leave to amend, district courts need not accommodate futile 5 ||amendments.”) 6 Conclusion and Orders 7 Good cause appearing, the Court DENIES Plaintiff's Motion to Proceed IFP as moot 8 ||(ECF No. 8) and DISMISSES all claims against all Defendants in the First Amended 9 ||Complaint without further leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B)Gi). The 10 || Clerk of Court is DIRECTED to enter final judgment accordingly. 11 IT IS SO ORDERED. 12 || Dated: June 6, 2024 € ZL 13 Hon. Cathy Ann Bencivengo 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4