1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ISAIAH LAMAR BARRETT, Case No.: 21cv1603-JO (JLB) BOOKING #95410-298, 12 ORDER DISMISSING FIRST Plaintiff, 13 AMENDED COMPLAINT WITH vs. LEAVE TO AMEND PURSUANT TO 14

(e)(2)(B)

15 GEO Group, Inc., et al., 16 Defendants. 17 18 19 20 I. Background 21 Plaintiff Isaiah LaMar Barrett is a pre-trial detainee housed at the Western Region 22 Detention Facility in San Diego, California, proceeding pro se and in forma pauperis in 23 this civil rights action brought pursuant to Bivens v. Six Unknown Named Agents of the 24 Federal Bureau of Narcotics,

(1971). (ECF No. 13.) Plaintiff claims that 25 six Correctional Officers employed by GEO Group, Inc., a private corporation operating 26 the Western Region Detention Facility under contract with the federal government, used 27 excessive force during a cell extraction in violation of his Fifth and Fourteenth Amendment 28 rights to due process and to be free from cruel and unusual punishment. (Id. at 5-7.) 1 II. Screening Pursuant to

(e)(2)(B) 2 A. Standard of Review 3 A complaint filed by any person proceeding in forma pauperis is subject to sua 4 sponte dismissal if it is “frivolous, malicious, fail[s] to state a claim upon which relief may 5 be granted, or seek[s] monetary relief from a defendant immune from such relief.” 28

(e)(2)(B); Lopez v. Smith,

(9th Cir. 2000) (en banc) 7 (“[S]ection 1915(e) not only permits but requires a district court to dismiss an in forma 8 pauperis complaint that fails to state a claim.”) 9 “The standard for determining whether a plaintiff has failed to state a claim upon 10 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 11 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient 13 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 14 Ashcroft v. Iqbal,

(2009), quoting Bell Atlantic Corp. v. Twombly, 550

, 570 (2007). “Determining whether a complaint states a plausible claim for relief 16 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 17 experience and common sense.”

18 B. Plaintiff’s Allegations 19 Plaintiff alleges that on July 18, 2021, while housed as a pre-trial detainee at the 20 Western Region Detention Facility, Defendant Correctional Officer Rubio sprayed 21 oleoresin capsicum spray in his eyes “while I was laying on my cell floor without reason 22 to do so.” (ECF No. 13 at 6.) “My cell door was breached by the Correctional Emergency 23 Response Team (CERT) consisting of Defendants Correctional Officers Rubio, R. Padilla, 24 J. Mora, L. Guillen, J. Gomez and D. Henderson.” (Id.) Padilla grabbed Plaintiff’s head 25 while Mora and Guillen grabbed his left and right arms as Guillen placed him in handcuffs. 26 (Id.) Henderson and Gomez grabbed his right and left legs while Gomez placed him in leg 27 restraints. (Id.) “Defendants picked up Plaintiff after restraints were on his hands & feet. 28 Plaintiff was dropped injuring his left knee.” (Id.) 1 Plaintiff alleges Defendant Rubio wrote a false incident report stating he had refused 2 to be placed in hand restraints. (Id. at 7.) He claims that “video of the cell extraction will 3 show that the incident report was false and that no warning was issued; neither did Plaintiff 4 disobey any orders given by any correctional officers, nor did I strike or attempt to strike 5 anyone.” (Id.) He states that he “was later punished by being put in a G cell or in the hole 6 without ever being charged with violating any rules. This punishment continued and I 7 remained in a red jumpsuit in isolation until I was transferred to Otay Mesa Detention 8 Center.” (Id.) 9 Plaintiff claims violations of his rights to due process and to be free from excessive 10 use of force under the Fifth and Fourteenth Amendments. (Id. at 5-6.) He seeks 11 compensatory and punitive damages. (Id. at 5.) 12 C. Analysis 13 1. Plaintiff’s Bivens Claim Fails Because State Tort Remedies Are Available 14 A Bivens remedy is not available here because Plaintiff is seeking relief against 15 employees of a private detention facility for conduct which typically falls within the 16 traditional scope of state tort laws. Plaintiff indicates he is seeking relief pursuant to 42

. (ECF No. 13 at 4.) As noted in the Court’s December 2, 2021, Order 18 screening Plaintiff’s original Complaint, because Plaintiff has named federal rather than 19 state actors as Defendants his pleading is properly construed pursuant to Bivens rather than 20

. (ECF No. 9 at 5-6, citing Agyeman v. Corrections Corp. of America, 21

(9th Cir. 2004) (federal constitutional claims brought against 22 individual correctional officer defendants employed by private corporation operating a 23 detention facility under contract with the federal government are required to be brought in 24 federal court, if at all, pursuant to Bivens) and Van Strum v. Lawn,

(9th 25 Cir. 1991) (“Actions under § 1983 and those under Bivens are identical save for the 26 replacement of a state actor under § 1983 by a federal actor under Bivens.”).) 27 “Inmates who sue prison officials for injuries suffered while in custody may do so 28 under the Eighth Amendment’s Cruel and Unusual Punishment Clause or, if not yet 1 convicted, under the Fourteenth Amendment’s Due Process Clause.” Castro v. County of 2 Los Angeles,

(9th Cir. 2016). “Under both clauses, the plaintiff 3 must show that the prison officials acted with ‘deliberate indifference.’”

. For 4 pre-trial detainees bringing claims under the Fourteenth Amendment there is an objective 5 standard of deliberate indifference, which is “more than negligence but less that subjective 6 intent - something akin to reckless disregard.”

. 7 “Where . . . a federal prisoner seeks damages from privately employed personnel 8 working at a privately operated federal prison, where the conduct allegedly amounts to a 9 violation of the Eighth Amendment, and where that conduct is of a kind that typically falls 10 within the scope of traditional state tort law . . ., the prisoner must seek a remedy under 11 state tort law. We cannot simply imply a Bivens remedy in such a case.” Minneci v. 12 Pollard,

(2012). 13 Plaintiff is unable to obtain a Bivens remedy against the guards employed by the 14 GEO Group Inc. here based on allegations of excessive use of force during his cell 15 extraction because he has tort remedies available to him under California law. The Court 16 in Minneci specifically held that California tort law provides a remedy “for actions based 17 upon the failure of one with a custodial duty to care for another to protect that other from 18 ‘unreasonable risk of physical harm,’” and that “California courts have specifically applied 19 this law to jailers, including private operators of prisons.”

. The Ninth Circuit 20 has applied Minneci to preclude Bivens remedies for claims against employees of the GEO 21 Group, Inc. in its capacity of operating a federal immigration detention facility. See 22 Karboau v. Clark,

, 679 (9th Cir. 2014) (affirming dismissal of claims 23 against individual employees of GEO Group, Inc., because the exclusive remedy is 24 pursuant to state tort law). 25 Accordingly, the Court sua sponte dismisses Plaintiff’s Bivens claims in the First 26 Amended Complaint for failure to state a claim upon which relief may be granted. See 28

(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 28 / / / 1 2. Plaintiff’s Alternate Claims Under the FTCA 2 As an alternative to bringing this action in state court under state tort law, Plaintiff 3 also could have brought his suit in federal court against the United States under the Federal 4 Torts Claim Act (“FTCA”). The United States is the only proper Defendant in an FTCA 5 suit. Kennedy v. U.S. Postal Service,

(9th Cir. 1998). In addition, 6 “[t]he timely filing of an administrative claim is a jurisdictional prerequisite to the bringing 7 of a suit under the FTCA, and, as such, should be affirmatively alleged in the complaint.” 8 Gillespie v. Civiletti,

(9th Cir. 1980). 9 In an FTCA suit, Plaintiff would have the option of seeking to join the Defendants 10 he named in the First Amended Complaint and requesting the Court to exercise 11 supplemental jurisdiction over state tort claims against them. See Agyeman,

1103-04 (detainee in federal detention facility run by private corporation could not bring 13 Bivens action against corporation or its employees but could have brought a FTCA suit 14 with the option of joining the private corporation as a defendant and requesting the district 15 court to exercise supplemental jurisdiction over his state tort claims), citing Correctional 16 Services Corp. v. Malesko,

(2001) (discussing options for federal 17 prisoners in private prisons and recognizing that state tort claims are easier to plead because 18 they lack the heightened deliberate indifference standard for analogous federal 19 constitutional claims) and

(b)(1) (stating that district courts shall have 20 jurisdiction over civil actions against the United States for “personal injury or death caused 21 by the negligent or wrongful act or omission of any employee of the Government while 22 acting within the scope of his office or employment, under circumstances where the United 23 States, if a private person, would be liable to the claimant in accordance with the law of 24 the place where the act or omission occurred.”) 25 Construing Plaintiff’s First Amended Complaint liberally as presenting an FTCA 26 claim, the Court here finds that in addition to having failed to name the United States as a 27 Defendant, the First Amended Complaint fails to state an FTCA claim because it does not 28 allege compliance with the FTCA’s administrative claim exhaustion requirement. 1 Accordingly, the Court sua sponte dismisses Plaintiff’s FTCA claim in the First 2 Amended Complaint for failure to state a claim upon which relief may be granted. See 28

(e)(2)(B)(ii); Watison, 668 F.3d at 1112. 4 3. Supplemental State Law Tort Claims 5 Because all federal claims are dismissed from this action, the Court declines to 6 exercise supplemental jurisdiction over any state law tort claims at this time. See 28 U.S.C. 7 § 1367(c)(2) (“The district courts may decline to exercise supplemental jurisdiction over a 8 claim . . . if . .. (3) the district court has dismissed all claims over which it has original 9 jurisdiction . . . .”); United Mine Workers of Am. v. Gibbs,

(1966) 10 (“Certainly, if the federal claims are dismissed before trial . . . the state law claims should 11 be dismissed as well.”) 12 D. Leave to Amend 13 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt 14 to sufficiently allege a claim if he can. See Rosati v. Igbinoso,

(9th 15 Cir. 2015) (“A district court should not dismiss a pro se complaint without leave to amend 16 [pursuant to

(e)(2)(B)(ii)] unless it is absolutely clear that the deficiencies 17 of the complaint could not be cured by amendment.”) (internal quote marks omitted. 18 III. Conclusion and Order 19 Good cause appearing, the Court: 20 1. DISMISSES all claims against all Defendants in the First Amended 21 Complaint without prejudice and with leave to amend pursuant to 28 U.S.C. 22 § 1915(e)(2)(B)(ii). 23 2. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in 24 which to file a Second Amended Complaint which cures the deficiencies of pleading noted 25 in this Order. Plaintiff’s Second Amended Complaint must be complete by itself without 26 reference to any previous version of his pleading; Defendants not named and any claims 27 not re-alleged in the Second Amended Complaint will be considered waived. See S.D. Cal. 28 CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,

, 1546 1 Cir. 1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa 2 || County,

(9th Cir. 2012) (noting that claims dismissed with leave to 3 ||amend which are not re-alleged in an amended pleading may be “considered waived if not 4 ||repled.”) If Plaintiff fails to timely amend, the Court will enter a final Order dismissing 5 civil action. See Lira v. Herrera,

(9th Cir. 2005) (“If a plaintiff 6 || does not take advantage of the opportunity to fix his complaint, a district court may convert 7 dismissal of the complaint into dismissal of the entire action.”) 8 IT IS SO ORDERED. 9 || Dated: February 18, 2022 10 i Ho orgbfe Tinsook Ohta 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7