1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SKYLER McMILLION, No. 1:24-cv-01557-KES-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. ACTION FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF 14 J. DOER, et al., (ECF No. 21) 15 Defendants. 16 17 18 Plaintiff is proceeding pro se and in forma pauperis in this civil rights complaint pursuant 19 to Bivens v. Six Unknown Federal Narcotics Agents,

(1971). 20 Plaintiff’s complaint in this action was filed on June 30, 2025. (ECF No. 1.) 21 On July 29, 2025, the Court screened the complaint, found that Plaintiff failed to state a 22 cognizable claim for relief, and granted Plaintiff thirty days to file an amended complaint. (ECF 23 No. 20.) 24 Plaintiff failed to file an amended complaint or otherwise respond to the July 31, 2025 25 order. Therefore, on September 24, 2025, the Court issued an order for Plaintiff to show cause 26 why the action should not be dismissed. (ECF No. 21.) Plaintiff has failed to respond to the 27 order to show cause and the time to do so has now passed. Thus, the operative complaint before 28 the Court is the initial complaint, which as explained below, fails to state a cognizable claim for 1 relief and dismissal of the action is warranted. 2 I. 3 SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 8 “seek[] monetary relief against a defendant who is immune from such relief.”

1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 10 A complaint must contain “a short and plain statement of the claim showing that the 11 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 12 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 13 conclusory statements, do not suffice.” Ashcroft v. Iqbal,

(2009) (citing Bell 14 Atlantic Corp. v. Twombly,

(2007)). Moreover, Plaintiff must demonstrate 15 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v.

F.3d 930, 934 (9th Cir. 2002). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 18 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman,

1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 20 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 21 that each named defendant is liable for the misconduct alleged. Iqbal,

; Moss 22 v. U.S. Secret Service,

(9th Cir. 2009). The “sheer possibility that a defendant 23 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 24 liability” falls short of satisfying the plausibility standard. Iqbal,

; Moss,

. 26 /// 27 /// 28 /// 1 II. 2 COMPLAINT ALLEGATIONS 3 The incidents at issue in this complaint took place at the United States Penitentiary in 4 Atwater (USP Atwater). 5 On or about August 9 to October 9, 2024, USP Atwater was placed on lockdown for 60 6 days requiring inmates to be confined to their cells for 24 hours a day. During this time, the Unit 7 Team (consisting of Plaintiff’s unit manager, case manager, and counselor) were responsible to 8 make administrative remedy forms (including Federal Tort Claims Act forms) available to 9 Plaintiff. Plaintiff had no way to approach the Unit Team members to request administrative 10 remedy forms. Plaintiff sent a copout via institutional mail to the Unit Team requesting informal 11 resolution of issues. 12 During the lockdown, Plaintiff was “cut off from the world” and denied: (1) access to 13 current events; (2) communication with anyone outside the facility; (3) access to the court; (4) 14 access to medical treatment; (5) access to his personal property; (6) access to cleaning supplies; 15 and (7) access to commissary. 16 Plaintiff attempts to bring the following claim: (1) denial of access to administrative 17 remedy forms; (2) denial of free speech and access to the courts in violation of the First 18 Amendment; (3) denial of medical care under the Eighth Amendment; (4) denial of property in 19 violation of the Fifth Amendment; (5) cruel and unusual punishment relating to the conditions of 20 confinement under the Eighth Amendment; and (6) illegal search and seizure under the Fourth 21 Amendment. 22 III. 23 DISCUSSION 24 A. Bivens 25 Not all constitutional cases against federal officers for damages may proceed as Bivens 26 claims. There is a two-part test to determine whether a Bivens action may proceed. Ziglar v. 27 Abbasi,

-139 (2017). To determine whether a Bivens claim is cognizable, a court 28 first “ask[s] whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ 1 different from the three cases in which the Court has implied a damages action.” Egbert v. Boule, 2

(2022) (quoting Ziglar v. Abbasi, 582 U.S. at 139). That is, the Court must 3 determine whether the claim presents a new context from the three cases the Supreme Court has 4 allowed to proceed under Bivens: Bivens v. Six Unknown Federal Narcotic Agents,

(1971); Davis v. Passman,

(1979); and Carlson v. Green,

(1980). If the 6 answer is no, the claim may proceed. If the answer is yes, the court must apply a “special factors” 7 analysis to determine whether “special factors counsel hesitation” in expanding Bivens to the 8 action. Ziglar, 582 U.S. at 136. 9 In Egbert, the Supreme Court explained that the essential determination is “whether there 10 is any reason to think that Congress might be better equipped to create a damages remedy.” 142 11 S.Ct. at 1803. If any rational reason exists to defer to Congress to establish a remedy, courts 12 “may not recognize a Bivens remedy.” Id. Further, the existence of alternative remedial 13 structures within the BOP can be a “special factor” to hesitate in finding an available Bivens 14 remedy. 15 Turning to Plaintiff’s claims, the Supreme Court has never recognized a Bivens remedy 16 under the First Amendment and the Ninth Circuit has also refused to extend a Bivens remedy to a 17 claim under the First Amendment. Reichle v. Howards,

, 663 n.4 (2012) (citing 18 Iqbal,

; Bush v. Lucas,

(1983)); Lee v. Matevousian,

5603593, at *3-4 (E.D. Cal. Oct. 26, 2018) (declining to infer Bivens remedy for First 20 Amendment retaliation and denial of access to courts claims). Since Ziglar v. Abbasi, the Ninth 21 Circuit has declined to extend the Bivens remedy to claims brought under the First Amendment. 22 See Schwarz v. Meinberg,

, 734-35 (9th Cir. 2019) (finding denial of access to 23 courts claim was a “new Bivens context” and declining to extend private right of action). 24 The Ninth Circuit has also declined to extend Bivens to claims relating to unsanitary cell 25 conditions. See Schwarz v. Meinberg,

, 733–34 (9th Cir. 2019). In addition, 26 the Ninth Circuit has found a Fifth Amendment procedural due process claim presents a new 27 Bivens context in the prisoner context and thus is not a viable claim. See, e.g., Vega v. United 28 States,

, 1153–54 (9th Cir. 2018). Additionally, to state a cognizable due process 1 claim, a plaintiff must first identify a protected life, liberty, or property interest of which he has 2 been deprived. Board of Regents v. Roth,

, 570–71 (1972). Plaintiff has not failed to 3 do so as he alleges only that his personal property was confiscated because of the prison “shake 4 down.” (ECF No. 1 at 8-9). The Ninth Circuit has previous found that the deprivation of property 5 involved a new Bivens context and is not an actionable claim. See Jackson v. McNeil, No. 20- 6 35991,

, at *1 (9th Cir. Apr. 26, 2023). Although Plaintiff alleges the 7 unavailability of a grievance process deprived him of access to the courts, (ECF No. 1 at 4), 8 exhaustion is excused under § 1997e when a grievance process is unavailable, and Plaintiff 9 cannot show “actual injury” to demonstrate a cognizable claim. See Sapp v. Kimbrell,

(9th Cir. 2010); see also Schwarz, 761 F. App’x at 734 (“Schwarz’s access to courts 11 claim under the First and Fifth Amendments . . . constitute[s] [a] new Bivens context[ ].”). 12 The Ninth Circuit has recently determined that a denial of medical treatment can proceed 13 under Bivens, in specific circumstances, if the individual prison staff acted with deliberate 14 indifference to a serious medical need. Watanabe v. Derr,

(9th Cir. 2024). 15 The test for deliberate indifference consists of two parts. Jett v. Penner,

, 16 1096 (9th Cir. 2006) (internal citations omitted). First, the plaintiff must show a serious medical 17 need by demonstrating that failure to treat a prisoner’s condition could result in further significant 18 injury or the unnecessary and wanton infliction of pain.

(internal citations and quotations 19 omitted.) Second, the plaintiff must show that the defendant’s response to the need was 20 deliberately indifferent.

The second prong is satisfied by showing “(a) a purposeful act or 21 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 22 indifference.”

Indifference “may appear when prison officials deny, delay or intentionally 23 interfere with medical treatment, or it may be shown by the way in which prison physicians 24 provide medical care.”

(internal citations omitted). However, an inadvertent or negligent 25 failure to provide adequate medical care alone does not state a claim under § 1983. Id. 26 “A difference of opinion between a physician and the prisoner – or between medical 27 professionals – concerning what medical care is appropriate does not amount to deliberate 28 indifference.” Snow v. McDaniel,

(9th Cir. 2012) (citing Sanchez v. Vild, 891

(9th Cir. 1989), overruled in part on other grounds, Peralta v. Dillard,

1076, 1082-83 (9th Cir. 2014); Wilhelm v. Rotman,

(9th Cir. 2012) 3 (citing Jackson v. McIntosh,

(9th Cir. 1986). Rather, Plaintiff “must show that 4 the course of treatment the doctors chose was medically unacceptable under the circumstances 5 and that the defendants chose this course in conscious disregard of an excessive risk to [his] 6 health.” Snow,

(citing Jackson,

) (internal quotation marks 7 omitted).) In addition, “[m]edical malpractice does not become a constitutional violation merely 8 because the victim is a prisoner.” Estelle, 429 U.S. at 106; Snow,

, overruled in 9 part on other grounds, Peralta, 744 F.3d at 1082-83; Wilhelm,

. 10 Here, Plaintiff fails to allege an objectively serious medical need. Plaintiff alleges that 11 during the lockdown he suffered from severe tooth pain and leg cramps and there was no doctor 12 to see him. (ECF No. 1 at 7.) These allegations do not present an objectively serious medical 13 need under the Eighth Amendment. Plaintiff’s claim that he suffered severe tooth pain and leg 14 cramps, lacks sufficient factual details to find it constitutes a serious medical need. See Jett, 493

, 1096 (9th Cir. 2006) (a serious medical need that a failure to treat “could result in 16 further significant injury or the unnecessary and wanton infliction of pain.”); see also Mendez v. 17 Morales,

, at *12 (E.D. Cal. Feb. 20, 2025) (finding prisoner’s leg cramps did 18 rise to the level of a serious medical need under the circumstances). Plaintiff must provide 19 sufficient facts to plausibly allege his tooth pain and leg cramps were so severe that failure to treat 20 promptly would result in the “unnecessary and wanton infliction of pain.” 21 Second, even if Plaintiff demonstrated a serious medical need, he does not link or allege 22 who was responsible for the denial of medical care. See Farmer v. Brennan,

, 837 23 (1994) (prison official is deliberately indifferent only if he knows of and disregards an excessive 24 risk to inmate health or safety by failing to take reasonable steps to abate it.). Accordingly, 25 Plaintiff fails to state a cognizable claim for relief. 26 B. FTCA 27 In 1946, Congress passed the FTCA, “which waived the sovereign immunity of the United 28 States for certain torts committed by federal employees.” Brownback v. King,

, 212 1 (2021) (quoting F.D.I.C. v. Meyer,

(1994)); see also

(b)(1), 2 2674. 3 The FTCA is a limited waiver of sovereign immunity and allows for the United States to 4 be held liable for certain specified state tort actions, including negligence resulting in personal 5 injury.

(b). The FTCA provides the exclusive remedy for torts committed by 6 federal employees acting within the scope of their employment. Nurse v. United States,

996, 1000 (9th Cir. 2000). Because the remedy is against the United States and not against 8 individual employees, the United States is the only proper defendant for such a claim.

2679(b); Kennedy v. U.S. Postal Serv.,

(9th Cir. 1998) (per curiam). Under 10 the FTCA, the United States can be held liable for state torts “in the same manner and to the same 11 extent as a private individual under like circumstances,”

, but not for 12 constitutional tort claims, FDIC v. Meyer,

. 13 To state a claim under the FTCA, a plaintiff must allege facts that support his tort claim 14 and satisfy the elements of a claim in accordance with the state law where the act or omission 15 occurred.

(b)(1); United States v. Olson,

, 45–46 (2005). Under 16 California law, to state a claim the plaintiff must show that the “defendant had a duty to use due 17 care, that he breached that duty, and that the breach was the proximate or legal cause of the 18 resulting injury.” Brown v. USA Taekwondo,

, 164 (Cal. 2021) (quoting Nally v. 19 Grace Cmty. Church,

(1988)). 20 In this instance, Plaintiff fails to set forth any factual or legal circumstances giving rise to 21 a claim under the FTCA. Indeed, Plaintiff makes only passing reference to the FTCA in his 22 complaint. There are not sufficient allegations to demonstrate that any Defendants’ actions or 23 inactions specifically resulted in harm under the FTCA. As such, Plaintiff has not provided each 24 of the Defendants sufficient notice of the specific claims against them under the FTCA. See Fed. 25 R. Civ. P. 8. Consequently, without any linkage between the actions or inactions of each 26 individual Defendant and the harm alleged, Plaintiff’s claims are nothing more than speculation, 27 devoid of factual support. 28 ///

RECOMMENDATION 3 Based on the foregoing, it is HEREBY RECOMMENDED that this action be dismissed 4 | for failure to state a cognizable claim for relief. 5 This Findings and Recommendation will be submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of

(b)(). Within fourteen (14) 7 | days after being served with this Findings and Recommendation, Plaintiff may file written 8 | objections with the Court, limited to 15 pages in length, including exhibits. The document should 9 | be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is 10 | advised that failure to file objections within the specified time may result in the waiver of rights 11 | onappeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing Baxter v. 12 | Sullivan,

(9th Cir. 1991)). 13 14 IT IS SO ORDERED. DAA Le 15 | Dated: _ October 20, 2025 ; STANLEY A. BOONE 16 United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28