1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BENANTI, Case No.: 1:24-cv-01108-JLT-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS PLAINTIFF’S COMPLAINT FOR 13 v. FAILING TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 14 J. DOERER, et al., (Doc. 10) 15 Defendants. 21-DAY OBJECTION DEADLINE 16

17 Plaintiff Michael Benanti is appearing pro se and in forma pauperis in this civil rights 18 action. 19 I. INTRODUCTION 20 On August 22, 2025, the Court issued its First Screening Order. (Doc. 44.) The 21 undersigned found Plaintiff failed to state a claim upon which relief could be granted. (Id. at 5- 22 13.) Plaintiff was granted leave to file an amended complaint and provided relevant legal 23 standards. (Id.) Specifically, he was directed to file either a first amended complaint, curing the 24 deficiencies identified in the order, or a notice of voluntary dismissal, within 30 days. (Id. at 13- 25 14.) 26 On October 17, 2025, after Plaintiff failed to file an amended complaint or a notice of 27 voluntary dismissal within the prescribed period, the undersigned issued Findings and 1 prosecute. (Doc. 47.) Any objections were to be filed within 14 days. (Id. at 4-5.) 2 On October 20, 2025,1 Plaintiff filed a Response to First Screening Order. (Doc. 48.) 3 On October 23, 2025, the Court issued its Order Vacating Findings and Recommendations 4 to Dismiss This Action for Plaintiff’s Failure to Obey Court Orders and Failure to Prosecute 5 Issued October 17, 2025. (Doc. 49.) The Court noted it would address Plaintiff’s October 20, 6 2025, response in a separate order. (Id. at 2.) 7 II. DISCUSSION 8 Plaintiff’s Response to the First Screening Order 9 Plaintiff contends he “has been litigating this Complaint for over a year with the district 10 court, who is not a defendant in the Complaint,” asserting the issues raised in the screening order 11 “should properly be raised by the defendant.” (Doc. 48 at 1.) Plaintiff contends the Court “made 12 every effort to obstruct the filing of the Complaint” and is “misguided by rulings that announce 13 Bivens claims should be disfavored.” (Id.) Plaintiff asserts the Court “should take notice that the 14 petitioner’s only mention of monetary damages was it was to be determined by the Court” and 15 that he “made no request for monetary damages and withdraws any such request construed by this 16 Court.” (Id.) 17 Plaintiff contends the Court “has demonstrated that its role as gatekeeper far exceeds its 18 obligation to protect prisoners from human rights violations,” complaining the Court “has set out 19 a quagmire of seemingly conflicting principles” in its screening order. (Doc. 48 at 1.) 20 Further, Plaintiff states he “declines to amend the complaint filed Nov 19 2024” because it 21 “clearly states that prison officials abused their power by violating BOP policy, the Constitution 22 & prisoners human rights.” (Doc. 48 at 2.) Plaintiff contends the “violations are serious & 23 obvious needing no further explanation.” (Id.) 24 1 Although signed, Plaintiff’s filing is not dated. Nor is it accompanied by a proof of service. See Local Rule 135(c) 25 (“When service of any pleading, notice, motion, or other document is required under Rule 135(b), proof of such service shall be endorsed upon or affixed to the original of the document when it is lodged or filed. Except for ex 26 parte matters, a paper document shall not be submitted for filing unless it is accompanied by a proof of service. Proof of service shall be under penalty of perjury and shall include the date, manner and place of service” [emphasis 27 added]). Notably, Plaintiff was provided with a Proof of Service form as a part of the Court’s First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued September 18, 2024. (See Doc. 2 at 6.) That same order 1 Plaintiff generally contends the claims asserted in his complaint were properly pled, the 2 “Court’s concern with a specific claim of deliberate indifference of an ongoing medical condition 3 is irrelevant,” and that the Court “seems to expect” him to accept that certain of his claims are 4 without remedy despite his assertions to the contrary. (Doc. 48 at 2.) Plaintiff specifically 5 contends the Court has “failed in its duty to protect prisoners” and that he “has only an 6 antiquated, cumbersome, bias & legally ineffective administrative remedy process to utilize” 7 absent this Court’s intervention. (Id. at 3.) 8 Plaintiff further contends the Court “has demonstrated a gross disregard for prisoners 9 rights in this case,” stating he is “ashamed” to advise other inmates that “this Court is not inclined 10 to help them,” and asserting it “would have been nothing for you to make an inquiry to the 11 warden, find counsel to investigate or appoint counsel in this matter,” and stating the Court 12 “should consider doing better in the future.” (Doc. 48 at 3.) 13 Plaintiff Has Elected to Stand on His Complaint 14 Considering the foregoing, the Court finds Plaintiff elects to stand on his complaint filed 15 November 19, 2024. (See Doc. 48 at 2 [“The petitioner declines to amend the complaint …].) As 16 a result, the undersigned incorporates the previous discussion and analysis of Plaintiff’s claims at 17 screening.2 The undersigned also finds that granting leave to amend would be futile as to certain 18 claims that cannot be remedied but that leave to amend should be granted as to two of Plaintiff’s 19 deficiently pleaded claims that could be cured: a claim for deliberate indifference to serious 20 medical needs under the Eighth Amendment and a claim under the Federal Tort Claims Act. 21 Below, the undersigned addresses certain issues raised by Plaintiff’s response filed October 20, 22 2025. 23 A. Plaintiff’s Complaint3 24 The events giving rise to Plaintiff’s claim occurred at the United States Penitentiary, 25 Atwater (USP Atwater) between August and October 2024. Plaintiff names Warden J. Doerer, the 26 2 The screening and pleading requirements were provided in the screening order. (See Doc. 44 at 2-4.) 27 3 Plaintiff’s original complaint was unsigned. (See Doc. 1.) On October 3, 2024, Plaintiff was ordered to submit a 1 United States of America, Associate Wardens Queen and Silver, Captain Brasfield, “HSA” 2 Franks, “AHSA” Milarski, Mailroom Supervisor D. Datray, Unit Manager J. Castenada, Case 3 Manager V. Vega, Counselor S. Stockton, “Trust Fund” Beardsly, and “Medical” employees 4 Krodic, Plesenta, Cota, Singh, “Indian Woman,” Pena, “Asian Woman,”4 Putnam, Ibarra, and 5 Debusk, as defendants in this action. (Doc. 10 at 1-3.) He seeks compensatory and punitive 6 damages,5 “injunctive relief set out in separate motion,”6 and “[admission], declaration & 7 [commitment] of (1) wrongdoing (2) how it will be resolved (3) [commitment] to resolve the 8 issues.” (Id. at 12.) 9 B. Plaintiff’s Claims 10 Plaintiff references the First, Fourth, Fifth, and Eighth Amendments in asserting his five 11 claims for relief. (See Doc. 10 at 4-6, 8, 10.) 12 Bivens 13 A Bivens7 action is the federal analog to suits brought against state officials under 42

. Hartman v. Moore,

, 254 n.2 (2006). The basis of a Bivens 15 action is some illegal or inappropriate conduct on the part of a federal official or agent that 16 violates a clearly established constitutional right. Baiser v. Dep’t of Justice, Office of U.S. 17 Trustee,

(9th Cir. 2003). “To state a claim for relief under Bivens, a plaintiff 18 must allege that a federal officer deprived him of his constitutional rights.” Serra v. Lappin, 600 19

20 4 Unnamed individuals cannot be served. Following the completion of screening, and assuming the Court finds Plaintiff has stated a plausible claim against an unnamed individual or Doe defendant, Plaintiff will be afforded the 21 opportunity to identify the unnamed individuals through limited discovery. Wakefield v. Thompson,

(9th Cir. 1999) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)).

22 5 As noted above, in his Response to the First Screening Order, Plaintiff takes issue with this reference to monetary damages, stating his “only mention of monetary damages was it was to be determined by the Court.” (See Doc. 48 at 23 1.) While Plaintiff did request “actual or compensatory” and “punative [sic]” “damages to be determined by the Court by law” (see Doc. 10 at 12), the undersigned finds the language to be a distinction without a difference. Stated 24 another way, by seeking monetary damages – whether by a sum certain or as determined by a court later – Plaintiff is seeking monetary relief. Nevertheless, Plaintiff went on to state he “withdraws any such request construed by this 25 Court.” (Doc. 48 at 1.) Thus, where relevant, the undersigned will reassess the claims in the absence of relief in the form of money damages. 26 6 Plaintiff’s “Amended Motion for Injunctive Relief” (Doc. 42), filed July 15, 2025, was denied on September 22, 27 2025. (See Docs. 45 & 46.)

7

(9th Cir. 2010) (citing Schearz v. United States,

, 432 (9th Cir. 2 2000). A Bivens claim is only available against officers in their individual capacities. Morgan v. 3 United States,

, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre,

, 857 (9th 4 Cir. 1996). “A plaintiff must plead more than a merely negligent act by a federal official in order 5 to state a colorable claim under Bivens.” O’Neal v. Eu,

(9th Cir. 1988). 6 In Bivens, the Supreme Court created an implied cause of action under the Fourth 7 Amendment, “against federal agents who allegedly manacled the plaintiff and threatened his 8 family while arresting him for narcotics violations.” Egbert v. Boule,

(2022) 9 (quoting Bivens, 403 U.S. at 397). Subsequently, the Supreme Court extended the Bivens remedy 10 twice: in Davis v. Passman,

(1979) (holding that a Bivens remedy exists for a Fifth 11 Amendment gender discrimination claim where a congressman fired an administrative assistant), 12 and in Carlson v. Green,

(1980) (holding that a prisoner’s estate had a Bivens remedy 13 under the Eighth Amendment against prison officials for failing to treat the prisoner’s asthma 14 which resulted in his death). “These three cases—Bivens, Davis, and Carlson—represent the only 15 instances in which the Court has approved of an implied damages remedy under the Constitution 16 itself.” Ziglar v. Abbasi,

(2017). 17 Not all constitutional cases against federal officers for damages may proceed as Bivens 18 claims. There is a two-part test to determine whether a Bivens action may proceed. Ziglar, 582 19 U.S. at 138-139. To determine whether a Bivens claim is cognizable, a court first “ask[s] whether 20 the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different from the three cases 21 in which the Court has implied a damages action.” Egbert,

(quoting Ziglar v. 22 Abbasi,

). That is, the Court must determine whether the claim presents a new 23 context from the three cases the Supreme Court has allowed to proceed under Bivens. If the 24 answer is no, the claim may proceed. If the answer is yes, the court must apply a “special factors” 25 analysis to determine whether “special factors counsel hesitation” in expanding Bivens to the 26 action. Ziglar,

. 27 In Egbert, the Supreme Court explained that the essential determination is “whether there 1 Egbert,

. If any rational reason exists to defer to Congress to establish a remedy, 2 courts “may not recognize a Bivens remedy.”

Further, the existence of alternative remedial 3 structures within the BOP can be a “special factor” to hesitate in finding an available Bivens 4 remedy. 5 First Amendment: Access Claims 6 Plaintiff alleges the unavailability of a grievance process during lockdown deprived him 7 of access to the courts. (Doc. 10 at 4.) Plaintiff further asserts defendants “cut [him] off from the 8 world,” denying him access to “news-current events,” his family and attorney (id. at 5) and 9 “restricted all communication with the outside world” (id. at 11). 10 However, the Supreme Court has never recognized a Bivens remedy under the First 11 Amendment and the Ninth Circuit has also refused to extend a Bivens remedy to a claim under the 12 First Amendment. Egbert,

(citing Reichle v. Howards,

, 663 n.4 13 (2012)); Bush v. Lucas,

(1983)); Schwarz v. Meinberg,

, 734- 14 35 (9th Cir. 2019) (finding denial of access to courts claim was a “new Bivens context” and 15 declining to extend private right of action); Van Gessel v. Moore, No. 1:18-cv-01478-DAD-GSA- 16 PC,

, at *12-*13 (E.D. Cal. Feb. 25, 2020) (declining to find implied cause of 17 action against defendants for denial of access to courts); Lee v. Matevousian, No. 1:18-cv-00169- 18 GSA-PC,

, at *3-4 (E.D. Cal. Oct. 26, 2018) (declining to infer Bivens remedy 19 for First Amendment retaliation and denial of access to courts claims); see also Harper v. Segal, 20 No. 23-cv-3468 (PJS/LIB),

, at *10 (D. Minn. Feb. 3, 2025) (“Plaintiff appears 21 here to allege that the Waseca Defendants violated her First Amendment rights to communicate 22 with the world outside the prison. … Plaintiff's First Amendment access-claim here against the 23 individual FCI Waseca Defendants suffers from a critical problem. Bivens does not extend to 24 permit the assertion of Plaintiff's First Amendment access-claim”), recommendation adopted, 25

(D. Minn. Mar. 4, 2025). 26 For the reasons set for the in the Court’s screening order (see Doc. 44 at 6-8), the 27 undersigned finds Plaintiff cannot state a First Amendment access claim and granting Plaintiff 1 2013); Lopez v. Smith,

(9th Cir. 2000). Moreover, as noted above, 2 Plaintiff has elected to stand on his complaint. As pled, Plaintiff fails to state a claim upon which 3 relief can be granted. Further, Plaintiff withdrew his claim for money damages,8 leaving only his 4 request for equitable relief. In Solida v. McKelvey, the Ninth Circuit held plaintiffs cannot seek 5 injunctive and declaratory relief under Bivens if “the equitable relief sought requires official 6 government action.”

(2016). “Bivens is both inappropriate and unnecessary 7 for claims seeking solely equitable relief against actions by the federal government. By definition, 8 Bivens suits are individual capacity suits and thus cannot enjoin official government action.”

9 at 1094.9 Here, to the extent Plaintiff seeks equitable relief (see Doc. 10 at 12 [“[admission], 10 declaration & [commitment] of (1) wrongdoing (2) how it will be resolved (3) [commitment] to 11 resolve the issues”]), all require official government action. Therefore, Plaintiff’s requests for 12 equitable relief cannot go forward under a Bivens claim. 13 Fourth Amendment: Property Seizure 14 Plaintiff cites to the Fourth Amendment as concerns the seizure of his personal property. 15 (Doc. 10 at 8.) 16 Nevertheless, Plaintiff does not have a right to be free from the search and seizure of his 17 personal property. Hudson v. Palmer,

(1984). “[T]he fourth amendment does 18 not protect an inmate from the seizure and destruction of his property.” Taylor v. Knapp,

(9th Cir. 1989). “This does not mean a prisoner is without redress; it simply means a 20 prisoner’s form of redress is through the fifth and fourteenth amendments.”

21 Thus, as before (see Doc. 44 at 8), the undersigned finds Plaintiff cannot state a Fourth 22 Amendment claim concerning the seizure of his property and granting Plaintiff leave to amend on 23 this basis would be futile. Hartmann, 707 F.3d at 1130. Further, Plaintiff has elected to stand on 24 his complaint. As pled, Plaintiff fails to state a claim upon which relief can be granted. 25 Additionally, Plaintiff withdrew his claim for money damages and his request for equitable relief 26 8 See Doc. 48 at 1 and n.5, ante. 27 9 See also Correctional Servs. Corp. v. Malesko,

(2001) (“core purpose” of Bivens is to “deter[] 1 cannot proceed under a Bivens claim. Solida,

. 2 Fifth Amendment: Due Process 3 Plaintiff alleges that his personal property was confiscated because of the prison’s “green 4 bag-massive shake down.” (Doc. 10 at 8). However, the Ninth Circuit has previously found that 5 the deprivation of property involves a new Bivens context and is not an actionable claim. See 6 Vega v. United States,

(9th Cir. 2018); see also Jackson v. McNeil, No. 7 20-35991,

, at *1 (9th Cir. Apr. 26, 2023); see also Van Gessel,

905216, at *14 (“Indeed, the Supreme Court has consistently declined to expand an implied right 9 of action to procedural and substantive due process claims”). 10 Therefore, as before (see Doc. 44 at 8), the undersigned Plaintiff cannot state a Fifth 11 Amendment due process violation and granting Plaintiff leave to amend on this basis would be 12 futile. Hartmann, 707 F.3d at 1130. Additionally, Plaintiff has elected to stand on his complaint. 13 As pled, Plaintiff fails to state a claim upon which relief can be granted. Further, Plaintiff 14 withdrew his claim for money damages and his request for equitable relief cannot proceed under a 15 Bivens claim. Solida,

. 16 Eighth Amendment: Medical 17 Further, the Ninth Circuit has recently determined that a denial of medical treatment can 18 proceed under Bivens, in specific circumstances, if the individual prison staff acted with 19 deliberate indifference to a serious medical need. Watanabe v. Derr,

(9th 20 Cir. 2024). The test for deliberate indifference consists of two parts. Jett v. Penner,

1091, 1096 (9th Cir. 2006) (internal citations omitted). First, the plaintiff must show a serious 22 medical need by demonstrating that failure to treat a prisoner’s condition could result in further 23 significant injury or the unnecessary and wanton infliction of pain.

(internal citations & 24 quotations omitted.) Second, the plaintiff must show that the defendant’s response to the need 25 was deliberately indifferent.

The second prong is satisfied by showing “(a) a purposeful act or 26 failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the 27 indifference.”

Indifference “may appear when prison officials deny, delay or intentionally 1 provide medical care.”

(internal citations omitted). However, an inadvertent or negligent 2 failure to provide adequate medical care alone does not state a claim under section 1983.

“A 3 difference of opinion between a physician and the prisoner – or between medical professionals – 4 concerning what medical care is appropriate does not amount to deliberate indifference.” Snow v. 5 McDaniel,

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

(9th Cir. 6 1989), overruled in part on other grounds, Peralta v. Dillard,

(9th Cir. 7 2014); Wilhelm v. Rotman,

(9th Cir. 2012) (citing Jackson v. McIntosh, 8

(9th Cir. 1986)). Rather, a plaintiff “must show that the course of treatment the 9 doctors chose was medically unacceptable under the circumstances and that the defendants chose 10 this course in conscious disregard of an excessive risk to [his] health.” Snow,

11 (citing Jackson,

) (internal quotation marks omitted).) In addition, “[m]edical 12 malpractice does not become a constitutional violation merely because the victim is a prisoner.” 13 Estelle v. Gamble,

(1976); Snow,

, overruled in part on other 14 grounds, Peralta,

; Wilhelm,

. 15 Plaintiff alleges that during the relevant period “there was no doctor employed by the 16 B.O.P., onsite at USP-Atwater.” (Doc. 10 at 6.) As a result, sick call procedures were suspended, 17 and Plaintiff contends he “had no access to medical treatment or to have medication prescribed.” 18 (Id.) He asserts that while medical staff delivered previously prescribed medications, staff could 19 not prescribe new medications. (Id.) Nor was Plaintiff permitted “the biweekly opportunity to 20 purchase a full selection of [over the counter] medications” during that period. (Id.) Further, 21 Plaintiff contends he had an allergic reaction to prescription Oxcarbazepine10 that caused 22 “blotches” on his face that have never resolved. (Id. at 7.) Plaintiff maintains he suffered “nerve 23 damage tennis elbow, carpal tunnel and the numbness & pain is ever present and sometimes 24 intense.” (Id.) Next, Plaintiff alleges a three-week lapse in renewing his prescription medications 25 to treat high blood pressure, thyroid disease and a stomach condition, causing “unnecessary pain 26

27 10 Oxcarbazepine prevents and controls seizures in people with epilepsy. See https://my.clevelandclinic.org/health/drugs/18433-oxcarbazepine-tablets, last accessed 10/23/2025. 1 & discomfort.” (Id.) Plaintiff asserts all named defendants were deliberately indifferent to his 2 serious medical needs. (Id. at 6.) 3 Liberally construing the complaint and even assuming Plaintiff meets the objective prong 4 of the deliberate indifference test, he fails to meet the subjective prong. Plaintiff has not 5 demonstrated that any defendant purposefully acted or failed to respond to his pain or possible 6 medical need or that any defendant caused Plaintiff harm by his or her indifference. Jett,

. Instead, Plaintiff merely recites every defendant’s name and asserts he or she, and “the 8 U.S.A.,” was deliberately indifferent. (See Doc. 10 at 6.) Plaintiff is advised that simply grouping 9 some or all defendants to more general assertions of overall conduct is insufficient. Rizzo, 423 10 U.S. at 373-75. Plaintiff is required to briefly identify the conduct alleged as to each defendant for 11 each claim. Iqbal, 556 U.S. at 676-77. Stated another way, any amended complaint must comply 12 with Rule 8 by clearly and succinctly stating what happened, when it happened, and how each 13 defendant was involved. 14 In the First Screening Order, Plaintiff was granted leave to amend his complaint to assert 15 his Eighth Amendment deliberate indifference to serious medical needs claims. (See Doc. 44 at 16 10, 13.) Plaintiff was provided the relevant legal standards given above and was directed to cure 17 the deficiencies relating to the claims: to briefly identify the conduct alleged as to each named 18 defendant as it relates to the subjective prong of the relevant two-part test. (Id. at 10.) 19 Subsequently however, Plaintiff has elected to stand on his complaint. As a result, in the absence 20 of amendment curing the identified deficiencies, Plaintiff’s complaint fails to state a claim upon 21 which relief can be granted and is subject to dismissal. 28 U.S.C. § 1915A(b); Ashcroft v. Iqbal, 22

(2009) (citing Bell Atl. Corp. v. Twombly,

(2007)). Further, 23 Plaintiff withdrew his claim for money damages and his request for equitable relief cannot 24 proceed under a Bivens claim. Solida,

. 25 Eighth Amendment: Conditions of Confinement 26 The Eighth Amendment protects prisoners from inhumane methods of punishment and 27 from inhumane conditions of confinement. Farmer,

; Morgan v. Morgensen, 465 1 duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical 2 care, and personal safety. Johnson v. Lewis,

(9th Cir. 2000) (quotation marks 3 & citations omitted). To establish a violation of this duty, a prisoner must first demonstrate an 4 objectively serious deprivation, one that amounts to the denial of “the minimal civilized measures 5 of life’s necessities.” Keenan v. Hall,

(9th Cir. 1996) (quoting Rhodes v. 6 Chapman,

(1981)). Second, a prisoner must demonstrate that prison officials 7 acted with “deliberate indifference.” Wilson v. Seiter,

(1991); Johnson, 217 8 F.3d at 733. A prison official is liable for denying an inmate humane conditions of confinement 9 only if “the official knows of and disregards an excessive risk to inmate health and safety; the 10 official must both be aware of facts from which the inference could be drawn that a substantial 11 risk of serious harm exists, and he must also draw the inference.” Farmer,

. 12 Plaintiff contends that during the lockdown period he was denied “cleaning & [sanitation] 13 supplies … to clean his cell, toilet, sink, etc.” (Doc. 10 at 10.) However, the Ninth Circuit has also 14 declined to extend Bivens to claims relating to unsanitary cell conditions. See Schwarz,

App’x at 733-34. As a result, Plaintiff cannot state a claim on this basis and granting Plaintiff 16 leave to amend would be futile. Hartmann, 707 F.3d at 1130. Moreover, Plaintiff has since 17 elected to stand on his complaint. As pled, Plaintiff fails to state a claim upon which relief can be 18 granted. And Plaintiff withdrew his claim for money damages and his request for equitable relief 19 cannot proceed under a Bivens claim. Solida,

. 20 Defendant United States of America 21 Plaintiff appears to assert constitutional claims against the United States. (See Doc. 10 at 22 4, 6, 8, 10.) 23 Plaintiff may not sustain a Bivens action against the United States. Absent a waiver, 24 sovereign immunity shields the Federal Government and its agencies from suit. F.D.I.C. v. 25 Meyer,

(1994); Loeffler v. Frank,

(1988); see also United 26 States v. Mitchell,

(1983) (“It is axiomatic that the United States may not be 27 sued without its consent and that the existence of consent is a prerequisite for jurisdiction”). 1 Bivens. See Kaiser v. Blue Cross,

, 1117 (9th Cir. 2003) (noting that there has been 2 no waiver of sovereign immunity under Bivens); Holloman v. Watt,

(9th 3 Cir. 1983) (per curiam) (holding that a Bivens claim may be maintained only against federal 4 employees in their individual rather than official capacities). Therefore, a Bivens action will not 5 lie against the United States, agencies of the United States, or federal agents in their official 6 capacity. See F.D.I.C.,

; Vaccaro, 81 F.3d at 857; Cato, 70 F.3d at 1110. 7 In sum, to the extent Plaintiff’s complaint asserts Bivens claims against the United States 8 of America, it is subject to dismissal, particularly where Plaintiff has elected to stand on his 9 complaint. 10 Federal Tort Claims Act (FTCA) 11 The Federal Tort Claims Act or FTCA represents Congress’ waiver of sovereign 12 immunity “for claims arising out of torts committed by federal employees.” Ali v. Fed. Bureau of 13 Prisons,

(2008) (citing

(b)(1)). The FTCA, however, has 14 only waived the United States’ sovereign immunity for “certain categories of claims.”

. 15 In general, the United States only waives sovereign immunity if an FTCA claim is: (1) against the 16 United States; (2) for money damages; (3) for injury or loss of property, personal injury, or death; 17 (4) that was “caused by the negligent or wrongful act or omission of any employee of the 18 Government;” (5) while such employee is acting within the scope of their employment; and (6) 19 “under circumstances where the United States, if a private person, would be liable to the claimant 20 in accordance with the law of the place where the act or omission occurred.”

1346(b)(1). 22 To state a claim and invoke the Court's subject-matter jurisdiction under the FTCA, 23 Plaintiffs must plausibly allege all six elements of Section 1346(b). In addition, section 2675(a) 24 requires a plaintiff to show he “first presented the claim to the appropriate Federal agency and his 25 claim [was] finally denied by the agency in writing and sent by certified or registered mail.” 28

(a). 27 The FTCA allows suit against the federal government for torts committed by its

(b)(1); Gutierrez de Martinez v. Lamagno,

(1995). The only 2 proper defendant in an FTCA case is the United States. Jackson v. Kotter,

(7th 3 Cir. 2008). Additionally, to state an FTCA claim, plaintiffs must show that the conduct of the 4 government violates some law of the state where the act or omission occurred. See F.D.I.C., 510 5 U.S. at 477-78; Lutz v. United States,

(9th Cir. 1982) (holding any duty that 6 the United States owed plaintiff must be found in California state tort law). 7 Here, even liberally construing the complaint, Plaintiff has failed to allege any FTCA 8 claim. Plaintiff’s complaint makes only passing references to the FTCA. (Doc. 10 at 1 [stating he 9 brings “FTCA claims against the United States”] 4 [“No access to … FTCA forms”], 11 [“denied 10 access to … Tort Claim forms”].) And Plaintiff fails to identify what specific tort claims he 11 wishes to assert against the United States. See Anaya v. United States, No. 3:25cv959-LL-KSC, 12

, at *3 (S.D. Cal. July 28, 2025) (dismissing complaint because “Anaya fails to 13 clearly identify what specific California tort(s) provide the basis for his claim”); Gelazela v. 14 United States, No. 1:22-cv-01539-ADA-EPG,

, at *8 (E.D. Cal. May 18, 2023) 15 (stating “the United States is not liable under the FTCA for constitutional tort claims. Moreover, 16 Plaintiff fails to identify any specific California state tort law that the United States violated in 17 these claims”). 18 In the First Screening Order, Plaintiff was granted leave to amend his complaint to assert 19 his FTCA claims against the United States of America. (See Doc. 44 at 12-13.) Plaintiff was 20 provided the relevant legal standards given above and was directed to cure the deficiencies 21 relating to the claims: to “plausibly allege all six elements of Section 1346(b),” to demonstrate 22 claims presentation and denial by “the appropriate Federal agency,” and to identify what specific 23 tort claims he was asserting. (Id.) Subsequently however, Plaintiff has elected to stand on his 24 complaint. As a result, in the absence of amendment curing the identified deficiencies, Plaintiff’s 25 complaint fails to state a claim upon which relief can be granted and is subject to dismissal. 26 C. Summary of Screening and Plaintiff’s Response 27 Following screening, the undersigned found Plaintiff’s complaint failed to state a claim 1 an amended complaint to cure the deficiencies identified in the screening order. In relevant part, 2 Plaintiff was advised that he must plainly identify the factual allegations asserted as to each 3 named defendant and for each claim asserted against that defendant. (Doc. 44 at 13.) See Rizzo v. 4 Goode,

(1976) (a plaintiff must show a causal connection or link between 5 the actions of the defendants and the deprivation alleged to have been suffered by the plaintiff). 6 Further, Plaintiff was advised to “carefully review the pleading requirements … to ensure, where 7 applicable, any claim asserted against a supervisor is adequately pled” (see Doc. 44 at 13 8 [citations omitted]) and advised to “avoid appearing to combine distinct constitutional claims into 9 one claim11 and to avoid combining constitutional claims with FTCA claims (id.). Lastly, Plaintiff 10 was “advised that where the Ninth Circuit has determined a Bivens claim is not available in a 11 particular circumstance, amendment of that claim would be improper.” (Id.) 12 Considering Plaintiff’s election to stand on his complaint, by choosing not to cure the 13 deficiencies identified in the First Screening Order by filing a first amended complaint, coupled 14 with his withdrawal of any claim to money damages, this action is subject to dismissal for 15 Plaintiff’s failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b); Iqbal, 16

; Solida,

. 17 For the reasons set forth above and in the Court’s screening order, the undersigned 18 recommends granting leave to amend as to two of Plaintiff’s claims that could be cured – 19 specifically, Plaintiff’s Eighth Amendment claim for deliberate indifference to serious medical 20 needs and Plaintiff’s Federal Tort Claims Act claims. Plaintiff’s other claims cannot be cured 21 and, thus, the undersigned recommends declining to grant leave to amend all other claims. 22 Hartmann, 707 F.3d at 1130. 23 III. CONCLUSION AND RECOMMENDATION 24 Accordingly, following screening and Plaintiff’s subsequent election to stand on his 25 complaint, this Court HEREBY RECOMMENDS Plaintiff’s complaint (Doc. 10) be dismissed 26

27 11 See, e.g., Doc. 10 at 4 (asked to “State the constitutional or other federal civil right that was violated” for “Claim I,” Plaintiff wrote: “BOP policy – Constitutional violation of 1st Amend – Free Speech, 5th Amend – Due Process, 1 | fora failure to state a claim upon which relief can be granted. 2 The undersigned FURTHER RECOMMENDS that Plaintiff be granted leave to amend 3 only as to his Eighth Amendment claim for deliberate indifference to serious medical needs and 4 | any Federal Tort Claims Act claims. 5 These Findings and Recommendations will be submitted to the United States District 6 | Judge assigned to this case, pursuant to the provisions of

(b)(). Within 21 days 7 | after being served with a copy of these Findings and Recommendations, a party may file written 8 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 9 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 10 | leave of Court and good cause shown. The Court will not consider exhibits attached to the 11 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 12 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 13 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 14 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28

(b)()(C). A party’s failure to file any objections within the specified time may result 16 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014). 17 | ITIS SO ORDERED. 18 Dated: _ October 24, 2025 | Ww R~ 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 15