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Ninth Circuit Says Federal Prisoner in California May Have Bivens Claim for Delays in Medical Care Allegedly to Cover Up Assault by BOP Guard

by David M. Reutter

On August 15, 2023, the U.S. Court of Appeals for the Ninth Circuit reversed dismissal of an Eighth Amendment deliberate indifference medical claim by a federal prisoner against officials holding him for the U.S. Bureau of Prisons in California. However, the Court affirmed dismissal of Roscoe Chambers’ First Amendment retaliation claim.

Over 50 years ago in Bivens v. Six Unknown Federal Narcotics Agents, 488 U.S. 388 (1971), the Supreme Court of the U.S. (SCOTUS) recognized a cause of action for damages against federal officials accused of unreasonable search and seizure in violation of the Fourth Amendment; the high court later expanded that right to include alleged Fifth and Eighth Amendment violations. However, as PLN reported, a more reactionary current SCOTUS majority shut down any further expansion with its ruling in Egbert v. Boule, 142 S. Ct. 1793 (2022). [See: PLN, Apr. 2023, p.22.]

In his pro se complaint, Chambers alleged that BOP Lt. Carmen Herrera “repeatedly threatened him, denied him law library access, and assaulted him several times, resulting in a broken wrist,” the Ninth Circuit recalled. Chambers also alleged that physician’s assistant Jose Esquetini refused to treat his broken bones or take x-­rays for six weeks in an attempt to cover up Herrera’s assaults. It was further alleged that guard Enrique Velez assaulted Chambers by spraying him in the face and mouth with mace. Finally, Chambers alleged he was subjected to retaliation for filing grievances, resulting in unearned punishment with placement in the Special Housing Unit (SHU)—a nice BOP term for solitary confinement.

Defendants moved to dismiss the suit, arguing it failed to state a recognized Bivens claim. The U.S. District Court for the Central District Court of California agreed and granted the motion. Chambers appealed.

At the Ninth Circuit, Chambers conceded that Egbert foreclosed his First Amendment claim. The Court then came to the same conclusion regarding his failure-­to-­protect and excessive-­force claims, noting that the only Eighth Amendment violation recognized before Egbert was for deliberate indifference to a serious medical need.

But Chambers also raised just such a deliberate indifference medical claim; the Court found his allegations were unclear, but it could not “say at this stage … that more detailed factual allegations could cure the deficiencies in the complaint under Egbert.” Thus the claim was remanded to determine whether Chambers might still attempt amendment to clarify it. Before the Court, Chambers was represented by Supervising Attorney Carter White and Certified Law Students Christine Hanon, Emily Dennis and Abigail Miles of the University of California at Davis Civil Rights Clinic. See: Chambers v. Herrera, 78 F.4th 1100 (9th Cir. 2023).

Back at the district court, Chambers, now 52, was once again proceeding pro se. But the clerk of the court could not find him where he’d last been held, at BOP’s U.S. Penitentiary (USP) in Thomson, Illinois. Even after he turned up at USP-­Leavenworth in Kansas, Chambers missed an extended deadline to file an amended complaint on December 13, 2023. Just over two weeks later, on December 28, 2023, he was issued an order to show cause why the case should not be dismissed. The reply deadline for that passed on January 23, 2024, and the case was dismissed on February 7, 2024. See: Chambers v. Herrera, 2024 U.S. Dist. LEXIS 23326 (C.D. Cal.).  

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Chambers v. Herrera



Plaintiff Roscoe Chambers ("Plaintiff"), a federal inmate in the custody of the Federal Bureau of Prisons ("BOP") proceeding pro se, filed this civil rights action against correctional staff seeking monetary damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The operative complaint is the Second Amended Complaint ("SAC"). (Dkt. 20.)

Defendants appeared and moved to dismiss the SAC. (Dkt. 89.) The Court granted that motion and, on December 9, 2019, entered Judgment against Plaintiff. (Dkt. 156.) In relevant part, the Court found that Plaintiff had failed [*2] to allege facts sufficient to state an Eighth Amendment claim against Physician's Assistant ("PA") Esquetini for deliberate indifference to a serious medical need. The Court explained its finding, as follows:

Regarding PA Esquetini, Plaintiff fails to allege any facts concerning what he told PA Esquetini about his injuries, what injuries to his arm (if any) were visible, what examination or treatment (if any) Plaintiff received before the x-rays (from PA Esquetini or any other BOP medical provider), what treatment (if any) he received after the xrays, and the ultimate condition of his arm. Depending on such facts, PA Esquetini's alleged failure to order an x-ray more promptly could have been appropriate medical care or merely negligence, not deliberate indifference. See Hosam Kaddoura v. Cate, No. 11-1422, 2012 U.S. Dist. LEXIS 154860, at *19, 2012 WL 5308012, at *7 (E.D. Cal. Oct. 29, 2012) ("Plaintiff has failed to allege facts to show that Defendant Bangi's failure to order an x-ray was more than negligence which is insufficient to state a claim for deliberate indifference.").

(Dkt. 140 at 19 (Magistrate Judge's report and recommendation); see also Dkt. 144 (District Judge's order accepting the report and recommendation).)
Plaintiff appealed. (Dkt. 158.) In August 2023, the Ninth Circuit affirmed the dismissal with prejudice [*3] of all Plaintiff's claims except his Eight Amendment medical claim against PA Esquetini. (Dkt. 168.) The Ninth Circuit agreed that Plaintiff had not alleged sufficient facts to support such a claim in the SAC. The lack of sufficient factual allegations meant that he had neither stated a claim nor shown that his claim was sufficiently like Carlson v. Green, 446 U.S. 14, 19, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) to entitle him to a Bivens remedy. See Egbert v. Boule, 596 U.S. 482, 142 S. Ct. 1793, 213 L. Ed. 2d 54 (2022) (limiting the availability of Bivens remedies in new contexts).

The Ninth Circuit, however, thought that Plaintiff might be able to fix this pleading defect by amending the SAC. The Ninth Circuit explained, "We cannot say at this stage that it is impossible that more detailed factual allegations could cure the deficiencies in his complaint under Egbert." (Dkt. 268 at 16.) The Ninth Circuit remanded the case to the district court "to consider whether [Plaintiff] should be allowed to amend his complaint. While perhaps unlikely, it is not impossible that he could plead a viable claim." (Id. at 4.)

On October 10, 2023, the Ninth Circuit issued its mandate, which officially returned the case to this Court. (Dkt. 169.)

On October 13, 2023, the Court granted Plaintiff leave to file a Third Amended Complaint ("TAC") and set the filing deadline as November [*4] 13, 2023. (Dkt. 170.) The Court warned Plaintiff that if he failed to file a timely TAC, the "action may be dismissed for failure to obey court orders and/or failure to prosecute." (Id.) The postal service returned that order to the Court as undeliverable. (Dkt. 171.) Using the BOP's online federal inmate locator, the Court identified Plaintiff's new mailing address at U.S. Penitentiary Leavenworth and remailed the order to that address. (Dkt. 173.) The Court extended Plaintiff's deadline to file the TAC to December 13, 2023. (Id.) Mail addressed to Plaintiff at U.S. Penitentiary Leavenworth has not been returned as undeliverable.

When December 13 passed without receipt of Plaintiff's TAC, the Court issued an Order to Show Cause ("OSC") why the action should not be dismissed due to Plaintiff's failure to file a timely TAC and/or failure to comply with Local Rule 41-6, which requires pro se litigants to keep the Court informed of their current mailing address. (Dkt. 174.) The Court ordered Plaintiff to file a TAC or otherwise respond to the OSC by January 23, 2024. Again, the Court warned Plaintiff that failure to do so could result in summary dismissal. (Id.)

As of the date of this order, Plaintiff [*5] has filed neither a TAC nor a notice of change of address. He has not responded to the OSC.



A district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California Local Rule 41-1 provides, "Civil suits which have been pending for an unreasonable period of time without any action having been taken therein may, after notice, be dismissed for want of prosecution."

The Court has discretion to dismiss the action with or without prejudice. See Fed. R. Civ. P. 41(b) ("[u]nless the dismissal order states otherwise," or certain exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) "operates as an adjudication on the merits"); Local Rule 41-2 ("[u]nless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without prejudice"); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) ("Dismissal with prejudice and default on counterclaims, for willful and inexcusable failure to prosecute, are proper exercises of discretion under Federal Rules of Civil Procedure 41(b), 16(f), and the inherent power of the court.").

In determining whether to dismiss a case for failure to prosecute or failure to comply with court orders, the Ninth Circuit has instructed district courts to consider the following five factors: (1) the public's interest [*6] in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the public policy favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not "mechanical," but provides a "non-exhaustive list of things" to "think about." Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).




A. Failure to Prosecute.
Here, the first two factors favor dismissal. The first factor—the public's interest in the expeditious resolution of litigation—"always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor—the Court's need to manage its docket—favors dismissal here because Plaintiff's "noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to control the pace of the docket rather than the Court." Id. (internal quotations marks omitted).

The third factor—prejudice to Defendants—weighs in favor of dismissal, although perhaps not as strongly as some of the other factors. A rebuttable presumption of prejudice to the defendants arises when a plaintiff unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), and unnecessary delay "inherently increases the risk that witnesses' memories will fade and evidence will become [*7] stale." Pagtalunan, 291 F.3d at 643.

The fourth factor—availability of less drastic sanctions—favors dismissal. The Court's prior orders warned Plaintiff that failure to respond might result in a dismissal of this action. (Dkt. 170, 174.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) ("a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the 'consideration of alternatives' requirement") (citation omitted).

The fifth factor—public policy favoring a disposition of an action on its merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated by the fact that Plaintiff's SAC failed to state a claim for relief for the reasons explained in the Court's December 9, 2019 dismissal order (Dkt. 140), which the Ninth Circuit affirmed (Dkt. 168).

Given that the enumerated factors largely support dismissal, this action will be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the circumstances, and in particular given that Plaintiff is incarcerated and proceeding pro se, the dismissal shall be without prejudice.


B. Failure to Provide a Current Mailing Address.
Local Rule 83-2.4 states: " ... any party who has appeared pro se in a case pending before the Court, and who changes his [*8] or her ... office address (or residence address, if no office is maintained), ... must, within five (5) days of the change, notify the Clerk of Court in writing." L.R. 83-2.4. The Court can dismiss the case if a pro se litigant fails to keep the Court informed of their current mailing address, as follows:

A party proceeding pro se must keep the Court and all other parties informed of the party's current address as well as any telephone number and email address. If a Court order or other mail served on a pro se plaintiff at his address of record is returned by the Postal Service as undeliverable and the pro se party has not filed a notice of change of address within 14 days of the service date of the order or other Court document, the Court may dismiss the action with or without prejudice for failure to prosecute.

L.R. 41-6.
Here, the order authorizing a TAC was mailed on October 13, 2023. (Dkt. 170.) It was returned as undeliverable. (Dkt. 171.) More than fourteen days have passed since October 13, 2023, but Plaintiff has not advised the Court of his new mailing address. While the Court has tried to facilitate communications with Plaintiff by mailing orders to U.S. Penitentiary Leavenworth, it is not the [*9] Court's obligation to research and identify Plaintiff's current mailing address.



IT IS THEREFORE ORDERED that Judgment will be entered dismissing this action without prejudice for failure to prosecute and failure to comply with Local Rule 41-6.

DATED: February 7, 2024

/s/ Michael W. Fitzgerald


United States District Judge

Presented by:

/s/ Karen E. Scott




Pursuant to the Court's Order Dismissing Action without Prejudice,

IT IS ADJUDGED that the action is dismissed without prejudice for failure to prosecute and failure to comply with Local Rule 41-6.

DATED: February 7, 2024

/s/ Michael W. Fitzgerald


United States District Judge

Chambers v. Herrera