FINDINGS & RECOMMENDATION ON MOTION TO DISMISS
DENNIS JAMES HUBEL, Magistrate Judge.
This matter is before the court on the defendants' motion (Dkt. #41) to dismiss the plaintiff's First Amended Complaint (Dkt. #40). The factual and procedural background of this case are well known to the court, so I only provide a brief summary here. On October 31, 2008, I granted the plaintiff Charles W. Miller's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. See Miller v. Thomas, No. CV-08-789-HU, 2008 WL 4793035 (D. Or. Oct. 31, 2008). On December 20, 2004, Miller was sentenced by the Honorable Robert H. Whaley of the United States District Court for the Eastern District of Washington, to 24 months' imprisonment upon revocation of Miller's federal term of supervised release ("TSR"). Id. In a nutshell, I found the Bureau of Prisons ("BOP") acted arbitrarily in failing to designate the place of Miller's imprisonment as a Washington State correctional facility to effect the intent of the sentence imposed by Judge Whaley. Had the BOP acted appropriately, Miller would have been released from prison no later than April 23, 2008. See id.; cf. Dkt. #2-8 (claiming his release date should have been April 7, 2008). Instead, due to the BOP's error, Miller was not released until November 7, 2008.
On December 4, 2009, Miller filed a notice of tort claim with the BOP alleging "financial earnings, emotional distress and family hardship was [sic] suffered from the . . . wrongful imprisonment that B.O.P. staff knew about, but hindered at every chance." Dkt. #2-8, p. 1. Miller requested $450,000 in damages for "personal injury." Id.; Dkt. #2, ¶ 26. When his claim went unanswered for "over 90 days," Miller filed the instant action for damages. See Dkt. #2.
The Defendants moved to dismiss Miller's original Complaint. On February 22, 2012, I submitted Findings and Recommendation, in which I recommended the motion be granted in part and denied in part. Dkt. #39. Specifically, I found Miller had alleged facts sufficient to excuse the exhaustion requirement of the Prison Litigation Reform Act; none of the Defendants was entitled to qualified immunity; Miller could maintain a Bivens-type action1 without calling into question the sentence imposed, or extending Bivens into a new type of action; the Defendant Cheryl Pauley had not been served properly and should be dismissed from the case; and Miller's claim for injunctive relief was moot. See id.
On May 23, 2012, District Judge Michael Mosman adopted my recommendations in part. Dkt. #39. Where Judge Mosman diverged from my findings was with regard to Warden Thomas's immunity. Judge Mosman found Warden Thomas was entitled to qualified immunity, "to the extent [Miller was] arguing that the warden had a duty to investigate [Miller's] allegation of overdetention based solely on his informal verbal complaint." Id., p. 6. Judge Mosman directed Miller to file an amended complaint, if Miller felt he was "able to sufficiently plead some factual basis under Iqbal/Twombly2 for imputing the actions of Does 1-3 to Warden Thomas." Id., pp. 6-7.
Miller filed his First Amended Complaint on June 13, 2012. Dkt. #40. In the amended pleading, Miller asserts the following claims for relief:
▸ The defendants violated Miller's fourteenth amendment rights to liberty and equal protection by refusing to release him on time, "with blatant and total disregard for the law [the defendants] are sworn to uphold." Dkt. #40, ¶ 21.
▸ The defendants were deliberately indifferent to Miller's right to have his sentence calculated pursuant to B.O.P. policy. Id., ¶ 23.
▸ The defendants violated Miller's eighth amendment "right against excessive punishment," rendering the defendants "liable under 42 U.S.C. § 1983 because of [Miller's] excessive punishment[.]" Id., ¶ 25.
▸ The defendants "are liable under 42 U.S.C. § 1983 because officials' conduct goes beyond mere negligence." Id., ¶ 26.
▸ The defendants are liable under section 1983 because they kept Miller "in custody beyond term of his commitment[.]" Id., ¶ 28.
▸ The defendants failed or refused to act, "or took only ineffectual action," despite knowing or having reason to know Miller's sentence had been calculated incorrectly. Id., ¶¶ 29-31.
▸ The defendants "violated Miller's right to redress . . . under the First Amendment to the United States Constitution." Id., ¶ 33.
▸ The defendants' actions "inflicted emotional distress on . . . Miller." Id., ¶ 35.
For all of these alleged wrongs, Miller seeks compensatory damages ("including economic and non-economic damages") in the amount of $450,000; punitive damages; and his attorney's fees and costs. Id., p. 9. The defendants have filed a motion to dismiss Miller's Amended Complaint, and a supporting memorandum. Dkt. ##41 & 42.
1. Motion to dismiss as to Warden Thomas
Warden Thomas argues Miller's new allegations against him, even if taken as true, fail to state a valid claim against him. Thomas construes Miller's allegations as an attempt to hold Thomas vicariously liable for the actions of Does 1-3. He notes "`vicarious liability is inapplicable to Bivens and § 1983 suits,'" and Miller has failed to plead that Thomas, himself, violated the Constitution. Dkt. #42, p. 4 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009)). Thomas further argues that even if he knew Miller had lodged written complaints about his sentence calculation, that knowledge alone is not enough to impose Bivens liability on him. Id. (citing Iqbal, 556 U.S. at 677, 129 s. Ct. at 1949: "In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.").
In response, Miller agrees "that respondeat superior does not trigger Bivens claim liability[,]" but he asserts his Bivens claim is not based on a respondeat superior analysis. Dkt. #43, p. 1. Miller's entire argument is set forth in two sentences, to-wit: "Here, plaintiff expects to show, after fact discovery, that defendant Thomas was personally involved in the unconstitutional conduct. This is more than awareness; it is personal and individual participation and will give rise to Bivens liability." Id., p. 2.
Thomas argues Miller is seeking to engage in a fishing expedition in the hope that he will uncover some facts that will establish Thomas's individual liability. Dkt. #44, p. 2. However, even the liberal pleading standard established by Federal Rule of Civil Procedure 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. The Supreme Court expounded further on Rule 8's requirements, holding as follows:
A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do.". . . Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." [Citations omitted.]
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." . . . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. . . . The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. . . . Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of `entitlement to relief.'" [Citations omitted.]
Id. The Iqbal Court further noted that while "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id., 556 U.S. at 678-79, 129 S. Ct. at 1950.
Miller has failed to allege a sufficient factual basis to support liability against Warden Thomas. Miller's allegation that, "[u]pon information and belief, defendant Thomas knew around the summer of 2008 that plaintiff Miller had made written objections to the incorrect sentence, using forms and the system for submission of the forms as set up by the prison," Dkt. #40, p. 5, does not come close to alleging facts "that would allow a court to draw a reasonable inference that a reasonable supervisor in [Thomas's position] would have found the[] conduct [of Does 1-3] to be clearly unlawful." Chavez v. United States, 583 F.3d 1102, 1110 (9th Cir. 2012) (refusing to impute liability to supervisors who allegedly allowed subordinate Border Patrol officers to stop vehicles in violation of fourth amendment); see Dkt. #39, at p. 6 (finding "it was not `sufficiently clear' that Warden Thomas had a duty to investigate [Miller's] claim such that a reasonable officer would understand that his failure to do so in the circumstances would have violated [Miller's] constitutional rights.").
Miller's bare-bones allegation that, upon Miller's "information and belief," Thomas knew Miller was contesting the calculation of his sentence and failed to take appropriate action, is not enough, under Iqbal, to impute the liability of Does 1-3 to Warden Thomas. Accordingly, Warden Thomas is entitled to qualified immunity in this case.
2. Motion to dismiss as to Does 1-3
The defendants also argue Miller has failed to allege sufficient facts to maintain an action against Does 1-3. Dkt. #42, pp. 3, 5-6. The defendants assert Miller has failed to provide "identifying information which would allow the United States an opportunity through which discovery would reveal their identifies [sic]." Dkt. #42. The defendants rely on Gillespie v. Civiletti, 629 F.2d 637 (9th Cir. 1980), where the court held:
As a general rule, the use of "John Doe" to identify a defendant is not favored. . . . However, situations arise, such as the present, where the identity of alleged defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be given an opportunity through discovery to identify the unknown defendants, unless it is clear that discovery would not uncover the identities, or that the complaint would be dismissed on other grounds.
Gillespie, 629 F.3d at 642. Here, the defendants argue "the complaint would be dismissed on other grounds," because Miller "received redress through his prior Habeas Corpus Petition filed with this Court." Dkt. #42, p. 5. The defendants assert that because an alternative remedy was available, and was granted, "no further inquiry should be afforded [Miller], even where Congress has not provided for monetary damages through the Habeas process." Id., pp. 5-6 (citing Mirmehdi v. United States, 662 F.3d 1073, 1079 (9th Cir. 2011) "(holding that a Bivens remedy did not exist for unlawful detention of aliens)").
Miller only response to this argument is his assertion that he "is not able to plead some allegations beyond knowledge and belief." Dkt. #43, p. 1.
I addressed this argument, to some extent, in my prior Findings and Recommendation, noting:
The courts have recognized the viability of a Bivens action for damages for extending incarceration beyond the proper release date; i.e., where it is not the sentence itself, but the calculation of the sentence thereafter, that is declared invalid. See Whitehurst v. Jones, 278 Fed. Appx. 362, 363 (5th Cir. 2008) (holding plaintiff had to exhaust habeasremedies before pursuing Bivens Bivensclaim; action does not accrue until order is entered invalidating detention past accurately-calculated release date); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997) (once plaintiff "succeeds in his habeas petition challenging the computation and duration of his sentence," a action may accrue); Alexander v. Bivens Perrill, 916 F.2d 1392 (9th Cir. 1990) (Bivens action for damages due to miscalculation of sentence; qualified immunity denied); cf., in the context of 1983 actions, Russell v. Lazar, 300 F.Supp.2d 716 (E.D. Wis. 2004) (for purposes of motion to dismiss, prisoner stated claim under § 1983 for violation of eighth and fourteenth amendment rights; qualifiedimmunity denied); Hardage v. Francke, 889 F.2d 1094 (Table) (9th Cir. 1989) (recognizing that once habeas relief has been granted, prisoner whose release date was miscalculated could have claim for damages).
Dkt. #36, pp. 16-17. The defendants argue the fact that Miller obtained a prior remedy through his habeas petition forecloses his ability to maintain the current action. The above-cited cases illustrate that exactly the opposite is true; indeed, Miller had to succeed in his habeas action before his Bivens action could accrue.
Miller should be allowed to proceed with discovery to attempt to determine the identities of Does 1-3. See Gillespie, 629 F.3d at 642.
3. Motion to dismiss any Tort Claims Act claim
Miller has abandoned any Federal Tort Claims Act claim. Dkt. #43, p. 2. Therefore, to the extent he may have alluded to any such claim in his Amended Complaint, as the defendants suggest, the claim should be dismissed.
CONCLUSION
For the reasons discussed above, I recommend Warden Thomas's motion to dismiss the action against him on the basis of qualified immunity be granted. I recommend the motion to dismiss Does 1-3 be denied. And I recommend any claim against the United States under the Federal Tort Claims Act be dismissed.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due by February 11, 2013. If no objections are filed, then the Findings and Recommendations will go under advisement on that date. If objections are filed, then any response is due by February 28, 2013. By the earlier of the response due date or the date a response is filed, the Findings and Recommendations will go under advisement.
IT IS SO ORDERED.
