ORDER & FINDINGS AND RECOMMENDATIONS

GREGORY G. HOLLOWS, Magistrate Judge.

Introduction

Plaintiff is a federal prisoner proceeding in forma pauperis pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Although plaintiff and defendant Dr. Redix have consented to the jurisdiction of the undersigned, see docket #5 and # 25, the other defendants have not filed a consent form. A district judge will be assigned to this case. Pending before the court is defendants' June 17, 2011 motion to dismiss the first amended complaint, to which plaintiff filed his opposition on September 1, 2011, after which defendants filed their reply on September 29, 2011.1

Summary of Plaintiff's Allegations

Plaintiff names the following as defendants: Dr. Louis Redix-BOP contract employee; Dr. Ross Quinn at FCI-Victorville; Assistant Health Administrator Louis Sterling at FCI-Victorville; Health Services Administrator Cathy Garrett at FCI-Safford; Dr. Eduardo Ferriol at FCI-Safford, Physician's Assistant Roberto Acosta at FCI-Safford.2 Plaintiff claims defendants were deliberately indifferent to a serious medical condition in the treatment he received for his shoulder, beginning with an allegedly failed reconstructive surgery for "Acromioclavicular joint separation" repair, performed by a Bureau of Prison's (BOP) contract surgeon, defendant Redix, on July 22, 20083 (which required later corrective surgery), after which plaintiff was subjected to inadequate post-operative care, including being prescribed inadequate pain medication and other medical care, including a brace, by defendant Quinn; being denied medical treatment by defendant Sterling with respect to a pin protruding from plaintiff's shoulder post-surgery; and being denied pain medication by defendants Acosta and Ferriol, both of whom also denied a prescribed brace. First Amended Complaint (FAC), pp. 1-6. Defendants Ferriol and Garrett in March of 2009 denied necessary corrective surgery. Id., at 6. Defendants Acosta and Ferriol, as well as defendant Garrett, denied pain medication to plaintiff after his second surgery in September, 2009. Id., at 7. In addition to his Eighth Amendment claims, plaintiff alleges he was subjected to medical malpractice by defendant Redix. Id., at 8-9. Plaintiff seeks compensatory and punitive damages and injunctive relief. Id., at 9.

Defendant Redix

The federal defendants seek to distinguish themselves from defendant Redix and indeed it appears that he is expressly not represented in the present motion to dismiss. Defendant Redix, along with plaintiff, consented to the jurisdiction of the undersigned and signed a waiver of service of summons on March 22, 2011, in documents filed in the case docket on March 31, 2011, and April 4, 2011, respectively. However, as no further response on behalf of defendant Redix has been filed, the court must recommend that he be found to be in default.

Motion to Dismiss

The "federal defendants," who are identified as defendants Quinn, Sterling, Garrett, Ferriol and Acosta, but not, as noted, defendant Redix, move to dismiss: 1) the Bivens claims pursuant to non-enumerated Fed. R. Civ. P. 12(b) for failure to exhaust administrative remedies as required under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a); 2) the Bivens official capacity claims; 3) any Fourteenth Amendment claim; 4)the medical malpractice claim, to the extent it is construed as arising under the Federal Tort Claims Act (FTCA) because it should only be brought against the United States, not named as a defendant; also, if construed as an FTCA claim, for lack of jurisdiction for failure to exhaust administrative remedies and under the independent contractor exception to the FTCA, 28 U.S.C. § 2671; 5) for lack of proper venue under Fed. R. Civ. P. 12(b)(3) because most of the conduct at issue occurred at Federal Correctional Institution (FCI) I — Victorville, located within the Central District of California, and at FCI-Safford, located in the District of Arizona. Notice of Motion, pp. 1-2; Memorandum of Points and Authorities in support of Motion to Dismiss, pp. 7-18. 4

1) Administrative Exhaustion

Legal Standard under Non-Enumerated Fed.R.Civ.P. 12(b)

In a motion to dismiss for failure to exhaust administrative remedies under non-enumerated Rule 12(b) of the Federal Rules of Civil Procedure, defendants "have the burden of raising and proving the absence of exhaustion." Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003). The parties may go outside the pleadings, submitting affidavits or declarations under penalty of perjury, but plaintiff must be provided with notice of his opportunity to develop a record. Wyatt v. Terhune, 315 F.3d at 1120 n.14. The court provided plaintiff with such fair notice by Order, filed on December 8, 2010 (docket # 15).

Should defendants submit declarations and/or other documentation demonstrating an absence of exhaustion, making a prima facie showing, plaintiff must refute that showing. Plaintiff may rely upon statements made under the penalty of perjury in the complaint if the complaint shows that plaintiff has personal knowledge of the matters stated and plaintiff calls to the court's attention those parts of the complaint upon which plaintiff relies. If the court determines that plaintiff has failed to exhaust, dismissal without prejudice is the appropriate remedy for non-exhaustion of administrative remedies. Wyatt v. Terhune, 315 F.3d at 1120.

PLRA Requirements

The Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a) provides that, "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Inmates seeking injunctive relief must exhaust administrative remedies. Rumbles v. Hill, 182 F.3d 1064 (9th Cir. 1999). In Booth v. Churner, 532 U.S. 731,741, 121 S.Ct. 1819, 1825 (2001), the Supreme Court held that inmates must exhaust administrative remedies, regardless of the relief offered through administrative procedures. Therefore, inmates seeking money damages must also completely exhaust their administrative remedies. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (inmates seeking money damages are required to exhaust administrative remedies even where the grievance process does not permit awards of money damages). The United States Supreme Court has held that exhaustion of administrative remedies under the PLRA requires that the prisoner complete the administrative review process in accordance with the applicable procedural rules. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378 (2006). Thus, in the context of the applicable PLRA § 1997e(a) exhaustion requirement, any question as to whether a procedural default may be found should a prisoner plaintiff fail to comply with the procedural rules of a prison's grievance system has been resolved: the PLRA exhaustion requirement can only be satisfied by "proper exhaustion of administrative remedies....," which means that a prisoner cannot satisfy the requirement "by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Woodford v. Ngo, supra, at 84, 126 S. Ct. at 2382. Moreover, 42 U.S.C. § 1997e(a) provides that no action shall be brought with respect to prison conditions until such administrative remedies as are available are exhausted. McKinney v. Carey, 311 F.3d 1198 (9th Cir. 2002), but see Rhodes v. Robinson (9th Cir. 2010) (PLRA exhaustion requirement satisfied with respect to new claims within an amended complaint so long as administrative remedies exhausted prior to filing amended complaint).

Administrative Appeal Process

The Ninth Circuit has delineated the administrative grievance procedures implemented by the federal Bureau of Prisons (BOP):

Nunez v. Duncan, 591 F.3d 1217, 1219-20 (9th Cir. 2010).

Argument & Analysis

Plaintiff avers in the first amended complaint that he has exhausted all issues for PLRA purposes raised under the Bureau of Prisons (BOP) administrative remedy procedure in Appeal # 540693 from FCI-Safford (AZ) and in Appeal # 564241 from FCI-Victorville (CA). FAC, p. 1. Defendants counter that he failed to exhaust his administrative remedies because he did not complete his appeals to the Office of General Counsel (OGC) and that his Bivens claims against the federal defendants must be dismissed. MTD, pp. 11, 13.

Although plaintiff has identified Appeal # 540693 as involving the FCI-Safford defendants, defendants records' (uncontested on this point) indicate that plaintiff was housed at Victorville from October 11, 2007, until December 9, 2008, and located at FCI-Safford from December 17, 2008 to December 16, 2009. MTD, Declaration of Sarah Schuh, ¶ 4 A & B, Ex. B-1, B-2. 5 Therefore, this appeal necessarily must encompass plaintiff's claims against defendants at Victorville (Quinn, Sterling) and certain of his claims against defendants at Safford (Garrett, Ferriol, Acosta). More precisely, Appeal # 540693 encompasses plaintiff's Eighth Amendment claims against Quinn, Sterling, Garrett, Ferriol, and Acosta regarding the alleged inadequate medical care he received after the July 22, 2008 surgery, in the form of denying him pain medication, a brace, corrective surgery, other medical care up to the time of his second surgery on September 1, 2009. The court will here chart the dates set forth by defendants as to Appeal # 540693:

Defendants contend that thereafter, plaintiff never submitted, or re-submitted, his appeal to the OGC level and at this point he is foreclosed from doing so. MTD, p. 14. Plaintiff does not dispute this; rather, it is plaintiff's position that the BOP by attempting corrective surgery on September 1, 2009, was responding to his appeal regarding inadequate pain management, lack of physical therapy and for additional surgery. Opposition (Opp.) (docket # 35), pp. 4-5. Plaintiff does offer a somewhat differing chronology of his administrative remedy requests regarding this appeal within his first amended complaint, stating that he filed a BP-8 (informal resolution) request which was denied by defendant Garrett but not signed by her. He thereafter alleges that his BP-9 grievance was filed with the warden in Feb., 2009, followed by an appeal to the regional office (BP-10) in March 2009. However, plaintiff states that on May 22, 2009, he was told that the BP-10 could not be located or did not exist, after which he filed another BP-9 on May 27, 2009, and re-filed a BP-10 on June 28, 2009. Plaintiff claims that while waiting for a response to the BP-10 [regional director], the corrective surgery was performed. FAC, p. 6, ¶¶ 15-16. Plaintiff contends the follow-up surgery, which he maintains he may appeal to the regional office within 20 days. showed that "extensive permanent damage" had been done by defendant Redix in the initial negligently performed procedure, should not absolve defendants of the prior negligence causing permanent disability to which he was subjected as well as the lack of proper after-care, which amounted to deliberate indifference to his pain and the suffering he endured in the interim period between the surgeries. Opp., at 5. Plaintiff therefore is maintaining that once he received the remedy of corrective surgery in response to his appeal there was no point in proceeding to the final level of appeal. In their reply, defendants note that plaintiff concedes not having proceeded to the OGC, that this admission warrants dismissal for failure to exhaust administrative remedies, and that at this point he can no longer proceed to the OGC. Reply (docket # 37), pp. 2-3, citing 28 C.F.R. §§ 542.15(a)12 and 542.18.13

Defendants have submitted a copy of plaintiff's handwritten grievance, dated May 27, 2009, but they have failed to note the substance of the claims therein as well as the dates identified. MTD, Schuh Dec., Ex. D (docket # 31-3), p. 18. In that grievance plaintiff states the following (see also, footnote 7):

Id.

In the June 11, 2009, warden's response, the warden references plaintiff's "Request for Administrative Remedy dated March 27, 2009 in which you are requesting pain medication."14 Id., at Ex. D, p. 19. This date provided by the warden in his decision as to which request he is responding lends credence to plaintiff's claim that he filed earlier grievances: a BP-10 in March [of 2009] and later, on May 22, 2009, notwithstanding that he had evidently been told his earlier BP-8 and BP-10[s] had been lost, and even though the form to be used to file a request to the warden is a BP-9. (Of course, as noted above, plaintiff alleged in his amended complaint that he had filed a BP-9 to the warden in February, 2009). This gap between March 27, 2009, identified by the warden, and May 27, 2009, is not explained by defendants, nor is there adequate evidence produced to show that the date the warden cited for the grievance being addressed was only inadvertently identified as March 27, 2009, when he actually meant May 27, 2009. Under 28 C.F.R. § 542.18 (see footnote 13 above), the warden has 20 calendar days to submit a response to a request or appeal that has been accepted with a possible additional 20 days as an extension. A June 11, 2009, response to a March 17, 2009, request is a gap of 76 days, which obviously exceeds the regulatory provision governing the response time by the warden.

In Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819 (2001), as noted, the Supreme Court held that regardless of the form of relief sought, prisoners are required to exhaust available administrative remedies. In Booth, the Supreme Court also stated that there were no exceptions to the statutory exhaustion requirement:

Booth, 532 U.S. at 741 n. 6, 121 S.Ct. at 1825 n. 6.

However, Booth does not refute the principle that a complaint should not be dismissed for failure to exhaust administrative remedies where prison officials do not respond to an appeal in the time allowed for responding under grievance procedures. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) ("[a] prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired.").

Prison officials have apparently not followed their own regulations regarding the time for processing administrative appeals in this case. Under these circumstances, the delay in the processing of plaintiff's appeal excuses further exhaustion. See Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998), cert. denied, 526 U.S. 1133, 119 S.Ct. 1809 (1999) (a prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired.)15 Powe and Underwood have often been followed in this Eastern District. See e.g., Nible v. Knowles, 2010 WL 3245325 (E.D. Cal. 2010); Lomako v. CSP Corcoran, 2010 WL 2698743 (E.D. Cal. 2010); Habig v. McAllister, 2010 WL 2511290 (E. D. Cal. 2010). Therefore, the court will find this grievance/administrative remedy was exhausted.

In addition, defendants maintain that plaintiff has cited no authority and that none exists for the proposition that when the BOP attempted corrective surgery on September 1, 2009, he was relieved of the obligation to pursue his administrative remedies to the final level. Reply, p. 3. However, as the Ninth Circuit has stated "[a]ctions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991), and in § 1983 cases "[t]he PLRA requires that an inmate exhaust only those administrative remedies `as are available.' 42 U.S.C. § 1997e(a)." Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010). "The obligation to exhaust `available' remedies persists as long as some remedy remains `available'"; however, having received all "available" remedies at an intermediate level of review, a prisoner need not exhaust further levels of review once. Brown v. Valoff, 422 F.3d 926, 934-35 (9th Cir. 2005). As there can be no absence of exhaustion unless some relief remains available, a movant claiming lack of exhaustion must demonstrate that pertinent relief remained available, whether at unexhausted levels or through awaiting the results of the relief already granted as a result of that process. Brown, 422 F.3d at 936-37. This court finds that for plaintiff, having received the response he sought in the form of his corrective surgery prior to having proceeded to the final level of review, no further relief was available, and that plaintiff had essentially exhausted his administrative remedies as to the claims arising resulting from the initial surgery. Thus, as to the claims arising from this appeal, that is, from the initial surgery until the second surgery, the court finds the claims to have been administratively exhausted on this basis as well. The motion for dismissal for failure to exhaust administrative remedies should be denied as to these claims.

Appeal # 564241 encompasses plaintiff's claims of deliberate indifference to a serious medical condition against defendants Acosta, Ferriol and Garrett, primarily an alleged denial of pain medication following the September 1, 2009, corrective second surgery.

As to Appeal # 564241, defendants contend the following:

Defendants maintain that plaintiff did not ever re-submit the appeal to the OGC with the requested documentation and thus failed to exhaust his administrative remedies. MTD, p. 13. In opposition, plaintiff correctly notes that there is no dispute as to his having properly proceeded with his appeal through the level of his filing to the regional director (BP-10) with respect to appeal # 564241. Opp., p. 5. However, he takes issue with the representation by defendants that he received the denial by the regional director on January 15, 2010; instead, he asserts, he received two separate notices from the Western Region extending the time for the regional director's response. Id., & Exs. A and B. Ex. A contains a copy of a notice from the "Administrative Remedy Coordinator Western Regional Office," dated Jan. 20, 2010, entitled "extension of time for response — administrative remedy" which states:

Opp., Ex. A.

The appeal at issue is identified as # 564241-R1, and it is dated as having been received on Dec. 10, 2009. Id. The notice states that a response is due by February 8, 2010. Id. Ex. B is a notice which appears to be identical to the first notice in every respect, including the Feb. 8, 2010 extended deadline, with the exception that the notice this time is dated April 15, 2010, where the original was dated Jan. 20, 2010. Plaintiff maintains that thereafter, on or about July 1, 2010, he finally received the denial which he avers was backdated to Jan. 15, 2010. Opp., p. 6. He also contends that when he received the response, he was not provided with the required copies of the original BP-10 filed which must be filed, in a continuing appeal with the BOP. Id. Plaintiff states that, notwithstanding the alleged inaccuracy of the date of the response and the missing copies, he nevertheless made a good faith effort to proceed with the administrative remedy procedure by submitting a timely appeal within the BOP time limits even though time limits had not been adhered to by the BOP in the regional director's response. Id. Plaintiff thereafter references the rejections which defendants have noted, maintaining that the rejections were predicated on an inaccurate date for the response from which he was appealing. Id., at 6-7. Plaintiff also claims that the response was not sent to the correct location. Id., at 7.

In reply, defendants are adamant that no backdating of the BP-10 appeal response from the regional director could have occurred. Reply, pp. 2-6. Defendants note the Jan. 15, 2010 signature on the regional director's response and the entry in the SENTRY form noting that date for the response (docket # 31-3, pp. 14, 26-Exs.C-5 & E-4 to Schuh Dec. ). Id., at 3. Defendants attach the declaration of Cecilia Burks, administrative remedy clerk for the BOP Western Regional Office to their reply. Ms. Burks includes a copy of an administrative remedy update form dated January 19, 2010 as Ex. A, stating that she cannot manipulate the date and time generated by SENTRY. Reply, Burks Dec. ¶ 6. Ex. A shows an entry indicating that Jan. 15, 2010 was the date of the regional director's denial. The same form indicates that the response was due on Feb. 8, 2010. Ms. Burks believes she mailed the response to plaintiff at FCI-Herlong on or before Jan. 19, 2010. Reply, Burks Dec. ¶ 7. She avers that she has never received a signed backdated response from a regional director, and that she did indeed receive the signed response to administrative remedy # 564241-R1 on Jan. 15, 2010. Id. She notes that plaintiff was housed at FCI-Herlong on Jan. 19, 2010. Id., at ¶ 5 F. Ms. Burks, having reviewed the packet for this appeal maintained in her office, states that the update form referenced above shows, inter alia, that she extended the 30-day response deadline by 30 days to Feb. 8, 2010, an extension which can only occur once. Burks Dec., ¶¶ 5D & 8A. Ms. Burks does not provide extension notices to an inmate but the BOP prison staff where an inmate is located is required to provide the notice. Id., at ¶ 8A, B, C. Ms. Burks states that the unit team at the institution where an inmate is located prints and delivers a copy of the extension notice to the inmate and has the capability to print the notice on the date it is generated and to reprint the notice at a later date; she declares that she reviewed the notices provided by plaintiff and that they are both print-outs regarding the same 30-day extension and were printed on Jan. 20, 2010 and April 15, 2010, respectively. Id., at ¶ 8C & 9.

"In deciding a motion to dismiss for failure to exhaust, a court may `look beyond the pleadings and decide disputed issues of fact.'" Sapp v. Kimbrell, 623 F. 3d at 821, quoting Wyatt v. Terhune, 315 F.3d 1108, 1119-20 (9th Cir.2003). While defendants' showing does not definitively demonstrate that plaintiff received the response before July 1, 2010, it does raise questions that plaintiff fails to adequately address. Even assuming that plaintiff had received a duplicate notice on April 15, 2010, regarding the extension time for a response until Feb. 8, 2010, a date which had already passed, and yet had not received the response itself, plaintiff had some responsibility to follow up and he makes no showing whatever that he did that. That is, knowing that the February 8th date had long since passed, plaintiff never asked for a copy of the decision or for confirmation that a decision had not been made. Nor does he satisfactorily explain why he was unable to provide the requisite documentation to show that the late filing of his appeal to the OGC was not his fault and why he waited seven months after the initial appeal was rejected as, inter alia, untimely and then did not provide the documentation to show a late appeal was not his fault. The Ninth Circuit has determined that where administrative appeals are "screened for proper reasons" administrative remedies remained "`available'" and plaintiff "was required to exhaust them." Sapp, at 826.

Sapp, at 821.

To come within an exception to the exhaustion requirement for improper screening by a prison official:

Sapp, at 823-824.

If plaintiff did not receive the response until July 1, 2010, overlooking that he had actual notice that it was due by Feb. 8, 2010 and evidently raised no alarm or sought no explanation when it was not forthcoming at that time, it is unclear why he could not have not included documentation such as a copy of a log entry of incoming mail dated on or around July 1, 2010, showing the date of the arrival of his appeal response. In this instance, it does appear that the second extension notice was simply the same notice reprinted on another date and that if he did not make any effort to bring it to the attention of the regional director's office that he had yet to receive an overdue appeal response, he cannot be wholly absolved of his responsibility to track the response. Moreover, plaintiff provides an inadequate explanation for failing to make a showing with respect to why the appeal was untimely to the OGC, given at least two opportunities. Nor is there sufficient evidence to support plaintiff's contention that the appeal response was backdated, particularly in light of the rebuttal evidence produced by the defendants. Also, it appears to the undersigned to be telling that, in recounting the chronology of events in the first amended complaint, that while plaintiff takes issue with the Jan. 15, 2010 response from the regional director, it has nothing to do with the timing of the response or when he received it, but rather concerns the substance, stating that the response contained false information as to when and whether he was prescribed pain medication. FAC, p. 7, ¶ 25. In other words, plaintiff makes no claim therein that he did not receive the appeal response (re: Appeal # # 564241) on or around Jan. 15, 2010, even though he did make an issue as to the first appeal (Appeal # 540693) not having been processed correctly in his first amended complaint; instead, he simply proceeds next to February, 2010, in his chronology of the condition of his shoulder. Notwithstanding, the court does not find that plaintiff did, in fact, receive the January 15, 2010, response on or around that date, but does find that he was remiss in not having sufficiently followed up when he did not, as he claims, receive the response shortly after Feb. 8, 2010, or certainly after April, 2010, when the notice was apparently re-printed, rather than waiting until July 1, 2010, when he contends he finally received it. Opp., p. 6. Thus, the court finds that plaintiff failed to exhaust his administrative remedies with regard to his claims following the second or corrective surgery encompassed within Appeal # 564241. Therefore, plaintiff's claims against defendants arising from his second appeal must be dismissed as unexhausted administratively. This includes plaintiff's claims of having been denied pain medication following the second surgery in September, 2009, by defendants Acosta, Ferriol and Garrett, and any claims regarding a denial of physical therapy or post-op care against any defendant. However, as noted above, plaintiff's claims of inadequate medical care against these defendants preceding the second surgery and encompassed within Appeal # 540693 have been deemed exhausted administratively.

Legal Standard for Fed. R, Civ. 12(b)(6) Motion

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "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." Id.

In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S.Ct. 35 (1969). The court will "`presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972).

The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

Official Capacity Claims

Defendants contend that plaintiff's claims against defendant Acosta should be dismissed with prejudice because plaintiff specifically alleges this defendant was acting in his official capacity when he denied plaintiff pain medication. MTD, p. 13, citing FAC, p. 4. Defendants also contend that as to the other federal defendants, that plaintiff neither alleges that they were acting outside of their official capacities or that they are sued in their individual capacities. MTD, p. 13. Plaintiff does seek injunctive relief (in addition to money damages), as noted by defendants, which does imply a suit against the defendants in their official capacities. Id. Moreover, his claims for injunctive relief would have to be in an official capacity because no defendant could be enjoined in an individual capacity to provide relief since plaintiff, now housed at FCC-Lompoc according to court records, no longer resides at either prison where defendants are employed. Plaintiff in opposition argues that to dismiss any defendant in any capacity is premature at this stage. Opp., pp. 9. He also argues that he has named the defendants in their individual capacity as well "as employees of the Federal Bureau of Prisons." Opp., pp. 9-10.

In plaintiff's amended complaint, plaintiff, emphasizing his status as a pro se litigant, asks for the court's liberal consideration of his claims. FAC, p. 8. Pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596 (1972). "We have a `duty ... to construe pro se pleadings liberally,' especially when filed by prisoners. Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995) (citing Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980))." Shakur v. Schriro, 514 F.3d 878, 892 (9th Cir. 2008).

Defendant Acosta is correct that he may not be sued in a Bivens action in his official capacity. MTD, p. 13, citing, inter alia, Daly-Murphy v. Winston, 837 F.2d 348, 356 (9th Cir. 1987) (Bivens action may proceed against a defendant only in his or her individual capacity not in an official capacity). Indeed, in addition to plaintiff's being foreclosed from proceeding against federal agents or employees in an official capacity in a Bivens action, plaintiff may also not proceed under Bivens against the United States or its agencies. See FDIC v. Meyer, 510 U.S. 471, 486, 114 S.Ct. 994, 1005-06 (1994); Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)("Bivens created a remedy for violations of constitutional rights committed by federal officials acting in their individual capacities"); Balser v. Dept. of Justice, Office of U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003) (Bivens lawsuit is against a federal employee in his individual, not official, capacity); Morgan v. United States, 323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996); Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000) ("[a]ppellant cannot state a claim against the federal officers in their official capacities unless the United States waives its sovereign immunity"); Cato v. United States, 70 F.3d 1103, 1110 (9th Cir. 1995); Daly-Murphy, 837 F.2d at 356 ("[a]n individual may not maintain a Bivens action for monetary damages against the United States.").

Plaintiff might have been able to seek injunctive relief under the Administrative Procedures Act (APA); however, this avenue is now blocked as well. In order to proceed plaintiff must have exhausted the appropriate administrative procedures under the Administrative Procedures Act (APA) because he cannot sue the individual defendants under Bivens in their official capacity and he would be required to seek to enjoin the United States for injunctive relief. However, as the sovereign United States is immune unless it has waived immunity, Dept of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687 (1999), plaintiff must have exhausted the apposite administrative remedy.

As to plaintiff's claims for prospective injunctive relief (individual capacity) in the form of corrective surgery from a physician of his choice and "job training to compensate for loss of use of the damaged shoulder as the plaintiff was a carpenter/contractor relying on his physical strengths" (FAC, p. 9), defendants accurately contend that any such relief could only be forthcoming from the government and not the defendants sued in their individual capacities. MTD, pp. 13-14, citing, inter alia, Bivens, 403 U.S. at 394[-95], 91 S. Ct. (1999); Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052)(1963) ("[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter"); id., citing, e.g., Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999(1963) ("[t]he general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration" [internal citation omitted]); Western Center For Journalism v. Cederquist, 235 F.3d 1153 (9th Cir. 2000)("Bivens provides that federal courts have the inherent authority to award damages against federal officials to compensate plaintiffs for violations of their constitutional rights"). In addition, of course, plaintiff's claims for injunctive relief as against the individual defendants have been rendered moot as he is no longer housed at either facility where the defendants are employed. A viable remedy is a prerequisite to jurisdictional standing for injunctive relief. See Newman v. apfel, 223 F.3d 937, 941 (9th Cir. 2000).

As leave to amend would be futile with regard to plaintiff's claims for injunctive relief at this point, plaintiff's claims for injunctive relief must be dismissed with prejudice.

Fourteenth Amendment

The court has construed plaintiff's claims as arising under the Eighth Amendment, which as noted by defendants, plaintiff has captioned his claim as arising under in the FAC. MTD, p. 14; FAC, p. 8. However, to the extent plaintiff references the Fourteenth Amendment among his allegations, defendants are correct that any such claims must be dismissed. Id. Defendants note that the Supreme Court has recognized a citizen's implied right to bring a claim for damages against federal agents/officers for a violation of his rights under the Fourth Amendment (Bivens, 403 U.S. at 397, 91 S.Ct. 1999), as well as the under the due process clause of the Fifth Amendment (Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264 (1979), and for cruel and unusual punishment in violation of the Eighth Amendment (Carlson v. Green, 446 U.S. 14, [19]-[23], 100 S.Ct. 1468 (1980). MTD, p. 14. However, the Supreme Court is chary of implied causes of action (which are "disfavored") and of extending Bivens liability "to any new context or new category of defendants." Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) [citation omitted]; W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1119 (9th Cir. 2009) (noting that Bivens liability for a Fourth Amendment violation has been extended by the Supreme Court only twice — to Fifth (due process) and Eighth Amendment claims (see above) and has since refused to extend such liability).

More importantly, the Supreme Court has emphasized that the general proscription of the Fourteenth Amendment or Fifth Amendment do not apply when a specific Amendment applies to the situation at hand. See Stansbury v. U.S. Govt., 2011 WL 2938229 (9th Cir. 20111) citing Graham v. Connor, 490 U.S.386, 395, 109 S.Ct. 1865 (1989). Here, the Eighth Amendment governs plaintiff's claims for deliberate indifference to a serious medical need.

Thus, any claim arising under the Fourteenth Amendment must be dismissed.

Federal Tort Claims Act

FTCA, 28 U.S.C. § 1346(b) §§ 2671-2680

"The United States is immune from suit unless it consents to be sued." Graham v. United States, 96 F.3d 446, 448 (9th Cir. 1996), citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351-52 [] (1980).

28 U.S.C. § 2674 (in part). "The FTCA is a limited waiver of sovereign immunity." Graham, 96 F.3d at 448, citing United States v. Kubrick, 444 U.S. 111, 117-18, 100 S.Ct. 352, 356-57 [] (1979). Under 28 U.S.C. § 2679(b)(1), the FTCA provides the exclusive remedy against the United States "for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment...." See Billings v. United States, 57 F.3d 797, 799 (9th Cir. 1995).

Argument

In addition to his Eighth Amendment claims of deliberate indifference to a serious medical condition, plaintiff sets forth a medical malpractice claim that appears to be directed specifically to defendant Redix for the "complete failure" of this defendant surgeon "to correct an acromioclavicular joint separation," apparently by not having placed a surgical pin properly which "began to protrude" through plaintiff's skin; plaintiff has suffered shoulder dislocation which has "prevented physical rehabilitation." FAC, p. 9. Plaintiff alleges that he is awaiting a third surgery to continue the repair of the damage inflicted by defendant Redix. Id. In their motion, the federal defendants assume that plaintiff only sought to raise this claim against defendant Redix. MTD, p. 14. This is a logical inference based on the way this claim was framed, and, as noted, this court has found defendant Redix to be in default. However, in his opposition, plaintiff appears to seek to sue all defendants under the FTCA, which the federal defendants recognize in their reply. Opp., pp. 10-11; Reply, p. 6.

Defendants move for dismissal of plaintiff's claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b) and §§ 2671-2680, for a lack of subject matter jurisdiction and for failure to state a claim. MTD, p. 14. Defendants first contend that "[t]he United States is the only proper defendant in an FTCA action," quoting Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995), and that plaintiff failed to name the United States as a defendant. MTD, p. 15. Second, defendants argue that to the extent the medical malpractice claim is construed as coming under the FTCA, this court lacks subject matter jurisdiction because plaintiff failed to exhaust his FTCA administrative remedies before filing this action. Id. This action was filed on June 15, 2010, but, according to defendants, plaintiff's FTCA claim was not received by the BOP until June 22, 2010. MTD, Schuh Dec., ¶ 8A&B, Ex. F, (copy of plaintiff's "claim for damage, injury or death" on "Standard Form 95" sent to the BOP for $6,000,000.00 for personal injury, identifying the date of the "accident" as July 22, 2008, and stamped as received on June 22, 2010); Ex. G (copy of October 28, 2010, BOP denial of administrative claim). The final basis for dismissal of FTCA claims, according to defendants, is that "[u]nder the independent contractor exception, the United States expressly has not waived sovereign immunity for negligent acts by contractors." MTD, p. 17, citing 28 U.S.C. § 2671 and citing Carrillo v. United States, 5 F.3d 1302, 1304-05 (9th Cir. 1993) (civilian physician, employed by a private entity provider contracted to army medical center, was an independent contractor not a federal employee under the FTCA).

In opposition, plaintiff relies on Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468 (1980), authorizing a Bivens remedy to compensate for constitutional injury notwithstanding that the FTCA authorized award of damages caused by same conduct. Opp., pp. 10-11. However, this argument is inapposite to the issue presented. Plaintiff also asserts that the United States is at least impliedly named as a defendant in this action and his action should be liberally construed in that regard and that, if the court deems it necessary, he should be permitted to amend the case caption to add the United States as a defendant. Id., at 8-9. Plaintiff, however, does not address the exhaustion and timeliness questions raised by defendants. He does not, for example, dispute the dates ascribed to the filing of his injury claim to BOP and its denial.

Analysis

Under 28 U.S.C. § 2875(a), before proceeding on a court action, a claimant must first have presented his claim "to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail." See Alvarado v. Table Mountain Rancheria, 509 F.3d 1008, 1019 (9th Cir. 2007) ("[a]ppellants cannot establish subject matter jurisdiction through the FTCA because they have not administratively exhausted their claims"); id., citing Jerves v. United States, 966 F.2d 517, 519 (9th Cir. 1992); Vacek v. United States Postal Service, 447 F.3d 1248, 1250 (9th Cir. 2006) ("[w]e have repeatedly held that the exhaustion requirement [of the FTCA] is jurisdictional in nature and must be interpreted strictly..."; Burns v. United States, 764 F.2d 722, 724 (9th Cir. 1985) (claim exhaustion requirement of § 2675 "is jurisdictional in nature and may not be waived.").

28 U.S.C. § 2401(b).

While by filing his administrative claim on June 22, 2010 to the BOP for an injury dated on or from July 22, 2008, plaintiff was within the two-year statute of limitations under 28 U.S.C. § 2401(b), for filing such a claim, his claim is nevertheless barred because, as defendants aver, plaintiff failed to exhaust his administrative remedies before filing suit. MTD, p. 16. Plaintiff filed the instant action (whether the date is ascribed to be June 15, 2010 or June 21, 2010) prior to even having commenced exhaustion of his FTCA claim on June 22, 2010.

As defendants point out, plaintiff was foreclosed from bringing his FTCA claim when he did, and this court lacks subject matter jurisdiction as to the claim because he failed to exhaust his remedies administrative remedy first. MTD, p. 16, citing 28 U.S.C. § 2675(a)24; McNeil v. United States, 508 U.S. 106, 112[,113], 113 S.Ct. 1980, 1984 (1993) ("[t]he FTCA bars claimants from bringing suit in federal court until they have exhausted their administrative remedies."). Further amending the amended complaint would not cure the defect "[b]ecause § 2675(a) of the FTCA requires that an administrative claim be finalized at the time the complaint is filed...." MTD, p. 16, quoting Sparrow v. United States Postal Service, 825 F.Supp. 252, 255 (E.D.Cal. 1993). Plaintiff's FTCA claim in this action was, therefore, brought prematurely and must be dismissed. Jerves v. United States, 966 F.2d 517 (requiring strict adherence to § 2675(a) and dismissing case where plaintiff had filed in district court after the FTCA claim had been submitted to federal agency but before final denial of her claim was received and before six-month period had elapsed). Thus, plaintiff could theoretically only proceed on the FTCA claim in a new lawsuit. Sparrow, 825 F.Supp. at 255. However, defendants are correct that the dismissal of the FTCA claim must be with prejudice because it is now too late to allege this claim in a new lawsuit because plaintiff had six months from the denial of his administative tort claim, that is, from October 28, 2010, to file a new lawsuit and that six-month deadline (§ 2401(b)) expired on April 28, 2010. See MTD, p. 17. As plaintiff's claims for medical malpractice against all federal defendants under the FTCA must be dismissed with prejudice because the court lacks subject matter jurisdiction to proceed on any claim brought under the FTCA, the court need not address any other basis for dismissal raised by defendants.

Venue

Defendants, at this point, only individual defendants in a Bivens action, also move for dismissal for improper venue under Fed. R. Civ. P. 12(b)(3). The federal venue statute requires that a civil action, other than one based on diversity jurisdiction, be brought only in:

28 U.S.C. § 1391(b).

Under 28 U.S.C. § 1406(a):

As defendants note (MTD, p. 18), plaintiff's allegations indicate that a substantial part of the events occurred at FCI Victorville (from the date of the first surgery on July 22, 2008, until December 9, 2008), and following his December 17, 2008 transfer to FCI Safford, plaintiff's claims arise against the defendants there continue through October 2009 (although this court has herein found plaintiff's claims following the September 1, 2009 second surgery to be unexhausted). FAC, pp. 4-7. Further, although plaintiff recounts some events occurring from February 2010 through May 2010, while at FCI-Herlong within this district (the Eastern District of California), plaintiff has named no defendants located at Herlong. MTD, p. 18; FAC, p. 7. Defendants point out that all federal defendants reside "presumably" in other districts: either the BOP facilities in Victorville, California, located in the Central District of California or in Safford, Arizona, within the District of Arizona. MTD, p. 18.

Defendants are correct that having challenged the propriety of venue in this court, it is plaintiff's burden to show venue in this court is proper. MTD, p. 17, citing Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In opposition, plaintiff, who, as previously noted, is currently housed at FCC-Lompoc, simply states that since his location or re-location is subject to the "whims" of U.S. Attorney General and he found himself located in the Eastern District of California and because his claims included that he is substantially disabled and subject to ongoing constant pain due to the injury caused him by defendants, that he believes venue was appropriate in this court. Opp., p. 11. He also believed that this court's acceptance of the filing meant the venue was proper. Id. Plaintiff asks that if the court now finds venue to be improper that the case be transferred rather than dismissed. Id.

Dismissal or transfer for improper venue is, indeed, within the sound discretion of this court. King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992), citing 28 U.S.C. § 1406(a) (see above). The court finds, in this instance, that this case should be transferred to the Central District of California for further adjudication with respect to the defendants remaining in this lawsuit.

Accordingly, IT IS ORDERED that the Clerk of the Court make a district judge assignment to this case.

IT IS HEREBY RECOMMENDED that:

1. The federal defendants' motion to dismiss, filed on June 17, 2011 (docket # 31), be granted in part and denied in part, as follows:

a) DENIED as to plaintiff's Bivens claims against defendants Quinn and Sterling at FCI-Victorville; and denied as to defendants Garrett, Ferriol and Acosta at FCI-Safford; however, as to Garrett, Ferriol and Acosta, DENIED only as to those claims for an Eighth Amendment violation up to the date of plaintiff's second surgery on September 1, 2009;

b) GRANTED as to plaintiff's Eighth Amendment claims against defendants Garrett, Ferriol and Acosta for plaintiff's failure to exhaust his adminstrative remedies as to his claims arising after the September 2009 second surgery and these claims be dismissed;

c) GRANTED as to plaintiff's Bivens claims against individual defendants in their official capacity and GRANTED as to plaintiff's claims for prospective injunctive relief and these claims be dismissed;

d) GRANTED as to plaintiff's Fourteenth Amendment claims and these claims be dismissed;

e) GRANTED as to plaintiff's medical malpractice claims brought under the FTCA for lack of subject matter jurisdiction and these claims be dismissed;

f) DENIED to the extent defendants seek dismissal for improper venue, but GRANTED to the extent that this case the remaining individual defendants seek transfer of this case and this case be transferred to the Central District of California.

2. Defendant Redix be found to be in default and the Clerk be directed to file these findings and recommendations upon him at the address for him provided at docket # 25 and #26.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).