UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LARRY DALE JOHNSON, Case No. 3:15-CV-0581-AC

Plaintiff, FINDINGS AND

 RECOMMENDATION

 v.

FEDERAL BUREAU OF PRISONS,

Defendant.

_______________________________________

ACOSTA, Magistrate Judge:

Introduction

This lawsuit arises under the Inmate Accident Compensation Act (18 U.S.C. § 4126)

(“IACA”), and alleges plaintiff Larry Dale Johnson (“Johnson”) sustained injuries while performing

work during two separate terms of federal incarceration. Johnson, appearing pro se, filed his

original complaint on April 8, 2015, against the Federal Bureau of Prisons (“BOP”). Johnson also

filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a), which was granted on

Page 1 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 1 of 10
April 29, 2015. 

Judge Anna Brown granted the BOP’s motion to dismiss on February 25, 2016, and allowed

Johnson leave to amend “for the sole purpose of alleging a claim under the Administrative

Procedures Act (APA), 5 U.S.C. § 706, to compel the BOP to decide whether to accept or to reject

Plaintiff’s claim under the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126, that

was filed after Plaintiff’s March 2014 release and related to Plaintiff’s alleged work-related injuries

suffered in 2011 and 2013.” (Order at 1, 5, ECF No. 61.) Judge Brown also advised Johnson the

court would review any amended complaint sua sponte. (Order, at 5.) Johnson filed an amended

complaint on May 9, 2016 (“Amended Complaint”). For the reasons that follow, the court should

exercise its discretion to dismiss the Amended Complaint sua sponte, with leave to amend, pursuant

to the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2)(B)(i). 

Preliminary Procedural Matter

In the first unnumbered paragraph of the Amended Complaint, Johnson attempts to broadly

incorporate, “all the original [pro se] complaints, pleadings and filings with the federal courts and

the Federal Bureau of Prisons administrative remedy pleadings during [his] entire terms of

incarcerations . . . .” (Am. Compl. at 1.) This is not proper. “[I]t is well-established that an

‘amended complaint supersedes the original, the latter treated thereafter as non-existent.’” ValadezLopez v. Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (quoting Forsyth v. Humana, Inc., 114 F.3d

1467, 1474 (9th Cir. 1997)). In addition, this district’s local rules specifically prohibit the

incorporation of prior pleadings by reference. United States District Court for the District of Oregon

Local Rule (“LR”) 15-1(c) (“An amended or supplemental pleading must reproduce the entire

pleading and may not incorporate any part of the prior pleading by reference.”). 

Page 2 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 2 of 10
However, because the court should liberally construe a pro se plaintiff’s pleadings, Erickson

v. Pardus, 551 U.S. 89, 94 (2007), and because no facts in Johnson’s original complaint are

dispositive in this sua sponte review of the Amended Complaint, the court will consider allegations

from Johnson’s original complaint as added context. See McKenna v. WhisperText, No. 5:14-CV00424-PSG, 2015 WL 5264750, at *3 (N.D. Cal. Sept. 9, 2015) (“when evaluating an amended

complaint, ‘[t]he court may also consider the prior allegations as part of its “context-specific”

inquiry based on its judicial experience and common sense to assess whether’ an amended complaint

‘plausibly suggests an entitlement to relief.’”) (quoting Cole v. Sunnyvale, No. C-08-05017-RMW,

2010 WL 532428 at *4 (N.D. Cal. Feb. 9, 2010)). Therefore, the court will consider allegations in

the original complaint to the extent they support the plausibility of any claims for relief in the

Amended Complaint. 

Background

The following facts are judicially noticed from Judge Haggerty’s 2011 opinion, which

addressed Johnson’s prior IACA administrative claim for injuries suffered in 2004, or are taken from

the Amended Complaint. 

I. Prior Claims

On June 15, 2005, Johnson filed an administrative claim with the BOP for inmate accident

compensation based on an alleged work-related back injury that occurred on April 30, 2004. 

Johnson v. Fed. Bureau of Prisons, No. 3:08-cv-6017-HA, 2011 WL 198184, at *1 (D. Or. Jan. 18,

2011). The BOP denied the claim for lack of documentation. Id. Johnson appealed to both the

Inmate Accident Compensation Committee and the chief operation officer of the Federal Prison

Industries. Id. Both appeals were denied. Id. Johnson then filed a lawsuit in this district in 2008,

Page 3 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 3 of 10
asserting multiple claims against the BOP and other defendants arising out of the alleged 2004 workrelated injury. Id. at 2. Judge Haggerty granted summary judgment for defendants in 2011, without

leave to amend. Id. at 9. Johnson appealed and the Ninth Circuit affirmed Judge Haggerty’s opinion

and order. Johnson v. Fed. Bureau of Prisons, 488 F. App’x 267, 267 (9th Cir. 2012). 

II. Current Claims

Johnson reentered BOP custody on December 30, 2010. (Compl. ¶ 2, ECF No. 2.) He

allegedly suffered additional work-related injuries or aggravations of existing injuries in 2011 and

2013, while working as an orderly. (Id. ¶ 5; Ex. A at 1.) Johnson was released from BOP custody

on March 21, 2014, and filed a renewed administrative claim with the BOP for IACA compensation

shortly thereafter. (Id. ¶¶ 2, 5.) The BOP has yet to respond to the claim. (Id. ¶ 5.) In the Amended

Complaint, Johnson claims the BOP denies receiving the claim. (See Am. Compl. ¶ 7, ECF No. 65.) 

As explained in the previous findings and recommendation, Johnson’s progress in his

administrative claim against the BOP is dispositive of any IACA claim in this court. (Findings and

Recommendation at 9, ECF No. 23.) The court cannot consider the merits of Johnson’s claim

without a final agency action. As a result, the court granted the BOP’s motion to dismiss. However,

in light of Johnson’s pro se status, the court granted Johnson limited leave to amend the complaint

for the narrow purpose of alleging a claim under 5 U.S.C. § 706(1) to compel agency action. (See

Order at 1, 5.) Pursuant to 28 U.S.C. 1915(e)(2)(B)(ii), the court now reviews the Amended

Complaint sua sponte to determine whether it sufficiently states a claim under § 706(1) to compel

the BOP to accept or deny his administrative claim. 

/ / / / / 

/ / / / / 

Page 4 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 4 of 10
Legal Standard

“In determining whether a complaint should be dismissed for failure to state a claim under

the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2)(B)(ii), we apply the familiar standard of

Federal Rule of Civil Procedure 12(b)(6).” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). 

 A well-pleaded claim requires “a short and plain statement of the claim showing that the pleader

is entitled to relief.” FED. R. CIV. P. 8(a)(2) (2015). To survive a motion to dismiss, a claim “must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quoting Aschcroft v. Iqbal, 556 U.S. 662,

678 (2009)). “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.” 

Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The court may

“consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters

properly subject to judicial notice.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting

Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)). The court must assume all facts alleged

in a claim are true and view them in the light most favorable to the plaintiff. Iqbal, 556 U.S. at 678. 

The court does not assume all legal conclusions are true. Id.

The court holds a pro se plaintiff’s pleadings to a less strict standard than those drafted by

an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Specifically, the court construes the

pleadings liberally and gives the pro se plaintiff the benefit of any doubt. Butler v. Long, 752 F.3d

1177, 1180 (9th Cir. 2014); Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985). Though

liberally construed, pro se complaints must still meet the Iqbal plausibility standard. Hebbe v.

Pliler, 627 F.3d 338, 342 (9th Cir. 2010). If a court dismisses a pro se complaint, it should “grant

Page 5 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 5 of 10
leave to amend even if no request to amend the pleading was made, unless it determines that the

pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d

1122, 1130 (9th Cir. 2000) (citations and internal quotation marks omitted). The court must allow

a pro se plaintiff “notice of the deficiencies of his or her complaint and an opportunity to amend the

complaint” before dismissing a complaint without leave to amend. McGuckin v. Smith, 974 F.2d

1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d

1133 (9th Cir. 1997).

Discussion

Johnson was given limited leave to amend “for the sole purpose of alleging a claim under

the APA to compel the BOP to decide whether to accept or to reject Plaintiff’s IACA claim that [he]

filed after [his] March 2014 release and related to his alleged work-related injuries suffered in 2011

and 2013.” (Order at 5, ECF No. 61.) Under § 706(1), a plaintiff can state a claim to “compel

agency action unlawfully withheld or unreasonably delayed.” To state a claim under § 706(1), a

plaintiff must assert “that an agency failed to take a discrete agency action that it is required to

take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 63 (2004) (emphasis in original). To qualify

as an action the agency is “required to take,” the action must be legally obligated and “so clearly set

forth that it could traditionally have been enforced through a writ of mandamus.” Hells Canyon Pres.

Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir. 2010). Rules, orders, licenses, sanctions,

and relief can qualify as discrete actions. Norton, 542 U.S. at 62. 

To state a claim under § 706(1), Johnson must plead sufficient facts to establish a (1) discrete

action the BOP is (2) required to take, and the BOP (3) unreasonably delayed taking such action. 

See Norton, 542 U.S. at 62-65. The Amended Complaint must satisfy all three elements to properly

Page 6 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 6 of 10
state a claim to compel agency action under § 706(1). Even construed liberally, the Amended

Complaint fails to adequately satisfy any of the three elements. As such, Johnson’s Amended

Complaint fails to state a claim under § 706(1). 

A decision by the BOP to deny or accept Johnson’s claim would qualify as a discrete agency

action, but the Amended Complaint fails to clearly state that such agency action occurred. The

Amended Complaint repeatedly alleges the BOP denied or delayed Johnson’s claim: “[the BOP

claims examiner] has consistently delayed and denied the claims . . . .”; “[t]he Federal Bureau of

Prisons has continuously delayed my work injury claims by deceit and misrepresentation of facts”;

and the “[BOP] still after over two years unnecessarily deny and delay the injury claims . . . .” (Am.

Compl. ¶¶ 6-7.) However, in the context of the other allegations in the Amended Complaint, as well

as those in the initial complaint, it appears, that the BOP “denied” receipt of Johnson’s claim. (See

Compl.; Am. Compl.) If the BOP never received an administrative claim from Johnson after his

release in 2014, then there is no agency action to compel under 5 U.S.C. § 706(1). To properly state

a claim then, Johnson must first allege facts to establish he filed an administrative claim with the

BOP in 2014 and then identify a discrete agency action he believes should have been taken by the

BOP, such as “recognition of a claim” or “denial thereof.” Norton, 542 U.S. at 62 (quoting 5 U.S.C.

§§ 551(11)(b), (13)). Because Johnson fails to properly identify such an action, the Amended

Complaint fails to satisfy the first element. 

The Amended Complaint also fails to allege the BOP failed to take an action that it was

legally required to take. To properly state a claim, Johnson must assert the BOP is legally required

to take some discrete action with regard to his pending administrative claim. Norton, 542 U.S. at

63. This means Johnson must identify “a statutory duty” that requires the BOP to take such action. 

Page 7 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 7 of 10
San Francisco Baykeeper v. Whitman, 297 F.3d 877, 885 (9th Cir. 2002). The Amended Complaint

does not identify any such statutory duty. Thus, Johnson fails to satisfy the second element as well. 

Even if Johnson were to identify a discrete action the BOP is required to take in the

Amended Complaint, his allegations of unreasonable delay do not meet the plausibility standard of

Twombly and Iqbal. A claim “must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Naffe, 789 F.3d at 1035 (quoting Iqbal, 556 U.S. at 678). 

Johnson’s only factual allegation asserting unreasonable delay is presented as a question: “[a] US

Marshal serves [BOP] with the initial complaint with injury attachments and they still after over two

years unnecessarily deny and delay the injury claims under the protection of the US Attorney

General’s Office ????????” (Am. Compl. at ¶ 7.) This does not constitute an allegation and, thus,

does not rise to the level of facial plausibility. As a result, Johnson fails to satisfy the third element

required to state a claim under § 706(1).

Because Johnson fails to state a claim to compel agency action under § 706(1), the Amended

Complaint should be dismissed. However, Johnson should be allowed one more chance to amend

his claim. There is substantial authority that supports liberally granting leave to amend, especially

in the case of pro se litigants proceeding in forma pauperis. The Ninth Circuit has “repeatedly held

that ‘a district court should grant leave to amend even if no request to amend the pleading was made,

unless it determines that the pleading could not possibly be cured by the allegation of other facts.’” 

Lopez, 203 F.3d at 1130 (quoting Doe v. U.S., 58 F.3d 494, 497 (9th Cir. 1995)). Additionally, “[a]

pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that

the deficiencies of the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d

1446, 1448 (9th Cir. 1987), superseded by statute on other grounds as stated in Lopez, 203 F.3d

Page 8 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 8 of 10
1122. Furthermore, “the ‘rule favoring liberality in amendments to pleadings is particularly

important for the pro se litigant. Presumably unskilled in the law, the pro se litigant is far more

prone to making errors in pleading than the person who benefits from the representation of

counsel.’” Lopez, 203 F.3d at 1131 (quoting Noll, 809 F.2d at 1448). A pro se plaintiff proceeding

in forma pauperis should be allowed “to amend his complaint prior to its dismissal for failure to

state a claim, unless the court can rule out any possibility, however unlikely it might be, that an

amended complaint would succeed in stating a claim.” Lopez, 203 F.3d at 1128. 

In this case, Johnson, a pro se plaintiff proceeding in forma pauperis, attempted to follow

the court’s instructions and state a claim under the APA to compel the BOP to accept or deny his

administrative claim. Johnson, like many pro se plaintiffs, did not draft a perfect amended

complaint. However, it is still possible for Johnson to cure the deficiencies in the Amended

Complaint, and because “the court [cannot] rule out any possibility . . . that an amended complaint

would succeed in stating a claim,” he should be afforded one more opportunity to do so. Id. If

Johnson cannot cure the deficiencies and properly state a claim under 5 U.S.C. § 706(1) in a newly

amended complaint, the court is likely to find further amendment would be futile. Consequently,

the court recommends the Amended Complaint be dismissed with leave to amend. 

To cure the deficiencies in the Amended Complaint, Johnson must allege facts that satisfy

all elements required to state a claim under 5 U.S.C. § 706(1) and request an order to compel the

BOP to accept or reject his IACA claim. First, Johnson must identify the discrete action he believes

the BOP has unreasonably delayed in taking. See Norton, 542 U.S. at 62. Second, Johnson must

show the BOP is legally required to take that discrete action. See id. at 63-64. Third, Johnson must

allege this action has been unreasonably delayed. See 5 U.S.C. § 706(1). Finally, Johnson must

Page 9 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 9 of 10
request an order from the court to compel the BOP to accept or deny his claim. When drafting a new

amended complaint, Johnson is advised that LR 15-1(c) requires him to reproduce the entire

pleading and not incorporate prior versions by reference. The newly amended complaint will

operate as a complete substitute for the present Amended Complaint, not as a supplement. 

Conclusion

After sua sponte review, the Amended Complaint should be dismissed, with leave to amend. 

Johnson should be allowed to amend his complaint only to seek to compel the BOP to decide

whether to accept or reject his underlying administrative claim, under the APA. 

Scheduling Order

The Findings and Recommendation will be referred to a district judge. Objections, if any,

are due August 15, 2016. If no objections are filed, then the Findings and Recommendation will go

under advisement on that date. 

If objections are filed, then a response is due within 14 days after being served with a copy

of the objections. When the response is due or filed, whichever date is earlier, the Findings and

Recommendation will go under advisement. 

DATED this 27th day of July, 2016. 

 /s/ John V. Acosta 

JOHN V. ACOSTA

 United States Magistrate Judge

Page 10 - FINDINGS & RECOMMENDATION [JSR]

Case 3:15-cv-00581-AC Document 76 Filed 07/27/16 Page 10 of 10