The opinion of the court was delivered by: BARBARA A. CAULFIELD
Plaintiff, an inmate at Corcoran State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff also seeks to proceed in forma pauperis. Venue is proper in this district as the defendants reside in, and a substantial part of the events giving rise to the action occurred in, this district. 28 U.S.C. § 1391(b).
Plaintiff, a state prisoner, alleges that during his incarceration at the California Medical Facility in April of 1992 Frank Quigley, a Secret Service agent out of San Francisco, interviewed him concerning what plaintiff maintains was a "prank" letter plaintiff had written regarding a plot to assassinate the president. Plaintiff complains that Quigley thereafter left official papers with the California Medical Facility and the state prison at Corcoran requiring those facilities to keep all of plaintiff's legal mail. It is unclear, however, whether plaintiff is complaining that he has been unable to receive mail, to send mail, or both.
Plaintiff names Quigley as his sole defendant. He asks the court to order Quigley to rescind his orders and to order the prisons to provide plaintiff with, and not censor, his mail. He also seeks damages.
Title 28 U.S.C. § 1915(d) authorizes federal courts to dismiss a claim filed in forma pauperis prior to service "if the allegation is untrue, or if satisfied that the action is frivolous or malicious." Under this standard, a district court may review the complaint and dismiss sua sponte those claims premised on meritless legal theories or that clearly lack any factual basis. Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1730-31 (1992). Pro se papers must be liberally construed, however, especially where civil rights claims are involved. Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
1. Proper Cause of Action
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988).
Although plaintiff is a state prisoner, he names as the defendant responsible for his alleged constitutional injury a federal agent. Therefore, this action does not present a claim under § 1983 as the defendant does not act under color of state law. Under Bivens v. Six Unknown Named Agents ("Bivens"), 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), however, a private right of action and a damages remedy may be implied from the Constitution itself where there are allegations of constitutional violations made against federal employees or their agents. Accordingly, plaintiff's complaint will be construed as a Bivens claim. The analysis of actions brought pursuant to § 1983 and under Bivens are identical. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991); Jacobson v. Tahoe Regional ...