The opinion of the court was delivered by: Claudia Wilken United States District Judge
CW ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT WITH LEAVE TO AMEND
Plaintiff Alden Lamont Moore requests leave to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915(a). The Ninth Circuit has indicated that leave to proceed IFP pursuant to 28 U.S.C. § 1915(a) is properly granted only when the plaintiff has demonstrated poverty and has presented a claim that is not factually or legally frivolous within the definition of § 1915(e)(2)(B).*fn1 O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Thus, the court "may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Id. (quoting Reece v. Washington, 310 F.2d 139, 140 (9th Cir. 1962); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir.), cert. denied, 382 U.S. 896 (1965)). An in forma pauperis complaint is frivolous if it has "no arguable basis in fact or law." O'Loughlin, 920 F.2d at 617; Tripati, 821 F.2d at 1379; Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984).
The Supreme Court holds that dismissal prior to service under 28 U.S.C. § 1915(e)(2)(B) is appropriate where no legal interest is implicated, i.e., the claim is premised on a meritless legal theory, or clearly lacking any factual basis. Neitzke v. Williams, 490 U.S. 319, 324 (1989). Section 1915(e)(2)(B) accords judges the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless. Denton v. Hernandez, 504 U.S. 25, 34 (1992). Because a dismissal pursuant to § 1915(e)(2)(B) is not a dismissal on the merits, but rather an exercise of the court's discretion under the in forma pauperis statute, the dismissal does not prejudice the filing of a paid complaint making the same allegations. Id.
In his form civil rights complaint, Plaintiff's only allegation is that the "Federal Bureau of Prisons clearly violated title 18 U.S.C. § 3624(c) and discriminating [sic] against me by denying me half-way-house and the reasons used to deny me half-way-house placement." Plaintiff attaches a document indicating that he has filed a tort claim with the Federal Bureau of Prisons (BOP) which was denied on July 25, 2005. Plaintiff requests monetary damages and an injunction that the BOP pull its contract with "C.C.C," apparently referring to a Community Corrections Center. In his application to proceed in forma pauperis, Plaintiff states that he was released from federal prison on May 24, 2005.
A private right of action may be implied from the Constitution itself for allegations of constitutional violations made against federal employees or their agents. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392-97 (1971). Absent a waiver of sovereign immunity, the Bivens remedy exists solely against individual federal officials, not against the United States. Kreines v. United States, 33 F.3d 1105, 1109 (9th Cir. 1994); Thomas-Lazear v. FBI, 851 F.2d 1202, 1207 (9th Cir. 1988). A Bivens action therefore "can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). Because the purpose of Bivens is to deter the individual officer, the Bivens remedy does not extend to actions against federal agencies, even where individual officers are protected by qualified immunity. FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) . Bivens liability requires proof of direct personal responsibility. Pellegrino v. United States, 73 F.3d 934, 936 (9th Cir. 1996). A theory of respondeat superior, that a superior is liable because of a subordinate's acts, is not applicable in a Bivens action. Id.; Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991). Bivens liability may be imposed, however, when a supervisor participated or acquiesced in the alleged constitutional deprivations. Jasinski v. Adams, 781 F.2d 843, 848 (11th Cir. 1986).
The Prison Litigation Reform Act of 1995 (PLRA) amended 42 U.S.C. § 1997e to provide, "No 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." 42 U.S.C. § 1997e(a). A federal prisoner accordingly must exhaust all available administrative remedies with the BOP before filing a Bivens claim in federal court. Porter v. Nussle, 534 U.S. 516, 524-25 (2002) (holding that revised § 1997e(a) applies to Bivens actions).
The Court interprets Plaintiff's complaint as alleging two constitutional claims that his rights under the Due Process Clause and the Equal Protection Clause were violated.
The Due Process Clause of the Fourteenth Amendment protects individuals against governmental deprivations of "life, liberty or property," as those words have been interpreted and given meaning over the life of our republic, without due process of law. Board of Regents v. Roth, 408 U.S. 564, 570-71 (1972); Mullins v. Oregon, 57 F.3d 789, 795 (9th Cir. 1995). The touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness (i.e., denial of procedural due process guarantees) or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective (i.e., denial of substantive due process guarantees). County of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998).
In Lyle v. Sivley, 805 F. Supp. 755, 759 (D. Ariz. 1992), the court addressed whether the denial of a placement at a CCC was a deprivation of a constitutionally protected liberty interest without due process of law. The court noted that a liberty interest may arise from the Due Process Clause itself, or from a statute, rule or regulation. Id. at 760. Relying on the Supreme Court's ruling in Hewitt v. Helms, 459 U.S. 460, 467 & n.7 (1983), that the transfer of an inmate to a more restrictive environment does not violate a liberty interest, even where severe hardship to the prisoner results, the court held that the Due Process Clause does not give rise to a liberty interest in pre-release treatment. Id. (citing Bedea v. Cox, 931 F.2d 573, 576 (9th Cir. 1991) (Hall, J. concurring and dissenting) prison official's decision not to transfer prisoner to less restrictive environment does not affect a constitutional liberty interest).
In regard to whether a statute creates a liberty interest, the Lyle court noted that the inquiry is whether the law places substantive limits on official discretion and that a protected liberty interest has been found where the statutory language contains explicitly mandatory language. Id. at 761 (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983); Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 463-64 (1989)).
Title 18 U.S.C. § 3624(c) states: The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable ...