The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER DISMISSING COMPLAINT, WITH LEAVE TO FILE AMENDED COMPLAINT WITHIN THIRTY DAYS (Doc. 1) RESPONSE DUE WITHIN THIRTY DAYS
Plaintiff Michael Cassini ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff filed this action on May 8, 2008.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
"Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions," none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002); Fed. R. Civ. P. 8(a). Pursuant to Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a). "Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512. However, "the liberal pleading standard . . . applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
A. Summary of the Complaint
Plaintiff is a federal prisoner currently housed at the Federal Correctional Institution in Terminal Island, California. The events giving rise to the complaint occurred while Plaintiff was incarcerated at Taft Correctional Institution (TCI) in Taft, California. TCI is a federal correctional facility operated by the GEO Group, Inc., pursuant to a contract between GEO and the Federal Bureau of Prisons (BOP). Plaintiff raises a Fifth Amendment equal protection challenge to a joint TCI-BOP policy that limits the number of administrative appeals a prisoner at TCI may file after receiving a disciplinary infraction.
The Code of Federal Regulations sets forth disciplinary procedures for federal prisoners under the care and control of the BOP. See 28 C.F.R. § 541 (2008).*fn1 Each federal correctional facility must establish a Unit Discipline Committee (UDC), comprised of "one or more institution staff members delegated by the Warden the authority and duty to hold an initial hearing upon completion of the investigation concerning alleged charge(s) of inmate misconduct." 28 C.F.R. § 541.2 (2008). The UDC may impose minor dispositions and sanctions.*fn2
The Code establishes three levels of administrative review of disciplinary action taken against federal prisoners. 28 C.F.R. §§ 542.10-542.15 (2008). Each institution's warden, the BOP Regional Director, and the BOP General Counsel are responsible for the implementation and operation of the Administrative Remedy Program at the institutional, regional, and Central Office levels, respectively.
28 C.F.R. § 542.11(a) (2008). The first level of administrative review, referred to as BP-9, allows prisoners to appeal UDC decisions to the warden of the institution.*fn3 28 C.F.R. § 542.14 (2008). A prisoner who is not satisfied with the warden's response may submit a second appeal, referred to as a BP--10, to the appropriate BOP Regional Director for the region in which the correctional facility is located. 28 C.F.R. § 542.15(a) (2008). Finally, an inmate who is not satisfied with the Regional Director's response may submit a BP-11 appeal to the BOP's General Counsel. Id.
According to the complaint, Plaintiff was improperly found guilty of a UDC infraction while he was incarcerated at TCI. Plaintiff appealed the infraction, and the Warden denied Plaintiff's appeal at the BP-9 level.*fn4 Plaintiff then attempted to filed a BP-10 appeal with the appropriate Regional Director for TCI , the Privitization Management Branch (PMB). PMB rejected Plaintiff's BP-10 appeal on October 27, 2006, stating: "UDC action is not appealable to the BOP. You must use the grievance procedures at your facility." Complaint, p.8: 27-28. The complaint states that, pursuant to a joint GEO and BOP policy, inmates housed at TCI are denied BP-10 and BP-11 level administrative review. Plaintiff alleges that due to procedural and evidentiary deficiencies at his initial UDC hearing, access to BP-10 and BP-11 review would have resulted in the dismissal of his UDC infraction, and that the UDC infraction has adversely affected his custody status and caused him to lose institutional privileges. Plaintiff claims that he is similarly situated with other prisoners under the control of the BOP and that there is no rational basis for denying him access to the BP-10 and BP-11 administrative remedies that are afforded to other federal prisoners.
The complaint names Defendants in both their individual and official capacities. To the extent Plaintiff seeks to sue Defendants in their official capacities for monetary damages, such claims are not cognizable. "[N]o Bivens-like cause of action is available against federal agencies or federal agents sued in their official capacities." Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008) ...