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Gordon v. Banks

December 15, 2009


The opinion of the court was delivered by: Stephen V. Wilson United States District Judge


For the reasons discussed below, the Complaint is dismissed with leave to amend. See 28 U.S.C. § 1915(e)(2)(B).


On October 28, 2009, Plaintiff, a federal prisoner, filed a civil rights Complaint pursuant to 42 U.S.C. section 1983 against prison officials at Plaintiff's place of incarceration, the Federal Correctional Institution Victorville at Adelanto, California ("FCI Victorville"). Defendants are: (1) Warden Tereser A. Banks; (2) Captain Tellez; (3) Special Housing Unit Lieutenant J. Grimsley; and (4) Senior Officers D. Walker and M. Caston. Plaintiff sues all Defendants in their individual and official capacities.

Plaintiff alleges that, at approximately 11:25 a.m. on October 11, 2009, in the Special Housing Unit ("SHU"), Defendant Caston "put an unknown white pill" in Plaintiff's food, thereby allegedly committing "attempted murder" (Complaint, p. 4). The pill allegedly made Plaintiff ill and caused Plaintiff to require medical attention (id.).

Plaintiff allegedly informed Defendant Tellez about "the serious crime of criminal misconduct by staff members," but Tellez allegedly stated that he was not going to intervene because it was not necessary (id., attachment to p. 5, p. 2). Defendant Grimsley allegedly failed to intervene, and allowed his staff to "continue to committ [sic] criminal misconduct under his supervision" (id., attachment to p. 5, p. 3). Defendant Walker allegedly told Plaintiff that he and his co-worker were going to "come up with a better plan to poison [Plaintiff]" (id., attachment to p. 5, p. 4). Plaintiff allegedly submitted several written complaints to Warden Banks, who assertedly refused to investigate the complaints in a proper manner (id., attachment to p. 5, p. 1).

Assertedly as a result of ingesting the pill, Plaintiff allegedly suffered a weakening of his immune system, alteration in his sense of taste, and an adverse effect on his "cognitive thinking and emotional stability," which assertedly causes Plaintiff to suffer paranoia and depression (id.). These problems allegedly have led Plaintiff to interact with family and loved ones "in foreign ways" and to experience thoughts of suicide and hopelessness (id.). Plaintiff alleges violations of the Eighth Amendment and the Equal Protection Clause (Complaint, p. 5).

Plaintiff alleges that Warden Banks is liable because the Warden oversees "an administration that failed to perform its duties" (Complaint, p. 3). Warden Banks allegedly permitted unlawful conditions to exist, engaged in conspiracy, refused to allow a proper investigation, and acted as an "accessory" (id., p. 5 & attachment to p. 5, p. 1). Defendant Tellez allegedly "neglect[ed] his duty that caused a breach of safety" (id., p. 3). Tellez allegedly engaged in conspiracy and breached a contract and duty to Plaintiff by failing to intervene and prevent "a serious crime of criminal misconduct by staff members" (Complaint, attachment to p. 5, p. 2). Defendant Grimsley allegedly permitted civil and human rights violations to occur under his supervision (id.). Defendant Walker allegedly conspired to commit "a serious crime of criminal misconduct" (id., p. 4).

Plaintiff seeks damages in the total sum of twenty million dollars ($20,000,000), and an injunction: (1) restraining prison officials from subjecting Plaintiff to retaliation "as a means of vengence [sic]"; (2) requiring an outside investigation; (3) requiring that Defendants be put on leave of absence without pay until the conclusion of an investigation; and (4) placing any transfers of Plaintiff on hold until the conclusion of an investigation (Complaint, attachment to p. 6). Plaintiff indicates "that an in camera meeting could possibly bring resolution to each complaint, on an administrative level, which could perhaps, lead to negotiable compinsation [sic] outside of court" (id.).


Although the Complaint purports to allege claims pursuant to 42 U.S.C. section 1983, section 1983 provides no remedy for the actions of federal officials acting under color of federal law. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). The Court construes the Complaint to attempt to allege claims under the authority of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens").*fn1


To the extent Plaintiff sues federal prison officials in their official capacities, the action must be construed as one against the federal government. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985) (suit against IRS employees in their official capacities "essentially a suit against the United States"; citation omitted). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1993). The United States has not waived sovereign immunity with respect to constitutional claims for damages. Rivera v. United States, 924 F.2d 948, 951 (9th Cir. 1991); Thomas-Lazear v. Federal Bureau of Investigation, 851 F.2d 1202, 1207 (9th Cir. 1988). The doctrine of sovereign immunity bars Plaintiff's constitutional claims for damages against any federal prison official in his or her official capacity. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir.), cert. denied, 522 U.S. 815 (1997) (doctrine of sovereign immunity extends to federal employees in their official capacities).

Because Plaintiff may not proceed against Defendants in the official capacities, Plaintiff's Complaint is dismissed with prejudice as to these claims. Plaintiff may not amend his Complaint to ...

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