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Langley v. Ballash

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


July 26, 2010

ALLEN LANGLEY, PLAINTIFF,
v.
R.J. BALLASH, DEFENDANT.

The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR CLERK TO MODIFY (ECF No. 25)

Plaintiff Allen Langley ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis in this Bivens action. Before the Court is Plaintiff request to modify his complaint [ECF No. 25]. Plaintiff first asks the Court to file his complaint as a Bivens action rather than a civil rights action pursuant to 18 U.S.C. § 1983. Plaintiff's action is already characterized as a Bivens action on the Court's docket. As such, Plaintiff's request is moot.

Plaintiff also asks the Court to strike his request for compensatory damages. Plaintiff's Complaint seeks $10,000 in compensatory damages for pain and suffering. (ECF No. 1 at 22.) However, Plaintiff admits that he does not allege that he suffered physical injury at the hands of the Defendant. (ECF No. 25.) Thus, as Plaintiff recognizes, he cannot recover for pain and suffering. See Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000).

Accordingly, Plaintiff's Motion for Clerk to Modify is GRANTED IN PART and DENIED IN PART. Plaintiff's request for compensatory damages for pain and suffering is STRICKEN from his Complaint. Pursuant to 28 U.S.C. § 1915A(a), in due course, the Court will screen the remaining claims in Plaintiff's Complaint as a Bivens action.

IT IS SO ORDERED.

20100726

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