The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF No. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS
Plaintiff Nathan Smith, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on August 9, 2010, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) On March 28, 2011, Plaintiff filed a Motion to Voluntarily Dismiss Eric H. Holder, Jr. as a defendant in this action. (ECF No. 33.) The Court granted Plaintiff's motion. (ECF No. 34.) Plaintiff's Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
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, malicious," or 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). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
III. SUMMARY OF COMPLAINT
Plaintiff has identified H.A. Rios, Jr., Warden, United States Penitentiary, Atwater ("Atwater") as the sole remaining Defendant in this action.
Plaintiff alleges the following:
On June 18, 2010, Plaintiff was sent a package of legal materials related to the rape of Plaintiff in prison. "The outside of the envelope clearly met every prerequisite of the [Bureau of Prisons] to be handled as legal mail." (Compl. at 3.) Nevertheless, Warden Rios allowed the envelope in question to be opened outside of Plaintiff's presence and the contents divulged to the inmate population. (Id.) Plaintiff filed an inmate appeal complaining of the handling of his legal mail. (Id. at 3, 6.) An investigation determined that the envelope at issue was not properly identified as legal mail. Plaintiff was invited to appeal Warden Rios' determination. (Id. at 7.)
As a result of the inmate population having learned of Plaintiff's rape, he has been the target of harassment. Plaintiff now fears for his life because the divulged information suggests that Plaintiff is a homosexual. (Id. at 4.)
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)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than ...