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Antonio Maldonado v. Benov

December 16, 2011

ANTONIO MALDONADO,
PLAINTIFF,
v.
BENOV, ET AL.,
DEFENDANTS.



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

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) AMENDED COMPLAINT DUE WITHIN THIRTY (30) DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

On December 16, 2010, Plaintiff Antonio Maldonado, a federal prisoner proceeding pro se and in forma pauperis, filed this civil rights 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. (ECF No. 1.) Plaintiff is housed at the Taft Correctional Institution ("Taft"). Plaintiff's Complaint is 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).

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, 556 U.S. 662, 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.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949--50.

III. PLAINTIFF'S CLAIMS

Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. Bivens, 403 U.S. at 397. To state a claim, a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor. See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (42 U.S.C. § 1983 and Bivens actions are "identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.")

Plaintiff identifies as Defendants Warden Benov, Medical Director Watts, and treating physician Dr. Burnett Rucker. Plaintiff alleges that these Defendants violated his Eighth Amendment rights by failing to provide him proper medical care. Plaintiff seeks five hundred thousand dollars ($500,000) in damages. (Compl., p. 3, ECF No. 1.)

Plaintiff alleges that he has a reducible inguinal hernia causing "horrible pain and that he is unable to live life in prison like others or live normal activities." (Id. at 3.) Plaintiff contends he is unable to do prison work because of his hernia. (Id. at 8.) He has repeatedly requested surgery for his hernia. (Id. at 3.) His requests were denied. (Id. at 3.) Plaintiff was told by Defendant Rucker that Rucker "can't do any surgery at [T]aft,". Defendant Rucker appears to indicate that the hernia "was no danger...." (Id. at 3.)

A. Bivens Linkage Requirement

Plaintiff must allege facts showing how the individually named Defendants caused or personally participated in causing the constitutional harm alleged. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981); see also Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D. Idaho, 1996) ("[A] person deprives another of a constitutional right, within the meaning of Bivens, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation complained of") (citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)). A defendant cannot be held liable solely on the basis of supervisory responsibility or position. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 n.58 (1978); see also Padway v. Palches, 665 F.2d 965, 968 (9th Cir. 1982); see also Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1990) ("respondeat superior" theory of liability inapplicable to Bivens actions).

Plaintiff alleges that Dr. Rucker denied his request for surgery. (Compl. at 3.) He alleges Defendant Watts responded to his request by telling Plaintiff that "(he) ...


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