The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER RECOMMENDING DISMISSAL WITH PREJUDICE (ECF No. 40) PLAINTIFF'S OBJECTIONS, IF ANY, DUE IN THIRTY (30) DAYS SCREENING ORDER
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 (ECF No. 1) was screened and dismissed on December 2, 2011, with leave to amend, for failure to state a cognizable claim. (ECF No. 37.) Plaintiff's First Amended Complaint (ECF No. 40) 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 FIRST AMENDED COMPLAINT
H.A. Rios, Jr., Warden, United States Penitentiary, Atwater ("Atwater") is the sole Defendant in this action. Plaintiff alleges the following:
On June 22, 2010, a letter complying with every prerequisite necessary to be treated as legal mail arrived at Atwater. The letter was processed through the regular mail system and was "mistakenly delivered to the wrong [inmate]." (Compl. at 1, 2.) The letter discussed a sexual assault. The fact that Plaintiff had been involved in a sexual assault became known throughout the inmate population and, as a result, "Plaintiff suffered threats, embarrassment, lost sense of well-being, taunting, forced solitary confinement and a host of other fallout that eventually resulted in a broken right thumb." (Id. at 2.)
Warden Tamyra Jarvis authorized Plaintiff to be placed in full restraints for ten days because Plaintiff refused a cellmate. Plaintiff had an epileptic seizure on December 15, 2011, while he was in restraints and broke his "right cmc joint." (Id.)
"Warden H.A. Rios, Jr. has overseen and witnessed the entirety of this error and still will not admit that his staff was wrong." (Id. at 3.)
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 the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.
Warden Rios remains the only Defendant named in this action. Aside from being listed in the caption of the amended complaint, Plaintiff only names Rios once. Plaintiff alleges that the Warden was aware of the mail error and refused to admit his staff was wrong. (Compl. at 3.) The Court's previous screening order instructed Plaintiff that in order to sate a cognizable claim he must allege facts showing how the individually named defendants caused or personally participated in causing the constitutional harm alleged in the amended complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981): see also Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D. Idaho March 7, 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).
The sole allegation that Warden Rios "witnessed the [mail] error" is conclusory and insufficient to state a cognizable claim. The only reasonable conclusion the Court can come to is that Defendant is sued solely because of his position as Warden of the prison where Plaintiff was wronged. Plaintiff was previously instructed that 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 ...