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Michael Donawa v. Officer Mia

August 8, 2012

MICHAEL DONAWA,
PLAINTIFF,
v.
OFFICER MIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM AND ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND

I. INTRODUCTION

On November 3, 2011, plaintiff Michael Donawa, a federal prisoner proceeding pro se, filed a civil rights complaint in the Middle District of Florida pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). On May 30, 2012, after the case was transferred to the Central District of California, this Court dismissed the Complaint with leave to amend due to various deficiencies in pleading. Plaintiff filed a First Amended Complaint ("FAC") on July 12, 2012. For the reasons stated below, the FAC is dismissed with leave to amend.*fn1

Congress mandates that district courts initially screen civil complaints filed by a prisoner seeking redress from a governmental entity or employee. 28 U.S.C. § 1915A(a). This Court may dismiss such a complaint, or any portions thereof, before service of process if the Court concludes that the complaint (1) is frivolous or malicious, (2) fails to state a claim upon which relief can be granted, or (3) seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2); see also Lopez v. Smith, 203 F.3d 1122, 1126-27 & n.7 (9th Cir. 2000) (en banc).

II. ALLEGATIONS OF THE FIRST AMENDED COMPLAINT

Plaintiff names as Defendants three employees of the United States Penitentiary at Victorville in their individual capacities: (1) Warden J.L. Norwood; (2)Captain Brown; and Officer Mia (3)(collectively "Defendants"). (FAC at 3-4). The FAC also names the American Federation of Government Employees ("AFGE"), a labor union representing federal employees within the Federal Bureau of Prisons ("BOP"), in its "official and individual capacity." (Id. at 5).

Plaintiff alleges that during an inspection, Defendant Mia "grabbed the Plaintiff's testicles through his pants with enough excessive force to evoke an involuntary reaction that caused the Plaintiff's legs to buckle." (Id. at 7). Plaintiff alleges the pain continued through the next day. (Id.). After the incident, "defendant Mia went to her union stewart [sic] seeking to have the plaintiff removed from the scene in order to harass and intimidate, and the defendant ("AFGE") inlisted [sic] a squad of officers to conduct a harassment campaign against the plaintiff in excessive cell and body searches." (Id. at 9). Captain Brown and Warden Norwood ordered that Plaintiff be moved to the Special Housing Unit ("SHU"), where he was subjected "to a series of cell rotation, excessive light illumination and sleep deprivation," according to Defendants' "unlawful master agreement." (Id. at 10). Plaintiff also alleges that all Defendants met and organized Plaintiff's removal from Victorville Penitentiary to Coleman Federal Penitentiary, where he is currently housed. (Id. at 3, 10).

Plaintiff seeks $25,000 in monetary damages and $25,000 in punitive damages from each Defendant. (Id. at 11). Plaintiff also requests "[d]issolution of the collective bargaining agreement between [the AFGE] and [the BOP] mandating that Federal Employee rights be given any and all preferential treatment over inmate rights." (Id.).

III. DISCUSSION

Pursuant to 28 U.S.C. § 1915A(b), the Court must dismiss Plaintiff's FAC due to defects in pleading. Pro se litigants in civil rights cases, however, must be given leave to amend their complaints unless it is absolutely clear that the deficiencies cannot be cured by amendment. See Lopez, 203 F.3d at 1128-29. Accordingly, the Court grants Plaintiff leave to amend, as indicated below.

A. The American Federal Government Employees Union Local Is Not A Proper Defendant

To the extent that Plaintiff is attempting to sue or seek relief from the AFGE, the FAC is defective because a civil rights action against a federal defendant under Bivens may be brought only against the offending individual officer. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001); id. at 70-71 (explaining that because the "purpose of Bivens is to deter individual federal officers from committing constitutional violations," the "deterrent effects of the Bivens remedy would be lost" if the Court "were to imply a damages action directly" against agencies). As a labor union, the AFGE is not an individual officer or federal employee, as Plaintiff himself recognizes. (FAC at 5). Accordingly, the AFGE is an improper defendant in a Bivens action. In any amended complaint, to the extent that Plaintiff asserts a constitutional civil rights claim, Plaintiff may not name as a Defendant or seek relief from the AFGE.

B. The FAC Fails To Allege Sufficient Facts To State A Claim For Conspiracy

Plaintiff alleges a conspiracy among Defendants to violate his civil rights, although the nature of the conspiracy, and even the identity of its participants and their specific involvement, is not clear. (FAC at 2-4, 9-10). "To state a cause of action [for conspiracy to interfere with civil rights], a complaint must allege (1) a conspiracy, (2) to deprive any person or a class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, (3) an act by one of the conspirators in furtherance of the conspiracy, and (4) a personal injury, property damage or a deprivation of any right or privilege of a citizen of the United States." Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir. 1980); see also 42 U.S.C. ยง 1985. However, "[t]hreadbare recitals of the ...


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