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Steven D. Kiderlen v. Pat Kane

April 17, 2013

STEVEN D. KIDERLEN,
PLAINTIFF,
v.
PAT KANE, ET. AL, DEFENDANTS.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DIMISSING THE COMPLAINT WITH LEAVE TO AMEND (Doc. 1)

Plaintiff Steven D. Kiderlen ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)("Bivens action"). Plaintiff has consented to proceed before the Magistrate Judge. (Doc. 7). Pending before the Court is Plaintiff's complaint filed on November 23, 2011. (Doc. 1).*fn1 The Court now screens the complaint and for the reasons set forth below, DISMISSES the complaint without prejudice and Plaintiff is GRANTED leave to amend Claims 11, 13, 14, 15, 16, 18, 19 and the "Supplemental Civil Rights Complaint" ONLY.

I. SCREENING REQUIREMENT

Under 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a case in which the plaintiff proceeds 3 in forma pauperis if the court determines that the case "fails to state a claim on which relief may be 4 granted" or is "frivolous." A claim is frivolous "when the facts alleged rise to the level of the 5 irrational or the wholly incredible, whether or not there are judicially noticeable facts available to 6 contradict them." Denton v. Hernandez, 504 U.S. 25, 32-33 (1992). 7

II. PLEADING STANDARDS

A.Fed. R. Civ. P. 8(a)

The Federal Rules of Civil Procedure set forth the general rules for pleading complaints. A pleading stating a claim for relief must include a statement affirming the court's jurisdiction, "a short and plain statement of the claim showing the pleader is entitled to relief; and . . . a demand for the relief sought, which may include relief in the alternative or different types of relief." Fed. R. Civ. P. 8(a). The Federal Rules adopt a flexible pleading policy, and pro sepleadings are held to "less stringent standards" than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 521-21 (1972).

A complaint must give fair notice and state the elements of the plaintiff's claim in a plain and succinct manner. Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The purpose of the complaint is to give the defendant fair notice of the claims against him, and the grounds upon which the complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

Rule 8 does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted). Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). The Court clarified further, [A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Citation]. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation]. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. [Citation].

Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'

Iqbal, 129 S. Ct. at 1949 (citations omitted). When factual allegations are well-pled, a court should 7 assume their truth and determine whether the facts would make the plaintiff entitled to relief; 8 conclusions in the pleading are not entitled to the same assumption of truth. Id. The Court may grant 9 leave to amend a complaint to the extent that deficiencies of the complaint can be cured by an amendment. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir. 2000) (en banc).

B.Bivens Actions

To state a claim under Bivens, a plaintiff must indicate: 1) that a constitutional right was violated and 2) that a federal actor caused the violation. Boney v. Valline, 597 F. Supp. 2d 1167, 1172 (D. Nev. 2009)(citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)). The causation requirement of 42 U.S.C. § 1983 and a Bivens action *fn2 is satisfied only if a plaintiff demonstrates that a defendant did an affirmative act, participated in another's affirmative act, or omitted to perform an act which he was legally required to do that caused the deprivation complained of. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir. 1981) (quoting Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. 1978)).

III. PLAINTIFF'S COMPLAINT

Plaintiff brings his 77-page Bivens action against 59 defendants, all of whom allegedly acted under color of federal law. (Doc. 1 at 2-3, 12). Plaintiff is a white male. Id. at 38. He is incarcerated for a crime involving children and indicates that he will encounter danger if he is placed in the general prison population. Id.

On February 19, 2012, Plaintiff felt threatened by other inmates while incarcerated United States Penitentiary -- Coleman I ("Coleman I") located in the State of Florida when another inmate read Plaintiff's charges aloud. Id at 13-16. Prison officials at Coleman I did not place Plaintiff into 2 protective custody. Id. at 13-15. 3

On a subsequent date,*fn3 Plaintiff was transferred to United States Penitentiary -- Terre Haute ("Terre Haute") in the State of Indiana. (Doc. 1 at 17). On September 23, 2010, Plaintiff requested 5 that he be placed in protective custody. Id. On October 7, 2013, another inmate assaulted Plaintiff. Id. 6 at 17-18. In November of 2010, Plaintiff was placed in a cell that contained moisture and mold. Id. at 7 21. Furthermore, prison officials smoked in Plaintiff's presence at Terre Haute. Id. at 23.

Finally, 8 Plaintiff alleges that other inmates were deliberately placed in his presence to intimidate him. Id. at 26-9 28.

From January 4-5, 2010, May 12-19, 2010, September 8-22, 2010, August 15-18, 2011, and October 23, 2011, Plaintiff was held at the Federal Transfer Center ("FTC") in Oklahoma City, Oklahoma. (Doc. 1 at 44-45). Plaintiff is a United States citizen. Id. at 45. Plaintiff believes that he was discriminated against at FTC because prison officials censored his mail on account of his citizenship status. Id.

On an undisclosed date, Plaintiff was transferred to United States Penitentiary -- Atwater ("Atwater") located in the State of California. See Id. at 28. Plaintiff provides the Court with a laundry list of grievances that occurred at Atwater in his complaint. Id. at 28-44 and 46-48. In essence, Plaintiff avers that prison officials solicited Plaintiff's cellmate to kill him, that he was denied postage stamps, that legal documents were taken from him, that he was denied prescription medication, and that the lights at Atwater caused him migraine headaches. Id. Additionally, Plaintiff indicates that he exhausted all remedies because he never received a response to his administrative complaints,*fn4 that his medications expired, and that he was given a rotten pear. Id. at 66-71.

III. DISCUSSION.

A.Plaintiff cannot maintain a Bivens action against any defendant in his or her official capacity.

A plaintiff may not sustain a Bivens action against any defendant in his or ...


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