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Vu v. Monique

United States District Court, E.D. California

June 24, 2014

MAI THI VU, Plaintiff,
v.
JACQUES MONIQUE, Defendant.

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

MICHAEL J. SENG, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983.

Her complaint is before the Court for screening.

I. 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 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).

II. PLEADING STANDARD

Section 1983 "provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States." Wilder v. Virginia Hosp. Ass'n , 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins , 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty. , 811 F.2d 1243, 1245 (9th Cir. 1987).

Plaintiff's claims against Defendant are not cognizable under § 1983 because Defendant was acting under color of federal law, rather than state law. However, pro se complaints are liberally construed, Estelle v. Gamble , 429 U.S. 97, 106 (1976), and the Court will treat Plaintiff's complaint as an attempt to state a claim under Bivens v. Six Unknown Named Agents , 403 U.S. 388 (1971). "Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn , 940 F.2d 406, 409 (9th Cir. 1991). Thus, to state a claim under Bivens, 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 id.

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. lqbal , 556 U.S. 662, 678 (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 to relief 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 677-78.

III. PLAINTIFF'S ALLEGATIONS

The incidents at issue in Plaintiff's Complaint occurred during her incarceration at Central California Women's Facility ("CCWF"). Plaintiff names Jacques Monique, IEA at United States Immigration & Customs Enforcement ("ICE"), as Defendant.

Plaintiff alleges that Defendant filed an unwarranted immigration detainer on Plaintiff, a lawful permanent resident. Because of the detainer, Plaintiff is deprived of the opportunity to participate in otherwise available programs at CCWF. Plaintiff had no opportunity to challenge the detainer.

Plaintiff argues that Defendant's actions violated her rights under the Due Process and Equal Protection Clauses of ...


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