Lopez-Rangel v. Copenhaver

          ORDER DISMISSING SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE

         Plaintiff Ismael Lopez-Rangel ("Plaintiff"), a former federal prisoner proceeding pro se and in forma pauperis, filed this civil action on July 28, 2014, 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.^[1]

         On January 22, 2015, the Court screened Plaintiff's complaint and dismissed it with leave to amend. Plaintiff filed a First Amended Complaint on March 2, 2015.

         This action was dismissed without prejudice on December 9, 2015, after Plaintiff was released and deported, but failed to keep the Court apprised of his current address. Plaintiff, who now resides in Mexico, filed a notice of change of address on January 21, 2016. The Court reopened this action on January 26, 2016.

         On January 29, 2016, the Court screened the First Amended Complaint and dismissed it with leave to amend.

         On April 26, 2016, after Plaintiff failed to file an amended complaint or otherwise contact the Court, the Court again dismissed the action without prejudice.

         On May 6, 2016, Plaintiff filed the instant Second Amended Complaint. Because Plaintiff was attempting to comply with Court orders and the possibility of mail delays given that he resides in Mexicon, the Court again vacated the judgment.

         In his Second Amended Complaint, Plaintiff names USP-Atwater Warden Copenhaver, Health Service Administrator Ms. Mettry, Nurse Franco, Doctors Franco, Grossman and Grimm, Physician's Assistant Wong and Counselor Gardea as Defendants.

         A. 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).

         Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. "Actions under [42 U.S.C.] § 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). 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 Van Strum, 940 F.2d at 409.

         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, 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.

         B. PLAINTIFF'S ALLEGATIONS

         Plaintiff has been released from federal custody and is currently residing in Mexico.

         The events at issue occurred while he was incarcerated at USP-Atwater.

         Plaintiff alleges that upon arrival at USP-Atwater, he contacted Health Services and requested medical assistance for an eye problem. Plaintiff told Health Services that he needed surgery for an eye infection. Medical "responded that infection that required surgery." ECF No. 20, at 9. Medical told him to submit a cop-out. Plaintiff submitted a cop-out, but was then told by Medical to submit a sick-call form. Plaintiff didn't understand because Defendant Dr. Franco told him to submit a cop-out, but Defendant Mettry of Health Services told him to submit a sick-call.

         Plaintiff told Defendant Gardea, his counselor, about his medical problems, but he never did anything to help.

         Plaintiff then went to Defendant Copenhaver, the Warden. He told Plaintiff that Defendant Mettry was going to look into Plaintiff's eye problem, but she never did.

         Plaintiff submitted another cop-out and Defendant Wong received it. However, seven or eight months passed before Plaintiff received his first eye surgery.

         Plaintiff contends that the surgery was the result of his notification that he was going to initiate a complaint against Medical.

         After his surgery, Plaintiff experienced intense pain, loss of sight, headaches, nausea and other painful symptoms. He requested medication and eye drops from Health Services, and Medical indicated that Plaintiff would be seen.

         Plaintiff followed Medical's orders and submitted a cop-out. He did not get a ...