United States District Court, N.D. California
ORDER OF SERVICE; ORDER DISMISSING CERTAIN
HAYWOOD S. GILLIAM, JR UNITED STATES DISTRICT JUDGE
Joyce Marie Simmons, a federal prisoner, filed this pro
se civil rights action under Bivens v. Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), against Federal Correctional Institution in Dublin,
California (“FCI-Dublin”) Unit Manager Kimberly
Luke for allegedly violating her constitutional rights. Her
amended complaint (Dkt. No. 11) is now before the Court for
review under 28 U.S.C. § 1915A.
Standard of Review
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity, or from an officer or an employee of a governmental
entity. 28 U.S.C. § 1915A(a). In its review, the Court
must identify any cognizable claims, and dismiss any claims
which are frivolous, malicious, fail to state a claim upon
which relief may be granted, or seek monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915A(b) (1), (2). Pro se pleadings
must be liberally construed. Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2).
“Specific facts are not necessary; the statement need
only ‘give the defendant fair notice of what the . . .
. claim is and the grounds upon which it rests.'”
Erickson v. Pardus, 551 U.S. 89, 93 (2007)
(citations omitted). “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations omitted). A complaint must proffer
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 570.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated; and
(2) that the violation was committed by a person acting under
the color of state law. West v. Atkins, 487 U.S. 42,
amended complaint makes the following allegations. On or
about September 22, 2017, Defendant Unit Manager Kimberly
Luke issued a khaki-colored dress to Plaintiff even though
Plaintiff is housed at Dublin Satellite Prison Camp, where
inmates wear blue uniforms. Khaki-colored uniforms are worn
by inmates housed at the prison facility adjacent to the
Dublin Satellite Prison Camp. Plaintiff was informed by an
officer that if she had gone outside with the khaki jumper
dress on, perimeter officers could have fired on her thinking
she was from the other prison camp and attempting to escape.
Defendant Luke knew of and disregarded this risk to
Plaintiff's safety, in violation of the Eighth
Amendment's prohibition on exposing inmates to a risk to
their safety. Defendant Luke's issuance of the
khaki-colored jumper caused Plaintiff to suffer mental and
emotional anguish. Plaintiff seeks compensatory, nominal and
punitive damages. Dkt. No. 11 at 3-6.
case of Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 396 (1971),
“established that the victims of a constitutional
violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of
any statute conferring such a right.” Carlson v.
Green, 446 U.S. 14, 18 (1980). The Supreme Court has
recognized a Bivens claim in only three cases:
Bivens (Fourth Amendment unreasonable search and
seizure); Davis v. Passman, 442 U.S. 228, 248-49
(1979) (Fifth Amendment Due Process Clause gender
discrimination); and Carlson v. Green, 446 U.S. 14,
17-19 (1980) (Eighth Amendment inadequate medical treatment).
“These three cases-Bivens, Davis, and
Carlson- represent the only instances in which the
[Supreme] Court has approved of an implied damages remedy
under the Constitution itself.” Ziglar v.
Abbasi, 137 S.Ct. 1843, 1855 (2017). The Supreme Court
has made clear that “expanding the Bivens
remedy is now a ‘disfavored' judicial activity,
” and such a remedy will not be available if there are
“‘special factors' counseling hesitation in
the absence of affirmative action by Congress.”
Id. at 1848 (citation omitted). The only relief
available in a Bivens action is an award of money
damages for injuries caused by a defendant acting in his or
her individual capacity. Ministerio Roca Solida v.
McKelvey, 820 F.3d 1090, 1093-96 (9th Cir. 2016).
Liberally construed, the complaint states a viable Eighth
Amendment claim under Ziglar against Defendant Luke.
foregoing reasons, the Court orders as follows.
Court finds that amended complaint states a cognizable Eighth
Amendment claim ...