United States District Court, N.D. California
ORDER OF DISMISSAL
Labson Freeman United States District Judge.
a federal prisoner, filed the instant pro se civil
rights action against officials at Federal Correctional
Institute in Dublin (“FCI”), where she was
formerly incarcerated. After an initial screening, the Court
dismissed the complaint with leave to amend to correct
several deficiencies. (Docket No. 12.) Plaintiff's
amended complaint was again dismissed with leave to file a
second amended complaint. (Docket No. 14.) Plaintiff filed a
second amended complaint. (Docket No. 18.)
Standard of Review
federal court must conduct a preliminary screening in any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.
See 28 U.S.C. § 1915A(a). In its review, the
court must identify any cognizable claims and dismiss any
claims that 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 Id.
§ 1915A(b)(1), (2). Pro se pleadings must, however, be
liberally construed. See Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988);
Jackson v. Carey, 535 F.3d 750, 757 (9th Cir. 2003).
“complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“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.” Id. (quoting
Twombly, 550 U.S. at 556).
Plaintiff used a court form complaint for a 42 U.S.C. §
1983 action, she is a federal prisoner, (SAC at 1), and this
action challenges the actions of federal employees at
FCI-Dublin and not actions under color of state law. See
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.
388, 392-97 (1971) (recognizing a private right of action for
damages for constitutional violations by federal employees or
their agents). Accordingly, the Court will construe the
second amended complaint as a Bivens action, and not
as a §1983 action, consistent with the Ninth
Circuit's liberal construction requirements. See
Jackson, 353 F.3d at 757; see also Paige v. Geo
Group, Oakland Center, No. 17-cv-06116-HSG (PR), slip
op. at 2 (N.D. Cal. Feb. 27, 2018) (construing section 1983
action as a Bivens claim in complaint by pro se
prisoner); Lloyd v. Corrections Corp. of America,
855 F.Supp. 221, 222 (W.D. Tenn. 1994) (same).
state a Bivens claim, a plaintiff must allege that
the defendant violated a federal constitutional right while
acting under color of federal law. See Martin v.
Sias, 88 F.3d 774, 775 (9th Cir. 1996) (citing Van
Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)).
Except for the replacement of a state actor by a federal
actor, actions under 42 U.S.C. § 1983 and
Bivens are identical. Id.; see also
Wilson v. Layne, 526 U.S. 603, 609 (1999) (qualified
immunity analysis same under Bivens and §
1983). Accordingly, when reviewing a Bivens action
for which there is no case on point, § 1983 cases may be
applied by analogy. See, e.g., Tekle v. United
States, 511 F.3d 839, 844 (9th Cir. 2007) (applying
§ 1983 cases to analysis of Bivens claim that
officers used excessive force under Fourth Amendment, and of
qualified immunity defense to same claim).
names the following as Defendants: Warden Charleston C.
Iwuagwu, Associate Warden LeMasters, Associate Warden T.
Mischel, Interim Warden R. L. Rhodes, Lt. Davis, the United
States, Case Manager Mr. Shaffey, Unit Manager Mrs. Moore,
Staff Representative Mr. Miller, and Counselor Killigran.
(Docket No. 18 at 2-3.) The allegations include the
• Plaintiff claims that in retaliation for filing
complaints against another inmate, Jacqueline Gentle, with
whom she had ongoing disputes, Defendant LeMaster, among
other prison staff, refused to intervene in the matter
“with the specific intent to manufacture a reason to
transfer me from FCI-Dublin.” (Docket No. 18 at 5.)
• Plaintiff claims that on May 29, 2017, after a verbal
disagreement in the laundry room, Inmate Gentle attacked her,
causing Plaintiff to suffer a contusion to the left side of
her face. (Id. at 5-6.)
• Plaintiff was issued an incident report for “201
fighting with another person, ” (Id. at 6.) At
her request, Plaintiff was assigned a staff representative,
Defendant Miller, in preparation of the hearing.
(Id.) However, Defendant Miller never appeared for
the hearing, and a letter he wrote was “allowed to
stand in his place.” (Id.) Plaintiff claims
she was denied witnesses and access to surveillance evidence.
(Id.) Although Inmate Gentle was released back to
general population, Plaintiff was transferred to another
institution. (Id. at 6-7.)
• Plaintiff was granted a re-hearing, during which the
incident report was dismissed, and good conduct time