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Blevins v. Iwuagwu

United States District Court, N.D. California

September 26, 2019

SHONDOLYN ROCHELLE BLEVINS, Plaintiff,
v.
CHARLESTON C. IWUAGWU, et al., Defendants.

          ORDER OF DISMISSAL

          Beth Labson Freeman United States District Judge.

         Plaintiff, 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.)

         DISCUSSION

         A. Standard of Review

         A 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).

         A “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).

         Although Plaintiff used a court form complaint for a 42 U.S.C. § 1983 action, she is a federal prisoner, (SAC[1] 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).

         To 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).

         B. Plaintiffs Claims

         Plaintiff 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 following:

• 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 ...

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