United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel and in
forma pauperis in an action brought under 42 U.S.C.
§ 1983. The court screened plaintiff's original
complaint, deemed it deficient, and dismissed it with leave
to amend. ECF No. 12. He has filed an amended complaint (ECF
No. 13) which the court screens below.
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 screening obligation applies where a complaint is removed
from state court. See, e.g., Morris v.
Horel, 2008 U.S. Dist. LEXIS 56938, 2008 WL 686874, *1
(N.D. Cal., March 12, 2008) (screening civil rights action
removed from state court pursuant to Section 1915A). The
court must dismiss a complaint or portion thereof if the
prisoner has raised claims that are legally “frivolous
or malicious, ” 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. §
“is [legally] frivolous where it lacks an arguable
basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Franklin v.
Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).
“[A] judge may dismiss [in forma pauperis] claims which
are based on indisputably meritless legal theories or whose
factual contentions are clearly baseless.” Jackson
v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (citation
and internal quotations omitted), superseded by statute
on other grounds as stated in Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000); Neitzke, 490 U.S. at
327. The critical inquiry is whether a constitutional claim,
however inartfully pleaded, has an arguable legal and factual
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,' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (alteration in
original) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). However, in order to survive dismissal for failure
to state a claim, a complaint must contain more than “a
formulaic recitation of the elements of a cause of
action;” it must contain factual allegations sufficient
“to raise a right to relief above the speculative
level.” Id. (citations omitted). “[T]he
pleading must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action.” Id.
(alteration in original) (quoting 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure
1216 (3d ed. 2004)).
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 Atl. Corp., 550 U.S.
at 570). “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. (citing
Bell Atl. Corp., 550 U.S. at 556). In reviewing a
complaint under this standard, the court must accept as true
the allegations of the complaint in question, Hospital
Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976),
as well as construe the pleading in the light most favorable
to the plaintiff and resolve all doubts in the
plaintiff's favor, Jenkins v. McKeithen, 395
U.S. 411, 421 (1969).
amended complaint names only a singled defendant - The
National Crime Information Center (“NCIC”). He
claims that the NCIC is continuing to erroneously report two
of his convictions that have since been expunged. ECF No. 13
at 3. But the NCIC is not a proper defendant in a section
1983 suit. As an initial matter, the Supreme Court has held
that federal agencies are not amenable to suit under
Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1999). See Corrs. Servs. Corp. v.
Malesko, 534 U.S. 61, 69-70 (2001). And the NCIC is not,
strictly speaking, an agency at all. Rather, it is a data
system administered by the Federal Bureau of Investigation.
See Case v. Kitsap County Sheriff's Dept., 249
F.3d 921, 923 (9th Cir. 2001) (“That warrant was
entered into the National Crime Information Center computer
system (“NCIC”), which is a national criminal
records data system administered by the Federal Bureau of
Investigation. NCIC contains criminal history information,
including outstanding arrest warrants, and is available to
police departments nationwide.”) (internal citations
omitted). It is well settled that, “[t]o state a
Bivens claim, the plaintiff must allege facts
showing that a person acting under color of federal
law deprived the plaintiff of a right, privilege, or immunity
secured by the United States Constitution.”
Henthorn v. Turrentine, 1993 U.S. App. LEXIS 21743,
* 3 (9th Cir. 1993) (unpublished). A data system is not a
“person” within the meaning of section 1983 or
foregoing reasons, this claim must be dismissed.
court has already afforded plaintiff one chance to file an
amended complaint and, having done so, he is no closer to
stating a cognizable claim. Consequently, it declines to
offer him further opportunity to amend. See McGlinchy v.
Shell Chemical Co., 845 F.2d 802, 809-10 (9th Cir. 1988)
(“Repeated failure to cure deficiencies by amendments