United States District Court, E.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT WITHOUT
LEAVE TO AMEND
L. BECK UNITED STATES MAGISTRATE JUDGE
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.
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.
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
January 29, 2016, the Court screened the First Amended
Complaint and dismissed it with leave to amend.
April 26, 2016, after Plaintiff failed to file an amended
complaint or otherwise contact the Court, the Court again
dismissed the action without prejudice.
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.
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.
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. §
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.
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.
has been released from federal custody and is currently
residing in Mexico.
events at issue occurred while he was incarcerated at
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.
told Defendant Gardea, his counselor, about his medical
problems, but he never did anything to help.
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.
submitted another cop-out and Defendant Wong received it.
However, seven or eight months passed before Plaintiff
received his first eye surgery.
contends that the surgery was the result of his notification
that he was going to initiate a complaint against Medical.
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.
followed Medical's orders and submitted a cop-out. He did
not get a ...