Summary
affirming sua sponte dismissal pursuant to 28 U.S.C. § 1915(e) of claims precluded by Minneci
Summary of this case from Dubon v. GEO Corr. & Det.Opinion
No. 13-16289
10-27-2014
GONZALO VALDOVINOS-BLANCO, Plaintiff - Appellant, v. NEIL H. ADLER, Warden; BURNETT RUCKER, M.D.; MANAGEMENT AND TRAINING CORPORATION; FEDERAL BUREAU OF PRISONS, Defendants - Appellees.
NOT FOR PUBLICATION
D.C. No. 1:12-cv-00211-BAM MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Before: HUG, FARRIS, and CANBY, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c).
Gonzalo Valdovinos-Blanco appeals pro se the district court's judgment dismissing, pursuant to 28 U.S.C. § 1915(e)(2)(B), his action alleging deliberate indifference to his medical needs and violation of his Eight Amendment rights. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Because Valdovinos-Blanco alleged wrongdoing at a federal prison rather than wrongdoing by persons acting under color of state law, the magistrate judge properly characterized Valdovinos-Blanco's claims as an action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), not an action under 42 U.S.C. § 1983. See Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987); see also Hartman v. Moore, 547 U.S. 250, 255 n.2 (2006); Starr v. Baca, 652 F.3d 1202, 1206 (9th Cir. 2011).
Valdovinos-Blanco contends that the magistrate judge erred by dismissing his action without granting leave to amend. He was imprisoned at a privately operated federal prison. A Bivens action alleging improper medical care may not be pursued against any of the defendants in this action. See Minneci v. Pollard, 132 S. Ct. 617, 626 (2012) (holding that federal prisoner may not pursue a Bivens claim against privately employed personnel working at a privately operated federal prison where the allegedly wrongful conduct is of a kind that typically falls within the scope of traditional state tort law, such as improper medical care); Correctional Services Corp. v. Malesko, 534 U.S. 61, 63 (2001) (holding that a Bivens action may not be brought against a private corporation); FDIC v. Meyer, 510 U.S. 471, 484-86 (1994) (holding that a Bivens cause of action may not be brought against a government agency). Because the magistrate judge correctly concluded that Valdovinos-Blanco cannot cure this deficiency by amendment, she did not abuse her discretion by dismissing the action without leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (setting forth standard of review and explaining that leave to amend should be granted unless the deficiencies in the complaint cannot be cured by amendment).
AFFIRMED.