Opinion
Civil No. 04-844-MO.
July 20, 2004
ORDER TO DISMISS
Plaintiff, an inmate at FCI-Sheridan, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pursuant to an order entered by the court this date, plaintiff was granted leave to proceed in forma pauperis. However, for the reasons set forth below, plaintiff's Complaint is dismissed for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2).
BACKGROUND
Plaintiff alleges that he is diabetic and requires a special diet to keep his blood sugar level within an acceptable range. He claims that the Bureau of Prisons ("BOP") discontinued providing special diet food trays three years ago, and that this practice caused him difficulty finding low-sugar foods to eat. He further alleges that as a result of the failure to provide him with a special diet for his diabetic condition, he became ill and is now required to take insulin twice a day. Plaintiff requests a jury trial but fails to identify what kind of relief he seeks.STANDARDS
Where a prisoner proceeding in forma pauperis files an action seeking redress from a governmental entity or officer or employee of a governmental entity, the court shall dismiss the case at any time if the court determines that:
(B) the action . . .
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2) and 1915A(b).
"In federal court, dismissal for failure to state a claim is proper `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)); Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989). In making this determination, this court accepts all allegations of material fact as true and construes the allegations in the light most favorable to the nonmoving party.Tanner, 879 F.2d at 576.
In civil rights cases involving a plaintiff proceeding pro se, this court construes the pleadings liberally and affords the plaintiff the benefit of any doubt. McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992), overruled on other grounds by WMX Tech., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1998);Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
Before dismissing a pro se civil rights complaint for failure to state a claim, this court supplies the plaintiff with a statement of the complaint's deficiencies. McGuckin, 974 F.2d at 1055; Karim-Panahi, 839 F.2d at 623-24; Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se litigant will be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623; Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
DISCUSSION
Plaintiff brings this 42 U.S.C. § 1983 action against the BOP, the only defendant specifically identified in the caption of the Complaint. See Fed.R.Civ.P. 10(a) (requiring all defendants to be listed in the caption of a complaint). A plaintiff wishing to bring a cause of action pursuant to 42 U.S.C. § 1983 must demonstrate compliance with the following factors: (1) a violation of rights protected by the Constitution or created by federal statute (2) proximately caused (3) by conduct of a person (4) acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). As plaintiff is not suing a state actor, he fails to state a § 1983 claim upon which relief may be granted.The court would be inclined to construe this action as brought pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), but plaintiff fails to allege the violation of a federal constitutional or statutory right, nor does he seek recovery against any federal employee acting in his individual capacity. See Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984) (Bivens actions must be brought against federal employees in their individual capacities, not against the sovereign United States or its agencies). Instead, he seeks unspecified relief against the BOP based on its policy to refrain from providing special meals to him as a diabetic inmate. The United States and its agencies are immune from suit unless Congress has expressly provided consent to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980). Because Congress has not provided consent to be sued for purposes of this lawsuit, plaintiff cannot state a valid claim against the BOP.
Should plaintiff wish to continue with this action, he must file an amended complaint within 30 days curing the deficiencies set forth above. Plaintiff is also advised that any amended complaint cannot incorporate any document by reference and must identify how each defendant specifically deprived him of a particular federal constitutional or statutory right.
CONCLUSION
Based on the foregoing, IT IS ORDERED that plaintiff's Complaint (#2) is DISMISSED for failure to state a claim. Plaintiff may file an amended complaint curing the deficiencies identified above within 30 days. Failure to do so will result in the dismissal of this proceeding with prejudice.
IT IS SO ORDERED.