Opinion
No. 19-16797
06-09-2020
DANNY FABRICANT, Plaintiff-Appellant, v. G. J. BISSETTE, Associate Warden at USP-Tucson; et al., Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 4:19-cv-00030-JGZ-PSOT MEMORANDUM Appeal from the United States District Court for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Federal prisoner Danny Fabricant appeals pro se from the district court's judgment dismissing his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We may affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Dismissal of Fabricant's action was proper because, even if a Bivens remedy is available for his constitutional claims, Fabricant failed to allege facts sufficient to state a plausible claim. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are construed liberally, a plaintiff must allege facts sufficient to state a plausible claim); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (setting forth elements of a § 1983 claim); Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) ("Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens.").
The district court did not abuse its discretion by dismissing the first amended complaint without further leave to amend because amendment would have been futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal without leave to amend is proper when amendment would be futile).
Fabricant's motion for an order related to mail (Docket Entry No. 6) is denied.
AFFIRMED.