Louis Butler O'neal, Plaintiff-appellant, v. March Fong Eu; Roy E. Bailey, Department of Veteransadministration; Dorcas T. Hardy, Commissioner Ofsocial Security, Defendants-appellees, 866 F.2d 314 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 866 F.2d 314 (9th Cir. 1989)

Submitted Dec. 27, 1988. *Decided Jan. 31, 1989


Louis Butler O'Neal, Represa, Cal., pro se.

No appearance for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.

PER CURIAM:


Louis Butler O'Neal, a California state prisoner, appeals pro se the district court's order dismissing his constitutional tort action brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). O'Neal contends that Roy Bailey, a Veterans Administration official, negligently failed to obtain records which would have established that O'Neal had a right to Veteran's death pension benefits. O'Neal also contends that he is entitled to the benefits.

A plaintiff must plead more than a merely negligent act by a federal official in order to state a colorable claim under Bivens. See Daniels v. Williams, 474 U.S. 327, 330-31, 106 S. Ct. 662, 664-65, 88 L. Ed. 2d 662 (1986) (plaintiff must plead more than mere negligence in a 42 U.S.C. § 1983 action); Tallman v. Reagan, 846 F.2d 494, 495 (8th Cir. 1988) (extending Daniels to a Bivens -type action involving gross negligence), Nichols v. Block, 656 F. Supp. 1436, 1442 (D. Mont. 1987) ("Daniels is applicable by analogy to a Bivens action against federal officials"); Artis v. Petrovsky, 638 F. Supp. 51, 54 (W.D. Mo. 1986) (applying Daniels in a Bivens -type action); see also Schweiker v. Chilicky, --- U.S. ----, 108 S. Ct. 2460, 2480, 101 L. Ed. 2d 370 (1988) (Brennan, J. dissenting) ("in order to prevail in any Bivens action, [a plaintiff] must ... prove a deliberate abuse of governmental power rather than mere negligence"). Because O'Neal only alleges negligence, and the pleaded facts indicate that Bailey could not have been more than negligent, the district court properly dismissed O'Neal's complaint.

The judgment is AFFIRMED.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4