Louis Butler O'Neal v. March Fong Eu Roy E. Bailey, Department of Veterans Administration Dorcas T. Hardy, Commissioner of Social Security

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…