(PC) Cagan v. Lake ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MAXCIME CAGAN, Case No. 1:19-cv-01629-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 13 v. TO THIS ACTION 14 S. LAKE, et al., FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF ACTION 15 Defendants. FOR FAILURE TO STATE A COGNIZABLE CLAIM FOR RELIEF 16 (ECF No. 1) 17 THIRTY (30) DAY DEADLINE 18 19 Plaintiff Maxcime Cagan is a federal prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 21 Narcotics, 403 U.S. 388 (1971). 22 Currently before the Court for screening is Plaintiff’s complaint, filed on November 15, 23 2019. (ECF No. 1.) 24 I. 25 SCREENING REQUIREMENT 26 The Court is required to screen complaints brought by prisoners seeking relief against a 27 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 28 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 1 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 2 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 3 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 9 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 10 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 11 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 12 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 13 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 14 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 15 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 16 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 17 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 18 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 19 at 969. 20 II. 21 SUMMARY OF COMPLAINT 22 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 23 the sua sponte screening requirement under 28 U.S.C. § 1915. 24 Plaintiff names U.S. Penitentiary Atwater Warden S. Lake, U.S. Penitentiary Atwater 25 Mail Room Officer M. Fischer, U.S. Penitentiary Atwater Mail Room Officer R. Martinez, and 26 the Federal Bureau of Prisons as Defendants. 27 Plaintiff alleges as follows: 28 /// 1 Mr. S. Lake is the warden and is responsible for making sure that FBOP policies are property executed at Atwater, he has failed (5) five separate times in this 2 regard, because on the dates below Mr. M. Fischer, and Mr. R. Martinez opened my legal mail from my attorney outside of my presence, and processed them 3 through regular mail with a stamp that states my legal mail doesn’t meet the 4 criteria for legal mail per BOP policy, after I filed for administrative action they realized I had a case against them and started to call me to the mail room despite 5 the letters being addressed in exactly the same manner, my complaint is because my complaint and appeal was denied by BOP despite the fact that they were aware 6 of their violations … The dates the letters were opened are: 1/2/18, 1/29/18, 7 2 /23/18, 9/21/18, and 1/28/19 …. 8 (ECF No. 1, at 3.) Plaintiff further states that the Defendants’ actions or inactions have injured 9 him because his attorney-client confidentiality is being violated, his legal mail is being read and 10 copied, and his ability to prepare and transmit his legal documents is “fatally affected by this 11 federal violation…” (Id.) 12 Plaintiff seeks $20,000.00 in monetary damages. (Id. at 6.) 13 III. 14 DISCUSSION 15 A. Defendant Federal Bureau of Prisons 16 The Supreme Court has recognized an implied cause of action against certain federal 17 officials for certain constitutional violations. Ziglar v. Abbasi, ____ U.S. ____, 137 S. Ct. 1843, 18 1854-55 (2017); Bivens, 403 U.S. at 392, 396-97. However, a Bivens cause of action cannot be 19 maintained against the United States or agencies of the United States. See F.D.I.C. v. Meyer, 510 20 U.S. 471, 486 (1994) (no Bivens actions against federal agencies); Vaccaro v. Dobre, 81 F.3d 21 854, 857 (9th Cir. 1996) (no Bivens actions against the United States). Therefore, since 22 Defendant Federal Bureau of Prisons is a federal agency, Plaintiff’s Bivens claims against 23 Defendant Federal Bureau of Prisons cannot be maintained. Since this is a deficiency that cannot 24 be cured by amendment, the Court concludes that granting leave to amend would be futile. 25 B. Supervisory Liability 26 To the extent that Plaintiff seeks to hold Defendant Lake liable based solely upon his 27 supervisory role as Warden, he may not do so. Liability may not be imposed on supervisory 28 1 personnel for the actions or omissions of their subordinates under the theory of respondeat 2 superior. Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (holding that “respondeat 3 superior is inapplicable to Bivens actions[]”). “Because the doctrine of respondeat superior does 4 not apply in Bivens actions, a plaintiff must allege that the individual defendant was personally 5 involved in the constitutional violation.” Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006). 6 Therefore, supervisors may be held liable only if they “participated in or directed the violations, 7 or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 8 (9th Cir. 1989). 9 In this case, Plaintiff alleges that Defendant Lake is liable for the violations of Plaintiff’s 10 rights under the First Amendment because Defendant Lake failed to uphold that his responsibility 11 to make sure that Federal Bureau of Prisons policies are properly executed at the prison when 12 Defendants Fischer and Martinez opened Plaintiff’s legal mail outside of Plaintiff’s presence five 13 separate times. However, as discussed below, the Court declines to recognize an implied Bivens 14 cause of action for improper handling/reading of legal mail in violation of the First Amendment. 15 Therefore, since Plaintiff has failed to allege a cognizable claim for improper handling/reading of 16 legal mail in violation of the First Amendment, Plaintiff has failed to state a cognizable 17 supervisory liability claim against Defendant Lake. Since this is a deficiency that cannot be cured 18 by amendment, the Court concludes that granting leave to amend would be futile. 19 C. First Amendment – Improper Handling/Reading of Legal Mail 20 Plaintiff alleges that on January 2, 2018, January 29, 2018, February 23, 2018, September 21 21, 2018, and January 28, 2019, Defendants Fischer and Martinez opened Plaintiff’s legal mail 22 from his attorney outside of Plaintiff’s presence and then processed the legal mail through the 23 regular mail process, with a stamp that stated Plaintiff’s legal mail did not meet the criteria for 24 legal mail per Federal Bureau of Prisons policy. Plaintiff further states that his legal mail is being 25 read and copied. (ECF No. 1, at 3.) 26 In the § 1983 context, the Ninth Circuit has held that “prisoners have a protected First 27 Amendment interest in having properly marked legal mail opened only in their presence.” Hayes 28 v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). However, since Plaintiff is a federal 1 prisoner challenging the actions or inactions of federal employees, Plaintiff’s action is brought 2 pursuant to Bivens, 403 U.S. 388, not § 1983. Therefore, this Court must determine if there is an 3 implied Bivens cause of action for improper handling/reading of legal mail in violation of the 4 First Amendment. 5 In Ziglar v. Abbasi, the Supreme Court set forth a two-part test for courts to use in order 6 to determine whether a Bivens claim may proceed. Ziglar, 137 S. Ct. at 1859-60. First, the court 7 must determine whether the case presents a new Bivens context. “If [a] case is different in a 8 meaningful way from previous Bivens cases decided by [the Supreme Court], the context is new.” 9 Id. at 1859. 10 Second, if a case presents a new context for a Bivens action, the court must then 11 determine whether there are any “special factors counselling hesitation in the absence of 12 affirmative action by Congress.” Id. at 1857 (citation omitted). The “special factors” inquiry 13 “must concentrate on whether the Judiciary is well suited, absent congressional action or 14 instruction, to consider and weigh the costs and benefits of allowing a damages action to 15 proceed.’” Id. at 1857-58. Ziglar specifically noted that, “if there is an affirmative remedial 16 structure present in a certain case, that alone may limit the power of the Judiciary to infer a new 17 Bivens cause of action.” Ziglar, 137 S. Ct. at 1858. “In sum, if there are sound reasons to think 18 Congress might doubt the efficacy or necessity of a damages remedy as part of the system for 19 enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in 20 order to respect the role of Congress in determining the nature and extent of federal-court 21 jurisdiction under Article III.” Id.; see also id. at 1857 (stating that the Supreme Court has made 22 it “clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” which is “in 23 accord with the Court’s observation that it has ‘consistently refused to extend Bivens to any new 24 context or new category of defendants.’” (internal citations omitted)). 25 1. Plaintiff’s First Amendment Claim Presents a New Bivens Context 26 The Supreme Court has implied a damages remedy under the U.S. Constitution in only 27 three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens, 403 U.S. at 28 396-97; (2) Fifth Amendment gender discrimination in Davis v. Passman, 442 U.S. 228, 248-49 1 (1979); and (3) Eighth Amendment deliberate indifference to serious medical needs in Carlson v. 2 Green, 446 U.S. 14, 19 (1980). “These three cases – Bivens, Davis, and Carlson – represent the 3 only instances in which the Court has approved of an implied damages remedy under the 4 Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). Therefore, Plaintiff’s claim 5 for improper handling/reading of his legal mail in violation of the First Amendment presents a 6 new Bivens context. Hence, the Court must evaluate whether special factors counsel against 7 extending the Bivens damages remedy to this new context. 8 2. Special Factors Counsel Against Extending the Bivens Remedy in this Case 9 Here, the Court finds that special factors counsel hesitation in implying a Bivens damages 10 remedy in the context of a First Amendment claim for improper handling/reading of legal mail for 11 three reasons. 12 First, the Supreme Court has “never held that Bivens extends to First Amendment claims.” 13 Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). In fact, in Bush v. Lucas, 462 U.S. 367, the 14 Supreme Court refused to extend Bivens to a First Amendment free speech and retaliatory 15 demotion claim by a federal employee against the employee’s supervisor on the ground that 16 “Congress is in a better position to decide whether or not the public interest would be served by 17 creating” a new substantive legal damages remedy in the action’s specific First Amendment 18 context. Bush, 462 U.S. at 390. 19 Second, Plaintiff has alternative processes by which to pursue his claims and remedies. 20 See Ziglar, 137 S. Ct. at 1858 (“[I]f Congress has created any alternative, existing process for 21 protecting the [injured party’s] interest that itself may amoun[t] to a convincing reason for the 22 Judicial Branch to refrain from providing a new and freestanding remedy in damages.”) 23 Alternative processes “can take many forms, including administrative, statutory, equitable, and 24 state law remedies.” Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018). In this case, 25 initially, Plaintiff could have, and did utilize, the administrative grievance process provided by 26 the Federal Bureau of Prisons, codified at 28 C.F.R. §§ 542.10-542.19, which permits “inmate[s] 27 to seek formal review of an issue relating to any aspect of his/her own confinement.” 28 U.S.C. § 28 542.10(a); see Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 74 (2001) (recognizing the Federal 1 Bureau of Prisons administrative grievance process as a remedy available to federal prisoners). 2 Further, Plaintiff could seek injunctive relief or potentially file a civil action for damages against 3 the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)(1), 2679(b). See 4 Malesko, 534 U.S. at 74 (observing that injunctive relief has long been recognized as proper 5 means for altering unconstitutional policy). 6 Third, the Court finds that “extending Bivens to [Plaintiff’s First Amendment claim] 7 would substantially affect government operations and unduly burden [Federal Bureau of Prisons] 8 officials who must defend against this suit in their personal capacities.” Schwarz v. Meinberg, 9 761 F. App’x 732, 735 (9th Cir. 2019) (declining to extend Bivens remedies to a plaintiff’s access 10 to courts claim under the First and Fifth Amendments and a Fifth Amendment claim regarding 11 denial of plaintiff’s request for camp placement); see also Anderson v. Creighton, 483 U.S. 635, 12 638 (1987) (“[P]ermitting damages suits against government officials can entail substantial social 13 costs, including the risk that fear of personal monetary liability and harassing litigation will 14 unduly inhibit officials in the discharge of their duties.”). 15 Therefore, the Court finds that special factors counsel hesitation in this context and, thus, 16 declines to find an implied Bivens cause of action for improper handling/reading of legal mail in 17 violation of the First Amendment. See Free v. Peikar, No. 1:17-cv-00159-AWI-MJS (PC), 2018 18 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) (“Nationwide, district courts seem to be in 19 agreement that, post-[Ziglar], prisoners have no right to bring a Bivens action for violation of the 20 First Amendment.”). Consequently, Plaintiff has failed to state a cognizable claim against 21 Defendants Fischer and Martinez for improper handling/reading of legal mail in violation of the 22 First Amendment. Since this is a deficiency that cannot be cured by amendment, the Court 23 concludes that granting leave to amend would be futile. 24 IV. 25 CONCLUSION AND RECOMMENDATION 26 Based on the foregoing, Plaintiff’s complaint fails to state a cognizable claim for relief 27 under Bivens against any named Defendant. Since the defects in Plaintiff’s complaint are not 28 capable of being cured through amendment, granting leave to amend would be futile. Akhtar v. 1 | Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 2 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a Fresno 3 | District Judge to this action. 4 Furthermore, IT IS HEREBY RECOMMENDED that this action be dismissed, with 5 || prejudice, for failure to state a cognizable claim upon which relief may be granted. 6 These Findings and Recommendation will be submitted to the United States District Judge 7 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within thirty (30) days 8 || after being served with these Findings and Recommendation, Plaintiff may file written objections 9 | with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 10 | and Recommendation.” Plaintiff is advised that failure to file objections within the specified time 11 | may result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 12 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 13 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. FA. ee 16 | Dated: _ December 13, 2019 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28