Sanchez-Rivera v. Bribiesca ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JUAN SANCHEZ-RIVERA, Case No. 20cv1264-MMA-MSB Reg. No. 073-830-803, 11 ORDER DISMISSING FIRST 12 AMENDED COMPLAINT FOR Plaintiff, FAILING TO STATE A CLAIM 13 vs. PURSUANT TO 28 U.S.C. § 14 1915(e)(2)(B) 15 JORGE BRIBIESCA; ALEX 16 PALACIOS; SIXTO MARRERO; EDWARD E. RUIZ; NICK 17 RODRIGUEZ; JOSE BUILTEMAN; 18 GEORGE CORTEZ, 19 20 Defendants. 21 22 I. Procedural History 23 On July 6, 2020, Plaintiff Juan Sanchez-Rivera, a federal immigration detainee at 24 the Imperial Regional Detention Facility (“IRDF”) in Calexico, California, and 25 proceeding pro se, filed a civil rights complaint pursuant to Bivens v. Six Unknown 26 Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Doc. No. 1. In 27 addition, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”), along with a 28 Motion to Appoint Counsel. See Doc. Nos. 2, 4. The Court granted Plaintiff’s Motion to 1 Proceed IFP, denied his Motion to Appoint Counsel, and after conducting the statutorily 2 prescribed screening, dismissed his complaint for failing to state a claim pursuant to 28 3 U.S.C. § 1915(e)(2). See Doc. No. 5. The Court granted Plaintiff leave to file an 4 amended complaint in order to correct the deficiencies of pleading identified in the 5 Court’s Order. See id. Plaintiff has now filed a First Amended Complaint (“FAC”). See 6 Doc. No. 6. 7 II. Screening of Plaintiff’s Complaint 8 A. Standard of Review 9 As the Court previously informed Plaintiff, any complaint filed by any person 10 proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious, fail[s] to 11 state a claim upon which relief may be granted, or seek[s] monetary relief from a 12 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 13 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C. 14 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th 15 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits, but requires a district court to 16 dismiss an in forma pauperis complaint that fails to state a claim.”). 17 Detailed factual allegations are not required, but “[t]hreadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 20 U.S. 544, 555 (2007)). “Determining whether a complaint states a plausible claim for 21 relief [is] . . . a context-specific task that requires the reviewing court to draw on its 22 judicial experience and common sense.” Id. The “mere possibility of misconduct” falls 23 short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 24 F.3d 962, 969 (9th Cir. 2009). 25 “When there are well-pleaded factual allegations, a court should assume their 26 veracity, and then determine whether they plausibly give rise to an entitlement to relief.” 27 Iqbal, 556 U.S. at 679; see also Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) 28 (“[W]hen determining whether a complaint states a claim, a court must accept as true all 1 allegations of material fact and must construe those facts in the light most favorable to 2 the plaintiff.”); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (noting that 3 § 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”). 4 However, while the court “ha[s] an obligation where the petitioner is pro se, 5 particularly in civil rights cases, to construe the pleadings liberally and to afford the 6 petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 7 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not 8 “supply essential elements of claims that were not initially pled.” Ivey v. Board of 9 Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 10 B. Plaintiff’s Factual Allegations 11 On January 26, 2020, Plaintiff claims that the “toilet in Plaintiff’s cell was not 12 functioning.” FAC at 5. “Maintenance staff conducted some work on it” but “hours 13 later,” Plaintiff’s cell began to flood. Id. Plaintiff asked the “dorm officer” to move to a 14 different cell but he alleges this request was denied by “shift supervisor Sergeant George 15 Cortez.” Id. The following day, Plaintiff alleges that he “slipped on the puddle of water 16 created by the link from the sink” which caused him to fall and hit his head “on the metal 17 frame of the bed.” Id. 18 Plaintiff alleges that he filed a grievance regarding this incident on January 25, 19 2020. See id. at 6. On February 18, 2020, Plaintiff “initiated a grievance against medical 20 department for their poor performance in the writing of the accident/medical report 21 relevant to the incident.” Id. 22 Plaintiff “submitted his grievance(s) to ICE” on March 3, 2020 and March 4, 2020. 23 Id. Plaintiff claims Defendant Palacios “provided Plaintiff with partial documentation” 24 which purportedly contained only “vague information regarding the grievance(s) report 25 completed by the ICE Compliance Unit.” Id. On March 5, 2020, Plaintiff “received a 26 response” that “SDDO Bribiesca will be notified” of his “request seeking to be provided 27 with withheld documentation.” Id. at 7. 28 1 On April 1, 2020, Plaintiff was “cell extracted” and “taken to segregated 2 confinement without given an explanation.” Id. Plaintiff claims Defendant Builteman 3 told him to “continue submitting grievances.” Id. The following day, Plaintiff was 4 provided with an “Incident Report” written by Builteman charging Plaintiff with “inciting 5 others to riot” and “threatening a staff member with bodily harm.” Id. Plaintiff claims 6 Builteman “omitted significant details” relating to the investigation of the allegations. 7 (Id. at 8.) Plaintiff claims Defendant Rodriguez reviewed the report for “accuracy.” Id. 8 At a “subsequent Institution Disciplinary Panel,” it was determined that “no 9 prohibited act was committed” and there was insufficient evidence to “support charges.” 10 (Id.) It was recommended that the “charges be dismissed.” Id. 11 On April 7, 2020, Defendant Marrero “imposed the following sanctions of [thirty] 12 days of disciplinary segregation” after finding that there was “sufficient document 13 evidence” to support the charges against Plaintiff. Id. at 8-9. 14 Plaintiff submitted a grievance on April 15, 2020 in “which Plaintiff sought an 15 explanation as to why the facility administrator” found Plaintiff “guilty and imposed 16 disciplinary segregated confinement upon him.” Id. at 9. Defendant Assistant Facility 17 Administrator Ruiz “denied Plaintiff’s appeal” and Plaintiff claims he “added untruthful 18 uncorroborated detail.” Id. 19 Plaintiff alleges that he attempted to submit a grievance to ICE but “Defendant 20 Ortega refused to forward Plaintiff’s grievance to the ICE Compliance Unit for review 21 and investigation.” Id. However, later “ICE Officer Jessica Becerra advised Plaintiff that 22 his grievance request will be forwarded to the Compliance Unit.” Id. at 10. Plaintiff 23 alleges Defendant Bribiesca “refused to investigate, review, and adjudicate Plaintiff’s 24 grievance.” Id. Plaintiff seeks compensatory and punitive damages against all named 25 Defendants. Id. at 13-14. 26 C. Bivens 27 Plaintiff brings his claims pursuant to Bivens v. Six Unknown Named Agents of the 28 Federal Bureau of Narcotics, 403 U.S. 388 (1971). “In Bivens, the Supreme Court 1 ‘recognized for the first time an implied right of action for damages against federal 2 officers alleged to have violated a citizen’s constitutional rights.’” Vega v. United States, 3 881 F.3d 1146, 1152 (9th Cir. 2018) (quoting Hernandez v. Mesa, __ U.S. __, 137 S. Ct. 4 2003, 2006 (2017) (citation omitted)). “In the limited settings where Bivens does apply, 5 the implied cause of action is the ‘federal analog to suits brought against state officials 6 under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675-76 (quoting 7 Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). Bivens arose in the context of a 8 Fourth Amendment violation, however, and the Court has “only expanded [Bivens’] 9 ‘implied cause of action’ twice.” Id. (quoting Ziglar v. Abassi, __ U.S. __, 137 S. Ct. 10 1843, 1854 (2017)); see also Carlson v. Green, 446 U.S. 14 (1980) (providing a Bivens 11 remedy under the Eighth Amendment’s Cruel and Unusual Punishments Clause for 12 failure to provide adequate medical treatment to a prisoner); Davis v Passman, 442 U.S. 13 228 (1979) (providing a Bivens remedy under the Fifth Amendment’s Due Process 14 Clause for gender discrimination.) 15 For claims arising in a “new context” under Abassi, the Supreme Court has 16 fashioned a “two-step analysis for determining congressional intent as to the 17 appropriateness of a Bivens remedy.” Western Radio Services Co. v. U.S. Forest Service, 18 578 F.3d 1116, 1120 (9th Cir. 2009) (citing Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). 19 First, a court must determine “whether any alternative, existing process for protecting the 20 interest amounts to a convincing reason for the Judicial Branch to refrain from providing 21 a new and freestanding remedy in damages.” Wilkie, 551 U.S. at 550. Second, “a Bivens 22 remedy will not be available if there are ‘special factors counselling hesitation in the 23 absence of affirmative action by Congress.’” Abassi, 137 S.Ct. at 1857 (quoting Carlson, 24 446 U.S. at 18.) “‘Alternative remedial structure’ can take many forms, including 25 administrative, statutory, equitable, and state law remedies.” Vega, 881 F.3d at 1154. 26 D. First and Fifth Amendment claims 27 Plaintiff alleges Defendants “intentionally retaliated against Plaintiff for exercising 28 his right to seek redress from the use of the grievance system violating Plaintiff’s rights 1 under the First Amendment.” FAC at 11. Plaintiff also claims that Defendants violated 2 his “due process rights under the Fifth Amendment of the United States Constitution and 3 contributed to Plaintiff’s unjustifiable placement in segregated disciplinary confinement.” 4 Id. at 12. Finally, Plaintiff claims Defendants’ “abject failure to authorize cell move” led 5 to an “unreasonable risk for Plaintiff’s safety and violated Plaintiff’s “right to substantive 6 due process under the Fifth Amendment of the United States constitution.” Id. at 10. 7 First, the Supreme Court has never implied a Bivens action under the First 8 Amendment. See Iqbal, 556 U.S. at 675 (noting Supreme Court’s refusal to “extend 9 Bivens to a claim sounding in the First Amendment.”) (citing Bush v. Lucas, 462 U.S. 10 367 (1983)); see also Reichle v. Howards, 566 U.S. 658, 663 n. 4 (2012) (“We have 11 never held that Bivens extends to First Amendment claims.”). In addition, the Ninth 12 Circuit, in a recent unpublished decision, also declined to extend a Bivens remedy to a 13 plaintiff’s claim that he was retaliated against for filing administrative grievances. 14 Buenrostro v. Fajardo, 770 F. App’x 807 (9th Cir. 2019). 15 Second, the Supreme Court has never implied a Bivens action under the Fifth 16 Amendment for a due process claim arising from the purported failure to provide due 17 process before being housed in segregated confinement. In addition, the Ninth Circuit 18 has declined to extend a Bivens remedy to a “Fifth Amendment procedural due process 19 claims arising out of a prison disciplinary process.” Vega, 881 F.3d at 1153-54. 20 Likewise, the Supreme Court has never implied a Bivens action for a Fifth Amendment 21 substantive due process claim arising from conditions of confinement. 22 Therefore, Plaintiff’s First Amendment retaliation claim and Fifth Amendment due 23 process claims present a new context in Bivens and requires consideration of special 24 factors to determine whether a Bivens action should be extended to Plaintiff’s claims. 25 “The existence of alternative remedies usually precludes a court from authorizing a 26 Bivens action.” Abassi, 137 S.Ct. at 1865. Here, Plaintiff own allegations throughout his 27 FAC indicate that he had alternative remedies available to him as he engaged repeatedly 28 in the administrative grievance process. See Correctional Services Corp. v. Malesko, 534 1 || U.S. 61, 69 (2001) (‘So long as the plaintiff had an avenue for some redress, bedrock 2 || principles of separation of powers foreclosed judicial imposition of a new substantive 3 || liability.”). Even if Plaintiff did not obtain the relief he sought in pursuing these 4 || alternative remedies, “does not mean that he did not have access to alternative or 5 || meaningful remedies.” Vega, 881 F.3d at 1155. 6 Thus, the Court finds because he had alternative remedies available to him, that 7 || Plaintiff has not articulated a reason to extend a Bivens remedy to any of Plaintiff's 8 claims. 9 E. Leave to Amend 10 Because Plaintiff would not be able to allege facts to cure the fact that a Bivens 11 ||remedy is not available to him, the Court finds granting further leave to amend would be 12 futile. See Gonzalez v. Planned Parenthood, 759, F.3d 1112, 1116 (9th Cir. 2014) 13 || (‘Futility of amendment can, by itself, justify the denial of ... leave to amend.’”’) 14 || (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). 15 ||. Conclusion and Order 16 For the reasons discussed, the Court: 17 1) DISMISSES this civil action without further leave to amend for failing to 18 || state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B); 19 2) CERTIFIES that an IFP appeal would not be taken in good faith pursuant 20 |/to 28 U.S.C. § 1915(a)(3), and 21 3) DIRECTS the Clerk of Court to enter a final judgment of dismissal and 22 close the file. 23 IT IS SO ORDERED. 24 || DATE: August 25, 2020 25 Wath, □ Ty - : hy lr 26 HON. MICHAEL M. ANELLO 07 United States District Judge 28 7