Milaudi Karboau v. Lowell Clark

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 30 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MILAUDI KARBOAU, No. 13-35585
Plaintiff - Appellant, D.C. No. 3:12-cv-05045-BHS
v.
MEMORANDUM*
LOWELL CLARK (GEO); et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Former detainee Milaudi Karboau appeals pro se from the district court’s
judgment dismissing his action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging claims concerning his
detention at Northwest Detention Center, a federal immigration facility. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo a sua sponte dismissal for
failure to state a claim, Barrett v. Belleque, 544 F.3d 1060, 1061 (9th Cir. 2008 )
(per curiam), and we affirm.
The district court properly dismissed Karboau’s claims against the
Department of Homeland Security (“DHS”), Immigration and Customs
Enforcement (“ICE”), DHS and ICE officials in their official capacity, and two
fellow detainees because a Bivens claim is not available against federal agencies,
federal agents in their official capacity, or private individuals. See FDIC v. Meyer,
510 U.S. 471, 486 (1994) (no Bivens claims against federal agencies); Consejo de
Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173
(9th Cir. 2007) (no Bivens suit against agents in their official capacity); Morgan v.
United States, 323 F.3d 776, 780 (9th Cir. 2003) (Bivens claim lies against agents
in their individual capacity acting under color of federal law).
The district court properly dismissed Karboau’s Eighth Amendment claims
against individual employees of the private entity running the federal detention
center because Karboau’s exclusive remedy for such claims is pursuant to state tort
law. See Minneci v. Pollard, 132 S. Ct. 617, 626 (2012) (federal inmate has no
Bivens claims against private employees working at a privately operated federal
prison for denial of medical care or similar conduct that typically falls within the
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scope of traditional state tort law). As to Karboau’s remaining retaliation, due
process, equal protection, and access-to-courts claims against these individuals,
Karboau failed to allege facts showing that defendants violated his rights despite
opportunities to amend. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733,
742 (9th Cir. 2008) (conclusory allegations are insufficient to state a claim); Bruns
v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (“[A] liberal
interpretation of a civil rights complaint may not supply essential elements of the
claim that were not initially pled.” (citation and internal quotation marks omitted)).
The district court properly dismissed Karboau’s claims against individual
ICE agents because, despite multiple opportunities to amend and generous
extensions of time, Karboau failed to allege facts showing that they violated his
constitutional rights. See Morgan, 323 F.3d at 780 (elements of a Bivens claim);
Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988) (court may sua
sponte dismiss for failure to state a claim if plaintiff cannot possibly win relief).
AFFIRMED.
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