Blevins v. Iwuagwu

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

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SHONDOLYN ROCHELLE BLEVINS,

11 Case No. 18-03429 BLF (PR)

Plaintiff,

12 ORDER OF DISMISSAL

v.

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14 CHARLESTON C. IWUAGWU, et al.,

15 Defendants.

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18 Plaintiff, a federal prisoner, filed the instant pro se civil rights action against

19 officials at Federal Correctional Institute in Dublin (“FCI”), where she was formerly

20 incarcerated. After an initial screening, the Court dismissed the complaint with leave to

21 amend to correct several deficiencies. (Docket No. 12.) Plaintiff’s amended complaint

22 was again dismissed with leave to file a second amended complaint. (Docket No. 14.)

23 Plaintiff filed a second amended complaint. (Docket No. 18.)

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25 DISCUSSION

26 A. Standard of Review

27 A federal court must conduct a preliminary screening in any case in which a

1 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any

2 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim

3 upon which relief may be granted or seek monetary relief from a defendant who is immune

4 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings must, however, be liberally

5 construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988);

6 Jackson v. Carey, 535 F.3d 750, 757 (9th Cir. 2003).

7 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a

8 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

9 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

10 plausibility when the plaintiff pleads factual content that allows the court to draw the

11 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

12 Twombly, 550 U.S. at 556).

13 Although Plaintiff used a court form complaint for a 42 U.S.C. § 1983 action, she is

14 a federal prisoner, (SAC1 at 1), and this action challenges the actions of federal employees

15 at FCI-Dublin and not actions under color of state law. See Bivens v. Six Unknown

16 Federal Narcotics Agents, 403 U.S. 388, 392–97 (1971) (recognizing a private right of

17 action for damages for constitutional violations by federal employees or their agents).

18 Accordingly, the Court will construe the second amended complaint as a Bivens action,

19 and not as a §1983 action, consistent with the Ninth Circuit’s liberal construction

20 requirements. See Jackson, 353 F.3d at 757; see also Paige v. Geo Group, Oakland

21 Center, No. 17-cv-06116-HSG (PR), slip op. at 2 (N.D. Cal. Feb. 27, 2018) (construing

22 section 1983 action as a Bivens claim in complaint by pro se prisoner); Lloyd v.

23 Corrections Corp. of America, 855 F. Supp. 221, 222 (W.D. Tenn. 1994) (same).

24 To state a Bivens claim, a plaintiff must allege that the defendant violated a federal

25 constitutional right while acting under color of federal law. See Martin v. Sias, 88 F.3d

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1 774, 775 (9th Cir. 1996) (citing Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991)).

2 Except for the replacement of a state actor by a federal actor, actions under 42 U.S.C. §

3 1983 and Bivens are identical. Id.; see also Wilson v. Layne, 526 U. S. 603, 609 (1999)

4 (qualified immunity analysis same under Bivens and § 1983). Accordingly, when

5 reviewing a Bivens action for which there is no case on point, § 1983 cases may be applied

6 by analogy. See, e.g., Tekle v. United States, 511 F.3d 839, 844 (9th Cir. 2007) (applying

7 § 1983 cases to analysis of Bivens claim that officers used excessive force under Fourth

8 Amendment, and of qualified immunity defense to same claim).

9 B. Plaintiff’s Claims

10 Plaintiff names the following as Defendants: Warden Charleston C. Iwuagwu,

11 Associate Warden LeMasters, Associate Warden T. Mischel, Interim Warden R. L.

12 Rhodes, Lt. Davis, the United States, Case Manager Mr. Shaffey, Unit Manager Mrs.

13 Moore, Staff Representative Mr. Miller, and Counselor Killigran. (Docket No. 18 at 2-3.)

14 The allegations include the following:

15  Plaintiff claims that in retaliation for filing complaints against another inmate,

16 Jacqueline Gentle, with whom she had ongoing disputes, Defendant LeMaster,

17 among other prison staff, refused to intervene in the matter “with the specific

18 intent to manufacture a reason to transfer me from FCI-Dublin.” (Docket No.

19 18 at 5.)

20  Plaintiff claims that on May 29, 2017, after a verbal disagreement in the laundry

21 room, Inmate Gentle attacked her, causing Plaintiff to suffer a contusion to the

22 left side of her face. (Id. at 5-6.)

23  Plaintiff was issued an incident report for “201 fighting with another person,”

24 (Id. at 6.) At her request, Plaintiff was assigned a staff representative,

25 Defendant Miller, in preparation of the hearing. (Id.) However, Defendant

26 Miller never appeared for the hearing, and a letter he wrote was “allowed to

1 to surveillance evidence. (Id.) Although Inmate Gentle was released back to

2 general population, Plaintiff was transferred to another institution. (Id. at 6-7.)

3  Plaintiff was granted a re-hearing, during which the incident report was

4 dismissed, and good conduct time restored. (Id. at 7.)

5  Plaintiff claims that “FCI-Dublin supervisory officials” are enforcing an

6 unconstitutional policy and practice “when they refuse to allow inmates a staff

7 representative based on the allegation that numerous inmates request a staff

8 representative but on the day of their “dHo” hearing they are forced to choose

9 whether to have their hearing continued or sign a refusal.” (Id. at 8.)

10  Plaintiff claims that “FCI-Dublin supervisory officials” are enforcing an

11 unconstitutional policy and practice “when they refuse to upgrade surveillance

12 equipment and install cameras in places such as the laundry rooms where

13 numerous inmates are attacked and/or have fights.” (Id.)

14  Plaintiff claims that “FCI-Dublin supervisory officials” are enforcing an

15 unconstitutional policy and practice “when they allow inmates who display a

16 propensity towards violence to repeatedly return to general population.” (Id. at

17 9.)

18  Plaintiff claims that the Bureau of Prison’s “disciplinary rule 201 fighting with

19 another person” is unconstitutionally vague and fails to adequately inform an

20 inmate what is expected of them. (Id.) Plaintiff claims the rule “fails to inform

21 inmates what acts are considered fighting, what steps to take in the event you are

22 attacked, and it fails to inform inmates that there is no self defense.” (Id.)

23  Plaintiff claims ““FCI-Dublin employees knew there was a problem and refused

24 to take action.” (Id.)

25 Although Plaintiff identifies the above Defendants under “parties,” (Docket No. 18

26 at 2-3), she does not make specific allegations against all of them in the body of the

1 state a claim for retaliation against Defendant LeMasters, a due process claim for

2 procedural deficiencies during the disciplinary hearings against Defendant Miller,

3 supervisory liability against “FCI-Dublin supervisory officials,” and a vagueness claim

4 challenging “disciplinary rule 201.” The Court addresses the cognizability of each of these

5 claims below.

6 1. Retaliation

7 “Within the prison context, a viable claim of First Amendment retaliation entails

8 five basic elements: (1) An assertion that a state actor took some adverse action against an

9 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled

10 the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

11 advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th

12 Cir. 2005) (footnote omitted).

13 Plaintiff claims that Defendant LeMaster took adverse action against her, i.e.,

14 refused to intervene in her dispute with another inmate because Plaintiff was filing

15 complaints against that inmate. However, Plaintiff’s allegations are insufficient to state a

16 retaliation claim because she does not allege that she was actually chilled from exercising

17 her First Amendment rights. A prisoner must at least allege that she suffered harm, since

18 harm that is more than minimal will almost always have a chilling effect. Rhodes, 408

19 F.3d at 567-68 n.11; see Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001)

20 (prisoner alleged injury by claiming he had to quit his law library job in the face of

21 repeated threats by defendants to transfer him because of his complaints about the

22 administration of the library); Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000)

23 (holding that a retaliation claim is not actionable unless there is an allegation of harm).

24 Plaintiff has already been afforded two opportunities to amend, and this Court has

25 broad discretion to deny leave to amend where Plaintiff has already been granted leave to

26 file an amended complaint. See Wagh v. Metris Direct, Inc., 363 F.3d 821, 830 (9th Cir.

1 retaliation claim is DISMISSED for failure to state a claim.

2 2. Due Process

3 Plaintiff’s allegation that she had a staff representative, Defendant Miller, who did

4 not personally appear on her behalf during the disciplinary hearing appears to be an

5 attempt to allege a violation of her right to due process under the Fifth Amendment.2

6 Plaintiff claims that rather than personally appear at her disciplinary hearing,

7 Defendant Miller wrote a letter that was submitted instead. See supra at 3. Even if the

8 Court assumes that this failure to appear was a violation of a procedural protection to

9 which Plaintiff was entitled, Plaintiff also alleges that after several rehearings, the incident

10 report was dismissed, and good conduct time was restored. Id. at 4. Violation of

11 procedural due process rights requires only procedural correction and not a reinstatement

12 of the substantive right. See Raditch v. United States, 929 F.2d 478, 481 (9th Cir. 1991).

13 If the procedurally protected liberty interest of which the prisoner is deprived during the

14 disciplinary process is restored during the prison administrative appeal process, the

15 prisoner does not have a due process claim. See Frank v. Schultz, 808 F.3d 762, 763-64

16 (9th Cir. 2015) (summary judgment properly granted to defendants on due process claim

17 where prisoner filed a successful administrative appeal which led to the removal of the

18 incident report from his file and the forfeited credits were restored). Here, Plaintiff’s

19 allegations clearly indicate that any procedural error was corrected through the

20 administrative appeal process, and she ultimately did not lose any good time credits.

21 Accordingly, this claim should be dismissed for failure to state a claim.

22 3. Supervisory Liability

23 With respect to supervisory liability, “[a]bsent vicarious liability, each Government

24 official, his or her title notwithstanding, is only liable for his or her own misconduct.”

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2 The Court will assume this Fifth Amendment claim is a viable claim for damages under

1 Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (finding under Bell Atlantic Corp. v. Twombly,

2 550 U.S. 544 (2007), and Rule 8 of the Federal Rules of Civil Procedure, that complainant-

3 detainee in a Bivens action failed to plead sufficient facts “plausibly showing” that top

4 federal officials “purposely adopted a policy of classifying post-September-11 detainees as

5 ‘of high interest’ because of their race, religion, or national origin” over more likely and

6 non-discriminatory explanations). Bivens liability requires proof of direct personal

7 responsibility. See Pellegrino v. United States, 73 F.3d 934, 936 (9th Cir. 1996). A theory

8 of respondent superior is not applicable in a Bivens action. See id.; Terrell v. Brewer, 935

9 F.2d 1015, 1018 (9th Cir. 1991). Bivens liability may be imposed, however, when a

10 supervisor participated or acquiesced in the alleged constitutional deprivations. See

11 Jasinski v. Adams, 781 F.2d 843, 848 (11th Cir. 1986).

12 Plaintiff claims that “FCI-Dublin supervisory officials” are enforcing various

13 “unconstitutional polic[ies] and practice[s]” with respect to the failure of staff

14 representatives to appear at disciplinary hearings, the upgrading of surveillance equipment,

15 and permitting violent inmates to return to general population. See supra at 4. However,

16 Plaintiff fails to identify each supervisory official by name, describe the underlying

17 constitutional deprivation that is at stake, and each individual’s personal misconduct that

18 resulted in the deprivation. Her general allegation against “FCI-Dublin supervisory

19 officials” is not sufficient to satisfy the minimum pleading requirements of Rule 8.

20 Plaintiff has already been afforded two opportunities to amend to attempt to state a

21 cognizable claim, and this Court has broad discretion to deny leave to amend where

22 Plaintiff has already been granted leave to file an amended complaint. See Wagh v. Metris

23 Direct, Inc., 363 F.3d 821, 830 (9th Cir. 2003); Ferdik v. Bonzelet, 963 F.2d 1258, 1261

24 (9th Cir. 1992). Accordingly, this supervisory liability claim is DISMISSED for failure to

25 state a claim.

26 4. Vagueness

1 another person” is unconstitutionally vague and fails to adequately inform an inmate what

2 is expected of them. See supra at 4.

3 Under the “void-for-vagueness” doctrine, due process requires enactments to be

4 written with “sufficient definiteness that ordinary people can understand what conduct is

5 prohibited and in a manner that does not encourage arbitrary and discriminatory

6 enforcement.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903

7 (1983). But even if the Court were to assume that a prison regulation can be challenged on

8 vagueness grounds, there is no Supreme Court precedent for permitting a private right of

9 action for damages based on such a claim.

10 Only on three occasions has the Supreme Court held that, even absent statutory

11 authority, a private right of action for damages may be implied from the Constitution itself

12 for constitutional violations by federal employees or their agents. See Bivens v. Six

13 Unknown Federal Narcotics Agents, 403 U.S. 388, 392-97 (1971) (4th Amendment

14 unreasonable search and seizure); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (5th

15 Amendment Due Process Clause gender discrimination); Carlson v. Green, 446 U.S. 14,

16 17-19 (1980) (8th Amendment inadequate medical treatment). But “[t]hese three cases --

17 Bivens, Davis, and Carlson – represent the only instances in which the [Supreme] Court

18 has approved of an implied damages remedy under the Constitution itself.” Ziglar v.

19 Abbasi, 137 S.Ct. 1843, 1855 (2017). The Court has made clear that “expanding the

20 Bivens remedy is now a ‘disfavored’ judicial activity,” id. at 1857 (citation omitted), and

21 will not be available if there are “‘special factors’ counseling hesitation in the absence of

22 affirmative action by Congress,” id. at 1848 (citation omitted).

23 The determination of whether a Bivens damages action should be allowed for a

24 class of conduct represents “a judgment about the best way to implement a constitutional

25 guarantee; it is not an automatic entitlement no matter what other means there may be to

26 vindicate a protected interest.” Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (declining to

1 plaintiff’s exercise of his property rights). The Supreme Court articulated a two-part test to

2 determine whether a Bivens remedy should be extended. Ziglar, 137 S. Ct. at 1859-60.

3 First, courts must determine whether the case presents a “new context.” Id. If not, then

4 the analysis is over. Id. If the case does present a new context, however, courts can extend

5 the Bivens remedy only if two conditions are met. Rodriguez v. Swartz, 899 F.3d 719, 738

6 (9th Cir. 2018). One condition is that there is no other adequate, alternative remedy.3 Id.

7 The other condition is that there are no “special factors” that show that Congress, rather

8 than the courts, should be the one authorizing a suit for money damages. Id.

9 Here, Plaintiff’s vagueness claim is clearly a new context because it is unlike any

10 of the claims presented in Bivens, Davis, and Carlson: a claim against FBI agents for

11 handcuffing a man in his own home without a warrant (Bivens); a claim against a

12 Congressman for firing his female secretary (Davis); and a claim against prison officials

13 for failure to treat an inmate's asthma (Carlson). See Ziglar, 137 S.Ct. at 1855.

14 Proceeding to the “special factors analysis,” a Bivens remedy “will not be available

15 if there are ‘special factors counselling hesitation in the absence of affirmative action by

16 Congress.’” Ziglar, 137 S.Ct. at 1857 (quoting Carlson, 446 U.S. at 18). The “special

17 factors” inquiry “must concentrate on whether the Judiciary is well suited, absent

18 congressional action or instruction, to consider and weight the costs and benefits of

19 allowing a damages action to proceed.” Id. at 1857-58. If “there are sound reasons to

20 think Congress might doubt the efficacy or necessity of a damages remedy as part of the

21 system for enforcing the law and correcting a wrong, the courts must refrain from creating

22 the remedy in order to respect the role of Congress in determining the nature and extent of

23 federal-court jurisdiction under Article III.” Id. at 1858. Other “special factors” include:

24 “the rank of the officer involved; whether Bivens is being used as a vehicle to alter an

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3 The Ninth Circuit has encompassed the “adequate, alternative remedy” factor as set forth

1 entity’s policy; the burden on the government if such claims are recognized; whether

2 Congress has indicated that it does not wish to provide a remedy; whether there are

3 alternate avenues of relief available; and whether there is adequate deterrence absent a

4 damages remedy, among other factors.” Lanuza v. Love, 899 F.3d 1019, 1028 (9th Cir.

5 2018) (citing Ziglar, 137 S. Ct. at 1357-63).

6 First of all, Plaintiff already has an adequate, alternative remedy through the

7 prison’s administrative grievance procedures. As discussed above, her allegations show

8 that Plaintiff took full advantage of those procedures and received appropriate relief, i.e.,

9 dismissal of the rule violation and restoration of good time credits. See supra at 5-6.

10 Furthermore, the Court notes that a Bivens remedy is intended to discourage illegal acts by

11 individual federal officials acting in his or her individual capacity. See FDIC v. Meyer,

12 510 U.S. 471, 484-86 (1994). Plaintiff claims that the rule is promulgated by the Bureau

13 of Prisons, which is a federal agency. See supra at 4. Because the purpose of Bivens is to

14 deter the individual officer, the Bivens remedy does not extend to damages actions against

15 federal agencies, even where individual officers are protected by qualified immunity. Id.

16 Accordingly, this vagueness claim must be dismissed for failure to state a claim.

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18 CONCLUSION

19 For the foregoing reasons, the Court finds that Plaintiff has failed to state sufficient

20 facts to support any cognizable claim in her second amended complaint. Plaintiff has

21 already been afforded two opportunities to state sufficient facts to support any claims, and

22 has failed to do so. Accordingly, this action is DISMISSED for failure to state a claim for

23 which relief can be granted. See 28 U.S.C. § 1915A(b)(1),(2).

24 IT IS SO ORDERED.

25 Dated: _September 26, 2019_ ________________________

BETH LABSON FREEMAN

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United States District Judge