Sanchez-Rivera v. Bribiesca

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7 UNITED STATES DISTRICT COURT

8 SOUTHERN DISTRICT OF CALIFORNIA

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10 JUAN SANCHEZ-RIVERA, Case No. 20cv1264-MMA-MSB

Reg. No. 073-830-803,

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ORDER DISMISSING FIRST

12 AMENDED COMPLAINT FOR

Plaintiff,

FAILING TO STATE A CLAIM

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vs. PURSUANT TO 28 U.S.C. §

14 1915(e)(2)(B)

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JORGE BRIBIESCA; ALEX

16 PALACIOS; SIXTO MARRERO;

EDWARD E. RUIZ; NICK

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RODRIGUEZ; JOSE BUILTEMAN;

18 GEORGE CORTEZ,

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20 Defendants.

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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.

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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

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