“A district court should not dismiss a pro 2 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 3 is absolutely clear that the deficiencies of the complaint could not be cured by 4 amendment.’”
How later courts described this case
- “A district court should not dismiss a pro 2 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it 3 is absolutely clear that the deficiencies of the complaint could not be cured by 4 amendment.’”
- noting that claims dismissed 7 || with leave to amend which are not re-alleged in an amended pleading may be “considered 8 || waived if not repled.”
- “The inquiry into causation 1 must be individualized and focus on the duties and responsibilities of each individual 2 defendant whose acts or omissions are alleged to have caused a constitutional 3 deprivation.”
- “We have never held that Bivens extends to First Amendment claims.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 ISAIAH LAMAR BARRETT, Case No.: 21cv1603-CAB (JLB)
BOOKING #95410-298,
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ORDER:
Plaintiff,
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vs. (1) GRANTING MOTIONS TO
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PROCEED IN FORMA PAUPERIS,
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GEO Group, Inc., et al.,
(2) DENYING MOTION FOR
16 Defendants. APPOINTMENT OF COUNSEL,
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AND
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19 (3) DISMISSING COMPLAINT
WITH LEAVE TO AMEND
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PURSUANT TO 28 U.S.C.
21 § 1915(e)(2)(B)
22
23 Plaintiff Isaiah LaMar Barrett, detained at the Western Region Detention Facility in
24 San Diego, California, at the time of the events, but since transferred to the Otay Mesa
25 Detention Center in San Diego, California, is proceeding pro se in this civil rights action.
26 (ECF No. 1.) Plaintiff claims he was subjected to cruel and unusual punishment in
27 violation of the Eighth Amendment and deprived of his rights to freedom of religion and
28 free speech in violation of the First Amendment, when he was forcibly removed from his
1 cell and had religious items confiscated in retaliation for religious activities. (Id. at 5-8.)
2 He names as Defendants GEO Group, Inc., a private corporation operating the Western
3 Region Detention Facility under a contract with the federal government, and eight
4 Correctional Officers employed there by GEO Group, Inc. (Id. at 2-4.)
5 On October 1, 2021, the Court denied Plaintiff’s motion to proceed in forma pauperis
6 (“IFP”) and dismissed the action without prejudice for failure to satisfy the filing fee
7 requirement. (ECF No. 3.) Plaintiff has now filed two additional motions to proceed IFP
8 (ECF Nos. 4-5) and a motion for appointment of counsel (ECF No. 7).
9 I. Motions to Proceed IFP
10 All parties instituting any civil action, suit or proceeding in a district court of the
11 United States, except an application for writ of habeas corpus, must pay a filing fee of
12 $402.1 See 28 U.S.C. § 1914(a). The action may proceed despite a failure to prepay the
13 entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See
14 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007).
15 Prisoners seeking leave to proceed IFP must submit a “certified copy of the trust
16 fund account statement (or institutional equivalent) for . . . the 6-month period immediately
17 preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d
18 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses
19 an initial payment of 20% of (a) the average monthly deposits in the account for the past
20 six months, or (b) the average monthly balance in the account for the past six months,
21 whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1)&(4).
22 The institution collects subsequent payments, assessed at 20% of the preceding month’s
23 income, in any month in which the account exceeds $10, and forwards those payments to
24 the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2). Plaintiff remains
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27 1 In addition to a $350 fee, civil litigants, other than those granted leave to proceed IFP,
must pay an additional administrative fee of $52. See 28 U.S.C. § 1914(a) (Judicial
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1 obligated to pay the entire fee in monthly installments regardless of whether the action is
2 ultimately dismissed. Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1)
3 & (2).
4 As defined by the PLRA, a “prisoner” is “any person incarcerated or detained in any
5 facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,
6 violations of criminal law or the terms and conditions of parole, probation, pretrial release,
7 or diversionary program.” 28 U.S.C. § 1915(h). A person detained and subject to removal
8 or deportation, however, is not a “prisoner” under § 1915(h), “so long as he does not also
9 face criminal charges.” Agyeman v. INS, 296 F.3d 871, 885-86 (9th Cir. 2002).
10 Plaintiff provides no details regarding the reason for his incarceration at the Western
11 Region Detention Facility when he initiated this action. It appears he is detained by the
12 United States Immigration and Customs enforcement pending removal without criminal
13 charges and therefore does not qualify as a “prisoner” as defined by 28 U.S.C. § 1915(h),
14 which, if true, means the filing fee provisions of 28 U.S.C. § 1915(b) would not be
15 applicable to this case. Agyeman, 296 F.3d at 885-86. A review of Plaintiff’s affidavits of
16 assets (see ECF No. 4 at 4-5; ECF No. 5 at 1-5), show he is unable at this time to pay the
17 fees or post securities required to maintain a civil action. See S.D. CAL. CIVLR 3.2(d).
18 Accordingly, Plaintiff’s Motions to Proceed IFP (ECF Nos. 4-5) are GRANTED.2
19 II. SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)
20 A. Standard of Review
21 Irrespective of whether Plaintiff is a prisoner or a civil detainee, a complaint filed by
22 any person proceeding IFP is subject to sua sponte dismissal if it is “frivolous, malicious,
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25 2 If Plaintiff is a prisoner within the meaning of the PLRA filing fee provision the Court
would still grant him leave to proceed IFP. However, based on his certified trust account
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statement (see ECF No. 4 at 4), an initial payment of $12.11 would be due and he would
27 remain obligated to pay the remaining $337.89 in monthly installments even if this action
is ultimately dismissed. Bruce, 577 U.S. at 84; 28 U.S.C. § 1915(b)(1)&(2). The Court
28
1 fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a
2 defendant immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254
3 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that “the provisions of 28 U.S.C.
4 § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1127 (9th
5 Cir. 2000) (en banc) (“[S]ection 1915(e) not only permits but requires a district court to
6 dismiss an in forma pauperis complaint that fails to state a claim.”)
7 “The standard for determining whether a plaintiff has failed to state a claim upon
8 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
9 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
10 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint to “contain sufficient
11 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550
13 U.S. 544, 570 (2007).
14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the
15 elements of a cause of action, supported by mere conclusory statements, do not suffice.”
16 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief
17 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
18 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,
19 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting that standard. Id.
20 B. Plaintiff’s Allegations
21 Plaintiff alleges he was incarcerated at the Western Region Detention Facility on
22 May 23, 2021, and that:
23 I believe God has given me a prison ministry. So while confined in this
Western Region Detention Facility I preach the Gospel. Some inmates didn’t
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like my preaching because they were Muslims, so they told the Correctional
25 Officers to get rid of me & to shut me up. They couldn’t do it themselves,
because of my age 67 I’m considered a OG (Old Gangster) they couldn’t lay
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hands on me. So they forced the guards, after two days of negotiations, to
27 remove me from my cell because of religions reasons.
28 (ECF No. 1 at 5.)
1 Plaintiff alleges that Defendant Lieutenant Sprayberry had his mattress and
2 footlocker removed from his cell, and while Plaintiff was lying on the cement floor
3 Sprayberry ordered the Correctional Emergency Response Team (“CERT”) to “violate[]
4 my civil rights of freedom of speech and freedom of religion.” (Id.) He identifies the
5 members of that CERT as consisting of Defendants Correctional Officers Rubio, R. Padilla,
6 J. Mora, L. Guillen, J. Gomez and D. Henderson, along with Defendant Facility
7 Administrator E. Noonan. (Id.)
8 Plaintiff alleges that on July 18, 2021, Defendant Rubio with the authorization of the
9 facility administrator “removed my bibles along with my other Christian material out of
10 my cell along with my mattress and other Christian literature held within my footlocker
11 was removed because of my preaching the Gospel.” (Id. at 6.) Plaintiff states that he was
12 lying on the floor of his cell being non-resistant when Defendant Rubio sprayed him with
13 OC spray, and then removed from his cell by a CERT which consisted at that time of
14 Defendants Rubio, R. Padilla, L. Guillen, J. Gomez and D. Henderson, which he contends
15 was authorized by Defendant Noonan. (Id. at 6-7.) Plaintiff states that Defendant Padilla
16 grabbed his head while Defendants Mora and Guillen grabbed his left and right arms as
17 Guillen handcuffed him, and Defendants Henderson and Gomez grabbed his right and left
18 legs while Gomez placed him in leg restraints. (Id. at 7.)
19 Plaintiff claims he was subjected to cruel and unusual punishment and denied his
20 rights to freedom of religion and free speech. (Id. at 5-7.) He seeks compensatory and
21 punitive damages. (Id. at 9.)
22 C. Analysis
23 The Complaint indicates this action is brought under 42 U.S.C. § 1983. (See ECF
24 No. 1 at 1.) Title 42 U.S.C. § 1983 “creates a private right of action against individuals
25 who, acting under color of state law, violate federal constitutional or statutory rights.”
26 Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001). “Section 1983, however,
27 provides no right of action against federal (rather than state) officials.” Russell v. United
28 States Dept. of the Army, 191 F.3d 1016, 1019 (9th Cir. 1999). To the extent Plaintiff has
1 named federal rather than state actors as Defendants, his Complaint is properly construed
2 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
3 U.S. 388 (1971). See Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991) (“Actions
4 under § 1983 and those under Bivens are identical save for the replacement of a state actor
5 under § 1983 by a federal actor under Bivens.”)
6 The Defendants named in this action include GEO Group, Inc., a private corporation
7 operating the Western Region Detention Facility under a contract with the federal
8 government, and eight Correctional Officers employed there by GEO Group, Inc. (ECF
9 No. 1 at 2-4.) Plaintiff may not assert a Bivens claim against Defendant GEO Group, Inc.
10 See Correctional Services Corp. v. Malesko, 534 U.S. 61, 66-74 (2001) (Bivens liability
11 does not extend to a private corporation operating a facility under contract with the federal
12 government); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir.
13 2004) (same). With respect to the remaining Defendants, individual Correctional Officers
14 employed by GEO Group, Inc., Plaintiff’s federal constitutional claims are required to be
15 brought, if at all, pursuant to Bivens. Agyeman, 390 F.3d at 1103.
16 With respect to Plaintiff’s Eighth Amendment cruel and unusual punishment claim
17 arising from his cell extraction, he cannot maintain a Bivens cause of action against the
18 individual Defendants. “Where, as here, a federal prisoner seeks damages from privately
19 employed personnel working at a privately operated federal prison, where the conduct
20 allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a
21 kind that typically falls within the scope of traditional state tort law . . ., the prisoner must
22 seek a remedy under state tort law. We cannot simply imply a Bivens remedy in such a
23 case.” Minneci v. Pollard, 565 U.S. 118, 131 (2012). The Ninth Circuit has applied
24 Pollard to preclude Bivens remedies for Eighth Amendment claims against employees of
25 the GEO Group, Inc. in its capacity of operating a federal immigration detention facility.
26 See Karboau v. Clark, 577 Fed.Appx. 678, 679 (9th Cir. 2014) (affirming dismissal of
27 Eighth Amendment claims against individual employees of GEO Group, Inc., because the
28 exclusive remedy is pursuant to state tort law).
1 With respect to Plaintiff’s First Amendment claim that his religious items were
2 confiscated in retaliation for his religious activities, it is unclear whether Plaintiff can bring
3 a Bivens cause of action against the individual Defendants. See Vega v. United States, 881
4 F.3d 1146, 1153 (9th Cir. 2018) (“The Supreme Court has never explicitly recognized a
5 Bivens remedy for a First Amendment claim.”), citing Reichle v. Howards, 566 U.S. 658,
6 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”);
7 Iqbal, 556 U.S. at 675 (assuming without deciding that Bivens extends to a First
8 Amendment free exercise claim).
9 It appears unlikely that Bivens can be extended to reach Plaintiff’s First Amendment
10 retaliation and free exercise claims because “expanding the Bivens remedy is now a
11 ‘disfavored’ judicial activity.” Ziglar v. Abassi, 582 U.S. ___, ___, 137 S.Ct. 1843, 1857
12 (2017), quoting Iqbal, 556 U.S. at 675. The Court need not reach that issue at this time
13 however, because assuming Plaintiff can bring such a claim under Bivens the Complaint as
14 currently drafted fails to state such a claim. “[A] viable claim of First Amendment
15 retaliation entails five basic elements: (1) An assertion that a state actor took some adverse
16 action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such
17 action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action
18 did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d
19 559, 567-68 (2005). The adverse action need not be an independent constitutional
20 violation. Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“[A] retaliation claim
21 may assert an injury no more tangible than a chilling effect on First Amendment rights.”)
22 Even to the extent Plaintiff can satisfy those pleading requirements, he must also
23 allege a retaliatory motive, that is, a causal connection between the adverse action and his
24 protected conduct. Watison, 668 F.3d at 1114. Plaintiff alleges that other inmates “forced
25 the guards, after two days of negotiations, to remove me from my cell because of religions
26 reasons,” and that Defendant Rubio, with the authorization of the facility administrator,
27 “removed my bibles along with my other Christian material out of my cell along with my
28 mattress and other Christian literature held within my footlocker was removed because of
1 my preaching the Gospel.” (ECF No. 1 at 5-6.) Conclusory allegations the Defendants
2 acted with a retaliatory motive are insufficient to state a retaliation claim. See Pratt v.
3 Rowland, 65 F.3d 802, 808 (9th Cir. 1995) (concluding that, in the absence of factual
4 allegations to the contrary, it would be “sheer speculation” to assume that prison officials
5 retaliated on the basis of an inmate’s First Amendment activity). Plaintiff alleges in a
6 conclusory fashion that other inmates did not want him to engage in religious activities and
7 “forced the guards” to remove him from his cell and confiscate his religious items because
8 they could not do it themselves, but there are no factual allegations in the Complaint
9 regarding how the guards were forced to act or what motivated them to act which plausibly
10 alleges any Defendant took any action in retaliation for Plaintiff’s religious activities and
11 that their actions did not reasonably advance a legitimate correctional goal. See Iqbal, 556
12 U.S. at 678 (the “mere possibility of misconduct” or “unadorned, the defendant-
13 unlawfully-harmed me accusation[s]” do not state a § 1983 claim for relief); McElyea v.
14 Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam) (“The free exercise right, however,
15 is necessarily limited by the fact of incarceration, and may be curtailed in order to achieve
16 legitimate correctional goals or to maintain prison security.”)
17 In addition, there are no factual allegations with respect to any individual Defendant
18 with respect to the First Amendment claim, other than Defendant Rubio who is alleged to
19 have acted with the authorization of an unnamed facility administrator. A defendant is
20 liable when he or she “personally participated” in the alleged constitutional deprivation.
21 Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Iqbal, 556 U.S. at 676 (“[A] plaintiff
22 must plead that each Government-official defendant, through the official’s own individual
23 actions, has violated the Constitution.”) To the extent Plaintiff contends that any named
24 Defendant is liable as a supervisor of the other Defendants, supervisory officials may only
25 be held liable if the Complaint alleges their “personal involvement in the constitutional
26 deprivation, or . . . a sufficient causal connection between the supervisor’s wrongful
27 conduct and the constitutional violation.” Keates v. Koile, 883 F.3d 1228, 1242-43 (9th
28 Cir. 2018); Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into causation
1 must be individualized and focus on the duties and responsibilities of each individual
2 defendant whose acts or omissions are alleged to have caused a constitutional
3 deprivation.”); Abassi, 137 S.Ct. at 1860 (“Bivens is not designed to hold officers
4 responsible for acts of their subordinates.”)
5 Finally, to the extent Plaintiff attempts to bring a First Amendment claim for
6 interference with his religious activities, he must plausibly allege that an official took an
7 action which: (a) “substantially burdens the person’s practice of her religion” and (b) was
8 not “reasonably related to legitimate penological interests.” Jones v. Williams, 791 F.3d
9 1023, 1031-33 (9th Cir. 2015), quoting O’Lone v. Estate of Shabazz, 482 U.S. 432, 248
10 (1987). “[G]overnment action places a substantial burden on an individual’s right to free
11 exercise of religion when it tends to coerce the individual to forego her sincerely held
12 religious beliefs or to engage in conduct that violates those beliefs.” Id. at 1033. However,
13 “relatively short-term and sporadic” intrusions do not constitute a substantial burden on the
14 free exercise of religion. Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998); Brown
15 v. Washington, 752 Fed. Appx. 402, 405 (9th Cir. 2018) (noting that a “one time set of
16 circumstances” or an “isolated incident” is insufficient to constitute a “substantial burden
17 of plaintiff’s religious beliefs” under the First Amendment). The Complaint as drafted
18 merely alleges a single isolated instance of interference with his religious activities when
19 his “bibles along with my other Christian material” were removed from his cell (ECF No.
20 1 at 5-6), but contains no factual allegations regarding the duration of any lack of access to
21 his religious property sufficient to support a plausible inference that his right to the free
22 exercise of religion was substantially burdened. Canell, 143 F.3d at 1215.
23 Accordingly, the Court sua sponte dismisses all claims in the Complaint against all
24 Defendants because as currently drafted the Complaint fails to state a claim upon which
25 relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); Watison, 668 F.3d at 1112.
26 D. Leave to Amend
27 In light of Plaintiff’s pro se status, the Court grants him leave to amend to attempt
28 to sufficiently allege a claim against the dismissed Defendants if he can. See Rosati v.
1 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
2 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it
3 is absolutely clear that the deficiencies of the complaint could not be cured by
4 amendment.’”), quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
5 III. Motion for Appointment of Counsel
6 Plaintiff requests the Court appoint him counsel because he is unfamiliar with federal
7 civil litigation and lacks the knowledge or experience regarding discovery. (ECF No. 7 at
8 3.) All documents filed pro se are liberally construed, and “a pro se complaint, however
9 inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
10 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). There is no constitutional right
11 to counsel in a civil case, and the decision to appoint counsel under 28 U.S.C. § 1915(e)(1)
12 is within “the sound discretion of the trial court and is granted only in exceptional
13 circumstances.” Agyeman, 390 F.3d at 1103. Exceptional circumstances exist where there
14 is a cumulative showing of both a likelihood of success on the merits and an inability of
15 the pro se litigant to articulate his claims in light of their legal complexity. Palmer v.
16 Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
17 Plaintiff’s Complaint demonstrates he is capable of legibly articulating the facts and
18 circumstances relevant to his claims, and, as discussed above, he has yet to show a
19 likelihood of success on the merits. Accordingly, Plaintiff’s motion for appointment of
20 counsel is DENIED without prejudice.
21 IV. Conclusion and Orders
22 Good cause appearing, the Court:
23 1. GRANTS Plaintiff’s Motions to Proceed IFP (ECF Nos. 4-5).
24 2. DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 7).
25 3. DISMISSES all claims against all Defendants in the Complaint without
26 prejudice and with leave to amend pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii).
27 4. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
28 which to file a First Amended Complaint which cures the deficiencies of pleading noted in
1 || this Order with respect to any or all other Defendants. Plaintiffs First Amended Complaint
2 ||must be complete by itself without reference to his original Complaint; Defendants not
3 ||named and any claims not re-alleged in the First Amended Complaint will be considered
4 || waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
5 || 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading supersedes the original.”);
6 || Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed
7 || with leave to amend which are not re-alleged in an amended pleading may be “considered
8 || waived if not repled.”) If Plaintiff fails to amend within the time provided, the Court will
9 ||enter a final Order dismissing this civil action. See Lira v. Herrera, 427 F.3d 1164, 1169
10 Cir. 2005) (‘If a plaintiff does not take advantage of the opportunity to fix his
11 |}complaint, a district court may convert the dismissal of the complaint into dismissal of the
12 || entire action.”’)
13 5. DIRECTS the Clerk of the Court to provide Plaintiff with a blank copy of its
14 Bivens Complaint for use in amending should he choose to do so.
15 IT IS SO ORDERED.
16 ||Dated: December 2, 2021 €
17
Hon. Cathy Ann Bencivengo
18 United States District Judge
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