noting that claims dismissed with leave 7 to amend which are not re-alleged in an amended pleading may be “considered waived if 8 not repled”
How later courts described this case
- noting that claims dismissed with leave 7 to amend which are not re-alleged in an amended pleading may be “considered waived if 8 not repled”
- “[A]n amended pleading supersedes the original.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 TRESOR NDANDU, Case No.: 3:23-cv-00792-WQH-KSC
12 Plaintiff,
ORDER
13 v.
14 OFFICER SASSO; OFFICER
GONZALEZ; LIEUTENANT
15
YATES; DETENTION
16 WARDEN,
17 Defendants.
18 HAYES, Judge:
19 I. BACKGROUND
20 On April 26, 2023, Plaintiff Tresor Ndandu (“Plaintiff”), proceeding pro se, initiated
21 this action by filing a civil rights Complaint against Defendant Golden State Annex (ICE)
22 Detention Center, a privately-operated federal detention facility. (ECF No. 1.) On the same
23 day, Plaintiff filed an Application to Proceed in District Court without Prepaying Fees or
24 Costs (“Motion to Proceed In Forma Pauperis”) (ECF No. 2) and Request for Appointment
25 of Counsel (ECF No. 3).
26 On May 18, 2023, the Court issued an Order granting the Motion to Proceed In
27 Forma Pauperis, denying the Request for Appointment of Counsel, and sua sponte
28 dismissing the Complaint for failure to state a claim. ECF No. 5; see also 28 U.S.C. §
1 1915(e)(2). Specifically, the Court held that Plaintiff’s Bivens claim could not be brought
2 against Defendant Golden State Annex (ICE) Detention Center, a prison facility, and noted
3 that even if Plaintiff alleged claims against individual officials, “the Supreme Court and
4 Court of Appeals have expressly declined to create Bivens remedies for constitutional
5 violations similar to those alleged in this action.” (ECF No. 5 at 4, 5 n.3.) The Court granted
6 Plaintiff thirty days to file a motion for leave to amend the Complaint and instructed
7 Plaintiff that the motion “must be accompanied by a copy of the proposed amended
8 complaint that is complete in itself without reference to the original Complaint.” Id. at 5
9 n.4 (quoting S.D. Cal. CivLR 15.1).
10 On June 7, 2023, Plaintiff filed a Motion for Leave to Amend. (ECF No. 6.) Because
11 the motion was not accompanied by a proposed amended complaint, the Court deferred
12 ruling on the motion and granted Plaintiff an additional thirty days to file a proposed
13 amended complaint. (ECF No. 7.) The Court again instructed Plaintiff that the “proposed
14 amended complaint must be complete in itself without reference to the original Complaint.”
15 Id. at 2.
16 On July 12, 2023, Plaintiff filed a document requesting an extension of time to file
17 the proposed amended complaint. (ECF No. 8.)
18 On July 14, 2023, the Court granted Plaintiff’s Motion for Leave to Amend.1 (ECF
19 No. 9.)
20 On August 8, 2023, Plaintiff filed an Amended Complaint asserting Bivens claims
21 against Officer Sasso, Officer Gonzalez, Lieutenant Yates, and Detention Warden
22 (collectively, “Defendants”). (ECF No. 11.)
23 / / /
24 / / /
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27 1 Plaintiff never filed a proposed amended complaint, however, the Court determined that “it is preferable
to grant Plaintiff leave to amend and review any amended complaint, when filed, under the required sua
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1 II. SUA SPONTE SCREENING
2 A. Legal Standard
3 As the Court stated in its previous Order, because Plaintiff is proceeding IFP, his
4 Complaint requires a pre-answer screening pursuant to 28 U.S.C. § 1915(e)(2). Under this
5 statute, the Court must sua sponte dismiss an IFP complaint, or any portion of it, which is
6 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are
7 immune. See Williams v. King, 875 F.3d 500, 502 (9th Cir. 2017). “The purpose of
8 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the
9 expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014)
10 (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
11 “The standard for determining whether a plaintiff has failed to state a claim upon
12 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
13 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
14 1108, 1112 (9th Cir. 2012). Federal Rules of Civil Procedure 8 and 12(b)(6) require a
15 complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief
16 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
17 quotations omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals
18 of the elements of a cause of action, supported by mere conclusory statements, do not
19 suffice.” Id. “Determining whether a complaint states a plausible claim for relief [is] ... a
20 context-specific task that requires the reviewing court to draw on its judicial experience
21 and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the
22 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility
23 standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
24 However, “courts must construe pro se pleadings liberally.” Resnick v. Hayes, 213 F.3d
25 443, 447 (9th Cir. 2000).
26 B. Allegations
27 Plaintiff’s Amended Complaint does not state any facts. Instead, the Amended
28 Complaint states that “this is Amend[ed] Complaint in case 3:23-cv-00792-WQH-WGV.”
1 (ECF No. 11 at 3.) It appears Plaintiff is attempting to incorporate by reference the facts
2 alleged in the original Complaint.
3 In the Court’s Order dismissing the case, the Court instructed Plaintiff that the
4 amended complaint must be “complete in itself without reference to the original
5 Complaint.” ECF No. 5 at 5 n.4 (quoting S.D. Cal. CivLR 15.1); see also Lacey v.
6 Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave
7 to amend which are not re-alleged in an amended pleading may be “considered waived if
8 not repled”); Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th
9 Cir. 1989) (“[A]n amended pleading supersedes the original.”). The Amended Complaint
10 is subject to dismissal on this basis alone. However, in light of the liberal standard applied
11 to pro se litigants, see Resnick, 213 F.3d at 447, the Court considers the facts alleged in the
12 original Complaint.
13 The Complaint alleges that on May 14, 2022, while Plaintiff was detained at Golden
14 State Annex (ICE) Detention Center, “Officer Sasso ordered [Plaintiff] to put down [ ]
15 religious pictures” that were hanging on a “wall by [his] bunk area.” (ECF No. 1 at 2.)
16 After Plaintiff refused to do so, Officer Sasso “got mad” and called Plaintiff a “monk[e]y.”
17 Id. Plaintiff then “threatened to sue her and the facility.” Id. In “retaliation,” Plaintiff was
18 sent to administrative segregation by Lieutenant Yates. Id. Other officers released
19 Plaintiff’s family information to other detainees who were “active gang members” and who
20 threatened to “jump[]” Plaintiff. Id. Plaintiff was “harassed by the staff and detainees,”
21 including Officer Gonzalez who was “sex playing [Plaintiff] in the dorm and by [the] rec
22 yard.” Id. As a result, Plaintiff experienced “anxiety” and feared his “family [would] be
23 target[ed].” Id.
24 Plaintiff asserts a Bivens claim against Officer Sasso in her official capacity for
25 violations of the First, Fifth, and Eighth Amendments. (ECF No. 11 at 2.) Plaintiff asserts
26 an unspecified Bivens claim against Officer Gonzalez and Lieutenant Yates in their official
27 capacity. Id. Plaintiff asserts a Bivens claim for violation of the Fourth Amendment against
28 Detention Warden in an individual capacity. Id. Plaintiff generally asserts claims for a
1 human rights violation and religious discrimination. Id. at 4–5. Plaintiff seeks a permanent
2 injunction, $20 million in damages, and $20 million in punitive damages. Id. at 7.
3 C. Discussion
4 As an initial matter, Plaintiff brings claims against Detention Warden in an
5 individual capacity, and against Officer Sasso, Officer Gonzalez, and Lieutenant Yates in
6 an official capacity. (ECF No. 11 at 2.) “[N]o Bivens-like cause of action is available
7 against federal agencies or federal agents sued in their official capacities.” Ibrahim v. Dep’t
8 of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008). The Court can dismiss the claims
9 against Officer Sasso, Officer Gonzalez, and Lieutenant Yates on this basis alone. Further,
10 Plaintiff does not specify who the claims for a human rights violation and religious
11 discrimination are brought against. However, the Court liberally construes the Amended
12 Complaint below, and considers whether Plaintiff has stated a claim against Officer Sasso,
13 Officer Gonzalez, and Lieutenant Yates in their individual capacities.
14 Courts recognize a narrow category of causes of action that may be brought against
15 federal officials for alleged civil rights violations. “In Bivens v. Six Unknown Fed.
16 Narcotics Agents, 403 U.S. 388 [(1971)], the Court broke new ground by holding that a
17 person claiming to be a victim of an unlawful arrest and search could bring a Fourth
18 Amendment claim for damages against the responsible agents even though no federal
19 statute authorized such a claim.” Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020) (internal
20 parallel citations omitted). Following Bivens, the Supreme Court expanded the implied
21 cause of action twice, recognizing a Bivens remedy in the context of a Fifth Amendment
22 claim based on gender discrimination, Davis v. Passman, 442 U.S. 228, 230–31 (1979),
23 and Eighth Amendment inadequate medical care claims raised by a federal prisoner’s
24 decedents, Carlson v. Green, 446 U.S. 14, 24–25 (1980).
25 Since those cases, however, the Supreme Court has “consistently refused to extend
26 Bivens to any new context or new category of defendants.” Ziglar v. Abbasi, 582 U.S. 120,
27 132 (2017) (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). “Rather than
28 dispense with Bivens, the [Supreme] Court now emphasizes that recognizing a Bivens cause
1 of action is ‘a disfavored judicial activity.’” Egbert v. Boule, 596 U.S. 482, 483 (2022)
2 (quoting Abbasi, 582 U.S. at 121); see also Hernandez, 140 S. Ct. at 742–43 (“We have
3 stated that expansion of Bivens is ‘a disfavored judicial activity,’ and have gone so far as
4 to observe that if ‘the Court’s three Bivens cases [had] been ... decided today,’ it is doubtful
5 that we would have reached the same result ….” (quoting Abbasi, 582 U.S. at 134–35)
6 (internal citations and quotation marks omitted) (alterations in original)).
7 Here, Plaintiff alleges religious discrimination by Officer Sasso for ordering Plaintiff
8 to “put down” his “religious pictures off the wall.” (ECF No. 1 at 2.) Plaintiff also alleges
9 “retaliation” by Lieutenant Yates for sending Plaintiff into administrative segregation after
10 Plaintiff “threatened to sue [Officer Sasso] and the facility.” Id.
11 The Supreme Court has specifically declined to recognize a Bivens action for First
12 Amendment retaliation claims. Egbert, 596 U.S. at 498 (“[T]here is no Bivens action for
13 First Amendment retaliation.”). Although the Court has never addressed whether Bivens
14 extends to a Free Exercise claim, it has repeatedly made clear that it has “never held that
15 Bivens extends to First Amendment claims.” Id. (quoting Reichle v. Howards, 566 U.S.
16 658, 663 n.4 (2012)); see also Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to extend
17 Bivens to a First Amendment speech claim involving federal employment).
18 However, even assuming a Bivens remedy is available for Plaintiff’s Free Exercise
19 claim, the Amended Complaint fails to state a claim for relief under the First Amendment.
20 To bring a Free Exercise claim, an inmate must show that correctional officers substantially
21 burdened the practice of the inmate’s religion without any justification reasonably related
22 to a legitimate penological purpose. See O’Lone v. Shabazz, 482 U.S. 342, 348–50 (1987);
23 Jones v. Williams, 791 F.3d 1023, 1031–33 (9th Cir. 2015). “A substantial burden ...
24 place[s] more than an inconvenience on religious exercise; it must have a tendency to
25 coerce individuals into acting contrary to their religious beliefs or exert substantial pressure
26 on an adherent to modify his behavior and to violate his beliefs.” Ohno v. Yasuma, 723
27 F.3d 984, 1011 (9th Cir. 2013) (quoting Guru Nanak Sikh Soc’y of Yuba Cty. v. Cnty. of
28 Sutter, 456 F.3d 978, 988 (9th Cir. 2006) (alterations omitted)). Intrusions that are
1 “relatively short-term and sporadic” do not constitute a substantial burden on the free
2 exercise of religion. Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998); see also
3 Brown v. Washington, 752 Fed. App’x 402, 405 (9th Cir. 2018) (“[An] isolated incident
4 [of interference] is not enough to constitute a substantial burden on plaintiff’s religious
5 beliefs.”).
6 Here, the only allegation pertaining to Plaintiff’s religious beliefs is that Officer
7 Sasso ordered Plaintiff to take religious pictures off the wall in his bunk area. This single
8 isolated instance of interference is not sufficient to support a plausible inference that his
9 right to free exercise of religion was substantially burdened. See Canell, 143 F.3d at 1215.
10 To the extent Plaintiff alleges a cruel and unusual punishment claim under the Eighth
11 Amendment, the Supreme Court has made clear that a Bivens remedy is not available in
12 this context. “Where, as here, a federal prisoner seeks damages from privately employed
13 personnel working at a privately operated federal prison, where the conduct allegedly
14 amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that
15 typically falls within the scope of traditional state tort law …, the prisoner must seek a
16 remedy under state tort law. We cannot simply imply a Bivens remedy in such a case.”
17 Minneci v. Pollard, 565 U.S. 118, 131 (2012); see also Karboau v. Clark, 577 Fed. App’x
18 678, 679 (9th Cir. 2014) (applying Minneci to preclude a Bivens remedy against employees
19 of a private entity running a federal immigration detention center).
20 As to any alleged Fifth Amendment violation, to the extent Plaintiff alleges his
21 administrative segregation violated his procedural due process rights, Plaintiff cannot
22 maintain a Bivens action. Vega v. United States, 881 F.3d 1146, 1155 (9th Cir. 2018)
23 (declining to expand Bivens in the context of “Fifth Amendment procedural due process
24 claims arising out of a prison disciplinary process”).
25 As to any alleged Fourth Amendment violation, assuming a Bivens remedy exists,
26 Plaintiff fails to state a claim. “The threshold inquiry in any Fourth Amendment analysis
27 is whether the government’s conduct is included in the Amendment’s coverage, in other
28 words, whether it amounts to a ‘search’ [or ‘seizure’] for constitutional purposes.” United
1 || States v. Gonzalez, 328 F.3d 543, 546 (9th Cir. 2003). Plaintiff does not plead any facts
2 || that can be interpreted as either a search or seizure.
3 As to any claim for a human rights violation, Plaintiff has not specified any statutory,
4 ||constitutional, or international law basis for this alleged violation. Accordingly, the
5 || Amended Complaint is dismissed without prejudice for failure to state a claim on which
6 relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(11).
7 10. LEAVE TO AMEND
8 As discussed, the Court finds Plaintiff's Amended Complaint fails to state any claim
9 upon which relief can be granted and must be dismissed sua sponte in its entirety pursuant
10 || to 28 U.S.C. §§ 1915(e)(2)(B)Gi) and 1915A(b)(1). Because Plaintiff is proceeding pro se,
11 Court, having now provided him “notice of the deficiencies in his complaint” for a
12 ||second time, will grant him another opportunity to fix them. Akhtar v. Mesa, 698 F.3d
13 |] 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)).
14 || Plaintiff is also reminded that an amended complaint must be a complete document in and
15 |/of itself. See S.D. Cal. CivLR 15.1(a) (stating that an amended pleading “must be complete
16 itself without reference to the superseded pleading”).
17 || IV. CONCLUSION
18 IT IS HEREBY ORDERED that the Amended Complaint is dismissed without
19 || prejudice. No later than thirty (30) days from the date of this Order, Plaintiff may file a
20 || second amended complaint. Ifno amended complaint is filed, the Court will order the Clerk
21 the Court to close this case.
22 ||Dated: January 8, 2024 BE: eg Ze. A a
23 Hon, William Q. Hayes
4 United States District Court
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