Gonzalez v. GEO Western Detention Facility

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 RAUL GONZALEZ, Case No.: 3:24-cv-00257-WQH-AHG

USMS #10141506,

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ORDER GRANTING MOTION TO

Plaintiff,

13 PROCEED IN FORMA PAUPERIS

vs. AND DISMISSING COMPLAINT

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FOR FAILING TO STATE A CLAIM

GEO WESTERN DETENTION

15 PURSUANT TO 28 U.S.C. § 1915(e)(2)

FACILITY; N. VAZQUEZ, GEO Facility

AND 28 U.S.C. § 1915A(b)

16 Administrator; CARNEY, Associate

Warden; T. HARTLEY, GEO Counselor,

17 [ECF No. 2]

Defendants.

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20 HAYES, Judge:

21 Before the Court is a civil complaint filed pursuant to Bivens v. Six Unknown Federal

22 Narcotics Agents, 403 U.S. 388 (1971), by Plaintiff Raul Gonzalez, a federal pretrial

23 detainee at GEO’s Western Region Detention Facility (“WRDF”) in San Diego,1 who is

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26 1 The Court takes judicial notice of Plaintiff’s ongoing criminal proceedings in United States v. Gonzalez,

S.D. Cal. Criminal Case No. 3:23-cr-02473-CAB-1. See Tigueros v. Adams, 658 F. 3d 983, 987 (9th Cir.

27 2011) (related proceedings, orders, and filings in other courts are subject to judicial notice); see also

United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.

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1 proceeding without counsel. (ECF No. 1.) Plaintiff claims WRDF, one of its administrators,

2 a counselor, and an associate warden violated his constitutional rights by failing to provide

3 access to his American Indian spiritual advisor. Id. at 2‒3. He seeks $20 million in general

4 and punitive damages but has not prepaid the filing fee required by 28 U.S.C. § 1914(a) to

5 commence a civil action. Id. at 5. Instead, Plaintiff seeks leave to proceed in forma pauperis

6 (“IFP”) pursuant to 28 U.S.C. § 1915(a). (ECF No. 2.)

7 For the reasons explained, the Court GRANTS Plaintiff leave to proceed IFP, but

8 DISMISSES his Complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)

9 because it fails to state a claim upon which Bivens relief may be granted.

10 I. MOTION TO PROCEED IFP

11 All parties instituting any civil action, suit, or proceeding in a district court of the

12 United States, except an application for writ of habeas corpus, must pay a filing fee.2 See

13 28 U.S.C. § 1914(a). The action may proceed despite a failure to pay the entire fee at the

14 time of filing only if the court grants the Plaintiff leave to proceed IFP pursuant to 28

15 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); cf.

16 Hymas v. U.S. Dep’t of the Interior, 73 F.4th 763, 765 (9th Cir. 2023) (“[W]here [an] IFP

17 application is denied altogether, Plaintiff’s case [cannot] proceed unless and until the fee[s]

18 [a]re paid.”).

19 “While the previous version of the IFP statute granted courts the authority to waive

20 fees for any person ‘unable to pay[,]’ … the PLRA [Prison Litigation Reform Act]

21 amended the IFP statute to include a carve-out for prisoners: under the current version of

22 the IFP statute, ‘if a prisoner brings a civil action or files an appeal in forma pauperis, the

23 prisoner shall be required to pay the full amount of a filing fee.’” Hymas, 73 F.4th at 767

24 (quoting 28 U.S.C. § 1915(b)(1)). Section 1915(b) “provides a structured timeline for

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2 In addition to the $350 statutory fee, civil litigants filing suit are required to pay an additional

27 administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court

Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The administrative portion of the fee does not apply to

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1 collecting this fee.” Id. (citing 28 U.S.C. § 1915(b)(1)–(2)).

2 To proceed IFP, prisoners must “submit[] an affidavit that includes a statement of

3 all assets [they] possess[,]” as well as a “certified copy of the[ir] trust fund account

4 statement (or institutional equivalent) for … the 6-month period immediately preceding the

5 filing of the complaint.” 28 U.S.C. § 1915(a)(1), (2); Andrews v. King, 398 F.3d 1113, 1119

6 (9th Cir. 2005). Using this financial information, the court “shall assess and when funds

7 exist, collect, … an initial partial filing fee,” which is “calculated based on ‘the average

8 monthly deposits to the prisoner’s account’ or ‘the average monthly balance in the

9 prisoner’s account’ over a 6-month term; the remainder of the fee is to be paid in ‘monthly

10 payments of 20 percent of the preceding month’s income credited to the prisoner’s

11 account.” Hymas, 73 F.4th at 767 (quoting 28 U.S.C. § 1915(b)(1)–(2)). Thus, while

12 prisoners may qualify to proceed IFP without having to pay the statutory filing fee in one

13 lump sum, they nevertheless remain obligated to pay the full amount due in monthly

14 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); 28 U.S.C. § 1915(b)(1) & (2);

15 Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

16 In support of his IFP Motion, Plaintiff has submitted a copy of his WRDF Resident

17 Account Summary, as well as a prison certificate authorized by a WRDF Case

18 Management Coordinator (ECF No. 2 at 4, 6). See 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR

19 3.2; Andrews, 398 F.3d at 1119. These documents show Plaintiff had no money deposited

20 to his trust account from the time of his arrest to the time of filing, and no available funds

21 to his credit. (ECF No. 2 at 4, 6.) Therefore, the Court GRANTS Plaintiff’s Motion to

22 Proceed IFP and declines to assess any initial filing fee because his trust account statements

23 show he “has no means to pay it.” Bruce, 577 U.S. 84–85. Instead, the Court DIRECTS

24 the Facility Administrator at WRDF, to garnish and collect the entire $350 balance of the

25 filing fees required by 28 U.S.C. § 1914 and to forward those fees to the Clerk of the Court

26 pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(2).

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1 II. SCREENING

2 A. Standard of Review

3 Because Plaintiff is a prisoner and is proceeding IFP, his Complaint requires a

4 preliminary review pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Under these statutes,

5 the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion found

6 frivolous, malicious, failing to state a claim, or seeking damages from defendants who are

7 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc) (discussing

8 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

9 (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the

10 targets of frivolous or malicious suits need not bear the expense of responding.’”

11 Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (citation omitted).

12 “The standard for determining whether a plaintiff has failed to state a claim upon

13 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

14 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

15 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

16 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

17 applied in the context of failure to state a claim under Federal Rule of Civil Procedure

18 12(b)(6)”).

19 Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to “contain

20 sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

21 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted);

22 Wilhelm, 680 F.3d at 1121. A complaint fails to state a claim if it lacks a “cognizable legal

23 theory” or “sufficient facts … to support a cognizable legal theory.” Shroyer v. New

24 Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v.

25 Block, 250 F.3d 729, 732 (9th Cir. 2001)). Detailed factual allegations are not required, but

26 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

27 statements, do not suffice.” Iqbal, 556 U.S. at 678. And while the court “ha[s] an obligation

28 where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings

1 liberally and to afford the petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d

2 338, 342 & n.7 (9th Cir. 2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.

3 1985)), it may not “supply essential elements of claims that were not initially pled.” Ivey

4 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

5 B. Factual Allegations and Claims

6 Plaintiff’s Complaint names the WRDF, its Facility Administrator Vazquez,

7 Associate Warden Carney, and Counselor Hartley as Defendants. (ECF No. 1 at 1‒2.) He

8 seeks damages against them pursuant to Bivens based on violations of his rights to due

9 process, which the Court construes to arise under the Fifth Amendment, and his right to

10 consult with his American Indian spiritual advisor, which the Court construes as a First

11 Amendment free exercise of religion claim.3 Id. at 1‒5.

12 Specifically, Plaintiff alleges he arrived at WRDF on December 8, 2023, and

13 embarked on a hunger strike for three days. Id. at 3. Plaintiff claims he is of Navajo and

14 Omaha descent and agreed to cease his strike if given access to his “Grandfather (A.M.I.)

15 Spiritual Advisor.” Id. Plaintiff submitted Detainee Request Forms, and made this request

16 several times to GEO Counselor T. Hartley, Associate Warden Carney, and Facility

17 Administrator Vazquez, all to no avail. Id. He attaches copies of these grievances to his

18 Complaint, including a letter in response from an unidentified WRDF official, dated

19 January 18, 2024. Id. at 6‒9. The letter reports that multiple attempts to locate an American

20 Indian spiritual advisor were attempted but unsuccessful, and he was given the opportunity

21 to provide additional contact information to WRDF’s chaplain in order to assist in locating

22 one. Id. at 7. Meanwhile, Plaintiff’s request for Native American devotional literature was

23 granted, and he was provided two books entitled 365 DAYS OF WALKING THE RED ROAD

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26 3 While courts have a duty to construe pro se pleadings and motions liberally, Bernhardt v. Los Angeles

County, 339 F.3d 920, 925 (9th Cir. 2003), and a complaint “need not identify the statutory or

27 constitutional source of the claim raised in order to survive … dismiss[al],” Alvarez v. Hill, 518 F.3d 1152,

1157‒58 (9th Cir. 2008), Plaintiff must still present factual allegations sufficient to state a plausible claim

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1 and MEDITATION WITH NATIVE AMERICAN ELDERS. Id. at 7.

2 C. Discussion

3 1. Bivens Claims against WRDF

4 First, the Court finds Plaintiff may not bring a Bivens suit against the WRDF. “The

5 purpose of Bivens is to deter individual federal officers from committing constitutional

6 violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001). Thus, even if Plaintiff

7 could state plausible due process or free exercise claims for relief against individual WRDF

8 officers Vazquez, Carney, or Hartley, the Court must dismiss all claims against WRDF

9 pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b) because WRDF is managed by the GEO

10 Group, a private corporation operating under a contract with the federal government.4

11 Bivens provides no implied right of action against WRDF itself. Malesko, 534 U.S. at 66‒

12 74 (holding that Bivens liability does not extend to a private corporation operating a facility

13 under contract with the federal government); see also Barrett v. GEO Grp., Inc., No.

14 21cv1603-CAB (JLB), 2021 WL 5741448, at *3 (S.D. Cal. Dec. 2, 2021) (noting GEO

15 Group contract with USMS to operate WRDF and dismissing prisoner’s Bivens action

16 against GEO Group sua sponte for failing to state a claim pursuant to 28 U.S.C.

17 §§ 1915(e)(2) and 1915A(b)).

18 2. Viability of Bivens Claims against WRDF Officials

19 Second, the Court finds Plaintiff’s due process and free exercise claims as alleged

20 against Defendants Vazquez,5 Carney, and Hartley also fail to state plausible claims for

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23 4 “The GEO Group (NYSE: GEO) (“GEO”) has three direct contracts with the U.S. Marshals Service

(“USMS”). One of these direct contracts involves the 770-bed Western Region Detention Facility in San

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Diego, California. GEO’s Western Region Detention Facility contract with the USMS extends through

25 September 30, 2027.” See https://investors.geogroup.com/news-releases/news-release-details/geo-group-

provides-update-us-marshals-service-contract-western (last viewed May 17, 2024).

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5 Because Plaintiff seeks to sue Vazquez in his official capacity only, see ECF No. 1 at 2, his claims fail

27 regardless of whether an implied cause of action under Bivens exists. See Consejo de Desarrollo

Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (“A Bivens action can

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1 relief under Bivens and must be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) &

2 1915A(b)(1).

3 “Constitutional rights do not typically come with a built-in cause of action to allow

4 for private enforcement in courts.” DeVillier v. Texas, 144 S. Ct. 938, 943 (2024) (citing

5 Egbert v. Boule, 596 U.S. 482, 490–491 (2022)). “Instead, constitutional rights are

6 generally invoked defensively in cases arising under other sources of law, or asserted

7 offensively pursuant to an independent cause of action designed for that purpose[.]” Id.

8 Courts recognize only a narrow category of implied causes of action that may be

9 brought against federal officials for alleged civil rights violations committed in their

10 individual capacities.6 “In Bivens […], the Court broke new ground by holding that a

11 person claiming to be the victim of an unlawful arrest and search could bring a Fourth

12 Amendment claim for damages against the responsible agents even though no federal

13 statute authorized such a claim.” Hernández v. Mesa, 589 U.S. 93, 99 (2020) (internal

14 citations omitted). The Supreme Court has expanded this implied cause of action only

15 twice, recognizing a Bivens remedy for a Fifth Amendment gender discrimination claim,

16 Davis v. Passman, 442 U.S. 228, 230–31 (1979), and for an Eighth Amendment inadequate

17 medical care claim raised by a federal prisoner’s decedents. Carlson v. Green, 446 U.S.

18 14, 24–25 (1980).

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21 capacity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th

Cir. 2007) (internal quotation marks, brackets, and citation omitted).

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6 As noted above, to the extent a Bivens remedy exists, Plaintiff’s suit may only proceed against individual

23 WRDF employees Vazquez, Carney, and Hartley. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101,

1104 (9th Cir. 2004). These individual WRDF officers are employed by the GEO Group which “operate[s]

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private prisons on behalf of the federal government,” and which, among other responsibilities, requires

25 them to “oversee[] and control[] the daily lives of the prisoners.” Davis v. Samuels, 962 F.3d 105, 112 (3d

Cir. 2020). Both the Ninth and Third Circuits have held the performance of that function “appears to be

26 the exercise of a right having its source in federal authority, by those who “could in all fairness be regarded

as ... federal actor[s]” under Bivens. Id. (citing Brown v. Philip Morris Inc., 250 F.3d 789, 801 (3d Cir.

27 2001)); see also Pollard v. The GEO Grp., Inc., 629 F.3d 843, 857–58 (9th Cir. 2010) (concluding under

the “public function test” that “GEO employees act under color of federal law for purposes of Bivens

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2 Since then, the Court has “consistently refused to extend Bivens to any new context

3 or new category of defendants.” Ziglar v. Abbasi, 582 U.S. 120, 132 (2017) (quoting

4 Malesko, 534 U.S. at 68). “Rather than dispense with Bivens, the [Supreme] Court now

5 emphasizes that recognizing a Bivens cause of action is ‘a disfavored judicial activity.’”

6 Egbert, 596 U.S. at 483 (quoting Abbasi, 582 U.S. at 121); see also Hernández, 589 U.S.

7 at 101 (“We have stated that expansion of Bivens is ‘a disfavored judicial activity,’ and

8 have gone so far as to observe that if ‘the Court’s three Bivens cases [had] been ... decided

9 today,’ it is doubtful that we would have reached the same result….” (quoting Abbasi, 582

10 U.S. at 134–35) (internal citations and quotation marks omitted) (alterations in original)).

11 a. Plaintiff’s Bivens Claims Arise in New Contexts

12 While the Supreme Court has previously assumed a Bivens action against federal

13 officials alleged to have violated the First Amendment’s Free Exercise Clause might be

14 available, see, e.g., Iqbal, 556 U.S. at 675 (assuming without deciding that a First

15 Amendment free exercise claim is actionable under Bivens), it has “never held that Bivens

16 extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012).

17 In fact, in Egbert, the Court recently made clear that “there is no Bivens cause of action for

18 [a] First Amendment retaliation claim.” 596 U.S. at 498. The Court has yet to directly

19 address whether Bivens extends to a First Amendment free exercise claim, however. See

20 Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016) (noting that Supreme Court

21 has never extended Bivens to free exercise of religion and declining to extend Bivens to

22 Muslim inmate’s free exercise claim); Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 813

23 n.6 (8th Cir. 2008) (“We have never found a Bivens action to extend to a Free Exercise

24 claim, and it is doubtful we would do so.”); Ndandu v. Sasso, No. 3:23CV00792-WQH-

25 KSC, 2024 WL 85893, at *3 (S.D. Cal. Jan. 8, 2024) (noting that neither the Supreme Court

26 nor the Ninth Circuit has extended Bivens to a First Amendment free exercise claim); Oster

27 v. Santa Ana Police Jail, No. 8:23-cv-01263-DOC (SK), 2023 WL 8898589, at *1 (C.D.

28 Cal. Aug. 2, 2023) (“[T]he Supreme Court has never extended the Bivens remedy to

1 religious free exercise claims under the First Amendment.”); Pies-Lonsdale v. Lemus, No.

2 3:22-CV-0309-TWR-JLB, 2022 WL 1427146, at *4 (S.D. Cal. May 4, 2022) (“[N]either

3 the Supreme Court nor the Ninth Circuit Court of Appeals has ever extended Bivens to free

4 exercise claims.”); Barrett, 2021 WL 5741448, at *4 (noting that in light of Abbasi, “[i]t

5 appears unlikely that Bivens can be extended to reach Plaintiff’s First Amendment ... free

6 exercise claim[ ]”).

7 “The only Fifth Amendment-based Bivens claim that the Supreme Court has

8 recognized was the one in Davis, which ‘concerned alleged sex discrimination on Capitol

9 Hill.’” Mays v. Smith, 70 F.4th 198, 203 (4th Cir. 2023) (quoting Hernández, 140 S. Ct. at

10 744); cert. denied, 144 S. Ct. 1008 (2024)); Davis, 442 U.S. at 230. “[N]either the Supreme

11 Court nor [the Ninth Circuit] ha[s] expanded Bivens in the context of a prisoner’s ... Fifth

12 Amendment procedural due process claims.” Vega v. United States, 881 F.3d 1146, 1153

13 (9th Cir. 2018); see also Stanard v. Dy, 88 F.4th 811, 818 (9th Cir. 2023) (Fifth Amendment

14 claims other than “in the context of gender-based employment discrimination” are a new

15 context for Bivens); Hunt v. Matevousian, 336 F. Supp. 3d 1159, 1169 (E.D. Cal. 2018)

16 (“The Supreme Court has never recognized a Bivens remedy for a Fifth Amendment due

17 process claim relating to the alleged failure of a prison official to provide due process.”),

18 aff’d, No. 18-17464, 2023 WL 8064536 (9th Cir. Nov. 21, 2023).

19 Thus, because Plaintiff seeks damages against WRDF officials Vazquez, Carney,

20 and Hartley based on claims that they violated his rights to due process by “refus[ing] to

21 return [his] grievances,” and further deprived him of his right to free exercise of his

22 religious beliefs by failing to locate a Native American spiritual advisor during the course

23 of a self-imposed three-day hunger strike (see ECF No. 1 at 3), the Court finds his claims

24 arise in new contexts because he seeks to extend a damages remedy to a category of claims

25 and defendants that differ “in a meaningful way from previous Bivens cases.” Abbasi, 582

26 U.S. at 139; Egbert, 596 U.S. at 492 (citing Malesko, 534 U.S. at 68). Therefore, a Bivens

27 remedy is unavailable because, as discussed below, there are “‘special factors’ indicating

28 that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and

1 benefits of allowing a damages action to proceed.’” Egbert, 596 U.S. at 492 (quoting

2 Abbasi, 582 U.S. at 136 (internal quotation marks omitted)); Stanard, 88 F.4th at 818.

3 b. Special Factors Counsel Hesitation

4 In applying its special factors analysis to Plaintiff’s free exercise and due process

5 claims “[the] court faces only one question: whether there is any rational reason (even one)

6 to think that Congress is better suited to ‘weigh the costs and benefits of allowing a

7 damages action to proceed.’” Egbert, 596 U.S. at 496 (emphasis original) (quoting Abbasi,

8 582 U.S. at 136)); Stanard, 88 F.4th at 816. “If there are alternative remedial structures in

9 place, ‘that alone,’ like any other special factor, is reason enough to ‘limit the power of the

10 Judiciary to infer a new Bivens cause of action.’” Egbert, 596 U.S. at 493 (quoting Abbasi,

11 582 U.S. at 137). “‘Alternative remedial structures’ can take many forms, including

12 administrative statutory, equitable, and state law remedies.” Vega, 881 F.3d at 1154

13 (quoting Abbasi, 582 U.S. at 137); Stanard, 88 F.4th at 816. Thus, “[s]o long as Congress

14 or the Executive has created a remedial process that it finds sufficient to secure an adequate

15 level of deterrence, the courts cannot second-guess that calibration by superimposing a

16 Bivens remedy[,] ... even if a court independently concludes that the Government’s

17 procedures are ‘not as effective as an individual damages remedy.’” Egbert, 596 U.S. at

18 498 (quoting Bush v. Lucas, 462 U.S. 367, 372 (1983)).

19 Here, alternative statutory and administrative remedial structures counsel hesitation

20 in extending an implied Bivens remedy for Plaintiff’s alleged free exercise and due process

21 claims. First, Plaintiff admits he filed several grievances alerting WRDF officials of his

22 request to consult with a Native American spiritual advisor. (See ECF No. 1 at 3, 4.) In

23 fact, the gravamen of his due process claim is that Defendants “retained,” “refused to

24 return” and/or lost several of them. Id. Plaintiff further attaches to his Complaint a copy of

25 a WRDF “Detainee Request Form” dated December 26, 2023, in which he asks to speak

26 with his “American Indian Spiritual Advisor,” as well as a WRDF staff response dated

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1 January 18, 2024, explaining the “multiple attempts” Chaplaincy Services made to “find

2 contact information related to [his] request.” Id. at 6‒7.7

3 These allegations and exhibits confirm WRDF has established an alternative

4 remedial mechanism through which Plaintiff can, and did, seek administrative relief with

5 respect to his needs. See Malesko, 534 U.S. at 74 (noting that federal inmate housed in

6 private halfway house under contract with the Federal Bureau of Prisons had “full access

7 to remedial mechanisms established by the BOP, including … grievances filed through the

8 BOP’s Administrative Remedy Program (ARP),” which provides “‘a process through

9 which inmates may seek formal review of an issue relating to any aspect of his/her own

10 confinement.’”) (quoting 28 C.F.R. § 542.10); see also Vega, 881 F.3d at 1154 (precluding

11 a Bivens relief where the ARP provided an “adequate, and more appropriate, remedy to

12 vindicate plaintiff’s [First Amendment] right[] to access the courts and [Fifth Amendment]

13 procedural due process” claims against employees of a private non-profit BOP re-entry

14 program contractor). The fact that Plaintiff’s did not receive the specific or immediate relief

15 sought in his WRDF Detainee Request Form “makes no difference.” Chambers v.

16 Herrerra, 78 F.3d 1110, 1107 n.3 (9th Cir. 2023) (“That the alternative remedy existed at

17 all is the factor [courts] consider under Egbert[.]”) (citation omitted).

18 Second, religious liberty protections provided by Congress in the Religious Freedom

19 Restoration Act (“RFRA”) “strongly militate against creating a Bivens action for Free

20 Exercise claims.” Mack, 839 F.3d at 305; Egbert, 596 U.S. at 498; accord Pies-Lonsdale,

21 2022 WL 1427146, at *4; Umar v. Jusino, No. 5:22-00427 FWS (ADS), 2022 WL

22 18636043, at *3 (C.D. Cal. Dec. 8, 2022) (dismissing Muslim prisoner’s free exercise

23 claims sua sponte pursuant 28 U.S.C. § 1915A where extension of Bivens was not

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7 “Courts must consider the complaint in its entirety,” including “documents incorporated into the

26 complaint by reference” to be part of the pleading when determining whether the plaintiff has stated a

claim upon which relief may be granted. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

27 (2007); Schneider v. Cal. Dep’t of Corrs., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998); see also Fed. R. Civ.

P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all

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1 warranted due to existence of RFRA as an “alternative remedy”), report and

2 recommendation adopted, 2023 WL 373170 (C.D. Cal. Jan. 23, 2023). “RFRA provides

3 [Plaintiff] with a comprehensive remedial scheme for violations of substantial burdens on

4 his religious exercise.” Mack, 839 F.3d at 305; Davis v. Samuels, 962 F3d 105, 113 (3d

5 Cir. 2020) (finding no extension of Bivens warranted for inmate incarcerated in private

6 federal facility alleging denial of his right to marry due to “the potential availability of

7 alternative remedies” under RFRA); see also Davis v. Wigen, 82 F.4th 204, 213 (3d Cir.

8 2023) (finding that RFRA “applies to … GEO Defendants” because it “contracts with the

9 Bureau of Prisons to house low-security alien inmates”); Gambino v. Cassano, No.

10 CV170830NLHAMD, 2021 WL 1186794, at *4 (D. N.J. Mar. 30, 2021) (“[T]he

11 availability of relief under … RFRA … is a special factor counselling hesitation in

12 extending the Bivens remedy.”).

13 For all these reasons, the Court concludes Plaintiff seeks to assert free exercise and

14 due process claims for relief that arise in new contexts. Because the “unforgiving” special

15 factors inquiry counsels hesitation in extending Bivens relief, his case may not proceed.

16 Egbert, 596 U.S. at 492; Stanard, 88 F.4th at 818.

17 D. Leave to Amend

18 As discussed, the Court finds Plaintiff’s Complaint fails to state a claim upon which

19 Bivens relief can be granted and that it must be dismissed sua sponte and in its entirety

20 pursuant to 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1). While the Ninth Circuit has

21 acknowledged that new Bivens claims are “dead on arrival,” Harper v. Nedd, 71 F.4th

22 1181, 1187 (9th Cir. 2023), and any amended pleading Plaintiff may wish to file against

23 the individual Defendants based on alleged violations of either his due process or free

24 exercise rights “may ultimately suffer the same fate, ‘mostly dead is slightly alive.’”

25 Chambers, 78 F.4th at 1108 (quoting PRINCESS BRIDE (20th Century Fox 1987)).

26 Therefore, having now provided Plaintiff with “notice of the deficiencies in his

27 complaint,” it will grant him an opportunity to fix them, if he possibly can. See Akhtar v.

28 Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261

1 (9th Cir. 1992)); Chambers, 78 F.4th at 1108 (remanding pro se litigant’s Bivens action to

2 district court to determine whether “more detailed factual allegations could cure the

3 deficiencies in his complaint under Egbert.”).

4 III. CONCLUSION

5 Accordingly, the Court:

6 1. GRANTS Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a)

7 (ECF No. 2).

8 2. DIRECTS the Administrator of the WRDF, their designee, or any agency

9 later having custody, to collect from Plaintiff’s trust account the $350 filing fee owed in

10 this case by garnishing monthly payments in an amount equal to twenty percent (20%) of

11 the preceding month’s income and forwarding those payments to the Clerk of the Court

12 each time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL

13 PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER

14 ASSIGNED TO THIS ACTION.

15 3. DIRECTS the Clerk of the Court to serve a copy of this Order by U.S. Mail

16 on Facility Administrator, GEO Western Region Detention Facility, 220 West C Street,

17 San Diego, California 92101.

18 4. DISMISSES Plaintiff’s Complaint sua sponte and in its entirety based on his

19 failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.

20 §§ 1915(e)(2)(B)(ii) & 1915A(b)(1).

21 5. GRANTS Plaintiff forty-five (45) days leave from the date of this Order in

22 which to file an Amended Complaint which cures the deficiencies of pleading noted.

23 Plaintiff’s Amended Complaint must be complete by itself without reference to his original

24 pleading. Defendants not named and any claim not re-alleged in his Amended Complaint

25 will be considered waived. See S.D. Cal. CivLR 15.1; Hal Roach Studios, Inc. v. Richard

26 Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n amended pleading

27 supersedes the original.”); Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012)

28 (noting that claims dismissed with leave to amend which are not re-alleged in an amended

1 || pleading may be “considered waived if not repled’’).

2 If Plaintiff fails to file an Amended Complaint within 45 days, the Court will enter

3 final Order dismissing this civil action based both on his failure to state a claim upon

4 which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) and his

5 || failure to prosecute in compliance with a court order requiring amendment. See Lira v.

6 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of

7 opportunity to fix his complaint, a district court may convert the dismissal of the

8 ||complaint into dismissal of the entire action.”’).

9 IT IS SO ORDERED.

10 || Dated: July 1, 2024 itt Zz. Ma

11 Hon. William Q. Hayes

2 United States District Court

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