Rivas

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5

6 UNITED STATES DISTRICT COURT

7 SOUTHERN DISTRICT OF CALIFORNIA

8

9 DAVID RIVAS, Case No.: 25-cv-00806-AJB-BLM

BOP #14267-298,

10

ORDER GRANTING MOTION TO

Plaintiff,

11 PROCEED IN FORMA PAUPERIS

vs. AND DISMISSING COMPLAINT

12

FOR FAILING TO STATE A CLAIM

MCC San Diego;

13 PURSUANT TO 28 U.S.C. § 1915(e)(2)

JASON BURGANSON, Correctional

AND 28 U.S.C. § 1915A(b)

14 Officer,

15 Defendants. [Doc. No. 4]

16

17

18 Plaintiff David Rivas, proceeding pro se and while incarcerated at the Metropolitan

19 Correctional Center (“MCC”) in San Diego, filed a letter entitled as a “petition” with the

20 Clerk of Court on April 2, 2025. (See Doc. No. 1.) Because his petition seeks $3 million in

21 damages from the MCC and Officer Jason Burganson based on claims of having been

22 deprived of his personal property and subjected to cruel and unusual conditions of

23 confinement at MCC, the Court construes Plaintiff’s petition as a complaint arising under

24 general federal question jurisdiction pursuant to Bivens v. Six Unknown Federal Narcotics

25 Agents, 403 U.S. 388 (1971).1

26

27

1 Courts have a duty to construe pro se pleadings and motions liberally, Bernhardt v. Los Angeles County,

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1 Because Plaintiff failed to pay the $405 civil filing fee required by 28 U.S.C.

2 § 1914(a), the Court dismissed the case on May 12, 2025, but granted him leave to re-open

3 it by either paying the fee in full or filing a motion to proceed in forma pauperis (“IFP”)

4 pursuant to 28 U.S.C. § 1915(a). (See Doc. No. 2 at 3‒4.) Plaintiff complied by filing an

5 IFP motion from USP Coleman II, where he appears to have been transferred and where

6 he remains incarcerated.2 (See Doc. No. 4.)

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

8 but DISMISSES his complaint sua sponte pursuant to 28 U.S.C. §§ 1915(e)(2) and

9 1915A(b) 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 $405 filing fee.3

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

14 the 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

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of the claim raised in order to survive [. . . ] dismiss[al].” Alvarez v. Hill, 518 F.3d 1152, 1157‒58 (9th

23 Cir. 2008).

24

2 See https://www.bop.gov/inmateloc/(BOP Register Number 14267298) (last visited Oct. 14, 2025). The

25 Court may take judicial notice of public records available on online inmate locators. See United States v.

Basher, 629 F.3d 1161, 1165 (9th Cir. 2011) (taking judicial notice of Bureau of Prisons’ inmate locator).

26

3 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

28

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

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

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

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

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

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

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

8 statement (or institutional equivalent) for . . . the 6-month period immediately preceding

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

10 1119 (9th Cir. 2005). Using this financial information, the court “shall assess and when

11 funds exist, collect, . . . an initial partial filing fee,” which is “calculated based on ‘the

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

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

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

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

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

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

18 payments. See Bruce v. Samuels, 577 U.S. 82, 84 (2016); Taylor v. Delatoore, 281 F.3d

19 844, 847 (9th Cir. 2002); 28 U.S.C. §§ 1915(b)(1) & (2).

20 In support of his IFP Motion, Plaintiff has submitted a copy of his BOP trust account

21 statement, as well as a prison certificate authorized by a USP Coleman II accounting

22 official. (See Doc. No. 4 at 4, 6.) See also 28 U.S.C. § 1915(a)(2); S.D. Cal. CivLR 3.2;

23 Andrews, 398 F.3d at 1119. These documents show Plaintiff had $405.98 in average

24 monthly deposits, carried an average balance of $267.43, and had an available balance of

25 $61.37 in his trust account at time of filing. (See Doc. No. 4 at 4, 6.)

26 Based on this showing, the Court GRANTS Plaintiff’s Motion to Proceed IFP,

27 assesses a partial initial filing fee of $81.19 pursuant to 28 U.S.C. § 1915(b)(1), and

28 DIRECTS the Warden of USP Coleman II to collect this fee and forward it to the Clerk of

1 the Court unless Plaintiff “has no means to pay it” at the time this Order is executed. Bruce,

2 577 U.S. 84–85. Thereafter, the Warden of USP Coleman II, and any agency later having

3 custody, must send payments from Plaintiff’s account to the Clerk of the Court until the

4 full $350 statutory filing fee is paid by installment pursuant to 28 U.S.C. § 1915(b)(2).

5 II. SCREENING

6 A. Standard of Review

7 Because Plaintiff is a prisoner and is proceeding IFP, his pleading requires a

8 preliminary review pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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

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

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

12 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)

13 (discussing 28 U.S.C. § 1915A(b)).

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

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

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

17 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir.

18 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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

20 12(b)(6)”). Federal Rules of Civil Procedure 8(a) and 12(b)(6) require a complaint to

21 “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

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

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

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

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

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

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

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

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

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

3 338, 342 & n.7 (9th Cir. 2010) (citation omitted), it may not “supply essential elements of

4 claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d

5 266, 268 (9th Cir. 1982).

6 B. Factual Allegations

7 In his petition, Plaintiff seeks to bring a “civil law suit against MCC San Diego and

8 Officer Jason Burganson.” (Doc. No. 1 at 1.) He claims he was placed in a secured housing

9 unit (“SHU”) at MCC for “non-disciplinary reasons,” and until the conclusion of his “court

10 hearings.” (Id.) Plaintiff alleges conditions in the SHU were “very harsh” and as a result,

11 concludes he was subject to “cruel and unusual punishment.” (Id.) Specifically, Plaintiff

12 claims unidentified correctional staff attempted to house him with another inmate who was

13 incompatible “in hopes that [he] g[o]t assaulted,” although he no longer shared a cell with

14 anyone. (Id. at 3.) While in the SHU, Plaintiff was permitted to shower only three times

15 per week, mostly restricted to his cell, provided limited access to the phone, commissary,

16 and toiletries, and refused a special non-allergic diet. (Id. at 1‒3.)

17 Plaintiff further claims Officer Burganson “for some odd reason . . . develop[ed] a

18 lot of hate towards [him],” spit in his food, “gave all [his] personal property away,” and

19 encouraged other officers to “mistreat” him. (Id. at 3, 5.) After he filed a grievance,

20 Plaintiff’s food portions increased, but he alleges the “torture tactics” soon resumed and

21 two subsequent grievances were “thrown away.” (Id. at 5‒6.) In addition to his lost

22 property, Plaintiff claims to have lost sleep due to fear of further retaliation while he was

23 housed at MCC, for which he now seeks $3 million in damages. (Id. at 6.)

24 C. Discussion

25 1. Bivens Claims against MCC

26 First, the Court finds Plaintiff may not bring a Bivens suit against the MCC itself.

27 “In Bivens, th[e] [Supreme] Court ‘recognized for the first time an implied private action

28 for damages against federal officers alleged to have violated a citizen’s constitutional

1 rights.’” Hernandez v. Mesa, 582 U.S. 548, 553 (2017) (quoting Correctional Services

2 Corp. v. Malesko, 534 U.S. 61, 66 (2001)). “In the limited settings where Bivens does

3 apply, the implied cause of action is the ‘federal analog to suits brought against state

4 officials under Rev. Stat. § 1979, 42 U.S.C. § 1983.’” Iqbal, 556 U.S. at 675 (quoting

5 Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). Thus, assuming a Bivens cause of action

6 exists, the plaintiff must allege facts showing that: (1) a right secured by the Constitution

7 or laws of the United States was violated, and (2) the alleged deprivation was committed

8 by a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991).

9 Here, to the extent Plaintiff seek to hold the MCC liable for damages incurred at the

10 MCC for allegedly wrongful acts committed by a group of mostly unidentified individual

11 officers, he fails to state a plausible claim for relief. See Iqbal, 556 U.S. at 679. A Bivens

12 action may only be brought against a federal official in his or her individual capacity. See

13 Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) (a Bivens action “can be maintained

14 against a defendant in his or her individual action only, and not in his or her official

15 capacity.”). A Bivens claim cannot stand against the United States, or any of its

16 departments, offices, or agencies, like the BOP or MCC. See FDIC v. Meyer, 510 U.S. 471,

17 485 (1994) (“[T]he purpose of Bivens is to deter the officer.”) (emphasis original); see also

18 Lanuza v. Love, 899 F.3d 1019, 1029–32 (9th Cir. 2018) (noting that a claim for damages

19 based on individualized mistreatment by rank-and-file federal officers is what Bivens was

20 meant to address). Indeed, the Supreme Court has held that “[a]n extension of Bivens to

21 agencies of the Federal Government is not supported by the logic of Bivens itself.” Meyer,

22 510 U.S. at 486.

23 Therefore, to the extent Plaintiff names the MCC as a Defendant, he fails to state a

24 claim upon which Bivens relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii); 28

25 U.S.C. § 1915A(b)(1); Watison, 668 F.3d at 1112; Wilhelm, 680 F.3d at 1121.

26 2. Bivens Claims against Officer Burganson

27 Second, the Court finds the cruel and unusual punishment and lost property

28 deprivations attributed to Officer Burganson also fail to state a plausible claim for relief

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

2 1915A(b)(1).

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

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

5 individual capacities.4 See DeVillier v. Texas, 601 U.S. 285, 291 (2024) (citing Egbert v.

6 Boule, 596 U.S. 482, 490–491 (2022)). “In Bivens [. . .], the Court broke new ground by

7 holding that a person claiming to be the victim of an unlawful arrest and search could bring

8 a Fourth Amendment claim for damages against the responsible agents even though no

9 federal statute authorized such a claim.” Hernandez, 589 U.S. at 99 (internal citations

10 omitted). The Supreme Court has expanded this implied cause of action only twice,

11 recognizing a Bivens remedy for a Fifth Amendment gender discrimination claim, Davis v.

12 Passman, 442 U.S. 228, 230–31 (1979), and for an Eighth Amendment inadequate medical

13 care claim raised by a federal prisoner’s decedents. Carlson v. Green, 446 U.S. 14, 24–25

14 (1980).

15 Since then, the Supreme Court has “consistently refused to extend Bivens to any new

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

17 (quoting Malesko, 534 U.S. at 68). Ziglar “clarified [a] two-step framework that courts

18 must use to decide whether to recognize an implied cause of action against federal agents

19 for constitutional violations.” Schwartz v. Miller, __ F.4th__, No. 23-1343, 2025 WL

20 2473008, at *4 (9th Cir. Aug. 28, 2025) (citing Ziglar, 582 U.S. at 135–37). The first step

21 requires courts to ask whether the case arises in a new context, i.e., “is different in a

22 meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. (citing

23

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25 4 The Court notes Plaintiff’s pleading fails to state whether he seeks to sue Burganson in either his

individual or official capacity. But because he seeks damages, the Court will presume for purposes of

26 screening that Plaintiff intends to sue Burganson in his individual capacity only. See Consejo de

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

27 action can be maintained against a defendant in his or her individual capacity only, and not in his or her

official capacity.”) (cleaned up).

28

1 Ziglar, 582 U.S. at 139.) “If the case does differ, then courts must consider whether ‘there

2 are special factors counselling hesitation in the absence of affirmative action by

3 Congress.’” Id. (quoting Ziglar, 582 U.S. at 136). “This second step focuses on ‘whether

4 the Judiciary is well suited, absent congressional action or instruction, to consider and

5 weigh the costs and benefits of allowing a damages action to proceed.’” Id.

6 “‘[E]ven one’ step-two special factor is sufficient to foreclose courts from extending

7 a Bivens remedy in a new context.” Id. (quoting Egbert, 596 U.S. at 496). “Indeed, the

8 second step will resolve against a new Bivens remedy ‘in all but the most unusual

9 circumstances,’ because ‘in most every case,’ Congress is better positioned to provide a

10 damages remedy.” Id. (quoting Egbert, 596 U.S. at 486, 492). In short, “[r]ather than

11 dispens[ing] with Bivens [altogether], the [Supreme] Court now emphasizes that

12 recognizing a Bivens cause of action is ‘a disfavored judicial activity.’” Egbert, 596 U.S.

13 at 483 (quoting Ziglar, 582 U.S. at 121).

14 a. Plaintiff’s Claims Arise in New Contexts

15 Here, while Plaintiff expressly mentions only violations of his right to “due process,”

16 his pleading centers primarily on the conditions of his confinement at MCC and the actions

17 of Correctional Officer Burganson, which he describes as “punishment.” (See Doc. No. 1

18 at 2, 6.).5

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21 5 At the time of filing, Plaintiff was held in a secured housing unit at MCC where he claimed to have been

segregated while awaiting transfer after having been sentenced to BOP custody for a term of 50 months.

22 (See Doc. No. 1 at 1.) The Court has confirmed Plaintiff was found to have violated the terms of his

supervised release based on a guilty plea and conviction in Superior Court of California (San Diego) Case

23 Number SCD292707, and had his supervised release revoked on December 12, 2024, in United States v.

Mendez, et al., S.D. Cal. Case No. 3:09-cr-00710-JLS-6 (Doc. Nos. 744, 747). See Kim v. Allison, 87 F.4th

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994, 998 n.3 (9th Cir. 2023) (noting that courts “may take notice of proceedings in other courts, both

25 within and without the federal judicial system, if those proceedings have a direct relation to matters at

issue” (quoting United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244,

26 248 (9th Cir. 1992)). Thus, while Plaintiff was housed at MCC, which is primarily a pretrial federal

detention facility, at the time he alleges Correctional Officer Burganson subjected him to unconstitutional

27 conditions, his status as a convicted prisoner implicates the Eighth Amendment. See, e.g., Kingsley v.

Hendrickson, 576 U.S. 389, 400 (2015) (distinguishing application of the Fifth Amendment Due Process

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1 The Eighth Amendment prohibits the imposition of cruel and unusual punishments

2 and “[i]t is undisputed that the treatment a prisoner receives in prison and the conditions

3 under which [the prisoner] is confined are subject to scrutiny under the Eighth

4 Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan,

5 511 U.S. 825, 832 (1994). But while the Ninth Circuit has affirmed the ongoing viability

6 of an Eighth Amendment Bivens cause of action in cases filed by federal prisoners alleging

7 deliberate indifference by BOP staff to serious medical needs found “identical . . . in all

8 meaningful respects” to Carlson, see Schwartz, 2025 WL 2473008, at *2 (citing Watanabe

9 v. Derr, 115 F.4th 1034, 1036 (9th Cir. 2024); see also Stanard v. Dy, 88 F.4th 811, 818

10 (9th Cir. 2023), neither the Ninth Circuit nor the Supreme Court has recognized an implied

11 Bivens cause of action for Eighth Amendment conditions of confinement claims not

12 involving claims of inadequate medical care post-Ziglar. See, e.g., Goldey v. Fields, __

13 U.S. __, 145 S. Ct. 942, 944 (2025) (per curiam) (finding Eighth Amendment excessive

14 force claims against federal prison officials “arise[] in a new context, and ‘special factors’

15 counsel against recognizing an implied Bivens cause of action for [those] violations”);

16 Chambers v. Herrera, 78 F.4th 1100, 1105 (9th Cir. 2023) (finding no implied cause of

17 action for federal inmate’s Eighth Amendment failure to protect claims because they

18 “differ from Carlson and thus represent a new Bivens context”).

19 Plaintiff alleges he was subjected to “very harsh conditions” while assigned to

20 MCC’s SHU and granted only limited access to showers, phones, visitation, and fresh air

21 despite being assigned there for “non-disciplinary reasons.” (See Doc. No. 1 at 1‒2.) He

22 further claims Burganson specifically denied him soap, a spoon, and toilet paper, and

23 “tampered” with his food in order to “torture” him. (Id. at 4‒5.) These types of Eighth

24 Amendment conditions claims, like the excessive force and failure to protect claims

25

26

27 1430, 1432 (9th Cir. 1987) (“The status of the detainees determines the appropriate standard for evaluating

conditions of confinement. The [E]ighth [A]mendment applies to ‘convicted prisoners.’”) (citation

28

1 asserted in Goldey and Chambers, present a new Bivens context because Plaintiff does not

2 allege Burganson failed to treat a serious medical condition, which was the “only” Eighth

3 Amendment Bivens cause of action recognized by Carlson. See Ziglar, 582 U.S. at 131;

4 Carlson, 446 U.S. at 16; see also Marquez v. Rodriguez, 81 F.4th 1027, 1031 (9th Cir.

5 2023) (“Egbert … suggest[s] that a ‘new Bivens context’ arises anywhere that the

6 [Supreme] Court has not affirmatively stated that Bivens applies.”). Rather, Plaintiff’s

7 Eighth Amendment claims are “different in a meaningful way,” and instead resemble the

8 conditions of the confinement claims the Supreme Court has characterized as “seek[ing] to

9 extend Carlson to a new context.” Ziglar, 582 U.S. at 139, 147 (distinguishing Eighth

10 Amendment inadequate medical treatment claims cognizable under Carlson from

11 “claim[s] alleging that a warden allowed guards to abuse detainees.”).

12 Therefore, because Plaintiff’s suit seeks to extend a damages remedy to a category

13 of claims that are “‘meaningful[ly]’ different” from those recognized as cognizable in

14 Carlson, the Court finds his Eighth Amendment conditions of confinement allegations

15 involving Officer Burganson arise in a new Bivens context. Ziglar, 582 U.S. at 139; Egbert,

16 596 U.S. at 492; Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019) (“[Plaintiff’s]

17 Eighth Amendment claim regarding unsanitary cell conditions presents a new Bivens

18 context because [plaintiff] does not allege a failure to treat a serious medical condition,

19 which was the issue in Carlson.”) (internal citations omitted); Justis v. Doerer, et al., No.

20 1:25-CV-00138-JLT-SAB (PC), 2025 WL 2840836, at *2 (E.D. Cal. Oct. 7, 2025)

21 (dismissing federal prisoner’s Eighth Amendment conditions of confinement claims for

22 failure to state a cognizable claim for relief under Bivens); Papazian v. Doerer, et al., Case

23 No. 1:24-cv-01182-HBK (PC) (E.D. Cal. April 1, 2025) (Order screening first amended

24 complaint pursuant to 28 U.S.C. § 1915A and dismissing Eighth Amendment conditions

25 of confinement claims because “a Bivens remedy has not been recognized in the context of

26 inmate lockdown conditions.”) (Doc. No. 20 at 4).

27 To the extent Plaintiff alleges Burganson “gave all [his] personal property away,” he

28 also fails to allege a viable Fifth Amendment due process claim. (See Doc. No. 1 at 5.)

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

2 was the one in Davis, which ‘concerned alleged sex discrimination on Capitol Hill.’” Mays

3 v. Smith, 70 F.4th 198, 203 (4th Cir. 2023) (quoting Hernandez v. Mesa, 589 U.S. 93, 103

4 (2020)); Davis, 442 U.S. at 230. “[N]either the Supreme Court nor [the Ninth Circuit] ha[s]

5 expanded Bivens in the context of a prisoner’s . . . Fifth Amendment procedural due process

6 claims.” Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018); see also Stanard, 88

7 F.4th at 818 (Fifth Amendment claims other than “in the context of gender-based

8 employment discrimination” are a new context for Bivens); Hunt v. Matevousian, 336

9 F. Supp. 3d 1159, 1169 (E.D. Cal. 2018) (“The Supreme Court has never recognized a

10 Bivens remedy for a Fifth Amendment due process claim relating to the alleged failure of

11 a prison official to provide due process.”), aff’d, 2023 WL 8064536 (9th Cir. Nov. 21,

12 2023).

13 Thus, because Plaintiff seeks damages against Officer Burganson based on claims

14 that he confiscated his property without due process, the Court finds his claims also arise

15 in a new context because he seeks to extend a damages remedy to a category of claims and

16 defendants that differ “in a meaningful way from previous Bivens cases.” Ziglar, 582 U.S.

17 at 139; Egbert, 596 U.S. at 492 (citing Malesko, 534 U.S. at 68); Jackson v. McNeil, No.

18 20-35991, 2023 WL 3092302, at *1 (9th Cir. Apr. 26, 2023) (finding deprivation of

19 property claim involved a new context and was not actionable under Bivens).

20 Accordingly, a Bivens remedy is unavailable as to either Plaintiff’s conditions of

21 confinement or deprivation of property claims because as discussed below, there are

22 “‘special factors’ indicating that the Judiciary is at least arguably less equipped than

23 Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

24 Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at 136 (internal quotation marks

25 omitted)); Stanard, 88 F.4th at 818.

26 b. Special Factors Counsel Hesitation

27 In applying its special factors analysis to Plaintiff’s conditions and due process

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

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

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

3 582 U.S. at 136); Stanard, 88 F.4th at 816. “If there are alternative remedial structures in

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

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

6 582 U.S. at 137). “‘Alternative remedial structures’ can take many forms, including

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

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

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

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

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

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

13 498 (quoting Bush v. Lucas, 462 U.S. 367, 372 (1983)).

14 Here, the existence of an alternative administrative remedial structure counsels

15 hesitation in extending an implied Bivens remedy for Plaintiff’s alleged conditions of

16 confinement and due process claims. Specifically, Plaintiff admits he filed several

17 grievances alerting MCC’s Warden “explaining the whole situation.” (See Doc. No. 1 at

18 4.) In fact, Plaintiff admits his initial grievance alleviated some of his concerns, and he

19 “started getting the same food portions as the rest of the inmates.” (Id. at 4‒5.) These

20 allegations confirm MCC has established an alternative remedial mechanism through

21 which Plaintiff can, and did, seek administrative relief with respect to his claims. (See Doc.

22 No. 1 at 4‒5, 6.) See also Malesko, 534 U.S. at 74 (noting that federal inmate housed in

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

24 to remedial mechanisms established by the BOP, including . . . grievances filed through

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

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

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

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

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

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

3 program contractor). The fact that Plaintiff’s grievances did not fully address or prevent

4 any additional complaints related to his diet or any other condition of his confinement at

5 MCC “makes no difference.” Chambers, 78 F.3d at 1107 n.3 (“That the alternative remedy

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

7 For all these reasons, the Court concludes both Plaintiff’s cruel and unusual

8 punishment and due process claims arise in new contexts and the “unforgiving” special

9 factors inquiry counsels hesitation in extending Bivens relief. Egbert, 596 U.S. at 492;

10 Stanard, 88 F.4th at 818. Therefore, his claims against Officer Burganson also fail to state

11 a claim upon which relief can be granted and are dismissed sua sponte pursuant to 28

12 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). See Watison, 668 F.3d at 1112; Wilhelm, 680

13 F.3d at 1121.

14 D. Leave to Amend

15 While the Ninth Circuit has characterized new Bivens claims as “dead on arrival,”

16 Harper v. Nedd, 71 F.4th 1181, 1187 (9th Cir. 2023), and any amended pleading Plaintiff

17 may wish to file against Officer Burganson based on alleged violations of either his Eighth

18 Amendment or due process rights “may ultimately suffer the same fate, ‘mostly dead is

19 slightly alive.’” Chambers, 78 F.4th at 1108 (quoting PRINCESS BRIDE (20th Century

20 Fox 1987)). Therefore, having now provided Plaintiff with “notice of the deficiencies in

21 his complaint,” the Court will grant him an opportunity to fix them with respect to Officer

22 Burganson only. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v.

23 Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992)); Chambers, 78 F.4th at 1108 (remanding

24 pro se litigant’s Bivens action to district court to determine whether “more detailed factual

25 allegations could cure the deficiencies in his complaint under Egbert”). Because Plaintiff

26 could not plausibly proceed with any viable Bivens action against the MCC, however, leave

27 to amend is denied as futile. See W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116,

28 1119 (9th Cir. 2009) (“[N]o Bivens remedy is available against a federal agency.”) (citing

1 Meyer, 510 U.S. at 484); see also Swinton v. Department of Justice, et al., No. 22-CV-

2 04276-JST, 2025 WL 2772607, at *7 (N.D. Cal. Sept. 26, 2025) (dismissing purported

3 Bivens claims against the DOJ and BOP for failing to state a claim “with prejudice”).

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 (Doc. No. 4).

8 2. DIRECTS the Warden of USP Coleman II, his designee, or any agency later

9 having custody, to collect from Plaintiff’s trust account the $81.19 initial partial filing fee

10 assessed pursuant to 28 U.S.C. § 1915(b)(1), if those funds are available in Plaintiff’s

11 account at the time this Order is executed, and garnish the remainder of the $350 filing fee

12 owed in this case by forwarding payments to the Clerk of the Court pursuant to 28 U.S.C.

13 § 1915(b)(2). ALL PAYMENTS MUST BE CLEARLY IDENTIFIED BY THE NAME

14 AND NUMBER 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 the Warden of USP Coleman II, U.S. Penitentiary, P.O. Box 1024, Coleman, Florida,

17 33521.

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

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

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

21 5. DIRECTS the Clerk of the Court to terminate Defendant MCC San Diego as

22 a party to this action; and

23 6. GRANTS Plaintiff forty-five (45) days leave from the date of this Order to

24 file an Amended Complaint which cures the deficiencies of pleading noted with respect to

25 Officer Burganson only. Plaintiff’s Amended Complaint must be complete by itself without

26 reference to his original pleading. Any claim not re-alleged in his Amended Complaint will

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

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

1 || original.”); Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (noting that claims

2 || dismissed with leave to amend which are not re-alleged in an amended pleading may be

3 || “considered waived if not repled”’).

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

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

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

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

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

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

10 |}complaint into dismissal of the entire action.”).

11 IT IS SO ORDERED

12 Dated: October 17, 2025 ©

13 Hon, Anthony J.Battaglia

14 United States District Judge

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