Juan Vega, Jr. v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN D. VEGA, JR., No. 13-35311

Plaintiff-Appellant,

D.C. No.

v. 2:11-cv-00632-

RSM

UNITED STATES OF AMERICA;

PIONEER HUMAN SERVICES, DBA

Pioneer Fellowship House OPINION

Residential Reentry Center, AKA

Pioneer Industries Inc., a WA

Corporation; HEATHER MCINTYRE,

in her official capacity as Counselor

of Pioneer Fellowship House

Residential Reentry Center, and in

her individual capacity;

BERNADETTE MATHIS, in her official

capacity as Counselor of Pioneer

Fellowship House Residential

Reentry Center, and in her individual

capacity; KRISTEN CORTEZ, in her

official capacity as Counselor of

Pioneer Fellowship House

Residential Reentry Center, and in

her individual capacity; STEPHANIE

JONES, in her official capacity as

Counselor of Pioneer Fellowship

House Residential Reentry Center,

and in her individual capacity;

DONALD JACKSON, in his official

2 VEGA V. UNITED STATES

capacity as Pioneer Fellowship

House Residential Reentry Center

Home Confinement

Coordinator/Center Discipline

Committee Chairperson, and in his

individual capacity; WILLIAM

BROWN, in his official capacity as

Manager of the Federal Bureau of

Prisons Community Corrections

Office in Seattle, Washington, and in

his individual capacity; KEVIN

STRAIGHT, in his official capacity as

employee in the Federal Bureau of

Prisons Community Corrections

Manager’s Office in Seattle,

Washington, and in his individual

capacity; ORANDA PHILLIPS, in her

official capacity as employee in the

Federal Bureau of Prisons

Community Corrections Manager’s

Office in Seattle, Washington, and in

her individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief Judge, Presiding

Argued and Submitted December 4, 2017

Seattle, Washington

Filed February 7, 2018

VEGA V. UNITED STATES 3

Before: Richard C. Tallman and Paul J. Watford, Circuit

Judges, and Richard F. Boulware II, * District Judge.

Opinion by Judge Tallman

SUMMARY **

Prisoner Civil Rights

The panel affirmed the district court’s dismissal of a

former prisoner’s putative claims brought under Bivens v.

Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), alleging that private employees of a residential

reentry center violated his First Amendment right to court

access and his Fifth Amendment right to procedural due

process.

The panel declined to expand Bivens to include

plaintiff’s First and Fifth Amendment claims against private

employees of a residential reentry center. The panel held

that because neither the Supreme Court nor this Court have

expanded Bivens in the context of a prisoner’s First

Amendment access to court or Fifth Amendment procedural

due process claims arising out of a prison disciplinary

process, the circumstances of plaintiff’s case against private

defendants plainly presented a “new context” under Ziglar

v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The panel held that

*

The Honorable Richard F. Boulware II, United States District

Judge for the District of Nevada, sitting by designation.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 VEGA V. UNITED STATES

plaintiff had adequate alternative remedies for relief against

the alleged violations of his First and Fifth Amendment

rights by the private defendants. The panel noted that

plaintiff could have sought review under the Administrative

Remedy Program, the Unit Discipline Committee or could

have brought state claims. The panel addressed plaintiff’s

remaining claims against the federal defendants in a

concurrently filed memorandum disposition.

COUNSEL

Nicole A. W. Abercrbomie (argued) and Jon W. Monson,

Cable Huston LLP, Portland, Oregon, for Plaintiff-

Appellant.

Teal Luthy Miller (argued), Assistant United States

Attorney; Annette L. Hayes, United States Attorney; United

States Attorney's Office, Seattle, Washington; for

Defendant-Appellee United States William Brown, Kevin

Straight, and Oranda Phillips.

Robert L. Bowman (argued) and William F. Knowles, Cozen

O’Connor, Seattle, Washington, for Defendant-Appellee

Pioneer Human Services.

VEGA V. UNITED STATES 5

OPINION

TALLMAN, Circuit Judge:

Juan Vega, Jr. was transferred from federal prison to a

Seattle non-profit residential reentry center to complete the

remainder of his prison sentence. There, he alleged that

federal and private employees conspired to remove him from

the halfway house known as Pioneer House, ostensibly

based on his race and for asserting his First Amendment

rights, by filing a false incident report. After his return to a

federal detention center based on that incident report, the

Federal Bureau of Prisons (“FBOP”) reversed the sanction

and returned Vega to a reentry program. Vega filed suit

alleging violations of his First and Fifth Amendment rights

under the implied cause of action theory adopted by the

Supreme Court in Bivens v. Six Unknown Federal Narcotics

Agents, 403 U.S. 388 (1971), as well as state law claims. The

district court refused to allow Vega to amend his complaint

a second time and subsequently dismissed all of his claims.

On appeal, Vega contends that the district court erred by

(1) dismissing his Bivens claims against the federal

defendants on qualified immunity grounds, (2) dismissing

his Bivens claims against the private defendants based on the

Supreme Court’s holding in Minneci v. Pollard, 565 U.S.

118, 120 (2012), (3) dismissing his state law claims, and

(4) not permitting him to amend his complaint for a second

time. In a memorandum disposition, we address all of

Vega’s arguments except for whether Bivens should be

expanded to include access to courts and procedural due

process claims against private defendants under the First and

Fifth Amendments, respectively. In this opinion we hold

that Bivens should not be so expanded, and affirm the district

court’s dismissal.

6 VEGA V. UNITED STATES

I

On August 20, 2008, Juan Vega, Jr. was transferred from

a federal prison in Oregon to Pioneer House to complete the

remainder of his 63-month sentence for misrepresenting a

Social Security number and to participate in a community-

based, residential drug treatment program. Pioneer House is

operated by Pioneer Human Services, a non-profit FBOP

contractor, and prisoners assigned to this type of reentry

program technically remain in the custody of the FBOP.

18 U.S.C. §§ 3621, 3624(c); 28 C.F.R. § 570.22. Once

there, Vega met with Pioneer House Counselor Bernadette

Mathis to discuss the reentry center’s policies, including the

requirement of seeking employment. Vega alleged that he

then told Mathis that he had been “medically unassigned and

not required to work at any type of job” at his previous place

of incarceration.

Vega further alleged that he told Mathis at that meeting

that he had five pending pro se civil court cases and would

be submitting requests to leave Pioneer House to go to the

law library of the United States Court of Appeals for the

Ninth Circuit or the King County Superior Court. According

to Vega, Mathis told him that it was against FBOP and

Pioneer House policy to authorize prisoner absences for the

purpose of going to a library, including a law library. 1 Vega

also asserted that he requested visits from two attorneys

whom he had contacted about Pioneer House’s refusal to

authorize him to visit the two law libraries. Mathis allegedly

told him that attorneys are not allowed to visit prisoners at

Pioneer House.

1

It is unclear from the record whether Pioneer House has a law

library on site.

VEGA V. UNITED STATES 7

On September 3, 2008, Mathis prepared a document

detailing Vega’s individual program plan and goals, which

stated that Vega was in the process of seeking a medical

waiver from employment. Vega asserted that neither this

document, nor a subsequent case note on September 17,

indicated that “he was unwilling to obtain employment due

to his medical conditions.” On September 20, 2008, Vega

secured a job at Pioneer Food Services.

On September 17, 2008, Mathis met with Vega and

provided a case note document for him to sign. Vega

refused. He alleged that on September 24, Mathis told him

that if he did not sign the resident case note, she would write

him up for “failure to program.” Vega then signed the case

note, with a notation by his signature that he was signing

“under duress.” The next day, Vega participated in a

telephone conference call with William Brown, Jr., the

FBOP Community Corrections Manager, and Pioneer House

staff to discuss the incident in which Vega had allegedly

refused to sign the case note.

During that conference call, Vega alleged that Mathis

and Pioneer House Director Heather McIntyre informed

Brown that signing case notes was a program requirement.

Vega contended that he was merely attempting to exercise

his rights and review a copy of the applicable regulation.

According to Vega, Brown stated that he “gave very little

weight to” his request for information “because of [Vega’s]

status as a convicted felon.” Brown then told Vega to

“follow the rules and program” and warned him not to cause

any more problems while at Pioneer House. On October 8,

2008, Vega received a “level advancement” from Pioneer

House, which acknowledged that he had complied with all

work requirements, paid subsistence, complied with the

8 VEGA V. UNITED STATES

necessary drug abuse treatment requirements, and was free

of any incident write-ups in the past thirty days.

Vega next alleged that on October 16, 2008, Mathis and

McIntyre met with FBOP employees Brown, Kevin Straight,

and Oranda Phillips. He asserted, “[a]t that meeting, the

aforementioned Defendants, were determine[d] to make an

example out of Plaintiff, who is a black male, for his

continuous legal actions against the [FBOP] in Seattle,

Washington, and [the Pioneer House] in Seattle,

Washington, by any means.” Vega alleged that “the

Defendants designed a plan for [his] removal by writing up

a false Incident Report,” which “Counselor Mathis was

designated as the staff person to write-up[.]” Later that day,

Vega received an incident report stating that he had violated

a condition of a community program by refusing to obtain

employment due to a medical condition. Vega’s complaint

also alleged that in the incident report, Mathis said that

despite prior warnings from Brown to “follow the rules, and

work with his counselor to complete necessary

programming,” on October 16, 2008, “[s]taff became aware

that . . . Vega [was] pursuing an active case with the

Department of Labor and Industries and [was] scheduled to

go to trial this Friday, October 17, 2008.” Vega strongly

disputes these alleged violations.

On October 17, 2008, two deputy United States marshals

removed Vega from Pioneer House and transferred him back

to federal prison at the SeaTac Federal Detention Center

(“FDC”). At no point prior to this transfer was Vega

provided with any opportunity for investigation or a hearing.

Five days after the incident and four days after Vega was

removed from Pioneer House, Pioneer Human Services

employee Donald Jackson notified FBOP that Vega’s

hearing was postponed to allow for the continuing

VEGA V. UNITED STATES 9

investigation into the incident report and in light of Vega’s

transfer to FDC-SeaTac. On October 21, Pioneer House

staff conducted an investigation of the incident report,

concluded that Vega had committed a prohibited act of

violating a condition of a community program, and

recommended that Vega be removed from Pioneer House as

a sanction. No evidence was apparently cited in the

investigation report. On October 23, Jackson conducted a

disciplinary committee hearing.

Jackson’s hearing report found that Vega had

“committed the prohibited act of Violating a condition of a

community program (Code 309). My findings [are] based

on the written account of the reporting staff member, which

indicated on October 16, 2008 at 1030 hrs. [Pioneer House]

staff became aware that [Vega was] pursuing an active case

with the Department of Labor and Industries without

permission from [Pioneer House] Staff.” The report

recommended termination at the Pioneer House, in order to

“impress upon [Vega] and other residents that this kind of

behavior will not be tolerated and that they will be held

accountable when they violate FBOP and [Pioneer House]

rules and regulations.” Ultimately, FBOP officials in the

Unit Discipline Committee (“UDC”) refused to “certify the

incident report because of a lack of evidentiary support,” and

Vega was returned to a residential reentry facility in Tacoma,

Washington, on January 15, 2009.

II

On April 13, 2011, Vega filed a pro se complaint against

the United States, three federal employees (Brown, Straight,

and Phillips), the Pioneer House, and five Pioneer House

employees (McIntyre, Mathis, Kristen Cortez, Stephanie

Jones, and Jackson) alleging 15 separate counts, including

claims for constitutional violations under Bivens and several

10 VEGA V. UNITED STATES

tort claims under the Federal Tort Claims Act (“FTCA”) and

Washington law. On September 20, 2011, the district court

granted Vega’s motion for leave to file an amended

complaint. On October 4, 2011, the federal defendants filed

a motion to dismiss the amended complaint, which the

Pioneer House defendants joined.

On December 2, 2011, the district court issued an order

granting in part, and denying in part, the motions to dismiss.

Relevant to this appeal, the court: (a) denied the federal

defendants’ motion to dismiss the Bivens claims “on the

basis that no government employee was involved in the

alleged deprivation of constitutional rights”; (b) denied the

Pioneer House employees’ motion to dismiss Vega’s Bivens

claims “on the sole basis that they are not federal

employees”; (c) granted the federal defendants’ motion to

dismiss Vega’s FTCA claims, to the extent they were

predicated on the conduct of Pioneer House and its

employees, pursuant to the “contractor” exception under the

FTCA; (d) granted the federal and Pioneer House

defendants’ motions to dismiss Vega’s tort claims for false

imprisonment, false arrest, malicious prosecution, abuse of

process, outrage/intentional infliction of emotional distress,

and invasion of privacy; and (e) denied the federal and

Pioneer House defendants’ motion to dismiss Vega’s

negligence claim as premature.

On April 26, 2012, the Pioneer House defendants filed a

motion for summary judgment seeking dismissal of the

remaining claims against Pioneer House and its employees.

On May 7, 2012, the federal defendants also filed a summary

judgment motion. On November 1, 2012, the district court

issued an order granting in part, and denying in part, the

defendants’ motions, which it construed as motions for

judgment on the pleadings. The court granted judgment on

VEGA V. UNITED STATES 11

the pleadings dismissing Vega’s First Amendment claims

against the federal defendants on qualified immunity

grounds, but denied the federal defendants’ motion as to

Vega’s Fifth Amendment due process claim. The court also

dismissed the remaining claims against the Pioneer House

defendants, including Vega’s Bivens claims, relying on the

Supreme Court’s ruling in Minneci. Additionally, the court

granted all of the defendants’ motions related to Vega’s

negligence and discrimination claims under the FTCA and

Washington state law.

While the Pioneer House defendants’ motion for

summary judgment was pending, Vega sought leave to file a

second amended complaint. The district court denied the

motion, recognizing that leave to amend should be freely

given but also that “futility of amendment” is an appropriate

basis for denying a motion to amend. The court also

concluded that Vega’s “fail[ure] to attach his proposed

amended complaint to his motion or to articulate how he

propose[d] to amend his complaint” made it impossible for

the court “to evaluate the propriety of an amendment.” See

Local Rule 15 of the United States District Court for the

Western District of Washington (stating that a party who

seeks leave to amend a complaint must attach a copy of the

proposed amended complaint as an exhibit to his motion and

that the motion must make clear how the proposed amended

complaint differs from the original). In the following nine

months after his motion was denied, Vega never renewed his

motion with a proposed amended complaint or explained

how he proposed to amend his complaint.

On November 15, 2012, the federal defendants filed a

motion for reconsideration of the court’s denial of its Federal

Rule of Civil Procedure (“FRCP”) 12(c) motion with respect

to Vega’s Fifth Amendment procedural due process claim.

12 VEGA V. UNITED STATES

On April 1, 2013, the court granted the motion for

reconsideration, dismissing the sole remaining Bivens due

process claim on qualified immunity grounds.

Vega timely filed this appeal on April 9, 2013. We have

jurisdiction under 28 U.S.C. § 1291, and we review de novo

a district court’s grant of a motion to dismiss for failure to

state a claim under FRCP 12(b)(6), Garity v. APWU Nat’l

Labor Org., 828 F.3d 848, 854 (9th Cir. 2016), as well as for

a judgment on the pleadings under FRCP 12(c), Fleming v.

Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “[W]e may

affirm based on any ground supported by the record.”

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,

1121 (9th Cir. 2008) (citing Papa v. United States, 281 F.3d

1004, 1009 (9th Cir. 2002)).

III

In Bivens, the Supreme Court “recognized for the first

time an implied right of action for damages against federal

officers alleged to have violated a citizen’s constitutional

rights.” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017)

(per curiam) (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 66 (2001)). Since Bivens, the Court has only

expanded this “implied cause of action” twice. Ziglar v.

Abbasi, 137 S. Ct. 1843, 1854 (2017). In Davis v. Passman,

the Court provided a Bivens remedy under the Fifth

Amendment’s Due Process Clause for gender

discrimination. 442 U.S. 228 (1979). In Carlson v. Green,

the Court expanded Bivens under the Eighth Amendment’s

Cruel and Unusual Punishments Clause for failure to provide

adequate medical treatment to a prisoner. 446 U.S. 14

(1980). Otherwise, “the Court has made clear that

expanding the Bivens remedy is now a ‘disfavored’ judicial

activity,” Abbasi, 137 S. Ct. at 1857 (citing Ashcroft v. Iqbal,

VEGA V. UNITED STATES 13

556 U.S. 662, 675 (2009)), and has consistently declined to

expand this limited remedy. 2

Here, Vega asks us to expand the Bivens remedy against

private defendants for allegedly violating his First

Amendment right to access to courts, as well as his Fifth

Amendment right to procedural due process. Although the

district court stated that “Minneci clarified that private

employees acting under color of federal law cannot be held

liable under Bivens,” Minneci’s holding was in fact much

more narrow. In Minneci, the Court examined whether to

expand the Bivens remedy to include Eighth Amendment

violations allegedly committed by employees of a private

prison. 565 U.S. at 120. In declining to do so, the Court

relied on the fact that the defendants were private employees

and that, unlike federal employees, they were subject to state

law tort claims without qualified immunity. Id. at 126–31.

As such, the Court found that state law provided an adequate,

alternative remedy, and declined to extend Bivens. Id.

In fact, the Minneci Court did not completely foreclose

applying Bivens to private actors. See id. at 130 (“[W]e

concede that we cannot prove a negative or be totally certain

2

See Minneci, 565 U.S. at 120 (an Eighth Amendment suit against

prison guards at a private prison); Wilkie v. Robbins, 551 U.S. 537, 547–

48 (2007) (a due process suit against officials from the Bureau of Land

Management); Malesko, 534 U.S. at 63 (an Eighth Amendment suit

against a private prison operator); FDIC v. Meyer, 510 U.S. 471, 473–74

(1994) (a procedural due process suit against a federal agency for

wrongful termination); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988)

(a procedural due process suit against Social Security officials); United

States v. Stanley, 483 U.S. 669, 671–72 (1987) (a substantive due process

suit against military officers); Chappell v. Wallace, 462 U.S. 296, 297

(1983) (a race discrimination suit against military officers); Bush v.

Lucas, 462 U.S. 367, 390 (1983) (a First Amendment suit against a

federal employer).

14 VEGA V. UNITED STATES

that the features of state tort law relevant here will

universally prove to be, or remain, as we have described

them.”). For the following reasons, however, we decline to

expand Bivens to include Vega’s First and Fifth Amendment

claims against private employees of a residential reentry

center.

A

“[T]he first question a court must ask in a case like this

one is whether the claim arises in a new Bivens context, i.e.,

whether the case is different in a meaningful way from

previous Bivens cases decided by this Court.” Abbasi,

137 S. Ct. at 1864 (internal quotation marks and citation

omitted). “[A] case can present a new context for Bivens

purposes if it implicates a different constitutional right; if

judicial precedents provide a less meaningful guide for

official conduct; or if there are potential special factors that

were not considered in previous Bivens cases.” Id. The

Supreme Court has never explicitly recognized a Bivens

remedy for a First Amendment claim. See Reichle v.

Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never

held that Bivens extends to First Amendment claims.”). But

see Iqbal, 556 U.S. at 675 (“[W]e assume, without deciding,

that respondent’s First Amendment claim is actionable under

Bivens.”).

In the Ninth Circuit, however, we have previously held

that Bivens may be extended to First Amendment claims. In

Gibson v. United States, we stated that “because plaintiffs

have alleged that FBI agents acted with the impermissible

motive of curbing [the plaintiff’s] protected speech, they

have asserted a claim properly cognizable through a Bivens-

type action directly under the First Amendment.” 781 F.2d

1334, 1342 (9th Cir. 1986). See also Moss v. U.S. Secret

Serv., 572 F.3d 962, 967 n.4 (9th Cir. 2009) (“This court . . .

VEGA V. UNITED STATES 15

has held that Bivens authorizes First Amendment damages

claims.”). But because neither the Supreme Court nor we

have expanded Bivens in the context of a prisoner’s First

Amendment access to court or Fifth Amendment procedural

due process claims arising out of a prison disciplinary

process, the circumstances of Vega’s case against private

defendants plainly present a “new context” under Abbasi.

B

The Supreme Court in Wilkie provided a two-step

analysis when courts decide whether to recognize a Bivens

remedy. See 551 U.S. at 550. “In the first place, there is the

question whether any alternative, existing process for

protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and

freestanding remedy in damages.” Id. (quoting Bush,

462 U.S. at 378). Second, Supreme Court precedent

“make[s] clear that a Bivens remedy will not be available if

there are ‘special factors counselling hesitation in the

absence of affirmative action by Congress.’” Abbasi, 137 S.

Ct. at 1857 (quoting Carlson, 446 U.S. at 18). Here, Vega

had adequate alternative remedies at his disposal and we

therefore decline to address whether any special factors

counsel hesitation. See generally Minneci, 565 U.S. at 131.

“[I]f there is an alternative remedial structure present in

a certain case, that alone may limit the power of the Judiciary

to infer a new Bivens cause of action.” Abbasi, 137 S. Ct. at

1858. “Alternative remedial structures” can take many

forms, including administrative, statutory, equitable, and

state law remedies. In Abbasi, the Court stated that the

respondents likely had alternative relief in the form of a

habeas petition. Id. at 1863 (“Indeed, the habeas remedy, if

16 VEGA V. UNITED STATES

necessity required its use, would have provided a faster and

more direct route to relief than a suit for money damages.”). 3

Here, Vega had alternative means for relief against the

alleged violations of his First and Fifth Amendment rights

by the private defendants. First, Vega had a remedy “to seek

formal review of an issue relating to any aspect of his . . .

own confinement” under the Administrative Remedy

Program (“ARP”). 4 28 C.F.R. § 542.10(a) (emphasis

added). See Malesko, 534 U.S. at 74. Under that provision,

Vega could have sought the assistance of counsel,

§ 542.16(a), appealed any adverse findings to the Regional

Director, § 542.15(a), and then to the FBOP’s General

Counsel, id.

Second, Vega could have sought review of the incident

report by the UDC under 28 C.F.R. § 541.7, which is exactly

what he ultimately did. During such a review, Vega would

be permitted to appear before the board, § 541.7(d), “make a

3

See also Minneci, 565 U.S. at 127–30 (state tort law provided

alternative means for relief); Wilkie, 551 U.S. at 553–54 (state tort law

and administrative remedies provided alternative means for relief);

Malesko, 534 U.S. at 72–73 (state tort law provided alternative means

for relief); Schweiker, 487 U.S. at 429 (Social Security statutory scheme

provided alternative means for relief); Bush, 462 U.S. at 385–88 (civil-

service regulations provided alternative means for relief).

4

Although the Court in Carlson and McCarthy v. Madigan, 503 U.S.

140, 151 (1992), superseded in part on other grounds by statute, Prison

Litigation Reform Act of 1995, Pub. L. 104–134, 110 Stat. 1321–71, did

not recognize the ARP as an adequate, alternative remedy for prisoners,

those cases involved violations of a prisoner’s Eighth Amendment rights

for failing to give proper medical care. In this case, however, the ARP

provides an adequate, and more appropriate, remedy to vindicate Vega’s

rights to access the courts and to procedural due process. Specifically,

the ARP could have provided for review of Pioneer House policies or

any issue in the disciplinary hearing process and procedure.

VEGA V. UNITED STATES 17

statement and present documentary evidence,” § 541.7(e),

and appeal the UDC’s decision through the aforementioned

APR, § 541.7(i). In Vega’s case, this review system

ultimately resulted in a determination that the evidence was

insufficient to show that Vega failed to follow Pioneer

House program rules, and he was returned to a residential

reentry program in Tacoma, Washington.

Third, Vega had state law claims as an alternative

remedy. In his First Amended Complaint, Vega in fact

brought state law claims against the Pioneer House

employees under (1) the Washington Law Against

Discrimination, RCW 49.60.010, et seq., and for (2) false

imprisonment, (3) intentional infliction of emotional

distress, and (4) negligence. Further, Vega asserted

additional claims for (5) false arrest, (6) malicious

prosecution, (7) abuse of process, and (8) invasion of

privacy, under the FTCA. Although the FTCA does not

apply to private employees such as the Pioneer House

defendants, see United States v. Orleans, 425 U.S. 807, 813–

14 (1976), Vega does not contend that he could not have

brought those or other state law claims directly under state

law. He merely failed to do so.

That Vega’s state law claims ultimately failed to satisfy

the requirements of Washington law, or federal pleading

standards, does not mean that he did not have access to

alternative or meaningful remedies. See Minneci, 565 U.S.

at 129 (“State-law remedies and a potential Bivens remedy

need not be perfectly congruent.”). It simply means that

Vega did not adequately plead, or ultimately have, a

meritorious claim. Furthermore, no court has held that the

plaintiff’s lack of success due to inadequate pleading while

pursuing alternative remedies provides a basis for Bivens

relief. To do so would require the court to necessarily prove

18 VEGA V. UNITED STATES

the plaintiff’s alternative remedies for him, or be forced to

create a new remedy through Bivens.

And although Vega contends that “[f]or [him], ‘it is

damages or nothing,’” the fact that the administrative

procedures in place to review sanctions resulted in his return

to a residential reentry center belies his claim. Expanding

Bivens in this context, therefore, seems imprudent given the

Court’s admonition that “any alternative, existing process

for protecting the interest amounts to a convincing reason for

the Judicial Branch to refrain from providing a new and

freestanding remedy in damages.” Wilkie, 551 U.S. at 550

(citing Bush, 462 U.S. at 378).

IV

In light of the available alternative remedies, we decline

to expand Bivens in this context. We affirm the district

court’s dismissal of Vega’s putative Bivens claims against

the private Pioneer House defendants.

Costs are awarded to the private Defendants-Appellees.

AFFIRMED.