# Lloyd George Kenney v. J. Carp

> District Court, C.D. California · August 2, 2019

URL: https://www.frixlaw.com/law-library/cases/9978015

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 2, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9978015

## How later opinions describe it (automated extraction)

- characterizing Ashcroft v. Iqbal, 556 U.S. 662, 675 23 (2009) as “assuming without deciding that a First Amendment free exercise claim is 24 actionable under Bivens” and Bush v. Lucas, 462 U.S. 367, 368 (1983

## Opinion text

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10

11 LLOYD GEORGE KENNEY, Case No. 2:19-cv-05759-AB-KES

12 Plaintiff, ORDER DISMISSING COMPLAINT

13 v. WITH LE AVE TO AMEND

14 J. CARP, et al.,

15 Defendants.

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18 I.

19 INTRODUCTION

20 Lloyd George Kenney (“Plaintiff”), a prisoner in the custody of the federal
21 Bureau of Prisons (“BOP”), filed a pro se civil rights Complaint alleging violations
22 of his constitutional rights by 12 Defendants: 5 work at Federal Correctional
23 Institution (“FCI”) Victorville II in California, 5 work at FCI Phoenix in Arizona,
24 and 2 are BOP Administrators.1 (Dkt. 1 at 3-6.) Plaintiff sues each Defendant in
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26 1 The “BOP Administrator” defendants are J. Baltazar, the BOP’s Western
27 Regional Director in Stockton, California, and Ken Hyle, the BOP’s General Counsel
in Washington, D.C. (Dkt. 1 at 4, 6.)
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1 his official and individual capacities. (Id.) For the reasons discussed below, the
2 Complaint is dismissed with leave to amend.
3 II.
4 SUMMARY OF ALLEGATIONS
5 After suffering convictions for armed bank robbery and related crimes,
6 Plaintiff was sentenced to federal prison in 2016. (Dkt. 1 at 47.)
7 A. Events at FCI Victorville II.
8 In 2017, Plaintiff moved cells per an order by Defendant Carp but filed a
9 grievance alleging that the order was racially motivated. (Id. at 73, 76.)
10 In May 2018, Plaintiff had another dispute with Defendant Carp over an
11 order to move cells. (Id. at 24, 40, 43, 46, 48.) During a face-to-face encounter,
12 Defendant Carp accused Plaintiff of “displaying signs of imminent violence,” so he
13 ordered Plaintiff confined to the Special Housing Unit (“SHU”) and filed an
14 incident report. (Id. at 51.) Plaintiff denies that he displayed signs of violence. (Id.
15 at 9, 58-59, 65.) On June 18, 2018, a hearing officer found that Plaintiff did not
16 engage in prohibited conduct, expunging the incident report . (Id. at 55.) After this
17 expungement, Defendant Carp “retaliated by manufacturing more allegations that
18 resulted in Plaintiff’s continued administrative segregation.” (Id. at 9.)
19 In the SHU, Plaintiff was “double-celled with [a] mentally disturbed black
20 inmate who physically assaulted Plaintiff.” (Id. at 7.) This inmate had a “history of
21 erratic and violent institutional behavior.” (Id. at 8.) Plaintiff suffered “pain, cuts,
22 scratches and bruises” from the assault, and he “was examined by a nurse and a cut
23 bandaged.” (Id.)
24 Plaintiff was later double-celled with two other black inmates and “witnessed
25 other inmates segregated on racial/ethnic lines.” (Id. at 7.) He contends that the
26 BOP “promote[s] [a] common practice of racial and ethnic segregation in [its]
27 cells.” (Id.) He alleges that he lost “personal property and legal material” as a
28 result of his SHU placement and eventual transfer to FCI Phoenix, discussed below.
1 (Id. at 9.)
2 On June 27, 2018, Defendant Colizzi completed an SIS investigation which
3 concluded that Plaintiff’s “aggressive and disruptive behavior interferes with the
4 security or orderly running of the institution.” (Id. at 44.) Plaintiff alleges that
5 Defendant Colizzi ignored the expungement and “rubber-stamped Carp’s false
6 allegations,” resulting in a false report of misconduct staying in Plaintiff’s prison
7 records. (Id. at 9, 63.)
8 On July 24, 2018, Defendants Espadas-Adams, Agostini, and Carr all signed
9 a “Request for Transfer/Application of Management Variable” form. (Id. at 44,
10 57.) The form notes, “[Plaintiff’s] institutional adjustment is considered poor. He
11 has been housed in the Special Housing Unit since May 15, 2018, pending an SIS
12 investigation and is presently unassigned to a work detail.” (Id.) The form also
13 notes, “[Plaintiff] has a history of allegations without any foundation for the sole
14 purpose to maintain a single cell.” (Id.) The form recommends transfer based on
15 Defendant Colizzi’s SIS investigation, noting, “Due to the nature of the
16 investigation, it is imperative that [Plaintiff] be transferred to a facility outside of ...
17 Victorville, for staff security pertaining to the investigation.” (Id.)
18 Plaintiff alleges that Defendants Espadas-Adams, Agostini, and Carr relied
19 on information they knew to be false (i.e., Defendant Carp’s incident report) to
20 request his transfer and a higher security variable, although a higher security
21 variable was never assigned. (Id. at 9, 22.) He claims that Defendants took these
22 actions to retaliate against him for filing grievances against Defendant Carp. (Id. at
23 9.)
24 Plaintiff remained in the SHU at FCI Victorville II until August 7, 2018,
25 when he was transferred to FCI Phoenix. (Id. at 42.)
26 B. Events at FCI Phoenix.
27 At FCI Phoenix, Plaintiff filed grievances seeking to have various records
28 and/or negative information removed from his BOP file. (Id. at 16-17, 22-23, 42,
1 60.) Plaintiff’s requests concerned both records written by staff at FCI Victorville
2 II and an incident on March 9, 1995, during an earlier term of incarceration that the
3 BOP characterized as “making sexual proposal/threat.” (Id. at 11, 12, 50.) In
4 November 2018, he received a response from Defendant Lothrop, the warden of
5 FCI Phoenix, explaining why no records would be removed from his BOP file. (Id.
6 at 31.) In February 2019, he received a similar response from Defendant Baltazar,
7 the Regional Director of the Western Office of the BOP. (Id. at 22.)
8 Plaintiff also alleges that following the transfer, Defendant Jimenez, a
9 correctional counselor, retaliated against him by changing Plaintiff’s Inmate
10 Financial Responsibility Program (“IFRP”) from quarterly $25 payments to
11 monthly $25 payments; this change caused Plaintiff’s account to default which led
12 to discipline in the form of ineligibility for a prison job. (Id. at 10.) Plaintiff
13 complains that other staff members at FCI Phoenix and the BOP Administrators
14 knew about his situation but failed to remedy it. (Id. at 10, 39.)
15 C. Legal Claims and Relief Sought.
16 Based on these factual allegations, Plaintiff alleges that the Defendants at
17 FCI Victorville II and the BOP Administrators violated his (1) Fifth Amendment2
18 due process rights by housing him only with other black inmates, condoning a
19 practice of racial segregation, (2) Eighth Amendment rights by failing to protect
20 him from the SHU cellmate who assaulted him, and (3) First Amendment rights by
21 retaliating against him for filing grievances by (a) putting false information in his
22 BOP file and refusing to remove it, and (b) requesting his transfer with a higher
23 security variable (collectively, the “FCI Victorville Claims”). (Id. at 7-9.)
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25 2 Although Plaintiff characterizes this as a Fourteenth Amendment Equal
Protection claim (Dkt. 1 at 7), the Court liberally construes this claim as brought
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under the Fifth Amendment, since Defendants are alleged to be acting under color
27 of federal law. See United States v. Windsor, 570 U.S. 744, 774 (2013); Bolling v.
Sharpe, 347 U.S. 497, 498-500 (1954).
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1 Plaintiff alleges that the Defendants at FCI Phoenix and the BOP
2 Administrators violated his (1) Fifth Amendment due process rights by changing
3 his IFRP “arbitrarily and capriciously,” and (2) First Amendment rights by
4 retaliating against him for filing grievances by (a) refusing to remove false
5 information in his BOP file, (b) refusing to process his grievances or rejecting them
6 for “specious” reasons, and (c) arbitrarily changing his IFRP (collectively, the “FCI
7 Phoenix Claims”). (Id. at 10, 21, 32-35, 45, 54, 68.)
8 Plaintiff seeks: (1) unspecified declaratory relief, (2) injunctive relief (as
9 detailed below), (3) compensatory damages of $500,000, and (4) punitive damages
10 of $500,000. (Id. at 11.) As injunctive relief, Plaintiff seeks: (1) expungement of
11 “false and prejudicial information” from several listed documents in his BOP file,
12 (2) judicial examination of his BOP file to find and redact information that “distorts
13 or prejudices Plaintiff’s institutional behavior,” and (3) assignment at FCI Phoenix
14 “to UNICOR employment with back-pay commensurate to placement on waiting
15 list beginning August 9, 2018, and hire-date consistent with inmates who were
16 hired in chronological order.” (Id.)
17 II.
18 PLEADING DEFECTS
19 Per the Prison Litigation Reform Act at 28 U.S.C. § 1915A, the Court has
20 screened the Complaint and identified the pleading defects listed below.
21 A. Venue and Joinder Appears to Be Improper as to the FCI Phoenix
22 Claims.
23 The Complaint names five Defendants who are staff members at FCI
24 Phoenix. The Complaint does not allege facts demonstrating that any of the
25 Arizona Defendants have any contacts with California that would subject them to
26 personal jurisdiction here. See generally Goodyear Dunlop Tires Operations v.
27 Brown, 564 U.S. 915, 923 (2011) (for a federal court to exercise personal
28 jurisdiction over a nonresident defendant, the defendant must have at least
1 “minimum contacts” with the state, such that the exercise of jurisdiction “does not
2 offend traditional notions of fair play and substantial justice”).
3 Venue in this Court also appears to be improper as to the FCI Phoenix
4 Claims.3 The federal civil venue statute provides that an action may be brought in:
5 (1) a judicial district in which any defendant resides, if all defendants
6 are residents of the State in which the district is located;
7 (2) a judicial district in which a substantial part of the events or
8 omissions giving rise to the claim occurred, or a substantial part of
9 property that is the subject of the action is situated; or
10 (3) if there is no district in which an action may otherwise be brought
11 as provided in this section, any judicial district in which any defendant
12 is subject to the court’s personal jurisdiction with respect to such
13 action.
14 28 U.S.C. § 1391(b). For the FCI Phoenix Claims, the proper venue appears to be
15 the U.S. District Court for the District of Arizona.
16 Plaintiff could voluntarily dismiss the Arizona Defendants without prejudice
17 to suing them in a different venue by omitting them from his First Amended
18 Complaint. If Plaintiff includes the FCI Phoenix Claims in his First Amended
19 Complaint, he should allege facts demonstrating that either: (1) venue is proper in
20 this district under § 1391(b), or (2) the FCI Phoenix Claims are properly joined in a
21 single action with the FCI Victorville Claims. See Fed. R. Civ. P. 20(a)(2)
22 (providing that defendants may be joined in a single action if “(A) any right to relief
23 is asserted against them jointly, severally, or in the alternative with respect to or
24 arising out of the same transaction, occurrence, or series of transactions or
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26 3 Courts may sua sponte consider whether venue is proper if the defendants
27 have not yet appeared in the action. Costlow v. Weeks, 790 F.2d 1486, 1488 (9th
Cir. 1986).
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1 occurrences; and (B) any question of law or fact common to all defendants will
2 arise in the action.”); Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997)
3 (“[T]he mere fact that all Plaintiffs’ claims arise under the same general law does
4 not necessarily establish a common question of law or fact.”); see also United
5 States v. Mississippi, 380 U.S. 128, 143 (1965) (“Since joinder of the registrars in
6 one suit was proper, the argument that venue as to some of them was not properly
7 laid is also without merit.”). Otherwise, the undersigned may recommend that the
8 District Judge dismiss these claims or transfer them to the District of Arizona. See
9 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a case laying
10 venue in the wrong division or district shall dismiss, or if it be in the interest of
11 justice, transfer such case to any district or division in which it could have been
12 brought.”); Fed. R. Civ. P. 21 (“On motion or on its own, the court may at any time,
13 on just terms, add or drop a party” or “sever any claim against a party.”).
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15 B. Official Capacity Claims for Monetary Damages are Not Cognizable,
16 and Clarification is Needed as to Plaintiff’s Claims for Injunctive Relief.
17 Plaintiff cannot pursue monetary damages under Bivens against federal
18 defendants named in their “official” capacity. A Bivens suit against such
19 defendants in their official capacity is merely another way of pleading an action
20 against the United States, which would be barred by sovereign immunity. Consejo
21 de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173
22 (9th Cir. 2007). A Bivens action is not necessary, however, in suits that seek
23 equitable relief against the federal government, because the Administrative
24 Procedure Act waives sovereign immunity for such claims. Ministerio Roca Solida
25 v. McKelvey, 820 F.3d 1090, 1096 (9th Cir. 2016) (citing 5 U.S.C. § 702).
26 Plaintiff might be able to seek prospective injunctive relief against a federal
27 official capacity defendant or bring a mandamus action under 28 U.S.C. § 1361. As
28 presently drafted, however, the Complaint does not distinguish which Defendants
1 are sued in their official capacity for injunctive relief only (if any) and those sued
2 for monetary damages under Bivens. The Complaint also fails to identify which
3 Defendants are sued for which forms of equitable relief. This should be clarified in
4 any First Amended Complaint.
5 C. The Complaint Fails to State a Claim Based on Supervisory Liability.
6 Plaintiff alleges that, through the grievance procedure, the BOP
7 Administrator Defendants learned of his allegations that other BOP staff members
8 had deprived him of constitutional rights but failed to grant him relief. Such
9 allegations are insufficient the state a Bivens claim against the BOP Administrator
10 Defendants in their individual capacity. Supervisory liability under Bivens attaches
11 “if there exists either (1) [the defendant’s] personal involvement in the
12 constitutional deprivation, or (2) a sufficient causal connection between the
13 supervisor’s wrongful conduct and the constitutional violation.” Starr v. Baca, 652
14 F.3d 1202, 1207 (9th Cir. 2011). Courts in this circuit generally agree that denying
15 an inmate appeal does not, by itself, lead to liability. See Phillipi v. Patterson, No.
16 13-01514, 2014 WL 11774836 at *3, 2014 U.S. Dist. LEXIS 105865 at *7 (E.D.
17 Cal. Aug. 1, 2014) (citing George for the proposition that “denial of an inmate
18 appeal … does not state a cognizable constitutional violation”), aff’d sub
19 nom. Phillippi v. Patterson, 599 F. App’x 288 (9th Cir. 2015); Baldhosky v.
20 Hubbard, No. 12-01200, 2018 WL 1392058, at *3, 2018 U.S. Dist. LEXIS 45667
21 at*8-9 (E.D. Cal. Mar. 20, 2018) (dismissing “claims alleging that individuals
22 who[se] identities are apparently presently unknown reviewed his health care
23 services requests and failed to act in violation of his constitutional rights,” citing
24 George, and noting that “denial of a prisoner’s administrative requests generally
25 does not cause or contribute to any underlying constitutional violation” unless
26 prison administrators “willfully turn a blind eye to constitutional violations being
27 committed by subordinates”); Thomas v. Matevousian, No. 17-1592, 2018 WL
28 1452261 at *4, 2018 U.S. Dist. LEXIS 46663 at*9 (E.D. Cal. Mar. 21, 2018)
1 (“Actions in reviewing a prisoner’s administrative appeal generally cannot serve as
2 the basis for liability in a section 1983 action.”); Hernandez v. Cate, 918 F. Supp.
3 2d 987, 1018 (C.D. Cal. 2013) (dismissing claims “based solely on [the
4 defendants’] role in the inmate appeals process” but denying motion to dismiss
5 claims plausibly suggesting that other defendants “were involved in authorizing or
6 implementing the modified programs at issue”).
7 To the extent Plaintiff attempts to plead that the BOP Administrator
8 Defendants personally participated in the wrongs he experienced by alleging that
9 they failed to supervise BOP staff adequately, he has not alleged facts showing that
10 the lack of supervision caused the alleged constitutional deprivations.
11 D. The Request for Declaratory Relief May Not Present an Actual Case or
12 Controversy.
13 The Court liberally construes the Complaint as requesting a declaratory
14 judgment under the Declaratory Judgment Act at 28 U.S.C. § 2201. Plaintiff,
15 however, fails to allege what declaration of rights he seeks. Because of this, the
16 Complaint fails to allege facts showing that the requested declaratory judgment
17 would resolve an ongoing case or controversy, as opposed to a dispute rendered
18 moot by his transfer to FCI Phoenix. See Rhoades v. Avon Prod., Inc., 504 F.3d
19 1151, 1157 (9th Cir. 2007) (“Absent a true case or controversy, a complaint solely
20 for declaratory relief under 28 U.S.C. § 2201 will fail for lack of jurisdiction.”);
21 Low v. Stanton, No. 05-2211, 2009 U.S. Dist. LEXIS 6827 at *12, 2009 WL
22 161080 at *4 (E.D. Cal. Jan. 22, 2009) (“Generally, when a prisoner is transferred
23 from a prison, his claim for injunctive or declaratory relief becomes moot as to
24 conditions at that particular facility.”), report & recommendation adopted, 2009
25 U.S. Dist. LEXIS 28469, 2009 WL 902077 (E.D. Cal. Mar. 31, 2009).
26 E. Eighth Amendment Failure to Protect Claim.
27 It is unclear which Defendants (if any) knew of the danger posed by the
28 inmate who assaulted Plaintiff in the SHU. Additionally, Plaintiff’s vague
1 allegations about the inmate’s “institutional history” do not sufficiently show that
2 anyone knowledgeable about that history would have realized that the inmate posed
3 a serious risk of harm to Plaintiff. See Farmer v. Brennan, 511 U.S. 825, 837
4 (1994) (holding that a prison official violates the Eighth Amendment by failing to
5 protect an inmate only if “the official knows of and disregards an excessive risk to
6 inmate health or safety; the official must both be aware of facts from which the
7 inference could be drawn that a substantial risk of serious harm exists, and he must
8 also draw the inference.”).
9 F. The Complaint Fails to State a Claim for First Amendment Retaliation
10 under Abbasi.
11 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
12 403 U.S. 388 (1971), the Supreme Court “recognized for the first time an implied
13 private action for damages against federal officers alleged to have violated a
14 citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66
15 (2001). In Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843, 1849 (2017), the Supreme
16 Court established a two-step test for determining when a Bivens remedy (i.e.,
17 monetary damages) exists, which requires analyzing: (1) whether the claim arises in
18 a new context; and (2) whether special factors counsel against implying a damages
19 remedy.
20 The Supreme Court has “never held that Bivens extends to First Amendment
21 claims,” such as the retaliation claims alleged by Plaintiff. Reichle v. Howards, 566
22 U.S. 658, 663 n.4 (2012) (characterizing Ashcroft v. Iqbal, 556 U.S. 662, 675
23 (2009) as “assuming without deciding that a First Amendment free exercise claim is
24 actionable under Bivens” and Bush v. Lucas, 462 U.S. 367, 368 (1983) as “refusing
25 to extend Bivens to a First Amendment speech claim involving federal
26 employment”). In a recent unpublished decision, the Ninth Circuit declined to
27 recognize a Bivens remedy where a federal inmate alleged that prison staff
28 retaliated against him by subjecting him to unmerited punishment after he filed
1 grievances. Buenrostro v. Fajardo, No. 18-15488, __ F. App’x __, 2019 U.S. App.
2 LEXIS 15158, 2019 WL 2207662 (9th Cir. May 22, 2019), rehearing denied at
3 2019 U.S. App. LEXIS 18271 (9th Cir. Cal., June 18, 2019). The Ninth Circuit
4 reasoned that “special factors counsel against extending Bivens” to First
5 Amendment retaliation claims by inmates, because “Congress has addressed the
6 question of prisoners’ remedies in the Prison Litigation Reform Act of 1995” and
7 “an alternative remedial structure exists, including through the Bureau of Prisons
8 administrative grievance process.” Id. at *3. The Ninth Circuit found these
9 alternative remedies adequate to foreclose an implied Bivens remedy,
10 notwithstanding the prisoner’s allegations that he was punished for using them.
11 The trend in California district court decisions is to find that special factors
12 weigh against implying a Bivens remedy for First Amendment retaliation claims.
13 See Daniels v. Fed. Bureau of Prisons, No. 19-719-FMO (PLA), 2019 U.S. Dist.
14 LEXIS 74635, at *13, 2019 WL 1959255, at *5 (C.D. Cal. May 2, 2019) (declining
15 to extend Bivens because inmate had “an adequate remedy in the BOP’s
16 administrative grievance process, a federal tort claims action, and the availability of
17 injunctive relief”); Hoffman v. Preston, No. 16-1617, 2019 U.S. Dist. LEXIS
18 70251, at *18, 2019 WL 1865459, at *7 (E.D. Cal. Apr. 24, 2019) (declining to
19 extend Bivens citing “the complexities of prison administration and interaction
20 between the executive and legislative branches in that area” and “the wide-ranging
21 impact on government operations that can develop from court-created remedies”);
22 Sutter v. United States, No. 17-07245-SVW (DFM), 2019 U.S. Dist. LEXIS 71548,
23 at *16, 2019 WL 1841905, at *6 (C.D. Cal. Mar. 12, 2019) (declining to extend
24 Bivens citing alternative remedies and fact that decisions about placing inmates “in
25 more restrictive detention involves real-time and often difficult judgment calls
26 about disciplining inmates, maintaining order, and promoting prison officials’
27 safety and security”; quoting Bistrian v. Levi, 912 F.3d 79, 82 (3d Cir. 2018)); Free
28 v. Peikar, No. 17-159, 2018 U.S. Dist. LEXIS 54888, at *3, 2018 WL 1569030, at
1 *2 (E.D. Cal. Mar. 30, 2018) (“Nationwide, district courts seem to be in agreement
2 that, post-Abbasi, prisoners have no right to bring a Bivens action for violation of
3 the First Amendment.”).
4 Thus, Plaintiff may not seek monetary damages for First Amendment
5 retaliation claims under Bivens.
6 G. The Grievance-Related Due Process Claims Fail under Abbasi and
7 Because Mishandling Grievances is Not a Constitutional Violation.
8 Plaintiff alleges that some Defendants refused to give him grievance forms,
9 process his grievances, or respond to his grievances. He also alleges that some
10 Defendants rejected his grievances for “specious” reasons or failed to supervise
11 other BOP staff responsible for handling his grievances.
12 To the extent Plaintiff alleges that Defendants took these actions to retaliate
13 against him, then his allegations do not support a Bivens remedy for the reasons
14 discussed above in connection with his First Amendment retaliation claims.
15 To the extent Plaintiff alleges that these actions violated his due process
16 rights, then his claim fails regardless of Abbasi, because the prison grievance
17 systems confers no liberty interest on inmates that requires the procedural
18 protections of due process. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
19 2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison
20 grievance procedure.”); Hollis v. York, No. 09-00463, 2009 U.S. Dist. LEXIS
21 97639, at *26-27, 2009 WL 3255375, at *9 (E.D. Cal. Oct. 8, 2009) (“[P]rison
22 officials do not violate the Due Process Clause by ignoring grievances or by failing
23 to provide prisoners with grievance forms.”).
24 H. The Racial Segregation Due Process Claim Fails under Abbasi as to
25 Damages and Due to Mootness as to Injunctive Relief.
26 “[R]acial segregation, which is unconstitutional outside prisons, is
27 unconstitutional within prisons, save for ‘the necessities of prison security and
28 discipline.’” Cruz v. Beto, 405 U.S. 319, 321 (1972) (citing Lee v. Washington,
1 390 U.S. 333, 334 (1967)). That said, the Court is unaware of any decisions
2 extending a Bivens remedy against individual BOP staff who allegedly made cell
3 assignments to perpetuate racial segregation. Cf. Turner v. Doe, No. 15-5942, 2018
4 U.S. Dist. LEXIS 83707 at *15, 2018 WL 2278096, at *6 (D.N.J. May 18, 2018)
5 (“[I]n light of Ziglar ..., this Court finds that it should be left to the legislative and
6 executive branches to determine whether an action for damages for a claim of racial
7 discrimination exists in the prison-workplace environment”), aff’d sub nom. Turner
8 v. Scott, No. 19-1030, 2019 U.S. App. LEXIS 20446, 2019 WL 3010286 (3d Cir.
9 July 10, 2019); Bierwiler v. Goodwin, No. 16-00009, 2018 U.S. Dist. LEXIS
10 124649 at *6, 2018 WL 3559134 at *3 (D. Mont. May 22, 2018) (“The Fifth
11 Amendment has never been the subject of a Bivens claim related to racial
12 discrimination.”), report and recommendation adopted, 2018 U.S. Dist. LEXIS
13 123759, 2018 WL 3549828 (D. Mont. July 24, 2018). Thus, any claim appears to
14 fail under Abbasi, although Plaintiff may be able to plead facts distinguishing his
15 case.
16 To the extent Plaintiff seeks injunctive relief based on this violation, any
17 such request would appear to be moot, because the Complaint admits that Plaintiff
18 is no longer housed at FCI Victorville II where the alleged racial segregation
19 occurred. See Low, 2009 U.S. Dist. LEXIS 6827 at *12, 2009 WL 161080 at *4
20 (“Generally, when a prisoner is transferred from a prison, his claim for injunctive or
21 declaratory relief becomes moot as to conditions at that particular facility.”).
22 III.
23 LEAVE TO AMEND
24 Leave to amend should be granted if it appears possible that the defects in the
25 complaint could be corrected, especially if a plaintiff is pro se. Cato v. United
26 States, 70 F.3d 1103, 1106 (9th Cir. 1995).
27 IT IS THEREFORE ORDERED that the Complaint (Dkt. 1) is DISMISSED
28 WITH LEAVE TO AMEND. Plaintiff has until September 2, 2019 to file a First
1 | Amended Complaint that corrects, if Plaintiff can, the pleading defects identified in
2 | this Order.
3 The First Amended Complaint should bear the docket number assigned to
4 | this case (5:19-cv-05759-AB-KES), be labeled “First Amended Complaint,” and be
5 | complete in and of itself without needing to refer to the original Complaint or any
6 | other documents (except any documents that Plaintiff may choose to attach to the
7 | First Amended Complaint as exhibits).
8
9 | DATED: August 02, 2019 “Howes 6. S cov?
KARENE.SCOTT.
1] United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9978015. Public record. Not legal advice.