Emiel Kandi v. Management and Training Corp.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2019
• Docket: 18-17394
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMIEL A. KANDI, No. 18-17394

Plaintiff-Appellant, D.C. No. 1:16-cv-00794-LJO-BAM

v. MEMORANDUM* MANAGEMENT AND TRAINING CORPORATION; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding

Submitted September 18, 2019**

Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

The opening brief filed on January 7, 2019 and the response to the January

16, 2019 order to show cause demonstrate that this appeal involves non-frivolous

issues. The order to show cause is discharged.

Emiel A. Kandi appeals pro se from the district court’s judgment dismissing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). his action brought under Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971). We have jurisdiction under 28 U.S.C. § 1291.

We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000). We may affirm on any basis supported by the

record, Thompson v. Paul, 547 F.3d 1055, 1057-59 (9th Cir. 2008), and we affirm.

The district court properly dismissed Kandi’s putative Bivens claims against

defendants Management and Training Corporation and American Zurich Insurance

Company because a Bivens claim may not be brought against a private corporation.

See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001).

Dismissal of Kandi’s access-to-courts and medical deliberate indifference

claims against defendants Marquardt, Apker, Patrick, Bernal, Hunt, Dunham,

Rucker, Luna, Friend, Puentes, Letterman, Craig, Sy, Manuz, Pait, Mann, Martin,

Lane, Jones, Adams, Hicks, Watts, Morseth, Ehli, Jenkins, Swanson, Bryant, and

Logan (“MTC Officials”) was proper because there is no Bivens remedy available

for such claims. See Minneci v. Pollard, 565 U.S. 118, 131 (2012) (Bivens claim

may not be brought against employees working at a privately operated federal

prison, where the allegedly wrongful conduct is of a kind that typically falls within

the scope of traditional state tort law, such as improper medical care); Vega v.

United States, 881 F.3d 1146, 1148 (9th Cir. 2018) (holding that Bivens should not

be expanded to include an access-to-courts claim against private defendants).

2 18-17394 Even if a Bivens remedy is available for Kandi’s remaining constitutional

claims against the MTC Officials, dismissal was proper because Kandi failed to

allege facts sufficient to state any plausible claim. See Van Strum v. Lawn, 940

F.2d 406, 409 (9th Cir. 1991) (“Actions under § 1983 and those under Bivens are

identical save for the replacement of a state actor under § 1983 by a federal actor

under Bivens.”); Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991)

(supervisory liability inapplicable to Bivens actions); see also Walker v. Beard, 789

F.3d 1125, 1138 (9th Cir. 2015) (elements of a free exercise claim); Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a retaliation claim in

the prison context); Cassettari v. County of Nevada, 824 F.2d 735, 739 (9th Cir.

1987) (insufficiency of allegations to support a § 1983 violation precludes a

conspiracy claim predicated upon the same allegations); Trerice v. Pedersen, 769

F.2d 1398, 1403 (9th Cir. 1985) (no cause of action under § 1986 absent a valid

§ 1985 claim).

The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over Kandi’s state law claims because Kandi failed to

state a federal claim. See Ove v. Gwinn, 264 F.3d 817, 821, 826 (9th Cir. 2001)

(providing standard of review and explaining that a federal court may decline

supplemental jurisdiction over related state law claims once it has dismissed all

claims over which it has original jurisdiction).

3 18-17394 We reject as without merit Kandi’s contention that the district court had

original jurisdiction on the basis of diversity. See Mann v. City of Tucson, Dep’t of

Police, 782 F.2d 790, 794 (9th Cir. 1986) (diversity jurisdiction is determined by

the citizenship of the parties at the time of the filing of the complaint, not at the

time the cause of action arose or after the action is commenced).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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