Hart v. Granado

Opinion

1 SM 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David LaDon Hart, No. CV-22-02067-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Joshua Granado, et al., 13 Defendants.

14 15 Plaintiff David LaDon Hart brought this pro se civil rights action pursuant to federal 16 and state law and paid the filing fee. (Doc. 1.) Plaintiff sues Joshua Granado, Tyler Whitt, 17 Alan Barone, Joshua Fister, Richard Kennedy, Wendy Shea, Frederick Dewerth, Denis 18 McDonough, the Phoenix Veterans Police Department (PVPD), and the United States of 19 America. Before the Court are Defendants’ Motion to Dismiss1 (Doc. 83) and Plaintiff’s 20 Motion to Amend (Doc. 90). 21 I. Motion to Amend/Motion to Dismiss 22 The Court will grant Plaintiff’s unopposed Motion to Amend and direct the Clerk 23 of Court to file Plaintiff’s proposed Fourth Amended Complaint (Doc. 90 at 1–4). Because 24 the filing of the Fourth Amended Complaint renders Plaintiff’s Third Amended Complaint 25 (Doc. 82) nonexistent, the Court will deny Defendants’ Motion to Dismiss the Third 26 Amended Complaint (Doc. 83) as moot. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 27

28 1 Plaintiff was informed of his right and obligation to respond to the Motion (Doc. 84), and he opposes the Motion (Doc. 87). 1 1992) (an amended complaint supersedes any previous complaints, and the Court will treat 2 the previous complaints as nonexistent). Notwithstanding, upon review of the Fourth 3 Amended Complaint, the Court will dismiss Plaintiff’s claims under Rule 12(b)(6) and 4 terminate the action with prejudice for the reasons set forth below. See Omar v. Sea-Land 5 Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987) (a court may sua sponte dismiss a claim under 6 Federal Rule of Civil Procedure 12(b)(6) without prior notice where the claimant cannot 7 possibly win relief); see also Wong v. Bell, 642 F.2d 359, 361-62 (9th Cir. 1981). 8 II. Fourth Amended Complaint 9 In his Fourth Amended Complaint, Plaintiff alleges that: 10 On December 7, 2021, Plaintiff was arrested by Defendant Granado at the Southeast CBOC [Community 11 Based Outpatient Clinic], a property under exclusive 12 jurisdiction of the Gilbert Police. Plaintiff was not taken before a magistrate immediately following his arrest on 7 December 13 2021. Plaintiff[] was not informed as to why he was being 14 arrested and searched incident to his arrest and without probable cause. Plaintiff’s right to be free from unlawful 15 detention, search and seizure. Plaintiff was placed in a holding 16 cell and handcuffed to a bench for 30−45 minutes, then cited and released. Plaintiff’s right to be free from unlawful arrest, 17 search and seizure. 18 On 7 December 2021, Defendant[s] Granado and 19 Dewerth discussed the Plaintiff’s arrest and per a witness, stated that Granado, “should not have arrested the Plaintiff 20 because he did not have jurisdiction,” and that Granado should, 21 “write up some charges and make sure that they stick.” 22 On or about April 1, 2022, Defendants Granado, Dewerth, Kennedy, Fister, Barone, . . . and Whitt, allegedly 23 used their positions as federal agents to withhold exculpatory 24 evidence (written statements) in [Plaintiff’s] criminal case stemming from the Plaintiff’s arrest. Per Attorney Schreck, 25 witnesses and the [Equal Employment Opportunity Commission]. 26 On 7 December 2021, Defendant Shea, wrote several 27 statements, verbal and written, to the [Veterans Affairs] Police 28 and the Phoenix [Veterans Affairs] Administration stating that, the “Plaintiff attacked a patient and that he was a danger to patients.” Defendant Shea’s statements were used to remove 1 Plaintiff from his position and later terminate his employment. 2 Defendant Shea’s negative and false statements are presently being used by the Phoenix [Veterans Affairs] and the Arizona 3 Board of Nursing, in an effort to remove the Plaintiff’s Nursing 4 license. 5 (Doc. 90 at 2.) Plaintiff alleges that, “[a]t all relevant times, the Defendants worked for the 6 Department of Veterans Affairs.” (Id.) 7 Plaintiff brings several claims against Defendants including false statements under 8 18 U.S.C. § 1001, unlawful arrest in violation of the Fourth and Fifth Amendment, due 9 process violation under the Fifth Amendment, and defamation/libel. (Id. at 3.) 10 III. Rule 12(b)(6) Legal Standard 11 Dismissal of a complaint, or any claim within it, for failure to state a claim under 12 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 13 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 14 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 15 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 16 whether a complaint states a claim under this standard, the allegations in the complaint are 17 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 18 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). 19 A pleading must contain “a short and plain statement of the claim showing that the 20 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not 21 necessary; the statement need only give the defendant fair notice of what . . . the claim is 22 and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal 23 quotation omitted). 24 To survive review under Rule 12(b)(6), a complaint must state a claim that is 25 “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. 26 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 27 pleads factual content that allows the court to draw the reasonable inference that the 28 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 1 IV. Discussion 2 A. Defendants United States and PVPD 3 To the extent Plaintiff brings a § 1983 claim against the United States and the PVPD, 4 those claims must be dismissed. There is no such thing as the PVPD; Plaintiff more than 5 likely intended to name the Department of Veterans Affairs Police Department (“VA 6 Police”) as a Defendant. However, by its express terms, § 1983 applies to “person[s]” 7 acting under color of state law. Hafer v. Melo, 502 U.S. 21, 26 (1991). The United States 8 and the VA Police are not “persons” for the purposes of a § 1983 claim. Moreover, even 9 if Plaintiff intended to bring a federal claim under Bivens v. Six Unknown Fed. Narcotics 10 Agents, 403 U.S. 388 (1971), such a claim is inapplicable to the United States or the VA 11 Police because it exists solely against federal officials. Cato v. United States, 70 F.3d 1103, 12 1110 (9th Cir. 1995). Likewise, Plaintiff would not be able to pursue his Fourth and Fifth 13 Amendment claims against the United States under the Federal Tort Claims Act (FTCA) 14 because “the United States simply has not rendered itself liable under [the FTCA] for 15 constitutional tort claims.” F.D.I.C. v. Meyer, 510 U.S. 471, 478 (1994). For these reasons, 16 Defendants United States and PVPD are dismissed. 17 B. 18 U.S.C. § 1001 Claims 18 To the extent Plaintiff seeks relief under 18 U.S.C. § 1001, this criminal statute 19 “provide[s] no basis for civil liability.” See Henry v. Bartlett-Tucker, No. CV-23-00142- 20 TUC-RCC, 2023 WL 2787762, at *2 (D. Ariz. Apr. 5, 2023) (“As a private party, Plaintiff 21 cannot bring a civil lawsuit alleging violations of federal criminal statutes.”); Daniels v. 22 BMF VAZ Saddle, LLC, No. CV-23-00070-TUC-CKJ (EJM), 2023 WL 3585248, at *5 (D. 23 Ariz. May 22, 2023) (“As an initial matter, Title 18 contains criminal statutes and is 24 irrelevant to a private, civil action.”), report and recommendation adopted sub nom. 25 Daniels v. BMF V AZ Saddle, LLC, No. CV-23-00070-TUC-CKJ (EJM), 2023 WL 26 3994915 (D. Ariz. June 14, 2023); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 27 2007) (upholding dismissal of plaintiff’s claims alleging violations of 18 U.S.C. 1001, 28 among others, on grounds that criminal statutes do not provide private right of action and 1 are not enforceable through a civil action); AirTrans, Inc. v. Mead, 389 F.3d 594, 598 n.1 2 (6th Cir. 2004) (finding no private cause of action for violation of 18 U.S.C. § 1001); Ng 3 v. HSBC Mortg. Corp., No. 07-CV-5434, 2010 WL 889256 at *9 (E.D.N.Y. Mar. 10, 4 2010) (collecting cases stating no private cause of action created under 18 U.S.C. § 1001). 5 Accordingly, Plaintiff’s claims under 18 U.S.C. § 1001 will also be dismissed. 6 C. 42 U.S.C. § 1983 Claims 7 Section 1983 only applies to individuals acting under color of state law and not to 8 federal employees acting under federal law. Billings v. United States, 57 F.3d 797, 801 9 (1995) Plaintiff alleges Defendants are all employed by the Department of Veterans 10 Affairs, a federal agency, and he does not allege that they were acting under color of state 11 law during the events that gave rise to his claims in this action. Accordingly, Plaintiff’s 12 § 1983 claims must be dismissed. 13 D. Defamation/Libel Claim 14 Plaintiff brings his defamation/libel claim under 28 U.S.C. § 4101 and Bivens. 15 (Doc. 90 at 3.) Section 4101 of Title 28 is the definitions section for the Securing the 16 Protection of our Enduring and Established Constitutional Heritage Act (the “SPEECH 17 Act”). A claim for defamation cannot be brought under the SPEECH Act because it is well 18 established that “28 U.S.C. § 4101 is simply a definitional section (for statutes relating to 19 foreign judgments) and does not provide for a private right of action.” Hall-Johnson v. 20 City & Cnty. of San Francisco, No. 18-cv-01409-LB, 2018 WL 9903325, at *9 (N.D. Cal. 21 Sep. 6, 2018); Dorsett v. DeSanto, No. 16-cv-05802-JST, 2017 U.S. Dist. LEXIS 13600, 22 at *4 (N.D. Cal. Jan. 31, 2017) (“While 28 U.S.C. § 4101 defines ‘defamation,’ it does not 23 provide for jurisdiction in federal district court in suits brought by private citizens against 24 private citizens of the same state.”). Accordingly, Plaintiff’s claim brought pursuant to 28 25 U.S.C. § 4101 must be dismissed. The claim for defamation/libel must also be dismissed 26 to the extent it is brought under Bivens, as explained below. 27 . . . . 28 . . . . 1 E. Bivens Claims 2 In Bivens, the Supreme Court recognized an implied cause of action for damages 3 for persons injured by federal officers who violated the Fourth Amendment prohibition 4 against unreasonable searches and seizures. See Bivens, 403 U.S. at 396-97. Subsequently, 5 the Supreme Court has only recognized Bivens claims under the Fifth Amendment Due 6 Process Clause by an administrative assistant who claimed a Congressman had 7 discriminated against her because of her gender, Davis v. Passman, 442 U.S. 228 (1979), 8 and under the Eighth Amendment prohibition against cruel and unusual punishment by a 9 prisoner who claimed federal prison officials had failed to treat his asthma, Carlson v. 10 Green, 446 U.S. 14 (1980). “These three cases . . . represent the only instances in which 11 the [Supreme] Court has approved of an implied damages remedy under the Constitution 12 itself.” Ziglar v. Abbasi, 582 U.S. 120, 131 (2017); see Egbert v. Boule, 596 U.S. 482, 484 13 (2022). 14 Although the Supreme Court has not “dispense[d] with Bivens altogether,” it has 15 “emphasized that recognizing a cause of action under Bivens is ‘a disfavored judicial 16 activity.’” Egbert, 596 U.S. at 491 (quoting Ziglar, 582 U.S. at 135). In Ziglar, the 17 Supreme Court set forth a two-part test to determine whether a Bivens claim may proceed: 18 a court first must consider whether the claim at issue extends Bivens in a new context from 19 previously established Bivens cases, and, if so, a court must then apply a “special factors 20 analysis” to determine whether there are “special factors counselling hesitation” in 21 expanding Bivens. Ziglar, 582 U.S. at 136. A Bivens action may constitute a new context 22 depending on, for example: 23 the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the 24 extent of judicial guidance as to how an officer should respond 25 to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the 26 risk of disruptive intrusion by the Judiciary into the functioning 27 of other branches; or the presence of potential special factors that previous Bivens cases did not consider. 28 Id. at 140. 1 However, these two steps “often resolve to a single question: whether there is any 2 reason to think that Congress might be better equipped to create a damages remedy.” 3 Egbert, 596 U.S. at 492. A court “must ask only whether it, rather than the political 4 branches, is better equipped to decide whether existing remedies ‘should be augmented by 5 the creation of a new judicial remedy.’” Id. at 493 (quoting Bush v. Lucas, 462 U.S. 367, 6 388 (1983)). “The question is ‘who should decide’ whether to provide for a damages 7 remedy, Congress or the courts? The answer most often will be Congress.” Ziglar, 582 8 U.S. at 135 (quoting Bush, 462 U.S. at 380). 9 “When an issue ‘involves a host of considerations that must be weighed and 10 appraised,’ it should be committed to ‘those who write the laws’ rather than ‘those who 11 interpret them.’” Id. at 135-36 (quoting Bush, 462 U.S. at 380). And a court “may not 12 fashion a Bivens remedy if Congress already has provided, or has authorized the Executive 13 to provide, ‘an alternative remedial structure.’” Egbert, 596 U.S. at 493 (quoting Ziglar, 14 582 U.S. at 137. “If there are alternative remedial structures in place, ‘that alone,’ like any 15 special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens 16 cause of action.’” Id. (quoting Ziglar, 582 U.S. at 137). Even if the alternative remedies 17 are not as effective as a Bivens remedy would be, the Court cannot “second-guess” 18 Congress by “superimposing a Bivens remedy.” Id. at 498. 19 Here, Plaintiff’s defamation/libel, due process, and unlawful arrest claims arise in a 20 new context because they are substantially and meaningfully different from the three types 21 of cases in which the Supreme Court has recognized a Bivens remedy. The first of those 22 cases, Bivens, involved the plaintiff's Fourth Amendment claim that federal agents made a 23 warrantless entry of his apartment, handcuffed him in front of his family, searched his 24 apartment, and arrested him on narcotics charges. Bivens, 403 U.S. at 389. The other two 25 cases involved a Fifth Amendment claim against a Congressman for firing his female 26 secretary, Davis, 442 U.S. at 230, and an Eighth Amendment claim against prison officials 27 for failure to treat a prisoner’s medical condition. Carlson, 446 U.S. at 16 & n.1. 28 1 In contrast, Plaintiff’s defamation/libel claim is clearly not one of the three Bivens 2 claims recognized by the Supreme Court. And Plaintiff’s Fourth and Fifth Amendment 3 claims—although brought under the same amendments as in Bivens and Davis, 4 respectively—stem from his allegations that he was arrested at a Veterans Affairs clinic; 5 placed in a holding cell and handcuffed to a bench for 30−45 minutes before being cited 6 and released; and that Defendants withheld exculpatory evidence and made false 7 statements concerning his arrest. These events are meaningfully different from the 8 allegations in Bivens and Davis and are sufficient to make Plaintiff’s claims arise in a new 9 context. See Ziglar, 582 U.S. at 149 (explaining that “the new-context inquiry is easily 10 satisfied” and that “even a modest extension is still an extension”); see Monroe v. Kirby, 11 No. CV 21-0017-GW-PDX, 2022 WL 16959393, at *3 (C.D. Cal. Oct. 11, 2022) (“We 12 deal here with an incident that occurred not in a private home, as in Bivens, but in a 13 Veterans Administration hospital. This, in and of itself, without even needing to consider 14 that a “new category of defendant” would be involved, is sufficient to make this case a 15 “new context.”); see also Oliva v. Nivar, 973 F.3d 438, 442-43 (5th Cir. 2020) (concluding 16 that a Fourth Amendment claim centered on events involving plaintiff as he attempted to 17 pass through security at a Veterans Affairs hospital “differs from Bivens in several 18 meaningful ways,” including that it “arose in a government hospital, not a private home,” 19 and “[t]he VA officers did not manacle [the plaintiff] in front of his family or strip-search 20 him,” and, consequently, “the context is new”). Here, Plaintiff’s “claim involves different 21 conduct by different officers from a different agency,” and therefore, arises in a new 22 context. Oliva, 973 F.3d at 443 (citation omitted). 23 Additionally, special factors counsel against extending Bivens to Plaintiff’s claims. 24 As previously explained, the existence of an alternative remedial structure, “alone,” is 25 sufficient reason to decline extending Bivens relief. See Egbert, 596 U.S. at 493 (quoting 26 Ziglar, 582 U.S. at 137). Here, Plaintiff has the alternative remedies of pursuing the 27 Veterans Affairs administrative process and bringing an appropriate claim for relief under 28 the FTCA. See Oliva, 973 F.3d at 444. This special factor is not negated by the fact that 1 the FTCA limits liability for intentional and constitutional torts, and in fact, such 2 limitations on FTCA relief are indicative of Congress’ intent and are relevant to the special- 3 factors inquiry. See id. (“we must consider what Congress has done and what Congress 4 has left undone”). The Supreme Court has been clear that the alternative relief necessary 5 to limit Bivens need not provide the exact same kind of relief Bivens would. See Egbert, 6 596 U.S. at 498. 7 For the foregoing reasons, Plaintiff’s Bivens claims must be dismissed. 8 V. Dismissal without Leave to Amend 9 Because Plaintiff has failed to state a claim, the Court will dismiss the Fourth 10 Amended Complaint. “Leave to amend need not be given if a complaint, as amended, is 11 subject to dismissal.” Moore v. Kayport Package Express, Inc., 885 F.2d 531, 538 (9th 12 Cir. 1989). The Court’s discretion to deny leave to amend is particularly broad where 13 Plaintiff has previously been permitted to amend his complaint. Sisseton-Wahpeton Sioux 14 Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996). Repeated failure to cure 15 deficiencies is one of the factors to be considered in deciding whether justice requires 16 granting leave to amend. Moore, 885 F.2d at 538. 17 Plaintiff has made multiple efforts at crafting a viable complaint and appears unable 18 to do so despite specific instructions from the Court. The Court finds that further 19 opportunities to amend would be futile. Therefore, the Court, in its discretion, will dismiss 20 Plaintiff’s Fourth Amended Complaint without leave to amend. 21 IT IS ORDERED: 22 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 23 Motion to Dismiss (Doc. 83) and Plaintiff’s Motion to Amend (Doc. 90). 24 (2) Defendants’ Motion to Dismiss (Doc. 83) is denied as moot. 25 (3) Plaintiff’s Motion to Amend (Doc. 90) is granted, and the Clerk of Court 26 must file Plaintiff’s proposed Fourth Amended Complaint (Doc. 90 at 1–4). 27 . . . . 28 . . . . 1 (4) — Plaintiff’'s Fourth Amended Complaint and this action are dismissed with 2| prejudice for failure to state a claim. The Clerk of the Court shall enter judgment 3) accordingly. 4 Dated this 3rd day of June, 2024. 5 James A. Teilborg 8 Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28