Jose Buenrostro v. David Fajardo

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2019
• Docket: 18-15488
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE LUIS BUENROSTRO, No. 18-15488

Plaintiff-Appellant, D.C. No. 1:14-cv-00075-DAD-BAM v.

DAVID FAJARDO, Assistant Warden, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Argued and Submitted April 9, 2019 Pasadena, California

Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District Judge.

Appellant is a federal prisoner serving a sentence for conspiracy to

manufacture methamphetamine. While in prison, Appellant filed a lawsuit and

several administrative grievances. Appellant alleges that the warden and various

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. other prison officials harassed and punished Appellant in retaliation for filing the

lawsuit and grievances.

Appellant brought his lawsuit in federal court and consented to a magistrate

judge. On three separate occasions, the magistrate judge directed Appellant to

amend his petition because it did not comply with the relevant joinder rules.

Appellant never corrected the issue, and the magistrate judge dismissed several

defendants from the lawsuit based on Appellant’s failure to meet the joinder

requirements.

After dismissing several of the defendants and related claims, the magistrate

judge screened what remained in Appellant’s Third Amended Complaint. The

magistrate judge found that Appellant failed to state a claim on which relief may

be granted. The magistrate judge therefore recommended dismissal of the petition.

The district court adopted the magistrate judge’s report and recommendations.

Appellant appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

We review de novo the order dismissing the Third Amended Complaint for

failure to state a Bivens claim. Vega v. United States, 881 F.3d 1146, 1152 (9th

Cir. 2018). We review the district court’s order dismissing claims or parties based

on misjoinder for abuse of discretion. Coughlin v. Rogers, 130 F.3d 1348, 1351

(9th Cir. 1997).

2 Ziglar v. Abassi, 137 S. Ct. 1843, 1857 (2017), instructs against further

extensions of Bivens to “new” contexts. Appellant concedes that his First

Amendment claim arises in a “new” context. Therefore, we analyze whether there

are “special factors counselling hesitation” or whether an alternative remedial

structure limits our authority to infer a new Bivens cause of action here. Id. at

1857-58.

Based on the record before us, special factors counsel against extending

Bivens to Appellant’s First Amendment claim; for example, Congress has

addressed the question of prisoners’ remedies in the Prison Litigation Reform Act

of 1995, 42 U.S.C. § 1997e. In addition, an alternative remedial structure exists,

including through the Bureau of Prisons administrative grievance process. See

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001); United States v. Stanley,

483 U.S. 669, 683 (1987); Bush v. Lucas, 462 U.S. 367, 388 (1983). We conclude

that extending Bivens to Appellant’s First Amendment claim is not appropriate in

this case.

Appellant’s Complaints raised claims against several other defendants,

which were dismissed as improperly joined. Persons may be joined as defendants

in an action if: “(A) any right to relief is asserted against them jointly, severally, or

in the alternative with respect to or arising out of the same transaction, occurrence,

or series of transactions or occurrences; and (B) any question of law or fact

3 common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). The

magistrate judge noted that Appellant’s other claims did “not arise out of the same

transactions or occurrences involving [the warden],” and dismissed the other

defendants. The district court adopted the magistrate judge’s recommendations.

The district court did not abuse its discretion by dismissing the other defendants

and related claims because Appellant failed to meet the joinder requirements.

AFFIRMED.