Kaneakua v. Derr

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

ELIJAH MALUHIA KANEAKUA, Civil No. 22-00149 JAO-KJM #10286-022, ORDER DISMISSING COMPLAINT Plaintiff, WITHOUT LEAVE TO AMEND

v.

ESTELA DERR, et al.,

Defendants.

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND

Before the Court is a Prisoner Civil Rights Complaint (“Complaint”), ECF No. 1, filed by pro se Plaintiff Elijah Maluhia Kaneakua (“Kaneakua”) pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Kaneakua alleges that two officials1 at the Federal Detention Center in Honolulu, Hawaiʻi (“FDC Honolulu”) violated the First Amendment by denying him access to the courts. ECF No. 1 at 5–6. For the following reasons, the Complaint is DISMISSED for failure to state a claim for relief. See 28 U.S.C.

1 Kaneakua names as Defendants Warden Estela Derr (“Warden Derr”) and Unit 5A Manager Kris Robl (“Unit Manager Robl” or “Robl”) in their individual and official capacities. ECF No. 1 at 1–2. §§ 1915(e)(2) & 1915A(b)(1). Because any amendment would be futile, this dismissal is without leave to amend.

I. STATUTORY SCREENING The Court is required to screen all in forma pauperis prisoner pleadings against government officials pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).

See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018). Claims or complaints that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v.

Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(a) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6).

See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Under this standard, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). A claim is

“plausible” when the facts alleged support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. See id. In conducting this screening, the Court liberally construes pro se litigants’

pleadings and resolves all doubts in their favor. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The Court must grant leave to amend if it appears the plaintiff can correct the defects in the complaint. See Lopez, 203 F.3d

at 1130. When a claim cannot be saved by amendment, dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).

II. BACKGROUND2 Keneakua commenced this action by signing the Complaint on April 4, 2022. ECF No. 1 at 9. The Court received Kaneakua’s Application to Proceed In Forma Pauperis by a Prisoner on May 2, 2022, ECF No. 6, and granted the

application on May 4, 2022, ECF No. 7. Kaneakua alleges that he asked Unit Manager Robl for “administrative remedy forms” on April 1, 2022. ECF No. 1 at 5. Robl refused Kaneakua’s

request. Id. According to Kaneakua, he had unspecified “medical issues,” and Robl’s refusal to provide administrative remedy forms might deprive him of treatment. Id. Kaneakua seeks $1,000,000. Id. at 9.

2 At screening, Kaneakua’s well-pleaded factual allegations are accepted as true. See, e.g., Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). III. DISCUSSION A. Legal Framework For Bivens Claims

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, 582 U.S. ___, 137 S. Ct. 2003, 2006

(2017) (per curiam) (internal quotation marks and citation omitted). Bivens involved a suit against individual federal agents who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. See Bivens, 403 U.S. at 389–90. Since Bivens, the Supreme Court has expanded this implied

cause of action only twice. See Ziglar v. Abbasi, 582 U.S. ___, 137 S. Ct. 1843, 1855 (2017) (“These three cases — Bivens, Davis, and Carlson — represent the only instances in which the Court has approved of an implied damages remedy

under the Constitution itself.”); Davis v. Passman, 442 U.S. 228 (1979) (suit under the Fifth Amendment’s Due Process Clause for gender discrimination by a United States Congressman); Carlson v. Green, 446 U.S. 14 (1980) (suit under the Eighth Amendment’s Cruel and Unusual Punishment Clause for failure to provide

adequate medical treatment by federal prison officials). The Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at ___, 137 S. Ct. at 1857

(quoting Iqbal, 556 U.S. at 675). “This is in accord with the Court’s observation that it has ‘consistently refused to extend Bivens to any new context or new category of defendants.’”3 Id. (quoting Malesko, 534 U.S. at 68). Indeed, the

Court has suggested that “the analysis in [its] three Bivens cases might have been different if they were decided today.” Id. at ___, 137 S. Ct. at 1856. In deciding whether a Bivens remedy is available, courts first consider

whether providing such a remedy is precluded by prior cases in which the Supreme Court or the Ninth Circuit has declined to recognize an implied right of action. See Lanuza v. Love, 899 F.3d 1019, 1025 (9th Cir. 2018). If a claim is precluded, that is the end of the matter. If a claim is not precluded, courts then apply a two-step

test. At step one, courts determine whether a plaintiff is seeking a Bivens remedy in a new context. See Ioane v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018). The

3 The Supreme Court declined to create a Bivens remedy in the following cases: a First Amendment suit against a federal employer, see Bush v. Lucas, 462 U.S. 367 (1983); a race discrimination suit against military officers, see Chappell v. Wallace, 462 U.S. 296 (1983); a substantive due process suit against military officers, see United States v. Stanley, 483 U.S. 669 (1987); a procedural due process suit against Social Security officials, see Schweiker v. Chilicky, 487 U.S. 412 (1988); a procedural due process suit against a federal agency for wrongful termination, see FDIC v. Meyer, 510 U.S. 471 (1994); an Eighth Amendment suit against a private halfway house operator under contract with the BOP, see Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); a claim of retaliation by Bureau of Land Management officials against plaintiff for his exercise of Fifth Amendment property rights, see Wilkie v. Robbins, 551 U.S. 537 (2007); an Eighth Amendment suit against prison guards at a private prison, see Minneci v. Pollard, 565 U.S. 118 (2012); and a Fifth Amendment suit against Department of Justice officials, see Abbasi, 582 U.S. ___, 137 S. Ct. 1843. context is new “[i]f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court].” Abbasi, 582 U.S. at ___, 137 S. Ct. at

1859. If the plaintiff is seeking a Bivens remedy in a new context, then courts proceed to the second step. At step two, courts may extend Bivens only if two conditions are met.

“First, the plaintiff must not have any other adequate alternative remedy.” Ioane, 939 F.3d at 951 (internal quotation marks and citation omitted). “Second, there cannot be any ‘special factors’ that lead the court to believe that Congress, instead of the courts, should be the one to authorize a suit for money damages.” Id. at

951–52 (some internal quotation marks, brackets, and citation omitted). Although the Supreme Court has yet to define the term, “special factors,” it has explained that “the inquiry must concentrate on whether the Judiciary is well suited, absent

congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Abbasi, 582 U.S. at ___, 137 S. Ct. at 1857–58. B. Official Capacity Claims Under Bivens

Kaneakua names Defendants in both their individual and official capacities. See ECF No. 1 at 1–2. “A Bivens action can be maintained against a defendant in his or her

individual capacity only, and not in his or her official capacity.” Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007) (internal quotation marks, brackets, and citation omitted). “This is

because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity.” Id. (citation omitted).

Thus, “[t]here is no such animal as a Bivens suit against a public official tortfeasor in his or her official capacity.” Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016) (internal quotation marks and citation omitted). Any Bivens claims against Defendants in their official capacities are

therefore DISMISSED without leave to amend. C. Supervisory Liability Under Bivens Kaneakua names as Defendants two supervisory officials at FDC Honolulu

— that is, the warden and a unit manager. ECF No. 1 at 1–2. “In the limited settings where Bivens does apply, . . . Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 556 U.S. at 676 (citations omitted). This

is because “[t]he purpose of Bivens is to deter the officer.” Abbasi, 582 U.S. at ___, 137 S. Ct. at 1860 (internal quotation marks and citation omitted). “Bivens is not designed to hold officers responsible for acts of their subordinates.” Id.

(citation omitted). A Bivens claim must be “brought against the individual official for his or her own acts, not the acts of others.” Id.; see also Jones v. McFadden, No. 1:09–cv–

00957–DLB (PC), 2010 WL 2196849, at *3 (E.D. Cal. May 28, 2010) (“[W]hen a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged.” (citations

omitted)). Thus, to state a claim for relief under Bivens based on a theory of supervisory liability, the plaintiff must allege facts showing that supervisory defendants: (1) personally participated in the alleged deprivation of constitutional rights; (2) knew of the violations and failed to act to prevent them; or (3) promulgated or implemented a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.

Id. (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)) (internal quotation marks and other citation omitted). Any claims against Warden Derr or Unit Manager Robl solely based on their supervisory positions are DISMISSED without leave to amend. See Fries v. Kernan, Case No. 1:18-cv-00652-LJO-SKO (PC), 2018 WL 11260954, at *8 (E.D. Cal. Dec. 5, 2018) (“[A]ny allegation that supervisory personnel . . . somehow liable solely based on the acts of those under his or her supervision, does not state a cognizable claim.”). Further, while Kaneakua alleges that Robl refused to provide him with administrative remedy forms, see ECF No. 1 at 5, which the Court addresses

below, infra Part III.D., he fails to say how Warden Derr violated his constitutional rights. Kaneakua does not allege that Warden Derr personally participated in the alleged deprivation of his rights, knew of the alleged violation and failed to act, or

was responsible for a policy that itself violated his rights. Thus, it appears that Warden Derr is named solely because of her supervisory position. As already stated, any allegation by Kaneakua that Warden Derr is liable purely because of the acts of someone under her supervision must be DISMISSED with prejudice. See

Fries, 2018 WL 11260954, at *8. D. First Amendment – Access To Court Claim Kaneakua alleges that he was denied access to the courts because Robl

refused to provide him with administrative remedy forms. ECF No. 1 at 5. “The First Amendment guarantees a prisoner a right to seek redress of grievances from prison authorities and . . . a right of meaningful access to the courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (citations

omitted). The Supreme Court, however, has never recognized a Bivens remedy for First Amendment claims, see Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012); and the Ninth Circuit has declined to extend Bivens to access to court claims in

various contexts. See Vega v. United States, 881 F.3d 1146, 1153–55 (9th Cir. 2018) (declining to expand Bivens remedy to include access to court claims against private defendants under the First Amendment); Schwarz v. Meinberg, 761 F.

App’x 732, 733–34 (9th Cir. 2019) (“We decline to extend Bivens remedies to [the plaintiff’s] claims — unsanitary cell conditions, access to courts, and request for placement in a camp facility — because these claims do not fall within claims

authorized by the Supreme Court.” (citation omitted)). District courts, therefore, have consistently concluded that no Bivens remedy exists for access to court claims. See, e.g., Camillo-Amisano v. Fed. Bureau of Prisons, No. 2:17-cv-06634-ODW-JDE, 2019 WL 8138040, at *5 (C.D. Cal. Oct.

4, 2019) (“The Court declines to find a private right of action for Plaintiff’s denial of access to courts claim under Bivens[.]”), report and recommendation adopted, No. CV 17-06634-ODW (JDE), 2019 WL 8137708 (C.D. Cal. Nov. 12, 2019);

Moore v. United States, Case No.: 1:20-cv-00451-NONE-SAB (PC), 2020 WL 3265874, at *4 (E.D. Cal. June 17, 2020) (“[T]he Court . . . declines to find an implied Bivens cause of action under the First Amendment for the denial of access to the courts.” (citation omitted)), report and recommendation adopted, Case No.:

1:20-cv-00451-NONE-SAB (PC), 2020 WL 6060869 (E.D. Cal. Oct. 14, 2020); see also Free v. Peikar, Case No. 1:17-cv-00159-AWI-MJS (PC), 2018 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) (“Nationwide, district courts seem to be in agreement that, post-Abbasi, prisoners have no right to bring a Bivens action for violation of the First Amendment.” (citations omitted)).

Even if a Bivens remedy exists for an access to court claim, Kaneakua fails to state a plausible claim for relief. “To establish a violation of the right of access to the courts, a prisoner must establish that he or she has suffered an actual injury.”

Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (citing Lewis v. Casey, 518 U.S. 341, 349 (1996)). “Actual injury is a jurisdictional requirement that flows from the standing doctrine and may not be waived.” Id. (citation omitted). “It is actual prejudice with respect to contemplated or existing litigation,

such as the inability to meet a filing deadline or to present a claim.” Id. (internal quotation marks and citation omitted). Failing to allege that a nonfrivolous legal claim has been frustrated is fatal to an access to court claim. See Alvarez v. Hill,

518 F.3d 1152, 1155 n.1 (9th Cir. 2008). Here, Kaneakua fails to allege that Robl’s actions frustrated a nonfrivolous legal claim in contemplated or existing litigation. Kaneakua does not allege that he was prevented from meeting a filing deadline or presented a claim. At most,

Kaneakua alleges that Robl’s actions might prevent him from obtaining medical treatment. See ECF No. 1 at 5 (“[D]enying the [administrative remedy] process . . . may very well deny [Kaneakua] the treatment that he needs.”). Although Robl’s

actions might have delayed Kaneakua’s ability to proceed through the BOP’s administrative remedy program and slowed his ability to exhaust his administrative remedies, this does not satisfy the actual injury requirement. See Kerch v.

Johnson, Civil Action No. 5:17-CV-108 (MTT), 2018 WL 844416, at *2 n.4 (M.D. Ga. Feb. 13, 2018) (“[B]ecause the alleged interference with the grievance procedure did not prevent the Plaintiff from bringing suit in court, he has suffered

no actual injury.”); Jose-Nicolas v. Butler, Case No. 16-cv-00402-MJR, 2016 WL 2643347, at *3 (S.D. Ill. May 10, 2016) (dismissing access to court claim where the plaintiff “was not prevented from filing [an] action in a timely manner, and he describe[d] no actual legal detriment that he suffered as a result of [the

defendant’s] conduct”). Finally, the Court notes that Kaneakua has two other actions currently pending in this district.4 See Kaneakua v. Derr, Civ. No. 22-00158 DKW-KJM (D.

Haw.); Kaneakua v. Derr, Civ. No. 22-00201 DKW-WRP (D. Haw.). Kaneakua also has an additional action pending in another district. See Kaneakua v. Salazar, Civ. No. 3:22-00477-MO (D. Or.). The Court further notes that, in one of his pending actions in this district, Kaneakua alleges that he has been denied adequate

4 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of relevant federal records available electronically. See United States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public record, which may include court records available through [public access to court electronic records].” (citations omitted)). medical care at FDC Honolulu. See Prisoner Civil Rights Complaint, Kaneakua, Civ. No. 22-00201 DKW-WRP (D. Haw. Apr. 29, 2022), ECF No. 1. Given all of

this, Kaneakua cannot plausibly allege that he has been denied access to the Court. Kaneakua’s access to court claim is DISMISSED. Because any amendment would be futile, this dismissal is without leave to amend. See Sylvia Landfield Tr.,

729 F.3d at 1196. V. 28 U.S.C. § 1915(g) Kaneakua is notified that this dismissal may count as a “strike” under 28 U.S.C. § 1915(g). Under this “3-strikes” provision, a prisoner may not bring a

civil action or appeal a civil judgment in forma pauperis, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). VI. CONCLUSION (1) The Complaint, ECF No. 1, is DISMISSED for failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). (2) Because any amendment would be futile, the Complaint is DISMISSED without leave to amend, and this dismissal may later constitute a strike under 28 U.S.C. § 1915(g). (3) The court CERTIFIES that an appeal from this Order would be frivolous and therefore, not taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (stating that indigent appellant is permitted to proceed IFP

on appeal only if issues on appeal would not be frivolous). (4) The Clerk is DIRECTED to enter judgment and close this case. IT IS SO ORDERED. DATED: Honolulu, Hawai‘i, June 8, 2022.

ss LET. ° @),% SH bn % Jill A. Otake 2D db United States District Judge wei; a —

Civil No. 22-00149 JAO-RT, Kaneakua vy. Derr, et al; ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND