Mousa v. Trump Administration

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 MOHAMED SALADDIN MOUSA, Case No. 1:19-cv-01349-LJO-SAB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSING 13 v. PLAINTIFF’S FIRST AMENDED COMPLAINT WITH PREJUDICE FOR 14 TRUMP ADMINISTRATION, et al., FAILURE TO STATE A CLAIM

15 Defendants. (ECF No. 17)

16 OBJECTIONS DUE WITHIN THIRTY DAYS 17 18 Mohamed Saladdin Mousa (“Plaintiff”), a state prisoner, is appearing pro se and in forma 19 pauperis in this action. Currently before the Court is Plaintiff’s first amended complaint, filed 20 on December 12, 2019. 21 I. 22 SCREENING REQUIREMENT 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 25 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 26 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or 27 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 1 A complaint must contain “a short and plain statement of the claim showing that the 2 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 5 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 6 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 7 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 8 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 9 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 10 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 11 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 12 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 13 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 14 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 15 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 16 F.3d at 969. 17 II. 18 DISCUSSION 19 Plaintiff is in the custody of the California Department of Corrections and Rehabilitation 20 and is housed at the California Correctional Institution, Tehachapi. Plaintiff states that since 21 June 2019 he has been sending letters to the Director of Immigrations and Customs 22 Enforcement1 in Bakersfield requesting that he be taken to court on a detainer that was placed on 23 him. Plaintiff has received no response. Plaintiff brings this action against the unknown director 24 alleging violation of his right to access of the court under the First Amendment. 25 Congress passed 42 U.S.C. § 1983 which entitles an injured person to sue for monetary 26 1 “In 2002, Congress enacted the Homeland Security Act, Pub. L. No. 107–296, 116 Stat. 2135, abolishing the INS 27 and transferring most of its immigration functions to the newly-formed Department of Homeland Security (“DHS”), in which Immigration and Customs Enforcement (“ICE”) is housed.” Flores v. Lynch, 828 F.3d 898, 904 (9th Cir. 1 damages if a state official violates his or her constitutional rights. However, “Congress did not 2 create an analogous statute for federal officials.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). 3 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), 4 the Supreme Court held that, even absent statutory authorization, a federal official could be sued 5 for damages for an unreasonable search and seizure in violation of the Fourth Amendment. 6 Bivens, 403 U.S. at 397; see Lanuza v. Love, 899 F.3d 1019, 1021 (9th Cir. 2018) (“Bivens is 7 the first Supreme Court decision to recognize an implied right of action for damages against 8 federal officers alleged to have violated a plaintiff’s constitutional rights.”). Since Bivens was 9 decided the Supreme Court has recognized an implied cause of action in two other cases 10 involving other constitutional violations. Id. 11 In Ziglar, the Supreme Court set forth a two-part test for courts to use in order to 12 determine whether a Bivens claim may proceed. Ziglar, 137 S. Ct. at 1859-60. First, the court 13 must determine whether the case presents a new Bivens context. “If [a] case is different in a 14 meaningful way from previous Bivens cases decided by [the Supreme Court], the context is 15 new.” Id. at 1859. 16 Second, if a case presents a new context for a Bivens action, the court must then 17 determine whether there are any “special factors counselling hesitation in the absence of 18 affirmative action by Congress.” Ziglar, 137 S. Ct. at 1857 (citation omitted). The “special 19 factors” inquiry “must concentrate on whether the Judiciary is well suited, absent congressional 20 action or instruction, to consider and weigh the costs and benefits of allowing a damages action 21 to proceed.’” Id. at 1857-58. Ziglar specifically noted that, “if there is an affirmative remedial 22 structure present in a certain case, that alone may limit the power of the Judiciary to infer a new 23 Bivens cause of action.” Ziglar, 137 S. Ct. at 1858. “In sum, if there are sound reasons to think 24 Congress might doubt the efficacy or necessity of a damages remedy as part of the system for 25 enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in 26 order to respect the role of Congress in determining the nature and extent of federal-court 27 jurisdiction under Article III.” Id.; see also id. at 1857 (stating that the Supreme Court has made 1 accord with the Court’s observation that it has ‘consistently refused to extend Bivens to any new 2 context or new category of defendants.’” (internal citations omitted)). Therefore, the Court 3 considers if there is an implied Bivens cause of action for access to the courts. 4 1. Plaintiff’s First Amendment Claim Presents a New Bivens Context 5 The Supreme Court has implied a damages remedy under the U.S. Constitution in only 6 three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens, 403 U.S. at 7 396-97; (2) Fifth Amendment gender discrimination in Davis v. Passman, 442 U.S. 228, 248-49 8 (1979); and (3) Eighth Amendment deliberate indifference to serious medical needs in Carlson v. 9 Green, 446 U.S. 14, 19 (1980). “These three cases – Bivens, Davis, and Carlson – represent the 10 only instances in which the Court has approved of an implied damages remedy under the 11 Constitution itself.” Ziglar, 137 S. Ct. at 1855. Therefore, Plaintiff’s claim for denial of access 12 to the courts in violation of the First Amendment presents a new Bivens context. Hence, the 13 Court must evaluate whether special factors counsel against extending the Bivens damages 14 remedy to this new context. 15 2. Special Factors Counsel Against Extending the Bivens Remedy in this Case 16 Here, the Court finds that special factors counsel hesitation in implying a Bivens damages 17 remedy in the context of a First Amendment claim for denial of access to the court for three 18 reasons. 19 First, the Supreme Court has “never held that Bivens extends to First Amendment 20 claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). In fact, in Bush v. Lucas, 462 U.S. 21 367, the Supreme Court refused to extend Bivens to a First Amendment free speech and 22 retaliatory demotion claim by a federal employee against the employee’s supervisor on the 23 ground that “Congress is in a better position to decide whether or not the public interest would be 24 served by creating” a new substantive legal damages remedy in the action’s specific First 25 Amendment context. Bush, 462 U.S. at 390. 26 Second, Congress has enacted extensive laws regarding the inspection, admission, and 27 deportation of aliens. 8 U.S.C. § 1151 et seq. See Ziglar, 137 S. Ct. at 1858 (“[I]f Congress has 1 may amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and 2 freestanding remedy in damages.”) In this case, Plaintiff is attempting to preemptively litigate his 3 defense to future removal proceedings. (See Motions for Injunctive Relief, ECF Nos. 13, 16.) 4 However, this Court lacks jurisdiction to address those claims. See 8 U.S.C. § 1252(b)(9) 5 (“Judicial review of all questions of law or fact . . . arising from any action taken or proceeding 6 brought to remove an alien from the United States . . . shall be available only in judicial review 7 of a final order of removal . . . .”); 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed with an 8 appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an 9 order of removal . . . .”). Plaintiff can challenge his removal proceedings in this court only after 10 a final order of removal is issued. 11 Third, the Court finds that “extending Bivens to [Plaintiff’s First Amendment claim] 12 would substantially affect government operations and unduly burden [DHS] officials who must 13 defend against this suit in their personal capacities.” Schwarz v. Meinberg, 761 F. App’x 732, 14 735 (9th Cir. 2019) (declining to extend Bivens remedies to a plaintiff’s access to courts claim 15 under the First and Fifth Amendments and a Fifth Amendment claim regarding denial of 16 plaintiff’s request for camp placement); see also Anderson v. Creighton, 483 U.S. 635, 638 17 (1987) (“[P]ermitting damages suits against government officials can entail substantial social 18 costs, including the risk that fear of personal monetary liability and harassing litigation will 19 unduly inhibit officials in the discharge of their duties.”). 20 Plaintiff brings this against the director of the local ICE office for failure to respond to his 21 request to be have an immigration hearing alleging that it violates his right of to access the 22 courts. Detainees and prisoners have a fundamental constitutional right to access to the courts 23 that requires authorities to assist in the preparation and filing of meaningful legal papers by 24 providing adequate law libraries or adequate assistance from persons trained in the law and not 25 to obstruct their access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996) (quoting Bounds 26 v. Smith, 430 U.S. 817, 97 (1977)); Orantes-Hernandez v. Meese, 685 F.Supp.1488, 1510 (C.D. 27 Cal. 1988), aff’d sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). 1 detainee in a federal facility, but is a prisoner in the custody of the state serving a criminal 2 sentence. 3 An immigration detainer “serves to advise another law enforcement agency that the 4 Department seeks custody of an alien presently in the custody of that agency, for the purpose of 5 arresting and removing the alien. The detainer is a request that such agency advise the 6 Department, prior to release of the alien, in order for the Department to arrange to assume 7 custody, in situations when gaining immediate physical custody is either impracticable or 8 impossible. 8 C.F.R. § 287.7(a). The statute itself provides that the detainer is a request for the 9 agency having custody of Plaintiff to advise when Plaintiff is set to be released so that ICE can 10 assume custody of Plaintiff. The detainer provides no right to appear within a certain time 11 period on the immigration charges but merely informs the custodial agency that the federal 12 government intends to take custody upon Plaintiff’s release. Once Plaintiff is released into 13 federal custody, the immigration statutes will govern his right to a hearing and detention. 8 14 U.S.C. § 1226; 8 C.F.R. § 287.3; see Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (U.S. 15 immigration law authorizes the Government to detain certain aliens already in the country 16 pending the outcome of removal proceedings under §§ 1226(a) and (c).). Although a detainer 17 has been placed on Plaintiff, he is not in the custody of the federal government. 18 Since Plaintiff is a prisoner in the custody of the state, the gravamen of his complaint is 19 that federal officials have not transferred him to their custody so he can appear for an 20 immigration hearing. However, Plaintiff has no right to be transferred to federal custody while 21 serving his state sentence. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983) (no protectable 22 interest in being housed in a specific prison or particular state); Meachum v. Fano, 427 U.S. 215, 23 229 (1976) (Due Process Clause does not impose a rule mandating transfer hearings); Corgain v. 24 Miller, 708 F.2d 1241, 1254 (7th Cir. 1983) (United States Constitution does not mandate 25 hearings to be transferred from state to federal custody); United States v. Klein, 589 F. App’x 26 909, 911 (10th Cir. 2014) (no protectable liberty interest in having the term of supervised release 27 proactively revoked so that defendant can be transferred from a state institution into federal 1 2012) (“the mere lodging of a detainer does not rise to a deprivation of a liberty interest”). 2 Recognizing a Bivens remedy in the current context would unduly burden federal officials by 3 requiring them to defend actions where no right exists for a detainee to be transferred from state 4 to federal custody to appear for immigration proceedings at the request of the alien. 5 Therefore, the Court finds that special factors counsel hesitation in this context and, thus, 6 declines to find an implied Bivens cause of action for failing to bring Plaintiff into federal 7 custody for an immigration hearing in violation of the First Amendment. See Free v. Peikar, No. 8 1:17-cv-00159-AWI-MJS (PC), 2018 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) 9 (“Nationwide, district courts seem to be in agreement that, post-[Ziglar], prisoners have no right 10 to bring a Bivens action for violation of the First Amendment.”). Consequently, Plaintiff has 11 failed to state a cognizable claim against the unidentified official for failing to respond to his 12 request for an immigration hearing in violation of the First Amendment. Since this is a 13 deficiency that cannot be cured by amendment, the Court concludes that granting leave to amend 14 would be futile. 15 IV. 16 CONCLUSION AND RECOMMENDATION 17 Based on the foregoing, Plaintiff’s complaint fails to state a cognizable claim for relief 18 under Bivens against any named Defendant. Since the defects in Plaintiff’s complaint are not 19 capable of being cured through amendment, granting leave to amend would be futile. Akhtar v. 20 Mesa, 698 F.3d 1202, 1213 (9th Cir. 2012). 21 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed, with 22 prejudice, for failure to state a cognizable claim upon which relief may be granted. 23 This findings and recommendation will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days 25 after being served with this findings and recommendation, Plaintiff may file written objections 26 with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 27 and Recommendation.” Plaintiff is advised that failure to file objections within the specified 1 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 2 | F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 | Dated: _ December 16, 2019

‘ UNITED STATES MAGISTRATE JUDGE

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28