1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 NEAL ALLEN PANSCHOW, Case No. 5:19-cv-02446-DSF-AFM 13 Plaintiff, ORDER DISMISSING COMPLAINT v. 14 FOR LACK OF SUBJECT MATTER JURISDICTION 15 JUAN MURILLO, et al., 16 Defendants. 17 18 Plaintiff,a federal prisoner who is presently being heldat the Portland,Oregon 19 Halfway House, filed this pro se civil rights action on December 19, 2019, and he 20 appears to wish to proceed in forma pauperis (“IFP”). Plaintiff neither paid the 21 required filing fee nor filed a Request to Proceed IFP. Plaintiff has been ordered to 22 either pay the full filing fee or request to proceed IFP, but plaintiff has taken neither 23 action to date. In the Complaint, plaintiff names as defendants Federal Bureau of 24 Prisons (“BOP”) Guard Murillo and BOP Correctional Counselor Gaston. (ECF No. 25 1 at 3.) Plaintiff’s claims arise from an incident that allegedly occurred while plaintiff 26 was being held at the Federal Correctional Institution in Victorville, California 27 (“FCI”). Plaintiff alleges that he left personal property with defendant Murillo to be 28 inventoried when plaintiff was moved to a Special Housing Unit, and the property 1 was lost on June 24, 2018. (Id. at 3-4.) Plaintiff seeks reimbursement for his lost 2 property, which plaintiff values at less than $900. (Id. at 4, 7.) 3 The Court has screened the pleading to determine whether it is frivolous or 4 malicious; fails to state a claim on which relief may be granted; or seeks monetary 5 relief against a defendant who is immune from such relief. See 28 U.S.C. 6 § 1915(e)(2)(B). Section 1915(e)(2) pertains to any civil action by a litigant who is 7 seeking to proceed in forma pauperis. See, e.g., Shirley v. Univ. of Idaho, 800 F.3d 8 1193, 1194 (9th Cir. 2015). Because plaintiff is appearing pro se, the Court must 9 construe the allegations of the pleading liberally and must afford plaintiff the benefit 10 of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In screening 11 the Complaint to determine whether plaintiff’s pleading states a claim on which relief 12 may be granted, the Court “discount[s] conclusory statements, which are not entitled 13 to the presumption of truth, before determining whether a claim is plausible.” 14 Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also Rosati v. 15 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint 16 should be dismissed under 28 U.S.C. §1915(e)(2)(B), courts apply the standard of 17 Fed. R. Civ. P. 12(b)(6)). 18 Federal courts are courts of limited jurisdiction and have subject matter 19 jurisdiction only over matters authorized by the Constitution and Congress. See, e.g., 20 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). It is this Court’s duty 21 to examine its own subject matter jurisdiction, see Arbaugh v. Y&H Corp., 546 U.S. 22 500, 514 (2006), and the Court may dismiss a case summarily if there is an obvious 23 jurisdictional issue. See Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 24 982, 985 (9th Cir. 2003). “Absent a substantial federal question,” a district court 25 lacks subject matter jurisdiction, and claims that are “wholly insubstantial” or 26 “obviously frivolous” are insufficient to “raise a substantial federal question for 27 jurisdictional purposes.” Shapiro v. McManus, 136 S. Ct. 450, 455-56 (2015). A 28 “plaintiff bears the burden of proving” the existence of subject matter jurisdiction 1 and “must allege facts, not mere legal conclusions” to support the court’s jurisdiction. 2 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 3 In Claim 1, plaintiff alleges that defendant Murillo stole or lost plaintiff’s 4 property. Plaintiff’s tort claim “has been active since August 15, 2018,” although it 5 is the BOP’s policy to finalize decisions in six months. (ECF No. 1 at 4.) In Claim 6 2, plaintiff alleges that defendant Gaston refused to respond to plaintiff’s questions 7 about his property and failed to investigate the lost property. (Id. at 5.) Plaintiff 8 alleges that these actions violated his due process rights. (Id.) In Claim 3, plaintiff 9 alleges that “staff” at Victorville did not address plaintiff’s concerns regarding his 10 lost property or attempt to find his property. (Id. at 6-7.) Plaintiff seeks only 11 reimbursement for property that he alleges was lost or destroyed by BOP officers. 12 As set forthbelow, to the extent that plaintiff is attempting to allege anyclaim arising 13 under federal law, such claims lack an arguable basis in either fact or law, and there 14 is no federal subject matter jurisdiction. See Denton v. Hernandez, 504 U.S. 25, 31- 15 33 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). 16 Plaintiff’s factual allegations appear to give rise to a tort claim alleging the 17 destruction of his property by defendant Murillo, although it is unclear if plaintiff is 18 purporting to statea claim under the Federal Tort Claims Act (“FTCA”). “The FTCA 19 allows parties to pursue certain claims against the United States in federal court for 20 injury arising out of the negligent or wrongful conduct of any federal employee acting 21 within the scope of the employee’s employment.” DaVinci Aircraft, Inc. v. United 22 States, 926 F.3d 1117, 1120 (9th Cir. 2019). To the extent that plaintiff is intending 23 to raise an FTCA claim, the only proper party defendant in an FTCA action is the 24 United States. See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). 25 Plaintiff does not name the United States or the BOP as a defendant in this action. 26 However, even if plaintiff had named the proper defendant, a federal prisoner may 27 not bring a claim under the FTCA against the BOP for lost or damaged personal 28 property. This Court does not have subject matter jurisdiction over claims arising 1 from the detention of personal property by federal prison officers. See 28 U.S.C. 2 § 2680(c); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 216, 228 (2008)(holding that 3 the 28 U.S.C. § 2680(c) exception applies to all law enforcement officers, including 4 BOP officers); Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806-08 (9th Cir. 5 2003); see also DaVinci Aircraft, Inc., 926 F.3d at 1123 (if plaintiff’s tort claim falls 6 within an exception to the FTCA, then a “district court lacks subject matter 7 jurisdiction”).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 NEAL ALLEN PANSCHOW, Case No. 5:19-cv-02446-DSF-AFM 13 Plaintiff, ORDER DISMISSING COMPLAINT v. 14 FOR LACK OF SUBJECT MATTER JURISDICTION 15 JUAN MURILLO, et al., 16 Defendants. 17 18 Plaintiff,a federal prisoner who is presently being heldat the Portland,Oregon 19 Halfway House, filed this pro se civil rights action on December 19, 2019, and he 20 appears to wish to proceed in forma pauperis (“IFP”). Plaintiff neither paid the 21 required filing fee nor filed a Request to Proceed IFP. Plaintiff has been ordered to 22 either pay the full filing fee or request to proceed IFP, but plaintiff has taken neither 23 action to date. In the Complaint, plaintiff names as defendants Federal Bureau of 24 Prisons (“BOP”) Guard Murillo and BOP Correctional Counselor Gaston. (ECF No. 25 1 at 3.) Plaintiff’s claims arise from an incident that allegedly occurred while plaintiff 26 was being held at the Federal Correctional Institution in Victorville, California 27 (“FCI”). Plaintiff alleges that he left personal property with defendant Murillo to be 28 inventoried when plaintiff was moved to a Special Housing Unit, and the property 1 was lost on June 24, 2018. (Id. at 3-4.) Plaintiff seeks reimbursement for his lost 2 property, which plaintiff values at less than $900. (Id. at 4, 7.) 3 The Court has screened the pleading to determine whether it is frivolous or 4 malicious; fails to state a claim on which relief may be granted; or seeks monetary 5 relief against a defendant who is immune from such relief. See 28 U.S.C. 6 § 1915(e)(2)(B). Section 1915(e)(2) pertains to any civil action by a litigant who is 7 seeking to proceed in forma pauperis. See, e.g., Shirley v. Univ. of Idaho, 800 F.3d 8 1193, 1194 (9th Cir. 2015). Because plaintiff is appearing pro se, the Court must 9 construe the allegations of the pleading liberally and must afford plaintiff the benefit 10 of any doubt. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). In screening 11 the Complaint to determine whether plaintiff’s pleading states a claim on which relief 12 may be granted, the Court “discount[s] conclusory statements, which are not entitled 13 to the presumption of truth, before determining whether a claim is plausible.” 14 Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1129 (9th Cir. 2013); see also Rosati v. 15 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (in determining whether a complaint 16 should be dismissed under 28 U.S.C. §1915(e)(2)(B), courts apply the standard of 17 Fed. R. Civ. P. 12(b)(6)). 18 Federal courts are courts of limited jurisdiction and have subject matter 19 jurisdiction only over matters authorized by the Constitution and Congress. See, e.g., 20 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). It is this Court’s duty 21 to examine its own subject matter jurisdiction, see Arbaugh v. Y&H Corp., 546 U.S. 22 500, 514 (2006), and the Court may dismiss a case summarily if there is an obvious 23 jurisdictional issue. See Scholastic Entm’t, Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 24 982, 985 (9th Cir. 2003). “Absent a substantial federal question,” a district court 25 lacks subject matter jurisdiction, and claims that are “wholly insubstantial” or 26 “obviously frivolous” are insufficient to “raise a substantial federal question for 27 jurisdictional purposes.” Shapiro v. McManus, 136 S. Ct. 450, 455-56 (2015). A 28 “plaintiff bears the burden of proving” the existence of subject matter jurisdiction 1 and “must allege facts, not mere legal conclusions” to support the court’s jurisdiction. 2 Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 3 In Claim 1, plaintiff alleges that defendant Murillo stole or lost plaintiff’s 4 property. Plaintiff’s tort claim “has been active since August 15, 2018,” although it 5 is the BOP’s policy to finalize decisions in six months. (ECF No. 1 at 4.) In Claim 6 2, plaintiff alleges that defendant Gaston refused to respond to plaintiff’s questions 7 about his property and failed to investigate the lost property. (Id. at 5.) Plaintiff 8 alleges that these actions violated his due process rights. (Id.) In Claim 3, plaintiff 9 alleges that “staff” at Victorville did not address plaintiff’s concerns regarding his 10 lost property or attempt to find his property. (Id. at 6-7.) Plaintiff seeks only 11 reimbursement for property that he alleges was lost or destroyed by BOP officers. 12 As set forthbelow, to the extent that plaintiff is attempting to allege anyclaim arising 13 under federal law, such claims lack an arguable basis in either fact or law, and there 14 is no federal subject matter jurisdiction. See Denton v. Hernandez, 504 U.S. 25, 31- 15 33 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989). 16 Plaintiff’s factual allegations appear to give rise to a tort claim alleging the 17 destruction of his property by defendant Murillo, although it is unclear if plaintiff is 18 purporting to statea claim under the Federal Tort Claims Act (“FTCA”). “The FTCA 19 allows parties to pursue certain claims against the United States in federal court for 20 injury arising out of the negligent or wrongful conduct of any federal employee acting 21 within the scope of the employee’s employment.” DaVinci Aircraft, Inc. v. United 22 States, 926 F.3d 1117, 1120 (9th Cir. 2019). To the extent that plaintiff is intending 23 to raise an FTCA claim, the only proper party defendant in an FTCA action is the 24 United States. See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). 25 Plaintiff does not name the United States or the BOP as a defendant in this action. 26 However, even if plaintiff had named the proper defendant, a federal prisoner may 27 not bring a claim under the FTCA against the BOP for lost or damaged personal 28 property. This Court does not have subject matter jurisdiction over claims arising 1 from the detention of personal property by federal prison officers. See 28 U.S.C. 2 § 2680(c); Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 216, 228 (2008)(holding that 3 the 28 U.S.C. § 2680(c) exception applies to all law enforcement officers, including 4 BOP officers); Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806-08 (9th Cir. 5 2003); see also DaVinci Aircraft, Inc., 926 F.3d at 1123 (if plaintiff’s tort claim falls 6 within an exception to the FTCA, then a “district court lacks subject matter 7 jurisdiction”). 8 To the extent that plaintiff purports to raise a federal civil rights claim arising 9 from the failure of prison officials to follow the procedures of the BOP’s grievance 10 policy or to grant plaintiff’s grievance, such allegations fail to give rise to a civil 11 rights claim. A prisoner does not have a constitutional interest in an effective 12 grievance system. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 13 (prisoners lack a “separate constitutional entitlement to a specific prison grievance 14 procedure”); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (an inmate has “no 15 legitimate claim of entitlement to a grievance procedure”); see also Larkin v. Watts, 16 300 Fed. Appx. 501, 502 (9th Cir. Nov. 12, 2008) (federal prisoner’s claim that BOP 17 officials improperly processed his administrative complaints or grievances arising 18 from lost property does not give rise to a cognizable constitutional claim (citing 19 Ramirez) (now citable for its persuasive value pursuant to Ninth Circuit Rule 36-3). 20 In addition, if plaintiff is attempting to raise a due process claim pursuant to 21 the Fifth Amendment against prison officials at FCI arising from the loss of his 22 personal property, his allegations do not give rise to a cognizable constitutional claim 23 pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), 24 because plaintiff has “an adequate post-deprivation remedy for the loss or deprivation 25 of his property.” Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Raditch v. 26 United States, 929 F.2d 478, 480-81 (9th Cir. 1991) (applying Hudson’s analysis of 27 a due process claim under the Fourteenth Amendment to claims under the Fifth 28 Amendment against federal actors, noting that an “intentional deprivation of a 1 property right by a government official, in violation of established procedures, is a 2 random and unauthorized act that cannot be prevented by pre-deprivation process”); 3 Larkin, 300 Fed. Appx. at 502 (citing Hudson in finding no cognizable claim for 4 property deprivation under Bivens). An adequate post-deprivation remedy for federal 5 prisoners exists in the form of the BOP’s administrative remedy program. See, e.g., 6 Douglas v. BOP Dir., 2019 WL 6170734, 2019 U.S. Dist. Lexis 201629, at *6 (C.D. 7 Cal. Nov. 20, 2019). 8 Moreover, to the extent plaintiff purports to assert any other Bivens claim1 9 pursuant to the FifthAmendment,the Supreme Court “has made clear that expanding 10 the Bivensremedy is now a ‘disfavored’ judicial activity.” Abbasi, 137 S. Ct. at 1857 11 (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); see also Jesner v. Arab Bank, 12 PLC, 138 S. Ct. 1386, 1402 (2018) (noting the “[Supreme] Court’s general reluctance 13 to extend judicially created private rights of action,” citing Abbasi). In deciding 14 whether to find an implied cause of action, the Court first must determine if this “case 15 is different in a meaningful way from previous Bivens cases decided by [the 16 Supreme] Court.” Abbasi, 137 S. Ct. at 1859. If a case presents a new context for a 17 Bivens action, then a damages remedy may only be extended (1) if the plaintiff has 18 no “other adequate alternative remedy” and (2) there are no “special factors” that 19 would cause the court to believe that Congress rather than the courts should authorize 20 a suit for money damages. See Rodriguez v. Swartz, 899 F.3d 719, 738 (9th Cir. 21 2018) (petition for cert. filed, Sept. 7, 2018). As the Ninth Circuit recently noted, 22 “neither the Supreme Court nor [the Ninth Circuit] have expanded Bivens” in the 23 context of a “prisoner’s Fifth Amendment procedural due process claims arising out 24 of a prison disciplinary process.” Vega, 881 F.3d at1152-54(noting that the Supreme 25 26 1 ABivensclaim is an “implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 27 2018); see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1854-55, 1869 (2017) (explaining that Bivens 28 provides an implied cause of action for money damages against individual federal officials for 1 |} Court has only provided a Bivens remedy under the Fifth Amendment for gender 2 || discrimination); see also Schwarz v. Meinberg, 761 Fed. Appx. 732, 734-75 (9th Cir. 3 || Feb. 13, 2019) (noting that the Ninth Circuit recently held that a Fifth Amendment 4 || procedural due process claim presented a new Bivens context, and declining to extend 5 || Bivens to a prisoner’s claim that the BOP “unlawfully denied his request for a camp 6 || placement’) (now citable for its persuasive value pursuant to Ninth Circuit Rule 36- 7 || 3); Buenrostro v. Fajardo, 2017 WL 6033469, at *3 (E.D. Cal. Dec. 5, 2017) 8 || (declining to find an implied Bivens cause of action for a Fifth Amendment due 9 || process claim arising from an alleged failure of prison officials to provide due 10 || process). Accordingly, any Fifth Amendment due process claim by plaintiff lacks an 11 || arguable basis in law because it would require a disfavored extension of Bivens. 12 For these reasons, plaintiffs allegations lack an arguable basis in fact or law 13 || fora federal claim against any named defendant, and the Court therefore lacks subject 14 || matter jurisdiction over the claims raised by plaintiff in this action. 15 IT THEREFORE IS ORDERED that the Complaint in this action is 16 || dismissed without prejudice. 17 18 || DATED: January 17, 2020 fo ie
20 --DALES.FISCHER 51 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28