(PC) Mois v. Ciolli

Opinion

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 EMANUEL MOIS, Case No. 1:20-cv-00885-JLT (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS SECOND A MENDED 13 v. COMPLAINT WITHOUT LEAVE TO AMEND 14 A. CIOLLI, et al., (Doc. 21) 15 Defendants.

14-DAY DEADLINE 16 17 Plaintiff is a federal inmate who has filed a second amended complaint asserting 18 constitutional claims against federal officials. (Doc. 21.) Plaintiff brings this action pursuant to 19 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A Bivens action is the 20 federal analog to suits brought against state officials under 42 U.S.C. § 1983. Hartman v. Moore, 21 547 U.S. 250, 255 (2006) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). 22 Generally, the Court is required to screen complaints brought by inmates seeking relief 23 against a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. 24 § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised 25 claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief may 26 be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 27 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion thereof, that may have 28 been paid, the court shall dismiss the case at any time if the court determines that . . . the 2 1915(e)(2)(B)(ii). 3 I. PLEADING STANDARDS 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “are not required to indulge 9 unwarranted inferences,” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) 10 (internal quotation marks and citation omitted). While factual allegations are accepted as true, 11 legal conclusions are not. Iqbal, 556 U.S. at 678. 12 Prisoners may bring § 1983 claims against individuals acting “under color of state law.” 13 See 42 U.S.C. § 1983; 28 U.S.C. § 1915(e) (2)(B)(ii). “Actions under [42 U.S.C.] § 1983 and 14 those under Bivens are identical save for the replacement of a state actor under § 1983 by a 15 federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). Under 16 Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for 17 violating the plaintiff’s constitutional rights. See Bivens, 403 U.S. at 397. To state a claim under 18 Bivens, a plaintiff must allege (1) a violation of his constitutional rights, and (2) the alleged 19 violation was committed by a federal actor. See Van Strum, 940 F.2d at 409; Serra v. Lappin, 20 600 F.3d 1191, 1200 (9th Cir. 2010) (citing Shwarz v. United States, 234 F.3d 428, 432 (9th Cir. 21 2000)). A plaintiff must plead more than mere negligence by a federal actor in order to state a 22 colorable claim under Bivens. O’Neal v. Eu, 866 F.2d 314, 314 (9th Cir. 1988). Prisoners 23 proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed 24 and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) 25 (citations omitted). 26 II. PLAINTIFF’S ALLEGATIONS 27 Plaintiff brings this action for the conditions of his confinement in the Special Housing 28 Unit at the United States Penitentiary in Atwater, California, where he Warden; K. Bennett, USP-Atwater Assistant Warden; B. Hurte, USP-Atwater Captain; and Gene 2 Beasley, Western Regional Director. Plaintiff seeks compensatory and punitive damages. 3 Plaintiff asserts that he a Christian and has engaged in Bible studies and Christian college 4 courses to become an ordained minister while in prison. He also corresponded with other 5 believers as part of his religious practice. According to Plaintiff, in October 2019, Plaintiff began 6 to receive property receipts for “religious material” that was placed into his personal property. 7 Plaintiff addressed this with Assistant Warden Bennett, who responded that inmates were allowed 8 to have Bibles. 9 On November 12, 2019, Plaintiff received a memorandum advising that radios and 10 batteries were removed from the SHU commissary pursuant to a policy ordered by Regional 11 Director Gene Beasley. All books, magazines, and newspapers were banned or not authorized 12 from any source. All incoming photos would be received and stored in personal property without 13 an opportunity for viewing. Although soft cover books were allowed under the policy, they were 14 rejected and placed into personal property. 15 On December 4 or 5, 2019, officers went to each cell and confiscated inmates’ radios and 16 batteries. They were to be placed in personal property, but no property receipts were given. 17 On February 5, 2020, during a weekly inspection of Plaintiff’s cell, Warden Ciolli and 18 Captain Hurte removed eight manila folders containing letters from family and friends and 19 materials from college courses and Biblical studies. The reason given to Plaintiff was that he had 20 “too much property” under Beasley’s policy. 21 On February 19, 2020, Warden Ciolli removed an envelope containing about eighty 22 personal photos of family and friends and placed them into personal property. 23 On April 27, 2020, Plaintiff filed an informal inmate grievance concerning this issue on a 24 BP-8 and then a BP-9 form on April 30, 2020. However, he did not receive a response from 25 Warden Ciolli. On May 5, 2020, Plaintiff filed a BP-10 form to Gene Beasley, but Plaintiff did 26 not receive a response. Plaintiff submitted a BP-11 appeal to the Central BOP Office on June 9, 27 2020, but no action was taken. 28 psychological hardship to inmates housed in SHU, thus compelling Plaintiff to enter general 2 population at risk to his safety. Plaintiff was transferred to Federal Correctional Institution 3 Victorville II on August 31, 2020, and he received his property on October 13, 2020. Plaintiff 4 alleges that his radio, most of his religious materials, and other documents were missing from his 5 personal property. 6 7 III. DISCUSSION 8 A. Bivens and the First Amendment 9 Plaintiff alleges in his first claim that Defendants violated his First Amendment right to 10 access the press and media,1 and such deprivation amounts to cruel and unusual punishment under 11 the Eighth Amendment because of the psychological and emotional harm to Plaintiff. In his 12 second claim, Plaintiff alleges that the deprivation of religious materials violated his First 13 Amendment right to the free exercise of religion. To succeed on his claims, Plaintiff must show 14 that Bivens extends to violations of the First Amendment. 15 The Supreme Court first recognized an implied right of action for damages against federal 16 officers in Bivens, 403 U.S. 388. The Court held that damages were recoverable directly under the 17 Fourth Amendment when federal officers arrested and searched the plaintiff without a warrant or 18 probable cause, and when they employed unreasonable force in making the arrest. Id. at 389, 19 395–96. In the years after Bivens, the Court also recognized implied rights of action for damages 20 under the Fifth and Eighth Amendments. See Davis v. Passman, 442 U.S. 228 (1979) 21 (recognizing a damages remedy for a gender discrimination claim against a United States 22 Congressman under the equal protection component of the Fifth Amendment Due Process 23 Clause); Carlson v. Green, 446 U.S. 14 (1980) (recognizing a damages remedy against federal 24 prison officials for failure to provide adequate medical treatment under the Eighth Amendment’s 25 Cruel and Unusual Punishment Clause). 26 The Supreme Court “has made clear that expanding the Bivens remedy is now a 27 ‘disfavored’ judicial activity.” Ziglar v. Abbasi, ––– U.S. ––––, 137 S. Ct. 1843, 1857 (2017) 28 1 Plaintiff asserts that he has been denied his First Amendment right to “freedom of the press.” extend Bivens to any new context or new category of defendants.’” Id. (quoting Corr. Servs. 2 Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Accordingly, the courts must exercise caution before 3 extending Bivens into a new context. Id. at 74. A Bivens remedy is not available if “special factors 4 counsel[] hesitation in the absence of affirmative action by Congress.” Bivens, 403 U.S. at 396. 5 6 In Abbasi, the Supreme Court laid out a two-step test for determining when a Bivens claim 7 should be recognized. First, the court must ask whether the claim arises in a new Bivens context. 8 Abbasi, 137 S. Ct. at 1864. A case presents a new context if it “is different in a meaningful way 9 from previous Bivens cases decided by this Court.” Id. Abbasi outlined the following non- 10 exhaustive “list of differences that are meaningful enough to make a given context a new one”: 11 A case might differ in a meaningful way because of [1] the rank of the officers involved; [2] the constitutional right at issue; [3] the 12 generality or specificity of the official action; [4] the extent of judicial guidance as to how an officer should respond to the problem 13 or emergency to be confronted; [5] the statutory or other legal 14 mandate under which the officer was operating; [6] the risk of disruptive intrusion by the Judiciary into the functioning of other 15 branches; or [7] the presence of potential special factors that previous 16 Bivens cases did not consider. 17 Id. at 1859–60. A claim may arise in a new context even if it is based on the same constitutional 18 provision as a claim in a case in which a damages remedy was previously recognized. Hernandez 19 v. Mesa, 140 S. Ct. 735, 743 (2020). 20 If the case presents a new Bivens context, then the court proceeds to step two. At step two, 21 a court may extend Bivens and recognize a Bivens remedy in a new context only if two conditions 22 are met. Wilkie v. Robbins, 551 U.S. 537, 550 (2007). First, there must be the absence of an 23 alternative, existing process for protecting the plaintiff’s interests. Id. (citing Bush v. Lucas, 462 24 U.S. 367, 378 (1983)). Second, the court must consider whether “any special factors counselling 25 hesitation before authorizing a new kind of federal litigation.” Id. (quoting Bush, 462 U.S. at 26 378). While the Supreme Court has yet to define the term, “special factors,” it has explained that 27 “the inquiry must concentrate on whether the Judiciary is well suited, absent congressional action 28 or instruction, to consider and weigh the costs and benefits of allowing a damages action to hesitation,’ a factor must cause a court to hesitate before answering that question in the 2 affirmative.” Id. at 1858. 3 4 In this instance, Plaintiff asserts claims that present a new Bivens context. The Supreme 5 Court has never recognized a Bivens claim under the First Amendment. See Schwarz v. Meinberg, 6 761 F. App’x 732, 734 (9th Cir.), cert. denied, 140 S. Ct. 468 (2019) (citing Reichle v. Howards, 7 566 U.S. 658, 663 n.4 (2012)). The Ninth Circuit Court of Appeals has previously extended 8 Bivens to some First Amendment claims. In Gibson v. United States, the Ninth Circuit found that 9 plaintiffs asserted a cognizable claim through a Bivens-type action under the First Amendment. 10 Gibson, 781 F.2d 1334, 1342 (9th Cir. 1986) (citing Angola v. Civiletti, 666 F.2d 1 (2d Cir. 11 1981)). More recently, the Ninth Circuit refused to expand Bivens to a prisoner’s First 12 Amendment access to the court claim in light of available alternative remedies. Vega v. United 13 States, 881 F.3d 1146, 1155 (9th Cir. 2018). However, the court in Boule v. Egbert concluded that 14 Bivens remedies were available for a border patrol agent’s use of excessive force in violation of 15 the Fourth Amendment and for First Amendment retaliation. Boule v. Egbert, 998 F.3d 370, 392 16 (9th Cir. 2021), cert. granted in part, No. 21-147, 2021 WL 5148065 (U.S. Nov. 5, 2021). 17 These cases are not controlling because the Abbasi opinion requires consideration of prior 18 Bivens cases decided by the Supreme Court, not the Court of Appeals. Abbasi, 137 S. Ct. at 1864; 19 see Hoffman v. Preston, No. 1:16-cv-01617-LJO-SAB (PC), 2019 WL 1865459, at *4 (E.D. Cal. 20 Apr. 25, 2019), report and recommendation adopted, No. 1:16-cv-01617-LJO-SAB (PC), 2019 21 WL 2464765 (E.D. Cal. June 13, 2019). Moreover, the instant case “is different in a meaningful 22 way” from these previous Bivens cases decided by the Ninth Circuit. Although the Ninth Circuit’s 23 cases are also brought under the First Amendment, different constitutional rights are at issue. 24 Plaintiff’s allegations concern the denial of his access to media and personal property, including 25 documents from Plaintiff’s religious studies. Because a Bivens remedy has not been recognized in 26 these contexts, Plaintiff’s claims arise in “new” First Amendment contexts, and the Court must 27 determine whether to extend Bivens to Plaintiff’s claims. 28 To make that determination, the Court must first consider whether there is “any (2007). The existence of an alternative remedial scheme “amounts to a convincing reason for the 2 Judicial Branch to refrain from providing a new and freestanding remedy in damages.” Id. Next, 3 the Court must evaluate whether there are “special factors counselling hesitation in the absence of 4 affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857 (quoting Carlson v. Green, 446 U.S. 5 16, 18 (1980)). Though the Supreme Court has not defined the phrase, “special factors 6 counselling hesitation,” the inquiry should consider “whether the Judiciary is well suited, absent 7 congressional action or instruction, to consider and weigh the costs and benefits of allowing a 8 damages action to proceed.” Id. at 1857–58. Specifically, the Court should consider the 9 substantial defense costs created by personal-capacity claims against federal employees, as well 10 as the “time and administrative costs attendant upon intrusions resulting from the discovery and 11 trial process.” Id. at 1856. 12 13 Both the existence of alternative remedial processes and other special factors counselling 14 hesitation weigh against extending the Bivens remedy to Plaintiff’s First Amendment claims. 15 First, federal prisoners have numerous alternative remedies available to them, including the 16 Federal Tort Claims Act and the Bureau of Prison’s administrative grievance process.2 See 28 17 U.S.C. §§ 1346(b)(1), 2674 (allowing an inmate to seek money damages for personal injuries and 18 property claims arising out of a federal employee’s negligence or wrongful conduct); 31 U.S.C. § 19 3724(a) (allowing the Attorney General to settle claims for personal injuries and damaged or lost 20 personal property caused by federal law enforcement); 28 C.F.R. § 542.10(a) (establishing 21 administrative-grievance procedure for “an inmate to seek formal review of an issue relating to 22 any aspect of his/her own confinement”). The Ninth Circuit has recognized the adequacy of these 23 alternative remedial schemes with regarding First Amendment claims. See Buenrostro v. Fajardo, 24 770 F. App’x 807, 808 (9th Cir. 2019) (declining to extend Bivens remedy for a First Amendment 25 retaliation claim in part because an alternative remedial structure through the Bureau of Prisons 26 administrative grievance process); Vega, 881 F.3d at 1152–54 (declining to extend Bivens to First 27 2 Plaintiff states in his complaint: “I would have filed a Federal TORT claim, but it’s my understanding that since this 28 is an issue concerning a policy that violates constitutional rights, I must file a ‘Bivens action’ in order to seek relief.” (Doc. 21 at 6 (alterations in the original).) omitted from the Prison Litigation Reform Act a damages remedy for prisoners, Buenrostro, 770 2 F. App’x at 808, which suggests that “Congress might doubt the efficacy or necessity of a 3 damages remedy” against federal officers. Abbasi, 137 S. Ct. at 1858. Moreover, plaintiff’s claim 4 implicates significant separation of powers concerns vis-à-vis prison administration and implying 5 a new Bivens remedy for such claims would undoubtedly impose a large burden on the judiciary 6 and prison officials. Cox v. United States, 2:17-cv-02349-CJC-KES, 2019 WL 5580966, at *8 7 (C.D. Cal. Aug. 30, 2019), report and recommendation adopted, 2019 WL 5579533 (C.D. Cal. 8 Oct. 29, 2019). Accordingly, the Court finds that Plaintiff has failed to state a claim under Bivens 9 for the First Amendment contexts alleged by Plaintiff. 10 11 B. Eighth Amendment Prohibition on “Cruel and Unusual Punishment” 12 The Supreme Court has recognized a cause of action under Bivens for violations of the 13 Eighth Amendment Cruel and Unusual Punishments Clause. See Carlson, 446 U.S. at 18; see also 14 Abbasi, 137 S. Ct. at 1848; Vega, 881 F.3d at 1152. It is well-settled that “the treatment a prisoner 15 receives in prison and the conditions under which he is confined are subject to scrutiny under the 16 Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. 17 McKinney, 509 U.S. 25, 31 (1993)). The Eight Amendment prohibits the use of excessive 18 physical force against prisoners. Farmer, 511 U.S. at 832 (citing Hudson v. McMillian, 503 U.S. 19 1 (1992)). The Amendment also imposes duties on these officials, who must provide humane 20 conditions of confinement; prison officials must ensure that inmates receive adequate food, 21 clothing, shelter, and medical care, and must “take reasonable measures to guarantee the safety of 22 the inmates.” Farmer, 511 U.S. at 832 (quoting Hudson v. Palmer, 468 U.S. 517, 526–27 (1984)). 23 To succeed on an Eighth Amendment deprivation claim, the alleged deprivation must be 24 “sufficiently serious,” resulting in the denial of “the minimal civilized measure of life’s 25 necessities.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (following Estelle v. Gamble, 429 U.S. 97 26 (1976); Rhodes v. Chapman, 452 U.S. 337 (1981)). In Estelle, the Supreme Court held that the 27 only the “unnecessary and wanton infliction of pain implicates the Eighth Amendment. Estelle, 28 429 U.S. at 104. Therefore, a plaintiff advancing such a claim must allege that the defendant’s acts or omissions were sufficiently harmful do demonstrate a “deliberate indifference” to inmate 2 safety or health. Wilson, 501 U.S. at 302–03; Estelle, 429 U.S. at 106. 3 Plaintiff does not raise an independent claim alleging an Eighth Amendment violation but 4 instead attaches his Eighth Amendment claim to his First Amendment claim. His argument is 5 two-fold. First, Plaintiff appears to claim that the deprivation of access to the news, books, and 6 correspondence has caused great psychological and emotional harm amounting to cruel and 7 unusual punishment. Plaintiff alleges that the deprivation has caused “anxiety, stress, worry, and 8 confusion;” feelings of loneliness and “heartbreaking” thoughts of home; mental and emotional 9 strain; feeling further outcast from society. Plaintiff contends that each defendant knew the policy 10 violated the First Amendment rights but continued to enforce the policy with “callous 11 indifference and evil intentions” that “brought about cruel punishment.” (Doc. 21 at 8–10.) 12 Second, Plaintiff alleges that the policy restricting access to the media was an effort to 13 compel inmates in protective custody to enter general population. Plaintiff asserts that going into 14 general population places him “in a substantial risk of serious harm” and demonstrates a 15 “deliberate indifference to [his] safety” and “reckless and callous indifference to the First 16 Amendment rights.” (Id. at 6.) Although he employs elements for an Eighth Amendment claim, 17 these allegations are wholly speculative and unsupported by factual allegations. 18 Plaintiff offers only conclusory statements to support his claims of cruel and unusual 19 punishment. See Iqbal, 556 U.S. at 678. Plaintiff has failed to allege that the nine-month 20 deprivation of access to the press and other forms of media was sufficiently serious and resulted 21 in the denial of life’s necessities. Plaintiff has also failed to demonstrate that Defendants’ 22 enforcement of the policy amounted to deliberate indifference to Plaintiff’s health or safety. 23 Therefore, Plaintiff has failed to state a claim for cruel and unusual punishment under the Eighth 24 Amendment. 25 V. CONCLUSION 26 The Court finds that Plaintiff is unable to allege any facts that would state a cognizable 27 civil rights claim and further amendment would be futile. For the foregoing reasons, the Court 28 RECOMMENDS that this action be DISMISSED for failure to state a claim. Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 2 service of these Findings and Recommendations, Plaintiff may file written objections with the 3 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 5 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 6 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7

8 IT IS SO ORDERED. 9 Dated: December 15, 2021 _ /s/ Jennifer L. Thurston 10 CHIEF UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28