Swinton v. Department of Justice

• Court: District Court, N.D. California
• Decided: February 20, 2024
• Docket: 4:22-cv-04276
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MALIK HALEEM SWINTON, Case No. 22-cv-04276-JST

8 Plaintiff, ORDER DISMISSING AMENDED 9 v. COMPLAINT WITH LEAVE TO AMEND; DENYING AS MOOT 10 DEPARTMENT OF JUSTICE, et al., MOTIONS TO DISMISS 11 Defendants. Re: ECF Nos. 50, 51

12 13 Plaintiff has filed a pro se action against defendants Geo Group Inc. and the United States 14 of America. His amended complaint (ECF No. 49) is now before the Court for review pursuant to 15 28 U.S.C. § 1915A. For the reasons set forth below, the Court screens the amended complaint; 16 DISMISSES the amended complaint with leave to amend; and DENIES as moot the motions to 17 dismiss filed by the United States of America and GEO Group, ECF Nos. 50, 51 18 DISCUSSION 19 A. Screening Obligation 20 A federal court must conduct a preliminary screening in any case in which a prisoner seeks 21 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. 22 § 1915A(a). Here, Plaintiff seeks redress from the Department of Justice, a governmental agency. 23 Accordingly, 28 U.S.C. § 1915A(a) requires the Court to conduct a preliminary screening of the 24 operative complaint. 25 In its preliminary screening, the court must identify any cognizable claims and dismiss any 26 claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek 27 monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), 1 (9th Cir. 2020). Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement 2 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Specific facts 3 are not necessary; the statement need only “‘give the defendant fair notice of what the . . . claim is 4 and the grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations 5 omitted). While Rule 8 does not require detailed factual allegations, it demands more than an 6 unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, 556 U.S. 662, 7 677–78 (2009). A pleading that offers only labels and conclusions, or a formulaic recitation of the 8 elements of a cause of action, or naked assertions devoid of further factual enhancement does not 9 suffice. Id. 10 B. Amended Complaint 11 The amended complaint names as defendants Geo Group, Inc. and the United States of 12 America. Plaintiff identifies as African American and states that he suffers from the following 13 disabilities: PTSD, mental health disorders, and severe osteoarthritis in his back, shoulders, and 14 knees. Geo Group Inc. appears to run the federal residential re-entry center/halfway house at 15 which Plaintiff was housed at the time of the relevant events. 16 The amended complaint makes the following factual allegations. In September 2020, 17 Plaintiff was arrested without probable cause and without being charged with a violation of state 18 or federal law, or of the halfway house rules. Plaintiff was held in county jail for over two months 19 without being charged with a crime. Plaintiff was finally told that he was being detained for 20 impersonating a peace officer and unlawfully carrying a firearm. After his release from county 21 jail, Plaintiff was forced to remain in the custody of defendant Geo Group Inc. for a month before 22 being set free. 23 The amended complaint sets forth the following legal claims. 24 Plaintiff alleges that the failure of Geo Group employees to tell him why he was being 25 removed from the Geo Group-run halfway house and sent to jail, the failure of Geo Group 26 employees to provide him with written or verbal warning of a crime or halfway house violation, 27 and the attempt by Geo Group employees to cover up his arrest and detention violated the Fourth 1 speedy trial and confrontation of witnesses, and the Eighth Amendment prohibition against cruel 2 and unusual punishment; and which deprived him of the citizenship rights set forth in Section 1 of 3 the Fourteenth Amendment. Plaintiff further alleges that the Geo Group’s actions denied him drug 4 and alcohol treatment and medical treatment due to his race and his disabilities, in violation of the 5 Americans with Disabilities Act, the Civil Rights Act of 1964, and “60 Am. Jur.2d Penal and 6 Correctional Etc. 122.” Plaintiff also alleges that the Geo Group Inc. improperly denied him the 7 services of a halfway house in violation of the United States Probation and Pretrial Services 8 Halfway House Rules and Regulations. 9 Plaintiff alleges that defendant United States of America has falsely accused him twice of 10 firearms crimes, despite having no evidence supporting such accusations, in violation of the 11 LEOSA Reform Act, the Fourth Amendment’s prohibition on unreasonable search and seizure, the 12 Sixth Amendment right to a speedy trial and to confront one’s witnesses, the “Fifth Amendment – 13 Trial and Punishment, Compensation for Taking,” and the Eighth Amendment prohibition against 14 cruel and unusual punishment; and which deprived him of the citizenship rights set forth in 15 Section 1 of the Fourteenth Amendment. Plaintiff further alleges that defendant United States of 16 America denied him reasonable accommodations by a federally contracted facility due to his race 17 and his disabilities, in violation of the Americans with Disabilities Act, the Civil Rights Act of 18 1964, and 60 Am. Jur.2d Penal and Correctional Etc. 122. Plaintiff also alleges that defendant 19 United States of America improperly denied him the services of a halfway house in violation of 20 the United States Probation and Pretrial Services Halfway House Rules and Regulations. 21 Plaintiff seeks compensatory, statutory, and punitive damages. ECF No. 49 at 10. 22 The Court DISMISSES with prejudice the claim for violation of 60 Am. Jur.2d Penal and 23 Correctional Etc. 122. The American Jurisprudence, Second Edition, is a legal encyclopedia that 24 generally summarizes legal principles but the summaries are not law. To the extent that Plaintiff 25 believes that Defendants have taken actions inconsistent with legal summaries set forth in the 26 American Jurisprudence, 2d ed., this fails to state a claim for relief. 27 The Court DISMISSES with prejudice the claim for violation of the United States 1 any rules and regulations promulgated by the United States Probation and Pretrial Services, and 2 any such rules and regulations are not federal law. 3 The Court DISMISSES with prejudice the claim for violation of the Americans with 4 Disabilities Act (“ADA”) because the ADA does not apply to the United States or federal 5 agencies. See 42 U.S.C. § 12131(1)(A) & (B) (“public entity” includes any state or local 6 government or any department, agency, special purpose district or other instrumentality of a state 7 or states or local government); see, e.g., Claget v Woodring, C No. CV 08-6251-JFW (MAN), 8 2008 WL 11461743, at *4 (C.D. Cal. Oct. 29, 2008) (collecting cases).1 9 The Court DISMISSES the constitutional claims against Geo Group, Inc. with prejudice. 10 With respect to the claims that Geo Group has violated the Fourth, Sixth, Eighth, and Fourteenth 11 Amendment, there is no private right of action for damages against private entities acting under 12 color of federal law. Corr. Svcs. Corp. v. Malesko, 534 U.S. 61 (2001) (Bivens does not confer 13 right of action for damages against private entities acting under color of federal law; holding that 14 private corporation operating halfway house under contract with Bureau of Prisons therefore not 15 subject to suit seeking damages for negligence). 16 The Court DISMISSES the remainder of the amended complaint with leave to amend, 17 noting the following deficiencies in the remaining claims. 18 The Title VI of the Civil Rights Act of 1964 claim suffers from the following deficiency. 19 Title VI of the Civil Right Act of 1964 provides: “No person in the United States shall, on the 20 ground of race, color, or national origin, be excluded from participation in, be denied the benefits 21 of, or be subjected to discrimination under any program or activity receiving Federal financial 22 1 The Rehabilitation Act, the precursor to the ADA, applies to federal agencies, contractors, and 23 recipients of federal financial assistance. See Lovell v. Chandler, 303 F.3d 1039, (9th Cir. 2002). However, the allegations in the amended complaint also fail to state a claim for violation of the 24 Rehabilitation Act. Section 504 of the Rehabilitation Act of 1973, as amended and codified in 29 U.S.C. § 794(a), provides that “[n]o otherwise qualified individual with a disability, as defined in 25 Section 702(20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or 26 activity receiving federal financial assistance.” 29 U.S.C. § 794(a). Here, to the extent that Plaintiff was denied access to drug and alcohol treatment or other programming from the halfway 27 house operated by Geo Group, Inc., the denial was effected by his removal from the halfway 1 assistance.” 42 U.S.C. § 2000d. Here, to the extent that Plaintiff was denied access to drug and 2 alcohol treatment or other programming from the halfway house operated by Geo Group, Inc., the 3 denial was the result of his removal from the halfway house. There are no allegations from which 4 it can be reasonably inferred that Plaintiff was arrested because of his race. Plaintiff’s conclusory 5 allegation that he was “discriminated against based on [his] race and disabilities” is insufficient to 6 state a Title VI claim. 7 The Law Enforcement Officers Enforcement Safety Act (“LEOSA”) claim suffers from the 8 following deficiency. LEOSA is “a federal statute that establishes the right of qualified law 9 enforcement officers, both active and retired, to carry a concealed weapon if they meet certain 10 conditions.” McMillan v. Garland, No. CV-21-00911-PHX-SPL, 2022 WL 44673, at *3 (D. Ariz. 11 Jan. 5, 2022). There is no private right of action under LEOSA unless the officer already has the 12 identification and certification required by 18 U.S.C. § 926C(d). Acosta v. City of Chino, C No. 13 CV 18-914 DSF (KKx), 2021 WL 9700611, at *8 (C.D. Cal. Sept. 1, 2021); see also Risby v. 14 Johnson, C No. SACV 15-011119 AG (JCGx), 2016 WL 11760588, at *2-*3 (C.D. Cal. Feb. 22, 15 2016) (no private right of action under LEOSA, collecting cases). Although Plaintiff alleges that 16 “at the time of [his] arrest, [he] had [his] retired Federal law Enforcement Officer credentials and 17 my Department of Defense/Uniformed Services Identification and Privilege card on me from the 18 United States Military,” and that “[his] retired Federal law Enforcement Officer credentials 19 qualified [him] for Concealed Carry Authorized by the U.S. Department of Justice,” ECF No. 48 20 at 2, he fails to allege compliance with § 926C(d). For example, that section requires 21 “photographic identification issued by the agency from which the individual separated from 22 service as a law enforcement officer that identifies the person as having been employed as a police 23 officer or law enforcement officer,” but the identification attached to Swinton’s complaint 24 identifies him as a Human Resources Specialist. ECF No. 49-1 at 22. Section 926C(d) also 25 requires that Swinton possess “a certification issued by the State in which the individual resides or 26 by a certified firearms instructor that is qualified to conduct a firearms qualification test for active 27 duty officers within that State” showing that Swinton meets the active duty standards for firearms 1 Finally, the claims that federal officers violated Plaintiff’s constitutional rights cannot be 2 brought against the United States of America. “It is elementary that the United States, as 3 sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be 4 sued in any court define that court's jurisdiction to entertain the suit. A waiver of sovereign 5 immunity cannot be implied but must be unequivocally expressed.” United States v. Mitchell, 445 6 U.S. 535, 538 (1980) (citation, alterations, and internal quotation marks omitted). In Bivens v. Six 7 Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court recognized an implied 8 private right of action for damages against federal officers alleged to have violated a citizen’s 9 Fourth Amendment right to be free from unreasonable search and seizure. See Bivens, 403 U.S. at 10 392-97. The Supreme Court has only extended Bivens’ implied cause of action in two specific 11 situations: Fifth Amendment Due Process Clause gender discrimination, Davis v. Passman, 442 12 U.S. 228, 248-49 (1979), and Eighth Amendment inadequate medical treatment, Carlson v. Green, 13 446 U.S. 14, 17-19 (1980). “These three cases -- Bivens, Davis, and Carlson – represent the only 14 instances in which the [Supreme] Court has approved of an implied damages remedy under the 15 Constitution itself.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). The Supreme Court has 16 made clear that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” id. at 1857 17 (citation omitted), and will not be available if there are “‘special factors’ counseling hesitation in 18 the absence of affirmative action by Congress,” id. at 1848 (citation omitted); see also Chambers 19 v. C. Herrera, 78 F.4th 1100, 1103 (9th Cir. 2023) (“Under Egbert v. Boule, 142 S.Ct. 1793, most 20 claims seeking to expand Bivens are ‘dead on arrival’”) (citing to Harper v. Nedd, 71 F.4th 1181, 21 1187 (9th Cir. 2023)). Absent a waiver of sovereign immunity, the Bivens remedy exists solely 22 against individual federal officials, not against the United States. See Kreines v. United States, 33 23 F.3d 1105, 1109 (9th Cir. 1994). A Bivens action therefore “can be maintained against a 24 defendant in his or her individual capacity only, and not in his or her official capacity.” Daly- 25 Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). While Plaintiff may amend his claims to 26 name the individual federal officer that allegedly violated his constitutional rights, Plaintiff should 27 keep in mind the limitations on the Bivens remedy. 1 C. Motions to Dismiss (ECF Nos. 50, 51) 2 Defendants have filed motions to dismiss. ECF Nos. 50, 51. Given the Court’s screening 3 obligation, the Court DENIES these motions as moot. 4 CONCLUSION 5 For the foregoing reasons, the Court orders as follows. 6 1. The Court DENIES as moot the motions to dismiss filed by the Department of 7 Justice and the GEO Group. ECF Nos. 50, 51. 8 2. The Court DISMISSES the amended complaint with leave to amend. Within 9 twenty-eight (28) days of the date of this order, Plaintiff shall file a second amended complaint 10 || that addresses the identified deficiencies. The second amended complaint must include the 11 caption and civil case number used in this order, Case No. C 23-04276 JST (PR) and the words 12 || “SECOND AMENDED COMPLAINT” on the first page. If using the court form complaint, 5 13 || Plaintiff must answer all the questions on the form in order for the action to proceed. An amended 14 || complaint completely replaces the previous complaints. See Lacey v. Maricopa Cnty., 693 F.3d 3 15 896, 925 (9th Cir. 2012). Accordingly, Plaintiff must include in his second amended complaint all 16 || the claims he wishes to present and all of the defendants he wishes to sue, and may not incorporate 3 17 material from the prior complaints by reference. Plaintiff may not re-allege claims or defendants 18 that the Court has already dismissed with prejudice. Failure to file a second amended complaint in 19 accordance with this order in the time provided will result in dismissal of this action without 20 || further notice to Plaintiff. The Clerk shall include two copies of the court’s complaint form with a 21 copy of this order to Plaintiff. 22 This order terminates ECF No. 50, 51. 23 IT IS SO ORDERED. 24 || Dated: February 20, 2024 .

25 JON S. TIGAR 26 nited States District Judge 27 28