Cox v. Ashcroft et al

Filing 78

ORDER signed by District Judge David C. Bury on 2/19/09: Wackenhut Defendants' Motion to Dismiss 68 is GRANTED with prejudice; Federal Defendants' Motion to Dismiss 67 is GRANTED with prejudice; Final Judgment shall enter separately. (CASE CLOSED) (Hellings, J)

1 2 3 4 5 6 7 Billy Frank Cox, 8 9 10 11 12 13
The Wackenhut Defendants
1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

) ) CV-05-149-DCB P Plaintiff, ) ) vs. ) ) ORDER John Ashcroft, Harrell Watts, ) Jeff Campbell, et al., ) ) Defendants. ) _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ ) and the Federal Defendants2 have filed

14
Motions to Dismiss the First Amended Complaint pursuant primarily to

15
F e de ral Rules of Civil Procedure, Rule 12(b)(6) for failure to state

16
claims upon which relief may be granted.3

17
STATEMENT OF FACTS AND PROCEDURAL HISTORY

18
Plaintiff, Billy Frank Cox (Cox), filed this action, arising out

19
of his September 1, 1988 arrest, his subsequent criminal prosecution, and

20
his incarceration at a privately owned federal facility in Taft,

21 22 23 24 25 26 27 28
Federal Defendants: Ashcroft, Watts, Campbell, Faller, Bender and Scott. (Counts 10, 11, 12.)
3 2

Wackenhut Defendants: O'Rourke, Murray, Craig, Ben-Shmuel, Mack, Zoley, Calabrese, Andrews, Gary, Patrick, Pederson, Henley, Wiggins, T a ft Correctional Institution, Wackenhut Corrections Corporation. (Counts 1 - 9, 12.)

1

Haro,

Harvey,

The Court did not rely on any collateral documents outside the pleadings to resolve these motions. 1

1 California. Cox, a pro se prisoner, brought this action pursuant to 2 Bivens vs. Six Unknown Agents, 3 U.S.C.§§ 1983, 1985. 4
P l ai n ti f f' s action was originally filed in the United States 403 U.S. 388 (1971), as well as 42

5 District Court, District of Columbia. Thereafter, a motion to dismiss the 6 Complaint pursuant to Federal Rule of Civil Procedure, 12(b)(2) (lack of 7 p e rs o na l
jurisdiction), 12(b)(3) (improper venue) and 12(b)(4)

8 (insufficiency of service of process) and 12(b)(6) (failure to state a 9 claim upon which relief may be granted) was filed by the Wackenhut 10 Defendants. The remaining Federal Defendants also filed a motion to 11 dismiss, asserting the same and additional grounds advanced by the 12 Wackenhut Defendants. 13
That Court, in reviewing the motion to dismiss for lack of proper

14 venue, determined that venue in the District of Columbia was improper and 15 found
that venue would properly lie in the Central District of

16 California. The Court ordered that Plaintiff's action be transferred to 17 the United States District Court for the Central District of California 18 and denied the remainder of the Defendants' Motion to Dismiss, without 19 prejudice. Plaintiff's action was eventually properly transferred to the 20 Eastern District of California by Order dated January 10, 2005, where the 21 constitutional violations are alleged to have occurred and where venue 22 is now proper. 23
On April 18, 2005, the Wackenhut Defendants filed a Motion to On March 4, 2008, the First Amended Complaint

24 Dismiss (Doc. No. 35).

25 (FAC) was filed by the Plaintiff. On May 15, 2008, the Court ordered the 26 27 28
2

1 dismissal of various Judicial Defendants.4 On June 3, 2008, the Motion 2 to Dismiss was filed on behalf of the Federal Defendants (Doc. No. 67). 3 On June 6, 2008, the Wackenhut Defendants filed a second Motion to 4 dismiss. (Doc. No. 68.) 5 b r ie f s.
In June 2008, Plaintiff filed his Opposition

On November 25, 2008, this action was transferred for all

6 purposes to Judge David C. Bury of the United States District Court for 7 the District of Arizona. 8 9 A. 10
Fed.R.Civ.P. 12(b)(6) The Court's review of a motion to dismiss brought under LEGAL STANDARD

11 Fed.R.Civ.P. 12(b)(6) is limited to the complaint. Lee v. City of Los 12 A ngeles,
250 F.3d 668, 688 (9th Cir.2001). All material factual

13 allegations contained in the complaint "are taken as admitted" and the 14 complaint is to be liberally "construed in the light most favorable" to 15 the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Lee, 250 16 F.3d at 688. A complaint should not be dismissed under Fed.R.Civ.P. 17 12(b)(6), furthermore, "unless it appears beyond doubt that the plaintiff 18 can prove no set of facts in support of his claim which would entitle him 19 to relief." 20
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Dismissal under Fed.R.Civ.P. 12(b)(6) may be based upon "the lack

21 of a cognizable legal theory or the absence of sufficient facts alleged 22 under a cognizable legal theory."
Balistreri v. Pacifica Police Dept.,

23 901 F.2d 696, 699 (9th Cir.1990). Vague and mere "[c]onclusionary 24 allegations, unsupported by facts" are not sufficient to state a claim 25 26 27 28
On May 15, 2008, the Court ordered the dismissal with prejudice of the Judicial Defendants: Robert E. Coyle, Claudia Wilken, William B. Shubb, Lawrence J. O'Neill, Sandra Snyder and William M. Wunderlich. (Counts 13, 14, 15.) 3
4

1 under 42 U.S.C. § 1983. Jones v. Community Development Agency, 733 F.2d 2 646, 649 (9th Cir.1984); Pena v. Gardner, 976 F.2d 469, 471 (9th 3 Cir.1992). Thus, even though the Court is to construe the complaint 4 liberally, such construction "may not supply essential elements of the 5 claim that were not initially pled." 6
Pena, 976 F.2d at 471.

Before the Court may dismiss a pro se complaint for failure to

7 state a claim, it "must provide the pro se litigant with notice of the 8 deficiencies of his or her complaint and an opportunity to amend the 9 complaint prior to dismissal." 10 (9th Cir.1992); see also
McGuckin v. Smith, 974 F.2d 1050, 1055

Noll v. Carlson, 809 F.2d 1446, 1449 (9th

11 Cir.1987) (district court erred by not notifying pro se prisoner litigant 12 of amended complaint's deficiencies and allowing him leave to amend).5 13 14
As explained in greater detail below, none of the allegations in

15 the amended complaint state a viable Bivens claim against any of the 16 individually named Wackenhut Defendants or Federal Defendants. No further 17 amendments of the Complaint will be allowed. 18 B. 19
Bivens Plaintiff has filed what can only be interpreted as a purely Bivens

20 v. Six Unknown Fed. Narcotics Agents, 430 U.S. 388 (1971) action because 21 all of the Defendants are either federal prosecutors or Bureau of Prisons 22 (BOP) personnel and facilities.6
In Bivens, the Supreme Court held that

23 "a victim of a Fourth Amendment violation by federal officers may bring 24 25 26 27 28
P l ai n ti f f C o mp l ai n t.
6 5

has

been

afforded

the

opportunity

to

amend

his

Any claims pursuant to 42 U.S.C. §§1983, 1985 are legally deficient and dismissed as such, because no state actors have been named as defendants. 4

1 suit for money damages against the officers in federal court."

Malesko

2 v. Correctional Services Corp., 534 U.S. 61, 66 (2001). Subsequently, the 3 Supreme Court recognized the existence of an implied damages remedy for 4 violations of the Due Process Clause of the Fifth Amendment and the Cruel 5 and Unusual Punishment Clause of the Eighth Amendment by federal officers 6 as well. Id. at 67;see also
Davis v. Passman, 442 U.S. 228 (1979);

7 Carlson v. Green, 446 U.S. 14 (1980). Since Davis and Carlson, however, 8 the Supreme Court consistently has declined to extend Bivens liability 9 to new contexts or new categories of defendants. See 10 at 68.
Malesko, 534 U.S.

For example, in FDIC v. Meyer, 510 U.S. 471 (1994), the Supreme

11 Court "unanimously declined an invitation to extend Bivens to permit suit 12 against a federal agency," emphasizing that " `the purpose of Bivens is 13 to deter the officer,' not the agency." Malesko, 534 U.S. at 69 (quoting 14 Meyer, 510 U.S. at 485) (emphasis in original). Employing the same 15 reasoning it used in Meyer, the Supreme Court in Malesko further declined 16 to extend Bivens liability to a private corporation which had contracted 17 with the federal Bureau of Prisons to operate a community correctional 18 facility that housed federal inmates. Id. at 63, 70-74.The Supreme Court, 19 however, has yet to specifically address the question of whether or not 20 individual employees of such a private entity are themselves subject to 21 Bive ns liability. 22 courts,
have A number of lower courts, including two circuit this issue, but have come to conflicting

addressed

23 conclusions. For example, both the Fourth and Tenth Circuits have found 24 Bivens liability to be inapplicable to private individuals who are not 25 federal officers. See
Peoples v. CCA Detention Centers, 422 F.3d 1090

26 (10th Cir. 2005); Holly v. Scott 434 F.3d 287 (4th Cir. 2006). On the 27 other hand, at least two district courts have concluded otherwise. See 28
5

1 Purkey v. CCA Detention Center, 339 F.Supp.2d 1145 (D.Kan. 2004); Sarro 2 v. Cornell Corrections, Inc., 248 F.Supp.2d 52 (D.R.I. 2003).7 3
The Ninth Circuit has stated that "[ a]ctions under § 1983 and

4 those under Bivens are identical save for the replacement of a state 5 actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 6 940 F.2d 406, 409 (9th Cir.1991) (applying same statute of limitations 7 to Bivens actions as is applied to actions brought pursuant to section 8 1983); see also
Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996)

9 (applying rationale of Heck v. Humphrey, 512 U.S. 477 (1994), to Bivens 10 actions); Alexander v. Perrill, 916 F.2d 1392, 1396 (9th Cir.1990) 11 (applying same qualified immunity analysis to defendants in Bivens 12 actions as to those in section 1983 actions); Trotter v. Watkins, 869 13 F.2d 1312, 1318 (9th Cir.1989) (scope of immunity available same in both 14 actions). 15
To state a claim under 42 U.S.C. § 1983, a complaint must allege:

16 (i) the conduct complained of was committed by a person acting under 17 color of state law and (ii) the conduct deprived a person of a right, 18 privilege, or immunity secured by the Constitution or laws of the United 19 States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other 20 grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the 21 appropriate avenue to remedy an alleged wrong only if both of these 22 elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 23 24 25 26 27 28
The Ninth Circuit has not yet been directly presented with this issue, but has indicated that Bivens may be the proper vehicle for seeking recovery against individual employees of a private corporation that contracts with the federal government to operate its correctional institutions. See Agyeman v. Corrections Corporation of America, 390 F.3d 1101, 1104 (2004). The Court need not decide this issue in this case, however, because Plaintiff has failed to state a viable cause of action against any of the remaining named Defendants. 6
7

1 1985); see also Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D.Idaho 1996) 2 (both elements must be present to hold federal defendants liable under 3 either Bivens or section 1983) (quoting Leer v. Murphy, 844 F.2d 628, 632 4 (9th Cir. 1988)). 5
Plaintiff also must allege facts showing how the individually named caused or personally participated in causing the

6 D e fe n da n ts

7 constitutional harm alleged in the amended complaint. Arnold v. IBM, 637 8 F.2d 1350, 1355 (9th Cir.1981): see also Samuel, 980 F.Supp. at 1396 ("A 9 person deprives another of a constitutional right, within the meaning of 10 Bivens, if he does an affirmative act, participates in another's 11 affirmative acts, or omits to perform an act which he is legally required 12 to do that causes the deprivation complained of") (citing Leer, 844 F.2d 13 at 633). A defendant cannot be held liable pursuant to 42 U.S.C. § 1983, 14 or again in this case under Bivens, solely on the basis of supervisory 15 responsibility or position. Monell v. New York City Dept. of Social 16 Services, 436 U.S. 658, 694 n. 58 (1978); see also
Padway v. Palches,

17 665 F.2d 965, 968 (9th Cir.1982); Terrell, 935 F.2d at 1018 (respondeat 18 superior theory of liability inapplicable to Bivens actions). 19 20 A. 21
Wackenhut Defendants Generally, the Wackenhut Defendants claim that the FAC should be 1) Plaintiff failed to allege MOTIONS TO DISMISS

22 dismissed on the following grounds:

23 sufficient facts to state a cause of action; 2) No Bivens action will lie 24 against private entity defendants; 3) Warden Andrews was authorized to 25 limi t Plaintiff's access to the legal materials of another inmate; 4) 26 Immunity;
5) Improper service of process; 6) Failure to exhaust

27 administrative remedies; 7) Failure to state a cause of action for 28
7

1 conspiracy; and, 8) No standing to plead cause of action for violation 2 of Fair Labor Standards Act (FLSA). 3
Only the Tenth, Eleventh, and Twelfth Counts in the FAC pertain to The Tenth Count only references Defendant

4 the Wackenhut Defendants.

5 Andrews, the Warden at TCI when this action was commenced. Plaintiff 6 alleges that Andrews required him to work below the minimum wage, in 7 violation of the FLSA. Plaintiff alleges that Andrews retaliated against 8 him.
The Eleventh Count contains vague and conclusory allegations of

9 conspiracy against all Wackenhut Defendants in connection with his 10 petition for writ of habeas corpus. 11 and
conclusory allegations of The Twelfth Count against contains vague all Wackenhut

conspiracy

12 Defenda n t s .

A careful reading of the Twelfth Count reflects that

13 Plaintiff's complaints also pertain primarily to his petition for writ 14 of habeas corpus. Plaintiff alleges that following a search of his locker 15 and cubicle on March 21, 2003, he was issued an Incident Report when 16 prison officials discovered legal work belonging to another inmate. 17 Plaintiff alludes to the search on March 21, 2003, and the resulting 18 Incident Report, as "retaliation" against him for his assisting another 19 inmate. 20 B. 21
Federal Defendants The Federal Defendants herein submit that they are entitled to

22 absolute immunity, or in the alternative, qualified immunity. In effect, 23 Plaintiff is suing federal prosecutors for successfully prosecuting him. 24 At the time this action was filed, Plaintiff was in the custody of the 25 BOP serving a 210-month sentence for violating 21 U.S.C. § 841(A)(1) 26 (conspiracy
to manufacture and possess methamphetamine), at Taft

27 Correctional Institution. Plaintiff was convicted by a federal jury in 28
8

1 1989. Defendant Bender was the AUSA who tried his criminal case. 2 Plaintiff alleges that he filed a habeas corpus petition in 2001 and that 3 case was assigned to Judge Coyle and referred to Magistrate Judge Snyder 4 who issued a report and recommendation of dismissal. Plaintiff appealed 5 to the Ninth Circuit which dismissed the appeal for lack of jurisdiction. 6
Plaintiff filed another habeas petition in 2002 which petition was again

7 assigned to Judge Coyle and referred to Magistrate Judge O'Neill who 8 recommended dismissal. Once again, Plaintiff's petition was dismissed. 9 Judge Coyle declined to issue a certificate of appealability. Plaintiff 10 then sought a mandamus remedy in the Ninth Circuit but this was denied 11 in 2002. Defendants Faller, Craig, and Campbell are alleged to have been 12 counsel for the government in the two habeas cases and are sued on the 13 grounds that they convinced the Judicial Defendants to deny Plaintiff's 14 petitions. 15
Finally, Plaintiff contends that in 2006, while serving the

16 supervised release portion of his sentence, he submitted a petition for 17 writ of habeas corpus in the Northern District of California. The 18 petition was transferred to the new judicial district where, Plaintiff 19 contends, Defendants United States Attorney McGregor Scott and AUSA 20 Bender, assisted by BOP Attorney Campbell, filed a fraudulent response 21 to Plaintiff's petition, allegedly in conspiracy with Judge Shubb.
He

22 does not explain in what manner the response was "fraudulent." Federal 23 Defendants Scott and Bender are also alleged to have filed a motion to 24 dismiss which Judge Shubb granted in part. As a result of these actions, 25 Plaintiff alleges that he was deprived of his liberty, forced to incur 26 legal fees and expenses in excess of $35,000, lost income of at least 27 28
9

1 $ 4 50 , 00 0 ,

and

suffered

mental

anguish,

emotional

distress

and

2 h u mi l ia t io n . 3 4 A. 5 6
Wackenhut Defendants 1. Limitation on Access to Other Prisoner's Legal Work D I SC U SS I ON

Plaintiff alleges that, while incarcerated in Taft, his prison

7 l oc k er and cubicle were searched on March 21, 2003 by the Wackenhut 8 D e fe n da n ts .
The search disclosed that Plaintiff had legal papers

9 belonging to other inmates in his cell.

These items were treated as

10 contraband pursuant to 28 C.F.R. §§ 541. 11, 541.13 (Code 305). 11
Prisoners have no Fourth Amendment right to privacy in their cells. 28 Code of Federal

12 Hudson v. Palmer, 468 U.S. 517, 525-26 (1984).

13 Regulations, Section 543.11, provides in pertinent part as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
10 (c) Staff shall advise use an of inmate the of rules law and local

p ro c e d u r e s

governing

inmate

library.

Unauthorized possession of library materials by an inmate c o ns t it u te s a prohibited act, generally warranting

disciplinary action (see part 541 of this chapter). (d) An inmate's legal materials include but are not limited to the inmate's pleadings and documents (such as a presentence report) that have been filed in court or with

another judicial or administrative body, drafts of pleadings to be submitted by the inmate to a court or with other judicia l or administrative body which contain the inmate's name and/or case caption prominently displayed on the first page, documents pertaining to an inmate's administrative

case, photocopies of legal reference materials, and legal

1 2 3 4 5 6 7 8 9 10 11 12

r e fe r en c e

materials

which

are

not

available

in

the

institution main law library (or basic law library in a satellite camp). *** (2) Staff may allow an inmate to possess those legal

materials which are necessary for the inmate's own legal actions. Staff may also allow an inmate to possess the legal materials of another inmate subject to the limitations of paragraph (f)(2) of this section. The Warden may limit the a m ou n t of legal materials an inmate may accumulate for

security or housekeeping reasons. In addition, 28 Code of Federal Regulations, Section 543.11,

13 provides in pertinent part as follows: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
11 (2 ) Except as provided for in paragraph an inmate may possess the another other (f)(4) of this inmate's inmate in legal the

s e ct i on , m a te r ia l s

while

assisting

institution's main law library and in another location if the Warden so designates. (i) The assisting inmate may not remove another inmate's legal materials, including copies of the legal materials, f r om the law library or other designated location. An and

assisting inmate is permitted to make handwritten notes

to remove those notes from the library or other designated l o ca t ion if the notes do not contain a case caption or document title or the name(s) of any inmate(s). The assisting inmate may also develop and possess handwritten drafts of pleadings, so long as the draft pleadings do not contain a

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

c a se

caption

or

document

title

or

the

name(s)

of

any

inmate(s). These notes and drafts are not considered to be the assisting inmate's legal property, and when the assisting i nm a t e has these documents outside the law library or other d e si g na t ed location, they are subject to the property

limitations in § 553.11(a) of this chapter. *** (4) The Warden at any institution may impose limitations on an inmate'sassistance to another inmate in the interest of institution security, good order, or discipline. *** (j) . . . In no case shall the amount of personal legal materials be such as to pose a fire, sanitation, security, or housekeeping hazard. As set forth above, C.F.R. §543.11(f)(2)(i), Plaintiff, as the

16 "assisting inmate" may not remove another inmate's legal materials, 17 including copies of the legal materials, from the law library or other 18 designated location. Since Plaintiff had these documents outside the law 19 library, they were the proper subject of property limitations set forth 20 therein. 21
In sum, there was no constitutional injury derived from the search

22 and confiscation of the other inmate's legal materials. 23 24
2. Discipline for Violation of Prison Policies

Plaintiff was disciplined as a result of the findings from the

25 search and as a result, was fired from his prison job and lost telephone 26 use privileges for thirty days. Plaintiff's possession of anything not 27 28
12

1 authorized properly falls within the moderate category of the prohibited 2 acts and disciplinary severity scale, as follows: 3
28 Code of Federal Regulations, Section 541.13, provides for four

4 (4) categories of prohibited acts -- Greatest, High, Moderate, and Low 5 Moderate. Section 541.1(a) (3) provides as follows:
"(3) Moderate

6 category offenses. The Discipline Hearing Officer shall impose at least 7 one sanction A through N,
. . . " Included in Table 3, Prohibited Acts

8 and Disciplinary Severity Scale, to Section 541.13, are the Moderate 9 Category of offenses. Category 305 identifies the following offense: 10 "Possession of anything not authorized for retention or receipt by the 11 inmate, and not issued to him through regular channels." 12
In analyzing a due process claim, the Court must first decide

13 whether Plaintiff was entitled to any process, and if so, whether he was 14 denied any constitutionally-required procedural safeguard.
Liberty

15 interests which entitle an inmate to due process are "generally limited 16 to freedom from restraint which, while not exceeding the sentence in such 17 an unexpected manner as to give rise to protection by the Due Process 18 Clause of its own force, nonetheless imposes atypical and significant 19 hardship on the inmate in relation to the ordinary incidents of prison 20 life."
Sandin v. Conner, 515 U.S. 472, 484 (1995) (internal citations

21 omitted). 22
"[T]he Due Process Clause of the Fourteenth Amendment does not Walker v.

23 create a property or liberty interest in prison employment." 24 Gomez, 370 F.3d 969, 973 (9th Cir. 2004).

Similarly, prisoners have no See

25 constitutional right to educational programs or rehabilitation.

26 Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 846 (9th Cir. 27 1985) (no constitutional right to jobs and educational opportunities); 28
13

1 Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985) (no liberty or 2 property interest in vocational training); Hoptowit v. Ray, 682 F.2d 3 1 2 37 ,
1254-55 (9th Cir. 1982) (no constitutional right to

4 rehabilitation). Plaintiff does not have a liberty or property interest 5 in his employment while in prison. 6
Further, prisoners do have a First Amendment right to telephone

7 access, subject to reasonable limitations. Keenan v. Hall, 83 F.3d 1083, 8 1092 (9th Cir. 1996). A 30-day suspension of telephone privileges related 9 to a disciplinary action does not amount to a First Amendment violation. 10
Plaintiff has failed to state a due process violation or a First

11 Amendment violation, hence there is no cognizable Bivens constitutional 12 injury. 13 14
3. Retaliation and/or Conspiracy claims claimed that Defendants retaliated against him or

P l ai n t i f f

15 conspired to retaliate against him, because they felt that Plaintiff was 16 in some way assisting another inmate in the other inmate's lawsuit 17 against TCI staff members. 18
(FAC at 17 ¶104.)

A viable claim of First Amendment retaliation contains five basic

19 elements: (1) an assertion that a state actor took some adverse action 20 against an inmate (2) because of (3) that prisoner's protected conduct 21 and that such action (4) chilled the inmate's exercise of his First 22 Amendment rights (or that the inmate suffered more than minimal harm) and 23 (5) the action did not reasonably advance a legitimate correctional goal. 24 Rhodes v. Robinson, 408 F.3d 559, 567-58 (9th Cir. 2005); see also Hines 25 v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997) (retaliation claims require 26 an inmate to show that (1) the prison official acted in retaliation for 27 the exercise of a constitutionally-protected right and (2) the action 28
14

1 " advanced no legitimate penological interest").

To make out a prima

2 facie case of retaliation, the plaintiff has the burden of showing that 3 retaliation for the exercise of a protected right was the but-for factor 4 behind the defendant's conduct. 5 ( 2 00 6 ).
Hartman v. Moore, 547 U.S. 250, 258-60

If a plaintiff makes that showing, the burden shifts to

6 defendants to show that they would have engaged in the same conduct 7 anyway. Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 8 287 (1977). 9
P l ai n tiff correctly states that his legal assistance to other

10 inmates is protected by the First Amendment. Plaintiff asserts that the 11 discipline was retaliatory for exercising that constitutional right, yet 12 the Defendants in turn show that there were prison regulations that 13 Plaintiff violated and this was the basis for the discipline. The prison 14 rules reflect a legitimate peneological objective in the regulation of 15 when and where the legal assistance may occur. Such regulation does not 16 chill the exercise of that constitutional right. Hence, Plaintiff fails 17 to state a claim of retaliation or any concomitant constitutional injury. 18
A plaintiff must state specific facts, not mere conclusory Burns

19 statements,

to support the existence of an alleged conspiracy.

20 v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); Williams v. Sumner, 21 648 F. Supp. 510, 513 (D. Nev. 1986). Although "pro se pleadings are 22 liberally 23 involved,"
construed, particularly where civil rights claims are

Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th

24 Cir. 1990), a "liberal interpretation of a civil rights complaint may not 25 supp l y essential elements of the claim that were not initially pled." 26 Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 27 1982). 28
15 Plaintiff's complaint is completely devoid of any factual

1 allegations that the Wackenhut Defendants had an agreement or "meeting 2 of the minds" to conspire to violate Plaintiff's constitutional rights. 3 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 4 1 9 88 ) .
The Wackenhut Defendants correctly argue that Plaintiff made a

5 variety of vague and conclusory allegations of conspiracy. However, the 6 First Amended Complaint fails to set forth the essential facts as to the 7 specific acts of each Wackenhut Defendant that allegedly "carried the 8 conspiracy into effect, how those acts fit into the conspiracy, and how 9 the injury to the plaintiff was foreseeable therefrom." Graves v. United 10 States, 961 F. Supp. 314 (D.D.C. 1997). Other courts are in agreement as 11 to the necessity of pleading the essential facts in a conspiracy cause 12 o f action. For example, the Ninth Circuit has explained: "To state a 13 claim for a conspiracy to violate one's constitutional rights . . . , the 14 plaintiff must state specific facts to support the existence of the 15 claimed conspiracy." Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 16 1989) (per curiam). Claims based on vague and conclusory allegations, 17 which fail to specify each defendant's role in the alleged conspiracy, 18 are subject to dismissal. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 19 1992). 20
Plaintiff's conspiracy claims fail to set forth any specific facts

21 to show that the Wackenhut Defendants were engaged in a conspiracy. 22 Plaintiff cannot rely on conclusory statements to support his allegation 23 of constitutional injury. 24 25
4. Violation of Fair Labor Standards Act

In the Tenth Count of the First Amended Complaint, Plaintiff makes

26 the allegation that Warden Andrews required him to work as an inmate "at 27 below the minimum wage, in violation of the Fair labor Standards Act 28
16

1 (FLSA)." There is nothing within the BOP's policies, the Code of Federal 2 Regulations, or TCI's policies that provide for inmates to be paid 3 pursuant to the FLSA. In point of fact, TCI policy provides for inmate 4 pay at four (4) pay grade levels, in recognition of budgetary constraints 5 and for the effective management of the overall performance pay program. 6
Ultimately, Plaintiff lacks standing to bring this claim, as Coupar v.

7 prisoners are not employees within the meaning of the Act.

8 United States Dept. of Labor, 105 F.3d 1263, 1265-66 (9th Cir. 1997). 9 B. 10
Federal Defendants "As a result of Defendant's conduct, Plaintiff was detained without

11 bail and without warrant, was unable to post bail, was arraigned, was 12 forced to accept a court-appointed attorney, was forced to retain counsel 13 at great expense, was forced to enter a plea, was forced to go to trial, 14 was forced to undergo the ordeal of a trial, was found guilty under 15 totally false charges, was sentenced to an unusually harsh term of 16 imprisonment, was forced to file an appeal, and was made to suffer the 17 humiliation of the denial of the appeal, was forced into imprisonment on 18 false
charges and was forced to suffer the prolongation of his

19 unconstitutionally-executed sentence through the denial of his right to 20 habeas corpus relief." (FAC at 18 ¶115.)
Plaintiff goes on to name all

21 o f the prosecutors and BOP attorneys involved in his trial and post22 conviction habeas proceedings.8 23 24
1. Heck v. Humphrey

A prisoner's claim for damages is not cognizable under 42 U.S.C.

25 § 1983 if "a judgment in favor of the plaintiff would necessarily imply 26 the invalidity of his conviction or sentence," unless the prisoner 27
8

28

Counts One through Nine. 17

1 d e mo n st r at e s

that

the

conviction

or

sentence

has

previously

been

2 reversed, expunged, or otherwise invalidated. Heck v. Humphrey, 512 U.S. 3 477, 486 (1994).9 4 r e li e f. 5
This bar also extends to claims for declaratory

Edwards v. Balisok, 520 U.S. 641, 647-48 (1997).

If Plaintiff seeks the invalidation of his sentence, or any relief

6 which would result in immediate or speedier release, his exclusive remedy 7 is a petition for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 4888 90 (1973). Where a civil rights complainant alleges that police officers 9 lacked probable cause to arrest him and conspired to bring unfounded 10 criminal charges against him, the Court must apply the holding of Heck, 11 which bars a § 1983 action where judgment in a plaintiff's favor would 12 imply the invalidity of the sentence or conviction. Smithart v. Towery, 13 79 F.3d 951, 952 (9th Cir. 1996).
Therefore, any claims regarding lack

14 of probable cause for arrest and a conspiracy to bring unfounded criminal 15 charges against Plaintiff may only be reviewed by this Court if Plaintiff 16 can demonstrate that his conviction or sentence "has been reversed on 17 direct appeal, expunged by executive order, declared invalid by a state 18 tribunal authorized to make such determination, or called into question 19 by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 20 2254." 21 22 23 24 25 26 27 28
18 Heck, 512 U.S. at 486.

"[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose u n l a w f ulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U . S. C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983." Heck, 512 U.S. at 486-7.

9

1

The Ninth Circuit has held that Heck applies to challenges to the In Smithart, 79 F.3d at 952, plaintiff sought

2 validity of an arrest.

3 damages for, inter alia, excessive force used during the course of an 4 arrest that resulted in plaintiff's conviction. 5 d e fe n da n ts ,
"without probable cause, Plaintiff alleged that or justification"

authority,

6 assaulted, arrested, handcuffed and beat plaintiff. 7 a t 952.

Smithart, 79 F.3d

Summarizing the Supreme Court's decision in Heck the Court

8 stated: "if a criminal conviction arising out of the same facts stands 9 and is fundamentally inconsistent with the unlawful behavior for which 10 section 1983 damages are sought, the 1983 action must be dismissed." Id. 11 The
Court continued: "[t]here is no question that Heck bars

12 [plaintiff's] claims that defendants lacked probable cause to arrest him 13 and brought unfounded charges against him." Id. "If [plaintiff] wishes 14 to challenge his arrest, prosecution or conviction, he should file a writ 15 of habeas corpus." 16
Id.

Accordingly, because Plaintiff's entire claim is based on the arrest and 79 conviction, at 952.

17 incidents surrounding his alleged unlawful 18 Plaintiff's claim is barred by Heck.

Smithart,

F.3d

19 Plaintiff has challenged his conviction and sentence in every available 20 f o rum, yet his conviction has not been reversed, expunged or declared 21 invalid at any level.
See Heck, 512 U.S. at 486-87. Because Plaintiff

22 cannot show that his conviction has been reversed on appeal or called 23 into question by the issuance of a writ of habeas corpus, his claims 24 against the Prosecution Defendants must be dismissed pursuant to Heck, 25 512 U.S. at 481-82. Heck bars a plaintiff from bringing a suit for 26 violation of constitutional rights if a judgment in his favor would imply 27 the invalidity of his conviction or sentence. Id. at 487. It is clear 28
19

1 that Plaintiff's claims against the Federal Defendants are premised on 2 his belief that he was wrongly convicted and that his habeas petitions 3 should have been granted. As such, his claims are barred by Heck. 4 5
2. Imbler v. Pachtman Prosecutors are absolutely immune from liability under § 1983 (and

6 Bivens) for their conduct in "initiating a prosecution and in presenting 7 the State's case" insofar as that conduct is "intimately associated with 8 the judicial phase of the criminal process." Buckley v. Fitzsimmons, 509 9 U.S. 259, 270 (1993) (citing Imbler v. Pachtman, 424 U.S. 409, 430 10 (1976)); Burns v. Reed, 500 U.S. 478, 486 (1991) (quoting Imbler, 424 11 U.S. at 430-431); Ashelman v. Pope, 793 F.2d 1072, 1076 (9th Cir. 1986). 12
The Federal Defendants are absolutely immune, based on the

13 Plaintiff's allegations.

These allegations are premised on the notion

14 that Cox was wrongly convicted and that his habeas petitions should have 15 been granted. Cox cannot show, however, that any Court has found 16 unconstitutional error. Indeed, Plaintiff also sued every judge involved 17 in any aspect of his case, conviction through habeas proceeding.
These

18 Judicial Defendants have already been properly dismissed based on 19 absolute immunity. 20
Plaintiff is precluded from using this lawsuit as vehicle from

21 which to collaterally attack his 1989 criminal conviction. The bulk of 22 the
allegations are directed trial at as AUSA Bender who for participated the in

23 Plaintiff's

criminal

prosecutor

Government.

24 Accordingly, Bender is entitled to absolute immunity. See Ashelman, 793 25 F.2d at 1076 (the primary purpose of extending immunity to judges and 26 prosecutors is to ensure independent and disinterested decisionmaking); 27 Butz, 438 U.S. at 512 (absolute immunity is necessary to assure that 28
20

1 judges, advocates and witnesses can perform their respective functions 2 without harassment or intimidation); Imbler, 424 U.S. at 425 ("a 3 defendant will often transform his resentment at being prosecuted into 4 the
ascription of improper and malicious actions to the state's

5 a d vo c at e ") . 6
In an attempt to circumvent Bender's clear entitlement to absolute

7 immunity, Plaintiff alleges, in a conclusory fashion, that Bender was 8 acting as an investigator, rather than an attorney. Such an allegation 9 is a mere legal conclusion, rather than an allegation of fact. As such, 10 it is legally insufficient to defeat the assertion of prosecutorial 11 immunity. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989) (the 12 plaintiff must state specific facts to support the existence of a claimed 13 conspiracy).
Similarly, the allegations against AUSA Scott fail. BOP

14 attorney Campbell has been sued because he assisted in the filing of 15 briefs in an "of counsel" capacity. Campbell is absolutely immune to the 16 same extent as the AUSAs. See Butz, 424 U.S. at 512 (applying absolute 17 immunity to government agency counsel); Fry v. Melaragno, 939 F.2d 832, 18 837 (9th Cir. 1991) (same). Prosecuting attorneys are absolutely immune 19 from civil suits for damages relating to professional conduct which is 20 "intimately associated with the judicial phase of the criminal process," 21 I mb ler, 424 U.S. at 430 (1976), or which is "undertaken . . . in the 22 course of [their] role as an advocate for the State 23 Fitzsimmons, 509 U.S. 259, 273 (1993). 24
The only allegations against AUSA Faller, Craig1 0 and BOP attorney . . . " Buckley v.

25 Camp b e l l are that they, along with AUSA Scott, convinced the Judicial 26 Defendants to deny Cox's habeas applications. This is the quintessential 27
10

28

Wackenhut Defendant. 21

1 advocacy function of a prosecutor, and those who assist them, for which 2 these defendants are entitled to absolute immunity. Imbler, 424 U.S. at 3 430-31 (prosecutor's role in initiating a prosecution and presenting case 4 are covered by absolute immunity).
Ashcroft is sued purely in his

5 supervisory status as the former Attorney General of the United States, 6 which does not state a viable claim.
Supervisory officials are not

7 vicariously liable under Bivens. Terrell v. Brewer, 935 F.2d 1015, 1018 8 (9th Cir. 1991).11 9
Accordingly, the defects in Plaintiff's allegations against the

10 Federal Defendants cannot be resolved by more pleading. Therefore, the 11 allegations against all Federal Defendants will be dismissed with 12 prejudice and without leave to amend.1 2 13 14
C O NC L US I ON Pla i n t i f f's claims against the Federal Defendants are barred by

15 Heck, as well as Imbler. None of the activities complained of with any 16 factual specificity fell outside the official role of prosecutor. Imbler 17 v. Pachtman, 424 U.S. at 430. Further, Plaintiff has failed to show that 18 the Wackenhut Defendants caused any legally cognizable constitutional 19 injury from any of the activities complained of. 20 F.3d 801, 805 (9th Cir. 1998).
Crist v. Leippe, 138

Since amendment would be futile, the

21 Court will dismiss Plaintiff's First Amended Complaint without leave to 22 23 24 25 26 27 28
This action as it is directed to BOP individuals who ruled a g ai n st Plaintiff during the administrative grievance process, Defendants Haro and Watts, is fatally conclusory and vague. The claim a g ainst Defendant Harvey, BOP Contract Administrator, contains no specific allegation of any contact between the two. In addition, the Prison Litigation Reform Act forbids prisoners from filing actions for mental or emotional injury while in custody without a prior showing of physical injury. 42 U.S.C. § 1997e(e). Thus, Plaintiff's claim for mental anguish, emotional distress and humiliation must fail as a matter of law. 22
12 11

1 amend. See Foman v. Davis, 371 U.S. 178, 182, (1962); Lopez v. Smith, 203 2 F.3d 1122, 1127 (9th Cir. 2000). 3 4
A c co r di n gl y , IT IS ORDERED that the Wackenhut Defendants' Motion to Dismiss

5 (Doc. No. 68) is GRANTED with prejudice. 6
IT IS FURTHER ORDERED that Federal Defendants' Motion to Dismiss

7 (Doc. No. 67) is GRANTED with prejudice. 8
IT IS FURTHER ORDERED that all relief is denied against all named

9 Defendants and this action is DISMISSED in its entirety. Final Judgment 10 shall enter separately. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
23

D A T E D this 19 t h day of February, 2009.