Thomas v. Matevousian, et al.

Filing 17

FINDINGS and RECOMMENDATIONS recommending that this case be dismissed, with prejudice, for failure to state a claim under Bivens re 16 signed by Magistrate Judge Gary S. Austin on 10/18/2018. Referred to Judge Anthony W. Ishii; Objections to F&R due within 14-Days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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REGINALD R. THOMAS,

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Plaintiff,

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vs.
ANDRE MATEVOUSIAN, et al.,

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Defendants.

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FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITH PREJUDICE, FOR
FAILURE TO STATE A CLAIM UNDER
BIVENS
(ECF No. 16.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS

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1:17-cv-01592-AWI-GSA-PC

I.

BACKGROUND

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Reginald R. Thomas (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388

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(1971). On November 30, 2017, Plaintiff filed the Complaint commencing this action. (ECF

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No. 1.) On March 21, 2018, the court screened the Complaint and issued an order dismissing the

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Complaint for violation of Rule 8 of the Rules of Civil Procedure, with leave to file an amended

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complaint not exceeding twenty-five pages. (ECF No. 10.) On May 14, 2018, Plaintiff filed a

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First Amended Complaint, which is now before the court for screening. (ECF No. 16.)

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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).

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“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall

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dismiss the case at any time if the court determines that the action or appeal fails to state a claim

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upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not

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required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken

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as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores,

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Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state

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a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service,

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572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal

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conclusions are not.

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plausibility standard. Id.

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III.

Id.

The mere possibility of misconduct falls short of meeting this

SUMMARY OF FIRST AMENDED COMPLAINT

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Plaintiff is presently incarcerated at the United States Penitentiary (USP)-Atwater in

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Atwater, California, in the custody of the Federal Bureau of Prisons (BOP), where the events at

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issue in the First Amended Complaint allegedly occurred. Plaintiff names as defendants Andre

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Matevousian (Warden), Mary M. Mitchell (Western Regional Director), Ms. Cassidy

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(Administrative Remedy Coordinator), Ms. Ciufo (Disciplinary Hearing Officer), Mr. Fields

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(Special Investigations Administrator), Lieutenant Hayes (Special Investigations Specialist), Mr.

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Copus (Trust Fund Manager), Ms. Gardea (Special Investigations Administrator), Mr. Larson

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(Correctional Officer), Mr. Lyons (Counselor), Mr. Padgett (Case Manager), and Mr. Lopez

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(Correctional Officer) (collectively, “Defendants”).
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A summary of Plaintiff’s allegations follows.

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Placement in the SHU, Lost Privileges

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On November 18, 2016, a box arrived bearing Plaintiff’s name and number, shipped from

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Phoenix and allegedly containing five cell phones and approximately sixteen ounces of tobacco.

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Plaintiff was called to pick up the package and was met at the door of Receiving and Discharge

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(R&D) by defendant C/O Larson, who handed Plaintiff a blank property slip and told him to sign

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it. Defendant Larson asked Plaintiff to step into a holding cell. Larson left and returned with

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defendants Fields and Lopez, who stepped into the holding cell and questioned Plaintiff about

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the package. Plaintiff denied any knowledge of the package. Defendant Fields escorted Plaintiff

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to the SHU where he was placed under investigation.

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On November 21, 2016, Plaintiff was interviewed by defendant Lt. Hayes about the
package. Plaintiff again denied any knowledge of it.

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On December 20, 2016, defendants Warden Matevousian, Fields, Hayes, and others were

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doing rounds in the SHU. Plaintiff asked Hayes how his investigation was going and Hayes

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responded that the investigation was complete and that he would be released from the SHU soon.

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The Warden arrived and told Plaintiff he had signed off on his investigation that morning. On

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December 22, 2016, Plaintiff was released from the SHU without an incident report and moved

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to unit 6B.

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The next morning, Plaintiff inquired about having his trust fund account released from

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encumbrance, and the Warden said, “You got a shot” (meaning an incident report). ECF No. 16

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at 7.1 Plaintiff denied receiving an incident report and the Warden said, “Yes, you did, for trying

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to bring cell phones in my institution.” ECF No. 16 at 7. The Warden left, went to the

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Lieutenant’s office and had defendant Gardea file Plaintiff’s incident report. Plaintiff was given

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the report and taken back to the SHU.

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///

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All page numbers cited herein are those assigned by the court's CM/ECF system and not based
on the Plaintiff’s pagination of the complaint.
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About two months later, on February 3, 2017, Plaintiff went before the Disciplinary

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Hearing Officer, Ms. Ciufo, for a ten-minute hearing where he was found guilty of the incident

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based on photos of the cell phones and tobacco, and the signed property form which was no

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longer blank.

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On April 3, 2017, Plaintiff appealed his conviction. On March 15, 2018, the incident
report was expunged.

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Plaintiff alleges that defendants Matevousian, Mitchell, Ciufo, Fields, Hayes, Gardea,

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Larson, and Lopez conspired to trick Plaintiff into signing a blank property form to establish

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Plaintiff’s guilt. Matevousian placed Plaintiff in the SHU without probable cause. Gardia filed

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a false and misleading incident report. Mitchell was complicit in not investigating Plaintiff’s

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claims in his prison appeals.

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Plaintiff suffered loss of liberty, privileges, and quality of life in the SHU. He was

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confined twenty-three hours a day in a sixty-feet-square cell for five months. He was deprived

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of most of his personal property and the ability to work, attend educational and vocational

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programs, watch television, associate with other prisoners, attend outdoor recreation, engage in

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sports, attend meals with other prisoners, attend religious services, use the phone, and attend the

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commissary. Plaintiff also suffered emotional harm.

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Basic Supplies and Retaliation

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On May 12, 2017, USP-Atwater was placed on lockdown. At the time of the lockdown,

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Plaintiff was on indigent status. On May 16, 2017, Plaintiff advised his counselor, defendant

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Lyons, that he was on indigent status and needed basic necessities such as soap, toothpaste,

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deodorant, razors, shampoo, writing paper, and envelopes. Lyons said he would check out the

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supplies.

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Six days later, Plaintiff asked defendant Lyons about the supplies, and Lyons got upset

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and told Plaintiff, “I don’t have them in my pocket.” ECF No. 16 at 24. Plaintiff filed a complaint

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against defendant Lyons, and Lyons began to retaliate against Plaintiff.

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During the next forty days Plaintiff made several requests, including to defendants Lyons,

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Padgett, and Copus, but was unable to get his supplies. On June 14, 2017, when defendant Lyons
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made rounds in the unit, Plaintiff stopped him at his cell door, but Lyons said he was only seeing

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unit orderlies. Plaintiff was a unit orderly, as Lyons well knew because Lyons had hired Plaintiff

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as a unit orderly on May 10, 2017, which put Plaintiff under the supervision of defendant Lyons.

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It turned out that Lyons had hired Plaintiff for nefarious reasons, because on June 9, 2017, Lyons

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submitted a pay list to the trust fund department paying his orderlies, and Plaintiff was paid $6.00

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for the month of May. This was a farce designed by Lyons to justify not having provided Plaintiff

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with indigent supplies because Lyons took Plaintiff off of indigent status by paying him $6.00.

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Inmates with $6.00 or more in their accounts during a thirty-day period are not considered

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indigent. Thus, Plaintiff would have to pay for supplies. Records will show that Plaintiff was

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paid for work he did not do because Lyons posted Plaintiff’s job on May 10, 2012, and the prison

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went on lock down on May 12, 2017. BOP rules prohibit paying inmates for work they did not

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perform. During the entire forty-two days the prison was on lockdown, Plaintiff did not receive

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basic necessities.

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Defendants Warden Matevousian and Mitchell failed to intercede with their subordinates,

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which violated Plaintiff’s rights to necessities. Defendant Copus refused Plaintiff’s request on

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June 6, 2017, for supplies, depriving Plaintiff of basic human necessities required by law.

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Plaintiff suffered emotional distress.

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Defendant Lyons also denied Plaintiff complaint forms to prevent Plaintiff from

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redressing his grievances, and conspired with others to obstruct Plaintiff’s right to access the

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courts.

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Access to Courts -- Administrative Appeals Process

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Under the PLRA, Plaintiff is required to exhaust his administrative remedies before

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bringing suit, and inmates are required to follow the BOP’s procedures when filing a complaint.

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42 U.S.C. § 1997e et seq., There are four levels to the process, BP-8, BP-9, BP-10, and BP-11.

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Plaintiff has filed more than twenty-five administrative complaints. Plaintiff’s rights to access

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the courts were violated during the appeals process because his appeals were often rejected based

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on the rationale of defendant Cassidy, Administrative Remedy Coordinator, without just cause.

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Defendants Lyons, Cassidy, Matevousian, and Mitchell have used various methods to hinder

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Plaintiff from redressing his grievances and therefore denying him access to the courts.

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On May 22, 2017, Plaintiff filed a BP-8 complaint against defendant Lyons. Ordinarily

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Lyons has five days in which to respond, but Plaintiff did not receive his complaint back until

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two months later.

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On June 22, 2017, Plaintiff filed five BP-8 complaints, which were not returned to him

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until a month later. Plaintiff requested a memo from defendant Lyons to reflect that Plaintiff was

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not the cause for late appeals, but Lyons refused. Consequently, Plaintiff’s appeals were rejected

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as untimely.

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Lyons frequently stamps Plaintiff’s complaints with the instructions, “You must first

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make an effort to informally resolve and list staff contacted before filing a BP-9.” ECF No. 16

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at 15. Plaintiff alleges this is wholly incorrect because the BP-8 form does not require this.

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Defendants Cassidy, Warden Matevousian, and Regional Director Mitchell support Lyons in this

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erroneous claim. Lyons is erroneously interpreting the instructions. As a result, Lyons holds

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Plaintiff’s BP-8 forms longer than a reasonable amount of time and returns them without

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investigation with the stamped statement.

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On August 4, 2017, Plaintiff spoke to defendant Cassidy about his rejected complaints

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and explained how defendant Lyons was incorrectly processing them. Defendant Cassidy

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suggested that Plaintiff talk to Lyons again.

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refused to provide a memo.

Plaintiff spoke to Lyons again, and Lyons still

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On September 1, 2017, Plaintiff received notification from the Western Regional Office

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that his complaint #909751-R1 was delivered back to USP-Atwater for further review. In this

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complaint, Plaintiff showed that defendant Lyons was committing fraud on the BOP by turning

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in pay slips to pay Plaintiff for work he never performed. This complaint somehow mysteriously

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disappeared.

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Other complaints were either delayed by Defendants, never responded to, or just came up

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missing. On November 17, 2017, defendant Lyons returned three complaints to Plaintiff which

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had been responded to on October 15, 2017, October 24, 2017, and October 31, 2017. Plaintiff
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had twenty days in which to appeal these complaints. Two of them were already out of time, and

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the third one was due in three days. Defendant Lyons refused to provide Plaintiff with a memo.

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Plaintiff filed a complaint to the Warden’s office concerning defendant Lyons’ delays in

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returning complaints and his refusal to provide Plaintiff with a memo showing it was staff’s fault.

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The Warden responded that Plaintiff must file a BP-8 before filing a BP-9 to his office.

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Relief

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Plaintiff requests monetary damages for emotional harm, injunctive and declaratory

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relief, and attorney’s fees and costs.

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IV.

PLAINTIFF’S CLAIMS

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Plaintiff brings Bivens claims under the First, Fifth, and Eighth Amendments.

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A.

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A Bivens action is the federal analog to suits brought against state officials under 42

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U.S.C. § 1983. Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695 (2006). The basis of a Bivens

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action is some illegal or inappropriate conduct on the part of a federal official or agent that

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violates a clearly established constitutional right. Baiser v. Department of Justice, Office of U.S.

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Trustee, 327 F.3d 903, (9th Cir. 2003). “To state a claim for relief under Bivens, a plaintiff must

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allege that a federal officer deprived him of his constitutional rights.” Serra v. Lappin, 600 F.3d

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1191, 1200 (9th Cir. 2010) (citing see Shwarz v. United States, 234 F.3d 428, 432 (9th Cir. 2000).

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A Bivens claim is only available against officers in their individual capacities. Morgan v. U.S.,

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323 F.3d 776, 780 n.3 (9th Cir. 2003); Vaccaro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996). “A

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plaintiff must plead more than a merely negligent act by a federal official in order to state a

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colorable claim under Bivens.” O’Neal v. Eu, 866 F.2d 314, 314 (9th Cir. 1988). Prisoners

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proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed

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and to have any doubt resolved in their favor. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

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(citations omitted).

Bivens

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Relief under Bivens does not encompass injunctive and declaratory relief where the

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equitable relief sought requires official government action. Solida v. McKelvey, 820 F.3d 1090,

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1093-94 (9th Cir. 2016). Bivens is both inappropriate and unnecessary for claims seeking solely
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equitable relief against actions by the federal government; by definition, Bivens suits are

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individual capacity suits and thus cannot enjoin official government action. Id. at 1094-95.

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Therefore, Plaintiff is not entitled to injunctive or declaratory relief in this action.

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A Bivens claim is brought against the individual official for his or her own acts, not the

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acts of others. Ziglar v. Abbasi, 137 S. Ct. 1843, 1860 (2017). Bivens is not designed to hold

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officers responsible for acts of their subordinates. Id. Government officials may not be held

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liable, under § 1983 or a Bivens action, for unconstitutional conduct of their subordinates under

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a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 676 (2009).

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Bivens After Ziglar v. Abbasi

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“The Supreme Court has recently made clear that ‘expanding the Bivens remedy is now

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a disfavored judicial activity,’ and has ‘consistently refused to extend Bivens to any new context

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or new category of defendants.’” Buenrostro v. Fajardo, 1:14-cv-00075-DAD-BAM (PC), 2017

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WL 6033469, at *2 (E.D. Cal. Dec. 5, 2017) (quoting Ziglar, 137 S.Ct. at 1857). “Ziglar sets

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forth a two-part test to determine whether a Bivens claim may proceed.” Buenrostro, 2017 WL

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6033469, at *2. “A district court must first consider whether the claim presents a new context

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from previously established Bivens remedies.” Id. “If so, it must then apply a ‘special factors’

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analysis to determine whether ‘special factors counsel hesitation’ in expanding Bivens absent

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affirmative action by Congress.” Id. (quoting Ziglar, 137 S.Ct at 1857, 1875.)

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“‘If [a] case is different in a meaningful way from previous Bivens cases decided by [the

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Supreme Court], the context is new.’” Buenrostro, 2017 WL 6033469, at *2 (quoting Ziglar, 137

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S.Ct. at 1859). “Ziglar provides several examples of differences meaningful enough to make a

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given context a new one, including ‘the constitutional right at issue.’”2 Buenrostro at *2 (quoting

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Ziglar at 1860). “To date, the Supreme Court has only recognized a Bivens remedy in the context

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2 “A case might differ in a meaningful way because of the rank of the officers involved; the
constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to
how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential special factors that previous Bivens cases did not consider.” Ziglar, 137 S.
Ct. at 1860.

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of the Fourth, Fifth, and Eighth Amendments.” See Bivens, 403 U.S. 388 (Fourth Amendment

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prohibition against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979)

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(Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth

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Amendment Cruel and Unusual Punishments Clause for failure to provide adequate medical

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treatment).

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The Supreme Court has “consistently refused to extend Bivens to any new context or new

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category of defendants.” Ziglar, 137 S.Ct. at 1857. If a claim presents a new context in Bivens,

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then the court must consider whether there are special factors counseling against extension of

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Bivens into this area. Id. The Supreme Court’s precedents “now make clear that a Bivens remedy

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will not be available if there are ‘special factors counselling hesitation in the absence of

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affirmative action by Congress.’” Id. “[I]f there is an alternative remedial structure present in a

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certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of

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action.” Id.

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Since Ziglar v. Abassi, the Ninth Circuit has found a Bivens remedy available in three

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situations. See Brunoehler v. Tarwater, No. 16-56634, 2018 WL 3470210 (9th Cir. July 19,

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2018) (Fourth Amendment - arrest by Agents in home without probable cause); Rodriguez v.

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Swartz, 899 F.3d 719, 744 (9th Cir. 2018) (Fourth Amendment - unjustifiable cross-border killing

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of someone simply walking down a street in Mexico); and Lanuza v. Love, 899 F.3d 1019, 1034

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(9th Cir. 2018) (Fifth Amendment due process - government attorney intentionally submitted a

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forged document in an immigration proceeding to completely bar an individual from pursuing

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relief to which he was entitled).

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B.

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Plaintiff claims that he was retaliated against because he filed administrative complaints

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at USP-Atwater. Plaintiff also claims that his right to access the courts was violated during the

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administrative complaint process at USP-Atwater. These claims are brought under the First

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Amendment.

First Amendment Claims -- Access to Courts and Retaliation

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Here, Plaintiff seeks to extend a Bivens remedy for violations of the First Amendment

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through both retaliation and denial of access to courts. The Supreme Court has never implied a
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Bivens action under any clause of the First Amendment. See Reichle v. Howards, 566 U.S. 658,

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663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims.”). As

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Plaintiff’s First Amendment claims clearly present new contexts in Bivens, this requires the

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consideration of any special factors counseling against extension of Bivens into these areas,

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including whether there is any alternative, existing process for protecting Plaintiff’s interests.

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While the Ninth Circuit has previously held that Bivens may be extended to First

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Amendment claims, Gibson v. United States, 781 F.2d 1334, 1342 (9th Cir. 1986) (permitting

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First Amendment retaliation claim under Bivens); Moss, 572 F.3d at 967 n.4 (noting Bivens

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extends to First Amendment damages claims), it has recently revisited this question in light of

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Ziglar, see Vega v. United States, 881 F. 3d 1146, 1154 (9th Cir. Feb. 7, 2018) (declining to

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extend Bivens remedy to First Amendment access to courts and Fifth Amendment procedural

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due process claims against private employees of residential reentry center), Reid v. United States,

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No. 114CV01163LJOMJSPC, 2018 WL 1588264, at *1–3 (E.D. Cal. Apr. 2, 2018). These

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earlier Ninth Circuit cases are therefore not controlling.

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As discussed in Ziglar, “the existence of alternative remedies usually precludes a court

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from authorizing a Bivens action.” Winstead v. Matevousian, No. 117CV00951LJOBAMPC,

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2018 WL 2021040, at *2–3 (E.D. Cal. May 1, 2018), objections overruled, No.

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117CV00951LJOBAMPC, 2018 WL 3357437 (E.D. Cal. July 9, 2018) (quoting Ziglar, 137 S.Ct.

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at 1865). It is clear that Plaintiff had alternative remedies available to him, including the Bureau

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of Prisons administrative grievance process, a federal tort claims action, the filing of a writ of

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habeas corpus, Winstead, 2018 WL 3357437, at *2, and Bivens claims to the extent that any

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alleged retaliation or denial of access to courts took the form of conduct that has already been

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determined by the Supreme Court to be actionable under Bivens, Reid, 2018 WL 1588264, at

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*1–3 (citing see Vega, 881 F. 3d at 1154 (availability of administrative remedies and tort claims

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counseled against extending Bivens remedy); Buenrostro, 2017 WL 6033469, at *2-4 (declining

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to infer Bivens remedy for First Amendment retaliation claim). Additionally, where a prisoner

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faces ongoing retaliation, he may seek injunctive relief. See 18 U.S.C. § 3626(a)(2); Corr. Servs.

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Corp. v. Malesko, 534 U.S. 61, 74 (2001) (observing that injunctive relief has long been
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recognized as proper means for altering unconstitutional policy); Solida, 820 F.3d at 1096 (noting

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a waiver of sovereign immunity under the Administrative Procedure Act for injunctive relief)).

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Indeed, Plaintiff alleges that he utilized the administrative grievance process in an effort to

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resolve his claims.

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For the foregoing reasons, the court finds that special factors counsel hesitation in these

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new contexts, and declines to find an implied Bivens cause of action for First Amendment

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retaliation or First Amendment denial of access to courts. Winstead, 2018 WL 2021040, at *2–

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3 (citing see, e.g., Free v. Peikar, 2018 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) (noting that

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nationwide, district courts seem to be in agreement that, post–[Ziglar], prisoners have no right to

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bring a Bivens action for violation of the First Amendment)).

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Accordingly, Plaintiff fails to state a claim for retaliation or denial of access to courts

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under the First Amendment. These deficiencies are not subject to cure by amendment of the

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complaint and therefore should be dismissed without leave to amend.

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C.

Fifth Amendment Due Process -- SHU Term, Loss of Indigent Status,
Appeals Process

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Plaintiff brings claims for violation of his rights under the substantive and procedural

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clauses of the Fifth Amendment. The Due Process Clause of the Fifth Amendment provides that

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no person “shall be deprived of life, liberty, or property, without due process of law.” U.S. Const.

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amend. V. The due process guarantees of the Fifth Amendment “include a substantive

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component, which forbids the government to infringe certain ‘fundamental’ liberty interests at

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all, no matter what process is provided, unless the infringement is narrowly tailored to serve a

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compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993) (emphasis omitted). “A

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threshold requirement to a substantive or procedural due process claim is [a] plaintiff’s showing

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of a liberty or property interest protected by the Constitution.” Wedges/Ledges of Cal., Inc. v.

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City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994); Wilkinson v. Austin, 545 U.S. 209, 221, 125

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S.Ct. 2384, 2393 (2005).

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The Supreme Court has never recognized a Bivens remedy for a Fifth Amendment due

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process claim relating to the alleged failure of a prison official to provide due process, or
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extended Bivens to a case involving the substantive and procedural clauses of the Fifth

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Amendment. Lanuza, 899 F.3d at 1026. The Ninth Circuit, however, found a Bivens remedy

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available in a case concerning an individual attorney’s violation of the plaintiff’s due process

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rights in a routine immigration proceeding. Id. at 1027.

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Here, Plaintiff alleges that he was placed in the SHU without a finding of probable cause

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and detained in the SHU without a hearing. Plaintiff also alleges that his status as an indigent

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inmate was wrongfully changed, which caused him to lose privileges he was entitled to under

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indigent status. In addition, Plaintiff alleges that Defendants failed to properly process his

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administrative complaints.

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“[T]he first question a court must ask in a case like this one is whether the claim[s] arise[]

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in a new Bivens context, i.e., whether the case is different in a meaningful way from previous

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Bivens cases decided by [the Supreme] Court.” Ziglar, 137 S.Ct. at 1864 (internal quotation

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marks and citation omitted). “[A] case can present a new context for Bivens purposes if it

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implicates a different constitutional right; if judicial precedents provide a less meaningful guide

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for official conduct; or if there are potential special factors that were not considered in previous

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Bivens cases.” Id. Here, Plaintiff’s Fifth Amendment due process claims clearly present new

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contexts in Bivens.

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The court next looks to whether special factors counsel judicial hesitation. Id. at 1857.

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Judicial hesitation is appropriate where there are valid, alternative remedies available. Id.; see

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Vega, 881 F. 3d at 1154. As with Plaintiff’s First Amendment claims, Plaintiff had alternative

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remedies available to him, including the BOP’s administrative grievance process, which Plaintiff

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alleges that he utilized in this case. Where Congress has established an alternative remedial

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structure to protect a constitutional right, the Supreme Court has strongly cautioned that the

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courts should not create a second remedy. See id. at 1154–55 (declining to recognize Bivens

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action for due-process violation when alternative remedial structures were available). Thus, the

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availability of alternative remedies to Plaintiff counsels against the creation of a Bivens remedy

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in this case. Therefore, the court declines to imply a Bivens remedy under the Fifth Amendment

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against defendants in this action and finds that Plaintiff fails to state a Bivens claim under the
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Fifth Amendment for violation of due process based on Plaintiff’s SHU term, loss of indigent

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status, or improper processing of his administrative complaints Plaintiff is unable to cure the

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defects in his due process claims with any amendment. Therefore, Plaintiff’s Fifth Amendment

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claims should be dismissed with prejudice, without leave to amend.

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D.

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Eighth Amendment Conditions of Confinement -- No Access to Basic
Supplies

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The nature of Plaintiff’s Eighth Amendment claims includes assertions that he was denied

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basic supplies such as soap, toothpaste, deodorant, razors, shampoo, writing paper, and

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envelopes, for more than forty days, despite several requests to defendants Lyons, Padgett, and

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Copus.

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As indicated above, in Carlson, the Supreme Court extended Bivens to a claim arising

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from the Cruel and Unusual Punishments Clause of the Eighth Amendment based on the failure

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to provide adequate medical treatment. 446 U.S. 14. In this case, Plaintiff’s claim under the

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Eighth Amendment that correctional officers failed to provide him with basic supplies is not

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exactly the same as a claim for deliberate indifference to a serious medical need. See Carlson,

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446 U.S. at 16 n.1. The mere fact that Plaintiff alleges a violation of a constitutional right does

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not conclusively establish that Bivens extends to Plaintiff's constitutional claim. Therefore, the

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court must determine whether Plaintiff’s claim presents a “new Bivens context.” Abbasi, 137

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S.Ct. at 1860. The Abbasi Court explained that “[i]f the case is different in a meaningful way

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from the previous Bivens cases decided by this Court, then the context is new.” Id. at 1859.

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Although the Abbasi Court did not provide “an exhaustive list of differences that are meaningful

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enough to make a given context a new one,” the Court did provide the following “instructive”

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examples:

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A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the
official action; the extent of judicial guidance as to how an officer should respond
to the problem or emergency to be confronted; the statutory or other legal mandate
under which the officer was operating; the risk of disruptive intrusion by the
Judiciary into the functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.
Id. at 1859-60.
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In Carlson, the plaintiff brought a Bivens suit under the Eighth Amendment on behalf of

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her deceased son’s estate, alleging that while her son was a prisoner in a federal prison in Indiana,

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he suffered personal injuries from which he died because prison officials failed to give him proper

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medical attention. Carlson, 446 U.S. at 14.

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Here, Plaintiff brings a Bivens suit under the Eighth Amendment alleging that three

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prison officials -- a hearing officer, a correctional officer, and a counselor -- denied his requests

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to be provided with basic supplies for more than forty days.

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Both Carlson and the case at hand concern violation of the Eighth Amendment, which

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protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. In

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Carlson, the plaintiff claims that prison officials failed to provide him with medical care, while

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in this case Plaintiff claims that prison officials failed to provide him with basic necessities. Both

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cases involve direct Eighth Amendment allegations against individual officers for specific

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actions taken against an individual inmate.

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appropriate. Carlson, 446 U.S. 14. Based on these facts, the court finds that Plaintiff’s similar

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direct Eighth Amendment claim here is not a Bivens expansion. Accordingly, the undersigned

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finds that Plaintiff’s Eighth Amendment claim does not present “a new Bivens context.”

Further, in both cases a damages remedy is

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Nonetheless, even if Plaintiff proceeds with his claim under Bivens, he fails to state a

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claim because Plaintiff’s deprivation does not rise to the level of an Eighth Amendment claim.

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As a general matter, prohibited punishments include those which “involve the unnecessary and

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wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 203, 97 S.Ct. 285, 290 (1976)

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(quoting Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976). Only those conditions

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depriving inmates of “the minimal civilized measure of life’s necessities” are sufficiently grave

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to form the basis of an Eighth Amendment violation. Rhodes v. Chapman, 452 U.S. 337, 347,

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101 S.Ct. 2392, 2399 (1981). The Eighth Amendment does not mandate comfortable prisons.”

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Id. As the Supreme Court held in Hudson, “Because routine discomfort is ‘part of the penalty

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that criminal offenders pay for their offenses against society,’ Rhodes, 452 U.S. at 347, ‘only

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those deprivations denying “the minimal civilized measure of life’s necessities” are sufficiently

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grave to form the basis of an Eighth Amendment violation.” Hudson v. McMillian, 503 U.S. 1,
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9, 12 S.Ct. 995, 1000 (1992) (internal citations omitted). Plaintiff was not denied “the minimal

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civilized measure of life’s necessities” when he did without soap, toothpaste, deodorant, razors,

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shampoo, writing paper, and envelopes for approximately forty days. There are no allegations

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of any injury resulting from the deprivation. Therefore, the allegations in Plaintiff’s Complaint

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do not present a claim of constitutional magnitude, and Plaintiff fails to state a cognizable Eighth

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Amendment claim.

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E.

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Plaintiff is advised that the Prison Litigation Reform Act provides that “[n]o Federal civil

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action may be brought by a prisoner confined in jail, prison, or other correctional facility, for

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mental and emotional injury suffered while in custody without a prior showing of physical

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injury.” 42 U.S.C. § 1997e(e). The physical injury “need not be significant but must be more

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than de minimis.” Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002) ) (back and leg pain and

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canker sore de minimis); see also Pierce v. County of Orange, 526 F.3d 1190, 1211-13 (9th Cir.

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2008) (bladder infections and bed sores, which pose significant pain and health risks to

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paraplegics such as the plaintiff, were not de minimis). The physical injury requirement applies

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only to claims for mental or emotional injuries and does not bar claims for compensatory,

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nominal, or punitive damages. Id. at 630. Therefore, Plaintiff is not entitled to monetary

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damages in this case for emotional distress unless he also shows a physical injury. Here, Plaintiff

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does not allege any physical injury in the complaint.

No Damages for Emotional Distress

Attorney’s Fees

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F.

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Plaintiff has requested an award of attorney’s fees as relief. With regard to attorney’s

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fees, “In any action or proceeding to enforce a provision of section[] 1983 . . . , the court, in its

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discretion, may allow the prevailing party . . . reasonable attorney’s fees . . . .” 42 U.S.C. '

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1988(b). Plaintiff=s contention that he is entitled to attorney’s fees if he prevails in this action is

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without merit.

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First, because Plaintiff is not represented by an attorney, he is not entitled to recover

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attorney’s fees if he prevails. See Friedman v. Arizona, 912 F.2d 328, 333 n.2 (9th Cir. 1990),

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superseded by state statute in Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005); Gonzalez
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v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987); see also Rickley v. Cnty. of Los Angeles, 654

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F.3d 950, 954 (9th Cir. 2011) (“The Court accordingly adopted a per se rule, categorically

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precluding an award of attorney’s fees under § 1988 to a pro se attorney-plaintiff.”)

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Second, Plaintiff may not be awarded attorney’s fees under § 1988(b) because § 1988(b)

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is only applicable to § 1983 actions, and Plaintiff’s case is a Bivens action, not a § 1983 action.

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The court finds no statute, or any other authority, comparable to § 1988(b) that provides for the

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award of attorney’s fees in Bivens cases. See Kreines v. United States, 33 F.3d 1105, 1109 (9th

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Cir. 1994) (citing see Lauritzen v. Lehman, 736 F.2d 550, 553-54 (9th Cir. 1984) (attorney’s fees

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under EAJA’s § 2412(b) are not available when suit is against federal officers despite analogy to

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§ 1983 and § 1988).

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V.

CONCLUSION AND RECOMMENDATIONS

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The court finds that Plaintiff’s First Amended Complaint fails to state a claim upon which

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relief may be granted under Bivens. The court also finds that the deficiencies outlined above are

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not capable of being cured by amendment, and therefore further leave to amend should not be

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granted. 28 U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

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Plaintiff’s First Amended Complaint be dismissed, with prejudice, for failure to
state a Bivens claim upon which relief may be granted;

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2.

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This dismissal be subject to the Athree-strikes@ provision set forth in 28 U.S.C. §
1915(g). Silva v. Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011); and

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3.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days from the date of service of these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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///

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///

The Clerk be directed to close this case.

Such a document should be captioned “Objections to

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

October 18, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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