Opinion
Civil No. 05cv1947-W (POR).
January 17, 2006
ORDER: (1) GRANTING MOTION TO PROCEED IN FORMA PAUPERIS; (2) SUA SPONTE DISMISSING COMPLAINT WITHOUT PREJUDICE PER 28 U.S.C. § 1915(e)(2)
Plaintiff, an Immigration and Naturalization Service ("INS") detainee housed at the San Diego Correctional Facility, proceeding pro se, has submitted a civil rights Complaint pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma pauperis. Plaintiff claims that the Correctional Corporation of America ("CCA"), a private corporation which has contracted with the INS to operate the San Diego Correctional Facility, and Defendants Stephen and Alvares, two detention officers employed by the INS and CCA, subjected Plaintiff to conditions of confinement which violated his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution. (Compl. at 1-3.) Plaintiff seeks monetary damages and injunctive relief. (Id. at 26.)
For the following reasons, the Court finds that Plaintiff's Complaint fails to state a claim upon which relief may be granted as to any Defendant. The Court therefore sua sponte dismisses the Complaint without prejudice. The Court will notify Plaintiff of the pleading deficiencies of the Complaint and grant Plaintiff leave to file a First Amended Complaint in which he attempts to cure some or all of those pleading deficiencies.
I. Consent to Magistrate Judge per Local Civil Rule 72.3
This case has been referred to the Honorable Magistrate Judge Louisa S. Porter pursuant to Local Rule 72.3, "Assignment of § 1983 Prisoner Civil Cases to United States Magistrate Judges" and 28 U.S.C. § 636(b)(1). Unless all parties to this action file written consent to magistrate judge jurisdiction, Magistrate Judge Porter will conduct all necessary post-service hearings and submit proposed findings of fact and recommendations for the disposition of all motions in this matter excluded from magistrate judge jurisdiction by 28 U.S.C. § 636(b)(1)(a). See S.D. CAL. CIVLR 72.3(e); Aldrich v. Bowen, 130 F.3d 1364 (9th Cir. 1997) and Nasca v. Peoplesoft, 160 F.3d 578, 580 (9th Cir. 1999) (both holding that magistrate judge has no jurisdiction to hear case when record contains no written consent of the parties); FED.R.CIV.P. 73(b); 28 U.S.C. § 636(c)(1).
II. Motion to Proceed In Forma Pauperis ("IFP")
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $250. See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff's failure to prepay the entire fee only if the plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, "[u]nlike other indigent litigants, prisoners proceeding IFP must pay the full amount of filing fees in civil actions and appeals pursuant to the PLRA [Prison Litigation Reform Act]." Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002). As defined by the PLRA, a "prisoner" is "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 28 U.S.C. § 1915(h). Under this definition, "an alien detained by the INS pending deportation is not a `prisoner' within the meaning of the PLRA," because deportation proceedings are civil, rather than criminal in nature, and an alien detained pending deportation has not necessarily been "accused of, convicted of, sentenced or adjudicated delinquent for, a violation of criminal law." Agyeman, 296 F.3d at 886.
Thus, because Plaintiff claims he is civilly detained pursuant to immigration proceedings, and not a "prisoner" as defined by 28 U.S.C. § 1915(h), the filing fee provisions of 28 U.S.C. § 1915(b) do not apply to him. Accordingly, the Court has reviewed Plaintiff's affidavit of assets, just as it would for any other non-prisoner litigant seeking IFP status, and finds it is sufficient to show that he is unable to pay the fees or post securities required to maintain this action. See S.D. CAL. CIVLR 3.2(d). Accordingly, the Court GRANTS Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a).
III. Sua Sponte Screening per 28 U.S.C. § 1915(e)(2)
A complaint filed by any person proceeding in forma pauperis is subject to sua sponte dismissal to the extent it is "frivolous, malicious, fail[s] to state a claim upon which relief may be granted, or seek[s] monetary relief from a defendant immune from such relief." 28 U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (holding that "the provisions of 28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) ("[S]ection 1915(e) not only permits, but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").
"[W]hen determining whether a complaint states a claim, a court must accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (§ 1915(e)(2) "parallels the language of Federal Rule of Civil Procedure 12(b)(6)."). However, while liberal construction is "particularly important in civil rights cases,"Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), the Court may not "supply essential elements of the claim that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). The district court should grant leave to amend, however, unless it determines that "the pleading could not possibly be cured by the allegation of other facts" and if it appears "at all possible that the plaintiff can correct the defect." Lopez, 203 F.3d at 1130-31.
A. Allegations in the Complaint
Plaintiff alleges that while cleaning the shower on February 9, 2005, he fell down the stairs and injured his back due to "bad shoes" he was issued, was required to wait approximately one hour before receiving medical attention, and was eventually given Tylenol by a nurse but continues to have back pain. (Compl. at 1.) Plaintiff alleges that on July 13, 2005, he was fasting from sunrise to sunset in accordance with his religious beliefs when Defendant Stephen tried to force Plaintiff to eat lunch. (Id. at 2.) Plaintiff alleges Defendant Alvares "asked plaintiff to show him his private part," which Plaintiff contends constituted sexual harassment and sexual abuse, and that Defendant Alvares "tore" Plaintiff's personal phone book. (Id.) Plaintiff contends these allegations support claims under section 1983 pursuant to the First, Fourth, Fifth, Eighth and Fourteenth Amendments. (Id.)
B. Plaintiff's 1983 Complaint must be construed as a Bivens action.
It is clear that Plaintiff is unable to state a claim as to any named defendant pursuant to 42 U.S.C. § 1983. There is no valid basis for a claim under section 1983, in that Plaintiff's allegations are against federal and "private" officials acting under color of federal law. Section 1983 provides a remedy only for deprivation of constitutional rights by persons acting under color of state law. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). Thus, when a plaintiff seeks damages for violation of his constitutional rights by a federal actor, "the only possible action is an action under the authority of" Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) (establishing that constitutionally protected interests may be vindicated through a suit for damages against persons acting under color of federal law by invoking the general federal question jurisdiction of the federal courts).See Daly-Murphy, 837 F.2d at 355.
In Bivens, the Supreme Court granted victims of constitutional violations by federal agents the right to recover damages in federal court. Bivens, 403 U.S. at 397. Here, Plaintiff seeks damages for constitutional violations against CCA, and against various officials employed by CCA as detention officers in their individual and official capacities, on the basis that CCA is a private security corporation contracted to provide security services at the San Diego Correctional Facility by the INS. Thus, the Court will construe Plaintiff's section 1983 action as one brought pursuant toBivens. C. Bivens claims
Plaintiff asserts Bivens claims against all Defendants under the First, Fifth and Eighth Amendments. (Compl. at 2.) " Bivens established that compensable injury to a constitutionally protected interest [by federal officials alleged to have acted under color of federal law] could be vindicated by a suit for damages invoking the general federal-question jurisdiction of the federal courts [pursuant to 28 U.S.C. § 1331]." Butz v. Economou, 438 U.S. 478, 486 (1978). "Actions under § 1983 and those under Bivens are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir. 1991). To state a private cause of action under Bivens, Plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the violation was committed by a federal actor. Id.; Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988).
The Court addresses Plaintiff's claims under the First, Fifth and Eighth Amendments, although the Complaint also purports to bring claims under the Fourth and Fourteenth Amendments. However, there are no allegations whatsoever in the Complaint which would even arguably support claims under the Fourth Amendment, which applies to searches and seizures, or the Fourteenth Amendment, which applies to state action, and the Court will not treat the Complaint as presenting such claims.
Bivens does not provide a remedy for alleged wrongs committed by a private entity alleged to have denied Plaintiff's constitutional rights under color of federal law. Correctional Services Corp. v. Malesko, 534 U.S. 61, 69 (2001) ("`[T]he purpose of Bivens is to deter the officer,' not the agency.") (quoting FDIC v. Meyer, 510 U.S. 471, 485 (1994)); Malesko, 534 U.S. at 66 n. 2 (holding that Meyer "forecloses the extension of Bivens to private entities."). Additionally, aBivens action can only be brought against federal agents for unconstitutional acts alleged to have been taken in their individual capacities. Meyer, 510 U.S. at 486 (holding that aBivens action will not lie against the United States, agencies of the United States, or federal agents in their official capacity); Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000) (holding that plaintiff suing under Bivens "cannot state a claim against the federal officers in their official capacities unless the United States waives its sovereign immunity.");Vacarro v. Dobre, 81 F.3d 854, 857 (9th Cir. 1996) ("[A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity.") (citingDaly-Murphy, 837 F.2d at 355).
Thus, to the extent Plaintiff intended to bring a Bivens cause of action against the Correctional Corporation of America (as opposed to its individual officers) or against the individual officers in their official capacities, such claims are not cognizable in this Court. Accordingly, Plaintiff's claims pursuant to Bivens against the Correctional Corporation of America and against the individual Defendant detention officers in their official capacities are DISMISSED sua sponte pursuant to 28 U.S.C. § 1915(e)(2).
The Court will now consider the only remaining claims in this action, Plaintiff's Bivens claims against the individual detention officers acting in their individual capacities. These Defendants include Alvares and Stephen, both of whom are identified as employees of CCA and are alleged to have been acting under color of federal law by virtue of the contractual relationship between the INS and the CCA. First Amendment
The Court in Malesko, in holding that private corporations such as CCA cannot be sued under Bivens, explicitly reserved ruling on the issue whether private individuals hired to perform functions traditionally performed by federal officers, such as Plaintiff alleges the CCA officers were performing here, could be sued under Bivens. Malesko, 534 U.S. at 65. The Court does not at this time reach the open issue regarding whether Plaintiff is allowed to bring a Bivens action against individual CCA employees, and nothing in this Order is intended to reflect the Court's position on that issue one way or the other. Likewise, the Supreme Court has cautioned against extending Bivens remedies into new contexts. See id. at 67-68 (recognizing that Bivens has been extended from the Fourth Amendment context only to include claims against federal officers under the Fifth and Eighth Amendments); Schweiker v. Chilicky, 487 U.S. 412, 422 (1988); Meyer, 510 U.S. at 484. This Order takes no position on whether the Court will extendBivens to any claim not already recognized by the Supreme Court as encompassed by Bivens. That determination, along with the determination whether Bivens applies to individual CCA employees, will take place, if at all, at a later stage of these proceedings.
Plaintiff claims that Defendant Stephen violated his First Amendment right to the free exercise of his religion when Stephen tried to force plaintiff to eat lunch at a time when Plaintiff was observing a religiously-required fast. (Compl. at 2.)
"In order to establish a [ First Amendment] free exercise violation, [Plaintiff] must show the defendants burdened the practice of his religion, by preventing him from engaging in conduct mandated by his faith, without any justification reasonably related to legitimate penological interests." Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (footnote omitted). In addition to First Amendment protections, the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et. seq., "affords prisoners engaged in religious conduct federal statutory protections above and beyond those embodied in the First Amendment," Charles v. Verhagen, 220 F. Supp. 2d 937, 943 (W.D. Wis. 2002), and as such, "provides rights similar to those [previously] delineated in [the Religious Freedom Restoration Act] RFRA." Wyatt v. Terhune, 315 F.3d 1108, 1115 (9th Cir. 2003). Specifically, RLUIPA provides:
No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person — [¶] (1) is in furtherance of a compelling governmental interest; and [¶] (2) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc-1(a) (emphasis added).
While RLUIPA does not define what constitutes a "substantial burden" on religious exercise, the Ninth Circuit has defined the term according to its plain language. In San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004), the Court resorted to dictionary definitions describing a "burden" as "something that is oppressive," and "substantial" as "`considerable in quantity' or `significantly great.'" Id. Thus, a substantial burden on religious exercise must impose a "significantly great restriction or onus upon such exercise."Id. The party alleging a RLUIPA violation carries the initial burden of demonstrating that a governmental practice constitutes a substantial burden on his religious exercise. See 42 U.S.C. §§ 2000cc- 1(a); 2000cc-2(b) ("[T]he plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion.").
Accordingly, only if Plaintiff successfully alleges that Defendant Stephen's actions imposed a substantial burden on the exercise of his religion has he stated a claim either under RLUIPA or the First Amendment. Plaintiff's allegation that Defendant Stephen on a single occasion "tried" to force Plaintiff to eat lunch during a fasting period simply fails to satisfy this pleading requirement. There are no allegations whatsoever which, if proven true, could support a finding that Defendant Stephen's actions created a substantial burden on the free exercise of Plaintiff's religious beliefs.
Fifth and Eighth Amendments
The Due Process Clause of the Fifth Amendment protects persons from the deprivation of their life, liberty and property without due process of law, and has both procedural and substantive components. Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). The procedural prong provides "a guarantee of fair procedure in connection with the deprivation of life, liberty or property." Id. The substantive prong "protects individual liberty against `certain government actions regardless of the fairness of the procedures used to implement them.'" Id. (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). Because Plaintiff has set forth no allegations regarding denial of procedural due process, the Court will consider his substantive due process claims regarding the conditions of confinement.
Plaintiff attempts to present an Eighth Amendment claim based on allegations that he fell down the stairs and injured his back as a result of the "bad shoes" he was issued, that he had to wait one hour for medical attention, that he was eventually only given Tylenol, and he continues to suffer back pain. (Compl. at 3.) However, because Plaintiff is a civil detainee and not a prisoner serving a criminal sentence, the Eighth Amendment does not apply to him. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979) ("Eighth Amendment scrutiny is appropriate only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [and] the State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law."); Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002) ("Because [petitioner] had not been convicted of a crime, but had only been arrested, his rights derive from the due process clause rather than the Eighth Amendment's protection against cruel and unusual punishment.").
Rather, Plaintiff's conditions of confinement claims must be analyzed under "the more protective" substantive due process standard. Jones v. Blanas, 393 F.3d 918, 931-33 (9th Cir. 2004); see also Wolfish, 441 U.S. at 538-39 ("Absent a showing of an express intent to punish on the part of detention facility officials, . . . if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to `punishment.'"); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) ("The concept of `substantive due process,' semantically awkward as it may be, forbids the government from depriving a person of life, liberty, or property in such a way that `shocks the conscience' or `interferes with rights implicit in the concept of ordered liberty.'") (quotingUnited States v. Salerno, 481 U.S. 739, 746 (1987)). However, "the due process clause imposes, at a minimum, the same duty the Eighth Amendment imposes: `persons in custody ha(ve) the established right not to have officials remain deliberately indifferent'" to their needs. Gibson, 290 F.3d at 1187 (quotingCarnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996)); Lolli v. County of Orange, 351 F.3d 410, 418-19 (9th Cir. 2003). The Court will therefore look to Eighth Amendment standards to determine the minimum level of protection afforded Plaintiff.
In order to state a claim under the Eighth Amendment for inadequate medical care, Plaintiff must allege facts which are sufficient to show that a defendant was "deliberately indifferent to his serious medical needs." Helling v. McKinney, 509 U.S. 25, 32 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976). Prison officials must purposefully ignore or fail to respond to Plaintiff's medical needs; neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical malpractice constitutes a constitutional violation. Estelle, 429 U.S. at 105-06; Wilson v. Seiter, 501 U.S. 294, 302 (1991). In other words, Plaintiff must plead facts that show that a named defendant or defendants knew of his "serious" need for medical treatment for his injured back, but nevertheless disregarded that need despite that defendant's knowledge of an excessive risk posed to Plaintiff's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The allegations in the Complaint do not satisfy this standard. Plaintiff does not allege that any Defendant knew of and deliberately ignored a serious risk to his safety regarding his fall down the stairs. Plaintiff also fails to allege that any Defendant knew of and deliberately ignored his need for medical attention for a serious medical need.
To the extent Plaintiff attempts to bring a claim based on allegations that Defendant Alvares sexually harassed Plaintiff when he "asked plaintiff to show him his private part," he has failed to state a claim. Verbal harassment or verbal abuse by prison officials does not constitute a violation of the Eighth Amendment. See Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (harassment does not constitute an Eighth Amendment violation); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (harassment in the form of vulgar language directed at an inmate is not cognizable under § 1983); McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (verbal threats and name calling are not actionable under § 1983).
Finally, Plaintiff cannot state a claim for denial of due process based on allegations that Defendant Alvares "tore" his personal phonebook. A claim based on the deprivation of property caused by a random and unauthorized act of a federal employee is not cognizable if an adequate post-deprivation remedy exists.Hudson v. Palmer, 468 U.S. 517, 533 (1984); Parratt v. Taylor, 451 U.S. 527, 542 (1981), overruled on other grounds byDaniels v. Williams, 474 U.S. 327, 328 (1986). Plaintiff has an adequate post-deprivation remedy in the Federal Tort Claims Act.See ChoPP Computer Corp., Inc. v. United States, 5 F.3d 1344, 1347 (9th Cir. 1993) (holding that claim for conversion was within scope of the Federal Tort Claims Act).
Accordingly, all Bivens claims set forth in the Complaint are DISMISSED without prejudice for failing to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2);Lopez, 203 F.3d at 1126-27. Plaintiff is granted leave to file an amended complaint in an attempt to cure the pleading defects identified with respect to the dismissed claims
IV. Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Plaintiff's Motion to Proceed IFP per 28 U.S.C. § 1915(a) is GRANTED;
(2) Plaintiff's Complaint is DISMISSED sua sponte without prejudice for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2). Plaintiff is GRANTED thirty (30) days leave from the date this Order is stamped "Filed" to file a First Amended Complaint which addresses all the deficiencies of pleading set forth above. Plaintiff is cautioned that his First Amended Complaint must be complete in itself without reference to his original Complaint and that any defendant not named and any claim not re-alleged will be considered waived. See S.D. CAL. CIVLR 15.1; King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
Moreover, if Plaintiff's Amended Complaint still fails to state a claim upon which relief can be granted or otherwise fails to survive the screening provisions of 28 U.S.C. § 1915(e)(2) for any reason, it may be subject to dismissal without any further leave to amend. See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th Cir. 1996).
IT IS SO ORDERED.