United States District Court, D. Arizona
ORDER
HONORABLE JENNIFER G. ZIPPS UNITED STATES DISTRICT JUDGE.
Pending
before the Court is Plaintiff Leslie Grey Vanaman's
Motion to Amend Complaint, filed on March 1, 2018. (Doc. 23.)
The motion is fully briefed. (Docs. 26, 30.) Also pending
before the Court are Defendants' Motion to Dismiss, filed
May 4, 2018 (doc. 35.), and Plaintiff's Motion to Strike
the Motion to Dismiss, which appears to be a response to
Defendants' Motion to Dismiss. (Doc. 38.)
For the
reasons outlined below, the Court will grant Plaintiff's
Motion to Amend in part. (Doc. 23.)
FACTUAL
AND PROCEDURAL BACKGROUND
On May
15, 2017, Plaintiff Leslie Grey Vanaman, who is confined in
the United States Penitentiary-Tucson (USP-Tucson) in Tucson,
Arizona, filed a pro se civil rights complaint pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). (Doc. 1.) The
Court's screening order of June 14, 2017 allowed three
counts asserting claims for monetary damages to
proceed.[1] (Doc. 5.) However, shortly after the June
14 screening order was issued, the Supreme Court decided
Ziglar v. Abbasi, __ U.S. __, 137 S.Ct. 1843 (2017),
which cautions courts against recognizing Bivens
claims in new contexts not already recognized by the Supreme
Court. Plaintiff now seeks to amend his complaint to avoid
dismissal under Abbasi. Plaintiff seeks to reassert
his allegations as arising under the Federal Tort Claims Act,
28 U.S.C. § 1346(b), the Administrative Procedure Act, 5
U.S.C. § 706(2)(A), (B), and 28 U.S.C. §§
1331, 1361, 2201(a), and 2202. Plaintiff also requests the
Court to appoint counsel in this matter. (Doc. 23, p. 2.)
In his
pending proposed First Amended Complaint (FAC), Plaintiff
re-alleges that on June 1, 2016, the mailroom at USP-Tucson,
which is supervised by Defendant Molinar, flagged
Plaintiff's May 2016 issue of Cruising World for
“warden review” because it contained an image or
images of “young children partially clothed.”
(Doc. 23-1 at 5A-5B.) Defendant Shartle, then warden of
USP-Tucson, subsequently rejected the magazine pursuant to
USP-Tucson's Institution Supplement TCX 5324.10B,
concluding that it contained an image “thought to
threaten the security and/or good order of the institution
and/or it may facilitate criminal activity.”
(Id.)
The FAC
contains six proposed Counts. In Count 1, Plaintiff adds the
new allegation that TCX 5324.10B is so broad as to allow
prison officials to arbitrarily confiscate materials in
violation of his rights under the First Amendment. (Doc. 23-1
at 3A-3B.) In Count 2, Plaintiff adds the new allegation that
because TCX 5324.10B may be used to arbitrarily confiscate
any media with children in it as contraband, the policy
discriminates against Vanaman, as a member of a class of
sex-offender inmates housed at USP-Tucson, in violation of
his right to equal protection under the Fifth Amendment.
(Doc. 23-1 at 4A-4B.) Counts 3-5 are identical to Counts 3-5
of Plaintiff's original Complaint. (See Doc. 1.)
These counts assert that Defendant Molinar violated
Plaintiff's First Amendment right to read a magazine by
rejecting it for warden review (Count 3); that Defendant
Shartle violated Plaintiff's First Amendment right to
read a magazine by rejecting it (Count 4); and that Defendant
Shartle discriminated against Plaintiff, as a member of a
class of convicted sex offenders, by rejecting a magazine
that would be permissible in an institution housing
individuals convicted of crimes other than sex offenses
(Count 5). (Doc. 23-1 at 5A-5G.) Finally, Plaintiff asserts a
new claim in Count 6 that the United States, by and through
the Bureau of Prisons, negligently established the TCX
5324.10B in contravention of Plaintiff's constitutional
rights. (Doc. 23-1 at 5H.)
ANALYSIS
I.
Statutory Screening of Prisoner Complaints
The
Court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or an officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The Court must dismiss a complaint or portion thereof if a
plaintiff has raised claims that are legally frivolous or
malicious, that fail to state a claim upon which relief may
be granted, or that seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b)(1)-(2).
A
pleading must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not
demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id.
“[A]
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In determining whether a
complaint states a plausible claim for relief, a court must
“draw on its judicial experience and common
sense” and assess whether there are other “more
likely explanations” for a defendant's conduct.
Id. at 679, 681. However, courts must
“construe pro se filings liberally.” Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A
“complaint [filed by a pro se prisoner] ‘must be
held to less stringent standards than formal pleadings
drafted by lawyers.'” Id. (quoting
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam)).
II.
Plaintiff Fails to State a Cognizable Claim under
Bivens
The
Abbasi court cautioned against expanding the
Bivens remedy, and set forth a two-step test to
determine whether a Bivens claim should proceed. 137
S.Ct. at 1857. First, a court must consider whether the claim
at issue extends Bivens in a new context from
previously established Bivens cases. If so, the
court must determine whether there are “special factors
counselling hesitation” in expanding Bivens to
that new context. Id. at 1857, 1859-60. Applying
this test, the Court concludes that Plaintiff's
Bivens claims must be dismissed.
A.
Plaintiff's claims for damages arising under the First
and Fifth Amendments would extend Bivens in a new
context.
A case
presents a new Bivens context if the case is
different in a meaningful way from previous Bivens
cases decided by the Supreme Court. Id. at 1859.
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 ...