Vanaman v. Molinar

          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 ...