The Wackenhut Defendants*fn1 and the Federal Defendants*fn2 have filed Motions to Dismiss the First Amended Complaint pursuant primarily to Federal Rules of Civil Procedure, Rule 12(b)(6) for failure to state claims upon which relief may be granted.*fn3
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Plaintiff, Billy Frank Cox (Cox), filed this action, arising out of his September 1, 1988 arrest, his subsequent criminal prosecution, and his incarceration at a privately owned federal facility in Taft, California. Cox, a pro se prisoner, brought this action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), as well as 42 U.S.C.§§ 1983, 1985.
Plaintiff's action was originally filed in the United States District Court, District of Columbia. Thereafter, a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure, 12(b)(2) (lack of personal jurisdiction), 12(b)(3) (improper venue) and 12(b)(4) (insufficiency of service of process) and 12(b)(6) (failure to state a claim upon which relief may be granted) was filed by the Wackenhut Defendants. The remaining Federal Defendants also filed a motion to dismiss, asserting the same and additional grounds advanced by the Wackenhut Defendants.
That Court, in reviewing the motion to dismiss for lack of proper venue, determined that venue in the District of Columbia was improper and found that venue would properly lie in the Central District of California. The Court ordered that Plaintiff's action be transferred to the United States District Court for the Central District of California and denied the remainder of the Defendants' Motion to Dismiss, without prejudice. Plaintiff's action was eventually properly transferred to the Eastern District of California by Order dated January 10, 2005, where the constitutional violations are alleged to have occurred and where venue is now proper.
On April 18, 2005, the Wackenhut Defendants filed a Motion to Dismiss (Doc. No. 35). On March 4, 2008, the First Amended Complaint (FAC) was filed by the Plaintiff. On May 15, 2008, the Court ordered the dismissal of various Judicial Defendants.*fn4 On June 3, 2008, the Motion to Dismiss was filed on behalf of the Federal Defendants (Doc. No. 67). On June 6, 2008, the Wackenhut Defendants filed a second Motion to dismiss. (Doc. No. 68.) In June 2008, Plaintiff filed his Opposition briefs. On November 25, 2008, this action was transferred for all purposes to Judge David C. Bury of the United States District Court for the District of Arizona.
The Court's review of a motion to dismiss brought under Fed.R.Civ.P. 12(b)(6) is limited to the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). All material factual allegations contained in the complaint "are taken as admitted" and the complaint is to be liberally "construed in the light most favorable" to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969); Lee, 250 F.3d at 688. A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6), furthermore, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Dismissal under Fed.R.Civ.P. 12(b)(6) may be based upon "the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1990). Vague and mere "[c]onclusionary allegations, unsupported by facts" are not sufficient to state a claim under 42 U.S.C. § 1983. Jones v. Community Development Agency, 733 F.2d 646, 649 (9th Cir.1984); Pena v. Gardner, 976 F.2d 469, 471 (9th Cir.1992). Thus, even though the Court is to construe the complaint liberally, such construction "may not supply essential elements of the claim that were not initially pled." Pena, 976 F.2d at 471.
Before the Court may dismiss a pro se complaint for failure to state a claim, it "must provide the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend the complaint prior to dismissal." McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir.1992); see also Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir.1987) (district court erred by not notifying pro se prisoner litigant of amended complaint's deficiencies and allowing him leave to amend).*fn5
As explained in greater detail below, none of the allegations in the amended complaint state a viable Bivens claim against any of the individually named Wackenhut Defendants or Federal Defendants. No further amendments of the Complaint will be allowed.
Plaintiff has filed what can only be interpreted as a purely Bivens v. Six Unknown Fed. Narcotics Agents, 430 U.S. 388 (1971) action because all of the Defendants are either federal prosecutors or Bureau of Prisons (BOP) personnel and facilities.*fn6 In Bivens, the Supreme Court held that "a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court." Malesko v. Correctional Services Corp., 534 U.S. 61, 66 (2001). Subsequently, the Supreme Court recognized the existence of an implied damages remedy for violations of the Due Process Clause of the Fifth Amendment and the Cruel and Unusual Punishment Clause of the Eighth Amendment by federal officers as well. Id. at 67;see also Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). Since Davis and Carlson, however, the Supreme Court consistently has declined to extend Bivens liability to new contexts or new categories of defendants. See Malesko, 534 U.S. at 68. For example, in FDIC v. Meyer, 510 U.S. 471 (1994), the Supreme Court "unanimously declined an invitation to extend Bivens to permit suit against a federal agency," emphasizing that " 'the purpose of Bivens is to deter the officer,' not the agency." Malesko, 534 U.S. at 69 (quoting Meyer, 510 U.S. at 485) (emphasis in original). Employing the same reasoning it used in Meyer, the Supreme Court in Malesko further declined to extend Bivens liability to a private corporation which had contracted with the federal Bureau of Prisons to operate a community correctional facility that housed federal inmates. Id. at 63, 70-74.The Supreme Court, however, has yet to specifically address the question of whether or not individual employees of such a private entity are themselves subject to Bivens liability. A number of lower courts, including two circuit courts, have addressed this issue, but have come to conflicting conclusions. For example, both the Fourth and Tenth Circuits have found Bivens liability to be inapplicable to private individuals who are not federal officers. See Peoples v. CCA Detention Centers, 422 F.3d 1090 (10th Cir. 2005); Holly v. Scott 434 F.3d 287 (4th Cir. 2006). On the other hand, at least two district courts have concluded otherwise. See Purkey v. CCA Detention Center, 339 F.Supp.2d 1145 (D.Kan. 2004); Sarro v. Cornell Corrections, Inc., 248 F.Supp.2d 52 (D.R.I. 2003).*fn7 The Ninth Circuit has stated that "[ a]ctions 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) (applying same statute of limitations to Bivens actions as is applied to actions brought pursuant to section 1983); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (applying rationale of Heck v. Humphrey, 512 U.S. 477 (1994), to Bivens actions); Alexander v. Perrill, 916 F.2d 1392, 1396 (9th Cir.1990) (applying same qualified immunity analysis to defendants in Bivens actions as to those in section 1983 actions); Trotter v. Watkins, 869 F.2d 1312, 1318 (9th Cir.1989) (scope of immunity available same in both actions).
To state a claim under 42 U.S.C. § 1983, a complaint must allege: (i) the conduct complained of was committed by a person acting under color of state law and (ii) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985); see also Samuel v. Michaud, 980 F.Supp. 1381, 1396 (D.Idaho 1996) (both elements must be present to hold federal defendants liable under either Bivens or section 1983) (quoting Leer v. Murphy, 844 F.2d 628, 632 (9th Cir. 1988)).
Plaintiff also must allege facts showing how the individually named Defendants caused or personally participated in causing the constitutional harm alleged in the amended complaint. Arnold v. IBM, 637 F.2d 1350, 1355 (9th Cir.1981): see also Samuel, 980 F.Supp. at 1396 ("A person deprives another of a constitutional right, within the meaning of Bivens, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation complained of") (citing Leer, 844 F.2d at 633). A defendant cannot be held liable pursuant to 42 U.S.C. § 1983, or again in this case under Bivens, solely on the basis of supervisory responsibility or position. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 n. 58 (1978); see also Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982); Terrell, 935 F.2d at 1018 (respondeat superior theory of liability inapplicable to Bivens actions).
Generally, the Wackenhut Defendants claim that the FAC should be dismissed on the following grounds: 1) Plaintiff failed to allege sufficient facts to state a cause of action; 2) No Bivens action will lie against private entity defendants; 3) Warden Andrews was authorized to limit Plaintiff's access to the legal materials of another inmate; 4) Immunity; 5) Improper service of process; 6) Failure to exhaust administrative remedies; 7) Failure to state a cause of action for conspiracy; and, 8) No standing to plead cause of action for violation of Fair Labor Standards Act (FLSA).
Only the Tenth, Eleventh, and Twelfth Counts in the FAC pertain to the Wackenhut Defendants. The Tenth Count only references Defendant Andrews, the Warden at TCI when this action was commenced. Plaintiff alleges that Andrews required him to work below the minimum wage, in violation of the FLSA. Plaintiff alleges that Andrews retaliated against him. The Eleventh Count contains vague and conclusory allegations of conspiracy against all Wackenhut Defendants in connection with his petition for writ of habeas corpus. The Twelfth Count contains vague and conclusory allegations of conspiracy against all Wackenhut Defendants. A careful reading of the Twelfth Count reflects that Plaintiff's complaints also pertain primarily to his petition for writ of habeas corpus. Plaintiff alleges that following a search of his locker and cubicle on March 21, 2003, he was issued an Incident Report when prison officials discovered legal work belonging to another inmate. Plaintiff alludes to the search on March 21, 2003, and the resulting Incident Report, as "retaliation" against him for his assisting another inmate.
The Federal Defendants herein submit that they are entitled to absolute immunity, or in the alternative, qualified immunity. In effect, Plaintiff is suing federal prosecutors for successfully prosecuting him. At the time this action was filed, Plaintiff was in the custody of the BOP serving a 210-month sentence for violating 21 U.S.C. § 841(A)(1) (conspiracy to manufacture and possess methamphetamine), at Taft Correctional Institution. Plaintiff was convicted by a federal jury in 1989. Defendant Bender was the AUSA who tried his criminal case. Plaintiff alleges that he filed a habeas corpus petition in 2001 and that case was assigned to Judge Coyle and referred ...