The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Chief United States District Judge Anthony W. Ishii has reassigned this Bivens*fn1 action brought by a federal prisoner to the undersigned visiting judge. Currently pending is Defendants' Motion to Dismiss and/or For Judgment on the Pleadings. (Docket No. 16.)
After reviewing the parties' briefing, the Court has determined that this matter will be decided on the basis of the written record without oral argument. For the reasons set forth below, the Court concludes that Plaintiff cannot proceed against Defendants in their official capacities for injunctive and declaratory relief. The Court finds that Plaintiff has stated a claim for damages against the Defendants in their individual capacities under the First and Fifth Amendments. The Defendants' request for dismissal on qualified immunity grounds will be denied without prejudice, but they may reassert the defense in a motion for summary judgment.
Plaintiff William Dunne is a federal prisoner who was incarcerated at the United States Penitentiary at Atwater, California (USP Atwater) from March 22, 2002 until he was transferred to another prison on August 11, 2006.
From January 19, 2006, until January 26, 2006, and again from April 3 to August 11 of that year, Dunne was in the Special Housing Unit (SHU) at USP Atwater. The SHU contains a mix of inmates taken out of the general prison population either on "administrative detention" status or, for punitive reasons, in "disciplinary segregation." Dunne was an administrative detention inmate.
Dunne alleges that during the four months that he was held in the SHU he was not given any of the newspapers or magazines to which he had previously subscribed. He contends that despite his repeated requests for access to reading material, he was permitted to go only once to a small room that served as a makeshift law library, and no newspapers or magazines were available. Based on these allegations, Dunne has sued Warden Smith, Associate Warden Avalos, and Captial J. Karge for violations of his First, Fifth, and Eighth Amendment rights. He alleges that Smith ordered the ban on newspapers and magazines in the SHU, Avalos wrote the memorandum promulgating that policy, and Karge implemented the policy.
The Defendants have responded by filing the pending Motion to Dismiss and/or For Judgment on the Pleadings. They request dismissal based on the lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, and on the ground of qualified immunity. Dunne has responded to the Motion, and the matter is now ripe for the Court's decision.
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a motion to dismiss for lack of subject matter jurisdiction. The court must presume a lack of jurisdiction unless the contrary affirmatively appears, see Stock West, Inc., v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989), and the defense of lack of subject matter jurisdiction may be raised at any time by the parties or the court. FED. R. CIV. P. 12(h)(3).
In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted, the court must accept as true all allegations of material fact, and it shall construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The court may not consider any material beyond the pleadings, but may review material that is properly submitted as part of the complaint without converting the motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). The test to be applied is not whether recovery is unlikely or remote, but rather whether the plaintiff should be permitted to offer evidence to support the claims. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
A motion for judgment on the pleadings under Rule 12(c) "shall be granted when it appears that moving party is entitled to judgment as a matter of law." Geraci v. Homestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003).
1. Dunne Cannot Proceed against the Defendants in their Official Capacities for Injunctive and Declaratory Relief
Dunne is suing the Defendants in their official capacities for injunctive and declaratory relief, and he is suing them in their individual capacities for monetary damages. The injunctive relief that he seeks is an order requiring Defendants "and their successors" to allow prisoners in the SHU at USP Atwater to receive and possess "a reasonable amount of newspapers and magazines." (Docket No.1, pp. 3-4.) In their Motion, Defendants first contend that the Court lacks subject matter jurisdiction for claims against them in their official capacities, and they argue that the request for injunctive and declaratory relief is moot because Dunne has been transferred to another prison. The Court agrees on both points.
In Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), the United States Supreme Court recognized a cause of action for damages against federal officers for constitutional violations against an individual, but no Bivens-like cause of action is available against officers sued in their official capacities. FDIC v. Meyer, 510 U.S. 471, 485-86 (1994); Nurse v. United States, 226 F.3d 996, 1004 (9th Cir. 2000). This is so "because a Bivens suit against a defendant in his or her official capacity would merely be another way of pleading an action against the United States, which would be barred by the doctrine of sovereign immunity," absent a waiver to immunity. Nurse, 226 F.3d at 1004. Accordingly, Dunne's official capacity claims are not cognizable under a Bivens theory.
In addition, to be justiciable, the plaintiff's claim must not have become moot. Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006). "The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008). As pertinent here, an inmate's transfer or release will generally moot any claims for injunctive relief because the inmate is no longer subject to the prison's ...