Mousa v. Trump Administration

          FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSING PLAINTIFF'S FIRST AMENDED COMPLAINT WITH PREJUDICE FOR FAILURE TO STATE A CLAIM (ECF NO. 17)

         Mohamed Saladdin Mousa ("Plaintiff), a state prisoner, is appearing pro se and in forma pauperis in this action. Currently before the Court is Plaintiffs first amended complaint, filed on December 12, 2019.

         I.

         SCREENING REQUIREMENT

         The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that "fail[] to state a claim on which relief may be granted," or that "seek[] monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

         A complaint 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). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated in the deprivation of Plaintiffs rights. Jones v. Williams. 297 F.3d 930, 934 (9th Cir. 2002).

         Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiffs claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a defendant has acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3dat969.

         II.

         DISCUSSION

         Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and is housed at the California Correctional Institution, Tehachapi. Plaintiff states that since June 2019 he has been sending letters to the Director of Immigrations and Customs Enforcement^[1] in Bakersfield requesting that he be taken to court on a detainer that was placed on him. Plaintiff has received no response. Plaintiff brings this action against the unknown director alleging violation of his right to access of the court under the First Amendment.

         Congress passed 42 U.S.C. § 1983 which entitles an injured person to sue for monetary damages if a state official violates his or her constitutional rights. However, "Congress did not create an analogous statute for federal officials." Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that, even absent statutory authorization, a federal official could be sued for damages for an unreasonable search and seizure in violation of the Fourth Amendment. Bivens. 403 U.S. at 397; see Lanuza v. Love. 899 F.3d 1019, 1021 (9th Cir. 2018) ("Bivens is the first Supreme Court decision to recognize an implied right of action for damages against federal officers alleged to have violated a plaintiffs constitutional rights."). Since Bivens was decided the Supreme Court has recognized an implied cause of action in two other cases involving other constitutional violations. Id.

         In Ziglar, the Supreme Court set forth a two-part test for courts to use in order to determine whether a Bivens claim may proceed. Ziglar, 137 S.Ct. at 1859-60. First, the court must determine whether the case presents a new Bivens context. "If [a] case is different in a meaningful way from previous Bivens cases decided by [the Supreme Court], the context is new." Id., at 1859.

         Second, if a case presents a new context for a Bivens action, the court must then determine whether there are any "special factors counselling hesitation in the absence of affirmative action by Congress." Ziglar, 137 S.Ct. at 1857 (citation omitted). The "special factors" inquiry "must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.'" Id. at 1857-58. Ziglar specifically noted that, "if there is an affirmative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action." Ziglar, 137 S.Ct. at 1858. "In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of federal-court jurisdiction under Article III." Id; see also id. at 1857 (stating that the Supreme Court has made it "clear that expanding the Bivens remedy is now a 'disfavored' judicial activity," which is "in accord with the Court's observation that it has 'consistently refused to extend Bivens to any new context or new category of defendants.'" (internal citations omitted)). Therefore, the Court considers if there is an implied Bivens cause of action for access to the courts.

         1. Plaintiffs First Amendment Claim Presents a New Bivens Context

         The Supreme Court has implied a damages remedy under the U.S. Constitution in only three contexts: (1) Fourth Amendment unreasonable search and seizure in Bivens, 403 U.S. at 396-97; (2) Fifth Amendment gender discrimination in Davis v. Passman. 442 U.S. 228, 248-49 (1979); and (3) Eighth Amendment deliberate indifference to serious medical needs in Carlson v. Green, 446 U.S. 14, 19 (1980). "These three cases - Bivens, Davis, and Carlson - represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself." Ziglar, 137 S.Ct. at 1855. Therefore, Plaintiffs claim for denial of access to the courts in violation of the ...