United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSING
PLAINTIFF'S FIRST AMENDED COMPLAINT WITH PREJUDICE FOR
FAILURE TO STATE A CLAIM (ECF NO. 17)
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.
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).
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).
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.
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 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
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
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.
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.
Plaintiffs First Amendment Claim Presents a New Bivens
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