Harrison v. Wheat

DAVID SCOTT HARRISON, Plaintiff, v. MICHAEL G. WHEAT, ASSISTANT US ATTORNEY, Defendant.

Case No.: 17-cv-2404-AJB-BLM

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

March 1, 2018

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS (Doc. No. 13-1)

ORDER ON OTHER MOTIONS (Doc. Nos. 10, 21)

Before the Court is Michael G. Wheat's motion to dismiss Davis Scott Harrison's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 13-1.) Having reviewed the parties' arguments and controlling legal authority, and pursuant to Civil Local rule 7.1.d.1, the Court finds the matter suitable for decision on the papers and without oral argument. Accordingly, the March 22, 2018 motion hearing is vacated. Because Wheat is not a state actor and possesses prosecutorial immunity against Harrison's failed Bivens claim, the Court GRANTS Wheat's motion to dismiss.

I. BACKGROUND

Harrison, a pro se litigant, brought this suit against Wheat. (Doc. No. 1-2.) On February 10, 2015, Harrison sent a "syrupy-sweet" letter to U.S. District Court Judge, Larry A. Burns, as well as Wheat. (Id. at 6.) Exercising his right to free speech, Harrison petitioned the government for redress of his grievances, namely the illegitimacy of his 1988-'89 federal convictions. (Id.) The letter did not contain any threatening language nor an intent to commit violence or criminal harm. (Id.) Wheat describes this letter as arguing "that the Supreme Court's Jones decision rendered his conviction null and void." (Doc. No. 13-1 at 3.)

On March 10, 2015, Wheat sent Harrison a "retaliatory" letter in response. (Id. at 7.) Harrison suggests that Wheat's letter threatened retaliatory actions by reporting him to all "appropriate investigative agencies" for the purpose of "monitor[ing Harrison's] activities." (Id.) Harrison claims that this retaliatory language encased him in a "thick coat of ice" and left him fearful of being transferred to a more restrictive facility. (Id.) He contends that Wheat's retaliation against him served no reasonable or legitimate penological or government interest. (Id. at 8.)

II. LEGAL STANDARDS

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint will survive a motion to dismiss if it contains "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).

Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for a court to assume "the [plaintiff] can prove facts that [he or she] has not alleged." Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526(1983). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 664.

Additionally, pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers" because pro se litigants are more prone to making errors in pleading than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted). Thus, the Supreme Court has stated that federal courts should liberally construe the "'inartful pleading' of pro se litigants." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)).

III. DISCUSSION

Harrison brings his complaint under Bivens for first amendment retaliation. (Doc. No. 1-2 at 5.) In a footnote, he states the claim is "[f]iled under the Civil Rights Act, 42 USC § 1983, this case is technically a suit pursuant to Bivens . . . ." (Id. at fn 1.) Because Harrison is pro se, the Court construes his filings liberally and will discuss actions arising under both Bivens and § 1983—as they are separate vehicles to bring a suit in federal court. In his dismissal motion, Wheat argues the Court should dismiss Harrison's Bivens claim because it fails to meet the two-prong test. Wheat also argues, nevertheless, he is entitled to prosecutorial immunity. Wheat does not address the § 1983 claim, however, the Court will do so sua sponte.

1. Harrison's Request for a New Bivens Remedy

Wheat argues a claim under Bivens is unwarranted for a First Amendment violation. (Doc. No. 13-1 at 4.) Wheat claims the Supreme Court has cautioned against expanding constitutional claims beyond the three scenarios found in Bivens and its progeny: Davis, and Carlson. (Id. at 6.) Therefore, because this case differs from the three previous Supreme Court Bivens cases, Wheat states that a Bivens remedy should not be granted. (Id.) Harrison agrees with Wheat in that the court in Ziglar cautioned against expanding constitutional claims. (Doc. No. 17 at 19.) However, Harrison argues that because Congress has not provided an alternative remedy and has not explicitly declared anything, that thisCourt has the power to grant him relief. (Id.) Additionally, by granting relief, Harrison claims that there are no special factors counseling hesitation against a judicially created remedy. (Id. at 22). Furthermore, Harrison claims that the cases Wheat used to support his claim are irrelevant because "they do not address the right of every individual to protection of the laws, whenever he suffers an injury." (Id. at 21.)

In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, the Court established an implied private right of action for tortious deprivation of constitutional rights against federal officials in their personal capacity. 403 U.S. 388, 389 (1971). However, in more recent times, the Supreme Court has disfavored extending the Bivens remedy to new contexts not previously reached. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017); Iqbal, 556 U.S. at 675 (expanding the Bivens remedy beyond these three scenarios is a "disfavored" judicial activity); Corr. Services Corp. v. Malesko, 534 U.S. 61, 68 (2001) (stating the Supreme Court has "consistently refused to extend Bivens to any new context or new category of defendants.").

If a Bivens case is "different in a meaningful way" from one of the three established Bivens cases, it is considered a "new Bivens context." Ziglar, 137 S. Ct. at 1859-60. The Ziglar court listed several ways a case could present as a "new Bivens context:"

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 other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Id. at 1860. When the court determines a case presents a "new Bivens context," then a special factors analysis is performed. Id. at 1859-60. If there are "special factors counselling hesitation in the absence of affirmative action by Congress," then a Bivens remedy will not be available. Id. at 1857 (quoting Bivens, 403 U.S. at 396)). "Though the Court has not defined the phrase 'special factors counseling hesitation' . . . '[t]he necessaryinference . . . is that the 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.'" Jones v. Hernandez, Case No.: 16-CV-1986 W (WVG), 2017 WL 5194636, at *9 (S.D. Cal. Nov. 9, 2017) (quoting Ziglar, 137 S. Ct. at 1857-58).

Harrison's cause of action for first amendment retaliation has been expressly recognized by the Ninth Circuit twice, but never by the Supreme Court. In Gibson v. United States, the Court stood with other circuits in allowing a first amendment retaliation claim to proceed when FBI agents allegedly curbed Gibson's political protected speech "by investigating her, tapping her phone, passing defamatory information to her employer, and attempting to entrap her in a drug transaction." Martin v. Naval Investigative Serv., 10-CV-1879 WQH (MDD), 2011 WL 13142108, at *7 (S.D. Cal. Aug. 3, 2011) (Hayes, J.), aff'd, 539 Fed. Appx. 830, 832 (9th Cir. 2013); Gibson, 781 F.2d 1334, 1341-42 (9th Cir. 1986). In Martin, the plaintiff alleged a federal official acted with motive to impermissibly curb his truthful testimony. 2011 WL 13142108. Because the court found this was analogous to the facts in Gibson, Martin's case did not present a new factual and legal context, and the court allowed the Bivens claim to continue. Id. at *8.

Harrison's case differs from both of these Ninth Circuit cases. Harrison's letter requested "redress of his grievances, namely the illegitimacy of his 1988-'89 federal convictions." (Doc. No. 1-2 at 6.) Wheat's response—retaliatory or not—did not curb any protected political speech or truthful testimony as was the case in both Gibson and Martin. Moreover, Wheat's letter did not rise to the levels of intrusion Gibson was subjected to. Although the complaint similarly alleges First Amendment Retaliation, the mechanism of injury (retaliation when a pro se inmate writes a...