1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 TRESOR NDANDU, Case No.: 3:23-cv-00792-WQH-KSC

11 Plaintiff, ORDER 12 v. 13 OFFICER SASSO; OFFICER GONZALEZ; LIEUTENANT 14 YATES; DETENTION 15 WARDEN, 16 Defendants. 17 HAYES, Judge: 18 I. BACKGROUND 19 On April 26, 2023, Plaintiff Tresor Ndandu (“Plaintiff”), proceeding pro se, initiated 20 this action by filing a civil rights Complaint against Defendant Golden State Annex (ICE) 21 Detention Center, a privately-operated federal detention facility. (ECF No. 1.) On the same 22 day, Plaintiff filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2) and 23 Request for Appointment of Counsel (ECF No. 3). 24 On May 18, 2023, the Court issued an Order granting the Motion to Proceed IFP, 25 denying the Request for Appointment of Counsel, and sua sponte dismissing the Complaint 26 for failure to state a claim. (ECF No. 5.) 27 28 1 On August 8, 2023, Plaintiff filed an Amended Complaint asserting Bivens claims 2 against Officer Sasso, Officer Gonzalez, Lieutenant Yates, and Detention Warden. (ECF 3 No. 11.) 4 On January 8, 2024, the Court issued an Order sua sponte dismissing the Amended 5 Complaint for failure to state a claim. (ECF No. 14.) 6 On March 25, 2024, Plaintiff filed a Second Amended Complaint, asserting civil 7 rights claims against Officer Sasso, Officer Gonzalez, Lieutenant Yates, and Detention 8 Warden. (ECF No. 22.) 9 On May 13, 2024, the Court issued an Order sua sponte dismissing the Second 10 Amended Complaint without prejudice. (ECF No. 23.) 11 On July 15, 2024, Plaintiff filed a Third Amended Complaint (“TAC”). (ECF No. 12 27.) 13 II. SUA SPONTE SCREENING 14 A. Legal Standard 15 As the Court stated in its previous Orders, because Plaintiff is proceeding IFP, his 16 Complaint requires a pre-answer screening pursuant to

(e)(2). Under this 17 statute, the Court must sua sponte dismiss an IFP complaint, or any portion of it, which is 18 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune. See Williams v. King,

(9th Cir. 2017). “The purpose of 20 [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the 21 expense of responding.’” Nordstrom v. Ryan,

, 920 n.1 (9th Cir. 2014) 22 (quoting Wheeler v. Wexford Health Sources, Inc.,

(7th Cir. 2012)). 23 “The standard for determining whether a plaintiff has failed to state a claim upon 24 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of 25 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter,

1108, 1112 (9th Cir. 2012). Federal Rules of Civil Procedure 8 and 12(b)(6) require a 27 complaint to “contain sufficient factual matter, accepted as true, to state a claim to relief 28 that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (internal 1 quotations omitted). Detailed factual allegations are not required, but “[t]hreadbare recitals 2 of the elements of a cause of action, supported by mere conclusory statements, do not 3 suffice.”

“Determining whether a complaint states a plausible claim for relief [is] ... a 4 context-specific task that requires the reviewing court to draw on its judicial experience 5 and common sense.”

The “mere possibility of misconduct” or “unadorned, the 6 defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility 7 standard. Id.; see also Moss v. U.S. Secret Service,

(9th Cir. 2009). 8 However, “courts must construe pro se pleadings liberally.” Resnick v. Hayes,

443, 447 (9th Cir. 2000). 10 B. Allegations of the TAC 11 Plaintiff alleges that while detained at Golden State Annex (ICE) Detention Center, 12 Plaintiff was placed into solitary confinement by Lieutenant Yates “for not breaking any 13 rule at all.” (ECF No. 27 at 2.) Plaintiff alleges that Officer Sasso conducted an 14 “unreasonable search with no probable cause.”

Plaintiff alleges that he was called a 15 “monkey” and his family information was released to gang detainees.

Plaintiff alleges 16 that Detention Warden and Officer Gonzalez “intentionally treated [Plaintiff] differently 17 from similarly-situated individuals.”

Plaintiff alleges that he “suffered injury as a result 18 of the discriminatory classification.”

19 Plaintiff asserts Bivens claims against Officer Sasso, Officer Gonzalez, Lieutenant 20 Yates, and Detention Warden. Plaintiff seeks monetary damages of $20,000,000. 21 C. Discussion 22 “In Bivens, the Supreme Court ‘recognized for the first time an implied right of 23 action for damages against federal officers alleged to have violated a citizen’s 24 constitutional rights.’” Vega v. United States,

(9th Cir. 25 2018) (quoting Hernandez v. Mesa,

(2017)). Bivens arose in the context 26 of a Fourth Amendment violation, and the Court has “only expanded [Bivens’] ‘implied 27 cause of action’ twice.”

(quoting Ziglar v. Abassi,

(2017)). First, the 28 Court recognized a Bivens remedy in the context of a Fifth Amendment claim based on 1 gender discrimination.

(citing Davis v. Passman,

, 230–31 (1979)). 2 Second, the Court expanded Bivens to Eighth Amendment inadequate medical care claims 3 raised by a federal prisoner’s decedents.

(citing Carlson v. Green,

, 24–25 4 (1980)). 5 Since those cases, however, the Supreme Court has “consistently refused to extend 6 Bivens to any new context or new category of defendants.” Abbasi,

7 (quoting Corr. Servs. Corp. v. Malesko,

(2001)). “Rather than dispense 8 with Bivens, the [Supreme] Court now emphasizes that recognizing a Bivens cause of 9 action is ‘a disfavored judicial activity.’” Egbert v. Boule,

(2022) 10 (quoting Abbasi,

); see also Hernandez v. Mesa,

(2020) 11 (“We have stated that expansion of Bivens is ‘a disfavored judicial activity,’ and have gone 12 so far as to observe that if ‘the Court’s three Bivens cases [had] been ... decided today,’ it 13 is doubtful that we would have reached the same result[.]”). 14 Plaintiff brings a cruel and unusual punishment claim against Lieutenant Yates for 15 allegedly placing Plaintiff in solitary confinement “for not breaking any rule at all.” (ECF 16 No. 27 at 2.) The Supreme Court has made clear that a Bivens remedy is not available in 17 this context. “Where, as here, a federal prisoner seeks damages from privately employed 18 personnel working at a privately operated federal prison, where the conduct allegedly 19 amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that 20 typically falls within the scope of traditional state tort law …, the prisoner must seek a 21 remedy under state tort law. We cannot simply imply a Bivens remedy in such a case.”1 22 Minneci v. Pollard,

, 131 (2012); see also Karboau v. Clark, 577 Fed. App’x 23 678, 679 (9th Cir. 2014) (applying Minneci to preclude a Bivens remedy against employees 24 of a private entity running a federal immigration detention center). 25 26

27 1 Plaintiff does not allege any state tort claims against any Defendant, and the allegations are insufficient 28 1 As to any alleged Fifth Amendment violation, to the extent Plaintiff alleges his 2 administrative segregation violated his procedural due process rights, Plaintiff cannot 3 maintain a Bivens action in this context. See Vega v. United States,

, 1155 4 (9th Cir. 2018) (declining to expand Bivens in the context of “Fifth Amendment procedural 5 due process claims arising out of a prison disciplinary process”). 6 Plaintiff alleges that Detention Warden and Officer Gonzalez discriminated against 7 Plaintiff based on his race. Assuming a Bivens remedy applies, a plaintiff may bring an 8 equal protection claim under the Fifth Amendment by showing that “the defendants acted 9 with an intent or purpose to discriminate against the plaintiff based upon membership in a 10 protected class.” Lee v. City of Los Angeles,

(9th Cir. 2001); see United 11 States v. Carrillo-Lopez,

(9th Cir. 2023) (“The Supreme Court has 12 determined that ‘the Due Process Clause of the Fifth Amendment contains an equal 13 protection component prohibiting the United States from invidiously discriminating 14 between individuals or groups.’”). “[A] plaintiff may satisfy this showing by alleging four 15 separate elements: (1) that the plaintiff was treated differently from others similarly 16 situated; (2) this unequal treatment was based on an impermissible classification; (3) that 17 the defendant acted with discriminatory intent in applying this classification; and (4) the 18 plaintiff suffered injury as a result of the discriminatory classification.” Lam v. San 19 Fransico,

(N.D. Cal. 2022) (citing Pers. Adm’r of Mass. v. 20 Feeney,

(1979)). 21 Here, Plaintiff alleges that he was called a “monkey” and that his family information 22 was released to gang members. (ECF No. 27 at 2.) These allegations, when accepted as 23 true, are insufficient to establish that Detention Warden and Officer Gonzalez intentionally 24 treated Plaintiff different from similarly situated individuals because of his race. Plaintiff 25 does not allege, for example, that detainees of other races were treated differently than 26 Plaintiff. The lone conclusory allegation that Plaintiff “was intentionally treated differently 27 from similarly-situated individuals” cannot alone support Plaintiff’s equal protection 28 claim. ECF No. 27 at 2; see Iqbal,

(“Threadbare recitals of the elements of 1 a cause of action, supported by mere conclusory statements, do not suffice [to state a Bivens 2 claim].”). Further, while allegations that an officer used a racial slur may indicate racial 3 animus, “they do not by themselves amount to a constitutional violation absent having 4 treated a similarly situated inmate differently.” Hamiltonhausey v. Lewis, No. C 18-6179 5 WHA (PR),

, at *2 (N.D. Cal. May 30, 2019); see Hill v. Rowley, 658 6 Fed. App’x 840, 840–41 (9th Cir. 2016) (“The district court properly dismissed [the 7 plaintiff]’s failure-to-protect and equal protection claims based on [the defendant’s] 8 comments to [the plaintiff] because verbal harassment is insufficient to state a 9 constitutional deprivation.”); Sekona v. Perez, 1:19-cv-00400-NONE-GSA (PC),

2468089, at *9 (E.D. Cal. May 13, 2020) (“Mere verbal harassment or abuse, including the 11 use of racial epithets, does not violate the Constitution[.]”). 12 As to any alleged Fourth Amendment violation, assuming a Bivens remedy exists, 13 Plaintiff fails to state a claim. “The threshold inquiry in any Fourth Amendment analysis 14 is whether the government’s conduct is included in the Amendment’s coverage, in other 15 words, whether it amounts to a ‘search’ [or ‘seizure’] for constitutional purposes.” United 16 States v. Gonzalez,

(9th Cir. 2003). Plaintiff does not plead any facts 17 that reasonably can be interpreted as either a search or seizure. 18 The TAC is dismissed for failure to state a claim on which relief may be granted 19 pursuant to

(e)(2)(B)(ii). 20 III. LEAVE TO AMEND 21 The Court has already given Plaintiff the opportunity to amend his complaint three 22 times to no avail. Additionally, Plaintiff’s amended complaints have all mirrored the 23 factual allegations contained in the original complaint. The Court finds that granting further 24 leave to amend would be futile. Zucco Partners, LLC v. Digimarc Corp.,

, 25 1007 (9th Cir. 2009) (“[W]here the plaintiff has previously been granted leave to amend 26 and has subsequently failed to add the requisite particularity to its claims, [t]he district 27 court’s discretion to deny leave to amend is particularly broad.” (internal quotation marks 28 omitted) (second alteration in original)); Loos v. Immersion Corp.,

, 890–91 1 || (9th Cir. 2014) (“Because Plaintiff essentially re-pled the same facts and legal theories in 2 ||his amended complaint, the district court did not abuse its discretion in dismissing 3 || Plaintiff's claims with prejudice.” (quotations and citations omitted)); see Schmier v. U.S. 4 || Court of Appeals for the Ninth Circuit,

(9th Cir. 2002) (recognizing that 5 || “[flutility of amendment” is a proper basis for dismissal without leave to amend). 6 CONCLUSION 7 HEREBY ORDERED that the TAC 1s dismissed without prejudice and without 8 || leave to amend. The Clerk of the Court shall close this case. 9 Dated: September 17, 2024 BME: ie Z. A a 10 Hon. William Q. Hayes 11 United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28