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Ninth Circuit Disfavors First Amendment Bivens Claim Against Private Reentry Center

by Matthew Clarke

On February 7, 2018, the Ninth Circuit court of appeals held that a federal prisoner could not pursue a claim that a privately operated reentry center's employees had violated his First and Fifth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Federal prisoner Juan D. Vega was transferred to the Pioneer Fellowship House Residential Reentry Center in Seattle, Washington. He immediately experienced difficulties because his counselor and other employees would not permit him to visit a law library or receive attorney visits to support the five cases he had pending in court. When he was informed that he was required to work while at the Center, he told them he had been medically unassigned from work in the federal prison. He sought a medical exemption from the work requirement, but found a job within a few weeks and successfully completed the first level of his program.

A Center counselor wrote an Infraction Report stating that Vega had refused to obtain employment. He was transferred to a Federal Detention Center the next day without having been afforded a hearing. A week later, a Center official issued a disciplinary committee report stating that Vega had been removed from the Center because he was pursuing an active case with the Department of Labor without permission from Center staff.

Citing a lack of evidentiary support, federal prison officials refused to certify the disciplinary report. Vega was transferred to another residential reentry facility.

Vega filed a Bivens action, alleging Center officials violated his First Amendment right to access courts and Fifth Amendment due process rights by writing the bogus disciplinary infraction against him in retaliation for his litigation activities. The district court dismissed all the claims.

On appeal, the Ninth Circuit noted that, under Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), expansion of "implied causes of action" pursuant to Bivens was disfavored. Vega was asking for such an expansion to include a remedy against private defendants for First and Fifth Amendment violations. Such an expansion is especially disfavored when, as here, the plaintiff has an alternative means for relief. In addition to his successful disciplinary appeal, Vega could have sought review under the Administrative Remedy Program, 28 U.S.C. § 542.lO(a), or filed a lawsuit in state court with state law claims. Therefore, the judgment of the district court was affirmed.

See: Vega v. U.S., F.3d (9th Cir. 2018), No. 13-35311

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