ARNOLDO GARCIA V. JEH JOHNSON, No. 15-55129 (9th Cir. 2021)
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FILED NOT FOR PUBLICATION MAR 18 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT ARNOLDO ANTONIO GARCIA, Plaintiff-Appellant, No. U.S. COURT OF APPEALS 15-55129 D.C. No. 5:14-cv-02533-MWF-AN v. JEH CHARLES JOHNSON, as Secretary of Homeland Security; et al., MEMORANDUM* Defendants-Appellees. Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding Argued and Submitted March 2, 2021 San Francisco, California Before: BALDOCK,** WARDLAW, and BERZON, Circuit Judges. Arnoldo Antonio Garcia appeals a district court order dismissing his action, brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against the Secretary of Homeland Security, the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Bobby R. Baldock, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Panel Acting Director of the Bureau of Immigration and Customs Enforcement (“ICE”), the Assistant Field Office Director responsible for the Adelanto Detention Facility, and various John Doe officers from the Adelanto Detention Facility. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.1 1. The district court erred by concluding it lacked jurisdiction over Garcia’s Bivens claim. “It is clear that district courts do have jurisdiction over Bivens actions,” even in cases where the plaintiff ultimately cannot state a cause of action. Janicki Logging Co. v. Mateer, 42 F.3d 561, 563 (9th Cir. 1994). Bivens actions “are brought against employees of the federal government in their individual capacities and are brought to redress violations of citizens’ constitutional rights” and thus fall “firmly within the subject matter jurisdiction of the district courts.” Id. 2. In its form disposition the district court also dismissed Garcia’s complaint as frivolous, malicious, or failing to state a claim upon which relief may be granted. Garcia’s complaint was not malicious or frivolous, but it did fail to state a claim. Garcia alleged that ICE did not permit him to leave its custody to attend state court proceedings and as a result Garcia was unable to withdraw his plea in a criminal case. There is a “fundamental constitutional right of access to 1 This case was previously consolidated with Garcia v. Garland, 14-72775. We now sever the cases for the purpose of disposition. 2 the courts.” Bounds v. Smith, 430 U.S. 817, 828 (1977). The facts Garcia alleged suggest his right to access the courts may have been violated. However, that right arises under the First and Fourteenth Amendments. See e.g., Silva v. Di Vittorio, 658 F.3d 1090, 1103 (9th Cir. 2011), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). Garcia’s complaint did not mention the right to access the courts or either relevant constitutional amendment. Instead, Garcia alleged that ICE’s actions deprived him “of his liberty and his freedom from personal harm” under the Fifth and Sixth Amendments. Garcia’s complaint thus failed to state a claim even under the liberal construction afforded pro se filings. See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 3. The district court erred by not giving Garcia leave to amend his complaint. “A pro se litigant must be given leave to amend his or her complaint, and some notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). While Garcia’s complaint failed to state a claim, it was not “absolutely clear” that its faults were incurable. He alleged sufficient facts to show a potential constitutional violation. With proper judicial guidance, he could have revised the complaint to allege a violation of his right to access the courts under the proper constitutional amendments. Additionally, to the extent the 3 district court was concerned that the complaint sought monetary damages against defendants who are immune, Garcia could have named individual ICE officers. Finally, as to whether a Bivens action would lie under the standards of Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), those standards are situation-specific and legally complex, so their applicability can only be determined once an otherwise proper complaint has been filed. Because the district court erred in concluding it lacked jurisdiction and failing to allow Garcia leave to amend his complaint, we REVERSE and REMAND for further proceedings consistent with this disposition. 4
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