FILED
NOT FOR PUBLICATION
MAY 2 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAUL S. ZAVALA, No. 15-17371
Plaintiff-Appellant, D.C. No. 1:09-cv-00679-MJS
v.
MEMORANDUM*
HECTOR RIOS; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Michael J. Seng, Magistrate Judge, Presiding
Argued and Submitted April 12, 2018
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and OLGUIN,**
District Judge.
Plaintiff Raul Sanchez Zavala appeals an order granting summary judgment.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties are
familiar with the factual and procedural history of the case, we need not recount it
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Fernando M. Olguin, United States District Judge for
the Central District of California, sitting by designation.
here. We review the grant of summary judgment de novo. Davis v. City of Las
Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007).
Zavala seeks to pursue a claim for money damages under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for
alleged violations of procedural due process related to prison mail. “Bivens
established that the victims of a constitutional violation by a federal agent have a
right to recover damages against the official in federal court despite the absence of
any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980).
However, the Supreme Court has since “adopted a far more cautious course before
finding implied causes of action.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).
The “first question” we consider is whether this “case is different in a meaningful
way from previous Bivens cases decided by” the Supreme Court. Id. at 1859. If
so, we then consider “whether there were alternative remedies available or other
sound reasons to think Congress might doubt the efficacy or necessity of a
damages remedy in a suit like this one.” Id. (internal quotation marks omitted).
In Ziglar, the Supreme Court clarified that “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.” 137 S. Ct. at 1855
(referring to Davis v. Passman, 442 U.S. 228 (1979) and Carlson, 446 U.S. 14).
2
Zavala’s claim is not sufficiently analogous to either Bivens, Davis, or Carlson.
The Supreme Court’s Fifth Amendment Bivens case, Davis, provides the closest
analogy for establishing the applicability of Bivens in the present case. However, it
is distinguishable in part because Davis was a gender discrimination claim under
the equal protection component of the Fifth Amendment’s Due Process Clause,
while Zavala’s claim is procedural. The difference is relevant to our consideration.
See Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018).
Under Ziglar, an extension of Bivens is not available here because, as argued
and conceded by the government, Zavala may seek injunctive and declaratory
relief. For example, relief may be available under 5 U.S.C. § 702, 28 U.S.C.
§ 1361, or 28 U.S.C. § 1331. “[U]nlike the Bivens remedy, which we have never
considered a proper vehicle for altering an entity’s policy, injunctive relief has long
been recognized as the proper means for preventing entities from acting
unconstitutionally.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); see
also Ziglar, 137 S. Ct. at 1862 (2017) (noting that injunctive relief best addresses
large-scale policy decisions). Zavala alleges constitutional harm caused by a
prison-wide policy of declining to provide notice to inmates or explanation to
senders upon the rejection of unopened mail. Injunctive and declaratory relief
3
would prevent future constitutional harm. The availability and suitability of
equitable relief in this case counsels against the extension of Bivens.
We therefore affirm the grant of summary judgment on Zavala’s procedural
due process claim for money damages but vacate the judgment insofar as Zavala
was barred by prior dismissal orders from seeking prospective relief.
The remaining arguments in Zavala’s pro se brief are without merit.
Each party should bear its or their own costs.
AFFIRMED in part, VACATED in part, and REMANDED.
4