NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS BUENROSTRO, No. 18-15488
Plaintiff-Appellant, D.C. No.
1:14-cv-00075-DAD-BAM
v.
DAVID FAJARDO, Assistant Warden, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted April 9, 2019
Pasadena, California
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,** District
Judge.
Appellant is a federal prisoner serving a sentence for conspiracy to
manufacture methamphetamine. While in prison, Appellant filed a lawsuit and
several administrative grievances. Appellant alleges that the warden and various
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
other prison officials harassed and punished Appellant in retaliation for filing the
lawsuit and grievances.
Appellant brought his lawsuit in federal court and consented to a magistrate
judge. On three separate occasions, the magistrate judge directed Appellant to
amend his petition because it did not comply with the relevant joinder rules.
Appellant never corrected the issue, and the magistrate judge dismissed several
defendants from the lawsuit based on Appellant’s failure to meet the joinder
requirements.
After dismissing several of the defendants and related claims, the magistrate
judge screened what remained in Appellant’s Third Amended Complaint. The
magistrate judge found that Appellant failed to state a claim on which relief may
be granted. The magistrate judge therefore recommended dismissal of the petition.
The district court adopted the magistrate judge’s report and recommendations.
Appellant appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
We review de novo the order dismissing the Third Amended Complaint for
failure to state a Bivens claim. Vega v. United States, 881 F.3d 1146, 1152 (9th
Cir. 2018). We review the district court’s order dismissing claims or parties based
on misjoinder for abuse of discretion. Coughlin v. Rogers, 130 F.3d 1348, 1351
(9th Cir. 1997).
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Ziglar v. Abassi, 137 S. Ct. 1843, 1857 (2017), instructs against further
extensions of Bivens to “new” contexts. Appellant concedes that his First
Amendment claim arises in a “new” context. Therefore, we analyze whether there
are “special factors counselling hesitation” or whether an alternative remedial
structure limits our authority to infer a new Bivens cause of action here. Id. at
1857-58.
Based on the record before us, special factors counsel against extending
Bivens to Appellant’s First Amendment claim; for example, Congress has
addressed the question of prisoners’ remedies in the Prison Litigation Reform Act
of 1995, 42 U.S.C. § 1997e. In addition, an alternative remedial structure exists,
including through the Bureau of Prisons administrative grievance process. See
Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001); United States v. Stanley,
483 U.S. 669, 683 (1987); Bush v. Lucas, 462 U.S. 367, 388 (1983). We conclude
that extending Bivens to Appellant’s First Amendment claim is not appropriate in
this case.
Appellant’s Complaints raised claims against several other defendants,
which were dismissed as improperly joined. Persons may be joined as defendants
in an action if: “(A) any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and (B) any question of law or fact
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common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). The
magistrate judge noted that Appellant’s other claims did “not arise out of the same
transactions or occurrences involving [the warden],” and dismissed the other
defendants. The district court adopted the magistrate judge’s recommendations.
The district court did not abuse its discretion by dismissing the other defendants
and related claims because Appellant failed to meet the joinder requirements.
AFFIRMED.
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