Arnoldo Garcia v. Jeh Johnson

                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 18 2021
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

ARNOLDO ANTONIO GARCIA,                          No.   15-55129

                 Plaintiff-Appellant,            D.C. No.
                                                 5:14-cv-02533-MWF-AN
  v.

JEH CHARLES JOHNSON, as Secretary of             MEMORANDUM*
Homeland Security; et al.,

                 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.

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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


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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.




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