NOT FOR PUBLICATION FILED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.
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
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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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