John Badea v. Harvey Cox
931 F.2d 573
9th Cir.
1991
Check Treatment

*2 PREGERSON, Rodriguez, ment. Preiser v. U.S. Before REINHARDT HALL, 36 L.Ed.2d Judges. and Circuit action, contrast, (1973). rights A civil is REINHARDT, Judge: proper challenging method of “condi 498-99, tions of confinement.” Id. at ... Badea, the Federal a former inmate of parties dispute 93 S.Ct. at 1840-41. The California, Camp Lompoc, at Prison community a a treat transfer to rights against the brought a civil action ment center would have constituted a and two officials for their warden change in of confinement or length condi repeated requests place- denial of his for confinement, of and therefore wheth tions community in a treatment center.1 sought through relief er Badea should have sought declaratory in- complaint His and petition rights complaint. a habeas or a civil relief, compensatory puni- junctive and and Scott, (9th Braun v. 927 F.2d 1516 See damages. tive The district court referred Cir.1991) rehearing banc); (ordering en magistrate, Badea’s case to a who conclud- Rison, Brown v. properly could raise his ed that Badea time, passage Because of the only through corpus pro- claims habeas we need not resolve that issue. ceeding through rights and not a civil ac- magistrаte tion. The recommended dis- appeal Prior to the time that his was missing pursuant the action to Fed.R.Civ.P. heard, parole. Badea was released on Ac 12(b)(6) for failure to state a claim cordingly, longer he no seeks a transfer to granted. The district which relief be community Any сenter. treatment re magistrate’s findings, adopted court quest relating relief to an actual conclusions, recommendations, and dis- change in the duration conditions his missed the case. moot, confinement is now and the claims properly claims of He that remain are аsserted in a civil Badea raises several error. rights argues first ‍​​​​‌‌‌​‌​‌‌​‌‌‌​‌​‌‌‌​​​​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌​​‌‍that the district court erred suit. See Bivens v. Six Unknown refusing Agents to transfer his case to another Named Federal Bureau Nar cotics, recently presided judge who had over U.S. (1971). argues He then that the dis- L.Ed.2d 619 Were we to affirm the similar case. court, inadequately considered his ob- district Badea would be unable to trict petition jections magistrate’s report to the and file a habeas to obtain relief he failing provide seeking monetary damages. is now Ac erred him with a state- — cordingly, and remand for thе complaint’s ment of his we reverse deficiencies before not to discrimi- appellees § 1. Badea his under 28 C.F.R. 551.90 be that the violated rights process against origin. Fifth Amendment to due nated because of national laws, equal protection of the as well as his remanded, I accordingly the merits of Ba- case should be to consider district court dissent. rights claim.2 dea’s civil clearly power affirm,

We have the below, despite reasoning defective long so II. the record sufficient as to sustain an district court argues Badea *3 ground alternative for thе decision. See his case to another have transferred should Gowran, 238, 245, Helvering v. 302 U.S. 58 factually heard a similar judge who had (1937); 82 L.Ed. 224 S.Ct. Golden argu This involving parties. different case Nugget Exchange, v. American Stock 828 in the District is without basis law. ment 586, (9th Cir.1987); F.2d Charley’s 590 discretion” re judges have “broad Hawaii, Dispatсh Radio ‍​​​​‌‌‌​‌​‌‌​‌‌‌​‌​‌‌‌​​​​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌​​‌‍v. Taxi Sida of assignment reassignment or garding the 869, Inc., (9th Cir.1987); 810 F.2d 874 Se 876 Gray, v. cases. See United States attle Times v.Co. Seattle Mailer’s Union 1411, Cir.1989), denied, (9th F.2d 1414 cert. 32, 664 F.2d 1366 No. — U.S. -, 2168, 109 L.Ed.2d 110 S.Ct. In the instant case the record is suffi- (1990); DeLuca, v. 692 United States to decide whether cient dismissal on the (9th Cir.1982). 1277, 1281 “We do not F.2d 12(b)(6) appro- officials’ motion was de independently a district court’s review 12(b)(6) priate. motion is decided scope application the and termination of the pleadings, on we have before us all general orders we local rules and because it, the court had that district before аnd all in in give district courts broad discretion that the district court will it have before determining the terpreting, applying, and 12(b)(6) when the next motion is made. requirements their own local rules and Moreover, remanding plaintiff’s case to general Gray, orders.” 876 F.2d at 1414. again force the district court tо consider to the This case is therefore remanded has stated a claim will judge proceed for further same district accomplish nothing. alleges three ings. he due bases for relief: that was denied AND REMANDED REVERSED law, process equal he was denied protection, and that officiаls violated HALL, concurring Judge, and regulations proscribing discrimination dissenting. ethnicity. on race or Plaintiff can based any claims not succeed on of these three complaint Plaintiff’s was dismissed be- prove allegations even if his true. a claim which low for failure to state granted. relief could be See Fed.R.Civ.P. Fifth Amend- Plaintiff claims that his 12(b)(6). agree majori- process I violat- Although with the to due has been ed, sup- any possessed by alleges claim Ba- but he no facts that would ty that habeas moot, allege that port this claim.1 Plaintiff does agree dea is now I do nоt that this dissenting colleague it had an the dis- that the issue not be decided until has 2. Our would affirm case, ground that the merits of opportunity trict court on Badea’s case cannot survive a motion to dismiss pursuant In this we see no to do so. decide ab initio issues that the district reason to 12(b)(6). recognizes, to Rule As she opportunity had an to consider court has not court never considered the merits of the district present impression questions of first and that Nevertheless, the dissent would have this issue. may well be valid reasons our circuit. There validity of Badea’s constitutional us rulе on the initially appeal considering on for our issues regulatory as an exercise of our claims suggested here. other cases but none has been any ground power to the district court on affirm Accordingly, purpose of al- we remand for supported by the recоrd. lowing to address the merits in the district court Although power it clear that we have the the first instance. basis, need not do so affirm on an alternate we prudential properly "as a matter” can motion, 12(b)(6) qualified 1. Because this is Nugget, mand to the district court. See Golden immunity Qualified im- сannot be considered. Inc., Exchange, v. Stock Inc. American defense, Walton, munity v. is a see Merriman 586, (9th Cir.1987). the issue on While 12(b)(6) (9th Cir.1988), tests colleague our would have us decide the which pleadings. adequacy plaintiff’s F.R. of the law, government purely case is one of 12(b)(6). Civ.P. requested yet question not briefed the and has only or procedures were used de on the existence nonexistence of only minimal Community admit him to the ciding specified predicates.” not to substantive Tous- However, validity Treatment Center. saint, F.2d at beyond procedures is our reach. of these regulations The statute and at issue in any court can address a For before this or explicitly mandatory. this case are not claim, process the court must first find due provides: “liberty” “property” interest of affected. v. shall, has been Olim The Bureau of Prisons to the ex- Wakinekona, 461 U.S. practicable, tent assure that a (1983); Helms, 75 L.Ed.2d Hewitt serving imprisonment spends a term of part, reasonable not to exceed six (1983); Brown, Dorfmont months, per of the last 10 centum of the *4 (9th Cir.1990); Toussaint v. McCar term to be ‍​​​​‌‌‌​‌​‌‌​‌‌‌​‌​‌‌‌​​​​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌​​‌‍served under conditions that (9th Cir.1986), thy, 801 F.2d 1080 cert. den. prisoner op- will afford the a reasonable 2462, L.Ed.2d 481 U.S. portunity adjust prepare to to for his (1987). re-entry community. into the implicitly Plaintiff has asserted that his 3624(c). 18 U.S.C. § liberty slighted by interest was the him officials’ refusal to transfer to a less Although the statute uses the word restrictive environment. Yet it is clear un “shall,” vague it also uses the terms “to controlling authority plaintiff’s that de der practicable,” the extent and “conditions sire for a less-restrictive environment with prisoner that will the afford reasonable system cognizable in the is not correction Thus, opportunity.” consid- liberty possible There are interest. two erably еxplicit than an less mandate that liberty from which a can sources interest prisoners assigned like the be to arise; applicable itself and Constitution Community Treatment As this Centers. Olim, 247-51, 103 law. 461 U.S. at S.Ct. at before, court has said “the word ‘shall’ 1746-48; Hewitt, 468-471, 459 U.S. at Rather, liberty alone is not sufficient. 869-71; Toussaint, S.Ct. at 801 F.2d аt interest is created when the word ‘shall’ is Supreme directly 1089. The ad Court ” procedures.... used to mandate certain question dressed the whether the transfer Toussaint, (finding 801 F.2d at 1098 that prisoner of a ato more restrictive environ procedures liberty were mandated so that a impinges сonstitutionally on a created created). 3624(c) interest was Section liberty interest in Hewitt. The Court held procedures. fers to no It is instead a impinge that such a transfer does not on a broadly setting gen- worded statute forth a interest, liberty impos even if the transfer policy guide рrison system. eral to hardships” prisoner. es on the “severe Hewitt, at 467 n. at & S.Ct. Moreover, regulations the ‍​​​​‌‌‌​‌​‌‌​‌‌‌​‌​‌‌‌​​​​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌​​‌‍courts look to 7; Toussaint, 869 & n. 801 F.2d at see also considering as well as statutes 1092. The defendants’ disinclination to applicable provides law with a appellant transfer to а less restrictive envi Toussaint, “liberty” interest. See ronment thus cannot be said to affect a prison regulations at 1097-1098. The “liberty” constitutional interest. support issue do not the existence of a plaintiff might liberty also have a liberty regulations pro- interest. For these growing appliсable interest out statutes prisoners plaintiff, prison- vide that like the Hewitt, regulations. See 459 U.S. at lodged ers state sentences as who have 469-471, question at 870-71. The S.Ct. detainers, ordinarily eligible are not regulations is whether these statutes and reassignment Community to Treatment merely do morе than channel administra- Centers. discretion; “explicitly they tive must be that also asserts he has been mandatory.” 103 S.Ct. at 871. Id. at equal protection equal In denied under the words, other law must direct “the ... given component Fifth protection be taken or avoided Amendment action will Howerton, Burnham, 1481-82 Cir. process. See Adams due (9th Cir.) (the 1990), Four grant 1041 n. 3 the Seventh Circuit affirmed a & apply summary judgment equal does not protec teenth Amendment on an Fifth government, but the Amend federal claim. allega tion The court reasoned that protection component), equal аn ment contains merely tions based on “[discrimination 1111, 102 denied, 458 U.S. individual, rt. group, rather than reasons will ce 3494, (1982). Plaintiff ar equal protection not suffice” for an claim. equal gues the defendants violated his that the New Burnham had not administering rights by protection discrimination, alleged any group hе failed inequitably. regulations equal protection to state an claim. appellate ‍​​​​‌‌‌​‌​‌‌​‌‌‌​‌​‌‌‌​​​​​‌‌‌‌‌‌‌​‌‌‌‌‌​​​​‌​​‌‍Although no Ninth Brady Under either the or New Burn- precedent appears directly point, on be approaches, plaintiffs equal protec- ham circuits and the central distriсt have other given tion claim fails. Plaintiff has no precise inequitable issue of addressed indication, “singled out,” if he was different standards administration. Two defendants’ group decision was based on courts; by these other have been used Moreover, plaintiff giv- discrimination. neither. plаintiff has satisfied “singled en no indication that he was out.” Rather, the defendants are to have was articu- The less-restrictive standard *5 plaintiff in general treated accord with by Brady lated Second Circuit practice.2 Colchester, (2d Town of Cir.1988). Brady, In the court held that a Plaintiff also сontends that defendants charge allegedly ineq- an plaintiff must prison regulation. have violated a This deliberately only official not with uitable regulation provides: “Inmates not be him, interpreting against but also race, against discriminated on the basis of interpreta- singling him out for that with sex, religion, nationality, handicap, politi- or evidence suf- Brady tion. The court found cal belief.” 28 C.F.R. 551.90. Plaintiff § preclude summary judgment ficient alleged, example, dispro- not that a has plaintiff against under this standard. portionate number of Caucasian inmates Arroyo County In Partners v. Vista Community Treat- have been transferred to Barbara, (C.D.Cal. F.Supp. 1046 Santa groups other ethnic ment Centers while 1990) court relied on Brady, the district but have fared less well. Such a course of applied stringent test. The actually more prohibited by administration would be sec- equal protection plaintiff held that an Instead, plaintiff alleged 551.90. has tion charge govern must do more than that the that he has been treated accord with singled ment has him out for undesirable general rule. has not al- allege treatment. The must out, singled leged that he has been and has singled impermissi he has been out on an alleged any broad-based differential not ble basis. treatment, stated a claim that he has not 551.90. To defendants violated section adopted a re The Seventh Circuit to rule that if a hold otherwise would be approach equivalent that seеms strictive single serving a concur- Caucasian inmate by the standard used the district court to a rent state sentence is transferred Com- In Arroyo New Burn Vista Partners. Center, similarly Homes, munity every Village Inc. v. Treatment ham Prairie Feeney, general equal protection princi istrator v. 2. Under more equal protec (1979); ples plaintiff Stop an also fails to state see also Dole, tion claim. For "the decisionmaker lect) se [must] H-3 Assoc. v. reaffirm) [facially particular neu ] ] has not even part ‘because course of action at least in tral] of,’ undertaken that has course of action has been of,' merely spite not ‘in its adverse effects group, on an identifiable an adverse effect group.” an Personnel Admin identifiable ethnicity- inmate of a different situated

must be transferred as well.3

I affirm the district court. would Anne F.

Howard S. HOWARD and Ho

ward; Warner, Ray Jr.; Roger W. Fran

zen; Robert Lindner W. Carole

Lindner; Paul A. Rittenhouse and Ann Rittenhouse;

M. Andrew C. Bambeck Bambeck; Nancy A. Martin J. Gould; H. L.

Gould Gloria Jerome Grosvenor, and Danna B.

Grosvenor

Petitioners-Appellants,

COMMISSIONER OF INTERNAL

REVENUE, Respondent-Appellee.

No. 90-70028. Appeals,

United States Court

Ninth Circuit.

Argued and Submitted Jan. 1991. April

Decided right much lеss that course of action has been Whether there can ever be a of action because undertaken its adverse effect. under section 551.90 need not be addressed in private this dissent. For even if there is such a plaintiffs 3. This discussion of section 551.90 action, evident, point is far from way implies claim in no that sec- a conclusion plaintiff has not stated a claim. private right tion 551.90 creates a of action.