Carrillo v. Department of Justice

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 REFUGIO CARRILLO, Case No. 1:20-cv-00762-AWI-SAB 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. ACTION FOR FAILURE TO STATE A CLAIM 14 UNITED STATES DEPARTMENT OF JUSTICE, et al., (ECF Nos 4, 5. ) [15] Defendants. [17] Refugio Carrillo (“Plaintiff”), proceeding pro se and in forma pauperis, filed this civil [18] rights action pursuant to 42 U.S.C. § 1983 . The matter was referred to a United States magistrate [19] judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. [20] On June 5, 2020, the magistrate judge filed a findings and recommendations [21] recommending that Plaintiff’s complaint be dismissed for failure to state a claim. On June 19, [22] 2020, Plaintiff filed objections to the findings and recommendations. [23] In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a [24] de novo review of this case. Having carefully reviewed the entire file, the court finds the [25] findings and recommendations to be supported by the record and by proper analysis. [26] In his objections, Plaintiff argues that the United States waived immunity and he [27] exhausted his administrative remedies so the question as to whether or not he has a claim under wOAOe EOIN OPA MUI OP OY OI 1 | the FCTA is not in question. Plaintiff contends that being denied the right to amend his 2 | complaint violates his right under the Sixth Amendment. However, “the protections provided by 3 | the Sixth Amendment are available only in ‘criminal prosecutions.’ ” United States v. Ward, 448 US. 242, 248 (1980). “[T]he Sixth Amendment does not govern civil cases.” Turner v. Rogers, 5 | 564 U.S. 431 , 441 (2011); see also Carty v. Nelson, 426 F.3d 1064, 1073 (9th Cir.), opinion 6 | amended on denial of reh’g, 431 F.3d 1185 (9th Cir. 2005) (“Sixth Amendment right to 7 | confrontation does not attach in civil commitment proceedings.”); United States v. $292,888.04 8 U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995), as amended (May 24, 1995) (Sixth 9 | Amendment right to counsel does not attach to civil forfeiture proceedings). 10 In this instance, the issue is whether a remedy for a violation of Plaintiff's constitutional 11 | rights exists under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 12 | U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. The 13 | magistrate judge properly considered the two part test articulated in Ziglar v. Abbasi, 137 S. Ct. 14 | 1843 (2017), and found that the special factors counsel against extending a Bivens remedy to the 15 | claims raised by Plaintiff in this action. Since Bivens does not provide a remedy for the 16 | constitutional violations alleged in this action, as the magistrate judge found, providing Plaintiff 17 | with leave to amend would be futile. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The findings and recommendations, filed June 5, 2020, is ADOPTED IN FULL; 20 2. Plaintiff's complaint, filed June 2, 2020, is DISMISSED WITHOUT LEAVE TO 21 AMEND for failure to state a claim; and 22 3. The Clerk of the Court is DIRECTED to close this matter. [23] IT IS SO ORDERED. 95 | Dated: _ August 20, 2020 —. Zz : 7 Cb bod — SENIOR DISTRICT JUDGE