                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             MAY 2 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RAUL S. ZAVALA,                                  No.    15-17371

              Plaintiff-Appellant,               D.C. No. 1:09-cv-00679-MJS

 v.
                                                 MEMORANDUM*
HECTOR RIOS; et al.,

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Michael J. Seng, Magistrate Judge, Presiding

                       Argued and Submitted April 12, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and OLGUIN,**
District Judge.

      Plaintiff Raul Sanchez Zavala appeals an order granting summary judgment.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Because the parties are

familiar with the factual and procedural history of the case, we need not recount it

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Fernando M. Olguin, United States District Judge for
the Central District of California, sitting by designation.
here. We review the grant of summary judgment de novo. Davis v. City of Las

Vegas, 478 F.3d 1048, 1053 (9th Cir. 2007).

      Zavala seeks to pursue a claim for money damages under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for

alleged violations of procedural due process related to prison mail. “Bivens

established that the victims of a constitutional violation by a federal agent have a

right to recover damages against the official in federal court despite the absence of

any statute conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980).

However, the Supreme Court has since “adopted a far more cautious course before

finding implied causes of action.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017).

The “first question” we consider is whether this “case is different in a meaningful

way from previous Bivens cases decided by” the Supreme Court. Id. at 1859. If

so, we then consider “whether there were alternative remedies available or other

sound reasons to think Congress might doubt the efficacy or necessity of a

damages remedy in a suit like this one.” Id. (internal quotation marks omitted).

      In Ziglar, the Supreme Court clarified that “three cases—Bivens, Davis, and

Carlson—represent the only instances in which the Court has approved of an

implied damages remedy under the Constitution itself.” 137 S. Ct. at 1855

(referring to Davis v. Passman, 442 U.S. 228 (1979) and Carlson, 446 U.S. 14).


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Zavala’s claim is not sufficiently analogous to either Bivens, Davis, or Carlson.

The Supreme Court’s Fifth Amendment Bivens case, Davis, provides the closest

analogy for establishing the applicability of Bivens in the present case. However, it

is distinguishable in part because Davis was a gender discrimination claim under

the equal protection component of the Fifth Amendment’s Due Process Clause,

while Zavala’s claim is procedural. The difference is relevant to our consideration.

See Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018).

      Under Ziglar, an extension of Bivens is not available here because, as argued

and conceded by the government, Zavala may seek injunctive and declaratory

relief. For example, relief may be available under 5 U.S.C. § 702, 28 U.S.C.

§ 1361, or 28 U.S.C. § 1331. “[U]nlike the Bivens remedy, which we have never

considered a proper vehicle for altering an entity’s policy, injunctive relief has long

been recognized as the proper means for preventing entities from acting

unconstitutionally.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001); see

also Ziglar, 137 S. Ct. at 1862 (2017) (noting that injunctive relief best addresses

large-scale policy decisions). Zavala alleges constitutional harm caused by a

prison-wide policy of declining to provide notice to inmates or explanation to

senders upon the rejection of unopened mail. Injunctive and declaratory relief




                                           3
would prevent future constitutional harm. The availability and suitability of

equitable relief in this case counsels against the extension of Bivens.

      We therefore affirm the grant of summary judgment on Zavala’s procedural

due process claim for money damages but vacate the judgment insofar as Zavala

was barred by prior dismissal orders from seeking prospective relief.

      The remaining arguments in Zavala’s pro se brief are without merit.

      Each party should bear its or their own costs.

      AFFIRMED in part, VACATED in part, and REMANDED.




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