     Case: 15-40786      Document: 00513580721         Page: 1    Date Filed: 07/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                    No. 15-40786                            FILED
                                  Summary Calendar                       July 6, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
JULIO CESAR CARDENAS,

                                                 Plaintiff-Appellant

v.

JODY YOUNG, Assistant U.S. Attorney; BOBBY LARA, U.S. Marshal;
PRIETO, S.I.S. at Willacy County Regional Detention Center,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:14-CV-256


Before REAVLEY, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Julio Cesar Cardenas (Cardenas), federal prisoner # 22586-379, appeals
the district court’s dismissal of his Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971), action for failure to state a claim
upon which relief may be granted. Cardenas argues that the district court
erred by dismissing his retaliation and class of one equal protection claims. He



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 15-40786

contends that the district court erred by dismissing his due process claims
based upon inadequate segregation review, conspiracy to harm, and improper
motivation without explicitly considering them. According to Cardenas, the
district court erred by dismissing his complaint without conducting a hearing
pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), allowing him the
opportunity to retain counsel, or allowing him to amend his complaint. He
maintains that the district court’s assessment of a strike against him pursuant
to 28 U.S.C. § 1915(g) violated the First Amendment.
       “A dismissal of a civil rights complaint for failure to state a claim is
reviewed de novo, using the same standard applicable to dismissals under
Federal Rule of Civil Procedure 12(b)(6).” Rogers v. Boatright, 709 F.3d 403,
407 (5th Cir. 2013). “Bivens established that the victims of a constitutional
violation by a federal agent have the right to recover damages against the
official despite the absence of a statute conferring such a right.” Carlson v.
Green, 446 U.S. 14, 18 (1980). A Bivens action is substantially similar to an
action under 42 U.S.C. § 1983, although § 1983 applies to constitutional
violations by state, rather than federal, actors. Izen v. Catalina, 398 F.3d 363,
367 n.3 (5th Cir. 2005). Analysis of a Bivens claim therefore “parallel[s] the
analysis used to evaluate state prisoners’ § 1983 claims.” Stephenson v. Reno,
28 F.3d 26, 27 (5th Cir. 1994) (internal quotation marks and citation omitted).
Thus, while it is unclear whether Lt. Prieto, an officer at the Willacy County
Regional Detention Center (WCRDC), is a federal official or a state official, we
need not resolve this issue. 1 See Izen, 398 F.3d at 367 n.3.
       Cardenas did not allege that there was direct evidence of retaliatory
motivation. Thus, he was required to “allege a chronology of events from which



      1  Cardenas was held at the WCRDC prior to his federal criminal trial and between his
conviction and sentencing.


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retaliation may plausibly be inferred.” Woods v. Smith, 60 F.3d 1161, 1166
(5th Cir. 1995) (internal quotation marks and citation omitted). According to
Cardenas’s allegations, the only complaints Cardenas made about government
officials and witnesses were made in or around September or October of 2012,
five to six months before he was placed in segregation, and after he was placed
in segregation.   Thus, retaliation cannot be plausibly inferred from the
chronology of events alleged by Cardenas, and Cardenas’s retaliation claim
alleges nothing more than Cardenas’s “personal belief that he is the victim of
retaliation.” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (internal
quotation marks and citation omitted). Accordingly, he has not shown that the
district court erred by dismissing this claim. See id.
      Cardenas asserts that he was treated differently than Alejandro Jimenez
and Joel Villareal because he was placed in segregation based upon
accusations that he was threatening witnesses while Jimenez and Villareal
were not placed in segregation despite engaging in similar activities. However,
as Cardenas alleged, Jimenez and Villareal were cooperating with law
enforcement while Cardenas was awaiting trial. Additionally, Cardenas, at
the time he was placed in segregation, was facing trial and could, therefore,
attempt to intimidate witnesses against him while both Jimenez and Villareal
had confessed, Jimenez had pleaded guilty, and neither was likely facing a
trial, meaning there were not any witnesses against them for them to
intimidate. Furthermore, Cardenas alleged that he had been assaulted at the
WCRDC, but he did not allege that Jimenez and Villareal had been harmed.
Thus, Cardenas’s allegations did not show that he was similarly situated to
Jimenez and Villareal.
      As Cardenas did not allege facts showing that he was treated differently
than similarly situated individuals, he failed to state a viable equal protection



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claim. See Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998). He has not shown
that the district court erred by dismissing this claim. See id.
      During the time that Cardenas was held in segregation, he was convicted
of numerous criminal offenses.       Cardenas’s allegation that he received
inadequate segregation review for the time he was a convicted prisoner failed
to state a viable claim.   See Sandin v. Conner, 515 U.S. 472, 484 (1995).
Cardenas’s reliance on Hewitt v. Helms, 459 U.S. 460, 474 (1983), is misplaced
because that holding was overruled by Sandin, 515 U.S. at 483-84.
      For the portion of time that Cardenas was held in segregation as a pre-
trial detainee, the allegations of Cardenas’s complaint showed that Cardenas
was assaulted prior to being placed in segregation; Cardenas was being held
at the same facility as Jimenez, a witness against Cardenas at his upcoming
trial; and Cardenas was accused of threatening witnesses against him. These
allegations show that the legitimate governmental objectives of protecting
Cardenas, separating Cardenas from a witness testifying against him at trial,
and preventing Cardenas from threatening witnesses were reasonably related
to holding Cardenas in segregation. Thus, even though Cardenas alleged that
he was placed in segregation as punishment, his complaint failed to state a
viable claim that his placement in segregation without review as a pre-trial
detainee violated his due process rights. See Bell v. Wolfish, 441 U.S. 520, 539
(1979). Cardenas has not shown that the district court erred by dismissing
this claim. See Sandin, 515 U.S. at 484; Bell, 441 U.S. at 539.
      Cardenas did not allege that the defendants expressly made an
agreement to violate his constitutional rights. The only allegations made by
Cardenas concerning an agreement between the defendants were an allegation
that unidentified officials at the WCRDC told him that Deputy United States
Marshal Bobby Lara and Assistant United States Attorney (AUSA) Jody



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Young ordered that he be placed in segregation and an allegation that he
“made an observation that defendant[s] Young, Lara, [a]nd Prieto were in
agreement to deny plaintiff equal protection of the law and due process of law.”
Furthermore, the only allegations of harm made by Cardenas were that he was
attacked by unidentified inmates at the direction of Jimenez and Villareal, that
he was placed in segregation by an unidentified classification officer at the
WCRDC, and that his stepfather was attacked in Mexico by Jimenez’s brother.
None of these allegations involved any of the defendants. These conclusory
allegations were not sufficient to state a viable conspiracy claim. See McAfee
v. 5th Circuit Judges, 884 F.2d 221, 222 (5th Cir. 1989). Cardenas has not
shown that the district court erred by dismissing his conspiracy to harm claim.
See id.
      Cardenas alleged that he and Young got in a fight in 1995, and he
asserted that when he mentioned this to Young, Young told him that the fight
had occurred a long time ago. Cardenas further alleged that an unidentified
officer who arrested him told him that Young hated him. Cardenas made no
further allegations regarding the fight between him and Young.              These
speculative and conclusory allegations were insufficient to state a viable
constitutional due process claim. See Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007).
      Cardenas’s assertion that Young was liable for failing to discipline
Jimenez and Villareal is also without merit.           Government officials are
generally not liable for failing to protect an individual against private violence.
DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189, 197 (1989).
Furthermore, even if Jimenez and Villareal, as government informants, could
somehow be considered subordinates of the defendants, “[g]overnment officials
may not be held liable for the unconstitutional conduct of their subordinates



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under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009).   Instead, Cardenas was required to allege that AUSA Young was
personally involved in the alleged constitutional violation or that there was a
sufficient causal connection between his actions and the alleged constitutional
violation, and Cardenas failed to do this. See Kohler v. Englade, 470 F.3d 1104,
1115 (5th Cir. 2006).
      Given the long amount of time between the issuance of the magistrate
judge’s report and recommendation and the dismissal of the complaint,
Cardenas was given sufficient opportunity to amend his complaint or retain
counsel but simply failed to do so. Furthermore, Cardenas failed to identify
any additional facts he would allege in amended complaint; in this court all he
states is that he could have amended his complaint to add a negligence claim
under the Federal Tort Claims Act (FTCA). Cardenas, however, does not allege
any additional facts or explain how liability under the FTCA could be based
upon the actions alleged in his complaint.
      As Cardenas has still yet to explain what new facts he could allege and,
as shown above, his complaint failed to allege a viable claim, Cardenas alleged
his best complaint and any attempt to amend would have been futile. See
Marucci Sports, L.L.C. v. NCAA, 751 F.3d 368, 378 (5th Cir. 2014); Bazrowx v.
Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). Accordingly, the district court did
not abuse its discretion by not giving Cardenas an opportunity to amend his
complaint. See Marucci Sports, L.L.C., 751 F.3d at 378; Bazrowx, 136 F.3d at
1054. Cardenas’s assertion that the district court violated his due process
rights by failing to hold a Spears hearing is without merit. See Green v.
McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).
      Section 1915(g) is a procedural statutory provision that “does not affect
a prisoner’s substantive rights, and it does not block his or her access to the



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courts.” Adepegba v. Hammons, 103 F.3d 383, 386 (5th Cir. 1996). It “does not
prevent a prisoner with three strikes from filing civil actions; it merely
prohibits him from enjoying IFP status.” Carson v. Johnson, 112 F.3d 818, 821
(5th Cir. 1997). The Constitution only requires the waiver of filing fees in
criminal cases and civil proceedings implicating fundamental interests such as
divorce actions and proceedings to terminate parental rights. Id. Cardenas’s
civil action does not implicate a fundamental interest. See id. (holding that
lawsuit   seeking    reassignment   from    segregation   does   not   implicate
fundamental right). Accordingly, § 1915(g) does not block access to the courts,
and it is not unconstitutional as applied to Cardenas. See id.
      The judgment of the district court is AFFIRMED. The district court’s
dismissal of Cardenas’s complaint for failure to state a claim counts as a strike
for purposes of § 1915(g). See Adepegba, 103 F.3d at 387-88. Cardenas is
CAUTIONED that if he accumulates three strikes, he will not be able to
proceed IFP in any civil action or appeal while he is incarcerated or detained
in any facility unless he is under imminent danger of serious physical injury.
See § 1915(g).




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