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28 REPORT AND RECOMMENDATION - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

VINCENT DANIEL HOPPER, a/k/a Vincent

Daniel Hopper Marks, a/k/a Antolin Andrew

Marks, a/k/a Wayne Rudder

Plaintiff,

v.

NEIL CLARK, et al.,

Defendants.

Case No. C06-5282 RBL/KLS

REPORT AND

RECOMMENDATION

NOTED FOR:

FEBRUARY 16, 2007

This Bivens action has been referred to United States Magistrate Judge Karen L. Strombom

pursuant to Title 28 U.S.C. § 636(b)(1) and Local MJR 3 and 4. Plaintiff, Vincent Daniel Hopper,

an immigration detainee at the Northwest Detention Center (NWDC), has filed a Complaint against

three employees of the Department of Homeland Security, Immigration and Customs Enforcement,

Office of Detention and Removal, alleging violation of his First and Fifth Amendment rights. (Dkt. #

5). Defendants Clark, Garman and Melendez, whom Plaintiff has sued in their individual capacities,

have moved pursuant to Federal Rules of Civil Procedure 12(b)(6) to dismiss Plaintiff’s Complaint,

arguing that they are entitled to qualified immunity as Plaintiff has failed to show that their actions

would have violated a clearly established right. (Dkt. # 12). This report follows, recommending that

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Defendants’ motion to dismiss was originally noted for consideration on September 29,

2006. Plaintiff did not respond to that motion, a fact noted in Defendants’ reply. Plaintiff responded

that he never received a copy of the original motion, so the Court re-noted the motion to allow

Plaintiff additional time to properly respond. (Dkt. # 22).

REPORT AND RECOMMENDATION - 2

Defendants’ motion to dismiss be granted.1

I. STANDARD OF REVIEW

The court’s review of a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6) is limited to

the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). All material factual

allegations contained in the complaint “are taken as admitted” and the complaint is to be liberally

“construed in the light most favorable” to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421

(1969); Lee, 250 F.3d at 688. A complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6)

“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). 

Dismissal under Fed. R. Civ. P. 12(b)(6) may be based upon “the lack of a cognizable legal

theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica

Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Vague and mere “[c]onclusionary allegations,

unsupported by facts” are not sufficient to state a claim under 42 U.S.C. § 1983. Jones v.

Community Development Agency, 733 F.2d 646, 649 (9th Cir. 1984); Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992). Even though the court is to construe the complaint liberally, such

construction “may not supply essential elements of the claim that were not initially pled.” Pena, 976

F.2d at 471. 

Before the court “may dismiss a pro se complaint for failure to state a claim, it “must provide

the pro se litigant with notice of the deficiencies of his or her complaint and an opportunity to amend

the complaint prior to dismissal.” McGuckin v. Smith, 974 F.2d 1050, 1055 (9th Cir. 1992); see also

Noll v. Carlson, 809 F.2d 1446, 1449 (9th Cir. 1987). However, leave to amend need not be granted

where amendment would be futile or the amended complaint would be subject to dismissal. Saul v.

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United States, 928 F.2d 829, 843 (9th Cir. 1991). 

A complaint alleging constitutional violations by federal officers in their individual

capacity may be maintained under Bivens v. Six Unknown Named Agents of the Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). However, before entertaining a suit on the merits, the court must

determine whether the facts alleged, taken in the light most favorable to the party asserting the

injury, show the officers’ conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201

(2001). A qualified immunity defense must be considered in proper sequence. A ruling should be

made early in the proceedings so that the cost and expenses of trial are avoided where the defense is

dispositive. Id. at 194. The initial inquiry is whether a constitutional right would have been violated

on the facts alleged, for if no right would have been violated, there is no need for further inquiry into

immunity. Id. If a violation could be made out on a favorable review of the parties’ submissions, the

next, sequential step is whether the right was clearly established. Id. This inquiry must be

undertaken in light of the case’s specific context, not as a broad general proposition. The relevant,

dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful

in the situation he confronted. Id. at 194-195 (citing Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct.

1692, 143 L.Ed.2d 818). 

“Actions under § 1983 and those under Bivens are identical save for the replacement of a

state actor under § 1983 by a federal actor under Bivens.” Van Strum v. Lawn, 940 F.2d 406, 409

(9th Cir. 1991). “Immunities are analyzed the same under § 1983 and Bivens.” F.E. Trotter, Inc. v.

Watkins, 869 F.2d 1312, 1318 (9th Cir. 1989). 

II. DISCUSSION

 A. Plaintiff Fails to State a Claim that Officers Clark, Garman, and Melendez Violated a

Constitutional Right in Confiscating Documents From Plaintiff’s Mail.

1. Plaintiff’s Takings Claim

Plaintiff claims that Officers Clark, Garman, and Melendez violated the Takings

Clause of the Fifth Amendment by improperly confiscating two copies of a birth certificate from his

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incoming mail at the NWDC. The Takings Clause of the Fifth Amendment provides that private

property taken for public use without just compensation is a violation of the Constitution. See

Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131 (1998).

A takings claim may only be based on the government’s rightful exercise of its property,

contract, or regulatory powers. Golder v. United States, 15 Cl.Ct. 513, 518 (1988). A takings claim

does not arise when rights or property have been impaired through unlawful government action.

Florida Rock Industries, Inc., v. United States, 791 F.2d 893, 898-899 (Fed.Cir.1986).

Plaintiff alleges that he paid $36.00 for two birth certificates and that the certificates were

wrongfully confiscated by Officers Clark, Garman, and Melendez, and used for government purposes

without his consent. (Dkt. # , p. 4). However, a Fifth Amendment takings claim requires that

property be taken through rightful exercise of the government’s eminent domain power, or its

property, contract or regulatory power. See Golder, 15 Cl.Ct. at 518. Defendants argue that Plaintiff

has failed to allege rightful exercise of government action. Instead, he alleges that Officers Clark,

Garman and Melendez wrongfully confiscated his birth certificates by conspiring and retaliating

against him by withholding the certificates when they knew he needed them for other purposes. (See

Dkt. # 5, p. 6-9). 

Exhibit 1 to Plaintiff’s Complaint illustrates however, that Plaintiff was aware that the

original birth certificates were considered contraband and retention of them was contrary to

detention policies. (Dkt. # 5, Exh. 1). Plaintiff was given notice that he would only be allowed to

retain copies of them while he was in custody. (Id., Exh. 1). Thus, a more liberal reading of

Plaintiff’s Complaint is that he has alleged a rightful taking by Officers Clark, Garman and Melendez,

but has failed to allege a government purpose. There is no allegation or evidence that the birth

certificates have been put to any public use without just compensation to Plaintiff. Plaintiff claims

only that Officers Clark, Garman and Melendez withheld the certificates from him when they knew

he needed them for other purposes. (See Dkt. # 5, p. 6-9). Plaintiff also alleges that Officer

Garman used his certificates “for governmental purposes” when Officer Garman attached them to the

declaration he made before the Immigration Court. (Dkt. # 23, p. 16). 

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The plain language of the takings clause guarantees property owners a monetary remedy

when the government wishes to use their property. This is clearly not the situation at hand. 

Plaintiff’s Complaint clearly reflects that Plaintiff received notice that detention center policies

prohibited retention of the original birth certificates as contraband, but that the originals would

remain in his file for his use as evidence at his immigration hearing. (Dkt. # 5, Exh. L, p. 7). 

 Accordingly, Plaintiff’s claim, based on the Takings Clause of the Fifth Amendment is

misplaced and he has failed to state a claim that Officers Clark, Garman, and Melendez violated a

clearly established constitutional right. 

2. Plaintiff’s Due Process Claim

Plaintiff also claims that Defendants’ confiscation of his birth certificates pursuant to INS

regulation violated his procedural due process rights under the Fifth Amendment. The regulation

defines identification documents, such as the original birth certificates at issue here, as contraband: 

B. Detainee Notification

The facility shall notify detainees of its policy on correspondence and other mail

through the detainee handbook or equivalent provided to each detainee upon

admittance.

At a minimum, the notification shall specify: . . .

7. . . . The notification will state that identity documents, such as passports, birth

certificates, etc., are contraband and may be used by the INS as evidence or as

otherwise appropriate. The notification will state that if detainees are not

allowed to keep an identity document in their possession, they will be

provided with a copy of the document, certified by an INS officer to be a true

and correct copy; . . . 

. . . 

(Dkt. # 5, Exh. 1).

Plaintiff alleges that his request for the original birth certificates was denied and that he was

referred to Officer Clark for further questions on the matter. (Dkt. # 5 at 8). Thus, Defendants

argue that according to Plaintiff’s Complaint, not only was Plaintiff given notice and an opportunity

to be heard, Plaintiff was also given an opportunity to appeal. Plaintiff argues that there was no

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opportunity to be heard, however, because it was Officer Clark who directed that the certificates not

be released and Plaintiff was advised that the issue was non-negotiable and non-grievable. (Dkt. #

23, p. 5). 

Procedural due process imposes constraints on governmental decisions which deprive

individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the

Fifth Amendment. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). In analyzing whether Plaintiff

was deprived of procedural due process, the Court must first determine whether Plaintiff was

deprived of a constitutionally protected liberty or property interest protected by the Constitution; if

so, the court should then determine “whether the procedures attendant upon that deprivation were

constitutionally sufficient.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989). 

 “Prisoners may not be deprived of life, liberty or property without due process of law; however, the

fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are

not subject to restrictions imposed by the nature of the regime to which they have been lawfully

committed.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citations ommitted).

When testing the reasonableness of prison officials’ actions against a constitutional challenge,

courts are required to give “wide-ranging deference” to the adoption and execution of institutional

policies. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Thus, prison regulations or, as in this case, INS

Detention standards, alleged to infringe on constitutional rights are judged by a lenient

“reasonableness” standard. O’Lone v. State of Shabazz, 482 U.S. 342, 348 (1987). Under this

standard, a prison regulation will be found valid if it “is reasonably related to legitimate penological

interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In determining whether restrictions or

conditions are reasonably related to the institution’s interest in maintaining security and order and

operating the institution in a manageable fashion, courts must heed the warning that “[s]uch

considerations are peculiarly within the province and professional expertise of corrections officials,

and, in the absence of substantial evidence in the record to indicate that the officials have

exaggerated their response to these considerations, courts should ordinarily defer to their expert

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Although Bell speaks of the rights of criminal pre-trial detainees, it is also applied to the

rights of BCIS detainees. See, e.g., Kyei v. Beebe, 121 Fed.Appx. 689 (9th Cir. 2005)(citing Bell,

441 U.S. 539-40 & n. 23) (classification of BCIS detainees as medium security reasonably related to

legitimate government purposes of maintaining security and managing an institution); Clement v.

Crawford, 991 F.2d 803 (9th Cir. 1993) (unpublished opinion) (strip search reasonably related to INS

detention center’s need to search for contraband) (citing Bell, 441 U.S. 539-40 & n. 23). 

See also, Preval v. Reno, 57 F.Supp.2d 307, 311 & n. 5 (E.D. Va. 1999), rev’d on other

grounds, 203 F.3d 821 (4th Cir. 2000) (noting that while few courts have addressed the proper

constitutional standard for assessing alien detainees’ [§ 1983] claims based on conditions of

confinement, those that have find them more akin to those of pre-trial detainees and apply the

analysis of Bell, 441 U.S. 539) (citing cases from the Fifth, Tenth and First Circuits).

REPORT AND RECOMMENDATION - 7

judgment in such matters.” Bell, 441 U.S. at 546-47 & n. 28.

2

Broad discretion is afforded to prison officials in regulating incoming mail in the interests of 

maintaining order and security. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Plaintiff does not

attack the validity of the regulation at issue, which clearly defines birth certificates as contraband. 

The three individually named defendants followed the valid INS Detention Policy regarding birth

certificates being clearly defined as contraband. In addition, Plaintiff was to be provided copies of

his birth certificates and the originals were retained in his file for use at his immigration hearing. 

(Dkt. # 5, Exh. A, p. 5; Exh. L, p. 7). Thus, the Court finds that retention of the birth certificates as

contraband was reasonably related to the institution’s interest in maintaining security and order. 

Viewing Plaintiff’s allegations and exhibits in the light most favorable to Plaintiff, the

undersigned concludes that Plaintiff cannot claim a violation based upon the Due Process Clause of

the Fifth Amendment as Plaintiff does not have a property interest in retaining the original birth

certificates during his detention. Accordingly, the Court recommends that the Defendants’ motion to

dismiss Plaintiff’s Fifth Amendment claims be granted.

B. Plaintiff Fails to State a Claim that Officers Clark, Garman, and Melendez Violated a

Constitutional Right Regarding Plaintiff’s Transfer

Plaintiff also claims that Officers Clark, Garman, and Melendez violated his First

Amendment rights by conspiring to retaliate against him. He claims that because he filed several

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lawsuits involving these Officers, they retaliated against him by effectuating his transfer based on a

parole violation warrant issued by the State of California. 

To demonstrate retaliation in violation of the First Amendment, Plaintiff must ultimately

prove first that the Officers took action that “would chill or silence a person of ordinary firmness

from future First Amendment activities.” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283,

1300 (9th Cir. 1999). 

The warrant in question was issued in September of 2005 and was not acted upon until

March 2006 when, Plaintiff states, all four of his lawsuits had been served against the Defendants. 

Plaintiff also alleges that the warrant was issued in error and Defendants knew this, but acted on it

anyway in retaliation against him. However, Plaintiff admits that the Defendants acted because of a

warrant issued by the State of California for a parole violation. (Dkt. # 6 at 9-10). Plaintiff also

acknowledges that the State of California, not the named Defendants, issued the warrant in error. 

(Id.). However, he alleges that Officers Clark, Garman, and Melendez should have known that the

warrant was “issued in error by California,” and they disregarded this fact and attempted to transfer

Plaintiff anyway based on retaliatory motives. (Id). Plaintiff argues that this is enough to state a

claim and survive the motion to dismiss. Defendants argue that this speculation is too attenuated to

state a claim upon which relief can be granted. The Court agrees that the allegations are too

speculative and notes also that the Officers had no authority to determine the validity of the warrant

in question. 

Conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion

to dismiss. Pena, 976 F.2d at 471. The warrant was issued by an authority separate from the

Officers and there is no evidence that the Officers acted unreasonably or unlawfully in executing the

warrant as issued. Viewing the facts alleged in the light most favorable to Plaintiff, the Court finds

that Plaintiff has not asserted a violation of the First Amendment. The Court recommends that

Plaintiff’s First Amendment claims against Officers Clark, Garman and Melendez be dismissed with

prejudice. 

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III. CONCLUSION 

Viewing all Plaintiff’s material factual allegations as admitted and construing his Complaint

and attachments liberally in the light most favorable to him, it appears beyond doubt that Plaintiff can

prove no set of facts in support of his claims that Officers Clark, Garman, or Melendez violated his

Fifth Amendment rights by allegedly improperly confiscating copies of a birth certificate Plaintiff

received in the mail at the NWDC or violated his First Amendment rights by processing his transfer

pursuant to a probation violation warrant issued by the State of California. 

For these reasons, the Court recommends that the Defendants’ Motion to Dismiss (Dkt. #

12) be GRANTED. A proposed Order accompanies this Report and Recommendation. Pursuant

to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall

have ten (10) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. 

Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas

v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is

directed to set the matter for consideration on February 16, 2007, as noted in the caption. 

DATED this 23rd day of January 2007.

A

Karen L. Strombom

United States Magistrate Judge

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