FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN D. VEGA, JR.,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA;

PIONEER HUMAN SERVICES, DBA 

Pioneer Fellowship House 

Residential Reentry Center, AKA 

Pioneer Industries Inc., a WA 

Corporation; HEATHER MCINTYRE, 

in her official capacity as Counselor 

of Pioneer Fellowship House 

Residential Reentry Center, and in 

her individual capacity; 

BERNADETTE MATHIS, in her official 

capacity as Counselor of Pioneer 

Fellowship House Residential 

Reentry Center, and in her individual 

capacity; KRISTEN CORTEZ, in her 

official capacity as Counselor of 

Pioneer Fellowship House 

Residential Reentry Center, and in 

her individual capacity; STEPHANIE 

JONES, in her official capacity as 

Counselor of Pioneer Fellowship 

House Residential Reentry Center, 

and in her individual capacity; 

DONALD JACKSON, in his official 

No. 13-35311

D.C. No.

2:11-cv-00632-

RSM

OPINION
2 VEGA V. UNITED STATES

capacity as Pioneer Fellowship 

House Residential Reentry Center 

Home Confinement 

Coordinator/Center Discipline 

Committee Chairperson, and in his 

individual capacity; WILLIAM 

BROWN, in his official capacity as 

Manager of the Federal Bureau of 

Prisons Community Corrections 

Office in Seattle, Washington, and in 

his individual capacity; KEVIN 

STRAIGHT, in his official capacity as 

employee in the Federal Bureau of 

Prisons Community Corrections 

Manager’s Office in Seattle, 

Washington, and in his individual 

capacity; ORANDA PHILLIPS, in her 

official capacity as employee in the 

Federal Bureau of Prisons 

Community Corrections Manager’s 

Office in Seattle, Washington, and in 

her individual capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

Ricardo S. Martinez, Chief Judge, Presiding

Argued and Submitted December 4, 2017

Seattle, Washington

Filed February 7, 2018
VEGA V. UNITED STATES 3

Before: Richard C. Tallman and Paul J. Watford, Circuit 

Judges, and Richard F. Boulware II,* District Judge.

Opinion by Judge Tallman

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s dismissal of a 

former prisoner’s putative claims brought under Bivens v. 

Six Unknown Federal Narcotics Agents, 403 U.S. 388 

(1971), alleging that private employees of a residential 

reentry center violated his First Amendment right to court 

access and his Fifth Amendment right to procedural due 

process.

The panel declined to expand Bivens to include 

plaintiff’s First and Fifth Amendment claims against private 

employees of a residential reentry center. The panel held 

that because neither the Supreme Court nor this Court have 

expanded Bivens in the context of a prisoner’s First 

Amendment access to court or Fifth Amendment procedural 

due process claims arising out of a prison disciplinary 

process, the circumstances of plaintiff’s case against private 

defendants plainly presented a “new context” under Ziglar 

v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The panel held that 

 * The Honorable Richard F. Boulware II, United States District 

Judge for the District of Nevada, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
4 VEGA V. UNITED STATES

plaintiff had adequate alternative remedies for relief against 

the alleged violations of his First and Fifth Amendment 

rights by the private defendants. The panel noted that 

plaintiff could have sought review under the Administrative 

Remedy Program, the Unit Discipline Committee or could 

have brought state claims. The panel addressed plaintiff’s 

remaining claims against the federal defendants in a 

concurrently filed memorandum disposition.

COUNSEL

Nicole A. W. Abercrbomie (argued) and Jon W. Monson,

Cable Huston LLP, Portland, Oregon, for PlaintiffAppellant.

Teal Luthy Miller (argued), Assistant United States 

Attorney; Annette L. Hayes, United States Attorney; United 

States Attorney's Office, Seattle, Washington; for 

Defendant-Appellee United States William Brown, Kevin 

Straight, and Oranda Phillips.

Robert L. Bowman (argued) and William F. Knowles, Cozen 

O’Connor, Seattle, Washington, for Defendant-Appellee 

Pioneer Human Services.
VEGA V. UNITED STATES 5

OPINION

TALLMAN, Circuit Judge:

Juan Vega, Jr. was transferred from federal prison to a 

Seattle non-profit residential reentry center to complete the 

remainder of his prison sentence. There, he alleged that 

federal and private employees conspired to remove him from 

the halfway house known as Pioneer House, ostensibly 

based on his race and for asserting his First Amendment 

rights, by filing a false incident report. After his return to a 

federal detention center based on that incident report, the 

Federal Bureau of Prisons (“FBOP”) reversed the sanction 

and returned Vega to a reentry program. Vega filed suit 

alleging violations of his First and Fifth Amendment rights 

under the implied cause of action theory adopted by the 

Supreme Court in Bivens v. Six Unknown Federal Narcotics 

Agents, 403 U.S. 388 (1971), as well as state law claims. The 

district court refused to allow Vega to amend his complaint 

a second time and subsequently dismissed all of his claims.

On appeal, Vega contends that the district court erred by 

(1) dismissing his Bivens claims against the federal 

defendants on qualified immunity grounds, (2) dismissing 

his Bivens claims against the private defendants based on the 

Supreme Court’s holding in Minneci v. Pollard, 565 U.S. 

118, 120 (2012), (3) dismissing his state law claims, and 

(4) not permitting him to amend his complaint for a second 

time. In a memorandum disposition, we address all of 

Vega’s arguments except for whether Bivens should be 

expanded to include access to courts and procedural due 

process claims against private defendants under the First and 

Fifth Amendments, respectively. In this opinion we hold 

that Bivens should not be so expanded, and affirm the district 

court’s dismissal.
6 VEGA V. UNITED STATES

I

On August 20, 2008, Juan Vega, Jr. was transferred from 

a federal prison in Oregon to Pioneer House to complete the 

remainder of his 63-month sentence for misrepresenting a 

Social Security number and to participate in a communitybased, residential drug treatment program. Pioneer House is 

operated by Pioneer Human Services, a non-profit FBOP 

contractor, and prisoners assigned to this type of reentry 

program technically remain in the custody of the FBOP. 

18 U.S.C. §§ 3621, 3624(c); 28 C.F.R. § 570.22. Once 

there, Vega met with Pioneer House Counselor Bernadette 

Mathis to discuss the reentry center’s policies, including the 

requirement of seeking employment. Vega alleged that he 

then told Mathis that he had been “medically unassigned and 

not required to work at any type of job” at his previous place 

of incarceration.

Vega further alleged that he told Mathis at that meeting 

that he had five pending pro se civil court cases and would 

be submitting requests to leave Pioneer House to go to the 

law library of the United States Court of Appeals for the 

Ninth Circuit or the King County Superior Court. According 

to Vega, Mathis told him that it was against FBOP and 

Pioneer House policy to authorize prisoner absences for the 

purpose of going to a library, including a law library.1 Vega 

also asserted that he requested visits from two attorneys 

whom he had contacted about Pioneer House’s refusal to 

authorize him to visit the two law libraries. Mathis allegedly 

told him that attorneys are not allowed to visit prisoners at 

Pioneer House.

 1 It is unclear from the record whether Pioneer House has a law 

library on site.
VEGA V. UNITED STATES 7

On September 3, 2008, Mathis prepared a document 

detailing Vega’s individual program plan and goals, which 

stated that Vega was in the process of seeking a medical 

waiver from employment. Vega asserted that neither this 

document, nor a subsequent case note on September 17, 

indicated that “he was unwilling to obtain employment due 

to his medical conditions.” On September 20, 2008, Vega 

secured a job at Pioneer Food Services.

On September 17, 2008, Mathis met with Vega and 

provided a case note document for him to sign. Vega 

refused. He alleged that on September 24, Mathis told him 

that if he did not sign the resident case note, she would write 

him up for “failure to program.” Vega then signed the case 

note, with a notation by his signature that he was signing 

“under duress.” The next day, Vega participated in a 

telephone conference call with William Brown, Jr., the 

FBOP Community Corrections Manager, and Pioneer House 

staff to discuss the incident in which Vega had allegedly 

refused to sign the case note.

During that conference call, Vega alleged that Mathis 

and Pioneer House Director Heather McIntyre informed 

Brown that signing case notes was a program requirement. 

Vega contended that he was merely attempting to exercise 

his rights and review a copy of the applicable regulation. 

According to Vega, Brown stated that he “gave very little 

weight to” his request for information “because of [Vega’s] 

status as a convicted felon.” Brown then told Vega to 

“follow the rules and program” and warned him not to cause 

any more problems while at Pioneer House. On October 8, 

2008, Vega received a “level advancement” from Pioneer 

House, which acknowledged that he had complied with all 

work requirements, paid subsistence, complied with the 
8 VEGA V. UNITED STATES

necessary drug abuse treatment requirements, and was free 

of any incident write-ups in the past thirty days.

Vega next alleged that on October 16, 2008, Mathis and 

McIntyre met with FBOP employees Brown, Kevin Straight, 

and Oranda Phillips. He asserted, “[a]t that meeting, the 

aforementioned Defendants, were determine[d] to make an 

example out of Plaintiff, who is a black male, for his 

continuous legal actions against the [FBOP] in Seattle, 

Washington, and [the Pioneer House] in Seattle, 

Washington, by any means.” Vega alleged that “the 

Defendants designed a plan for [his] removal by writing up 

a false Incident Report,” which “Counselor Mathis was 

designated as the staff person to write-up[.]” Later that day, 

Vega received an incident report stating that he had violated 

a condition of a community program by refusing to obtain 

employment due to a medical condition. Vega’s complaint

also alleged that in the incident report, Mathis said that 

despite prior warnings from Brown to “follow the rules, and 

work with his counselor to complete necessary 

programming,” on October 16, 2008, “[s]taff became aware 

that . . . Vega [was] pursuing an active case with the 

Department of Labor and Industries and [was] scheduled to 

go to trial this Friday, October 17, 2008.” Vega strongly 

disputes these alleged violations.

On October 17, 2008, two deputy United States marshals 

removed Vega from Pioneer House and transferred him back 

to federal prison at the SeaTac Federal Detention Center 

(“FDC”). At no point prior to this transfer was Vega 

provided with any opportunity for investigation or a hearing. 

Five days after the incident and four days after Vega was 

removed from Pioneer House, Pioneer Human Services 

employee Donald Jackson notified FBOP that Vega’s 

hearing was postponed to allow for the continuing 
VEGA V. UNITED STATES 9

investigation into the incident report and in light of Vega’s 

transfer to FDC-SeaTac. On October 21, Pioneer House 

staff conducted an investigation of the incident report, 

concluded that Vega had committed a prohibited act of 

violating a condition of a community program, and 

recommended that Vega be removed from Pioneer House as 

a sanction. No evidence was apparently cited in the 

investigation report. On October 23, Jackson conducted a 

disciplinary committee hearing.

Jackson’s hearing report found that Vega had 

“committed the prohibited act of Violating a condition of a 

community program (Code 309). My findings [are] based 

on the written account of the reporting staff member, which 

indicated on October 16, 2008 at 1030 hrs. [Pioneer House] 

staff became aware that [Vega was] pursuing an active case 

with the Department of Labor and Industries without 

permission from [Pioneer House] Staff.” The report 

recommended termination at the Pioneer House, in order to 

“impress upon [Vega] and other residents that this kind of 

behavior will not be tolerated and that they will be held 

accountable when they violate FBOP and [Pioneer House] 

rules and regulations.” Ultimately, FBOP officials in the 

Unit Discipline Committee (“UDC”) refused to “certify the 

incident report because of a lack of evidentiary support,” and 

Vega was returned to a residential reentry facility in Tacoma, 

Washington, on January 15, 2009.

II

On April 13, 2011, Vega filed a pro se complaint against 

the United States, three federal employees (Brown, Straight, 

and Phillips), the Pioneer House, and five Pioneer House 

employees (McIntyre, Mathis, Kristen Cortez, Stephanie 

Jones, and Jackson) alleging 15 separate counts, including 

claims for constitutional violations under Bivens and several 
10 VEGA V. UNITED STATES

tort claims under the Federal Tort Claims Act (“FTCA”) and 

Washington law. On September 20, 2011, the district court 

granted Vega’s motion for leave to file an amended 

complaint. On October 4, 2011, the federal defendants filed 

a motion to dismiss the amended complaint, which the 

Pioneer House defendants joined.

On December 2, 2011, the district court issued an order 

granting in part, and denying in part, the motions to dismiss. 

Relevant to this appeal, the court: (a) denied the federal 

defendants’ motion to dismiss the Bivens claims “on the 

basis that no government employee was involved in the 

alleged deprivation of constitutional rights”; (b) denied the 

Pioneer House employees’ motion to dismiss Vega’s Bivens

claims “on the sole basis that they are not federal 

employees”; (c) granted the federal defendants’ motion to 

dismiss Vega’s FTCA claims, to the extent they were 

predicated on the conduct of Pioneer House and its 

employees, pursuant to the “contractor” exception under the 

FTCA; (d) granted the federal and Pioneer House 

defendants’ motions to dismiss Vega’s tort claims for false 

imprisonment, false arrest, malicious prosecution, abuse of 

process, outrage/intentional infliction of emotional distress, 

and invasion of privacy; and (e) denied the federal and 

Pioneer House defendants’ motion to dismiss Vega’s 

negligence claim as premature.

On April 26, 2012, the Pioneer House defendants filed a 

motion for summary judgment seeking dismissal of the 

remaining claims against Pioneer House and its employees. 

On May 7, 2012, the federal defendants also filed a summary 

judgment motion. On November 1, 2012, the district court 

issued an order granting in part, and denying in part, the 

defendants’ motions, which it construed as motions for 

judgment on the pleadings. The court granted judgment on 
VEGA V. UNITED STATES 11

the pleadings dismissing Vega’s First Amendment claims 

against the federal defendants on qualified immunity 

grounds, but denied the federal defendants’ motion as to 

Vega’s Fifth Amendment due process claim. The court also 

dismissed the remaining claims against the Pioneer House 

defendants, including Vega’s Bivens claims, relying on the 

Supreme Court’s ruling in Minneci. Additionally, the court 

granted all of the defendants’ motions related to Vega’s 

negligence and discrimination claims under the FTCA and 

Washington state law.

While the Pioneer House defendants’ motion for 

summary judgment was pending, Vega sought leave to file a 

second amended complaint. The district court denied the 

motion, recognizing that leave to amend should be freely 

given but also that “futility of amendment” is an appropriate 

basis for denying a motion to amend. The court also 

concluded that Vega’s “fail[ure] to attach his proposed 

amended complaint to his motion or to articulate how he 

propose[d] to amend his complaint” made it impossible for 

the court “to evaluate the propriety of an amendment.” See 

Local Rule 15 of the United States District Court for the 

Western District of Washington (stating that a party who 

seeks leave to amend a complaint must attach a copy of the 

proposed amended complaint as an exhibit to his motion and 

that the motion must make clear how the proposed amended 

complaint differs from the original). In the following nine 

months after his motion was denied, Vega never renewed his 

motion with a proposed amended complaint or explained 

how he proposed to amend his complaint.

On November 15, 2012, the federal defendants filed a 

motion for reconsideration of the court’s denial of its Federal 

Rule of Civil Procedure (“FRCP”) 12(c) motion with respect 

to Vega’s Fifth Amendment procedural due process claim. 
12 VEGA V. UNITED STATES

On April 1, 2013, the court granted the motion for 

reconsideration, dismissing the sole remaining Bivens due 

process claim on qualified immunity grounds.

Vega timely filed this appeal on April 9, 2013. We have 

jurisdiction under 28 U.S.C. § 1291, and we review de novo

a district court’s grant of a motion to dismiss for failure to 

state a claim under FRCP 12(b)(6), Garity v. APWU Nat’l 

Labor Org., 828 F.3d 848, 854 (9th Cir. 2016), as well as for

a judgment on the pleadings under FRCP 12(c), Fleming v. 

Pickard, 581 F.3d 922, 925 (9th Cir. 2009). “[W]e may 

affirm based on any ground supported by the record.” 

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 

1121 (9th Cir. 2008) (citing Papa v. United States, 281 F.3d 

1004, 1009 (9th Cir. 2002)).

III

In Bivens, the Supreme Court “recognized for the first 

time an implied right of action for damages against federal 

officers alleged to have violated a citizen’s constitutional 

rights.” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) 

(per curiam) (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 66 (2001)). Since Bivens, the Court has only 

expanded this “implied cause of action” twice. Ziglar v. 

Abbasi, 137 S. Ct. 1843, 1854 (2017). In Davis v. Passman, 

the Court provided a Bivens remedy under the Fifth 

Amendment’s Due Process Clause for gender 

discrimination. 442 U.S. 228 (1979). In Carlson v. Green, 

the Court expanded Bivens under the Eighth Amendment’s 

Cruel and Unusual Punishments Clause for failure to provide 

adequate medical treatment to a prisoner. 446 U.S. 14 

(1980). Otherwise, “the Court has made clear that 

expanding the Bivens remedy is now a ‘disfavored’ judicial 

activity,” Abbasi, 137 S. Ct. at 1857 (citing Ashcroft v. Iqbal, 
VEGA V. UNITED STATES 13

556 U.S. 662, 675 (2009)), and has consistently declined to 

expand this limited remedy.2

Here, Vega asks us to expand the Bivens remedy against 

private defendants for allegedly violating his First 

Amendment right to access to courts, as well as his Fifth 

Amendment right to procedural due process. Although the 

district court stated that “Minneci clarified that private 

employees acting under color of federal law cannot be held 

liable under Bivens,” Minneci’s holding was in fact much 

more narrow. In Minneci, the Court examined whether to 

expand the Bivens remedy to include Eighth Amendment 

violations allegedly committed by employees of a private 

prison. 565 U.S. at 120. In declining to do so, the Court 

relied on the fact that the defendants were private employees 

and that, unlike federal employees, they were subject to state 

law tort claims without qualified immunity. Id. at 126–31. 

As such, the Court found that state law provided an adequate, 

alternative remedy, and declined to extend Bivens. Id.

In fact, the Minneci Court did not completely foreclose 

applying Bivens to private actors. See id. at 130 (“[W]e 

concede that we cannot prove a negative or be totally certain 

 2 See Minneci, 565 U.S. at 120 (an Eighth Amendment suit against 

prison guards at a private prison); Wilkie v. Robbins, 551 U.S. 537, 547–

48 (2007) (a due process suit against officials from the Bureau of Land 

Management); Malesko, 534 U.S. at 63 (an Eighth Amendment suit 

against a private prison operator); FDIC v. Meyer, 510 U.S. 471, 473–74 

(1994) (a procedural due process suit against a federal agency for 

wrongful termination); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) 

(a procedural due process suit against Social Security officials); United 

States v. Stanley, 483 U.S. 669, 671–72 (1987) (a substantive due process 

suit against military officers); Chappell v. Wallace, 462 U.S. 296, 297 

(1983) (a race discrimination suit against military officers); Bush v. 

Lucas, 462 U.S. 367, 390 (1983) (a First Amendment suit against a 

federal employer).
14 VEGA V. UNITED STATES

that the features of state tort law relevant here will 

universally prove to be, or remain, as we have described 

them.”). For the following reasons, however, we decline to 

expand Bivens to include Vega’s First and Fifth Amendment 

claims against private employees of a residential reentry 

center.

A

“[T]he first question a court must ask in a case like this 

one is whether the claim arises in a new Bivens context, i.e., 

whether the case is different in a meaningful way from 

previous Bivens cases decided by this Court.” Abbasi, 

137 S. Ct. at 1864 (internal quotation marks and citation 

omitted). “[A] case can present a new context for Bivens

purposes if it implicates a different constitutional right; if 

judicial precedents provide a less meaningful guide for 

official conduct; or if there are potential special factors that 

were not considered in previous Bivens cases.” Id. The 

Supreme Court has never explicitly recognized a Bivens 

remedy for a First Amendment claim. See Reichle v. 

Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never 

held that Bivens extends to First Amendment claims.”). But 

see Iqbal, 556 U.S. at 675 (“[W]e assume, without deciding, 

that respondent’s First Amendment claim is actionable under 

Bivens.”).

In the Ninth Circuit, however, we have previously held 

that Bivens may be extended to First Amendment claims. In 

Gibson v. United States, we stated that “because plaintiffs 

have alleged that FBI agents acted with the impermissible 

motive of curbing [the plaintiff’s] protected speech, they 

have asserted a claim properly cognizable through a Bivenstype action directly under the First Amendment.” 781 F.2d 

1334, 1342 (9th Cir. 1986). See also Moss v. U.S. Secret 

Serv., 572 F.3d 962, 967 n.4 (9th Cir. 2009) (“This court . . .
VEGA V. UNITED STATES 15

has held that Bivens authorizes First Amendment damages 

claims.”). But because neither the Supreme Court nor we 

have expanded Bivens in the context of a prisoner’s First 

Amendment access to court or Fifth Amendment procedural 

due process claims arising out of a prison disciplinary 

process, the circumstances of Vega’s case against private 

defendants plainly present a “new context” under Abbasi.

B

The Supreme Court in Wilkie provided a two-step 

analysis when courts decide whether to recognize a Bivens 

remedy. See 551 U.S. at 550. “In the first place, there is the 

question whether any alternative, existing process for 

protecting the interest amounts to a convincing reason for the 

Judicial Branch to refrain from providing a new and 

freestanding remedy in damages.” Id. (quoting Bush,

462 U.S. at 378). Second, Supreme Court precedent 

“make[s] clear that a Bivens remedy will not be available if 

there are ‘special factors counselling hesitation in the 

absence of affirmative action by Congress.’” Abbasi, 137 S. 

Ct. at 1857 (quoting Carlson, 446 U.S. at 18). Here, Vega 

had adequate alternative remedies at his disposal and we 

therefore decline to address whether any special factors 

counsel hesitation. See generally Minneci, 565 U.S. at 131.

“[I]f there is an alternative remedial structure present in 

a certain case, that alone may limit the power of the Judiciary 

to infer a new Bivens cause of action.” Abbasi, 137 S. Ct. at 

1858. “Alternative remedial structures” can take many

forms, including administrative, statutory, equitable, and 

state law remedies. In Abbasi, the Court stated that the 

respondents likely had alternative relief in the form of a 

habeas petition. Id. at 1863 (“Indeed, the habeas remedy, if 
16 VEGA V. UNITED STATES

necessity required its use, would have provided a faster and 

more direct route to relief than a suit for money damages.”).3

Here, Vega had alternative means for relief against the 

alleged violations of his First and Fifth Amendment rights 

by the private defendants. First, Vega had a remedy “to seek 

formal review of an issue relating to any aspect of his . . .

own confinement” under the Administrative Remedy 

Program (“ARP”).4 28 C.F.R. § 542.10(a) (emphasis 

added). See Malesko, 534 U.S. at 74. Under that provision, 

Vega could have sought the assistance of counsel, 

§ 542.16(a), appealed any adverse findings to the Regional 

Director, § 542.15(a), and then to the FBOP’s General 

Counsel, id.

Second, Vega could have sought review of the incident 

report by the UDC under 28 C.F.R. § 541.7, which is exactly 

what he ultimately did. During such a review, Vega would 

be permitted to appear before the board, § 541.7(d), “make a 

 3 See also Minneci, 565 U.S. at 127–30 (state tort law provided 

alternative means for relief); Wilkie, 551 U.S. at 553–54 (state tort law 

and administrative remedies provided alternative means for relief); 

Malesko, 534 U.S. at 72–73 (state tort law provided alternative means 

for relief); Schweiker, 487 U.S. at 429 (Social Security statutory scheme 

provided alternative means for relief); Bush, 462 U.S. at 385–88 (civilservice regulations provided alternative means for relief).

4 Although the Court in Carlson and McCarthy v. Madigan, 503 U.S. 

140, 151 (1992), superseded in part on other grounds by statute, Prison 

Litigation Reform Act of 1995, Pub. L. 104–134, 110 Stat. 1321–71, did 

not recognize the ARP as an adequate, alternative remedy for prisoners, 

those cases involved violations of a prisoner’s Eighth Amendment rights 

for failing to give proper medical care. In this case, however, the ARP 

provides an adequate, and more appropriate, remedy to vindicate Vega’s 

rights to access the courts and to procedural due process. Specifically, 

the ARP could have provided for review of Pioneer House policies or 

any issue in the disciplinary hearing process and procedure.
VEGA V. UNITED STATES 17

statement and present documentary evidence,” § 541.7(e), 

and appeal the UDC’s decision through the aforementioned 

APR, § 541.7(i). In Vega’s case, this review system 

ultimately resulted in a determination that the evidence was 

insufficient to show that Vega failed to follow Pioneer 

House program rules, and he was returned to a residential 

reentry program in Tacoma, Washington.

Third, Vega had state law claims as an alternative 

remedy. In his First Amended Complaint, Vega in fact 

brought state law claims against the Pioneer House 

employees under (1) the Washington Law Against 

Discrimination, RCW 49.60.010, et seq., and for (2) false 

imprisonment, (3) intentional infliction of emotional 

distress, and (4) negligence. Further, Vega asserted 

additional claims for (5) false arrest, (6) malicious 

prosecution, (7) abuse of process, and (8) invasion of 

privacy, under the FTCA. Although the FTCA does not 

apply to private employees such as the Pioneer House 

defendants, see United States v. Orleans, 425 U.S. 807, 813–

14 (1976), Vega does not contend that he could not have 

brought those or other state law claims directly under state 

law. He merely failed to do so.

That Vega’s state law claims ultimately failed to satisfy 

the requirements of Washington law, or federal pleading 

standards, does not mean that he did not have access to 

alternative or meaningful remedies. See Minneci, 565 U.S. 

at 129 (“State-law remedies and a potential Bivens remedy 

need not be perfectly congruent.”). It simply means that 

Vega did not adequately plead, or ultimately have, a 

meritorious claim. Furthermore, no court has held that the 

plaintiff’s lack of success due to inadequate pleading while 

pursuing alternative remedies provides a basis for Bivens 

relief. To do so would require the court to necessarily prove 
18 VEGA V. UNITED STATES

the plaintiff’s alternative remedies for him, or be forced to 

create a new remedy through Bivens.

And although Vega contends that “[f]or [him], ‘it is 

damages or nothing,’” the fact that the administrative 

procedures in place to review sanctions resulted in his return 

to a residential reentry center belies his claim. Expanding 

Bivens in this context, therefore, seems imprudent given the 

Court’s admonition that “any alternative, existing process 

for protecting the interest amounts to a convincing reason for

the Judicial Branch to refrain from providing a new and 

freestanding remedy in damages.” Wilkie, 551 U.S. at 550 

(citing Bush, 462 U.S. at 378).

IV

In light of the available alternative remedies, we decline 

to expand Bivens in this context. We affirm the district 

court’s dismissal of Vega’s putative Bivens claims against 

the private Pioneer House defendants.

Costs are awarded to the private Defendants-Appellees.

AFFIRMED.