Kandi v. Langford

Decision Date14 November 2018
Docket NumberCase No. CV 17-3617 FMO(JC)
CourtU.S. District Court — Central District of California
PartiesEMIEL A. KANDI, Plaintiff, v. STEVEN LANGFORD, et al., Defendants.



On June 4, 2018, plaintiff Emiel A. Kandi - who is in federal custody at the Federal Prison Camp in Yankton, South Dakota, is proceeding pro se, and has paid the filing fee - filed the operative Second Amended Complaint (also referred to as "SAC"), asserting claims under the Migratory Bird Treaty Act of 1916, 16 U.S.C. §§ 701, et seq. ("MBTA") and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics ("Bivens"), 403 U.S. 388 (1971) (predicated on First Amendment retaliation and/or a violation of state law), against multiple defendants associated with the Federal Correctional Institution in Lompoc, California ("FCI Lompoc"), where plaintiff was previously housed, namely: Warden Steven Langford, Correctional Officer Rosales, Unit Manager Scott Webster, the United States Bureau of Prisons ("BOP"), and multiple unnamed individuals identified only as "Doe(s) 1-10" ("Doe Defendants") (collectively "defendants").1 (SAC at 1-3). Plaintiff appears to sue the individual defendants in both their individual and official capacities, and to seek injunctive and monetary relief from all defendants. (SAC at 1-3, 17-18).2

Liberally construed, the Second Amended Complaint essentially alleges that "BOP staff" violated the MBTA by using high-pressure fire hoses to destroy migratory Capistrano swallows "a/k/a mud swallows" and their eggs ("swallows"), and swallow nesting areas ("swallow nests") at FCI Lompoc during their natural breeding season, and did so without first obtaining the proper permits from the United States Department of the Interior. (SAC at 1-2, at 9 ¶ 6, at 10 ¶ 1, at 11 ¶ 11). The Second Amended Complaint also alleges that defendant Webster, andpossibly others, retaliated against plaintiff in violation of the First Amendment and California law (specifically "The Bane Act," Cal. Civ. Code § 52.1(b)) by issuing false disciplinary charges against plaintiff in retaliation for plaintiff's filing of inmate grievances and civil rights litigation. (SAC at 1-2, 9, 13-17).

On June 20, 2018, defendants filed a Motion to Dismiss the Second Amended Complaint ("Motion to Dismiss" or "MTD"). On July 5, 2018, plaintiff filed a Response and Objections to the Motion to Dismiss ("Opp."). On July 18, 2018, defendants filed a Reply.

Based upon the record and the applicable law, and for the reasons discussed below, the Court sua sponte screens the Second Amended Complaint, dismisses the Second Amended Complaint without further leave to amend, dismisses this action, denies the Motion to Dismiss as moot, and directs that Judgment be entered accordingly.


Very liberally construed together with Plaintiff's Affidavits, the Second Amended Complaint alleges, in pertinent part, the following:

A. Allegations Related to MBTA Claim

Migratory Capistrano swallows are a protected species under the MBTA. (SAC at 8 ¶ 1, 10 ¶ 1).

BOP "staff" at FCI Lompoc "washed away and killed active nesting Capistrano Swallows" without first obtaining "the proper permits" from the United States Department of the Interior ("DOI"). (SAC at 1-2, at 9 ¶ 6, at 10 ¶ 1, at 11 ¶ 11). The foregoing "occurred during the 2017 breeding season and, most likely, will continue again each year unless permanently enjoined from doing so." (SAC at 9, ¶ 6; SAC at 10, ¶ 1).

Plaintiff personally "witnessed the destruction of completed swallow nesting colonies at the hands of BOP staff." (SAC at 8-9, ¶ 3; SAC at 10, ¶ 5; Kandi Aff. #2 at 1). Other inmates also witnessed an inmate "Bird Shower Crew" use high-pressure fire hoses to destroy swallows and their nesting areas during their natural breeding season. (SAC at 8-9, ¶ 3; SAC at 10, ¶ 5; Clark Aff. at 1-2 [noting incident on May 1, 2017, when inmates used fire hoses to destroy "nest building swallows" and "wholly constructed nests"]; Gillum Aff. at 1-2 [during "six weeks" prior to May 6, 2017, inmate witnessed "five times" when inmate "Bird Shower Crew" destroyed swallow nests and swallows]; Riconosciutto Aff. at 1-2 [noting incident on May 5, 2017, when "Bird Shower Crew" destroyed "four (4) occupied and completed cliff swallow nests"]; Glen Aff. at 1-2 [noting incident within "last two weeks of [May 8, 2017]" when FCI Lompoc staff directed inmates to destroy "mud swallow nesting colonies" with high-pressure fire hoses]).

The BOP's actions were "directly at odds" with plaintiff's religious beliefs (i.e., the "Asatru faith"), and caused "procedural injury" to plaintiff because they "had a negative effect on the plaintiff's 'aesthetic, conservational, and recreational' religious beliefs, and constituted a 'concrete interest' which sufficiently 'adversely affected or aggrieved'" plaintiff. (SAC at 1-2; SAC at 9, ¶¶ 5, 10; SAC at 10, ¶ 5; SAC at 11, ¶ 11; Kandi Aff. #2 at 2-3).

B. Allegations Related to Bivens Claim

Plaintiff is a "practicing member of the Nordic Asatru faith," and plaintiff can "read and write in a runic alphabet." (Kandi Aff. #5 at 2, ¶ 6). The BOP "is aware of [plaintiff's] confessed religious faith" since plaintiff is "listed as 'Asatru/Pagan' in the Sentry inmate classification system." (Kandi Aff. #5 at 2, ¶ 6). Plaintiff has not previously had any "disciplinary actions" filed against him at FCI Lompoc. (Kandi Aff. #5 at 2, ¶ 5).

On or about November 5, 2016, plaintiff filed an inmate grievance which complained about defendant Webster's "new policy" prohibiting inmates from storing any legal materials under their bunk ("November Grievance"). (SAC at 13, ¶ 22; Kandi Aff. #5 at 2, ¶ 4; Kandi Aff. #5, Ex. A at 8-13). Plaintiff also "[has] three, and soon to be four, active lawsuits against [FCI Lompoc] and members ofits staff" (collectively "Plaintiff's Lawsuits"). (Kandi Aff. #5 at 2-3, ¶¶ 3, 7). Defendant Webster "was aware of the Plaintiff's M.B.T.A. lawsuit and was aware that Plaintiff was assisting other inmates with their legal needs." (SAC at 13, ¶ 23).

On August 24, 2017, defendant Webster confiscated one of plaintiff's books during a search of plaintiff's "bunkie's" area. (Kandi Aff. #5 at 3, ¶¶ 9-10, 14-15). On August 25, 2017, plaintiff retrieved his book from the bunkie's locker after it was returned from the Unit Officer's office. (Kandi Aff. #5 at 4, ¶ 16). Later that day defendant Webster came to plaintiff's bunk, asked about plaintiff's book "with the paper in it," and confiscated the book, stating that it "should have been inventoried with [the] bunkie's property[,]" and that he had to check if plaintiff "[could] even have [the] particular book." (Kandi Aff. #5 at 4, ¶ 17). Plaintiff informed defendant Webster that the book "was a religious philosophy book [which] had been obtained lawfully" but the defendant did not want to discuss the issue any further. (Kandi Aff. #5 at 4, ¶ 17). The FCI Lompoc Education Department and Chapel makes many books available to inmates which include "alternate forms of writing" like plaintiff's book, yet defendant Webster "selected" only plaintiff's book to be confiscated. (Kandi Aff. #5 at 6-7, ¶¶ 33-34).

On August 28, 2017, plaintiff was "summoned to the Lieutenant's Office" and issued a "disciplinary shot" (i.e., a BOP "Incident Report") which charged plaintiff with violating several disciplinary rules, specifically "Prohibited Act Code[]" Section 296 ("[u]se of the mail for abuses other than criminal activity"), Section 299 ("[c]onduct that disrupts or interferes with the security or orderly running of the institution"), and Section 305 ("[p]ossession of anything not authorized for retention or receipt by the inmate, and not issued to him through regular channels"). (Kandi Aff. #5 at 4, ¶18).

The Incident Report signed by defendant Webster on August 28, 2017, noted that "[s]taff became aware of [the] incident" on August 28, 2017, [at] 5:00 p.m.[,]" and described the incident as follows:

On 8/28/2017 at approximately 5:00 p.m. I was reviewing a book titled, "the Secret Teachings of all Ages", that I had previously found in the possession of [plaintiff]. . ., and found a hand written paper in it. When I removed the book from [plaintiff] he had pointed out that there was a paper located in the book that he wanted. I had stated to him that we will leave everything in the book for a review since I was concerned about the book. The paper was the one that [plaintiff] had previously pointed out. The paper has codes written on it. Also noted was that the paper was placed in a chapter XXXIX (39) of the book labeled, "The Cryptogram as a Factor in Symbolic Philosophy." The chapter in the book is written about various ciphers, codes and cryptograms. The chapter includes various pictures and illustrations of these items. On the inside cover of the book [plaintiff] has written his name and register number. [Plaintiff] claimed ownership of the written paper located in the book and book. Books on ciphers, codes or cryptograms are not authorized. Writing in ciphers, codes or cryptograms is not authorized.

(Kandi Aff. #5, Ex. A at 4; see Kandi Aff. #5 at 4-5, ¶ 20).

The Incident Report "was NOT signed in Section 14" (i.e., "Incident Report Delivered to Above Inmate by"), "was NOT dated in Section 15" (i.e., "Date Incident Report Delivered"), and "was NOT time-logged in Section 16" (i.e., "Time Incident Report Delivered"). (Kandi Aff. #5 at 4, ¶ 19; Kandi Aff. #5, Ex. A at 4) (emphasis in original). In addition, BOP rules state that "[s]anctions will not be imposed in a capricious or retaliatory manner[,]" and that inmates "will ordinarily receive an incident report within 24 hours of staff becoming aware of [an inmate's] involvement in the incident." (SAC at 13, ¶ 20; Kandi Aff. #5 at 5, ¶ 23 (quoting BOP Program Statement 5270.09))....

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