Juan Vega, Jr. v. United States , 881 F.3d 1146 ( 2018 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JUAN D. VEGA, JR.,                      No. 13-35311
    Plaintiff-Appellant,
    D.C. No.
    v.                     2:11-cv-00632-
    RSM
    UNITED STATES OF AMERICA;
    PIONEER HUMAN SERVICES, DBA
    Pioneer Fellowship House                  OPINION
    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
    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 Plaintiff-
    Appellant.
    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 community-
    based, 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 Bivens-
    type 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 (civil-
    service 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.