Michael Strausbaugh v. UNKNOWN BACON, F-Unit Manager, USP Tucson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL STRAUSBAUGH,
Plaintiff-Appellant,
v.
UNKNOWN BACON, F-Unit Manager,
USP Tucson and UNKNOWN HILLERS,
Unit Manager FCI Waseca; names as Mrs.
Hiller,
Defendants-Appellees.
No. 16-15736
D.C. No. 4:14-cv-01937-JAS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted April 9, 2018
Pasadena, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and DRAIN,** District
Judge.
FILED
JUN 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.

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Plaintiff-Appellant Michael Strausbaugh, who is an inmate in a federal
prison in Arizona, filed this action pro se against Defendant-Appellee Bacon, his
Unit Manager, and Defendant-Appellee Hillers, a Unit Manager in the federal
prison in Minnesota where his wife was an inmate. He sought damages and
injunctive relief in claims arising out of the officials’ alleged refusal to permit him
to serve by mail his filings in divorce proceedings instituted by his wife. The
district court granted Defendants-Appellees’ motion to dismiss. The court held it
lacked personal jurisdiction over the Minnesota defendant, Hillers, and that the
claim for damages against the Arizona defendant, Bacon, was barred by qualified
immunity. The district court denied Mr. Strausbaugh’s claim for equitable relief
on immunity grounds. We appointed pro bono counsel on appeal.
We agree with the district court that it lacked personal jurisdiction over
Defendant-Appellee Hillers, who has taken no deliberate action creating requisite
contacts with the forum state, Arizona. See Walden v. Fiore, 134 S. Ct. 1115, 1122
(2014) (“[O]ur ‘minimum contacts’ analysis looks to the defendant’s contacts with
the forum State itself, not the defendant’s contacts with persons who reside
there.”). Hillers’s alleged conduct is insufficient to establish specific personal
jurisdiction.
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The district court’s dismissal of the claims against Defendant-Appellee
Bacon raises issues relating, first, to the availability of an action for damages in the
wake of Supreme Court decisions post-Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), and second, to the availability of injunctive relief.
The district court, however, did not consider whether a Bivens remedy was
available here, because it correctly concluded that, in any event, Defendant Bacon
was entitled to qualified immunity.
It was not clearly established that precluding the use of the mail for service
of documents under the circumstances of this case violated a constitutional right of
access to the courts. The relevant regulation, 28 C.F.R. § 540.17, provides that
inmates “may” be permitted to correspond with incarcerated family members. It
then makes specific reference to legal proceedings. See 28 C.F.R. § 540.17(b)(1)
(“The appropriate unit manager at each institution must approve of the
correspondence if both inmates are housed in Federal institutions and both inmates
are members of the same immediate family or are a party or witness in a legal
action in which both inmates are involved.”); Turner v. Safley, 482 U.S. 78, 93
(1987) (citing the regulation for the proposition that “well-run prison systems,
including the Federal Bureau of Prisons, have concluded that . . . restrictions on
inmate correspondence were necessary to protect institutional order and security”).
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The denial did not clearly violate what the Court in Bounds v. Smith, 430 U.S. 817
(1977), and Lewis v. Casey, 518 U.S. 343 (1996), recognized as a right to access
for prisoners seeking review of their convictions or prison conditions of
confinement. The district court properly concluded Bacon was entitled to qualified
immunity. He violated no right that was clearly established.
Qualified immunity, however, does not constitute a bar to equitable relief.
See Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 2012) (“Qualified immunity
is only an immunity from a suit for money damages, and does not provide
immunity from a suit seeking declaratory or injunctive relief.” (citations omitted)).
The district court therefore erred in dismissing the claim for injunctive relief on the
ground that the remaining Defendant, Bacon, was entitled to qualified immunity.
The government on appeal points only to the fact that the final amended complaint
does not expressly allege a cause of action against defendants in their official
capacity and argues equitable relief is therefore unavailable to him. See Ministerio
Roca Solida v. McKelvey, 820 F.3d 1090, 1094 (9th Cir. 2016). The complaint,
however, did expressly seek injunctive relief. It may be that the claim for
injunctive relief is by now moot because of the finality and unreviewability of the
divorce proceedings, but that is for the district court to determine in the first
instance.
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The judgment dismissing the action against Defendant Hillers for lack of
personal jurisdiction is affirmed. The judgment dismissing the Bivens claim
against Defendant Bacon is affirmed and the case is remanded for further
proceedings on the claim for equitable relief.
AFFIRMED in part, REVERSED in part, and REMANDED in part.
The parties shall bear their own costs.
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