Williams v. Baker et al
Filing
146
FINDINGS and RECOMMENDATIONS to Grant 138 Defendants' Motion for Judgment on the Pleadings re 99 signed by Magistrate Judge Helena M. Barch-Kuchta on 11/6/2023. Referred to Judge de Alba. Objections to F&R due within 14 days. (Xiong, J.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SHANNON WILLIAMS,
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Plaintiff,
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v.
CHRISTOPHER BAKER and UNITED
STATES OF AMERICA,
CASE NO: 1:16-cv-01540-ADA-HBK
FINDINGS AND RECOMMENDATIONS TO
GRANT DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS1
(Doc. No. 138)
Defendants.
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FOURTEEN DAY OBJECTION PERIOD
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Pending before the Court is Defendants Christopher Baker and United States of America’s
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(collectively “Defendants”) Motion for Judgment on the Pleadings. (Doc. No. 138, “Motion”).
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Defendants argue Plaintiff’s Eighth Amendment Bivens2 excessive force claim against Defendant
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Baker is barred by recent Supreme Court and Ninth Circuit case law. Plaintiff filed an Opposition
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(Doc. No. 140), and Defendants filed a Reply (Doc. No. 143). For reasons set forth below, the
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undersigned recommends the District Court grant Defendants’ Motion.
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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2022).
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Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
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BACKGROUND AND SUMMARY OF OPERATIVE COMPLAINT
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Plaintiff, a federal prisoner, initiated this action pro se by filing a civil rights complaint on
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October 13, 2016. (Doc. No. 1). Plaintiff proceeds on his First Amended Complaint alleging
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two claims: (1) a Bivens claim against Defendant Baker for excessive force under the Eighth
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Amendment; and (2) a battery claim against the United States of America under the Federal Tort
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Claims Act (“FTCA”). (See Doc. No. 99). Both claims arise from an incident that occurred at
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the United States Penitentiary in Atwater, California (“USP-Atwater”) on October 13, 2014. In
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summary, Defendant Baker responded to assist another officer who was engaged in a struggle
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with Plaintiff after Plaintiff refused to surrender an item he was holding. (See id. ¶¶ 15-16).
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Plaintiff alleges that during the incident, Defendant Baker “violated Plaintiff’s Eighth
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Amendment right by maliciously and sadistically planting Plaintiff’s left hand on the ground and
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wrenching his arm muscle from the bone in a manner intended to inflict pain, and which went far
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above the force needed to apprehend Plaintiff because he was already compliant with arrest.” (Id.
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¶ 27). Plaintiff asserts that Baker stated, “[t]hat will teach you to file grievances.” (Id.). Plaintiff
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sustained a permanent loss of the full use of his arm, pain and suffering, and other injuries. (Id. ¶
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28).
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The previous magistrate’s judge’s screening order permitting Plaintiff to proceed with his
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Eighth Amendment Bivens claim was issued on September 14, 2020, before the Supreme Court
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decided Egbert v. Boule, 596 U.S. 482 (2022). (See Doc. No. 82). In his screening order, the
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magistrate judge recognized the operative complaint raised “an issue that has bedeviled federal
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courts for the past three years: the remaining breadth of the judicially created constitutional
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damages remedy known as Bivens.” (Id. at 1). Observing the Supreme Court had “curtailed
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Bivens” in Ziglar v. Abbasi, 582 U.S. 120 (2017) and Hernández v. Mesa, 140 S. Ct. 735 (2020)
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and finding Plaintiff’s Eighth Amendment claim arose in a new context, the magistrate judge
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noted that then-existing authority was “uncertain in key respects” regarding how to apply the
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“special factors” analysis. (Doc. No. 82 at 2). While holding the question “close” and
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“persuasive authority [] far from unanimous,” the court concluded that “special factors do not
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counsel hesitation” and found a cognizable Bivens claim against Officer Baker. (Id. at 6, 14).
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As set forth more fully below, considering subsequent Bivens case law handed down from
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the Supreme Court and Ninth Circuit, the undersigned finds it may not extend a Bivens remedy to
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an Eighth Amendment excessive use of force claim. Accordingly, Plaintiff’s Eighth Amendment
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excessive use of force claim brought under Bivens is barred and the Motion for Judgment on the
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Pleadings is proper.
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APPLICABLE LAW AND DISCUSSION
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A.
Legal Standard
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“[J]udgment on the pleadings is properly granted when, taking all the allegations in the
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pleadings as true, the moving party is entitled to judgment as a matter of law.” Milne ex rel.
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Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir.2005). The burden is on the
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moving party to establish on the face of the pleadings that there is no material issue of fact. Hal
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Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. 1990).
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Because a Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion, courts
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should apply the same standard. Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir.
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1989). In considering a Rule 12(c) motion, a court must limit its review to the pleadings and
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“facts that are contained in materials of which the court may take judicial notice.” Heliotrope
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Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (internal quotation marks
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and citations omitted). A motion for judgment on the pleadings should only be granted if,
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accepting as true all material allegations contained in the nonmoving party's pleadings, the
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moving party “clearly establishes that no material issue of fact remains to be resolved and that he
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[or she] is entitled to judgment as a matter of law.” Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d
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1480, 1482 (9th Cir. 1984) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice
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and Procedure § 1368 (1969)).
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B. Applicability of Bivens to Plaintiff’s Complaint
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To date, the Supreme Court has only recognized a Bivens remedy in fact specific Fourth,
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Fifth, and Eighth Amendment contexts. See Bivens, 403 U.S. 388 (Fourth Amendment
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prohibition against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979)
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(Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth
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Amendment for failure to provide adequate medical treatment).
1. Recent Supreme Court case law regarding extension of Bivens
The Supreme Court made clear that “expanding the Bivens remedy is now a disfavored
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judicial activity,” and has “consistently refused to extend Bivens to any new context or new
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category of defendants.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citations omitted); see
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Egbert v. Boule, 596 U.S. 482, 491 (2022) (reiterating that “a cause of action under Bivens is ‘a
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disfavored judicial activity.”). Traditionally, courts applied a two-part test to determine the
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appropriateness of extending a Bivens cause of action. First, the court examined whether the
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claim arises in a “new context” or involves a “new category of defendants.” Hernandez v. Mesa,
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140 S. Ct. at 743. Second, if the claim does indeed arise in a new context, the court assessed
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whether there exists any “special factors counselling hesitation in the absence of affirmative
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action by Congress.” Ziglar, 582 U.S. at 136 (internal quotations omitted). Recently, the
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Supreme Court reformulated this test. In Egbert, 596 U.S. at 492, the Supreme Court concluded
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these two steps can be distilled into a single inquiry— “whether there is any reason to think that
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Congress might be better equipped to create a damages remedy.” The Court further specified that
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if there is even one rational reason to defer to Congress to afford a remedy, then “a court may not
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recognize a Bivens remedy.” Id. Practically, the Court concluded that a rational reason for
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deference to Congress will exist “in most every case.” Id.
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Significant, the availability of an alternative remedial structure counsels against extending
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Bivens to a new cause of action. Thus, a court may not even determine the adequacy of the
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alternative remedy, as this too is a task left for Congress. Egbert, 596 U.S. at 498. Indeed, “[s]o
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long as Congress or the Executive has created a remedial process that it finds sufficient to secure
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an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing
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a Bivens remedy.” Id. This remains true “even if a court independently concludes that the
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Government’s procedures are ‘not as effective as an individual damages remedy.’” Id. (quoting
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Bush v. Lucas, 462 U.S. 367, 372 (1983)).
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2. Recent Ninth Circuit case law regarding extension of Bivens
“Heeding the [Supreme] Court’s guidance,” in Egbert and Hernandez the Ninth Circuit
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has “similarly declined to extend Bivens to any new contexts.” Chambers v. C. Herrera, 78 F.4th
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1100, 1104 (9th Cir. 2023); see Harper v. Nedd, 71 F.4th 1181 (9th Cir. 2023) (finding new
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Bivens context in Fifth Amendment due process claim because claim involved a new category of
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defendants and alternative remedial scheme); Pettibone v. Russell, 59 F.4th 449 (9th Cir. 2023)
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(same in Bivens claim brought under the Fourth Amendment because claim involved officers of a
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different rank and distinguishable official action and legal mandate); Mejia v. Miller, 61 F.4th 663
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(9th Cir. 2023) (same in Fourth Amendment excessive force claim because case involved new
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category of defendants). In each of these cases the Ninth Circuit concluded that Congress, not the
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Judiciary, was better suited to fashioning damages remedies. “Essentially then, future extensions
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of Bivens are dead on arrival.” Harper, 71 F.4th at 1187.
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After the parties submitted their briefing on the instant Motion, the Ninth Circuit
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confronted the precise question raised by this motion: whether Bivens provides an implied cause
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of action for an Eighth Amendment excessive use of force claim. Chambers, 78 F.4th at 1107.
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As the briefing submitted by the parties on this motion reflects, district courts in this circuit have
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come to different conclusions on this question. Compare Davis v. Fed. Bureau of Prisons, 2022
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WL 18460704, at *1 (C.D. Cal. Dec. 8, 2022), report and recommendation adopted, 2023 WL
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405319 (C.D. Cal. Jan. 24, 2023) (rejecting Bivens claim in which prisoner alleged that officer
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used excessive force) and Cain v. Paviglianti, 2023 WL 3855284, at *3 (E.D. Cal. June 6, 2023)
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(granting motion to dismiss former prisoner’s claim seeking damages against a federal
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correctional officer for using excessive force against him in violation of the Eighth Amendment)
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with Bailey v. Cox, 2022 WL 4237991, at *3 (E.D. Cal. Sept. 14, 2022) (relying on and quoting
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Reid v. United States, 825 F. App’x 442, 444-45 (9th Cir. Sept. 2, 2020) (Eighth Amendment
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excessive force claim did not present new Bivens context) (“A claim for damages based on
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individualized mistreatment by rank-and-file officers is exactly what Bivens was meant to
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address.”) and Moneyham v. United States, 2018 WL 3814586, at *4 (C.D. Cal. May 31, 2018),
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report and recommendation adopted, 2018 WL 3807839 (C.D. Cal. Aug. 6, 2018) (finding that
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Eighth Amendment excessive force presents new Bivens context, but special factors analysis does
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not does not foreclose Bivens remedy). Notably, the decisions finding that Bivens permits an
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Eighth Amendment excessive use of force cause action (Bailey and Moneyham) were decided
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before Egbert or do not discuss Egbert. In Bailey, which Plaintiff cites repeatedly in his
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Opposition, the court noted cautiously that “[a]lthough the court will allow Plaintiff's claims to
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proceed, it does not preclude the parties from raising this issue with full briefing later in the case.”
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2022 WL 4237991 at *3.
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However, the Ninth Circuit in Chambers squarely addressed the question raised by the
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above cases and unequivocally held that excessive use of force under the Eighth Amendment
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represents a “new context” for application of Bivens. The Chambers Court rejected the
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argument—which the Bailey court had adopted—that excessive use of force is sufficiently similar
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to deliberate medical indifference to find it permissible under Carlson. Id. at 1107. The Court
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reasoned:
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it is not enough that Carlson was also brought under the Eighth
Amendment because several Ziglar factors highlight that this claim
presents a new context. These factors include: “the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other legal
mandate under which the officer was operating;” and “the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches.”
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Id. at 1107–08 (internal citations omitted). The Chambers Court reasoned that any time Congress
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or the Executive has legislated to create causes of action for prisoners, the decision not to create
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an express cause of action, such as for Eighth Amendment failure to protect or excessive use of
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force, “suggests that they have decided against creating such an action.” Id. at 1107. And the
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decision not to create such a cause of action gives the Court a reason “to think that Congress is
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better suited to weigh the costs and benefits of allowing a damages action to proceed.” Id.,
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quoting Egbert, 596 U.S. at 492. In creating the PLRA and authorizing the BOP to create
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administrative grievance procedures, without explicitly creating a damages remedy for Eighth
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Amendment excessive force claims, Congress gave such an indication and the Court thus
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declined to create a new Bivens remedy. Id. at 1108. Thus, binding Ninth Circuit case law now
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holds that under Egbert, this Court may not extend a Bivens remedy to an Eighth Amendment
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excessive use of force claim.
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C. Parties’ Positions
1. Defendants’ Motion
Defendants’ Motion, which was briefed and submitted before Chambers, argues that
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under Egbert and Harper, the extension of Bivens to a new context is “dead on arrival.” (Doc.
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No. 138-1 at 1-2). Because the Supreme Court has never recognized a Bivens remedy for an
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Eighth Amendment excessive use of force claim, permitting the claim to proceed would mean
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recognizing a Bivens remedy in a “new context,” which is “disfavored” if not outright barred by
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recent Supreme Court case law. (Id. at 4-6).
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Even assuming the analysis does not stop there, Defendants argue that a special factors
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analysis counsels against recognizing a new Bivens remedy. First, federal prisoners have access
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to at least two alternative remedial structures in the BOP administrative grievance process and the
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FTCA, which “independently foreclose[s] a Bivens action.” (Id. at 8) (quoting Bivens, 596 U.S.
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at 497). And under Egbert, a court may not “second-guess” the sufficiency of these remedial
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processes by weighing their adequacy and superimposing a judicially created Bivens remedy.
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(Doc. No. 138-1 at 8-9). Defendants also point to separation of powers concerns implicated when
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federal courts involve themselves in the daily operations of the federal prisons, which task is
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delegated to the executive branch. (Id. at 10). Finally, Defendants point out that finding a new
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damages remedy where Congress declined to do so as part of the PLRA is another factor
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counseling hesitation under Ziglar. (Id. at 11-12).
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2. Plaintiff’s Opposition to the Motion
Plaintiff sets forth several arguments why the Court should reject Defendants’ Motion.
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First, Plaintiff contends that the Motion was not properly noticed under the Local Rules, which
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the Court subsequently addressed by Text Order. (See Doc. No. 142).
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Second, Plaintiff argues that applying the law of the case doctrine, the Court should not
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reverse its prior position that Plaintiff can proceed on his Eighth Amendment claim under Bivens.
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(Id. at 3-5). Plaintiff acknowledges that a court may revisit its prior rulings if there is a change in
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case law applicable to the ruling. (Id. at 4). However, Plaintiff contends that Egbert does not
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constitute a sufficient change in the law regarding Bivens to warrant the Court revisiting its
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ruling. (Id.). For this proposition, Plaintiff cites to Kidd v. Mayorkas, 645 F. Supp. 3d 961 (C.D.
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Cal. Dec. 12, 2022), a district court case which held that Egbert did not fundamentally change the
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Bivens analysis previously set forth in Ziglar and Hernandez, and that “only if the new case is ‘a
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binding opinion directly on point and irreconcilable with the earlier decision in the period
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between the first and second decisions of the lower court.” Kidd, 645 F. Supp. 3d at 966.
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Third, Plaintiff cites to Bailey, an Eastern District case discussed supra, which held that
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the Eighth Amendment does not present a new context under Bivens; Plaintiff also notes that
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other districts around the country have come to the same conclusion. (Doc. No. 140 at 5).
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Plaintiff argues that even if the Court finds Eighth Amendment excessive use of force constitutes
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a new Bivens context, special factors do not counsel hesitation in extending a Bivens remedy.
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Plaintiff contends that Congress would not be better equipped to authorize “prisoners’ damages
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claims against rank-and-file officers for individualized mistreatment,” noting that the PLRA does
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not create any remedies, but only sets forth the procedural requirements for prisoner plaintiffs to
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bring their claims. (Id. at 7). Plaintiff asserts that “[a]t the time it passed the PLRA, Congress
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understood that most federal prisoners brought their legal claims under Bivens. Yet in deciding
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how to limit prisoner suits, Congress chose not to foreclose these claims.” (Id.). Thus, Plaintiff
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infers there exists Congressional intent not to limit the availability of Bivens suits. (Id.).
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Moreover, Plaintiff argues that neither the BOP’s administrative grievance process nor the FTCA
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provides an adequate alternative remedial model, thus their existence does not counsel hesitation
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in extending a new Bivens remedy.
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3. Defendants’ Reply
In their Reply, Defendants respond that Egbert is “irreconcilable” with this Court’s prior
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ruling regarding the availability of a Bivens remedy for Plaintiff’s claim. (Doc. No. 143 at 2).
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They reiterate that in Egbert, the Supreme Court held that the existence of an alternative remedial
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structure “independently foreclose[s] a Bivens action.” (Id.) (citing Egbert, 596 U.S. at 497).
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Although Plaintiff contends that neither the BOP’s grievance process nor the FTCA is an
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adequate alternative, Egbert makes clear that federal courts cannot “second-guess” the sufficiency
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of a remedial structure by “superimposing a Bivens remedy.” (Id.).
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Defendants point out that Kidd v. Mayorkas, which Plaintiff cites to argue that Egbert
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does not constitute a change in the law sufficient to supersede the law of the case doctrine, is not
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applicable here. (Id. at 3-4). In Kidd, the court had previously found that a Fourth Amendment
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search and seizure claim did not represent a new context under Bivens and thus did not reach the
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special factors analysis. (Id. at 3). Defendants filed a Motion for Judgment on the Pleadings,
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citing to Egbert as warranting a new analysis of the issue. (Id.). But the court found that Egbert
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“devoted no substantive analysis to the context question” and therefore did not involve a change
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in the law as to that issue. (Id. at 3-4) (citing Kidd, 645 F. Supp. 3d at 969). Here, because the
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Court’s Screening Order based its ruling on the special factor analysis, Kidd’s holding as to
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Egbert is inapposite. (Id. at 4). Moreover, Defendants point out that Kidd is not binding on this
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Court. (Id.).
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Defendants further argue that Egbert constitutes a change in the law because it resolves
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the ambiguities in Ziglar and Hernandez, reflected in this Court’s Screening Order, concerning
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how to weigh the different special factors and evaluate alternative remedial processes. (Id. at 4-
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5). Egbert simplifies the inquiry by directing a federal court to ask, “if there is any reason to
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think that judicial intrusion into a given field might be harmful or appropriate; [if] there is the
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potential for such consequences, a court cannot afford a plaintiff a Bivens remedy.” (Id. at 5)
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(quoting Egbert, 596 U.S. at 496). Additionally, the existence of an alternative remedial
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procedure created by Congress or the Executive “independently foreclose[s] a Bivens action.”
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(Id. at 5).
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Defendants note that this Court previously found that Plaintiff’s Eighth Amendment claim
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presents a new context under Bivens and argues that the Court’s holding in Egbert does not
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warrant reconsidering that finding. (Id. at 8). And once the Court finds a Bivens claim arises in a
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new context, as the Ninth Circuit recently stated in Harper, the claim is essentially “dead on
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arrival” because “[u]nder Egbert, rarely if ever is the Judiciary equally suited as Congress to
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extend Bivens even modestly.” (Id. at 8) (quoting Harper, 71 F.4th at 1187). Thus, Defendants
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conclude that Plaintiff’s Eighth Amendment Bivens claim is similarly foreclosed.
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ANALYSIS
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The former magistrate judge previously found that Plaintiff’s Eighth Amendment
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excessive use of force claim presents a new context for a Bivens cause of action, but that special
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factors “do not counsel against extending the remedy” in this case. (Doc. No. 82 at 2). Since that
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ruling was issued, however, the analysis of Bivens claims has shifted significantly due to the
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Supreme Court’s opinion in Egbert, and Ninth Circuit’s opinions in Harper and Chambers.
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The Court is bound by those decisions, and in particular by Chambers, whose ruling could
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not be more squarely on point. The Ninth Circuit held in Chambers that an Eighth Amendment
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excessive use of force claim presents a new context not previously recognized for a Bivens claim,
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and that expanding Bivens would “risk the exact ‘disruptive intrusion by the judiciary’ that Ziglar
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forecloses.” Chambers, 78 F.4th at 1108. The Chambers Court followed the simplified and
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stricter guidance of Egbert whereby federal courts must ask whether Congress is better equipped
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to create a damages remedy and concluded it should “decline to craft an action for damages when
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Congress could have done so but did not.” Id. Thus, the Ninth Circuit expressly declined to
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extend Bivens to an Eight Amendment excessive use of force claim. Id.
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Here, Plaintiff sets forth various arguments against revisiting the Court’s ruling in its
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Second Screening Order. However, it is incontrovertible, that Chambers, if not Egbert and
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Harper, constitute a significant intervening change in the law since the Second Screening Order.
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The current case law affirms the Court’s prior finding that an Eighth Amendment excessive use of
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force claim constitutes a new context under Bivens, and considering Egbert and Harper, a new
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context is almost certainly “dead on arrival.’” Chambers, 78 F. 4th at 1104 (quoting Harper, 71
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F. 4th at 1187). Because the Ninth Circuit has expressly found that to be the case in this specific
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Eighth Amendment excessive use of force context as presented by Plaintiff’s claim, the Court
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must follow that binding precedent and find in Defendants’ favor. Chambers, Id. at 1107-08
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(reversing district court and dismissing Eight Amendment excessive use force claim with
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prejudice).
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The undersigned thus recommends the District Court grant Defendants’ Motion and
dismiss Plaintiff’s Eighth Amendment Bivens claim.
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Accordingly, it is RECOMMENDED:
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1.
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(Doc. No. 137) under Rule 12(c) and dismiss with prejudice Plaintiff’s Bivens Eighth
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Amendment excessive use of force claim in his operative complaint (Doc. No. 99).
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2.
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operative complaint (Doc. No. 99) to proceed only on Plaintiff’s FTCA claim against
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United States of America.
The district court GRANT Defendants’ Motion for Judgment on the Pleadings
The district court dismiss Defendant Baker from this action and permit Plaintiff’s
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NOTICE TO PARTIES
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These findings and recommendations will be submitted to the United States district judge
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assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14)
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days after being served with these findings and recommendations, a party may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Parties are advised that failure to file objections within the
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
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838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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Dated:
November 6, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE
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