Williams v. Baker et al

Filing 62

ORDER to Submit Briefing, signed by Magistrate Judge Jeremy D. Peterson on 5/14/2019. (Case Management Deadline: 30-Day Deadline)(Martin-Gill, S)

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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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Case No. 1:16-cv-01540-DAD-JDP
ORDER TO SUBMIT BRIEFING
THIRTY-DAY DEADLINE

v.
OFFICER BAKER,
Defendant.

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Plaintiff is a federal prisoner proceeding without counsel in this civil rights action brought

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under Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed this action in 2016,

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ECF No. 1, and the court screened it under 28 U.S.C. § 1915A in January 2017, ECF No. 12. The

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court concluded that plaintiff stated claims for retaliation and excessive force. ECF No. 12. After

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motions practice, the action proceeds only on plaintiff’s Eighth Amendment excessive force

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claim. ECF No. 50; ECF No. 61.

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After plaintiff’s complaint was screened, the Supreme Court decided Ziglar v. Abbasi and

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examined “the reach and the limits of [its] precedent” concerning “Bivens and the ensuing cases.”

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137 S. Ct. 1843, 1854 (2017). The Supreme Court stated that “expanding the Bivens remedy is

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now a ‘disfavored’ judicial activity,” and that, if a plaintiff asks for a Bivens remedy in a new

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context, courts must engage in a special factors analysis. Id. at 1857-60 (quoting Ashcroft v.

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Iqbal, 556 U.S. 662, 675 (2009)). As a result of Abbasi, there is some question whether an Eighth
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Amendment excessive force claim may be brought under Bivens. See Thomas v. Matevousian,

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No. 117CV01592AWIGSAPC, 2019 WL 266323, at *2 & n.1 (E.D. Cal. Jan. 18, 2019)

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(collecting cases that address prisoners’ access to Bivens after Abbasi). The court identified this

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issue in its February 26, 2019 findings and recommendations but declined to address it, reasoning

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that the question was not then before the court. ECF No. 59 at 1 n.1.

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We must now consider the question. Plaintiff is proceeding in forma pauperis under 28

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U.S.C. § 1915. The Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, §§ 801-10, 110

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Stat. 1321, amended § 1915 to require the district court to dismiss in forma pauperis prisoner

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civil rights suits if the court determines that the action does not state a claim upon which relief

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may be granted. § 1915(e)(2)(B)(ii) (“[T]he court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.”

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28 U.S.C. § 1915(e)(2)(B)(ii).). We thus must determine whether plaintiff’s complaint states a

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claim on which relief may be granted in light of Abbasi. We will direct that the parties submit

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briefing on the question. Briefing should address (1) whether plaintiff’s allegations present a

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“new Bivens context” and, (2) if so, “whether the Judiciary is well suited, absent congressional

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action or instruction, to consider and weigh the costs and benefits of allowing [this] damages

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action to proceed.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1858-59 (2017).

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ORDER

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Plaintiff must file briefing addressing this issue no later than thirty days after entry of this

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order. Defendant may file a response, which must be filed no later than ten days after plaintiff’s

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filing. If defendant files a response, plaintiff may reply; such reply must be filed no later than ten

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days after defendant’s response.

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IT IS SO ORDERED.

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Dated:

May 14, 2019
UNITED STATES MAGISTRATE JUDGE

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No. 203

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