Benjamin Schwarz v. Erwin Meinberg

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 13, 2019
• Docket: 17-55298
• Status: Unpublished

Opinion

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BENJAMIN R. SCHWARZ, in his No. 17-55298 individual and class representative capacities, D.C. No. 2:13-cv-00356-BRO-PLA Plaintiff-Appellant,

v. MEMORANDUM*

ERWIN MEINBERG; et al.,

Defendants-Appellees.

BENJAMIN R. SCHWARZ, in his No. 17-56216 individual and class representative capacities, D.C. No. 2:17-cv-00330-BRO-PLA Plaintiff-Appellant,

v.

Appeal from the United States District Court for the Central District of California Beverly Reid O’Connell, District Judge, Presiding Submitted February 11, 2019** Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges.

Plaintiff-Appellant Benjamin Schwarz challenges, in two appeals, the

district court’s dismissal of his claims alleging violations of the Fifth and Eighth

Amendments by Bureau of Prisons (BOP) officials related to his incarceration at

the Los Angeles Metropolitan Detention Center (MDC). Both Schwarz I and

Schwarz II involve the same set of facts and claims—that BOP officials subjected

Schwarz to unsanitary cell conditions, denied him access to the courts, and ignored

his request for placement in a camp facility in violation of his constitutional rights.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court’s grant of summary judgment and

dismissal for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6). Oklevueha Native Am. Church of Hawaii, Inc. v. Lynch, 828 F.3d 1012,

1015 (9th Cir. 2016); Carlin v. DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir.

2013).

We decline to extend Bivens remedies to Schwarz’s claims—unsanitary cell

conditions, access to courts, and request for placement in a camp facility—because

these claims do not fall within claims authorized by the Supreme Court. See Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In Ziglar v. Abbasi, the Court cautioned lower courts not to expand Bivens

remedies outside the three previously recognized Bivens claims. 137 S. Ct. 1843,

1854–55, 1857–61 (2017) (citing Bivens, 403 U.S. at 396 (recognizing a damages

2 remedy for an unreasonable search and seizure under the Fourth Amendment);

Davis v. Passman, 442 U.S. 228, 248–49 (1979) (permitting a damages remedy for

gender discrimination under the Fifth Amendment Due Process Clause); Carlson v.

Green, 446 U.S. 14, 19 (1980) (allowing a damages remedy for an Eighth

Amendment violation for failure to provide adequate medical treatment)). While

there is some similarity in the constitutional basis of Schwarz’s claims with

previously recognized Bivens claims, Schwarz’s claims nevertheless “arise[] in a

new Bivens context.” Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2017)

(quoting Abbasi, 137 S. Ct. at 1864). In other words, the claims are “different in a

meaningful way from previous Bivens cases decided by [the Supreme Court].” Id.

Schwarz’s Eighth Amendment claim regarding unsanitary cell conditions

presents a new Bivens context because Schwarz does not allege a failure to treat a

serious medical condition, which was the issue in Carlson. 446 U.S. at 16. Rather,

the basis of Schwarz’s claim—a nonfunctioning toilet—resembles the conditions

of the confinement claim the Supreme Court rejected in Abbasi. See Abbasi, 137 S.

Ct. at 1862.

Schwarz’s access to courts claim under the First and Fifth Amendments and

his Fifth Amendment claim that the BOP unlawfully denied his request for a camp

placement also constitute new Bivens contexts. First, the Supreme Court has never

recognized a Bivens claim under the First Amendment. See Reichle v. Howards,

566 U.S. 658, 663 n.4 (2012). Second, we recently held that both a First

3 Amendment access to courts and a Fifth Amendment procedural due process

claims presented new Bivens contexts. See, e.g., Vega, 881 F.3d at 1153. Third,

while Davis recognized a Fifth Amendment due process claim for gender

discrimination, 442 U.S. at 248–49, Schwarz’s due process claim is a new context

because it alleges national origin discrimination.

If a proposed claim arises in a new context, courts must conduct a special

factors analysis to determine whether to extend a Bivens remedy to that claim.

Vega, 881 F.3d at 1153. However, the Supreme Court makes “clear that a Bivens

remedy will not be available if there are ‘special factors counseling hesitation in

the absence of affirmative action by Congress.’” Abbasi, 137 S. Ct. at 1857

(quoting Carlson, 446 U.S. at 18). One such “hesitation” is “if there is an

alternative remedial structure present” which “alone may limit the power of the

Judiciary to infer a new Bivens cause of action.” Id. at 1858; see also Wilke v.

Robbins, 551 U.S. 537, 550 (2007) (holding that courts should refrain from

providing new remedies when alternative processes exist). Here, Schwarz had

alternative processes by which to pursue his claims and remedies. For example, he

could have sought a remedy under the Prison Litigation Reform Act of 1995, 42

U.S.C. § 1997e, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), or

through injunctive remedies.

Furthermore, we find that extending Bivens remedies to Schwarz’s claims

against regional and national BOP officials, individuals who lack direct connection

4 to Schwarz’s grievances, undermines the purpose of Bivens liability—to deter

individual government officers, not their supervisors or the agency, from engaging

in unconstitutional conduct. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70–71

(2001) (declining to extend Bivens liability when it would not advance Bivens’

purpose). We also find that extending Bivens to Schwarz’s claims would

substantially affect government operations and unduly burden BOP officials who

must defend against this suit in their personal capacities.

We reject Schwarz’s challenge to the district court’s application of a two-

year statute of limitations period in Schwarz II. The statute of limitations for a

Bivens claim is equivalent to a personal injury claim in the forum state. See Jones

v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Van Strum v. Lawn, 940 F.2d 406,

410 (9th Cir. 1991). Personal injury claims in California have a two-year statute of

limitations, which a court may toll for up to two years during a prisoner’s

incarceration. See Cal. Code Civ. P. §§ 335.1, 352.1. We have previously

interpreted California law to hold that pendency of a claim in one forum does not

toll the statute of limitation for a later claim in the same forum.1 Schwarz fails,

furthermore, to meet California’s equitable tolling requirements. See generally

Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999).

Finally, the district court previously dismissed Schwarz’s due process claims

1 See Mitchell v. Snowden, 700 F. App’x 719, 720 (9th Cir. 2017) (unpublished).

5 with prejudice, rejecting his argument relating to the nonfunctioning grievance

system. We affirmed on those grounds.2 Because we decline to reconsider our prior

ruling, Schwarz’s due process claims are foreclosed.

AFFIRMED.

2 See Schwarz v. Meinberg, 637 F. App'x 374 (9th Cir. 2016) (unpublished).