NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC HURST, No. 23-15523
Plaintiff-Appellant, D.C. No. 1:22-cv-171-DKW-RT v.
ESTELA DERR, et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the District of Hawaii Derrick K. Watson, District Judge, Presiding
Submitted February 14, 2024** Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges. Concurrence by Judge M. SMITH.
Eric Hurst (“Hurst”) appeals the dismissal of his Bivens1 claim against Earl
* 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). 1 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), established that a violation of a citizen’s constitutional rights by a federal officer can give rise to a federal cause of action for damages. Dayton, a nurse at Federal Detention Center, Honolulu. We have jurisdiction
under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we do not
recount them here, except as necessary to provide context to our ruling. We
review de novo the district court’s order granting the defendant’s Federal Rule of
Civil Procedure 12(b)(6) motion. Bain v. Cal. Teachers’ Ass’n, 891 F.3d 1206,
1211 (9th Cir. 2018).
The Supreme Court has clarified that the viability of a Bivens claim should
be assessed as follows. First, we must evaluate whether the case arises in a new
context because it is “meaningfully different” from the three previous cases in
which the Supreme Court has implied a damages action: Bivens itself, Davis v.
Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980). Egbert
v. Boule, 596 U.S. 482, 492 (2022). If the case does not present a new context, “no
further analysis is required,” and the claim may proceed. Lanuza v. Love, 899 F.3d
1019, 1023 (9th Cir. 2018). If the case does present a new context, we must
inquire “whether there is any reason to think that Congress might be better
equipped to create a damages remedy” than the judiciary. Egbert, 596 U.S. at 492.
In Carlson v. Green, the Supreme Court recognized for the first time an
implied cause of action under the Eighth Amendment when federal prison officials
failed to provide an inmate with adequate medical treatment. 446 U.S. at 16 n.1.
Hurst sues a federal prison official under the Eighth Amendment because that
2 official failed to provide medical care for his severe head pain. Because Hurst’s
claim is not “meaningfully different” from Carlson, it does not present a new
context.
Contrary to defendant’s arguments, we have held that differences in the
severity of a prisoner’s medical need compared to Carlson do not give rise to a
new Bivens context. Stanard v. Dy, 88 F.4th 811, 817 (9th Cir. 2023) (“Even
assuming that [the plaintiff] received less deficient care than the inmate in Carlson,
that difference in degree is not a meaningful difference giving rise to a new
context.”). Likewise, under our court’s precedent, a prisoner’s medical condition
need not be chronic, fatal, or life-threatening for a claim to be cognizable under
Bivens and Carlson. C. Chambers v. Herrera, 78 F.4th 1100, 1108 (9th Cir. 2023)
(recognizing that a Bivens claim may be viable where prison officials refused to x-
ray a prisoner’s broken arm for six weeks); Jett v. Penner, 439 F.3d 1091, 1098
(9th Cir. 2006) (failing to treat a broken thumb could constitute deliberate
indifference to a serious medical need). Also contrary to the defendant’s
contention, delay or denial of medical care, rather than overt acts of mistreatment,
do not create a new context. Stanard, 88 F.4th at 817 (“Delaying treatment is an
established example of deliberate indifference to a serious medical need.”). Thus,
the district court erred when it held that Hurst’s case was meaningfully different
from Carlson.
3 The existence of alternative remedial structures within the BOP likewise
does not render this case a new context. Egbert clarified that the existence of
alternative remedies is a “special factor” which should be considered at the second
step of the Bivens analysis. Egbert, 596 U.S. at 498 (“So long as Congress or the
Executive has created a remedial process that it finds sufficient to secure an
adequate level of deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy.”). In Stanard, we held that a Bivens action did
not present a new context from Carlson even where the prisoner had repeatedly
grieved his denial of medical care using the BOP’s internal complaint system. 88
F.4th at 814, 818. Thus, the district court erred when it held that the existence of
alternative remedial structures created a new Bivens context.
REVERSED AND REMANDED.
4 FILED AUG 16 2024 M. SMITH, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree with my colleagues that the district court should be reversed, but on
the basis that it applied an incorrect legal standard. See In re Apple Inc. Device
Performance Litig., 50 F.4th 769, 776 (9th Cir. 2022) (noting that application of an
incorrect legal standard is reversible error). I would not have reached the issue of
whether this case presents a new Bivens context.
The two-step framework for assessing Bivens claims is a familiar one: First,
the court inquires whether the case is “meaningfully different from the three cases
in which the Court has implied a damages action.” Egbert v. Boule, 596 U.S. 482,
492 (2022) (cleaned up). If it is, that case arises in a new context. Id. Cases that
arise in a new context are subject to the second step of the analysis, in which the
court determines whether “special factors” exist which “indicate that the Judiciary
is at least arguably less equipped than Congress to weigh the costs and benefits of
allowing a damages action to proceed.” Id. (internal citation omitted).
Rather than applying the classic two-step framework, the district court read
Egbert to meld the analysis into a one-step model. In its words, “while Egbert did
not explicitly overrule Bivens, the writing is on the wall.” The court concluded:
“[m]oving forward, the two-step Ziglar inquiry effectively presents a single
question—‘whether there is any reason to think that Congress might be better
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
ERIC HURST, No. 23-15523
Plaintiff-Appellant, D.C. No. 1:22-cv-171-DKW-RT v.
ESTELA DERR, et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court for the District of Hawaii Derrick K. Watson, District Judge, Presiding
Submitted February 14, 2024** Honolulu, Hawaii
Before: PAEZ, M. SMITH, and KOH, Circuit Judges. Concurrence by Judge M. SMITH.
Eric Hurst (“Hurst”) appeals the dismissal of his Bivens1 claim against Earl
* 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). 1 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), established that a violation of a citizen’s constitutional rights by a federal officer can give rise to a federal cause of action for damages. Dayton, a nurse at Federal Detention Center, Honolulu. We have jurisdiction
under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we do not
recount them here, except as necessary to provide context to our ruling. We
review de novo the district court’s order granting the defendant’s Federal Rule of
Civil Procedure 12(b)(6) motion. Bain v. Cal. Teachers’ Ass’n, 891 F.3d 1206,
1211 (9th Cir. 2018).
The Supreme Court has clarified that the viability of a Bivens claim should
be assessed as follows. First, we must evaluate whether the case arises in a new
context because it is “meaningfully different” from the three previous cases in
which the Supreme Court has implied a damages action: Bivens itself, Davis v.
Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980). Egbert
v. Boule, 596 U.S. 482, 492 (2022). If the case does not present a new context, “no
further analysis is required,” and the claim may proceed. Lanuza v. Love, 899 F.3d
1019, 1023 (9th Cir. 2018). If the case does present a new context, we must
inquire “whether there is any reason to think that Congress might be better
equipped to create a damages remedy” than the judiciary. Egbert, 596 U.S. at 492.
In Carlson v. Green, the Supreme Court recognized for the first time an
implied cause of action under the Eighth Amendment when federal prison officials
failed to provide an inmate with adequate medical treatment. 446 U.S. at 16 n.1.
Hurst sues a federal prison official under the Eighth Amendment because that
2 official failed to provide medical care for his severe head pain. Because Hurst’s
claim is not “meaningfully different” from Carlson, it does not present a new
context.
Contrary to defendant’s arguments, we have held that differences in the
severity of a prisoner’s medical need compared to Carlson do not give rise to a
new Bivens context. Stanard v. Dy, 88 F.4th 811, 817 (9th Cir. 2023) (“Even
assuming that [the plaintiff] received less deficient care than the inmate in Carlson,
that difference in degree is not a meaningful difference giving rise to a new
context.”). Likewise, under our court’s precedent, a prisoner’s medical condition
need not be chronic, fatal, or life-threatening for a claim to be cognizable under
Bivens and Carlson. C. Chambers v. Herrera, 78 F.4th 1100, 1108 (9th Cir. 2023)
(recognizing that a Bivens claim may be viable where prison officials refused to x-
ray a prisoner’s broken arm for six weeks); Jett v. Penner, 439 F.3d 1091, 1098
(9th Cir. 2006) (failing to treat a broken thumb could constitute deliberate
indifference to a serious medical need). Also contrary to the defendant’s
contention, delay or denial of medical care, rather than overt acts of mistreatment,
do not create a new context. Stanard, 88 F.4th at 817 (“Delaying treatment is an
established example of deliberate indifference to a serious medical need.”). Thus,
the district court erred when it held that Hurst’s case was meaningfully different
from Carlson.
3 The existence of alternative remedial structures within the BOP likewise
does not render this case a new context. Egbert clarified that the existence of
alternative remedies is a “special factor” which should be considered at the second
step of the Bivens analysis. Egbert, 596 U.S. at 498 (“So long as Congress or the
Executive has created a remedial process that it finds sufficient to secure an
adequate level of deterrence, the courts cannot second-guess that calibration by
superimposing a Bivens remedy.”). In Stanard, we held that a Bivens action did
not present a new context from Carlson even where the prisoner had repeatedly
grieved his denial of medical care using the BOP’s internal complaint system. 88
F.4th at 814, 818. Thus, the district court erred when it held that the existence of
alternative remedial structures created a new Bivens context.
REVERSED AND REMANDED.
4 FILED AUG 16 2024 M. SMITH, concurring in the judgment: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I agree with my colleagues that the district court should be reversed, but on
the basis that it applied an incorrect legal standard. See In re Apple Inc. Device
Performance Litig., 50 F.4th 769, 776 (9th Cir. 2022) (noting that application of an
incorrect legal standard is reversible error). I would not have reached the issue of
whether this case presents a new Bivens context.
The two-step framework for assessing Bivens claims is a familiar one: First,
the court inquires whether the case is “meaningfully different from the three cases
in which the Court has implied a damages action.” Egbert v. Boule, 596 U.S. 482,
492 (2022) (cleaned up). If it is, that case arises in a new context. Id. Cases that
arise in a new context are subject to the second step of the analysis, in which the
court determines whether “special factors” exist which “indicate that the Judiciary
is at least arguably less equipped than Congress to weigh the costs and benefits of
allowing a damages action to proceed.” Id. (internal citation omitted).
Rather than applying the classic two-step framework, the district court read
Egbert to meld the analysis into a one-step model. In its words, “while Egbert did
not explicitly overrule Bivens, the writing is on the wall.” The court concluded:
“[m]oving forward, the two-step Ziglar inquiry effectively presents a single
question—‘whether there is any reason to think that Congress might be better
equipped to create a damages remedy’—with the Supreme Court, at the same time, providing an answer to its own question: in virtually every case, yes.” Accordingly,
the district court concluded that “both” the fact of a new context and an alternative
remedial scheme “render Hurst’s case a ‘new context’ not contemplated by
Carlson.”
Cases in this circuit published since Egbert have confirmed that Egbert did
not undermine the familiar two-step analysis for Bivens cases. See Harper v. Nedd,
71 F.4th 1181, 1185 (9th Cir. 2023) (“We must apply a two-step framework, asking
first whether the claim arises in a new context, and second, if so, whether other
special factors counsel hesitation against extending Bivens.”); Chambers v. Herrera,
78 F.4th 1100, 1104 (9th Cir. 2023) (applying the same “two-part framework”). Not
only was it inappropriate for the district court to ignore these precedents, but it was
also inappropriate for the district court to conclude that “[t]he landscape . . . has
changed” and that Bivens was essentially overruled by Egbert. See Agostini v.
Felton, 521 U.S. 203, 237 (1997) (explaining that only the Supreme Court may
“overrule[] its own decisions” (internal quotation marks omitted)).
I would correct that error and reverse to provide the district court another
opportunity to assess the issue on the merits. See PDK Lab’ys, Inc. v. U.S. D.E.A.,
362 F.3d 786, 799 (D.C. Cir. 2004) (“[T]he cardinal principle of judicial restraint —
if it is not necessary to decide more, it is necessary not to decide more — counsels
us to go no further.”) (Roberts, J., concurring in part and concurring in the judgment).