Hurst v. Derr

• Court: District Court, D. Hawaii
• Decided: March 15, 2023
• Docket: 1:22-cv-00171
• Status: Unknown

Opinion

IIN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I

ERIC HURST, Case No. 22-cv-00171-DKW-RT

Plaintiff, ORDER GRANTING DEFENDANT DAYTON’S MOTION TO DISMISS vs.

EARL DAYTON, Individually; et al.,

Defendants.

Plaintiff Eric Hurst, a federal prisoner at FDC Honolulu, seeks damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971), alleging that Defendant Nurse Earl Dayton denied him adequate medical care in violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause by failing to appropriately treat Hurst’s injuries following a gang riot in his unit. Complaint, Dkt. No. 1. Before the Court is Dayton’s motion to dismiss (“MTD”), Dkt. No. 26. Dayton contends that Hurst’s claim is not cognizable under Bivens, principally relying on the recent Supreme Court decision in Egbert v. Boule, 142 S. Ct. 1793 (2022). As explained more fully below, Dayton is correct. Although Hurst’s claim might have had a fighting chance pre-Egbert, that 2022 decision tightened the noose around Bivens and clarified that courts should recognize an implied constitutional damages right of action only in the most unusual of circumstances— a standard not met here. See Egbert, 142 S. Ct. at 1803. The MTD is GRANTED.

LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(6) authorizes a Court to dismiss a complaint that fails “to state a claim upon which relief can be granted.” Rule

12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer “the mere possibility of misconduct” are insufficient. Id. at 679. Moreover, “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555) (explaining that “legal conclusions” are not accepted as true). RELEVANT BACKGROUND

On June 12, 2021, Hurst was incarcerated at FDC Honolulu. Complaint at 7. While he was watching television, a “gang riot” involving thirty inmates broke out. Id. Hurst was “severely” beaten, suffering “head trauma” and “numerous injuries all over his body.” Id. at 7–8.

After the incident, Nurse Dayton examined Hurst. Id. at 2, 7; Dkt. No. 26-3 (Hurst’s medical records). Hurst described his “severe” pain as at a level 5 out of 10 and showed Dayton his “obvious head and body injuries.” Complaint at 8; Dkt. No. 26-3. Dayton documented his findings, Complaint at 8, noting that Hurst had

bruising on his left cheekbone, a laceration on the inside of his upper lip without active bleeding, an abrasion or contusion on his scalp, post-epistaxis to his left nostril, and abrasions to his upper back and right knee. Dkt. No. 26-3 at 3. Dayton

also noted that Hurst did not suffer any broken bones, dislocated joints, muscle tears, or any other illnesses or injuries requiring special care. Id. Finally, Dayton stated that Hurst should subsequently “be evaluated by [his] provider,” and he provided Hurst with “[c]ounseling” and a handout on “access to care,” after which

Hurst “verbalize[d] understanding.” Id. Despite this examination and these notations, Hurst alleges he “was not offered medical attention by FDC Honolulu for his injuries”—he “received no X-rays” and was not “tested for a concussion.” Complaint at 2, 7–8. Hurst alleges that he “continues to suffer from the injuries he sustained” during the brawl, including “headaches and dizziness.” Id. at 10.

On April 15, 2022, Hurst filed a Complaint1 against Dayton in his individual capacity2, alleging that Dayton failed to provide adequate medical care in violation of the Eighth Amendment. Complaint at 5–11. On January 13, 2023, Dayton filed

the instant MTD, claiming (1) that Hurst has no viable Bivens claim, see Dkt. No. 26-1 at 4–17, and, alternatively, (2) that Dayton is entitled to qualified immunity.3 See id. at 17–22. Hurst did not oppose the MTD, and no reply brief was filed. The Court has elected to decide this matter without a hearing pursuant to Local Rule

7.1(c), see Dkt. No. 29, and this Order follows. DISCUSSION4 I. Bivens Legal Framework

In Bivens, the Supreme Court “recognized for the first time an implied right of action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Hernandez v. Mesa, 137 S. Ct. 2003, 2006 (2017) (per curiam) (internal quotation marks and citation omitted). Bivens allowed a plaintiff

1Hurst’s application for in forma pauperis status was granted on April 19, 2022. Dkt. Nos. 2–3. 2This Court previously dismissed Hurst’s two additional claims against two other Defendants, along with his official capacity claim against Dayton. Dkt. No. 6 (performing the required screening of the Complaint under 28 U.S.C. §§ 1915(e)(2) and 1915A(a)). 3In light of the Court’s Bivens findings, qualified immunity is not further addressed herein. 4As Hurst is pro se, the Court has liberally construed his pleadings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). to sue individual federal agents for allegedly violating a Fourth Amendment right to be free from unreasonable searches and seizures. 403 U.S. at 389–90.

The Supreme Court has since severely restricted the Bivens doctrine. In fact, the Court has recognized the implied cause of action in other contexts only twice— once in Davis v. Passman, 442 U.S. 228 (1979), in which a U.S. Congressman was

alleged to have discriminated against a staff member on the basis of her sex, in violation of the Fifth Amendment’s Due Process Clause, and once in Carlson v. Green, 446 U.S. 14 (1980), in which federal prison officials were alleged to have failed to treat a prisoner’s severe asthma, in violation of the Eighth Amendment’s

Cruel and Unusual Punishment Clause. “These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court” has placed its stamp of approval on a Bivens damages remedy, and the Court has “made clear that

expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 532 U.S. 120, 131, 135 (2017) (quoting Iqbal, 556 U.S. at 675); Hernandez, 140 S. Ct. at 743 (relying on separation-of-powers principles and the “risk of interfering with the authority of the other branches” in refusing to expand

Bivens further).5 Indeed, the Court has gone so far as to state that the outcome of

5The Supreme Court has refused to extend Bivens to any new category of cases since Carlson. See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983) (First Amendment suit against a federal employer); Chappell v. Wallace, 462 U.S. 296, 297 (1983) (race-discrimination suit against military officers); United States v. Stanley, 483 U.S. 669, 671–72 (1987) (substantive due process suit against military officers); Schweiker v. Chilicky, 487 U.S. 412, 414 (1988) (procedural due process suit against Social Security officials); FDIC v. Meyer, 510 U.S. 471, the Bivens trio of cases “might have been different if they were decided today.” Id. at 134.

In 2017, in Ziglar v. Abbasi, 532 U.S. at 134–35, the Supreme Court articulated a two-part test for determining whether a Bivens remedy is available. See Hernandez, 140 S. Ct. 735, 743 (citing Malesko, 534 U.S. at 68 and Ziglar,

582 U.S. at 139); Ioane v. Hodges, 939 F.3d 945, 951 (9th Cir. 2018). At step one, the deciding court must “first inquire whether the request involves a claim that arises in a ‘new context.’” Id. A case presents a new context if it “is different in a meaningful way from previous Bivens cases decided by [the Supreme Court]”—

from Bivens, Davis, and Carlson. See Ziglar, 532 U.S. at 139. To help courts determine whether a case differs in a meaningful way from one of the Bivens trio, Ziglar offers the following non-exhaustive list of factors:

A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; 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; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

473–74 (1994) (procedural due process suit against a federal agency for wrongful termination); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001) (Eighth Amendment suit against a private prison operator); Wilkie v. Robbins, 551 U.S. 537, 547–548, 562 (2007) (due process suit against officials from the Bureau of Land Management); Minneci v. Pollard, 565 U.S. 118, 120 (2012) (Eighth Amendment suit against prison guards at a private prison); Ziglar, 532 U.S. at 134–35 (Fifth Amendment suit against Department of Justice officials); see also ibid. at 135 (collecting the preceding cases). Ziglar, 582 U.S. at 139–40. If, after considering these factors, the case does not differ in any meaningful way from the Bivens trio of cases, the context is not

“new,” and the claim is cognizable. Where the case does present a “new context,” the deciding court proceeds to step two and considers (1) whether the plaintiff has any other alternative remedy

for his injury and (2) whether there are any “special factors” that might lead the court to believe that Congress, instead of the Judiciary, is better suited to “weigh the costs and benefits” and authorize a right of action for damages. Id. at 136, 138, 149. If the answer to either question is “Yes,” then Bivens cannot be extended to

the new context.6 Egbert modified Ziglar’s framework in two principal ways.7 First, Egbert clarified the rigor with which courts should perform the special factors analysis.

6Post-Ziglar (and pre-Egbert), some courts have found that various BOP-based medical indifference claims did not present “new contexts” while others have found the converse to be true. Compare, e.g., Hunt v. Matevousian, 336 F. Supp. 3d 1159, 1169–70 (E.D. Cal. June 15, 2018) (finding no new context where prison staff delayed providing necessary X-ray to a prisoner); Lewis v. Ives, 2020 WL 2761024 at *4 (D. Or. Feb. 12, 2020) (finding no new context where prison officials denied prisoner adequate medical care for gender dysphoria and gender confirmation surgery); Crespo v. Hurwitz, 2020 WL 7249591 at *8 (E.D.N.Y. May 17, 2020) (finding no new context for three prisoners’ claims of deficient medical care), with, e.g., Gonzalez v. Hasty, 269 F. Supp. 3d 45, 65 (E.D.N.Y. 2017); Martinez v. U.S. Bur. of Prisons, 2019 WL 5432052 (C.D. Cal. Aug. 20, 2019); Manzo v. Mateware, 2021 WL 6284098 (N.D. Tex. Dec. 13, 2021). 7Egbert decided that a plaintiff’s claim arose in a new context, despite its very close factual and legal similarities to Bivens itself. See 142 S.Ct. at 1810 (Gorsuch, J., concurring) (“Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself.”); ibid. at 1815 (Sotomayor, J., concurring in the judgment in part and dissenting in part) (“At bottom, [the respondent’s] claim is materially indistinguishable from the claim brought in Bivens.”). See 142 S. Ct. at 1802–03 (“[C]reating a cause of action is a legislative endeavor. . . . Unsurprisingly, Congress is ‘far more competent than the Judiciary’ to weigh

such policy considerations.”); see also ibid. at 1809 (Gorsuch, J., concurring in the judgment) (“When might a court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of creating a cause of

action?”); Mejia v. Miller, 2023 WL 23560630 (9th Cir. 2023) (“Under Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly.”) (emphasis added). And second, Egbert instructed that the second-step analysis should occur in every case, not only those whose circumstances were

otherwise meaningfully different from one of the Bivens trio: While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.

. . .

[A] court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed. . . . [U]nder the proper approach, a court must ask more broadly if there is any reason to think that judicial intrusion into a given field might be harmful or inappropriate. If so, or even if there is the potential for such consequences, a court cannot afford a plaintiff a Bivens remedy. . . . [Moreover, s]o 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. . . .

Even assuming factual parallels, [the Bivens trio of cases] carr[y] little weight because [they] predate[] the Court’s current approach to implied causes of action. A plaintiff cannot justify a Bivens extension based on parallel circumstances with Bivens, Passman, or Carlson . . . unless the plaintiff also satisfies the prevailing analytical framework prescribed by the last four decades of intervening case law.

Id. at 1805–07, 1809 (quotation marks and citations omitted; emphasis added). In short, while Egbert did not explicitly overrule Bivens, the writing is on the wall. Moving 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.8 II. Application to the Instant Case Hurst asserts that, while he was incarcerated at FDC Honolulu, Nurse

Dayton failed to adequately treat his injuries following a gang riot, exacerbating his injuries. Of the Bivens trio, the most factually analogous is Carlson. There, the Supreme Court recognized a Bivens cause of action where federal prison officials

8Numerous courts similarly understand Egbert as having worked drastic changes to Ziglar’s framework by reducing the analysis to a single question. See, e.g., Mejia, 2023 WL 2350630 at *4 (highlighting Egbert’s guidance that “the two-step analysis ‘often resolves to a single question’”); Hoffman v. Preston, 2022 WL 6685254 at *1 (9th Cir. Oct. 11, 2022) (unpublished disposition) (relying on Egbert’s guidance that courts now “face[] only one question: whether there is any rational reason (even one)” to decline to imply a Bivens remedy, including the availability of an alternative remedy); Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (concluding that “courts may [now] dispose of Bivens claims for ‘two independent reasons:” that Congress is better positioned to create a remedy, or that an alternative remedy is available); Waters v. Brown, 2023 WL 2325545 at *4 (N.D.W.V. Feb. 21, 2023) (“Based upon [Egbert], th[e c]ourt believes the Bivens type of action is no longer viable, whether a new context or not.”); Washington v. Fed. Bur. of Prisons, 2022 WL 3701577 (D.S.C. Aug. 26, 2022) (“A Bivens remedy will be unavailable ‘in most every case.’”). failed to provide adequate medical care to a prisoner with a chronic asthmatic condition. 446 U.S. at 16 n.1, 24; Green v. Carlson, 581 F.2d 669, 671 (7th Cir.

1978), aff’d by ibid.9 Against the advice of doctors, the officials held the prisoner in a facility that they knew was grossly inadequate to care for his asthma needs. 446 U.S. at 16 n.1. They then “failed to give him competent medical attention for

eight hours after an asthmatic attack, administered contraindicated drugs which made his attack more severe, attempted to use a respirator known to be inoperative which further impeded his breathing, and delayed for too long a time his transfer to an outside hospital.” Id. As a result, the prisoner suffered injuries and died, with

the prisoner’s mother bringing a Bivens suit on behalf of his estate. Id. at 16. Hurst, in other words, presents with multiple factual differences as compared to Carlson. For example, the medical conditions of which Hurst complains were

brought on by an acute prison riot, rather than by a chronic asthmatic condition of which the BOP was aware upon incarceration. Also, while Hurst may have been injured, the severity of his injuries have not proven to be fatal. Finally, a violation of the standard of care was evident in Carlson, whereas it is unclear whether even

negligence is in play with respect to Hurst.

9Carlson relied on the constitutional right articulated in Estelle v. Gamble, 429 U.S. 97 (1976), that the Eighth Amendment precludes prison officials from inflicting unnecessary suffering on a prisoner by failing to treat the prisoner’s medical needs. Similarities between Carlson and Hurst are also apparent. In particular, just as in Carlson, Hurst is a prisoner claiming a federal prison official with medical

training was deliberately indifferent to his obvious medical needs, resulting in further, unnecessary, injury, all in violation of the Eighth Amendment. Prior to Egbert, this Court may have very well joined the many other courts finding that

comparable allegations presented the same context as in Carlson. See supra at 7 n.6 (detailing cases finding no new context in similar circumstances). The landscape, however, has changed. Egbert, 142 S. Ct. at 1809 (“A plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with

Bivens, Passman, or Carlson . . . unless the plaintiff also satisfies the prevailing ‘analytical framework’ prescribed by the last four decades of intervening case law.”); ibid. at 1808 (“Even assuming the factual parallels are as close as [the

plaintiff] claims, [prior Bivens cases] carr[y] little weight” because they “predate[] our current approach to implied causes of action.”). Egbert commands consideration of whether alternative remedies are available. 142 S. Ct. at 1807. Here, they are. See 28 C.F.R. § 542.10(a) (“The

purpose of the [BOP] Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.”); see also Malesko, 534 U.S. at 74 (“Inmates have full access to

remedial mechanisms established by the BOP, including . . . grievances filed through the BOP’s Administrative Remedy Program.”); Schwarz v. Meinberg, 761 F. App’x 732, 734–35 (9th Cir. 2019) (identifying the Federal Tort Claims Act

(“FTCA”) as an alternative process available to federal prisoners); Prescott, 2022 WL 18859316, at *2 (“[A]ggrieved federal prisoners can bring suit for damages against the United States for the torts of its federal employees under the

[FTCA].”); Donaldson, 2022 WL 10189084, at *3 (“[P]laintiff has alternative remedies available to him, including the [BOP] administrative grievance process and a federal tort claims action.”). The Supreme Court, moreover, has advised that “it does not matter that ‘existing remedies do not provide complete relief’” or are

otherwise inadequate. Egbert, 142 S. Ct. at 1804. Instead, “[s]o 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.” Id. at 1807. Egbert also commands consideration of which branch is better suited to fashion a remedy for a plaintiff like Hurst. 142 S. Ct. at 1807. Here, as the Supreme Court has foreshadowed, there is no doubt that the legislature is that

branch. See id. at 1802–03 (“[C]reating a cause of action is a legislative endeavor. . . . Unsurprisingly, Congress is far more competent than the Judiciary to weigh such policy considerations.”) (internal quotation marks and citation omitted); ibid.

1803 (stating that “in most every case” provision of damages remedies should be left to legislators); ibid. at 1809 (Gorsuch, J., concurring in the judgment) (“When might a court ever be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and benefits’ of creating a cause of action?”); Mejia v. Miller, 2023 WL 23560630 (9th Cir. 2023) (Under Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly.”) (emphasis added). Both of these factors render Hurst’s case a “new context” not contemplated by Carlson. See Egbert, 142 S. Ct. at 1803 (“‘Even a single sound reason to defer to Congress is enough to require a court to refrain from creating such a remedy.”) (citation omitted). Because they do, no Bivens action may lie. CONCLUSION Hurst brings his claim in an era that considers implied constitutional remedies with extreme disfavor. Therefore, for the reasons stated herein, Dayton’s MTD, Dkt. No. 26, is GRANTED. Moreover, because “it is absolutely clear that

no amendment can cure the defect,” this action is DISMISSED WITH PREJUDICE. See Lucas vy. Dep’t of Corrs., 66 F.3d 245, 248 (9th Cir. 1995). IT IS SO ORDERED. Dated: March 15, 2023 at Honolulu, Hawai‘.

□□ dot Derrick K. Watson □ GS Chief United States District Judge Eric Hurst vs. Earl Dayton, et al; Civil No. 22-00171 DKW-RT; ORDER) GRANTING DEFENDANT DAYTON’S MOTION TO DISMISS 13