IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
MELISSA MCGEE, CIV. NO. 23-00190 LEK-KJM #13592-002, ORDER DISMISSING Plaintiff, COMPLAINT AND ACTION vs.
BUREAU OF PRISONS, et al.,
Defendants.
ORDER DISMISSING COMPLAINT AND ACTION
Pro se Plaintiff Melissa McGee (“McGee”) brought this suit pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the Federal Bureau of Prisons (“BOP”) and two prison officials at the Federal Detention Center in Honolulu, Hawaii (“FDC Honolulu”)—that is, Lieutenant Tabar and BOP Captain Nunez—violated her rights by retaliating against her, moving her to the Special Housing Unit, and destroying or damaging her personal property.1 See ECF No. 1 at PageID.1–PageID.2. For the reasons stated
1 According to the Federal Bureau of Prisons’ online inmate locator, McGee remains incarcerated at FDC Honolulu. See Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (select “Find By Number”; enter “13592-002”; and select “Search”) (last visited May 15, 2023). below, the Court concludes that McGee cannot pursue her claims under Bivens and, therefore, DISMISSES the Complaint. Because amendment of McGee’s claims
would be futile, this dismissal is with prejudice. I. STATUTORY SCREENING The Court is required to screen all in forma pauperis pleadings pursuant to
28 U.S.C. § 1915(e)(2). See Byrd v. Phx. Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018). Claims or complaints that are frivolous, malicious, fail to state a claim for relief, or seek damages from defendants who are immune from suit must be dismissed. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc);
Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Screening under 28 U.S.C. § 1915(e)(2) involves the same standard of review as that used under Federal Rule of Civil Procedure 12(b)(6). See Rosati v. Igbinoso,
791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Under this standard, 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) (internal quotation marks and citation omitted). A claim is “plausible” when the facts alleged
support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. See id. In conducting this screening, the Court liberally construes pro se litigants’
pleadings and resolves all doubts in their favor. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted). The Court must grant leave to amend if it appears the plaintiff can correct the defects in the complaint. See Lopez, 203 F.3d at
1130. When a claim cannot be saved by amendment, dismissal with prejudice is appropriate. See Sylvia Landfield Tr. v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013). II. BACKGROUND2
On March 23, 2023, prison officials at FDC Honolulu conducted a “mass interview” of inmates in the female housing unit. ECF No. 1 at PageID.1. According to McGee, prison officials conducted the inquiry in response to an allegation that a
staff member was having an “inappropriate” relationship with an inmate. Id. As a part of the investigation, Lt. Tabar individually interviewed McGee. Id. During the interview, Lt. Tabar asked McGee how long she had been in prison and
where she had been incarcerated. Id. McGee stated, among other things, that, at one point, she was transferred from one prison to another after serving as a witness in a Prison Rape Elimination Act investigation. Id. Later the same day, at Cpt. Nunez’s direction, Lt. Tabar moved McGee to the
Special Housing Unit (“SHU”). Id. McGee remained in the SHU for twelve days— that is, until April 3, 2023. Id. Upon her release from the SHU, McGee discovered
2 McGee’s factual allegations are accepted as true for purposes of screening. See Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). that some of her personal property was damaged or destroyed. Id. According to McGee, she was redesignated to the United States Penitentiary Hazelton in Bruceton
Mills, West Virginia on April 21, 2023. Id. at PageID.1–PageID.2. The Court received McGee’s Initial Complaint (“Complaint”) on April 26, 2023. Id. at PageID.1. In the Complaint, McGee alleges that Lt. Tabar and Cpt.
Nunez violated her constitutional rights by retaliating against her, moving her to the SHU, and destroying or damaging her personal property. Id. at PageID.2. McGee seeks more than $120,000 based on her claims. Id. The Court granted McGee’s in forma pauperis application on May 8, 2023. ECF No. 4.
III. ANALYSIS McGee brought this suit pursuant to Bivens alleging that Defendants violated her constitutional rights by retaliating against her, moving her to the SHU, and
destroying or damaging her personal property. Before the merits of McGee’s claims can be reached, however, the Court must first decide whether a Bivens remedy is available to McGee. See, e.g., Manansingh v. United States, Case No. 2:20-cv- 01139-DWM, 2021 WL 2080190, at *8 (D. Nev. May 24, 2021) (“In a constitutional
action against a federal officer, a threshold consideration is whether a plaintiff may bring a Bivens suit in the first place.”). Because no such remedy exists, McGee’s claims against Defendants must be dismissed. A. Legal Framework for Determining Whether a Bivens Remedy Exists While “Congress has made a cause of action available to any person who has
suffered ‘the deprivation of any rights, privileges, or immunities secured by the Constitution and laws’ at the hands of someone acting under color of state law,” it “has not created a general cause of action to redress violations of the Constitution by
federal officers.” Pettibone v. Russell, 59 F.4th 449, 454 (9th Cir. 2023) (quoting 42 U.S.C. § 1983). In three cases decided between 1971 and 1980, however, “the Supreme Court held that the Constitution contains an implied cause of action through which plaintiffs
can seek damages from federal officers who violate their constitutional rights.” Id. In Bivens, the Court held that a plaintiff could seek damages from Federal Bureau of Narcotics agents who allegedly violated the Fourth Amendment right to be free from
unreasonable searches and seizures. 403 U.S. at 397. The Court extended the Bivens remedy in Davis v. Passman, where a plaintiff alleged that her employer, a Member of Congress, had discriminated against her because of her sex, in violation of the Due Process Clause of the Fifth Amendment. 442 U.S. 228, 230–31 (1979). Finally, in
Carlson v. Green, the Court held that the estate of a deceased inmate could seek damages from federal prison officials who allegedly violated the inmate’s Eighth Amendment right to be free from cruel and unusual punishment while treating a
prisoner’s severe asthma that ultimately resulted in the prisoner’s death. 446 U.S. 14, 16–18 (1980). “These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the
Constitution itself.” Ziglar v. Abbasi, 582 U.S. 120, 132 (2017). The Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135 (citation omitted); Egbert v.
Boule, 142 S. Ct. 1793, 1802 (2022) (“At bottom, creating a cause of action is a legislative endeavor.”). Indeed, the Supreme Court has indicated that “if [the Court] were called to decide Bivens today, [it] would decline to discover any implied causes of action in the Constitution.” Egbert, 142 S. Ct. at 1809. Since 1980, therefore, the
Supreme Court “has ‘consistently refused to extend Bivens to any new context or new category of defendants.’”3 Abbasi, 582 U.S. at 135 (citation omitted).
3 The Supreme Court has declined to create a Bivens remedy in the following cases: a First Amendment suit against a federal employer, see Bush v. Lucas, 462 U.S. 367 (1983); a race discrimination suit against military officers, see Chappell v. Wallace, 462 U.S. 296 (1983); a substantive due process suit against military officers, see United States v. Stanley, 483 U.S. 669 (1987); a procedural due process suit against Social Security officials, see Schweiker v. Chilicky, 487 U.S. 412 (1988); a procedural due process suit against a federal agency for wrongful termination, see FDIC v. Meyer, 510 U.S. 471 (1994); an Eighth Amendment suit against a private halfway house operator under contract with the BOP, see Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001); a claim of retaliation by Bureau of Land Management officials against plaintiff for his exercise of Fifth Amendment property rights, see Wilkie v. Robbins, 551 U.S. 537 (2007); a suit under the Fifth, Eighth, and Fourteenth Amendments against United States Public Health Service personnel, see Hui v. Castaneda, 559 U.S. 799 (2010); an Eighth Amendment suit against prison guards at a private prison, see Minneci v. Pollard, 565 U.S. 118 (2012); a Fifth Amendment suit against Department of Justice officials, see Abbasi, 582 U.S. at 155; a Fourth and Fifth Amendment suit against a United States Border Patrol agent, Hernandez v. Mesa, 140 S. Ct. 735 (2020); and a First and Fourth Amendment suit against a United States Border Patrol Agent, see Egbert, 142 S. Ct. at 1793. Now, when asked to imply a Bivens remedy, courts must use “caution.” Egbert, 142 S. Ct. at 1803. If there is even a “single sound reason” to think that
Congress might doubt the efficacy or necessity of a damages remedy, courts must refrain from creating it. Id. Thus, “‘the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?’” Id.
(citation omitted). In “most every case,” the answer will be Congress. Id. In deciding whether a Bivens remedy is available in a particular case, courts apply a two-step framework. Pettibone, 59 F.4th at 454. At step one, courts “ask whether the case presents ‘a new Bivens context.’” Egbert, 142 S. Ct. at 1803. At
step two, “a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”4 Pettibone, 59 F.4th at 454
(citation omitted). B. McGee’s Claims Against the BOP McGee names the BOP as a Defendant. ECF No. 1 at PageID.1. Even assuming the availability of a Bivens remedy to a federal prisoner against a prison
4 In Egbert, the Supreme Court noted that these two 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.” 142 S. Ct. at 1803. At least one court of appeals has suggested in dicta that this sentence “appear[s] to alter the existing two-step Bivens framework.” Silva v. United States, 45 F.4th 1134, 1139 (10th Cir. 2022). The Ninth Circuit, however, has stated that Egbert only “reiterate[d] the longstanding first step of the Bivens question” and “clarified” the second step. Mejia v. Miller, 61 F.4th 663, 667 (9th Cir. 2023). The Court therefore applies the two-step framework, as clarified in Egbert, to analyze McGee’s claims. official in his or her individual capacity, the Supreme Court has unequivocally stated “the prisoner may not bring a Bivens claim against the officer’s employer, the United
States, or the BOP.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001). McGee’s claims against the BOP are therefore DISMISSED with prejudice. C. McGee’s First Amendment Claims
McGee alleges that Lt. Tabar and Cpt. Nunez unlawfully retaliated against her. ECF No. 1 at PageID.1-PageID.2. The First Amendment prohibits prison officials from retaliating against prisoners for exercising their First Amendment rights. See Bruce v. Ylst, 351 F.3d
1283, 1288 (9th Cir. 2003). In Egbert, however, the Supreme Court held that “there is no Bivens action for First Amendment retaliation.” 142 S. Ct. at 1807. In reaching this conclusion, the Court explained that “[e]xtending Bivens to alleged First
Amendment violations would pose an acute risk of increasing” substantial social costs “including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.” Id. (internal quotation marks and citation omitted); see also Buenrostro v. Fajardo, 770 F. App’x
807, 808 (9th Cir. 2019) (concluding that “special factors counsel against extending Bivens” to a prisoner's First Amendment retaliation claim). “Federal employees ‘face[d with] the added risk of personal liability for decisions that they believe to be a
correct response to improper [activity] would be deterred from’ carrying out their duties.” Egbert, 142 S. Ct. at 1807 (alterations in original). Considering these costs, the Court concluded that “‘Congress is in a better position to decide whether or not
the public interest would be served’ by imposing a damages action.” Id. Thus, any First Amendment retaliation claims brought pursuant to Bivens cannot proceed and are DISMISSED with prejudice.
D. McGee’s Eighth Amendment Claims McGee asserts that Lt. Tabar and Cpt. Nunez violated her rights under the Eight Amendment by moving her to the SHU and damaging or destroying her property. ECF No. 1 at PageID.2. The most relevant Supreme Court case is Carlson,
which also involved Eighth Amendment claims. 1. McGee’s Claims Present a New Context The Supreme Court’s “understanding of a ‘new context’ is broad.” Hernandez,
140 S. Ct. at 743. A case presents a new context if it is “different in a meaningful way from previous Bivens cases decided by [the Supreme Court].” Abbasi, 582 U.S. at 139. The Supreme Court has provided a non-exhaustive list of differences that may be “meaningful” including 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 of government, and the presence of potential special factors that previous Bivens cases did not consider. Id. at 139–40.
The Supreme Court has stated that “[a] claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.” Hernandez, 140 S. Ct. at 743. Thus,
even where a “case has significant parallels to one of the [Supreme Court’s] previous Bivens cases, it can present a new context.” Abbasi, 582 U.S. at 147. In other words, “even a modest extension is an extension.” Id.; see Mejia, 61 F.4th at 669 (“[R]arely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly.”).
The Supreme Court’s analysis in Egbert illustrates these principles. In Egbert, a bed-and-breakfast operator and Border Patrol confidential informant alleged, among other things, that a Border Patrol agent used excessive force on him while trying to
conduct a search on the plaintiff’s property. 142 S. Ct. at 1801. While noting that Egbert and Bivens involved “similar allegations of excessive force and thus arguably present[ed] ‘almost parallel circumstances’ or a similar ‘mechanism of injury,’” the Supreme Court stated that these “superficial similarities [were] not enough to support
the judicial creation of a cause of action.” Id. at 1805. In Carlson, an inmate was diagnosed as a “chronic asthmatic” when he entered the federal prison system. Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978), aff’d,
446 U.S. 14 (1980). The inmate was later hospitalized for eight days because of the condition, and the treating physician recommended that the inmate be transferred to a different facility. Id. Despite the doctor’s recommendation, the inmate remained in
the same facility. Id. Then, when the inmate was admitted to the prison hospital with an asthmatic attack, he was not seen by a doctor for eight hours. Id. As the inmate’s breathing became more difficult, a non-licensed nurse in charge of the prison hospital
deserted the inmate to distribute medication elsewhere. Id. When the nurse returned, he attempted to use a respirator on the inmate. Id. The nurse did this despite being told two weeks earlier that the respirator was broken. Id. When the inmate told the nurse that the respirator was making his breathing worse, the nurse administered two
doses of a drug contraindicated for someone suffering an asthmatic attack. Id. A half-hour after the second injection, the inmate suffered a respiratory arrest. Id. The nurse and another prison official then brought emergency equipment to administer an
electric jolt to the inmate, but neither man knew how to operate the machine. Id. Only at that point was the inmate taken to a hospital, where he was pronounced dead. Id. Here, McGee’s claims have nothing to do with the denial of medical care, as
they did in Carlson. Instead, McGee complains that prison officials moved him to the SHU and damaged or destroyed his property. See Marler v. Derr, Civ. No. 22- 00088 JMS-WRP, 2023 WL 2614314, at *5 (D. Haw. Mar. 23, 2023) (explaining that
Eighth Amendment threat-to-safety claim was meaningfully different from claims in Carlson because the mechanism of injury was different). McGee concedes that recognizing her claims would require an “expansion” or “extension” of Bivens. ECF
No. 1 at PageID.2. Although McGee asserts that such an expansion or extension would be only “modest,” the Supreme Court has made clear that “even a modest extension is an extension.” Abbasi, 582 U.S. at 147; Mejia, 61 F.4th at 669.
Furthermore, the Supreme Court has stated that “the presence of potential special factors that previous Bivens cases did not consider” is a relevant consideration in deciding whether a case presents a new context. See Abbasi, 582 U.S. at 140; see also Egbert, 142 S. Ct. at 1803 (“[W]e have explained that a new context arises when
there are ‘potential special factors that previous Bivens cases did not consider.”) (citation omitted). As explained in the following section, special factors weigh against recognizing a Bivens remedy for McGee’s claims, including the existence of
the BOP’s administrative remedy program. Because this factor was not considered by the Court in Carlson, this is another reason that McGee’s claims arise in a new context. See Hoffman v. Preston, No. 20-15396, 2022 WL 6685254, at *1 (9th Cir. Oct. 11, 2022) (unpublished) (“Congress has not authorized a damages remedy in this
context, and there are ‘rational reason[s],’ why it might not, for example, the existence of the Bureau of Prisons’ formal review process for inmate complaints.”) (citation omitted and brackets in original).5
For all these reasons, McGee’s claims are meaningfully different from the claims in Carlson, and the Court must proceed to step two. 2. Special Factors Counsel Against Recognizing a Bivens Remedy
“[I]f a claim arises in a new context, a Bivens remedy is unavailable if there are ‘special factors’ indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 142 S. Ct. at 1798 (citation omitted). Thus, at step two, “[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.’” Id. at 1803 (citation omitted). “If there is even a single ‘reason to pause
before applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Id. (citation omitted). In conducting this analysis, courts must ask “‘broadly’ if there is any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’ or ‘inappropriate.’” Id. at 1805 (citation omitted). If there is such
a reason “or even if there is the ‘potential’ for such consequences, a court cannot
5 McGee’s reliance on Hoffman v. Preston, 26 F.4th 1059 (9th Cir. 2022), is misplaced. In light of Egbert, the Ninth Circuit withdrew that published decision, Hoffman v. Preston, 50 F.4th 927 (9th Cir. 2022), and issued a memorandum explaining that the federal prisoner’s Eighth Amendment claims could not proceed, Hoffman, 2022 WL 6685254, at *1. afford a plaintiff a Bivens remedy.” Id. at 1805–06 (citation omitted). This will be the outcome in “most every case.” Id. at 1803.
For example, “[i]f there are alternative remedial structures in place, ‘that alone,’ like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.’” Id. at 1804. It does not matter whether a Bivens
remedy would disrupt the remedial scheme, nor does it matter whether the court should provide a remedy for a wrong that would otherwise go unaddressed. Id. Likewise, “it does not matter that ‘existing remedies do not provide complete relief.’” Id. (citation omitted). “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.” Id. at 1807.
Here, the Court cannot recognize a Bivens remedy because alternative remedies are available to McGee. First, the Executive, through the BOP, has an alternative remedial program for federal prisoners like McGee. See 28 C.F.R. § 542.10(a) (“The purpose of the 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 (concluding that Bivens remedy was unavailable, in part, because “[i]nmates . . . have full access to remedial mechanisms established by the
BOP, including . . . grievances filed through the BOP’s Administrative Remedy Program”); Hoffman, 2022 WL 6685254, at *1 (“Congress has not authorized a damages remedy in this context, and there are ‘rational reason[s],’ why it might not,
for example, the existence of the Bureau of Prisons’ formal review process for inmate complaints.”) (citation omitted and brackets in original). Second, Congress provided an alternative remedy through the Federal Tort
Claims Act (“FTCA”). See Schwarz v. Meinberg, 761 F. App’x 732, 734–35 (9th Cir. 2019) (identifying the FTCA as an alternative process available to federal prisoners); Prescott v. United States, No. 2:20-cv-2740-SB (SK), 2022 WL 18859316, at *2 (C.D. Cal. Dec. 21, 2022) (“[A]ggrieved federal prisoners can bring
suit for damages against the United States for the torts of its federal employees under the [FTCA].”), report and recommendation adopted, No. 2:20-cv-2740-SB (SK), 2023 WL 2188692 (C.D. Cal. Feb. 22, 2023); Donaldson v. Garland, No. 2:21-cv-
1178 TLN KJN P, 2022 WL 10189084, at *3 (E.D. Cal. Oct. 17, 2022) (“[P]laintiff has alternative remedies available to him, including the Bureau of Prisons administrative grievance process and a federal tort claims action.”), report and recommendation adopted, No. 2:21-cv-1178 TLN KJN P, 2022 WL 17722326 (E.D.
Cal. Dec. 15, 2022). As the Supreme Court has stated, “in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts.” Id. at 1800. This
case does not present the unusual circumstances required to recognize a Bivens remedy. Thus, McGee’s Eighth Amendment claims are DISMISSED. Because amendment would be futile, these claims are dismissed with prejudice.
IV. 28 U.S.C. § 1915(g) McGee is notified that this dismissal may count as a “strike” under 28 U.S.C. § 1915(g). Under this “3-strikes” provision, a prisoner may not bring a civil action or
appeal a civil judgment in forma pauperis, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). V. CONCLUSION (1) The Complaint, ECF No. 1, is DISMISSED for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2). (2) Because amendment of McGee’s claims would be futile, the Complaint and this action are DISMISSED WITH PREJUDICE, and this dismissal may constitute a strike under 28 U.S.C. § 1915(g). // // // // (3) The Clerk of Court is DIRECTED to enter judgment in favor of Defendants and to close the case. IT IS SO ORDERED. DATED: Honolulu, Hawaii, May 15, 2023.
: □□□ Leslie E. Kobayashi Leslie E. Kobayashi United States District Judge
MELISSA MCGEE VS. BUREAU OF PRISONS, ET AL.; CV 23-00190 LEK- KJM; ORDER DISMISSING COMPLAINT AND ACTION