1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LAMONT CAIN, Case No. 2:20-cv-01768-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 B. PAVIGLIANTI, 15 Defendant. 16 17 Plaintiff is a former federal prisoner1 proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 19 Plaintiff seeks damages against defendant B. Paviglianti, a correctional officer at the Federal 20 Correctional Institution in Herlong, California, for using excessive force against him in violation 21 of the Eighth Amendment. Defendant moves to dismiss on the ground that Egbert v. Boule, 142 22 S. Ct. 1793 (2022), precludes relief. ECF No. 59. In response, plaintiff has filed a document 23 titled “Motion to Dismiss,” which I construe as an opposition to defendant’s motion. ECF No. 24 61. I will grant defendant’s motion.2 25 26
27 1 Plaintiff called the court on May 9, 2023, and indicated that he is no longer incarcerated. 2 The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. 28 § 636(c). See ECF No. 60). 1 Background 2 In the first amended complaint, plaintiff alleges that on January 28, 2020, he was 3 handcuffed while being escorted by Paviglianti. ECF No. 13 at 1. He claims that Paviglianti 4 slapped him across the face several times without cause and pushed him to the ground. Id. He 5 alleges that Paviglianti then moved him into a “visual search cell” and slammed his head against 6 the wall four times. Id. 7 On May 7, 2021, the court screened the operative complaint and found that plaintiff had 8 stated an Eighth Amendment excessive force claim against Paviglianti. ECF No. 16. 9 Legal Standard 10 A complaint must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief” to give the defendant “fair notice” of what the claims are and the 12 grounds on which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 13 555 (2007). A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to 14 provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and 15 a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 16 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal 17 citations omitted). 18 Put another way, a complaint must contain sufficient factual allegations that, when 19 accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 F. 21 App’x 231, 234 (9th Cir. 2020). “A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 24 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 25 unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s 26 liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 27 Id. (internal citations omitted). Still, “a formulaic recitation of the elements of a cause of action 28 will not do.” Twombly, 550 U.S. at 555. 1 A court should construe pro se complaints liberally, “particularly in civil rights cases.” 2 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se plaintiff need only provide 3 defendants with fair notice of his claims and of the grounds upon which they rest. Hearns v. 4 Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). But a court “may not supply essential elements of 5 the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 6 268 (9th Cir. 1982). If a court dismisses a complaint, it should give leave to amend unless the 7 “pleading could not possibly be cured by the allegation of other facts.” United States v. United 8 Healthcare Ins. Co., 848 F.3d 1161, 1182 (9th Cir. 2016) (internal citations omitted). 9 Discussion 10 A. Motion to Appoint Counsel 11 Plaintiff’s opposition includes a request for appointment of counsel on the ground that he 12 is in the Special Housing Unit with limited access to the law library. ECF No. 61 at 5. Plaintiff 13 does not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 14 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent 15 plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). I may 16 request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request 17 an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. 18 However, without means to compensate counsel, I will seek volunteer counsel only in exceptional 19 circumstances. In determining whether such circumstances exist, “the district court must evaluate 20 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 21 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 22 (internal quotation marks and citations omitted). 23 As with plaintiff’s previous request, I cannot conclude that exceptional circumstances 24 requiring the appointment of counsel are present here. Plaintiff’s claim is not unusually complex, 25 and he appears able to articulate it without assistance. Moreover, despite the conditions 26 underlying his request, plaintiff has been able to file his opposition to the pending motion, ECF 27 No. 61; a request for information, ECF No. 62; and a request to continue consideration of 28 defendant’s motion to dismiss, ECF No. 65. And since filing his opposition, plaintiff has 1 informed the court that he has been released. His request for the appointment of counsel will be 2 denied at this time. 3 B. Egbert v. Boule 4 I next consider whether plaintiff’s Bivens claim is precluded by Egbert, a recent decision 5 in which the Supreme Court emphasizes that prescribing a cause of action is the prerogative of 6 Congress, not the judiciary. In that case, a Border Patrol agent allegedly used excessive force 7 against the plaintiff while attempting to ascertain the immigration status of a person riding in his 8 car. 142 S. Ct. 1793, 1801 (2022). Plaintiff sued the officer under Bivens, alleging violations of 9 his First and Fourth Amendment rights. Id. at 1802.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTONIO LAMONT CAIN, Case No. 2:20-cv-01768-JDP (PC) 12 Plaintiff, 13 v. ORDER 14 B. PAVIGLIANTI, 15 Defendant. 16 17 Plaintiff is a former federal prisoner1 proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 19 Plaintiff seeks damages against defendant B. Paviglianti, a correctional officer at the Federal 20 Correctional Institution in Herlong, California, for using excessive force against him in violation 21 of the Eighth Amendment. Defendant moves to dismiss on the ground that Egbert v. Boule, 142 22 S. Ct. 1793 (2022), precludes relief. ECF No. 59. In response, plaintiff has filed a document 23 titled “Motion to Dismiss,” which I construe as an opposition to defendant’s motion. ECF No. 24 61. I will grant defendant’s motion.2 25 26
27 1 Plaintiff called the court on May 9, 2023, and indicated that he is no longer incarcerated. 2 The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. 28 § 636(c). See ECF No. 60). 1 Background 2 In the first amended complaint, plaintiff alleges that on January 28, 2020, he was 3 handcuffed while being escorted by Paviglianti. ECF No. 13 at 1. He claims that Paviglianti 4 slapped him across the face several times without cause and pushed him to the ground. Id. He 5 alleges that Paviglianti then moved him into a “visual search cell” and slammed his head against 6 the wall four times. Id. 7 On May 7, 2021, the court screened the operative complaint and found that plaintiff had 8 stated an Eighth Amendment excessive force claim against Paviglianti. ECF No. 16. 9 Legal Standard 10 A complaint must contain a “short and plain statement of the claim showing that the 11 pleader is entitled to relief” to give the defendant “fair notice” of what the claims are and the 12 grounds on which they rest. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 13 555 (2007). A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to 14 provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and 15 a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 16 enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal 17 citations omitted). 18 Put another way, a complaint must contain sufficient factual allegations that, when 19 accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 20 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 F. 21 App’x 231, 234 (9th Cir. 2020). “A claim has facial plausibility when the plaintiff pleads factual 22 content that allows the court to draw the reasonable inference that the defendant is liable for the 23 misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a 24 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 25 unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant’s 26 liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.’” 27 Id. (internal citations omitted). Still, “a formulaic recitation of the elements of a cause of action 28 will not do.” Twombly, 550 U.S. at 555. 1 A court should construe pro se complaints liberally, “particularly in civil rights cases.” 2 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se plaintiff need only provide 3 defendants with fair notice of his claims and of the grounds upon which they rest. Hearns v. 4 Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). But a court “may not supply essential elements of 5 the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 6 268 (9th Cir. 1982). If a court dismisses a complaint, it should give leave to amend unless the 7 “pleading could not possibly be cured by the allegation of other facts.” United States v. United 8 Healthcare Ins. Co., 848 F.3d 1161, 1182 (9th Cir. 2016) (internal citations omitted). 9 Discussion 10 A. Motion to Appoint Counsel 11 Plaintiff’s opposition includes a request for appointment of counsel on the ground that he 12 is in the Special Housing Unit with limited access to the law library. ECF No. 61 at 5. Plaintiff 13 does not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 14 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent 15 plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). I may 16 request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request 17 an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. 18 However, without means to compensate counsel, I will seek volunteer counsel only in exceptional 19 circumstances. In determining whether such circumstances exist, “the district court must evaluate 20 both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his 21 claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 22 (internal quotation marks and citations omitted). 23 As with plaintiff’s previous request, I cannot conclude that exceptional circumstances 24 requiring the appointment of counsel are present here. Plaintiff’s claim is not unusually complex, 25 and he appears able to articulate it without assistance. Moreover, despite the conditions 26 underlying his request, plaintiff has been able to file his opposition to the pending motion, ECF 27 No. 61; a request for information, ECF No. 62; and a request to continue consideration of 28 defendant’s motion to dismiss, ECF No. 65. And since filing his opposition, plaintiff has 1 informed the court that he has been released. His request for the appointment of counsel will be 2 denied at this time. 3 B. Egbert v. Boule 4 I next consider whether plaintiff’s Bivens claim is precluded by Egbert, a recent decision 5 in which the Supreme Court emphasizes that prescribing a cause of action is the prerogative of 6 Congress, not the judiciary. In that case, a Border Patrol agent allegedly used excessive force 7 against the plaintiff while attempting to ascertain the immigration status of a person riding in his 8 car. 142 S. Ct. 1793, 1801 (2022). Plaintiff sued the officer under Bivens, alleging violations of 9 his First and Fourth Amendment rights. Id. at 1802. 10 The Supreme Court stated that its prior decisions had evaluated proposed Bivens claims by 11 asking two questions: (1) whether the claim is meaningfully different from the cases in which the 12 Supreme Court has implied an action for damages; and, (2) if the claim does arise in a new 13 context, whether there are any “special factors” indicating that the judiciary is less well equipped 14 than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 15 142 S. Ct. at 1803. The Egbert Court noted that “those steps often resolve to a single question: 16 whether there is any reason to think that Congress might be better equipped to create a damages 17 remedy.” Id. 18 The Court stated that it has recognized Bivens remedies only three times. First, in Bivens 19 itself, in which the Court found viable a Fourth Amendment claim against agents who manacled 20 the plaintiff and made threats against his family during a narcotics arrest. 403 U.S. 388, 397 21 (1971). Second, in a Fifth Amendment gender-discrimination claim against a Congressman. 22 Davis v. Passman, 442 U.S. 228 (1979). And third, in an Eighth Amendment case involving a 23 prisoner’s constitutionally inadequate medical care. Carlson v. Green, 446 U.S. 14 (1980). The 24 Court in Egbert then stated: 25 Since these cases, the Court has not implied additional causes of action under the Constitution. Now long past the heady days in 26 which this Court assumed common-law powers to create causes of action, we have come to appreciate more fully the tension between 27 judicially created causes of action and the Constitution’s separation of legislative and judicial power. At bottom, creating a cause of 28 action is a legislative endeavor. 1 Id. (internal citations and quotation marks omitted). 2 Following Egbert, recognizing a Bivens claim in a context outside the three explicitly 3 recognized by the Supreme Court is heavily disfavored. As the majority put it, “in almost every 4 case,” Congress is better equipped than the judiciary to provide a damages remedy. 142 S. Ct. at 5 1803. The bar against judicial recognition of a new Bivens remedy is so high that “[i]f there is 6 even a single reason to pause before applying Bivens in a new context, a court may not recognize 7 a Bivens remedy.” Id. (internal citations and quotation marks omitted). 8 Here, plaintiff raises an Eighth Amendment excessive force claim against a correctional 9 officer. Although such claims are far from uncommon, this claim does not fall in one of the three 10 contexts recognized by the Supreme Court. Although the Eighth Amendment is implicated here, 11 as in Carlson, 446 U.S. 14, the nature of the claim is different: this case presents an excessive 12 force claim, while Carlson involved medical deliberate indifference. 13 Under Egbert, there are at least two reasons to pause before authorizing a Bivens action 14 here. First, an alternative remedy exists: the Federal Bureau of Prisons has a remedial program 15 for federal prisoners. See 28 C.F.R. § 542.10 (“The purpose of the Administrative Remedy 16 Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her 17 own confinement.”); see also Corr. Srvcs Corp. v. Malesko, 534 U.S. 61, 74 (2001) (concluding 18 that a Bivens remedy was unavailable, in part, because “[i]nmates . . . have full access to remedial 19 mechanisms established by the BOP, including . . . grievances filed through the BOP’s 20 Administrative Remedy Program”); Taylor v. Kobayashi, No. 22-16017, 2023 WL 2400879, at 21 *1 (9th Cir. Mar. 8, 2023) (unpublished) (concluding that “the Bureau of Prisons’ formal review 22 process for inmate complaints” foreclosed the availability of a Bivens remedy). 23 Second, Congress has provided an alternative remedy through the Federal Tort Claims Act 24 (“FTCA”). See Schwarz v. Meinberg, 761 F. App’x 732, 734-35 (9th Cir. 2019) (identifying the 25 FTCA as an alternative process available to federal prisoners); Prescott v. United States, 2022 26 WL 18859316, at *2 (C.D. Cal. Dec. 21, 2022) (“[A]ggrieved federal prisoners can bring suit for 27 damages against the United States for the torts of its federal employees under the [FTCA].”). 28 While a single alternative remedy is sufficient to foreclose a Bivens remedy, plaintiff has at least 1 two. Under Egbert, the court cannot “second-guess” the judgments of Congress and the 2 Executive “by superimposing a Bivens remedy.” Egbert, 142 S. Ct. at 1807. 3 Plaintiff counters that he did file a prison grievance and an FTCA claim but neither 4 “yielded [any] result[ ].”3 ECF No. 61 at 1, 3. Even so, the dispositive issue is whether a 5 remedial scheme was created by the legislature and made available to the plaintiff, not whether 6 officials complied with the scheme. See Egbert, 142 S. Ct. at 1807 (“So long as Congress or the 7 Executive has created a remedial process that it finds sufficient to secure an adequate level of 8 deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. 9 That is true even if a court independently concludes that the Government’s procedures are “‘not 10 as effective as an individual damages remedy.’”). Because plaintiff concedes that he filed a 11 grievance and an FTCA claim, both remedial schemes were available to him. 12 The majority in Egbert states that its decision does not “dispense with Bivens altogether.” 13 142 S. Ct. at 1803. But even if a Bivens remedy might exist in some contexts beyond the three 14 explicitly recognized by the Supreme Court, Egbert leaves little doubt that no such remedy is 15 available here. 16 Conclusion 17 Accordingly, it is hereby ORDERED that: 18 1. Plaintiff’s motion to appoint counsel, ECF No. 61, is denied; 19 2. Defendant’s motion to dismiss, ECF No. 59, is granted; 20 21 3 Plaintiff claims that this action proceeds not only against Paviglianti but also against the 22 Federal Bureau of Prisons (“FBOP”) and the United States. ECF No. 61 at 2. This is incorrect. 23 When plaintiff initiated this action, he brought suit against multiple defendants, including the FBOP and United States. See ECF No. 1 at 2. The complaint was subsequently dismissed with 24 leave to amend pursuant to Federal Rule of Civil Procedure 18 for having included multiple, unrelated claims against multiple defendants. ECF No. 10. Plaintiff then filed a first amended 25 complaint naming Paviglianti, the FBOP, and the United States. ECF No. 13. This pleading was screened and service was found appropriate only for Paviglianti. ECF No. 16. Plaintiff later 26 moved to amend the pleading to re-assert his claims against the FBOP and United States. ECF 27 No. 33. Although the court granted leave to amend, see ECF No. 41, plaintiff opted to proceed on his first amended complaint as screened. ECF No. 44. This case, therefore, proceeds only against 28 Paviglianti. 1 3. Plaintiffs first amended complaint, ECF No. 13 is dismissed without leave to amend; 2 and 3 4. The Clerk of Court is directed to close this case. 4 5 IT IS SO ORDERED.
Dated: _ June 5, 2023 q-—— 7 JEREMY D. PETERSON 8 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28