(PC) Williams v. Baker

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON WILLIAMS, 12 Plaintiff, CASE NO: 1:16-cv-01540-ADA-HBK 13 v. FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR 14 CHRISTOPHER BAKER and UNITED JUDGMENT ON THE PLEADINGS1 STATES OF AMERICA, 15 (Doc. No. 138) Defendants. 16 FOURTEEN DAY OBJECTION PERIOD 17 18 Pending before the Court is Defendants Christopher Baker and United States of America’s 19 (collectively “Defendants”) Motion for Judgment on the Pleadings. (Doc. No. 138, “Motion”). 20 Defendants argue Plaintiff’s Eighth Amendment Bivens2 excessive force claim against Defendant 21 Baker is barred by recent Supreme Court and Ninth Circuit case law. Plaintiff filed an Opposition 22 (Doc. No. 140), and Defendants filed a Reply (Doc. No. 143). For reasons set forth below, the 23 undersigned recommends the District Court grant Defendants’ Motion. 24 //// 25 //// 26

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 2 Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). 1 BACKGROUND AND SUMMARY OF OPERATIVE COMPLAINT 2 Plaintiff, a federal prisoner, initiated this action pro se by filing a civil rights complaint on 3 October 13, 2016. (Doc. No. 1). Plaintiff proceeds on his First Amended Complaint alleging 4 two claims: (1) a Bivens claim against Defendant Baker for excessive force under the Eighth 5 Amendment; and (2) a battery claim against the United States of America under the Federal Tort 6 Claims Act (“FTCA”). (See Doc. No. 99). Both claims arise from an incident that occurred at 7 the United States Penitentiary in Atwater, California (“USP-Atwater”) on October 13, 2014. In 8 summary, Defendant Baker responded to assist another officer who was engaged in a struggle 9 with Plaintiff after Plaintiff refused to surrender an item he was holding. (See id. ¶¶ 15-16). 10 Plaintiff alleges that during the incident, Defendant Baker “violated Plaintiff’s Eighth 11 Amendment right by maliciously and sadistically planting Plaintiff’s left hand on the ground and 12 wrenching his arm muscle from the bone in a manner intended to inflict pain, and which went far 13 above the force needed to apprehend Plaintiff because he was already compliant with arrest.” (Id. 14 ¶ 27). Plaintiff asserts that Baker stated, “[t]hat will teach you to file grievances.” (Id.). Plaintiff 15 sustained a permanent loss of the full use of his arm, pain and suffering, and other injuries. (Id. ¶ 16 28). 17 The previous magistrate’s judge’s screening order permitting Plaintiff to proceed with his 18 Eighth Amendment Bivens claim was issued on September 14, 2020, before the Supreme Court 19 decided Egbert v. Boule, 596 U.S. 482 (2022). (See Doc. No. 82). In his screening order, the 20 magistrate judge recognized the operative complaint raised “an issue that has bedeviled federal 21 courts for the past three years: the remaining breadth of the judicially created constitutional 22 damages remedy known as Bivens.” (Id. at 1). Observing the Supreme Court had “curtailed 23 Bivens” in Ziglar v. Abbasi, 582 U.S. 120 (2017) and Hernández v. Mesa, 140 S. Ct. 735 (2020) 24 and finding Plaintiff’s Eighth Amendment claim arose in a new context, the magistrate judge 25 noted that then-existing authority was “uncertain in key respects” regarding how to apply the 26 “special factors” analysis. (Doc. No. 82 at 2). While holding the question “close” and 27 “persuasive authority [] far from unanimous,” the court concluded that “special factors do not 28 counsel hesitation” and found a cognizable Bivens claim against Officer Baker. (Id. at 6, 14). 1 As set forth more fully below, considering subsequent Bivens case law handed down from 2 the Supreme Court and Ninth Circuit, the undersigned finds it may not extend a Bivens remedy to 3 an Eighth Amendment excessive use of force claim. Accordingly, Plaintiff’s Eighth Amendment 4 excessive use of force claim brought under Bivens is barred and the Motion for Judgment on the 5 Pleadings is proper. 6 APPLICABLE LAW AND DISCUSSION 7 A. Legal Standard 8 “[J]udgment on the pleadings is properly granted when, taking all the allegations in the 9 pleadings as true, the moving party is entitled to judgment as a matter of law.” Milne ex rel. 10 Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir.2005). The burden is on the 11 moving party to establish on the face of the pleadings that there is no material issue of fact. Hal 12 Roach Studios, Inc. v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir. 1990). 13 Because a Rule 12(c) motion is “functionally identical” to a Rule 12(b)(6) motion, courts 14 should apply the same standard. Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 15 1989). In considering a Rule 12(c) motion, a court must limit its review to the pleadings and 16 “facts that are contained in materials of which the court may take judicial notice.” Heliotrope 17 Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) (internal quotation marks 18 and citations omitted). A motion for judgment on the pleadings should only be granted if, 19 accepting as true all material allegations contained in the nonmoving party's pleadings, the 20 moving party “clearly establishes that no material issue of fact remains to be resolved and that he 21 [or she] is entitled to judgment as a matter of law.” Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 22 1480, 1482 (9th Cir. 1984) (quoting Charles Alan Wright & Arthur R. Miller, Federal Practice 23 and Procedure § 1368 (1969)). 24 B. Applicability of Bivens to Plaintiff’s Complaint 25 To date, the Supreme Court has only recognized a Bivens remedy in fact specific Fourth, 26 Fifth, and Eighth Amendment contexts. See Bivens, 403 U.S. 388 (Fourth Amendment 27 prohibition against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979) 28 (Fifth Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth 1 Amendment for failure to provide adequate medical treatment). 2 1. Recent Supreme Court case law regarding extension of Bivens 3 The Supreme Court made clear that “expanding the Bivens remedy is now a disfavored 4 judicial activity,” and has “consistently refused to extend Bivens to any new context or new 5 category of defendants.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (citations omitted); see 6 Egbert v. Boule, 596 U.S. 482, 491 (2022) (reiterating that “a cause of action under Bivens is ‘a 7 disfavored judicial activity.”). Traditionally, courts applied a two-part test to determine the 8 appropriateness of extending a Bivens cause of action. First, the court examined whether the 9 claim arises in a “new context” or involves a “new category of defendants.” Hernandez v. Mesa, 10 140 S. Ct. at 743. Second, if the claim does indeed arise in a new context, the court assessed 11 whether there exists any “special factors counselling hesitation in the absence of affirmative 12 action by Congress.” Ziglar, 582 U.S. at 136 (internal quotations omitted). Recently, the 13 Supreme Court reformulated this test. In Egbert, 596 U.S. at 492, the Supreme Court concluded 14 these two steps can be distilled into a single inquiry— “whether there is any reason to think that 15 Congress might be better equipped to create a damages remedy.” The Court further specified that 16 if there is even one rational reason to defer to Congress to afford a remedy, then “a court may not 17 recognize a Bivens remedy.” Id. Practically, the Court concluded that a rational reason for 18 deference to Congress will exist “in most every case.” Id. 19 Significant, the availability of an alternative remedial structure counsels against extending 20 Bivens to a new cause of action. Thus, a court may not even determine the adequacy of the 21 alternative remedy, as this too is a task left for Congress. Egbert, 596 U.S. at 498. Indeed, “[s]o 22 long as Congress or the Executive has created a remedial process that it finds sufficient to secure 23 an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing 24 a Bivens remedy.” Id. This remains true “even if a court independently concludes that the 25 Government’s procedures are ‘not as effective as an individual damages remedy.’” Id. (quoting 26 Bush v. Lucas, 462 U.S. 367, 372 (1983)). 27 2. Recent Ninth Circuit case law regarding extension of Bivens 28 “Heeding the [Supreme] Court’s guidance,” in Egbert and Hernandez the Ninth Circuit 1 has “similarly declined to extend Bivens to any new contexts.” Chambers v. C. Herrera, 78 F.4th 2 1100, 1104 (9th Cir. 2023); see Harper v. Nedd, 71 F.4th 1181 (9th Cir. 2023) (finding new 3 Bivens context in Fifth Amendment due process claim because claim involved a new category of 4 defendants and alternative remedial scheme); Pettibone v. Russell, 59 F.4th 449 (9th Cir. 2023) 5 (same in Bivens claim brought under the Fourth Amendment because claim involved officers of a 6 different rank and distinguishable official action and legal mandate); Mejia v. Miller, 61 F.4th 663 7 (9th Cir. 2023) (same in Fourth Amendment excessive force claim because case involved new 8 category of defendants). In each of these cases the Ninth Circuit concluded that Congress, not the 9 Judiciary, was better suited to fashioning damages remedies. “Essentially then, future extensions 10 of Bivens are dead on arrival.” Harper, 71 F.4th at 1187. 11 After the parties submitted their briefing on the instant Motion, the Ninth Circuit 12 confronted the precise question raised by this motion: whether Bivens provides an implied cause 13 of action for an Eighth Amendment excessive use of force claim. Chambers, 78 F.4th at 1107. 14 As the briefing submitted by the parties on this motion reflects, district courts in this circuit have 15 come to different conclusions on this question. Compare Davis v. Fed. Bureau of Prisons, 2022 16 WL 18460704, at *1 (C.D. Cal. Dec. 8, 2022), report and recommendation adopted, 2023 WL 17 405319 (C.D. Cal. Jan. 24, 2023) (rejecting Bivens claim in which prisoner alleged that officer 18 used excessive force) and Cain v. Paviglianti, 2023 WL 3855284, at *3 (E.D. Cal. June 6, 2023) 19 (granting motion to dismiss former prisoner’s claim seeking damages against a federal 20 correctional officer for using excessive force against him in violation of the Eighth Amendment) 21 with Bailey v. Cox, 2022 WL 4237991, at *3 (E.D. Cal. Sept. 14, 2022) (relying on and quoting 22 Reid v. United States, 825 F. App’x 442, 444-45 (9th Cir. Sept. 2, 2020) (Eighth Amendment 23 excessive force claim did not present new Bivens context) (“A claim for damages based on 24 individualized mistreatment by rank-and-file officers is exactly what Bivens was meant to 25 address.”) and Moneyham v. United States, 2018 WL 3814586, at *4 (C.D. Cal. May 31, 2018), 26 report and recommendation adopted, 2018 WL 3807839 (C.D. Cal. Aug. 6, 2018) (finding that 27 Eighth Amendment excessive force presents new Bivens context, but special factors analysis does 28 not does not foreclose Bivens remedy). Notably, the decisions finding that Bivens permits an 1 Eighth Amendment excessive use of force cause action (Bailey and Moneyham) were decided 2 before Egbert or do not discuss Egbert. In Bailey, which Plaintiff cites repeatedly in his 3 Opposition, the court noted cautiously that “[a]lthough the court will allow Plaintiff's claims to 4 proceed, it does not preclude the parties from raising this issue with full briefing later in the case.” 5 2022 WL 4237991 at *3. 6 However, the Ninth Circuit in Chambers squarely addressed the question raised by the 7 above cases and unequivocally held that excessive use of force under the Eighth Amendment 8 represents a “new context” for application of Bivens. The Chambers Court rejected the 9 argument—which the Bailey court had adopted—that excessive use of force is sufficiently similar 10 to deliberate medical indifference to find it permissible under Carlson. Id. at 1107. The Court 11 reasoned: 12 it is not enough that Carlson was also brought under the Eighth Amendment because several Ziglar factors highlight that this claim 13 presents a new context. These factors include: “the extent of judicial guidance as to how an officer should respond to the 14 problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating;” and “the risk of 15 disruptive intrusion by the Judiciary into the functioning of other branches.” 16 17 Id. at 1107–08 (internal citations omitted). The Chambers Court reasoned that any time Congress 18 or the Executive has legislated to create causes of action for prisoners, the decision not to create 19 an express cause of action, such as for Eighth Amendment failure to protect or excessive use of 20 force, “suggests that they have decided against creating such an action.” Id. at 1107. And the 21 decision not to create such a cause of action gives the Court a reason “to think that Congress is 22 better suited to weigh the costs and benefits of allowing a damages action to proceed.” Id., 23 quoting Egbert, 596 U.S. at 492. In creating the PLRA and authorizing the BOP to create 24 administrative grievance procedures, without explicitly creating a damages remedy for Eighth 25 Amendment excessive force claims, Congress gave such an indication and the Court thus 26 declined to create a new Bivens remedy. Id. at 1108. Thus, binding Ninth Circuit case law now 27 holds that under Egbert, this Court may not extend a Bivens remedy to an Eighth Amendment 28 excessive use of force claim. 1 C. Parties’ Positions 2 1. Defendants’ Motion 3 Defendants’ Motion, which was briefed and submitted before Chambers, argues that 4 under Egbert and Harper, the extension of Bivens to a new context is “dead on arrival.” (Doc. 5 No. 138-1 at 1-2). Because the Supreme Court has never recognized a Bivens remedy for an 6 Eighth Amendment excessive use of force claim, permitting the claim to proceed would mean 7 recognizing a Bivens remedy in a “new context,” which is “disfavored” if not outright barred by 8 recent Supreme Court case law. (Id. at 4-6). 9 Even assuming the analysis does not stop there, Defendants argue that a special factors 10 analysis counsels against recognizing a new Bivens remedy. First, federal prisoners have access 11 to at least two alternative remedial structures in the BOP administrative grievance process and the 12 FTCA, which “independently foreclose[s] a Bivens action.” (Id. at 8) (quoting Bivens, 596 U.S. 13 at 497). And under Egbert, a court may not “second-guess” the sufficiency of these remedial 14 processes by weighing their adequacy and superimposing a judicially created Bivens remedy. 15 (Doc. No. 138-1 at 8-9). Defendants also point to separation of powers concerns implicated when 16 federal courts involve themselves in the daily operations of the federal prisons, which task is 17 delegated to the executive branch. (Id. at 10). Finally, Defendants point out that finding a new 18 damages remedy where Congress declined to do so as part of the PLRA is another factor 19 counseling hesitation under Ziglar. (Id. at 11-12). 20 2. Plaintiff’s Opposition to the Motion 21 Plaintiff sets forth several arguments why the Court should reject Defendants’ Motion. 22 First, Plaintiff contends that the Motion was not properly noticed under the Local Rules, which 23 the Court subsequently addressed by Text Order. (See Doc. No. 142). 24 Second, Plaintiff argues that applying the law of the case doctrine, the Court should not 25 reverse its prior position that Plaintiff can proceed on his Eighth Amendment claim under Bivens. 26 (Id. at 3-5). Plaintiff acknowledges that a court may revisit its prior rulings if there is a change in 27 case law applicable to the ruling. (Id. at 4). However, Plaintiff contends that Egbert does not 28 constitute a sufficient change in the law regarding Bivens to warrant the Court revisiting its 1 ruling. (Id.). For this proposition, Plaintiff cites to Kidd v. Mayorkas, 645 F. Supp. 3d 961 (C.D. 2 Cal. Dec. 12, 2022), a district court case which held that Egbert did not fundamentally change the 3 Bivens analysis previously set forth in Ziglar and Hernandez, and that “only if the new case is ‘a 4 binding opinion directly on point and irreconcilable with the earlier decision in the period 5 between the first and second decisions of the lower court.” Kidd, 645 F. Supp. 3d at 966. 6 Third, Plaintiff cites to Bailey, an Eastern District case discussed supra, which held that 7 the Eighth Amendment does not present a new context under Bivens; Plaintiff also notes that 8 other districts around the country have come to the same conclusion. (Doc. No. 140 at 5). 9 Plaintiff argues that even if the Court finds Eighth Amendment excessive use of force constitutes 10 a new Bivens context, special factors do not counsel hesitation in extending a Bivens remedy. 11 Plaintiff contends that Congress would not be better equipped to authorize “prisoners’ damages 12 claims against rank-and-file officers for individualized mistreatment,” noting that the PLRA does 13 not create any remedies, but only sets forth the procedural requirements for prisoner plaintiffs to 14 bring their claims. (Id. at 7). Plaintiff asserts that “[a]t the time it passed the PLRA, Congress 15 understood that most federal prisoners brought their legal claims under Bivens. Yet in deciding 16 how to limit prisoner suits, Congress chose not to foreclose these claims.” (Id.). Thus, Plaintiff 17 infers there exists Congressional intent not to limit the availability of Bivens suits. (Id.). 18 Moreover, Plaintiff argues that neither the BOP’s administrative grievance process nor the FTCA 19 provides an adequate alternative remedial model, thus their existence does not counsel hesitation 20 in extending a new Bivens remedy. 21 3. Defendants’ Reply 22 In their Reply, Defendants respond that Egbert is “irreconcilable” with this Court’s prior 23 ruling regarding the availability of a Bivens remedy for Plaintiff’s claim. (Doc. No. 143 at 2). 24 They reiterate that in Egbert, the Supreme Court held that the existence of an alternative remedial 25 structure “independently foreclose[s] a Bivens action.” (Id.) (citing Egbert, 596 U.S. at 497). 26 Although Plaintiff contends that neither the BOP’s grievance process nor the FTCA is an 27 adequate alternative, Egbert makes clear that federal courts cannot “second-guess” the sufficiency 28 of a remedial structure by “superimposing a Bivens remedy.” (Id.). 1 Defendants point out that Kidd v. Mayorkas, which Plaintiff cites to argue that Egbert 2 does not constitute a change in the law sufficient to supersede the law of the case doctrine, is not 3 applicable here. (Id. at 3-4). In Kidd, the court had previously found that a Fourth Amendment 4 search and seizure claim did not represent a new context under Bivens and thus did not reach the 5 special factors analysis. (Id. at 3). Defendants filed a Motion for Judgment on the Pleadings, 6 citing to Egbert as warranting a new analysis of the issue. (Id.). But the court found that Egbert 7 “devoted no substantive analysis to the context question” and therefore did not involve a change 8 in the law as to that issue. (Id. at 3-4) (citing Kidd, 645 F. Supp. 3d at 969). Here, because the 9 Court’s Screening Order based its ruling on the special factor analysis, Kidd’s holding as to 10 Egbert is inapposite. (Id. at 4). Moreover, Defendants point out that Kidd is not binding on this 11 Court. (Id.). 12 Defendants further argue that Egbert constitutes a change in the law because it resolves 13 the ambiguities in Ziglar and Hernandez, reflected in this Court’s Screening Order, concerning 14 how to weigh the different special factors and evaluate alternative remedial processes. (Id. at 4- 15 5). Egbert simplifies the inquiry by directing a federal court to ask, “if there is any reason to 16 think that judicial intrusion into a given field might be harmful or appropriate; [if] there is the 17 potential for such consequences, a court cannot afford a plaintiff a Bivens remedy.” (Id. at 5) 18 (quoting Egbert, 596 U.S. at 496). Additionally, the existence of an alternative remedial 19 procedure created by Congress or the Executive “independently foreclose[s] a Bivens action.” 20 (Id. at 5). 21 Defendants note that this Court previously found that Plaintiff’s Eighth Amendment claim 22 presents a new context under Bivens and argues that the Court’s holding in Egbert does not 23 warrant reconsidering that finding. (Id. at 8). And once the Court finds a Bivens claim arises in a 24 new context, as the Ninth Circuit recently stated in Harper, the claim is essentially “dead on 25 arrival” because “[u]nder Egbert, rarely if ever is the Judiciary equally suited as Congress to 26 extend Bivens even modestly.” (Id. at 8) (quoting Harper, 71 F.4th at 1187). Thus, Defendants 27 conclude that Plaintiff’s Eighth Amendment Bivens claim is similarly foreclosed. 28 //// 1 ANALYSIS 2 The former magistrate judge previously found that Plaintiff’s Eighth Amendment 3 excessive use of force claim presents a new context for a Bivens cause of action, but that special 4 factors “do not counsel against extending the remedy” in this case. (Doc. No. 82 at 2). Since that 5 ruling was issued, however, the analysis of Bivens claims has shifted significantly due to the 6 Supreme Court’s opinion in Egbert, and Ninth Circuit’s opinions in Harper and Chambers. 7 The Court is bound by those decisions, and in particular by Chambers, whose ruling could 8 not be more squarely on point. The Ninth Circuit held in Chambers that an Eighth Amendment 9 excessive use of force claim presents a new context not previously recognized for a Bivens claim, 10 and that expanding Bivens would “risk the exact ‘disruptive intrusion by the judiciary’ that Ziglar 11 forecloses.” Chambers, 78 F.4th at 1108. The Chambers Court followed the simplified and 12 stricter guidance of Egbert whereby federal courts must ask whether Congress is better equipped 13 to create a damages remedy and concluded it should “decline to craft an action for damages when 14 Congress could have done so but did not.” Id. Thus, the Ninth Circuit expressly declined to 15 extend Bivens to an Eight Amendment excessive use of force claim. Id. 16 Here, Plaintiff sets forth various arguments against revisiting the Court’s ruling in its 17 Second Screening Order. However, it is incontrovertible, that Chambers, if not Egbert and 18 Harper, constitute a significant intervening change in the law since the Second Screening Order. 19 The current case law affirms the Court’s prior finding that an Eighth Amendment excessive use of 20 force claim constitutes a new context under Bivens, and considering Egbert and Harper, a new 21 context is almost certainly “dead on arrival.’” Chambers, 78 F. 4th at 1104 (quoting Harper, 71 22 F. 4th at 1187). Because the Ninth Circuit has expressly found that to be the case in this specific 23 Eighth Amendment excessive use of force context as presented by Plaintiff’s claim, the Court 24 must follow that binding precedent and find in Defendants’ favor. Chambers, Id. at 1107-08 25 (reversing district court and dismissing Eight Amendment excessive use force claim with 26 prejudice). 27 The undersigned thus recommends the District Court grant Defendants’ Motion and 28 dismiss Plaintiff’s Eighth Amendment Bivens claim. 1 Accordingly, it is RECOMMENDED: 2 1. The district court GRANT Defendants’ Motion for Judgment on the Pleadings 3 (Doc. No. 137) under Rule 12(c) and dismiss with prejudice Plaintiff's Bivens Eighth 4 Amendment excessive use of force claim in his operative complaint (Doc. No. 99). 5 2. The district court dismiss Defendant Baker from this action and permit Plaintiff’s 6 operative complaint (Doc. No. 99) to proceed only on Plaintiff's FTCA claim against 7 United States of America. 8 NOTICE TO PARTIES 9 These findings and recommendations will be submitted to the United States district judge 10 | assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 11 | days after being served with these findings and recommendations, a party may file written 12 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 | Findings and Recommendations.” Parties are advised that failure to file objections within the 14 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 15 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 M Dated: _ November 6, 2023 oe Zh. Sareh Zackte 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE

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