(PC) Williams v. Baker

Opinion

Plaintiff, CASE NO: 1:16-cv-01540-ADA-HBK v. FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION FOR CHRISTOPHER BAKER and UNITED JUDGMENT ON THE PLEADINGS1 STATES OF AMERICA, (Doc. No. 138) Defendants. FOURTEEN DAY OBJECTION PERIOD Pending before the Court is Defendants Christopher Baker and United States of America’s (collectively “Defendants”) Motion for Judgment on the Pleadings. (Doc. No. 138, “Motion”). Defendants argue Plaintiff’s Eighth Amendment Bivens2 excessive force claim against Defendant Baker is barred by recent Supreme Court and Ninth Circuit case law. Plaintiff filed an Opposition (Doc. No. 140), and Defendants filed a Reply (Doc. No. 143). For reasons set forth below, the undersigned recommends the District Court grant Defendants’ Motion. //// ////

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