Hoffman v. Preston

• Decision Date: 28 February 2022
• Docket Number: No. 20-15396,20-15396
• Citation: 26 F.4th 1059
• Parties: Marcellas HOFFMAN, Plaintiff-Appellant, v. PRESTON, Defendant-Appellee, and D. Coyle ; Matevoisain, Warden; L. T. Hayes; Fields, SIA Investigator, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

26 F.4th 1059

Marcellas HOFFMAN, Plaintiff-Appellant,

v.PRESTON, Defendant-Appellee,andD. Coyle ; Matevoisain, Warden; L. T. Hayes; Fields, SIA Investigator, Defendants.,

No. 20-15396

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2021 San Francisco, California

Filed February 28, 2022

Laura E. Dolbow (argued) and David M. Zionts, Covington & Burling LLP, Washington, D.C.; Samuel Weiss, Rights Behind Bars, Washington, D.C.; for Plaintiff-Appellant.

Philip A. Scarborough (argued), Assistant United States Attorney; McGregor W. Scott, United States Attorney; United States Attorney's Office, Sacramento, California; for Defendant-Appellee.

Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal,^** District Judge.

ROSENTHAL, Chief District Judge:

Marcellas Hoffman, a federal prisoner, alleges that a correctional officer, Timothy Preston, labeled him a snitch to other prisoners, offered them a bounty to assault Hoffman, and failed to protect him from the predictable assault by another prisoner. Hoffman sued Preston for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Although we recognize that the Supreme Court has "made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity," the Court has also made clear that a remedy may be available for a case arising in a new Bivens context, so long as "special factors [do not] counsel[ ] hesitation." Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 1859, 1865, 198 L.Ed.2d 290 (2017) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 675, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In Carlson v. Green , 446 U.S. 14, 18–20, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Court recognized a Bivens remedy for a violation of the Eighth Amendment prohibition on cruel and unusual punishment. While Hoffman's Eighth Amendment claim is different in some respects from the Eighth Amendment claim presented in Carlson , no special factors counsel hesitation against what is a very modest expansion of the Bivens remedy to this context. We therefore reverse the district court's Rule 12(b)(6) dismissal of Hoffman's pro se complaint for failure to state a claim under Bivens , and remand for further proceedings.

I.

This appeal comes to us on a motion to dismiss, so we recount the facts as set out in the complaint. See Dougherty v. City of Covina , 654 F.3d 892, 897 (9th Cir. 2011) (on a Rule 12(b)(6) motion, "[t]he facts alleged in a complaint are to be taken as true" (citing Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 )).

A.

Marcellas Hoffman was housed at U.S. Penitentiary Atwater, where he worked as a cook. The prison's warden, food administrator, and food service assistant approved Hoffman's proposal to reduce waste in the food-service department. Hoffman alleges that Timothy Preston, a Bureau of Prisons correctional officer at Atwater, was upset by the proposal and wanted Hoffman removed from the kitchens. In February 2016, Preston told another correctional officer, in front of Hoffman and other prisoners, that "inmates are snitching in the staff dining hall and writing officers['] names down who are not paying for meals." Hoffman responded, "I am not snitching on no one, if you are talking about me." A heated verbal exchange between Hoffman and Preston ended when Preston put Hoffman in a holding cell. Preston later moved Hoffman to the Special Housing Unit.¹

According to Hoffman's complaint, over the following months, Preston repeatedly and publicly labeled Hoffman a snitch. Preston told other prisoners that Hoffman was reporting both staff and prisoners for not paying for meals; made it clear that he wanted Hoffman kicked out of the kitchens; and offered a bounty to specific prisoners to harm him. These actions worked their intended, predictable result: on May 16, 2016, another prisoner, Emmanuel Ward, assaulted Hoffman in his cell. Ward punched Hoffman in the face, kicked him in the stomach, and smashed his head into a locker. Hoffman alleges that Ward attacked him "as a direct result" of Preston labeling Hoffman a snitch. Hoffman has since been transferred to a different prison, but he continues to receive threats from prisoners and staff because of the reputation as a snitch that Preston started and continued.

B.

This case has a complicated procedural history. Hoffman filed his first complaint pro se on October 27, 2016. With leave of court and still proceeding pro se , he amended the complaint on April 11, 2019. The amended complaint states claims against Preston for retaliation and cruel and unusual punishment, in violation of the First and Eighth Amendments. Only the Eighth Amendment claim survived the screening required under the Prison Litigation Reform Act ("PLRA"). 28 U.S.C. § 1915A(a). On July 18, 2019, Preston moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that Hoffman had failed to state a valid Eighth Amendment claim under Bivens.²

On October 11, 2019, the magistrate judge recommended granting the motion to dismiss, explaining that under the Supreme Court's decision in Abbasi , there were only three cases "in which the Court has approved of an implied damages remedy under the Constitution itself": Bivens, Carlson , and Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). Abbasi , 137 S. Ct. at 1854–55. Of those cases, only Carlson involved a claim under the Eighth Amendment's cruel and unusual punishment clause. Because that claim was "for failure to provide medical care," id. at 1864, the judge concluded that it "differ[ed] meaningfully" from Hoffman's claim. The judge framed Hoffman's claim as deliberate indifference to the risk of, or failure to protect from, an attack by another prisoner.

The magistrate judge rejected Hoffman's argument that the Court recognized a Bivens remedy for failure-to-protect claims in Farmer v. Brennan , 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), because Farmer was not one of the three cases listed in Abbasi. See Abbasi , 137 S. Ct. at 1854–55. After deciding that Hoffman's claim presented "a new Bivens context," id. at 1859, the judge concluded that special factors—the availability of other remedies, legislative action by Congress, and the impact on government regulation—cautioned against extending the Bivens remedy to Hoffman's claim. See id. at 1860.

On January 6, 2020, the district court adopted the magistrate judge's findings and recommendations in full and dismissed the action with prejudice. Hoffman timely appealed.

II.

The district court had jurisdiction over Hoffman's Bivens claims under 28 U.S.C. § 1331. We have jurisdiction over Hoffman's appeal of the district court's dismissal under 28 U.S.C. § 1291.

We review the district court's dismissal for failure to state a claim de novo. Dougherty , 654 F.3d at 897. We take all allegations of material fact in the complaint as true and ask if they "plausibly give rise to an entitlement to relief." Id. (quoting Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ). Pro se complaints are construed liberally and "held to less stringent standards than formal pleadings drafted by lawyers." Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted).

III.

Before determining whether a Bivens remedy is available for Hoffman's Eighth Amendment claim, we address the precise nature of that claim. The district court examined whether a Bivens remedy was available for Hoffman's claim that Preston violated the Eighth Amendment through his alleged deliberate indifference to Hoffman's health and safety as a prison inmate. Hoffman alleged in his complaint that "Defendant Preston was deliberate in difference [sic] when [Preston] offered to pay other inmates to harm [Hoffman] for writing and submitting a Food Service Proposal and for claiming that [Hoffman was] reporting that staff were not paying for meals," and that "Defendant Preston was deliberate indifference [sic] to the potential harm that Plaintiff would receive by offering other inmates a reward to harm [Hoffman] and have [Hoffman] removed from the kitchen." District Dkt. 42, at 5–6.

Hoffman's complaint, however, does not allege that Preston was merely indifferent to his harm. Instead, Hoffman alleges that Preston took affirmative steps to target Hoffman for harm by repeatedly and publicly labeling him a snitch and offering a reward to other inmates to harm him. Hoffman alleges that "Preston was supposed to protect [Hoffman] from inmate assaults, but he instead encouraged the inmates to harm Plaintiff and offered to pay them to doit [sic]." District Dkt. 42, at 6 (emphasis added). Hoffman also alleges that "Preston violated [his] right to be free from intentional harm caused by [Preston]." Id. at 5.

We construe pro se complaints liberally and "afford the petitioner the benefit of any doubt." Hebbe , 627 F.3d at 342. A generous approach is not required to read Hoffman's complaint as alleging conduct beyond "deliberate indifference." "Deliberate indifference" would mean that Preston failed to protect Hoffman from a known risk of substantial harm. Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk. Although this claim of intentional harm is not squarely presented in the Supreme Court's Bivens opinions, Hoffman's allegations taken as true are only a modest extension of Bivens. If the Supreme Court has allowed a guard who is aware of and deliberately indifferent to a substantial risk that a prisoner will suffer medical harm from an asthma

attack to be sued under Bivens , it is but a modest extension to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur. We find no special factors that counsel against allowing a Bivens remedy in this context. We reverse.³

A.

In Bivens , the Supreme Court...