Williams v. Baker

• Decision Date: 14 September 2020
• Docket Number: Case No. 1:16-cv-01540-DAD-JDP
• Citation: 487 F.Supp.3d 918
• Court: U.S. District Court — Eastern District of California
• Parties: Shannon WILLIAMS, Plaintiff, v. Officer BAKER, Defendant.

487 F.Supp.3d 918

Shannon WILLIAMS, Plaintiff,

v.Officer BAKER, Defendant.

Case No. 1:16-cv-01540-DAD-JDP

United States District Court, E.D. California.

Signed September 14, 2020

Carter Capps White, UC Davis School of Law, Davis, CA, for Plaintiff.

Bureau of Prisons Regional Counsel, Federal Bureau of Prisons, Stockton, CA, Litigation Coordinator, USP Atwater, Atwater, CA, Benjamin E. Hall, United States Attorney, Fresno, CA, for Defendant.

SECOND SCREENING ORDER

ORDER FINDING THAT PLAINTIFF STATES A COGNIZABLE BIVENS CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH AMENDMENT

ORDER THAT PLAINTIFF AND PLAINTIFF'S COUNSEL NOTIFY THE COURT OF THEIR REPRESENTATION PLANS WITHIN 60 DAYS

Jeremy D. Peterson, UNITED STATES MAGISTRATE JUDGE

This order addresses 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 . See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Here, plaintiff asserts a straightforward violation of the Eighth Amendment: while an inmate at a federal facility, corrections officer Baker allegedly attacked him in retaliation for filing grievances, seriously injuring his arm. See ECF No. 1 at 4. Williams seeks damages under Bivens . Id. at 5. But in Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017) —and, more recently, in Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 206 L.Ed.2d 29 (2020) —the Supreme Court curtailed Bivens. Now, if a court is asked to apply Bivens in a "new context," it must ask whether "special factors" counsel against such an application. If so, the remedy is unavailable. See Hernandez , 140 S. Ct. at 743.

Here, a special factors analysis is required, since this case presents a new context, at least as that term has been used by the Supreme Court. But while the issue is close—and while binding authority is uncertain in key respects—I find that no special factors counsel against extending the remedy here. Plaintiff Williams therefore states a cognizable Bivens claim for excessive force in violation of the Eighth Amendment.

BACKGROUND

Plaintiff, a federal prisoner, filed this action in 2016. In early 2017, the previously assigned magistrate judge granted his application to proceed in forma pauperis and screened his complaint under 28 U.S.C. § 1915A. ECF Nos. 10, 12. The magistrate judge concluded that plaintiff stated cognizable Bivens claims for retaliation under the First Amendment and excessive force under the Eighth. In June 2017, however—soon after plaintiff's complaint had been screened—the Supreme Court decided Abbasi.

After initial motions practice, the case narrowed to plaintiff's Eighth Amendment claim against defendant Baker. On July 3, 2018, defendant Baker filed a motion for summary adjudication of the excessive-force claim, ECF No. 45, and I recommended that the motion be denied, ECF No. 59. Defendant objected to that recommendation, arguing for the first time that plaintiff was seeking an unlawful extension of Bivens in violation of Abbasi . See ECF No. 60.

The district judge adopted the recommendation over defendant's objection, not because defendant's Abbasi argument necessarily lacked merit—the court expressly declined to offer a view on the matter—but because an argument raised for the first time in objections is deemed waived. See ECF No. 61 at 2. With initial motions practice resolved, I ordered briefing on the Abbasi issue, ECF No. 62, noting that the Prison Litigation Reform Act ("PLRA") provides that the court "shall dismiss [an in forma pauperis ] case at any time if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). If plaintiff's remaining claim is no longer cognizable under Bivens , his action no longer states a claim for which relief can be granted, and the court must dismiss it.¹

After some delay, plaintiff moved for the appointment of counsel, which I granted for the limited purpose of addressing the Abbasi issue. ECF Nos. 69, 70. The court heard oral argument on July 10, 2020.

DISCUSSION

A district court must analyze the appropriateness of extending the Bivens remedy using a two-part test that the Supreme Court recently clarified in Abbasi , 137 S. Ct. 1843, and Hernandez , 140 S. Ct. 735. Under this approach, the court first asks whether a Bivens claim "arises in a new context or involves a new category of defendants." Hernandez , 140 S. Ct. at 743 (internal quotation marks omitted). If so, the court then asks "whether there are any special factors that counsel hesitation" about extending the remedy. Id. (internal quotation marks and brackets omitted). If the context is new and special factors counsel hesitation, the court must not extend the remedy. But if special factors do not counsel hesitation or if the context in which the claim arises is not new, then a Bivens remedy may be pursued.

A. New Context Analysis

A case presents a new context if it is "meaningfully different" from the three cases in which the Supreme Court has previously allowed a Bivens remedy. Hernandez , 140 S. Ct. at 743. Those cases are Bivens , 403 U.S. 388, 91 S.Ct. 1999, Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).

The "meaningfully different" standard is not self-applying, and the Supreme Court has declined to offer "an exhaustive list of differences that are meaningful enough to make a given context a new one." Abbasi , 137 S. Ct. at 1859-60. Instead, the Court has offered instructive examples of meaningful differences—such as the rank of the officers involved, the generality or specificity of the official action, and the legal mandate under which the officer was operating—while emphasizing the background principle that "even a modest extension is still an extension." Id. at 1864.

This is a case of a modest extension, but an extension nonetheless. While plaintiff contends that this case does not differ meaningfully from either Bivens or Carlson , see ECF No. 74 at 16, the core of that argument has been rejected by the Supreme Court. This case differs from Bivens because it involves a different constitutional right: Mr. Bivens proceeded under Fourth Amendment; Mr. Williams proceeds under the Eighth. See Abbasi , 137 S. Ct. at 1860 (listing a different "constitutional right at issue" as a reason why a context may be new); see also id. at 1864 (noting that Carlson was meaningfully different from Abbasi in part because " Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth").

Carlson presents a closer call. Here, as in Carlson , plaintiff proceeds under the Eighth Amendment's prohibition against cruel and unusual punishment. But the Court has stated that different contexts may emerge under the same constitutional text: "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. Here, plaintiff alleges Eighth Amendment excessive force; in Carlson , plaintiff alleged Eighth Amendment medical indifference. This distinction matters; the legal tests governing the claims and guiding the prison officers in question are different. Compare Hudson v. McMillian , 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."), with Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ("In order to state a cognizable claim [with respect to medical care], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."). Considering the different legal tests, I am convinced that the court is faced with a meaningful difference under the Supreme Court's standard.²

It may also matter that, in the forty years since Carlson , the background legal context has changed. Most notably, the PLRA was signed into law in 1996. Abbasi specifically listed differences in "the statutory or other legal mandate under which the officer was operating" and "the presence of potential special factors that previous Bivens cases did not consider" as reasons for deciding that a Bivens context is new. Abbasi , 137 S. Ct. at 1860 (emphasis added). Later, the Court's Abbasi opinion noted that it "could be argued that [the PLRA] suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment." Id. at 1865. The PLRA thus may amount to another meaningful difference.

In short, the different Eighth Amendment framework and perhaps also the intervening statutory change make this context new.

B. Special Factors Analysis

Because the Bivens context is new, I must evaluate whether there are "special factors counselling hesitation." Abbasi , 137 S. Ct. at 1857 (quoting Carlson , 446 U.S. at 18, 100 S.Ct. 1468 (quoting, in turn, Bivens , 403 U.S. at 396, 91 S.Ct. 1999 )). While the Supreme Court has again declined to offer an exhaustive list of relevant factors—favoring instead a second list of illustrative examples—the Court has emphasized that the inquiry "must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed." Id. at 1857-58. Thus, "separation-of-powers principles are or should be central to the analysis." Id. at 1857.

The question is close, and persuasive authority is far from unanimous.³ Here, however, I conclude that...