STEVE MARQUEZ V. C. RODRIGUEZ, ET AL, No. 21-55981 (9th Cir. 2023)
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Plaintiff was booked into a federal corrections center in San Diego for an alleged sex offense. Given the nature of his charges, Plaintiff requested protective custody. Jail officials, however, declined his request, instead placing him in general population. Plaintiff experienced harassment by other inmates, and at some point, the inmates forced Plaintiff to exercise to the point of collapse, leading to serious medical complications requiring hospitalization. Plaintiff filed suit under Bivens against two jail classification officers in their individual capacities. The officers moved to dismiss the complaint, contending that Plaintiff did not state a viable Bivens claim. The district court denied the motion. Although the district court found that Plaintiff’s claim presented a “new Bivens context,” it concluded that an extension of Bivens could be warranted in his case.
The Ninth Circuit reversed. The court explained that when a party seeks to bring a Bivens action, courts apply a two-step test: whether the case presents a new Bivens context, and, if so, whether there are “special factors” that counsel against extending Bivens. Applying the first step, the panel held that this case presents a new Bivens context that the Supreme Court has not recognized in its Bivens jurisprudence. Applying the second step, the panel held that special factors counsel against extending Bivens to this case. The legislature and executive were best positioned to address Plaintiff’s interest and have, in fact, provided alternative remedies through administrative review procedures offered by the Board of Prisons. Accordingly, the panel declined to overstep its constitutional role to create a new damages action.
Court Description: Prisoner Civil Rights/Bivens. In an action brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.
388 (1971), alleging that federal correctional officials failed to protect plaintiff from other detainees at a jail, the panel reversed the district court’s denial of defendants’ motion to dismiss and declined to extend a Bivens action to include a Fifth Amendment failure-to-protect claim.
When a party seeks to bring a Bivens action, courts apply a two-step test: whether the case presents a new Bivens context, and, if so, whether there “special factors” that counsel against extending Bivens. Applying the first step, the panel held that this case presents a new Bivens context that the Supreme Court has not recognized in its Bivens jurisprudence. The panel declined to recognize an implied Bivens context arising from Farmer v. Brennan, 511 U.S. 825 (1994), which involved an Eighth Amendment failure-to-protect claim by a female- presenting transsexual individual who was assaulted by other inmates. The panel noted that nearly thirty years have passed since the Supreme Court decided Farmer and if the Court were inclined to recognize it as one of the few acceptable Bivens contexts, it would have done so. The panel further determined that plaintiff’s claim was meaningfully distinguishable from Farmer, which involved an Eighth Amendment rather than a Fifth Amendment claim, alleged a different category of harm, and arose in a different factual setting.
Applying the second step, the panel held that special factors counsel against extending Bivens to this case. The legislature and executive were best positioned to address plaintiff’s interest, and have, in fact, provided alternative remedies through administrative review procedures offered by the Board of Prisons. Accordingly, the panel declined to overstep its constitutional role to create a new damages action.
Concurring in the judgment, Judge W. Fletcher explained that a state prisoner making the same factual allegations as plaintiff states a cause of action for damages. Denying a damages remedy to a federal prisoner while granting it to a state prisoner in the same circumstance is a miscarriage of justice.
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