DENISE MEJIA V. WESLEY MILLER, ET AL, No. 21-56282 (9th Cir. 2022)
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Plaintiff claimed that Defendant used excessive force while attempting an arrest on June 10, 2018, in Berdoo Canyon, which is considered BLM land. Plaintiff and her husband failed to yield to a park ranger, at which point Defendant was called to assist. As Defendant was trying to stop Plaintiff's vehicle, he fired several shots, hitting her in the hand and grazing her head.
Plaintiff filed a Sec. 1983 claim against Defendant. The district court denied Defendant's motion for summary judgment related to Plaintiff's excessive force claim and Defendant appealed.
On appeal, the Tenth Circuit reversed, declining to extend Bivens. The existence of alternative remedial structures is reason enough to not infer a new Bivens cause of action. Similarly, uncertainty about the potential systemwide consequences of implying a new Bivens cause of action is by itself a special factor that forecloses relief. The panel held that there was no Bivens cause of action for Plaintiff’s claim, which presented a new context.
Court Description: Civil Rights. The panel vacated the district court’s denial, on summary judgment, of qualified immunity to a now-retired officer of the Bureau of Land Management and remanded with instructions to enter summary judgment dismissing with prejudice plaintiff’s excessive force claim brought pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In 1971, the Supreme Court in Bivens adopted an “implied cause of action theory” permitting the petitioner to seek damages from federal officers for unreasonable search and seizure in his home. Since then, the Supreme Court has recognized a Bivens action in two other contexts: a claim asserting a Congressman discriminated on the basis of gender in employment, in violation of Fifth Amendment due process (Davis v. Passman, 442 U.S. 228 (1979)), and an Eighth Amendment claim for cruel and unusual punishment against federal jailers for failing to treat a prisoner’s severe asthma. Carlson v. Green, 446 U.S. 14 (1980). These three cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself. Since Carlson, expanding the Bivens remedy is a disfavored judicial activity. Shortly after the briefing in this case, the Supreme Court issued Egbert v. Boule, 596 U.S. ––, 142 S. Ct. 1793 (2022), which held that in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts. The existence of alternative remedial structures is reason enough to not infer a new Bivens cause of action. Similarly, uncertainty about the potential systemwide consequences of implying a new Bivens cause of action is by itself a special factor that forecloses relief. The panel held that there was no Bivens cause of action for plaintiff’s claim, which presented a new context. And given this new context, special factors counseled against implying a cause of action here. For example, Fourth Amendment excessive force claims against Bureau of Land Management (“BLM”) officers would have “‘systemwide’ consequences” for BLM’s mandate to maintain order on federal lands, and uncertainty about these consequences provided a reason not to imply such a cause of action. The panel further determined that plaintiff had alternative remedies, including administrative remedies. And while plaintiff’s claims pursuant to the Federal Tort Claims Act were based on a different legal theory, in plaintiff’s instance they were an alternative avenue to seek damages for the injuries alleged in her Bivens claim.
The court issued a subsequent related opinion or order on March 2, 2023.
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