Stine v. Merrell

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Mikeal Glenn Stine, No. CV-21-00422-TUC-DCB 10 Plaintiff, AMENDED1 ORDER 11 v. 12 Unknown Merrell, et al., 13 Defendants. 14 15 BACKGROUND 16 Plaintiff sued Defendants under the Federal Tort Claims Act (FTCA) and Bivens v. 17 Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He sued 18 for injunctive relief and damages. The Court dismissed Plaintiff’s claim for injunctive relief 19 because he was transferred from the United States Penitentiary (USP)-Tucson to USP- 20 Florida, mooting his request that the Court order USP-Tucson to house him in protective 21 custody. He has been moved back to USP-Tucson. 22 On screening, the Court dismissed the FTCA claim, without prejudice, because 23 Plaintiff failed to name the United States as a Defendant. The Court also dismissed, without 24 prejudice, charges against Defendants for conspiracy to deprive him of his constitutional 25 rights (Count Two); Plaintiff failed to allege facts showing a meeting of the minds between 26 alleged coconspirators. The Court found there is no implied cause of action under Bivens 27 for violations of the First Amendment and dismissed Count Three. (Order (Doc. 13) at 4- 28 1 To reflect Plaintiff’s return to pro se status. 1 6.) The Bivens claim in Count One remained alleging that inmates are threatening him, and 2 Defendants have denied him protective custody in violation of the Eighth Amendment. 3 On January 27, 2023, Defendants filed a Motion for Judgment on the Pleadings in 4 light of the Supreme Court’s decision in Egbert v. Boule, 142 S.Ct. 1793 (2022) that Bivens 5 will no longer support this cause of action. The Court appointed counsel for the sole 6 purpose of briefing this important jurisdictional question, who filed a Response/Objection 7 to the Motion for Judgment on the Pleadings. The Defendants filed a Reply. The 8 jurisdictional question is ripe, and the Court reaches it even though Plaintiff has filed a 9 Notice of Appeal and Motion to Stay the case pending the appeal. 10 The Plaintiff appeals the Court’s denial of his request to stay briefing of the 11 dispositive motion and denials of emergency motions requesting preliminary injunctive 12 relief and/or a temporary restraining order. All were denied because the Court concluded 13 they were unrelated to the claims in this action. The Court granted Plaintiff’s request for 14 appointment of counsel in part for briefing the jurisdictional question raised in the Motion 15 for Judgment on the Pleadings. (Order (Doc. 54)); (Notice of Appeal (Doc. 62)). 16 This interlocutory appeal is governed by 28 U.S.C. § 1292, which provides 17 “application for an appeal [] shall not stay proceedings in the district court unless the 18 district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C. § 19 1292(b). See Plotkin v. Pac. Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982) 20 (explaining as firmly established: “an appeal from an interlocutory order does not divest 21 the trial court of jurisdiction to continue with other phases of the case.”) “The filing of a 22 notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the 23 court of appeals and divests the district court of its control over those aspects of the case 24 involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). 25 The Court’s Order and denials that are the subject of the pending appeal were not based 26 upon the jurisdictional merits of the Complaint under Bivens. Accordingly, this Court 27 retains jurisdiction to rule on the Motion for Judgment on the Pleadings. The Court grants 28 the motion for the reasons given below and enters Judgment for Defendants and against 1 Plaintiff on the only remaining Bivens claim alleged in Count One. 2 In Count One, Plaintiff alleges Defendants are violating his Eighth Amendment 3 rights by denying him protective segregation housing. Plaintiff asserts that in the first week 4 of August 2021, Plaintiff and another inmate informed a case manager that two newly 5 formed gangs were planning to attack and kill the Plaintiff. He claims the case manager 6 responded that he did not care because Plaintiff was suing staff. Plaintiff alleges a gang 7 member “pulled a knife” on him and threatened to kill him, but “staff ignored the threat” 8 and tried to put Plaintiff “back on [the] yard with [the] same inmates.” Ultimately, Plaintiff 9 was denied protective segregation, and on September 7, 2021, Defendant Merrell placed 10 him in the Special Housing Unit “with inmates that he [knew] had vowed to attack and kill 11 Plaintiff[.]” Allegedly, Defendants Howard and Stangl agreed with this placement, also 12 refused to separate Plaintiff from inmates who allegedly threatened to kill him, and refused 13 to place Plaintiff in protective segregation. Plaintiff further claims Defendants Merrell, 14 Howard, and Stangl allow gangs to form “and to act as attackers of inmates they don’t like 15 for various reasons . . . [and] to act as enforcers for these staff . . . and [Plaintiff] has been 16 marked for attack by these staff and other staff of USP/Tucson.” Finally, Plaintiff alleges 17 another inmate attacked him on September 15, 2021, after Defendants Merrell, Howard, 18 and Stangl stated Plaintiff was a “snitch/government informant.” (Order (Doc. 13) at 4-5). 19 JURISDICTION 20 The recent Supreme Court case, Egbert v. Boule, 142 S. Ct. 1793 (2022), requires 21 this Court to take another look at its jurisdiction under Bivens v. Six Unknown Named 22 Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Egbert reiterates the 23 longstanding two-step analysis in a Bivens case, but clarified that the second step should 24 look at whether special factors indicate that the judiciary is at least arguably less equipped 25 than Congress to weigh the costs and benefits of allowing a damages action to proceed, 26 Egbert, 142 S. Ct. at 1797–98, therefor, steps one and two will “often resolve to a single 27 question: whether there is any reason to think that Congress might be better equipped to 28 create a damages remedy,” id. at 1803 (quoting Ziglar v. Abbasi, 582 U.S. 120, 136-138 1 (2017). “‘[E]ven a single sound reason to defer to Congress is enough to require a court to 2 refrain from creating such a remedy.” Id. (quoting Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931, 3 1937 (2021) (plurality opinion). Given the clarifications provided in Egbert, the Court 4 concludes, it lacks jurisdiction under Bivens over this action. The case is dismissed for lack 5 of subject matter jurisdiction for the reasons explained below. 6 THE BIVENS QUESTION 7 In Bivens, the Supreme Court adopted an “implied cause of action theory” 8 permitting the petitioner to seek damages from federal officers for an unreasonable search 9 and seizure in his home. The Court held: “the Fourth Amendment does not in so many 10 words provide for its enforcement by an award of money damages for the consequences of 11 its violation. But it is well settled that where legal rights have been invaded, and a federal 12 statute provides for a general right to sue for such invasion, federal courts may use any 13 available remedy to make good the wrong done.” Bivens, 403 U.S. at 396. Since then, the 14 Supreme Court has recognized two other contexts for a Bivens action: Davis v. Passman, 15 442 U.S. 228 (1979) was a due process claim under the Fifth Amendment against a 16 Congressman for alleged employment discrimination on the basis of gender and Carlson 17 v. Green, 446 U.S. 14 (1980) was an Eighth Amendment claim for cruel and unusual 18 punishment against federal jailers for failing to treat a prisoner's severe asthma. 19 “These three cases—Bivens, Davis, and Carlson—represent the only instances in 20 which the Court has approved of an implied damages remedy under the Constitution itself.” 21 Ziglar v. Abbasi, 582 U.S. 120 (2017). But See (Screening Order (Doc. 13) at 7 (relying on 22 Farmer v. Brennan, 511 U.S. 825 (1994) holding prison officials liable for allegedly failing 23 to protect prisoner under Bivens for allegedly violating the Eighth Amendment); see e.g., 24 Garraway v. Ciufo, No. 1:17-cv-00533-ADA-GSA (PC), 2023 WL 1446823, at *2–4 (E.D. 25 Cal. Feb. 1, 2023) (distinguishing Egbert, relying on Farmer, finding jurisdiction under 26 Bivens where defendants left two inmates in same cell when one requested to be moved 27 after being attacked by the other—claim did not arise in a new Bivens context when 28 compared to the claim in Farmer where defendants placed plaintiff in the general 1 population despite knowing she, as a transgender woman, would be particularly vulnerable 2 to sexual attack). 3 Since Carlson, there has been a “notable change in the Court's approach to 4 recognizing implied causes of action,” Abbasi, 582 U.S. at 135, with the Court growing 5 increasingly reluctant to recognize any new Bivens claims. In Egbert, the Court restated its 6 recognition in Abbasi that “if [it] were called to decide Bivens today, [it] would decline to 7 discover any implied causes of action in the Constitution.” Egbert, 142 S. Ct. at 1809 8 (citing Abbasi, 582 U. S., at 132)). However, neither Egbert nor Abbasi, expressly 9 overruled Bivens, and it remains “settled law” and “a fixed principle in the law,” in the 10 search-and-seizure context, with the caveat that “expanding the Bivens remedy is now a 11 ‘disfavored’ judicial activity.” Egbert, 142 S. Ct. at 1809 (relying on Abbasi, 136 S.Ct at 12 1857, 1858). 13 When Defendant filed the Motion for Judgment on the Pleadings, it relied on Egbert 14 and referenced an unpublished opinion2 from the Ninth Circuit suggesting this Court lacks 15 jurisdiction under Bivens over Plaintiff’s action. Since then, the Ninth Circuit has weighed 16 in regarding Bivens jurisdiction and Egbert. On March 2, 2023, the Ninth Circuit Court of 17 Appeals issued Mejia v. Miller, 61 F.4th 663 (2023). 18 Following Mejia, this Court first determines whether the Bivens claim arose in a 19 “new context,” meaning it is “different in a meaningful way from previous Bivens cases.” 20 The Supreme Court has given some non-exclusive examples, such as: “the rank of the 21 officers involved; the constitutional right at issue; the generality or specificity of the official 22 action; the extent of judicial guidance as to how an officer should respond to the problem 23 or emergency to be confronted; the statutory or other legal mandate under which the officer 24 was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other 25 branches; or the presence of potential special factors that previous Bivens cases did not 26 consider.” Mejia, 61 F.4th at 666-667 (citing Abbasi, 137 S. Ct. at 1859–60) (emphasis 27 added). 28 2 Hoffman v. Preston, No. CA 20-15396, 2022 WL 6685254 (9th Cir., October 11, 2022). 1 As noted by Plaintiff, one of the three Bivens cases, Carlson, is quite similar to 2 Plaintiff’s case. In Carlson, the plaintiff was “an inmate in Federal custody; the complaint 3 asserted [he] suffered from a serious medical threat of physical harm, [his] Bivens claim 4 was based on the 8th amendment; the Federal Corrections Staff failed to take appropriate 5 actions when they were apprised of the serious threat of physical harm; [defendants] were 6 deliberately indifferent to plaintiff’s serious medical needs, and the acts and omissions of 7 the [defendants] caused plaintiff injury.” (Response (Doc. 68) at 4.) In comparison, the 8 “Plaintiff is an inmate in Federal custody; [he] suffered from a serious threat of physical 9 harm; [his] Bivens claim is based on the 8th amendment; the Federal Corrections Staff failed 10 to take appropriate actions when they were apprised of the serious threat of physical harm; 11 [Defendants] were deliberately indifferent to Plaintiff’s serious physical security needs, 12 and the acts and omissions of the [Defendants] have caused Plaintiff injury.” Id. at 5. 13 There is one obvious difference, which is that Carlson involved a serious threat 14 related to the medical needs of the plaintiff, and the serious threat in this case relates to 15 Plaintiff’s needs for security and safety. In accordance with Plaintiff’s argument, the Court 16 in its screening Order, relying on Farmer, found this difference was not meaningfully 17 significant. Under Egbert, however, it is especially significant that there are different 18 constitutional rights at issue between cases, such as here where Plaintiff seeks Eighth 19 Amendment protection for alleged violations of deliberate indifference to his personal 20 safety rather than any medical concern. 21 The Court must consider the differences in penological concerns, different 22 procedures, and different policies for differing emergencies: medical versus physical safety 23 issues. 24 This Court is directed to consider the risk of disruptive intrusion by the Judiciary 25 into the functioning of another branch of the government, here, the Bureau of Prisons 26 (BOP), and the presence of potential special factors that previous Bivens cases, here 27 Carlson, did not consider.” Mejia, 61 F.4th at 666-667 (citing Abbasi, 137 S. Ct. at 1859– 28 60)). Carlson did not consider the disruptive nature judicial involvement would pose to the 1 systemwide penological operations of the federal prisons and the mandate to the BOP to 2 maintain its order and security. Likewise, the Court must consider whether there are special 3 factors that Carlson did not consider. In Mejia, the court noted that the Supreme Court in 4 Egbert reversed and held that “similar allegations of excessive force,” “almost parallel 5 circumstances,” or a “similar ‘mechanism of injury’” as Bivens “are not enough to support 6 the judicial creation of a cause of action.” Mejia, 61 F.4th at 668 (citing Egbert, 142 S. Ct. 7 at 1805). Applying Egbert, the court in Mejia considered two independent special factors 8 as reasons for rejecting the Bivens claim: First, courts are not better suited than Congress 9 to weigh creating a cause of action that involves national security concerns, and second, 10 alternative remedies were available. Id. (citing Egbert, 142 S.Ct. at 1806–07). Neither of 11 these special factors were considered in Carlson or Farmers, therefore, under the first step 12 in the Bivens analysis, this case arises in a “new context.” Concluding that this case is 13 “different in a meaningful way from previous Bivens cases, Carlson and Farmers, brings 14 the Court full circle. 15 As noted above, after Egbert, the two-step analysis “‘often resolve[s] to a single 16 question: whether there is any reason to think that Congress might be better equipped to 17 create a damages remedy.’” Id. at 667 (quoting Egbert, 142 S.Ct. at 1803). “‘[A]ny rational 18 reason ... to think that Congress is better suited to weigh the costs and benefits” is enough 19 to preclude extending Bivens.’” Id. (quoting Egbert, 142 S.Ct. at 1805). “‘If there are 20 alternative remedial structures... that alone ... is reason enough to ... [not] infer a new Bivens 21 cause of action.’” Id. (quoting Egbert, 142 S. Ct. at 1804). 22 In short, the Court answers the question affirmatively as to whether there is any 23 rational reason (even one) to think that Congress is better suited to weigh the costs and 24 benefits of allowing a damages action to proceed if “Congress has provided alternative 25 remedies for aggrieved parties in [the] plaintiff’s] position.” Egbert, 142 S. Ct. at 1806. 26 “So long as Congress or the Executive has created a remedial process that it finds sufficient 27 to secure an adequate level of deterrence, the courts cannot second-guess that calibration 28 by superimposing a Bivens remedy.” Id. at 1807. The BOP’s Administrative Remedy 1 || Program qualifies as an alternative remedy. See Correctional Services Corp. v. Malesko, 2|| 534 U.S. 61, 74 (2001) (inmates have access to remedial mechanisms established by BOP 3|| for filing inmate grievances). Congress has not authorized a damage remedy, leaving only 4|| the BOP’s formal review process for inmate complaints. This Court may not second guess 5 || the propriety of this choice. 6 “(UJnder Egbert ‘in all but the most unusual circumstances, prescribing a cause of 7|| action is a job for Congress, not the courts.’” Mejia, 61 F.4™ at 669 (quoting Egbert, 142 || S.Ct. at 1800)). This is not the rare case, excepted from the rule that expanding Bivens is 9|| now a disfavored judicial activity. 10 Accordingly, 11 IT IS ORDERED that the appointment of Stephanie K. Bond is withdrawn, and the || Plaintiff shall proceed pro se. 13 IT IS FURTHER ORDERED that the Motion to Stay Pending Appeal (Doc. 63) is DENIED. 15 IT IS FURTHER ORDERED that the Motion for Judgment on the Pleadings (Doc. 47) is GRANTED. 17 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment, 18 || accordingly, and close this case. 19 Dated this 28th day of April, 2023. 20 21 S= Honorabje David C. But 24 United StatesPistrict Judge 25 26 27 28 -8-