(PC) Carthen v. Scott

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UNITED STATES DISTRICT COURT

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8 EASTERN DISTRICT OF CALIFORNIA

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TREMANE DARNELL CARTHEN, Case No. 1:19-cv-00227-ADA-EPG (PC)

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Plaintiff, FINDINGS AND RECOMMENDATIONS

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RECOMMENDING THAT DEFENDANTS’

12 v. MOTION TO DISMISS BE GRANTED

13 P. SCOTT, et al., (ECF No. 54)

14 Defendants. OBJECTIONS, IF ANY, DUE WITHIN

TWENTY-ONE DAYS

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17 I. INTRODUCTION

18 Tremane Carthen (“Plaintiff”) is a federal prisoner proceeding pro se and in forma

19 pauperis with this civil rights action. This case is proceeding on Plaintiff’s Eighth Amendment

20 sexual assault/harassment claims against defendants Scott, Perez, Bradley, and Lodge and on

21 Plaintiff’s Fourth Amendment unreasonable search claims against defendants Scott, Perez,

22 Bradley, and Lodge. (ECF No. 39).1 Plaintiff’s claims are proceeding based on allegations that

23 Defendants engaged in offensive and inappropriate search procedures. (ECF No. 38).

24 On May 18, 2022, Defendants filed a motion to dismiss. (ECF No. 54). On June 13,

25 2022, Plaintiff filed an opposition to the motion. (ECF No. 62). On July 5, 2022, Defendants

26 filed their reply. (ECF No. 66). On July 12, 2022, the Court allowed Plaintiff to file a sur-

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1 reply to address Defendants’ arguments related to Egbert v. Boule, 142 S. Ct. 1793 (2022).

2 (ECF No. 68). On July 18, 2022, Plaintiff filed a second opposition. (ECF No. 70). On July

3 29, 2022, Defendants filed an objection to Plaintiff’s second opposition. (ECF No. 75). On

4 August 15, 2022, Plaintiff filed the sur-reply authorized by the Court. (ECF No. 79). Plaintiff

5 did not respond to Defendants’ objection to his second opposition.

6 Defendants’ motion to dismiss is now before the Court. For the reasons that follow, and

7 in light of recent case authority from the United States Supreme Court, the Court will

8 recommend that Defendants’ motion to dismiss be granted because Plaintiff’s claims arise in a

9 new context and there is at least one special factor indicating that the Judiciary is at least

10 arguably less equipped than Congress to weigh the costs and benefits of allowing Bivens

11 damages actions to proceed.2

12 As to Defendants’ objection to Plaintiff’s second opposition, the Court will recommend

13 that it be overruled as moot. The Court has reviewed the second opposition, and it does not

14 change the result.

15 II. CLAIMS AT ISSUE

16 a. Summary of Plaintiff’s Complaint

17 Plaintiff alleges as follows in his First Amended Complaint:

18 On February 5, 2018, defendant Bradley asked Plaintiff to step out of his cell at United

19 States Penitentiary, Atwater, and informed Plaintiff that he was going to conduct a pat search.

20 Plaintiff complied and placed his hands on the wall. Defendant Bradley stuck his hands down

21 the front of Plaintiff’s pants and rubbed his fingers across Plaintiff’s penis in a slow sensual

22 manner, with his fingertips curled around the side of Plaintiff’s penis. While defendant Bradley

23 did this, he whispered into Plaintiff’s ear something to the effect that he “imagined [Plaintiff]

24 would feel different.” Plaintiff immediately pulled defendant Bradley’s hands out of his pants

25 and told defendant Bradley never to stick his hands down his pants again. Plaintiff felt

26 humiliated and degraded.

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2 Given this, the Court will not address Defendants’ other arguments as to why this case should be

1 On July 14, 2018, Plaintiff was stopped by defendant Perez for a pat search when

2 Plaintiff exited the dining hall after lunch. Defendant Perez dragged his hands on the inside of

3 Plaintiff’s thighs in a tender fashion until he felt Plaintiff’s testicles. While standing behind

4 Plaintiff and feeling his testicles, defendant Perez cupped his hand around the testicles,

5 squeezed them enough to startle Plaintiff, and told Plaintiff he “should get some alone time and

6 take a load off.” Plaintiff told defendant Perez to never touch Plaintiff in that area again.

7 Defendant Perez requested that Plaintiff submit to a visual strip search, while smiling and

8 licking his lips at Plaintiff as he turned to escort Plaintiff to a holding tank with defendant

9 Scott.

10 After Plaintiff refused to strip, defendant Scott grabbed Plaintiff’s shirt and proceeded

11 to forcefully remove Plaintiff’s clothing. During the encounter Plaintiff tried to tell defendant

12 Scott about defendant Perez’s comments and groping of his testicles. Defendant Scott ignored

13 Plaintiff and stated things to the effect of “I don’t care or believe you,” and “I trust my

14 Officer.”

15 On September 19, 2018, Plaintiff was placed in the Special Housing Unit, under

16 investigation for a Prison Rape Elimination Act complaint he filed against defendant Lodge.

17 Defendant Lodge pulled Plaintiff over on the sidewalk in front of Building #3B and asked to

18 search Plaintiff. Plaintiff complied and raised his arms above his head. Defendant Lodge

19 reached inside the front of Plaintiff’s pants, squeezed his penis with his whole hand, and tugged

20 on it softly without releasing it from his grasp. While doing this, he stated something to the

21 effect of “it’s a myth about you all being hung lower than whites, you know that don’t you?”

22 Plaintiff immediately removed defendant Lodge’s hands from his pants and told defendant

23 Lodge to never place his hands down Plaintiff’s pants again. Defendant Lodge then escorted

24 Plaintiff to a holding tank and asked to do a visual strip search. Plaintiff complied after a

25 heated exchange of words, and while Plaintiff was standing naked, defendant Lodge stated

26 something along the lines of “I’ve even heard women say you all don’t even get hard and stay

27 mushy like a sponge.” Plaintiff felt degraded and humiliated.

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1 b. Screening Order

2 The Court screened Plaintiff’s complaint and allowed this action to proceed on

3 Plaintiff’s Eighth Amendment sexual assault/harassment claims against defendants Scott,

4 Perez, Bradley, and Lodge and on Plaintiff’s Fourth Amendment unreasonable search claims

5 against defendants Scott, Perez, Bradley, and Lodge. (ECF No. 39). Plaintiff did not bring any

6 other claims. (See ECF Nos. 38 & 39).

7 III. MOTION TO DISMISS

8 a. Defendants’ Motion

9 On May 18, 2022, Defendants filed a motion to dismiss on three grounds: 1) “[U]nder

10 the two-step analysis set forth in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), this Court cannot

11 create an individual damages remedy in this new context;” 2) The complaint fails to state a

12 claim; and 3) Defendants are entitled to qualified immunity. (ECF No. 54, p. 1).

13 As to Defendants’ first argument, that this Court cannot create an individual damages

14 remedy in this new context, Defendants argue that, “[t]o determine whether a Bivens action can

15 proceed, the Court must follow the two-step inquiry set out in Ziglar v. Abbasi, 137 S. Ct. 1843

16 (2017).” (ECF No. 54-1, p. 3). “First, the Court must ask whether the claim arises in a context

17 that is different in a meaningful way from previous Bivens cases decided by the Supreme Court.

18 If meaningful differences exist, then the Court must ask whether there are special factors

19 counselling hesitation in the absence of affirmative action by Congress.” (Id. at 3-4) (citations

20 and internal quotation marks omitted).

21 As to the first step, Defendants argue that this case arises in a new context because

22 Plaintiff’s claims differ from the Bivens claims that have been previously recognized by the

23 Supreme Court. (Id. at 4-6).

24 As to the second step, Defendants argue that there are special factors counseling

25 hesitation: 1) “Congress has legislated actively with respect to sexual assault against prisoners

26 specifically and prisoner litigation generally, but at no point has Congress created an individual

27 cause of action against prison guards;” 2) Alternative remedies are available, including the

28 Prison Rape Elimination Act and the Bureau of Prisons’ administrative remedy program; 3)

1 Creating a new cause of action in this context would “constitute unwarranted judicial

2 interference in daily prison administration and security management;” and 4) Creating a new

3 cause of action in the context of pat-down searches would have a negative effect on

4 government operations. (Id. at 6-10).

5 b. Plaintiff’s Oppositions

6 i. Plaintiff’s First Opposition

7 Plaintiff filed his first opposition on June 13, 2022. (ECF No. 62).

8 Plaintiff argues that his complaint does not fail to state a claim (id. at 7-9 & 19-20) and

9 appears to argue that Defendants are not entitled to qualified immunity (id. at 9-10 & 21).

10 As to Defendants’ arguments regarding Abbasi, Plaintiff argues that the Supreme Court

11 has held that federal courts may award damages against federal employees for violations of the

12 Constitution, even in the absence of a statute conferring such a right. (Id. at 4). After the

13 Supreme Court first recognized Bivens actions, “courts have allowed Bivens actions generally

14 for prisoners’ constitutional claims against federal prison personnel.” (Id.). Plaintiff also

15 appears to argue that there are no special factors counseling hesitation before recognizing a

16 Bivens remedy. (Id. at 5-6).

17 ii. Plaintiff’s Second Opposition

18 On July 18, 2022, Plaintiff filed his second opposition. (ECF No. 70).

19 Plaintiff once again argues that his complaint does not fail to state a claim (id. at 8-11)

20 and that Defendants are not entitled to qualified immunity (id. at 11-12).

21 As to Defendants’ arguments regarding Abbasi, Plaintiff once again argues that the

22 Supreme Court has held that federal courts may award damages against federal employees for

23 violations of the Constitution, even in the absence of a statute conferring such a right. (Id. at 4-

24 5). Plaintiff also argues that his claims do not arise in a new context. (Id. at 6-7). Plaintiff

25 points to Reid v. United States (ECF No. 70, p. 6), which held that, “[i]n Carlson, the Supreme

26 Court recognized an Eighth Amendment Bivens claim based on prisoner mistreatment. A claim

27 for damages based on individualized mistreatment by rank-and-file federal officers is exactly

28 what Bivens was meant to address. Continuing to recognize Eighth Amendment Bivens claims

1 post-Abbasi will not require courts to plow new ground because there is extensive case law

2 establishing conditions of confinement claims and the standard for circumstances that

3 constitute cruel and unusual punishment.” 825 F. App’x 442, 444-45 (9th Cir. 2020) (citations

4 omitted). Plaintiff also argues that Bivens itself concerned a Fourth Amendment claim, and

5 that Davis v. Passman, 442 U.S. 228 (1979), involved a Fifth Amendment sexual harassment

6 claim that is similar to Plaintiff’s claims. (ECF No. 70, pgs. 6-7).

7 As to the special factors analysis, Plaintiff concedes that Congress legislated actively

8 with respect to sexual assault against prisoners, and that he filed several PREA complaints

9 against the officers involved. (Id. at 7). However, Plaintiff argues that “at no point has

10 Congress created an individual cause of action against prison guards, which is something that

11 has to and needs to change for the safety and protection of prisoner’s human rights.” (Id.).

12 Plaintiff argues that “[t]he Court should take the step that Congress has declined to take, due to

13 the fact that Congress has passed legislation to prevent sexual abuse of prisoners, but declined

14 to include an individual cause of action against prison guards in that legislation….” (Id.).

15 Plaintiff argues that the fact that Congress declined to include an individual cause of action in

16 PREA does not counsel hesitation in creating a judicial remedy. (Id. at 8). Plaintiff also argues

17 that the fact that Defendants are prison officials is not a special factor that counsels hesitation.

18 (Id.).

19 c. Defendants’ Reply

20 On July 5, 2022, Defendants filed their reply to Plaintiff’s first opposition. (ECF No.

21 66). In their reply, Defendants argue, among other things, the decision in Egbert v. Boule, 142

22 S. Ct. 1793 (2022), which was issued after Defendants filed their motion to dismiss, made clear

23 that the Court should not create new Bivens causes of action in this case. (ECF No. 66, pgs. 1-

24 4).

25 d. Plaintiff’s Sur-Reply

26 The Court gave Plaintiff permission “to file a sur-reply that addresses only the

27 arguments in Defendants’ reply related to Egbert v. Boule….” (ECF No. 68, p. 2). Plaintiff

28 filed his sur-reply on August 15, 2022. (ECF No. 79). Plaintiff argues that Egbert does not

1 apply because his claims do not arise in a new context. (Id. at 1-2). Additionally, Egbert

2 involved issues with the border, and was a national security case. (Id. at 2). Additionally, the

3 plaintiff in Egbert had several potential remedies. (Id.). Plaintiff also cites to numerous cases

4 decided before Egbert in support of his argument that that his claims should be allowed to

5 proceed. (Id. at 3-8).

6 Plaintiff also includes arguments that he made in his second opposition, as well as

7 arguments that are not related to the arguments concerning Egbert v. Boule in Defendants’

8 reply.

9 IV. LEGAL STANDARDS FOR A MOTION TO DISMISS

10 In considering a motion to dismiss, the Court must accept all allegations of material fact

11 in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007); Hosp. Bldg. Co. v.

12 Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The Court must also construe the alleged facts

13 in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

14 abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Barnett v. Centoni,

15 31 F.3d 813, 816 (9th Cir.1994) (per curiam). All ambiguities or doubts must also be resolved

16 in the plaintiff’s favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In addition, pro

17 se pleadings “must be held to less stringent standards than formal pleadings drafted by

18 lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints

19 should continue to be liberally construed after Ashcroft v. Iqbal, 556 U.S. 662 (2009)).

20 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the

21 complaint. See Iqbal, 556 U.S. at 679. “Federal Rule of Civil Procedure 8(a)(2) requires only

22 ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order

23 to ‘give the defendant fair notice of what the … claim is and the grounds upon which it rests.’”

24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting

25 Conley v. Gibson, 355 U.S. 41, 47 (1957)). “The issue is not whether a plaintiff will ultimately

26 prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer,

27 416 U.S. at 236 (1974).

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1 V. DISCUSSION

2 In the recent case of Egbert v. Boule, 142 S. Ct. 1793, the United States Supreme Court

3 explained the following steps for evaluating a constitutional claim for damages against a

4 federal official: “To inform a court’s analysis of a proposed Bivens claim, [The Supreme

5 Court’s] cases have framed the inquiry as proceeding in two steps. First, we ask whether the

6 case presents a new Bivens context—i.e., is it meaningful[ly] different from the three cases in

7 which the [Supreme] Court has implied a damages action. Second, if a claim arises in a new

8 context, a Bivens remedy is unavailable if there are special factors indicating that the Judiciary

9 is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a

10 damages action to proceed. If there is even a single reason to pause before applying Bivens in a

11 new context, a court may not recognize a Bivens remedy.” Egbert, 142 S. Ct. at 1803

12 (alteration in original) (citations and internal quotation marks omitted). These steps “often

13 resolve to a single question: whether there is any reason to think that Congress might be better

14 equipped to create a damages remedy.” (Id.) (internal quotation marks omitted).

15 The issue before the Court is thus whether Plaintiff’s claims involve a new context, and

16 if so, whether there are special factors indicating that the Judiciary is at least arguably less

17 equipped than Congress to weigh the costs and benefits of allowing a damages action to

18 proceed. For the reasons that follow, the Court finds that Plaintiff’s claims involve a new

19 context and that there is at least one special factor indicating that the Judiciary is at least

20 arguably less equipped than Congress to weigh the costs and benefits of allowing damages

21 actions to proceed. Accordingly, the Court will recommend that Defendants’ motion to dismiss

22 be granted.

23 a. New Context

24 i. Legal Standards

25 A case presents a new context if it “is different in a meaningful way from previous

26 Bivens cases decided by [the Supreme] Court.” Abbasi, 137 S. Ct. at 1859. The Supreme Court

27 has declined “to create an exhaustive list of differences that are meaningful enough to make a

28 given context a new one,” id. at 1859-60, but provided the following instructive examples:

1 A case might differ in a meaningful way because of the rank of

the officers involved; the constitutional right at issue; the

2 generality or specificity of the official action; the extent of

judicial guidance as to how an officer should respond to the

3 problem or emergency to be confronted; the statutory or other

legal mandate under which the officer was operating; the risk of

4 disruptive intrusion by the Judiciary into the functioning of other

branches; or the presence of potential special factors that

5 previous Bivens cases did not consider.

6 Abbasi, 137 S. Ct. at 1860.

7 As to the three cases that the Supreme Court has allowed to proceed under Bivens, the

8 Supreme Court has summarized those three cases:

9 In Bivens v. Six Unknown Fed. Narcotics Agents, the Court broke new ground by

holding that a person claiming to be the victim of an unlawful arrest and search could

10 bring a Fourth Amendment claim for damages against the responsible agents even

though no federal statute authorized such a claim. The Court subsequently

11 extended Bivens to cover two additional constitutional claims: in Davis v. Passman,

a former congressional staffer’s Fifth Amendment claim of dismissal based on sex,

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and in Carlson v. Green, a federal prisoner’s Eighth Amendment claim for failure to

13 provide adequate medical treatment.

14 Hernandez v. Mesa, 140 S. Ct. 735, 741 (2020) (citations shortened).

15 ii. Analysis

16 This case is proceeding on Plaintiff’s Eighth Amendment sexual assault/harassment

17 claims against prison officials and on Plaintiff’s Fourth Amendment unreasonable search

18 claims against prison officials. Plaintiff’s claims are proceeding based on allegations that

19 Defendants engaged in offensive and inappropriate search procedures.

20 These claims have some similarity to the claims the Supreme Court has allowed to

21 proceed under Bivens. Bivens itself involved a Fourth Amendment unreasonable search claim,

22 and Carlson involved a prisoner’s Eighth Amendment claim. However, there are differences,

23 and because of these differences, Plaintiff’s claims arise in a new context.

24 Bivens involved a Fourth Amendment claim against agents of the Federal Bureau of

25 Narcotics. Bivens, 403 U.S. at 389. The claims involved a search of Plaintiff’s apartment,

26 unlawful arrest, and excessive force. Here, Plaintiff is suing prison officials for a search that

27 occurred in prison. This difference is important because, while prisoners retain Fourth

28 Amendment rights, their Fourth Amendment rights are more limited. See, e.g., Bell v. Wolfish,

1 441 U.S. 520, 559 (noting that “[a] detention facility is a unique place fraught with serious

2 security dangers,” and after “[b]alancing the significant and legitimate security interests of the

3 institution against the privacy interests of the inmates,” finding that, at least in certain

4 situations, visual body-cavity inspections can be conducted on less than probable cause);

5 Michenfelder v. Sumner, 860 F.2d 328, 333–34 (9th Cir. 1988) (“We recognize that

6 incarcerated prisoners retain a limited right to bodily privacy…. Grummett v. Rushen, 779 F.2d

7 491, 494 (9th Cir.1985); see also Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982)

8 (‘Although the inmates’ right to privacy must yield to the penal institution’s need to maintain

9 security, it does not vanish altogether.’).”) (emphasis added) (footnote omitted).

10 As another example as to why the differences matter, in Egbert, the plaintiff brought a

11 Fourth Amendment excessive force claim against Egbert, a U.S. Border Patrol Agent. 142 S.

12 Ct. at 1800. Plaintiff alleged that Egbert threw him against a vehicle and then threw him to the

13 ground. Even though the case involved a Fourth Amendment excessive force claim just like in

14 Bivens, the Supreme Court found that no Bivens remedy was available. Egbert, 142 S. Ct. at

15 1805 (“While Bivens and this case do involve similar allegations of excessive force and thus

16 arguably present almost parallel circumstances or a similar mechanism of injury, these

17 superficial similarities are not enough to support the judicial creation of a cause of action….

18 [T]he Judiciary is comparatively ill suited to decide whether a damages remedy against any

19 Border Patrol agent is appropriate”). See also Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)

20 (“A claim may arise in a new context even if it is based on the same constitutional provision as

21 a claim in a case in which a damages remedy was previously recognized.”).

22 Thus, even though Plaintiff’s Fourth Amendment claims have some parallels to a claim

23 in Bivens, they arise in a new context. Ziglar, 137 S. Ct. at 1865 (“The differences between

24 this claim and the one in Carlson are perhaps small, at least in practical terms. Given [the

25 Supreme] Court’s expressed caution about extending the Bivens remedy, however, the new-

26 context inquiry is easily satisfied.”).

27 Plaintiff’s Eighth Amendment claims involve a new context for similar reasons. While

28 both Carlson and this case involve the Eighth Amendment and federal prison officials, Carlson

1 involved a claim for inadequate medical care. Here, Plaintiff’s Eighth Amendment claim is

2 based on conduct that occurred during searches. As Plaintiff’s Eighth Amendment sexual

3 harassment/sexual assault claims involve entirely different conduct than the conduct in Carlson,

4 Plaintiff’s Eighth Amendment claims also arise in a new context. See also Smith v. Kendryna,

5 2021 WL 1425273, at *2 (E.D. Cal. Apr. 15, 2021), report and recommendation adopted, 2021

6 WL 2227268 (E.D. Cal. June 2, 2021) (holding that a prisoner’s sexual harassment claim

7 presented a new context); Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019)

8 (“Schwarz’s Eighth Amendment claim regarding unsanitary cell conditions presents a new

9 Bivens context because Schwarz does not allege a failure to treat a serious medical condition,

10 which was the issue in Carlson, 446 U.S. at 16, 100 S.Ct. 1468.”); Ziglar, 137 S. Ct. at 1865

11 (“Given [the Supreme] Court’s expressed caution about extending the Bivens remedy … the

12 new-context inquiry is easily satisfied.”).

13 Plaintiff’s arguments to the contrary are not persuasive. Plaintiff argues that his sexual

14 harassment/sexual assault claims do not arise in a new context because Davis involved a sexual

15 harassment claim. However, Plaintiff is incorrect. Davis involved a suit for gender

16 discrimination, not sexual harassment. Davis, 442 U.S. at 231 (“Davis brought suit in the

17 United States District Court for the Western District of Louisiana, alleging that Passman’s

18 conduct discriminated against her on the basis of sex in violation of the United States

19 Constitution and the Fifth Amendment thereto.”) (citation and internal quotation marks

20 omitted). Thus, Plaintiff’s claims are not the same as the claim the Supreme Court recognized

21 in Davis.

22 As for Plaintiff’s argument based on Reid v. United States, Plaintiff is correct that in

23 Reid the Ninth Circuit held that “[a] claim for damages based on individualized mistreatment

24 by rank-and-file federal officers is exactly what Bivens was meant to address. Continuing to

25 recognize Eighth Amendment Bivens claims post-Abbasi will not require courts to plow new

26 ground because there is extensive case law establishing conditions of confinement claims and

27 the standard for circumstances that constitute cruel and unusual punishment.” 825 F. App’x at

28 444-45 (citation omitted). However, Reid was not published and is thus not binding on this

1 Court. Additionally, Reid was decided before Egbert, and the Supreme Court in Egbert found

2 that a Bivens remedy was not available, even though Egbert involved individualized

3 mistreatment by a rank-and-file federal officer. Finally, the Court in Egbert found that “a

4 plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens,

5 Passman, or Carlson unless he also satisfies the ‘analytic framework’ prescribed by the last

6 four decades of intervening case law,” and that “in most every case” the Court should defer to

7 Congress and find that “no Bivens action may lie.” Egbert, 142 S. Ct. at 1803, 1809.

8 Accordingly, the Court does not find Reid persuasive.

9 Therefore, based on the foregoing, the Court finds that Plaintiff’s claims arise in a new

10 context.

11 b. Special Factors Analysis

12 i. Legal Standards

13 Once the Court finds that claims arise in a new context, the Court must apply a “special

14 factors” analysis to determine whether “special factors counsel hesitation” in expanding Bivens

15 to the action. Abbasi, 137 S. Ct. at 1857, 1875. In this analysis, the Court looks to “whether

16 there is any rational reason (even one) to think that Congress is better suited to weigh the costs

17 and benefits of allowing a damages action to proceed.” Egbert, 142 S. Ct. at 1805 (citation and

18 internal quotation marks omitted).3 “[I]n most every case” the Court should defer to Congress

19 and find that “no Bivens action may lie.” Id. at 1803.

20 “If there are alternative remedial structures in place, that alone, like any special factor,

21 is reason enough to limit the power of the Judiciary to infer a new Bivens cause of action.” Id.

22 at 1804 (citations and internal quotation marks omitted).

23 ii. Analysis

24 The Court finds that there is at least one special factor indicating that the Judiciary is at

25 least arguably less equipped than Congress to weigh the costs and benefits of allowing damages

26 actions to proceed, and Plaintiff’s arguments to the contrary are not persuasive.

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3 The Court notes that Egbert changed the relevant inquiry. Mejia v. Miller, 53 F.4th 501, 505 (9th Cir.

1 Most of Plaintiff’s claims rely on allegations that he was sexually harassed/sexually

2 assaulted during searches. Congress has legislated actively in this area4 and created an

3 alternative remedial structure by enacting the Prison Rape Elimination Act (“PREA”).

4 The definition of sexual abuse in PREA includes “sexual fondling of a person, forcibly

5 or against the person’s will.” 34 U.S.C. § 30309(9)(A). Sexual fondling is defined as “the

6 touching of the private body parts of another person (including the genitalia, anus, groin, breast,

7 inner thigh, or buttocks) for the purpose of sexual gratification.” 34 U.S.C.A. § 30309(11).

8 Additionally, PREA regulations define sexual abuse to include “[a]ny other intentional contact,

9 either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh,

10 or the buttocks, that is unrelated to official duties or where the staff member, contractor, or

11 volunteer has the intent to abuse, arouse, or gratify sexual desire.” 28 C.F.R. § 115.6.

12 Additionally, PREA was enacted, at least in part, to address concerns regarding

13 violations of the Eighth Amendment. 34 U.S.C. § 30301(13). Further, PREA includes a

14 remedial structure. This includes providing inmates access to confidential support services, 28

15 C.F.R. § 115.53, specifications for investigating allegations of sexual abuse and reporting the

16 findings to the reporting inmate, C.F.R. § 115.71 & 115.73, and disciplinary sanctions for staff

17 for violating sexual abuse or sexual harassment policies, C.F.R. § 115.76.

18 Thus, PREA provides an alternative remedial structure as to most of Plaintiff’s claims.

19 Moreover, as to all of Plaintiff’s claims, the Bureau of Prisons’ administrative remedy

20 program provides an alternative remedial structure. Corr. Servs. Corp. v. Malesko, 534 U.S.

21 61, 74, (2001) (“Inmates in respondent’s position also have full access to remedial mechanisms

22 established by the BOP, including … grievances filed through the BOP’s Administrative

23 Remedy Program (ARP). See 28 CFR § 542.10 (2001) (explaining ARP as providing ‘a

24 process through which inmates may seek formal review of an issue which relates to any aspect

25 of their confinement’).”); Egbert, 142 S. Ct. at 1806 (“In Malesko, we explained that Bivens

26 relief was unavailable because federal prisoners could, among other options, file grievances

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4 The parties agree that Congress has legislated actively in this area. (ECF No. 54-1, p. 6; ECF No. 70, p.

1 through an Administrative Remedy Program.”) (internal quotation marks omitted); Hoffman v.

2 Preston, 2022 WL 6685254, at *1 (9th Cir. Oct. 11, 2022) (“Hoffman’s complaint alleges that a

3 prison correctional officer intentionally created the risk that another prisoner would assault

4 Hoffman by publicly labeling him as a snitch and offering prisoners rewards. The Supreme

5 Court’s decision in Egbert v. Boule precludes recognizing a Bivens remedy for these

6 allegations. Congress has not authorized a damages remedy in this context, and there are

7 ‘rational reason[s],’ Egbert, 142 S. Ct. at 1803, why it might not, for example, the existence of

8 the Bureau of Prisons’ formal review process for inmate complaints.”) (alteration in original).

9 While neither PREA nor the Bureau of Prisons’ administrative remedy program provide

10 Plaintiff with complete relief,5 the question before the Court is not whether existing remedies

11 provide complete relief. Egbert, 142 S. Ct. 1793, 1804. “Rather, the court must ask only

12 whether it, rather than the political branches, is better equipped to decide whether existing

13 remedies should be augmented by the creation of a new judicial remedy.” Id. (citations and

14 internal quotation marks omitted). And, as discussed above, the existence of these alternative

15 remedial structures is a rational reason why Congress has not authorized a damages remedy for

16 Plaintiff’s claims.

17 Most of Plaintiff’s arguments are addressed above, and the remainder of his arguments

18 are not persuasive. While Plaintiff is correct that Egbert involved a border patrol agent, as

19 discussed above, Egbert also laid out standards to apply in determining whether the Court

20 should recognize new Bivens actions, and under those standards, Plaintiff’s claims should not

21 be allowed to proceed. Additionally, the fact that Boule had several potential remedies

22 available does not change the analysis. As discussed above, the availability of an

23 administrative remedy program is a special factor indicating that the Judiciary is at least

24 arguably less equipped than Congress to weigh the costs and benefits of allowing a damages

25 action to proceed on Plaintiff’s claims, even if that remedy cannot provide complete relief.

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5 PREA does not create a private right of action. Hardney v. Moncus, 2016 WL 7474908, at *3 (E.D.

28 Cal. Dec. 28, 2016); Khouanmany v. United States Marshals, 2019 WL 1400103, at *3 (E.D. Cal. Mar. 28, 2019),

1 Finally, the older cases that Plaintiff cites in his sur-reply are not persuasive. Egbert provided

2 more recent direction to courts to look to “whether there is any rational reason (even one) to

3 think that Congress is better suited to weigh the costs and benefits of allowing a damages

4 action to proceed,” Egbert, 142 S. Ct. at 1805 (citation and internal quotation marks omitted),

5 and here there is at least one rational reason to think that Congress is better suited to weigh the

6 costs and benefits of allowing damages actions to proceed.6

7 Accordingly, there is at least one special factor indicating that the Judiciary is at least

8 arguably less equipped than Congress to weigh the costs and benefits of allowing damages

9 actions to proceed.

10 Applying the Supreme Court’s recent directions, and as Plaintiff’s claims arise in a new

11 context and there is at least one special factor indicating that the Judiciary is at least arguably

12 less equipped than Congress to weigh the costs and benefits of allowing Bivens damages

13 actions to proceed, the Court will recommend that Defendants’ motion to dismiss be granted

14 and that this case be dismissed.

15 c. Leave to Amend

16 The Court will not recommend that further leave to amend be granted. Plaintiff has

17 already been granted leave to amend once. (ECF No. 39). Moreover, there is no indication that

18 any amendment could cure the legal issue identified in this order, and so granting Plaintiff

19 leave to amend would be futile.7

20 \\\

21 \\\

22

23 6 The Court notes that Plaintiff alleges that he filed several PREA complaints against Defendants (ECF

No. 62, p. 5), as well as PREA complaints regarding other incidents (id. at 6). Plaintiff further alleges that, on one

24 occasion, the investigation was not properly conducted. (Id.). To the extent Plaintiff is arguing that the failure to

properly conduct one investigation means that the Court should allow his Eighth Amendment claims to proceed

25 under Bivens, Plaintiff’s argument is not persuasive. “[A] court should not inquire … whether Bivens relief is

appropriate in light of the balance of circumstances in the particular case…. Rather, under the proper approach, a

26 court must ask [m]ore broadly if there is any reason to think that judicial intrusion into a given field might be

harmful or inappropriate.” Egbert, 142 S. Ct. at 1805 (alteration in original) (citations and internal quotation

27 marks omitted).

7 The Court notes that, in his first opposition, Plaintiff states that he wants to amend his complaint,

28 seemingly to add claims against new defendants. (ECF No. 62, p. 21). Plaintiff subsequently filed a motion to

1 VI. RECOMMENDATIONS

2 Based on the foregoing, IT IS HEREBY RECOMMENDED that:

3 1. Defendants’ objection to Plaintiff's second opposition (ECF No. 75) be

4 overruled as moot.

5 2. Defendants’ motion to dismiss (ECF No. 54) be GRANTED because Plaintiff's

6 claims arise in a new context and there is at least one special factor indicating

7 that the Judiciary is at least arguably less equipped than Congress to weigh the

8 costs and benefits of allowing Bivens damages actions to proceed; and

9 3. The Clerk of Court be directed to close this case.

10 These findings and recommendations are submitted to the United States district judge

11 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-

12 || one (21) days after being served with these findings and recommendations, any party may file

13 |} written objections with the court. Such a document should be captioned “Objections to

14 || Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be

15 || served and filed within fourteen (14) days after service of the objections. The parties are

16 || advised that failure to file objections within the specified time may result in the waiver of

17 || rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter

18 || v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

19

20 IT IS SO ORDERED.

21] Dated: _ January 20, 2023 [Je ey —

09 UNITED STATES MAGISTRATE JUDGE

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