Lu v. Derr

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

TI LU, CIV. NO. 22-00122 JMS-RT

Plaintiff, ORDER GRANTING

DEFENDANTS’ MOTION TO

vs. DISMISS FIRST AMENDED

COMPLAINT, ECF NO. 21

DR. KWON, et al.,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS FIRST

AMENDED COMPLAINT, ECF NO. 21

I. INTRODUCTION

Pro se Plaintiff Ti Lu (“Lu”) brought this suit pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),

alleging that two prison officials at the Federal Detention Center in Honolulu, Hawaii

(“FDC Honolulu”) violated the Eighth Amendment’s prohibition against cruel and

unusual punishment by interfering with the delivery of a continuous positive airway

pressure (“CPAP”) machine that would have been used to treat his asthma and sleep

apnea.1 See ECF No. 6 at PageID.38–PageID.40. Defendants Doctor Nathan Kwon

1 According to the Federal Bureau of Prisons’ online inmate locator, Lu is currently

incarcerated at the United States Penitentiary in Lompoc, California. See Federal Bureau of

(continued . . . )

and Senior Officer Samuelu Mulitalo (collectively “Defendants”) filed a Motion to

Dismiss First Amended Complaint (“Motion”) arguing, among other things, that Lu’s

claims are not cognizable under Bivens.2 See ECF No. 21 at PageID.89–PageID.90;

see also ECF No. 21-1 at PageID.99–PageID.109. The court agrees that Lu cannot

pursue his claims against Defendants under Bivens and, for the reasons stated below,

GRANTS Defendants’ Motion.

II. BACKGROUND

On January 21, 2022, Dr. Kwon signed a Department of Justice Form

BP-331 (“Authorization to Receive Package or Property”), authorizing Lu’s receipt

of a CPAP machine to treat his asthma and sleep apnea. ECF No. 6 at PageID.38; see

also ECF No. 6-1 at PageID.44.3 At some point, Dr. Kwon told Lu that he would

have to wait more than six months for FDC Honolulu to provide him with a CPAP

Prisons, https://www.bop.gov/inmateloc/ (select “Find By Number”; enter “77017-112”; and select

“Search”) (last visited Mar. 10, 2023).

2 Even assuming that Lu’s claims were cognizable, Defendants argue that qualified

immunity shields them from personal liability. See ECF No. 21 at PageID.90; ECF No. 21-1 at

PageID.109–PageID.112. Because no Bivens remedy is available to Lu, the court does not reach

Defendants’ qualified immunity argument. See Pettibone v. Russell, 59 F.4th 449, 457 (9th Cir.

2023) (“Because [plaintiff] has no cause of action under Bivens, we need not consider whether

[defendant] would be entitled to qualified immunity.”).

3 Under Federal Rule of Civil Procedure 12(b)(6), review is generally limited to the contents

of the complaint. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “A

court may, however, consider certain materials—documents attached to the complaint, documents

incorporated by reference in the complaint, or matters of judicial notice—without converting the

motion to dismiss into a motion for summary judgment.” United States v. Ritchie, 342 F.3d 903,

908 (9th Cir. 2003).

machine, unless someone mailed him one sooner. ECF No. 6 at PageID.39. Lu’s

brother mailed a CPAP machine to FDC Honolulu, and it arrived at the facility on

February 22, 2022. Id. at PageID.38. Officer Mulitalo rejected the CPAP machine

upon its arrival, however, citing Lu’s supposed failure to obtain a Form BP-331. Id.;

see also ECF No. 6-2 at PageID.45. According to Lu, Dr. Kwon directed Officer

Mulitalo to reject the machine.4 ECF No. 6 at PageID.39–PageID.40.

On May 2, 2022, the court received the operative pleading in this suit—

that is, the First Amended Complaint (“FAC”). Id. In the FAC, Lu alleges that

Defendants violated the Eighth Amendment’s prohibition against cruel and unusual

punishment by interfering with the delivery of the CPAP machine. Id. at PageID.38–

PageID.40. Based on his claims, Lu seeks $7,500 in damages. Id. at PageID.43.

Defendants filed their Motion on January 13, 2023, arguing that the FAC should be

dismissed because Lu’s constitutional tort claims present new contexts, which are not

cognizable under the Supreme Court’s current Bivens framework. See ECF No. 21 at

PageID.89–PageID.90; see also ECF No. 21-1 at PageID.99–PageID.109. Lu filed

neither an opposition to the Motion nor a statement setting forth his position on the

4 On June 27, 2022, the court received from Lu a supplemental filing. ECF No. 10. In this

filing, Lu states that he also spoke with Dr. Kwon on June 22, 2022. Id. at PageID.67. During this

conversation, Dr. Kwon explained to Lu the process for obtaining a CPAP machine. Id. Lu does

not say, however, whether he complied with the process described to him by Dr. Kwon in June

2022, nor does Lu say whether he took any other steps to obtain a CPAP machine while he was

incarcerated at FDC Honolulu.

Motion. See LR7.2. The court decides this matter without a hearing pursuant to

Local Rule 7.1(c).

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal of a

complaint that fails “to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, “the court accepts the facts

alleged in the complaint as true,” and “[d]ismissal can be based on the lack of a

cognizable legal theory or the absence of sufficient facts alleged.” UMG Recordings,

Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)) (alteration in

original). Conclusory allegations of law, unwarranted deductions of fact, and

unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell,

266 F.3d at 988; Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of

Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (citation omitted). Furthermore, the

court need not accept as true allegations that contradict matters properly subject to

judicial notice. See Sprewell, 266 F.3d at 988.

“To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

556). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that

the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (some

alterations in original).

Lu is appearing pro se; thus, the court liberally construes his pleadings.

See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Eldridge v. Block, 832

F.2d 1132, 1137 (9th Cir. 1987). The court also recognizes that “[u]nless it is

absolutely clear that no amendment can cure the defect . . . a pro se litigant is entitled

to notice of the complaint’s deficiencies and an opportunity to amend prior to

dismissal of the action.” Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995);

see also Rowley v. Bannister, 734 F.3d 967, 977–78 (9th Cir. 2013).

IV. ANALYSIS

Lu brought this suit pursuant to Bivens alleging that Defendants violated

the Eighth Amendment’s prohibition against cruel and unusual punishment by

interfering with the delivery of a CPAP machine while he was incarcerated at FDC

Honolulu. See ECF No. 6 at PageID.38–PageID.40. Before the merits of Lu’s claims

can be reached, the court must first decide whether a Bivens remedy is available to

Lu. See, e.g., Manansingh v. United States, 2021 WL 2080190, at *8 (D. Nev. May

24, 2021) (“In a constitutional action against a federal officer, a threshold

consideration is whether a plaintiff may bring a Bivens suit in the first place.”).

Because no such remedy exists, the FAC and this action must be dismissed.

A. Legal Framework for Determining Whether a Bivens Remedy Exists

While “Congress has made a cause of action available to any person who

has suffered ‘the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws’ at the hands of someone acting under color of state law,” it

“has not created a general cause of action to redress violations of the Constitution by

federal officers.” Pettibone v. Russell, 59 F.4th 449, 454 (9th Cir. 2023) (quoting

42 U.S.C. § 1983).

In three cases decided between 1971 and 1980, however, “the Supreme

Court held that the Constitution contains an implied cause of action through which

plaintiffs can seek damages from federal officers who violate their constitutional

rights.” Id. In Bivens, the Court held that a plaintiff could seek damages from

Federal Bureau of Narcotics agents who allegedly violated the Fourth Amendment

right to be free from unreasonable searches and seizures. 403 U.S. at 397. The Court

extended the Bivens remedy in Davis v. Passman, where a plaintiff alleged that her

employer, a Member of Congress, had discriminated against her because of her sex,

in violation of the Due Process Clause of the Fifth Amendment. 442 U.S. 228, 230–

31 (1979). Finally, in Carlson v. Green, the Court held that the estate of a deceased

inmate could seek damages from federal prison officials who allegedly violated the

inmate’s Eighth Amendment right to be free from cruel and unusual punishment by

failing to treat severe asthma that ultimately resulted in the prisoner’s death.

446 U.S. 14, 16–18 (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.” Ziglar v. Abbasi, 582 U.S. 120, 132 (2017).

The Supreme Court “has made clear that expanding the Bivens remedy is

now a ‘disfavored’ judicial activity.” Abbasi, 582 U.S. at 135 (citation omitted);

Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022) (“At bottom, creating a cause of action

is a legislative endeavor.”). Indeed, the Supreme Court has indicated that “if [the

Court] were called to decide Bivens today, [it] would decline to discover any implied

causes of action in the Constitution.” Id. at 1809. Since 1980, therefore, the Supreme

Court “has ‘consistently refused to extend Bivens to any new context or new category

of defendants.’”5 Abbasi, 582 U.S. at 135 (citation omitted).

5 The Supreme Court has declined to create a Bivens remedy in the following cases: a First

Amendment suit against a federal employer, see Bush v. Lucas, 462 U.S. 367 (1983); a race

discrimination suit against military officers, see Chappell v. Wallace, 462 U.S. 296 (1983); a

substantive due process suit against military officers, see United States v. Stanley, 483 U.S. 669

(1987); a procedural due process suit against Social Security officials, see Schweiker v. Chilicky,

487 U.S. 412 (1988); a procedural due process suit against a federal agency for wrongful

termination, see FDIC v. Meyer, 510 U.S. 471 (1994); an Eighth Amendment suit against a private

(continued . . . )

Now, when asked to imply a Bivens remedy, the court’s watchword is

“caution.” Egbert, 142 S. Ct. at 1803. If there is even a “single sound reason” to

think that Congress might doubt the efficacy or necessity of a damages remedy, the

court must refrain from creating it. Id. Thus, “‘the most important question is who

should decide whether to provide for a damages remedy, Congress or the courts?’”

Id. (citation omitted). In “most every case,” the answer will be Congress. Id.

In deciding whether a Bivens remedy is available in a particular case,

courts apply a two-step framework. Pettibone, 59 F.4th at 454. At step one, courts

“ask whether the case presents ‘a new Bivens context.’” Egbert, 142 S. Ct. at 1803.

If the answer to this question is “no,” then no further analysis is required, and the

claim may proceed. See Lanuza v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018). If the

answer is “yes,” then the court proceeds to step two. At step two, “a Bivens remedy

is unavailable if there are ‘special factors’ indicating that the Judiciary is at least

halfway house operator under contract with the BOP, see Corr. Servs. Corp. v. Malesko, 534 U.S.

61 (2001); a claim of retaliation by Bureau of Land Management officials against plaintiff for his

exercise of Fifth Amendment property rights, see Wilkie v. Robbins, 551 U.S. 537 (2007); a suit

under the Fifth, Eighth, and Fourteenth Amendments against United States Public Health Service

personnel, see Hui v. Castaneda, 559 U.S. 799 (2010); an Eighth Amendment suit against prison

guards at a private prison, see Minneci v. Pollard, 565 U.S. 118 (2012); a Fifth Amendment suit

against Department of Justice officials, see Abbasi, 582 U.S. at 155; a Fourth and Fifth Amendment

suit against a United States Border Patrol agent, Hernandez v. Mesa, 140 S. Ct. 735 (2020); and a

First and Fourth Amendment suit against a United States Border Patrol Agent, see Egbert, 142 S.

Ct. at 1793.

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

damages action to proceed.’”6 Pettibone, 59 F.4th at 454 (citation omitted).

B. Lu’s Claims Present a New Context

The Supreme Court’s “understanding of a ‘new context’ is broad.”

Hernandez, 140 S. Ct. at 743. A case presents a new context if it is “different in a

meaningful way from previous Bivens cases decided by [the Supreme Court].”

Abbasi, 582 U.S. at 139. The Supreme Court has provided a non-exhaustive list of

differences that may be “meaningful” including the rank of the officers involved, the

constitutional right at issue, the generality or specificity of the official action, the

extent of judicial guidance as to how an officer should respond to the problem or

emergency to be confronted, the statutory or other legal mandate under which the

officer was operating, the risk of disruptive intrusion by the Judiciary into the

functioning of other branches of government, and the presence of potential special

factors that previous Bivens cases did not consider. Id. at 139–40.

The Supreme Court has stated that “[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

6 In Egbert, the Supreme Court noted that these two steps “often resolve to a single question:

whether there is any reason to think that Congress might be better equipped to create a damages

remedy.” 142 S. Ct. at 1803. At least one court of appeals has suggested in dicta that this sentence

“appear[s] to alter the existing two-step Bivens framework.” Silva v. United States, 45 F.4th 1134,

1139 (10th Cir. 2022). The Ninth Circuit, however, has stated that Egbert only “reiterate[d] the

longstanding first step of the Bivens question” and “clarified” the second step. Mejia v. Miller, _

F.4th _, 2023 WL 2350630, at *4 (9th Cir. 2023). The court therefore applies the two-step

framework, as clarified in Egbert, in analyzing Lu’s claims.

damages remedy was previously recognized.” Hernandez, 140 S. Ct. at 743. Thus,

even where a “case has significant parallels to one of the [Supreme Court’s] previous

Bivens cases, it can present a new context.” Abbasi, 582 U.S. at 147. In other words,

“even a modest extension is an extension.” Id.; see Mejia, 2023 WL 2350630, at *5

(“[R]arely if ever is the Judiciary equally suited as Congress to extend Bivens even

modestly.”).

The Supreme Court’s analysis in Egbert illustrates these principles. In

Egbert, a bed-and-breakfast operator and Border Patrol confidential informant

alleged, among other things, that a Border Patrol agent used excessive force on him

while trying to conduct a search on the plaintiff’s property. 142 S. Ct. at 1801.

While noting that Egbert and Bivens involved “similar allegations of excessive force

and thus arguably present[ed] ‘almost parallel circumstances’ or a similar

‘mechanism of injury,’” the Supreme Court stated that these “superficial similarities

[were] not enough to support the judicial creation of a cause of action.” Id. at 1805.

Here, although Lu’s claims have some parallels to the claims in Carlson,

the specifics of Lu’s allegations are dissimilar in both their “nature and severity”

from the facts in Carlson.” Martinez v. United States Bureau of Prisons, 2019 WL

5432052, at *8 (C.D. Cal. Aug. 20, 2019), report and recommendation adopted, 2019

WL 5424414 (C.D. Cal. Oct. 22, 2019), aff’d, 830 F. App’x 234 (9th Cir. 2020).

In Carlson, an inmate was diagnosed as a “chronic asthmatic” when he

entered the federal prison system. Green v. Carlson, 581 F.2d 669, 671 (7th Cir.

1978), aff’d, 446 U.S. 14 (1980). The inmate was later hospitalized for eight days

because of the condition, and the treating physician recommended that the inmate be

transferred to a different facility. Id. Despite the doctor’s recommendation, the

inmate remained in the same facility. Id. Then, when the inmate was admitted to the

prison hospital with an asthmatic attack, he was not seen by a doctor for eight hours.

Id. As the inmate’s breathing became more difficult, a non-licensed nurse in charge

of the prison hospital deserted the inmate to distribute medication elsewhere. Id.

When the nurse returned, he attempted to use a respirator on the inmate. Id. The

nurse did this despite being told two weeks earlier that the respirator was broken. Id.

When the inmate told the nurse that the respirator was making his breathing worse,

the nurse administered two doses of a drug contraindicated for someone suffering an

asthmatic attack. Id. A half-hour after the second injection, the inmate suffered a

respiratory arrest. Id. The nurse and another prison official then brought emergency

equipment to administer an electric jolt to the inmate, but neither man knew how to

operate the machine. Id. Only at that point was the inmate taken to a hospital, where

he was pronounced dead. Id.

Here, Lu’s claims differ from those in Carlson in at least two important

ways. First, the nature of Lu’s claims differs from those in Carlson because they do

not relate to a course of medical treatment provided to him at FDC Honolulu.

Instead, Lu alleges that Defendants—one of whom is not even a medical

professional—interfered with the delivery of a CPAP machine. Although it is well

settled that state prisoners can establish deliberate indifference in the context of an

Eighth Amendment claim by showing that officials “intentionally interfered

with . . . medical treatment,” Lopez v. Smith, 203 F.3d 1122, 1132 (9th Cir. 2000); see

also Hernandez v. Kibler, 2022 WL 4345791, at *1 (E.D. Cal. Sept. 19, 2022)

(allowing Eighth Amendment claim of state prisoner to proceed based, in part, on

confiscation of CPAP machine), that was not the basis for the claims in Carlson.

Thus, Lu seeks an extension of Bivens to an area not addressed in Carlson. See

Donaldson v. Garland, 2022 WL 10189084, at *3 (E.D. Cal. Oct. 17, 2022) (finding

new context where plaintiff alleged that prison officials interfered with medical care

by cancelling surgery), report and recommendation adopted, 2022 WL 17722326

(E.D. Cal. Dec. 15, 2022).

Second, the severity of Lu’s claims is nothing like the claims in Carlson.

While Lu asserts that he experienced “worsening symptoms” related to his asthma

and sleep apnea without the CPAP machine, ECF No. 6 at PageID.38, Lu does not

describe the nature or severity of his symptoms, nor does he allege that his need for

the CPAP machine amounted to a medical emergency. See Washington v. Fed.

Bureau of Prisons, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (noting that

“[p]laintiff’s Bivens claims do not involve a medical emergency, as did Carlson, but

rather focus on a long term and ongoing course of medical treatment of Plaintiff’s

chronic, non-fatal condition” in concluding that case presented a new context).

These differences in the “nature and severity” of Lu’s claims compared

to those in Carlson are meaningful. See Martinez, 2019 WL 5432052, at *8; see also

Prescott v. United States, 2022 WL 18859316, at *2 (C.D. Cal. Dec. 21, 2022)

(concluding that assigning a federal prisoner to an inhospitable bed and refusing to

move him even after a doctor’s order was issued presented a new context), report and

recommendation adopted, 2023 WL 2188692 (C.D. Cal. Feb. 22, 2023); Davis v.

Fed. Bureau of Prisons, 2022 WL 18460704, at *2 (C.D. Cal. Dec. 8, 2022), report

and recommendation adopted, 2023 WL 405319 (C.D. Cal. Jan. 24, 2023)

(concluding that a federal prisoner’s claim that defendant performed an unauthorized

surgical procedure presented a new context). Indeed, allowing Lu’s claims to

proceed risks “transforming [the court] into an ad hoc medical review board tasked

with deciding, with little to no judicial guidance, which medical errors, if any, cross

the threshold into constitutional injury.” Washington, 2022 WL 3701577, at *5.

Because Lu’s claims are meaningfully different from those in Carlson, the court must

proceed to step two.7

7 A few courts have allowed to proceed claims involving “medical treatment.” See, e.g.,

Ibuado v. Fed. Prison Atwater, 2023 WL 2312395, at *4 (E.D. Cal. Mar. 1, 2023) (claims based on

(continued . . . )

C. Special Factors Counsel Against Recognizing a Bivens Remedy

“[I]f a claim arises in a new context, a Bivens remedy is unavailable if

there are ‘special factors’ indicating that the Judiciary is at least arguably less

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

action to proceed.’” Egbert, 142 S. Ct. at 1803 (citation omitted). Thus, at step two,

“[a] court faces only one question: whether there is any rational reason (even one) to

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

damages action to proceed.’” Id. at 1805 (citation omitted). “If there is even a single

‘reason to pause before applying Bivens in a new context,’ a court may not recognize

a Bivens remedy.” Id. (citation omitted). In conducting this analysis, courts must ask

“‘broadly’ if there is any reason to think that ‘judicial intrusion’ into a given field

might be ‘harmful’ or ‘inappropriate.’ Id. (citation omitted). If there is such a reason

“or even if there is the ‘potential’ for such consequences, a court cannot afford a

side effects of medication); Dinkins v. United States, 2022 WL 16735362, at *6 (C.D. Cal. Aug. 19,

2022) (claims based on failure to treat sinus blockage), report and recommendation adopted, 2022

WL 15525746 (C.D. Cal. Oct. 27, 2022). These decisions are not relevant here because they do not

involve interference with the delivery of a medical device. Moreover, the court does not find the

analysis in these decisions persuasive. Neither decision addresses the Supreme Court’s statement in

Egbert that “similar allegations,” “‘almost parallel circumstances,’” or a “similar ‘mechanism of

injury’” are only “superficial similarities,” and they are “not enough to support the judicial creation

of a cause of action.” 142 S. Ct. at 1805. Nor do the decisions address the Supreme Court’s

warning that “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances with . . .

Carlson unless he also satisfies the ‘analytic framework’ prescribed by the last four decades of

intervening case law.” Id. at 1809.

plaintiff a Bivens remedy.” Id. at 1805–06 (citation omitted). This will be the

outcome in “most every case.” Id. at 1803.

For example, “[i]f there are alternative remedial structures in place, ‘that

alone,’ like any special factor, is reason enough to ‘limit the power of the Judiciary to

infer a new Bivens cause of action.’” Id. at 1804. It does not matter whether a Bivens

remedy would disrupt the remedial scheme, nor does it matter whether the court

should provide a remedy for a wrong that would otherwise go unaddressed. Id.

Likewise, “it does not matter that ‘existing remedies do not provide complete relief.’”

Id. (citation omitted). “So long as Congress or the Executive has created a remedial

process that it finds sufficient to secure an adequate level of deterrence, the courts

cannot second-guess that calibration by superimposing a Bivens remedy.” Id. at

1807.

Here, the court cannot recognize a Bivens remedy because alternative

remedies are available to Lu. First, the Executive, through the Federal Bureau of

Prisons, has an alternative remedial program for federal prisoners like Lu. See

28 C.F.R. § 542.10(a) (“The purpose of the Administrative Remedy Program is to

allow an inmate to seek formal review of an issue relating to any aspect of his/her

own confinement.”); see also Malesko, 534 U.S. at 74 (concluding that Bivens

remedy was unavailable, in part, because “[i]nmates . . . have full access to remedial

mechanisms established by the BOP, including . . . grievances filed through the

BOP’s Administrative Remedy Program”); Hoffman v. Preston, 2022 WL 6685254,

at *1 (9th Cir. 2022) (“Congress has not authorized a damages remedy in this context,

and there are ‘rational reason[s],’ why it might not, for example, the existence of the

Bureau of Prisons’ formal review process for inmate complaints.”) (citation omitted

and brackets in original).

Second, Congress provided an alternative remedy through the Federal

Tort Claims Act (“FTCA”). See Schwarz v. Meinberg, 761 F. App’x 732, 734–35

(9th Cir. 2019) (identifying the FTCA as an alternative process available to federal

prisoners); Prescott, 2022 WL 18859316, at *2 (“[A]ggrieved federal prisoners can

bring suit for damages against the United States for the torts of its federal employees

under the [FTCA].”); Donaldson, 2022 WL 10189084, at *3 (“[P]laintiff has

alternative remedies available to him, including the Bureau of Prisons administrative

grievance process and a federal tort claims action.”). While a single alternative

remedy is sufficient to foreclose a Bivens remedy, at least two are available to Lu.

Thus, the court cannot “second-guess” the judgments made by Congress and the

Executive “by superimposing a Bivens remedy.” Egbert, 142 S. Ct. at 1807.

As the Supreme Court has stated, “in all but the most unusual

circumstances, prescribing a cause of action is a job for Congress, not the courts.” Id.

at 1800. This case does not present the unusual circumstances required to recognize a

Bivens remedy.

V. CONCLUSION

Because Lu’s claims arise in a new context and special factors weigh

against recognizing a new Bivens remedy, Defendants’ Motion, ECF No. 21, is

GRANTED for failure to state a claim upon which relief can be granted. Because

amendment would be futile, the FAC is DISMISSED without leave to amend. See,

e.g., Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir.

2011) (explaining that dismissal without leave to amend is proper when amendment

would be futile). The Clerk of Court is DIRECTED to close the case and enter

judgment in favor of Defendants.

IT ISSO ORDERED.

DATED: Honolulu, Hawaii, March 10, 2023.

gt a "Rie,

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= a /s/ J. Michael Seabright

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i United States District Judge

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Lu v. Kwon, Civ. No. 22-00122 JMS-RT, Order Granting Motion to Dismiss First Amended

Complaint, ECF No. 21

17