Marquez v. United States

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 STEVE MARQUEZ, Case No.: 3:18-cv-0434-CAB-NLS

12 Plaintiff,

ORDER GRANTING IN PART AND

13 vs. DENYING IN PART DEFENDANTS’

MOTION TO DISMISS PURSUANT

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TO Fed. R. Civ. P. 12(b)(6)

15 CORRECTIONAL OFFICERS

RODRIGUEZ AND KELLY, [Doc. No. 63]

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Defendants.

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19 Steve Marquez (“Plaintiff”), a California prisoner currently housed at Mule Creek

20 State Prison in Ione, California, is proceeding pro se and in forma pauperis with a First

21 Amended Complaint (“FAC”) in this civil rights action filed pursuant to Bivens v. Six

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

23 No. 49.) Plaintiff claims his constitutional right to be free from deliberate indifference to

24 his health and safety was violated while housed as a federal pre-trial detainee at the

25 Metropolitan Correctional Center (“MCC”) in San Diego, California, in 2016. (FAC ¶¶ 7,

26 36-39.) He alleges Defendant MCC Correctional Officer Rodriguez denied his request for

27 protective custody upon arrival which resulted in his being threatened and tortured by other

28 inmates causing life-threatening injuries requiring hospitalization. (FAC ¶¶ 7-29.) He

1 alleges Defendant MCC Correctional Officer Kelly denied his request for protective

2 custody upon return from the hospital which caused further injuries from the fear of assault

3 during the month he remained at MCC. (Id. ¶¶ 30-34.)

4 Currently before the Court is a Motion to Dismiss the FAC pursuant to Fed. R. Civ.

5 P. 12(b)(6) by Defendants Rodriguez and Kelly. (ECF No. 63.) They contend: (1) the

6 Court lacks subject matter jurisdiction over claims against them in their official capacities

7 because such claims are identical to claims against the United States which have been

8 dismissed with prejudice; (2) Plaintiff has failed to state a claim against them in their

9 individual capacities because Plaintiff is attempting to extend Bivens to a new context

10 which is precluded by Ziglar v. Abbasi, 582 U.S. ___, ___, 137 S.Ct. 1843, 1854 (2017);

11 and (3) even if Bivens applies they are entitled to qualified immunity because Plaintiff has

12 not alleged the denial of a clearly established federal constitutional right. (Id. at 15-35.)

13 Plaintiff has filed an Opposition (ECF No. 65) to which Defendants have filed a Reply.

14 (ECF No. 67.)

15 For the following reasons, the Court GRANTS in part the Defendants’ Motion to

16 Dismiss and DISMISSES the official capacity claims with prejudice. The Court DENIES

17 without prejudice the Motion to Dismiss Plaintiff’s individual capacity claims and

18 DENIES without prejudice the Motion to Dismiss on qualified immunity. Defendants may

19 renew these contentions on summary judgment.

20 I. Plaintiff’s Allegations

21 Plaintiff was booked into the MCC on or about August 13, 2016, “on alleged sex

22 offense charges brought against him.” (FAC ¶ 7.) He contends that due to the nature of

23 those charges “it was imperative he be placed in protective custody to protect him from

24 unreasonable risk of harm” from other inmates. (Id. ¶ 8.) When he reviewed his charges

25 with Defendant MCC Correctional Officer Rodriguez during his initial classification

26 interview, Plaintiff claims Rodriguez made comments like: “What a great guy,” and “What

27 an outstanding citizen.” (Id. ¶ 9.) Plaintiff alleges Rodriguez was aware of his need for

28 protective custody but “chose to ignore” Plaintiff’s request and placed him instead in the

1 MCC general population “against prison policy and federal law.” (Id. ¶ 10-11.) Rodriguez

2 provided Plaintiff with an “emergency contact form” and said: “Here, this is for when

3 something happens to you in prison.” (Id. ¶ 11.) When Plaintiff “became fearful and afraid

4 for his life and again asked to be placed in protective custody,” Rodriguez replied: “Don’t

5 worry about it, just tell the other inmates your [sic] here for selling drugs.” (Id. ¶ 12.)

6 “While housed in the general population, [Plaintiff] was distressed, worried, unable

7 to sleep, experiencing night terrors, and lived in fear of his life.” (Id. ¶ 14.) “Soon after

8 being housed,” he was approached by several inmates, one of whom placed his hand on

9 Plaintiff’s shoulder and told him: “We are going to break you.” (Id. ¶ 15.) Another inmate

10 told Plaintiff if he did not do as he was told, “they would take him into the restroom and

11 ‘take care of him.’” (Id.) Those inmates then “moved plaintiff to a back corner of the

12 dormitory and the[y] began to physically torture him by forcing him to perform extreme

13 physical exertion until plaintiff could no longer move.” (Id. ¶ 17.) He complied with their

14 demands “out of fear for his life and safety.” (Id.) Plaintiff claims he was forced to perform

15 over 100 squats without stopping, and constantly reminded of “what would happen if he

16 stopped.” (Id. ¶ 18.) He “began to feel dizzy, fatigue[d], exhausted and at that point

17 plaintiff collapsed.” (Id.) He resumed and collapsed a second time as the inmates laughed

18 and made fun of him as he struggled to comply while experiencing unbearable pain. (Id.)

19 When he collapsed a third time, Plaintiff claims he could no longer move and fell in and

20 out of consciousness. (Id.) The other inmates walked away laughing as Plaintiff remained

21 incapacitated for thirty minutes before returning to his bunk. (Id. ¶¶ 18-19.) He remained

22 in his bunk until the next day when he “began to experience more severe pain, fever, cold

23 sweats, swelling of his face and body, vomiting, loss of appetite, urination of blood,

24 shortness of breath, complete loss of leg function, dizziness, headache, and mental and

25 emotional anguish.” (Id. at ¶ 19.)

26 Plaintiff alleges that when his “condition became much worse” he “notified an

27 official of everything that happened.” (Id. ¶ 20.) This unidentified official replied, “that’s

28 crazy,” failed to move him and told him to make an appointment with medical staff. (Id.)

1 Plaintiff notified a nurse who was delivering medication of “everything,” including his

2 medical condition, and the nurse “scheduled him to see medical staff for later that day.”

3 (Id.) Plaintiff was evaluated and submitted to a blood draw. (Id.) The next day he was

4 called back for a second blood draw, told his condition was “very serious,” and was

5 provided emergency intravenous fluids “for a couple of hours” before he was returned to

6 the same dormitory where he was attacked. (Id. ¶ 21.) For the rest of that day, Plaintiff

7 suffered “the same symptoms and sometimes more severe episodes,” and continued to

8 urinate blood. (Id. ¶ 22.) He was unable to sleep that night “due to his symptoms and

9 emotional distress and fear.” (Id.) Plaintiff was called back to the nurse’s office the next

10 day for more blood work, notified “that his condition was progressively worse,” and given

11 intravenous fluids for several hours before being returned to his dorm “to suffer more

12 severe symptoms and fear for his life.” (Id. ¶¶ 23-24.)

13 The next day Plaintiff was called back to the nurse’s office, “told that his condition

14 was beyond the capabilities of the prison medical staff,” and transferred to the emergency

15 room at Alvarado Hospital. (Id. ¶ 25.) He stayed there for a week “where he underwent

16 several x-rays, ultrasounds, countless needle injections for blood testing and was put on a

17 24 hour I.V.” (Id. ¶ 26.) Plaintiff claims he “endured unbearable pain and suffering as

18 well as emotional distress and mental anguish.” (Id.) After he had been at the hospital “for

19 a day or so,” a kidney specialist told him he had “severe kidney failure,” that his “kidneys

20 had shut down and that they could possibly never recover,” that he may need dialysis, “and

21 that death [was] a realistic possibility.” (Id. ¶ 27.) Plaintiff asked the security guard who

22 escorted him from MCC if he could contact his family and friends to let them know he

23 might die but was told MCC had issued orders “not to let plaintiff contact anyone from the

24 outside world.” (Id.) He suffered pneumonia and heart complications related to his kidney

25 failure and lost 40 pounds. (Id. ¶ 28.) “[T]he end result [of] his injuries included acute

26 [rhabdomyolysis], acute renal failure, acute tubular necrosis, severe dehydration, medical

27 renal disease, pulmonary congestion, cardiomegaly, high blood pressure, severe renal

28 azotemia, and other complications.” (Id. ¶ 29.)

1 Once discharged from Alvarado Hospital and returned to MCC, Plaintiff was

2 interviewed by Defendant MCC Correctional Officer Kelly. (Id. ¶ 30.) He explained to

3 Defendant Kelly what had previously occurred and again requested protective custody.

4 (Id.) Kelly “chose to ignore” the request and housed him in the same dormitory and same

5 bunk as before. (Id.) Plaintiff continued to see medical staff to monitor his condition and

6 “continued to suffer diarrhea, unbearable stomach pain, back pain, testicle pain, leg pain,

7 fever, night terrors, confusion, restlessness, loss of ap[p]etite, weight loss and mental and

8 emotional distress.” (Id. ¶ 32.) He remained at MCC “for roughly another month or so

9 until his charges were dismissed,” and states that he was in protective custody at Corcoran

10 State Prison at the time of filing the FAC. (Id. ¶ 33.) Plaintiff alleges that although he

11 “notified every staff member he came in contact with” at MCC about his vulnerabilities

12 and need to be rehoused, “no efforts were made” to address the issues. (Id. ¶ 34.)

13 Plaintiff claims Defendants Rogriguez and Kelly were “deliberately indifferent to

14 the substantial risk of serious harm or injury” when they ignored his requests for protective

15 custody and placed him in the general population at MCC despite knowledge of his

16 “suspect classification,” that they knew or should have known of that risk but disregarded

17 it, and that he was injured as a result. (Id. ¶¶ 6, 36-39.) He sues Defendants Rogriguez

18 and Kelly in their official and individual capacities, and seeks a declaration of his rights,

19 compensatory and punitive damages, costs and a jury trial. (Id. ¶¶ 40-46.)

20 II. Defendants’ Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

21 A. Standard of Review

22 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) “tests the legal

23 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The Court

24 accepts as true the facts as alleged in the operative complaint on a motion to dismiss. Shah

25 v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir. 1986).

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

27 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

28 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

1 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows

2 the court to draw the reasonable inference that the defendant is liable for the misconduct

3 alleged.” Id., citing Twombly, 550 U.S. at 556.

4 “As a general rule, a district court may not consider any material beyond the

5 pleadings in the ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d

6 668, 688 (9th Cir. 2001) (quote marks omitted); see Fed.R.Civ.P. 12(d) (“If, on a motion

7 under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not

8 excluded by the court, the motion must be treated as one for summary judgment under Rule

9 56. All parties must be given a reasonable opportunity to present all the material that is

10 pertinent to the motion.”) Although “a court may [ordinarily] look only at the face of the

11 complaint to decide a motion to dismiss,” it may consider documents referenced in the

12 complaint which are “accepted by all parties as authentic” without converting a Rule

13 12(b)(6) motion into one for summary judgment. Van Buskirk v. Cable News Network,

14 Inc., 284 F.3d 977, 980 (9th Cir. 2002).

15 B. Official Capacity Claims

16 Defendants first move to dismiss the claims brought against them in their official

17 capacities, arguing this Court lacks jurisdiction over such claims. (Defs.’ Memo of P&As

18 in Supp. of Mot. to Dismiss [hereinafter “Defs.’ MTD”] at 4 [ECF No. 63 at 15]), citing

19 Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157 (9th

20 Cir. 2007).) Consejo holds that a district court lacks jurisdiction over a Bivens action

21 against an individual defendant in his or her official capacity because it “would merely be

22 another way of pleading an action against the United States, which [is] barred by the

23 doctrine of sovereign immunity.” 482 F.3d at 1173. Defendants are correct that “a Bivens

24 action can be maintained against a defendant in his or her individual capacity only, and not

25 in his or her official capacity.” Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987);

26 see also Consejo, 482 F.3d at 1173 (“[D]istrict court lacked subject matter jurisdiction over

27 the [official capacity] claim because the United States has not consented to its officials

28 being sued in their official capacities.”)

1 The Court has already dismissed the United States as a Defendant in this action with

2 prejudice on a prior motion to dismiss. (ECF No. 38.) Therefore, the Court GRANTS

3 Defendants’ Motion to Dismiss all claims brought against Rodriguez and Kelly in their

4 official capacities for lack of subject matter jurisdiction and DISMISSES those claims with

5 prejudice.

6 C. Individual Capacity Claims

7 Defendants move to dismiss the claims against them in their individual capacities

8 for failure to state a Bivens claim because: (1) the “implied cause of action” in a Bivens suit

9 has never been expanded to cover a Fifth Amendment due process claim for deliberate

10 indifference to a federal pre-trial detainee’s safety, and (2) such an expansion is precluded

11 by Abbasi. (Defs.’ MTD at 4-19 [ECF No. 63 at 15-30].)

12 The Supreme Court has held that the determination whether to allow a Bivens action

13 to proceed requires application of a two-part test. The first inquiry asks whether the action

14 “arises in a ‘new context’ or involves ‘a new category of defendants.’” Hernandez v. Mesa,

15 589 U.S. ___, ___, 140 S.Ct. 735, 743 (2020), quoting Correctional Services Corp. v.

16 Malesko, 534 U.S. 61, 70 (2001). “If the case is different in a meaningful way from [the

17 three] previous Bivens cases decided by this Court, then the context is new.” Abbasi, 137

18 S.Ct. at 1859. Those three cases include “a claim against FBI agents for handcuffing a man

19 in his own home without a warrant; a claim against a Congressman for firing his female

20 secretary; and a claim against prison officials for failure to treat an inmate’s asthma.” Id.

21 at 1860, referring respectively to Bivens, Davis v. Passman, 442 U.S. 228 (1979) and

22 Carlson v. Green, 446 U.S. 14 (1980).

23 If there are meaningful differences, “a Bivens remedy will not be available if there

24 are ‘“special factors counseling hesitation [to extend Bivens] in the absence of affirmative

25 action by Congress.”’” Id. at 1857, quoting Carlson, 446 U.S. at 18, quoting Bivens, 403

26 U.S. at 396. The special factors inquiry “must concentrate on whether the Judiciary is well

27 suited, absent congressional action or instruction, to consider and weigh the costs and

28 benefits of allowing a damages action to proceed.” Id. at 1857-58. “[S]eparation of powers

1 principles are or should be central to the analysis,” and when “[t]he question is ‘who should

2 decide’ whether to provide for a damages remedy, Congress or the courts? [¶] The answer

3 most often will be Congress.” Id. at 1857, quoting Bush v. Lucas, 462 U.S. 367, 380 (1983).

4 In order “to be a ‘special factor counselling hesitation,’ a factor must cause a court to

5 hesitate” to extend Bivens. Id. at 1858.

6 1. Plaintiff’s claim arises in a new Bivens context

7 The Court first notes that although the FAC alleges a violation of the Eighth

8 Amendment’s protection from deliberate indifference to Plaintiff’s health and safety by

9 two MCC guards, Plaintiff’s claim arises under the Due Process Clause of the Fifth

10 Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (noting that “the Due

11 Process Clause [of the Fifth Amendment] rather than the Eighth Amendment” is applicable

12 to claims of pre-trial detainees because “Eighth Amendment scrutiny is appropriate only

13 after the State has complied with the constitutional guarantees traditionally associated with

14 criminal prosecutions.”) The Court liberally construes the FAC as alleging a violation of

15 the Fifth Amendment. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (noting

16 that the rule of liberal construction is “particularly important in civil rights cases.”) Thus,

17 the first Abbasi question asks whether a claim arising under the Due Process Clause of the

18 Fifth Amendment for failure to protect a federal pre-trial detainee differs in a meaningful

19 way from any of the three previous Bivens case decided by the Supreme Court. Abbasi,

20 137 S.Ct. at 1854. The Abbasi Court stated:

21 Without endeavoring to create an exhaustive list of differences that are

meaningful enough to make a given context a new one, some examples might

22

prove instructive. A case might differ in a meaningful way because of the

23 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

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an officer should respond to the problem or emergency to be confronted; the

25 statutory or other legal mandate under which the officer was operating; the

risk of disruptive intrusion by the Judiciary into the functioning of other

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branches; or the presence of potential special factors that previous Bivens

27 cases did not consider.

28 Id. at 1859-60.

1 As pertinent here, Abbasi found that a Fifth Amendment claim against a warden for

2 allowing guards to abuse immigration detainees arose in a new Bivens context. Abbasi,

3 137 S.Ct. at 1864. The Court reasoned that although the claim “has significant parallels to

4 one of the Court’s previous Bivens cases, Carlson . . . [w]here the Court did allow a Bivens

5 claim for prisoner mistreatment - specifically, for failure to provide medical care,” it would

6 be a modest extension of Carlson’s Eighth Amendment failure to provide convicted

7 prisoners with adequate medical care to apply Bivens to a Fifth Amendment due process

8 claim for mistreatment of immigration detainees, noting that “even a modest extension is

9 still an extension.” Id.

10 Of the three Supreme Court Bivens cases listed by Abbasi, Carlson is the closest fit

11 here. In Carlson the Court held that a Bivens damages remedy is available under the Cruel

12 and Unusual Punishments Clause of the Eighth Amendment to the estate of a federal

13 prisoner who died due to the failure of federal correctional officers to provide adequate

14 medical care. Carlson, 446 U.S. at 16-18. Plaintiff here seeks to hold federal correctional

15 officers liable under the Due Process Clause of the Fifth Amendment for failure to protect

16 a federal pre-trial detainee from assault by other inmates based on his arrest offense. The

17 category of defendants is the same here as Carlson, federal correctional officers, but the

18 constitutional right at issue, cruel and unusual punishment under the Eighth Amendment

19 in Carlson and due process under the Fifth Amendment here, are different. See Kingsley

20 v. Hendrickson, 576 U.S. 389, 400 (2015) (“The language of the [Due Process Clause

21 protecting pre-trial detainees and the Cruel and Unusual Punishments Clause protecting

22 prisoners] differs, and the nature of the claims often differs.”) In particular, a subjective

23 test applies as to whether a federal correctional officer violates a prisoner’s Eighth

24 Amendment right to be free from cruel and unusual punishment. See Farmer v. Brennan,

25 511 U.S. 825, 837 (1994) (assuming Bivens applies to an Eighth Amendment failure to

26 protect claim by a federal prisoner and holding that a prison official can be held liable only

27 if “the official knows of and disregards an excessive risk to inmate health or safety; the

28 official must both be aware of facts from which the inference could be drawn that a

1 substantial risk of serious harm exists, and he must also draw the inference.”) In contrast,

2 Defendants correctly observe that assuming Bivens applies here Plaintiff’s claim would be

3 addressed under the objective standard of a Fourteenth Amendment due process claim.

4 (Defs.’ MTD at 21-22 [ECF No. 32-33].) Under that standard, “a pretrial detainee who

5 asserts a due process claim for failure to protect [is required] to prove more than negligence

6 but less than subjective intent - something akin to reckless disregard.” Castro v. County of

7 Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016). For the purpose of this motion to

8 dismiss, the Court will assume the test for a Fifth Amendment Due Process Clause claim

9 for failure to protect a federal pre-trial detainee is identical to the Fourteenth Amendment

10 objective test. See Kingsley, 576 U.S. at 396-97 (holding that a pretrial detainee bringing

11 an excessive force claim “must show only that the force purposely or knowingly used

12 against him was objectively unreasonable.”); Graham v. Connor, 490 U.S. 386, 397 (1989)

13 (“[T]he question is whether the officers’ actions are ‘objectively reasonable’ in light of the

14 facts and circumstances confronting them, without regard to their underlying intent or

15 motivation.”); see also Malinski v. New York, 324 U.S. 401, 415 (1945) (Frankfurter, J.,

16 concurring) (“To suppose that ‘due process of law’ meant one thing in the Fifth

17 Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”)

18 The Ninth Circuit has yet to determine whether allowing a Bivens damages remedy

19 to a Fifth Amendment due process claim by a federal pre-trial detainee for failure to protect

20 would extend Bivens to a new context. That Court has, however, applied the Abbasi new

21 context test to other claims, consistently finding Bivens would be extended to new contexts.

22 In the only published opinion which the Ninth Circuit has found a damages remedy would

23 not be an extension of Bivens, Ioane v. Hodges, 939 F.3d 945 (9th Cir. 2018), the Court

24 found that a Fourth Amendment claim alleging a warrantless search of a person in violation

25 of her right to bodily privacy was sufficiently like the Bivens’ Fourth Amendment claim to

26 be free from unreasonable searches and seizures in a home. Id. at 952. The Court found

27 the extent of judicial guidance as to how the officer should have responded was well

28 established and found no differences between the two cases with respect to the rank of the

1 officers involved, the generality of the official action or the legal mandate under which the

2 officers were operating. Id. The only other Ninth Circuit case to find a claim was not

3 seeking to extend Bivens is Reid v. United States, 825 Fed.Appx. 442 (9th Cir. Sept. 2,

4 2020) (unpublished), in which the Court found that a federal prisoner’s Eighth Amendment

5 claim for retaliatory excessive use of force was not an extension of Bivens in light of

6 Carlson’s recognition of a Bivens remedy for an Eighth Amendment claim for deliberate

7 indifference to medical care. Id. at 444. The Court reasoned that such a claim “will not

8 require courts to plow new ground because there is extensive case law establishing

9 conditions of confinement claims and the standard for circumstances that constitute cruel

10 and unusual punishment.” Id. at 444-45.

11 The remaining Ninth Circuit cases which have applied the Abbasi new context test

12 have found, with one exception, that Bivens would be extended to new contexts. Most

13 recently, in Boule v. Egbert, 998 F.3d 370 (9th Cir. 2021), the Court found a Fourth

14 Amendment excessive force claim was a “modest extension” of Bivens because the two

15 cases involved federal law enforcement officials from different agencies, even though

16 Bivens also involved a Fourth Amendment claim and despite the fact that Boule’s claim

17 was “indistinguishable from Fourth Amendment excessive force claims that are routinely

18 brought under Bivens against F.B.I. agents.” Id. at 387. The Court also found Boule’s First

19 Amendment retaliation claim sought to extend Bivens to a new context despite language in

20 Hartman v. Moore, 547 U.S. 250, 256 (2006) which “explicitly stated, as part of its

21 reasoning during the course of a Bivens analysis, that such a claim may be brought,” and

22 despite the fact that “[i]t has long been the law that federal officials violate the First

23 Amendment when they retaliate for protected speech,” because the Supreme Court stated

24 in Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) that it has “never actually held that a

25 First Amendment retaliation claim may be brought under Bivens.” Id. at 389-90.

26 In Lanuza v. Love, 899 F.3d 1019 (9th Cir. 2018) an immigration detainee brought

27 a Fifth Amendment claim alleging a federal immigration prosecutor forged a document to

28 prevent adjustment to lawful permanent residence status. Id. at 1027-28. The Ninth Circuit

1 found the claim arose in a new Bivens context because “[w]e know of no other case that

2 has discussed a Bivens remedy in this context.” Id. The Lanuza opinion cited Vega v.

3 United States, 881 F.3d 1146, 1147-48 (9th Cir. 2018), which declined to extend Bivens to

4 an action by a former federal prisoner alleging violations of the First and Fifth

5 Amendments against private employees of a residential reentry program. Id. at n.5. The

6 only other published Ninth Circuit case is Rodriguez v. Swartz, 899 F.3d 719 (9th Cir.

7 2018), vacated by 140 S.Ct. 1258 (2020), in which the Court found a cross-border shooting

8 claim would require extending Bivens to a new context. Id. at 738. Lanuza also cited

9 Brunoehler v. Tarwater, 743 Fed.Appx. 740, 742 (9th Cir. 2018) (unpublished) (unlawful

10 wiretapping claim would be an extension of Bivens but typical search and seizure claim

11 would not), and Zavala v. Rios, 721 Fed.App’x. 720, 721 (9th Cir. 2018) (unpublished)

12 (applying Bivens to claim challenging prison policy regarding handling of unopened mail

13 would be an extension). Additional cases after Lanuza which have found claims would

14 extend Bivens to a new context include Martinez v. United States Bureau of Prisons, 830

15 Fed.Appx. 234, 235 (9th Cir. 2020) (unpublished) (Eighth Amendment claim alleging

16 inadequate exercise); Hobbs v. Devine, 819 Fed.Appx. 543, 544 (9th Cir. 2020)

17 (unpublished) (Fourth and Fourteenth Amendment claims against FBI agent for conduct in

18 a foreign country); Smith-Garcia v. Burke, 815 Fed.Appx. 187, 188 (9th Cir. 2020)

19 (unpublished) (Eighth Amendment claim that probation officer was deliberately indifferent

20 to a probationer’s medical care); Luis Buenrostro v. Fajardo, 770 Fed.Appx. 807, 808 (9th

21 Cir. 2019) (unpublished) (First Amendment prisoner retaliation claim); and Schwarz v.

22 Meinberg, 761 Fed.Appx 732, 734 (9th Cir. 2019) (unpublished) (Eighth Amendment

23 claim for unsanitary cell conditions, First Amendment access to courts claim, and Fifth

24 Amendment due process claim for national origin discrimination by federal prisoner).

25 Based on the foregoing Ninth Circuit authority, the Court finds that Plaintiff’s Fifth

26 Amendment failure to protect claim would extend Bivens to a new context within the

27 meaning of Abbasi. Only in Ioane and Brunoehler, which involved Fourth Amendment

28 claims indistinguishable from Bivens itself, and in Reid, which involved similar Eighth

1 Amendment prisoner mistreatment claims as Carlson, has the Ninth Circuit recognized

2 sufficiently similar situations to sustain a Bivens cause of action after Abbasi. While Reid

3 is perhaps the closest fit to the instant case in that it finds no meaningful difference between

4 the deliberate indifference standard applicable to different types of Eighth Amendment

5 prisoner abuse claims, there is a meaningful difference between the subjective standards

6 of the Cruel and Unusual Punishment Clause claim at issue in Carlson and Reid and the

7 objective standards applicable to the Due Process Clause claim at issue here. See Kingsley,

8 576 U.S. at 400 (“The language of the two clauses differs, and the nature of the claims

9 often differs.”); see also Abbasi, 137 S.Ct. 1865 (“The differences between [the detainee

10 mistreatment claim here] and the one in Carlson are perhaps small, at least in practical

11 terms. Given this Court’s expressed caution about extending the Bivens remedy, however,

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

13 The Court reaches this conclusion despite the Third Circuit’s decision in Bistrian v.

14 Levi, 912 F.3d 79 (3rd Cir. 2018). In Bistrian, the Court held that a failure to protect claim

15 by a federal pre-trial detainee alleging retaliatory assault by other inmates did not extend

16 Bivens to a new context. Id. at 91. That Court relied on a case the Abbasi majority did not

17 cite or reference, Farmer v. Brennan, 511 U.S. 825 (1994), which clarified the Eighth

18 Amendment deliberate indifference standard in a case involving a failure to protect claim

19 by a transsexual federal prisoner beaten and raped in the general population. Id. at 830;

20 see Bistrian, 912 F.3d at 91 (finding that “Farmer practically dictates our ruling today

21 because it is a given that the Fifth Amendment provides the same, if not more, protection

22 for pretrial detainees than the Eighth Amendment does for imprisoned convicts.”); but see

23 Abbasi, 137 S.Ct. at 1855 (“These three cases - Bivens, Davis, and Carlson - represent the

24 only instances in which the Court has approved of an implied damages remedy under the

25 Constitution itself.”) (emphasis added). Bistrian is not binding authority, and district courts

26 in the Ninth Circuit have disagreed with its holding. See e.g., Carey v. Von Blanckensee,

27 __F.Supp.3d__, 2021 WL 672563, at *4 (D. Ariz. Jan. 27, 2021) (“Although the Supreme

28 Court may have assumed for analytical purposes that a Bivens cause of action exists under

1 the Eighth Amendment for failing to protect an inmate, see Farmer v. Brennan, 511 U.S.

2 825 (1994), it has never specifically concluded that such a cause of action exists.”);

3 Hoffman v. Preston, 16cv1617-LJO-SAB (PC), 2020 WL 58039, at *2 (E.D. Cal. Jan. 6,

4 2020) (noting that “the U.S. Supreme Court never explicitly stated in Farmer that it was

5 recognizing an implied Bivens Eighth Amendment failure to protect claim.”), appeal filed,

6 No. 20-15396 (9th Cir. Mar. 9, 2020); see also Toney v. Williams, No. 18cv2786-WQH

7 (KSC), 2020 WL 1912168, at *5-6 (S.D. Cal. Apr. 4, 2020) (finding Bivens claim by

8 federal pre-trial detainee housed at MCC alleging a Fifth Amendment due process violation

9 from denial of administrative grievance challenging MCC medical policy was a modest

10 extension of Carlson). Although several district courts in the Ninth Circuit have found that

11 a Bivens failure to protect claim survived Abbasi, see e.g. Smith v. Shartle, 18cv0323-TUC-

12 RCC, 2021 WL 842144, at *8 (D. Ariz. Mar. 5, 2021) (collecting cases), appeal filed, No.

13 2115834 (9th Cir. May 10, 2021), those cases were decided prior to Boule, the Ninth

14 Circuit’s most recent opinion on the proper application of the Abbasi test.1

15 Accordingly, in the absence of Ninth Circuit authority directly on point, the Court

16 concludes that recognition of a damages remedy here would be at least a modest extension

17 of Bivens to a new context because a federal pre-trial detainee’s failure to protect claim is

18 different in a meaningful way from the Eighth Amendment claim presumed viable in

19 Farmer, the Eighth Amendment claim in Carlson, the Fourth Amendment prohibition

20 against unreasonable searches and seizures at issue in Bivens, and the Fifth Amendment’s

21 protection for gender discrimination recognized by Davis. Plaintiff’s claim here, a Fifth

22

23

24

1 Among the collection of cases in Smith is the initial screening order in this case where

25 the Court found Plaintiff’s allegations “sufficient to survive the low threshold for

proceeding past the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and

26

1915(A).” Marquez v. United States, 18cv0434-CAB (NLS), 2018 WL 1942418, at *4

27 (S.D. Cal. Apr. 25, 2018); but see Teahan v. Wilhelm, 481 F.Supp.2d 1115, 1119 (S.D. Cal.

2007) (noting that the sua sponte screening process is “cumulative of, not a substitute for,

28

1 Amendment claim alleging deliberate indifference to a risk of physical assault in the

2 general population of a pre-trial detention facility based on the nature of the detainee’s

3 arrest offense, arises in a different context. Among the list of meaningful differences

4 identified in Abbasi are the constitutional right at issue, the extent of judicial guidance as

5 to how the officer should respond, and the legal mandate under which the officer operated.

6 Abbasi, 137 S.Ct. at 1859-60. In addition to the differences between failure to protect a

7 prisoner based on sexual characteristics in Farmer and the claims here, all three of those

8 considerations are implicated by the difference in the objective and subjective standards

9 applicable to Fifth and Eighth Amendment claims. See Abbasi, 137 S.Ct. 1865 (“The

10 differences between this [inmate abuse] claim and the one in Carlson are perhaps small, at

11 least in practical terms. Given this Court’s expressed caution about extending the Bivens

12 remedy, however, the new-context inquiry is easily satisfied.”) In any case, the Supreme

13 Court in Farmer did not have the occasion to hold that Bivens applied to prisoner failure

14 to protect claims but merely assumed it did, and it did so nearly twenty years before Abbasi

15 was decided. See id. at 1856 (observing that “in light of the changes to the Court’s general

16 approach to recognizing implied damages remedies, it is possible that the analysis in the

17 Court’s three Bivens cases might have been different if they were decided today.”) The

18 fact that the Supreme Court has never actually recognized that Bivens applies in a failure

19 to protect a pre-trial detainee context supports a finding under Abbasi and recent Ninth

20 Circuit authority that Plaintiff is seeking to extend Bivens to a new context. See Boule, 998

21 F.3d at 389-90. Even assuming the constitutional right in Carlson and Farmer can be

22 described at a very general level and considered the same right at issue here, a right to be

23 free from abuse while in federal custody, the Supreme Court has never extended Bivens to

24 a pre-trial detainee’s failure to protect claim. See Abbasi, 137 S.Ct. at 1855 (“These three

25 cases - Bivens, Davis, and Carlson - represent the only instances in which the Court has

26 approved of an implied damages remedy under the Constitution itself.”)

27 The Court finds it would be a modest extension of the Bivens damages remedy to a

28 new context to recognize a Bivens action for Plaintiff’s Fifth Amendment pre-trial detainee

1 failure to protect due process claim. Therefore, the Court must next consider whether

2 special factors prevent an extension of Bivens under the circumstances presented here.

3 Abbasi, 137 S.Ct. at 1857.

4 2. Dismissal is not appropriate for failure to state a Bivens claim

5 Defendants argue that special factors exist which prevent an extension of Bivens to

6 Plaintiff’s failure to protect claim. (Defs.’ MTD at 13-19 [ECF No. 63 at 24-30].) They

7 identify those special factors as: (1) the fact that Congress has extensively legislated on

8 prison issues but has not authorized a damages remedy for the type of claim brought by

9 Plaintiff, (2) the potential burden on MCC and its individual employees in performing the

10 important task of running a prison, (3) the presence of an alternative remedial structure

11 available to Plaintiff, including the Federal Bureau of Prisons (“BOP”) Administrative

12 Remedy Program grievance process, a suit for declaratory and injunctive relief pursuant to

13 18 U.S.C. § 3626, and possibly a writ of habeas corpus, and (4) the “serious difficulty of

14 devising a workable cause of action.” (Id.)

15 The special factor determination “must concentrate on whether the Judiciary is well

16 suited, absent congressional action or instruction, to consider and weigh the costs and

17 benefits of allowing a damages action to proceed.” Abbasi, 137 S.Ct. at 1857-58. In order

18 “to be a ‘special factor counselling hesitation [to extend Bivens],’ a factor must cause a

19 court to hesitate before answering that question in the affirmative.” Id. at 1858.

20 “[S]eparation of powers principles are or should be central to the analysis,” and when “[t]he

21 question is ‘who should decide’ whether to provide for a damages remedy, Congress or the

22 courts? [¶] The answer most often will be Congress.” Id. at 1857, quoting Bush v. Lucas,

23 462 U.S. 367, 380 (1983). Abbasi observed “that it has consistently refused to extend

24 Bivens to any new context or new category of defendants” in the 30 years since it last did

25 so in Carlson, and that “expanding the Bivens remedy is now a disfavored judicial activity.”

26 Id. at 1857 (internal quote marks omitted).

27 The detainees in Abbasi brought claims challenging detention policies and a claim

28 alleging abuse by guards. Id. at 1853-54. Special factors counseled against extending

1 Bivens to the detention policy claims because: (1) “a Bivens action is not a ‘proper vehicle

2 for altering an entity’s policy,’” as it is designed to seek damages against individual

3 officers, (2) “[n]ational security policy is the prerogative of the Congress and President,”

4 and no damages remedy had been enacted by Congress despite “frequent and intense”

5 Congressional interest regarding the types of detainees in Abbasi and their conditions of

6 confinement, and (3) “[un]like Bivens or Davis in which ‘it is damages or nothing,’” there

7 were “faster and more direct route[s] to relief than a suit for money damages” for the claims

8 challenging the detention policies, including actions for injunctive relief and potentially

9 habeas corpus. Id. at 1860-63. Before applying the special factors test to the detainee

10 abuse claim, which is most analogous to the claim here and which the warden (like

11 Defendants here) sought to dismiss under Iqbal for failing to state a plausible Bivens claim

12 for relief, Abbasi noted that “the existence of alternate remedies usually precludes a court

13 from authorizing a Bivens action.” Id. at 1865. It suggested such remedies might include

14 a writ of habeas corpus or some form of injunctive or equitable relief, and stated:

15 Some 15 years after Carlson was decided, Congress passed the Prison

Litigation Reform Act of 1995, providing comprehensive changes to the way

16

prisoner abuse claims must be brought in federal court. See 42 U.S.C. § 1997e.

17 So it seems Congress had specific occasion to consider the matter of prisoner

abuse and to consider the proper way to remedy those wrongs. This Court has

18

said in dicta that the Act’s exhaustion provisions would apply to Bivens suits.

19 See Porter v. Nussle, 534 U.S. 516, 524 (2002). But the Act itself does not

provide for a standalone damages remedy against federal jailers. It could be

20

argued that this suggests Congress chose not to extend the Carlson damages

21 remedy to cases involving other types of prisoner mistreatment.

22 Id.

23 Finding the record had not been sufficiently developed on a motion to dismiss with

24 respect to whether Bivens should be extended to the detainee abuse claim, the Abbasi Court

25 remanded with instructions for either the district or appellate court “to perform the special

26 factors analysis itself.” Id. For the following reasons, this Court also finds the record is

27 insufficiently developed at this stage of the case, a motion to dismiss, to determine whether

28 special factors exist to prevent an extension of Bivens to Plaintiff’s claim.

1 i) Congressional silence when legislating in prison context

2 The first special factor identified by Defendants is the fact that Congress has

3 extensively legislated on prison issues but has not authorized a damages remedy for the

4 type of claim brought by Plaintiff. (Defs.’ MTD at 13-15 [ECF No. 63 at 24-26].)

5 Defendants argue Congress has legislated with respect to federal prisoners, including their

6 placement, security designation, programming, mental and medical health care and faith-

7 based concerns, and has limited judicial scrutiny of security classifications for prisoners

8 under the Americans With Disabilities Act, all without creating a separate statutory

9 damages remedy. (Id., citing 18 U.S.C. §§ 3621(b) & 3625.) The Court in Abbasi stated

10 “it could be argued that” the decision by Congress not to include a standalone damages

11 remedy in the “comprehensive changes to the way prison abuse claims must be brought in

12 federal court” through passage of the Prison Litigation Reform Act (“PLRA”), “suggests

13 Congress chose not to extend the Carlson damages remedy to cases involving other types

14 of prisoner mistreatment.” Abbasi, 137 S.Ct. at 1865; see e.g. Hernandez, 140 S.Ct. at 752

15 (Thomas, J., concurring) (noting that the Federal Torts Claims Act and 42 U.S.C. § 1983

16 show that “Congress has demonstrated that it knows how to create a cause of action to

17 recover damages for constitutional violations when it wishes to do so.”)

18 However, Congress is presumed to legislate with knowledge of Supreme Court

19 decisions. Lorillard v. Pons, 434 U.S. 575, 580-81 (1978). The PLRA did not eliminate

20 or repudiate the judicially created damages causes of action in Bivens, or that remedy as it

21 was extended to federal prisoners in Carlson, which the Court in Farmer assumed also

22 applied to failure to protect claims. See e.g. Bivens, 403 U.S. at 397 (“[W]e have here no

23 explicit congressional declaration that persons injured by a federal officer’s violation of

24 the Fourth Amendment may not recover money damages from the agents, but must instead

25 be remitted to another remedy, equally effective in the view of Congress.”) In fact, one

26 provision of the PLRA allows federal pre-trial detainee actions to proceed after an attempt

27 to resolve them prior to litigation through exhaustion of prison administrative procedures.

28 See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions

1 under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

2 prison, or other correctional facility until such administrative remedies as are available are

3 exhausted.”); id. § 1997e(h) (defining “prisoner” to include “any person incarcerated or

4 detained in any facility who is accused of . . . violations of criminal law . . . .”); see also

5 Abbasi, 137 S.Ct. at 1865 (noting that the Court has said in dicta that the exhaustion

6 provisions of the PLRA apply in Bivens suits).

7 Abbasi did not find this factor categorically counseled in favor of hesitating to

8 expand Bivens, although it could have, but remanded for it to be considered along with

9 other factors. The Court will likewise consider this factor in conjunction with the next

10 factor.

11 ii) Burden on BOP and its employees in running a prison

12 Defendants argue that recognizing a damages remedy here could burden the BOP

13 and its individual employees in performing the important task of running a prison. (Defs.’

14 MTD at 13-15, 17-18 [ECF No. 63 at 24-26, 28-29].) Defendants point out that the

15 Supreme Court has cautioned federal courts against interfering with prison operations

16 beyond the extent of specific statutes passed by Congress. See Bell, 441 U.S. at 562 (noting

17 that courts have “become increasingly enmeshed in the minutiae of prison operations” and

18 “the inquiry of federal courts into prison management must be limited to the issue of

19 whether a particular system violates any prohibition of the Constitution or, in the case of a

20 federal prison, a statute.”); Sandin v. Conner, 515 U.S. 472, 483 (1995) (noting that the

21 Supreme Court has often stated that courts must “afford appropriate deference and

22 flexibility to [prison] officials trying to manage a volatile environment.”) (collecting cases).

23 Plaintiff here alleges the refusal to place him in protective custody “went against

24 prison regulation as well as federal law,” and “[t]here was no security or administrative

25 purpose for” refusing to place him in protective custody. (FAC ¶¶ 37-39.) Defendants

26 have not identified any federal laws or prison regulations in place at MCC which would

27 contradict the plausible inference from Plaintiff’s allegations, which Defendants

28 acknowledge must be taken as true for the purpose of their motion to dismiss (Defs.’ MTD

1 at 2, n.1 [ECF No. 63 at 13 n.1]), that prison regulations were in place at MCC providing

2 for, or even requiring, protective custody. See e.g. 28 C.F.R. § 522.21(a)(1) (directing that

3 BOP staff shall conduct inmate interviews upon arrival “to determine . . . non-medical

4 reasons for housing the inmate away from the general population.”); 28 C.F.R. § 541.21

5 (establishing BOP Special Housing Units to “ensure the safety, security, and orderly

6 operation” of the facility). The record has not been developed regarding whether and to

7 what extent those regulations have been implemented at MCC, what if any effect

8 recognizing a Bivens claim arising from the failure to place Plaintiff in protective custody

9 would disrupt operations at MCC, and most importantly whether Plaintiff is challenging

10 MCC policy or merely the actions by the individual correctional officers. See Abbasi, 137

11 S.Ct. at 1860 (holding that the purpose of Bivens is not advanced by challenges to detention

12 policies); Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001) (“The purpose

13 of Bivens is to deter individual federal officers from committing constitutional violations.”)

14 (emphasis added).

15 Given the distinction the Supreme Court has made with respect to challenges to

16 detention policies which do not lend themselves to damages remedies under Bivens and

17 acts by individual federal officers which do, with respect to both congressional silence and

18 the burdens imposed on the BOP to protect pre-trial detainees from harm at the hands of

19 fellow inmates, the Court finds it is premature on the record before the Court at this time

20 to determine whether such factors necessarily preclude extending Bivens relief in this case.

21 See Navarro, 250 F.3d at 732 (“A Rule 12(b)(6) tests the legal sufficiency of a claim.”);

22 Iqbal, 556 U.S. at 678 (“To survive a motion to dismiss, a complaint must contain sufficient

23 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”)

24 (internal quote marks omitted). “A claim has facial plausibility when the plaintiff pleads

25 factual content that allows the court to draw the reasonable inference that the defendant is

26 liable for the misconduct alleged.” Id. This is consistent with Abbasi, which did not rely

27 on these factors in the abstract but remanded for record development. As discussed below,

28 such development is more appropriate on summary judgment than a motion to dismiss.

1 iii) Alternative remedial structures

2 The next special factor, which Abbasi noted is related to those just discussed and

3 potentially dispositive, provides: “If there is an alternative remedial structure present in a

4 certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of

5 action.” Abbasi, 137 S.Ct. at 1858. Defendants argue alternate available remedies exist in

6 the form of prison administrative grievance procedures and an action for declaratory and

7 injunctive relief under 18 U.S.C. § 3626. (Defs.’ MTD at 16-17 [ECF No. 63 at 27-28].)

8 They also note it is an open question whether Plaintiff could obtain relief through a federal

9 writ of habeas corpus. (Id. at 17, n.12 [ECF No. 63 at 28, n.12], citing Abbasi, 137 S.Ct.

10 at 1863-64, citing Bell, 441 U.S. at 526 n.6 (“[W]e leave to another day the question of the

11 propriety of using a writ of habeas corpus to obtain review of the conditions of

12 confinement, as distinct from the fact or length of the confinement itself.”) and Preiser v.

13 Rodriguez, 411 U.S. 475, 499 (1979) (“When a prisoner is under additional and

14 unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will

15 lie to remove the restraints making custody illegal.”)); see also Nettles v. Grounds, 830

16 F.3d 922, 931 (9th Cir. 2016) (en banc) (holding that claims by state prisoners which

17 challenge conditions of confinement but not the fact or duration of confinement must

18 proceed under 42 U.S.C. § 1983 and not on habeas, but declining to address whether that

19 applies to federal prisoners); id. at 931 n.6 (“As a further distinction, § 1983 is generally

20 unavailable to federal prisoners challenging prison conditions, but such prisoners may have

21 recourse under Bivens and the Federal Tort Claims Act.”)2

22 In support of their contention that alternative remedial structures exist in the form of

23 prison administrative remedies which preclude a Bivens claim for relief, Defendants cite to

24 Vega, where the Court declined to extend Bivens to First and Fifth Amendment due process

25

26

27 2 The Ninth Circuit has noted that the existence of a Federal Torts Claims Act claim is not

an available alternative remedy in a case like this because it does not apply to individual

28

1 and access to courts claims by a former federal prisoner against private employees of a

2 residential reentry program. The defendants in Vega allegedly removed plaintiff from the

3 program based on his race and in retaliation for filing administrative grievances. Vega,

4 881 F.3d at 1147-53. The Vega Court found adequate alternative remedies were available

5 to address the retaliation and due process complaints through the Administrative Remedy

6 Program, in particular 28 C.F.R. § 542.10(a), which Vega did not utilize and which could

7 have provided review of the residential reentry program’s policies, and 28 C.F.R.

8 § 541.7(e), which he did utilize to review the allegedly false incident report giving rise to

9 his claims and which provided relief in the form of his return to the residential reentry

10 center. Id. at 1154-55. Vega also found that the state law claims plaintiff presented, which

11 although they ultimately failed due to pleading deficiencies, did not preclude their use as a

12 special factor because “no court has held that the plaintiff’s lack of success due to

13 inadequate pleading while pursuing alternative remedies provides a basis for Bivens relief.”

14 Id. The Ninth Circuit has also found in an unpublished opinion that special factors counsel

15 against extending Bivens to a federal prisoner’s First Amendment retaliation claim because

16 “an alternative remedial structure exists . . . through the Bureau of Prisons administrative

17 grievance process” to address the plaintiff’s harassment claims. Luis Buenrostro, 770

18 Fed.Appx. at 808. That court cited Malesko, 534 U.S. at 69 (noting that the Supreme Court

19 has “rejected the claim that a Bivens remedy should be implied simply for want of any

20 other means for challenging a constitutional deprivation in federal court.”), United States

21 v. Stanley, 483 U.S. 669, 683 (1987) (“The ‘special facto(r)’ that ‘counsel(s) hesitation’ is

22 not the fact that Congress has chosen to afford some manner of relief in the particular case,

23 but the fact that congressionally uninvited intrusion into military affairs by the judiciary is

24 inappropriate.”) and Bush, 462 U.S. at 388 (“The question is not what remedy the court

25 should provide for a wrong that would otherwise go unredressed. It is whether an elaborate

26 remedial system that has been constructed step by step, with careful attention to conflicting

27 policy considerations, should be augmented by the creation of a new judicial remedy for

28 the constitutional violation at issue.”)

1 Defendants argue that the BOP’s Administrative Remedy Program grievance

2 procedures provide an alternate remedial structure sufficient to provide Plaintiff relief

3 without the need for a Bivens remedy. (Defs.’ MTD at 16 [ECF No. 63 at 27].)

4 Specifically, they rely on 28 C.F.R. § 542.13-15, which provides that inmates must first

5 attempt to informally resolve grievances with staff using a BP-8 form; if the issue remains

6 unresolved they may submit a BP-9 form to the warden; if they wish to appeal an adverse

7 decision by the warden they may submit an appeal to the Regional Director using a BP-10

8 form; and they may appeal an adverse decision from that level to the General Counsel using

9 a BP-11 form. (Id.) However, unlike the access to courts and retaliation claims in Vega

10 and Luis Buenrostro where alternative relief was available because administrative

11 procedures provided a mechanism for addressing or reversing not only the adverse actions

12 of the defendants but the harm allegedly suffered by the plaintiffs, Defendants here have

13 not shown relief though the MCC’s administrative grievance procedures was similarly

14 available to Plaintiff. That is, it is not clear based on Plaintiff’s allegations whether his

15 need to be protected could have been accommodated. In other words, it is not clear on the

16 record currently before the Court whether Plaintiff could have sought alternate relief

17 pursuant to MCC or BOP procedures requesting immediate consideration for, or placement

18 in, protective housing at the time he was interviewed during his initial classification or

19 when he returned from the hospital. Plaintiff alleges he was assaulted “soon after being

20 housed.” (FAC ¶ 15.) Without record development as to how soon after housing Plaintiff

21 was attacked or the circumstances surrounding his assault, there is no showing that the

22 administrative procedures at MCC would have been available to review the housing

23 decision in time to protect him. Neither have Defendants shown those procedures are

24 available to address Plaintiff’s injuries. See Abbasi, 137 S.Ct. at 1862 (“It is of central

25 importance, too, is that this is not a case like Bivens or Davis in which ‘it is damages or

26 nothing.’ Unlike the plaintiffs in those case, respondents do not challenge individual

27 instances of discrimination or law enforcement overreach, which due to the very nature are

28 difficult to address except by way of damages actions after the fact.”) (citation omitted).

1 The failure of Defendants to present such information, which they likely could not do

2 without converting their motion to dismiss into one for summary judgment, precludes a

3 finding at this time that the administrative remedy system is an available alternative

4 remedial structure which should not be augmented with a Bivens remedy.

5 Neither have Defendants shown that a suit for declaratory, injunctive or habeas relief

6 constitute available alternative remedies. If there was an extremely short window of

7 opportunity to seek injunctive relief to direct the MCC to place Plaintiff in protective

8 custody, that is, if he was assaulted just hours after his intake interview, which is an

9 undeveloped factual issue, it would appear that an action for declaratory or injunctive relief

10 would not have been available to prevent the assault. See Boule, 998 F.3d at 392 (“Finally,

11 injunctive relief is an inadequate remedy, for Boule is seeking damages for Agent Egbert’s

12 completed actions rather than protection against some future act.”) Also, it is unclear

13 whether and to what extent Plaintiff’s claim challenges MCC policies. See Malesko, 534

14 U.S. at 74 (“[U]nlike the Bivens remedy, which [has] never [been] considered a proper

15 vehicle for altering an entity’s policy, injunctive relief has long been recognized as the

16 proper means for preventing entities from acting unconstitutionally.”) The record has not

17 been developed regarding the exact timing of Plaintiff’s assault, or whether and to what

18 extent prison regulations or policies provided for protective custody and whether MCC

19 policies will be challenged in this action, and if so whether MCC policies function in a

20 manner which would have allowed for relief in an action for declaratory or injunctive relief

21 with respect to the decision not to place Plaintiff in protective custody. In addition, Plaintiff

22 indicates he was only in federal custody for a month, and there is no showing an action for

23 declaratory or injunctive relief would not have been rendered moot upon his release prior

24 to resolution of the merits of his claim. With respect to the open question of whether a writ

25 of habeas corpus was available to Plaintiff to challenge the conditions of his confinement

26 at MCC, again Defendants have not shown that given the potentially short window of

27 opportunity habeas was an available alternative remedy. See e.g. Reid, 825 Fed.Appx. at

28 444 (“The government does not attempt to explain how Reid’s injuries could be addressed

1 through habeas, . . . and equitable relief does nothing to cure the damage Reid already

2 suffered.”), citing Abbasi, 137 S.Ct. at 1865.

3 Accordingly, with respect to “the question whether any alternative, existing process

4 for protecting the [Plaintiff’s] interests amounts to a convincing reason for the Judicial

5 Branch to refrain from providing a new and freestanding remedy in damages,” Wilkie v.

6 Robbins, 551 U.S. 537, 550 (2007), the record is not sufficiently developed on this motion

7 to dismiss to answer that question at this time. Defendants have not shown that Plaintiff’s

8 FAC is subject to dismissal for failing to state a plausible claim for Bivens relief on this

9 basis.

10 iv) Workable cause of action

11 Finally, Defendants identify as a special factor the “serious difficulty of devising a

12 workable cause of action.” (Defs.’ MTD at 18 [ECF No. 63 at 29], citing Wilkie, 551 U.S.

13 at 555-56 (noting “difficulty in defining a workable cause of action” where the claim “fails

14 to fit the [Court’s] prior retaliation cases.”).) They contend that attempting to create a

15 judicial remedy here would involve the courts “in endless knotty issues” such as “what

16 crimes place inmates at increased risk, what other factors place inmates at risk, what are

17 the violent tendencies of the particular prison population at issue, what are the security

18 measures meant to protect inmates, and what are the resource limitations of placing inmates

19 in protective custody.” (Id., citing Oliver v. Baca, 913 F.3d 852, 858-59 (9th Cir. 2019)

20 (affirming summary judgment against state pre-trial detainee required to sleep on floor

21 during entire three and one-half day stay at county jail because no constitutional violation

22 arose from temporary emergency conditions that threatened safety and security of the

23 facility which delayed plaintiff’s placement in permanent housing), citing Bell, 441 U.S. at

24 547 (noting that correctional officials “should be accorded wide-ranging deference in the

25 adoption and execution of policies and practices that in their judgment are needed to

26 preserve internal order and discipline and to maintain institutional security.”).)

27 Again, because the record is not yet developed with respect to the details of

28 Plaintiff’s claim, that is, whether and to what extent measures were in place at MCC to

1 protect pre-trial detainees from other inmates, how Plaintiff came to be assaulted, or how

2 other inmates discovered the nature of his arrest offense, see Abbasi, 137 S.Ct. at 1860

3 (noting that it is the broad range of conditions of confinement claims which increases “the

4 risk of disruptive intrusion by the Judiciary into the functioning of other branches.”), it

5 remains to be seen what “knotty issues” might counsel against recognition of a Bivens

6 damages remedy under the circumstances. Without further record development, in

7 particular whether this case involves a challenge to detention policies at MCC, it is difficult

8 to determine if Plaintiff’s claim “fails to fit” the run-of-the-mill failure to protect claims

9 federal courts have routinely addressed for decades. See e.g. Farmer, 511 U.S. at 833

10 (noting that “prison officials have a duty . . . to protect prisoners from violence at the hands

11 of other prisoners.”), citing Wilson, 501 U.S. at 303 (“[T]he medical care a prisoner

12 receives is just as much a ‘condition’ of his confinement as the food he is fed, the clothes

13 he is issued, the temperature he is subjected to in his cell, and the protection he is afforded

14 against other inmates.”); Bell, 441 U.S. at 539 (holding that a condition of confinement of

15 a federal pre-trial detainee amounts to unconstitutional punishment where it “is arbitrary

16 or purposeless” or otherwise not reasonably related to a legitimate penological goal); see

17 also e.g. Reid, 825 Fed.Appx. at 444 (“A claim for damages based on individualized

18 mistreatment by rank-and-file federal officers is exactly what Bivens was meant to

19 address.”), citing Lanuza, 899 F.3d at 1029-32; see also Malesko, 534 U.S. at 70-71

20 (declining to extend Bivens liability where it would not advance Bivens’ purpose).

21 As discussed below with respect to Defendants’ claims of qualified immunity,

22 Plaintiff alleges a typical violation of the federal constitutional right of a pre-trial detainee

23 to be protected from harm at the hands of other inmates. As pleaded, a plausible inference

24 can be drawn from the facts alleged in the FAC that Defendants “made an intentional

25 decision with respect to the conditions under which” Plaintiff was housed, that those

26 conditions placed him “at substantial risk of suffering serious harm,” that the Defendants

27 “did not take reasonable available measures to abate that risk, even though a reasonable

28 official in the circumstances would have appreciated the high degree of risk involved-

1 making the consequences of the defendant’s conduct obvious,” and caused Plaintiff’s

2 injuries “by not taking such measures.” Gordon v. County of Orange, 888 F.3d 1118, 1125

3 (9th Cir. 2018); see e.g. Hahn v. Murphy, 07cv1153-SVW (MAN), 2011 WL 9378180, at

4 *14-15 (C.D. Cal. Sept. 23, 2011) (determination of risk of assault by other inmates turned

5 on whether there was a substantial risk inmates would learn about the prisoner’s conviction

6 for child molestation); see also Iqbal, 556 U.S. at 678 (“A claim has facial plausibility

7 when the plaintiff pleads factual content that allows the court to draw the reasonable

8 inference that the defendant is liable for the misconduct alleged.”)

9 Although on summary judgment Defendants may be able to show that allowing

10 Plaintiff’s Bivens claim to proceed presents a serious difficulty in devising a workable

11 cause of action, or even show Plaintiff cannot demonstrate based on the evidence presented

12 that he is entitled to the relief he seeks (see e.g., Defs.’ MTD at 2, n.1 [ECF No. 63 at 13

13 n.1] (noting that Plaintiff indicated on his Intake Screening Form that there was no reason

14 he could not be placed in general population)), they have not and cannot make those

15 showings on a motion filed pursuant to Fed. R. Civ. P. 12(b)(6). See Lee, 250 F.3d at 688

16 (“As a general rule, a district court may not consider any material beyond the pleadings in

17 the ruling on a Rule 12(b)(6) motion.”)

18 v) Conclusion

19 Dismissal on a motion to dismiss “can be based on the lack of a cognizable legal

20 theory or the absence of sufficient facts alleged under a cognizable theory.” Balistreri v.

21 Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Plaintiff has plausibly alleged a

22 cognizable legal theory, Bivens. Although a court may determine on a motion to dismiss

23 whether a plaintiff can in fact proceed under Bivens when that question is “antecedent” to

24 the issue of qualified immunity, Hernandez v. Mesa, 582 U.S. ___, ___, 137 S.Ct. 2003,

25 2006 (2017) (per curiam), Plaintiff’s FAC alleges constitutional violations based on events

26 which took place in 2016. The clearly established federal law applicable to the qualified

27 immunity determination is the law in place at the time of the alleged conduct. Brosseau v.

28 Haugen, 543 U.S. 194, 198 (2004) (per curiam). Here, that was before Abbasi was decided

1 in 2017, and the application of the special factors test in Abbasi is not antecedent to the

2 issue of qualified immunity.

3 In sum, there well may be special factors counseling hesitation before Plaintiff may

4 be permitted to proceed with his claims which appear to require a modest extension of

5 Bivens. Given the limitations inherent in Rule 12(b)(6) and considering the gravity of the

6 allegations made in Plaintiff’s FAC, however, the Court finds Defendants have not made

7 that showing at this time. As with the motion to dismiss in Abbasi, which also involved

8 application of the Iqbal standard, the determination whether it is appropriate to take the

9 “significant step” of extending Bivens here requires further development of the record.

10 Abbasi, 137 S.Ct. at 1856.

11 Therefore, the Court DENIES Defendant’s Motion to Dismiss Plaintiff’s individual

12 capacity claims against both Rodriguez and Kelly on the ground that Plaintiff has failed to

13 plausibly allege he is entitled to pursue a claim for money damages under Bivens. The

14 denial is without prejudice to future development of the record necessary to engage in the

15 special factors analysis Abbasi requires, and without prejudice to renewal by way of a

16 properly supported motion for summary judgment.

17 D. Qualified Immunity

18 Defendants argue they are entitled to qualified immunity even if a Bivens cause of

19 action exists because: (1) a general threat to Plaintiff’s safety as alleged in the FAC is

20 insufficient to state a claim that they were deliberately indifferent to his safety, (2) the

21 allegation Plaintiff suffered only mental and emotional injuries as a result of Defendant

22 Kelly’s failure to place him in protective custody after his return from the hospital is

23 insufficient to allege a violation of a clearly established right; and (3) there is no clearly

24 established precedent placing Defendants on notice they were required to honor a request

25 for protective custody from a pre-trial detainee for the sole reason the detainee was charged

26 with the type of sex offense with which Plaintiff was charged. (Defs.’ MTD at 19-24 [ECF

27 No. 63 at 30-35].)

28 / / /

1 “Government officials enjoy qualified immunity from civil damages unless their

2 conduct violates ‘clearly established statutory or constitutional rights of which a reasonable

3 person would have known.’” Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001), quoting

4 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When presented with a qualified

5 immunity defense, the central questions are whether: (1) the facts alleged, taken in the light

6 most favorable to the plaintiff, demonstrate that a defendant’s conduct violated a statutory

7 or constitutional right; and (2) the right at issue was “clearly established” at the time it is

8 alleged to have been violated. Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from

9 by Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that “while the sequence set

10 forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.”)

11 A right is “clearly established” when its contours are “sufficiently clear that a

12 reasonable official would understand that what he is doing violates that right.” Saucier,

13 533 U.S. at 202. “[T]he clearly established right must be defined with specificity.” City

14 of Escondido v. Emmons, 586 U.S. ___, ___, 139 S.Ct. 500, 503 (2019). “Although ‘this

15 Court’s caselaw does not require a case directly on point for a right to be clearly

16 established, existing precedent must have placed the statutory or constitutional question

17 beyond debate.’” Kinsela v. Hughes, 584 U.S. ___, ___, 138 S.Ct. 1148, 1152 (2018),

18 quoting White v. Pauly, 580 U.S. ___, ___, 137 S.Ct. 548, 551 (2017) (per curiam).

19 Plaintiff “bears the burden of showing that the right at issue was clearly established.”

20 Emmons v. City of Escondido, 921 F.3d 1172, 1174 (9th Cir. 2019).

21 1. Plaintiff has alleged a constitutional violation

22 Defendants first argue that the facts alleged in the FAC, even taken in the light most

23 favorable to Plaintiff, do not show their conduct violated a statutory or constitutional right.

24 Plaintiff alleges the Defendants were deliberately indifferent to a serious risk to his health

25 and safety when they ignored his requests for protective custody. (FAC ¶¶ 7, 36-39.)

26 Prison officials have “a duty [under the Eighth Amendment] . . . to protect prisoners from

27 violence at the hands of other prisoners.” Farmer, 511 U.S. at 833; see also id. at 832

28 (prison officials must “take reasonable measure to guarantee the safety of inmates.”), citing

1 Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). And although Farmer involved a

2 convicted prisoner, “pretrial detainees . . . possess greater constitutional rights than

3 prisoners.” Stone v. City of San Francisco, 968 F.2d 850, 857 n.10 (9th Cir. 1992), citing

4 Bell, 441 U.S. at 535. For example, a pretrial detainee bringing an excessive force claim

5 “must show only that the force purposely or knowingly used against him was objectively

6 unreasonable.” Kingsley, 576 U.S. at 396-97. Thus, the due process rights of a pre-trial

7 detainee are violated when:

8 (i) the defendant made an intentional decision with respect to the conditions

under which the plaintiff was confined; (ii) those conditions put the plaintiff

9

at substantial risk of suffering serious harm; (iii) the defendant did not take

10 reasonable available measures to abate that risk, even though a reasonable

official in the circumstances would have appreciated the high degree of risk

11

involved-making the consequences of the defendant’s conduct obvious; and

12 (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

13 Gordon, 888 F.3d at 1125; see Castro, 833 F.3d at 1071 (“[A] pretrial detainee who asserts

14 a due process claim for failure to protect [must] prove more than negligence but less than

15 subjective intent - something akin to reckless disregard.”) Defendants acknowledge those

16 standards would apply to a Bivens claim.3 (Defs.’ MTD at 21-22 [ECF No. 63 at 32-33].)

17 Defendants argue, however, that even if the facts alleged in the FAC are presumed

18 true, they show only that Plaintiff “faced a general risk of harm based on the offense for

19 which he was arrested,” and not a specific threat or “substantial risk” from being placed in

20 the general population. (Id. at 21-23 [ECF No. 63 at 32-34].) In other words, Defendants

21 claim that even if they intentionally decided to deny Plaintiff’s request for protective

22 custody based on his arrest offense, he has not sufficiently alleged facts to plausibly show

23

24

25 3 The Court observes that Castro, which clarified that an objective standard applies to pre-

trial detainee failure to protect claims after Kingsley, was decided on August 15, 2016, just

26

two days after Plaintiff arrived at MCC. As previously noted, the record has not been

27 developed as to exactly when Plaintiff was injured. The Defendants’ acknowledgement

that Castro applies for purposes of their motion to dismiss has no effect on the Court’s

28

1 a reasonable officer would have appreciated he faced a substantial risk of serious harm

2 merely due to his arrest offense.

3 Plaintiff replies that he has alleged sufficient facts to plausibly demonstrate an

4 objectively obvious danger in placing a person accused of the type of sex crime for which

5 he was arrested in the general population at MCC because Defendant Rodriguez implied

6 he was aware of the danger when he reviewed the charges during their intake interview and

7 advised Plaintiff to lie to the other inmates about the nature of his arrest offense. (Pl.’s

8 Opp’n to Defs.’ Motion to Dismiss [hereinafter “Pl.’s Opp’n”] at 7-12 [ECF No. 65 at 7-

9 12].) Plaintiff argues this shows Defendant “understood that lying to other inmates could

10 possibly avert them from making the Plaintiff the subject of attack.” (Id.) Defendant

11 Rodriguez replies that those allegations are irrelevant because the applicable test here is an

12 objective one and does not turn on his subjective belief. (Defs.’ Reply at 3 [ECF No. 67 at

13 4].) He argues that even if he was aware of a generalized threat to Plaintiff’s safety arising

14 from the sexual nature of his arrest offense, that alone is not enough to state a failure to

15 protect claim. (Id.) However, Plaintiff alleges in the FAC that during their classification

16 interview Defendant Rodriguez acknowledged the need for protective custody and referred

17 to the precise nature of Plaintiff’s arrest offense by making comments like: “What a great

18 guy” and “What an upstanding citizen.” (FAC ¶ 9.) Plaintiff also contends Rodriguez

19 went so far as to give him an emergency contact form for use “when something happens to

20 you in prison,” before he “chose to ignore Plaintiff’s requests to be placed in protective

21 custody” in violation of prison policy and federal law. (Id. ¶¶ 10-12.)

22 Defendants are correct that “vague and unsubstantiated” allegations of a risk of harm

23 are generally insufficient to state a failure to protect claim. Davis v. Scott, 94 F.3d 444,

24 447 (9th Cir. 1996). “The standard does not require that the guard or official believe to a

25 moral certainty that one inmate intends to attack another at a given place at a time certain

26 before that officer is obligated to take steps to prevent such an assault. But on the other

27 hand, he must have more than a mere suspicion that an attack will occur.” Berg v.

28 Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). The Court takes judicial notice of its own

1 docket in Plaintiff’s criminal case which is referenced in Plaintiff’s FAC, and thus

2 permitted on a motion to dismiss. Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007);

3 Van Buskirk, 284 F.3d at 980. The details of Plaintiff’s arrest offense are included in the

4 criminal complaint filed in that case. (See Compl., ECF No. 1 in So.Dist.Ca. Case No.

5 16cr2020-MMA.) As the parties are familiar with those details the Court need not recite

6 them here. But assuming the facts alleged in the FAC are true, specifically that Defendant

7 Rodriguez was aware of the nature of those charges after discussing them with Plaintiff

8 and they made the risk that Plaintiff would be assaulted by other inmates obvious, and that

9 Defendant Kelly was aware that Plaintiff was returning from the hospital after suffering

10 life-threatening injuries as a result of not being placed in protective custody which made

11 the risk of further assault obvious, the Court finds that Plaintiff’s allegations that

12 Defendants twice ignored his requests for protective custody plausibly allege a federal

13 constitutional violation. See e.g. Farmer, 511 U.S. at 842 (noting that “a factfinder may

14 conclude that a prison official knew of a substantial risk from the very fact that the risk

15 was obvious.”); Berg, 794 F.2d at 460-61 (allegation that guard ignored obvious risk to

16 prisoner’s safety and released him from protective custody who was then beaten and raped

17 stated a prima facie cause of action under the Eighth and Fourteenth Amendments); Foster

18 v. Runnels, 554 F.3d 807, 816 (9th Cir. 2009) (denying qualified immunity for prison guard

19 who was on notice that clearly established federal law precluded ignoring obvious risk to

20 inmate’s health); Farmer, 511 U.S. at 834 (“Being violently assaulted in prison is simply

21 not ‘part of the penalty that criminal offenders pay for their offenses against society.’”),

22 quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

23 Accordingly, the Court finds the facts alleged by Plaintiff, when taken in the light

24 most favorable to him, are sufficient to allege a violation of his constitutional right to be

25 free from deliberate indifference to his health and safety. See Saucier, 533 U.S. at 201.

26 The Court therefore DENIES Defendants’ Motion to Dismiss the FAC on the basis they

27 are entitled to qualified immunity because Plaintiff has failed to sufficiently allege a

28 constitutional violation.

1 2. Clearly Established Law: Defendant Rodriguez

2 Defendant Rodriguez next seeks dismissal on qualified immunity grounds arguing

3 there is no Supreme Court or Ninth Circuit precedent which clearly establishes he had a

4 duty to protect Plaintiff simply based on the nature of his charged sex offense. (Defs.’

5 MTD at 23 [ECF No. 63 at 34].)

6 “The relevant inquiry [with respect to the required degree of specificity of the clearly

7 established federal law for qualified immunity] is whether existing precedent placed the

8 conclusion that [Defendant] acted unreasonably in these circumstances ‘beyond debate.’”

9 Mullenix v. Luna, 577 U.S. 7, 13-14 (2015), quoting Ashcroft v. Al-Kidd, 563 U.S. 731,

10 741 (2011); Kinsela, 138 S.Ct. at 1152 (“This Court has repeatedly told courts . . . not to

11 define clearly established law at a high level of generality.”) Evidence that attacks on

12 certain classes of inmates are “longstanding, pervasive, well-documented, or expressly

13 noted by prison officials in the past” may be relevant to the risk element of a failure to

14 protect claim. Farmer, 511 U.S. at 842-43.

15 As Farmer noted in 1994:

16 a prison official [may not] escape liability for deliberate indifference by

showing that, while he was aware of an obvious, substantial risk to inmate

17

safety, he did not know that the complainant was especially likely to be

18 assaulted by the specific prisoner who eventually committed the assault. . . .

and it does not matter whether the risk comes from a single source or multiple

19

sources, any more than it matters whether a prisoner faces an excessive risk

20 of attack for reasons personal to him or because all prisoners in his situation

face such a risk.

21

22 Id. at 843 (citation omitted) (emphasis added).

23 Plaintiff has plausibly alleged he was in such a situation at MCC due to his arrest

24 offense. See e.g. Hahn v. Murphy, 07cv1153-SVW (MAN), 2011 WL 9378180, at *14-15

25 (C.D. Cal. Sept. 23, 2011) (determination whether risk of assault by other inmates to federal

26 prisoner with child molestation conviction was obvious or merely general turned on

27 whether there was a substantial risk other inmates would or did learn about the conviction

28 though the prison law library), citing Farmer, 511 U.S. at 834; see also e.g. Bush v. Baca,

1 08cv1217-SJO (PJW), 2010 WL 4718512, at *5 (C.D. Cal. Sept. 3, 2010) (report and

2 recommendation) (finding deputies liable for failure to protect absent a specific threat to a

3 child molester because he “fits within a class of prisoners who the deputies know will be

4 attacked if put in contact with prisoners from the general population and for which they

5 have a duty to protect, even in the absence of a specific threat.”), adopted, 2010 WL 471994

6 (Nov. 10, 2010). Moreover, the lack of a developed record at the motion to dismiss stage

7 prevents a determination of whether it is beyond debate whether Defendant Rodriguez

8 violated a clearly established right because “objective reasonableness turns on the ‘facts

9 and circumstances of each particular case,’” Kingsley, 576 U.S. at 397, quoting Graham,

10 490 U.S. at 396, and because the qualified immunity inquiry “must be undertaken in light

11 of the specific context of the case, not as a broad general proposition.” Brousseau, 543

12 U.S. at 198.

13 When qualified immunity is asserted on a Rule 12(b)(6) motion to dismiss,

14 “dismissal is not appropriate unless [the Court] can determine, based on the complaint

15 itself, that qualified immunity applies.” O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir.

16 2016). Pursuant to Fed. R. Civ. P. 12(b)(6), and accepting as true Plaintiff’s allegation that

17 Defendant Rodriguez was aware of an obvious risk to his safety, but lacking any factual

18 development with respect to the obviousness of that risk at MCC or with respect to the

19 reasonableness of Defendant’s decision not to provide protective custody or take other

20 reasonable available measures to abate the risk, and in light of clearly established law

21 requiring protection of pre-trial detainees from obvious risks of harm, the Court finds

22 Plaintiff has carried his “burden of showing that the right at issue was clearly established,”

23 Emmons, 921 F.3d at 1174, and that Defendant Rodriguez has failed to show his conduct

24 did “not violate clearly established statutory or constitutional rights of which a reasonable

25 person would have known.” Mullenix, 577 U.S. at 11; see also Saucier, 533 U.S. at 202 (a

26 right is “clearly established” when its contours are “sufficiently clear that a reasonable

27 official would understand that what he is doing violates that right.”); Hope v. Pelzer, 536

28 U.S. 730, 741 (2002) (noting that risk to inmate heath and safety may be “so obvious that

1 our own Eighth Amendment cases [such as Farmer] gave respondents fair warning that

2 their conduct violated the Constitution.”); Keates v. Koile, 883 F.3d 1228, 1235 (9th Cir.

3 2018) (“If the operative complaint ‘contains even one allegation of a harmful act that would

4 constitute a violation of a clearly established constitutional right,’ then” granting qualified

5 immunity on a motion to dismiss is prohibited), quoting Pelletier v. Fed. Home Loan Bank

6 of San Francisco, 968 F.2d 865, 872 (9th Cir. 1992).

7 Defendant Rodriguez’ Rule 12(b)(6) Motion to Dismiss based on his entitlement to

8 qualified immunity is DENIED without prejudice to its renewal on summary judgment.

9 3. Clearly Established Law: Defendant Kelly

10 Defendant Kelly claims she is entitled to qualified immunity because there is no

11 clearly established Supreme Court or Ninth Circuit precedent which recognizes as

12 sufficiently serious the mental and emotional injuries Plaintiff allegedly suffered for the

13 approximately one month after he returned from the hospital and was re-housed by

14 Defendant Kelly in the same dormitory and same bunk as before. (Defs.’ MTD at 23-24

15 [ECF No. 63 at 34-35].) Plaintiff replies that Defendant Kelly was aware of his need for

16 protective custody because she knew he had just returned from the hospital after being

17 assaulted and nearly killed, that a reasonable person would have known of the dangers, and

18 her decision “caused great mental and emotional distress.” (Pl.’s Opp’n at 8-9 [ECF No.

19 65 at 8-9].) Defendant replies that because Plaintiff admits he did not suffer physical injury

20 after returning from the hospital, she is entitled to qualified immunity for lack of a showing

21 of physical harm arising from her actions. (Defs.’ Reply at 3-4 [ECF No. 67 at 4-5].)

22 Inmates are generally barred from pursuing claims for mental and emotional injuries

23 if they suffered no physical injury or only de minimis injuries. Oliver v. Keller, 289 F.3d

24 623, 626-29 (9th Cir. 2002), citing 42 U.S.C. § 1997e(e) (“No Federal civil action may be

25 brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

26 emotional injury suffered while in custody without a prior showing of physical injury or

27 the commission of a sexual act (as defined in section 2246 of Title 18).”) However, as

28 described above, Plaintiff has alleged he suffered serious, permanent, life-threatening

1 physical injuries. Even to the extent it is not appropriate to consider those earlier injuries

2 with respect to Defendant Kelly, Plaintiff has alleged more than just mental and emotional

3 injuries attributable to Kelly’s decision to house him in general population rather than

4 protective custody. The FAC alleges that as a result of Defendant Kelly’s decision to

5 ignore his request for protective custody and place him in the same dormitory and same

6 bunk as before, he suffered “diarrhea, unbearable stomach pain, back pain, testicle pain,

7 leg pain, fever, night terrors, confusion, restlessness, loss of ap[p]etite, weight loss and

8 mental and emotional distress.” (FAC ¶¶ 30, 33.) Because Defendants seek dismissal

9 pursuant to Fed. R. Civ. P. 12(b)(6), and Plaintiff plausibly alleges serious physical and

10 emotional injuries as a result of Defendant’s purported acts and omissions, the Court need

11 not further decide which if any of those physical injuries are sufficiently serious or were

12 the direct result of Defendant Kelly’s alleged deliberate indifference to an obvious risk to

13 Plaintiff’s health or safety. See O’Brien, 818 F.3d at 936 (when qualified immunity is

14 asserted on a motion to dismiss, “dismissal is not appropriate unless we can determine,

15 based on the complaint itself, that qualified immunity applies.”); see also Oliver, 289 F.3d

16 at 630 (“To the extent that appellant [pre-trial detainee] has actionable claims for

17 compensatory, nominal or punitive damages - premised on violations of his Fourteenth

18 Amendment rights, and not on any alleged mental or emotional injuries - we conclude the

19 claims are not barred by 1997e(e).”)

20 The Court finds Plaintiff has carried his “burden of showing that the right at issue

21 was clearly established,” Emmons, 921 F.3d at 1174, and that Defendant Kelly has failed

22 to show her conduct did “not violate clearly established statutory or constitutional rights of

23 which a reasonable person would have known.” Mullenix, 577 U.S. at 11; Saucier, 533

24 U.S. at 201 (a right is “clearly established” when its contours are “sufficiently clear that a

25 reasonable official would understand that what he is doing violates that right.”); Keates,

26 883 F.3d at 1235 (“If the operative complaint contains even one allegation of a harmful act

27 that would constitute a violation of a clearly established constitutional right, then” granting

28 qualified immunity on a motion to dismiss is prohibited) (internal quote marks omitted).

1 Defendant Kelly’s Rule 12(b)(6) Motion to Dismiss based on an entitlement to

2 || qualified immunity is DENIED without prejudice to its renewal on summary judgment.

3 || VI. Conclusion and Order

4 Accordingly, the Court GRANTS in part and DENIES in part the Motion to Dismiss

5 ||brought by Defendants Rodriguez and Kelly pursuant to pursuant to Fed. R. Civ. P.

6 || 12(b)(6) as set forth above. The claims against both Defendants in their official capacities

7 ||are DISMISSED with prejudice. The Motion to Dismiss the claims against Defendants in

8 individual capacities and for qualified immunity is DENIED without prejudice to

9 || renewal on summary judgment.

10 Defendants shall file an answer as to the surviving claim of Plaintiff's complaint no

11 than July 23, 2021.

12 IT IS SO ORDERED.

13 Dated: July 6, 2021 €

14

Hon. Cathy Ann Bencivengo

15 United States District Judge

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