acknowledging Supreme Court’s reluctance to recognize any new Bivens claims
How later courts described this case
- acknowledging Supreme Court’s reluctance to recognize any new Bivens claims
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JARVIS BROWN, No. 21-16446
Plaintiff-Appellant, D.C. No. 1:20-cv-00204-DAD-SAB
v.
MEMORANDUM*
ANDRE MATEVOUSIAN; KIMBERLY
BANKS; BELINDA AUTERSON; JASON
HESS; MARY MITCHELL; IAN
CONNORS; GERTA TODD; KEN REID,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted August 23, 2023**
Before: O’SCANNLAIN, KLEINFELD, and SILVERMAN, Circuit Judges.
Federal prisoner Jarvis Brown appeals pro se from the district court’s
judgment dismissing his action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging a Fifth Amendment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
claim concerning the prison disciplinary process and an Eighth Amendment claim
for failure to protect. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim. Belanus v.
Clark, 796 F.3d 1021, 1024 (9th Cir. 2015). We review a district court’s denial of
leave to amend for abuse of discretion, but the question of futility of amendment is
reviewed de novo. United States v. United Healthcare Ins. Co., 848 F.3d 1161,
1172 (9th Cir. 2016). We affirm.
The district court properly dismissed Brown’s action because his claims do
not arise in one of the three contexts the Supreme Court has recognized for Bivens
claims, and thus would require expansion of the Bivens remedy. See Egbert v.
Boule, 142 S. Ct. 1793, 1799, 1803-07 (2022) (explaining that recognizing a cause
of action under Bivens is “a disfavored judicial activity” and that the presence of an
alternative remedial process precludes recognizing a Bivens cause of action in a
new context); Mejia v. Miller, 61 F.4th 663, 666 (9th Cir. 2023) (acknowledging
Supreme Court’s reluctance to recognize any new Bivens claims).
The district court properly denied Brown leave to amend, noting that he had
already twice been granted leave to amend after the deficiencies in his complaints
were identified, and that he had still failed to state a claim. Given those
circumstances, it was appropriate for the district court to determine that the
granting of further leave to amend would be futile.
AFFIRMED.
2 21-16446