United States District Court, E.D. California
GORDON C. REID, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO GRANT DEFANDANT'S
MOTION TO DISMISS ACTION FOR FAILURE TO STATE A CLAIM, (ECF,
71) FOURTEEN (14) DAY OBJECTION DEADLINE
Michael J. Seng UNITED STATES MAGISTRATE JUDGE.
is a federal prisoner proceeding pro se and in forma pauperis
in this civil rights action brought pursuant to Bivens v.
Six Unknown Named Agents, 403 U.S. 388 (1971). The
action proceeds solely on Plaintiff's First Amendment
retaliation claim against Defendant Ontiveroz.
28, 2015, this Court screened Plaintiff's first amended
complaint and found it states a claim of First Amendment
retaliation against Defendant Ontiveroz. (ECF No. 31.) Before
the Court is Defendant's motion to dismiss the action for
failure to state a claim; Defendant argues that First
Amendment retaliation claims under Bivens are
disfavored. (ECF No. 71.) Plaintiff did not respond to the
motion and the time for doing so has passed. Local Rule
230(l). The matter is submitted.
Motion to Dismiss Under Federal Rule of Civil Procedure
has not yet answered the complaint, and thus his motion to
dismiss is brought under Federal Rule of Civil Procedure
motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of the claims alleged in the complaint. See
Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995). When reviewing a motion to dismiss for failing to
state a claim, the court must "accept as true all of the
factual allegations contained in the complaint, "
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007) (per curiam) (citation omitted), and
may dismiss the case "only where there is no cognizable
legal theory or an absence of sufficient facts alleged to
support a cognizable legal theory." Shroyer v. New
Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th
Cir. 2010) (citation & quotation marks omitted). When a
complaint presents a cognizable legal theory, the court may
grant the motion if the complaint lacks "sufficient
factual matter to state a facially plausible claim to
relief." Id. (citing Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009)). A claim has facial plausibility when a plaintiff
"pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 129 S.Ct. at 1949
Plaintiff's complaint, as noted in this Court's
screening order, contains sufficient factual allegations to
allege a cognizable claim under a theory of First Amendment
retaliation. However, Defendant Ontiveroz argues that the
recent case Ziglar v. Abbasi, 137 S.Ct. 1843 (2017),
provides guidance that First Amendment retaliation is no
longer a cognizable legal theory under Bivens.
First Amendment Retaliation under Bivens
is a federal prisoner proceeding under Bivens, the
federal analog to suits brought against state officials under
42 U.S.C. § 1983. Hartman v. Moore, 547 U.S.
250 (2006). To date, the Supreme Court has only recognized a
Bivens remedy in the context of the Fourth, Fifth,
and Eighth Amendments. See Bivens, 403 U.S. 388
(Fourth Amendment prohibition against unreasonable searches
and seizures); Davis v. Passman, 442 U.S. 228 (1979)
(Fifth Amendment gender-discrimination); Carlson v.
Green, 446 U.S. 14 (1980) (Eighth Amendment Cruel and
Unusual Punishments Clause). The Supreme Court has recently
made clear that “expanding the Bivens remedy
is now a disfavored judicial activity, ” and it has
therefore “consistently refused to extend
Bivens to any new context or new category of
defendants.” Ziglar v. Abbasi, 137 S.Ct. 1843,
1857 (2017) (citations omitted).
first step in determining whether to extend a Bivens
remedy is to determine “whether the claim arises in a
new Bivens context, i.e., whether the case is
different in a meaningful way from previous Bivens
cases decided by [the Supreme Court].” Id. at
1864. “[A] case can present a new context for
Bivens purposes if it implicates a different
constitutional right; if judicial precedents provide a less
meaningful guide for official conduct; or if there are
potential special factors that were not considered in
previous Bivens cases.” Id.
the constitutional right at issue differs from that
recognized in prior Supreme Court cases. As stated, the
Supreme Court has only recognized a Bivens remedy in
the context of the Fourth, Fifth, and Eighth Amendments,
never in a First Amendment claim. See Reichle v.
Howards, 566 U.S. 658, 663 n.4 (2012) (“We have
never held that Bivens extends to First Amendment
claims.”). But see Iqbal, 556 U.S. at 675
(“[W]e assume, without deciding, that respondent's
First Amendment claim is actionable under Bivens.”).
While the Ninth Circuit has previously held that
Bivens may be extended to First Amendment claims,
Gibson v. United States, 781 F.2d 1334, 1342 (9th
Cir. 1986) (permitting First Amendment retaliation claim
under Bivens); Moss v. U.S. Secret Serv.,
572 F.3d 962, 967 n.4 (9th Cir. 2009) (noting Bivens
extends to First Amendment damages claims), it has recently
revisited this question in light of Abbasi, see
Vega v. United States, No. 13-35311, 2018 WL 740184, at
*5 (9th Cir. Feb. 7, 2018) (declining to extend
Bivens remedy to First Amendment access to courts
and Fifth Amendment procedural due process claims against
private employees of residential reentry center). These
earlier Ninth Circuit cases are therefore not controlling.
Under Abbasi, the relevant question is whether the
Bivens context differs meaningfully from cases
decided by the Supreme Court. See Abbasi, 137 S.Ct.
at 1859, 1864.
claim presents a new Bivens context, the Court must
consider whether special factors counsel against extension of
Bivens into this area. This inquiry recognizes that
the decision to authorize damages suits is most often left to
Congress. Id. at 1848. “[T]he inquiry must
concentrate on whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to
proceed.” Id. at 1857-58. This requires the
court to assess the impact on governmental operations
system-wide, including the burdens on government employees
who are sued personally, as well as the projected costs and
consequences to the government itself. Id. at 1858.
existence of alternative remedies usually precludes a court
from authorizing a Bivens action.”
Id. at 1865. Here, Plaintiff has or had alternative
remedies available to him through the Bureau of Prisons
administrative grievance process, federal tort claims under
the FTCA, habeas corpus claims under § 2241 (if the
claim would spell speedier release), and Bivens
claims to the extent that any alleged retaliation took the
form of conduct that has already been determined by the
Supreme Court to be actionable under Bivens. See
Vega, 2018 WL 740184, at *6 (availability of
administrative remedies and tort claims counseled against
extending Bivens remedy); Buenrostro v.
Fajardo, No. 1-14-CV-00075-DAD-BAM-PC, 2017 WL 6033469,
at *2-*4 (E.D. Cal. Dec. 5, 2017) (declining to infer
Bivens remedy for First Amendment retaliation
claim). Additionally, where a prisoner faces ongoing
retaliation, he may seek injunctive relief. See 18
U.S.C. § 3626(a)(2); Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 74 (2001) ...