Opinion
20-15396
10-11-2022
MARCELLAS HOFFMAN, Plaintiff-Appellant, v. PRESTON, and Defendant-Appellee, D. COYLE; et al., Defendants.
NOT FOR PUBLICATION
Argued and Submitted February 8, 2021 San Francisco, California
Appeal from the United States District Court for the Eastern District of California D.C. No. 1:16-cv-01617-LJO-SAB Lawrence J. O'Neill, District Judge, Presiding
Before: WARDLAW and BEA, Circuit Judges, and ROSENTHAL, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
MEMORANDUM
Marcellas Hoffman, a federal prisoner, alleges that a correctional officer, Timothy Preston, labeled him a snitch to other prisoners, offered those prisoners a bounty to assault him, and failed to protect him from a predictable assault by another prisoner. Hoffman sued Preston for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court dismissed Hoffman's action with prejudice. We have jurisdiction over the district court's final judgment under 28 U.S.C. § 1291. Reviewing de novo the district court's dismissal of Hoffman's complaint, Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir. 2011), we affirm.
In Bivens, the Supreme Court recognized an implied cause of action arising directly under the Constitution for damages against federal officers alleged to have violated a plaintiff's constitutional rights. 403 U.S. at 389. The Bivens Court held that damages were recoverable against federal officers who violated the Fourth Amendment's prohibition against unreasonable search and seizures. Id. at 397. The Supreme Court subsequently approved a Bivens remedy under the Fifth Amendment's due process clause for gender discrimination by a member of the United States Congress. Davis v. Passman, 442 U.S. 228 (1979). The Supreme Court also approved a Bivens remedy for prison officials' failure to provide adequate medical care, in violation of the Eighth Amendment. Carlson v. Green, 446 U.S. 14 (1980). Since Bivens, these are the only contexts in which the Supreme Court has recognized Bivens claims.
The Supreme Court has recently and repeatedly "made clear that expanding the Bivens remedy is now a 'disfavored' judicial activity." Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). In Egbert v. Boule, 142 S.Ct. 1793 (2022), the Supreme Court emphasized that "[t]he Bivens inquiry does not invite federal courts to independently assess the costs and benefits of implying a cause of action." Id. at 1805. Rather, "[a] court faces only one question: whether there is any rational reason (even one) to think that Congress is better suited to 'weigh the costs and benefits of allowing a damages action to proceed.'" Id. (emphases in original) (quoting Ziglar, 137 S.Ct. at 1858). That question is answered affirmatively if "Congress has provided alternative remedies for aggrieved parties in [the plaintiff's] position." Id. at 1806. The nature of an alternative remedy is of no moment: "[s]o long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy." Id. at 1807.
The plaintiff in Carlson alleged that prison officials kept him in an inadequate medical facility, gave him the wrong treatments, and failed to provide competent medical attention for hours after an asthma attack. 446 U.S. at 16 n.1. Hoffman's complaint alleges that a prison correctional officer intentionally created the risk that another prisoner would assault Hoffman by publicly labeling him as a snitch and offering prisoners rewards. The Supreme Court's decision in Egbert v. Boule precludes recognizing a Bivens remedy for these allegations. Congress has not authorized a damages remedy in this context, and there are "rational reason[s]," Egbert, 142 S.Ct. at 1803, why it might not, for example, the existence of the Bureau of Prisons' formal review process for inmate complaints.
AFFIRMED.
The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, sitting by designation.