Schwarz v. Meinberg

Full title: BENJAMIN R. SCHWARZ, in his individual and class representative…

Court: UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Date published: Feb 13, 2019

No. 17-55298 (9th Cir. Feb. 13, 2019)

Opinion

No. 17-55298 No. 17-56216

02-13-2019

BENJAMIN R. SCHWARZ, in his individual and class representative capacities, Plaintiff-Appellant, v. ERWIN MEINBERG; et al., Defendants-Appellees.

NOT FOR PUBLICATION

D.C. No. 2:13-cv-00356-BRO-PLA MEMORANDUM^* D.C. No. 2:17-cv-00330-BRO-PLA Appeal from the United States District Court for the Central District of California
Beverly Reid O'Connell, District Judge, Presiding
Submitted February 11, 2019^** Pasadena, California Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges.

* 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).

Plaintiff-Appellant Benjamin Schwarz challenges, in two appeals, the district court's dismissal of his claims alleging violations of the Fifth and Eighth Amendments by Bureau of Prisons (BOP) officials related to his incarceration at the Los Angeles Metropolitan Detention Center (MDC). Both Schwarz I and Schwarz II involve the same set of facts and claims—that BOP officials subjected Schwarz to unsanitary cell conditions, denied him access to the courts, and ignored his request for placement in a camp facility in violation of his constitutional rights. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court's grant of summary judgment and dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Oklevueha Native Am. Church of Hawaii, Inc. v. Lynch, 828 F.3d 1012, 1015 (9th Cir. 2016); Carlin v. DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir. 2013).

We decline to extend Bivens remedies to Schwarz's claims—unsanitary cell conditions, access to courts, and request for placement in a camp facility—because these claims do not fall within claims authorized by the Supreme Court. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In Ziglar v. Abbasi, the Court cautioned lower courts not to expand Bivens remedies outside the three previously recognized Bivens claims. 137 S. Ct. 1843, 1854-55, 1857-61 (2017) (citing Bivens, 403 U.S. at 396 (recognizing a damages remedy for an unreasonable search and seizure under the Fourth Amendment); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (permitting a damages remedy for gender discrimination under the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14, 19 (1980) (allowing a damages remedy for an Eighth Amendment violation for failure to provide adequate medical treatment)). While there is some similarity in the constitutional basis of Schwarz's claims with previously recognized Bivens claims, Schwarz's claims nevertheless "arise[] in a new Bivens context." Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2017) (quoting Abbasi, 137 S. Ct. at 1864). In other words, the claims are "different in a meaningful way from previous Bivens cases decided by [the Supreme Court]." Id.

Schwarz's Eighth Amendment claim regarding unsanitary cell conditions presents a new Bivens context because Schwarz does not allege a failure to treat a serious medical condition, which was the issue in Carlson. 446 U.S. at 16. Rather, the basis of Schwarz's claim—a nonfunctioning toilet—resembles the conditions of the confinement claim the Supreme Court rejected in Abbasi. See Abbasi, 137 S. Ct. at 1862.

Schwarz's access to courts claim under the First and Fifth Amendments and his Fifth Amendment claim that the BOP unlawfully denied his request for a camp placement also constitute new Bivens contexts. First, the Supreme Court has never recognized a Bivens claim under the First Amendment. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). Second, we recently held that both a First Amendment access to courts and a Fifth Amendment procedural due process claims presented new Bivens contexts. See, e.g., Vega, 881 F.3d at 1153. Third, while Davis recognized a Fifth Amendment due process claim for gender discrimination, 442 U.S. at 248-49, Schwarz's due process claim is a new context because it alleges national origin discrimination.

If a proposed claim arises in a new context, courts must conduct a special factors analysis to determine whether to extend a Bivens remedy to that claim. Vega, 881 F.3d at 1153. However, the Supreme Court makes "clear that a Bivens remedy will not be available if there are 'special factors counseling hesitation in the absence of affirmative action by Congress.'" Abbasi, 137 S. Ct. at 1857 (quoting Carlson, 446 U.S. at 18). One such "hesitation" is "if there is an alternative remedial structure present" which "alone may limit the power of the Judiciary to infer a new Bivens cause of action." Id. at 1858; see also Wilke v. Robbins, 551 U.S. 537, 550 (2007) (holding that courts should refrain from providing new remedies when alternative processes exist). Here, Schwarz had alternative processes by which to pursue his claims and remedies. For example, he could have sought a remedy under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), or through injunctive remedies.

Furthermore, we find that extending Bivens remedies to Schwarz's claims against regional and national BOP officials, individuals who lack direct connection to Schwarz's grievances, undermines the purpose of Bivens liability—to deter individual government officers, not their supervisors or the agency, from engaging in unconstitutional conduct. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001) (declining to extend Bivens liability when it would not advance Bivens' purpose). We also find that extending Bivens to Schwarz's claims would substantially affect government operations and unduly burden BOP officials who must defend against this suit in their personal capacities.

We reject Schwarz's challenge to the district court's application of a two-year statute of limitations period in Schwarz II. The statute of limitations for a Bivens claim is equivalent to a personal injury claim in the forum state. See Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004); Van Strum v. Lawn, 940 F.2d 406, 410 (9th Cir. 1991). Personal injury claims in California have a two-year statute of limitations, which a court may toll for up to two years during a prisoner's incarceration. See Cal. Code Civ. P. §§ 335.1, 352.1. We have previously interpreted California law to hold that pendency of a claim in one forum does not toll the statute of limitation for a later claim in the same forum.¹ Schwarz fails, furthermore, to meet California's equitable tolling requirements. See generally Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999).

1 See Mitchell v. Snowden, 700 F. App'x 719, 720 (9th Cir. 2017) (unpublished).

Finally, the district court previously dismissed Schwarz's due process claims with prejudice, rejecting his argument relating to the nonfunctioning grievance system. We affirmed on those grounds.² Because we decline to reconsider our prior ruling, Schwarz's due process claims are foreclosed.

2 See Schwarz v. Meinberg, 637 F. App'x 374 (9th Cir. 2016) (unpublished).

AFFIRMED.