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refusing to extend Bivens to a constitutional claim against a probation officer
Summary of this case from Challenger v. BassolinoOpinion
No. 19-55449
08-06-2020
DAVID SMITH-GARCIA, AKA David Garland Atwood II, Plaintiff-Appellant, v. PAULA BURKE, U.S. Probation Officer, Defendant-Appellee, and UNITED STATES OF AMERICA; U.S. PROBATION, Defendants.
NOT FOR PUBLICATION
D.C. No. 3:17-cv-01315-MMA-BLM MEMORANDUM Appeal from the United States District Court for the Southern District of California
Michael M. Anello, District Judge, Presiding Submitted August 4, 2020 San Francisco, California Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, 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). --------
David Smith-Garcia, AKA David Garland Atwood II, challenges the district court's dismissal of his claims alleging an Eighth Amendment violation by U.S. Probation Officer Paula Burke related to Smith-Garcia's supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1115 (9th Cir. 2013). A complaint does not require "detailed factual allegations," but it "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal marks and citations omitted).
We decline to extend a Bivens remedy to Smith-Garcia's claim. 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, 1854-57 (2017) (citing Bivens, 403 U.S. at 396 (unreasonable search and seizure under the Fourth Amendment); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (gender discrimination under the Fifth Amendment Due Process Clause); Carlson v. Green, 446 U.S. 14, 19 (1980) (Eighth Amendment violation for failure to provide adequate medical treatment)). Smith-Garcia's claim—that a U.S. Probation Officer was deliberately indifferent to his medical care when the officer prevented him from moving to San Diego to seek free medical care while under supervised release—arises in a new Bivens context. See Abbasi, 137 S.Ct. at 1864.
If a proposed claim arises in a new context, courts must conduct a two-step analysis to determine whether to extend a Bivens remedy. Vega v. United States, 881 F.3d 1146, 1153 (9th Cir. 2018). At step one, the court asks "whether any alternative, existing process for protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Id. Because Smith-Garcia has an alternative process by which to pursue his claim—filing a motion to transfer his supervised release—we need not reach step two.
Finally, the district court did not abuse its discretion in dismissing Smith-Garcia's motion to recuse. See United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012). "[A] reasonable person with knowledge of all the facts" would not conclude that the district court judge's "impartiality might reasonably be questioned." Mayes v. Leipziger,729 F.2d 605, 607 (9th Cir. 1984) (internal quotation marks and citations omitted); see Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993) (plaintiff's assertions "are nothing more than speculation.").