Opinion
2:20-cv-01768-JDP (PC)
06-05-2023
ANTONIO LAMONT CAIN, Plaintiff, v. B. PAVIGLIANTI, Defendant.
ORDER
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE.
Plaintiff is a former 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). Plaintiff seeks damages against defendant B. Paviglianti, a correctional officer at the Federal Correctional Institution in Herlong, California, for using excessive force against him in violation of the Eighth Amendment. Defendant moves to dismiss on the ground that Egbert v. Boule, 142 S.Ct. 1793 (2022), precludes relief. ECF No. 59. In response, plaintiff has filed a document titled “Motion to Dismiss,” which I construe as an opposition to defendant's motion. ECF No. 61. I will grant defendant's motion.
Plaintiff called the court on May 9, 2023, and indicated that he is no longer incarcerated.
The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c). See ECF No. 60).
Background
In the first amended complaint, plaintiff alleges that on January 28, 2020, he was handcuffed while being escorted by Paviglianti. ECF No. 13 at 1. He claims that Paviglianti slapped him across the face several times without cause and pushed him to the ground. Id. He alleges that Paviglianti then moved him into a “visual search cell” and slammed his head against the wall four times. Id.
On May 7, 2021, the court screened the operative complaint and found that plaintiff had stated an Eighth Amendment excessive force claim against Paviglianti. ECF No. 16.
Legal Standard
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief' to give the defendant “fair notice” of what the claims are and the grounds on which they rest. Fed.R.Civ.P. 8(a)(2); BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint does not need detailed factual allegations, but “a plaintiff's obligation to provide the ‘grounds' of his ‘entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citations omitted).
Put another way, a complaint must contain sufficient factual allegations that, when accepted as true, “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); NorthBay Healthcare Grp., Inc. v. Kaiser Found. Health Plan, Inc., 838 Fed.Appx. 231, 234 (9th Cir. 2020). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (internal citations omitted). Still, “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
A court should construe pro se complaints liberally, “particularly in civil rights cases.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A pro se plaintiff need only provide defendants with fair notice of his claims and of the grounds upon which they rest. Hearns v. Terhune, 413 F.3d 1036, 1043 (9th Cir. 2005). But a court “may not supply essential elements of the claim that were not initially pled.” Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). If a court dismisses a complaint, it should give leave to amend unless the “pleading could not possibly be cured by the allegation of other facts.” United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1182 (9th Cir. 2016) (internal citations omitted).
Discussion
A. Motion to Appoint Counsel
Plaintiff's opposition includes a request for appointment of counsel on the ground that he is in the Special Housing Unit with limited access to the law library. ECF No. 61 at 5. Plaintiff does not have a constitutional right to appointed counsel in this action, see Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and I lack the authority to require an attorney to represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). I may request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable to afford counsel”); Rand, 113 F.3d at 1525. However, without means to compensate counsel, I will seek volunteer counsel only in exceptional circumstances. In determining whether such circumstances exist, “the district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).
As with plaintiff's previous request, I cannot conclude that exceptional circumstances requiring the appointment of counsel are present here. Plaintiff's claim is not unusually complex, and he appears able to articulate it without assistance. Moreover, despite the conditions underlying his request, plaintiff has been able to file his opposition to the pending motion, ECF No. 61; a request for information, ECF No. 62; and a request to continue consideration of defendant's motion to dismiss, ECF No. 65. And since filing his opposition, plaintiff has informed the court that he has been released. His request for the appointment of counsel will be denied at this time.
B. Egbert v. Boule
I next consider whether plaintiff's Bivens claim is precluded by Egbert, a recent decision in which the Supreme Court emphasizes that prescribing a cause of action is the prerogative of Congress, not the judiciary. In that case, a Border Patrol agent allegedly used excessive force against the plaintiff while attempting to ascertain the immigration status of a person riding in his car. 142 S.Ct. 1793, 1801 (2022). Plaintiff sued the officer under Bivens, alleging violations of his First and Fourth Amendment rights. Id. at 1802.
The Supreme Court stated that its prior decisions had evaluated proposed Bivens claims by asking two questions: (1) whether the claim is meaningfully different from the cases in which the Supreme Court has implied an action for damages; and, (2) if the claim does arise in a new context, whether there are any “special factors” indicating that the judiciary is less well equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 142 S.Ct. at 1803. The Egbert Court noted that “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Id.
The Court stated that it has recognized Bivens remedies only three times. First, in Bivens itself, in which the Court found viable a Fourth Amendment claim against agents who manacled the plaintiff and made threats against his family during a narcotics arrest. 403 U.S. 388, 397 (1971). Second, in a Fifth Amendment gender-discrimination claim against a Congressman. Davis v. Passman, 442 U.S. 228 (1979). And third, in an Eighth Amendment case involving a prisoner's constitutionally inadequate medical care. Carlson v. Green, 446 U.S. 14 (1980). The Court in Egbert then stated:
Since these cases, the Court has not implied additional causes of action under the Constitution. Now long past the heady days in which this Court assumed common-law powers to create causes of action, we have come to appreciate more fully the tension between judicially created causes of action and the Constitution's separation of legislative and judicial power. At bottom, creating a cause of action is a legislative endeavor.Id. (internal citations and quotation marks omitted).
Following Egbert, recognizing a Bivens claim in a context outside the three explicitly recognized by the Supreme Court is heavily disfavored. As the majority put it, “in almost every case,” Congress is better equipped than the judiciary to provide a damages remedy. 142 S.Ct. at 1803. The bar against judicial recognition of a new Bivens remedy is so high that “[i]f there is even a single reason to pause before applying Bivens in a new context, a court may not recognize a Bivens remedy.” Id. (internal citations and quotation marks omitted).
Here, plaintiff raises an Eighth Amendment excessive force claim against a correctional officer. Although such claims are far from uncommon, this claim does not fall in one of the three contexts recognized by the Supreme Court. Although the Eighth Amendment is implicated here, as in Carlson, 446 U.S. 14, the nature of the claim is different: this case presents an excessive force claim, while Carlson involved medical deliberate indifference.
Under Egbert, there are at least two reasons to pause before authorizing a Bivens action here. First, an alternative remedy exists: the Federal Bureau of Prisons has a remedial program for federal prisoners. See 28 C.F.R. § 542.10 (“The purpose of the Administrative Remedy Program is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement.”); see also Corr. Srvcs Corp. v. Malesko, 534 U.S. 61, 74 (2001) (concluding that a Bivens remedy was unavailable, in part, because “[i]nmates . . . have full access to remedial mechanisms established by the BOP, including . . . grievances filed through the BOP's Administrative Remedy Program”); Taylor v. Kobayashi, No. 22-16017, 2023 WL 2400879, at *1 (9th Cir. Mar. 8, 2023) (unpublished) (concluding that “the Bureau of Prisons' formal review process for inmate complaints” foreclosed the availability of a Bivens remedy).
Second, Congress has provided an alternative remedy through the Federal Tort Claims Act (“FTCA”). See Schwarz v. Meinberg, 761 Fed.Appx. 732, 734-35 (9th Cir. 2019) (identifying the FTCA as an alternative process available to federal prisoners); Prescott v. United States, 2022 WL 18859316, at *2 (C.D. Cal. Dec. 21, 2022) (“[A]ggrieved federal prisoners can bring suit for damages against the United States for the torts of its federal employees under the [FTCA].”). While a single alternative remedy is sufficient to foreclose a Bivens remedy, plaintiff has at least two. Under Egbert, the court cannot “second-guess” the judgments of Congress and the Executive “by superimposing a Bivens remedy.” Egbert, 142 S.Ct. at 1807.
Plaintiff counters that he did file a prison grievance and an FTCA claim but neither “yielded [any] result[ ].” ECF No. 61 at 1, 3. Even so, the dispositive issue is whether a remedial scheme was created by the legislature and made available to the plaintiff, not whether officials complied with the scheme. See Egbert, 142 S.Ct. at 1807 (“So 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. That is true even if a court independently concludes that the Government's procedures are “‘not as effective as an individual damages remedy.'”). Because plaintiff concedes that he filed a grievance and an FTCA claim, both remedial schemes were available to him.
Plaintiff claims that this action proceeds not only against Paviglianti but also against the Federal Bureau of Prisons (“FBOP”) and the United States. ECF No. 61 at 2. This is incorrect. When plaintiff initiated this action, he brought suit against multiple defendants, including the FBOP and United States. See ECF No. 1 at 2. The complaint was subsequently dismissed with leave to amend pursuant to Federal Rule of Civil Procedure 18 for having included multiple, unrelated claims against multiple defendants. ECF No. 10. Plaintiff then filed a first amended complaint naming Paviglianti, the FBOP, and the United States. ECF No. 13. This pleading was screened and service was found appropriate only for Paviglianti. ECF No. 16. Plaintiff later moved to amend the pleading to re-assert his claims against the FBOP and United States. ECF No. 33. Although the court granted leave to amend, see ECF No. 41, plaintiff opted to proceed on his first amended complaint as screened. ECF No. 44. This case, therefore, proceeds only against Paviglianti.
The majority in Egbert states that its decision does not “dispense with Bivens altogether.” 142 S.Ct. at 1803. But even if a Bivens remedy might exist in some contexts beyond the three explicitly recognized by the Supreme Court, Egbert leaves little doubt that no such remedy is available here.
Conclusion
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion to appoint counsel, ECF No. 61, is denied;
2. Defendant's motion to dismiss, ECF No. 59, is granted;
3. Plaintiff's first amended complaint, ECF No. 13 is dismissed without leave to amend; and
4. The Clerk of Court is directed to close this case.
IT IS SO ORDERED.