Opinion
Case No. 1:16-cv-01540-DAD-JDP
2020-09-14
Shannon WILLIAMS, Plaintiff, v. Officer BAKER, Defendant.
Carter Capps White, UC Davis School of Law, Davis, CA, for Plaintiff. Bureau of Prisons Regional Counsel, Federal Bureau of Prisons, Stockton, CA, Litigation Coordinator, USP Atwater, Atwater, CA, Benjamin E. Hall, United States Attorney, Fresno, CA, for Defendant.
Carter Capps White, UC Davis School of Law, Davis, CA, for Plaintiff.
Bureau of Prisons Regional Counsel, Federal Bureau of Prisons, Stockton, CA, Litigation Coordinator, USP Atwater, Atwater, CA, Benjamin E. Hall, United States Attorney, Fresno, CA, for Defendant.
SECOND SCREENING ORDER
ORDER FINDING THAT PLAINTIFF STATES A COGNIZABLE BIVENS CLAIM FOR EXCESSIVE FORCE IN VIOLATION OF THE EIGHTH AMENDMENT
ORDER THAT PLAINTIFF AND PLAINTIFF'S COUNSEL NOTIFY THE COURT OF THEIR REPRESENTATION PLANS WITHIN 60 DAYS
Jeremy D. Peterson, UNITED STATES MAGISTRATE JUDGE
This order addresses an issue that has bedeviled federal courts for the past three years: the remaining breadth of the judicially created constitutional damages remedy known as Bivens . See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Here, plaintiff asserts a straightforward violation of the Eighth Amendment: while an inmate at a federal facility, corrections officer Baker allegedly attacked him in retaliation for filing grievances, seriously injuring his arm. See ECF No. 1 at 4. Williams seeks damages under Bivens . Id. at 5. But in Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017) —and, more recently, in Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 206 L.Ed.2d 29 (2020) —the Supreme Court curtailed Bivens. Now, if a court is asked to apply Bivens in a "new context," it must ask whether "special factors" counsel against such an application. If so, the remedy is unavailable. See Hernandez , 140 S. Ct. at 743.
Here, a special factors analysis is required, since this case presents a new context, at least as that term has been used by the Supreme Court. But while the issue is close—and while binding authority is uncertain in key respects—I find that no special factors counsel against extending the remedy here. Plaintiff Williams therefore states a cognizable Bivens claim for excessive force in violation of the Eighth Amendment.
BACKGROUND
Plaintiff, a federal prisoner, filed this action in 2016. In early 2017, the previously assigned magistrate judge granted his application to proceed in forma pauperis and screened his complaint under 28 U.S.C. § 1915A. ECF Nos. 10, 12. The magistrate judge concluded that plaintiff stated cognizable Bivens claims for retaliation under the First Amendment and excessive force under the Eighth. In June 2017, however—soon after plaintiff's complaint had been screened—the Supreme Court decided Abbasi.
After initial motions practice, the case narrowed to plaintiff's Eighth Amendment claim against defendant Baker. On July 3, 2018, defendant Baker filed a motion for summary adjudication of the excessive-force claim, ECF No. 45, and I recommended that the motion be denied, ECF No. 59. Defendant objected to that recommendation, arguing for the first time that plaintiff was seeking an unlawful extension of Bivens in violation of Abbasi . See ECF No. 60.
The district judge adopted the recommendation over defendant's objection, not because defendant's Abbasi argument necessarily lacked merit—the court expressly declined to offer a view on the matter—but because an argument raised for the first time in objections is deemed waived. See ECF No. 61 at 2. With initial motions practice resolved, I ordered briefing on the Abbasi issue, ECF No. 62, noting that the Prison Litigation Reform Act ("PLRA") provides that the court "shall dismiss [an in forma pauperis ] case at any time if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). If plaintiff's remaining claim is no longer cognizable under Bivens , his action no longer states a claim for which relief can be granted, and the court must dismiss it. After some delay, plaintiff moved for the appointment of counsel, which I granted for the limited purpose of addressing the Abbasi issue. ECF Nos. 69, 70. The court heard oral argument on July 10, 2020.
For this reason, plaintiff's arguments that the court should not or must not screen the case at this juncture, see ECF No. 74 at 13, are unavailing. It may matter, however, that this order emerges from the court's own request for briefing, rather than defendant's motion to dismiss—even though the legal standards are the same. Compare Fed. R. Civ. P. 12(b)(6) (allowing a motion to dismiss for "failure to state a claim upon which relief can be granted"), with 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring dismissal of an in forma pauperis complaint that "fails to state a claim on which relief may be granted"). This difference in posture may matter should defendant wish to move for reconsideration or appeal. See C.A.E.D. L. R. 230(j) (noting that applications for reconsideration concern "any motion [that] has been granted or denied in whole or in part" (emphasis added)). Should defendant wish to move for reconsideration of this order or appeal it, however, defendant may be able to pursue such a course under 28 U.S.C. § 636(b)(1)(A), 28 U.S.C. § 1292(b), or both.
DISCUSSION
A district court must analyze the appropriateness of extending the Bivens remedy using a two-part test that the Supreme Court recently clarified in Abbasi , 137 S. Ct. 1843, and Hernandez , 140 S. Ct. 735. Under this approach, the court first asks whether a Bivens claim "arises in a new context or involves a new category of defendants." Hernandez , 140 S. Ct. at 743 (internal quotation marks omitted). If so, the court then asks "whether there are any special factors that counsel hesitation" about extending the remedy. Id. (internal quotation marks and brackets omitted). If the context is new and special factors counsel hesitation, the court must not extend the remedy. But if special factors do not counsel hesitation or if the context in which the claim arises is not new, then a Bivens remedy may be pursued.
A. New Context Analysis
A case presents a new context if it is "meaningfully different" from the three cases in which the Supreme Court has previously allowed a Bivens remedy. Hernandez , 140 S. Ct. at 743. Those cases are Bivens , 403 U.S. 388, 91 S.Ct. 1999, Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
The "meaningfully different" standard is not self-applying, and the Supreme Court has declined to offer "an exhaustive list of differences that are meaningful enough to make a given context a new one." Abbasi , 137 S. Ct. at 1859-60. Instead, the Court has offered instructive examples of meaningful differences—such as the rank of the officers involved, the generality or specificity of the official action, and the legal mandate under which the officer was operating—while emphasizing the background principle that "even a modest extension is still an extension." Id. at 1864.
This is a case of a modest extension, but an extension nonetheless. While plaintiff contends that this case does not differ meaningfully from either Bivens or Carlson , see ECF No. 74 at 16, the core of that argument has been rejected by the Supreme Court. This case differs from Bivens because it involves a different constitutional right: Mr. Bivens proceeded under Fourth Amendment; Mr. Williams proceeds under the Eighth. See Abbasi , 137 S. Ct. at 1860 (listing a different "constitutional right at issue" as a reason why a context may be new); see also id. at 1864 (noting that Carlson was meaningfully different from Abbasi in part because " Carlson was predicated on the Eighth Amendment and this claim is predicated on the Fifth").
Carlson presents a closer call. Here, as in Carlson , plaintiff proceeds under the Eighth Amendment's prohibition against cruel and unusual punishment. But the Court has stated that different contexts may emerge under the same constitutional text: "A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized." Hernandez , 140 S. Ct. at 743. Here, plaintiff alleges Eighth Amendment excessive force; in Carlson , plaintiff alleged Eighth Amendment medical indifference. This distinction matters; the legal tests governing the claims and guiding the prison officers in question are different. Compare Hudson v. McMillian , 503 U.S. 1, 6-7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) ("[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is ... whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm."), with Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ("In order to state a cognizable claim [with respect to medical care], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs."). Considering the different legal tests, I am convinced that the court is faced with a meaningful difference under the Supreme Court's standard.
Lower courts are divided on many issues related to Abbasi and the scope of Bivens , including this one. However, my "new context" conclusion here comports with much persuasive authority. See, e.g., Thomas v. Matevousian , No. 1:17-cv-01592-AWI-GSA, 2019 WL 266323, at *1 (E.D. Cal. Jan. 18, 2019) ("Plaintiff's Eighth Amendment claim, while arising under the cruel and unusual punishment clause, concerns conditions of confinement and not, as was the case in Carlson , inadequate medical care."); Mercer v. Matevousian , No. 1:18-cv-00265-DAD-BAM, 2018 WL 4859312, *3 (E.D. Cal. Oct 5, 2018) ("Plaintiff's allegations are properly characterized as a conditions of confinement claim, which differs from [Carlson ’s] claim for failure to provide medical care or treatment."); Gonzalez v. Hasty , 269 F. Supp. 3d 45, 64 (E.D.N.Y. 2017) ("Although the Supreme Court recognized a Bivens remedy under the Eighth Amendment in Carlson , this does not mean all Eighth Amendment claims have a Bivens remedy."); McLean v. Gutierrez , No. 15-cv-275-RGK-SP, 2017 WL 6887309, at *18 (C.D. Cal. Sept. 28, 2017) ("While Carlson provided for a Bivens remedy for Eighth Amendment failure to provide medical care to prisoners ... it did not touch upon the different Eighth Amendment claim implicated here. As such, [Abbasi ] counsels that the requisite special factors must be analyzed."); but see Reid v. United States , No. 18-16042, ––– Fed.Appx. ––––, ––––, 2020 WL 5229411, at *1 (9th Cir. Sept. 2, 2020) (concluding in a non-precedential memorandum decision that an Eighth Amendment excessive-force claim did not present a new Bivens context); Castellanos v. United States , 438 F. Supp. 3d 1120, 1130 (S.D. Cal. 2020) ("On balance, the context in which force and seizure were employed against Plaintiff tips in favor of the court concluding the circumstances of this case do not comprise a new Bivens context.").
It may also matter that, in the forty years since Carlson , the background legal context has changed. Most notably, the PLRA was signed into law in 1996. Abbasi specifically listed differences in "the statutory or other legal mandate under which the officer was operating" and "the presence of potential special factors that previous Bivens cases did not consider" as reasons for deciding that a Bivens context is new. Abbasi , 137 S. Ct. at 1860 (emphasis added). Later, the Court's Abbasi opinion noted that it "could be argued that [the PLRA] suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment." Id. at 1865. The PLRA thus may amount to another meaningful difference.
In short, the different Eighth Amendment framework and perhaps also the intervening statutory change make this context new. B. Special Factors Analysis
Because the Bivens context is new, I must evaluate whether there are "special factors counselling hesitation." Abbasi , 137 S. Ct. at 1857 (quoting Carlson , 446 U.S. at 18, 100 S.Ct. 1468 (quoting, in turn, Bivens , 403 U.S. at 396, 91 S.Ct. 1999 )). While the Supreme Court has again declined to offer an exhaustive list of relevant factors—favoring instead a second list of illustrative examples—the Court has emphasized that the 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. Thus, "separation-of-powers principles are or should be central to the analysis." Id. at 1857.
The question is close, and persuasive authority is far from unanimous. Here, however, I conclude that special factors do not counsel hesitation.
The divisions in the district courts are numerous, and I make no attempt to count heads. For a sampling of the varied outcomes, see, e.g., Reid v. United States , No. 18-16042, ––– Fed.Appx. ––––, 2020 WL 5229411 (9th Cir. Sept. 2, 2020) ; Castellanos v. United States , 438 F. Supp. 3d 1120, 1131 (S.D. Cal. 2020) ; Bueno Diaz v. Mercurio , 442 F.Supp.3d 701 (S.D.N.Y. 2020) ; Van Gessel v. Moore , No. 18-01478, 2020 WL 905216 (E.D. Cal. Feb. 25, 2020) ; Toney v. Williams , No. 18-2786, 2020 WL 1912168 (S.D. Cal. Apr. 20, 2020) ; Sutter v. United States , No. 17-07245, 2019 WL 1841905 (C.D. Cal. Mar. 12, 2019) ; Moneyham v. United States , No. 17-0329, 2018 WL 3814586 (C.D. Cal. May 31, 2018) ; McLean v. Gutierrez , No. 15-0275, 2017 WL 6887309 (C.D. Cal. Sept. 28, 2017).
Before evaluating the potential special factors, a few comments are in order. First, this is not a case like Abbasi or Hernandez , in which many special factors—and potentially titanic clashes between the branches—counsel hesitation. See, e.g., Hernandez , 140 S. Ct. at 739 ("Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications .... Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field."); Abbasi , 137 S. Ct. at 1861 (2017) ("National-security policy is the prerogative of the Congress and President .... Judicial inquiry into the national-security realm raises concerns for the separation of powers in trenching on matters committed to the other branches." (internal quotations and citations omitted)). The number and type of factors in Hernandez and Abbasi leave some ambiguity about how a district court should proceed when the potential factors at issue are fewer in number or more pedestrian in nature. Indeed, Abbasi and Hernandez do not say whether the relevant inquiry requires a minimally tethered weighing of multiple factors (all against the backdrop of separation-of-powers concerns) or a threshold search for a single factor—the lone, unadorned presence of which is sufficient to deny a Bivens claim. Second, the Court has varied somewhat in how it has described the nature of the relevant separation-of-powers inquiry. Sometimes the analysis has been cast as an evaluation of institutional competence, comparing the Judiciary and Congress. See Hernandez , 140 S. Ct. at 741 (noting that, in the years in the creation of the Bivens remedy, the Court "came to appreciate more fully the tension between [judicially created remedies] and the Constitution's separation of legislative and judicial power"); Abbasi , 137 S. Ct. at 1857 ("The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts?"). Justice Harlan framed the question this way in his original Bivens concurrence—that is, "whether the power to authorize damages as a judicial remedy for the vindication of a federal constitutional right is placed by the Constitution itself exclusively in Congress’ hands." Bivens , 403 U.S. at 401-02, 91 S.Ct. 1999 (Harlan, J., concurring). But Abbasi and Hernandez also concern judicial interference with the Executive, and involve issues of foreign relations and national security that are constitutionally committed to the President, at least in part. For that reason, these cases offer less guidance when a court is dealing with executive action—but not with executive action that flows from a constitutional grant of authority.
This ambiguity is to some extent an issue of singular versus plural. Compare Abbasi , 137 S. Ct. at 1857 ("The Court's precedents now make clear that a Bivens remedy will not be available if there are special factors counselling hesitation in the absence of affirmative action by Congress."), with Hernandez , 140 S. Ct. at 743 ("When we find that a claim arises in a new context, we proceed to the second step and ask whether there are any special factors that counsel hesitation about granting the extension. If there are—that is, if we have reason to pause before applying Bivens in a new context or to a new class of defendants—we reject the request." (emphasis added)). In addition, the Court was reluctant to speak in absolutes when it described the consequences of an alternative remedy: "if there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action. For if Congress has created ‘any alternative, existing process’ ... that itself may [be] a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages." Abbasi , 137 S. Ct. at 1858 (emphasis added).
Third, and relatedly, Abbasi and Hernandez leave some murkiness in how district courts should read the congressional tea leaves—inviting, as they do, inquiry into the meaning of congressional silence. Abbasi , 137 S. Ct. at 1862 ("[I]n any inquiry respecting the likely or probable intent of Congress, the silence of Congress is relevant."); see also Hernandez , 140 S. Ct. at 747 ("Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders."). Such an inquiry is awkward in the age of textualism and perilous now that we have lived with Bivens for half a century. Abbasi and Hernandez offer few tools for distinguishing between two plausible theories of congressional silence: does Congress want no constitutional damages remedy because it has declined to create one, or does Congress approve of a constitutional damages remedy because it has declined to abrogate it? Cf. Midlantic Nat. Bank v. New Jersey Dep't of Envtl. Prot. , 474 U.S. 494, 501, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific.").
I now turn to defendant's proposed factors.
1. Separation of Powers Policy Concerns
Defendant argues that the risk of interference with Bureau of Prisons ("BOP") policy counsels hesitation: "Congress has delegated to BOP the responsibility for operating safe and orderly prisons," ECF No. 78 at 23, and "[e]xcessive-force claims such as plaintiff's claim involve the implementation by lower-level employees of BOP policy governing the use of such force." ECF No. 78 at 24.
I am not convinced that this is reason to hesitate. Plaintiff challenges no policy, nor even a pattern of behavior that could be construed as a policy, and defendant identifies no policy put at risk. This is understandable: few legitimate objectives could be served by resisting deterrents to the alleged behavior, beyond the most general tradeoffs of risk and deterrence present in every Bivens case. See ECF No. 1 at 3 ("Officer Baker took my arm and deliberately and maliciously twisted my bicep muscle until it was torn from the bone, resulting in my permanent loss of strength in my left arm, after I had complied [with] being handcuffed."); see also Reid v. United States , No. 18-16042, ––– Fed.Appx. ––––, ––––, 2020 WL 5229411, at *1 (9th Cir. Sept. 2, 2020) ("[W]e conclude that allowing Reid's [excessive-force] claims to proceed would not result in inappropriate judicial intrusion into [BOP] policy.").
This case is a far cry from those in which courts have rejected Bivens challenges concerning prison administration. See Correctional Services Corp. v. Malesko , 534 U.S. 61, 74, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ("[W]e have never considered [ Bivens ] a proper vehicle for altering an entity's policy."); see also Peterson v. Martinez , No. 3:19-CV-01447-WHO, 2020 WL 999832, at *10 (N.D. Cal. Mar. 2, 2020) ("[T]he Abbasi Court's focus on separation of powers principles gives me pause in the context of Peterson's claims, which relate to prison administration."). Nor is this a case like Hernandez and Abbasi , in which plaintiffs challenged high-level policies that touched on the Executive's constitutional bailiwick—such as national security and immigration. Cf. Loving v. United States , 517 U.S. 748, 757, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996) ("[T]he separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties." (emphasis added)). I am thus unpersuaded that plaintiff's claim impinges on an administrative policy, much less on the constitutional authorities of the Executive Branch.
2. Congress's Failure to Create a Damages Remedy in the PLRA
Defendant also argues that Congress's failure to enact a damages remedy in the PLRA—a law that otherwise deals with prison litigation—counsels hesitation. ECF No. 74 at 21-22. As noted above, this objection carries some presumptive weight, since the Abbasi Court noted specifically, if conditionally, that the existence of the PLRA "could be argued" to suggest that Congress chose not to extend Carlson to other prison claims. 137 S. Ct. at 1865.
This court is now faced with that precise argument, and I conclude that the better view is that the PLRA assumed the continued existence of the Bivens remedy in federal prison litigation. The PLRA thus gives no cause for hesitation.
Notably, in a non-precedential memorandum disposition, the Ninth Circuit has reached a different conclusion. See Luis Buenrostro v. Fajardo , 770 F. App'x 807, 808 (9th Cir. 2019) ("Based on the record before us, special factors counsel against extending Bivens to Appellant's First Amendment claim; for example, Congress has addressed the question of prisoners’ remedies in the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e."). Other courts have concluded either that the congressional record is mixed, or that the PLRA presumed the continued existence of Bivens . See, e.g., Peterson v. Martinez , No. 3:19-CV-01447-WHO, 2020 WL 999832, at *9 (N.D. Cal. Mar. 2, 2020) ("[T]here are mixed signals about how Congress would view judicial interference into claims by federal inmates like Peterson."); Turkmen v. Ashcroft , No. 02-CV-2307-DLI-SMG, 2018 WL 4026734, at *7 (E.D.N.Y. Aug. 13, 2018) ("[P]ersuasively, plaintiffs argue that, when Congress passed the PLRA, it presumed the existence of a Bivens cause of action for prisoner abuse.").
The PLRA contains no provision that can be read to abrogate or limit Bivens , and at least one of its provisions contemplates the continued application of Bivens in prisoner cases. Section 806 of the PLRA—a section notably entitled "federal tort claims"—requires that "[n]o person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act." Pub. L. No. 104-134, § 806, 66 Stat. 1321, 75 (1996) (codified at 28 U.S.C. § 1346(b)(2) ); see also Almendarez-Torres v. United States , 523 U.S. 224, 234, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) ("[T]he title of a statute and the heading of a section are tools available for the resolution of a doubt about the meaning of a statute.").
Because federal statutory law creates no general tort action against officers in federal prisons, it is difficult to read the text's reference to a "civil action against ... an ... officer ... of the Government," as anything but a reference to a federal Bivens action against a federal prison officer. The fact the PLRA contemplates Bivens actions and limits the availability of Bivens actions in cases of "mental or emotional injury" supports a reasonable negative inference that Congress did not intend to make deeper cuts to the remedy. See N.L.R.B. v. SW Gen., Inc. , ––– U.S. ––––, 137 S. Ct. 929, 940, 197 L.Ed.2d 263 (2017) ("If a sign at the entrance to a zoo says ‘come see the elephant, lion, hippo, and giraffe,’ and a temporary sign is added saying ‘the giraffe is sick,’ you would reasonably assume that the others are in good health."). Other PLRA provisions create a similar negative inference. In other words, the PLRA does limit Bivens actions, but it would be a mistake to extend those limits beyond what the text of the statute contemplates. The PLRA counsels no hesitation against extending Bivens.
The PLRA's limitations on injunctive relief are also significant. See, e.g. , 18 U.S.C. § 3626(a)(1)(A) ("Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs."). Congress knew how to limit the remedies available for federal rights, but did not explicitly limit the Bivens remedy. In addition, I note that the PLRA's screening requirements do not distinguish between claims against state and federal officers. See 28 U.S.C. § 1915A(a). For this reason, federal courts have held that these screening provisions apply to Bivens actions. See, e.g., Fabricant v. Bissette , 808 F. App'x 524 (9th Cir. 2020). Should Congress have wished to signal its broad disapproval of the Bivens remedy, the screening provisions would have provided yet another opportunity to do so.
3. Alternative Remedies
Defendant objects that Williams has other available remedies that preclude both the need for and possibility of a Bivens remedy. This charge is a serious one, since the Supreme Court has stated that "the existence of alternative remedies usually precludes a court from authorizing a Bivens action." Abbasi , 137 S. Ct. at 1865. Defendant contends that "the alternative remedial structures available to plaintiff included the BOP's Administrative Remedy Program, a possible suit for damages under the Federal Tort Claims Act ("FTCA"), and injunctive or habeas relief to the extent that plaintiff could demonstrate a recurrent problem." ECF No. 74 at 18. I consider each in turn.
i. BOP Administrative Remedies. The BOP's administrative remedy program presents the trickiest issue. As an initial matter, I note that "alternative remedies" seem to matter for at least two distinct reasons in the byzantine Bivens case law. First, there is the longstanding equitable concern that certain plaintiffs not be left holding a right without a remedy. See Bivens , 403 U.S. at 410, 91 S.Ct. 1999 (1971) (Harlan, J., concurring) ("For people in Bivens’ shoes, it is damages or nothing."); see also Abbasi , 137 S. Ct. at 1858 ("It is true that, if equitable remedies prove insufficient, a damages remedy might be necessary to redress past harm and deter future violations."). The second concern, related but distinct, is with statutory remedies that may evince a congressional intent to displace Bivens . Abbasi , for example, insists that courts ask "whether there were alternative remedies available or other sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy." 137 S. Ct. at 1865 (emphasis added). But the case law is not precise on how an agency ’s remedial program should be considered.
The Court's concern with statutory remedies has been consistent and longstanding, but less has been said about administrative ones. See Hernandez v. Mesa , ––– U.S. ––––, 140 S. Ct. 735, 749, 206 L. Ed. 2d 29 (2020) ("This pattern of congressional action—refraining from authorizing damages actions for injury inflicted abroad by Government officers, while providing alternative avenues for compensation in some situations—gives us further reason to hesitate about extending Bivens in this case." (emphasis added)); Schweiker v. Chilicky , 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) ("In each of these cases [extending the Bivens remedy], as in Bivens itself, the Court found that there were no special factors counselling hesitation in the absence of affirmative action by Congress , no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy." (emphasis added, internal quotation marks omitted)).
The agency's program here provides no reason to think that Congress "might doubt the efficacy or necessity of a damages remedy." The statutory authority for the relevant remedial regulations is of the most general and anodyne form. See, e.g. , 18 U.S.C. § 4001(b)(1) ("The control and management of Federal penal and correctional institutions ... shall be vested in the Attorney General, who shall promulgate rules for the government thereof."). And, if anything, the statutory evidence suggests that Congress saw federal litigation working in concert with the BOP grievance procedure. For example, the PLRA's administrative exhaustion requirements, like the PLRA's screening requirements, do not distinguish between claims against state and federal officers. See 42 U.S.C. § 1997e(a). The Supreme Court has thus noted that those exhaustion requirements apply to Bivens claims and has suggested that Congress updated those provisions to incorporate Bivens . See Porter v. Nussle , 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
Nor does the existence of a BOP remedial program provide any other separation-of-powers reason for doubting the availability of a Bivens remedy here. The remedial program does not implicate constitutional commitments, and nothing in the regulations or rulemakings even hints at a potential conflict with Bivens . See generally 28 C.F.R. Ch. V, Subch. C, Pt. 542. If anything, the rules suggest an awareness of the relationship between administrative exhaustion and federal litigation. See, e.g. , 28 C.F.R. § 542.15(a) ("Appeal to the General Counsel is the final administrative appeal."). And the most relevant rulemaking—while never mentioning Bivens one way or another—serves to emphasize the remedial differences. See Administrative Remedy Program: Excluded Matters , 67 Fed. Reg. 50,804, 50,804 (2002) ("[T]he Administrative Remedy Program ordinarily cannot provide monetary relief.").
The existence of an administrative remedy might matter for equitable reasons. This was indeed the context in which the BOP's remedial program mattered in Malesko ; that very process was listed as one reason why Malesko did not "lack effective remedies"—since the BOP process provided "yet another means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring." 534 U.S. at 72-74, 122 S.Ct. 515 (emphasis added). But Malesko —a case that concerned a former federal inmate suing a private company that had contracted with the BOP—does not stand for the proposition that the BOP administrative process precludes relief for a plaintiff like Williams, since state tort law was the key alternative relief available to Malesko. See 534 U.S. at 72, 122 S.Ct. 515. Standing alone, the BOP administrative process is not an alternative means (much less an "adequate" or "effective" one) for Williams to pursue his constitutional claim against a federal officer—a point that, if anything, Malesko emphasizes. 534 U.S. at 70, 122 S.Ct. 515 ("The purpose of Bivens is to deter individual federal officers from committing constitutional violations.").
ii. The Federal Tort Claims Act and the Westfall Act. The statutory alternative cited by defendant has been considered by the Supreme Court many times before: the FTCA, as amended by the Westfall Act (1988). For the reasons repeatedly emphasized by the Court, this statutory framework provides no alternative remedy to Williams and evinces no congressional desire to displace Bivens —and, thus, no reason to hesitate in this case.
The Court has long recognized that the FTCA does not displace Bivens. After Congress amended the FTCA in 1974 to create a cause of action against the government for intentional torts committed by federal officers, see 28 U.S.C. § 2680(h), the Court noted that it was "crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action." Carlson , 446 U.S. at 19-20, 100 S.Ct. 1468 ; see S. Rep. No. 93-588, at 3 (1973) ("[T]his provision should be viewed as a counterpart to the Bivens case."); see also Bush v. Lucas , 462 U.S. 367, 378, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) ("No statute expressly declared the FTCA remedy to be a substitute for a Bivens action.").
The 1988 Westfall Act amended the FTCA once more, but those amendments again "made clear that [Congress] was not attempting to abrogate Bivens. " Hernandez , 140 S. Ct. at 748 n.9. The Westfall Act amended the FTCA to require that the United States be substituted as the defendant in tort cases against federal officers, but created a carveout to that preclusion provision: it "does not extend or apply to a civil action against an employee of the Government .... which is brought for a violation of the Constitution of the United States." 28 U.S.C. § 2679(b)(2)(A). The Westfall Act thus contemplates the continued application of Bivens.
The Court has also emphasized that the FTCA is not an effective, equitable, or adequate substitute for Bivens. Because the Bivens remedy, unlike the FTCA, is recoverable against individuals and allows for punitive damages, the Court has viewed it as a more effective deterrent. See Carlson , 446 U.S. at 21, 100 S.Ct. 1468. Moreover, the FTCA only gives federal courts jurisdiction over an action when the government "would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). But, the Carlson Court noted, "it is obvious that the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules," not the vagaries of state law. 446 U.S. at 23, 100 S.Ct. 1468. The Supreme Court has not repudiated its holding that the FTCA "is not a sufficient protector of the citizens’ constitutional rights," id. at 23, 100 S.Ct. 1468, and this court remains bound by it.
iii. Injunctive Relief. As Justice Harlan noted long ago, "[i]t will be a rare case indeed in which an individual in Bivens’ position will be able to obviate the harm by securing injunctive relief from any court." Bivens , 403 U.S. at 410, 91 S.Ct. 1999 (Harlan, J., concurring). This is not that rare case; Williams has not alleged recurrent use of excessive force and does not seek injunctive relief. See ECF No. 1 at 5.
CONCLUSION
Because there are no special factors counseling hesitation, Williams has stated a cognizable Bivens claim against officer Baker. Although no further analysis is needed, this conclusion is shored up by a few more features of the Bivens landscape.
First, the result here accords with the spirit as well as the letter of Abbasi. While Abbasi emphasized that "expanding the Bivens remedy is now a ‘disfavored’ judicial activity, 137 S. Ct. at 1857, Abbasi did not reject the Bivens remedy against the lowest-ranking defendant in that case: the prison warden. Evidently, the Court considered the warden's case a close one—close enough to warrant remand for further development. See 137 S. Ct. at 1865 ("The differences between this claim [against the warden] and the one in Carlson are perhaps small, at least in practical terms."). The instant case—involving neither a prison executive nor issues of prison administration, much less the complexities of post-9/11 detainees—is even closer to Carlson.
That litigation is ongoing. See Turkmen v. Ashcroft , No. 02-CV-2307-DLI-SMG, 2018 WL 4026734 (E.D.N.Y. Aug. 13, 2018).
Second, to hold that Williams’ claim lies beyond the reach of the Bivens remedy would approach a result that the Supreme Court has repeatedly declined to endorse: limiting Bivens , Davis , and Carlson to their facts. Individual justices may desire such a result, but the Court has not taken that course. See Hernandez , 140 S. Ct. at 750 (Thomas, J., concurring) ("I write separately because, in my view, the time has come to consider discarding the Bivens doctrine altogether."); see also Lanuza v. Love , 899 F.3d 1019, 1026 (9th Cir. 2018) ("Although Abbasi could have stood for the broad proposition that Bivens remedies are not available in the context of immigration proceedings because of the sensitive nature of immigration policy, the Abbasi Court did not paint in such broad strokes; rather, it cabined its holding to suits against executive officials issuing policy responses to sensitive issues of national security.").
Third, while this case does involve the extension of Bivens to a "new context"—at least when compared to three specific Supreme Court precedents—there is a sense in which the context is not so novel. On two occasions (if not more), the Supreme Court has appeared to assume that Bivens claims would be available against individual federal prison officers—including Eighth Amendment claims that go beyond the limited scope of Carlson . See Farmer v. Brennan , 511 U.S. 825, 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (assuming without deciding that plaintiff had a Bivens claim under the Eighth Amendment for unsafe conditions of confinement); see also Malesko , 534 U.S. at 72, 122 S.Ct. 515 ("If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity."). The circuit courts have long assumed that plaintiffs have a Bivens action for Eighth Amendment excessive force. See, e.g., McCrudden v. United States , 763 F. App'x 142 (3d Cir. 2019) ; Burke v. Bowns , 653 F. App'x 683, 691 (11th Cir. 2016) ; Watkins v. Donnelly , 551 F. App'x 953 (10th Cir. 2014) ; Williams v. Calton , 551 F. App'x 50 (4th Cir. 2013) ; Salameh v. Carlson , 388 F. App'x 678 (9th Cir. 2010) ; Munz v. Michael , 28 F.3d 795, 798 (8th Cir. 1994). The instant case may present a "new context," but it is not a case of sudden extension or unfair surprise.
Instead, this is a case about "standard law enforcement operations." Abbasi , 137 S. Ct. at 1861 (internal quotation marks omitted). As the Court has noted, "[t]he settled law of Bivens in this common and recurrent sphere of law enforcement, and the undoubted reliance upon it as a fixed principle in the law, are powerful reasons to retain it in that sphere." Id. at 1857.
In sum, there are no "sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy" here; 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"; and "respect for the separation of powers" offers no other source of hesitation. Hernandez , 140 S. Ct. at 749 (quoting Abbasi ).
ORDER
Plaintiff's counsel and the student clinic serving under him have honorably discharged their duties as limited-purpose counsel. ECF No. 70. The court will, however, provide counsel with the option to continue representing plaintiff. Within sixty days of the date of this order, counsel shall notify the court whether he intends to continue representation.
IT IS SO ORDERED.