(PC) Bailey v. Cox ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY BAILEY, No. 1:22-cv-00757-JLT-SAB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS’ 13 v. MOTION TO DISMISS BE GRANTED, AND PLAINTIFF’S MOTION TO AMEND BE 14 T. COX, et al., DENIED 15 Defendants. (ECF Nos. 36, ) 16 17 Plaintiff Timothy Bailey is proceeding pro se and in forma pauperis in this civil rights 18 action filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 19 403 U.S. 388 (1971). 20 Currently before the Court is Defendants’ motion to dismiss, filed May 25, 2023. 21 I. 22 PROCEDURAL BACKGROUND 23 This action is proceeding on Plaintiff’s excessive force claim against defendants 24 Zaragoza, Cox, Ramos Jr. (incorrectly identified by Plaintiff as Rumnos), Gunn, Mendez, and 25 Mejia, and the sexual assault claim against defendant Mejia. 26 On May 25, 2023, Defendants filed a motion to dismiss the action. (ECF No. 36.) 27 Plaintiff filed an opposition on September 13, 2023, and Defendants filed a reply on September 28 22, 2023. (ECF Nos. 45, 46.) Accordingly, Defendants’ motion is deemed submitted without 1 oral argument. Local Rule 230(l). 2 On October 10, 2023, Plaintiff filed a motion to amend the complaint. (ECF No. 47.) 3 Defendants filed an opposition on October 18, 2023. (ECF No. 48.) Although the time to file a 4 reply has not expired, the Court deems a reply unnecessary to resolve Plaintiff’s motion. 5 II. 6 DISCUSSION 7 A. Legal Standard 8 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, 9 and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient 10 facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241- 11 42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a 12(b)(6) motion, a court’s 12 review is generally limited to the operative pleading. Daniels-Hall v. National Educ. Ass’n, 629 13 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Schneider v. 14 California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 15 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 16 as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 17 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks omitted); 18 Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 19 2009). The Court must accept the factual allegations as true and draw all reasonable inferences in 20 favor of the non-moving party. Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 910; Morales 21 v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). 22 Pro se litigants are entitled to have their pleadings liberally construed and to have any doubt 23 resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 24 668 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); 25 Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 26 B. Allegations of Complaint 27 On April 13, 2021, at approximately 8:30 a.m., Plaintiff was physically and sexually 28 assaulted by six correctional officers at the United States Penitentiary, Atwater, while he was in 1 restraints. The assault started when officer Mendez and T. Cox slammed Plaintiff to the ground for 2 no reason. Then Plaintiff was taken to a holding cell where the assault continued after officer Mejia 3 entered and banged his head against the wall while he was still restrained. Plaintiff was then taken 4 to another holding cell where he was beaten and sexually assaulted by all six officers-Mendez, Cox, 5 Zaragoza, Ramos, Jr., Gunn, and Mejia. The assaulted last over two minutes while he was still in 6 restraints. Plaintiff was kicked and punched in the head and body areas by Zaragoza, Cox, Ramos, 7 Jr., Gunn., Mendez, and Mejia. Officer Mejia squeezed Plaintiff’s genitals while saying “how does 8 hit fell nigger.” 9 C. Defendants’ Motion to Dismiss 10 Defendants move to dismiss the action because the United States Supreme Court decision 11 in Egbert v. Boule, 142 S.Ct. 1793 (2022), precludes recognizing a Bivens remedy in this case, 12 Plaintiff’s claims present a new Bivens context, and special factors preclude creating a new Bivens 13 cause of action. 14 Plaintiff argues that he has no plain, adequate, or complete remedy at law to redress the 15 wrongs by Defendants and he is proceeding under the Federal Torts Claims Act (FTCA). 16 1. Bivens Actions Following Ziglar v. Abbasi 17 Not all constitutional cases against federal officers for damages may proceed as Bivens 18 claims. There is a two-part test to determine whether a Bivens action may proceed. Ziglar v. 19 Abbasi, 582 U.S. 138-139 (2017). To determine whether a Bivens claim is cognizable, a court 20 first “ask[s] whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ 21 different from the three cases in which the Court has implied a damages action.” Egbert v. Boule, 22 142 S. Ct. 1793, 1803 (2022) (quoting Ziglar v. Abbasi, 582 U.S. at 139). That is, the Court must 23 determine whether the claim presents a new context from the three cases the Supreme Court has 24 allowed to proceed under Bivens: Bivens v. Six Unknown Federal Narcotic Agents, 403 U.S. 388 25 (1971); Davis v. Passman, 442 U.S. 228 (1979); and Carlson v. Green, 446 U.S. 14 (1980). If the 26 answer is no, the claim may proceed. If the answer is yes, the court must apply a “special factors” 27 analysis to determine whether “special factors counsel hesitation” in expanding Bivens to the 28 action. Ziglar, 582 U.S. at 136. 1 The Ninth Circuit has summarized those special factors as follows: 2 the rank of the officer involved; whether Bivens is being used as a vehicle to alter an 3 entity's policy; the burden on the government if such claims are recognized; whether litigation would reveal sensitive information; whether Congress has indicated that it does 4 not wish to provide a remedy; whether there are alternate avenues of relief available; and whether there is adequate deterrence absent a damages remedy, among other factors. But 5 the most important question for us to examine is whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of 6 allowing a damages action to proceed. If there are sound reasons to think Congress might 7 doubt the efficacy or necessity of a damages remedy the courts must refrain from creating the remedy in order to respect the role of Congress in determining the nature and extent of 8 federal-court jurisdiction under Article III. 9 Lanuza v. Love, 899 F.3d 1019, 1028 (9th Cir. 2018) (alterations, citations, and internal quotation 10 marks omitted). 11 a. Plaintiff’s Claims Present a New Bivens Context 12 To date, the Supreme Court has only recognized a Bivens remedy in the context of the 13 Fourth, Fifth, and Eighth Amendments. See Bivens, 403 U.S. 388 (Fourth Amendment prohibition 14 against unreasonable searches and seizures); Davis v. Passman, 442 U.S. 228 (1979) (Fifth 15 Amendment gender-discrimination); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment 16 Cruel and Unusual Punishments Clause for failure to provide adequate medical treatment). The 17 Supreme Court has recently made clear that “expanding the Bivens remedy is now a disfavored 18 judicial activity,” and has “consistently refused to extend Bivens to any new context or new 19 category of defendants. Ziglar, 582 U.S. at 135 (citations omitted); see also Egbert, 142 S. Ct. at 20 1803 (The Court reiterated that “recognizing a cause of action under Bivens is ‘a disfavored judicial 21 activity.’). 22 Plaintiff’s complaints in this action are meaningfully different from the prior three cases. 23 Indeed, two of the prior two cases involved different constitutional provisions, i.e. the Fourth 24 Amendment (Bivens) and the Fifth Amendment (Davis). Although Carlson involved an Eighth 25 Amendment claim, “[a] claim may arise in a new context even if it is based on the same 26 constitutional provision as a claim in a case in which a damages remedy was previously recognized. 27 Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). 28 /// 1 In Carlson, the Supreme Court found that there was an available Bivens remedy for a federal 2 prisoner’s Eighth Amendment claim for failure to provide adequate medical treatment. 446 U.S. 3 14. Although Carlson created a Bivens remedy for certain Eighth Amendment violations, Carlson 4 did not create a blanket rule for all Eighth Amendment claims brought under Bivens. See Martinez 5 v. Bureau of Prisons, 830 F. App’x 234, 235 (9th Cir. 2020); see also Hernandez, 140 S. Ct. at 743 6 (“A claim may arise in a new context even if it is based on the same constitutional provision as a 7 claim in a case in which a damages remedy was previously recognized.”). The Supreme Court has 8 declined to extend an Eighth Amendment Bivens remedy outside of the narrow Carlson context. 9 Correctional Services Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Ninth Circuit has also not 10 extended an Eighth Amendment Bivens remedy outside of the Carlson context. See Hoffman v. 11 Preston, No. 20-15396, 2022 WL 6685254 (9th Cir. Oct. 11, 2022); see also Mejia v. Miller, No. 12 21-56282, 2022 WL 16911857 (9th Cir. Nov. 14, 2022) (failure to recognize Fourth Amendment 13 excessive force Bivens remedy). In addition, this Court has likewise refused to recognize an Eighth 14 Amendment Bivens remedy outside of the Carlson context including specifically for alleged sexual 15 assault as Plaintiff claims here. Carthen v. Scott, No. 1:19-CV-00227-ADA-EPG (PC), 2023 WL 16 346675, at *6 (E.D. Cal. Jan. 20, 2023) (Plaintiff’s Eighth Amendment claim regarding improper 17 pat down and sexual assault presents a new Bivens context); see also Smith v. Kendryna, No. 2:20- 18 cv-2417 KJN P, 2021 WL 1425273, at *2 (E.D. Cal. Apr. 15, 2021), report and recommendation 19 adopted, 2021 WL 2227268 (E.D. Cal. June 2, 2021) (holding that a prisoner’s sexual harassment 20 claim presented a new context); Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019) 21 (“Schwarz’s Eighth Amendment claim regarding unsanitary cell conditions presents a new Bivens 22 context because Schwarz does not allege a failure to treat a serious medical condition, which was 23 the issue in Carlson, 446 U.S. at 16, 100 S. Ct. 1468.”).1 24 /// 25 1 Furthermore, several other district courts have similarly declined to find an Eighth Amendment Bivens remedy 26 outside of the Carlson context. See Silva v. United States, 45 F.4th 1134 (10th Cir. 2022); Baldwin v. Hutson, No. 6:19-cv-151, 2022 WL 4715551 (E.D. Ky. Sept. 30, 2022); Morel v. Dep’t of Justice, No. 7:22-015, 2022 WL 27 4125070 (E.D. Ky. Sept. 9, 2022); Bivens v. Blaike, No. 21-cv-00783, 2022 WL 2158984 (D. Colo. June 15, 2022); Edwards v. Gizzi, No. 20-cv-7371, 2022 WL 309393 (S.D.N.Y. Feb. 2, 2022); Gonzalez v. Hasty, 269 F.Supp.3d 45 28 (E.D.N.Y. 2017). 1 Plaintiff’s excessive force and sexual assault claims differ materially from the medical 2 deliberate indifference claim raised in Carlson, and it therefore arises in a different context than a 3 previously-recognized Bivens action, which would expand the Bivens decision. See, e.g., Silva, 4 45 F.4th at 1137 (“The distinction between an excessive force claim … and a deliberate indifference 5 to medical needs claim … is sufficient to conclude that Plaintiff’s claim would require an expansion 6 of Bivens to move forward even though it originates under the Eighth Amendment.”); Ziglar, 582 7 U.S. at 147-49 (“[E]ven a modest extension is still an extension” and [g]iven [the Supreme] Court’s 8 expressed caution about extending the Bivens remedy … the new-context inquiry is easily 9 satisfied.”). 10 b. Special Factors Preclude Creating a New Bivens Cause of Action 11 If a claim presents a new Bivens context, “[t]he second step requires courts to consider 12 whether special factors counsel hesitation in recognizing a Bivens remedy in a new context.” 13 Egbert, 142 S. Ct. at 1815 (citing Ziglar, 582 U.S. at 138). The Court “has not defined the phrase 14 ‘special factors counselling hesitation,’ but it recognized that the ‘inquiry must concentrate on 15 whether the Judiciary is well suited, absent congressional action or instruction, to consider and 16 weigh the costs and benefits of allowing a damages action to proceed.’” Egbert, 142 S. Ct. at 1815 17 (citing Ziglar, 582 U.S. at 136-37). 18 1) Congressional Action Counsels Against Recognizing a Bivens Remedy 19 Congress has been active with legislation in the area of prisoners and in relation to sexual 20 assault against prisoners, but it has not created an individual cause of action against prison guards. 21 More specifically, to address the issue of sexual assault in a prison setting, Congress enacted the 22 Prison Rape Elimination Act in 2003. See 34 U.S.C. §§ 30301 et seq. The PREA clearly applies 23 to allegations such as Plaintiff’s here. For instance, PREA regulations define “sexual abuse of an 24 inmate” to include, among other things, “[a]ny … intentional contact, either directly or through the 25 clothing, of or with the genitalia … that is unrelated to official duties or where the staff member … 26 has the intent to abuse, arouse, or gratify sexual desire.” 28 C.F.R. § 115.6. The same regulation 27 also defines “sexual harassment” as “[r]epeated verbal comments or gestures of a sexual nature to 28 an inmate … by a staff member … including demeaning references to gender, sexually suggestive 1 or derogatory comments about body or clothing, or obscene language or gestures.” Id. 2 Although the PREA was implemented to “increase the accountability of prison officials” 3 and “protect the Eighth Amendment rights of … prisoners,” it did not create a right of action against 4 prison officials. See, e.g., Khouanmany v. U.S. Marshals, No. 2:17-cv-1326-TLN-EFB P, 2019 5 WL 1400103, at *3 (E.D. Cal. Mar. 28, 2019) (citing cases). Rather, the PREA instructed the 6 Attorney General to develop and promulgate national standards for preventing, investigating, and 7 punishing prison rape and sexual assault. 34 U.S.C. § 30307. 8 In addition, Congress “addressed the question of prisoners’ remedies in the Prison Litigation 9 Reform Act of 1995” and omitted a damages remedy, Buenrostro v. Fajardo, 770 F. App’x 807, 10 808 (9th Cir. 2019), which suggests that “Congress might doubt the efficacy or necessity of a 11 damages remedy” against federal jailers, Abbasi, 582 U.S. at 137. Quite the contrary, the purpose 12 of the Prison Litigation Reform Act (PLRA) was to “revive the hands-off doctrine’ and restore 13 “judicial quiescence derived from federalism and separation of powers concerns’ to remove the 14 judiciary from prison management.” Alvarez v. Larose, 445 F.Supp.3d 861, 867 (S.D. Cal. May 9, 15 2020) (quoting Gilmore v. California, 220 F.3d 987, 991 , 996-97 (9th Cir. 2000)). Thus, the failure 16 of Congress to create an individual cause of action in the PLRA and PREA, is a valid reason for 17 the Court to hesitate before creating one here. 18 2) Alternative Remedial Schemes are Available 19 “[A] court may not fashion a Bivens remedy if Congress already has provided, or has 20 authorized the Executive to provide, ‘an alternative remedial structure.’” Egbert, 142 S. Ct. at 1804 21 (quoting Ziglar, 582 U.S. at 137). “If there are alternative remedial structures in place, ‘that alone,’ 22 like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens 23 cause of action.’” Egbert, 142 S.Ct. at 1804 (quoting Ziglar, 582 U.S. at 137) (When an alternative 24 remedial scheme to address a problem exists, “that alone may limit the power of the Judiciary to 25 infer a new Bivens cause of action.”). It does not matter that “existing remedies do not provide 26 complete relief” or that “a wrong … would otherwise go underdressed.” Id. (quoting Bush v. Lucas, 27 462 U.S. 367, 368, 388 (1983)). Nor must the remedy afford the plaintiff a right to “participate” or 28 a “right to judicial review of an adverse determination,” Egbert, 142 S. Ct. at 1806, or provide 1 monetary relief, Schweiker v. Chilicky, 487 U.S. 412, 421–22 (1988); Chappell v. Wallace, 462 2 U.S. 296, 304 (1983); W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1120 (9th Cir. 3 2009); Berry v. Hollander, 925 F.2d 311, 314 (9th Cir. 1991). “Bivens ‘is concerned solely with 4 deterring the unconstitutional acts of individual officers’—i.e., the focus is whether the 5 Government has put in place safeguards to ‘prevent’ constitutional violations ‘from recurring.’” 6 Egbert, 142 S.Ct. at 1806 (quoting Malesko, 534 U.S. at 71, 74). “So long as Congress or the 7 Executive has created a remedial process that it finds sufficient to secure an adequate level of 8 deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy. Id. 9 That is true even if a court independently concludes that the Government’s procedures are ‘not as 10 effective as an individual damages remedy.’” Id. at 1807 (quoting Bush, 462 U.S. at 372). 11 Federal prisoners have alternative remedies available to them, including the PREA, the 12 Federal Tort Claims Act (FTCA) and the Bureau of Prison’s administrative grievance process. See 13 28 U.S.C. §§ 1346(b)(1), 2674 (allowing an inmate to seek money damages for personal injuries 14 and property claims arising out of a federal employee’s negligence or wrongful conduct); 31 U.S.C. 15 § 3724(a) (allowing the Attorney General to settle claims for personal injuries and damages or lost 16 personal property caused by federal law enforcement); 28 C.F.R. § 542.10(a) (establishing 17 administrative-grievance procedure for “an inmate to seek formal review of an issue relating to any 18 aspect of his/her own confinement”). 19 The PREA includes a remedial structure which provides inmates access to confidential 20 support services, 28 C.F.R. § 115.53, specifications for investigating allegations of sexual abuse 21 and reporting the findings to the reporting inmate, C.F.R. § 115.71 & 115.73, and disciplinary 22 sanctions for staff for violating sexual abuse or sexual harassment policies, C.F.R. § 115.76. Thus, 23 PREA provides an alternative remedial structure to Plaintiff’s sexual assault claims. 24 In addition, all inmates have inmates have access to the Bureau of Prisons’ administrative 25 remedy program, which provides a method for prisoners to resolve issues relating to their 26 conditions of confinement and staff behavior. See 28 C.F.R. Part 542; see also Malesko, 534 U.S. 27 at 74 (recognizing inmate administrative grievance program as a special factor counseling 28 hesitation against creating new Bivens remedy). The type of behavior at issue here–allegedly 1 physical and sexual assault–is precisely the type of behavior that the administrative grievance 2 procedure is well-positioned to address. 3 The PLRA provides an additional remedial scheme for Plaintiff’s claims. 42 U.S.C. § 4 1997e. When Congress enacted the PLRA it “had specific occasion to consider the matter of 5 prisoner abuse and to consider the proper way to remedy those wrongs.” Ziglar, 582 U.S. at 148. 6 The PLRA does not, however, provide a standalone damages remedy against federal prison guards. 7 The absence of that damages remedy in the PLRA may “suggest Congress chose not to extend the 8 Carlson damage remedy to cases involving other types of prisoner mistreatment.” Id. 9 Finally, the FTCA provides another remedial scheme under 28 U.S.C. §§ 1346(b), 2671- 10 2680. See Oliva v. Nivar, 973 F.3d 438, 444 (5th Cir. 2020) (concluding that availability of claim 11 under FTCA was a “special factor” counseling against extending Bivens, even though it would not 12 provide the exact same relief as Bivens); McGurk v. Jusino, No. 5:22-cv-00529, 2022 WL 13 17080128 (C.D. Cal. Aug. 22, 2022). The FTCA is another alternative remedial structure 14 potentially available to Plaintiff, which should preclude this court “fashion[ing] a Bivens remedy.” 15 Egbert, 142 S. Ct. at 1804 (citing Ziglar, 582 U.S. at 137). 16 Contrary to Plaintiff’s contention, this complaint was expressly filed pursuant to Bivens v. 17 Six Unknown Named Agents of Federal Bureau of Narcotics, and the United States is not named 18 as a Defendant. (ECF No. 1 at 1); see Kennedy v. U.S. Postal Service, 145 F.3d 1077, 1078 (9th 19 Cir. 1998) (concluding that “because the United States is the only proper party defendant in an 20 FTCA action,” district court correctly dismissed FTCA claims against federal agency and 21 individual defendant named in official capacity). In addition, a suit may not be instituted against 22 the United States under the FTCA unless the claim is first presented to the appropriate federal 23 agency and one of the following conditions is met: the claim is finally denied, or six months have 24 passed without a final resolution having been made. 28 U.S.C. § 2675(a). The claim presentation 25 requirement is a jurisdictional prerequisite to bringing suit and must be affirmatively alleged in the 26 complaint. Gillispie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980). Plaintiff fails to allege in his 27 complaint that he presented a claim to the appropriate federal agency. Further, Plaintiff alleges 28 only constitutional violations in his complaint. Hernandez v. United States, 939 F.3d 191, 205 (2d 1 Cir. 2019) (“The FTCA ‘has not waived the Government's sovereign immunity with respect to 2 claims that its employees have committed constitutional torts’ under the federal constitution.” 3 (quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)). Accordingly, Plaintiff cannot 4 proceed with this action under the FTCA. 5 3) Unwarranted Judicial Interference in Prison Administration 6 “[T]he decision to recognize a damages remedy requires an assessment of its impact on 7 governmental operations systemwide,” Ziglar, 582 U.S. at 136, and “entails substantial social costs, 8 including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit 9 officials in the discharge of their duties,’” Egbert, 142 S. Ct. at 1807 (quoting Anderson v. 10 Creighton, 483 U.S. 635, 638 (1987)). In light of these considerations and costs, Egbert held that 11 “‘Congress is in a better position to decide whether or not the public interest would be served’ by 12 imposing a damages action.” Id. (quoting Bush, 462 U.S. at 390). 13 Extending a Bivens remedy in this action risks interference with prison administration. The 14 Supreme Court has acknowledged that ““[r]unning a prison is an inordinately difficult undertaking 15 that requires expertise, planning and the commitment of resources, all of which are peculiarly 16 within the province of the legislative and executive branches of the government. Prison 17 administration is, moreover, a task that has been committed to the responsibility of those branches, 18 and separation of powers concerns counsel a policy of judicial restraint.” Turner v. Safley, 482 19 U.S. 78, 84-85 (1987). Here, to inject the judicial system into micro-managing the administration 20 of the prison would cause an undue interference by the judiciary of the day-to-day management of 21 incidents involved in federal prisons. Thus, reasons exist to find that Congress is better equipped 22 to create a damages remedy and an adequate administrative remedy exists. 23 4) Effect on Government Operations 24 Extending Bivens to Plaintiff’s claims would undoubtedly substantially affect government 25 operations and unduly burden Bureau of Prisons officials by having to defend against such claims 26 in their personal capacities. See, e.g., Schwarz v. Meinberg, 761 F. App’x 732, 735 (9th Cir. 2019) 27 (declining to extend Bivens remedies because it would substantially affect operations and unduly 28 burden prison officials who must defend against the suit in their personal capacities); see also 1 Anderson v. Creighton, 483 U.S. 635, 638 (1987) (“[P]ermitting damages suits against government 2 officials can entail substantial social costs, including the risk that fear of personal monetary liability 3 and harassing litigation will unduly inhibit officials in the discharge of their duties.). Nevertheless, 4 as the Supreme Court stated, “[e]ven in a particular case, a court likely cannot predict the 5 ‘systemwide’ consequences of recognizing a cause of action under Bivens. That uncertainty alone 6 is a special factor that forecloses relief.” Egbert, 142 S. Ct. at 1803–04. Thus, any doubt prevents 7 this Court from predicting the systemwide consequences in this situation. 8 D. Plaintiff’s Motion to Amend 9 After Defendants’ filed the instant motion, Plaintiff filed a motion to amend the 10 complaint. 11 Pursuant to the Court’s screening order, this action is proceeding on Plaintiff’s excessive 12 force and sexual assault claims, and the retaliation claim was dismissed. (ECF No. 11.) Plaintiff 13 previously sought to amend the complaint to add a prayer for relief in which the Court denied 14 without prejudice, and advised Plaintiff that any amendment to the complaint “may only include a 15 restatement of Plaintiff’s excessive for allegations against Defendants Zaragoza, Cox, Runmos, 16 Jr., Gunn, Mendez, Mejia, sexual assault claim against Defendant Mejia, and an amended prayer 17 for relief.” (ECF No. 35 at 2.) 18 Where, as here, Plaintiff seeks to amend his or her complaint more than 21 days after 19 service of a Rule 12(b)(6) motion, amendment is permitted only with the opposing party’s written 20 consent or leave of court. Although “leave to amend shall be freely given when justice so 21 requires”, courts “need not grant leave to amend where the amendment: (1) prejudices the 22 opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4) is 23 futile.” AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 24 These factors do not carry equal weight and prejudice is the most important factor to consider. 25 Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). 26 The Court has reviewed the motion and Plaintiff is simply attempting to reinstate the non- 27 cognizable retaliation claim and reiterate the allegations as to his excessive force and sexual 28 assault claims. (ECF No. 47.) As a result of instant recommendation, Plaintiff’s motion to 1 | amend the complaint is denied as it does not address nor present claims that would be allowed to 2 | proceed by way of Bivens. Egbert v. Boule, 142 S.Ct. 1793. The amendment would be futile. 3 Il. 4 RECOMMENDATIONS 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. Defendants’ motion to dismiss be granted; 7 2. Plaintiff's motion to amend the complaint be denied; and 8 3. The action be dismissed for failure to state a cognizable claim for relief under 9 | Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 10 These Findings and Recommendations will be submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one (21) 12 | days after being served with these Findings and Recommendations, the parties may file written 13 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 14 | Findings and Recommendations.” The parties are advised that failure to file objections within the 15 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 16 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. DAM Le 19 | Dated: _October 19, 2023 _ Oe UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 12