(PC) Bailey v. Cox ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY BAILEY, ) Case No.: 1:22-cv-0757 JLT SAB (PC) ) 12 Plaintiff, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATION AND DISMISSING 13 v. ) RETALIATION CLAIM ) 14 T. COX, et al., ) ) (Doc. 9) 15 Defendants. ) ) 16 ) 17 On September 14, 2022, the assigned magistrate judge reviewed his allegations and determined 18 Plaintiff stated cognizable claims for excessive force and sexual assault. (Doc. 9 at 4-6.) However, 19 the magistrate judge determined Plaintiff failed to state a claim for retaliation. (Id. at 6-7.) In so 20 finding, the magistrate judge observed, “The Supreme Court has never recognized a Bivens remedy 21 under the First Amendment and the Ninth Circuit has also refused to extend a Bivens remedy to a 22 claim under the First Amendment.” (Doc. 9 at 6, citing Reichle v. Howards, 566 U.S. 658, 663 n.4 23 (2012); Baptiste v. Zunkeir, 2019 WL 4543113, at *4-5 (C.D. Cal. Apr. 1, 2019).) The magistrate 24 judge indicated the Court should “decline[] to extend a Bivens cause of action to Plaintiff’s First 25 Amendment retaliation claim. (Id. at 7, citing, e.g., Buenrostro v. Fajardo, 770 F. App’x 807, 808 (9th 26 Cir. 2019) [declining to extend Bivens cause of action for First Amendment retaliation claim]; Lee v. 27 Matevousian, 12018 WL 5603593, at *4 (E.D. Cal. Oct. 26, 2018) [declining to find implied Bivens 28 cause of action for First Amendment retaliation and denial of access to court claims].) Therefore, the 1 magistrate judge recommended “[t]his action proceed on Plaintiff’s excessive force claim against 2 Defendants Zaragoza, Cox, Runmos, Jr., Gunn. Hernedez and Mejia, and sexual assault claim against 3 Defendant Mejia; and Plaintiff’s retaliation claim be dismissed from the action.” (Doc. 9 at 7.) 4 Plaintiff filed objections on October 4, 2022, in which he “contends that he never made a First 5 Amendment claim under retaliation clause.” (Doc. 10 at 1.) On the other hand, Plaintiff also asserts 6 that he properly “raised [a] retaliation claim.” (Id.) He argues that “[h]e was physically and sexually 7 assaulted,” after which he was “retaliated against… by tampering with his food, mail[,] daily 8 harassment, and other forms of inhumane treatment due to plaintiff filing complaints… regarding the 9 physical and sexual assault.” (Id. at 2.) 10 The First Amendment prohibits prison officials from retaliating against prisoners for exercising 11 their First Amendment rights. See Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003). Although 12 Plaintiff reiterates his allegations related to retaliation, Plaintiff does not address the observation of the 13 magistrate judge that the Supreme Court has not recognized a Bivens remedy for First Amendment 14 claims. See Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens 15 extends to First Amendment claims”); Luis Buenrostro v. Fajardo, 770 F. App'x 807, 808 (9th Cir. 16 2019) (special factors counsel against extending Bivens to prisoner's First Amendment claim because 17 “an alternative remedial structure exists, including through the Bureau of Prisons administrative 18 grievance process”). Consequently, Plaintiff is unable to proceed with a claim for retaliation in this 19 action. See Manisela v. Prescott, 2022 WL 1051081, at *4 (C.D. Cal. Mar. 7, 2022) (district courts 20 “uniformly declined to imply a Bivens remedy for First Amendment retaliation claims by federal 21 prisoners”). 22 According to 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this Court conducted a de novo 23 review. Having carefully reviewed the entire file, including Plaintiff’s objections, the Court concludes 24 the Findings and Recommendations to be supported by the record and proper analysis. Thus, the 25 Court ORDERS: 26 1. The Findings and Recommendations issued on September 14, 2022 (Doc. 9), are 27 ADOPTED in full. 28 2. Plaintiff’s retaliation claim is DISMISSED without prejudice. 1 3. This action shall proceed on Plaintiff's excessive force claim against defendants 2 Zaragoza, Cox, Runmos, Jr., Gunn, Hernedez, and Mejia, and the sexual assault claim 3 against defendant Mejia; 4 4. The matter is referred to the magistrate judge for further proceedings. 5 6 || IT IS SO ORDERED. Dated: _ October 26, 2022 ( Li pA LU. warm 8 TED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28