Roscoe Chambers v. C. Herrera

                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

ROSCOE CHAMBERS,                           No. 20-55004

               Plaintiff-Appellant,           D.C. No.
  v.                                       5:17-cv-02564-
                                             MWF-KES
C. HERRERA, Special Housing Unit
Lieutenant, individual and official
capacity; E. VELEZ, individual;              OPINION
MARY M. MITCHELL, in her
individual capacity; D. MILLER, in
his individual capacity; RAGOSA, in
her individual capacity; A. MARTIN,
S.I. Officer in his individual capacity;
JOSE ESQUITINI, Physician
Assistant; E. PEREZ,

               Defendants-Appellees,

and

BRAUN, individual; CHRISMAN,
individual; M. MITCHELL, Western
Regional Director, official capacity;
CLARK, in his individual capacity;
STEVEN LAKE,

               Defendants.
2                      CHAMBERS V. HERRERA




       Appeal from the United States District Court
           for the Central District of California
      Michael W. Fitzgerald, District Judge, Presiding

           Argued and Submitted February 8, 2023
                 San Francisco, California

                     Filed August 15, 2023

Before: Jay S. Bybee and Ryan D. Nelson, Circuit Judges,
           and Jed S. Rakoff, * District Judge.

                  Opinion by Judge R. Nelson


                          SUMMARY **


                 Bivens/Prisoner Civil Rights

    The panel affirmed in part, reversed in part, and vacated
in part the district court’s order dismissing for failure to state
a claim a federal prisoner’s First and Eighth Amendment
claims brought under Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 

 (1971),
and remanded.



*
 The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
**
  This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    CHAMBERS V. HERRERA                     3


    In evaluating plaintiff’s claims, the panel applied the
two-part framework set forth in Ziglar v. Abbasi, 

 (2017), and Hernandez v. Mesa, 

 (2020),
asking first whether the claim arose in a new context, and
second, if so, whether other special factors counseled
hesitation against the extension of Bivens.
    Affirming the dismissal of the First Amendment
retaliation claim, the panel agreed with plaintiff that the
Supreme Court’s decision in Egbert v. Boule, 

 (2022), explicitly disavowed any Bivens claims based
on First Amendment retaliation.
    The panel held that plaintiff’s Eighth Amendment failure
to protect claim failed to state a claim under Egbert because:
(1) the claim represented a new Bivens context, noting that
no case has extended Bivens to claims that Bureau of Prisons
employees violated the Eighth Amendment by failing to
protect an inmate from other staff members; and (2)
Congress was better suited than the Judiciary to construct a
damages remedy. The panel held that plaintiff’s Eighth
Amendment excessive force claim similarly failed under
Bivens, but dismissal of that claim should be with prejudice
because even plausible allegations could not constitute a
Bivens claim for excessive force under Egbert and
amendment would be futile.
    Addressing plaintiff’s Eighth Amendment claim for
medical indifference, the panel determined that it was
unclear whether the Bivens claim was viable because
plaintiff failed to allege any facts about his injuries,
examination, or treatment. The panel remanded the claim
for the district court to consider whether plaintiff,
proceeding pro se, should be allowed to amend his complaint
and the potential merits of any amended claim.
4                   CHAMBERS V. HERRERA


                        COUNSEL

Christine Hanon (argued), Emily Dennis, and Abigail Miles,
Certified Law Students; Carter White, Supervising Attorney;
UC Davis Civil Rights Clinic, Davis, California; for
Plaintiff-Appellant.
Margaret M. Chen (argued), Assistant United States
Attorney; David M. Harris, Assistant United States
Attorney, Civil Division Chief; Tracy L. Wilkison, United
States Attorney; United States Attorney’s Office, Los
Angeles, California; for Defendants-Appellees.



                        OPINION

R. NELSON, Circuit Judge:

    We once again grapple with Bivens. Under Egbert v.
Boule, 

 (2022), most claims seeking to
expand Bivens are “dead on arrival.” Harper v. Nedd, 

 (9th Cir. 2023). For all but one claim, this
case presents no reason to depart from our presumption. We
agree with the district court that Roscoe Chambers failed to
state a Bivens claim under the Eighth Amendment for
medical indifference. But we remand for the district court to
consider whether, as a pro se plaintiff, Chambers should be
allowed to amend his complaint. While perhaps unlikely, it
is not impossible that he could plead a viable claim.
                              I
   Roscoe Chambers appeals the district court’s order
dismissing his First and Eighth Amendment claims brought
under Bivens v. Six Unknown Named Agents of the Federal
                       CHAMBERS V. HERRERA                          5


Bureau of Narcotics, 

 (1971). During the
relevant period, Chambers was a federal prisoner. Chambers
alleges that he faced harassment, retaliation, and physical
harm. Relevant here, he alleges that prison officer
Lieutenant Carmen Herrera repeatedly threatened him,
denied him law library access, and assaulted him several
times, causing a broken arm and wrist. Chambers also
alleges that physician’s assistant Jose Esquetini refused to
treat his broken bones or take x-rays for six weeks to cover
up Herrera’s assaults. Chambers asserts that he was then
assaulted by Officer Enrique Velez, who allegedly sprayed
him in the mouth and face with mace.
    Chambers allegedly attempted to file a BOP-10 1
grievance form. Chambers claims his complaints were
dismissed and prison staff punished him by filing false
incident reports and placing him in the Special Housing Unit.
    Chambers then filed a Bivens action asserting claims for
retaliation in violation of the First Amendment and failure to
protect, excessive force, and medical indifference claims in
violation of the Eighth Amendment. Defendants moved to
dismiss, arguing that Chambers did not state a cognizable
Bivens claim and, alternatively, that the defendants were
entitled to qualified immunity. The district court adopted the
magistrate judge’s recommendation that Chambers’
complaint be dismissed, including, as relevant here, that his
Eighth Amendment excessive force and deliberate


1
  Under the BOP grievance procedure, an inmate may file a BOP-10 form
if an initial complaint is not formally rejected but the inmate is not
satisfied with the Warden’s response. See, e.g., FED. BUREAU OF
PRISONS, U.S. DEP’T OF JUSTICE, PROGRAM STATEMENT NO. 1330.18,
ADMINISTRATIVE REMEDY PROGRAM (Jan. 6, 2014), available at
https://www.bop.gov/policy/progstat/1330_018.pdf.
6                    CHAMBERS V. HERRERA


indifference claims be dismissed with leave to amend and
his other Bivens claims be dismissed without leave. See
Chambers v. Herrera, 

, at *10 (C.D. Cal.
July 9, 2019), report and recommendation adopted, 

 (C.D. Cal. Aug. 29, 2019). Chambers declined
to amend, so the district court entered final judgment
dismissing his complaint. Chambers now seeks this appeal.
                                II
    We have jurisdiction under 

. See
Pettibone v. Russell, 

 (9th Cir. 2023). And
we review motions to dismiss de novo. Fayer v. Vaughn,

, 1063–64 (9th Cir. 2011) (per curiam). “A
motion to dismiss will only be granted if the complaint fails
to allege ‘enough facts to state a claim to relief that is
plausible on its face.’” 

 at 1064 (quoting Bell Atl. Corp.
v. Twombly, 

 (2007)). “[W]here the
petitioner is pro se, particularly in civil rights cases,” a court
must “construe the pleadings liberally” and “afford the
petitioner the benefit of any doubt.” Hebbe v. Pliler, 

 (9th Cir. 2010) (internal quotation marks
omitted).
                               III
    Bivens is far from the road less traveled. The Supreme
Court 50 years ago recognized an implicit cause of action
against federal officials under the Fourth Amendment in
Bivens and extended Bivens’s implied cause of action under
the Fifth Amendment and Eighth Amendment. See 

 (Fourth Amendment); Davis v. Passman, 

, 248–49 (1979) (Fifth Amendment); Carlson v. Green,

 (1980) (Eighth Amendment). Over the last
40 years, the Court has been invited, and refused, to extend
Bivens twelve times. See Harper v. Nedd, 

,
                    CHAMBERS V. HERRERA                    7


1185 (9th Cir. 2023) (internal citation omitted). The Court
categorized extending Bivens as a “disfavored judicial
activity.” Ziglar v. Abbasi, 

 (2017)
(internal quotation marks omitted). And the Court recently
issued a trilogy of cases reinforcing said disfavor. See
Egbert v. Boule, 

, 1798–99 (2022);
Hernandez v. Mesa, 

 (2020); Ziglar, 

.
    The Court clarified the framework we must apply to
evaluate Bivens claims. Under Ziglar and Hernandez, we
apply a two-part framework, asking first whether the claim
arises in a new context, and second, if so, whether other
special factors counsel hesitation against the extension of
Bivens. Hernandez, 

; Ziglar, 582 U.S. at
136–39. A Bivens action may constitute a new context
depending on, for example:

       the rank of the officers involved; the
       constitutional right at issue; the generality or
       specificity of the official action; the extent of
       judicial guidance as to how an officer should
       respond to the problem or emergency to be
       confronted; the statutory or other legal
       mandate under which the officer was
       operating; the risk of disruptive intrusion by
       the Judiciary into the functioning of other
       branches; or the presence of potential special
       factors that previous Bivens cases did not
       consider.

Ziglar, 

.
    Ultimately, the Court has noted that “if there is any
reason to think that ‘judicial intrusion’ into a given field
8                   CHAMBERS V. HERRERA


might be ‘harmful’ or ‘inappropriate,’” or “even if there is
the ‘potential’ for such consequences, a court cannot afford
a plaintiff a Bivens remedy.” Egbert, 

(citations omitted). Thus, post-Egbert we first examine
whether this case presents a new Bivens context and, if so,
whether Congress is better equipped to create a damages
remedy. See 

.
    Heeding the Court’s guidance, we have similarly
declined to extend Bivens to any new contexts. See, e.g.,
Harper, 

; Pettibone, 

; Mejia
v. Miller, 

 (9th Cir. 2023). This includes
cases in which the Bivens claim was brought under “parallel
circumstances” to previously recognized Bivens cases.
Egbert, 

; see also Harper, 

(finding new Bivens context in Fifth Amendment due
process claim because claim involved a new category of
defendants and alternative remedial scheme); Pettibone, 

 (same in Bivens claim brought under the Fourth
Amendment because claim involved officers of a different
rank and distinguishable official action and legal mandate);
Mejia, 

 (same in Fourth Amendment
excessive force claim because case involved new category
of defendants). In each of these cases we concluded that
Congress, not the Judiciary, was better suited to fashioning
damages remedies. “Essentially then, future extensions of
Bivens are dead on arrival.” Harper, 

.
                             IV
    We examine each of Chambers’ Bivens claims in turn.
                             A
    We first address Chambers’ First Amendment retaliation
claim. Chambers concedes that the Supreme Court’s
                      CHAMBERS V. HERRERA                          9


decision in Egbert “explicitly disavows any Bivens claims
based on First Amendment retaliation, including his own.”
We agree.
    The Court noted in Egbert that it has “never held that
Bivens extends to First Amendment claims,” and “a new
context arises when there is a new constitutional right at
issue.” 

 (cleaned up). The Court then held
that several reasons, including “substantial social costs,”
“the risk that fear of personal monetary liability and
harassing litigation will unduly inhibit officials in the
discharge of their duties” and that this “‘prospect of personal
liability’ under the First Amendment would lead ‘to new
difficulties and expense’” rendered Congress better suited
than the Judiciary to fashion a damages remedy. 

(citations omitted). So too here. We therefore affirm the
district court’s dismissal of Chambers’ First Amendment
retaliation claim.
                                 B
       We next conclude that Chambers’ Eighth
Amendment failure to protect claim fails to state a claim
under Egbert, 

.
                                 1
    Chambers argues that his Eighth Amendment failure to
protect claim does not represent a new Bivens context
because it is like the existing Bivens actions in Farmer v.
Brennan, 

 (1994), 2 and Carlson. But

2
 The Supreme Court has never recognized Farmer as a Bivens action.
We will not do so in the first instance. Even so, reliance on Farmer
would fail. The alleged threat in Farmer was from other inmates, see
511 U.S. at 830–31, whereas the alleged threat here was from a prison
10                     CHAMBERS V. HERRERA


Chambers’ claim differs from Carlson and thus represents a
new Bivens context.
    The Supreme Court in Ziglar articulated that even a
modest extension of Bivens is a “disfavored judicial
activity.” 

. There, the Court held that a
prisoner mistreatment claim against a warden presented a
new Bivens context.          See 

 at 147–48.      While
acknowledging that the claim turned on a different
constitutional right (Fifth Amendment) than Carlson (Eighth
Amendment), the Ziglar claim presented a new context in
part because the judicial guidance available to the warden
was “less developed” than in Carlson. 

.
    Ziglar’s logic commands dismissal here as well.
Chambers asserts a claim premised on a failure to protect,
but this is dissimilar to Carlson’s failure to provide medical
care. This distinction is important because, just as in Ziglar,
there is less judicial guidance regulating the defendants’
alleged actions. See 

; Chambers, 

, at *9. There is no clear nor preexisting judicial
guidance as to how an official visiting a prison must respond
to a BOP-10 form she received from an inmate. And this
lack of guidance risks disruptive judicial intrusion into
prison administration because it may require an officer to

officer. Additionally, the “specificity of the official action,” and the
“extent of judicial guidance,” Ziglar, 

, implicated by
Chambers’ claim are beyond the purview of Farmer. And a response to
the alleged threat posed by Herrera would involve a different set of
responses and considerations than in Farmer. Chambers cites no
Supreme Court authority providing judicial guidance in the Bivens
context on how prison officials should respond to alleged threats from
employees against prisoners. These are “meaningful[] differen[ces]”
that would present a new context from Farmer. See Egbert, 

.
                    CHAMBERS V. HERRERA                   11


exceed his authority to act unilaterally, and thus risks
altering a variety of prison procedures. See Chambers, 

 at *9.
    Additionally, the mechanism of injury in Chambers’
claim is different than in Carlson. Carlson relied on failure
to provide adequate medical treatment, while this claim
relies on a failure to protect Chambers against Officer
Herrera. No case has extended Bivens to claims that BOP
employees violated the Eighth Amendment by failing to
protect an inmate from other staff members. Carlson also
concerned specific actions taken against an individual
inmate, whereas Chambers’ failure to protect claim would
impose Bivens liability for inaction. See 

.
    Chambers argues that these differences are not
meaningful because his harm is ultimately caused by
individual officials’ acts or omissions. But Ziglar instructs
courts to ask not if the Supreme Court has recognized similar
claims, but whether there are any “differences that are
meaningful” between claims recognized by the Supreme
Court and the claims at issue. 

. Similarity
alone does not suffice. These distinctions create a new
context for Bivens liability.
                             2
    We similarly conclude that Congress is better suited than
the Judiciary to construct a damages remedy. Under Egbert,
“[a] court faces only one question: whether there is any
rational reason (even one) to think that Congress is better
suited to ‘weigh the costs and benefits of allowing a damages
action to proceed.’” 

 (emphasis and
citation omitted). That reason exists here.
12                   CHAMBERS V. HERRERA


    First, extending Bivens here would create a broad new
source of liability for prison officials. Chambers admits as
much, conceding that “extending a Bivens remedy is almost
certainly going to impose some administrative burdens.”
This alone is enough to place it beyond the purview of the
courts to create a remedy, because courts may not
“independently assess the costs and benefits of implying a
cause of action.” 

    Second, the Prison Litigation Reform Act (PLRA)
ultimately provides Chambers the remedies available to him
by Congress. Egbert highlighted that creation of a new
cause of action is inherently legislative, not adjudicative, see
Egbert, 

, and therefore extending Bivens
raises significant separation of powers concerns, see Mejia,

. And the lack of a favorable remedy is
immaterial to whether an alternative remedial structure
exists that precludes judicial intervention under Bivens. See
Harper, 

. “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.” Egbert, 

.
    Here, the PLRA gives authority to the BOP, as part of
the Executive Branch, to structure grievance procedures.
See Jones v. Bock, 

 (2007) (noting that
rules “are defined not by the PLRA, but by the prison
grievance process itself”). Therefore, just as we declined to
second-guess Congress’s establishment of remedies under
the Civil Service Reform Act in Harper, we decline to
                        CHAMBERS V. HERRERA                            13


second-guess the remedial structure as set forth by the BOP
here. 3 

.
    Additionally, any decision by Congress or the Executive
not to create an express Eighth Amendment failure to protect
cause of action for prisoners, where it has legislated,
suggests that they have decided against creating such an
action. These reasons constitute “any rational reason (even
one) to think that Congress is better suited to weigh the costs
and benefits of allowing a damages action to proceed.”
Egbert, 

 (internal quotation marks
omitted). Chambers has no Bivens claim here.
                                   C
  We similarly conclude that Chambers has no Eighth
Amendment excessive force claim under Bivens.
    The district court dismissed Chambers’ excessive force
claims against Herrera and Velez with leave to amend.
Chambers, 

, at *10. Because defendants
did not move to dismiss these claims for lack of a Bivens
remedy, the district court assumed without deciding that a
Bivens remedy was available. 

 at *10 n.11. We conclude
that Chambers has no relief under Bivens for this claim.
    We agree with the district court that plaintiff’s
allegations, even taken as true, are too threadbare to allege
an Eighth Amendment violation. See Ashcroft v. Iqbal, 

 (2009) (“A claim has facial plausibility when

3
 Chambers asserts that he has no remedy beyond damages for his harms
because he is no longer incarcerated. This makes no difference because
Chambers could have (and in fact did) avail himself of the ability to file
complaints against BOP staff while incarcerated. That the alternative
remedy existed at all is the factor we consider under Egbert, 142 S. Ct.
at 1806–07.
14                   CHAMBERS V. HERRERA


the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” (internal citation omitted)). Such a
dismissal, especially for a pro se plaintiff, would normally
be without prejudice. See Nordstrom v. Ryan, 

 (9th Cir. 2014).
    That said, in light of Egbert, we affirm the district court’s
dismissal on an alternative basis. See Adams v. Johnson, 

 (9th Cir. 2004). Because even plausible
allegations could not constitute a Bivens claim for excessive
force under Egbert, it is “absolutely clear” that amendment
would be futile. Nordstrom, 

 (quoting
Schucker v. Rockwood, 

, 1203–04 (9th Cir.
1988)). Thus, while we affirm the dismissal, we reverse the
district court and hold that the dismissal here should be with
prejudice.
    Chambers relies on Carlson to establish his claim under
a preexisting context.           But Chambers’ claim is
distinguishable from Carlson yet again. Unlike Carlson,
which involved a deliberate indifference claim for
inadequate medical attention, Chambers’ claim here is
rooted in excessive force. It therefore represents a new
Bivens context because it is distinct from the three actions
recognized in Bivens, Davis, and Carlson. Like with
Chambers’ failure to protect claim, it is not enough that
Carlson was also brought under the Eighth Amendment
because several Ziglar factors highlight that this claim
presents a new context. 582 U.S. at 139–40. These factors
include: “the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be
confronted; the statutory or other legal mandate under which
the officer was operating;” and “the risk of disruptive
                    CHAMBERS V. HERRERA                     15


intrusion by the Judiciary into the functioning of other
branches.” Id. at 140.
    Because Carlson involved an entirely different claim, it
provides no judicial guidance on how prison officials should
handle excessive force claims. See id. Additionally, as
Chambers concedes, he both was aware of the preexisting
BOP prisoner grievance procedures and declined to use
them. Therefore, for us to expand Bivens here would risk the
exact “disruptive intrusion by the Judiciary” that Ziglar
forecloses. Id.
    Accordingly, Chambers again fails to meet the high
burden of showing that no reason counsels against extending
Bivens. See Egbert, 

. As with his failure
to protect claim, it is immaterial that Chambers did not prefer
these remedies. See 

. Doing so would interfere
with the administration of the federal prison system. 

Congress also adopted the PLRA, authorizing BOP to
establish grievance procedures for prisoner complaints, but
without creating a damages remedy for Eighth Amendment
excessive force claims. We decline to craft an action for
damages when Congress could have done so but did not.
Because several reasons counsel against it, we decline to
extend Bivens.
                              D
    We lastly consider Chambers’ Bivens Eighth
Amendment deliberate medical indifference claim.
Chambers alleges that after Herrera “assaulted” him, causing
him to suffer a broken arm, Esquetini refused to treat
Chambers to cover up the assault. According to Chambers,
Esquetini refused to take x-rays for six weeks. Chambers
asserts that this claim is viable under Carlson. The district
court noted that Chambers failed to allege any facts about his
16                  CHAMBERS V. HERRERA


injuries, what examination or treatment (if any) he received
before or after having x-rays, and the ultimate condition of
his arm. Chambers, 

, at *10. We agree
with the district court that it is unclear from his complaint
whether this Bivens claim is viable. See 

 We cannot say
at this stage that it is impossible that more detailed factual
allegations could cure the deficiencies in his complaint under
Egbert.
     Apparently, in order to take this appeal, Chambers chose
below not to amend his complaint. Given the less stringent
standards we apply to pro se litigants, Erickson v. Pardus,

 (2007), particularly as applied to a pro se
plaintiff’s factual allegations, Neitzke v. Williams, 

, 330 n.9 (1989), we remand this claim to the district
court to determine in its discretion whether Chambers may
still attempt to amend his complaint in light of this decision.
    If Chambers is permitted to amend and does so, the
district court must still assess the viability of the new claim
under Egbert. The claim would be the same constitutional
right in Carlson. But the other Egbert factors would need to
be addressed to determine whether this claim arises in a
different context. True, we have said that new Bivens claims
are “dead on arrival.” Harper, 

. While this
claim, even as amended, may ultimately suffer the same fate,
“mostly dead is slightly alive.” PRINCESS BRIDE (20th
Century Fox 1987). We leave it to the district court to
address the potential merits of any amended claim in the first
instance.
                              V
   Because Chambers’ First Amendment retaliation and
Eighth Amendment failure to protect Bivens claims present
new contexts and Congress is better suited to create a
                   CHAMBERS V. HERRERA                  17


damages remedy, we affirm the district court’s dismissal of
these claims. We also affirm the dismissal of Chambers’
Eighth Amendment excessive force claim, but under Egbert
that dismissal is with prejudice. Lastly, we remand
Chambers’ medical indifference claim for further
proceedings consistent with this opinion.
  AFFIRMED IN PART, REVERSED IN PART,
VACATED AND REMANDED IN PART.