NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC HURST, No. 23-15523

Plaintiff-Appellant, D.C. No. 1:22-cv-171-DKW-RT v.

ESTELA DERR, et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawaii Derrick K. Watson, District Judge, Presiding

Submitted February 14, 2024** Honolulu, Hawaii

Before: PAEZ, M. SMITH, and KOH, Circuit Judges. Concurrence by Judge M. SMITH.

Eric Hurst (“Hurst”) appeals the dismissal of his Bivens1 claim against Earl

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), established that a violation of a citizen’s constitutional rights by a federal officer can give rise to a federal cause of action for damages. Dayton, a nurse at Federal Detention Center, Honolulu. We have jurisdiction

under 28 U.S.C. § 1291. Because the parties are familiar with the facts, we do not

recount them here, except as necessary to provide context to our ruling. We

review de novo the district court’s order granting the defendant’s Federal Rule of

Civil Procedure 12(b)(6) motion. Bain v. Cal. Teachers’ Ass’n, 891 F.3d 1206,

1211 (9th Cir. 2018).

The Supreme Court has clarified that the viability of a Bivens claim should

be assessed as follows. First, we must evaluate whether the case arises in a new

context because it is “meaningfully different” from the three previous cases in

which the Supreme Court has implied a damages action: Bivens itself, Davis v.

Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980). Egbert

v. Boule, 596 U.S. 482, 492 (2022). If the case does not present a new context, “no

further analysis is required,” and the claim may proceed. Lanuza v. Love, 899 F.3d

1019, 1023 (9th Cir. 2018). If the case does present a new context, we must

inquire “whether there is any reason to think that Congress might be better

equipped to create a damages remedy” than the judiciary. Egbert, 596 U.S. at 492.

In Carlson v. Green, the Supreme Court recognized for the first time an

implied cause of action under the Eighth Amendment when federal prison officials

failed to provide an inmate with adequate medical treatment. 446 U.S. at 16 n.1.

Hurst sues a federal prison official under the Eighth Amendment because that

2 official failed to provide medical care for his severe head pain. Because Hurst’s

claim is not “meaningfully different” from Carlson, it does not present a new

context.

Contrary to defendant’s arguments, we have held that differences in the

severity of a prisoner’s medical need compared to Carlson do not give rise to a

new Bivens context. Stanard v. Dy, 88 F.4th 811, 817 (9th Cir. 2023) (“Even

assuming that [the plaintiff] received less deficient care than the inmate in Carlson,

that difference in degree is not a meaningful difference giving rise to a new

context.”). Likewise, under our court’s precedent, a prisoner’s medical condition

need not be chronic, fatal, or life-threatening for a claim to be cognizable under

Bivens and Carlson. C. Chambers v. Herrera, 78 F.4th 1100, 1108 (9th Cir. 2023)

(recognizing that a Bivens claim may be viable where prison officials refused to x-

ray a prisoner’s broken arm for six weeks); Jett v. Penner, 439 F.3d 1091, 1098

(9th Cir. 2006) (failing to treat a broken thumb could constitute deliberate

indifference to a serious medical need). Also contrary to the defendant’s

contention, delay or denial of medical care, rather than overt acts of mistreatment,

do not create a new context. Stanard, 88 F.4th at 817 (“Delaying treatment is an

established example of deliberate indifference to a serious medical need.”). Thus,

the district court erred when it held that Hurst’s case was meaningfully different

from Carlson.

3 The existence of alternative remedial structures within the BOP likewise

does not render this case a new context. Egbert clarified that the existence of

alternative remedies is a “special factor” which should be considered at the second

step of the Bivens analysis. Egbert, 596 U.S. at 498 (“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.”). In Stanard, we held that a Bivens action did

not present a new context from Carlson even where the prisoner had repeatedly

grieved his denial of medical care using the BOP’s internal complaint system. 88

F.4th at 814, 818. Thus, the district court erred when it held that the existence of

alternative remedial structures created a new Bivens context.

REVERSED AND REMANDED.

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FILED

AUG 16 2024

M. SMITH, concurring in the judgment:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree with my colleagues that the district court should be reversed, but on

the basis that it applied an incorrect legal standard. See In re Apple Inc. Device

Performance Litig., 50 F.4th 769, 776 (9th Cir. 2022) (noting that application of an

incorrect legal standard is reversible error). I would not have reached the issue of

whether this case presents a new Bivens context.

The two-step framework for assessing Bivens claims is a familiar one: First,

the court inquires whether the case is “meaningfully different from the three cases

in which the Court has implied a damages action.” Egbert v. Boule, 596 U.S. 482,

492 (2022) (cleaned up). If it is, that case arises in a new context. Id. Cases that

arise in a new context are subject to the second step of the analysis, in which the

court determines whether “special factors” exist which “indicate that the Judiciary

is at least arguably less equipped than Congress to weigh the costs and benefits of

allowing a damages action to proceed.” Id. (internal citation omitted).

Rather than applying the classic two-step framework, the district court read

Egbert to meld the analysis into a one-step model. In its words, “while Egbert did

not explicitly overrule Bivens, the writing is on the wall.” The court concluded:

“[m]oving forward, the two-step Ziglar inquiry effectively presents a single

question—‘whether there is any reason to think that Congress might be better

equipped to create a damages remedy’—with the Supreme Court, at the same time, providing an answer to its own question: in virtually every case, yes.” Accordingly,

the district court concluded that “both” the fact of a new context and an alternative

remedial scheme “render Hurst’s case a ‘new context’ not contemplated by

Carlson.”

Cases in this circuit published since Egbert have confirmed that Egbert did

not undermine the familiar two-step analysis for Bivens cases. See Harper v. Nedd,

71 F.4th 1181, 1185 (9th Cir. 2023) (“We must apply a two-step framework, asking

first whether the claim arises in a new context, and second, if so, whether other

special factors counsel hesitation against extending Bivens.”); Chambers v. Herrera,

78 F.4th 1100, 1104 (9th Cir. 2023) (applying the same “two-part framework”). Not

only was it inappropriate for the district court to ignore these precedents, but it was

also inappropriate for the district court to conclude that “[t]he landscape . . . has

changed” and that Bivens was essentially overruled by Egbert. See Agostini v.

Felton, 521 U.S. 203, 237 (1997) (explaining that only the Supreme Court may

“overrule[] its own decisions” (internal quotation marks omitted)).

I would correct that error and reverse to provide the district court another

opportunity to assess the issue on the merits. See PDK Lab’ys, Inc. v. U.S. D.E.A.,

362 F.3d 786, 799 (D.C. Cir. 2004) (“[T]he cardinal principle of judicial restraint —

if it is not necessary to decide more, it is necessary not to decide more — counsels

us to go no further.”) (Roberts, J., concurring in part and concurring in the judgment).

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