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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 FREDERICK JACKSON, Case No. 2:22-01170 MEMF (ADS)

12 Plaintiff,

13 v. ORDER ACCEPTING UNITED STATES

MAGISTRATE JUDGE’S REPORT AND

14 J. BENDER, et al., RECOMMENDATION

15 Defendants.

16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed Plaintiff's Complaint, (Dkt. 18 No. 1), and the Report and Recommendation of United State Magistrate Judge, (Dkt. 19 No. 13.) No objections were filed, and the time to do so has passed. The Court accepts 20 the findings and recommendations of the Magistrate Judge. 21 The Report properly found that Plaintiff’s claim of malicious prosecution arises in 22 a “new context” under the two-step framework for determining whether Bivens should 23 be expanded. Hernandez v. Mesa, 589 U.S. 93, 103 (2020). (Court established a two- 24 step analysis in deciding whether a Bivens claims should be extended to a new context: 1 (1) “inquire whether the request involves a claim that arises in a ‘new context’ or 2 involves a ‘new category of defendants;’” and (2) “ask whether there are any ‘special 3 factors that counsel hesitation’ about granting the extension.”). This Court would simply 4 add to the analysis of “new context” in the Report that it appears that this context is new 5 not just because Supreme Court precedent has not expressly permitted a Bivens claim

6 for malicious prosecution, but also because there were new defendants, a new 7 mechanism of injury, and a new claim. See Sheikh v. U.S. Dep’t of Homeland Sec., 106 8 F.4th 918, 924–26 (9th Cir. 2024). 9 The Report also properly found that “special factors” counsel hesitation—in 10 particular, the availability of the administrative grievance procedure within the Federal 11 Bureau of Prisons (“BOP”).1 With respect to the “special factors” analysis, this Court 12 wishes to emphasize that the question before this Court is not what this Court’s 13 independent assessment would be of the costs and benefits of implying a Bivens cause of 14 action, but “whether there is any rational reason (even one) to think that Congress is 15 better suited to ‘weigh the costs and benefits of allowing a damages action to proceed. ” 16 Sheikh, 106 F.4th at 926 (quoting Egbert v. Boule, 596 U.S. 482, (2022); Ziglar v.

17 Abbasi, 582 U.S. 120, (2017)). In fact, the Ninth Circuit has recently reminded lower 18 courts that “If there is even a single ‘reason to pause before applying Bivens in a new 19 context,’ a court may not recognize a Bivens remedy.” Sheikh, 106 F.4th at 926 (quoting 20 Egbert and Hernandez). 21 22 23 1 The Court notes a small typographical error in the Report at ECF No. 13, page 9 (“Bureau or Prisons” intended to be “Bureau of Prisons”). 24 1 This Court is constrained by clear binding authority and the principle of the 2 separation of powers. It is not for this Court to reimagine the Supreme Court’s post- 3 || Bivens jurisprudence or rewrite this Circuit’s post-Egbert jurisprudence to permit 4 || consideration of the adequacy of the administrative grievance procedure. See Egbert v. 5 || Boule, 596 at 492 (2022). 6 Accordingly, IT IS HEREBY ORDERED: 7 1. The Report and Recommendation is accepted, (Dkt. No. 13); 8 2. Plaintiffs Complaint is dismissed without leave to amend; 9 3. Judgment is to be entered accordingly. 10 DATED: March 10, 2025 _ 12 MAAME EWUSI-MENSAH FRIMPONG United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24