1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL RIVERA ANAYA, Case No.: 25cv0959-LL-KSC

12 Plaintiff,

ORDER: (1) DISMISSING FIRST

13 vs. AMENDED COMPLAINT FOR

FAILURE TO STATE A CLAIM

14

PURSUANT TO 28 U.S.C.

15 C. RIVERO, A. GARCIA, P. GAFF, B. §§ 1915(e)(2)(B) and

HOLERUD,

16 (2) DENYING MOTION FOR 17 Defendants. APPOINTMENT OF COUNSEL AND

REQUESTS FOR SERVICE AND

18 JURY TRIAL (ECF Nos. 6, 7, 8) 19 20 I. INTRODUCTION 21 Plaintiff Daniel Rivera Anaya (“Plaintiff” or “Anaya”) is in federal custody1 and 22 proceeding pro se with a civil action. The Court previously granted Plaintiff’s motion to 23

24 1 The Court takes judicial notice of Plaintiff’s criminal case in United States v. Anaya Rivera, 25 No. 25-cr-0074-TWR (S.D. Cal.). See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) 26 (stating a court “‘may take notice of proceedings in other courts, both within and without the federal judicial system”). In that case, Plaintiff pleaded guilty to one count of misdemeanor assault 27 on a federal officer (18 U.S.C. § 111(a)(1)) and was sentenced to one year in custody. See United States v. Anaya Rivera, No. 25-cr-0074-TWR (S.D. Cal.) (ECF No. 55). 28 1 proceed in forma pauperis but dismissed his original complaint for failure to state a claim. 2 ECF No. 4. The Court granted Anaya leave to amend and his First Amended Complaint 3 (“FAC”) is currently before the Court. ECF No. 5. Anaya has also filed a motion for 4 appointment of counsel, a “request for service,” and a “request for jury trial.” ECF Nos. 6, 5 7, 8. 6 In his FAC, Plaintiff alleges Defendants, all federal officers, violated his rights under 7 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), 8 by using excessive force against him and failing to provide him with adequate medical 9 care. ECF No. 5 at 9–12. He also alleges his due process right were violated when 10 Defendants failed to follow policy that “mandates that [asylum] applicants for admission 11 be properly inspected.” Id. at 8. For the reasons discussed below, the court dismisses the 12 FAC for failure to state a claim; and denies the motion for appointment of counsel, the 13 request for service, and the request for jury trial, as moot. 14 II. SCREENING PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) 15 A. Legal Standards 16 As with his original complaint, the Court must screen Plaintiff’s FAC pursuant to 28 17 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and sua sponte dismiss it to the extent that it is 18 frivolous, malicious, fails to state a claim, or seeks damages from defendants who are 19 immune. See Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v. 20 Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). “The standard for determining whether 21 Plaintiff has failed to state a claim upon which relief can be granted under 22 § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for 23 failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). Rule 24 12(b)(6) requires a complaint “contain sufficient factual matter . . . to state a claim to relief 25 that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation 26 marks omitted). While detailed factual allegations are not required, “[t]hreadbare recitals 27 of the elements of a cause of action, supported by mere conclusory statements, do not 28 suffice” to state a claim. Id. 1 B. Plaintiff’s Allegations 2 Anaya alleges that on December 11, 2024, he went to the San Ysidro pedestrian port 3 of entry to seek entry to the United States as a refugee. ECF No. 5 at 4. After “crossing the 4 painted line designating the United States and Mexico international border,” Anaya 5 approached the “entry threshold turnstile.” Id. United States Customs Border and 6 Protection (“CPB”) Officer Rivero stopped Anaya while he was “inside the turnstile” and 7 instructed Anaya to show his passport. Id. Instead of doing so, Anaya “pushed forward” 8 through the turnstile. Rivero “took offense” that Anaya had exited the turnstile and shoved 9 Anaya in the chest “with the intention to immediately return [Anaya] back into Mexico.” 10 Id. 11 Anaya tried to prevent Rivero from pushing him further. When Rivero was unable 12 to push Anaya back into Mexico, he radioed for assistance. Id. Other CPB officers arrived 13 and “joined Rivero’s efforts to forcibly push [Anaya] across the gate door back into 14 Mexico.” Id. at 5. In the process, Rivero ripped three buttons from Anaya’s shirt. Id. 15 Anaya “stood his ground” at the “door on Mexico’s side of the gate” and the officers 16 began closing the gate. CPB Officer Gaff kicked Anaya and another officer slammed the 17 gate door against him. Id. Rivero also threated to tase Anaya. Id. Plaintiff reacted by 18 throwing his papers in Rivero’s directions. Id. Anaya was then pulled back into the U.S. 19 side of the border and away from public view where he was “brutally dropped to the 20 ground.” Id. While Anaya was face down on the ground, Officer Garcia “slammed” him 21 into the concrete, knocking Anaya’s glasses off and leaving swelling to his left cheek bone. 22 Id. at 5–6. Officer Gaff then placed his knees on Anaya’s back. Anaya was then “roughly 23 picked up” and handcuffed by Rivero. Id. at 6. 24 Anaya was then escorted to “secondary.” Id. He was in pain but offered no medical 25 attention. Id. Shortly thereafter, Plaintiff was taken to another security building where he 26 was fingerprinted by Officer Holerud. Id. Anaya asked to speak to someone from the 27 Mexican Consulate, but his request was ignored. Anaya was ultimately charged with 28 assault on a federal officer. Id. 1 C. Discussion 2 Anaya raises three claims pursuant to Bivens v. Six Unknown Named Agents of Fed. 3 Bureau of Narcotics, 403 U.S. 388 (1971). He alleges Defendants Rivero, Garcia, Gaff and 4 Holerud violated his constitutional right (1) to be free from excessive force (2) to adequate 5 medical care and (2) to due process as an asylum seeker. ECF No. 5 at 9–13. Anaya seeks 6 money damages. Id. at 14. 7 1. Bivens 8 In Bivens, the Supreme Court “recognized for the first time an implied private action 9 for damages against federal officers alleged to have violated a citizen's constitutional 10 rights.” Iqbal, 556 U.S. at 675 (quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 11 (2001). Bivens, however, provides a judicially recognized remedy for constitutional 12 violations committed by federal actors only in limited circumstances. 13 Since Bivens was decided, the Supreme Court has expressly recognized an implied 14 cause of action in only three types of cases: (1) Bivens itself, which recognized an implied 15 cause of action for violation of the Fourth Amendment’s right against unreasonable 16 searches and seizures; (2) Davis v. Passman, 442 U.S. 228 (1979), which recognized a 17 claim for gender discrimination in the employment context under the Fifth Amendment’s 18 Due Process Clause; and (3) Carlson v. Green, 446 U.S. 14 (1980), which recognized a 19 claim against prison officials for inadequate medical care in the prison context under the 20 Eighth Amendment. Apart from these cases, the Court has “consistently refused to extend 21 Bivens liability” to other contexts. Malesko, 534 U.S. at 68. 22 Any extension of Bivens requires a two-step analysis. First, a court must ask whether 23 the request involves a claim that arises in a “new context” or involves a “new category of 24 defendants.” Id. Second, if the claim arises in a new context, the Court must next ask 25 whether “there are ‘special factors’ indicating that the Judiciary is at least arguably less 26 equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to 27 proceed.’” Egbert v. Boule, 596 U.S 482, 492 (2022) (quoting Ziglar v. Abassi, 582 U.S. 28 120, 131 (2017)). If “there is any reason to think that Congress might be better equipped 1 to create a damages remedy,” the claim cannot proceed. Marquez v. Rodriguez, 81 F.4th 2 1027, 1030 (9th Cir. 2023) (stating the Bivens test “will foreclose relief in all but the most 3 extraordinary cases”); Egbert, 596 U.S. at 502 (“[W]e have indicated that if we were called 4 to decide Bivens today, we would decline to discover any implied causes of action in the 5 Constitution.”). 6 2. Excessive Force 7 First, Plaintiff has failed to state a Fourth Amendment excessive force claim under 8 Bivens. As noted above, the Supreme Court has cautioned against expanding Bivens’ 9 implied right of action into new contexts beyond those already recognized. Abbasi, 582 10 U.S at 134. Most recently, the Supreme Court refused to extend Bivens to a Fourth 11 Amendment excessive force claim against a U.S. Customs Border and Protection agent 12 who got into an altercation with the plaintiff “while carrying out Border Patrol’s mandate 13 to ‘interdic[t] persons attempting to illegally enter or exit the United States.’” Egbert, 596 14 U.S at 494 (quoting 6 U.S.C. § 211(e)(3)(A)). Thus, a Fourth Amendment excessive force 15 claim such as Anaya’s, brought under Bivens based on the conduct of CPB agents at the 16 border is foreclosed by the holding in Egbert. See id. at 486 (stating “in all but the most 17 unusual circumstances, prescribing a cause of action is a job for Congress, not the courts”); 18 see also Sheikh v. U.S. Dep’t of Homeland Sec., 106 F.4th 918, 928 n.9 (9th Cir. 2024) 19 (noting the Court in Egbert cited 8 CFR § 287.10 as an alternative available remedy 20 foreclosing an extension of Bivens). Therefore, Plaintiff’s excessive force claim must be 21 dismissed. See 28 U.S.C. § 1915(e)(2) and § 1915A(b)(1). 22 3. Medical Care 23 Anaya has also failed to state a Bivens claim based on the failure to provide him with 24 medical treatment, which he alleges was in violation of his Fifth Amendment due process 25 rights. ECF No. 5 at 12. Anaya argues that his due process claim is “not different in a 26 meaningful way” from the Eighth Amendment claim at issue in Carlson. ECF No. 5 at 13. 27 While Plaintiff is correct that both he and the plaintiff in Carlson sought redress against 28 federal officials for inadequate medical care, Anaya’s claim arises under the Fifth 1 Amendment while Carlson’s arose under the Eighth Amendment. See Carlson, 446 U.S. at 2 19–20. The implication of a different constitutional right alone renders Plaintiff’s claim 3 meaningfully different from the one in Carlson. See Egbert, 596 U.S. at 498 (“[A] new 4 context arises when there is a new ‘constitutional right at issue[.]’”); Kingsley v. 5 Hendrickson, 576 U.S. 389, 400 (2015) (finding the language of the Due Process Clause 6 protecting detainees and the Cruel and Unusual Punishment Clause protecting prisoners 7 “differs, and the nature of the claims often differs.”). In addition, the plaintiff in Carlson 8 was a convicted prisoner, while Anaya an arrestee/detainee. Thus, Plaintiff’s claim 9 involves both a different constitutional right—the Fifth Amendment, not the Eighth 10 Amendment—and different type of plaintiff, than the claim in Carlson. Accordingly, the 11 Court concludes Plaintiff’s claim arises in a “new context.” See Ziglar, 582 U.S. at 147 12 (“[E]ven a modest extension is still an extension.”). 13 The next question is whether “whether there is any rational reason (even one) to 14 think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages 15 action to proceed.’” Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at 136). “If there is 16 even a single ‘reason to pause before applying Bivens in a new context,’ a court may not 17 recognize a Bivens remedy.” Id. (quoting Hernandez v. Mesa, 589 U.S. 93, 102 (2020)). 18 The Supreme Court has made clear that “regulating the conduct of [federal] agents at the 19 border unquestionably has national security implications, the risk of undermining border 20 security provides reason to hesitate before extending Bivens into this field.” Hernandez, 21 589 U.S. at 108–09. The Court has also found “the Judiciary is comparatively ill suited to 22 decide whether a damages remedy against any Border Patrol agent is appropriate.” Egbert, 23 596 U.S. at 495. Thus, special factors weigh against extending Bivens to Anaya’s claim for 24 damages against Defendants, all CPB officers. 25 In sum, the Court finds Plaintiff’s claim arises in a “new context” and the 26 “unforgiving” special factors inquiry counsels against extending Bivens relief in this case. 27 See id. at 492. Therefore, he has failed to state a claim. 28 / / / 1 4. Asylee Admission Process 2 Finally, Anaya claims Defendants failed to follow policy that “mandates that 3 [asylum] applicants for admission be properly inspected.” ECF No. 5 at 8. Plaintiff couches 4 it as a “discrimination” claim but also references “due process.” Id. The only Fifth 5 Amendment-based Bivens claim the Supreme Court has recognized was the one in Davis, 6 which concerned alleged sex discrimination in the workplace. Davis, 442 U.S. at 230. 7 Although Anaya vaguely characterizes his claim as one of “discrimination,” it is 8 meaningfully different from the issue in Davis and as such, the Court finds it constitutes a 9 “new context.” See Ziglar, 582 U.S. at 147. 10 In addition, the Court finds “special factors” counsel against extending Bivens 11 further to avoid “interfering with the authority of the other branches [of government.]” 12 Hernandez, 589 U.S. at 102. “[I]mmigration enforcement is ‘a context in which Congress 13 has designed its regulatory authority in a guarded way, making it less likely that Congress 14 would want the Judiciary to interfere.’” Tun-Cos v. Perrotte, 922 F.3d 514, 526 (4th Cir. 15 2019) (quoting Abassi, 582 U.S. at 137). As such, the Court finds “Congress is better suited 16 to ‘weigh the costs and benefits of allowing a damages action to proceed’” on such a claim. 17 See Egbert, 596 U.S. at 492; see also, e.g., Elgamal v. Bernacke, 2016 WL 3753524, at *6 18 (D. Ariz. 2016) (“‘[I]mmigration policy and enforcement implicate serious separation of 19 powers concerns,’ heightening the risk that ‘a judicially created Bivens remedy’ will 20 intrude upon the constitutional authority of Congress and the Executive Branch.”). 21 Therefore, to the extent Anaya seeks to raise such a due process claim based on Defendants’ 22 alleged failure to admit him to the United States as an asylee, the Court finds Bivens does 23 not provide a remedy. 24 D. Conclusion 25 For the above reasons, the Court finds Plaintiff has failed to state a claim under 26 Bivens for excessive force, failure to provide medical care after his arrest at the border, and 27 failure to follow immigration policy. The FAC is therefore DISMISSED without further 28 leave to amend. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); see also e.g., Chambers v. | || Herrera, 78 F.4th 1100, 1107 (9th Cir. 2023) (concluding that even plausible allegations 2 ||could not constitute a Bivens claim for excessive force under Egbert and finding it 3 || “absolutely clear” that “amendment would be futile’); Zixiang Li v. Kerry, 710 F.3d 995, 4 ||999 (9th Cir. 2013) (stating dismissal without leave to amend 1s proper if it is “clear it 5 || cannot be cured by amendment.”). 6 TW. MISCELLANEOUS MOTIONS 7 Because the FAC is dismissed without leave to amend, Plaintiff's motion for 8 || appointment of counsel, request for service, and request for a jury trial (ECF Nos. 6-8) are 9 || DENIED as moot. 10 IV. CONCLUSION AND ORDER 11 Accordingly, the Court: 12 1. DENIES Plaintiff's Motion for Appointment of Counsel [ECF No. 7] as 13 |} moot. 14 2. DENIES Plaintiff's Request for Service [ECF No. 6]as moot. 15 3. DENIES Plaintiff's Request for Jury Trial [ECF No. 8] as moot. 16 4. DISMISSES Plaintiff's FAC sua sponte and in its entirety without leave to 17 ||amend based on a failure to state a claim upon which relief may be granted pursuant to 18 }}28 U.S.C. § 1915(e)(2) and § 1915A(b)(1); and DIRECTS the Clerk of Court to enter a 19 || final judgment of dismissal and close the file. 20 IT IS SO ORDERED. 21 ||Dated: December 23, 2025 NO 22 DE | 3 Honorable Linda Lopez 54 United States District Judge 25 26 27 28 8