NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 6 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SMITH-GARCIA, AKA David No. 19-55449 Garland Atwood II, D.C. No. Plaintiff-Appellant, 3:17-cv-01315-MMA-BLM

v.

MEMORANDUM*

PAULA BURKE, U.S. Probation Officer,

Defendant-Appellee,

and

UNITED STATES OF AMERICA; U.S.

PROBATION,

Defendants.

Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding

Submitted August 4, 2020** San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

* 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). David Smith-Garcia, AKA David Garland Atwood II, challenges the district

court’s dismissal of his claims alleging an Eighth Amendment violation by U.S.

Probation Officer Paula Burke related to Smith-Garcia’s supervised release. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo dismissal for failure to state a claim under Fed. R. Civ.

P. 12(b)(6). Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109,

1115 (9th Cir. 2013). A complaint does not require “detailed factual allegations,”

but it “must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal marks and citations omitted).

We decline to extend a Bivens remedy to Smith-Garcia’s claim. See Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In Ziglar v. Abbasi, the Court cautioned lower courts not to expand Bivens

remedies outside the three previously recognized Bivens claims. 137 S. Ct. 1843,

1854-57 (2017) (citing Bivens, 403 U.S. at 396 (unreasonable search and seizure

under the Fourth Amendment); Davis v. Passman, 442 U.S. 228, 248–49 (1979)

(gender discrimination under the Fifth Amendment Due Process Clause); Carlson

v. Green, 446 U.S. 14, 19 (1980) (Eighth Amendment violation for failure to

provide adequate medical treatment)). Smith-Garcia’s claim—that a U.S. Probation

Officer was deliberately indifferent to his medical care when the officer prevented

2 him from moving to San Diego to seek free medical care while under supervised

release—arises in a new Bivens context. See Abbasi, 137 S.Ct. at 1864.

If a proposed claim arises in a new context, courts must conduct a two-step

analysis to determine whether to extend a Bivens remedy. Vega v. United States,

881 F.3d 1146, 1153 (9th Cir. 2018). At step one, the court asks “whether any

alternative, existing process for protecting the interest amounts to a convincing

reason for the Judicial Branch to refrain from providing a new and freestanding

remedy in damages.” Id. Because Smith-Garcia has an alternative process by

which to pursue his claim—filing a motion to transfer his supervised release—we

need not reach step two.

Finally, the district court did not abuse its discretion in dismissing Smith-

Garcia’s motion to recuse. See United States v. McTiernan, 695 F.3d 882, 891 (9th

Cir. 2012). “[A] reasonable person with knowledge of all the facts” would not

conclude that the district court judge’s “impartiality might reasonably be

questioned.” Mayes v. Leipziger,729 F.2d 605, 607 (9th Cir. 1984) (internal

quotation marks and citations omitted); see Yagman v. Republic Ins., 987 F.2d 622,

626 (9th Cir. 1993) (plaintiff’s assertions “are nothing more than speculation.”).

AFFIRMED.

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