NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 15 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANNON WILLIAMS, No. 19-15978

Plaintiff-Appellant, D.C. No. 1:16-cv-00764-AWI-SAB v.

ANTHONY VERNA; BROWN, MEMORANDUM*

Defendants-Appellees,

and

PAUL COPENHAVER,

Defendant.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding

Argued and Submitted July 19, 2023 San Francisco, California

Before: SILER,** WARDLAW, and M. SMITH, Circuit Judges.

Shannon Williams appeals the district court’s decision granting summary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. judgment to Defendants-Appellees Anthony Verna and Joshua Brown on the basis

that he lacks a remedy under Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388 (1971). Because the parties are familiar with the facts,

we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

To determine whether a Bivens claim is cognizable, a court first “ask[s]

whether the case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’

different from the three cases in which the Court has implied a damages action.”

Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (quoting Ziglar v. Abbasi, 582 U.S.

120, 139 (2017)). The Court’s “understanding of a ‘new context’ is broad,” and a

claim “may arise in a new context even if it is based on the same constitutional

provision as a claim in a case in which a damages remedy was previously

recognized.” Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020). If a claim arises in a

new context, the court then asks “if there are ‘special factors’ indicating that the

Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and

benefits of allowing a damages action to proceed.’” Egbert, 142 S. Ct. at 1803

(quoting Abbasi, 582 U.S. at 136).

2 Williams’s Fourth and Eighth Amendment claims arise in new contexts.1

Williams argues that his Fourth Amendment strip-search claim arises in the same

context as Bivens, which also involved a Fourth Amendment claim, rank-and-file

officers, and a strip search. However, as the district court correctly determined, the

prison context makes this case meaningfully different. In Bivens, the plaintiff was

searched incident to an allegedly unlawful arrest as part of the booking process. See

403 U.S. at 389. Here, Williams was subjected to a contraband search in a federal

prison, which alters the Fourth Amendment reasonableness calculus. See Bell v.

Wolfish, 441 U.S. 520, 559–60 (1979) (noting that “[a] detention facility is a unique

place fraught with serious security dangers,” and therefore an incarcerated person’s

privacy interests must be balanced against the “significant and legitimate security

interests of the institution”). This distinction is enough to create a new context. See

Abbasi, 582 U.S. at 147 (“[E]ven a modest extension [of Bivens] is still an

extension.”).

With respect to his Eighth Amendment claim, Williams argues that it does not

present a new context because it is akin to the claims in Carlson v. Green, 446 U.S.

14 (1980), and in Farmer v. Brennan, 511 U.S. 825 (1994). Both are factually

1 In his Opening Brief, Williams also challenged the district court’s decision granting summary judgment to defendants on his First Amendment retaliation claim. After that brief was filed, the Supreme Court held that “there is no Bivens action for First Amendment retaliation.” Egbert, 142 S. Ct. at 1807. Accordingly, Williams no longer pursues his retaliation claim.

3 distinct. Carlson involved allegations of prison officials’ failure to provide medical

treatment to an inmate in critical condition. 446 U.S. at 17 n.1. By contrast,

Williams claims that prison officials caused him distress and embarrassment by

forcing him to walk around exposed and by keeping him in a holding cell without

allowing him to use the bathroom, causing him to urinate on himself. Thus Carlson

is distinct. See Abbasi, 582 U.S. at 147–48 (describing claims of mistreatment of

prisoners not related to medical care as a “modest extension” of Carlson). To the

extent that Farmer is a proper comparator case for the “new context” analysis, it is

also distinct. In Farmer, an inmate brought a deliberate indifference claim against

officials when she was assaulted by another inmate. 511 U.S. at 829–31. In contrast,

Williams alleges that he was harmed by Verna and Brown, not by other inmates.

Because Williams’s claims present new contexts, a Bivens remedy may be

implied only if no special factors counsel hesitation. See Egbert, 142 S. Ct. at 1803.

The Supreme Court has clarified that “a court may not fashion a Bivens remedy if

Congress already has provided, or has authorized the Executive to provide, an

alternative remedial structure.” Id. at 1804 (quotation omitted). The BOP’s

administrative grievance procedure “allow[s] an inmate to seek formal review of an

issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a); see

id. § 542.11(a)(3) (directing BOP officials to “[c]onduct an investigation into each

Request or Appeal”). This provides an alternative remedial structure that precludes

4 Bivens relief. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (declining

to extend Bivens to claim against corporation operating BOP halfway house and

noting that “inmates in respondent’s position also have full access to remedial

mechanisms established by the BOP”).

Williams argues that the BOP grievance procedure was not an adequate

alternative remedy because Verna and Brown retaliated against him for attempting

to use it. However, “[s]o 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. That is

true even if a court independently concludes that the Government’s procedures are

not as effective as an individual damages remedy.” Egbert, 142 S. Ct. at 1807

(quotation omitted). Because Williams’s claims arise in new contexts and special

factors apply, his claims are not cognizable under Bivens.

AFFIRMED.

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