1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARCELLAS HOFFMAN, Case No. 1:16-cv-01617-LJO-SAB (PC) 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

GRANT DEFENDANT’S MOTION TO

12 v. DISMISS WITHOUT LEAVE TO AMEND 13 TIMOTHY PRESTON, (ECF No. 47) 14 Defendant. THIRTY (30) DAY DEADLINE 15 16 Plaintiff Marcellas Hoffman is a federal prisoner proceeding pro se and in forma pauperis 17 in this civil action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 18 Narcotics, 403 U.S. 388 (1971). 19 Currently before the Court is Defendant Timothy Preston’s motion to dismiss, filed on 20 July 18, 2019. (ECF No. 47.) 21 I. 22 INTRODUCTION 23 Plaintiff initiated this action on October 27, 2016. (ECF No. 1.) On May 9, 2017, the 24 Court screened Plaintiff’s complaint and found that Plaintiff alleged cognizable claims against 25 Defendant Preston for retaliation in violation of the First Amendment and deliberate indifference 26 in violation of the Eighth Amendment, but failed to state any other cognizable claims against any 27 other defendants. (ECF No. 8.) Plaintiff was ordered to either file a first amended complaint or 28 notify the Court of his willingness to proceed only on the claims found to be cognizable by the 1 Court. (Id. at 8-10.) On May 22, 2017, Plaintiff notified the Court in writing of his willingness to 2 proceed only on the cognizable claims identified by the Court. (ECF No. 9.) Thereafter, on May 3 23, 2017, the Court issued an order finding service of the complaint appropriate for Defendant 4 and dismissing all other claims and defendants from the action for failure to state a cognizable 5 claim for relief. (ECF No. 10.) 6 After receiving leave from the Court, Defendant filed a pre-answer motion for summary 7 judgment for failure to exhaust administrative remedies on October 23, 2017. (ECF Nos. 15, 20.) 8 On November 9, 2017, the Ninth Circuit Court of Appeals ruled that “all plaintiffs and 9 defendants named in the complaint – irrespective of service of process” – must consent “before 10 jurisdiction may vest in a magistrate judge to hear and decide a civil case that a district court 11 would otherwise hear.” Williams v. King, 875 F.3d 500, 501, 504-05 (9th Cir. 2017). On 12 December 1, 2017, in light of the Williams decision, the Court issued findings and 13 recommendations recognizing that the Court did not have jurisdiction to dismiss the non- 14 cognizable claims and all defendants other than Defendant Preston in its May 23, 2017 order and 15 recommending to the District Judge that this case proceed only on the cognizable claims against 16 Defendant Preston and that all other claims and defendants be dismissed. (ECF No. 26.) On 17 January 10, 2018, the District Judge adopted the December 1, 2017 findings and 18 recommendations in full. (ECF No. 27.) 19 On August 8, 2018, the Court issued findings and recommendations recommending that 20 Defendant’s motion for summary judgment for failure to exhaust administrative remedies be 21 granted and that the instant action be dismissed without prejudice. (ECF No. 29.) However, on 22 September 26, 2018, the District Judge issued an order adopting the August 8, 2018 findings and 23 recommendations in part, denying Defendant’s motion for summary judgment for failure to 24 exhaust administrative remedies, and referring the case back for an evidentiary hearing on the 25 disputed issues of fact regarding whether administrative remedies were effectively unavailable 26 when Plaintiff sought to grieve certain allegations raised against Defendant. (ECF No. 33.) 27 On November 5, 2018, the Court granted Defendant’s motion for leave to file a motion to 28 dismiss prior to the Court conducting the exhaustion-related evidentiary hearing. (ECF Nos. 34, 1 36.) On November 8, 2018, Defendant filed a motion to dismiss pursuant to Federal Rule of Civil 2 Procedure 12(b)(6). (ECF No. 37.) On November 26, 2018, Plaintiff filed his opposition to 3 Defendant’s motion to dismiss. (ECF No. 38.) As part of his opposition, Plaintiff requested 4 leave to file the proposed first amended complaint that he had included as Attachment 1 pursuant 5 to Federal Rule of Civil Procedure 15(a) and (c). (ECF No. 38, at 1, 22, 24-32.) 6 On March 15, 2019, the Court issued findings and recommendations recommending that 7 Plaintiff’s request for leave to file a first amended complaint be granted and that Defendant’s 8 motion to dismiss be denied as moot. (ECF No. 40.) The District Court adopted the March 15, 9 2019 findings and recommendations in full on April 9, 2019. (ECF No. 41.) 10 Also, on April 11, 2019, the Court docketed Plaintiff’s first amended complaint. (ECF 11 No. 42.) On April 24, 2019, the Court screened Plaintiff’s first amended complaint and issued 12 findings and recommendations recommending that Plaintiff’s First Amendment retaliation claim 13 be dismissed without leave to amend for failure to state a cognizable claim under Bivens, and that 14 this action proceed on Plaintiff’s claim against Defendant for violation of the Eighth Amendment. 15 (ECF No. 43.) On June 12, 2019, the District Judge adopted the April 24, 2019 findings and 16 recommendations in full. (ECF No. 44.) 17 On June 14, 2019, the Court granted Defendant’s motion for an extension of time to file a 18 responsive pleading and ordered Defendant to file a motion to dismiss, or another responsive 19 pleading, no later than July 19, 2019. (ECF No. 46.) 20 On July 18, 2019, as noted above, Defendant filed a motion to dismiss this action in its 21 entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 47.) Plaintiff filed an 22 opposition to Defendant’s motion to dismiss on July 29, 2019, and Defendant filed a reply on 23 August 5, 2019. (ECF Nos. 48, 50.) Accordingly, Defendant’s motion to dismiss is deemed 24 submitted for decision without oral argument. Local Rule 230(l). 25 II. 26 LEGAL STANDARD 27 A motion to dismiss brought pursuant to Rule 12(b)(6) tests the legal sufficiency of a 28 claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of 1 sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 2 1240, 1241-42 (9th Cir. 2011) (quotation marks and citations omitted). In resolving a Rule 3 12(b)(6) motion, a court’s review is generally limited to the operative pleading. Daniels-Hall v. 4 National Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 5 (9th Cir. 2007); Schneider v. California Dept. of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). 6 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks 9 omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 10 (9th Cir. 2009). The Court must accept the factual allegations as true and draw all reasonable 11 inferences in favor of the non-moving party, Daniels-Hall, 629 F.3d at 998; Sanders, 504 F.3d at 12 910; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000), and in this Circuit, pro 13 se litigants are entitled to have their pleadings liberally construed and to have any doubt resolved 14 in their favor, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. Carter, 668 15 F.3d 1108, 1112 (9th Cir. 2012); Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011); Hebbe 16 v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 17 III. 18 DISCUSSION 19 A. Summary of the Plaintiff’s First Amended Complaint 20 Plaintiff is a federal prisoner currently housed at U.S. Penitentiary Lee in Pennington Gap, 21 Virginia. The incident alleged in the first amended complaint occurred while Plaintiff was 22 housed at U.S. Penitentiary Atwater in Atwater, California. 23 Plaintiff names Preston as the sole defendant. 24 Plaintiff states he was given prior approval by the warden, the food administrator, and 25 food service assistant, to prepare and write a food service proposal to help prevent waste in the 26 food service department, and received a $100.00 bonus for writing the proposal. On February 26, 27 2016, Defendant Preston, while speaking with Officer DeCarie, stated, in front of other inmates, 28 that “inmates are snitching in the staff dining hall and writing officers names down who are not 1 paying for meals.” Plaintiff responded to Defendant Preston by stating: “I am not snitching on no 2 one, if you are talking about me.” Defendant Preston responded: “Fuck you Hoffman, you ain’t 3 nobody in here. I heard about you, you are snitching.” Plaintiff responded: “fuck you, you ain’t 4 nobody, and I am somebody to myself.” (ECF 42, at 2.) 5 Defendant then escorted Plaintiff to the holding tank, pushed him in, and locked the door. 6 (Id.) Defendant came to the holding tank window and stated to Plaintiff: “yeah you threatened 7 me.” (Id.) Plaintiff responded: “I did not threatened (sic) you.” (Id.) An “LT” walked by the 8 holding tank and stated to Defendant: “Why you have inmate Hoffman in the holding tank, that is 9 our Cook.” (Id. at 3.) Defendant looked at Plaintiff then back at the LT and stated: “He 10 threatened me.” (Id.) Plaintiff was then escorted to the Special Housing Unit and placed in a cell. 11 As a result of Defendant Preston labelling Plaintiff as a snitch in front of other inmates 12 and staff, Plaintiff was assaulted by another inmate and had a fight. Specifically, Plaintiff was 13 punched in the face, kicked in the stomach, and his head hit his locker when he was assaulted in 14 his cell by inmate Emmanuel Ward. Additionally, Plaintiff asserts that Defendant Preston offered 15 to pay inmates Marcus Winstead, Hassan Hill, Edgar Jones, Shanon Williams, among other 16 unnamed inmates, to harm Plaintiff and have him removed from the kitchen for reporting that 17 staff were not paying for meals. 18 Prior to being placed in the special housing unit on February 26, 2016, Defendant had 19 been trying to have Plaintiff removed from the kitchen. After Plaintiff was released from the 20 Special Housing Unit, Defendant Preston offered to pay other inmates to harm Plaintiff and have 21 Plaintiff removed from the kitchen. Defendant Preston also stated in front of other staff members 22 that he wanted Plaintiff removed from the kitchen. On May 16, 2016, Defendant stated to Cook 23 Supervisor Islam: “I’m not letting none of your guys out until they get Hoff out the kitchen.” (Id. 24 at 4.) Cook Supervisory Islam informed Plaintiff about what Defendant Preston had stated to 25 him. On the same day, Defendant told inmate Tracy Adams: “Hoffman is a snitch tell him to find 26 another job, and everything will go back to normal for you’ll meaning allowing inmates to 27 remove food items from the kitchen without permission) I want him out of here.” (Id.) 28 Plaintiff states that, even though he has been transferred from U.S Penitentiary Atwater, 1 he still has to defend against being falsely labelled a snitch by Defendant Preston. Plaintiff states 2 that he has received some threats from both inmates and staff, and if “they” find out that Plaintiff 3 was snitching on staff, Plaintiff will be assaulted. (Id.) 4 By way of relief, Plaintiff requests a declaration that Defendant Preston has violated 5 Plaintiff’s rights under the U.S. Constitution, an order that Defendant pay compensatory and 6 punitive damages in the amount of $100,000.00, an order for reasonable attorney fees and costs, 7 and other relief as the Court deems necessary. 8 B. The Viability of Plaintiff’s Eighth Amendment Bivens Claim After Ziglar v. 9 Abbasi 10 Bivens established that the victims of a constitutional violation by a federal agent ‘have a 11 right to recover damages against the official in federal court despite the absence of any statute 12 conferring such a right.” Carlson v. Green, 446 U.S. 14, 18 (1980). The Supreme Court has 13 implied a damages remedy under the U.S. Constitution in only three contexts: (1) Fourth 14 Amendment unreasonable search and seizure in Bivens, 403 U.S. at 396-97; (2) Fifth Amendment 15 gender discrimination in Davis v. Passman, 442 U.S. 228, 248-49 (1979); and (3) Eighth 16 Amendment deliberate indifference to serious medical needs in Carlson, 446 U.S. at 19. “These 17 three cases – Bivens, Davis, and Carlson – represent the only instances in which the Court has 18 approved of an implied damages remedy under the Constitution itself.” Ziglar v. Abassi, 137 S. 19 Ct. 1843, 1855 (2017). 20 Recently, in Ziglar, the U.S. Supreme Court made it “clear that expanding the Bivens 21 remedy is now a ‘disfavored’ judicial activity,” which is “in accord with the Court’s observation 22 that it has ‘consistently refused to extend Bivens to any new context or new category of 23 defendants.’” Ziglar, 137 S. Ct. at 1857 (internal citations omitted). In Ziglar, the Supreme Court 24 set forth a two-part test for courts to use in order to determine whether a Bivens claim may 25 proceed. Ziglar, 137 S. Ct. at 1859-60. First, the court must determine whether the case presents 26 a new Bivens context. “If [a] case is different in a meaningful way from previous Bivens cases 27 decided by [the Supreme Court], the context is new.” Id. at 1859. The Ziglar Court provided 28 several non-exhaustive examples of differences meaningful enough to make a given context a 1 new one: “the rank of the officers involved; the constitutional right at issue; the generality or 2 specificity of the official action; the extent of judicial guidance as to how an officer should 3 respond to the problem or emergency to be confronted; the statutory or other legal mandate under 4 which the officer was operating; the risk of disruptive intrusion by the Judiciary into the 5 functioning of other branches; or the presence of potential special factors that previous Bivens 6 cases did not consider.” Id. at 1859-60. 7 Second, if a case presents a new context for a Bivens action, the court must then 8 determine whether there are any “special factors counselling hesitation in the absence of 9 affirmative action by Congress.” Id. at 1857 (citation omitted). The “special factors” inquiry 10 “must concentrate on whether the Judiciary is well suited, absent congressional action or 11 instruction, to consider and weigh the costs and benefits of allowing a damages action to 12 proceed.’” Id. at 1857-58. “[Ziglar’s] special factors include: the rank of the officer involved; 13 whether Bivens is being used as a vehicle to alter an entity’s policy; the burden on the 14 government if such claims are recognized; whether litigation will reveal sensitive information; 15 whether Congress has indicated that it does not wish to provide a remedy; whether there are 16 alternate avenues of relief available; and whether there is adequate deterrence absent a damages 17 remedy, among other factors.” Lanuza v. Love, 899 F.3d 1019, 1028 (9th Cir. 2017). Ziglar 18 specifically noted that, “if there is an affirmative remedial structure present in a certain case, that 19 alone may limit the power of the Judiciary to infer a new Bivens cause of action.” Ziglar, 137 S. 20 Ct. at 1858. “In sum, if there are sound reasons to think Congress might doubt the efficacy or 21 necessity of a damages remedy as part of the system for enforcing the law and correcting a 22 wrong, the courts must refrain from creating the remedy in order to respect the role of Congress 23 in determining the nature and extent of federal-court jurisdiction under Article III.” Id. 24 1. Plaintiff’s Eighth Amendment Claim Presents a New Bivens Context 25 In his motion to dismiss, Defendant Preston argues that it is clear that Plaintiff’s Eighth 26 Amendment claim arises in a new context not previously recognized in one of the Supreme 27 Court’s three Bivens cases. (ECF No. 47-1, at 5-6.) In his opposition, Plaintiff appears to be 28 contending that his Eighth Amendment claim does not present a new Bivens context because the 1 Supreme Court approved an Eighth Amendment Bivens claim for failure to protect inmates from 2 a substantial risk of serious harm to their health and/or safety in Farmer v. Brennan, 511 U.S. 825 3 (1994). (ECF No. 48, at 4.) 4 Plaintiff asserts that, since Defendant Preston offered to pay inmates to harm Plaintiff and 5 labeled Plaintiff a snitch in front of other inmates, Defendant Preston was deliberately indifferent 6 to a substantial risk of serious harm to Plaintiff’s health and safety in violation of Plaintiff’s 7 Eighth Amendment rights. Initially, Plaintiff’s apparent argument that the Supreme Court 8 implied a Bivens damages remedy for an Eighth Amendment failure to protect claim in Farmer is 9 unavailing because the Supreme Court in Ziglar clearly stated that “Bivens, Davis, and Carlson 10 … represent the only instances in which the Court has approved of an implied damages remedy 11 under the Constitution itself.” Ziglar, 137 S. Ct. at 1855 (italics added). Therefore, the Supreme 12 Court has approved of only one Bivens damages remedy under the Eighth Amendment – 13 specifically for failure to provide medical care. Carlson, 446 U.S. at 16 n.1, 18-23. In this case, 14 Plaintiff’s Eighth Amendment claim differs meaningfully from the Eighth Amendment claim in 15 Carlson because Plaintiff’s claim arises out of allegations that a correctional officer offered to pay 16 inmates to harm Plaintiff and labeled Plaintiff a snitch in front of other inmates, not failure to 17 provide medical care. Therefore, Plaintiff’s Eighth Amendment failure to protect claim 18 accordingly arises in a new Bivens context. Hence, the Court must evaluate whether special 19 factors counsel against extending the Bivens damages remedy to Plaintiff’s Eighth Amendment 20 failure to protect claim. 21 2. Special Factors Counsel Against Extending the Bivens Remedy to Plaintiff’s 22 Eighth Amendment Claim 23 Here, Defendant Preston contends that special factors counsel against extending the 24 Bivens damages remedy to Plaintiff’s Eighth Amendment claim. First, Defendant argues that 25 Congress has taken legislative action that suggests that it does not want to extend the Bivens 26 damages remedy. Second, Defendant contends that Plaintiff’s Eighth Amendment claim cannot 27 be litigated without judicial interference in a prison disciplinary matter. Third, Defendant argues 28 that Plaintiff has several available alternative remedies. Finally, Defendant contends that Bivens 1 should not be extended here because extension of the remedy will have a significant impact on 2 government operations and separation of powers concerns counsel against such extension. (ECF 3 No. 47-1, at 6-10.) 4 Applying the principles set forth in Ziglar to this case reveals that there are several 5 “special factors” that counsel against extending the Bivens damages remedy to Plaintiff’s Eighth 6 Amendment failure to protect claim. 7 a. Alternate Remedies Are Available 8 Initially, it is clear that Plaintiff had, or has, alternative remedies available to him. First, 9 the Federal Bureau of Prisons administrative grievance process, which Plaintiff utilized, affords 10 prisoners a process for challenging the conditions of their confinement. See Gonzalez v. Hasty, 11 269 F. Supp. 3d 45, 60 (E.D.N.Y. 2017) (holding, post-Ziglar, that the administrative complaints 12 that plaintiff-inmate filed with the BOP, though unsuccessful, were one of two “alternative 13 remedies available” to Plaintiff “to challenge his conditions of confinement,” and, while non- 14 judicial and administrative in nature, they constituted, along with the availability of habeas relief, 15 “special factors counseling against the creation of a new claim here”). Second, a prisoner who 16 believes his constitutional rights are being violated may initiate an action for declaratory and 17 injunctive relief. See 18 U.S.C. § 3626 (providing remedies in any civil action with respect to 18 prison conditions). Third, prisoners can bring a civil action for damages against the U.S. 19 Government pursuant to the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b)(1), 2679(b). The 20 fact that some of these alternative remedies may not afford monetary damages, or have different 21 procedures, such as lack of a right to a jury trial, does not change the analysis. See Ziglar, 137 S. 22 Ct. at 1865 (alternative remedies may include a “writ of habeas corpus . . . an injunction requiring 23 the warden to bring his prison into compliance . . . or some other form of equitable relief”); W. 24 Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009) (noting that while the 25 APA does not provide for monetary damages or right to a jury trial, such remedial schemes may 26 be adequate if the absence of such features was not inadvertent on part of Congress); Libas Ltd. v. 27 Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003) (noting Bivens claims are precluded where Congress 28 provided an alternative mechanism for relief that it considers adequate to remedy constitutional 1 violations, and the failure to provide monetary damages or other relief was not inadvertent). 2 “[W]hen alternative methods of relief are available, a Bivens remedy usually is not.” Ziglar, 137 3 S. Ct. at 1863. Therefore, since Plaintiff has or had alternative remedies available to him, this 4 special factor counsels against extending a Bivens damages remedy to Plaintiff’s Eighth 5 Amendment failure to protect claim. While this factor can be determinative, the Court will now 6 address the impact of other special factors relevant to this case. See Ziglar, 137 S. Ct. at 1865 7 (“[T]he existence of alternative remedies usually precludes a court from authorizing a Bivens 8 action.”). 9 b. Legislative action suggests that Congress does not want such a remedy 10 Next, in Ziglar, the Supreme Court found that “legislative action suggesting that Congress 11 does not want a damages remedy is itself a factor counseling hesitation,” and specifically noted 12 that:

13 Some 15 years after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995, which made comprehensive changes to the way prisoner 14 abuse claims must be brought in federal court. See 42 U.S.C. § 1997e. So it seems clear that Congress had specific occasion to consider the matter of prisoner 15 abuse and to consider the proper way to remedy those wrongs. This Court has said in dicta that the Act’s exhaustion provisions would apply to Bivens suits. See 16 Porter v. Nussle, 534 U.S. 516, 524, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). But the Act itself does not provide for a standalone damages remedy against federal 17 jailers. It could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment. 18 19 Ziglar, 137 S. Ct. at 1865. The Supreme Court also noted that, because Congress’s failure to 20 provide a damages remedy “might be more than mere oversight,” congressional silence on the 21 availability of such a remedy may be “relevant” or “telling.” Id. at 1849, 1862. Thus, the 22 language and reforms imposed by the PLRA indicate that Congress would not approve an implied 23 damages remedy for the claim presented here. Furthermore, given that Bivens is a judicially 24 implied version of section 1983, it would violate separation of power principles if the implied 25 remedy reached further than an express one. See Ziglar, 137 S. Ct. at 1857 (separation of powers 26 principles counsels that Congress will usually be the proper body to decide whether damages 27 should exist for a constitutional violation). Therefore, the special factors of Congressional action 28 and separation of powers concerns counsel against extending the Bivens remedy to Plaintiff’s 1 Eighth Amendment claim. 2 c. The impact on governmental operations 3 Finally, “the decision to recognize a damages remedy requires an assessment of its impact 4 on governmental operations systemwide . . . includ[ing] the burdens on Government employees 5 who are sued personally, as well as the projected costs and consequences to the Government itself 6 when the tort and monetary liability mechanisms of the legal system are used to bring about the 7 proper formulation and implementation of public policies.” Ziglar, 137 S. Ct. at 1858. The 8 Supreme Court has repeatedly acknowledged the significant impact of Bivens remedies on 9 government operations. See Bush v. Lucas, 462 U.S. 367, 389 (1983) (“In all events, Congress is 10 in a far better position than a court to evaluate the impact of a new species of litigation between 11 federal employees on the efficiency of the civil service.”); Anderson v. Creighton, 483 U.S. 635, 12 638 (1987) (“[P]ermitting damages suits against government officials can entail substantial social 13 costs, including the risk that fear of personal monetary liability and harassing litigation will 14 unduly inhibit officials in the discharge of their duties.”); Schweiker v. Chilicky, 487 U.S. 412, 15 425 (1988) (“The prospect of personal liability for official acts . . . would undoubtedly lead to 16 new difficulties and expense in recruiting administrators for the programs Congress has 17 established.”). 18 In this instance, Plaintiff is not bringing suit to change prison policy but is suing an 19 individual defendant who is alleged to have failed to protect him and is in fact alleged to have 20 instigated attacks on Plaintiff. Applying a Bivens remedy in this instance would not cause 21 unwarranted judicial interference with prison administration. However, the other factors discussed 22 above counsel hesitation in extending a Bivens remedy to the claims alleged in this action. Further, 23 there is no binding authority which has extended a Bivens remedy to a failure to protect claim and 24 the Supreme Court “has made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial 25 activity.” Ziglar, 137 S. Ct. at 1857 (quoting Iqbal, 556 U.S. at 675). 26 For the foregoing reasons, the Court finds that special factors counsel hesitation in this 27 context, and, thus, the Court should decline to recognize an implied Bivens Eighth Amendment 28 failure to protect cause of action. 1 IV. 2 CONCLUSION AND RECOMMENDATIONS 3 Based on the foregoing, the Court should decline to recognize an implied Bivens Eighth 4 | Amendment failure to protect cause of action. Therefore, Plaintiff fails to state a claim upon 5 | which relief may be granted under Bivens and, consequently, Defendant’s motion to dismiss 6 | pursuant to Federal Rule of Civil Procedure 12(b)(6) should be granted. Since the deficiencies in 7 | Plaintiff's first amended complaint cannot be cured by amendment, leave to amend is not 8 | warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 9 Accordingly, it is HEREBY RECOMMENDED that: 10 1. Defendant Preston’s motion to dismiss, (ECF No. 47), be GRANTED WITHOUT 11 LEAVE TO AMEND; and 12 2. This action be dismissed, with prejudice, for failure to state a claim upon which 13 relief may be granted under Bivens. 14 These Findings and Recommendations will be submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 16 | days after being served with these Findings and Recommendations, the parties may file written 17 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 | Findings and Recommendation.” The parties are advised that failure to file objections within the 19 || specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 20 | onappeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 21 | F.2d 1391, 1394 (9th Cir. 1991)). 22 73 IT IS SO ORDERED. F- 2 ee 24 | Dated: _ October 11, 2019

35 UNITED STATES MAGISTRATE JUDGE

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