1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VILAYCHITH KHOUANMANY, Case No. 2:17-cv-01326-TLN-JDP (PC) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION

TO SUBMIT OPPOSITION TO MOTION

13 v. FOR SUMMARY JUDGMENT 14 ALENCASTRE, et al., ECF No. 198 15 Defendants. FINDINGS AND RECOMMENDATIONS

THAT DEFENDANTS’ MOTION FOR

16 SUMMARY JUDGMENT BE GRANTED 17 OBJECTIONS DUE IN 14 DAYS 18 ECF No. 188 19 20 21 Plaintiff Vilaychith Khouanmany, a federal prisoner without counsel, filed this Bivens1 22 action alleging that defendants Alencastre and Deppe, both United States Marshals, sexually 23 assaulted her during pat-down searches. Defendants have filed a motion for summary judgment 24 arguing that the Supreme Court’s recent decision in Egbert v. Boule, 142 S. Ct. 1793 (2022), 25 forecloses Bivens relief. Plaintiff has filed multiple oppositions, ECF Nos. 194, 197, & 198, and, 26 27 1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 28 1 out of an abundance of caution, I have considered them all.2 2 Legal Standards 3 Summary judgment is appropriate where there is “no genuine dispute as to any material 4 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Washington 5 Mutual Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). An issue of fact is genuine 6 only if there is sufficient evidence for a reasonable factfinder to find for the non-moving party, 7 while a fact is material if it “might affect the outcome of the suit under the governing law.” 8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Wool v. Tandem Computers, Inc., 818 9 F.2d 1422, 1436 (9th Cir. 1987). 10 Each party’s position must be supported by (1) citations to particular portions of materials 11 in the record, including but not limited to portions of depositions, documents, declarations, or 12 discovery; or (2) argument showing that the materials cited do not establish the presence or 13 absence of a genuine factual dispute or that the opposing party cannot produce admissible 14 evidence to support its position. See Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The 15 court may consider material in the record beyond that cited by the parties, but it is not required to 16 do so. See Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 17 1031 (9th Cir. 2001); see also Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 18 2010). Given the liberal standard afforded pro se litigants and the prohibition against granting 19 summary judgment by default, I will take the whole record into consideration in evaluating 20 whether defendants are entitled to summary judgement.3 21 “The moving party initially bears the burden of proving the absence of a genuine issue of

22 2 The filing at ECF No. 198 asks permission to submit an opposition. I have reviewed that 23 filing and will consider it in conjunction with the other two oppositions on file. Plaintiff’s motion to submit an opposition is, therefore, granted. Nothing therein indicates that another, more 24 substantive opposition is incoming, and plaintiff would not be entitled to further oppositions regardless. 25 3 The advisory committee notes to the 2010 amendments to Rule 56(e) state that “summary judgment cannot be granted by default even if there is a complete failure to respond to 26 the motion.” Fed. R. Civ. P. 56(e) (advisory committee notes to 2010 amendments). Instead, 27 courts are permitted to consider a fact undisputed if it is not properly addressed or to grant summary judgment if the motion and supporting materials show that the movant is entitled to it. 28 See id. This discretion is particularly apposite in cases with prisoner litigants proceeding pro se, 1 material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the 2 moving party must either produce evidence negating an essential element of the nonmoving 3 party’s claim or defense or show that the nonmoving party does not have enough evidence of an 4 essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. 5 Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party meets this 6 initial burden, the burden shifts to the non-moving party “to designate specific facts 7 demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 8 376, 387 (citing Celotex Corp., 477 U.S. at 323). While the non-moving party is not required to 9 establish a material issue of fact conclusively in its favor, it must at least produce “evidence from 10 which a jury could reasonably render a verdict in [its] favor.” Id. (citing Anderson, 477 U.S. at 11 252). The evidence must be viewed “in the light most favorable to the nonmoving party” and “all 12 justifiable inferences” must be drawn in favor of the non-moving party. Orr v. Bank of America, 13 NT & SA, 285 F.3d 764, 772 (9th Cir. 2002). 14 Background and Analysis 15 Plaintiff alleges that on February 26, 2016, she was sexually assaulted by defendant 16 Deppe when he touched her inappropriately during a pat-down search at the Sacramento federal 17 courthouse. ECF No. 125 at 3. Then, on March 1, 2016, defendant Alcastre allegedly sexually 18 assaulted her in a similar way during another pat-down. Id. at 4. Alcastre allegedly sexually 19 assaulted plaintiff again, in similar fashion, on March 11, 2016. Id. at 5. Each of these instances 20 is alleged to be a violation of plaintiff’s Fourteenth Amendment rights. Defendants now argue 21 that, in light of the Supreme Court’s decision in Egbert, plaintiff can no longer maintain a Bivens 22 action against them. 23 The Supreme Court in Egbert emphasizes that prescribing a cause of action is the 24 prerogative of Congress, not the judiciary. In that case, a Border Patrol agent allegedly used

25 since an unrepresented prisoner’s choice to proceed without counsel is often “less than voluntary,” and prisoners are subject to the “handicaps . . . [that] detention necessarily imposes 26 upon a litigant,” such as “limited access to legal materials . . . [and] sources of proof.” Jacobsen 27 v. Filler, 790 F.2d 1362, 1364-65, n.4 (9th Cir. 1986); see also Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (holding that courts have an “obligation to give a liberal construction 28 to the filings of pro se litigants”). 1 excessive force against the plaintiff while attempting to ascertain the immigration status of a 2 person riding in his car. 142 S. Ct. 1793, 1801 (2022). Plaintiff sued the officer under Bivens, 3 alleging violations of his First and Fourth Amendment rights. Id. at 1802. 4 The Supreme Court stated that its prior decisions have evaluated proposed Bivens claims 5 by asking two questions: (1) whether the claim is meaningfully different from the cases in which 6 the Supreme Court has implied an action for damages; and, (2) if the claim does arise in a new 7 context, whether there are any “special factors” indicating that the judiciary is less well equipped 8 than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 9 142 S. Ct. at 1803. The Egbert Court noted, however, that “those steps often resolve to a single 10 question: whether there is any reason to think that Congress might be better equipped to create a 11 damages remedy.” Id. 12 The Court observed that it has recognized Bivens remedies only three times. First, in the 13 original Bivens case, which found a viable Fourth Amendment claim against agents who 14 manacled the plaintiff and made threats against his family when they conducted a narcotics arrest. 15 403 U.S. 388, 397 (1971). Second, in a Fifth Amendment gender discrimination claim against a 16 Congressman. Davis v. Passman, 442 U. S. 228 (1979). And third, in an Eighth Amendment 17 case involving a prisoner’s constitutionally inadequate medical care. Carlson v. Green, 446 U. S. 18 14 (1980). The majority then stated: 19 Since these cases, the Court has not implied additional causes of action under the Constitution. Now long past the heady days in 20 which this Court assumed common-law powers to create causes of action, we have come to appreciate more fully the tension between 21 judicially created causes of action and the Constitution’s separation of legislative and judicial power. At bottom, creating a cause of 22 action is a legislative endeavor. 23 Id. (internal citations and quotation marks omitted). 24 Following Egbert, recognizing a Bivens claim in a context outside the three that have been 25 recognized by the Supreme Court is heavily disfavored. As the majority put it, “in almost every 26 case,” Congress is better equipped than the judiciary to provide a damages remedy. 142 S. Ct. at 27 1803. The bar against judicial recognition of a new Bivens remedy is so high that “[i]f there is 28 even a single reason to pause before applying Bivens in a new context, a court may not recognize 1 a Bivens remedy.” Id. (internal citations and quotation marks omitted). 2 Here, plaintiff raises Fourteenth Amendment-based claims of sexual assault during 3 searches of a pre-trial detainee. This claim does not fall in one of the three contexts recognized 4 by the Supreme Court. Applying Egbert, there are at least two reasons to pause before 5 authorizing a Bivens action in this context. First, an alternative remedy exists: the United States 6 Marshals Service holds out an administrative process that investigates allegations of improper 7 conduct by marshals. ECF No. 188-1 at 11. And plaintiff used the process, submitting reports of 8 the misconduct at issue in this case, which was investigated. ECF No. 188-2 at 4-5. This 9 counsels against extending Bivens to plaintiff’s claims. Egbert, 142 S. Ct. at 1806 (“Congress has 10 provided alternative remedies for aggrieved parties in Boule’s position that independently 11 foreclose a Bivens action here. In Hernández, we declined to authorize a Bivens remedy, in part, 12 because the Executive Branch already had investigated alleged misconduct by the defendant 13 Border Patrol agent.”). 14 Second, Congress has enacted the Prison Rape Elimination Act and the Prison Litigation 15 Reform Act—both of which considered the protection of prisoner rights—without providing a 16 private right of action against federal jailers. The Supreme Court has noted that such lacunae 17 should not always be presumed to be “mere oversight[s]” and that such “silence might be more 18 than inadvertent.” Abbasi, 137 S. Ct. at 1849. 19 As the majority in Egbert notes, its decision does not “dispense with Bivens altogether.” 20 Id. at 1803. But, whether or not a Bivens remedy might exist outside the three existing Supreme- 21 Court-authorized contexts, Egbert leaves little doubt that such a remedy is unavailable to plaintiff 22 here. 23 In closing, I note that I have considered all of plaintiff’s oppositional filings and, despite 24 my best efforts, have found no meaningful counter-analysis of these issues. 25 Accordingly, it is ORDERED that plaintiff’s motion to submit opposition, ECF No. 198, 26 is GRANTED. 27 Further, it is RECOMMENDED that: 28 1. Defendants’ motion for summary judgment, ECF No. 188, be GRANTED and summary 1 | judgment be entered in their favor and against plaintiff. 2 2. The Clerk of Court be directed to close the case. 3 I submit these findings and recommendations to the district judge under 28 U.S.C. 4 | § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 5 | Eastern District of California. Within 14 days of the service of the findings and 6 || recommendations, any party may file written objections to the findings and recommendations 7 | with the court and serve a copy on all parties. That document should be captioned “Objections to 8 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 9 | and recommendations under 28 U.S.C. § 636(b)(1)(C). Failure to file objections within the 10 | specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 F.3d 11 | 834, 839 (9th Cir. 2014). 12 3 IT IS SO ORDERED. 14 ( ie — Dated: _ January 4, 2023 q-—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE

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