78 F.4th 1100
9th Cir.2023Background
- Roscoe Chambers, a federal prisoner, alleges repeated harassment and assaults by prison officers: Lieutenant Carmen Herrera threatened and assaulted him (claiming a broken arm and wrist) and Officer Enrique Velez sprayed him with mace.
- Chambers alleges physician’s assistant Jose Esquetini refused to take x-rays or treat his broken bones for six weeks, allegedly to cover up Herrera’s assaults.
- Chambers claims retaliation (First Amendment) — including denial of law library access — and that prison staff filed false incident reports and placed him in the Special Housing Unit after he sought to grieve the incidents via the BOP grievance process (BOP-10).
- He sued under Bivens for First Amendment retaliation and Eighth Amendment failure to protect, excessive force, and deliberate medical indifference.
- The district court dismissed the complaint (some claims with leave to amend); Chambers declined to amend and appealed.
- The Ninth Circuit affirmed dismissal of the First Amendment and failure-to-protect claims, affirmed dismissal of the excessive-force claim with prejudice, and remanded the medical-indifference claim to allow the district court to consider pro se leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bivens extends to First Amendment retaliation by federal officers | Chambers: retaliation for grievances/law-library denial violates the First Amendment and supports a Bivens damages action | Defendants: Egbert forecloses extending Bivens to First Amendment retaliation; alternative defenses available | Affirmed dismissal — Egbert bars Bivens remedy for First Amendment retaliation |
| Whether Bivens extends to Eighth Amendment failure-to-protect by BOP staff | Chambers: failure to protect from Herrera is analogous to existing Eighth Amendment Bivens precedents (Carlson/Farmer) | Defendants: claim presents a new context; PLRA/grievance scheme and separation-of-powers concerns make Congress better suited to provide any damages remedy | Dismissed — new context and Congress/executive remedy considerations preclude Bivens extension |
| Whether Bivens provides a damages remedy for alleged Eighth Amendment excessive force by officers | Chambers: alleged assaults by Herrera and Velez caused serious injury and support an excessive-force Bivens claim | Defendants: allegations are too thin; extension of Bivens would disrupt prison administration and alternative remedial schemes exist | Dismissed with prejudice — allegations insufficient and Bivens extension inappropriate under Egbert |
| Whether Bivens provides relief for Eighth Amendment deliberate medical indifference by a PA (failure to x-ray/treat) | Chambers: Esquetini’s six-week refusal to x-ray/treat broken bones shows deliberate indifference, analogous to Carlson | Defendants: complaint lacks factual detail; even if plausibly pleaded, Egbert factors may preclude Bivens remedy | Remanded — district court to decide whether pro se plaintiff may amend; claim not resolved and must be evaluated under Egbert |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages remedy against federal officers under the Fourth Amendment)
- Davis v. Passman, 442 U.S. 228 (1979) (extended implied remedy to certain Fifth Amendment claims)
- Carlson v. Green, 446 U.S. 14 (1980) (recognized an Eighth Amendment damages action for inadequate medical care in prison)
- Farmer v. Brennan, 511 U.S. 825 (1994) (Eighth Amendment failure-to-protect framework for prison officials)
- Ziglar v. Abbasi, 582 U.S. 120 (2017) (established two-part framework for evaluating Bivens extensions and cautioned against judicial expansion)
- Hernandez v. Mesa, 140 S. Ct. 735 (2020) (applied Ziglar framework; limited Bivens extensions)
- Egbert v. Boule, 142 S. Ct. 1793 (2022) (reinforced that most Bivens extensions present new contexts and that courts should defer to Congress when special factors counsel hesitation)
- Harper v. Nedd, 71 F.4th 1181 (9th Cir. 2023) (Ninth Circuit: post-Egbert, future Bivens extensions are presumptively unavailable)