Silva v. United States

Appellate Case: 21-1008 Document: 010110718290 Date Filed: 08/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
ANDERSON COUTINHO SILVA,

Plaintiff - Appellant,

v. No. 21-1008
(D.C. No. 1:19-CV-02563-CMA-MEH)
UNITED STATES OF AMERICA; (D. Colo.)
BRANDON SHAW,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT *
_________________________________

Before HARTZ, SEYMOUR, and BALDOCK, Circuit Judges.
_________________________________

Today, we are called upon to expand the judicially implied cause of action described

in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971). Such action, however, was considered “a ‘disfavored’ judicial activity,” Ziglar v.

Abbasi, 137 S. Ct. 1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)),

before the Supreme Court’s recent decision in Egbert v. Boule, 142 S. Ct. 1793 (2022).

That decision saw the Supreme Court consider, amongst other things, a claim that closely

resembled the facts of Bivens itself. See id. at 1800–02, 1804–07. It nevertheless rejected

the Ninth Circuit’s decision to allow that claim to proceed out of hand. Id. at 1804–07.

*
This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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The Supreme Court’s message could not be clearer—lower courts expand Bivens claims at

their own peril. We heed the Supreme Court’s warning and decline Plaintiff’s invitation

to curry the Supreme Court’s disfavor by expanding Bivens to cover his claim.

Accordingly, we exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s

disposition of this case.

I.
Plaintiff Anderson Silva is a prisoner at the United States Penitentiary in Florence,

Colorado (ADX Florence). The allegations of his complaint are as follows. In 2018,

Defendant Brandon Shaw, a corrections officer at ADX Florence, entered Plaintiff’s cell

while he was restrained. According to Plaintiff, the prison’s protocols do not allow

corrections officers to fully enter an inmate’s cell—an act that takes an officer outside the

view of security cameras. Once inside the cell, Defendant assaulted Plaintiff by slamming

him on the floor, jumping on his back, and “applying painful pressure with his knee.” Br.

of Appellant 3. Defendant called for assistance and other officers arrived. Plaintiff

maintains that the other officers falsely accused him of assaulting Defendant. In any event,

Plaintiff claims he suffered injuries to his back, right leg, and left hand.

Proceeding pro se, Plaintiff filed suit against the United States and Defendant. 1

Plaintiff’s complaint alleged violations of the Eighth Amendment under a Bivens cause of

action and sought monetary damages and injunctive relief. Defendant and the Government

1
The only claim before us on appeal is Plaintiff’s claim against Defendant for excessive
use of force in violation of the Eighth Amendment.

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filed a motion to dismiss Plaintiff’s complaint and Defendant separately filed a motion for

partial summary judgment. After reviewing both motions, a magistrate judge

recommended the district court dismiss Plaintiff’s complaint with prejudice for failure to

state a claim and deny Defendant’s separate motion for partial summary judgment as moot.

Silva v. United States (Silva I), No. 19-cv-2563-CMA-MEH, 2020 WL 8408472 (D. Colo.

Sept. 10, 2020). Plaintiff objected to the magistrate judge’s recommendation. 2 The district

court, however, agreed with the magistrate judge and dismissed Plaintiff’s complaint with

prejudice. Silva v. United States (Silva II), No. 19-cv-2563-CMA-MEH, 2020 WL

7706785 (D. Colo. Dec. 29, 2020). Now represented by counsel, Plaintiff appeals and asks

us to reverse the district court’s decision. Plaintiff offers two arguments in support of his

claim that the district court erred. First, Plaintiff asserts that his claim is not a Bivens

expansion at all—that is, because his claim arises under the Eighth Amendment, he

2
Defendant argues Plaintiff’s claim is barred by the firm waiver rule. Br. of Appellee 10–
14. We have “adopted the firm waiver rule, which bars appellate review of both factual
and legal questions if a party fails to timely object to the magistrate judge’s findings or
recommendations.” Laubach v. Scibana, 301 F. App’x 832, 835 (10th Cir. 2008)
(unpublished) (citing Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). The
firm waiver rule applies to pro se suits brought by prisoners. See, e.g., Duffield v. Jackson,
545 F.3d 1234 (10th Cir. 2008); Laubach, 301 F. App’x 832; Nasious v. Robinson, 396 F.
App’x 526 (10th Cir. 2010) (unpublished). In addition to filing timely objections, a party
must also provide “specific written objections” to the magistrate judge’s recommendations.
Fed. R. Civ. P. 72(b)(2); Laubach, 301 F. App’x at 835. Plaintiff failed to meet these
requirements because he only offered a single sentence about Bivens and cited authority
addressing claims under 42 U.S.C. § 1983. The district judge nevertheless found Plaintiff’s
objections sufficient. Silva II, 2020 WL 7706785, at *4. Although the district judge’s
decision to consider the merits of Plaintiff’s claim does not bind us, Laubach, 301 F. App’x
at 835, we exercise our own discretion to address the merits of the issue. See Morales-
Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).

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believes it falls squarely within the confines of Carlson v. Green, 446 U.S. 14 (1980).

Second, Plaintiff argues that even if his claim requires expanding Bivens, such an

expansion is justified in his case. Both arguments rely on the two-step analytical

framework detailed in Ziglar v. Abbasi. The Supreme Court had yet to decide Egbert v.

Boule at the time the case was briefed and argued. Nevertheless, we resolve this case by

applying Egbert. With that said, we note that regardless of Plaintiff’s protestations to the

contrary, his claim clearly constitutes an expansion of Bivens because “[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). The distinction between an excessive force claim like the one Plaintiff

brings and a deliberate indifference to medical needs claim—which the Supreme Court

recognized as a valid Bivens action in Carlson—is sufficient to conclude that Plaintiff’s

claim would require an expansion of Bivens to move forward even though it originates

under the Eighth Amendment. See id.

II.
This case is before us after the district court dismissed Plaintiff’s complaint for

failure to state a claim with prejudice under Federal Rule of Civil Procedure 12(b)(6). “The

legal sufficiency of a complaint under Rule 12(b)(6) is a question of law which this Court

reviews de novo.” Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006) (citing Sutton v.

Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)). “To survive

a Rule 12(b)(6) motion, Plaintiff’s complaint must allege sufficient facts to state a claim

for relief plausible on its face.” Strain v. Regalado, 977 F.3d 984, 989 (10th Cir. 2020)

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(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). For the purposes of such a motion,

“we must accept all the well-pleaded allegations of the complaint as true and must construe

them in the light most favorable to the plaintiff.” Albers v. Bd. of Cnty. Comm’rs, 771 F.3d

697, 700 (10th Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir.

2013)).

We consider this case in the aftermath of the Supreme Court’s recent decision in

Egbert v. Boule, which purports to alter the Bivens analysis. Though the decision was only

handed down recently, courts within our Circuit have already had to grapple with it and

have noted our lack of guidance on how to do so appropriately. See Bivens v. Blaike, No.

21-cv-783-PAB-NYW, 2022 WL 2158984, at *3–4 (D. Colo. June 15, 2022). To place

Egbert in some context, we begin with a brief history of the Bivens claim and its treatment

by the Supreme Court.

The story of Bivens is a saga played out in three acts: creation, expansion, and

restriction. In 1971, the Supreme Court entered the first act by blurring the lines between

an Article III decision and “judicial legislation.” Bivens, 403 U.S. at 430 (Blackmun, J.,

dissenting). The landmark Bivens decision created a claim for damages that allowed the

plaintiff to seek recovery from federal agents who had allegedly violated his Fourth

Amendment rights by entering his home, placing him in manacles, and threatening his

family. Id. at 389 (majority opinion). Reasoning that state law remedies were inadequate

to rectify constitutional injuries and that “no special factors counsel[ed] hesitation in the

absence of affirmative action by Congress,” id. at 395–96, the Court fashioned an implied

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claim for damages for Bivens despite the clear absence of textual support in the Fourth

Amendment or authorization from Congress. Id. at 397.

Later that decade, the Supreme Court entered the second act of its Bivens

jurisprudence. Beginning with Davis v. Passman, 442 U.S. 228 (1979), the Court initiated

a period of Bivens expansion. In Davis, the Court held that Bivens extended to a claim by

a former congressional aide against her former employer for discrimination in violation of

the Fifth Amendment’s Due Process Clause. See id. at 242–49. Shortly thereafter, the

Supreme Court expanded Bivens one final time. On this occasion, in Carlson v. Green, the

Court held that Bivens allowed a prisoner to bring suit against a prison official who was

deliberately indifferent to his medical needs in violation of the Eighth Amendment’s Cruel

and Unusual Punishments Clause. See 446 U.S. 14. Thus, by the early 1980s, the Supreme

Court had fashioned a claim for damages in three constitutional contexts: the Fourth

Amendment’s Search and Seizure Clause, the Fifth Amendment’s Due Process Clause, and

the Eighth Amendment’s Cruel and Unusual Punishments Clause. Schweiker v. Chilicky,

487 U.S. 412, 420–21 (1988).

That expansion proved to be short-lived. Beginning in 1983, the Court started to

approach requests to expand Bivens with greater hesitation. See Bush v. Lucas, 462 U.S.

367, 374–80 (1983); Chappell v. Wallace, 462 U.S. 296, 298–305 (1983); United States v.

Stanley, 483 U.S. 669 (1987). It did so by placing greater emphasis on the “special factors

counselling hesitation” and relying on them to reject proposed extensions. See id. Over

time, the Court approached Bivens with increasing disfavor. The Court ultimately

recognized that Bivens, Davis, and Carlson were the mistakes of an “ancien regime” that

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was too willing to create implied causes of action. Abbasi, 137 S. Ct. at 1855 (quoting

Alexander v. Sandoval, 532 U.S. 275, 287 (2001)). 3 In the years since it first expressed

caution at the prospect of expanding Bivens, the Court has performed its own version of

Bonaparte’s retreat from Moscow and progressively chipped away at the decision—to the

point that very little of its original force remains. See Egbert, 142 S. Ct. at 1799–800

(collecting cases).

As for the Bivens analysis itself, it too has evolved over the years as the Court’s

attitude towards the cause of action has changed. In the early years of Bivens, the Court

essentially presumed new Bivens actions were valid “unless the action [wa]s ‘defeated’ in

one of two specified ways”—an express declaration from Congress creating a substitute

remedy or the existence of “special factors” that counselled “hesitation.” Carlson, 446

U.S. at 26–27 (Powell, J., concurring in the judgment). At that time, however, the “special

factors” analysis was minimal and lacking in meaningful guidance. See id. at 27. The

Court later flipped this presumption and held that “a court must take into account any

‘special factors counselling hesitation’” before it created a Bivens claim. Chappell, 462

U.S. at 298 (quoting Bush, 462 U.S. at 378); see Stanley, 483 U.S. at 678–79. The Court

hewed to that principle in ensuing cases but left the term “special factors” undefined until

it decided Abbasi in 2017. See 137 S. Ct. at 1857–58. While the Court did not provide an

3
Justice Kennedy noted that the Court’s attitude towards implying causes of action
generally started to change in the mid-1970s. See Abbasi, 137 S. Ct. at 1855. That,
however, did not prevent the Court from expanding Bivens on two occasions after that
alleged change in attitude. See Davis, 442 U.S. 228; Carlson, 446 U.S. 14.

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exhaustive list of factors, it emphasized the key point of the analysis: “if there are sound

reasons to think Congress might doubt the efficacy or necessity of a damages remedy as

part of the system for enforcing the law and correcting a wrong, the courts must refrain

from creating the remedy.” Id. at 1858. Thus, as of Abbasi, courts analyzed Bivens claims

in a two-step process: first, a court had to ask whether “the case is different in a meaningful

way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. Second, if

the case is different—in other words if the “context is new”—then a court must analyze

whether the “special factors counselling hesitation” apply such that it should not expand

Bivens. Id. at 1857, 1859–60. The Court reaffirmed this framework as recently as 2020.

Hernandez, 140 S. Ct. at 743.

This leads us to the Supreme Court’s decision in Egbert, where the Supreme Court

appeared to alter the existing two-step Bivens framework by stating that “those steps often

resolve to a single question: whether there is any reason to think that Congress might be

better equipped to create a damages remedy.” 4 142 S. Ct. at 1803. In Egbert, the Supreme

Court considered two Bivens claims: (1) a Fourth Amendment excessive force claim that

“present[ed] ‘almost parallel circumstances’” to Bivens itself, id. at 1805, and (2) a novel

First Amendment retaliation claim. Id. at 1807–08. Both claims arose out of the plaintiff’s

interactions with the U.S. Border Patrol. Id. at 1799–1802. The plaintiff, a bed-and-

breakfast operator and Border Patrol confidential informant, alleged that a Border Patrol

4
Egbert does not overrule Abbasi or Hernandez. See Egbert, 142 S. Ct. 1793. We decline
to address or resolve any tension between Egbert and these prior decisions because it is not
necessary to dispose of the appeal before us.
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agent used excessive force on him while trying to conduct a search on the plaintiff’s

property. See id. at 1801. The plaintiff also claimed that the Border Patrol agent retaliated

by reporting him to the IRS after the plaintiff filed a grievance with the Border Patrol. Id.

at 1802. The Court concluded both claims would be expansions of Bivens beyond the three

previously recognized cases. Id. at 1804, 1807.

In declining to extend Bivens to the plaintiff’s Fourth Amendment claim, the Court

reasoned it failed “for two independent reasons.” Id. at 1804. First, the Court asked

whether “Congress is better suited to ‘weigh the costs and benefits of allowing a damages

action to proceed.’” Id. at 1805 (quoting Abbasi, 137 S. Ct. at 1858). To answer that

question, the Supreme Court rejected the Ninth Circuit’s decision to approach the analysis

“at too granular a level.” Id. at 1806. Instead, the Court in Egbert analyzed the question

at a high level of generality and asked “whether a court is competent to authorize a damages

action not just against Agent Egbert but against Border Patrol agents generally.” Id. The

Court concluded that “[t]he answer, plainly, is no” and primarily relied on the national

security implications of the border context as support. Id. (citation omitted). Second, the

Court held that “Congress has provided alternative remedies for aggrieved parties in

Boule’s position that independently foreclose a Bivens action.” Id. The Court specified

that an alternative remedial scheme need not “afford [a plaintiff] rights to participation or

appeal” to be adequate “because Bivens ‘is concerned solely with deterring the

unconstitutional acts of individual officers.’” Id. (quoting Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 71 (2001)). A remedy is sufficient to foreclose a Bivens action, then, “[s]o

long as Congress or the Executive has created a remedial process that it finds sufficient to

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secure an adequate level of deterrence.” Id. at 1807. The Court concluded that the Border

Patrol’s internal grievance process satisfied this requirement and foreclosed Bivens relief.

Id. at 1806–07.

With respect to the plaintiff’s First Amendment retaliation claim, the Court

differentiated it from the Fourth Amendment claim by noting that it had never recognized

a Bivens claim in a First Amendment context before. Id. at 1807. The Court emphasized

that recognizing a new Bivens action is an extreme course of action that “entail[s]

substantial social costs.” Id. (alteration in original) (quoting Anderson v. Creighton, 483

U.S. 635, 638 (1987)). “Federal employees,” the Court reasoned, “‘face[d with] the added

risk of personal liability for decisions that they believe to be a correct response to improper

[activity] would be deterred from’ carrying out their duties” if Bivens was expanded to

cover First Amendment retaliation claims. Id. (alterations in original) (quoting Bush, 462

U.S. at 389). Therefore, the Court was “‘convinced’ that, in light of these costs, ‘Congress

is in a better position to decide whether or not the public interest would be served’ by

imposing a damages action.” Id. (quoting Bush, 462 U.S. at 390).

We take several lessons from Egbert. First and foremost, we are left in no doubt

that expanding Bivens is not just “a disfavored judicial activity,” id. at 1803 (quoting

Abbasi, 137 S. Ct. at 1857) it is an action that is impermissible in virtually all

circumstances. See id. at 1803–07; id. at 1809–10 (Gorsuch, J., concurring in the

judgment). The Supreme Court’s rejection of the plaintiff’s Fourth Amendment claim,

despite its close resemblance to the facts of Bivens itself, underscores the extent of the

Court’s disfavor towards Bivens claims. See id. at 1810 (“Candidly, I struggle to see how

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this set of facts differs meaningfully from those in Bivens itself.”); id. at 1815 (Sotomayor,

J., concurring in the judgment in part and dissenting in part) (“At bottom, Boule’s claim is

materially indistinguishable from the claim brought in Bivens.”). Though the failure of

that claim raises a question aptly posed by Justice Gorsuch—“[w]hen might a court ever

be ‘better equipped’ than the people’s elected representatives to weigh the ‘costs and

benefits’ of creating a cause of action?” id. at 1809 (Gorsuch, J., concurring in the

judgment)—we do not endeavor to answer that question here. Instead, we emphasize what

we view as the key takeaway from Egbert, namely, that courts may dispose of Bivens

claims for “two independent reasons: Congress is better positioned to create remedies in

the [context considered by the court], and the Government already has provided alternative

remedies that protect plaintiffs.” Id. at 1804 (majority opinion) (emphasis added).

III.

We now apply Egbert to Plaintiff’s claim. Because the Supreme Court has

recognized independent means of disposing of Bivens claims, we focus our analysis on the

alternative remedial schemes available to Plaintiff. Plaintiff’s excessive force claim arises

in the federal prison context because he asserts a claim against a Bureau of Prisons (“BOP”)

official. As such, Defendant argues that the BOP Administrative Remedy Program

qualifies as an adequate alternative remedy for Plaintiff’s claim. Br. of Appellee 24–25.

The magistrate judge and district judge considering the case below both list the BOP’s

Administrative Remedy Program as one of several adequate alternative remedies available

to Plaintiff. Silva I, 2020 WL 8408472, at *6; Silva II, 2020 WL 7706785, at *6. Plaintiff

disagrees. He argues the BOP Program “is not the kind of ‘alternative remedial structure’

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the Supreme Court has described” because “the Administrative Remedy Program is a

regulatory creation of the BOP” and “offers no indication that Congress sought to displace

a Bivens remedy with any administrative regime.” Br. of Appellant 22–23.

But Plaintiff’s argument falls short for two reasons. First, Plaintiff’s argument that

the BOP Program is inadequate because it is a regulatory scheme rather than a

congressionally mandated one cannot stand in the wake of Egbert. The Supreme Court

expressly stated that an alternative remedial scheme is sufficient “[s]o long as Congress or

the Executive has created a remedial process that it finds sufficient to secure an adequate

level of deterrence.” Egbert, 142 S. Ct. at 1807 (emphasis added). The fact that the BOP

Administrative Remedy Program is a regulatory scheme is therefore irrelevant to any

determination of adequacy. Second, the Supreme Court has long since described the BOP

Administrative Remedy Program as an adequate remedy. See Malesko, 534 U.S. at 74

(“Inmates in respondent’s position also have full access to remedial mechanisms

established by the BOP, including . . . grievances filed through the BOP’s Administrative

Remedy Program.”). We therefore have little difficulty concluding that the BOP

Administrative Remedy Program is an adequate “means through which allegedly

unconstitutional actions . . . can be brought to the attention of the BOP and prevented from

recurring.” Id. “[B]ecause Bivens ‘is concerned solely with deterring the unconstitutional

acts of individual officers,’” we find the availability of the BOP’s Administrative Remedy

Program offers an independently sufficient ground to foreclose Plaintiff’s Bivens claim.

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Egbert, 142 S. Ct. at 1806 (quoting Malesko, 534 U.S. at 71). Accordingly, we need not

inquire any further to decide this appeal. 5

IV.

In sum, Plaintiff’s Bivens claim is foreclosed by the availability of the BOP

Administrative Remedy Program to address his complaint. For the foregoing reasons, we

AFFIRM the district court’s dismissal of Plaintiff’s complaint WITH PREJUDICE.

Entered for the Court

Bobby R. Baldock
Circuit Judge

5
We do not address whether the other remedies presented in the parties’ briefs and
considered by the district court below qualify as adequate alternatives for Bivens because
that discussion is unnecessary. Likewise, we do not wade into the other independently
sufficient grounds for disposing of this appeal, namely, “whether there is any reason to
think that Congress might be better equipped to create a damages remedy.” Egbert, 142 S.
Ct. at 1803. Nothing in this Order and Judgment should be read as expressing our views
on either subject.
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