FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT A. STANARD, AKA No. 21-35582
Robert Allen Stanard,
D.C. No. 2:19-cv-
Plaintiff-Appellant, 01400-RSM
v.
OPINION
MARIA DY, Doctor, FDC SeaTac;
DAN SPROUL, Warden, FDC
SeaTac; K. MARTINEZ, Physician's
Assistant, FDC SeaTac; MARY
MITCHELL, Western Regional
Director; IAN CONNERS,
Administrator, National Inmate
Appeals; LEEN, Health Services
Administrator, FCI Sheridan; J.
BALTAZAR, Western Regional
Director; UNKNOWN PARTY,
Medical Director of the FBOP;
UNKNOWN PARTY, Regional
Medical Director; MCDERMONT,
Health Services Administrator, FDC
SeaTac,
Defendants-Appellees.
2 STANARD V. DY
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted March 30, 2023
Seattle, Washington
Filed December 11, 2023
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Dean D. Pregerson,* District Judge.
Opinion by Judge Pregerson
SUMMARY**
Prisoner Civil Rights/Bivens
In a Bivens action brought by Robert Stanard alleging
that federal prison officials denied him treatment for
Hepatitis C, the panel reversed the district court’s dismissal
of his claim that federal prison officials were deliberately
indifferent to his medical needs in violation of the Eighth
Amendment, and affirmed the district court’s dismissal of
his claim that federal prison officials discriminated against
*
The Honorable Dean D. Pregerson, United States District Judge for the
Central District of California, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
STANARD V. DY 3
him in denying him treatment because of his pre-trial status
in violation of the Fifth Amendment Due Process Clause.
The panel reversed the district court’s dismissal of
Stanard’s Eighth Amendment medical indifference
claim. The panel held that the claim arose within an existing
context as established in Carlson v. Green, 446 U.S. 14
(1980), which recognized a Bivens remedy against prison
officials who were deliberately indifferent to an inmate’s
asthma. The panel rejected defendants’ argument that
Carlson was meaningfully different because the officials in
Carlson acted so inappropriately as to evidence intentional
maltreatment causing death, while the officials here denied
Stanard care because of a Bureau of Prisons (“BOP”)
policy. Delaying treatment is an established example of
deliberate indifference to a serious medical need, in violation
of the Eighth Amendment. Even assuming Stanard received
less deficient care than the inmate in Carlson, that difference
in degree was not a meaningful difference giving rise to a
new context. Moreover, Stanard was not simply challenging
a broadly applicable BOP policy. His complaint alleged,
among other things, that defendants relied on outdated
medical records in refusing him treatment for Hepatitis C.
The panel affirmed the district court’s dismissal of
Stanard’s Fifth Amendment claim. The panel held that the
claim arose in a new context and special factors counseled
hesitation against extending Bivens given that alternative
remedial structures existed.
4 STANARD V. DY
COUNSEL
Xiao Wang (argued), Assistant Professor of Law, University
of Virginia Law School, Charlottesville, Virginia; Matthew
Dickel, Taylor Hoffman, Elisabeth Logan, and Briana
Singson, Certified Law Students, Northwestern University
Pritzker School of Law Appellate Advocacy Center, Bluhm
Legal Clinic, Chicago, Illinois; Samuel Weiss, Founder and
Executive Director; Oren Nimni, Litigation Director; Rights
Behind Bars, Washington, D.C.; for Petitioner-Appellant.
Tania M. Culbertson (argued) and Matt Waldrop, Assistant
United States Attorneys; Nicholas W. Brown, United States
Attorney, Western District of Washington, United States
Attorney’s Office, Seattle, Washington; for Defendants-
Appellees.
OPINION
PREGERSON, District Judge:
Robert A. Stanard claims in this action that his Fifth and
Eighth Amendment rights were violated by various federal
prison officials when he was denied treatment for Hepatitis
C. The district court dismissed Stanard’s pro se complaint,
finding that it failed to state a Bivens claim. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). We affirm as to Stanard’s Fifth
Amendment claim and reverse as to his Eighth Amendment
claim.
STANARD V. DY 5
I. FACTUAL BACKGROUND1
Stanard contracted Hepatitis C Virus (“HCV”) at a
Bureau of Prisons (“BOP”) facility in 2009. In November
2016, Stanard was arrested for being a felon in possession of
a firearm and detained at Federal Detention Center SeaTac
pending trial. Stanard declined HCV treatment during his
first meeting with Dr. Maria Dy at SeaTac because he was
suffering from a mental health crisis and, in his own words,
“just wanted to die.”
In January 2018, Stanard was found guilty of firearm
possession and related charges. In February or March 2018,
while still at SeaTac pending sentencing, Stanard started to
seek treatment for HCV. He met with Dr. Dy again, who told
him that he was “not qualified” for treatment at the time,
based on his January 2 AST (“aspartate aminotransferase”)-
to-platelet ratio index (“APRI”) of 0.41.2 On March 2,
Stanard submitted a BP-8, a Bureau of Prisons informal
complaint form, requesting HCV treatment. He did not
receive a response. When Stanard followed up with his
counselor, he was told to fill out another BP-8. Stanard
submitted the second BP-8 on April 3. His counselor
responded on May 13, rejecting Stanard’s request for
treatment because he was “treatment Priority Level 3 and a
pre-trial inmate[.] [BOP] is currently focusing on treating
1
Because this is an appeal from an order granting a motion to dismiss,
we assume the truth of the facts alleged in the complaint. See Pettibone
v. Russell, 59 F.4th 449, 450–51 (9th Cir. 2023).
2
In November 2017, Stanard’s APRI was 0.6. It later rose to 2.51 but
went back down to 0.41 by January 2, 2018. A higher APRI generally
corresponds to more advanced or severe HCV complications. An APRI
above 2.0 is indicative of advanced liver damage.
6 STANARD V. DY
designated Priority 1&2 Level inmates. You will continue to
be monitored accordingly.”
Stanard began the formal complaint process by filing a
BP-9 form (“Request for Administrative Remedy”) on May
15. Stanard complained of abdominal pain. He had just
witnessed the decline and death of a fellow inmate from
untreated HCV, and was worried that “without a valid course
of treatment I will die at a much quicker rate than normal[].”
The Warden denied Stanard’s BP-9 request on May 22,
noting that Stanard was “treatment Priority Level 3 and a
pre-trial inmate.” On May 30, 2018, Stanard appealed the
Warden’s decision by filing a BP-10 (“Regional
Administrative Remedy Appeal Form”) with the regional
medical director. On September 28, before receiving a
response to his appeal, Stanard was transferred to Federal
Correctional Institution (“FCI”) Sheridan.
Because he had not received a response to his BP-10,
Stanard filed a BP-11 (“Central Office Administrative
Remedy Appeal Form”) on October 7, 2018. He saw a doctor
at FCI Sheridan on November 19, and again requested HCV
treatment. The doctor told Stanard he would receive HCV
treatment after “a short wait.” Responses to Stanard’s BP-10
and BP-11 forms came on December 6 and November 13,
respectively. In both responses, the BOP concluded that
Stanard was receiving adequate care in spite of any delay in
or denial of HCV treatment. Stanard began HCV treatment
at FCI Sheridan in November or December 2018. By May
2019, midway through his treatment, Stanard’s lab tests no
longer detected HCV.
II. PROCEDURAL HISTORY
Stanard filed a pro se complaint in the Western District
of Washington on August 30, 2019. His operative first
STANARD V. DY 7
amended complaint (“Complaint”) sought damages under
Bivens, alleging that various BOP officials (1) were
deliberately indifferent to Stanard’s medical needs, in
violation of the Eighth Amendment prohibition against cruel
and unusual punishment, and (2) discriminated against him
in denying treatment because of his “pre-trial” status, thus
violating the Fifth Amendment Due Process clause.
A magistrate judge recommended that the district court
grant the defendant’s Rule 12(b)(6) motion to dismiss for
failure to state a claim. The magistrate judge concluded that
Stanard’s claims would extend Bivens into a new context,
and that special factors counseled against granting such
extension. The magistrate judge also concluded in the
alternative that Stanard had failed to plausibly allege an
underlying constitutional violation. At most, the judge
reasoned, Stanard had alleged “a difference of opinion
concerning proper medical care.”
The district court agreed that Stanard’s claims arose in a
new Bivens context and that special factors counseled
against extension of a Bivens remedy, and granted the
motion to dismiss without addressing the validity of
Stanard’s underlying constitutional claims. This appeal
followed.
III. STANDARD OF REVIEW
We review the grant of a Rule 12(b)(6) motion de novo.
Bain v. Cal. Teachers Ass'n, 891 F.3d 1206, 1211 (9th Cir.
2018) (citation omitted).
IV. DISCUSSION
In Bivens, the Supreme Court held that a plaintiff could
seek monetary damages for violation of his Fourth
Amendment rights by federal agents. 403 U.S. at 397. The
8 STANARD V. DY
availability of damages “should hardly seem a surprising
proposition,” the Court reasoned, given that damages were
“regarded as the ordinary remedy for an invasion of personal
interests in liberty.” Id. at 395-96. Eight years later, the Court
held that a damages remedy was also “surely appropriate”
for a suit against a Congressperson for alleged violations of
Fifth Amendment Due Process. Davis v. Passman, 442 U.S.
228, 245 (1979). The following year, the Court again
recognized a Bivens damages remedy in a suit against federal
prison officials alleging deliberate indifference to medical
needs in violation of the Eighth Amendment. Carlson v.
Green, 446 U.S. 14, 20 (1980).
In a series of subsequent decisions, however, the Court
repeatedly declined to further expand the scope of Bivens. In
Bush v. Lucas, it held that a federal employee could not claim
damages when his superiors allegedly violated his First
Amendment rights, reasoning that “Congress is in a better
position to decide whether or not the public interest would
be served by creating” such a remedy. 462 U.S. 367, 390
(1983); see also Chappel v. Wallace, 462 U.S. 296 (1983);
United States v. Stanley, 483 U.S. 669 (1987); Schweiker v.
Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471
(1994); Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001);
Wilkie v. Robbins, 551 U.S. 537 (2007) (all declining to
extend a Bivens remedy). In 2009, the Court summarized its
recent jurisprudence by noting that Bivens actions were
“implied,” and therefore “disfavored.” Ashcroft v. Iqbal, 556
U.S. 662, 675 (2009). Citing separation-of-powers
principles, the Court has not extended Bivens relief to
previously unrecognized contexts. See Ziglar v. Abbasi, 582
U.S. 120, 133-34 (2017); Egbert v. Boule, 596 U.S. 482, 498
n.3 (2022).
STANARD V. DY 9
We have recently observed that, after the Supreme
Court’s decision in Egbert v. Boule, most claims seeking to
extend Bivens are “dead on arrival.” Harper v. Nedd, 71
F.4th 1181, 1187 (9th Cir. 2023). But recognizing that
“mostly dead is slightly alive,” Chambers v. C. Herrera, 78
F.4th 1100, 1108 (9th Cir. 2023), we turn to analysis of
Stanard’s claims.
A. THE BIVENS FRAMEWORK
The first step in a Bivens analysis is to determine whether
a case presents a new Bivens context. See Hernandez v.
Mesa, 140 S. Ct. 735, 743 (2020). “If the answer to this
question is ‘no,’ then no further analysis is required.” Lanuza
v. Love, 899 F.3d 1019, 1023 (9th Cir. 2018) (citation
omitted).
If the case does present a new context, we then must
determine whether “special factors” indicate that the
Judiciary is less equipped than Congress to weigh the costs
and benefits of extending the Bivens remedy to this new
context. Hernandez, 140 S. Ct. at 743; see also Ziglar, 582
U.S. at 140 (“The Court of Appeals [] should have held that
this was a new Bivens context. Had it done so, it would have
recognized that a special factors analysis was required before
allowing this damages suit to proceed.”).
In Egbert, the Supreme Court observed that the “new
context” and “special factors” 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.”
Egbert, 596 U.S. at 492. But our post-Egbert cases
nonetheless continue to “apply a two-step framework, asking
first whether the claim arises in a new context, and second,
if so, whether other special factors counsel hesitation against
10 STANARD V. DY
extending Bivens.” Harper¸ 71 F.4th at 1185 (citation
omitted).
B. THE EIGHTH AMENDMENT CLAIM
A Bivens claim arises in a new context if it differs “in a
meaningful way from previous Bivens cases.” Ziglar, 582
U.S. at 139. Here, the parties agree that Carlson provides the
starting point for the “new context” analysis. In Carlson, the
Court recognized a Bivens remedy against prison officials
who were deliberately indifferent to an inmate’s asthma. 446
U.S. at 16 n.1. Against the advice of doctors, the inmate was
detained at a corrections facility with “gross[ly]
inadequa[te]” medical facilities. Id. When he suffered an
asthma attack, no doctor was on duty and none was called
in. See Green v. Carlson, 581 F.2d 669, 671 (7th Cir. 1978).
Instead, after some delay, a medical training assistant
attempted to use a broken respirator on the inmate. Id. When
the inmate pulled away from the respirator and told the
assistant it was making his breathing worse, the assistant
administered an antipsychotic medication. See id. The
inmate went into respiratory arrest and died. Id.
The Defendants argue that meaningful differences
between this case and Carlson mean that Stanard’s case
arises in a new context. Specifically, Defendants argue, the
officials in Carlson acted “so inappropriate[ly] as to
evidence intentional maltreatment causing death,” while the
officials here denied Stanard care because of a BOP policy.
Green, 581 F.2d at 675 (citing district court).
Although there is no definitive list of how meaningful
differences must be to create a new Bivens context,
precedent provides a starting point. Ziglar, the first case in
which the Supreme Court articulated the new context
inquiry, provided a non-exhaustive series of considerations,
STANARD V. DY 11
including the rank of the officers involved, the constitutional
right at issue, the generality or specificity of the official
action, the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be
confronted, and the statutory or other legal mandate under
which the officer was operating. 582 U.S. at 139-40. We
examine each below.
1. Severity of Mistreatment
Defendants argue that Stanard’s case arises in a new
context because the medical care he received was less
flagrantly deficient than in Carlson. They assert that Stanard
was merely denied “the treatment he wanted on the schedule
he preferred.”
First, we disagree that Stanard’s claims amount to a mere
scheduling preference for elective care. As Stanard indicated
in his repeated communications to Defendants, HCV is a
life-threatening disease.
(https://www.cdc.gov/hepatitis/hcv/index.htm). When
Stanard was denied treatment, Defendants did not offer him
some alternate timeline by which he would receive necessary
care. Instead, they repeatedly informed Stanard that he
would not receive any HCV treatment at SeaTac at all. It was
only after Stanard transferred to another facility that he
received appropriate care. Delaying treatment is an
established example of deliberate indifference to a serious
medical need, in violation of the Eighth Amendment. See
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation
omitted).
12 STANARD V. DY
Second, even assuming that Stanard received less
deficient care than the inmate in Carlson,3 that difference in
degree is not a meaningful difference giving rise to a new
context. Stanard seeks a damages remedy for failure to
provide medical attention evidencing deliberate indifference
to serious medical needs. “Along every dimension the
Supreme Court has identified as relevant to the inquiry,”
Stanard’s case is a “replay” of Carlson. Hicks v. Ferreyra,
965 F.3d 302, 311 (4th Cir. 2020).
2. Existence of BOP Policy
Defendants also argue that, unlike the inmate in Carlson,
Stanard is challenging a broadly applicable BOP policy
governing HCV treatment protocol in federal prisons, rather
than a non-policy based pattern of neglect. Defendants warn
of the potential systemwide impacts of allowing an inmate
to bring challenges to BOP medical policies with which the
inmate does not agree.
Even if challenging BOP policy carries a risk of
“disruptive intrusion by the Judiciary into the functioning of
other branches,” see, e.g., Pettibone, 59 F.4th at 455,
Defendants’ argument mischaracterizes Stanard’s claims.4
3
To the extent that Defendants argue that their conduct was not “serious
enough” deprivation to support a claim for Eighth Amendment relief we
decline to reach the issue. The district court did not rule on the
plausibility of Stanard’s Eighth Amendment claim, choosing instead to
rule only on Bivens liability.
4
Defendants also accuse Stanard of “shift[ing] his argument on appeal”
by recharacterizing his position from one that challenges BOP policy to
one that challenges individual instances of deliberate indifference. But
we must construe Stanard’s pro se complaint liberally. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976) (The “pro se document is to be liberally
construed…and must be held to less stringent standards than formal
STANARD V. DY 13
Stanard is not simply challenging the constitutionality of a
broadly applicable BOP policy. His complaint alleges that
the defendants “relied upon” outdated medical records in
refusing him care, including an APRI score that was eight
years old, and asserts that that Defendants exhibited
indifference by ignoring his reports or inaccurately
dismissing him as a pre-trial inmate. The core of his
complaint concerns the actions and state of mind of
Defendants in denying him HCV treatment. Stanard is not,
therefore, simply challenging a broadly applicable BOP
policy. See, e.g., Johnson v. Wright, 412 F.3d 398, 404 (2d
Cir. 2005) (“The operative question in this case is not
whether [the prison system’s Hepatitis C policy] is generally
justifiable, but whether a jury could find that the application
of the policy in plaintiff's case could have amounted to
deliberate indifference to plaintiff's medical needs.”)
(emphasis added).
Because Stanard’s Eighth Amendment claims arise
within an existing context, we need not proceed to the
special factors inquiry. See Ioane v. Hodges, 939 F.3d 945,
952 n.4 (9th Cir. 2018). The district court decision to the
contrary is REVERSED.
C. THE FIFTH AMENDMENT CLAIM
Stanard claims Defendants violated his Fifth
Amendment rights by disparately treating pre-sentencing
and post-sentencing inmates with no rational basis. There is
little doubt that Stanard’s Fifth Amendment claim does
present a new context.
pleadings drafted by lawyers.”); Fed. Rule Civ. Proc. 8(e) (“Pleadings
must be construed so as to do justice.”).
14 STANARD V. DY
The Supreme Court has only recognized a Bivens remedy
for Fifth Amendment violations in the context of gender-
based employment discrimination. Davis, 442 U.S. at 230.
Many of the factors listed by the Supreme Court counsel that
this is a new context, including the statutory or legal mandate
under which defendants were operating (the Civil Rights
Act’s mandate against gender discrimination versus no
applicable federal law prohibiting discriminating against
pre-trial inmates) and the category of defendants (a member
of Congress versus prison officials). See Pettibone, 59 F.4th
at 455; Malesko, 534 U.S. at 68.
Because Stanard’s Fifth Amendment claim arises in a
new context, it must pass through the unforgiving special
factors inquiry. Pettibone, 59 F.4th at 455. To survive this
step, Stanard must show that no special factors indicate that
Congress is “at least arguably” better suited to weigh the
costs and benefits of allowing the damages action to proceed.
Egbert, 596 U.S. at 492 (citation omitted). Alternative
remedial structures are one such special factor. Ziglar, 582
U.S. at 137; Vega v. United States, 881 F.3d 1146, 1154 (9th
Cir. 2018) (“Alternative remedial structures can take many
forms, including administrative, statutory, equitable, and
state law remedies.”) (cleaned up); Chambers, 78 F.4th at
1106 (finding the BOP administrative remedy process
constitutes an alternative remedial structure). Because
Stanard’s Fifth Amendment claims arise in a new context
and alternative remedial structures exist, the District Court’s
dismissal of those claims is AFFIRMED.
AFFIRMED IN PART AND REVERSED IN PART.