CAUTHEN

v.

BLACKMON

Plaintiff, a federal inmate, is proceeding on an amended complaint under Bivens¹ against two Defendants (Doc. 16). Defendant Blackmon moved to dismiss the Eighth Amendment excessive force claim against him, arguing among other things that such a claim is not cognizable under Bivens after the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (clarifying that, before extending a Bivens remedy, district courts must engage in a two-step inquiry, asking first whether the case presents a new Bivens context and second whether “special factors” counsel hesitation in extending a Bivens remedy).

See generally Pl. Resp. In Egbert, the plaintiff sued a Border Patrol Agent for, as relevant here, a Fourth Amendment violation (excessive force) for physically assaulting him outside his home at the Canadian border when the Agent was investigating a suspected smuggling. 142 S. Ct. at 1801-02. The Court held the court of appeals “plainly erred” when it permitted the plaintiff’s Fourth Amendment excessive force claim to proceed under Bivens. Id. at 1804. In accordance with its recent decisions emphasizing that extending Bivens remedies is “a disfavored judicial activity,” id. at 1803 (citing Ziglar, 137 S. Ct. at 1856-57; Hernandez v. Mesa, 140 S. Ct. 735, 742-43 (2020)), the Court reaffirmed its holding in Hernandez:

“a Bivens cause of action may not lie where . . . national security is at issue.” Id. at 1805. Additionally, the Court held that aggrieved individuals in the plaintiff’s position could, as plaintiff did, take “advantage of [a] grievance procedure.” Id. at 1806. Egbert does not constitute a “change in the controlling law” that would mandate reconsideration of the Court’s finding with respect to the viability of

Plaintiff’s excessive force claim against Defendant Blackmon. See Nunez v. Sec’y, Fla. Dep’t of Corr., No. 17-13112-K, 2017 WL 11622196, at *2 (11th Cir. Oct. 18, 2017) (noting one ground that would justify granting a motion for reconsideration is when there has been a change in the controlling law). In

Egbert, the Supreme Court did not hold a Bivens remedy is unavailable in the context of a prisoner alleging a corrections officer used excessive force against him in violation of the Eighth Amendment. See Egbert, 142 S. Ct. at 1804-05. And the Supreme Court did not overrule Bivens or Carlson,² nor did it change the analytic framework that binds district courts when confronted with Bivens claims. See id. Rather, the Court collapsed the two-step Ziglar inquiry into one, emphasizing the single most important question is “whether there is any

137 S. Ct. at 1857 (“[T]he Court’s precedents now instruct, the Legislature is in the better position to consider if the public interest would be served by imposing a new substantive legal liability.” (internal quotation marks omitted)).

In finding Plaintiff’s excessive force claim could proceed, this Court heeded the Supreme Court’s unequivocal and clearly expressed mandate— announced pre-Egbert—to “exercise caution before extending Bivens remedies into a[] new context” and to consider whether special factors would counsel hesitation in extending a Bivens remedy. See Order (Doc. 60). A holding that a Fourth Amendment excessive force claim for damages may not proceed against a Border Patrol Agent investigating a matter of national security does not dictate that a federal inmate may not proceed on a claim for damages under the Eighth Amendment against a corrections officer who allegedly assaulted the inmate while he was having a heart attack. Accordingly, Defendant Blackmon’s motion for reconsideration (Doc. 78) is DENIED. DONE AND ORDERED at Jacksonville, Florida, this 3rd day of April 2023.

BRIAN/J . DAVIS

United States District Judge

Jax-6 C: Reco Valarie Cauthen Counsel of Record