Summary
The Ninth Circuit denied panel rehearing and rehearing en banc in an Eighth Amendment deliberate-indifference action brought by federal inmate Kekai Watanabe against prison medical personnel. Judges Paez and Koh, respecting denial of rehearing en banc, stated that the claims arise in the same Bivens context as Carlson v. Green and that the Bureau of Prisons Administrative Remedies Program does not create a new context. Judge R. Nelson, joined by several judges, and Judge Collins separately dissented, arguing that Bivens claims are narrowly limited and that the availability of alternative remedies and other differences warranted rehearing.
Topics
Practice areas
Questions Presented
- Whether panel rehearing should be granted after the Ninth Circuit panel reversed dismissal of Watanabe's Eighth Amendment Bivens action.
- Whether rehearing en banc should be granted to reconsider whether Watanabe's Eighth Amendment deliberate-indifference claim is cognizable under Bivens, particularly whether the Bureau of Prisons Administrative Remedy Program and the alleged severity of the misconduct create a new Bivens context.
Holdings
- The petition for panel rehearing was denied.
- Rehearing en banc was denied because the matter failed to receive a majority of the votes of the nonrecused active judges in favor of rehearing en banc.
- In the statement respecting denial of rehearing en banc, Judges Paez and Koh maintained that Watanabe's Eighth Amendment deliberate-indifference claims are cognizable because they arise in the same context as Carlson v. Green and that the Administrative Remedy Program does not create a new context.
Key quotations
“The petition for panel rehearing (Dkt. 54) is DENIED.” (at 1059)
“Appellees’ petition for rehearing en banc (Dkt. 54) is thus DENIED.” (at 1059)
“Under the two-step framework governing Bivens actions, Kekai Watanabe’s Eighth Amendment deliberate indifference claims are cognizable because they arise from the same context as Carlson v. Green, 446 U.S. 14 (1980).” (at 1060)
“The existence of alternative remedies like the ARP does not place Watanabe’s claim within a new context because it already existed when Carlson was decided.” (at 1062)
“Because Carlson actions remain viable and because the majority opinion is in line with that decision and other post-Bivens decisions, the court properly declined to take this case en banc.” (at 1072)
Factual background
Watanabe, a federal inmate, was beaten by other inmates with an improvised weapon and later reported severe lower-back pain. He alleged that prison medical personnel failed to provide meaningful treatment, declined to send him to a hospital, and ignored repeated requests for medical attention. Months later, he was diagnosed with a fractured coccyx and sued for damages and injunctive relief under Bivens, alleging deliberate indifference to serious medical needs.
Procedural history
Watanabe, a federal inmate, sued federal prison officials alleging that they were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. The district court dismissed the action, concluding that the claim arose in a new Bivens context and that special factors, including the Bureau of Prisons Administrative Remedy Program, counseled against extending Bivens. The Ninth Circuit panel reversed, holding that the claim arose in the same context as Carlson v. Green. The court denied panel rehearing and denied rehearing en banc because the en banc petition failed to receive a majority of the votes of the nonrecused active judges.