FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MARCELLAS HOFFMAN, No. 20-15396 Plaintiff-Appellant, D.C. No. v. 1:16-cv-01617- LJO-SAB PRESTON, Defendant-Appellee, OPINION and D. COYLE; MATEVOISAIN, Warden; L. T. HAYES; FIELDS, SIA Investigator, Defendants. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Argued and Submitted February 8, 2021 San Francisco, California Filed February 28, 2022 2 HOFFMAN V. PRESTON Before: Kim McLane Wardlaw and Carlos T. Bea, Circuit Judges, and Lee H. Rosenthal, * District Judge. Opinion by Chief District Judge Rosenthal; Dissent by Judge Bea SUMMARY ** Prisoner Civil Rights The panel reversed the district court’s dismissal of an action brought by federal prisoner Marcellas Hoffman alleging that correctional officer Timothy Preston labeled him a snitch to other prisoners, offered them a bounty to assault Hoffman, and failed to protect him from the predictable assault by another prisoner. Hoffman sued Preston for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The district court dismissed the action on the grounds that Hoffman’s claim presented a new Bivens context, and that special factors cautioned against extending the Bivens remedy to Hoffman’s claim. Construing the pro se complaint liberally, the panel held that Hoffman’s complaint alleged conduct beyond deliberate * The Honorable Lee H. Rosenthal, Chief United States District Judge for the Southern District of Texas, 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. HOFFMAN V. PRESTON 3 indifference. Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk. Although this claim of intentional harm was not squarely presented in the Supreme Court’s Bivens opinions, Hoffman’s allegations taken as true were only a modest extension of Bivens. Citing Carlson v. Green, 446 U.S. 14 (1980), the panel reasoned that if the Supreme Court allowed a guard who is aware of and deliberately indifferent to a substantial risk that a prisoner will suffer medical harm from an asthma attack to be sued under Bivens, it was but a modest extension to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur. While Hoffman’s Eighth Amendment claim was different in some respects from the Eighth Amendment claim presented in Carlson, no special factors counselled hesitation against what was a very modest expansion of the Bivens remedy to this context. The panel noted that Hoffman would likely not be able to obtain damages from Preston in a state-law tort suit given that the Westfall Act accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. Here, the Department of Justice had represented that if Hoffman were to bring a state- law tort suit against Preston, it was …
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