DAVID SMITH-GARCIA, AKA David Garland Atwood II v. PAULA BURKE, U.S. Probation Officer

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID SMITH-GARCIA, AKA David
Garland Atwood II,

Plaintiff-Appellant,

v.

PAULA BURKE, U.S. Probation Officer,

Defendant-Appellee,

and

UNITED STATES OF AMERICA; U.S.
PROBATION,

Defendants.

No. 19-55449

D.C. No.
3:17-cv-01315-MMA-BLM

MEMORANDUM
*

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Submitted August 4, 2020
**

San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

AUG 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
David Smith-Garcia, AKA David Garland Atwood II, challenges the district
court’s dismissal of his claims alleging an Eighth Amendment violation by U.S.
Probation Officer Paula Burke related to Smith-Garcia’s supervised release. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review de novo dismissal for failure to state a claim under Fed. R. Civ.
P. 12(b)(6). Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109,
1115 (9th Cir. 2013). A complaint does not require “detailed factual allegations,”
but it “must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal marks and citations omitted).
We decline to extend a Bivens remedy to Smith-Garcia’s claim. See Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
In Ziglar v. Abbasi, the Court cautioned lower courts not to expand Bivens
remedies outside the three previously recognized Bivens claims. 137 S. Ct. 1843,
1854-57 (2017) (citing Bivens, 403 U.S. at 396 (unreasonable search and seizure
under the Fourth Amendment); Davis v. Passman, 442 U.S. 228, 248–49 (1979)
(gender discrimination under the Fifth Amendment Due Process Clause); Carlson
v. Green, 446 U.S. 14, 19 (1980) (Eighth Amendment violation for failure to
provide adequate medical treatment)). Smith-Garcia’s claim—that a U.S. Probation
Officer was deliberately indifferent to his medical care when the officer prevented

3
him from moving to San Diego to seek free medical care while under supervised
release—arises in a new Bivens context. See Abbasi, 137 S.Ct. at 1864.
If a proposed claim arises in a new context, courts must conduct a two-step
analysis to determine whether to extend a Bivens remedy. Vega v. United States,
881 F.3d 1146, 1153 (9th Cir. 2018). At step one, the court asks “whether any
alternative, existing process for protecting the interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.” Id. Because Smith-Garcia has an alternative process by
which to pursue his claim—filing a motion to transfer his supervised release—we
need not reach step two.
Finally, the district court did not abuse its discretion in dismissing Smith-
Garcia’s motion to recuse. See United States v. McTiernan, 695 F.3d 882, 891 (9th
Cir. 2012). “[A] reasonable person with knowledge of all the facts” would not
conclude that the district court judge’s “impartiality might reasonably be
questioned.” Mayes v. Leipziger,729 F.2d 605, 607 (9th Cir. 1984) (internal
quotation marks and citations omitted); see Yagman v. Republic Ins., 987 F.2d 622,
626 (9th Cir. 1993) (plaintiff’s assertions “are nothing more than speculation.”).
AFFIRMED.