22-3060-pr Lewis v. Bartosh

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held 2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 3 on the 13th day of December, two thousand twenty-three. 4 5 Present: 6 7 BARRINGTON D. PARKER, 8 EUNICE C. LEE, 9 SARAH A. L. MERRIAM, 10 Circuit Judges. 11 12 ________________________________ 13 14 Oswald A. Lewis, 15 16 Plaintiff-Appellant, 17 18 v. 22-3060-pr 19 20 Christopher Bartosh, Deputy U.S. Marshal Brian 21 Banks, Deputy Ryan Thomas Westfield, Deputy 22 Robert Ledogar, Deputy Antony Dineen, 23 24 Defendants-Appellees, 25 26 Bureau of Alcohol, Tobacco, Firearms and Explosives, 27 (ATF), United States Marshals Service, (USMS), Howard 28 Stern, Bureau of Alcohol Firearm and Explosives (ATF), 29 Ayesha Winston, Bureau of Alcohol, Firearm and 30 Explosives (ATF), Patrick Donahue, United States 1 Marshal Service (USMS), Sandy Rao, United States 2 Marshal Service (USMS), 3 4 Defendants. 5 _____________________________________ 6 7 8 For Plaintiff-Appellant: Oswald A. Lewis, pro se, Joint Base 9 MDL, NJ. 10 11 For Defendants-Appellees: Varuni Nelson, Kevan Cleary, 12 Melanie M. Speight, Assistant 13 United States Attorneys, of counsel, 14 for Breon Peace, United States 15 Attorney for the Eastern District of 16 New York, Brooklyn, NY. 17

18 Appeal from a judgment of the United States District Court for the Eastern District of New

19 York (Kovner, J.).

20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

21 DECREED that the judgment of the district court is AFFIRMED.

22 In 2016, Plaintiff-Appellant Oswald Lewis, proceeding pro se, brought Bivens 1 claims

23 against various Deputy United States Marshals, among others (together, Defendants-Appellees),

24 including for use of excessive force during an arrest at his home and for failure to intervene in that

25 use of force. Lewis’s Bivens claims partially survived summary judgment. See Lewis v. Bureau

26 of Alcohol, Tobacco & Firearms, No. 16-CV-1057(KAM)(JO),

, at *11–12

27 (E.D.N.Y. Oct. 4, 2018). In July 2022, on the eve of trial, the district court sua sponte recognized

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971) (holding that there is an implied cause of action for money damages against federal officials for violations of the Fourth Amendment). 2 1 that the Supreme Court’s recent decision in Egbert v. Boule,

(2022) might foreclose

2 Lewis’s claims under Bivens and invited the parties to brief the issue. After receiving that

3 briefing, the district court determined that Egbert foreclosed Lewis’s remaining claims against the

4 Defendants-Appellees and entered judgment for them. See Lewis v. Westfield,

249, 252–55 (E.D.N.Y. 2022). Lewis appealed the decision to this Court.

6 We assume the parties’ familiarity with the underlying facts, the procedural history, and

7 the issues on appeal. Our review is de novo. Garcia v. Hartford Police Dep’t,

,

8 126 (2d Cir. 2013) (per curiam); see also Vengalattore v. Cornell Univ.,

(2d Cir.

9 2022) (The availability of “a private right of action is of course a purely legal ruling, which we

10 review de novo.”).

11 As an initial matter, and contrary to Lewis’s arguments that the district court wrongly

12 reopened the judgment, the district court was permitted to sua sponte raise the effect of the Egbert

13 decision. A district court may exercise its discretion to revisit its earlier rulings in the same case

14 when, among other things, there has been a change of controlling law. See Off. Comm. of

15 Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP,

(2d Cir.

16 2003). While Lewis invokes preclusion doctrines, preclusion affects subsequent lawsuits, not

17 usually “later stages of the same litigation.” Rezzonico v. H & R Block, Inc.,

, 148

18 (2d Cir. 1999) (emphasis added). 2

2 While the clerk of the district court entered partial judgment in favor of Defendants-Appellees after the original summary judgment decision, the district court did not direct partial entry of judgment under Fed. R. Civ. P. 54(b). Thus, the clerk’s entry would not have cabined the subsequent exercise of the district court’s discretion because there was no finality. 3 1 We otherwise agree with the district court that Egbert precludes Lewis’s Bivens claims.

2 In Egbert, the Supreme Court emphasized once again that “recognizing a cause of action under

3 Bivens is a disfavored judicial activity.” Egbert,

(internal quotation marks

4 omitted). “[I]f a claim arises in a new context” — such as if it involves “a new category of

5 defendants” — or if there is an “alternative remedial structure,” a Bivens remedy is generally

6 “unavailable.”

(internal quotation marks omitted).

7 The district court concluded that several of the factors recognized in Egbert precluded a

8 Bivens remedy here, including the professional identity of Defendants-Appellees (Deputy

9 Marshals, rather than federal narcotics agents) and the existence of an alternative remedial scheme

10 through which the Directors of the Marshals Service must investigate reported misconduct. See

11 Lewis, 640 F. Supp. 3d at 253–55 (citing

(g);

(n)); see also

12 Egbert, 596 U.S. at 497–98 (explaining that a similar remedial scheme “independently

13 foreclose[d]” a Bivens remedy against the Border Patrol agents). In response to the former, Lewis

14 argues primarily that Egbert should be read to shield only agents of the Department of Homeland

15 Security. But Egbert rebuts Lewis’s position by indicating that new Bivens contexts arise

16 whenever there is “a new category of defendants.” Egbert,

(internal quotation

17 marks omitted). And even giving Lewis’s submissions the liberal construction afforded to

18 litigants proceeding pro se, we do not proceed further in our discussion because Lewis does not

19 address the district court’s finding of an available alternative remedial scheme 3 and has, therefore,

3 Lewis asserted that “even alternative remedies did not foreclose a Bivens action,” but this statement neither addresses the district court’s discussion nor accurately reflects the law. 4 1 abandoned any challenge to that determination. See Green v. Dep’t of Educ. of City of N.Y., 16

2

, 1074 (2d Cir. 2021) (per curiam).

3 In sum, Lewis has not provided any reason to disturb the district court’s ruling that his

4 claims arose in a new Bivens context. Finding his remaining arguments to be unavailing or

5 without merit, we AFFIRM the judgment of the district court. Accordingly, the related pending

6 motion in this matter is DENIED.

7 8 FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk of Court 10 11

5