Stratmon v. Tucker et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Defendants 67 motion for summary judgment, filed on November 30, 2017 be granted, because Plaintiff has failed to state a cognizable claim; Judgment be entered In Favor of Defendant ; referred to Judge Drozd, signed by Magistrate Judge Stanley A. Boone on 7/10/18. Objections to F&R due by 8/13/2018(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID L. STRATMON, JR.,
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Plaintiff,
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v.
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ANGELA MORRIS,
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Defendant.
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Case No.: 1:12-cv-01837-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT BE GRANTED
[ECF No. 39]
THIRTY (30) DAY DEADLINE
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Plaintiff David L. Stratmon, Jr., is a federal prisoner proceeding pro se in this civil rights action
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pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
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(1971). This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302. This case proceeds on Plaintiff’s complaint against Defendant
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Morris interference with his mail.
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Currently before the Court is Defendant’s motion for summary judgment, filed November 30,
2017. (ECF No. 67.)
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I.
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RELEVANT BACKGROUND
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Previously, this action proceeded against Defendant Morris for retaliation and for interference
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with the right to receive mail. (ECF No. 16.) The complaint was served, and on May 18, 2015,
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Defendant Morris responded by a partial motion for summary judgment for the failure to exhaust
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administrative remedies. (ECF No. 26.) Thereafter, the parties sought several extensions of time to
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brief that motion. (ECF Nos. 28, 39, 42.) On August 24, 2016, findings and recommendations were
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issued on the summary judgment motion, (ECF No. 46), which was followed by requests for
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extensions of time to object to those findings and recommendations, (ECF Nos. 48, 51.)
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On January 5, 2017, the Court granted in part and denied in part Defendant’s motion for partial
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summary judgment. (ECF No. 57.) Plaintiff’s claim for retaliation was dismissed, without prejudice,
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due to Plaintiff’s failure to exhaust his administrative remedies. (Id.) As noted above, this case now
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proceeds on Plaintiff’s complaint against Defendant Morris for interference with his mail. (Id.)
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Defendant filed an answer to the complaint on January 19, 2017. (ECF No. 59.) On January
20, 2017, the Court issued the discovery and scheduling order. (ECF No. 60.)
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Defendant filed the instant motion for summary judgment on November 30, 2017. (ECF No.
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67.) Rather than responding to the motion, Plaintiff filed a motion for judgment by default and to
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strike Defendant’s answer. (ECF No. 68.) Following the denial of Plaintiff’s motion, on April 16,
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2018, the Court ordered Plaintiff to respond to Defendant’s motion for summary judgment. (ECF No.
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73.) Plaintiff filed an opposition to the summary judgment motion on May 24, 2018, (ECF No. 74),
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and Defendant filed a reply, on extension, on June 7, 2018, (ECF No. 77). The motion is now deemed
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submitted. Local Rule 230(l).
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II.
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LEGAL STANDARD
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Any party may move for summary judgment, and the Court shall grant summary judgment if
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the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
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judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted); Washington Mut. Inc. v.
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U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether it be that a fact is disputed
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or undisputed, must be supported by (1) citing to particular parts of materials in the record, including
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but not limited to depositions, documents, declarations, or discovery; or (2) showing that the materials
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cited do not establish the presence or absence of a genuine dispute or that the opposing party cannot
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produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1) (quotation marks omitted).
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The Court may consider other materials in the record not cited to by the parties, but it is not required
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to do so. Fed. R. Civ. P. 56(c)(3); Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031
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(9th Cir. 2001); accord Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
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In judging the evidence at the summary judgment stage, the Court does not make credibility
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determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984
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(9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the light most
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favorable to the nonmoving party and determine whether a genuine issue of material fact precludes
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entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936,
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942 (9th Cir. 2011) (quotation marks and citation omitted).
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III.
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DISCUSSION
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A.
Summary of Plaintiff’s Allegations
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Plaintiff alleges that on December 23, 2010, an inmate employed by UNICOR was caught with
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two metal rods while exiting the institution dining hall. The inmate took the items prior to leaving his
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UNICOR job. On the same date, Plaintiff was summoned to the Lieutenant’s office from his housing
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unit. Plaintiff was told that a metal rod had been found by UNICOR staff in the work area where
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Plaintiff was assigned. Plaintiff explained that seventy other UNICOR workers had the same access as
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he did.
Plaintiff also told the Lieutenant that he had been in his housing unit at the time.
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Approximately twenty minutes after he returned to his housing unit, Plaintiff was summoned to
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UNICOR by Defendant Morris, and former defendants Sahota and Stokes. These officers allegedly
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threatened Plaintiff. It was implied that if Plaintiff did not tell them who took the rod, it would be easy
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to arrange a metal rod to be “found” in Plaintiff’s locker. Defendant Morris told Plaintiff to either
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resign or be locked up. Plaintiff resigned.
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Plaintiff filed an inmate grievance regarding the matter. After the grievance was filed, Plaintiff
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was approached by Defendant Morris and told that the matter was not going to be resolved through the
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administrative grievance process and reminded Plaintiff about her threat. Defendant Morris threatened
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Plaintiff with further sanctions if he did not “comply with her stipulations and regulations.”
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Plaintiff was the recipient of a UNICOR scholarship. Plaintiff successfully completed an
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electronics course. Plaintiff was ready to take the final examination and was awaiting the results of his
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final grades when communication with the university ended. Plaintiff attempted to obtain the final
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grades, and enlisted the help of his counselor. Plaintiff was advised by the university that they had
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complied by sending, on numerous occasions, the information requested.
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Upon further inquiries on the part of Plaintiff’s counselor, it was revealed that Defendant
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Morris intentionally intercepted and confiscated Plaintiff’s educational correspondence. The mail was
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withheld for over eight months, causing Plaintiff to miss his deadline for final exams for a course.
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B.
Parties Arguments
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Defendant first argues that when applying the framework for analysis set forth by the United
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States Supreme Court in Ziglar v. Abbasi, --- U.S. ---, 137 S. Ct. 1843 (2017), Plaintiff fails to state a
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cognizable Bivens First Amendment claim. Next, Defendant argues that the undisputed facts show
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that she only engaged in an isolated incident of referring non-legal mail for an investigation, and
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therefore did not violate Plaintiff’s constitutional rights. Further, Defendant argues that she is entitled
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to qualified immunity because her actions did not violate any clearly established First Amendment
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right.
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Defendant argues that the confiscation of his mail, even on a single incident, when done with
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no legitimate purpose, was sufficient to violate his rights. Here, there was no legitimate purpose to
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withhold Plaintiff’s mail, as it was educational mail. Plaintiff further argues that when Defendant
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turned over his mail for an investigation, it was returned the same day, and Defendant retained it for
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eight months without notifying Plaintiff or his counselor, which violated his rights.
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In reply, Defendant asserts that Plaintiff has no support for his argument that Defendant
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retained his mail for eight months. Regardless, Defendant relies upon her arguments in the motion
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that Plaintiff does not have a cognizable claim, that he cannot show a violation of his rights, and that
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she is entitled to qualified immunity.
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C
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The Court first addresses Defendant’s argument that Plaintiff does not state any cognizable
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Analysis
claim under the framework recently set forth by the United States Supreme Court in Ziglar.
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In Ziglar, the Supreme Court stated that “expanding the Bivens remedy is now a disfavored
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judicial activity,” and the Court has “consistently refused to extend Bivens to any new context or new
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category of defendants.” Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017) (citations omitted). The Court
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set forth a two-part test to determine whether a Bivens claim may proceed. The district court must
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first determine whether the claim presents a new context from previously established Bivens remedies.
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If so, the Court must then apply a “special factors” analysis to determine whether “special factors
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counsel hesitation” in expanding Bivens absent affirmative action by Congress. Id. at 1857, 1875.
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Thus, the Court first turns to whether Plaintiff’s claim for confiscation of and interference with his
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mail presents a new context from previously established Bivens remedies.
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“Since Bivens, the Supreme Court has recognized implied causes of action for damages against
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federal employees for only three types of constitutional violations: (1) police search and seizure in
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violation of the Fourth Amendment, see Bivens, 403 U.S. 388; (2) gender discrimination by a
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congressman in violation of the Fifth Amendment for an employee not covered by Title VII, see Davis
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v. Passman, 442 U.S. 228 (1978); and (3) deliberate indifference toward a prisoner in violation of the
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Eighth Amendment, see Carlson v. Green, 446 U.S. 14 (1980).” Adralan v. McHugh, No. 1:13-CV-
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01138-LHK, 2013 WL 6212710, at *10 (N.D. Cal. Nov. 27, 2013). In this case, Plaintiff’s claim for
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confiscation and interference with his mail under the First Amendment presents a new context in
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Bivens, and the Court must proceed to consideration of the special factors counseling against
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extension of Bivens in this context.
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If the claim presents a new context in Bivens, the Court must consider whether there are
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special factors counseling against extension of Bivens into the area. “[T]he inquiry must concentrate
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on whether the Judiciary is well suited, absent congressional action or instruction, to consider and
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weigh the costs and benefits of allowing a damages action to proceed.” Ziglar, 137 S. Ct. at 1857-58.
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The Court should assess the impact on governmental operations system-wise, including the burdens on
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government employees who are sued personally, as well as the projected costs and consequences to
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the government itself. Id. at 1858. In addition, “if there is an alternative remedial structure present in
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a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action.”
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Id.
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The Supreme Court has never implied a Bivens action under any clause of the First
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Amendment. See Reichie v. Howards, 566 U.S. 658 n.4 (2012) (“We have never held that Bivens
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extends to First Amendment claims.”); Ashcroft v. Iqbal, 556 U.S. at 675 (assuming without deciding
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that Bivens extended to First Amendment claim). In addition, the Supreme Court declined to extend
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Bivens to a First Amendment free speech claim relating to federal employment noting “that Congress
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is in a better position to decide” the issue. Bush v. Lucas, 462 U.S. 367, 390 (1983).
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Also, Plaintiff has alternative remedies available to him, including the Bureau of Prisons
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(“BOP”) administrative grievance process which Plaintiff utilized in this case. See Wilkie v. Robbins,
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551 U.S. 537, 550 (2007). see also Correctional Services Corp. v. Malesko, 534 U.S. 61, 69 (2001)
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(“So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers
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foreclosed judicial imposition of a new substantive liability.”) (citation omitted). In addition, the fact
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that Congress has not extended Bivens to claims under the First Amendment is itself a factor
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counseling hesitation. Ziglar, 137 S. Ct. at 1865.
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Further, in Howard v. Lackey, Case No. 7:16-CV-129-KKC, 2018 WL 1211113, at *3 (E. D.
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Ky. Mar. 7, 2018), the district court found that special factors counseled hesitation from implying a
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Bivens remedy in the context of a prisoner’s claim that prison personnel violated his constitutional
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rights by confiscating his mail. That district court held that implying a Bivens remedy in the context
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of a First Amendment claim for interference with mail was unwarranted because (1) the Supreme
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Court has never previously recognized a Bivens remedy under the First Amendment in any context;
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(2) the plaintiff had other avenues for relief for the violation he alleged, including through the BOP’s
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administrative remedy process; and (3) extending Bivens liability in the context alleged would impose
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substantial costs on the government and potentially increase the filing of frivolous prisoner lawsuits.
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Id. That district court reasoned that Congress, not the courts, was best suited to evaluate whether relief
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should be permitted in those circumstances. The Court finds the reasoning and analysis in Howard
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persuasive, and that the same factors discussed by that court counsel hesitation in extending a Bivens
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remedy to the claim that Plaintiff alleges in this case.
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For the foregoing reasons, the Court recommends declining to find an implied Bivens cause of
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action for First Amendment interference with and confiscation of mail. See, e.g., Free v. Peikar, 2018
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WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018) (noting that nationwide, district courts seem to agree
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that, post–Ziglar, prisoners have no right to bring a Bivens action for violation of the First
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Amendment). Therefore, the Court further recommends that summary judgment should be granted in
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favor of Defendant on Plaintiff’s claim based on the failure to state a cognizable claim. Finally, the
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Court declines to address Defendant’s remaining, alternative arguments.
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IV.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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Defendant’s motion for summary judgment, filed on November 30, 2017 (ECF No. 67)
be granted, because Plaintiff has failed to state a cognizable claim; and
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Judgment be entered in favor of Defendant.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days after
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being served with these Findings and Recommendations, the parties may file written objections with
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the Court.
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Recommendations.” The parties are advised that failure to file objections within the specified time
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may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
The document should be captioned “Objections to Magistrate Judge’s Findings and
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IT IS SO ORDERED.
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Dated:
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July 10, 2018
UNITED STATES MAGISTRATE JUDGE
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