McRae v. Lockett et al
Filing
85
ORDER granting 59 motion to dismiss in accord with the attached Order. All pending motions are denied as moot. The Clerk of Court is instructed to close the file. Signed by Judge William F. Jung on 5/30/2019. (SPM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
ANDRE MCRAE,
Plaintiff,
v.
Case No. 5:17-cv-299-Oc-02PRL
CHARLES LOCKETT, FNU SHIPPEE,
FNU HILL, FNU SIERRA, FNU KLONTZ,
FNU UPCHURCH, FNU ALEJANDRO,
FNU TAYLOR, and MICHAEL PINERO,
Defendants.
_____________________________________/
ORDER
In his second amended complaint, Plaintiff—a federal inmate proceeding pro
se—alleges that Defendants violated his rights under the First and Fifth Amendments.
Dkt. 21. Defendants filed a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Dkt. 59. Plaintiff has responded. Dkt. 84. Upon consideration, the Court
determines that Defendants’ motion to dismiss is due to be granted.
I.
BACKGROUND AND ALLEGATIONS OF PLAINTIFF’S
COMPLAINT 1
A.
Plaintiff’s Mail is Withheld
At all times relevant to this lawsuit, Plaintiff was incarcerated at United States
Penitentiary (“USP”) Coleman II. Dkt. 21 at 16. 2 In September 2015, Plaintiff filed
a lawsuit against prison officials at USP Tucson, where he had apparently previously
been incarcerated. Id. at 9. The next month, Defendants Shippee, Hill, Sierra, and
Klontz (the “S.I.S. Defendants”) 3 began withholding his personal and legal mail. Id.
Later, they began withholding his subscriptions to magazines and newspapers. Id.
When Plaintiff asked why his mail was being withheld, Defendants Sierra and Klontz
told Plaintiff he was not going to win his pending suit against prison officials. Id. at
10-11.
Defendants Upchurch and Alejandro are employed in the mailroom at USP
Coleman II. Id. at 9. They knew or reasonably should have known that the S.I.S
Defendants had neither cause nor justification for seizing Plaintiff’s incoming and
1
For purposes of ruling on Defendants’ Rule 12(b)(6) motion to dismiss, the Court accepts
as true the allegations of Plaintiff and applies the liberal pleading standard for pro se litigants.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
2
References to this document are to the page numbers assigned when the document was
filed in CM-ECF.
3
Plaintiff’s second amended complaint states that the “S.I.S. Defendants” began to withhold
his mail but does not specify which of the Defendants he considers to be “S.I.S. Defendants.” The
Court assumes that he is referring to Defendants Shippee, Hill, Sierra, and Klontz because,
elsewhere in the second amended complaint, Plaintiff identifies them as being affiliated with the
S.I.S. See Dkt. 21 at 3-4, 9. “S.I.S.” appears to refer to the Special Investigative Services
Department. Dkt. 21 at 12; Dkt. 59 at 2.
2
outgoing legal and personal mail. Id. They also knew that the S.I.S. Defendants were
not forwarding Plaintiff’s mail to him. Id. Despite this, they continued to give
Plaintiff’s mail to the S.I.S. Defendants. Id. Defendant Alejandro also began
opening Plaintiff’s legal mail outside Plaintiff’s presence. Id.
B.
Plaintiff Complains About Treatment of a Visitor
In February 2016, Tearesa Hunter visited Plaintiff at USP Coleman II. Id. at
11. During that visit, Correctional Officer Johnson (who is not a Defendant) copied
Ms. Hunter’s cellular telephone number from a visitation record maintained by the
Bureau of Prisons (“BOP”) without permission. Id. Officer Johnson then used the
information to contact Ms. Hunter on her cell phone. Id. During that call, Officer
Johnson disparaged Plaintiff and tried to set up a date with Ms. Hunter, who declined
Officer Johnson’s advances. Id.
Plaintiff filed an administrative grievance (BP-9) about the incident and
requested that Officer Johnson be reprimanded. Id. Plaintiff also complained to
Defendant Lockett (who is the warden of USP Coleman II) about Officer Johnson.
Id. About a week later, Defendant Shippee summoned Plaintiff and threatened to
have Plaintiff placed in “SHU/Segregation on Administrative segregation status” 4 if
4
Plaintiff does not explain what the SHU is, but he appears to be referring to a Special
Housing Unit created in accordance with 28 C.F.R. §§ 541.20-541.33. “Special Housing Units
(SHUs) are housing units in Bureau [of Prisons] institutions where inmates are securely separated
from the general inmate population, and may be housed either alone or with other inmates. Special
housing units help ensure the safety, security, and orderly operation of correctional facilities, and
protect the public, by providing alternative housing assignments for inmates removed from the
3
he did not withdraw the grievance. Id. In light of that threat, Plaintiff withdrew the
grievance. Id. at 12. Plaintiff also complained to Defendant Lockett about Defendant
Shippee’s threats and being forced to withdraw the grievance. Id.
C.
Visitors are Stricken from Plaintiff’s Visitor List
In March 2016 and January 2017, the S.I.S. Defendants struck visitors from
Plaintiff’s approved visitor list—including his fiancée and friends—for no reason. Id.
at 10. Defendant Pinero then refused to place the stricken visitors back on Plaintiff’s
visitor list. Id.
Specifically, a few weeks after Plaintiff complained to Defendant Lockett
about Defendant Shippee’s threat to put him in the SHU/Segregation, Viviana Vega
came to USP Coleman II to visit Plaintiff. Id. at 12. Prison staff refused her entry to
the visiting room. Id. Previously (in December 2015), prison officials had approved
Ms. Vega to visit Plaintiff. Id. Ms. Vega had been visiting Plaintiff on a weekly
basis without any difficulty. Id. Plaintiff complained to Defendant Lockett about
Ms. Vega’s having been turned away when she attempted to visit Plaintiff. Id.
Defendant Lockett then told Plaintiff that the S.I.S. Department had recommended
that Ms. Vega be removed from Plaintiff’s visitor list because she and Plaintiff had
general population.” 28 C.F.R. § 541.21. An inmate can be placed in the SHU on “administrative
detention status” when necessary to ensure the safety, security, and orderly operation of correctional
facilities or to protect the public. Id. § 521.22(a). An inmate can also be placed in the SHU on
“disciplinary segregation status,” which is a punitive status imposed by a Discipline Hearing Officer
as a sanction for committing prohibited acts. Id. § 521.22(b).
4
no relationship prior to his present incarceration. Id. At that time, Defendant
Lockett, S.I.S. Department personnel, and unit manager Defendant Pinero 5 knew or
reasonably should have known that the issue of a prior relationship between Plaintiff
and Ms. Vega had been “addressed, vetted, and approved” during the visitation
application process four or five months earlier. Id. A week later, Plaintiff learned
that Ms. Vega’s visitation privileges had been rescinded by Defendants Lockett and
Pinero. Id.
Between March and July 2016, Plaintiff filed an administrative grievance (BP9) at the institutional level concerning Ms. Vega’s removal from his visitor list. Id. at
12-13. When he received no response, he sent a BP-10 to the BOP regional office
and a BP-11 to the central office. Id. at 13. He did not receive a response to those
complaints, either. Id. Because he had not received any responses, he again applied
to have Ms. Vega placed on his visiting list in July 2016. Id. Plaintiff and Ms. Vega
continued to assert that they had a preexisting relationship, but prison officials—
including Defendants Lockett and Pinero—refused to accept their assertions unless
they could produce a picture of Plaintiff and Ms. Vega taken together before
Plaintiff’s incarceration (which began in 2004). Id.
5
Plaintiff sometimes spells this name “Pineiro” and sometimes spells it “Pinero.”
Defendants spell it as “Pinero,” so that is the spelling the Court adopts.
5
Plaintiff continued to complain about Ms. Vega’s removal from his visitor list
and the refusal to reinstate her to the list to Defendants Lockett and Pinero throughout
July and August 2016. Id. About six months later, in February 2017, Defendants
Lockett and Pinero caused Plaintiff’s fiancée—Ivette Piloto—to be removed from his
visitor list. Id. Again, they claimed that Plaintiff had no preexisting relationship with
Ms. Piloto, a reason that was pretextual. Id. Ms. Piloto had been visiting Plaintiff
since October 2015, at which time the issue of their preexisting relationship was
“addressed, vetted and approved” by Defendants Lockett and Pinero. Id. As they did
with Ms. Vega, Defendants required Plaintiff to produce a photograph of himself and
Ms. Piloto taken prior to his present incarceration (which began in 2004). Id.
Defendant Pinero knew or reasonably should have known that he was obligated
to put the visitors back on Plaintiff’s visitor list because he was the unit manager and
had initially approved the stricken visitors. Id. at 10. The removal of the visitors
from the list and the refusal to place them back on the list was done without cause or
justification and was done in retaliation for Plaintiff’s filing of the lawsuit against the
S.I.S. Department at USP Tucson. Id. Plaintiff contends that Defendants Lockett and
Pinero knew or reasonably should have known that BOP Program Statements and the
Code of Federal Regulations do not require a prisoner to bear the burden of
establishing the existence of a preexisting relationship with a prospective visitor by
providing a photograph. Id. at 14.
6
D.
Plaintiff is Placed in SHU/Segregation
Defendants also unjustifiably placed and kept Plaintiff in SHU/Segregation
from November 22, 2016 to the date of the second amended complaint “for no reason
without ‘any’ Incident Report, or Administrative Lock up order given to him . . . .”
Id. at 10. According to Defendants Hill and Shippee, Plaintiff was under
investigation for “some things,” but they never told Plaintiff what those things were.
Id. Later Defendant Shippee told Plaintiff that Plaintiff was not a “good fit” for USP
Coleman II and that Plaintiff was being transferred. Id.
E.
Plaintiff Complains to Defendants Lockett and Taylor
Throughout this period, Plaintiff informed Defendant Lockett and Defendant
Taylor (who is a captain) of their subordinates’ unjustifiable conduct. Id. at 10. He
also told them that he asked why his mail was being withheld and that Defendants
Sierra and Klontz responded by saying that he was not going to win his pending
lawsuit against prison officials. Id. at 10-11. Defendants Lockett and Taylor flatly
refused to take any action to correct their subordinates or to otherwise ensure that
Plaintiff received his mail, could visit with his visitors, or be released from
SHU/Segregation. Id. at 11.
F.
Plaintiff’s Second Amended Complaint
Based on these factual allegations, Plaintiff alleges that Defendants violated the
First and Fifth Amendments. Id. at 7, 15. He sues the various Defendants in their
7
individual capacities only. Id. at 5-6. He seeks $100,000 in compensatory damages,
$500,000 in punitive damages, costs and fees, and interest. Id. at 8. 6
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient
facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). When considering a Rule 12(b)(6) motion, the court
accepts all factual allegations of the complaint as true and construes them in the light
most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.
2008) (citation omitted). The Court may dismiss a cause of action when, “on the
basis of a dispositive issue of law, no construction of the factual allegations will
support the cause of action.” See Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas
Dist., 992 F.2d 1171, 1174 (11th Cir. 1993).
III.
DISCUSSION
Defendants move to dismiss Plaintiff’s claims arguing: (1) Plaintiff’s claims
are barred by the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. §
6
The second amended complaint also seeks injunctive relief and references the declaratory
judgment statutes (28 U.S.C. §§ 2201 and 2202). See Dkt. 21 at 8. But injunctive and declaratory
relief are not available because Plaintiff is no longer incarcerated at USP Coleman II and there is no
reason to think he will be confined there again under similar circumstances. See, e.g., Dkt. 43
(noting change of address to USP Terre Haute); Dkt. 66 (noting change of address to USP
Lewisburg); Dkt. 67 (discussing impending transfer to USP Lewisburg); Dkt. 82-1 at 3 (showing
that Plaintiff is currently assigned to USP Lewisburg). Therefore, any requests for injunctive and
declaratory relief are moot. See Smith v. Allen, 502 F.3d 1255, 1267 (11th Cir. 2007) (citations
omitted) (“The general rule in our circuit is that a transfer or a release of a prisoner from prison will
moot that prisoner’s claims for injunctive and declaratory relief.”), abrogated on other grounds by
Sossamon v. Texas, 563 U.S. 277 (2011).
8
1997e(e); and (2) Bivens does not create a damages remedy for Plaintiff’s claims.
The Court discusses each of these arguments separately.
A.
PLRA Requirement of Physical Injury or Sexual Act
First, the Court concludes that the PLRA bars Plaintiff’s claim for
compensatory damages to the extent those damages are intended to compensate for
mental or emotional injuries and that the PLRA also bars his claims for punitive
damages. The PLRA provides, in relevant part: “No Federal civil action may be
brought by a prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior showing of
physical injury or the commission of a sexual act (as defined in section 2246 of Title
18).” 42 U.S.C. § 1997e(e). Section 1997e(e) applies to claims for compensatory
and punitive damages, but it does not apply to claims for nominal damages. Brooks
v. Warden, 800 F.3d 1295, 1307-08 (11th Cir. 2015). Section 1997e(e) is an
affirmative defense, but a district court may dismiss a complaint when “its
allegations, on their face, show that an affirmative defense bars recovery on the
claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003).
Plaintiff was confined at USP Coleman II at the time of the events in the
second amended complaint (Dkt. 21 at 9), was confined at USP Coleman II at the
time he instituted this action (id. at 21), and is currently confined at USP Lewisburg
(Dkt. 82-1 at 3; Dkt. 84 at 1 (discussing current incarceration in a lockdown
9
facility/program at USP Lewisburg)). Thus, he cannot bring a federal civil action for
mental or emotional injury 7 without a prior showing of physical injury or the
commission of a sexual act. Plaintiff does not, however, allege any physical injuries
or predicate sexual acts within the meaning of the PLRA. See, e.g., Brooks, 800 F.3d
at 1307 (citations omitted) (PLRA requires more than de minimis physical injury); 18
U.S.C. § 2246(2) (defining “sexual act” under PLRA). Thus, Plaintiff’s claims for
punitive damages are barred, and his claims for compensatory damages are barred to
the extent they seek recovery for mental or emotional injuries.
B.
Existence of Bivens Remedy
Even if Plaintiff’s First and Fifth Amendment claims are not barred by the
PLRA (and to the extent that Plaintiff’s pro se second amended complaint can be
liberally construed as including a request for nominal or actual damages), they are
due to be dismissed because the First and Fifth Amendments do not imply a right of
action for damages in circumstances such as these. Plaintiff brings claims for
monetary damages against Defendants in their individual capacities for violations of
the federal Constitution. That is, he is attempting to bring a so-called “Bivens” claim.
7
The second amended complaint describes Plaintiff’s injuries as follows: “Loss of mail,
maintenance of familial relations, retaliation and interference with access to court.” Dkt. 21 at 8. In
the absence of any claimed physical injury or significant property damage, the Court assumes that
Plaintiff’s demand for $100,000 in compensatory damages includes damages for mental or
emotional injuries.
10
Dkt. 21 at 4. 8 In Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the United States Supreme Court recognized an
implied right of action for damages against federal officers for violations of the
Fourth Amendment. Since that time, however, the Court has extended the Bivens
remedy in only two other contexts: a Fifth Amendment equal protection claim for sex
discrimination in employment and an Eighth Amendment claim against federal prison
officials for failure to provide medical treatment. See Davis v. Passman, 442 U.S.
228, 248-49 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14, 19-23 (1980)
(Eighth Amendment). The Supreme Court has repeatedly refused to extend the
Bivens remedy in other contexts, including a claim for violation of the First
Amendment. See Bush v. Lucas, 462 U.S. 367, 390 (1983); see also Rager v.
Augustine, No. 5:15cv35/MW/EMT, 2017 WL 6627416, at *15 (N.D. Fla. Nov. 8,
2017) (“Rager I”) (collecting cases in which Supreme Court refused to create a
Bivens remedy), report and recommendation adopted by 2017 WL 6627784 (N.D.
Fla. Dec. 28, 2017), aff’d, 760 F. App’x 947 (11th Cir. 2019) (“Rager II”).
In Ziglar v. Abassi, __ U.S. __, 137 S. Ct. 1843 (2017), the Supreme Court
recently clarified how courts should proceed when asked to recognize a Bivens
remedy. The Court emphasized that it has consistently refused to extend Bivens to
8
Plaintiff’s second amended complaint also mentions some other federal statutes. Dkt. 21 at
8. Two of them (28 U.S.C. §§ 1361 and 1651) are not relevant. The third and fourth (28 U.S.C. §§
2201 and 2202) relate to declaratory judgments, but as discussed, supra, any claims for declaratory
relief are moot.
11
any new context and that expanding the Bivens remedy is “now a ‘disfavored’
judicial activity.” Id. at 1857 (internal quotation marks and citation omitted). It
explained that expanding the Bivens remedy implicates separation-of-powers
concerns and that, in most cases, Congress should decide whether to provide a
remedy. Id. Thus, when confronted with a Bivens claim, a court must first ask
whether the claim arises in a new Bivens context–that is, whether the case is different
in a meaningful way from previous Bivens cases decided by the Supreme Court. Id.
at 1859. A case might present a novel Bivens context
because of the rank of the officers involved; the constitutional right at
issue; the generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the problem . . .
to be confronted; the statutory or other legal mandate under which the
officer was operating; the risk of disruptive intrusion by the Judiciary
into the functioning of other branches; or the presence of other potential
special factors that previous Bivens cases did not consider.
Id. at 1860.
If the case presents a novel Bivens context, the court must determine whether
there are “special factors counselling hesitation.” Id. at 1857 (internal quotation
marks and citation omitted). The Supreme Court has not defined the phrase, but the
inquiry must concentrate on whether the judiciary is well suited, absent action from
Congress, “to consider and weigh the costs and benefits of allowing a damages action
to proceed.” Id. at 1857-58. To be a “special factor counselling hesitation,” a factor
“must cause a court to hesitate before answering that question in the affirmative.”
12
Id. at 1858. If there is an alternative remedial structure, that alone may prevent
extending the Bivens remedy. Id. In general, “if there are sound reasons to think
Congress might doubt the efficacy of a damages remedy as part of the system for
enforcing the law and correcting a wrong,” the courts must refrain from extending the
Bivens remedy. Id. In making this assessment, the court should consider “the
burdens on Government employees who are sued personally, as well as the projected
costs and consequences to the Government itself . . . .” Id. The court should also
consider whether Congress “has designed its regulatory authority in a guarded way,
making it less likely that Congress would want the judiciary to interfere.” Id.
Upon consideration, the Court concludes that Plaintiff’s First and Fifth
Amendment claims present a new Bivens context. The essence of Plaintiff’s claims is
that Defendants retaliated against him for filing a lawsuit against officials at USP
Tucson and then continued retaliating against him when he complained by
intercepting his mail, limiting his visitors, and placing him in the SHU. The Supreme
Court has never recognized a Bivens remedy for violations of the First Amendment.
Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that Bivens
extends to First Amendment claims.”). Moreover, the facts of Plaintiff’s claims
differ from the unreasonable search and seizure claim at issue in Bivens, the gender
discrimination claim in Davis, and the deliberate medical indifference claim in
Carlson. Thus, this case presents a new Bivens context. See, e.g., Rager I, 2017 WL
13
6627416, at *17 (finding that plaintiff's claim that defendants violated the First
Amendment by retaliating against him for filing internal grievances presented a new
Bivens context), report and recommendation adopted by 2017 WL 6622784; Harris
v. Dunbar, No. 2:17-cv-00536-WTL-DLP, 2018 WL 3574736, at *1-3 (S.D. Ind. July
25, 2018) (finding that plaintiff’s First and Fifth Amendment claims for special
confinement in the Communications Management Unit and interference with mail
present new Bivens context).
The next issue is whether special factors counsel hesitation in extending the
Bivens remedy, including the existence of alternative remedies. Here, it appears that
Plaintiff had alternative remedies available to him. Specifically, Plaintiff could have
filed a civil rights action seeking injunctive relief enjoining the allegedly
unconstitutional conduct. See Rager I, 2017 WL 6627416 at *18 (declining to extend
Bivens remedy for First Amendment retaliation claim in part because plaintiff could
have pursued alternative remedy of injunctive relief), report and recommendation
adopted by 2017 WL 6622784. 1
1
The Court recognizes that Plaintiff claims that several of his official grievances were
ignored and that Defendant Shippee essentially forced him to withdraw another grievance. These
facts do not, however, change the conclusion that Plaintiff had alternative remedies available to
him. This is because the Eleventh Circuit has held that retaliation or threats of retaliation may make
administrative remedies unavailable to an inmate for purposes of exhaustion purposes, thus
permitting him to proceed with a civil rights action. Rager I, 2017 WL 6627416, at *18, report and
recommendation adopted by 2017 WL 6622784 (citing Turner v. Burnside, 541 F.3d 1077, 1084-85
(11th Cir. 2008); Bryant v. Rich, 530 F.3d 1368, 1373 n.6 (11th Cir. 2008)). Likewise, if a prison’s
14
But even if Plaintiff did not have alternative remedies available to him, the
Court concludes that other special factors counsel hesitation. First, “legislative action
suggesting that Congress does not want a damages remedy is itself a factor
counseling hesitation.” Abassi, 137 S. Ct. at 1865. This case presents such a
situation where legislative action suggests that Congress does not want a damages
remedy. As noted by the Supreme Court in Abassi:
Some 15 years after Carlson [v. Green] was decided, Congress passed
the [PLRA], which made comprehensive changes to the way prisoner
abuse claims must be brought in federal court. So it seems clear that
Congress had specific occasion to consider the matter of prisoner abuse
and to consider the proper way to remedy those wrongs. This Court has
said in dicta that the Act’s exhaustion requirements would apply to
Bivens suits. But the Act itself does not provide for a standalone
damages remedy against federal jailers. It could be argued that this
suggests Congress chose not to extend the Carlson damages remedy to
cases involving other types of prisoner mistreatment.
Id. (internal citations omitted). While Congress’s failure to create a damages remedy
is not definitive, the fact remains that Congress has been active in the area of
prisoners’ rights and has not created a damages remedy. This is enough to “cause
[the Court] to hesitate” and cuts against extending the Bivens remedy to Plaintiff's
case. See, e.g., Rager I, 2017 WL 6627416, at *18-19 (refusing to extend Bivens
remedy to First Amendment retaliation claim in part because PLRA does not provide
for standalone damages remedy), report and recommendation adopted by 2017 WL
grievance system is effectively a “dead end,” an inmate is not required to exhaust administrative
remedies before filing suit. See Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1858-60 (2016).
15
6622784; Harris, 2018 WL 3574736, at *3 (refusing to extend Bivens remedy to First
and Fifth Amendment claims based on interference with mail and confinement to
Communications Management Unit in part because PLRA does not provide for
standalone damages remedy).
In addition, the particular nature of Plaintiff’s claims also counsel hesitation.
As noted above, Plaintiff claims that Defendants retaliated against him after he filed a
federal lawsuit and continued taking adverse action against him after he complained
about the alleged retaliation by interfering with his mail, limiting his visitors, and
placing him in the SHU, thereby violating the First and Fifth Amendments. 9
Retaliation claims implicate a defendant’s state of mind, which is rarely susceptible
of concrete proof. As a result, retaliation claims are “easily fabricated.” Bistrian v.
Levi, 912 F.3d 79, 96 (11th Cir. 2018). By its nature, life in a federal prison can be
harsh. Recognizing a Bivens remedy for retaliation claims like those in the second
amended complaint could lead to the unwanted result of inmates filing lawsuits and
9
In the section of the second amended complaint describing the injuries alleged in the suit,
Plaintiff mentions “interference with access to court” as an injury. Dkt. 21 at 8. This conclusory
statement is not supported by any facts and need not be accepted by the Court. To the extent this
reference to interference with court access constitutes a claim that Plaintiff was deprived of access
to the prison’s grievance program, such a claim is due to be dismissed for the same reasons as
Plaintiff’s other claims. In addition, prisoners do not have a constitutionally protected liberty
interest in an inmate grievance process. See, e.g., Dunn v. Martin, 178 F. App’x 876, 878 (11th Cir.
2006) (cited as persuasive authority); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)
(collecting cases). While prisoners have a constitutional right to seek redress of government
grievances, it is the right of access to the courts. Massey, 259 F.3d at 647 (citation omitted). And
the right of access to the courts was not compromised here because Plaintiff was able to timely file
this lawsuit and present his case. See, e.g., Rager I, 2017 WL 6627416, at *23, report and
recommendation adopted by 2017 WL 6627784.
16
grievances against correctional officers and then claiming that any negative action
that followed was a result of retaliatory animus. Andrews v. Miner, 301 F. Supp. 3d
1128, 1135 (N.D. Ala. 2017). The costs of such actions would be high. Id.; see also
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (noting that because of “the near
inevitability of decisions and actions by prison officials to which prisoners will take
exception and the ease with which claims of retaliation may be fabricated,” a
prisoner’s retaliation claim should be evaluated “with skepticism and particular
care”).
In addition, all of the alleged wrongs in this case implicate classic matters of
prison administration—monitoring mail, determining who may visit prisoners, and
deciding who should be placed in the SHU. As it relates to a claim of punitive
detention in the SHU, the court in Bistrian identified another special factor
counseling hesitation: “Whether to place an inmate in more restrictive detention
involves real-time and often difficult judgment calls about disciplining inmates,
maintaining order, and promoting prison officials’ safety and security.” Bistrian, 912
F.3d at 96. A similar logic applies to Plaintiff’s claims that Defendants interfered
with his mail and improperly restricted his visitors. See, e.g., Alexander v. Ortiz, No.
15-6981 (JBS-AMD), 2018 WL 1399302, at *7 (D.N.J. Mar. 20, 2018) (stating, in
the context of a putative Bivens claim by an inmate-employee, “The Supreme Court
has previously stated that ‘courts are ill equipped to deal with the increasingly urgent
17
problems of prison administration and reform . . . . Running a prison is an
inordinately difficult undertaking that requires expertise, planning, and the
commitment of resources, all of which are peculiarly within the province of the
legislative and executive branches of government . . . . Prison administration is,
moreover, a task that has been committed to the responsibility of those branches, and
separation of powers concerns counsel a policy of judicial restraint.’” (quoting Turner
v. Safley, 482 U.S. 78, 84–85 (1987))).
Finally, with respect to Plaintiff’s First Amendment claims, the Court notes
that, since Abassi, the majority of courts have declined to extend the Bivens remedy
to First Amendment claims like Plaintiff’s. See Atkinson v. Broe, No. 15-cv-386WMC, 2019 WL 231754, at *5 (W.D. Wis. Jan. 16, 2019) (collecting cases declining
to extend the Bivens remedy to First Amendment claims in the prison context); see
also Rager II, 760 F. App’x at 953 (“[I]t is by no means clear that a damages remedy
is warranted for a First Amendment retaliation claim like this one.”). On the facts of
this case, the Court agrees that it is not appropriate to extend the Bivens remedy to
Plaintiff’s First and Fifth Amendment claims.
In his response, Plaintiff admits that Abassi controls this case but disagrees
with its analysis. 10 See generally Dkt. 84. This Court is, of course, bound by the
10
For example, Plaintiff recognizes that his claims present a new Bivens context under the
rationale of Abassi but suggests that the Court should look to district court and court of appeals
decisions when deciding whether a claim presents a new Bivens context. Dkt. 84 at 8-9. Abassi,
however, instructed lower courts to consider whether the case is different in a meaningful way from
18
Supreme Court’s decision in Abassi, and Plaintiff’s claims fail under the analytical
framework set forth in Abassi. This is a flaw that cannot be remedied by amendment.
Thus, Defendants’ motion to dismiss those claims is granted.
IV.
CONCLUSION
For the reasons stated above, Defendants’ motion to dismiss (Dkt. 59) is
granted. Because amendment would be futile, Plaintiff’s second amended complaint
(Dkt. 21) is dismissed with prejudice. Any pending motions are denied as moot. The
Clerk of Court is instructed to close the file.
DONE AND ORDERED at Tampa, Florida, on May 30, 2019.
/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO:
Counsel of Record
Plaintiff, pro se
previous Bivens cases decided by the Supreme Court. 137 S. Ct. at 1859. The Court may not
disregard that direction.
19
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