Debenedetto v. Salas et al
Filing
239
MEMORANDUM Opinion and Order. Signed by the Honorable Andrea R. Wood on 9/29/2023. Mailed notice (lma, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY DEBENEDETTO,
Plaintiff,
v.
ANTONIO SALAS et al.,
Defendants.
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No. 13-cv-07604
Judge Andrea R. Wood
MEMORANDUM OPINION AND ORDER
Plaintiff Gary DeBenedetto, a former federal pretrial detainee at the Metropolitan
Correctional Center (“MCC”) in Chicago, Illinois, has brought the present action for damages
against Defendants Antonio Salas, Patrick Barber, and Herman Hoover—correctional officers at
the MCC—pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971). DeBenedetto alleges violations of his rights under the Fifth Amendment
and Eighth Amendment to the United States Constitution. Now before the Court is Defendants’
motion to dismiss all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6).
(Dkt. No. 210). For the following reasons, Defendants’ motion is granted.
BACKGROUND
For purposes of Defendants’ motion to dismiss, the Court accepts all well-pleaded facts
in the Sixth Amended Complaint (“6AC”) as true and views those facts in the light most
favorable to DeBenedetto as the nonmoving party. Killingsworth v. HSBC Bank Nev., N.A., 507
F.3d 614, 618 (7th Cir. 2007). The 6AC alleges as follows.
On April 11, 2012, DeBenedetto was arrested for transmitting threatening
communications to various individuals. (6AC ¶ 9, Dkt. No. 209.)1 DeBenedetto was originally
detained in the special housing unit (“SHU”) at the Federal Correctional Institution, Milan (“FCI
Milan”) in Michigan; there, he experienced significant mental health issues and his
psychological condition deteriorated. (Id. ¶¶ 12–15.) While at FCI Milan, DeBenedetto was also
prescribed antidepressant and antipsychotic medications. (Id. ¶ 16.) On July 16, 2012,
DeBenedetto was transferred to the MCC. (Id. ¶ 17.)
Upon his arrival at the MCC, DeBenedetto remained on a “Psych Alert.” (Id. ¶ 19.)
DeBenedetto’s records, which were in the custody of MCC officials, stated that DeBenedetto had
been diagnosed with schizophrenia, had exhibited symptoms of schizophrenia such as mania and
delusions while at FCI Milan, had been prescribed antidepressant and antipsychotic medications,
and had been identified as requiring additional screening to determine if he posed an imminent
suicide risk. (Id. ¶¶ 19, 21–28.) Thus, Salas, who was Captain of Correctional Services at the
MCC and the official responsible for assigning inmates to either general population or the SHU,
was aware of the information in DeBenedetto’s records. (Id. ¶¶ 6, 22–29.) On July 19, 2012,
DeBenedetto had an altercation with a correctional officer, where he joked that he would climb
over a railing and jump to the unit’s main floor; after making this statement, he then moved
toward the railing. (Id. ¶ 31.) As a result, MCC officials placed DeBenedetto in solitary
confinement in the SHU, despite knowing about his mental health problems. (Id. ¶¶ 32–33.)
MCC officials also failed to renew the prescriptions for his medications. (Id. ¶ 34.)
1
The criminal charges against DeBenedetto relating to the April 2012 arrest were eventually dismissed on
August 13, 2014. (6AC ¶ 10.)
2
From July 19, 2012 to January 7, 2013, DeBenedetto remained in solitary confinement at
the MCC, but without regular reviews of his placement in the SHU. (Id. ¶ 37.) On January 8,
2013, DeBenedetto was transferred to Federal Medical Center, Butner (“FMC Butner”) in North
Carolina, where he stayed until his transfer back to the MCC on June 3, 2013. (Id. ¶¶ 39–40.)
Although DeBenedetto was not held in solitary confinement while at FMC Butner, MCC
officials—namely, Salas—immediately reassigned him to the SHU. (Id. ¶¶ 40, 43, 46.) He
remained in solitary confinement until he left the MCC in July 2014, time totaling more than 600
days in solitary confinement over the course of his two stays at MCC. (Id. ¶ 41.) During both
stays, Defendants never conducted regular reviews of DeBenedetto’s placement in the SHU nor
did they attempt to find him more suitable housing arrangements. (Id. ¶¶ 38, 42, 66.) While in
solitary confinement, DeBenedetto had less communication privileges than other inmates, had a
less sanitary cell than other inmates, had almost no access to exercise or physical activity, could
not shower or shave for months at a time, was deprived of a mattress and blanket for twenty
days, and suffered a broken toe after Barber stomped on it. (Id. ¶¶ 69–75, 77–78, 80.)
Due to his prolonged solitary confinement, DeBenedetto’s mental health rapidly declined,
leading him, among other things, to refuse court appearances. (Id. ¶¶ 47, 54, 64.) Indeed, in
October 2012, an MCC psychologist reported that DeBenedetto was not competent to stand trial,
that he suffered from a schizoaffective disorder, and that he displayed several symptoms of
mental illness, including paranoia, agitation, destructive behavior, and struggling to follow
conversations. (Id. ¶ 57.) Further, in a November 2013 memorandum, MCC officials
acknowledged that solitary confinement was negatively impacting DeBenedetto and that MCC
lacked the ability to provide him with the necessary and appropriate treatments. (Id. ¶ 67.)
Eventually, in July 2014, DeBenedetto was transferred back to FMC Butner, where he remained
3
until his transfer to Federal Medical Center, Rochester in Minnesota in September 2016. (Id.
¶¶ 83, 85.) At both facilities, DeBenedetto’s mental health improved because of his greater
access to medical professionals and psychiatric care. (Id. ¶¶ 84–86.)
In the present suit, DeBenedetto alleges that Defendants’ actions during his two stays at
the MCC violated his Eighth Amendment and Fifth Amendment rights. He asserts the following
claims: (1) Defendants violated the Eighth and Fifth Amendments by subjecting DeBenedetto to
prolonged solitary confinement despite their knowledge of his serious mental illness and that the
confinement exacerbated his mental health issues (Counts I, II, III, VII, VIII, and IX); (2) Barber
used excessive force against DeBenedetto, in violation of the Eighth Amendment, when he broke
DeBenedetto’s toe by stomping on it (Count II); (3) Defendants violated the Fifth Amendment
by failing to conduct routine status reviews of DeBenedetto’s continuous assignment to the SHU
(Counts IV, V, and VI); (4) Hoover, in violation of the Eighth and Fifth Amendments, denied
DeBenedetto basic hygiene and recreational activities (Counts III and IX); (5) and Salas and
Barber, in violation of the Eighth and Fifth Amendments, deprived DeBenedetto of a mattress
and blanket for twenty days (Counts I, II, VII, and VIII).
This case has an extensive procedural history. DeBenedetto filed his original complaint
pro se in October 2013. (Dkt. No. 1.) He then filed his First, Second, and Third Amended
Complaints in November 2013 and January 2014. (Dkt. Nos. 4, 8, 12.) After the Court granted
DeBenedetto leave to proceed in forma pauperis and recruited counsel to represent him in March
2014 (Dkt. No. 14), DeBenedetto then had a series of recruited pro bono counsel—each of whom
withdrew for various reasons over the next four years. (Dkt. Nos. 32, 51, 59, 71). In September
2018, the Court recruited DeBenedetto’s current counsel; they subsequently filed DeBenedetto’s
Fourth and Fifth Amended Complaints in December 2018 and April 2019, respectively. (Dkt.
4
Nos. 71, 73, 85.) In June 2020, the Court denied Defendants’ motions to dismiss the Fifth
Amended Complaint, or in the alternative, for summary judgment based on DeBenedetto’s
failure to exhaust his administrative remedies. (Dkt. No. 144.) After conducting an evidentiary
hearing pursuant to Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008), in April 2022, the Court
denied Defendants’ request to dismiss the suit for DeBenedetto’s purported failure to exhaust
administrative remedies. (4/29/22 Mem. Op., Dkt. No. 181.)
Next, DeBenedetto sought for leave to file a sixth amended complaint. (Dkt. No. 188.) In
October 2022, the Court granted in part and denied in part DeBenedetto’s motion. (10/12/22
Minute Entry, Dkt. No. 208.) Specifically, the Court denied DeBenedetto’s request to add a new
Federal Torts Claims Act (“FTCA”) claim against the United States, due to DeBenedetto’s
failure to exhaust his administrative remedies for that claim. (Id.) However, the Court granted
DeBenedetto’s request to add allegations to his Fifth Amendment due process claim against
Salas. (Id.) DeBenedetto subsequently filed the 6AC (Dkt. No. 209), which is now the operative
complaint and the subject of Defendants’ current motion.
DISCUSSION
To survive a Rule 12(b)(6) motion, “a complaint 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
pleading standard does not necessarily require a complaint to contain detailed factual
allegations. Twombly, 550 U.S. at 555. Rather, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Adams v. City of Indianapolis, 742 F.3d 720, 728
(7th Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Although the Court accepts the plaintiff’s wellpleaded factual allegations as true, conclusory allegations will not be sufficient to avoid
5
dismissal. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”).
Here, Defendants argue that the 6AC must be dismissed for two reasons. First,
Defendants contend that the Bivens remedy is unavailable for DeBenedetto’s claims. Second,
Defendants assert that qualified immunity protects them from DeBenedetto’s suit.
I.
Availability of Bivens Remedy
The Court first addresses Defendants’ Bivens argument.
In 1871, Congress enacted a statute—now codified as 42 U.S.C. § 1983—that authorized
individuals to pursue actions for monetary damages against state officials who violated their
constitutional rights. Ziglar v. Abbasi, 582 U.S. 120, 130 (2017). Yet Congress has not yet
enacted a similar statute enabling individuals to seek damages against federal officials for their
unconstitutional conduct. Id. Nonetheless, the Supreme Court on three occasions has recognized
an implied cause of action for damages against federal officials who have violated a person’s
constitutional rights, including: (1) a Fourth Amendment claim against federal agents for an
unreasonable search, arrest, and use of force during a warrantless arrest in a person’s home,
Bivens, 403 U.S. at 389–90, 397; (2) a Fifth Amendment sex discrimination claim against a
congressman for firing his female staffer, Davis v. Passman, 442 U.S. 228, 234 (1979); and (3)
an Eighth Amendment claim against prison officials for failing to provide a prisoner with
adequate medical treatment, Carlson v. Green, 446 U.S. 14, 16–17 (1980). Since then, the
Supreme Court has appeared to shift course with respect to recognizing implied causes of action,
now characterizing the expansion of the Bivens remedy as a “disfavored judicial activity.”
Hernandez v. Mesa, 140 S. Ct. 735, 741–42 (2020) (internal quotation marks and citation
omitted); see also Cohen v. United States, No. 21-CV-10774, 2022 WL 16925984, at *9–10
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(S.D.N.Y. Nov. 14, 2022) (criticizing the Supreme Court’s recent reluctance to imply a damages
remedy for constitutionally guaranteed rights).
To determine whether a Bivens remedy is available, courts must engage in a two-step
inquiry. Egbert v. Boule, 142 S. Ct. 1793, 1804 (2022); Hernandez, 140 S. Ct. at 743; Ziglar, 582
U.S. at 139–40. First, a court asks if the claim “presents a new Bivens context,” meaning that the
case is “meaningfully different from the three cases in which the [Supreme] Court has implied a
damages action.” Egbert, 142 S. Ct. at 1804 (internal quotation marks and citation omitted). A
non-exhaustive list of meaningful differences from the prior Bivens cases include:
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 or emergency 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 potential special
factors that previous Bivens cases did not consider.
Ziglar, 582 U.S. at 139–40. A new category of defendants is also a meaningful difference.
Hernandez, 140 S. Ct. at 743. In short, a difference is meaningful if “it involves a factual
distinction or new legal issue that might alter the policy balance that initially justified the implied
damages remedies in the Bivens trilogy.” Snowden v. Henning, 72 F.4th 237, 239 (7th Cir.
2023).2
2
After the present motion was fully briefed, the Seventh Circuit issued its decision in Snowden on June
27, 2023. In Snowden, the Seventh Circuit “survey[ed] the evolving Bivens landscape” in the wake of the
Supreme Court’s decision in Egbert. 72 F.4th at 239. And it reversed a district court ruling where the
lower court had dismissed an arrestee’s excessive force claim against a federal narcotics officer under
Bivens due to the lower court’s conclusion that the claim presented a new context and that special factors
counseled against the extension of a Bivens remedy. Id. at 239, 247. Ultimately, the Seventh Circuit held
that the arrestee’s excessive force claim did not arise in a new context from Bivens. Id. at 239, 245–46.
Moreover, the Seventh Circuit emphasized that “[w]hile the Supreme Court has strictly limited the reach
of Bivens, it has left the door open for at least some claims to proceed—provided, however, that the claim
is not meaningfully different from” the three cases in which the Supreme Court has recognized an implied
damages remedy. Id. In light of Snowden, this Court granted the parties leave to file supplemental
submissions regarding Defendants’ motion to dismiss. (Dkt. No. 230.)
7
If a claim arises in a new context, a court then asks whether “there are special factors
indicating that the Judiciary is at least arguably less equipped than Congress to weigh the costs
and benefits of allowing a damages action to proceed.” Egbert, 142 S. Ct. at 1804 (internal
quotation marks and citation omitted). Separation-of-powers concerns are especially important
here. See Snowden, 72 F.4th at 244. For instance, Congress’s or the Executive Branch’s creation
of alternative remedial processes for an aggrieved party to vindicate his rights, or legislative
action indicating that Congress did not want to create a damages remedy, are such special
factors. See Ziglar, 582 U.S. at 137, 148. “If there is even a single ‘reason to pause before
applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Snowden, 72
F.4th at 242 (quoting Egbert, 142 S. Ct. at 1803). At bottom, this two-step framework “often
resolve[s] to a single question: whether there is any reason to think that Congress might be better
equipped to create a damages remedy.” Egbert, 142 S. Ct. at 1804. But cf. Snowden, 72 F.4th at
245 (noting that despite the Supreme Court’s recent suggestion that the two-step framework
comes down to a single question, Bivens “remains good law”).3
A.
New Context
Here, DeBenedetto alleges that Defendants violated his Fifth Amendment and Eighth
Amendment rights. DeBenedetto asserts what the Court interprets as claims for unconstitutional
DeBenedetto primarily argues that Egbert, Hernandez, and Ziglar should not apply because the
decisions were issued after the events of this case occurred and after he first filed his original complaint in
2013. But while retroactivity is generally disfavored in the law, “[t]he presumption against retroactive
application of legal rules is reversed, however, in the special case where a court furnishes the new rule.”
Velasquez-Garcia v. Holder, 760 F.3d 571, 579 (7th Cir. 2014) (citation omitted). Specifically, whenever
“the Supreme Court applies a rule of federal law to the parties before it, that rule is the controlling
interpretation of federal law and must be given full retroactive effect in all cases still open on direct
review and as to all events, regardless of whether such events predate” the rule’s announcement. Lund v.
City of Rockford, 956 F.3d 938, 944 (7th Cir. 2020) (quoting Harper v. Va. Dep’t of Tax’n, 509 U.S. 86,
97 (1993)). As a result, DeBenedetto’s argument is unavailing.
3
8
conditions of confinement and excessive force under the Fifth Amendment.4 Specifically,
DeBenedetto alleges that Defendants kept him in prolonged solitary confinement despite being
aware of his severe mental illness and the deterioration of his mental health while in the SHU,
that Hoover denied him access to basic hygiene and recreational activities, that Salas and Barber
deprived him of a mattress and blanket for twenty days, and that Barber broke his toe by
stomping on it. (6AC ¶¶ 2, 71, 74, 77–80, 94–109, 138–49.) Second, DeBenedetto raises a
procedural due process claim under the Fifth Amendment, alleging that Defendants subjected
him to prolonged solitary confinement without the regular thirty-day status reviews required by
regulations. (See id. ¶¶ 110–37.)
The Court finds that these claims present a new context from prior Bivens cases.
Although Davis also involved a Fifth Amendment claim, that case related to allegations of sex
discrimination in employment—not a pretrial detainee’s allegations of unlawful conditions of
confinement, excessive force by prison officials, or denial of required status reviews of
placement in solitary confinement. See Davis, 442 U.S. at 231, 234–36. Indeed, “[a] claim may
arise in a new context even if it is based on the same constitutional provision as a claim in a case
in which a damages remedy was previously recognized.” Hernandez, 140 S. Ct. at 743.
4
In the 6AC, DeBenedetto raises claims relating to his alleged conditions of confinement and Barber’s
alleged use of excessive force under both the Eighth and Fifth Amendments. While Defendants fail to
raise this point, the Court recognizes that the Fifth Amendment’s Due Process Clause, not the Eighth
Amendment, provides the proper constitutional standard for federal pretrial detainees. See Sides v. City of
Champaign, 496 F.3d 820, 828 (7th Cir. 2007) (“[The Eighth Amendment] does not apply until a suspect
has been convicted. The governing standard at the time of arrest is the Fourth Amendment’s ban on
unreasonable seizures … Between arrest and conviction the Due Process Clause of the Fifth Amendment
supplies the standard.”); see also Kingsley v. Hendrickson, 576 U.S. 389, 400 (2015) (“[P]retrial detainees
(unlike convicted prisoners) cannot be punished at all, much less ‘maliciously and sadistically.’”). As
such, the Court construes DeBenedetto’s claims as arising under the Fifth Amendment. See Stennis v.
Armstrong, No. 18 CV 7846, 2023 WL 1319561, at *6 n.19 (N.D. Ill. Jan. 31, 2023) (refashioning the
plaintiff’s claim for inadequate medical care as a Fifth Amendment claim, rather than both a Fifth
Amendment and Eighth Amendment claim, because she was arrested pursuant to a warrant).
9
Additionally, Bivens and Carlson are not analogous to the present circumstances as those
cases dealt with alleged violations of the Fourth and Eighth Amendments, which are different
constitutional rights than the one implicated here. See Bivens, 403 U.S. at 397; Carlson, 446 U.S.
at 16–17; cf. Stennis v. Armstrong, No. 18 CV 7846, 2023 WL 1319561, at *6 (N.D. Ill. Jan. 31,
2023) (concluding that a pretrial detainee’s claim for inadequate medical care under the Fifth
Amendment arose in a new context because it involved a different constitutional right—
specifically, the claim in Carlson was based on a prisoner’s right to be free from cruel and
unusual punishment under the Eighth Amendment and the claim in Davis concerned sex
discrimination under the Fifth Amendment Due Process clause); Gonzalez-Loza v. County of
Kankakee, No. 19 C 3046, 2021 WL 5823512, at *3 (N.D. Ill. Dec. 8, 2021) (holding that a
pretrial detainee’s claim for excessive force under the Fifth Amendment differed factually from
Davis and implicated a different constitutional right than in Bivens and Carlson).
Even assuming that the Eighth Amendment governs DeBenedetto’s claims for excessive
force and unconstitutional conditions of confinement, Supreme Court precedent would still
compel this Court to reach the same conclusion because of factual differences between Carlson
and the present case. As the Supreme Court has emphasized, “even a modest extension is still an
extension” for purposes of the new-context inquiry. Ziglar, 582 U.S. at 147. In Carlson, the
plaintiff asserted a claim for deliberate indifference to a serious medical condition under the
Eighth Amendment, alleging that prison officials failed to give a prisoner, who was suffering
from a severe asthma attack, adequate medical attention. 446 U.S. at 16 n.1. Here, by contrast,
DeBenedetto alleges that prison officials used excessive force against him, prison officials
deprived him of hygiene and recreational activities, prison officials denied him a mattress and
blanket, and prison officials kept him in solitary confinement although they knew of his severe
10
mental illness and that solitary confinement exacerbated those issues. These are meaningful
factual differences. Cf. Sebolt v. Tyndall, No. 19-cv-00429-JPH-DLP, 2021 WL 4948959, at *3
(S.D. Ind. Oct. 25, 2021) (determining that a prisoner’s claim alleging unconstitutional
conditions of confinement, specifically prison officials’ failure to provide him with an
appropriate mattress, presented a new context from the inadequate medical care claim in
Carlson); Mendoza v. Edge, 615 F. Supp. 3d 163, 170–71 (E.D.N.Y. 2022) (concluding that a
prisoner’s claim that prison officials subjected him to brutal conditions in the SHU, including
denying him telephone and visitation privileges and access to the commissary, arose in a new
context); Ajaj v. Fozzard, No. 14-CV-01245-JPG, 2023 WL 2989654, at *4 (S.D. Ill. Apr. 18,
2023) (finding that a prisoner’s excessive force claim under the Eighth Amendment presented a
new context).
While DeBenedetto’s allegation about prolonged solitary confinement might be
construed as an attempt to raise a claim for deliberate indifference to serious mental health
problems, which is somewhat similar to Carlson, the claim still presents a new context because
DeBenedetto does not allege that the conditions of his solitary confinement caused him to
receive inadequate medical care or that he was denied medical treatment. See Cohen, 2022 WL
16925984, at *7 (finding that a prisoner’s Eighth Amendment claim—alleging that prison
officials placed him in dangerous solitary confinement conditions that posed serious health
risks—presented a new context from Carlson since the “mechanism of injury” was the
conditions of confinement rather than deliberate indifference to medical needs); see also Ziglar,
582 U.S. at 146–49 (finding that a pretrial detainee’s claim against a prison warden for deliberate
indifference to abuse by prison guards arose in a new context from the prisoner’s claim for
deliberate indifference to serious medical needs in Carlson).
11
Similarly, even if DeBenedetto’s excessive force claim implicated the Fourth
Amendment, the claim still presents a new context from Bivens. Notably, the present case
involves a different type of officer with a different law-enforcement mandate than the federal
narcotics officers enforcing federal drug laws in Bivens. Cf. Snowden, 72 F.4th at 246 (stating
that the officers in Bivens were line-level federal narcotics officers who operated under the legal
mandate to enforce federal drug laws). Specifically, Defendants are federal correctional officers
whose legal mandate is, among other things, to supervise inmates and manage the correctional
facility. See 18 U.S.C. § 4042(a) (directing the Bureau of Prisons (“BOP”) to manage and
regulate federal correctional institutions and protect and discipline prisoners). As such, there is a
meaningful legal distinction between the cases.
In sum, all of DeBenedetto’s claims arise in a new context from the previous Bivens
cases.
B.
Special Factors
The Court next asks whether there are special factors indicating that the Judiciary is less
equipped than Congress to decide whether there should be a damages remedy. Egbert, 142 S. Ct.
at 1804. Two such special factors exist here: (1) congressional inaction on creating a damages
remedy for these types of claims against federal officials, and (2) alternative remedial processes
to a damages remedy. See Ziglar, 582 U.S. at 137, 148.
With respect to prior congressional inaction on the issue of a damages remedy, the
Supreme Court has found it significant that in the Prison Litigation Reform Act of 1995
(“PLRA”), 42 U.S.C. § 1997e, Congress had the opportunity to address prisoner abuse claims
brought in federal court, yet the Act does not authorize an individual-capacity damages remedy
against federal prison officials. Ziglar, 582 U.S. at 148. This might suggest that “Congress chose
12
not to extend the Carlson damages remedy to cases involving other types of prisoner
mistreatment.” Id. at 149. Despite the Supreme Court not conclusively establishing that the
PLRA’s omission of a damages remedy is a special factor, the Supreme Court’s subsequent
emphasis on whether Congress is better equipped to create a damages remedy, Egbert, 142 S. Ct.
at 1803, strongly indicates that the PLRA’s omission is a special factor. This Court, therefore,
considers it as such. See Choice v. Michalak, No. 21-CV-0060, 2022 WL 4079577, at *7–8
(N.D. Ill. Sept. 6, 2022) (noting that congressional silence in the PLRA regarding a standalone
damages remedy for federal pretrial detainees and prisoners was a special factor counseling
hesitation); Liggins v. O’Sullivan, No. 3:19-CV-50303, 2022 WL 787947, at *5 (N.D. Ill. Mar.
15, 2022) (same).
Turning to alternative remedial processes, the Supreme Court has suggested that a writ of
habeas corpus and injunctive relief are alternative forms of relief for prisoners and pretrial
detainees to challenge their conditions of confinement, both of which may foreclose a Bivens
remedy. See Ziglar, 582 U.S. at 144–45, 148; see also Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 74 (2001) (“[U]nlike the Bivens remedy, which we have never considered a proper vehicle
for altering an entity’s policy, injunctive relief has long been recognized as the proper means for
preventing entities from acting unconstitutionally.”).5
5
Relatedly, DeBenedetto’s claims also arise in a new context because of the presence of potential special
factors that prior Bivens cases—namely, Carlson—did not consider. In particular, (1) the existence of
alternative remedies for prisoners to seek relief, such as injunctions and the writ of habeas corpus, and (2)
the absence of a standalone damages remedy against federal prison officials in the PLRA. See Ziglar, 582
U.S. at 148–49; see also Snowden, 72 F.4th at 242, 244 (describing Ziglar as holding that the plaintiff’s
claim presented a new context from Carlson because the claim implicated a different constitutional right,
alternative remedies were potentially available, and the PLRA suggested that Congress decided not to
extend the Carlson damages remedy to other types of prisoner mistreatment claims).
13
Second, the BOP’s administrative remedy program allows prisoners to file grievances to
seek formal review of any issue relating to their confinement. See 28 C.F.R. § 542.10. As such, it
is an alternative—albeit incomplete—method of relief for federal prisoners and pretrial
detainees. See Choice, 2022 WL 4079577, at *6 (describing the BOP’s administrative remedy
program as an alternative remedy for prisoners to challenge issues with their confinement, and
as, thus, a special factor); see also Malesko, 534 U.S. at 74 (noting that the BOP’s administrative
remedy program “provides yet another means through which allegedly unconstitutional actions
and policies can be brought to the attention of the BOP and prevented from recurring”).
Third, the FTCA generally permits plaintiffs to sue the federal government for monetary
damages for the tortious conduct of its employees when those employees acted within the scope
of their employment. See 28 U.S.C. § 2674; Glade ex rel. Lundskow v. United States, 692 F.3d
718, 721 (7th Cir. 2012). Accordingly, the FTCA is another alternative form of relief for a
Bivens claim. See McNeil v. Duda, No. 3:22-CV-50096, 2023 WL 2587884, at *3–4 (N.D. Ill.
Mar. 21, 2023) (finding the existence of statutory grievance procedures against FBI agents and
the FTCA to be alternative remedies that precluded a Bivens remedy); Gonzalez-Loza, 2021 WL
5823512, at *4 (recognizing the FTCA as an alternative method of relief). That said, the Court
acknowledges that those remedies may be woefully inadequate in comparison to a suit for
monetary damages against individual officials who perpetrate constitutional violations. Cf.
Carlson, 446 U.S. at 20–23 (explaining why the Bivens remedy is more effective than the
FTCA); Cohen, 2022 WL 16925984, at *9 (noting that injunctions fail to provide redress for
harms suffered prior to the issuance of the injunction and do little to deter future unconstitutional
acts). And the Court fully appreciates DeBenedetto’s point that the Court previously ruled that
the BOP’s administrative remedies were unavailable to him for purposes of the PLRA’s
14
exhaustion requirement, and that the Court denied him leave to add an FTCA claim against the
United States because he failed to exhaust his administrative remedies under the FTCA. (See
4/29/22 Mem. Op. at 15; 10/12/22 Minute Entry.)
Nonetheless, the salient question is not whether the existing remedies provide full relief
or whether a court should provide a remedy for a wrong that would otherwise go unredressed;
instead, a “court must ask only whether it, rather than the political branches, is better equipped to
decide whether existing remedies should be augmented by the creation of a new judicial
remedy.” Egbert, 142 S. Ct. at 1804 (internal quotation marks and citations omitted); see also
Stennis, 2023 WL 1319561, at *7 (“[E]ven if these alternatives to Bivens weren’t available to
Stennis or against these particular defendants, their existence alone is enough to bar an implied
cause of action.”). Further, the Supreme Court has made clear that courts must not “secondguess” the political branches’ calculus of whether the existing remedial processes are sufficient
to adequately deter unconstitutional acts of federal officers “by superimposing a Bivens remedy.”
Egbert, 142 S. Ct. at 1807. Consequently, the existence of the alternative remedial schemes
discussed above is another special factor that precludes a Bivens remedy.6
6
To avoid dismissal, DeBenedetto argues that Snowden undermined the proposition that the FTCA and
PLRA are special factors counselling hesitation in expanding the Bivens remedy. However, the Court
does not find these arguments persuasive. As to the FTCA, DeBenedetto relies on the Seventh Circuit’s
rejection of the argument that the availability of a remedy under the FTCA was a special factor suggesting
that the plaintiff’s claim arose in a new context from Bivens. See Snowden, 72 F.4th at 246 n.4. More
specifically, the Seventh Circuit noted that the FTCA “does not displace a Bivens claim in the narrow
cases where it is available.” Id. Yet the Seventh Circuit resolved the case at the new-context step of the
Bivens framework and made clear that the FTCA “does not come into play” since the case did not present
a new context. Id. Put differently, the Seventh Circuit said nothing about whether the FTCA can be a
special factor counselling hesitation against authorizing a Bivens remedy for purposes of step two of the
Bivens framework; rather, it appeared to address whether the FTCA is a potential special factor that
previous Bivens cases did not consider for purposes of the new-context inquiry. With respect to the
PLRA, DeBenedetto contends that the Seventh Circuit in Snowden reversed a district court’s dismissal of
the plaintiff’s Bivens claim, where the lower court concluded that the PLRA’s omission of a damages
remedy was a special factor counselling hesitation. See id. at 241. But while the Seventh Circuit did
15
Because Defendants’ Bivens argument is dispositive of all claims, the Court need not
reach the qualified immunity issue. Thus, all counts against Defendants are dismissed.
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss (Dkt. No. 210) is granted. This
case is dismissed with prejudice. The Clerk will be directed to enter Judgment in favor of
Defendants.
Dated: September 29, 2023
__________________________
Andrea R. Wood
United States District Judge
reverse the district court’s decision, it never reached the special-factor step of the Bivens inquiry, nor did
it state that the PLRA is not a special factor.
16
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