Amawi v. Walton et al

Filing 172

MEMORANDUM AND ORDER, The Court ADOPTS the Report (Doc. 166 ) as SUPPLEMENTED by this order; GRANTS in part and DENIES in part the defendants motion to dismiss or for summary judgment 128 . The motion is GRANTED to the extent it seeks summary judgme nt on Count 3, and the BOP is terminated from this case. The motion is DENIED to the extent it seeks dismissal of Counts 1 and 2; and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 8/11/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MOHAMMAD ZAKI AMAWI,
Plaintiff,
v.

Case No. 13-cv-866-JPG-PMF

J.S. WALTON, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
166) of Magistrate Judge Philip M. Frazier recommending that the Court grant in part and deny in
part the defendants’ motion to dismiss or for summary judgment (Doc. 128). Specifically,
Magistrate Judge Frazier recommends the Court (1) deny the motion to the extent it seeks to
dismiss plaintiff Mohammad Zaki Amawi’s claims against the individual defendants under Bivens
v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violation of
his due process rights (Count 1) and equal protection rights (Count 2) regarding his prison unit
placement and (2) grant the motion to the extent it seeks summary judgment for failure to exhaust
administrative remedies on Amawi’s Administrative Procedures Act (“APA”) claim against the
Bureau of Prisons (“BOP”) (Count 3). The individual defendants object to Magistrate Judge
Frazier’s recommended disposition of Counts 1 and 2 (Doc. 168); no party has objected to the
recommended disposition of Count 3.
I.

Report and Recommendation Review Standard
The Court may accept, reject or modify, in whole or in part, the findings or

recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.

Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
II.

Analysis
A.

Count 3

The Court has reviewed the recommended disposition of Count 3, to which there is no
objection, for clear error and finds none. Accordingly, it will adopt the Report as to this claim and
will grant the defendants’ motion for summary judgment on Count 3.
B.

Counts 1 and 2
1.

Report and Objections

As for the recommended disposition of Counts 1 and 2, Magistrate Judge Frazier rejected
the defendants’ legal challenge to Amawi’s ability to bring a Bivens claim for damages based on
alleged violations of his due process and equal protection rights. He noted that the Supreme
Court and the Seventh Circuit Court of Appeals have allowed Bivens actions to proceed to provide
potential monetary relief for such constitutional violations. See Davis v. Passman, 442 U.S. 228
(1979) (deprivation of equal protection component of the Fifth Amendment due process clause);
Carlson v. Green, 446 U.S. 14 (1980) (estate of a deceased federal prisoner could sue federal
prison officials for due process, equal protection and Eighth Amendment violations); Engel v.
Buchan, 710 F.3d 698 (7th Cir. 2013) (deprivation of due process by a Federal Bureau of
Investigations agent); Crowder v. True, 74 F.3d 812 (7th Cir. 1996) (recognizing that Bivens
extends to a federal prisoner’s Fifth Amendment procedural due process claim). Magistrate
Judge Frazier further found Amawi had sufficiently stated facts supporting such a claim under the
pleading standards set forth in Federal Rule of Civil Procedure 8(a) and Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007).
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In their objections, the individual defendants argue that, as a matter of law, the Court
should not infer a remedy under Bivens because the APA provides a sufficient remedy to challenge
the alleged unconstitutional acts of the individual defendants. The Court reviews this issue de
novo.
2.

Background

This case stems from Amawi’s former incarceration at the United States Penitentiary at
Marion, Illinois (“USP-Marion”). He had been confined to the Communications Management
Unit (“CMU”) at USP-Marion for more than four years. In that unit, his communications with
outside individuals were monitored and restricted more than those of inmates in other units. He
also was subject to other limitations not imposed on inmates in the general population at
USP-Marion In Count 1 he claims his placement and retention in the CMU and denial of a
transfer deprived him of a liberty interest without due process of law in violation of the Fifth
Amendment due process clause. In Count 2 he claims that in placing him in the CMU, the
individual defendants purposefully treated him differently from other inmates based on his race
and religion in violation of the Fourteenth Amendment equal protection rights incorporated into
the Fifth Amendment due process clause.
3.

Bivens Theory

The defendants’ objection is a legal one based on the breadth of the spectrum of causes of
action for damages implied by Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 389-90 (1971). In Bivens, the Supreme Court inferred a cause of action for
damages against individual federal employees for a warrantless search and seizure in violation of
the Fourth Amendment’s prohibition on unreasonable search and seizure. Id. at 389-90. The
Supreme Court noted that, although Congress had not expressly provided a statutory private right
of action, there were “no special factors counselling hesitation in the absence of affirmative action
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by Congress,” id. at 396, and no express indication Congress intended not to allow a private cause
of action and instead to require pursuit of an alternative remedy that was equally effective, id. at
397. The Supreme Court’s decision to infer a private right of action was based on the general
premise that “‘where federally protected rights have been invaded, it has been the rule from the
beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.’” Id.
at 392 (quoting Bell v. Hood, 327 U.S. 678, 684 (1946)). These considerations have evolved and
been refined in the wake of Bivens into a two-part framework to identify the types of non-statutory
actions that will be allowed under a Bivens theory:
In the first place, there is the question whether any alternative, existing process for
protecting the interest amounts to a convincing reason for the Judicial Branch to
refrain from providing a new and freestanding remedy in damages. But even in
the absence of an alternative, a Bivens remedy is a subject of judgment: the federal
courts must make the kind of remedial determination that is appropriate for a
common-law tribunal, paying particular heed, however, to any special factors
counselling hesitation before authorizing a new kind of federal litigation.
Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (internal citations and quotations omitted); accord
Minneci v. Pollard, 132 S. Ct. 617, 621 (2012).
Since Bivens, the Supreme Court has extended its holding to equal protection claims for
discrimination in public employment, Davis v Passman, 442 U.S. 228, 230 (1979), and to
prisoners’ due process, equal protection and Eighth Amendment claims based on medical care,
Carlson v. Green, 446 U.S. 14, 19-23 (1980). The Seventh Circuit Court of Appeals has also
found a plaintiff may bring a Bivens action for a due process violation for failure to disclose
exculpatory evidence in a criminal proceeding in violation of Brady v. Maryland, 373 U.S. 83
(1963). Engel v. Buchan, 710 F.3d 698, 702-03 (7th Cir. 2013) (citing Manning v. Miller, 355
F.3d 1028, 1031 n. 1 (7th Cir. 2004)). Numerous other extensions of Bivens have been rejected.
See Vance v. Rumsfeld, 701 F.3d 193, 198 (7th Cir. 2012) (noting that since Davis and Carlson, the
Supreme Court “has not created another [non-statutory right of action] during the last 32 years –
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though it has reversed more than a dozen appellate decisions that had created new actions for
damages”), cert. denied, 133 S. Ct. 2796 (2013).
4.

Application to Counts 1 and 2

The Court now examines Amawi’s due process and equal protection claims for damages
under the Wilkie framework to see whether he should be allowed to bring them using a Bivens
theory.
a.

Alternative Process for Protecting Rights

The first step in the Wilkie framework asks “whether any alternative, existing process for
protecting the interest amounts to a convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.” Wilkie v. Robbins, 551 U.S. 537, 550
(2007). With respect to this inquiry, the Seventh Circuit Court of Appeals has noted:
The alternatives need not provide complete relief to preclude the Bivens remedy,
and where Congress has created an “elaborate, comprehensive scheme” to address
a certain kind of constitutional violation, Bivens will generally be unavailable even
if that scheme leaves remedial holes. Similarly, where the alternative remedies are
the product of state law, they need not be “perfectly congruent” with the Bivens
remedy; rather, the question is whether the alternatives provide roughly similar
incentives for potential defendants to comply with the constitutional requirements
while also providing roughly similar compensation to victims of violations.
Engel v. Buchan, 710 F.3d 698, 705 (7th Cir. 2013) (internal citations, quotations and brackets
omitted).
The defendants argue that the APA’s comprehensive remedy scheme provides an adequate
alternative remedial process for protecting Amawi’s due process and equal protection rights and
justifies refusing to recognize a non-statutory cause of action under a Bivens theory to vindicate
those rights. They admit that Congress has exempted discretionary BOP inmate housing
decisions from APA review but argue that the exemption is arguably inapplicable to decisions
regarding the classification and segregation of prisoners.
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The Court disagrees; the APA does not provide any alternative process for protecting
Amawi’s rights, much less an adequate one. The APA provides judicial review for those
suffering because of final federal agency action, 5 U.S.C. § 702(a), but by the law’s very terms, it
does not apply to discretionary agency action, 5 U.S.C. § 701(a). Prison placement decisions are
committed to BOP discretion, so are not covered by the APA. Additionally, the federal criminal
code expressly exempts imprisonment decisions from review under the APA: “The provisions of
sections 554 and 555 and 701 through 706 of title 5, United States Code [the APA], do not apply to
the making of any determination, decision, or order under this subchapter.” 18 U.S.C. § 3625.
The referenced subchapter, setting forth the law on imprisonment by the BOP, includes the
provision that “[t]he Bureau of Prisons shall designate the place of the prisoner’s imprisonment.”
18 U.S.C. § 3621(b). This has been construed to include placement in a unit within an institution.
See, e.g., Harris v. United States, No. 2:13-CV-214-WTL-MJD, 2013 WL 3724861, at *1-*2
(S.D. Ind. July 15, 2013) (holding decision to place inmate in the CMU of a federal prison not
cognizable under the APA). Because the APA does not apply to the decision to house Amawi in
the USP-Marion CMU, it does not provide him a remedy to complain of that placement decision.
The defendants’ suggestion that Congress’ decision to exempt prison placement decisions
from APA review indicates it did not intend those decisions ever to be reviewable ignores the
importance of courts’ protecting inmates’ due process and equal protection rights. Indeed, Bivens
itself was based on the general premise that “where federally protected rights have been invaded, it
has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant
the necessary relief.” Id. at 392 (internal quotations omitted). Far from suggesting review should
never happen, Congress’ failure to allow APA review of prison placement decisions weighs in
favor of providing a cause of action under a Bivens theory for violation of inmates’ constitutional
rights. Congress is unlikely to have intended to allow federal employees to act without some kind
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of constitutionality review of their actions. See Carlson v. Green, 446 U.S. 14, 22 (1980)
(suggesting “‘constitutional design’” would be stood on its head if federal officials did not face at
least the same liability as state officials guilty of the same constitutional transgression”).
Additionally, any such remedy that might have been available under the APA would not
have been adequate because an APA cause of action does not “provide roughly similar incentives
for potential defendants to comply with the constitutional requirements while also providing
roughly similar compensation to victims of violations.” Engel, 710 F.3d at 705 (internal brackets
omitted). An APA suit can provide only prospective relief and does not provide any
compensation for past constitutional violations. See 5 U.S.C. § 702 (only authorizing “action[s]
in a court of the United States seeking relief other than money damages”). The inability of an
APA remedy to compensate Amawi for past violations of his constitutional rights weighs in favor
of allowing him to vindicate those rights in a suit for damages under a Bivens theory. See Engel,
710 F.3d at 706 (finding habeas corpus relief inadequate alternative remedy, in part, because it is
“incapable of compensating the victim of a Brady violation for the constitutional injury he has
suffered.”).
Nor would an APA remedy provide the incentives to comply with the constitution that are
available by the threat of a Bivens action for compensatory and punitive damages against an
individual. Personal financial liability is a more effective deterrent than a remedy against the
United States or its agencies, as the APA provides. See Carlson, 446 U.S. at 21-22 (noting that
compensatory and punitive damages against an individual are more effective deterrent than
compensatory damage under the Federal Tort Claims Act against the United States).
Because there is no “alternative, existing process” to protect Amawi’s constitutional rights
that convinces the Court that judicial intervention is inappropriate, the Court is inclined to find a
Bivens theory applicable to Counts 1 and 2 of this case based on the first Wilkie factor.
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b.

Special Factors

The Court now turns to the second Wilkie factor, the exercise of judgment in light of “any
special factors counselling hesitation before authorizing a new kind of federal litigation.” Wilkie,
551 U.S. at 550 (internal quotations omitted). The Seventh Circuit Court of Appeals has noted
that “this part of the analysis has tended to focus on concerns about judicial intrusion into the
sensitive work of specific classes of federal defendants” like military officials, immigration
authorities, and federal agencies, or “concerns about doctrinal unworkability.” Engel v. Buchan,
710 F.3d 698, 707-08 (7th Cir. 2013).
The defendants suggest that courts’ tradition of deference to prison officials when it comes
to prison administration matters weighs against allowing Amawi to proceed on a Bivens theory for
his due process and equal protection claims. While this deference is well-recognized, it is not
without limits, and courts will not hesitate to step in when prison officials unjustifiably violate
prisoners’ constitutional rights when exercising their discretion. Prison officials should not be
allowed free reign to violate prisoners’ (admittedly sometimes limited) constitutional rights under
the guise of “wise” administration. The level of deference due to the defendants in this case will
surely be explored at later stages of this litigation. Nor is this deference to prison officials
defeated by allowing a Bivens action; it has been repeatedly and successfully exercised in lawsuits
against state prison officials under 42 U.S.C. § 1983. See, e.g., Turner v. Safley, 482 U.S. 78,
84-85 (1987) (deferring to prison officials regarding mail and marriage policies); Taylor v.
Waterloo, No. 07 C 6644, 2009 WL 2589509, at *8 (N.D. Ill. Aug. 18, 2009) (deferring to prison
officials regarding security classification and placement decisions). In the meantime, the special
context of prison administration does not counsel against recognizing a Bivens action in Amawi’s
case.
Additionally, the “special factor” analysis in Carlson v. Green, 446 U.S. 14, 19 (1980),
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applies equally in this case. There, the Court of Appeals for the Seventh Circuit considered the
due process, equal protection and Eighth Amendment claims of the administrator of a deceased
prisoner who allegedly died from inadequate medical care in prison. When examining whether
any “special factors” existed with respect to BOP defendants, the same type of defendants at issue
in this case, the Court of Appeals noted that:
the case involves no special factors counselling hesitation in the absence of
affirmative action by Congress. [The defendant BOP officials] do not enjoy such
independent status in our constitutional scheme as to suggest that judicially created
remedies against them might be inappropriate. . . . Moreover, even if requiring
them to defend respondent’s suit might inhibit their efforts to perform their official
duties, the qualified immunity accorded them . . . provides adequate protection.
Id. at 19 (internal citations omitted). Carlson’s reasoning applies equally to the defendants in this
case.
The defendants have pointed to no other “special factors” that would weigh against
allowing Counts 1 and 2 to proceed under a Bivens theory. Therefore, the second Wilkie factor
will not prevent the Court from finding Bivens theory applicable to Counts 1 and 2 of this case.
For the foregoing reasons, after de novo review, the Court finds Amawi may proceed on
Counts 1 and 2 using a Bivens theory.
III.

Conclusion
As explained above, the Court:


ADOPTS the Report (Doc. 166) as SUPPLEMENTED by this order;



GRANTS in part and DENIES in part the defendants’ motion to dismiss or for summary
judgment. The motion is GRANTED to the extent it seeks summary judgment on Count
3, and the BOP is terminated from this case. The motion is DENIED to the extent it seeks
dismissal of Counts 1 and 2; and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.
Further, the Court believes this order, to the extent it addresses the use of a Bivens theory in
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Counts 1 and 2, “involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially advance the
ultimate termination of the litigation” 28 U.S.C. § 1292(b). Accordingly, the parties shall have
ten days from entry of this order to apply to the Court of Appeals for permission to take an
interlocutory appeal of this issue. Id.
IT IS SO ORDERED.
DATED: August 11, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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