Keller v. Walton et al
Filing
169
MEMORANDUM AND ORDER, The Court ADOPTS Magistrate Judge Sison's Report (ECF No. 163) as supplemented by this order, GRANTS the Government's motion for judgment on the pleadings as to Count II (ECF No. 115), DISMISSES Count II WITH PREJUDICE, and DIRECTS the Clerk of Court to enter judgment accordingly at the conclusion of this case. Signed by Judge J. Phil Gilbert on 4/8/2019. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHARLES DERRICK KELLER,
Plaintiff,
v.
Case No. 3:16-cv-00565-JPG-GCS
J.S. WALTON, et al.,
Defendants.
MEMORANDUM AND ORDER
J. PHIL GILBERT, DISTRICT JUDGE
Count II of plaintiff Charles Derrick Keller’s complaint is a First Amendment retaliation
claim against numerous federal officials at United States Penitentiary Marion, where Keller was
previously imprisoned. The Government has moved for judgment on the pleadings on Count II,
arguing that First Amendment retaliation claims present a new context under Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971) and thus are barred by the Supreme Court’s recent
opinion in Ziglar v. Abbassi, 137 S.Ct. 1843, 1848 (2017). (ECF No. 115.) Magistrate Judge
Sison has since issued a Report and Recommendation (“Report”) that advises this Court to grant
the Government’s motion. (ECF No. 163.) Keller, through appointed counsel, has objected. (ECF
No. 165.)
Now, the Court may accept, reject, or modify—in whole or in part—the findings or
recommendations of Magistrate Judge Sison in his Report. FED. R. CIV. P. 72(b)(3). The Court
must review de novo the portions of the Report to which Keller objected. 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). And here, pursuant to
Keller’s broad objection, the Court has reviewed the entire Report de novo.
1
Nevertheless—and despite Keller’s impassioned arguments—the Report is correct on the
merits. Even though district courts used to routinely adjudicate First Amendment Bivens actions,
the Supreme Court changed the game in Ziglar v. Abbasi, — U.S. —, 137 S.Ct. 1843 (2017). In
Ziglar—a prisoner Bivens action dealing with the Fourth and Fifth Amendments—the Supreme
Court held that federal courts should not expand Bivens actions to reach contexts that the
Supreme Court has not officially recognized unless “special factors” counsel otherwise. 137
S.Ct. at 1859-60. The idea is that since Bivens is an implied remedy for damages under
Constitutional principles rather than a legislatively-created remedy like 42 U.S.C. § 1983, courts
should not expand that remedy unless there are special circumstances at hand. Id. at 1854–55.
The Supreme Court then explained that they have only officially recognized Bivens
theories in three scenarios: (1) Fourth Amendment unreasonable searches and seizures; (2) Fifth
Amendment gender discrimination; and (3) Eighth Amendment deliberate indifference to
medical needs. Id. at 1855–56 (citing Bivens, 403 U.S. at 397; Davis v. Passman, 442 U.S. 228
(1979); Carlson v. Green, 446 U.S. 14 (1980)). The claim at issue here—First Amendment
retaliation—is none of those things. And even though federal courts used to adjudicate First
Amendment Bivens actions all the time, the Court may no longer do so according to Ziglar. That
is especially true considering that the Supreme Court said just a few years before Ziglar: “We
have never held that Bivens extends to First Amendment claims”—making it quite clear that the
Supreme Court has not yet “officially recognized” the theory yet. Reichle v. Howards, 566 U.S.
at 663 n. 4 (2012).
And Keller’s objection does not persuade otherwise. Keller begins by arguing that the
Report erred by relying on select post-Abbasi decisions that deal with First Amendment
interference-with-mail claims, and that the Report further erred by failing “to even analyze, let
2
alone distinguish,” a case from the United States District Court for the District of Columbia that
Keller believes supports his argument. But the United States District Court for the District of
Columbia does not create binding precedent on this Court. And if the Court does look to outside
cases on this particular issue, certainly those from United States courts of appeals—such as
Bistrian v. Levi, 912 F.3d 79, 95–96 (3d Cir. 2018), which expressly held that First Amendment
retaliation claims under Bivens are no longer recognized, or Vega v. United States, 881 F.3d
1146, 1153 (9th Cir. 2018), which held the same in regards to a First Amendment access to
courts claim, or even Butts v. Martin, 877 F.3d 571, 588 (5th Cir. 2017), which speculated that
First Amendment claims “likely present a new context under Bivens”—are more authoritative
than a district court case. And to any extent that Keller relies on Nunez v. Durango, 18-CV-1018,
2019 WL 131837, at *1 (C.D. Ill. Jan. 8, 2019), that argument fails considering the order therein
is likely in error. Nunez allowed a First Amendment Bivens claim to proceed on the grounds that
the Seventh Circuit recognized such a claim in 1996: 21 years before Ziglar. And as the Court
has already explained, the question under Ziglar is whether the Supreme Court has recognized a
certain cause of action under Bivens—not federal courts of appeals.
Moreover, to the extent Keller argues that special factors in this case support expanding
the Bivens remedy to himself, that argument also fails. As the Report has already noted, there are
multiple alternative remedies available in cases like these. If a prisoner suffers any physical
injury or loss of property as a result of the deprivation, then he can bring a claim under the
Federal Tort Claims Act. Keller says that does not work in his case because he did not suffer any
physical harm or loss of property—but in that case, Keller could obtain some sort of remedy
under the prison’s administrative-remedy process. But Keller then says that the administrativeremedy process is not enough because he cannot receive monetary damages, citing to a pre-
3
Ziglar Seventh Circuit case—Rowe v. Shake, 196 F.3d 778, 781–82 (7th Cir. 1999)—that centers
on 42 U.S.C. § 1983 instead of Bivens. Even so, Keller argues, that because one of the
defendants in this case allegedly ignored, misplaced, or destroyed his administrative remedies
form, the administrative remedies process was not available to him anyways.
This winding argument is exactly what the Third Circuit recently rejected in Bistrian, 912
F.3d at 95–96. Instead, the Court there explained:
Retaliation claims are based on an adverse action following the exercise of
constitutional rights. Here, [the plaintiff] alleges that his fourth placement in the
SHU was punishment for complaining about his treatment by prison officials.
Like a punitive detention claim, retaliation claims like this one are grounded in
administrative detention decisions. 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….
That strongly counsels restraint, just as in the punitive-detention context. For the
same reasons we reject an extension of Bivens to that latter context, we reject it
here as well. Such claims must be approached “with skepticism and particular
care” because they are “easily fabricated and...may cause unwarranted judicial
interference with prison administration.” Holmes v. Grant, No. 03 Civ. 3426 RJH
RLE, 2006 WL 851753, at *14 (S.D.N.Y. Mar. 31, 2006).
912 F.3d 79 at 95, 96. The Court agrees here. Because Keller’s type of retaliation claim involves
“executive policies, implicates separation-of-power concerns, and threatens a large burden to
both the judiciary and prison officials,” the Court holds that the special factors weigh against
expanding Bivens to cover these types of claims. Id.
Finally, the Court has reviewed the rest of Keller’s objection and finds that it does not
change the outcome of this issue, although the Court certainly recognizes its passion. To any
extent that Keller argues that Ziglar is not binding because of certain language from that opinion,
or because of the legislative history of the Prison Litigation Reform Act, or because the case was
decided without input from Justices Kagan, Sotomayor, or Gorsuch—who all recused
themselves—this Court cannot and will not hold that subsequent Supreme Court opinions,
4
federal appellate courts, and district courts all over the country are in error by relying on Ziglar.
The Court certainly recognizes, however, that Keller has preserved his impassioned argument for
appeal.
CONCLUSION
For the foregoing reasons, the Court ADOPTS Magistrate Judge Sison’s Report (ECF
No. 163) as supplemented by this order, GRANTS the Government’s motion for judgment on
the pleadings as to Count II (ECF No. 115), DISMISSES Count II WITH PREJUDICE, and
DIRECTS the Clerk of Court to enter judgment accordingly at the conclusion of this case.
IT IS SO ORDERED.
DATED: APRIL 8, 2019
s/ J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?