BADLEY v. GRANGER et al
Filing
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ORDER Granting Defendants' Motion to Dismiss First Amendment Claims for Failure to State a Claim, and Denying as Moot Officer Sims's Motion for Partial Summary Judgment on Failure to Exhaust Defense - Defendants' motion to dism iss First Amendment claims for failure to state claim, Dkt. No. 71 , is granted. Thus, the only claim remaining in this case is Mr. Badley's Eighth Amendment claim against Lieutenant Granger. All other claims have been dismissed, and all claims against Officer Derek Moore, Lieutenant D. Moore, and Officer J. Sims are dismissed. The clerk is directed to terminate Officer Derek Moore, Lieutenant D. Moore, and Officer J. Sims on the docket. Because Officer J. Sims is dismissed fro m this action, Officer Sims's motion for partial summary judgment on failure to exhaust defense, Dkt. No. 95 , is denied as moot. No partial judgment will issue at this time (SEE ORDER FOR DETAILS). Signed by Judge Jane Magnus-Stinson on 6/18/2018. Copy to Plaintiff via US Mail. (DW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ANDRE BADLEY,
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Plaintiff,
v.
Mr. F. GRANGER Lieutenant,
DEREK MOORE Correctional Officer,
D. MOORE Lieutenant,
J. SIMS Officer,
Defendants.
No. 2:17-cv-00041-JMS-DLP
Order Granting Defendants’ Motion to Dismiss First Amendment Claims
for Failure to State a Claim, and Denying as Moot Officer Sims’s
Motion for Partial Summary Judgment on Failure to Exhaust Defense
In January 2017, plaintiff Andre Badley filed this lawsuit asserting that defendants
Lieutenant Granger, Officer Derek Moore, and Lieutenant D. Moore retaliated against him in early
February 2015 for filing grievances. Mr. Badley also asserts that Lieutenant Granger failed to
protect him from an assault from another inmate, in violation of the Eighth Amendment. In
January 2018, defendant Officer J. Sims was added as a defendant related to Mr. Badley’s claim
that he was retaliated against. See Dkt. No. 55.
Presently pending before the Court is defendants’ motion to dismiss the First Amendment
claims pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 71. Defendant Sims has filed a notice of
joinder in defendants’ motion to dismiss. Dkt. No. 98.
I.
Standard of Review
Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to
relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with
“fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551
U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). In reviewing
the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all
permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien, 635 F.3d
883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint
“contain[s] 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 Twombly, 550 U.S. at 570). The
Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for
relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations
must plausibly state an entitlement to relief “to a degree that rises above the speculative level.”
Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Id.
II.
Background
The following are the factual allegations in the Complaint, which the Court must accept as
true at this time:
In January 2015, after Mr. Badley filed a grievance alleging employee misconduct on the
part of Lieutenant Granger, Lieutenant Moore attempted to discourage him from submitting such
grievances. Mr. Badley was then subjected a body cavity search by Granger and denied his
evening meal. His cell was searched and Officer D. Moore wrote a false report that heroin was
found. Because drugs were stated to have been found, he was transferred to the Special Housing
Unit. Defendant Lieutenant Moore told him, “I told you to drop your complaint on Lieutenant
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Granger, you been around long enough to know how we get down.” Then, Mr. Badley was placed
in a cell with an inmate who Granger knew would assault him, and who did assault him.
Mr. Badley next told former Warden LaRiva, not a defendant in this action, that he was
placed in the SHU based on a false report of possession of heroin, but former Warden LaRiva
responded that it was heroin in his cell. Mr. Badley was then called to Lieutenant Moore’s office
and Lieutenant Moore told him that he needed to drop his complaint against Granger or she would
have him transferred and write an incident report for operating a gambling pool. Mr. Badley then
complained to former Warden Daniels, also not a defendant in this action, that officers were
threatening him and former Warden Daniels told him to send an email and file a grievance. A few
months later, after he believed he was harassed and his cell was searched and “destroyed,” Mr.
Badley again complained to former Warden Daniels that he was being mistreated for filing
grievances and former Warden Daniels told him he needed to “drop his complaints.”
III.
Discussion
Defendants have filed a Motion to Dismiss, arguing that Mr. Badley’s First Amendment
claim fails as a matter of law as against all Defendants. Specifically, they argue that Mr. Badley’s
First Amendment retaliation claims against the individual defendants must be dismissed because
the United States Supreme Court has not recognized a right of action under Bivens v. Six Unknown
Narcotics Agents, 403 U.S. 388 (1971), for First Amendment retaliation. See Ziglar v. Abbasi,
137 S.Ct. 1843 (2017). In response, Mr. Badley argues that violations of the First Amendment do
not create a new Bivens context, and that filing a lawsuit in the court is the proper way to seek
redress when the Bureau of Prisons’ administrative process fails to provide a proper remedy.
While prisoners do not have unfettered First Amendment rights, the rights they retain may
not be infringed upon by prison officials retaliating against them for exercising those rights.
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Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 592-93 (1998). But Crawford-El was a 42 U.S.C.
§ 1983 action, not a Bivens action. Last year the Supreme Court in Abbasi, clarified the very limited
scope of Bivens actions. If the asserted Bivens claim is not one of the three Bivens-type actions
previously recognized by the Supreme Court, closer scrutiny is required. This calls into question
whether a First Amendment free speech retaliation claim is a viable claim when asserted against
federal officials.
The Supreme Court has recognized a Bivens remedy in only three cases: (1) a Fourth
Amendment claim against federal agents for violating the prohibition against unlawful searches
and seizures when they handcuffed a man in his home without a warrant, Bivens, 403 U.S. 388;
(2) a Fifth Amendment gender discrimination claim against a congressman for firing his female
administrative assistant, Davis v. Passman, 442 U.S. 228 (1979); and (3) an Eighth Amendment
claim brought by an inmate’s estate against prison officials for failure to provide adequate medical
care for his asthma, Carlson v. Green, 446 U.S. 14 (1980). To determine whether a case presents
a new Bivens context, the Abbasi court explained: “[i]f the case is different in a meaningful way
from previous Bivens cases decided by this Court, then the context is new.” Abbasi, 137 S. Ct. at
1859. To determine whether a Bivens remedy is available for a claim outside of these three
circumstances, this Court must ask whether there are any other “special factors counseling
hesitation before authorizing a new kind of federal litigation,” including whether there is “‘any
alternative, existing process for protecting the [injured party’s] interest’ that itself may ‘amoun[t]
to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding
remedy in damages.’” Id. at 1858 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). As the
Abbasi court explained:
Without endeavoring to create an exhaustive list of differences that are meaningful
enough to make a given context a new one, some examples might prove instructive.
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A case might differ in a meaningful way 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 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.
Abbasi, 137 S.Ct. at 1859-60. The Abbasi court also pointed out that it had declined to extend
Bivens in a number of contexts, including:
[A] First Amendment suit against a federal employer; a race-discrimination suit
against military officers; a substantive due process suit against military officers; a
procedural due process suit against Social Security officials; a procedural due
process suit against a federal agency for wrongful termination; an Eighth
Amendment suit against a private prison operator; a due process suit against
officials from the Bureau of Land Management; and an Eighth Amendment suit
against prison guards at a private prison.
Id. at 1857 (citations omitted); see also Khorrami v. Rolince, 713 Fed. App’x. 494, 499 (7th Cir.
2017) (“the Supreme Court has been hesitant to expand the right to sue under an implied cause of
action” under Bivens).
Mr. Badley’s First Amendment claim in this case is unlike the Fourth Amendment
unreasonable seizure claim at issue in Bivens, the gender discrimination claim in Davis, or the
deliberate indifference claim in Carlson. And while the Supreme Court has assumed in some cases
without deciding that a Bivens remedy is available for a First Amendment claim, it has never
identified one. See Wood v. Moss, 134 S.Ct. 2056, 2066 (2014); Reichle v. Howards, 566 U.S.
658, 663 n.4 (2012) (“We have never held that Bivens extends to First Amendment claims”); Iqbal,
556 U.S. at 675 (assuming, without deciding, that a free exercise claim was available because the
issue was not raised on appeal, but noting that the reluctance to extend Bivens “might well have
disposed of respondent’s First Amendment claim of religious discrimination” because “we have
declined to extend Bivens to a claim sounding in the First Amendment”).
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Accordingly, the Court considers whether the type of “special factors” discussed by the
Abbasi court as justifying extending Bivens are present here. The Abassi Court held that if the
questioned claim is indeed a “new Bivens context” claim, then the district court must next ask
“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, 551 U.S. at 550. “[T]he existence of alternative remedies usually precludes a
court from authorizing a Bivens action.” Abbasi, 137 S. Ct. at 1865. And this Court must also
consider whether special factors counsel hesitation in recognizing a Bivens remedy.
In 2009, the Supreme Court made clear that expanding the Bivens remedy is now a
“disfavored” judicial activity. Iqbal, 556 U.S. at 675. This is in accord with the Supreme Court’s
observation that it has “consistently refused to extend Bivens to any new context or new category
of defendants.” Corr. Serv. Corp. v. Malesko, 534 U.S. 61, 68 (2001). Indeed, the Supreme Court
has refused to extend Bivens for the past thirty-five years. In this light, recognizing a new Bivens
remedy would require extraordinary circumstances, which certainly counsels hesitation.
Turning first to whether Mr. Badley has alternative remedies he may use to address his
retaliation claims, he has, of course, the Bureau of Prisons’ administrative remedy process. He
may bring retaliation conduct to the attention of administrators and seek non-monetary remedies.
For any injuries he might have sustained, he is able to bring a claim under the Federal Torts Claim
Act. Any retaliation that extends his confinement might be actionable in habeas corpus. And any
retaliation that results in a violation of a previously recognized Bivens claim is another alternate
remedy Mr. Badley may pursue. As defendants point out, Mr. Badley is simultaneously litigating
an Eighth Amendment claim under Bivens in this case involving many of the same injuries he
complains about with regard to his First Amendment claim. He has also filed many grievances
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concerning some of the allegations in this action. Thus, Mr. Badley is not without a remedy to
address the core concerns of his problems. Thus, this Court concludes that Mr. Badley has
alternative remedies he may use to address the retaliation issues.
Finally, “legislative action suggesting that Congress does not want a damages remedy is
itself a factor counseling hesitation.” Abassi, 137 S. Ct. at 1865. As noted by the Supreme Court:
Some 15 years after Carlson [v. Green, 446 U.S. 14 (1980)] was decided, Congress
passed the Prison Litigation Reform Act of 1995, 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 provisions 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).
In passing the Prison Litigation Reform Act of 1995 (the “PLRA”), Congress “placed a
series of controls on prisoner suits . . . designed to prevent sportive filings in federal court.” Skinner
v. Switzer, 562 U.S. 521, 535–36 (2011). Congress did so with the intent to “reduce the quantity
of inmate suits.” Jones v. Bock, 549 U.S. 199, 223 (2007). Congress has been active in the area
of prisoners’ rights, and its actions – not creating new rights – do not support the creation of a new
Bivens claim.
For these reasons, the Court holds that the special factors analysis dictates hesitation in
applying Bivens to First Amendment retaliation claims and that judicial intervention with the
creation of a retaliation claim against federal actors is not warranted.
IV.
Conclusion
Mr. Badley’s First Amendment retaliation claims are foreclosed by Ziglar v. Abbasi, 137
S. Ct. 1843 (2017). It is not one of the three Bivens-type claims recognized by the Supreme Court.
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Mr. Badley has administrative and other judicial remedies available to him for the underlying
claims that eventually gave rise to the instant claim, and the nature of the instant claims are not of
such gravity to require judicial intervention and the creation of a new Bivens action. Defendants’
motion to dismiss First Amendment claims for failure to state claim, Dkt. No. [71], is granted.
Thus, the only claim remaining in this case is Mr. Badley’s Eighth Amendment claim
against Lieutenant Granger. All other claims have been dismissed, and all claims against Officer
Derek Moore, Lieutenant D. Moore, and Officer J. Sims are dismissed. The clerk is directed to
terminate Officer Derek Moore, Lieutenant D. Moore, and Officer J. Sims on the docket.
Because Officer J. Sims is dismissed from this action, Officer Sims’s motion for partial
summary judgment on failure to exhaust defense, Dkt. No. [95], is denied as moot.
No partial judgment will issue at this time.
IT IS SO ORDERED.
Date: 6/18/2018
Distribution:
ANDRE BADLEY
35563-060
FLORENCE - HIGH USP
FLORENCE HIGH U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 7000
FLORENCE, CO 81226
Gina M. Shields
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Gina.Shields@usdoj.gov
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