HARRIS v. SAMUELS et al
Filing
69
Entry Granting Defendants' Motion to Dismiss and Directing Entry of Final Judgment - The Court holds that the special factors analysis dictates against expanding a Bivens remedy to Mr. Harris' First Amendment interference with mail claim and Fifth Amendment due process claims for damages. The defendants' motion to dismiss, Dkt. No. 60 , is granted. The action is dismissed with prejudice. Judgment consistent with this Entry shall now issue. (See Entry.) Copies sent via U.S. Mail pursuant to distribution list. Signed by Judge William T. Lawrence on 7/25/2018. (DMW)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DONTE ROLANDO HARRIS,
Plaintiff,
v.
ANGELA P. DUNBAR,
STEPHEN COPE CTU Analyst,
JOHN DOE CTU Director,
Defendants.
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No. 2:17-cv-00536-WTL-DLP
Entry Granting Defendants’ Motion to Dismiss
and Directing Entry of Final Judgment
I. Background
On May 27, 2016, plaintiff Donte Rolando Harris filed this lawsuit in the District of
Columbia. It was transferred to this Court on November 28, 2017. At all relevant times, Mr.
Harris was incarcerated in the United States Penitentiary in Terre Haute, Indiana. He is currently
confined in a federal penitentiary in Marion, Illinois.
In the amended complaint filed on June 30, 2017, Dkt. No. 36, Mr. Harris names three
defendants: 1) Angela P. Dunbar; 2) Stephen Cope; and 3) Paul Adams (named “John Doe” in
the amended complaint, but identified as Paul Adams in the defendants’ motion to dismiss). Mr.
Harris alleges that Angela P. Dunbar, an official with the Bureau of Prisons (“BOP”), continued
Mr. Harris’ special confinement within the Communications Management Unit (“CMU”) for
over six years without any procedural due process. He further alleges that in May 2011, Stephen
Cope, a BOP employee, intercepted an outgoing letter intended for Mr. Harris’ cousin (who has a
son in prison) and at other times opened legal/special mail outside his presence. Mr. Harris’
claim against Mr. Adams is that as the Director of the Counter Terrorism Unit (“CTU”), he
continued Mr. Harris’ special confinement within the CTU for over six years without any
procedural due process. He seeks compensatory and punitive damages and the expungement of
all records relating to his being monitored in the CTU.
Mr. Harris’ claims implicate the First and Fifth Amendments to the United States
Constitution. His claims for damages are brought pursuant to the doctrine created in Bivens v. Six
Unknown Named Agents of Feb. Bur. Of Narcotics, 403 U.S. 388 (1971).
Presently pending before the Court is the defendants’ motion to dismiss the complaint
pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. No. 60.
II. 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).
III. Discussion
As noted, this action is brought under the implied cause of action theory adopted in
Bivens, which authorized the filing of constitutional tort suits against federal officers. The
defendants’ motion to dismiss argues that the plaintiff’s claims fail to state a claim upon which
relief can be granted based on recent Supreme Court law. In Ziglar v. Abbasi, 137 S.Ct. 1843
(2017), the Supreme Court held that “expanding the Bivens remedy is now a disfavored judicial
activity.” Id. at 1857 (internal quotation omitted). “This is in accord with the Court’s observation
that it has consistently refused to extend Bivens to any new context or new category of
defendants” and has done so “for the past 30 years.” Id. (internal quotation omitted). “The
Court’s precedents now make clear that a Bivens remedy will not be available if there are special
factors counselling hesitation in the absence of affirmative action by Congress.” Id. (internal
quotation omitted).
The Supreme Court has recognized an implied damages remedy under the Constitution 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 substantive due process and
equal protection gender discrimination claim against a congressman for firing his female
administrative assistant because she was a woman, 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). Abbasi,
137 S.Ct. at 1854-55, 1860.
A. New Bivens Context
Post-Abbasi, additional scrutiny is required before a plaintiff may proceed with a Bivens
action if the claims arise “in a new Bivens context.” Abbasi, 137 S.Ct. at 1864. “If the case is
different in a meaningful way from previous Bivens cases determined by this Court, then the
context is new.” Id. at 1859.
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. 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.
Id. at 1859-60.
In Abbasi, the Supreme Court specifically noted that it has declined to extend Bivens in a
number of contexts, including: a First Amendment suit against a federal employer, Bush v.
Lucas, 462 U.S. 367, 390 (1983); a substantive due process suit against military officers, United
States v. Stanley, 483 U.S. 669, 671–672, 683–684 (1987); a procedural due process suit against
Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); a procedural due
process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471,
473–474 (1994); a due process suit against officials from the Bureau of Land Management,
Wilkie v. Robbins, 551 U.S. 537, 547–548, 562 (2007); and an Eighth Amendment suit against
prison guards at a private prison, Minneci v. Pollard, 565 U.S. 118, 120 (2012). Abassi, 137 S.
Ct. at 1857.
Mr. Harris’ claims in this case are unlike the Fourth Amendment unreasonable seizure
claim at issue in Bivens, the gender discrimination claim in Davis, or the deliberate indifference
claim in Carlson, all of which were allowed to proceed under Bivens. Mr. Harris’ interference
with mail claim is brought under the First Amendment. His procedural due process claims are
brought under the Fifth Amendment.
Prior to Abbasi, although in some cases the Supreme Court assumed without deciding
that a Bivens remedy was available for a First Amendment claim, it never identified one. See
Reichle v. Howards, 566 U.S. 658 n. 4 (2012) (“We have never held that Bivens extends to First
Amendment claims.”); Ashcroft, 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”); Bush, 462 U.S. at 390 (declining to create Bivens remedy for First
Amendment claim against a federal employer because “Congress is in a better position to
decide” the issue).
The Supreme Court has declined to extend a Bivens remedy to due process claims in a
number of contexts. Indeed, in Abbasi, the Court declined to allow a Bivens remedy to aliens
who were in the United States without legal authorization but were allegedly held without bail
for three to eight months in extremely harsh and physically abusive conditions. Abbasi, 137 S.Ct.
at 1852-53. The claims disallowed in Abbasi itself were brought under the substantive due
process and equal protection components of the Fifth Amendment, as well as the Fourth
Amendment. Id. at 1853-54.
Applying these authorities and considerations, the Court concludes that Mr. Harris’ First
Amendment interference with mail claim and Fifth Amendment due process claims arise in a
new Bivens context.
B. Alternative Avenue for Relief and Special Factors
Having decided that Mr. Harris’ claims arise in a new Bivens context, this Court must
next ask whether “Congress has created ‘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.’” Abbasi, 137 S.Ct. at
1858 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). “[T]he inquiry must concentrate on
whether the Judiciary is well suited, absent congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages action to proceed.” Id. at 1857-58. Moreover,
“the existence of alternative remedies usually precludes a court from authorizing a Bivens
action.” Id. at 1865. Post-Abbasi, numerous courts, including the Ninth Circuit Court of Appeals,
have declined to extend Bivens actions to a prisoner’s First Amendment and Fifth Amendment
(due process) claims because the plaintiff had available alternative remedies. See Vega v. United
States, 881 F.3d 1146, 1155 (9th Cir. 2018). In this case, Mr. Harris has alternative remedies he
may use to address his claims by invoking the BOP’s administrative remedy process.
Even if there are no alternative avenues to protect the interests at issue, the Court is to
consider whether there are any other “special factors counseling hesitation before authorizing a
new kind of federal litigation.” Wilkie, 551 U.S. at 550. The Abbasi Court stated that “legislative
action suggesting that Congress does not want a damages remedy is itself a factor counseling
hesitation.” Abbasi, 137 S.Ct. at 1865. “Some 15 years after Carlson 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.” Id. “[T]he Act itself does not
provide for a standalone damages remedy against federal jailers.” Id. “[I]t seems clear that
Congress had specific occasion to consider the matter of prisoner abuse and to consider the
proper way to remedy those wrongs.” Id. The Abbasi Court found that “[i]t could be argued that
this suggests Congress chose not to extend the Carlson damages remedy to cases involving other
types of prisoner mistreatment.” Id. This Court agrees that Congress’ activity in the area of
prisoners’ rights while failing to create new rights for federal inmates does not support the
creation of new Bivens claims.
“‘Nationwide, district courts seem to be in agreement that, post-Abbasi, prisoners have no
right to bring a Bivens action for violation of the First Amendment.’” Akande v. Philips, 1:17-cv01243-EAW, 2018 WL 3425009 at *8 (W.D.N.Y. July 11, 2018) (quoting Free v. Peikar, No.
1:17-cv-00159-AWI-MJS, 2018 WL 1569030, at *2 (E.D. Cal. Mar. 30, 2018)). This District has
concluded the same. See Badley v. Granger, 2:17-cv-0041-JMS-DLP, 2018 WL 3022653 (S.D.
Ind. June 18, 2018) (no Bivens claim for inmate’s First Amendment retaliation claim);
Albrechtsen v. Parsons, 1:17-cv-1665-JMS-TAB, 2018 WL 2100361 (S.D. Ind. May 7, 2018)
(no Bivens claim for First Amendment retaliation claim); Muhammad v. Gehrke, 2:15-cv-334WTL-MJD, 2018 WL 1334936 (S.D. Ind. Mar. 15, 2018) (inmate’s First Amendment retaliation
claim not viable under Bivens). District courts have specifically held that special factors
counseled against implying a Bivens remedy in the context of an inmate’s interference with mail
claims. See Stratmon v. Morris, 1:12-cv-01837-DAD-SAB, 2018 WL 3388406 (E.D. Cal. July
10, 2018); Howard v. Lackey, No. 7:16-cv-129-KKC, 2018 WL 1211113 (E.D. Ky. Mar. 7,
2018). These Courts reasoned that the Supreme Court has never recognized a Bivens remedy
under the First Amendment, other avenues for relief, including the BOP administrative grievance
process, were available, and Congress was better suited to evaluate whether relief should be
allowed in these circumstances. Stratmon, 2018 WL 3388406 at *4.
In addition, as noted above, the Supreme Court has declined to extend Bivens to Fifth
Amendment procedural due process claims against Social Security officials and against a federal
agency for wrongful termination. Abbasi, 137 S.Ct. at 1857; see also Rroku v. Cole, 726 Fed.
Appx. 201, 204-05 (5th Cir. Feb. 28, 2018) (dismissed Fifth Amendment claim against a federal
officer brought by detainee kept in administrative segregation rather than general population
because there was no protectable liberty interest and therefore no remedy under Bivens).
Consistent with the above reasoning, the Court holds that the special factors analysis
dictates against expanding a Bivens remedy to Mr. Harris’ First Amendment interference with
mail claim and Fifth Amendment due process claims for damages.
IV. Conclusion
The defendants’ motion to dismiss, Dkt. No. 60, is granted. The action is dismissed with
prejudice. Judgment consistent with this Entry shall now issue.
IT IS SO ORDERED.
Date: 7/25/18
_______________________________
Distribution:
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana
DONTE ROLANDO HARRIS
R 37473-083
MARION - USP
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