Howard v. Lackey
MEMORANDUM OPINION & ORDER: 1. Dft's motion to dismiss 22 is GRANTED. 2. Pla's complaint 1 is DISMISSED WITH PREJUDICE. 3. Court will enter an appropriate judgment. 4. This matter is STRICKEN from active docket. Signed by Judge Karen K. Caldwell on 3/7/2018. (RCB)cc: COR, Howard via US mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
Civil Action No. 7:16-129-KKC
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Inmate Theodore Howard is confined at the United States Penitentiary-Big Sandy in Inez,
Kentucky. Proceeding without an attorney, Howard filed a civil rights action against a federal
official pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R.
1]. Defendant, Lana Lackey, has filed a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6). [R. 22]. Howard has filed a response [R. 28] and Lackey has filed a reply.
[R. 29]. Thus, this matter has been fully briefed and is ripe for review.
For the reasons set forth below, the Court will grant Lackey’s motion to dismiss and
dismiss Howard’s claims.
Although Howard’s handwritten Complaint is somewhat difficult to read, from what the
Court is able to ascertain, Howard alleges that, in 2014, he was attempting to pursue claims of
prosecutorial misconduct and ineffective assistance of counsel claims in his underlying criminal
case, United States v. Howard, No. 1:07-cr-674-2 (N. D. Ill. 2007), via a petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2255, United States v. Howard, No. 1:13-cv-7819
(N.D. Ill. 2013). [R. 1 at p. 2]. In connection with these efforts, Howard alleges that, on or about
May 27, 2014, he was sent trial and sentencing transcripts from the United States District Court
for the Northern District of Illinois. [Id.]. According to Howard, Defendant Lana Lackey, a legal
mail secretary at USP-Big Sandy, signed the USP-Big Sandy legal mail log book for the
transcripts, but failed to tender these transcripts to Howard. [Id.].
Howard claims that an
investigation into the matter made at his request showed that Lackey lost, misplaced, or discarded
the transcripts that were sent to him from the federal court in Illinois. [Id. at p. 3]. Howard alleges
that Lackey has violated the Bureau of Prisons (“BOP”) Program Statement 5800.10 for inmatelegal mail procedures, as well as 18 U.S.C. §§ 1701, 1702, and 1703, all in violation of his rights
to receive mail under the First, Fourth, and Fourteenth Amendments to the Constitution.
p. 4, 8]. Howard seeks monetary damages. [Id. at p. 8].
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the
plaintiff’s complaint. Gardner v. Quicken Loans, Inc., 567 F. App’x 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views the complaint in the light most
favorable to the plaintiff and accepts as true all well-pleaded facts in the complaint. D’Ambrosio
v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because the plaintiff here is proceeding without
the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred
claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
A complaint must contain allegations, either expressly stated or necessarily inferred, with
respect to every material element necessary to sustain a recovery under some viable legal
theory. Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013). But
the complaint must be dismissed if it undoubtedly fails to allege facts sufficient to state a faciallyplausible claim. Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th
Cir. 2012). A complaint may be dismissed for failure to state a claim if “it fails to give the
defendant fair notice of what the...claim is and the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
First, to the extent that Howard’s Complaint alleges violations of 18 U.S.C. §§ 1701, 1702,
and 1703, these are criminal statutes prohibiting the obstruction of mail and do not give rise to a
private cause of action. See Miles v. Bottom, 2016 WL 2344222 at *4 (E.D. Ky. 2016)(“Because
a private citizen lacks a judicially cognizable interest in the criminal prosecution of another, a civil
plaintiff has no standing to assert a claim arising under a criminal statute.”)(citing Linda R.S. v.
Richard D., 410 U.S. 615, 619 (1973); Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)). See
also Woods v. McGuire, 954 F.2d 388, 391 (6th Cir. 1992)(federal courts have uniformly held that
there is no private right of action under 18 U.S.C. § 1703); Berlin Democratic Club v. Rumsfeld,
410 F.Supp. 144, 162 (D.D.C. 1976)(“Section 1702 is purely a criminal statute and cannot support
a civil cause of action.”).
Next, although it is not entirely clear given the difficulty of reading Howard’s handwriting,
it appears that Howard may reference the Fourth and Fourteenth Amendments of the United States
Constitution in his Complaint. [R. 1 at p. 8]. However, to the extent that Howard is attempting to
suggest that Lackey “seized” his mail in violation of the Fourth Amendment, “the Fourth
Amendment does not apply to searches of prison cells or seizures of property within
them.” Simmons v. Szelewski, 642 F. App’x 95, 99 (3d Cir. 2016) (citing Hudson v. Palmer, 468
U.S. 517, 533 (1984)); Shakur v. Coelho, 421 F. App’x 132, 133 (3d Cir. 2011). This is so because
“[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be
reconciled with the concept of incarceration and the needs and objectives of penal institutions.”
Hudson, 468 U.S. at 526.
In addition, Howard fails to allege any facts to support a Fourteenth Amendment Claim for
violation of his due process or equal protection rights. Generally, pro se pleadings are liberally
construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even so, the principles requiring generous
construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th
Cir. 1989). The Court has an obligation to liberally construe a complaint filed by a person
proceeding without counsel, but it has no authority to create arguments or claims that the plaintiff
has not made. Coleman v. Shoney’s, Inc., 79 F. App’x 155, 157 (6th Cir. 2003) (“Pro se parties
must still brief the issues advanced with some effort at developed argumentation.”); Superior
Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F. Supp. 2d 140, 148 (D. Mass. 2003)
(“While the allegations of the complaint are construed favorably to the plaintiff, the court will not
read causes of action into the complaint which are not alleged.”). Thus, Howard’s failure to allege
any facts that would give rise to a Fourteenth Amendment claim is a sufficient reason to dismiss
Moreover, the Supreme Court has expressly held that where a constitutional claim is
covered by a specific constitutional provision, the claim must be analyzed under the standard
appropriate to that specific provision, not under the broad rubric of substantive due process.
County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); see also Graham v. Connor, 490 U.S.
386, 395 (1989) (“Where a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that Amendment, not
the more generalized notion of substantive due process, must be the guide for analyzing these
claims.”). “A prisoner's right to receive mail is protected by the First Amendment.” Sallier v.
Brooks, 343 F.3d 868, 873 (6th Cir. 2003). See also Stanley v. Vining, 602 F.3d 767, 769 (6th Cir.
2010)(recognizing that a prisoner’s liberty interest in receiving mail is grounded in the First
Amendment). Because the First Amendment is the proper vehicle to assert claims of interference
with Howard’s right to receive mail, his claim under the Fourteenth Amendment fails as a matter
of law, and must be dismissed. See Cooleen v. Lamanna, 248 F. App’x 357, 362 (3rd Cir. 2007)
(viability of claim under Eighth Amendment to challenge medical care of prisoner forecloses
availability of substantive due process claim); Bell v. Johnson, 308 F.3d 594, 609-10 (6th Cir.
2002) (prisoner’s claim that officials retaliated against him for filing grievances was squarely
covered by First Amendment, precluding due process claim under Fourteenth Amendment). Thus,
to the extent that Howard purports to bring claims against Lackey under the Fourth and Fourteenth
Amendment, these claims will be dismissed.
Turning to Howard’s First Amendment claim, pursuant to Bivens, an individual may
“recover money damages for any injuries...suffered as a result of [federal] agents' violation of” his
constitutional rights. See Bivens, 403 U.S. at 397; Baranski v. Fifteen Unknown Agents of Bureau
of Alcohol, Tobacco & Firearms, 452 F.3d 433, 438 (6th Cir.2006). However, as Lackey correctly
points out, the Supreme Court has repeatedly indicated that a First Amendment claim is not
cognizable under Bivens. See Reichle v. Howards, 132 S. Ct. 2088, 2093 n.4 (2012) (“We have
never held that Bivens extends to First Amendment claims.”); Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)(“For while we have allowed a Bivens action to redress a violation of the equal protection
component of the Due Process Clause of the Fifth Amendment..., we have not found an implied
damages remedy under the Free Exercise Clause. Indeed, we have declined to extend Bivens to a
claim sounding in the First Amendment.”)(citations omitted); Bush v. Lucas, 462 U.S. 367, 38789 (1983)(First Amendment retaliation claim was not cognizable under Bivens). While the
Supreme Court has expressly acknowledged the availability of the remedy for claims arising under
the Fourth and Eighth Amendment, it has “consistently refused to extend Bivens liability to any
new context or new category of defendants.” Correctional Services Corp. v. Malesko, 534 U.S.
61, 68 (2001).
In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme Court re-emphasized that
“expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” explaining
When a party seeks to assert an implied cause of action under the Constitution itself,
just as when a party seeks to assert an implied cause of action under a federal
statute, separation-of-powers principles are or should be central to the analysis. The
question is “who should decide” whether to provide for a damages remedy,
Congress or the courts? Bush, 462 U.S., at 380, 103 S.Ct. 2404.
The answer most often will be Congress. When an issue “‘involves a host of
considerations that must be weighed and appraised,’” it should be committed to
“‘those who write the laws'” rather than “‘those who interpret them.’” Ibid. (quoting
United States v. Gilman, 347 U.S. 507, 512–513, 74 S.Ct. 695, 98 L.Ed. 898
Id. at 1857. Given these considerations, the Court explained that “a Bivens remedy will not be
available if there are ‘special factors counselling hesitation in the absence of affirmative action by
Congress.’” Id. at 1857 (quoting Carlson v. Green, 226 U.S. 14, 18 (1980)).
Lackey has identified several “special factors” that the Court agrees counsel hesitation in
extending a Bivens remedy to Howard’s claims. First, given that the Supreme Court has never
recognized a Bivens remedy under the First Amendment in any context, the Court is particularly
reluctant to recognize one here, in the context of a First Amendment claim for denial of access to
the courts based on a single instance of failing to receive legal mail while incarcerated. Moreover,
there are “alternative, existing” processes available for protecting Howard’s interests in receiving
his mail, such as seeking relief in his habeas proceedings pending in the District Court in Illinois
and/or through the BOP’s administrative remedy process. See Wilkie v. Robbins, 551 U.S. 537,
550 (2007). See also Malesko, 534 U.S. 61, 69 (2001)(“So long as the plaintiff had an avenue for
some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new
substantive liability.”)(citation omitted).
In addition, the Court recognizes that, to extend Bivens liability in the First Amendment
context presented here would impose substantial costs, in both time and money, upon individual
officers and employees of the Federal Government. See Abbasi, 137 S.Ct. 1856. In the past,
Congress has recognized the need to keep frivolous prisoner litigation in federal courts under
control by passing the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. Woodford v.
Ngo, 548 U.S. 81, 83 (2006). Through the PLRA, Congress addressed the challenge of “ensuring
that the flood of nonmeritorious claims does not submerge and effectively preclude consideration
of the allegations with merit.” Jones v. Bock, 549 U.S. 199, 203 (2007). Thus, expanding Bivens
liability in this context requires consideration of the potential imposition of costs upon the
government, as well as the risks of an increase of frivolous prisoner litigation. The Court finds
that these factors further “counsel hesitation” in extending Bivens liability to First Amendment
claims, as balancing these public policy concerns is more appropriately addressed by Congress
rather than by the Court
For all of these reasons, the Court finds that Bivens does not extend to provide an available
remedy for Howard’s claim under the First Amendment. Accordingly, this claim fails.
Finally, to the extent that Howard alleges that Lackey has violated BOP Program Statement
5800.10 for inmate-legal mail procedures, this claim fails as a matter of law. The BOP’s Program
Statements are not “laws” which may be broken. Rather, they are merely internal agency
guidelines and manuals, and they are not promulgated in compliance with the Administrative
Procedures Act. Reno v. Koray, 515 U.S. 50, 61 (1995). Accordingly, they do not carry the force
of law and do not create substantive rights that may be enforced by any person. United States v.
Craveiro, 907 F.2d 260, 264 (1st Cir. 1990); Schweiker v. Hansen, 450 U.S. 785, 789 (1981).
Because a federal employee’s failure to adhere to a Program Statement does not constitute a
violation of federal law, any “claim” under a Program Statement fails as a matter of law. United
States v. Loughner, 782 F. Supp. 2d 829, 831 (D. Ariz. 2011); Callahan v. Patton, No. 07-CV-54JMH, 2007 WL 1662695, at *5 (E.D. Ky. June 4, 2007).
For all of these reasons, Howard fails to state a claim for which relief may be granted
Accordingly, Lackey’s motion to dismiss will be granted and Howard’s
Complaint will be dismissed with prejudice. Because the Court finds that Howard fails to state a
claim, it need not reach the statute of limitations argument set forth by Lackey in her motion to
dismiss, nor her argument that she is entitled to qualified immunity.
Accordingly, it is hereby ORDERED as follows:
Defendant’s motion to dismiss [R. 22] is GRANTED.
Plaintiff’s complaint [R. 1] is DISMISSED WITH PREJUDICE.
The Court will enter an appropriate judgment.
This matter is STRICKEN from the active docket.
Dated March 7, 2018.
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