TURNER v. JANE DOE et al
Filing
86
OPINION. Signed by Judge Robert B. Kugler on 5/16/18. n.m.(dd, )
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 1 of 12 PageID: 737
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
TIMOTHY A. TURNER,
:
:
Civ. No. 15-5942 (RBK) (AMD)
Plaintiff,
:
:
v.
:
OPINION
:
JANE DOE, et al.,
:
:
Defendants.
:
__________________________________________:
ROBERT B. KUGLER, U.S.D.J.
I.
INTRODUCTION
Plaintiff, Timothy A. Turner, is a federal prisoner currently incarcerated at FCI Schuylkill
in Minersville, Pennsylvania. He is proceeding pro se with an amended complaint against
Defendant William Gonzalez alleging a violation of his Fifth Amendment equal protection rights
in his prison employment. (ECF No. 7). Currently before the Court is Defendant Gonzalez’s
Motion for Summary Judgment (ECF No. 70) and Plaintiff’s Motion for Default Judgment (ECF
No. 71). For the following reasons, Defendant Gonzalez’s Motion for Summary Judgment is
granted and Plaintiff’s Motion for Default Judgment is denied.
II.
A.
BACKGROUND
Factual Background
At all times relevant to the allegations in the amended complaint, Plaintiff was incarcerated
at FCI Fairton in New Jersey. (See ECF No. 70-2 at p. 1). Plaintiff, an African-American inmate,
worked in the electronics factory (the “Factory’) that was part of the Federal Prison Industries
(“UNICOR”) program from October 2010 to September 2014. (See id. at p. 2; ECF No. 75-1 at
p. 1). During this time, the Factory had five cable operations that manufactured cable assemblies.
(See ECF No. 70-2 at p. 2).
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 2 of 12 PageID: 738
According to Defendant William Gonzalez, a UNICOR foreman, Plaintiff held the position
of electronics assembler and was training to become a clerk on Cable Operation No. 2. (See id. at
pp. 2-3). To perform the duties of a clerk, an inmate requires access to a software license, which
costs approximately $3,000. (See id. at p. 2). On September 29, 2014, Defendant Gonzalez
informed Plaintiff that due to financial difficulties, the Factory could not afford to obtain a software
license for him to become a clerk. (See ECF No. 70-2 at pp.3-4). When Plaintiff learned of the
decision, he stated that he was quitting and never returned to work. (See id. at p. 5). On October
9, 2014, former Defendant Donna Scott, the UNICOR factory manager, completed the paperwork
to terminate Plaintiff because he had not appeared at work since September 29, 2014. (See id.).
On October 13, 2014, former Defendant Scott reassigned another inmate who already had the
requisite software license to serve as clerk for Cable Operation No. 2. (See id. at pp. 5-6).
Plaintiff disputes Defendant Gonzalez’s factual narrative. Plaintiff contends that from May
to September 2014, he held the position of clerk on Cable Operation No. 2. (See ECF No. 75 at p.
3). While Plaintiff agrees that Defendant Gonzalez, who is Hispanic, informed him that he was
being removed from his position due to a reduction of jobs, Plaintiff asserts that he was actually
replaced by a Hispanic inmate because of race discrimination. (See id. at p. 7). Plaintiff further
claims that when he asked Defendant Gonzalez for the reason why he was being replaced and
requested to transfer to another department, Defendant Gonzalez supposedly became irate, used a
marker to black out Plaintiff’s written transfer request, and threatened to assign Plaintiff to pick
up trash. (See id. at p. 8).
B.
Procedural History
On August 3, 2015, Plaintiff filed a civil complaint pursuant to Bivens v. Six Unknown
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). (See ECF No. 1). On
September 15, 2015, the Court granted Plaintiff’s application to proceed in forma pauperis and
2
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 3 of 12 PageID: 739
dismissed the complaint without prejudice for failure to state a claim for relief pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (See ECF No. 3). Plaintiff filed an amended
complaint on October 6, 2015, and the Court permitted the amended complaint to proceed past
screening as to the claims against Defendants Scott and Gonzalez. (See ECF No. 5).
The Clerk’s Office transmitted the U.S. Marshals Service Forms 285 on December 3, 2015,
and the Marshals Service received the returned forms on December 16, 2015. (See ECF Nos. 6 &
8). The Clerk’s Office issued summonses to Defendants Scott and Gonzalez, on December 16,
2015. (ECF No. 9). However, the Clerk’s Office never received a completed summons or waiver
of service from the Marshals Service with regard to Defendant Gonzalez.
On December 19, 2016, this Court granted summary judgment as to Defendant Scott. (See
ECF No. 42). On March 17, 2017, the Marshals Service returned an executed summons for
Defendant Gonzalez showing service. (See ECF Nos. 49 & 50). On March 30, 2017, this Court
denied Plaintiff’s first Motion for Default Judgment against Defendant Gonzalez as premature.
(See ECF Nos. 56 & 57). Defendant Gonzalez filed an answer to Plaintiff’s amended complaint
on May 30, 2017. (See ECF No. 61). On October 27, 2017, Defendant Gonzalez filed a Motion
for Summary Judgment that is presently before this Court (ECF No. 70). On November 3, 2017,
Plaintiff filed a second Motion for Default Judgment against Defendant Gonzalez, which is also
currently before this Court (ECF No. 71).
III.
STANDARD OF REVIEW
The Court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
3
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 4 of 12 PageID: 740
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat’l Bank
of Az. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)) (“Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’”). In deciding whether there is any genuine issue for trial, the court is not to weigh evidence
or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility determinations
are for the jury, the non-moving party’s evidence is to be believed and ambiguities construed in its
favor. Id. at 255; Matsushita, 475 U.S. at 587.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least present probative evidence from which the jury might return a verdict in his favor. Id. at
257. Where the non-moving party fails to “make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the burden of proof at
trial,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
IV.
A.
DISCUSSION
Motion for Summary Judgment
Defendant Gonzalez moves for summary judgment on the basis that there is no Bivens
remedy for Plaintiff’s equal protection claim in light of the Supreme Court’s recent decision in
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). (See ECF No. 70 at pp. 7-19). He argues that Plaintiff’s
equal protection claim is a new context that would expand the Bivens remedy beyond the three
specific contexts recognized by the Supreme Court. (See id. at pp.8-15). Alternatively, Defendant
Gonzalez asserts he is entitled to qualified immunity. (See id. at pp. 20-31).
4
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 5 of 12 PageID: 741
1.
Overview of Bivens
While 42 U.S.C. § 1983 creates a remedy for monetary damages for individuals injured by
persons acting under color of state law, “Congress did not create an analogous statute for federal
officials.” Ziglar, 137 S. Ct. at 1854. Rather, the Supreme Court decided in Bivens that, “even
absent statutory authorization, it would enforce a damages remedy to compensate persons injured
by federal officers who violated the prohibition against unreasonable search and seizures.” Id. In
Bivens, the Supreme Court created an implied cause of action based on a violation of the Fourth
Amendment by federal officers. Bivens, 403 U.S. at 397.
Since Bivens, the Supreme Court has recognized implied causes of action in two additional
cases involving constitutional violations: Davis v. Passman, 442 U.S. 228 (1979) and Carlson v.
Green, 446 U.S. 14 (1980). In Davis, the Supreme Court held that the Fifth Amendment Due
Process Clause gave a congressional employee a damages remedy for gender discrimination. 442
U.S. at 248-49. In Carlson, the Supreme Court held that the Eighth Amendment Cruel and Unusual
Punishments Clause provided a prisoner’s estate with a damages remedy against federal jailers for
failure to provide adequate medical treatment to the prisoner. 446 U.S. at 14, 19. “These three
cases—Bivens, Davis, and Carlson—represent the only instances in which the Court has approved
of an implied damages remedy under the Constitution itself.” Ziglar, 137 S. Ct. at 1855.
Over time, the Supreme Court’s approach to recognizing implied causes of action under
Bivens changed, and “the Court has made clear that expanding the Bivens remedy is now a
‘disfavored’ judicial activity.” Id. at 1857. There is a multi-step framework for determining
whether a constitutional violation by a federal official establishes a cognizable Bivens claim. First,
the court must determine whether the case presents a “new context” for Bivens cases. If it does,
the court must determine whether alternative remedies exist. Finally, the court must determine
5
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 6 of 12 PageID: 742
whether there are special factors counselling against extending the Bivens remedy to the new cause
of action.
2.
A New Bivens Context
In Ziglar, the Supreme Court defined the analysis for “determining whether a case presents
a new Bivens context” as follows:
If the case is different in a meaningful way from previous Bivens
cases decided by this Court, then the context is new. 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 considering whether there is a new Bivens context, the Supreme Court has
advised that “even a modest extension is still an extension” and that even small differences can be
“meaningful ones” that would create a new Bivens context, although some may “be so trivial that
they will not suffice to create new Bivens context.” Id. at 1864, 1865.
In the case before this Court, Plaintiff, an African-American federal prisoner, alleges that
Defendant Gonzalez discriminated against him on the basis of his race by replacing him with a
Hispanic worker in violation of the Fifth Amendment. The Court finds this to be a new Bivens
context as none of the three prior Bivens cases addressed federal prisoners in the prisonemployment context. This case does not fall within the confines of Bivens itself, which concerned
a Fourth Amendment search and seizure claim. Although Davis addressed a Fifth Amendment
discrimination claim, it concerned a congressional employee. Unlike the plaintiff in Davis,
Plaintiff is a federal prisoner and is therefore not an “employee” within the meaning of federal
6
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 7 of 12 PageID: 743
employment protection statutes. See, e.g., Wilkerson v. Samuels, 524 F. App’x 776, 779 (3d Cir.
2013) (per curiam) (“It is well established that a prisoner is not an employee under the Fair Labor
Standards Act (FLSA), because the relationship is not one of employment, but arises out of the
prisoner’s status as an inmate.”). While Carlson extended the Bivens remedy to prisoners, it only
did so for Eighth Amendment denial of medical care claims.
Therefore, the Court finds that Plaintiff’s Fifth Amendment claim is a new Bivens context,
as it is meaningfully different from Bivens, Davis, and Carlson. See Alexander v. Ortiz, No. 156981, 2018 WL 1399302, at *4-5 (D.N.J. Mar. 20, 2018) (finding that Fifth Amendment prisonemployment discrimination claim presented a “new context” for Bivens cases). Accordingly, the
Court now considers whether there are special factors present that counsel hesitation in this Court
recognizing a Bivens remedy.
3.
Alternative Remedy
The next question the Court must ask is “’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.’” Vanderklok v. United States, 868 F.3d
189, 200 (3d Cir. 2017) (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). “[I]f there is an
alternative remedial structure present in a certain case, that alone may limit the power of the
Judiciary to infer a new Bivens cause of action.” Ziglar, 137 S. Ct. at 1858.
Here, Plaintiff does not have an alternative remedial process for protecting his interest. See
Alexander, 2018 WL 1399302, at *6 (finding no alternative remedy available for damages for a
Fifth Amendment violation in the prison-employment context). For instance, an injunction
prospectively requiring prison officials to comply with UNICOR’s non-discrimination policy1
See 28 C.F.R. § 345.35(a) (“[UNICOR] does not discriminate on the bases of race, color, religion,
ethnic origin, age, or disability.”); BOP Program Statement 8120.03 at 2 (Feb. 23, 2017)
1
7
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 8 of 12 PageID: 744
would not compensate Plaintiff for lost wages. Additionally, Plaintiff’s claims do not lie within
the “core of habeas” such that a habeas corpus petition would be appropriate. See Preiser v.
Rodriguez, 411 U.S. 475, 487–88 (1973).
Moreover, Plaintiff is unable to bring his claim for damages under Title VII of the Civil
Rights Act of 1964, the Fair Labor Standards Act (“FLSA”), the Age Discrimination in
Employment Act (“ADEA”), the Equal Pay Act (“EPA”), or the Rehabilitation Act as he is not an
“employee” within the meaning of those statutes. See Wilkerson v. Samuels, 524 F. App’x 776,
779 (3d Cir. 2013) (per curiam); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) (“We
conclude that plaintiff is not an ‘employee’ under either Title VII or the ADEA because his
relationship with the Bureau of Prisons, and therefore, with the defendants, arises out of his status
as an inmate, not an employee.”); see also 1 Charles R. Richey, Manual on Employment
Discrimination, § 3:26 (2018). Plaintiff also may not rely on the Federal Tort Claims Act
(“FTCA”) to sue the United States instead of his supervisor because federal constitutional
violations, such as those claimed by Plaintiff, are not cognizable under the FTCA. See F.D.I.C. v.
Meyer, 510 U.S. 471, 477-78 (1994) (holding 28 U.S.C. § 1346(b) does not provide a cause of
action for constitutional torts).
Further, the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126, does not
provide a remedy for Plaintiff in this particular situation. The IACA permits UNICOR to
compensate inmates or their dependents for injuries sustained in the course of their employment.
See 18 U.S.C. § 4126; 28 C.F.R. § 301.101(a)-(b). Cases applying the IACA have limited it to
compensation for physical injuries and illnesses and have analogized it to civilian workers’
compensation laws. See United States v. Demko, 385 U.S. 149, 151-52 (1966); Dial v. Murphy,
(“[UNICOR] will not discriminate on the bases of race, color, religion, ethnic origin, age, or
disability.”).
8
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 9 of 12 PageID: 745
54 F.3d 776 (6th Cir. 1995); Thompson v. U.S. Fed. Prison Indus., 492 F.2d 1082, 1083 (5th Cir.
1974).
The lack of an alternative remedy for damages, however, does not necessarily mean that
the Court should extend a Bivens remedy to this new context. The Court must still “‘make the
kind of remedial determination that is appropriate for a common-law tribunal, paying particular
heed ... to any special factors counselling hesitation before authorizing a new kind of federal
litigation.’” Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. Lucas, 462 U.S. 367,
378 (1983)).
4.
Special Factors Counselling Hesitation
Before extending a Bivens remedy to a new context, Ziglar requires courts to consider
whether there are “special factors counselling hesitation.” Ziglar, 137 S. Ct. at 1857. “[A] Bivens
remedy will not be available if there are ‘special factors counselling hesitation in the absence of
affirmative action by Congress.’” Id. (quoting Carlson, 446 U.S. at 18). The Supreme Court,
however, has not defined the phrase “special factors counselling hesitation.” “The necessary
inference, though, is that the 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. Thus, a court must ask “who should decide whether
to provide for a damages remedy, Congress or the courts?” Id. at 1857. A “special factor
counselling hesitation,” is something that “cause[s] a court to hesitate before answering that
question in the affirmative.” Id. at 1858. Most often, the answer to this question will be Congress.
Id. at 1857.
In a factually analogous case, a court within this District previously found that “the prison
workplace context is a special factor precluding extending the Bivens remedy.” Alexander, 2018
WL 1399302, at *7. The Supreme Court has long recognized that “courts are ill equipped to deal
9
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 10 of 12 PageID: 746
with the increasingly urgent problems of prison administration and reform.... Running a prison is
an inordinately difficult undertaking that requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of the legislative and executive branches
of government.” Turner v. Safley, 482 U.S. 78, 84-85 (1987) (internal citations and quotation
marks omitted). Additionally, prison administration is “a task that has been committed to the
responsibility of those branches, and separation of powers concerns counsel a policy of judicial
restraint.” Id. at 85; see also Ziglar, 137 S. Ct. at 1857 (“When a party seeks to assert an implied
cause of action under the Constitution itself ... separation-of-powers principles are or should be
central to the analysis.”).
Further, the legislative branch specifically created UNICOR to carry out the work
requirement for federal prisoners. See 18 U.S.C. §§ 4121-29; 28 C.F.R. § 345.10 (“It is the policy
of the Bureau of Prisons to provide work to all inmates (including inmates with a disability who,
with or without reasonable accommodations, can perform the essential tasks of the work
assignment) confined in a federal institution.”). As observed in Alexander:
“There is no statutory requirement that inmates be paid for work in
an industrial assignment.” 28 C.F.R. § 345.10. Congress has
provided for discretionary compensation in 18 U.S.C. § 4126 and
has delegated authority to the Attorney General to promulgate rules
and regulations to implement those policies. See 18 U.S.C.
§ 4126(c)(4); 28 C.F.R. § 345.10. Congress specifically created a
mechanism by which prisoners could be compensated for workplace
injuries and illnesses, but did not extend that remedy to other forms
of workplace discrimination or constitutional violations. Had
Congress intended to include a monetary remedy against federal
officers or employees for constitutional violations in the UNICOR
implementing statutes, it would have so stated. See Ziglar, 137 S.
Ct. at 1856 (“When Congress enacts a statute, there are specific
procedures and times for considering its terms and the proper means
for its enforcement. It is logical, then, to assume that Congress will
be explicit if it intends to create a private cause of action.”).
2018 WL 1399302, at *7.
10
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 11 of 12 PageID: 747
Accordingly, in light of Ziglar and Alexander, this Court finds that it should be left to the
legislative and executive branches to determine whether an action for damages for a claim of racial
discrimination exists in the prison-workplace environment. Thus, this Court will not extend Bivens
to this context and will grant Defendant Gonzalez’s Motion for Summary Judgment.2
B.
Motion for Default Judgment
Plaintiff also moves for default judgment against Defendant Gonzalez due to his failure to
serve a responsive pleading within 60 days. (See ECF No. 71 at p. 2). Default is governed by
Federal Rule of Civil Procedure 55. Rule 55(a) requires the clerk to enter default against a party
who has “failed to plead or otherwise defend” an action. Thereafter, Rule 55(b) allows the Court
to enter a judgment by default upon application of a party. See Nationwide Mut. Ins. Co. v.
Starlight Ballroom Dance Club, Inc., 175 F. App’x 519, 521 n.1 (3d Cir. 2006) (“Prior to obtaining
a default judgment under either Rule 55(b)(1) or Rule 55(b)(2), there must be entry of default as
provided by Rule 55(a).”). Once this procedural hurdle has been met, it is within the discretion of
the district court whether to grant a motion for a default judgment. See Chamberlain v. Giampapa,
210 F.3d 154, 164 (3d Cir. 2000), Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984). Here,
the Court cannot enter default judgment against Defendant Gonzalez as Plaintiff has not obtained
an entry of default. Accordingly, Plaintiff’s Motion for Default Judgment is denied.3
Plaintiff filed a “Motion to Object” (ECF No. 85), which appears to advance the same arguments
as his opposition to Plaintiff’s Motion for Summary Judgment. For the reasons discussed in this
opinion, this motion will be denied.
3
Plaintiff also filed a “Motion for Relief from Judgment” (ECF No. 82), which appears to reiterate
the same arguments advanced in his Motion for Default Judgment. For the reasons discussed in
this opinion, this motion will also be denied.
2
11
Case 1:15-cv-05942-RBK-AMD Document 86 Filed 05/18/18 Page 12 of 12 PageID: 748
V.
CONCLUSION
For the reasons stated above, Defendant Gonzalez’s Motion for Summary Judgment is
granted and Plaintiff’s Motion for Default Judgment is denied.
Dated: May 16th, 2018
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
12
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?