ALEXANDER v. ORTIZ ET AL

Filing 65

OPINION. Signed by Judge Jerome B. Simandle on 3/20/2018. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

KENDELL CHARLES ALEXANDER,
SR.,
Plaintiff,

HONORABLE JEROME B. SIMANDLE

Civil Action
No. 15-6981 (JBS-AMD)

v.
ROBERT ORTIZ,

OPINION

Defendant.

APPEARANCES:
Sharon King, Esq.1
King & King, LLC
231 South Broad Street
Woodbury, New Jersey 08096
Attorneys for Plaintiff, Kendall Charles Alexander, Sr.
Craig Carpenito, United States Attorney
David Bober, Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, New Jersey 08608
Attorneys for Defendant, Robert Ortiz
SIMANDLE, District Judge:

1

The Court acknowledges and appreciates the advocacy of Sharon
King, Esq., and King & King, LLC, who accepted appointment as
pro bono counsel pursuant to 28 U.S.C. § 1915(e)(1) and this
Court’s Plan for Appointment of Attorneys in Pro Se Civil
Actions, see App. H of the Local Civil Rules of the District of
New Jersey.

INTRODUCTION
Kendall Charles Alexander, Sr., a federal prisoner formerly
confined at FCI Fort Dix, New Jersey, filed an amended complaint
alleging racial discrimination and retaliation by his prison
workplace supervisor, Robert Ortiz, under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Amended Complaint, Docket Entry 30. On September 29,
2017, Defendant Ortiz filed a motion to dismiss the amended
complaint in light of the Supreme Court’s decision in Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017). Motion to Dismiss, Docket Entry
55. The Court appointed counsel for Plaintiff pursuant to 28
U.S.C. § 1915(e)(1), received supplemental briefing, and
conducted oral argument on January 29, 2018.
After considering the submissions and arguments of the
parties, the Court will not extend Bivens to a First Amendment
retaliation or Fifth Amendment Equal Protection claim in the
prison workplace context. The motion to dismiss is granted.
BACKGROUND
On September 21, 2015, Plaintiff filed a civil rights
action against Robert Ortiz, the United States, the Federal
Bureau of Prisons (“BOP”), and UNICOR2 alleging discrimination in

2

UNICOR is the trade name of Federal Prison Industries and is a
wholly-owned Government corporation.
2

his prison employment at FCI Fort Dix. Complaint, Docket Entry
1.
According to the complaint, Plaintiff began working with
UNICOR in August 2013 as a mechanic with prior experience from a
different institution. Id. ¶ 6. Plaintiff alleged that Ortiz,
the UNICOR manager, passed him over for promotion, overlooked
Plaintiff’s benefits, longevity, and pay in spite of Plaintiff’s
experience, and denied Plaintiff the ability to work overtime
after he filed grievances about the alleged racial
discrimination. Id. Plaintiff further alleged that Caucasian
mechanics were promoted before him even though they were hired
after him. Plaintiff also stated none of the Caucasian mechanics
had to wait as long as Plaintiff did before receiving a
promotion. Id. He asked the Court to reinstate his longevity
credit and award him back pay retroactive to the date he should
have been promoted. He also requested back pay for overtime
opportunities he was unlawfully denied. Id. ¶ 7.
After granting Plaintiff’s in forma pauperis application,
the Court screened the complaint under 28 U.S.C. § 1915. It
dismissed the United States, the BOP, and UNICOR from the case
as the United States is immune from suit and the Supreme Court
declined to extend Bivens liability to federal agencies and
employers. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72
(2001)(“The [federal] prisoner may not bring a Bivens claim
3

against the officer's employer, the United States, or the
BOP.”); F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994)
(declining to extend Bivens liability to federal agencies).
Opinion and Order of Dec. 2, 2015, Docket Entries 3 & 4. It
dismissed the racial discrimination claim without prejudice, but
permitted a retaliation claim to proceed against Ortiz based on
Plaintiff’s allegations that Ortiz excluded him from working
overtime after Plaintiff filed grievances about the alleged
discrimination. Complaint ¶ 6. The Court ordered summonses to
issue. Ortiz was served and later filed his answer on April 25,
2016. Docket Entry 18.
On June 8, 2016, Plaintiff moved to amend his complaint to
address the deficiencies in his Equal Protection claim that the
Court had noted in its screening opinion and order. Motion to
Amend, Docket Entry 24. Ortiz indicated that he had no objection
to the motion to amend. Response, Docket Entry 25. He requested
permission to file an answer to the amended complaint within ten
days of the amended complaint’s filing, as well as an additional
two weeks to file a motion for summary judgment. Id. Ortiz
further indicated he reserved the right to file a venue transfer
motion and asked that discovery be stayed pending resolution of
the summary judgment motion. Id. After reviewing the amended
complaint under Federal Rule of Civil Procedure 15(a), the Court
granted the motion to amend. Opinion and Order of Aug. 10, 2016,
4

Docket Entries 28 & 29. Ortiz answered the amended complaint
seven days later, Docket Entry 31.
The case continued in discovery and motion practice before
Magistrate Judge Donio, culminating in Ortiz’s motion for
summary judgment filed on February 10, 2017. Docket Entry 38.
Plaintiff, still proceeding pro se at this point in time, filed
opposition to the motion. Docket Entry 39. On June 19, 2017, the
Supreme Court issued its decision in Ziglar. Ortiz filed a
letter requesting that the Court postpone ruling on the motion
for summary judgment as the US Attorney’s Office was conducting
an office-wide review of pending Bivens cases in consultation
with the Department of Justice. Letter, Docket Entry 41.
On August 14, 2017, Ortiz supplemented his summary judgment
motion with an argument based on Ziglar. Ortiz argued that
Plaintiff’s retaliation and Equal Protection claims are “new
contexts” under Bivens, meaning the federal courts should not
extend Bivens liability to those claims in the absence of
specific congressional action. Supplemental Letter, Docket Entry
44. As the issue was one of first impression, the Court
administratively terminated the summary judgment motion and
appointed counsel for Plaintiff for the limited purpose of
addressing the Ziglar issue. Pro Bono Order, Docket Entry 45;
Administrative Termination Order, Docket Entry 47. Appointed

5

counsel entered an appearance on September 1, 2017. Ortiz
subsequently filed this motion to dismiss.
The Court conducted oral argument on January 29, 2018. At
the conclusion of argument, the Court directed the parties to
submit supplemental briefing on an issue that arose during
argument: whether the Inmate Accident Compensation Act (“IACA”),
18 U.S.C. § 4126(c), provided a remedy for claims of
discrimination in the prison workplace. Ortiz submitted his
response on February 13, 2018, and Plaintiff submitted his on
February 20, 2018. Ortiz Supplemental Brief, Docket Entry 63;
Plaintiff Supplemental Brief, Docket Entry 64.
The matter is now ripe for disposition.
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfully-

6

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state
a claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, [w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (alterations in original) (internal
citations and quotation marks omitted). “[A] complaint's
allegations of historical fact continue to enjoy a highly
favorable standard of review at the motion-to-dismiss stage of
proceedings.” Id. at 790.
IV.

DISCUSSION
Ortiz moves for dismissal of Plaintiff’s amended complaint

on the basis that there is no Bivens remedy for his retaliation
and Equal Protection claims in light of the Supreme Court’s
Ziglar decision. He asserts the claims are new contexts under
Bivens and that special factors counsel against extending the
Bivens remedy. Alternatively, Ortiz asserts he is entitled to
qualified immunity.

7

Section 1983 of Title 42 created a remedy for monetary
damages for those injured by persons acting under color of state
law, but “Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up to
Bivens, Congress did not provide a specific damages remedy for
plaintiffs whose constitutional rights were violated by agents
of the Federal Government.” Ziglar v. Abbasi, 137 S. Ct. 1843,
1854 (2017). The Supreme Court created an implied cause of
action in Bivens based on a violation of the Fourth Amendment by
federal officers. Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388, 397 (1971)(“The question is
merely whether petitioner, if he can demonstrate an injury
consequent upon the violation by federal agents of his Fourth
Amendment rights, is entitled to redress his injury through a
particular remedial mechanism normally available in the federal
courts.”). The Court extended the Bivens remedy twice more:
Davis v. Passman, 442 U.S. 228 (1979) (holding administrative
assistant fired by Congressman had a Bivens remedy for her Fifth
Amendment gender discrimination claim), and Carlson v. Green,
446 U.S. 14 (1980) (holding prisoner’s estate had Bivens remedy
against federal jailers for failure to treat his asthma). “These
three cases — Bivens, Davis, and Carlson — represent the only
instances in which the Court has approved of an implied damages

8

remedy under the Constitution itself.” Ziglar, 137 S. Ct. at
1855.
In Ziglar, the Supreme Court confronted Bivens claims from
detainees held on immigration violations in the Metropolitan
Detention Center (“MDC”) in Brooklyn, New York, after the
September 11, 2001 terrorist attacks.3 The detainees brought suit
against former Attorney General John Ashcroft, former FBI
Director Robert Mueller, and former Immigration and
Naturalization Service Commissioner James Ziglar (referred to by
the Supreme Court as the “Executive Officials”) challenging the
official policies resulting in plaintiffs’ detention. They also
filed suit against MDC's warden, Dennis Hasty, and associate
warden, James Sherman (referred to by the Supreme Court as the
“Wardens”) for the conditions of confinement they endured while
in the MDC. Id. at 1852–53.
The detainees filed suit under Bivens alleging violations
of substantive due process component of the Fifth Amendment, the
equal protection component of the Fifth Amendment, and the

3

“[M]ore than 700 individuals were arrested and detained on
immigration charges. If the FBI designated an alien as not being
‘of interest’ to the investigation, then he or she was processed
according to normal procedures. . . . If, however, the FBI
designated an alien as ‘of interest’ to the investigation, or if
it had doubts about the proper designation in a particular case,
the alien was detained subject to a ‘hold-until-cleared policy.’
The aliens were held without bail.” Ziglar, 137 S. Ct. at 1852.
9

Fourth Amendment. Id. at 1853-54.4 The detainees also alleged
Warden Hasty allowed MDC guards to abuse them. Id. at 1854. The
main issue pending before the Supreme Court was whether a remedy
for damages existed under Bivens against the Executive Officials
and Wardens. Id.
The Supreme Court in Ziglar concluded “that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at
1857. It held that federal courts should exercise caution before
extending the remedy to claims that are meaningfully different
than “the three Bivens claims the Court has approved in the
past: a claim against FBI agents for handcuffing a man in his
own home without a warrant; a claim against a Congressman for
firing his female secretary; and a claim against prison
officials for failure to treat an inmate's asthma.” Id. at 1860
(citing Bivens, 403 U.S. 388; Davis, 442 U.S. 228; Carlson, 446
U.S. 14). The Court concluded that the detention policy claims
against the Executive Officials were not properly brought
pursuant to Bivens “as a Bivens action is not a proper vehicle
for altering an entity's policy.” Id. at 1860 (internal
quotation marks omitted). The Court remanded the abuse claim
back to the Second Circuit to consider whether it was

4

There was also a claim under 42 U.S.C. § 1985(3) for conspiring
to violate the detainees’ equal protection rights, but this
claim is not relevant to the Court’s discussion of the Bivens
remedy.
10

appropriate for the courts to extend Bivens in light of the
identified “special factors.” Id. at 1869.
Ziglar created a funnel through which plaintiffs alleging
constitutional violations by federal officials must pass. First,
federal courts must determine whether the cause of action
presents a “new context” for Bivens cases. If it does, courts
must then determine whether alternative remedies exist. Finally
and most critically, courts must determine whether there are
special factors counselling against extending the Bivens remedy
to the new cause of action.
A.

New Context: Is the Claim “Meaningfully Different”?
As announced in Ziglar, “[t]he proper test for

determining whether a case presents a new Bivens context is as
follows. If the case is different in a meaningful way from
previous Bivens cases decided by this Court, then the context is
new.” Id. at 1859.
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 1860.

11

Plaintiff Alexander, an African American federal prisoner,
alleges Ortiz, the UNICOR factory manager, discriminated against
him on the basis of his race by promoting less qualified
Caucasian and Hispanic workers before him, in violation of the
Fifth Amendment. Plaintiff further alleges Ortiz retaliated
against him by denying Plaintiff opportunities to work overtime
shifts after Plaintiff filed grievances about the
discrimination, in violation of the First Amendment.
None of the three prior Bivens cases addressed federal
prisoners in the prison employment context. Carlson extended the
remedy to Eighth Amendment denial of medical care claims against
prison officials. 446 U.S. 14 (1980). Although Plaintiff’s
claims arise in the prison context, they are under the Fifth and
First Amendments and concern his job assignment, not his medical
care. Davis, while addressing a Fifth Amendment discrimination
claim, concerns a congressional employee. Plaintiff’s situation
is vastly different from the plaintiff in Davis as he is a
federal prisoner and is therefore not an “employee” within the
meaning of federal 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.”)(citing E.E.O.C. Dec. No. 86–7,
12

*3, 40 Fair Empl. Prac. Cas. (BNA) 1892 (1986)). Plaintiff’s
Fifth Amendment claim is therefore a new Bivens context because
it is meaningfully different from Bivens, Davis, and Carlson.
The Supreme Court has “never held that Bivens extends to
First Amendment claims” Reichle v. Howards, 566 U.S. 658, 663
n.4 (2012) (granting qualified immunity to Secret Service agents
on retaliatory arrest claim). See also Bush v. Lucas, 462 U.S.
367, 368 (1983) (refusing to extend Bivens to a First Amendment
speech claim involving federal employment). It has “several
times assumed without deciding that Bivens extends to First
Amendment claims.” Wood v. Moss, 134 S. Ct. 2056, 2066 (2014)
(holding Secret Service agents were entitled to qualified
immunity on viewpoint discrimination claim); see also Ashcroft
v. Iqbal, 556 U.S. 662, 675 (2009) (“[W]e assume, without
deciding, that respondent's First Amendment claim is actionable
under Bivens.”).
Plaintiff relies on a series of pre-Ziglar Third Circuit
precedent holding that Bivens extends to First Amendment claims.
See Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) (holding
Bivens remedy existed for prisoner’s right of access to the
courts claim); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975)
(holding Bivens remedy existed for First Amendment for high
school student whose name and address on mail to the Socialist
Workers Party was recorded by the FBI). See also Wilkerson v.
13

Samuels, 524 F. App’x 776, 777–79 (3d Cir. 2013) (per curiam)
(reversing district court’s dismissal of prisoner’s Bivens
retaliation claim against UNICOR supervisor). However, the Third
Circuit recently reevaluated its First Amendment approach postZiglar in a suit alleging retaliatory prosecution by a
Transportation Security Administration (“TSA”) officer.
Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017).
The plaintiff in Vanderklok alleged the TSA officer “called
the Philadelphia police and falsely reported that Vanderklok had
threatened to bring a bomb to the airport” because he had
“stated an intent to file a complaint against [the officer].”
Id. at 193. Vanderklok was acquitted of all criminal charges at
trial. Id. After reviewing its pre-Ziglar First Amendment Bivens
jurisprudence, the Third Circuit acknowledged that “[s]ince our
decisions in Paton and Milhouse permitting Bivens actions in
certain First Amendment contexts, the Supreme Court has plainly
counseled against creating new Bivens causes of action.” Id. at
199. “Our past pronouncements are thus not controlling in the
specific circumstances now at issue. It is not enough to argue .
. . that First Amendment retaliation claims have been permitted
under Bivens before.” Id. at 199.
Pursuant to Vanderklok, Plaintiff cannot rely on the fact
that courts have permitted Bivens First Amendment retaliation
actions to proceed in the past. See id. See also Gonzalez v.
14

Hasty, 269 F. Supp. 3d 45, 58 (E.D.N.Y. 2017) (“As an initial
matter, even though the Supreme Court has recognized causes of
action in Bivens under the Fourth Amendment, in Davis under the
Fifth Amendment, and in Carlson under the Eighth Amendment, that
does not mean that any cause of action may lie under those
Amendments simply by virtue of these Supreme Court cases.”).
Courts must examine each raised claim anew on its own particular
set of facts. Vanderklok, 868 F.3d at 199–200.
None of the Supreme Court’s prior Bivens cases concern a
First Amendment retaliation claim brought against a federal
prison workplace supervisor. The Court therefore concludes that
Plaintiff’s First Amendment retaliation claim, in the context of
a prison job assignment, is a new Bivens context.
B.

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.’” Id. at 200 (quoting Wilkie v. Robbins, 551 U.S. 537,
550 (2007)). See also Butts v. Martin, 877 F.3d 571, 587–88 (5th
Cir. 2017). “[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.
15

The Court finds an alternative remedy is not available to
Plaintiff. An injunction prospectively requiring the warden to
comply with Federal Prison Industries’ non-discrimination policy5
would not compensate Plaintiff for lost wages, and his 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).
Plaintiff may not bring his claim for damages under Title
VII of the Civil Rights Act of 1964, FLSA, Age Discrimination in
Employment Act (ADEA), Equal Pay Act (EPA), or 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).

5

See 28 C.F.R. § 345.35(a) (“[Federal Prison Industries] does
not discriminate on the bases of race, color, religion, ethnic
origin, age, or disability.”). See also BOP Program Statement
8120.03 at 2 (Feb. 23, 2017) (“[Federal Prison Industries] will
not discriminate on the bases of race, color, religion, ethnic
origin, age, or disability.”).
16

Plaintiff also may not rely on the Federal Tort Claims Act
(“FTCA”) to sue the United States instead of Ortiz 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).
The Court also concludes IACA does not provide a remedy for
Plaintiff in this particular situation. IACA states in relevant
part that UNICOR “is authorized to employ the fund . . . in
paying, under rules and regulations promulgated by the Attorney
General . . . compensation to inmates or their dependents for
injuries suffered in any industry or in any work activity in
connection with the maintenance or operation of the institution
in which the inmates are confined.” 18 U.S.C. § 4126(c)(4). The
regulations then permit compensation to be paid “to former
federal inmates or their dependents for physical impairment or
death resultant from injuries sustained while performing work
assignments” and for lost-time wages. 28 C.F.R. § 301.101(a)(b). “Work-related injury” is defined by the regulation as “any
injury, including occupational disease or illness, proximately
caused by the actual performance of the inmate's work
assignment.” 28 C.F.R. § 301.102(a).
The cases applying IACA have limited it to physical
injuries and illnesses. The IACA precludes relief under the FTCA
17

for “work-related” injuries, see United States v. Demko, 385
U.S. 382 (1966), and has been analogized to civilian worker’s
compensation laws, see Thompson v. U.S. Fed. Prison Indus., 492
F.2d 1082, 1083 (5th Cir. 1974). See also H.R. REP. NO. 87-534, at
1-2 (1961) (“This compensation is specified to be no greater
than that provided in the Federal Employees’ Compensation
Act.”). This supports the inference that Congress did not intend
IACA to provide a remedy for constitutional violations such as
those alleged by Plaintiff. See also Cooleen v. Lamanna, 248 F.
App'x 357, 362 & n.5 (3d Cir. 2007) (holding IACA does not bar
Bivens denial of medical care claim); Bagola v. Kindt, 131 F.3d
632 (7th Cir. 1997) (holding § 4126 did not provide procedural
safeguards protecting Eighth Amendment rights and permitting
Bivens claim).
The lack of an alternative remedy for damages does not
necessarily mean the Court should extend Bivens, however. 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)).
C.

Special Factors

18

Most critically, Ziglar requires courts to consider whether
there are “special factors counselling hesitation” before
extending a Bivens remedy to a new context.
“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.’”
Ziglar, 137 S. Ct. at 1857 (quoting Carlson v. Green, 446 U.S.
14, 18 (1980)). The Supreme Court did not define 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 185758. A “special factor counselling hesitation” is something that
“cause[s] a court to hesitate before answering that question in
the affirmative.” Id. at 1858. “The question is ‘who should
decide’ whether to provide for a damages remedy, Congress or the
courts? The answer most often will be Congress.” Id. at 1857
(quoting Bush, 462 U.S. at 380).
The Court finds that the prison workplace context is a
special factor precluding extending the Bivens remedy. The
Supreme Court has previously stated that “courts are ill
equipped to deal with the increasingly urgent problems of prison
administration and reform. . . . Running a prison is an
19

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). “Prison
administration is, moreover, 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.”).
UNICOR is a legislative creation designed to carry out the
work requirement for federal prisoners, subject to security,
disciplinary, medical, and rehabilitation exceptions. 18 U.S.C.
§§ 4121-4129. See also 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.”). “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
20

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 those sorts of claims
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.”).
Because the prison workplace is an area that is heavily
regulated by the legislative and executive branches, and because
it is not regarded as an employer/employee relationship, the
Court finds that it should be left to those branches to
determine whether an action for damages for claims of racial
discrimination and retaliation exists. Given the constraints of
Ziglar, the Court will not extend Bivens and will grant the
motion to dismiss for failure to state a claim.6

6

Because the Court is granting the motion on the merits, it does
not reach the qualified immunity argument.
21

V.

CONCLUSION
For the reasons stated above, the motion to dismiss the

amended complaint is granted.
An accompanying Order will be entered.

March 20, 2018
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

22