BERK v. HOLLINGSWORTH et al
Filing
46
OPINION. Signed by Judge Noel L. Hillman on 11/20/2020. (tf, n.m.)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
MICHAEL BERK,
:
:
Plaintiff,
:
Civ. No. 17-0091 (NLH) (AMD)
:
v.
:
OPINION
:
JORDAN HOLLINGSWORTH, et al., :
:
Defendants.
:
______________________________:
APPEARANCES:
Michael Berk, No. 43739-037
F.C.I. Seagoville
P.O. Box 9000
2113 N. Hwy 175
Seagoville, TX 75159
Plaintiff Pro se
Craig Carpenito, United States Attorney
John T. Stinson, Assistant United States Attorney
Office of the U.S. Attorney
District of New Jersey
402 East State Street
Room 430
Trenton, NJ 08608
Attorneys for Defendants
HILLMAN, District Judge
Defendants William Bickart, Jordan Hollingsworth, and
Stacey Marantz move to dismiss Plaintiff Michael Berk’s
complaint.
ECF No. 33.
For the following reasons, the motion
will be granted, and the First Amendment claims will be
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dismissed.
The Court concludes the remainder of the complaint
fails to state a claim and will therefore be dismissed under 28
U.S.C. § 1915.
I. BACKGROUND
Plaintiff, a federal prisoner, filed a complaint under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971), alleging that Defendants Warden Jordan Hollingsworth,
Chief Psychologist Stacey Marantz, and Behavioral Management
Programs Coordinator William Bickart directed Plaintiff’s
transfer from the Federal Correctional Institution at Fort Dix
in Fort Dix, New Jersey, a prison located near his family and
home, to the Federal Correctional Institution at Seagoville in
Texas.
See ECF No. 1.
He also alleged Defendant Jane Doe
opened, read, and confiscated his personal outbound mail in
violation of the First and Fourth Amendments and that Defendant
Caroline Gary, who is employed at the Bureau of Prison’s
Designation and Sentence Computation Center, approved and
processed his transfer.
Id.
Plaintiff states he was “arrested in 2008 for a non-contact
computer-based sex offense involving simple possession of
contraband pornography and communications with adult civilians
which violated federal law proscribing attempts to entice
notional minors for illegal sexual activity.”
ECF No. 1 at 6.
He was subsequently convicted of two counts of enticing a minor,
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18 U.S.C. §§ 2422(b) and 3583(k); and pled guilty to possession
of child pornography, 18 U.S.C. §§ 2252A(a)(5)(B) and 3583(k).
United States v. Berk, No. 2:08-cr-00212 (D. Me. Oct. 26, 2009)
(ECF No. 134).
The trial court sentenced Plaintiff to 200
months imprisonment and recommended that Plaintiff be placed in
a BOP facility that could provide him with sex offender
treatment.
Id.
While detained at the Strafford County, New Hampshire
Department of Corrections awaiting transportation to a BOP
facility, Plaintiff “was found in possession of ‘pieces of files
and saw blades intended to be used by [Berk] to cut into a
plexiglass window in his cell and a hardened steel rod bisecting
that window in an effort to escape.’”
ECF No. 33-2 at 9
(quoting Superseding Information, United States v. Berk, 1:10cr-00010 (D.N.H. June 28, 2010)) (alteration in original).
He
pled guilty to possessing contraband in prison in violation of
18 U.S.C. § 1791(a)(2).
Id.
The District of New Hampshire
sentenced Plaintiff to a 12-month sentence to be served
consecutively to his convictions from the District of Maine and
recommended placement in FCI Fort Dix or FCI Fairton, New Jersey
so Plaintiff could be near his family.
Id.
Plaintiff later filed a petition for writ of habeas corpus
under 28 U.S.C. § 2241 alleging improper discipline at FCI
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Seagoville, Texas.
ECF No. 1 at 6-7. 1
Plaintiff states that
this petition was dismissed as moot following his transfer from
Seagoville to Fort Dix in March 2015, but that the petition
“resulted in the reversal and expunction of that incident.”
Id.
at 7.
Plaintiff alleges that Defendant Marantz informed him on
July 1, 2015 “that BOP staff . . . had confiscated and forwarded
to her a written exchange between [him] and [his] fiancée.”
Id.
After consulting with BOP Central Office Staff it was determined
that Plaintiff would not be subject to any discipline because he
was not “subject to any pertinent directive . . . .”
Id.
“She
advised me to be careful not to write anything which could be
construed as indicating a propensity to commit future criminal
sex acts, in which case I would be transferred to a lessdesirable prison under more restrictive conditions where my
family could no longer visit me.”
Id.
Plaintiff asked
Defendant Marantz what he could and could not write “in the
context of private communication with my committed partner
(i.e., consenting adults in a healthy relationship), to avoid
consequences . . . .”
Id.
He alleges that he was transferred
1
The specifics of the § 2241 petition are unknown as the docket
was sealed by the court. Berk v. Mejia, 3:14-cv-04402 (N.D.
Tex. Jan. 30, 2015) (ECF No. 9) (Order sealing case).
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back to Seagoville under a Sex Offender Management Program
(“SOMP”) because of this inquiry and his prior § 2241.
Plaintiff alleges that he does not qualify for SOMP under
the relevant BOP program statements because he has not engaged
in “risk-relevant behavior.”
Id. at 8.
He asserts Defendant
Marantz retaliated against him for making inquires about his
written communications, Defendant Bickart requested the
transfer, and Defendant Gary at the DSCC approved and processed
his transfer.
Id.
He alleges Defendant Hollingsworth denied
his grievances about the opening of his mail and retaliated
against Plaintiff for the prior § 2241.
Id.
He also asserts
violations of the First and Fourth Amendments by Defendant Doe
for the opening of his mail, Fifth Amendment due process right,
Eighth Amendment prohibition on cruel and unusual punishment,
and Fourteenth Amendment equal protection right.
Id. at 9.
The Court screened the complaint under 28 U.S.C. §
1915(e)(2)(B) and concluded that the complaint should proceed
against Defendants Hollingsworth, Martinez, Bickart, and Doe.
ECF No. 13.
Defendant Gary was dismissed.
Id.
The Court noted
that an amended complaint and “supplement” that Plaintiff filed
prior to screening violated Federal Rule of Civil Procedure
15(a).
Id. at 2 n.1.
Summonses were issued to Defendants.
No. 18.
5
ECF
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On May 28, 2019, Plaintiff filed a motion for
reconsideration, or alternatively to amend his complaint.
No. 20.
ECF
dismiss.
After Defendants were served, they filed a motion to
ECF No. 33.
On December 9, 2019, the Court denied
Plaintiff’s motion for reconsideration or to amend but granted
Plaintiff permission to file a proposed second amended complaint
within 45 days.
ECF No. 40.
The Court administratively
terminated the motion to dismiss in the interim.
Id.
Plaintiff requested additional time to file his proposed
second amended complaint, ECF No. 42, and the Court granted that
request, ECF No. 43.
After Plaintiff failed to submit a
proposed amended complaint within the time set by the Court,
Defendants asked the Court to reinstate their motion to dismiss
the amended complaint.
ECF No. 44.
motion to dismiss on April 30, 2020.
The Court reinstated the
ECF No. 45.
As the Court
has not received any communication from Plaintiff since his
request for an extension in January 2020, it will consider his
previously filed opposition to the motion.
ECF No. 37.
II. 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
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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-unlawfullyharmed-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.
III. DISCUSSION
A.
First Amendment Claims
Defendants argue that Plaintiff cannot bring his First
Amendment claim for retaliation and interference with his mail
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under Bivens.
Alternatively, Defendants argue they have
qualified immunity to the claims.
The Supreme Court’s decision in Ziglar v. Abbasi, 137 S.
Ct. 1843 (2017) “created a funnel through which plaintiffs
alleging constitutional violations by federal officials must
pass.”
Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, at *4
(D.N.J. Mar. 20, 2018), aff’d, 807 F. App’x 198 (3d Cir. 2020).
First, the Court must determine whether the cause of action
presents a “new context” for Bivens cases.
If it does, the
Court must determine whether there are special factors
counselling against extending the Bivens remedy to the new cause
of action.
“[E]xpanding the Bivens remedy is now a ‘disfavored’
judicial activity.”
Abbasi, 137 S. Ct. at 1857.
“[T]he ‘proper test’ for determining whether a case
presents a new Bivens context is if the Supreme Court has not
previously recognized a claim in that context.
A context is
‘new’ if it implicates a constitutional right not previously
recognized by the Supreme Court.”
320 (3d Cir. 2020).
Mack v. Yost, 968 F.3d 311,
The Supreme Court has never recognized a
Bivens remedy for First Amendment claims.
See Reichle v.
Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that
Bivens extends to First Amendment claims.”); Mack, 968 F.3d at
320; Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir.
2017).
Plaintiff’s claims present new contexts, and the Court
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must consider whether special factors counsel against extending
the Bivens remedy.
Post-Abbasi, the Third Circuit has concluded that “[t]wo
special factors are ‘particularly weighty’: the availability of
an alternative remedial structure and separation-of-powers
concerns.”
Mack, 968 F.3d at 320.
Those considerations also
weigh against expanding Bivens to a case where a prisoner
alleges his transfer by the BOP was retaliatory in nature and
that the prison has been interfering with his non-legal mail.
“The Supreme Court has noted that ‘when alternative methods
of relief are available, a Bivens remedy usually is not.
Thus,
the availability of an alternative remedial structure may, on
its own, prevent courts from expanding Bivens.”
at 320 (quoting Abbasi, 137 S. Ct. at 1863).
Mack, 968 F.3d
Here, Plaintiff
has access to the BOP’s internal remedy system to address his
complaints about his mail handling and his transfer, see 28
C.F.R. §§ 542.10-542.19, and he used it, see ECF No. 37-1 at 10.
Plaintiff argues that the internal system is not an adequate
remedy because he must exhaust his internal remedies before he
can file a Bivens suit and he cannot obtain damages via the
internal system.
ECF No. 37-1 at 11.
The fact that Plaintiff’s administrative grievances were
unsuccessful does not mean an alternative remedy was not
available.
“It is sufficient that the administrative remedy was
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available to [Plaintiff], he made use of it, and the prison
officials addressed it.”
McFadden v. United States, No. 19-
2900, 2020 WL 5820745, at *3 (E.D. Pa. Sept. 30, 2020).
The
alternate remedy is also inadequate because Plaintiff could not
obtain damages from his internal remedies.
“[T]he alternative
remedy need not provide an individual with complete relief in
order to foreclose a damages remedy under Bivens.”
F.3d at 320 (emphasis omitted).
Mack, 968
“Accordingly, because
[Plaintiff] had access to at least ‘some redress,’ . . .
we
find that the BOP’s administrative remedy program offers a
‘convincing reason,’ for us to refrain from creating a new
damages remedy against federal prison officials.”
Id. at 321
(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001);
Abbasi, 137 S. Ct. at 1862)
The Court also concludes that separation of powers concerns
weigh heavily against extending Bivens to Plaintiff’s First
Amendment claims.
“Because courts are not in a position to
second-guess the administrative policies and functions
historically within the executive’s domain, we must exercise
restraint if judicial intervention would ultimately interfere
with executive functions.”
Id. at 322.
In Mack, the Third
Circuit declined to extend a Bivens remedy to a prisoner who
alleged his workplace supervisor retaliated against him when he
complained about harassment.
968 F.3d 311.
10
“First Amendment
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retaliation claims often require an ‘analysis of the reasoning,
motivations, or actions of prison officials,’ which counsels
against Bivens expansion.”
Id. at 322-23 (quoting Bistrian v.
Levi, 912 F.3d 79, 95 n.23 (3d Cir. 2018) (“Bistrian II”)).
Likewise, the Third Circuit declined to extend Bivens to a
First Amendment retaliation claim brought in the prison housing
context due to the separation of powers concerns.
912 F.3d 79.
Bistrian II,
“[R]etaliation claims like this one are grounded
in administrative detention decisions.
Whether to place an
inmate in more restrictive detention involves real-time and
often difficult judgment calls about disciplining inmates,
maintaining order, and promoting prison officials’ safety and
security.”
Id. at 96.
“That conclusion aligns with a strong
trend in district courts, post-Abbasi, holding that a Bivens
retaliation claim under the First Amendment should not be
recognized.
omitted).
We agree with that view.”
Id. (internal citation
The same concerns that dissuaded the Third Circuit in
Bistrian II and Mack convince this Court that Plaintiff’s
retaliation and mail 2 Bivens claims cannot proceed.
Plaintiff argues Abbasi does not foreclose his claims
because he is arguing the prison officials failed to follow BOP
procedure and is not contesting the legality of a particular BOP
2
This decision is limited to non-legal mail.
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policy.
ECF No. 37-1 at 12.
In order to succeed on his
retaliation claim, Plaintiff would need to establish a causal
connection between his grievances and his transfer, which
necessarily requires an analysis of the officers’ reasons and
motivations for transferring Plaintiff.
As with prison
workplace assignments, the BOP has considerable discretion in
transfer decisions.
“The Bureau of Prisons shall designate the
place of the prisoner’s imprisonment . . . .
The Bureau may at
any time, having regard for the same matters, direct the
transfer of a prisoner from one penal or correctional facility
to another.”
18 U.S.C. § 3621(b).
Allowing a Bivens remedy for
allegedly improper transfers when Congress specifically limited
district courts’ ability to review the BOP’s placement decisions
“would improperly encroach upon the executive’s domain.”
Mack,
968 at 323.
The process of screening non-legal mail is also extensively
regulated by the BOP.
“Moreover, as other courts have
recognized, special factors exist counseling against the
expansion of Bivens to First Amendment claims regarding
interference with mail, such as Congress’ decision to not
provide a damages remedy for certain violations and the
financial burden on federal agencies resulting from litigation.”
Railey v. Ebbert, 407 F. Supp. 3d 510, 522 (M.D. Pa. 2019),
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appeal dismissed, No. 19-3889, 2020 WL 3414760 (3d Cir. Feb. 19,
2020).
The Court concludes Plaintiff’s claims of a retaliatory
prison transfer and interference with his non-legal mail are new
contexts under Bivens and that there are special factors
counselling against creating a new Bivens remedy.
Plaintiff’s
First Amendment claims will be dismissed for failure to state a
claim.
Because Plaintiff has not stated a claim of a violation of
his federal rights, Defendants are also entitled to qualified
immunity.
See Reichle v. Howards, 566 U.S. 658, 664 (2012)
(“Qualified immunity shields government officials from civil
damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of
the challenged conduct.”).
B.
Remaining Claims
Defendants do not address Plaintiff’s other claims, but the
Court “shall dismiss the case at any time if the court
determines that fails to state a claim on which relief may be
granted[.]”
28 U.S.C. § 1915(e)(2)(ii).
In addition to the claims addressed above, Plaintiff argues
Defendants violated his First Amendment right to free
association, the Fourth Amendment by opening his mail, his Fifth
Amendment due process right, the Eighth Amendment prohibition on
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cruel and unusual punishment, and Plaintiff’s Fourteenth
Amendment equal protection right.
All of these claims are new
contexts under Bivens.
As noted supra, the Supreme Court has never extended Bivens
to any of the First Amendment’s protected activities, nor has it
extended Bivens to the Fourteenth Amendment’s equal protection
clause.
Although the Supreme Court did create a remedy for
violations of the Fourth Amendment and the Fifth Amendment due
process right, those cases were not decided in the prison
context.
See Bivens, 403 U.S. 388 (creating remedy for Fourth
Amendment claim for warrantless search and arrest); 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).
Similarly, Carlson v. Green, 446
U.S. 14 (1980), only addressed a prisoner’s claim of denial of
medical care under the Eighth Amendment.
None of the cases
identified by the Supreme Court in Abbasi concerned a prisoner’s
challenge to prison officials searching his mail and
transferring him to a different facility, making these claims
“different in a meaningful way” from the Court’s previous Bivens
case.
Abbasi, 137 S. Ct. at 1859-60.
The Court concludes extending the Bivens remedy to the
above claims would be inappropriate for the same reasons as it
would be inappropriate to extend Bivens to the retaliation and
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interference with mail claims.
The alternative remedies
available to Plaintiff and the infringement on the legislative
and executive branches caution against creating a judicial
remedy in the absence of congressional action.
C.
Injunctive Relief
Finally, Plaintiff has not shown that he is entitled to
injunctive relief in the form of a transfer back to FCI Fort Dix
and the return of any seized mail.
A request for injunctive relief in the prison context must
be “viewed with considerable caution.”
Rush v. Corr. Med.
Servs., Inc., 287 F. App'x 142, 144 (3d Cir. 2008).
A party
seeking the extraordinary remedy of preliminary injunctive
relief must show: “(1) a likelihood of success on the merits;
(2) that it will suffer irreparable harm if injunction is
denied; (3) that granting preliminary relief will not result in
even greater harm to the nonmoving party; and (4) that the
public interest favors such relief.”
Kos Pharms., Inc. v. Andrx
Corp., 369 F.3d 700, 708 (3d Cir. 2004).
“[F]ailure to
establish any element in [a plaintiff's] favor renders a
preliminary injunction inappropriate.”
Rush, 287 F. App'x at
144.
For the reasons stated above, Plaintiff has not shown a
likelihood of success on the merits of his complaint.
Nor has
he shown that he will be irreparably harmed if the Court does
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not grant the requested relief.
In light of Plaintiff's failure
to establish irreparable harm, it is unnecessary for the Court
to address the remaining factors in the injunctive relief
analysis.
See Frank's GMC Truck Ctr. v. Gen. Motors Corp., 847
F.2d 100, 102 (3d Cir. 1988) (stating that injunctive relief
cannot be granted where movant has not demonstrated probability
of irreparable harm).
IV. CONCLUSION
For the reasons set forth above, the motion to dismiss will
be granted.
The complaint will be dismissed for failure to
state a claim.
An appropriate Order follows.
Dated: November 20, 2020
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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