HEFFLEY v. FEDERAL BUREAU OF PRISONS FCI FORT DIX et al
Filing
76
OPINION. Signed by Judge Noel L. Hillman on 12/21/2023. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
TRAVIS HEFFLEY,
:
:
Plaintiff,
:
Civ. No. 17-3647 (NLH) (SAK)
:
v.
:
OPINION
:
:
FEDERAL BUREAU OF PRISONS
:
FCI FORT DIX, et al.,
:
:
Defendants.
:
:
______________________________:
APPEARANCES:
Travis Heffley
17225097
Otisville
Federal Correctional Institution
Inmate Mail/Parcels
P.O. Box 1000
Otisville, NY 10963
Plaintiff pro se
Philip R. Sellinger, United States Attorney
Heather Carney Costanzo, Assistant United States Attorney
Office of the United States Attorney
District of New Jersey
401 Market Street, Fourth Floor
Camden, NJ 08101
Attorneys for Defendants
HILLMAN, District Judge
Plaintiff Travis Heffley filed a complaint against
Defendants Federal Bureau of Prisons FCI Fort Dix (“BOP”),
Christopher Ebinger, Gregory Dobovich, John Mathes, Kevin
Bullock, Mark Holterman, and Robert Samynek (collectively
“Officer Defendants”) pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
No. 1.
ECF
The Court construed the complaint as alleging that the
Officer Defendants used excessive force against Plaintiff during
a cell extraction at FCI Fort Dix, New Jersey, and denied him
medical care for resulting injuries in violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.
Defendants now move for dismissal of the complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
62.
ECF No.
They also seek to file their Exhibit 1, a video recording
of the cell extraction and aftermath, under seal.
ECF No. 68.1
Plaintiff has not filed opposition to either motion and declined
the opportunity to appear in person for oral argument.
ECF No.
69.
For the reasons herein, the Court will grant the motions.
The complaint will be dismissed with prejudice.
I.
BACKGROUND
Plaintiff was detained in Fort Dix on April 3, 2017.
No. 1 at 2.
ECF
He was taken to the special housing unit (“SHU”)
but refused to enter “a two person cell with two other people.”
Id.
Plaintiff asserts five members of Fort Dix’s extraction
The DVD and flash drive containing the video shall be kept in a
secure area of the Clerk’s Office.
2
1
team (“Team”) tackled him to the ground, pinning Plaintiff’s
right arm underneath him.
Id.
“[O]ne or more” of the Team
members punched Plaintiff in the right side of his face.
Id.
He was eventually put in hand and ankle restraints and taken to
an empty cell.
Id.
His clothes were changed before being left
in the cell all night, still restrained.
were removed around 3 p.m. on April 4.
Id.
The restraints
Id.
Plaintiff alleges that his right knee and eye were injured
during the extraction.
but his eye was not.
Id.
Id.
The cuts on his knee were treated,
Plaintiff asserts he has “problems
with black floating spots in [his] vision.”
Id.
Plaintiff filed this complaint on May 22, 2017 against John
Does 1-5 Team members.
Id. at 1.
The Court reviewed the
complaint under 28 U.S.C. § 1915(e)(2) and concluded sua sponte
dismissal was not appropriate.
ECF No. 7.
However, the Court
acknowledged that the Complaint could not be served on unknown
John Doe defendants, and thus, the Court authorized discovery
pursuant to Federal Rules of Civil Procedure 26(d) and 34(c)
limited to discovering the identities of the John Doe Team
members.
Id. at 3.
On March 20, 2019, this Court received four
AO88A subpoenas and ordered the Marshals to serve those
subpoenas.
ECF No. 13.
Plaintiff submitted a letter to the
Court containing a Form 583 Report of Incident with the Officer
Defendants’ names.
ECF No. 14 at 3.
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The Court ordered the
Officer Defendants to be substituted for the John Doe
defendants.
ECF No. 17.
After some procedural difficulties, Magistrate Judge Sharon
A. King appointed pro bono counsel for the limited purpose of
helping Plaintiff complete service.
ECF No. 40.
After being
served, the BOP and the Officer Defendants filed the instant
motion to dismiss and motion to seal their exhibit.
ECF Nos. 62
& 68.
II.
STANDARD OF REVIEW
A.
Standard for Motion to Dismiss Under Rule 12(b)(1)
A challenge to this Court’s subject matter jurisdiction is
determined pursuant to Federal Rule of Civil Procedure 12(b)(1).
Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir.
2000).
A motion to dismiss pursuant to Rule 12(b)(1) may attack
subject-matter jurisdiction facially or factually.
Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016).
Davis v.
A facial attack
does not dispute the facts as alleged in the complaint, id., and
therefore essentially applies the same standard as Rule
12(b)(6), see Severa v. Solvay Specialty Polymers USA, LLC, 524
F. Supp. 3d 381, 389 (D.N.J. Mar. 10, 2021) (citing In re
Schering Plough Corp. Intron/Temodar Consumer Class Action, 678
F.3d 235, 243 (3d Cir. 2012)).
A factual attack, on the other
hand, challenges the allegations by which jurisdiction is
asserted, permitting the Court to weigh evidence outside the
4
pleadings and placing a burden of proof on Plaintiff to
demonstrate that jurisdiction indeed exists.
See Davis, 824
F.3d at 346.
B.
Standard for Motion to Dismiss Under Rule 12(b)(6)
Pursuant to Federal Rule of Civil Procedure 12(b)(6), when
deciding a motion to dismiss, a court accepts all well-pled
facts as true, construes the complaint in the plaintiff’s favor,
and determines “whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.”
Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)
(internal quotation marks omitted).
“Under Federal Rule of
Civil Procedure 8(a)(2), a complaint must contain a ‘short and
plain statement of the claim showing that the pleader is
entitled to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
To survive a Rule 12(b)(6) challenge, the plaintiff’s
claims must be facially plausible, meaning that the well-pled
facts “allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
678.
Id. at
The allegations must be “more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”
Twombly, 550 U.S. at 555.
Finally, “[i]n
deciding a Rule 12(b)(6) motion, a court must consider only the
5
complaint, exhibits attached to the complaint, matters of public
record, as well as undisputedly authentic documents if the
complainant’s claims are based upon these documents.”
Mayer v.
Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
III. DISCUSSION
A.
Lack of Subject Matter Jurisdiction
Defendant BOP argues any claims against it should be
dismissed for lack of subject matter jurisdiction.
at 11.
ECF No. 62-1
The Court agrees and will dismiss any Bivens claims
against the agency.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”
U.S. 471, 475 (1994).
nature.”
Id.
F.D.I.C. v. Meyer, 510
“Sovereign immunity is jurisdictional in
The implied right of action in Bivens does not
waive the United States’ sovereign immunity.
Therefore, the BOP
is immune from suit, and the Court lacks subject matter
jurisdiction.
The Court will dismiss the claims against the BOP
with prejudice.
B.
Fed. R. Civ. P. 12(b)(1).
Constitutional Claims
The Court construed the complaint as alleging that the
Officer Defendants used excessive force against Plaintiff during
the cell extraction and denied him medical care for the
resulting injury to his eye.
ECF No. 1 at 2.
6
The Officer
Defendants now move for dismissal of those claims because the
Bivens remedy does not extend to them.
“In Bivens, the Court held that it had authority to create
‘a cause of action under the Fourth Amendment’ against federal
agents who allegedly manacled the plaintiff and threatened his
family while arresting him for narcotics violations.”
Egbert v.
Boule, 596 U.S. 482, 490 (2022) (quoting Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397
(1971)).
“Over the following decade, the Court twice again
fashioned new causes of action under the Constitution — first,
for a former congressional staffer’s Fifth Amendment sexdiscrimination claim; and second, for a federal prisoner’s
inadequate-care claim under the Eighth Amendment.”
Id. at 490-
91 (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v.
Green, 446 U.S. 14 (1980)).
“In the fifty-two years since
Bivens was decided, however, the Supreme Court has pulled back
the reins to what appears to be a full stop and no farther.”
Xi
v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023).
In 2017, the Supreme Court concluded “that expanding the
Bivens remedy is now a ‘disfavored’ judicial activity.”
v. Abbasi, 582 U.S. 120, 135 (2017).
Ziglar
See also Hernández v.
Mesa, 140 S. Ct. 735, 742 (2020) (“In both statutory and
constitutional cases, our watchword is caution.”).
“These three
cases — Bivens, Davis, and Carlson — represent the only
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instances in which the Court has approved of an implied damages
remedy under the Constitution itself.”
Abbasi, 582 U.S. at 131.
“Indeed, in light of the changes to the Court’s general approach
to recognizing implied damages remedies, it is possible that the
analysis in the Court’s three Bivens cases might have been
different if they were decided today.”
Id. at 134.
Abbasi “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).
“First, we ask whether the case presents ‘a new
Bivens context’ — i.e., is it ‘meaningful[ly]’ different from
the three cases in which the Court has implied a damages
action.”
Egbert, 596 U.S. at 492 (quoting Abbasi, 582 U.S. at
139-40).
“If a case does not present a new Bivens context, the
inquiry ends there, and a Bivens remedy is available.”
v. United States, 12 F.4th 366, 372 (3d Cir. 2021).
Shorter
“[I]f it is
a new context, we ask, second, whether there are special
factors’ indicating that the Judiciary is at least arguably less
equipped than Congress to weigh the costs and benefits of
allowing a damages action to proceed.”
(internal quotation marks omitted).
Xi, 68 F.4th at 833
The Supreme Court has
“observed that these steps ‘often resolve to a single question:
whether there is any reason to think that Congress might be
better equipped to create a damages remedy’; if so, [the court]
8
may not expand Bivens to cover the claim.”
Id. (quoting Abbasi,
582 U.S. at 136).
1.
Plaintiff’s Excessive Force Claim Presents a New
Context
Plaintiff’s allegation that the Officer Defendants used
excessive force during the cell extraction is most similar to
Bivens itself, but there are key differences that require a
finding that Plaintiff’s claim arise in a new context.
Bivens
concerned the use of force under the Fourth Amendment during an
arrest.
See generally Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
As a convicted
and sentenced prisoner, Plaintiff’s excessive force claim falls
under the Eighth Amendment.
See Whitley v. Albers, 475 U.S.
312, 318-19 (1986).
This is a significant difference because the Fourth
Amendment only requires a showing of an objectively unreasonable
use of force, Graham v. Connor, 490 U.S. 386 (1989), whereas the
Eighth Amendment requires “a claimant [to] allege and prove the
unnecessary and wanton infliction of pain . . . .”
U.S. at 320.
Whitley, 475
This difference is enough for the Court to
conclude that Plaintiff’s claim of excessive force presents a
new context.
See also Abbasi, 582 U.S. at 139-140 (“A case
might differ in a meaningful way because of . . . the
constitutional right at issue . . . .”); Landis v. Moyer, 610 F.
9
Supp. 3d 649, 657 (M.D. Pa. 2022) (“There is no question that
[plaintiff’s] excessive-force claim presents a new context . . .
.”).
2.
Plaintiff’s Medical Care Claim Presents a New Context
Plaintiff’s second allegation against the Officer
Defendants, that they denied him treatment for his eye injury,
is also a new Bivens context.
Carlson, in which the Supreme
Court extended the remedy to a federal prisoner’s inadequatecare claim under the Eighth Amendment, is the most applicable of
the three Bivens remedy cases to this claim.
446 U.S. 14 (1980).
Carlson v. Green,
Once again, however, there are significant
differences between Carlson and the present facts that make
Plaintiff’s inadequate-care claim a new context.
See Egbert,
596 U.S. at 501 (“[A] plaintiff cannot justify a Bivens
extension based on ‘parallel circumstances’ with ... Carlson
unless he also satisfies the ‘analytic framework’ prescribed by
the last four decades of intervening case law.”).
“[T]he Carlson Court extended an implied cause of action
for money damages pursuant to Bivens where the alleged
deliberate indifference of prison officials was most serious; it
resulted in a fatality of a prisoner.”
Peguero v. Quay, No.
1:22-CV-00057, 2023 WL 2410882, at *10 (M.D. Pa. Mar. 8, 2023)
(declining to extend Bivens remedy to claim of chronic low back
pain).
Plaintiff’s injury was the result of an isolated
10
incident whereas Carlson concerned the failure to treat a
chronic condition that could be, and ultimately was, fatal.
Plaintiff “may have been injured, the severity of his injuries
have not proven to be fatal.”
Hurst v. Dayton, No. 22-CV-00171-
DKW-RT, 2023 WL 2526460, at *5 (D. Haw. Mar. 15, 2023)
(declining to extend Bivens remedy to medical conditions brought
on by prison riot), appeal filed, No. 23-15523 (9th Cir. Apr. 5,
2023).
“This difference is significant for multiple reasons,
including that administrative and injunctive relief would have a
completely different application to Plaintiff’s claims than to
the claims in Carlson . . . .”
Washington v. Fed. Bureau of
Prisons, No. CV 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C.
Aug. 26, 2022).
Plaintiff’s claim presents a new Bivens
context, and the Court must proceed to the second step of
review.
3.
Special Factors Counsel Against Extending Bivens
Step two requires the Court to consider “whether special
factors counsel hesitation in extending a Bivens remedy.”
Haugen, 68 F.4th 824, 836 (3d Cir. 2023)(cleaned up).
Xi v.
“The
Bivens inquiry does not invite federal courts to independently
assess the costs and benefits of implying a cause of action.
court faces only one question: whether there is any rational
reason (even one) to think that Congress is better suited to
‘weigh the costs and benefits of allowing a damages action to
11
A
proceed.’”
136).
Egbert, 596 U.S. at 496 (quoting Abbasi, 582 U.S. at
“If there is even a single ‘reason to pause before
applying Bivens in a new context,’ a court may not recognize a
Bivens remedy.”
Id. at 492 (quoting Hernández v. Mesa, 140 S.
Ct. 735, 743 (2020)).
See also Graber v. Doe II, 59 F.4th 603,
609 (3d Cir. 2023).
The Supreme Court has held that “a court may not fashion a
Bivens remedy if Congress already has provided, or has
authorized the Executive to provide, ‘an alternative remedial
structure.’”
at 137).
Egbert, 596 U.S. at 495 (quoting Abbasi, 582 U.S.
The Supreme Court has held that the BOP’s
administrative remedy program satisfies this requirement.
Id.
at 497 (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74
(2001)).2
See also Bulger v. Hurwitz, 62 F.4th 127, 140-41 (4th
Cir. 2023) (finding that BOP’s administrative remedy is a
sufficient “alternative remedial structure” in special factors
analysis); Silva v. United States, 45 F.4th 1134, 1141 (10th
Cir. 2022) (same).
It is irrelevant that monetary damages are
not available through the BOP’s program.
“So long as Congress
or the Executive has created a remedial process that it finds
sufficient to secure an adequate level of deterrence, the courts
Plaintiff does not appear to have used the administrative
remedy program, stating that he “tried informal resolutions.”
ECF No. 1 at 2.
12
2
cannot second-guess that calibration by superimposing a Bivens
remedy.”
Egbert, 596 U.S. at 498.
The Court “recognize[s] this
remedial scheme might prove to be cold comfort to [Plaintiff],
who seeks an adversarial process and monetary damages, but the
Supreme Court has declared that the government’s procedures need
not be as effective as an individual damages remedy to foreclose
Bivens relief.”
Barry v. Anderson, et al., No. 22-3098, 2023 WL
8449246, at *4 (3d Cir. Dec. 6, 2023).
Accordingly, the Court must dismiss Plaintiff’s
constitutional claims against the Officer Defendants as Bivens
does not afford him a remedy absent Congressional action.
C.
Motion to Seal
Defendants also move to seal an exhibit to their motion, a
video recording of the cell extraction and aftermath.
ECF No.
68.
“It is well-settled that there exists, in both criminal and
civil cases, a common law public right of access to judicial
proceedings and records.”
192 (3d Cir. 2001).
In re Cendant Corp., 260 F.3d 183,
This “right of access extends beyond simply
the ability to attend open court proceedings.
Rather, it
envisions a pervasive common law right to inspect and copy
public records and documents, including judicial records and
documents.”
Id. (internal quotation marks omitted).
A party
seeking to seal portions of the judicial record from public view
13
bears party “bears the heavy burden of showing that the material
is the kind of information that courts will protect and that
disclosure will work a clearly defined and serious injury to the
party seeking closure.”
Millhouse v. Ebbert, 674 F. App’x 127,
128 (3d Cir. 2017) (per curiam) (internal quotation marks and
citations omitted).
In deciding a motion to seal, the Court considers:
(a) the nature of the materials or proceedings at issue;
(b) the legitimate private or
warrants the relief sought;
public
interest
which
(c) the clearly defined and serious injury that would
result if the relief sought is not granted;
(d) why a less restrictive alternative to the relief
sought is not available;
(e) any prior order sealing the same materials in the
pending action; and
(f) the identity of any party or nonparty known to be
objecting to the sealing request.
L. Civ. R. 5.3(c)(3).
The public has a strong interest in the openness of
judicial records.
“Consideration of the public's right of
access must be the starting point, not just one of multiple
factors.
The scale is tipped at the outset in favor of access.”
In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig., 924 F.3d
662, 677 (3d Cir. 2019).
“The public's interest is particularly
legitimate and important where, as in this case, at least one of
14
the parties to the action is a public entity or official.”
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.
1994).
Plaintiff has a right to have his complaint adjudicated
in a public process, and the public has a right to information
about how federal prisons use force to restrain an inmate.
See
In re Avandia Mktg., 924 F.3d at 671 (directing courts to
consider “whether confidentiality is being sought over
information important to public health and safety” and “whether
the case involves issues important to the public”).
Additionally, for civil trials, there is a First Amendment right
of access which requires a “much higher showing” than the common
law right of access. Id. at 673 (3d Cir. 2019).
However, the Court concludes the public interest is
slightly reduced in this specific instance because the Court did
not consider the video’s contents as part of Defendants’ motion
to dismiss; the Court’s decision rests on the unavailability of
a Bivens remedy for the facts alleged in Plaintiff’s public
complaint.
Thus, there is not a concern that a critical basis
for the Court’s decision is being withheld from public scrutiny.
The Court now proceeds to consider whether Defendants have
overcome this reduced public interest in having access to the
video.
The video chronicles the April 3, 2017 cell extraction that
is the subject of Plaintiff’s complaint.
15
It begins with a
briefing by non-party BOP officials and the Officer Defendants
in which they set forth the use of force authorization process.
The group proceeds through interior locations within Fort Dix’s
SHU to Plaintiff’s location.
A non-party staff member attempts
to deescalate the confrontation, but ultimately the Officer
Defendants enter the cell and forcefully restrain Plaintiff.
They then escort Plaintiff through the hallway to another cell.
The Officer Defendants remove Plaintiff’s clothing, give him new
attire, and place him in ambulatory restraints.
medical officer then examines Plaintiff.
A non-party
The Officer Defendants
exit the cell and return to the debriefing room.
Defendants argue the video should be kept under seal to
protect “sensitive law enforcement information; namely the
interior of the FCI Fort Dix Special Housing Unit and BOP
techniques for conflict avoidance, cell extraction, and
locations and movement within FCI Fort Dix.”
ECF No. 68-1 at 4.
They also cite the need to protect “Plaintiff’s personal medical
information.”
Id.
Some of these reasons are not persuasive reasons to seal
the video.
Plaintiff has a legitimate privacy interest in his
medical information, see Doe v. Delie, 257 F.3d 309, 315 (3d
Cir. 2001), but he inserted the relevance of his medical
information and conditions into this action by alleging
Defendants denied him necessary medical care.
16
The exam reveals
minimal health information, and Plaintiff is only shown from the
waist up when his clothing is removed.
Moreover, information
about BOP conflict avoidance techniques is publicly accessible
as part of the BOP’s program statement on the Use of Force and
Application of Restraints, Program Statement 5566.06 CN-1 (Aug.
29, 2014), available at https://www.bop.gov/resources/
policy_and_forms.jsp (last visited Dec. 15, 2023).
That being said, the BOP has a strong security interest in
keeping the layout of Fort Dix’s SHU confidential.
“[O]ther
courts have concluded that releasing sensitive, security related
information about the internal workings of a prison creates a
risk of danger to correction officers and other inmates.”
Kearney v. Bayside State Prison Admin., No. 17-06269, 2023 WL
2207392, at *2 (D.N.J. Feb. 23, 2023) (citing cases).
The
information relayed in the video also goes beyond the general
use of force guidelines set forth in the BOP’s program statement
and shows specific cell extraction techniques.
If this
information were publicly accessible, other inmates could access
the recording and use that information to anticipate BOP actions
during a cell extraction.
This would negatively impact the
BOP’s ability to maintain security and safety within its
facilities.
The Court finds that Defendants have articulated a strong,
legitimate interest in protecting the security and operations of
17
the prison which warrants the relief sought and outweighs the
public interest in accessing the video.
Plaintiff’s complaint
and Defendants’ moving papers remain publicly accessible, as
will the Court’s Opinion and Order, so Plaintiff and the public
will have access to “the legal issues in play, the factual
circumstances, and the areas of dispute between the parties.”
ECF No. 68-1 at 3.3
The Court also concludes there is no less restrictive
alternative as the sensitive information about the interior
locations and extraction techniques is the entire video.
There
are no prior orders sealing the video, although it is subject to
a discovery confidentiality order.
ECF No. 65.
Plaintiff has
not objected to the motion to seal and declined the opportunity
to appear in person for oral argument.
ECF No. 69.
He will not
be prejudiced by sealing the video because he was granted the
opportunity to view it as part of the discovery confidentiality
order.
ECF No. 65.
The Court will grant the motion to seal the video
recording.
The Clerk’s Office will be ordered to maintain the
original video pursuant to the sealed filings guidelines.
The Court notes that the analysis may have been different if the
case were proceeding to trial since the video would have been
entered into evidence as part of the trial record, but the Court
is dismissing the complaint on jurisdictional grounds without
reaching the merits.
18
3
IV.
CONCLUSION
For the reasons set forth above, the Court will grant
Defendants’ motion to dismiss and motion to seal.
An appropriate Order follows.
Dated: December 21, 2023
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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