Dixon v. Blackensee

Filing 55

OPINION AND ORDER re: 36 MOTION for Reconsideration re; 35 Memorandum & Opinion,,,, . filed by Barbara Von Blackensee. For the foregoing reasons, Defendant's motion for reconsideration is GRANTED in part and DENIED in part. It is granted only insofar as the Court will dismiss Plaintiff's First Amendment Bivens claim. Plaintiff's Fifth Amendment Bivens claim remains. The parties are directed to confer and submit a case management plan (attached) by May 11, 2020. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 36. The Clerk of the Court is further directed to update Plaintiffs address on the docket to reflect his transfer to FCI Berlin (See Letter dated January 24, 2020, ECF No. 53.) Defendant is directed to mail a copy of this Opinion and Order to Plaintiff at his FCI Berlin address, and to file proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 3/26/2020) (ks)

Case 7:17-cv-07359-NSR Document 55 Filed 03/27/20 Page 1 of 11
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Plaintiff,
No. 17-cv-7359 (NSR)
OPINION & ORDER

BARBARA VON BLACKENSEE - WARDEN OF
THE OTISVILLE CORRECTIONAL FACILITY, in
her individual capacity,
Defendant.

NELSON S. ROMAN, United States District Judge:
Plaintiff Male Dixon a/k/a James King ("King" or "Plaintiff'), a pro se 1 incarcerated
inmate at FCI Berlin, commenced this action on or about September 25, 2017. (Complaint,
("Compl."), ECF No. 1.) On February 5, 2018, Plaintiff filed his Second Amended Complaint.
(Second Amended Complaint, ("SAC"), ECF No. 9.) In this action, Plaintiff brought claims
against Barbara Von Blackensee ("Defendant" or "Blackensee"), a former Warden of Otisville
Correctional Facility, in her individual and official capacity, pursuant to 42 U.S.C. § 1983 and
under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971).
By Opinion and Order dated June 11 , 2019 ('"the June 11 , 2019 Order"), the Court granted
in part and denied in part Defendant' s Motion to Dismiss the SAC pursuant to Federal Rules of
Civil Procedure 12(b)(l) and 12(b)(6). (See ECF Nos. 24, 35.) All of Plaintiff's claims against
Defendant Blackensee in her official capacity and under Section 1983 were dismissed as a matter
of law. All claims against Blackensee in her individual capacity under Bivens were dismissed,

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Counsel, ECF No. 41.)

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Case 7:17-cv-07359-NSR Document 55 Filed 03/27/20 Page 2 of 11

except for Plaintiff’s Fifth and First Amendment claims for money damages.
On June 17, 2019, Blackensee filed a motion for reconsideration of the Court’s June 11,
2019 Order pursuant to Federal Rule of Civil Procedure 60(b) and Local Civil Rule 6.3. (ECF No.
36.) For the reasons stated below, Blackensee’s motion for reconsideration is GRANTED in part
and DENIED in part.
BACKGROUND
The Court assumes familiarity with the facts and allegations in this case, as well as the
procedural background of this case. See Dixon v. Von Blackensee, No. 17-CV-7359 (NSR), 2019
WL 2433597, at *1 (S.D.N.Y. June 11, 2019). The central allegation in this case is that Blackensee
violated Plaintiff’s constitutional rights by arbitrarily defying a state court transport order. As a
result of the June 11, 2019 Order, the only remaining claims are Plaintiff’s Fifth and First
Amendment claims for money damages under Bivens.
LEGAL STANDARD
A motion for reconsideration may be granted for “any . . . reason that justifies relief.” Fed.
R. Civ. P. 60(b)(6). 2 While the decision to grant or deny such a motion rests within “the sound
discretion of the district court,” “such relief should be granted only in extraordinary
circumstances.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009) (citing Liljeberg v. Health Serv.
Acquisition Corp., 486 U.S. 847, 863, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)); see also In re
Initial Pub. Offering Sec. Litig., 399 F. Supp. 2d 298, 300 (S.D.N.Y. 2005) (internal citation and
quotation omitted), aff'd sub nom. Tenney v. Credit Suisse First Boston Corp., No. 05-CV-3430,
Plaintiff contends that Rule 60(b) is inapplicable to the June 11, 2019 Order because a decision denying a motion to
dismiss is not appealable. But, as Defendant correctly notes, an order denying qualified immunity as a matter of law
is immediately appealable. See Behrens v. Pelletier, 516 U.S. 299, 307, 116 S. Ct. 834, 839, 133 L. Ed. 2d 773 (1996)
(“[A]n order rejecting the defense of qualified immunity at . . . the dismissal stage . . . is a “final” judgment subject to
immediate appeal) (citing Mitchell v. Forsyth, 472 U.S. 511 (1985)); see also Lawyer v. Cota, 764 Fed. App’x 65, 67
(2d Cir. 2019) (affirming the grant of a Rule 60(b) motion seeking reconsideration of an order denying qualified
immunity at the motion-to-dismiss stage).
2

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2006 WL 1423785, at *1 (2d Cir. 2006) (reconsideration of a Court’s previous order is “an
extraordinary remedy to be employed sparingly in the interests of finality and conservation of
scarce judicial resources.”).
In this district, motions for reconsideration are governed by Local Civil Rule 6.3, and the
standard for granting a motion for reconsideration “is strict.” McCloud v. Perez, No. 17-CV1827(AJN)(KNF), 2018 WL 5818103, at *1 (S.D.N.Y. Aug. 17, 2018) (quoting Shrader v. CSX
Transp., 70 F.3d 255, 257 (2d Cir. 1995)). Indeed, reconsideration will generally be denied “unless
the moving party can point to controlling decisions or data that the court overlooked—matters, in
other words, that might reasonably be expected to alter the conclusion reached by the court.” Pac.
Life Ins. Co. v. Bank of New York Mellon, No. 17-CV-1388 (KPF), 2018 WL 1871174, at *1
(S.D.N.Y. Apr. 17, 2018) (quoting Shrader, 70 F.3d at 257).
Accordingly, a motion for reconsideration “is not a vehicle for . . . presenting the case under
new theories . . . or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quotation and citation omitted); see also Nat'l
Union Fire Ins. Co. of Pittsburgh, PA v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001) (quoting
Polsby v. St. Martin’s Press, No. 97 Civ. 0690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18,
2000)) (in moving for reconsideration, “a party may not advance new facts, issues, or arguments
not previously presented to the Court.”). Nor is such a motion “an occasion for repeating old
arguments previously rejected . . .” RSM Prod. Corp. v. Fridman, No. 06-CV-11512, 2008 WL
4355406, at *2 (S.D.N.Y. Sept. 23, 2008) (internal quotation marks omitted).
DISCUSSION
As to the claims that survived Defendant’s motion to dismiss, the Court found that Plaintiff
had adequately alleged constitutional violations sounding in the Fifth Amendment’s due process

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clause and the First Amendment. (See June 11, 2019 Order at 8–21). Defendant does not appear
to challenge the Court’s opinion on that score. Instead, Defendant argues that the Court erred in
its Bivens analysis by overlooking controlling law. Defendant also contends that the Court
overlooked her argument that she is entitled to the defense of qualified immunity. Plaintiff
counters that this motion is improperly before the Court because it attempts to relitigate issues that
the Court previously decided in its June 11, 2019 Order. The Court addresses these points in turn.
I.

Application of Bivens
As detailed in the June 11, 2019 Order, the Court found that Plaintiff’s Fifth and First

Amendment claims could appropriately proceed under a Bivens theory. (See June 11, 2019 Order
at 23–28.) The Court applied the two-step test set forth by the Supreme Court in Ziglar v. Abbasi,
137 S. Ct. 1843 (2017). Under this test, a court must first decide whether a claim “presents a new
Bivens context.” Id. at 1859. If so, the court must then proceed to a “special factors” analysis and
decide “who should decide whether to provide for a damages remedy, Congress or the courts[.]”
Id. at 1857. The Court found that Plaintiff’s claims did present new Bivens contexts, and therefore
turned to the “special factors” analysis. The Court considered: (i) the constitutional, rather than
statutory, bases for Plaintiff’s claims for relief; (ii) separation of powers principles; (iii) the
existence of any other avenues for redress; (iv) whether equitable remedies would be more
appropriate; and (v) whether there was any other cause for hesitation, that is, any reason to “doubt
the efficacy or necessity of a damages remedy as part of the system of enforcing the law.” Ziglar,
137 S.Ct. at 1858. After a fulsome discussion of each factor, the Court held that, should Plaintiff’s
claim survive motion practice and yield liability on the merits, under Bivens, Plaintiff could
recover monetary damages.
Defendant argues that redress should not be made available to Plaintiff under Bivens in
these circumstances. In particular, Defendant takes issue with the Court’s analysis as it pertained
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to the first factor: the constitutional bases for Plaintiff’s claims. Defendant is correct to point out
that all Bivens claims will necessarily be constitutional. To clarify, the Court’s discussion of the
distinction between statutory and constitutional claims was intended to highlight the unique
context in which Bivens claims are analyzed. As the Supreme Court has pointedly observed, “the
question of who may enforce a statutory right is fundamentally different from the question of who
may enforce a right that is protected by the Constitution.” Davis v. Passman, 442 U.S. 228, 241,
99 S. Ct. 2264, 2275, 60 L. Ed. 2d 846 (1979) (emphasis in original). It was misleading for the
June 11, 2019 Order to pronounce that this “weighs heavily in favor of granting Bivens redress,”
when in actuality it merely set the stage for the separation of powers analysis that followed.
Nevertheless, the Court’s conclusion still stands: for the other myriad reasons discussed at
length in the June 11, 2019 Order, and in consideration of all of the salient “special factors,” there
was “no reason for the Court[] to hesitate in providing a damages remedy in this context.” (June
11, 2019 Order at 28.) This conclusion was reached despite recognition that a high bar exists for
breaking new Bivens ground. (See id. at 7, 23) (acknowledging that “expanding the Bivens remedy
is now a ‘disfavored’ judicial activity”) (citing Ziglar, 137 S. Ct. at 1857.) Though the bar to do
so is high, the Supreme Court left open the distinct possibility that the Bivens doctrine could
develop further. See Ziglar, 137 S. Ct. at 1857–58 (“[I]f equitable remedies prove insufficient, a
damages remedy might be necessary to redress past harm and deter future violations.”).
Defendant has not presented any “controlling decisions or data that the court overlooked.”
Defendant cites one other district court decision that declined to extend Bivens’ damages remedy
against a BOP official in a personal capacity, citing Congress’s legislation in the area of the
litigation of prisoners’ rights through the Prison Litigation Reform Act (“PLRA”). But this Court
rejected such a deferential approach, and unambiguously declined to “[r]elegat[e] the vindication

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of Constitutional rights to Congress” in this specific situation. (June 11, 2019 Order at 26–27.)
Furthermore, “[c]ontrolling decisions include decisions from the United States Court of Appeals
for the Second Circuit; they do not include decisions from other circuits or district courts, even
courts in the Southern District of New York.” Langsam v. Vallarta Gardens, No. 08 Civ. 2222
(LAP), 2009 WL 2252612, at *2 (S.D.N.Y. July 28, 2009). Therefore, Defendant has not
demonstrated the “extraordinary circumstances” necessarily to justify reconsideration on this
issue. See Aczel, 584 F.3d at 61 (2d Cir. 2009).
II.

Qualified Immunity
Defendant argues that qualified immunity bars Plaintiff’s claims against her, and notes that

this argument was raised in her briefing in support of her motion to dismiss. (See Memorandum
of Law in Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint Pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), at 8 (“Def.’s MOL”), ECF No. 25; Reply
Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint Pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), at 4 (“Def.’s Reply MOL”), ECF No.
28.) The Court’s June 11, 2019 Order did not squarely address the issue of qualified immunity but
allowed two claims to survive, thereby denying Defendant’s qualified immunity defense sub
silentio. As such, the Court will reexamine its reasoning and address the points raised by
Defendant.
a. Requirements for Defense of Qualified Immunity
The doctrine of qualified immunity gives officials ‘breathing room to make reasonable but
mistaken judgments about open legal questions.’” Ziglar, 137 S. Ct. at 1866 (quoting Ashcroft v.
al-Kidd, 563 U.S. 731, 743 (2011)). As such, “qualified immunity shields both state and federal
officials from suit unless [1] the official violated a statutory or constitutional right that [2] was
clearly established at the time of the challenged conduct.” Terebesi v. Torreso, 764 F.3d 217, 230
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(2d Cir. 2014) (internal quotation marks omitted). To determine whether a right was clearly
established, the Court looks to: (1) “the specificity with which a right is defined”; (2) the existence
of Supreme Court or the applicable circuit court case law on the subject; and (3) whether it was
“objectively reasonable” for the defendant to believe the conduct at issue was lawful. See id. at
231; Gonzalez v. City of Schenectady, 728 F.3d 149, 161 (2d Cir. 2013).
In this Circuit, “a defendant may [raise qualified immunity in a pre-answer motion to
dismiss], but the defense is held to a higher standard than if it were asserted in a motion for
summary judgment.” Sledge v. Bernstein, No. 11 CV. 7450(PKC)(HBP), 2012 WL 4761582, at
*4 (S.D.N.Y. Aug. 2, 2012). “Not only must the facts supporting the defense appear on the face
of the complaint, but, as with all Rule 12(b)(6) motions, the motion may be granted only where ‘it
appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would
entitle him to relief.’” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citing Pani v. Empire
Blue Cross Blue Shield, 152 F.3d 67, 74 (2d Cir. 1998) and quoting Citibank, N.A. v. K–H Corp.,
968 F.2d 1489, 1494 (2d Cir. 1992)). “[T]he plaintiff is entitled to all reasonable inferences from
the facts alleged, not only those that support his claim, but also those that defeat the immunity
defense.” Id. Thus, the qualified immunity defense is “typically addressed at the summary
judgment stage,” because it “usually depends on the facts of the case, . . . making dismissal at the
pleading stage inappropriate.” Woods v. Goord, No. 01-CV-3255, 2002 WL 731691, at *10
(S.D.N.Y. Apr. 23, 2002) (citing King v. Simpson, 189 F.3d 284, 289 (2d Cir. 1999)).
b. Application to Plaintiff’s Fifth Amendment Claim
Such is the case here. As the June 11, 2019 Order explains, Plaintiff adequately alleged
that Blackensee violated his constitutional Fifth Amendment due process rights by defying the
transport order, thereby denying Plaintiff meaningful access to the courts. (See June 11, 2019

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Order at 8–19.) Thus, the first element has been met, and the remaining question before the Court
is whether the contours of that right was “clearly established” as to the claims asserted here.
In this case, the contours of the right to meaningful access to the courts were sufficiently
clear and supported by Supreme Court precedent. The June 11, 2019 Order discussed how, while
prisoners do not have a general right to demand to be present in judicial proceedings, when a court
issues an order for a prisoner’s presence, the prison must have a legitimate penological reason to
refuse to honor the order. The Court—citing the Judiciary Act, the habeas corpus statutes, and
related case law—observed that even for civil matters, a prisoner’s custodian has a duty to produce
that prisoner when a federal court issues an order for the prisoner’s appearance. Furthermore, the
Court found this duty likewise exists with respect to state court orders, and reasoned that there was
“no equitable or jurisprudential reason why the principles derived from cases involving federal
writs for inmates’ civil litigation would not apply to state writs/orders for civil litigation.” (June
11, 2019 Order at 14.) The Court also explained that it is well-settled that there is no risk of
breaking federal custody when honoring a state writ/transport order.
Ultimately, the central legal question is: Did Blackensee violate the Fifth Amendment’s
guarantee of due process when she unilaterally and arbitrarily denied the transport order? As
discussed in the June 11, 2019 Order, while the case law on point is sparse, the limited decisions
on this issue all side in Plaintiff’s favor: Prison wardens may only defy court orders where they
have demonstrated legitimate interests of state government. (See June 11, 2019 Order at 17–18)
(citing Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987); Matter of Warden of Wisconsin State
Prison, 541 F.2d 177 (7th Cir. 1976); and Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir.
1989)).

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To be clear, “an officer might lose qualified immunity even if there is no reported case
‘directly on point.’” Yunus v. Robinson, No. 17-CV-5839 (AJN), 2019 WL 168544, at *3
(S.D.N.Y. Jan. 11, 2019) (quoting Ziglar 137 S. Ct. at 1866–67) (internal quotation omitted). So
long as preexisting law “clearly foreshadow[s] a particular ruling,” a court will treat it as clearly
established for qualified-immunity purposes. Tellier v. Fields, 280 F.3d 69, 84 (2d. Cir. 2000);
see also United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)
(“[G]eneral statements of the law are not inherently incapable of giving fair and clear warning,
and . . . a general constitutional rule already identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though ‘the very action in question has [not]
previously been held unlawful.’”). And as Plaintiff notes, the Constitution’s protection against
arbitrary government action has been routinely cited in Supreme Court cases. See, e.g., Hurtado
v. California, 110 U.S. 516, 527 (1884) (explaining that the principles of due process “were
intended to secure the individual from the arbitrary exercise of the powers of government”)
(quoting Bank of Columbia v. Okely, 17 U.S. 235, 244 (1819)); Wolff v. McDonnell, 418 U.S. 539,
558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action
of government”). In sum, it was apparent that Blackensee lacked the legal justification to
unilaterally and arbitrarily defy a court order.
As to whether it was “objectively reasonable” for Defendant to believe the conduct at issue
was lawful, such a determination is necessarily fact-based. See Woods, 2002 WL 731691 at *10.
As the June 11, 2019 Order observed, Defendant offered no reason why she defied the transport

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order. 3 (June 11, 2019 Order at 17.) But, the inquiry does not end there. The June 11, 2019 Order
continued:
It could very well be that the prison’s penological or administrative interests will
outweigh Plaintiff’s rights. Such a showing has not yet been made. And the Court
could easily fathom facts where a prisoner’s interests exceed the prison’s legitimate
penological interests. . . . At this juncture, the Court accepts that the prison gave no
reason for its action. That is an insufficient basis for it to deny a prisoner’s rights.
(Id. at 18–19.) Defendant may prevail on qualified immunity defense as the case progresses; but
at this juncture, Plaintiff “is entitled to all reasonable inferences from the facts alleged, not only
those that support his claim, but also those that defeat the immunity defense.” McKenna, 386 F.3d
at 436 (2d Cir. 2004). Because it does not appear “beyond doubt that the plaintiff can prove no set
of facts in support of his claim that would entitle him to relief,” id. at 436, the qualified immunity
defense must be denied without prejudice to renew at a later stage.
c. Application to Plaintiff’s First Amendment Claim
Plaintiff’s opposition to the instant motion does not refute Defendant’s qualified immunity
defense with respect to his First Amendment claim. As such, Plaintiff’s opposition to this
argument is considered waived. See, e.g., Meridian Autonomous Inc. v. Coast Autonomous LLC,
No. 17-CV-5846 (VSB), 2018 WL 4759754, at *5 (S.D.N.Y. Sept. 30, 2018) (collecting cases
holding that arguments are conceded if not opposed). Defendant’s motion is therefore granted
insofar as it seeks to dismiss Plaintiff’s First Amendment claim on the ground of her qualified
immunity defense.
CONCLUSION
For the foregoing reasons, Defendant’s motion for reconsideration is GRANTED in part

Though Defendant relies on the U.S. Marshals guidelines, this justification was considered and rejected in the June
11, 2019 Order. (June 11, 2019 Order at 12) (“[W]hile . . . U.S. Marshals’ [guidelines] are insightful, they are not
authority for assessing constitutional rights.”). Furthermore, it does not appear that the U.S. Marshals guidelines
condone Defendant’s arbitrary refusal to honor a state-court order.

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and DENIED in part.

It is granted only insofar as the Court will dismiss Plaintiffs First

Amendment Bivens claim. Plaintiffs Fifth Amendment Bivens claim remains. The parties are
directed to confer and submit a case management plan (attached) by May 11, 2020. The Clerk of
the Court is respectfully directed to terminate the motion at ECF No. 36. The Clerk of the Court
is further directed to update Plaintiffs address on the docket to reflect his transfer to FCI Berlin
(See Letter dated January 24, 2020, ECF No. 53.) Defendant is directed to mail a copy of this

Opinion and Order to Plaintiff at his FCI Berlin address, and to file proof of service on the docket.

Dated:

March 2,/.p, 2020
White Plains, New York
NELSON S. ROMAN
United States District Judge

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