Banks v. Cuevas et al

Filing 10

Memorandum Opinion and Order For the reasons stated, Defendants' Motion to Dismiss (ECF No. 4 ) is granted with respect to Plaintiff's habeas claim and any claim he may be asserting under Bivens. Plaintiff's remaining state law claims are remanded to the Mahoning County Court of Common Pleas. Judge Benita Y. Pearson on 6/6/2018. (S,L)

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
FREDERICK BANKS,

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Plaintiff,
v.
SENIOR OFFICER CUEVAS, et al.,

Defendants.

CASE NO. 4:17CV2529

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 4 ]

Pending before the Court is Defendants’ Motion to Dismiss (ECF No. 4). Plaintiff filed a
response in opposition. ECF No. 5. Defendants replied. ECF No. 6. For the reasons stated
below, Defendants’ Motion to Dismiss is granted in part, and this action is remanded to the
Mahoning County Court of Common Pleas.
I. Background
Pro se Plaintiff Frederick Banks filed this Bivens1 action in the Mahoning County Court
of Common Pleas against the Northeast Ohio Correctional Center (“NEOCC”), Core Civic, Inc.,
which owns and operates NEOCC, Core Civic, Inc.’s CEO Damon Hininger, NEOCC Warden
Christopher LaRose, Corrections Officer DeJohn, Corrections Officer Jim Giles, and Senior
Officer Cuevas (collectively “the Defendants”). ECF No. 1-1. In the Complaint, Plaintiff
contends that, Defendants Cuevas, Giles, and DeJohn interfered with the free practice of his
religion (Wicca) and retaliated against him for practicing Wicca by taking things from his cell
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Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).

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when he was at a medical appointment. Id. at PageID#: 18—19. Plaintiff also asserts that he is
being held in pretrial detention longer than the maximum sentence under the applicable guideline
range. Id. at PageID#: 20. Plaintiff demands to be released from custody and seeks monetary
relief. Id. Defendants move to dismiss Plaintiff’s Complaint under Federal Civil Procedure Rule
12(b)(6). ECF No. 4.
For the reasons stated below, Defendants’ motion (ECF No. 4) is granted in part, and this
action is remanded to the Mahoning County Court of Common Pleas.
II. Removal
A defendant may remove “any civil action brought in a state court of which the district
courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). The Notice of
Removal of a civil action or proceeding must be filed within thirty days after the receipt by the
defendant through service or otherwise of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based. 28 U.S.C. § 1446(b). Moreover, when the
action is removed under § 1441(a), all of the defendants who have been properly served must
join in the removal or consent to it. 28 U.S.C. § 1446(b)(2)(A). Finally, when diversity of
citizenship is the basis for removal, the case cannot be removed from state court if any of the
defendants are citizens of the state in which the action is brought. 28 U.S.C. § 1441(b)(2).
III. Law and Analysis
Defendants removed this action citing the presence of a federal question in the form of a
Bivens claim for denial of free exercise of religion, and habeas claim pertaining to the length of

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Plaintiff’s pretrial detention compared to the length of his possible sentence. See ECF Nos. 1 and
1-1.
As an initial matter, Plaintiff cannot challenge his confinement in a civil rights action.
To challenge the legality of his detention, Plaintiff’s sole remedy is a habeas corpus petition.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Plaintiff cannot file habeas claims within a civil
rights action. Furthermore, although 28 U.S.C. § 2241 establishes jurisdiction in the federal
courts to consider pretrial habeas corpus petitions, courts should abstain from the exercise of that
jurisdiction if the issues raised in the habeas corpus petition may be resolved either by trial on
the merits or by other procedures available to the petitioner. See, e.g., Fay v. Noia, 372 U.S. 391,
417—420 (1963), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977);
Atkins v. Michigan, 644 F.2d 543, 546 (6th Cir. 1981). The claims asserted by Plaintiff can and
should be raised to the federal court in which the charges against him are pending. Therefore,
Plaintiff’s claim for habeas relief is dismissed.
The sole remaining claim providing a possible basis for federal court jurisdiction is
Plaintiff’s claim for denial of the free exercise of his religion under the First Amendment. See
ECF No. 1-1. Before proceeding to the merits of this claim, the Court must decide whether
Bivens provides a cause of action in this context.
The United States Supreme Court recently clarified that federal courts should refrain from
extending Bivens outside of the three specific contexts in which it has already been applied,
absent the presence of special factors. Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Congress
provided a specific damages remedy for Plaintiffs whose constitutional rights were violated by

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state officials through 42 U.S.C. § 1983; however, Congress did not provide a corresponding
remedy for constitutional violations by federal officials. In Bivens, decided in 1971, the Supreme
Court recognized an implied damages action to compensate persons injured by federal officers
who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Since then, the Supreme Court allowed
Bivens remedies in only two other contexts: (1) in a Fifth Amendment gender-discrimination
case, Davis v. Passman, 442 U.S. 228 (1979); and (2) in an Eighth Amendment Cruel and
Unusual Punishments Clause case, Carlson v. Green, 446 U.S. 14 (1980). The Supreme Court
has not approved of an implied damages remedy under the Constitution itself. Ziglar, 137 S.Ct.
at 1855.
In Ziglar, the Supreme Court explained its decision to limit the implied damages remedy
stating that, Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed
that a proper function of the courts was to “provide such remedies as are necessary to make
effective” a statute’s purpose. Id. at 1848 (quoting J.I. Case Co. v. Borak, 377 U.S. 426, 433
(1964)). The Supreme Court has since adopted a far more cautious approach, looking instead to
statutory intent to determine whether Congress intended to create a private right of action under
those circumstances. Id. (citing Alexander v. Sandoval, 532 U.S. 275, 286 (2001) and Touche
Ross & Co. v. Redington, 442 U.S. 560, 568 (1979)). “Similar caution must be exercised with
respect to damages actions implied to enforce the Constitution itself.” Id. While Bivens is still
well-settled law in its own context, expanding Bivens to new contexts is now “disfavored.”
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009). Therefore, when a Plaintiff seeks to assert an

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implied cause of action under the Constitution, “separation-of-powers principles should be
central to the analysis.” Ziglar, 137 S.Ct. at 1857. Specifically, courts should ask whether
Congress or the judiciary should decide when to authorize a damages suit. Id. (citing Bush v.
Lucas, 462 U.S. 367, 380 (1983)). The Supreme Court states that most often, this question will
be answered in favor of Congress, because the Legislature is in a better position to determine if
the public interest will be better served by creating a “new substantive legal liability.” Id. Bivens
will not be extended to a new context if there are “‘special factors counselling hesitation in the
absence of affirmative action by Congress.’” Id. (quoting Carlson, 446 U.S. at 18). If there are
sound reasons to suppose Congress might doubt the efficacy or necessity of a damages remedy as
part of the system for enforcing the law and correcting a wrong, courts must refrain from creating
that kind of remedy. See id. at 1858. Furthermore, if there is an alternative remedial structure in
place to address a given situation, the court should not infer a new Bivens cause of action. Id.
In the present case, Plaintiff seeks to assert a First Amendment Freedom of Religion
claim under Bivens. See ECF No. 1-1. Plaintiff’s claim does not fall under the existing contexts
in which a Bivens remedy has been implied. Furthermore, the Supreme Court has already
declined to extend Bivens to causes of action asserted against private prisons, Correctional
Services Corp. v. Malesko, 534 U.S. 61, 68 (2001), and employees of private prisons when a
remedy exists under state law to address the injury, Minneci v. Pollard, 565 U.S. 118, 120
(2012). Given the Supreme Court’s decision in Ziglar, and its decisions in Malesko and Minneci,
the Court will not imply a damages remedy under Bivens in this context. The Court expresses no
opinion on whether Plaintiff has a viable cause of action under state law to assert this claim.

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IV. Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 4) is granted with
respect to Plaintiff’s habeas claim and any claim he may be asserting under Bivens. Plaintiff’s
remaining state law claims are remanded to the Mahoning County Court of Common Pleas.

IT IS SO ORDERED.
June 6, 2018
Date

/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge

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