In Re: Matthew Alward
Filing
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MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint filed by Matthew Alward Signed by Honorable Karoline Mehalchick on 10/25/2024. (cw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
MATTHEW KEITH ALWARD,
Plaintiff
CIVIL ACTION NO. 3:24-CV-00983
v.
(MEHALCHICK, J.)
COUNSELOR T. NOON, et al.,
Defendants.
MEMORANDUM
Plaintiff Matthew Keith Alward (“Alward”), at all times relevant a federal inmate
incarcerated at the Low Security Correctional Institution, Allenwood, Pennsylvania (“LSCIAllenwood”), filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971). (Doc. 1; Doc. 15). The Court has screened the complaint
pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A and will dismiss it with prejudice.
I.
BACKGROUND AND PROCEDURAL HISTORY
Alward initiated this action by filing a letter to the Court, wherein he attempted to
assert constitutional violations against individuals at LSCI-Allenwood. (Doc. 1). Upon initial
review of Alward’s filing, the Court found that he failed to comply with Federal Rule of Civil
Procedure 3, which provides that “[a] civil action is commenced by filing a complaint with
the court.” FED. R. CIV. P. 3. Because this action was not commenced in compliance with
Rule 3, the Court Ordered Alward to file a complaint—the only mechanism to commence a
civil action in a district court. (Doc. 13). In response, Alward filed a proposed complaint for
the Court’s review. (Doc. 15).
In the complaint, Alward names the following Defendants: Counselor Noon, Warden
Greene, Case Manager Kozer, Regional Director Bronchner, and the Federal Bureau of
Prisons (“BOP”). (Doc. 15, at 2-3). Alward alleges that Defendant Noon sexually assaulted
him on three separate occasions. (Doc. 15, at 4). Alward asserts that he sent an email to
Warden Greene to report the alleged abuse. (Doc. 15, at 4). He then alleges that Defendant
Noon retaliated against him for reporting the abuse by issuing a false disciplinary report
against him, which resulted in his placement in the special housing unit, loss of good conduct
time and First Step Act credits, loss of privileges, and placement in a greater security facility.
(Doc. 15, at 4). Lastly, Alward asserts that Defendants Greene, Kozer, Bronchner, and the
BOP failed to protect him from harm. (Doc. 17). For relief, Alward seeks monetary damages,
expungement of the disciplinary report, and he demands that the Court remove Defendants
from their prison positions. (Doc. 15, at 5).
II.
LEGAL STANDARD
The Prison Litigation Reform Act authorizes a district court to review a complaint in
a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a
governmental employee or entity. See 28 U.S.C. § 1915(e)(2)1; 28 U.S.C. § 1915A2. The Court
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28 U.S.C. § 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that—
(A) the allegation of poverty is untrue; or
(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.
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28 U.S.C. § 1915A provides:
(a) Screening.—The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee of a governmental
entity.
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is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous,
malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. §
1915A(b). “The legal standard for dismissing a complaint for failure to state a claim pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir.
2012) (nonprecedential) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
III.
DISCUSSION
A. BIVENS CLAIMS
In Bivens, the Supreme Court recognized an implied damages remedy for a Fourth
Amendment violation committed by federal officials, whose conduct was not encompassed
by the statutory remedy available against state actors under 42 U.S.C. § 1983. See Bivens, 403
U.S. at 397. The availability of Bivens as a cause of action is limited, and the United States
Supreme Court “has plainly counseled against creating new Bivens causes of action.”
Vanderklok v. United States, 868 F.3d 189, 199 (3d Cir. 2017); see also Hernandez v. Mesa, 589
U.S. 93, 101-02 (2020) (stating that the “expansion of Bivens is a disfavored judicial activity,”
that “it is doubtful” that the outcome of Bivens would be the same if it were decided today,
and that “for almost 40 years, [the Supreme Court] ha[s] consistently rebuffed requests to add
to the claims allowed under Bivens.” (internal quotations marks and citations omitted)). Since
(b) Grounds for dismissal.—On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
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Bivens was decided in 1971, the Supreme Court “has repeatedly refused to extend Bivens
actions beyond the specific clauses of the specific amendments [of the Constitution] for which
a cause of action has already been implied, or even to other classes of defendants facing
liability under those same clauses.” Vanderklok, 868 F.3d at 200. The Supreme Court has
recognized an implied private action against federal officials in only three cases: (1) Bivens
itself—a claim under the Fourth Amendment against FBI agents for handcuffing a man in his
own home without a warrant, Bivens, 403 U.S. at 389; (2) a claim under the Fifth Amendment
against a Congressman for firing his female secretary, Davis v. Passman, 442 U.S. 228 (1979);
and, (3) a claim under the Eighth Amendment against prison officials for failure to treat an
inmate’s asthma, Carlson v. Green, 446 U.S. 14 (1980).
The Supreme Court’s decision in Ziglar v. Abbasi, 582 U.S. 120 (2017) sets forth a twopart test for determining whether a prospective Bivens claim may proceed. First, courts must
ascertain whether the case presents a “new context.” Ziglar, 582 U.S. at 138. If the case differs
“in a meaningful way” from previous Bivens cases decided by the Supreme Court, “then the
context is new.” Ziglar, 582 U.S. at 139. And the meaning of “new context” is “broad.”
Hernandez, 589 U.S. at 102. Second, if the case presents a new context, the court must then
consider whether “special factors” counsel against extending the Bivens remedy. Hernandez,
589 U.S. at 102. This inquiry asks whether “the Judiciary is at least arguably less equipped
than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”
Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Ziglar, 582 U.S. at 136). If a court concludes
that “even a single reason” exists to pause “before applying Bivens in a new context,” then
special factors counseling hesitation exist and a Bivens remedy does not lie. Egbert, 596 U.S.
at 492 (quoting Hernandez, 589 U.S. at 102) (internal quotation marks omitted).
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The Supreme Court subsequently issued its decision in Egbert, which reemphasizes
that the continued refusal to “imply a similar cause of action for other alleged constitutional
violations” is intentional—recognizing a new Bivens cause of action is “a disfavored judicial
activity.” Egbert, 596 U.S. at 491 (quoting Ziglar, 582 U.S. at 135). In a recent decision, the
Third Circuit Court of Appeals analyzed Egbert and abrogated earlier decisions recognizing
that its own extensions of Bivens were no longer tenable given recent Supreme Court decisions.
Fisher v. Hollingsworth, --- F.4th ----, 2024 WL 3820969, at *5 (3d Cir. Aug. 15, 2024) (holding
that the Supreme Court decision in Egbert “seriously undermines the rationale of Bistrian [v.
Levi, 912 F.3d 79 (3d Cir. 2018)] and Shorter [v. United States, 12 F.4th 366 (3d Cir. 2021)]”—
cases involving inmate-on-inmate assault). The Fisher court explained that Egbert “tightened
the Ziglar test and, in doing so, made a strong statement that lower courts should not extend
Bivens beyond the contexts recognized in Bivens, Davis, and Carlson.” Fisher, 2024 WL
3820969, at *4. Egbert’s “new articulation” of the new context step of the Ziglar test
“unequivocally narrows the universe of relevant cases to just three,” i.e., Bivens, Davis, and
Carlson. Fisher, 2024 WL 3820969, at *4. In yet another recent decision, the Third Circuit
Court of Appeals expressly refused to extend Bivens to Eighth Amendment conditions of
confinement claims brought by federally convicted prisoners because the Eighth Amendment
claim was “far broader in scope than that in Carlson.” Kalu v. Spaulding, 113 F.4th 311, 338,
2024 WL 3884268 (3d Cir. Aug. 21, 2024). Mindful of these decisions, the Court proceeds
with Ziglar’s two-step analysis.
1. New Context
As noted above, Alward asserts three Bivens claims: (1) that Defendant Noon sexually
assaulted him; (2) that Defendant Noon retaliated against him; and (3) that Defendants
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Greene, Kozer, Bronchner, and the BOP were deliberately indifferent to the risk of harm to
Alward when they failed to protect him from the assault by Noon.
The Third Circuit Court of Appeals expressly held that a Bivens remedy is not available
for a federal inmate’s claim that a prison guard violated his Eighth Amendment rights by
sexually assaulting him. Kalu, 113 F.4th at 327-36. Additionally, the Supreme Court has
explicitly held that “there is no Bivens action for First Amendment retaliation.” Egbert, 596
U.S. at 499; see also Vanderklok, 868 F.3d at 198, 209 (after Ziglar, but prior to Egbert, the Third
Circuit recognized that its prior decisions that assumed the validity of a Bivens claim in a First
Amendment context were no longer valid and held that Bivens did not afford a remedy against
airport security screeners who allegedly engaged in a retaliatory prosecution against a traveler
who exercised First Amendment rights). Finally, Fisher controls the Court’s analysis of
Alward’s claim that Defendants failed to protect him from an assault by Noon. Fisher holds
that such a claim presents a new context for Bivens, and that Egbert abrogated the contrary
holdings in Bistrian and Shorter. Fisher, 2024 WL 3820969, at *5-8. Hence, the Court concludes
that Alward’s claims present new contexts for Bivens liability.
2. Special Factors
Having concluded that Alward’s claims present new contexts, the Court must
determine whether “there are any special factors that counsel hesitation” in extending Bivens.
Hernandez, 589 U.S. at 102 (internal quotation marks and alterations omitted) (quoting Ziglar,
582 U.S. at 136). If a court “ha[s] reason to pause before applying Bivens in a new context or
to a new class of defendants,” then special factors counseling hesitation exist. Hernandez, 589
U.S. at 102.
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The Court’s special factors analysis is controlled by Fisher. In that case, the Third
Circuit Court of Appeals recognized that the BOP’s administrative remedy program is a
special factor barring extension of the Bivens remedy to new contexts. Fisher, 2024 WL
3820969, at *7; see also Kalu, 113 F.4th at 346 (“The BOP’s [administrative remedy program]
is an ‘administrative review mechanism[ ]’ established by the political branches that
‘foreclose[s] the need to fashion a new, judicially crafted cause of action.’” (quoting Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)). Therefore, the administrative remedy program
bars this Court from extending Bivens to the new contexts presented by Alward’s claims.
B. LEAVE TO AMEND
Before dismissing a civil rights complaint for failure to state a claim upon which relief
may be granted, a district court must permit a curative amendment unless the amendment
would be inequitable or futile. Phillips v. Allegheny Cnty., 515 F.3d 224, 245 (3d Cir. 2008). The
Court will deny leave to amend as futile because Alward’s Bivens claims fail as a matter of
law.
IV.
CONCLUSION
The Court will dismiss Alward’s complaint with prejudice. An appropriate Order
follows.
s/ Karoline Mehalchick
Dated: October 25, 2024
KAROLINE MEHALCHICK
United States District Judge
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