SIMPSON v. DAVENPORT et al
MEMORANDUM OPINION indicating that, for reasons more fully stated within, the 47 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM and MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative MOTION for Summary Judgment filed Defendants will be granted in part and denied in part. An appropriate Order will be entered. Signed by Chief Magistrate Judge Cynthia Reed Eddy on 11/17/2021. (bsc)
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 1 of 21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JESSE RUSSELL SIMPSON,
JOHN KENNETH DAVENPORT, et
Civil Action No. 3: 20-cv-0024
Chief United States Magistrate Judge
Cynthia Reed Eddy
MEMORANDUM OPINION 1
Plaintiff, Jesse Russell Simpson (“Simpson”), initiated this case on February 12, 2020,
while a federal prisoner confined at FCI Loretto in Cresson, Cambria County, Pennsylvania. (ECF
No. 1). Simpson’s motion for leave to proceed in forma pauperis was granted and the Complaint
filed on March 9, 2020. (ECF No. 7). On May 6, 2020, the Court received a notification that
Simpson had been released from custody (ECF No. 14) and on July 29, 2020, Simpson filed an
Amended Complaint as a matter of course (ECF No. 19), which remains Simpson’s operative
In accordance with the provisions of 28 U.S.C. § 636(b)(1), the identified and served
parties have voluntarily consented to jurisdiction by a United States Magistrate Judge, including
entry of final judgment. (ECF Nos. 22, 49). While unserved defendants generally must also
consent for a magistrate judge to exercise jurisdiction based on “consent of the parties” under 28
U.S.C. § 636(c), see Williams v. King, 875 F.3d 500 (9th Cir. 2017), this Court is not aware of any
decision holding that consent is necessary from defendants who are both unserved and
unidentified. Courts disregard such defendants in other contexts, including contexts affecting
jurisdiction. See, e.g., 28 U.S.C. § 1441(b)(1) (providing that for removal based on diversity of
citizenship, “the citizenship of defendants sued under fictitious names shall be disregarded”); Fat
T, Inc. v. Aloha Tower Assocs. Piers 7, 8 & 9, 172 F.R.D. 411, 414–15 (D. Haw. 1996) (reaching
the same conclusion for diversity jurisdiction with respect to cases initially filed in federal court).
The Court therefore concludes that consent of the unserved and unidentified defendants in this
case, specifically “all Other Mail Room Staff Members,” is not necessary to proceed under §
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amended pleading. Simpson brings this action under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971) 2 and the Religious Freedom Restoration Act
(“RFRA”), 42 U.S.C. §§ 2000bb et seq.
Presently before the Court is Defendants’ Motion to Dismiss or, in the alternative, for
Summary Judgment, as well as a brief in support, together with supporting documentary exhibits.
(ECF Nos. 47 and 48). Plaintiff filed a brief in opposition, together with supporting documentary
exhibits (ECF No. 54), to which Defendants filed a Reply and attached additional supporting
documentary exhibits. (ECF No. 58). The matter is ripe for disposition. For the reasons that
follow, the Court will deny the motion for summary judgment, grant the motion to dismiss as to
Claims 4 and 5 of the Amended Complaint, and limit the RFRA claims to only defendants
Davenport, Mack, and Dipko.
Procedural and Factual Background
At the time of the events giving rise to this action, Simpson was a convicted federal prisoner
incarcerated at FCI Loretto. Simpson was designated to FCI Loretto on April 12, 2019 and
remained in custody there until April 23, 2020, when he was transferred to home confinement
pursuant to 18 U.S.C. § 3621(b). Declaration of Robin Summers, at ¶ 3 (ECF No. 48-1). Simpson
filed the instant Amended Complaint on July 29, 2020. Simpson completed his federal supervision
on March 26, 2011. (BOP Inmate Locator, https://www.bop.gov/inmateloc).
In the Amended Complaint, Simpson contends that the staff at FCI Loretto engaged in a
wide-reaching conspiracy which was “calculated harassment and retaliation for Plaintiff’s LGBT
Bivens stands for the proposition that “a citizen suffering a compensable injury to a
constitutionally protected interest could invoke the general federal question jurisdiction of the
district court to obtain an award of monetary damages against the responsible federal official.”
Butz v. Economu, 438 U.S. 478, 504 (1978).
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status, his religious beliefs and his complaint history.” Amended Complaint, passim. The
Amended Complaint asserts nineteen (19) counts, in which Simpson claims his constitutional
rights were violated under the First Amendment for retaliation, P’s Memo in Supp. of Complaint
at 1 - 4 (ECF No. 19-1); the First and Fifth Amendment for denial of access to courts (id., at 5 9); the Fifth Amendment for denial of his right to equal protection (id., at 10 – 15); and the Fourth
Amendment with respect to searches of his incoming mail and legal mail, or in the alternative, the
Eighth Amendment against cruel and unusual punishment as “Defendants are using mail searches
as a harassment and intimidation tool against Plaintiff.” (id., at 16 - 17). 3 Simpson also contends
Defendants’ actions violated RFRA by placing a substantial burden on the exercise of his religious
The Amended Complaint names seventeen individual defendants, all officials or staff
members at FCI Loretto, as well as “all other mail room staff members” at FCI Loretto. Simpson
seeks an award of compensatory damages in the amount of $1,000.000.00 jointly and severally
against Defendants; an award of punitive damages in the amount of $1,000.000.00 jointly and
severally against Defendants; an award of fees in the amount of $7,500.00; and such other relief
as it may appear he is entitled. Amended Complaint, at 26 (ECF No. 19).
The Amended Complaint is not a model of clarity. While the Amended Complaint is
separated into numbered paragraphs, there is no section entitled “Claims for Relief” or “Causes of
Action.” Rather, Section V, entitled “Statement of Claim,” is comprised of nineteen numbered
paragraphs (1 – 19, inclusive) each describing a set of facts purporting to support Simpson’s claims
that Defendants violated his constitutional rights. Simpson concludes each paragraph by blanketly
asserting that Defendants “violated Plaintiff’s freedom of religion, freedom of speech, freedom
from unreasonable searches and seizures, freedom of equal protection under the laws, and freedom
from cruel and unusual punishment and the RFRA for substantially burdening his religious
beliefs.” Simpson’s Memorandum of Law in support of his Amended Complaint (ECF No. 19-1)
outlines his five legal causes of action and provides some factual context to support his argument
that his constitutional rights were violated.
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In lieu of filing an Answer, Defendants filed the instant motion arguing that the Amended
Complaint should be dismissed, or in the alternative, summary judgment be granted, on several
grounds: (1) summary judgment should be granted on seventeen (17) of Simpson’s (19) nineteen
claims because Simpson failed to exhaust his grievances to final review and that fifteen (15) of the
seventeen (17) named individual defendants in the Amended Complaint were not referenced in
any of his grievances; and (2) Claims 4 and 5 4 should be dismissed for failure to state a claim
because (i) the doctrine of sovereign immunity bars official capacity Bivens claims, (ii) Simpson
has failed to allege a violation of his constitutional rights, and (iii) Defendants are entitled to
qualified immunity. Defendants also seek dismissal of Simpson’s RFRA claims arguing that
Simpson has failed to plead how each individual Defendant substantially burdened his religious
freedom. Defendants filed a brief and, in support of their contention that Simpson failed to exhaust
his administrative remedies, filed the Declaration of Robin Summers, with attached “Public
Information Inmate Data as of 01-11-2021,” Simpson’s Inmate History,” “An Administrative
Remedy Generalized Retrieval for the period 01-01-2019 thru 12-31-2019,” and “An
Administrative Remedy Generalized Retrieval for the period from 01-01-2020 through 12-312020.”
The Court converted the motion to one for summary judgment limited to the issue of
exhaustion and advised the parties that the issue of exhaustion would be decided under Federal
Rule of Civil Procedure 56, while the remainder of the motion would be decided under the
It appears Defendants have addressed on the merits only two (2) of the nineteen (19) claims
raised in the Amended Complaint, specifically Claims 4 and 5: “The only two administrative
remedies subject to a constitutional analysis are Plaintiff’s allegations that a soiled and stained
book was rejected (No. 986014) and that his purchase of transgender items was delayed (No.
990159).” Ds’ Br. at 13 (ECF No. 48). As a result, the Court will decide only the legal arguments
raised by Defendants and will not expand its constitutional analysis beyond Claims 4 and 5.
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standards for deciding a motion to dismiss. (ECF No. 50). Simpson, in response, filed a thirtynine page brief, and attached twenty-one pages of exhibits 5 (ECF 54), to which Defendants filed a
Reply Brief (ECF No. 58), and attached twenty-six pages of an “Administrative Remedy
Generalized Retrieval, Single Line Format.” (ECF No. 58-1).
Standard of Review
Three relevant standards of review are at issue in Defendants’ motion to dismiss / motion
for summary judgment: Federal Rule of Civil Procedure (“Rule”) 12, subsections (b)(1) and
(b)(6); and Rule 56.
Federal Rule 12(b)(1)
Under Rule 12(b)(1), a court must grant a motion to dismiss if there is a lack of subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of persuasion that federal
jurisdiction is present. Saint Vincent Health Ctr. v. Shalala, 937 F. Supp. 496, 501 (W.D. Pa. 1995)
(citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)). The threshold
to survive a motion to dismiss under Rule 12(b)(1) is lower than under Rule 12(b)(6). Lunderstadt
v. Colafella, 886 F.2d 66, 70 (3d Cir. 1989). This is because dismissal for lack of jurisdiction
cannot be predicated on the mere probability that a plaintiff's legal theories are false; a court will
only dismiss for a lack of jurisdiction if a plaintiff’s legal theories (1) are solely proffered to obtain
federal jurisdiction but otherwise are immaterial, or (2) are “insubstantial on their face.” Growth
Horizons, Inc. v. Del. Cnty., Pa., 983 F.2d 1277, 1280 (3d Cir. 1993) (quoting Bell v. Hood, 327
U.S. 678, 773, 776 (1946)).
The exhibits are (i) The State of Louisiana Literacy Test, (ii) a Cosmopolitan article entitled
“Even Harvard Students Couldn’t Pass This 1964 Test,” and (iii) a Bureau of Justice Statistics Special Report entitled “Education and Correctional Populations.” See ECF No. 54-1, 54-2 and
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Federal Rule 12(b)(6)
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The Supreme Court has issued
two decisions that pertain to the standard of review for failure to state a claim upon which relief
could be granted. In Ashcroft v. Iqbal, the Supreme Court held that a complaint must include
factual allegations that “state a claim to relief that is plausible on its face.” 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual
allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not
only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v. County of Allegheny,
515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court
must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;”
and “ ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 678
(citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The Court of
Appeals has summarized the inquiry as follows:
To determine the sufficiency of a complaint, a court must take three steps. First, the
court must “tak[e] note of the elements a plaintiff must plead to state a claim.”
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009).
Second, the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n]
there are well-pleaded factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement for relief.” Id.
This means that our inquiry is normally broken into three parts: (1) identifying the
elements of the claim, (2) reviewing the complaint to strike conclusory allegations,
and then (3) looking at the well-pleaded components of the complaint and
evaluating whether all of the elements identified in part one of the inquiry are
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Although this Court must accept the
allegations in the Complaint as true, it is “not compelled to accept unsupported conclusions and
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unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baroka v.
McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).
“In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits
attached to the complaint, matters of public record, as well as undisputedly authentic documents
if the complaintant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,
230 (3d Cir. 2010); In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
When matters outside of the pleadings are presented to the Court on a Rule 12(b)(6) motion, the
Court has the discretion to exclude such matters from consideration. Fed.R.Civ.P. 12(d); Morse
v. Lower Merion Sch. Dist., 132 F.3d 902, 905 n.3 (3d Cir. 1997). If matters outside the pleadings
are presented to, and not excluded by, the court, a motion to dismiss must be converted to a motion
for summary judgment. See Fed.R.Civ.P.12(d).
Federal Rule of Civil Procedure 56
The standard for assessing a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, “summary judgment will not lie if the
dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. at 250.
On a motion for summary judgment, the facts and the inferences to be drawn therefrom
should be viewed in the light most favorable to the non-moving party. See Reeves v. Sanderson
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Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Hudson v. Proctor & Gamble Paper Prod. Corp., 568 F.3d
100, 104 (3d Cir. 2009) (citations omitted). It is not the court’s role to weigh the disputed evidence
and decide which is more probative, or to make credibility determinations. See Anderson, 477
U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of
Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly preclude the entry of summary
judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury could
possibly hold in the nonmovant’s favor with respect to that issue. See id. “Where the record taken
as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial’.” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.
This standard is somewhat relaxed with respect to pro se litigants. Where a party is
representing himself pro se, the complaint is to be construed liberally. A pro se plaintiff may not,
however, rely solely on his complaint to defeat a summary judgment motion. See, e.g., Anderson,
477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported motion for
summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth
specific facts showing that there is a genuine issue for trial.”). Allegations made without any
evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also
Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations
. . . and pleadings are insufficient to repel summary judgment.”).
With these standards in mind, the Court now turns to its analysis and discussion of the
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The Motion to Dismiss Under Rule 12(b)(1)
Defendants seek dismissal of all claims against Defendants in their official capacities.
Simpson responds that all claims are asserted against the Defendants only in their individual
capacities. P’s Br. at ¶ 43 (ECF No. 54). Accordingly, Defendants’ request to dismiss the Bivens
claims against Defendants in their official capacities under Rule 12(b)(1) will be denied as moot.
Next, the Court will determine under Rule 56 whether Defendants are entitled to summary
judgment on Simpson’s claims for failing to exhaust available administrative remedies. And then,
because Defendants have only addressed on the merits Claims 4 and 5, the Court will determine
whether these two claims should be dismissed under Rule 12(b)(6) for failure to state a claim upon
which relief can be granted.
The Motion for Summary Judgment Under Rule 56
The Court first addresses the Motion for Summary Judgment because the exhaustion of
administrative remedies is a mandatory prerequisite to any prisoner’s filing of a civil rights action
regarding prison conditions. Defendants argue that Simpson failed to exhaust his administrative
remedies under the Prison Litigation Reform Act (“PLRA”) on seventeen of the nineteen claims
brought in the Amended Complaint. 6 As a result, Defendants seek summary judgment on these
seventeen (17) claims as a matter of law. For the reasons explained below, the Court finds that at
the time Simpson filed his Amended Complaint, Simpson was no longer “a prisoner confined in
any jail, prison, or other correctional facility” and, therefore, was not subject to the PLRA’s
Specifically, Defendants argue that Simpson failed to exhaust his administrative remedies
on each of his claims, with the exception of Claims 4 and 5, which Defendants do not dispute were
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 10 of 21
administrative exhaustion requirement. Garrett v. Wexford, 938 F.3d 69, 84 (3d Cir. 2019), cert.
denied, 140 S.Ct. 1611 (2020).
The PLRA provides in relevant part: “No action shall be brought with respect to prison
conditions . . . by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Under the PLRA,
“prisoner” is defined as “any person incarcerated or detained in any facility who is accused of,
convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law . . . .” Id. at
In 2020 when Simpson filed the original complaint, the PLRA’s exhaustion requirement
applied to him.
He was a “person incarcerated” in a “correctional facility,” i.e., FCI Loretto,
serving an aggregate term of incarceration of fifty months after having been convicted in April 20,
2017, in the United States District Court for the Northern District of Georgia of Manufacturing
Firearms without a License and convicted on June 13, 2017, in the United States District Court for
the Eastern District of Michigan of Transport of an Unregistered Firearm in Interstate Commerce.
Declaration of Robin Summers, at ¶ 2. (ECF No. 48-1). The summary judgment record reflects,
however, that on April 23, 2020, Simpson’s status changed, resulting in Simpson no longer being
a “prisoner” as defined in the PLRA.
On that date, Simpson was released from FCI Loretto and transferred to home confinement
pursuant to 18 U.S.C. § 3621(b). The Amended Complaint, which became Simpson’s operative
amended pleading, was filed on July 29, 2020, approximately three months after Simpson had been
released from FCI Loretto. Because the Amended Complaint relates back to Simpson’s original
complaint, “his change in status (i.e., his release) operates to cure the original defect (i.e., his
failure to exhaust administrative remedies).” Garrett, 938 F.3d at 88. See also Downey v.
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Pennsylvania Department of Corrections, 968 F.3d 299, 308 (3d Cir. 2020). In Garrett, the
plaintiff filed a third amended complaint after he was released from prison. Garrett, 938 F.3d at
78. The Court of Appeals for the Third Circuit held that the PLRA's exhaustion requirement did
not apply because his third amended complaint arose from the same transaction or occurrence as
his initial complaint. Id. at 83–84.
Similarly, in this case, when Simpson filed the Amended Complaint on July 29, 2020, he
was no longer “confined in any jail, prison, or other correctional facility.” The Amended
Complaint arises from the same transaction or occurrence as the initial complaint. Garrett squarely
fits the facts presented in this case. Consequently, following the precedent established by our Court
of Appeals in Garrett and Downey, Defendants’ motion for summary judgment must be denied.
The Motion to Dismiss Under Rule 12(b)(6) – Claims 4 and 5
Assuming, for purpose of this Memorandum Opinion only, that the allegations of Claims
4 and 5 are sufficient to state an alleged constitutional violation, the Court must determine whether
a Bivens damage remedy exists for these alleged violations. Congress established a damages
remedy under 42 U.S.C. § 1983 with respect to state officials for constitutional violations, but it
did not enact a corresponding statute with respect to federal officials. Ziglar v. Abbasi, -- U.S. --,
137 S.Ct. 1843, 1855 (2017). In Bivens, however, the Supreme Court of the United States
recognized an implied cause of action for damages against federal officials who have violated an
individual’s Fourth Amendment right to be free from unreasonable searches and seizures. Bivens,
403 U.S. at 396. The Supreme Court has extended Bivens to other contexts only twice. First, in
Davis v. Passman, 442 U.S. 229 (1979), it held that an administrative assistant fired by a
congressman had a Bivens remedy for gender discrimination under the Fifth Amendment’s Due
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Process Clause. And then in Carlson v. Greene, 446 U.S. 14 (1980), the Supreme Court permitted
a Bivens remedy against federal prison officials for failure to provide adequate medical treatment
for a prisoner’s asthma under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
“These three cases—Bivens, Davis, and Carlson—represent the only instances in which the
[Supreme] Court has approved of an implied damages remedy under the Constitution itself.”
Ziglar, 137 S.Ct. at 1855. Over the course of nearly four decades, the Supreme Court “consistently
has refused to expand Bivens actions beyond these three specific contexts.” Mack v. Yost, 968
F.3d 311, 318 (3d Cir. 2020). As such, the Supreme Court “has made clear that expanding the
Bivens remedy is now a disfavored judicial activity,” Ziglar, 137 S. Ct. at 1857, signaling the
unlikelihood that Bivens should be expanded to any new contexts and emphasizing the separationof-powers problems that the doctrine presents. Id. at 1856.
In Ziglar, the Supreme Court provided a two-step analysis to determine whether to imply
a Bivens cause of action in a new context. First, the Court held that, “if the case is different in a
meaningful way to previous Bivens cases by [the Supreme] Court, then the context is new.” Id. at
1859. The Ziglar Court explained:
A case might differ in a meaningful way because of the rank of the officers
involved; the constitutional right at issue; the generality or specificity of the official
action; the extent of judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or other legal mandate under
which the officer was operating; the risk of disruptive intrusion by the Judiciary in
to the function of other branches; or the presence of potential factors that previous
Bivens cases did not consider.
Id. at 1860. “So a new-contexts inquiry begins by looking at the existing Bivens contexts against
which a new case can be compared. Only decisions by the Supreme Court—and not those by [the
Court of Appeals for the Third Circuit] or any other circuit court—are relevant. See Mack, 968
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F.3d at 319 (citing Bistrian v. Levi, 912 F.3d 79, 95 (3d Cir. 2018)).” Mammana v. Barben, 856
F. App’x 411, 415 (3d Cir. 2021). 7
Next, if the case implicates a new Bivens context, the court must then ask whether “special
factors counsel hesitation in expanding Bivens.” Mack, 968 F.3d at 320; see also Ziglar, 137 S.
Ct. at 1857. The Supreme Court provided guidance on this step as well:
[This] inquiry must concentrate on whether the Judiciary is well suited, absent
congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed. Thus, to be a “special factor counselling
hesitation,” a factor must cause a court to hesitate before answering question in the
Ziglar, 137 S. Ct. at 1857-58. One such factor may be whether “any alternative, existing process
for protecting the injured party’s interest may amount to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding remedy in damages.” Id. at 1858 (internal
quotation marks and brackets omitted).
The Parties’ Arguments
In Claims 4 and 5, the Amended Complaint states that Simpson’s constitutional rights
were violated by Defendants when a “college textbook for Plaintiff’s correspondence MBA
program” was rejected (Claim 4) and when the receipt of the transgender commissary items
Simpson had ordered was delayed for several months (Claim 5). Defendants argue that, even
assuming that these allegations rise to the level of a constitutional claim, there is no Bivens remedy
for either claim and, therefore, these claims should be dismissed.
Claim 4 of the Amended Complaint, states in relevant part:
On July 16, 2019, the Loretto FCI mail room staff improperly rejected Plaintiff’s
college textbook for Plaintiff’s correspondence MBA program. This was part of the
The Court acknowledges that nonprecedential decisions are not binding upon federal
district courts. Citations to nonprecedential decisions reflect that the Court has carefully considered
and is persuaded by the panel's ratio decidendi.
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staff conspiracy against LGBT inmates and the staff conspiracy against Plaintiff
and was calculated harassment and retaliation for his LGBT status, religion,
complaint history, and lawsuit against Loretto FCI staff members. This violated
Plaintiff’s freedom of religion, freedom of speech, freedom from unreasonable
searches and seizures, freedom of equal protection under the laws, and freedom
from cruel and unusual punishment and the RFRA for substantially burdening his
Amended Complaint, at 4-5, ¶ 4. And Claim 5 of the Amended Complaint, states in relevant part:
For several months, defendant Archie withheld plaintiffs transgender commissary
items. When Plaintiff complained about it, he was paged to Trust Fund Supervisor
Richardson's office to discuss the complaint and Archey threatened him with an
incident report. Later, Acting Warden Dixon and National Inmate Appeals
Administrator Ian Connors confirmed in writing that Archey did in fact threaten
Plaintiff with an incident report during the “informal resolution” meeting,” but it
was somehow not intended to coerce Plaintiff into dropping his complaint. This
was part of the staff conspiracy against LGBT inmates and the staff conspiracy
against Plaintiff and was calculated harassment and retaliation for Plaintiff’s
complaint about transgender order process, LGBT status, religious beliefs, overall
complaint history, and lawsuit against Loretto FCI staff members. This violated
Plaintiff’s freedom of religion, freedom of speech, freedom of equal protection
under the laws, and freedom from cruel and unusual punishment and the RFRA for
substantially burdening his religious beliefs.
Amended Complaint, at 5, ¶ 5.
Defendants argue that both claims should be dismissed under Rule 12(b)(6) for failure to
state a claim. According to Defendants, “there is no Bivens remedy for the allegations he describes,
and even if there were, the contours of the constitutional rights were not clearly established with
sufficient clarity to over Defendants’ entitlement to qualified immunity.”
addressing Defendants’ arguments as to Claims 4 and 5, Simpson responds makes general
arguments that the Court of Appeals for the Fourth and Ninth Circuits have allowed a Bivens claim
to proceed under a direct First Amendment retaliation claim (P’s Resp at ¶ 44), and that
“[h]arassment with the intent to cause mental suffering, like in Claims 12, 16, and 17, especially
to someone with mental disabilities as severe as Plaintiff’s is not substantially different that the
context in Carlson.” Id. at ¶ 45.
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Defendants reply by stating that Simpson failed to exhaust Claims 12, 16, and 17. But as
explained above, Simpson is no longer subject to the exhaustion requirement of the PLRA and any
argument regarding exhaustion is not relevant. Further, at this point in the litigation, Defendants
have not addressed the merits of any claims other than Claims 4 and 5. Turning to these two claims,
The rejection of a stained book and a delayed order of transgender items are
dissimilar to a medical treatment causing death in violation of the Eighth
Amendment, as in Carlson v. Green, 446 U.S. 14 (1980), or to a gender
discrimination claim under the Fifth Amendment, as in Davis v. Passman, 422 U.S.
228 (1979), or to a warrantless entry of a residence in violation of the Fourth
Amendment, as in Bivens.
Reply, at 3-4 ((ECF No. 58).
The Court of Appeals for the Third Circuit has instructed that the question “[w]hether a
Bivens claim exists in a particular context is ‘antecedent to the other questions presented,’ ”
cautioning that “it will often be best to tackle head on whether Bivens provides a remedy, when
that is unsettled.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018) (citing Hernandez v. Mesa, 137
S. Ct. 2003, 2006-07 (2017)). This is a threshold determination because “[a]ssuming the existence
of a Bivens cause of action—without deciding the issue—can risk needless expenditure of the
parties' and the courts' time and resources.” Id. at 89.
“[T]he first question a court must ask in a case like this one is whether the claim arises in
a new Bivens context, i.e., whether the case is different in a meaningful way from previous Bivens
cases decided by this Court.” Ziglar, 137 S.Ct. at 1864 (internal quotation marks and citation
The Court accepts as true the facts as they appear in the Amended Complaint and draws all
possible inferences from those facts in the light most favorable to Simpson. Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 16 of 21
omitted). “[A] case can present a new context for Bivens purposes if it implicates a different
constitutional right; if judicial precedents provide a less meaningful guide for official conduct; or
if there are potential special factors that were not considered in previous Bivens cases.” Id.
a. First Amendment Retaliation Claims 9
The Supreme Court of the United States “has never held that Bivens extends to First
Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). 10 Prior to the Supreme
Court’s decision in Ziglar, on many occasions the Court of Appeals for the Third Circuit held that
plaintiffs could seek redress for First Amendment violations by bringing a Bivens suit. See, e.g.,
Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981); Paton v. La Prade, 524 F.2d 862, 872 (3d
Cir. 1975); see also George v. Rehiel, 738 F.3d 562, 585 n.24 (3d Cir. 2013) (assuming without
deciding that a Bivens action could be brought alleging a First Amendment right to be free from
government retaliation for speech). However, the judicial landscape changed after Ziglar and our
Neither Claim 4 nor Claim 5 involves any factual allegations which would implicate a First
Amendment access to courts claim.
A decision from the Court of Appeals for the Ninth Circuit recently created a circuit split
on whether Bivens should be extended to a First Amendment retaliation claim. See Boule v.
Egbert, 998 F.3d 370 (9th Cir.), cert. granted in part by Egbert v. Boule, No. 21-147, 2021 WL
5148065 (Nov. 5, 2021). In Boule, the appellate court recognized that federal Border Patrol Agents
may be personally liable under Bivens for allegedly retaliating against First Amendment-protected
speech. On November 5, 2021, the Supreme Court granted certiorari in the case on two questions:
(1) whether a cause of action exists under Bivens for First Amendment retaliation claims and (2)
whether a cause of action exists under Bivens for claims against federal officers engaged in
immigration related functions for allegedly violating a plaintiff’s Fourth Amendment.
Notwithstanding that certiorari has been granted in Boule, the question before this Court
is whether at the time of the incidents giving rise to Simpson’s First Amendment retaliation claims,
had the Supreme Court of the United States recognized an implied right to sue federal officials for
damages for a violation of the First Amendment. And the answer to that question is “no” - - as of
the date of the incidents alleged in this lawsuit and as of the date of this Memorandum Opinion,
the Supreme Court has not recognized a Bivens remedy for a First Amendment retaliation claim.
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 17 of 21
court of appeals disavowed its earlier cases recognizing that expanding Bivens beyond the contexts
already recognized is disfavored.
Since Ziglar, the Court of Appeals for the Third Circuit consistently has refused to extend
Bivens to a First Amendment retaliation claim. In Vanderlock v. United States, 868 F.3d 189, 199
(3d Cir. 2017), the Court of Appeals refused to extend Bivens to a First Amendment retaliation
claim brought against an agent of the Transportation Safety Administration stating that “the
existence of a Bivens action for First Amendment retaliation is no longer something that we should
assume without deciding.” Id. In 2018, the Court of Appeals rejected a First Amendment Bivens
claim in a prison-housing context, Bistrian v. Levi, 912 F.3d 79, 95 (3d Cir. 2018), and, in 2020,
the Court of Appeals rejected a First Amendment retaliation Bivens claim in the prison-workassignment context. Mack v. Yost, 968 F.3d 311, 323 (3d Cir. 2020). See also Watlington on behalf
of FCI Schuylkill African American Inmates v. Reigel, 723 F. App’x 137, 140 n.3 (3d Cir. 2018)
(per curiam) (stating that “a First Amendment retaliation claim . . . may not apply to a Bivens claim
against a federal official.”)(citing Vanderklok, 868 F.3d at 199; Reichle, 566 U.S. at 663 n.4)).
Guided by the cases noted above, the Court concludes that extending Bivens to Simpson’s
First Amendment retaliation claims in Claims 4 and 5 would be contrary to law. Accordingly,
Simpson’s First Amendment retaliation claims in Claims 4 and 5 of the Amended Complaint will
be dismissed for failure to state a claim.
Fourth, Fifth, and Eighth Amendments Claims
To the extent Simpson has brought Claims 4 and 5 under the Fifth Amendment, the Court
finds that there are meaningful differences between Simpson’s Fifth Amendment claims and the
claims at issue in Davis, which involved Fifth Amendment equal protection claims based on gender
discrimination in the federal workplace context. Assuming these claims are being brought under
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the Eighth Amendment, the Court finds that there are also meaningful differences between
Plaintiff’s Eighth Amendment claims and the claims at issue in Carlson, which involved Eighth
Amendment deliberate indifference claims based on the denial of medical care. And, assuming
these claims are being brought under the Fourth Amendment, there is no resemblance whatever to
the facts at issue in Bivens.
For these reasons, the Court finds that the allegations in Claims 4 and 5 present new Bivens
contexts and, as such, are “different in a meaningful way from previous Bivens cases decided by
[the Supreme] Court.” Ziglar, 137 S.Ct. at 1859.
Having concluded that Simpson’s allegations in Claims 4 and 5 present a new Bivens
context, the Court must turn to the second step of Ziglar and examine whether “there are any
special factors that counsel hesitation” in permitting the extension. Ziglar, 137 S. Ct. at 1857.
“There may be many such factors, but two are particularly weighty: the existence of an alternative
remedial structure and separation-of-powers principles.” Id. at 1857-58. As to the first, because
Simpson is no longer incarcerated, his claim “is ‘difficult to address except by way of damages
actions after the fact,’ which cannot be accomplished through the administrative grievance process
or a habeas petition.” Mammana v. Barben, No. 4:17-cv-00645, 2020 WL 3469074, at *3 (M.D.
Pa. 2020), aff’d, 856 F. App’x 411 (3d Cir. 2021) (quoting Bistrian, 912 F.3d at 92, quoting Ziglar,
137 S. Ct. at 1862)). The absence of an alternative remedy, however, is not dispositive. The Court
must still consider whether other factors – in particular, separation-of-powers concerns – weigh
against creating a Bivens remedy to fill the void. See id. (citing Wilkie v. Robbins, 551 U.S. 537,
550 (2007)). The essential inquiry “is ‘who should decide’ whether to provide for a damages
remedy, Congress or the courts?” Ziglar, 137 S. Ct. at 1857. In Ziglar, the Supreme Court said
“[t]he answer will most often be Congress.” Id. Thus, any special-factors assessment must seek to
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discern whether Congress would want the federal judiciary to impose “a new substantive legal
liability” in a given case. See id. at 1857-58. The Supreme Court has noted that Congressional
inaction in the area of prisoner litigation suggests “that Congress does not want a damages
remedy.” Ziglar, 137 S. Ct. at 1865. Furthermore, “the judicial restraint exercised in cases
implicating the administration of prisons” is another factor weighing against extension of the
The Court concludes that Simpson’s allegations in Claims 4 and 5 expand the Bivens
remedy to a new context and that special factors counsel against such expansion. Consequently,
the Court will grant Defendants’ motion to dismiss Claims 4 and 5. Leave to amend these claims
will be denied as any amendment would clearly be futile under the circumstances presented. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Motion to Dismiss – RFRA Claim
In any religious rights case, one of the basic questions is whether some government action
has “substantially burdened” a person’s religious exercise. 11 For purposes of the Motion to
Dismiss, Simpson must simply offer some evidence of a substantial burden. Simpson is an
adherent to Orthodox Therian Shamanism, in which he “worships the Wolf,” P’s Memo at 3 (ECF
No. 19-1), and is “obligated” to “stop immoral activities or conditions” and ‘to otherwise seek
justice at all costs.” P’s Resp. at 33 (ECF No. 54). Simpson contends that FCI Loretto has a
“culture” which endorses the “discrimination and targeting of minority religious beliefs,” that
“Defendants have engaged in a repeated pattern of harassment and targeting him and frequently
The RFRA provides that the “Government shall not substantially burden a person's
exercise of religion”, unless the government determines that “the application of the burden to the
person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive
means of furthering that compelling state interest.” 42 U.S.C.A. § 2000bb–1(a)(b).
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 20 of 21
reference Plaintiff’s religion when doing so” and “[b]ecause of this, by harassing Plaintiff,
Defendants substantially burdened Plaintiff’s religious beliefs by exerting pressure on Plaintiff to
cease his outward display of his religion.”
P’s Memo at 19 (ECF No. 19-1). As Defendants
correctly note, the allegations in the Amended Complaint provide no details or context about who,
or how, or when the actions of any individual defendant placed a substantial burden on Simpson’s
ability to practice his religion.
Defendants move to dismiss the RFRA claims based on Simpson’s failure to allege how
any of the individual defendants were personally involved in burdening his religious exercise. In
the opposition brief, Simpson again generally references “Loretto FCI staff,” “Defendants,” and
“BOP” and states that “Loretto FCI staff and Defendants would normally either respond [to his
grievances] with mean spirited, disrespectful and inappropriate comments about his tail or about
Wolves in general, or they would get extremely angry and try to intimate and threaten him.” P’s
Resp. at 33 (ECF No. 54). Simpson does, however, identify three (3) defendants, Davenport,
Mack, and Dipko, and sets forth specific allegations as to each of these individuals. See P’s Resp.
at ¶¶ 60, 62, and footnote 1 on pg. 37 of ECF No. 54.
These additional allegations will be accepted by the Court as supplements to the Amended
Complaint. As such, Simpson’s RFRA claims will be allowed to proceed at this early stage of the
proceeding, but only against Defendants Davenport, Mack, and Dipko. The Court finds that the
allegations of the Amended Complaint, as supplemented, while sparce, are enough to survive a
motion to dismiss with regard to the allegations against defendants Davenport, Mack, and Dipko.
The remaining Defendants will be dismissed from the RFRA claims for their lack of personal
involvement. Leave to amend these claims will be denied as Simpson supplemented his claims in
Case 3:20-cv-00024-CRE Document 59 Filed 11/17/21 Page 21 of 21
response to the motion to dismiss. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
For these reasons, Defendants’ motion to dismiss or in the alternative motion for summary
judgment will be denied in part and granted in part as follows:
The Motion for Summary Judgment will be denied as the PLRA exhaustion
requirements do not apply to the Amended Complaint;
The Motion to Dismiss based on sovereign immunity grounds will be denied as
The Motion to Dismiss Claims 4 and 5 of the Amended Complaint will be granted
as these claims present new Bivens contexts and special factors counsel against such expansion;
The Motion to Dismiss all RFRA claims will be denied as to Defendants Davenport,
Mack, and Dipko and granted as to all other defendants based on their lack of personal
An appropriate Order follows.
Dated: November17, 2021
s/Cynthia Reed Eddy
Cynthia Reed Eddy
Chief United States Magistrate Judge
Jesse Russell Simpson
(via ECF electronic notification)
U.S. Attorney's Office
(via ECF electronic notification)
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