Gonzalez v. Berg et al
ORDER granting 25 Motion for Summary Judgment. Signed by U.S. District Judge Karen E. Schreier on 3/28/18. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
ORDER GRANTING MOTION FOR
Plaintiff, Guadalupe Gonzalez, was a federal inmate housed at the
Federal Prison Camp in Yankton, South Dakota (FPC Yankton). 1 On March 17,
2016, Gonzalez filed a complaint under § 1983 alleging several violations of his
constitutional rights by several defendants. Docket 1. Defendants moved to
dismiss the complaint (Docket 14) and the court granted the motion in part
and denied the motion in part. Docket 20. The remaining issue in this case is
Gonzalez’s claim that defendant, R. Bendt, violated Gonzalez’s rights by
denying Gonzalez access to grievance forms. Docket 20 at 9. Bendt moves for
summary judgment on Gonzalez’s claim. Docket 25.
Viewing the facts in the light most favorable to the non-moving party:
On September 9, 2012, Gonzalez’s property arrived at FPC Yankton from
his previous placement at the Federal Correctional Institute in Loretto,
Pennsylvania (FCI Loretto). Docket 1 ¶ 2. A staff member at FPC Yankton
Gonzalez was released from federal custody on May 12, 2017. Docket 28 ¶ 3.
would not permit Gonzalez to possess his book—Federal Aviation
Regulations/Aeronautical Information Manual (FAR/AIM). Id. Gonzalez was
permitted to have FAR/AIM at FCI Loretto. Id. On September 17, 2012,
Gonzalez initiated the Bureau of Prison’s administrative remedy process.
Id. ¶ 3.
The Bureau of Prisons has a four-tiered administrative procedure for
inmate grievances—a procedure codified at 28 C.F.R. § 542.10 et seq. The first
step is informal resolution with prison staff. 28 C.F.R. § 542.13. Requests for
Informal Resolution Forms (also referred to as BP-8) are not assigned a Remedy
ID number and are not tracked. Docket 28 ¶ 7. If an inmate does not resolve
his complaint with an informal resolution, he may proceed to the second step
and file a formal Administrative Remedy at the institution where the inmate is
incarcerated (BP-9). 28 C.F.R. § 542.14. The third step is for the inmate to file
a Regional Office Administrative Remedy Appeal (BP-10) with the Regional
Director. 28 C.F.R. § 542.15. And finally, the fourth step is for the inmate to
file a Central Office Administrative Remedy Appeal (BP-11). Id.
Bendt denied Gonzalez’s informal resolution request stating that
Gonzalez was not participating in an approved post-secondary education
course. Id. Gonzalez’s subsequent appeals were similarly denied. Id. ¶¶ 3-4. On
April 17, 2013, Gonzalez initiated the administrative remedy process again
alleging that his copy of the FAR/AIM had been removed from FPC Yankton
before his administrative remedy process was completed. Id. ¶ 5. Bendt again
denied the informal resolution. Id.
Gonzalez claims that, as a result of his participation in the
administrative remedy process, Bendt has retaliated against him. Id. ¶ 8.
Specifically, Gonzalez states that he “was forced to file a BP-9 to Warden J.S.
Willis because Mr. Bendt refused to supply [Gonzalez] with an informal
resolution form, barring him from the administrative remedy process
altogether.” Id. ¶ 10. Later, Gonzalez states that “Mr. R. Bendt again refused to
provide Mr. Gonzalez with a form BP-11 in order for him to be able to complete
his administrative remedy process.” Id. ¶ 11.
Gonzalez asserts an action under Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971). 2 Gonzalez alleges that
Bendt retaliated against him by not providing Gonzalez with the necessary
forms to complete his administrative appeal in violation of the First
STANDARD OF REVIEW
Summary judgment is proper “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment
always bears the initial responsibility of . . . demonstrat[ing] the absence of a
genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
Gonzalez initially filed this action under 42 U.S.C. § 1983. But § 1983 only
applies where a state official violates an injured person’s constitutional rights.
Id. Bendt is not a state official—he is a federal official. Thus, this court
interprets Gonzalez’s action as one brought under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
(1986). The moving party must inform the court of the basis for its motion and
also identify the portion of the record that shows there is no genuine issue in
dispute. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation
To avoid summary judgment, “[t]he nonmoving party may not ‘rest on
mere allegations or denials, but must demonstrate on the record the existence
of specific facts which create a genuine issue for trial.’ ” Mosley v. City of
Northwoods, 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. County of Le
Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “[T]he mere existence of some alleged
factual dispute between the parties is not sufficient by itself to deny summary
judgment . . . . Instead, ‘the dispute must be outcome determinative under
prevailing law.’ ” Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir.
1992) (quoting Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989)). On a
motion for summary judgment, the facts and inferences drawn from those facts
are “viewed in the light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), the Supreme Court recognized a cause of action for
implied damages against federal officers in their individual capacities for
violations of the Fourth Amendment. The Supreme Court recognized a Bivens
remedy for violations of the Fifth Amendment and of the Eighth Amendment.
Davis v. Passman, 442 U.S. 228, 249 (1979); Carlson v. Green, 446 U.S. 14, 24
(1980). Several Circuits have found that a plaintiff may bring a Bivens claim for
violation of the First Amendment. Yiamouyiannis v. Chem. Abstracts Serv., 521
F.2d 1392, 1393 (6th Cir. 1975) (“We recognize that Bivens dealt with a Fourth
Amendment violation, but its logic appears to us to be equally applicable to a
First Amendment violation.”); Paton v. La Prade, 524 F.2d 862, 870 (3d Cir.
1975) (“Thus, we believe the extension of the Bivens rule to violations of first
amendment rights to be both justifiable and logical.”); Mendocino Envtl. Ctr. v.
Mendocino Cty., 14 F.3d 457, 464 (9th Cir. 1994) (finding that the plaintiffs
sufficiently stated a Bivens claim under the First Amendment). But more
recently the United States Supreme Court has exercised caution as to
expanding the scope of Bivens actions, and some circuits have followed suit.
In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court
acknowledged that it had recognized three instances where a Bivens remedy is
available: (1) a violation of the Fourth Amendment’s prohibition on
unreasonable searches and seizures; (2) a violation of the Fifth Amendment’s
Due Process Clause for gender-based discrimination; and (3) a violation of the
Eighth Amendment’s prohibition on cruel and unusual punishment. Id. at
1854-55. But the Court explained that it now expresses caution as to judicial
findings of implied causes of action under congressional statutes. Id. at 1856.
And that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”
Id. at 1857 (citing Ashcroft v. Iqbal, 556 U.S 662, 675 (2009)). The Ziglar Court
laid out “[t]he proper test for determining whether a case presents a new Bivens
context is” to determine whether “the case is different in a meaningful way from
previous Bivens cases decided by the Court.” Id. at 1859.
If the case is meaningfully different from past cases, the court should
then ask “if there is an alternative remedial structure present.” Id. at 1858.
Because “if Congress has created ‘any alternative, existing process for
protecting the [injured party’s] interest’ that itself may ‘amoun[t] to a
convincing reason for the Judicial Branch to refrain from providing a new and
freestanding remedy in damages.’ ” Id. at 1858 (quoting Wilkie v. Robbins, 551
U.S. 537, 550 (2007) (alterations in original)). Then the courts must weigh the
“reasons for and against the creation of a new cause of action, the way
common law judges have always done.” Wilkie, 551 U.S. at 554 (citation
omitted). “In sum, if there are sound reasons to think Congress might doubt
the efficacy or necessity of a damages remedy as part of the system for
enforcing the law and correcting a wrong, the courts must refrain from creating
the remedy in order to respect the role of Congress . . . .” Ziglar, 137 S. Ct. at
The Third Circuit, which had previously found a Bivens cause of action
under the First Amendment, changed its course in light of the Supreme Court’s
guidance. In Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017), the
Third Circuit noted that it had previously permitted a plaintiff to pursue a
claim under Bivens for a violation of her First Amendment rights in Paton v. La
Prade. Id. at 198. But the court acknowledged that “judicial attitudes about the
creation of new causes of action have changed considerably.” Id. at 200.
Utilizing the inquiry laid out in Wilkie and Ziglar, the Third Circuit Court of
Appeals ultimately determined that “in the specific context of airport security
screeners, special factors preclude [it] from implying a Bivens cause of action
for First Amendment retaliation.” Id. at 209.
Gonzalez’s claim is meaningfully different.
A case may be meaningfully different:
[B]ecause 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 into the functioning of other
branches; or the presence of potential special factors that previous
Bivens cases did not consider.
Ziglar, 137 S. Ct. at 1860. Gonzalez alleges that Bendt violated his First
Amendment rights by refusing Gonzalez access to administrative remedy forms
in retaliation for Gonzalez’s previous administrative complaints. Because the
Supreme Court has never implied a Bivens cause of action for First
Amendment retaliation, Gonzalez’s claim involves a different constitutional
right and is meaningfully different from previous Bivens cases.
There are special factors counselling hesitation.
“The [Supreme] Court’s precedents now make clear that a Bivens remedy
will not be available if there are ‘special factors counselling hesitation in the
absence of affirmative action by Congress.’ ” Ziglar, 137 S. Ct. at 1857 (quoting
Carlson v. Green, 446 U.S. 14, 18 (1980)). The Supreme Court has not defined
what a special factor is, but has stated “that the 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.” Id. at 1857-58. Gonzalez alleges that Bendt retaliated
against him for exercising his access to the administrative process. Gonzalez
alleges that Bendt retaliated by not providing Gonzalez with required
administrative forms when Gonzalez tried to utilize the administrative process
a second time.
The Supreme Court has previously declined to create an implied
damages action in a First Amendment suit against a federal employee in Bush
v. Lucas, 462 U.S. 367 (1983). In Bush, the Court declined to recognize a
Bivens action because the cost, time, and energy associated with defending a
Bivens action from a federal employee are significant and Congress is in a
better position to evaluate the need for a damages action in a First Amendment
suit against a federal employee. Id. Thus, the Court found there were “special
factors counselling hesitation.” Id. at 390.
Here, the court also finds that the cost, time, and energy associated with
defending a Bivens action brought by an inmate for an action based on
retaliation under the First Amendment against a federal employee are
significant. The court finds that there are “special factors counselling
hesitation” and declines to find a Bivens remedy for an inmate alleging
retaliation under the First Amendment against a federal official.
In conclusion, the Supreme Court has not recognized a Bivens remedy
for claims of retaliatory denials of administrative remedies. And recently, the
Supreme Court has expressed its hesitation to recognize additional Bivens
remedies and in Ziglar v. Abbasi laid out the process to determine if a Bivens
remedy is appropriate. Utilizing the approach in Ziglar, the court declines to
find a Bivens remedy in this case because there are “special factors counselling
hesitation.” Thus, it is
ORDERED that defendant’s motion for summary judgment (Docket 25) is
DATED March 28, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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