Coe v. United States of America et al

Filing 53

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS 50 . Signed by Chief Judge S. Thomas Anderson on 4/24/20. (skc)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ANTRAUN COE,
Plaintiff,
VS.
UNITED STATES OF AMERICA, et al.,
Defendants.

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No. 16-3006-STA-cgc

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Plaintiff Antraun Coe, formerly an inmate at FCI Memphis, Tennessee, filed this action
pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), against
various Defendants who are current and former employees of the Federal Bureau of Prisons
(“BOP”), alleging that they violated his First Amendment right to practice religion. (ECF No.
1.) Subsequently, Plaintiff filed an amended complaint (ECF No. 13), again alleging violations
of the First Amendment. Specifically, Plaintiff alleges that his First Amendment right was
violated when staff provided him with food items in a manner not compliant with kosher
requirements. Defendants have filed a motion to dismiss. (ECF No. 50.) Plaintiff has not
responded to the motion. For the reasons set forth below, the motion to dismiss is GRANTED.
The Federal Rules of Civil Procedure require that a complaint contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
complaint may be attacked for failure “to state a claim upon which relief can be granted.” Fed.
R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, a Court will presume
that all the factual allegations in the complaint are true and will draw all reasonable inferences in

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favor of the nonmoving party. Total Benefits Planning Agency v. Anthem Blue Cross & Blue
Shield, 552 F.3d 430, 434 (6th Cir. 2008) (citing Great Lakes Steel v. Deggendorf, 716 F.2d
1101, 1105 (6th Cir. 1983)).

“The court need not, however, accept unwarranted factual

inferences.” Id. (citing Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)).
Even though a “complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations
omitted). Instead, the plaintiff’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. (citations omitted). That is, a complaint must contain enough facts
“to state a claim to relief that is plausible on its face.” Id. at 570. A claim becomes plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). If the Court cannot “infer more than the mere
possibility of misconduct, the complaint has alleged—but has not ‘show[n]’—‘that the pleader is
entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). “[O]nly a complaint that states a
plausible claim for relief survives a motion to dismiss.” Id.
The Court finds Defendants’ argument that Plaintiff’s lawsuit must be dismissed because
the free exercise claim being pursued by Plaintiff does not present a cognizable Bivens claim
under the Supreme Court’s ruling in Ziglar v. Abbasi, 137 S. Ct. 1842 (2017), to be meritorious.
In Abbasi, the Supreme Court declined to extend Bivens to a new category of constitutional
claims, reasoning that expanding Bivens is a “disfavored” judicial activity. Abbasi, 137 S. Ct. at

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1857 (citing Iqbal, 556 U.S. at 675).

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The Court explained that damages remedies for

constitutional violations by employees or agents of the Federal Government have only been
recognized three times: (1) in Bivens, a damages action to compensate persons injured by federal
officers who violated the Fourth Amendment’s prohibition against unreasonable searches and
seizures; (2) in Davis v. Passman, 442 U.S. 228 (1979), a Fifth Amendment gender
discrimination case; and (3) in Carlson v. Green, 446 U.S. 14 (1980), an Eighth Amendment
cruel and unusual punishment clause case. Abbasi, 137 S. Ct. at 1848. The Abbasi Court held
that a Bivens claim may only proceed if it asserts a constitutional right at issue in a previous
Bivens case and if the injury alleged is the same type of injury as in a previous Bivens case. Id. at
1859. If the claim presents a new or novel constitutional issue or a new type of injury, it can
proceed only after a special factors analysis. Id.
In the present case, Plaintiff’s claim that he was denied the right to practice his faith
under the First Amendment is a new or novel issue. See Johnson v. Burden, 781 F. App’x 833,
836-837 (11th Cir. 2019) (“[T]he Supreme Court has repeatedly confirmed that it has not
extended a Bivens remedy to First Amendment claims.”); Edgerson v. West, 2019 WL 2291479
*2 (W.D. TN. 2019) (“[T]he Supreme Court has never extended a Bivens remedy to any First
Amendment claim.”); Crowder v. Jones, 2017 WL 5889717 *2 (S.D. Ind. 2017) (finding that
First Amendment free exercise claim presented a new context). Accordingly, the Court must
determine if “special factors counsel[] hesitation” in recognizing a new remedy “in the absence
of affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857, 1859. Special factors include
whether adequate alternative remedies exist to give Plaintiff relief, the doctrine of separation of
powers, and the consideration that Congress has not authorized a stand-alone damages cause of
action against federal prison officials.

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As to the first factor, clearly, adequate alternative remedies exist for prisoners, and
Plaintiff resorted to those remedies. Federal regulations 28 C.F.R. §§ 542.10-542.19 set out a
multi-tiered BOP administrative procedure for inmates who seek formal review of their
complaints, including informal resolution, a formal administrative remedy request, appeal to
regional director, and appeal to general counsel. Plaintiff pursued the administrative remedies
available to him to the fullest according to the amended complaint. (Amd. Compl. ¶¶ 8-11, ECF
No. 13.) The BOP grievance process constitutes an adequate alternative remedial structure that
counsels against expanding Bivens to Plaintiff’s claim.
Next, the Court must consider the issue of separation of powers as it relates to Plaintiff’s
claim. When a plaintiff asks a court to infer a cause of action for money damages to enforce a
constitutional right, separation of powers is “central to the analysis.” Abbasi, 137 S. Ct. at 1857.
It is a “significant step under separation-of-powers principles for a court to determine that it has
the authority, under the judicial power, to create and enforce a cause of action for damages
against federal officials in order to remedy a constitutional violation.” Id. at 1856.
The Supreme Court has encouraged courts to defer to the executive branch the judgment
of prison officials to administer federal correctional facilities because the challenges of prison
administration lack easy solutions. Bell v. Wolfish, 441 U.S. 520, 545-48 (1979). While there is
a need to protect “certain basic rights of inmates,” prison administration is best left to “those
with the most expertise in the field,” not the courts. Jones v. North Carolina Prisoner’s Union,
433 U.S. 119, 137 (1977). Thus, the issue of separation of powers counsels against expanding
Bivens to Plaintiff’s claim.
Finally, the Court must look at the issue of stand-alone damages and other costs in its
special factors analysis. The “decision to recognize a damages remedy requires an assessment of

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its impact on governmental operations system wide.” Abbasi, 137 S. Ct. at 1858. This includes
“the burdens on Government employees who are sued personally, as well as the projected costs
and consequences to the Government itself.” Id. For example, officials who face personal
liability for damages might refrain from taking urgent and lawful action in a time of crisis. Id. at
1863. Courts “must accord substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means to accomplish them.”
Overton v. Bazzetta, 539 U.S. 126, 132 (2003); see also Morgan v. Shivers, 2018 WL 618451, *6
(S.D.N.Y. Jan. 29, 2019) (recognizing prisoner claims “present a plethora of policy-related
considerations” that must be balanced against “challenges prison administrators and officers face
in maintaining prison security.”). The Court finds that the refusal of Congress to authorize a
stand-alone damages cause of action against federal prison officials, as well as financial and
logistical costs, counsel against expanding the Bivens remedy to Plaintiff’s claim. Accordingly,
Plaintiff’s First Amendment Bivens claim is dismissed.
However, even if Plaintiff had stated a Biven claim, it is barred by the applicable statute
of limitations. Pursuant to Tenn. Code Ann. § 28-3-104(a), the one-year statute of limitations
period is applicable to Bivens actions brought in Tennessee. The last specific incident that
Plaintiff alleged in his complaint occurred on March 11, 2015. Thus, the limitations period
expired one year later, on March 11, 2016. However, the Court allowed Plaintiff to amend his
complaint to allege any additional facts that might cure the untimeliness. (Order, ECF No. 10
(citing Mason v. Dep’t of Justice, 39 F. App’x 205, 207 (6th Cir. 2002); Merriweather v. City of
Memphis, 107 F.3d 396, 398 n. 1 (6th Cir. 1997)).

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In his Amended Complaint, Plaintiff alleges that on April 25, 2016, he “filed a BP-8 for
violation of his First Amendment right to practice his faith and FBOP policy,” i.e., an informal
resolution form.

(Amd. Compl. ¶ 8, ECF No. 13.) He further alleges, “On May 10, 2016,

Plaintiff filed a BP-9 to Warden M. Batts concerning the violation of Plaintiff’s First
Amendment right to practice his faith and FBOP policy and requested a Full investigation of
Food Service Administration,” i.e., a formal written Administrative Remedy (Id. at ¶ 9). On
August 1, 2016, Plaintiff filed a BP-10 (an Appeal to the Regional Director), and on August 13,
2016, he filed a BP-11 (an Appeal to the General Counsel). (Id. at ¶ 10-11). The fact that
Plaintiff initiated these steps over a year after the last specific incident on March 11, 2015, does
not cure his untimeliness. Pursuant to 28 C.F.R. § 542.14(a), “the deadline for completion of
informal resolution and submission of a formal written Administrative Remedy Request, on the
appropriate form (BP-9), is 20 calendar days following the date on which the basis for the
Request occurred.” Claims arising from administrative complaints initiated outside the 20-day
deadline must be dismissed. See Morales v. White, 2008 WL 4585340 (W.D. Tenn. Oct. 10,
2008) (dismissing claims that were administratively asserted “well beyond the twenty (20) day
limitation period for completion of the informal resolution and submission of a Request for
Administrative Remedy. 28 C.F.R. § 542.14(a).”).
Plaintiff is beyond the twenty day period, even assuming the date of the last incident as
the “date on which the basis for the Request occurred.” He could have requested an extension of
time pursuant to 28 C.F.R. § 542.14(b), citing reasons for his delay such as being “separated
from documents needed to prepare the Request or Appeal,” physical incapacity, or other reasons.
However, he did not do so. Thus, even if Plaintiff were entitled to pursue his Bivens claim in this

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Court, he has failed to demonstrate that the administrative steps he took toll the limitations
period. Accordingly, Plaintiff’s claims are dismissed on this ground also.
Finally, as argued by Defendants, any claims against Defendants Charles E. Samuels,
Mark S. Inch, D. R. Stevens, Angela Owens, and Myron Batts must be dismissed because
Plaintiff has not alleged any facts that demonstrate their personal involvement with the
complained of conduct. See Matthews v. Robinson, 52 F. App’x 808, 810 (6th Cir. 2002)
(affirming the district court’s judgment dismissing the case when the plaintiff failed to establish
that the defendants violated his constitutional rights or were either personally responsible for or
knowingly acquiesced in any unconstitutional conduct). These Defendants are not alleged to
have had any direct involvement in the packaging or distributing of Kosher food items. Instead,
they worked in a supervisory capacity, and it is well-settled that the doctrine of respondeat
superior does not apply in civil rights claims. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)
(“Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior”). Therefore, Plaintiff’s claims against these
Defendants are dismissed for lack of personal involvement.
In summary, Defendants’ motion to dismiss is GRANTED, and the Clerk of the Court is
DIRECTED to enter judgment against Plaintiff and in favor of Defendants.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: April 24, 2020.

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