Dugan v. Jarvis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

OCALA DIVISION

ROBERT F. DUGAN,

Plaintiff,

v. Case No. 5:13-cv-235-Oc-32PRL

FNU SCOTT, et al.,

Defendants.

___________________________

ORDER

I. Status

Plaintiff, a federal inmate, initiated this case by filing a pro se Civil Rights

Complaint (Doc. 1). On October 6, 2016, this Court entered an Order granting in part

and denying in part Defendants’ Motion for Summary Judgment (Doc. 78). As

explained in the Court’s summary judgment Order, the only claims now remaining are

Plaintiff’s First Amendment claims against Defendants Vargas, Dole, Scott, Figueroa,

Lopes, and Kajander:

Plaintiff alleges that the remaining Defendants

subjected him to retaliation for exercising his First

Amendment right to Free Speech. Specifically, Plaintiff

claims that he engaged in the administrative remedy

process, assisted other inmates with their own grievances

and pursued his lawsuit in 5:10-cv-367. In response,

Plaintiff alleges that the remaining Defendants strip

searched him, transferred him to another prison,

confiscated his property, delayed his access to his medical

records and placed him in the SHU.[1] (Doc. 1).

1 “Special Housing Units (SHUs) are housing units in Bureau institutions where

inmates are securely separated from the general inmate population, and may be

Defendants argue that there is “no Bivens[2] liability

for violation of the First Amendment.” (Doc. 73). While the

Supreme Court has not specifically extended a

Bivens cause of action based on the First

Amendment, the Court is not persuaded that the

Eleventh Circuit does not recognize such a claim. See

Hollins v. Samuals, 2013 U.S. App. LEXIS 20007 (11th Cir.

2013) (citing Alexander v. Hawk, 159 F.3d 1321 (11th Cir.

1998) (stating that “[w]e’ve considered a Bivens claim for

an alleged First Amendment violation.[”]); See also Walden

v. CDC & Prevention, 669 F.3d 1277 (11th Cir. 2012)

(disposing of the case on other grounds, but assuming

without deciding that the plaintiff could seek a Bivens

remedy for violations of the First Amendment Free

Exercise Clause.); Burns v. Warden, USP Beaumont, 2012

U.S. App. LEXIS 13209 (11th Cir. 2012) (finding that there

was a sufficient factual basis for a prisoner’s First

Amendment retaliation claim brought pursuant to

Bivens.). As such, the Court will consider this ground for

relief.

Doc. 78 at 21-22 (emphasis added). The Court went on to find that genuine issues

remain as to whether those six Defendants violated Plaintiff’s clearly established First

Amendment rights, and allowed this case to proceed on Plaintiff’s First Amendment

claims for nominal damages. See id. at 23-28.

Before the Court is Defendants’ Motion for Reconsideration of the Court’s Order

Based upon an Intervening Change in Controlling Law (Doc. 104). Defendants assert

that after entry of this Court’s summary judgment Order, the United States Supreme

Court decided Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), which is an intervening change

housed either alone or with other inmates. Special housing units help ensure the

safety, security, and orderly operation of correctional facilities, and protect the public,

by providing alternative housing assignments for inmates removed from the general

population.” 28 C.F.R. § 541.21.

2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971).

in controlling law. According to Defendants, Abbasi provides a new multi-part test

that courts must undertake to determine whether a Bivens remedy is available. They

argue that applying the new test to this case dictates that the Court reconsider its

prior Order and grant summary judgment in Defendants’ favor on Plaintiff’s First

Amendment retaliation claims.

Plaintiff, through counsel,3 filed a Response in opposition (Doc. 121). Plaintiff

argues that reconsideration is inappropriate because Abbasi merely “collects and

clarifies 50 years of controlling law; it does not change Bivens at all.” Even assuming

it is an intervening change in controlling law, Plaintiff argues that application of the

Abbasi test warrants denial of Defendants’ request for reconsideration.

II. Legal Standard

Under Federal Rule of Civil Procedure 54(b), an order “that adjudicates fewer

than all the claims or the rights and liabilities of fewer than all the parties does not

end the action as to any of the claims or parties and may be revised at any time before

the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” Fed. R. Civ. P. 54(b).4 The decision to grant a motion for reconsideration

3 Counsel was appointed after entry of the Court’s summary judgment Order. See

Orders (Docs. 107, 111); Notices of Appearance (Doc. 110, 112).

4 Defendants cite to Rule 54(b) as the basis for seeking reconsideration. See Doc. 104

at 1-2. Regardless of the procedural Rule used, the same standard applies. See

Maldonado v. Snead, 168 F. App’x 373, 386-87 (11th Cir. 2006) (“Although the district

court reviewed [the] motion under Rule 54(b) as a motion for reconsideration of a non-

final order rather than under Rule 60(b) as a motion for relief from judgment, ‘[w]e see

no reason to apply a different standard when the party seeks reconsideration of a non-

final order’ than when the party seeks reconsideration of a final judgment.” (quoting

Region 8 Forest Serv., 993 F.2d at 806)).

is within the sound discretion of the trial court. Region 8 Forest Serv. Timber

Purchasers Council v. Alcock, 993 F.2d 800, 805-06 (11th Cir. 1993). Courts have

delineated three major grounds that may justify reconsideration: “(1) an intervening

change in controlling law; (2) the availability of new evidence; [and] (3) the need to

correct clear error or prevent manifest injustice.” Sussman v. Salem, Saxon & Nielsen,

P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994) (citation omitted).

III. History of Bivens

Since 1871, an injured person has been entitled to sue a state official for

monetary damages if that official violates his federal constitutional rights. See Abbasi,

137 S. Ct. at 1854 (citing 42 U.S.C. § 1983). However, “Congress did not create an

analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens,

Congress did not provide a specific damages remedy for plaintiffs whose constitutional

rights were violated by agents of the Federal Government.” Id.

In 1971, the Supreme Court decided Bivens, in which it recognized an implied

cause of action for damages against federal officials who violate an individual’s Fourth

Amendment rights against unreasonable search and seizures. Since then, the Court

has extended Bivens on only two occasions.

In Davis v. Passman, 442 U.S. 228 (1979), an

administrative assistant sued a Congressman for firing her

because she was a woman. The Court held that the Fifth

Amendment Due Process Clause gave her a damages

remedy for gender discrimination. Id. at 248-49. And in

Carlson v. Green, 446 U.S. 14 (1980), a prisoner’s estate

sued federal jailers for failing to treat the prisoner’s

asthma. The Court held that the Eighth Amendment Cruel

and Unusual Punishments Clause gave him a damages

remedy for failure to provide adequate medical treatment.

See id. at 19. These three cases—Bivens, Davis, and

Carlson—represent the only instances in which the Court

has approved of an implied damages remedy under the

Constitution itself.

Abbasi, 137 S. Ct. at 1854-55 (internal citations modified); see Johnson v. Burden, No.

18-11937, 2019 WL 2949425, at *2 (11th Cir. July 9, 2019) (“Bivens has been applied

to a Fourth Amendment case involving a search and seizure, a Fifth Amendment

gender discrimination case, and an Eighth Amendment case involving cruel and

unusual punishment. Only in these three contexts did the Supreme Court approve an

implied damages remedy under the Constitution itself.” (citations omitted)).

In 2017, the Supreme Court decided Abbasi. The Court recognized that it “has

made clear that expanding the Bivens remedy is now a ‘disfavored’ judicial activity.”

Abbasi, 137 S. Ct. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). To

determine whether a Bivens remedy exists, a court first asks whether the case before

it presents a new Bivens context, which requires a court to consider whether “the case

is different in a meaningful way from previous Bivens cases decided by [the Supreme]

Court.” Id. at 1859.

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 into the functioning of other branches; or the

presence of potential special factors that previous Bivens

cases did not consider.

Id. at 1860.

If the case presents a new context, “a Bivens remedy will not be available if

there are ‘special factors counselling hesitation in the absence of affirmative action by

Congress.’” Id. at 1857 (quoting Carlson, 446 U.S. at 18). The Court has not defined

“special factors counselling hesitation,” but any such “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. Thus, a “special factor” is one that “cause[s] a court to hesitate before

answering that question in the affirmative.” Id. at 1858.

“There may be many such factors, but two are particularly weighty: the

existence of an alternative remedial structure and separation-of-powers principles.”

Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018). “[I]f there is an alternative remedial

structure present in a certain case, that alone may limit the power of the Judiciary to

infer a new Bivens cause of action.” Abbasi, 137 S. Ct. at 1858. Generally, “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 in

determining the nature and extent of federal-court jurisdiction under Article III.” Id.

Courts should consider “the burdens on Government employees who are sued

personally, as well as the projected costs and consequences to the Government itself.”

Id. Courts should also consider whether Congress “has designed its regulatory

authority in a guarded way, making it less likely that Congress would want the

Judiciary to interfere.” Id.; see Bistrian, 912 F.3d at 90 (recognizing that Abbasi

identified the following as special factors: “the potential cost to the government of

recognizing a private cause of action, both financially and administratively; whether

the judiciary is well suited to weigh those costs; the necessity to deter future violations;

whether Congress has already acted in that arena, suggesting it does not want the

Judiciary to interfere; whether a claim addresses individual conduct or a broader

policy question; whether litigation would intrude on the function of other branches of

government; and whether national security is at stake.” (internal quotations and

citation omitted)).

IV. Discussion

In this Court’s summary judgment Order, it acknowledged that the Supreme

Court has not specifically extended a Bivens remedy to a First Amendment claim, but

it allowed Plaintiff’s claims to proceed because it was not convinced that the Eleventh

Circuit would not recognize such claims. However, the Supreme Court and the

Eleventh Circuit, albeit in an unpublished decision, now mandate that courts apply

Abbasi’s test to determine whether Bivens should be extended. This Court did not do

so in its summary judgment Order because Abbasi had not yet issued. And although

courts, pre-Abbasi, similarly analyzed whether to extend Bivens and considered

“special factors,” see Wilkie v. Robbins, 551 U.S. 537, 550 (2007),5 Abbasi has clarified

5 [T]he decision whether to recognize a Bivens remedy may

require two steps. In the first place, there is the question

whether any alternative, existing process for protecting the

interest amounts to a convincing reason for the Judicial

Branch to refrain from providing a new and freestanding

remedy in damages. Bush v. Lucas, 462 U.S. 367, 378

(1983). But even in the absence of an alternative, a Bivens

the legal landscape in such a way that this Court must revisit its prior Order. Indeed,

the Eleventh Circuit recently instructed a district court on remand to apply Abbasi’s

test. See Johnson, 2019 WL 2949425, at *3.

Thus, even if Abbasi does not qualify as an “intervening change in controlling

law,” this Court has discretion, considering the interests of justice and judicial

economy, to reconsider its prior Order. Doing so and applying Abbasi’s test precludes

Plaintiff from proceeding on his First Amendment retaliation claims. If this Court did

not reconsider its Order, the case would proceed to trial on claims that do not exist.

Such a result would be unjust. The Court explains its reasons below.

“[T]he Supreme Court has repeatedly confirmed that it has not extended a

Bivens remedy to First Amendment claims.” Johnson, 2019 WL 2949425, at *3

(citations omitted); see Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (“We have

never held that Bivens extends to First Amendment claims.”); Iqbal, 556 U.S. at 675

(recognizing the Supreme Court has “declined to extend Bivens to a claim sounding in

the First Amendment,” but assuming without deciding that the respondent’s First

Amendment claim was actionable under Bivens because the petitioners “d[id] not

press this argument”); see also Rager v. Augustine, 760 F. App’x 947, 953 (11th Cir.

2019) (citing Abbasi and recognizing that “it is by no means clear that a damages

remedy is a subject of judgment: “the federal courts must

make the kind of remedial determination that is

appropriate for a common-law tribunal, paying particular

heed, however, to any special factors counselling hesitation

before authorizing a new kind of federal litigation.” Id.

Wilkie, 551 U.S. at 550 (internal citations modified).

remedy is warranted for a First Amendment retaliation claim”). These cases recognize

that Plaintiff’s First Amendment retaliation claims are different than the claims

previously recognized by the Supreme Court in Bivens, Davis, and Carlson. Thus,

Plaintiff’s claims arise in a new context, and the Court must consider whether special

factors counsel hesitation in extending Bivens in this instance. See Johnson, 2019 WL

2949425, at *3 (finding that the plaintiff’s First Amendment retaliation claim

represents a new Bivens context and remanding to the district court “to apply a ‘special

factors’ analysis consistent with Abbasi”).

One “special factor” to consider is whether Plaintiff had an alternative remedy

available to redress the alleged harm. See Abbasi, 137 S. Ct. at 1858 (“For 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.’” (quoting Wilkie,

551 U.S. at 550)). Examples of alternative judicial forms of relief that may preclude a

Bivens remedy include injunctions6 and habeas petitions. Johnson, 2019 WL 2949425,

at *2 (citation omitted).7 Additionally, courts have recognized that prisoners, like

6 Plaintiff sought monetary damages and declaratory relief in his Complaint; he did

not seek injunctive relief. See Order (Doc. 78) at 3. This Court allowed Plaintiff’s

retaliation claims to proceed for nominal damages. See id. at 28; see also Doc. 121 at

3.

7 See, e.g., Badley v. Granger, No. 2:17-cv-00041-JMS-DLP, 2018 WL 3022653, at *3

(S.D. Ind. June 18, 2018) (“[The plaintiff] may bring retaliation conduct to the

attention of administrators and seek non-monetary remedies. For any injuries he

might have sustained, he is able to bring a claim under the Federal Torts Claim Act.

Any retaliation that extends his confinement might be actionable in habeas corpus.

And any retaliation that results in a violation of a previously recognized Bivens claim

is another alternate remedy [the plaintiff] may pursue.”).

Plaintiff, may pursue non-monetary relief through the Bureau of Prison’s grievance

procedure. See Ruffin v. Rawls, No. 5:18-cv-591-Oc-39PRL, 2019 WL 3752812, at *5

(M.D. Fla. Aug. 8, 2019), appeal filed (Sept. 5, 2019); Pinkney v. Lockett, No. 5:16-cv-

00103- Oc-02PRL, 2019 WL 1254851, at *6 (M.D. Fla. Mar. 19, 2019); Taylor v.

Lockett, No. 5:17-cv-00023-Oc-02PRL, 2019 WL 764023, at *10 (M.D. Fla. Feb. 21,

2019); Badley, 2018 WL 3022653, at *3; see also Andrews v. Miner, 301 F. Supp. 3d

1128, 1134 (N.D. Ala. 2017) (recognizing that despite the prisoner’s lack of success

through the BOP’s administrative remedies procedure, “the existence of this

alternative remedy also weighs against extension of Bivens to First Amendment

claims of use of excessive force in retaliation for filing grievances.”). The availability

of alternative relief counsels hesitation “in the absence of affirmative action by

Congress.”

Another factor counseling hesitation is “legislative action suggesting that

Congress does not want a damages remedy.” Abbasi, 137 S. Ct. at 1865. In 1995,

Congress passed the Prison Litigation Reform Act.

[The PLRA] made comprehensive changes to the way

prisoner abuse claims must be brought in federal court. See

42 U.S.C. § 1997e. So it seems clear that Congress had

specific occasion to consider the matter of prisoner abuse

and to consider the proper way to remedy those wrongs.

This Court has said in dicta that the Act’s exhaustion

provisions would apply to Bivens suits. See Porter v.

Nussle, 534 U.S. 516, 524 (2002). But the Act itself does

not provide for a standalone damages remedy

against federal jailers. It could be argued that this

suggests Congress chose not to extend the Carlson

damages remedy to cases involving other types of prisoner

mistreatment.

Abbasi, 137 S. Ct. at 1865 (internal citations modified and emphasis added).

Additionally, the PLRA limits a prisoner’s available monetary damages in the absence

of a physical injury, see 42 U.S.C. § 1997e(e), and here, Plaintiff’s retaliation claim is

limited to nominal damages on that basis. See Order (Doc. 78) at 4-6. Given Congress’s

active role in the area of prisoners’ rights, this factor causes the Court to “hesitate”

and weighs against extending a Bivens remedy in this case.

V. Conclusion

Since Abbasi, “the majority of courts considering this question have concluded

that a Bivens claim is no longer available for a First Amendment retaliation claim.”

Atkinson v. Broe, No. 15-CV-386-WMC, 2019 WL 231754, at *5 (W.D. Wis. Jan. 16,

2019) (collecting cases); see Luis Buenrostro v. Fajardo, 770 F. App’x 807, 808 (9th Cir.

2019) (finding that “special factors counsel against extending Bivens to [the prisoner’s]

First Amendment claim; for example, Congress has addressed the question of

prisoners’ remedies in the [PLRA]” and “an alternative remedial structure exists,

including through the [BOP’s] administrative grievance process”). Two of my

colleagues on this Court have concluded likewise. See Ruffin, 2019 WL 3752812, at *5-

6 (Davis, J.); Pinkney, 2019 WL 1254851, at *5-7 (Jung, J.); Taylor, 2019 WL 764023,

at *10 (Jung, J.). The undersigned agrees that, on these allegations, application of the

Abbasi test precludes Plaintiff’s First Amendment retaliation claims. Therefore, it is

ORDERED:

1. Defendants’ Motion for Reconsideration of the Court’s Order Based upon

an Intervening Change in Controlling Law (Doc. 104) is GRANTED to the extent

stated herein. The portion of the Court’s Order (Doc. 78) that denied Defendants’

motion for summary judgment and permitted Plaintiffs First Amendment retaliation

claims against Defendants Vargas, Dole, Scott, Figueroa, Lopes, and Kajander to

proceed is VACATED. Based on the findings herein, summary judgment is due to be

entered on these claims.

2. The Clerk shall enter judgment on Plaintiffs First Amendment

retaliation claims in favor of Defendants Vargas, Dole, Scott, Figueroa, Lopes, and

Kajander and against Plaintiff and thereafter close the file.

DONE AND ORDERED in Jacksonville, Florida, this 275 day of September,

2019.

TIMOTHY J. CORRIGAN

United States District Judge

JAX-3 9/27

Cc:

Counsel of Record

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