Kaufmann v. Werlich

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARIN KAUFMANN, )

)

Plaintiff, )

)

v. ) Case No. 20-cv-120-RJD

)

MS. BOWERS and T. RAY, )

)

Defendants. )

ORDER

DALY, Magistrate Judge:

Plaintiff Darin Kaufman, an inmate in the custody of the United States Bureau of Prisons

(“BOP”), brings this action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971). Plaintiff alleges Defendants interfered with his access to legal mail while he was

incarcerated at Greenville Federal Correctional Institution (“FCI Greenville”). The Court

conducted a threshold review of Plaintiff’s amended complaint pursuant to 28 U.S.C. § 1915A and

he was allowed to proceed on the following claim:

Count One: First Amendment interference with legal mail claim against

Defendants Bowers and Ray for reading and then denying Plaintiff

access to his legal mail.

Defendants have filed a Motion to Dismiss (Doc. 40) and Motion for Summary Judgment

(Doc. 41) that are now before the Court. Plaintiff has responded to the motions (Docs. 47 and

48).

In their motion to dismiss, Defendants assert that the Bivens remedy is not available for a

violation of the First Amendment at issue in this case in light of Ziglar v. Abbasi, 137 S. Ct. 1843

(2017). Defendants also argue, however, that the Court may not need to address the Abbasi issue

because the mail handling procedure Plaintiff complains of is a reasonable restriction that reflects

an effort to maintain prison security. Defendants also assert the mail handling protocols have not

served to deny Plaintiff access to the courts.

Based on the following, Defendants’ Motion to Dismiss (Doc. 40) is GRANTED IN

PART AND DENIED IN PART, and Defendants’ Motion for Summary Judgment (Doc. 41) is

FOUND AS MOOT. This case is DISMISSED with prejudice.

Factual Background

Plaintiff’s complaint arises from incidents that occurred while he was incarcerated at FCI

Greenville. According to Plaintiff’s Amended Complaint (Doc. 37), on October 16, 2019,

Plaintiff spoke with Defendant Case Manager Bowers and asked her for access to legal mail that

had been withheld from Plaintiff so he could work on his appeal with his attorney. Plaintiff

alleges that Bowers told him he could not have access to his legal mail because it references his

conviction and is a “liability concern.” According to Plaintiff, he filed an informal complaint on

a BP-8 form that did not receive any response.

Plaintiff also alleges that on January 11, 2020, he was called to the mailroom and Defendant

Ray opened an envelope from his attorney regarding his appeal. Plaintiff alleges Ray read his

legal documents and then called and spoke with Defendant Bowers and then spoke with the case

manager, Mr. Harken. Defendant Ray told Plaintiff that he would not be allowed to possess his

legal mail and they were going to treat it like a presentence investigation report (“PSI”). Plaintiff

then spoke with Harken and complained that whenever Plaintiff received legal mail from his

attorney regarding his appeal FCI Greenville staff would open and read it, and then refuse to let

Plaintiff possess it. Harken advised Plaintiff that his legal mail would be treated as if it were a

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PSI. Harken communicated this to Defendant Ray. Harken told Plaintiff this mail would be

stored in his central file for his review, but Plaintiff asserts he is not allowed to take notes or copies

of the materials. Plaintiff further alleges that his requests for time to review his central file have

not been fulfilled.

On March 13, 2020, Plaintiff was again called to the mail room and Defendant Ray had

him sign for a piece of legal mail from the Southern District of Illinois. Defendant Ray asked

Plaintiff to sign the form indicating receipt of the legal mail, and then Ray opened the mail and

read it. Plaintiff questioned Ray as to why he was reading Plaintiff’s mail, and Ray told Plaintiff

that he knew why and the matter had already been discussed.

Legal Standards

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal if a complaint

fails to state a claim upon which relief can be granted. In considering a motion to dismiss, the

Court accepts as true all well-pleaded allegations in the complaint and draws all possible inferences

in favor of the plaintiff. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th

Cir. 2007) (quotations omitted). A plaintiff need not set out all relevant facts or recite the law in

his or her complaint; however, the plaintiff must provide a short and plain statement that shows

that he or she is entitled to relief. See FED. R. CIV. P. 8(a)(2). Thus, a complaint will not be

dismissed if it “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007)).

Discussion

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The Supreme Court has held, “[a] prison inmate retains those First Amendment rights that

are not inconsistent with his status as a prisoner or with the legitimate penological objectives of

the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). In this vein, the Supreme

Court recognizes that prisoners have protected First Amendment interests in both sending and

receiving mail. Rowe v. Shake, 196 F.3d 778, 782 (7th Cir. 1999) (citing Thornburgh v. Abbott,

490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987)). An inmate’s legal mail is entitled to

greater protections because of the potential for interference with his right of access to the courts.

Kaufman v. McCaughtry, 419 F.3d 678, 685-86 (7th Cir. 2005) (citation omitted). As such, when

an inmate receives mail that is marked with an attorney’s name and a warning that the letter is

legal mail, officials potentially violate the inmate’s rights if they open the letter outside the

inmate’s presence. Id. at 686 (citations omitted). Despite these protections on an inmate’s mail

services, prison security and rehabilitation are legitimate interests that justify reasonable

restrictions on prisoner’s correspondence. Koutnik v. Brown, 456 F.3d 777, 781 (7th Cir. 2006).

In determining the reasonableness of a restriction, the court must consider: (1) whether there is a

“valid, rational” connection between the prison regulation and the legitimate governmental interest

put forward to justify it; (2) whether there are alternative means of exercising the right that remain

open to prison inmates; (3) the impact accommodation of the asserted constitutional right will have

on guards and other inmates, and on the allocation of prison resources; and (4) whether “ready

alternatives” to the restriction exist. Turner v. Safley, 482 U.S. 78, 89-90 (1987).

Defendants assert Plaintiff fails to state a First Amendment violation insofar as the mail

protocols described by Plaintiff did not deny Plaintiff access to the courts. Defendants also assert

Plaintiff has failed to demonstrate that the procedures complained of were an unreasonable

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restriction on his First Amendment rights.

Defendants ask the Court to make a determination that the restrictions complained of are

reasonable. In support of this argument, Defendants contend their actions were in compliance

with particular BOP Program Statements that set forth BOP policies for the opening and inspection

of mail. Defendants also assert that “[i]f a court filing contains information that could subject an

inmate to reprisals … it is not unreasonable to store that material in the inmate’s central file rather

than his cell, with opportunity to review it.” Defendants fail to support this conclusion with any

evidence, which is necessary for the Court to find in Defendants’ favor. However, if they had

provided evidentiary support, their motion to dismiss would be improper, as the Court generally

cannot consider materials beyond the complaint in deciding a motion to dismiss. See Olson v.

Bemis, 800 F.3d 296, 305 (7th Cir. 2015) (A court ruling on a motion to dismiss can rely on the

complaint itself, documents attached to the complaint, documents that are critical to the complaint

and referred to in it, and information that is subject to proper judicial notice). This highlights the

peculiar nature of Defendants’ request for dismissal on this basis. A determination that the

procedures complained of were “reasonable restrictions” is a fact intensive query that the Court

finds cannot be accomplished at this stage in the litigation. See Ortiz v. Downey, 561 F.3d 664,

669-70 (7th Cir. 2009). Further, the Court notes that compliance with a BOP policy is neither

evidence of a constitutional violation or the reasonableness of a restriction. The Court finds it is

also improper to determine whether Plaintiff was limited in his access to the courts due to

Defendants’ alleged conduct without the benefit of discovery.

Bivens Remedy

Defendants contend that Bivens should not be extended to Plaintiff’s First Amendment

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claim in light of the Supreme Court decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017).

Through 42 U.S.C. § 1983, Congress created a damages remedy for plaintiffs whose

constitutional rights were violated by state officials. See id. at 1848. The statute was silent,

however, regarding actions by federal officials. Id. Nevertheless, in 1971, the Supreme Court

recognized an implied damages action against federal officers who violated the Fourth

Amendment prohibition against unreasonable searches and seizures. See Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 397 (1971). Over the next decade, the Supreme Court extended

Bivens type remedies to Fifth Amendment gender discrimination and Eighth Amendment

deliberate indifference claims. See Davis v. Passman, 442 U.S. 228, 248 (1979); Carlson v.

Green, 446 U.S. 14, 20 (1980).

Since that time, however, the Supreme Court has grown increasingly hesitant to expand

the number of implied actions under Bivens, and such expansion is now “disfavored.” Abbasi,

137 S.Ct. at 1857. The Supreme Court recently established a two-part test for determining

whether a Bivens claim could proceed. First, the district court must determine whether the case

presents a “new context” different from previously recognized Bivens remedies. Id. at 1859.

Second, if it does present a new context, the Court must then analyze whether “special factors

counsel hesitation” in expanding Bivens in the absence of congressional action. Id. at 1857.

New Context

A case raises a new context where it differs “in a meaningful way from previous Bivens

cases decided by th[e] [Supreme] Court[.]” Abbasi, 137 S.Ct. at 1859. In Abbasi, the Court gave

the following guidance in making the determination:

A case might differ in a meaningful way because of the rank of the officers involved; the

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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 1859-60.

Here, although some Supreme Court cases assumed a Bivens remedy was available for First

Amendment violations, the Court never specifically recognized such a claim. See Reichle v.

Howards, 566 U.S. 658, 663 n. 4 (2012); Ashcroft v. Iqbal, 446 U.S. 662, 675 (2009). Further, a

First Amendment claim bears little resemblance to the types of claims previously recognized by

the Supreme Court. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971)

(recognizing Fourth Amendment unreasonable search and seizure claims); Davis v. Passman, 442

U.S. 228, 248 (1979) (recognizing Fifth Amendment gender discrimination claims); Carlson v.

Green, 446 U.S. 14, 20 (1980) (recognizing Eighth Amendment deliberate indifference claims).

Since Abbasi was decided, various courts, including this one, analyzing this prong of the

test have repeatedly found that First Amendment claims raise a new context. See, e.g., Redmon-

El v. Sullivan, Case No. 20 C 50128, 2021 WL 4477814, at *2 (N.D. Ill. Sept. 30, 2021) (finding

the plaintiff’s First Amendment retaliation claim differs in “a meaningful way” from Bivens,

Davis, and Carlson, and thus arises in a new context); Keller v. Walton, No. 3:16-CV-0565-JPG-

GCS, 2019 WL 1513498, at *2 (S.D. Ill. Apr. 8, 2019) (finding that First Amendment retaliation

claim qualifies as a new context); Harris v. Dunbar, No. 2:17-CV-00536-WTL-DLP, 2018 WL

3574736, at *3 (S.D. Ind. July 25, 2018) (finding that First Amendment interference with mail

claim qualifies as a new context); Stratmon v. Morris, No. 1:12-CV-01837-DAD-SAB (PC), 2018

WL 3388406, at *3 (E.D. Cal. July 10, 2018) (finding confiscation and interference with mail

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under the First Amendment as presenting a new context under Bivens). See also Vega v. United

States, 881 F.3d 1146, 1153 (9th Cir. 2018) (noting that First Amendment retaliation claims raise

a new context under Bivens); Howard v. Lackey, No. 7:16-129-KKC, 2018 WL 1211113, at *3

(E.D. Ky. March 7, 2018) (finding First Amendment retaliation claim based on failure to receive

single piece of mail as raising a new Bivens context).

In his supplemental response to Defendants’ motion, Plaintiff asserts that his claim presents

issues of due process and access to the courts and should be viewed as a Fifth Amendment claim

rather than a First Amendment claim. The Court has reviewed Plaintiff’s Amended Complaint

(Doc. 37) and the Court’s screening order (Doc. 24) and finds Plaintiff’s claim was properly

characterized as a First Amendment mail interference claim rather than a Fifth Amendment due

process claim1. As such, the Court need not discuss this argument further.

Special Factors

If a case involves a new context, the Court must next determine whether “special factors

counsel hesitation” in extending a Bivens remedy. Abbasi, 137 S.Ct. at 1857 (citing Carlson, 446

U.S. at 18). Whether special factors urge expansion of this remedy into a new context depends

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,” and whether “there is

an alternative remedial structure present in a certain case.” Id. at 1858.

With regard to “special factors,” Defendants assert the issues here present “line-drawing”

1 If Plaintiff believed the Court mischaracterized his claim he should have filed a motion to reconsider the screening

order. Moreover, even if the Court found Plaintiff had stated a Fifth Amendment due process claim, such a claim is

unlike those cases in which the Supreme Court found a Bivens-type remedy was available. See Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 397 (1971); Davis v. Passman, 442 U.S. 228, 248 (1979); and Carlson v. Green, 446

U.S. 14, 20 (1980).

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difficulties. In support of this argument, Defendants seem to analogize this case to Wilkie v.

Robbins, wherein the Supreme Court barred an extension of a Bivens remedy for retaliation finding

it would “invite claims in every sphere of legitimate governmental action affecting property

interests.” 551 U.S. 537, 561 (2007). In Wilkie, which involved a Fifth Amendment claim by a

landowner who alleged that federal employees had engaged in a campaign of harassment and

intimidation to induce him to give an easement over his property, the Court found that although

there were several avenues of judicial and administrative redress for much of the wrongdoing

alleged by the plaintiff, it was not enough to resolve the matter. Wilkie, 551 U.S. at 555-56.

Thus, the Court went on to consider whether “special factors” counseled against recognizing an

implied right of action. On this issue, the Court found that “[a] judicial standard to identify

illegitimate pressure going beyond legitimately hard bargaining would be endlessly knotty to work

out, and a general provision for tortlike liability when Government employees are unduly zealous

in pressing a governmental interest affecting property would invite an onslaught of Bivens

actions.” Id. at 562. As such, the Court found Bivens could not be extended to the circumstances

presented in Wilkie and remarked that “any damages remedy for actions by Government employees

who push too hard for the Government’s benefit may come better, if at all, through legislation.”

Id.

The Court finds the circumstances presented in this instance are not akin to those presented

in Wilkie as the claims are quite distinct and there are remedies available to adequately address

Plaintiff’s claims.

The Supreme Court has explained that the existence of an alternative remedial structure,

alone, may limit the court’s power to infer a new Bivens cause of action because “the alternative

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process may convincingly caution the Judiciary against ‘providing a new and freestanding remedy

in damages.’” Abbasi, 137 S.Ct. at 1858.

Alternative remedial structures can take many forms, including administrative, statutory,

equitable and state law remedies. See Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018);

Muhammad v. Gehrke, No. 2:15-CV- 00334-WTL-MJD, 2018 WL 1334936 * 4 (S.D. Ind. Mar.

15, 2018) (noting that defendants had administrative remedies available to address first amendment

retaliation claims for filing grievances). Here, Plaintiff had the administrative remedy process

available at his institution, as evidenced by his assertions that there is a prisoner grievance

procedure at his institution, and he presented facts related to his complaint via the prisoner

grievance procedure. Accordingly, this Court concludes that Plaintiff did have alternative

remedies to address his claims.

Also in this instance, prior legislative action should cause the court hesitation in expanding

Bivens. See Abbasi, 137 S.Ct. at 1865. Congress enacted the Prison Litigation Reform Act

(“PLRA”) after the Supreme Court’s early decisions expanding Bivens. The PLRA made

substantial changes to how prisoner abuse claims could be brought in federal court. Id. The fact

that Congress overhauled the process, but chose not to provide damage remedies, suggests

Congress did not see the necessity of such a remedy to address constitutional violations in prisoner

cases.

Finally, the financial burden on federal agencies resulting from litigation counsels against

any Bivens expansion. The costs to the government and individual government employees in

defending against such suits is significant. Congress recognized this when it enacted the PLRA

with the express purpose of reducing costs related to frivolous lawsuits by prisoners. See

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Woodford v. Ngo, 548 U.S. 81, 83 (2006). As noted previously, Congress balanced the costs of

defending such litigation against the need to protect prisoners’ rights through damages. In making

this balancing assessment, Congress specifically chose not to provide a damages remedy. Thus,

extending Bivens liability to Plaintiff’s First Amendment claims would upset that balance and

encroach on the province of the legislative branch, who is in a better position to balance and make

determinations about such policy concerns. See Abbasi 137 S.Ct. at 1857.

For these reasons, the Court finds the special factors do not favor expanding the Bivens

remedy.

Conclusion

Based on the foregoing, Defendants’ Motion to Dismiss (Doc. 40) is GRANTED IN

PART AND DENIED IN PART. This matter is DISMISSED with prejudice for failure to state

a claim for relief because the claim at issue represents an unauthorized expansion of the Bivens

remedy post-Abbasi. The Clerk of Court is directed to enter judgment consistent with this Order

and close the case.

In light of this decision, Defendants’ Motion for Summary Judgment on the issue of

exhaustion of administrative remedies (Doc. 41) is FOUND AS MOOT.

IT IS SO ORDERED.

DATED: November 4, 2021

s/ Reona J. Daly

Hon. Reona J. Daly

United States Magistrate Judge

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