BERK v. HOLLINGSWORTH

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

:

MICHAEL BERK, :

:

Plaintiff, : Civ. No. 17-0091 (NLH) (AMD)

:

v. : OPINION

:

JORDAN HOLLINGSWORTH, et al., :

:

Defendants. :

______________________________:

APPEARANCES:

Michael Berk, No. 43739-037

F.C.I. Seagoville

P.O. Box 9000

2113 N. Hwy 175

Seagoville, TX 75159

Plaintiff Pro se

Craig Carpenito, United States Attorney

John T. Stinson, Assistant United States Attorney

Office of the U.S. Attorney

District of New Jersey

402 East State Street

Room 430

Trenton, NJ 08608

Attorneys for Defendants

HILLMAN, District Judge

Defendants William Bickart, Jordan Hollingsworth, and

Stacey Marantz move to dismiss Plaintiff Michael Berk’s

complaint. ECF No. 33. For the following reasons, the motion

will be granted, and the First Amendment claims will be

dismissed. The Court concludes the remainder of the complaint

fails to state a claim and will therefore be dismissed under 28

U.S.C. § 1915.

I. BACKGROUND

Plaintiff, a federal prisoner, filed a complaint under

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), alleging that Defendants Warden Jordan Hollingsworth,

Chief Psychologist Stacey Marantz, and Behavioral Management

Programs Coordinator William Bickart directed Plaintiff’s

transfer from the Federal Correctional Institution at Fort Dix

in Fort Dix, New Jersey, a prison located near his family and

home, to the Federal Correctional Institution at Seagoville in

Texas. See ECF No. 1. He also alleged Defendant Jane Doe

opened, read, and confiscated his personal outbound mail in

violation of the First and Fourth Amendments and that Defendant

Caroline Gary, who is employed at the Bureau of Prison’s

Designation and Sentence Computation Center, approved and

processed his transfer. Id.

Plaintiff states he was “arrested in 2008 for a non-contact

computer-based sex offense involving simple possession of

contraband pornography and communications with adult civilians

which violated federal law proscribing attempts to entice

notional minors for illegal sexual activity.” ECF No. 1 at 6.

He was subsequently convicted of two counts of enticing a minor,

18 U.S.C. §§ 2422(b) and 3583(k); and pled guilty to possession

of child pornography, 18 U.S.C. §§ 2252A(a)(5)(B) and 3583(k).

United States v. Berk, No. 2:08-cr-00212 (D. Me. Oct. 26, 2009)

(ECF No. 134). The trial court sentenced Plaintiff to 200

months imprisonment and recommended that Plaintiff be placed in

a BOP facility that could provide him with sex offender

treatment. Id.

While detained at the Strafford County, New Hampshire

Department of Corrections awaiting transportation to a BOP

facility, Plaintiff “was found in possession of ‘pieces of files

and saw blades intended to be used by [Berk] to cut into a

plexiglass window in his cell and a hardened steel rod bisecting

that window in an effort to escape.’” ECF No. 33-2 at 9

(quoting Superseding Information, United States v. Berk, 1:10-

cr-00010 (D.N.H. June 28, 2010)) (alteration in original). He

pled guilty to possessing contraband in prison in violation of

18 U.S.C. § 1791(a)(2). Id. The District of New Hampshire

sentenced Plaintiff to a 12-month sentence to be served

consecutively to his convictions from the District of Maine and

recommended placement in FCI Fort Dix or FCI Fairton, New Jersey

so Plaintiff could be near his family. Id.

Plaintiff later filed a petition for writ of habeas corpus

under 28 U.S.C. § 2241 alleging improper discipline at FCI

Seagoville, Texas. ECF No. 1 at 6-7.1 Plaintiff states that

this petition was dismissed as moot following his transfer from

Seagoville to Fort Dix in March 2015, but that the petition

“resulted in the reversal and expunction of that incident.” Id.

at 7.

Plaintiff alleges that Defendant Marantz informed him on

July 1, 2015 “that BOP staff . . . had confiscated and forwarded

to her a written exchange between [him] and [his] fiancée.” Id.

After consulting with BOP Central Office Staff it was determined

that Plaintiff would not be subject to any discipline because he

was not “subject to any pertinent directive . . . .” Id. “She

advised me to be careful not to write anything which could be

construed as indicating a propensity to commit future criminal

sex acts, in which case I would be transferred to a less-

desirable prison under more restrictive conditions where my

family could no longer visit me.” Id. Plaintiff asked

Defendant Marantz what he could and could not write “in the

context of private communication with my committed partner

(i.e., consenting adults in a healthy relationship), to avoid

consequences . . . .” Id. He alleges that he was transferred

1 The specifics of the § 2241 petition are unknown as the docket

was sealed by the court. Berk v. Mejia, 3:14-cv-04402 (N.D.

Tex. Jan. 30, 2015) (ECF No. 9) (Order sealing case).

back to Seagoville under a Sex Offender Management Program

(“SOMP”) because of this inquiry and his prior § 2241.

Plaintiff alleges that he does not qualify for SOMP under

the relevant BOP program statements because he has not engaged

in “risk-relevant behavior.” Id. at 8. He asserts Defendant

Marantz retaliated against him for making inquires about his

written communications, Defendant Bickart requested the

transfer, and Defendant Gary at the DSCC approved and processed

his transfer. Id. He alleges Defendant Hollingsworth denied

his grievances about the opening of his mail and retaliated

against Plaintiff for the prior § 2241. Id. He also asserts

violations of the First and Fourth Amendments by Defendant Doe

for the opening of his mail, Fifth Amendment due process right,

Eighth Amendment prohibition on cruel and unusual punishment,

and Fourteenth Amendment equal protection right. Id. at 9.

The Court screened the complaint under 28 U.S.C. §

1915(e)(2)(B) and concluded that the complaint should proceed

against Defendants Hollingsworth, Martinez, Bickart, and Doe.

ECF No. 13. Defendant Gary was dismissed. Id. The Court noted

that an amended complaint and “supplement” that Plaintiff filed

prior to screening violated Federal Rule of Civil Procedure

15(a). Id. at 2 n.1. Summonses were issued to Defendants. ECF

No. 18.

On May 28, 2019, Plaintiff filed a motion for

reconsideration, or alternatively to amend his complaint. ECF

No. 20. After Defendants were served, they filed a motion to

dismiss. ECF No. 33. On December 9, 2019, the Court denied

Plaintiff’s motion for reconsideration or to amend but granted

Plaintiff permission to file a proposed second amended complaint

within 45 days. ECF No. 40. The Court administratively

terminated the motion to dismiss in the interim. Id.

Plaintiff requested additional time to file his proposed

second amended complaint, ECF No. 42, and the Court granted that

request, ECF No. 43. After Plaintiff failed to submit a

proposed amended complaint within the time set by the Court,

Defendants asked the Court to reinstate their motion to dismiss

the amended complaint. ECF No. 44. The Court reinstated the

motion to dismiss on April 30, 2020. ECF No. 45. As the Court

has not received any communication from Plaintiff since his

request for an extension in January 2020, it will consider his

previously filed opposition to the motion. ECF No. 37.

II. STANDARD OF REVIEW

When considering a motion to dismiss a complaint for

failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the non-moving

party. A motion to dismiss may be granted only if the plaintiff

has failed to set forth fair notice of what the claim is and the

grounds upon which it rests that make such a claim plausible on

its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

Although Rule 8 does not require “detailed factual allegations,”

it requires “more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Twombly, 550 U.S. at 555).

In reviewing the sufficiency of a complaint, the Court must

“tak[e] note of the elements [the] plaintiff must plead to state

a claim. Second, it should identify allegations that, because

they are no more than conclusions, are not entitled to the

assumption of truth. Finally, [w]hen there are well-pleaded

factual allegations, [the] court should assume their veracity

and then determine whether they plausibly give rise to an

entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d

780, 787 (3d Cir. 2016) (alterations in original) (internal

citations and quotation marks omitted). “[A] complaint’s

allegations of historical fact continue to enjoy a highly

favorable standard of review at the motion-to-dismiss stage of

proceedings.” Id. at 790.

III. DISCUSSION

A. First Amendment Claims

Defendants argue that Plaintiff cannot bring his First

Amendment claim for retaliation and interference with his mail

under Bivens. Alternatively, Defendants argue they have

qualified immunity to the claims.

The Supreme Court’s decision in Ziglar v. Abbasi, 137 S.

Ct. 1843 (2017) “created a funnel through which plaintiffs

alleging constitutional violations by federal officials must

pass.” Alexander v. Ortiz, No. 15-6981, 2018 WL 1399302, at *4

(D.N.J. Mar. 20, 2018), aff’d, 807 F. App’x 198 (3d Cir. 2020).

First, the Court must determine whether the cause of action

presents a “new context” for Bivens cases. If it does, the

Court must determine whether there are special factors

counselling against extending the Bivens remedy to the new cause

of action. “[E]xpanding the Bivens remedy is now a ‘disfavored’

judicial activity.” Abbasi, 137 S. Ct. at 1857.

“[T]he ‘proper test’ for determining whether a case

presents a new Bivens context is if the Supreme Court has not

previously recognized a claim in that context. A context is

‘new’ if it implicates a constitutional right not previously

recognized by the Supreme Court.” Mack v. Yost, 968 F.3d 311,

320 (3d Cir. 2020). The Supreme Court has never recognized a

Bivens remedy for First Amendment claims. See Reichle v.

Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that

Bivens extends to First Amendment claims.”); Mack, 968 F.3d at

320; Vanderklok v. United States, 868 F.3d 189, 198 (3d Cir.

2017). Plaintiff’s claims present new contexts, and the Court

must consider whether special factors counsel against extending

the Bivens remedy.

Post-Abbasi, the Third Circuit has concluded that “[t]wo

special factors are ‘particularly weighty’: the availability of

an alternative remedial structure and separation-of-powers

concerns.” Mack, 968 F.3d at 320. Those considerations also

weigh against expanding Bivens to a case where a prisoner

alleges his transfer by the BOP was retaliatory in nature and

that the prison has been interfering with his non-legal mail.

“The Supreme Court has noted that ‘when alternative methods

of relief are available, a Bivens remedy usually is not. Thus,

the availability of an alternative remedial structure may, on

its own, prevent courts from expanding Bivens.” Mack, 968 F.3d

at 320 (quoting Abbasi, 137 S. Ct. at 1863). Here, Plaintiff

has access to the BOP’s internal remedy system to address his

complaints about his mail handling and his transfer, see 28

C.F.R. §§ 542.10-542.19, and he used it, see ECF No. 37-1 at 10.

Plaintiff argues that the internal system is not an adequate

remedy because he must exhaust his internal remedies before he

can file a Bivens suit and he cannot obtain damages via the

internal system. ECF No. 37-1 at 11.

The fact that Plaintiff’s administrative grievances were

unsuccessful does not mean an alternative remedy was not

available. “It is sufficient that the administrative remedy was

available to [Plaintiff], he made use of it, and the prison

officials addressed it.” McFadden v. United States, No. 19-

2900, 2020 WL 5820745, at *3 (E.D. Pa. Sept. 30, 2020). The

alternate remedy is also inadequate because Plaintiff could not

obtain damages from his internal remedies. “[T]he alternative

remedy need not provide an individual with complete relief in

order to foreclose a damages remedy under Bivens.” Mack, 968

F.3d at 320 (emphasis omitted). “Accordingly, because

[Plaintiff] had access to at least ‘some redress,’ . . . we

find that the BOP’s administrative remedy program offers a

‘convincing reason,’ for us to refrain from creating a new

damages remedy against federal prison officials.” Id. at 321

(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69 (2001);

Abbasi, 137 S. Ct. at 1862)

The Court also concludes that separation of powers concerns

weigh heavily against extending Bivens to Plaintiff’s First

Amendment claims. “Because courts are not in a position to

second-guess the administrative policies and functions

historically within the executive’s domain, we must exercise

restraint if judicial intervention would ultimately interfere

with executive functions.” Id. at 322. In Mack, the Third

Circuit declined to extend a Bivens remedy to a prisoner who

alleged his workplace supervisor retaliated against him when he

complained about harassment. 968 F.3d 311. “First Amendment

retaliation claims often require an ‘analysis of the reasoning,

motivations, or actions of prison officials,’ which counsels

against Bivens expansion.” Id. at 322-23 (quoting Bistrian v.

Levi, 912 F.3d 79, 95 n.23 (3d Cir. 2018) (“Bistrian II”)).

Likewise, the Third Circuit declined to extend Bivens to a

First Amendment retaliation claim brought in the prison housing

context due to the separation of powers concerns. Bistrian II,

912 F.3d 79. “[R]etaliation claims like this one are grounded

in administrative detention decisions. Whether to place an

inmate in more restrictive detention involves real-time and

often difficult judgment calls about disciplining inmates,

maintaining order, and promoting prison officials’ safety and

security.” Id. at 96. “That conclusion aligns with a strong

trend in district courts, post-Abbasi, holding that a Bivens

retaliation claim under the First Amendment should not be

recognized. We agree with that view.” Id. (internal citation

omitted). The same concerns that dissuaded the Third Circuit in

Bistrian II and Mack convince this Court that Plaintiff’s

retaliation and mail2 Bivens claims cannot proceed.

Plaintiff argues Abbasi does not foreclose his claims

because he is arguing the prison officials failed to follow BOP

procedure and is not contesting the legality of a particular BOP

2 This decision is limited to non-legal mail.

policy. ECF No. 37-1 at 12. In order to succeed on his

retaliation claim, Plaintiff would need to establish a causal

connection between his grievances and his transfer, which

necessarily requires an analysis of the officers’ reasons and

motivations for transferring Plaintiff. As with prison

workplace assignments, the BOP has considerable discretion in

transfer decisions. “The Bureau of Prisons shall designate the

place of the prisoner’s imprisonment . . . . The Bureau may at

any time, having regard for the same matters, direct the

transfer of a prisoner from one penal or correctional facility

to another.” 18 U.S.C. § 3621(b). Allowing a Bivens remedy for

allegedly improper transfers when Congress specifically limited

district courts’ ability to review the BOP’s placement decisions

“would improperly encroach upon the executive’s domain.” Mack,

968 at 323.

The process of screening non-legal mail is also extensively

regulated by the BOP. “Moreover, as other courts have

recognized, special factors exist counseling against the

expansion of Bivens to First Amendment claims regarding

interference with mail, such as Congress’ decision to not

provide a damages remedy for certain violations and the

financial burden on federal agencies resulting from litigation.”

Railey v. Ebbert, 407 F. Supp. 3d 510, 522 (M.D. Pa. 2019),

appeal dismissed, No. 19-3889, 2020 WL 3414760 (3d Cir. Feb. 19,

2020).

The Court concludes Plaintiff’s claims of a retaliatory

prison transfer and interference with his non-legal mail are new

contexts under Bivens and that there are special factors

counselling against creating a new Bivens remedy. Plaintiff’s

First Amendment claims will be dismissed for failure to state a

claim.

Because Plaintiff has not stated a claim of a violation of

his federal rights, Defendants are also entitled to qualified

immunity. See Reichle v. Howards, 566 U.S. 658, 664 (2012)

(“Qualified immunity shields government officials from civil

damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of

the challenged conduct.”).

B. Remaining Claims

Defendants do not address Plaintiff’s other claims, but the

Court “shall dismiss the case at any time if the court

determines that fails to state a claim on which relief may be

granted[.]” 28 U.S.C. § 1915(e)(2)(ii).

In addition to the claims addressed above, Plaintiff argues

Defendants violated his First Amendment right to free

association, the Fourth Amendment by opening his mail, his Fifth

Amendment due process right, the Eighth Amendment prohibition on

cruel and unusual punishment, and Plaintiff’s Fourteenth

Amendment equal protection right. All of these claims are new

contexts under Bivens.

As noted supra, the Supreme Court has never extended Bivens

to any of the First Amendment’s protected activities, nor has it

extended Bivens to the Fourteenth Amendment’s equal protection

clause. Although the Supreme Court did create a remedy for

violations of the Fourth Amendment and the Fifth Amendment due

process right, those cases were not decided in the prison

context. See Bivens, 403 U.S. 388 (creating remedy for Fourth

Amendment claim for warrantless search and arrest); Davis v.

Passman, 442 U.S. 228 (1979) (holding administrative assistant

fired by Congressman had a Bivens remedy for her Fifth Amendment

gender discrimination claim). Similarly, Carlson v. Green, 446

U.S. 14 (1980), only addressed a prisoner’s claim of denial of

medical care under the Eighth Amendment. None of the cases

identified by the Supreme Court in Abbasi concerned a prisoner’s

challenge to prison officials searching his mail and

transferring him to a different facility, making these claims

“different in a meaningful way” from the Court’s previous Bivens

case. Abbasi, 137 S. Ct. at 1859-60.

The Court concludes extending the Bivens remedy to the

above claims would be inappropriate for the same reasons as it

would be inappropriate to extend Bivens to the retaliation and

interference with mail claims. The alternative remedies

available to Plaintiff and the infringement on the legislative

and executive branches caution against creating a judicial

remedy in the absence of congressional action.

C. Injunctive Relief

Finally, Plaintiff has not shown that he is entitled to

injunctive relief in the form of a transfer back to FCI Fort Dix

and the return of any seized mail.

A request for injunctive relief in the prison context must

be “viewed with considerable caution.” Rush v. Corr. Med.

Servs., Inc., 287 F. App'x 142, 144 (3d Cir. 2008). A party

seeking the extraordinary remedy of preliminary injunctive

relief must show: “(1) a likelihood of success on the merits;

(2) that it will suffer irreparable harm if injunction is

denied; (3) that granting preliminary relief will not result in

even greater harm to the nonmoving party; and (4) that the

public interest favors such relief.” Kos Pharms., Inc. v. Andrx

Corp., 369 F.3d 700, 708 (3d Cir. 2004). “[F]ailure to

establish any element in [a plaintiff's] favor renders a

preliminary injunction inappropriate.” Rush, 287 F. App'x at

144.

For the reasons stated above, Plaintiff has not shown a

likelihood of success on the merits of his complaint. Nor has

he shown that he will be irreparably harmed if the Court does

not grant the requested relief. In light of Plaintiff's failure

to establish irreparable harm, it is unnecessary for the Court

to address the remaining factors in the injunctive relief

analysis. See Frank's GMC Truck Ctr. v. Gen. Motors Corp., 847

F.2d 100, 102 (3d Cir. 1988) (stating that injunctive relief

cannot be granted where movant has not demonstrated probability

of irreparable harm).

IV. CONCLUSION

For the reasons set forth above, the motion to dismiss will

be granted. The complaint will be dismissed for failure to

state a claim. An appropriate Order follows.

Dated: November 20, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.