GOLDBERG v. UNITED STATES OF AMERICA

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

MARK GOLDBERG,

Plaintiff, Civil Action No, 17-6024 (KMW) (SAK)

OPINION

UNITED STATES OF AMERICA, et al.,

Defendants.

WILLIAMS, District Judge:

This matter comes before the Court on Defendants’ motion to dismiss Plaintiff's amended

complaint in this prisoner civil rights matter. (ECF No. 74.) Plaintiff filed a response to the motion

(ECF No. 79), to which Defendants replied. (ECF No, 80.) For the reasons set forth below,

Defendants’ motion shall be granted, and Plaintiff's amended complaint (ECF No. 69) shall be

dismissed.

I. BACKGROUND

At the time the events which give rise to his complaint occurred, Plaintiff was a federal

prisoner confined to the minimum-security satellite camp at FCI] Fort Dix. (ECF No. 69 at 4.)

Plaintiff's claims chiefly concern the termination of his parental rights over his handicapped son,

in New York state court. Ud. at 4-10.) Plaintiff's son was born in 2010. Ud. at 4.) Following his

mother’s suffering mental health and substance abuse issues,! New York state officials removed

Plaintiff's son from the care of his mother and placed him in foster care in 2011. Ud.) Although

Plaintiff's wife eventually passed away in October 2015, (ECF No. 69 at 5.)

Plaintiff sought to take steps to reconnect with his son in the hopes of regaining custody of him,

those attempts were derailed when Plaintiff was indicted on fraud and tax charges in 2012. □□□□□□

Plaintiff pled guilty to those charges in 2013, and was sentenced to fifty-seven months’

imprisonment in 2014. Ud.) Plaintiffs sentence commenced on October 1, 2015. (id)

In March 2015, the organization that had foster custody of Plaintiff’s son filed a petition to

terminate Plaintiff's parental rights. Ud. at 5.) Plaintiff was represented by counsel in the ensuing

termination proceedings, who secured an order of the state court permitting Plaintiff to appear at

those hearings telephonically in light of his incarceration. (/d.) Although Plaintiff was initially

placed on the prison’s call out list so that he could call into a hearing in January 2016, that initial

hearing was rescheduled. (/d. at 6.) Following the rescheduling of that hearing, Plaintiff contends

that Defendants, in various ways indicative of either indifference, negligence, or animus, interfered

with his ability to attend various hearings and conferences telephonically, resulting in his inability

to participate in the termination proceedings. (Ud. at 6-10.) Plaintiff?s counsel, however,

apparently did attend all hearings and cross-examine the relative witnesses involved. (/d.)

Regardless, Plaintiff's parental rights over his son were ultimately terminated by court order in

September 2017. (/d. at 10.)

Plaintiff therefore seeks to bring claims against Defendants under the First and Fifth

Amendments, via Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), for claims asserting that they denied him access to the courts and his rights to Due

Process, as weil as a civil conspiracy claim. Defendants now move to dismiss those claims,

arguing that Plaintiff has failed to adequately plead a conspiracy, that they are entitled to qualified

immunity, and that this Court should not extend the Bivens remedy to cover claims such as these

in light of the Supreme Court’s decision in Ziglar v, Abbasi, --- U.S. ---, 137 8. Ct. 1843 (2017).

Il. LEGAL STANDARD

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is

“required to accept as true all factual allegations in the complaint and draw all inferences in the

facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d

224, 228 (3d Cir, 2008). “[A] complaint attacked by a... motion to dismiss does not need detailed

factual allegations.” Bell Atlantic y. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff's

“obligation to provide the ‘grounds’ of his ‘entitle[{ment] to relief? requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Jd. (citing

Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the

factual allegations in the complaint are true, those “[fJactual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

USS. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for misconduct alleged.” fd. “Determining whether the allegations in a complaint are

plausible is a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Jd. at 679. “[Where the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has

not ‘show[n]’—“‘that the pleader is entitled to relief.’” Jd (citing Fed. R. Civ. P. 8(a)(2)).

Il. DISCUSSION

In their motion to dismiss, Defendants chiefly argue that this Court should decline to extend

Bivens to cover Plaintiff's claims and dismiss those claims as a result. In Bivens, the Supreme

Court recognized an implied cause of action for those whose rights were violated by those acting

under color of federal law, creating a functional analogue to a federal ctvil rights claim under 42

U.S.C. § 1983. See Ziglar, 137 S. Ct. at 1854. Although the Supreme Court did recognize that

this implied cause of action went beyond merely the factual context of Bivens itself, see Davis v.

Passman, 442 U.S. 228 (1979) (finding Bivens cause of action for Congressional staffer subjected

to sex discrimination); Carlson v. Green, 446 U.S. 14 (1980) (finding Bivens cause of action for

inadequate prison medical treatment), because this cause of action was judicially created and not

based on explicit statutory authority, the Supreme Court frequently advised caution in further

extending that cause of action. See Ziglar, 137 S. Ct. at 1855. Indeed, the Supreme Court found

further extension to be a disfavored judicial activity. See Iqbal, 556 U.S, at 675. The Court has

therefore on multiple occasions declined to expand Bivens to cover a number of claims such as a

First Amendment suit against a federal employer, military race discrimination suits, substantive

due process claims against military officers, and procedural due process claims in various context.

Ziglar, 137 8, Ct. at 1857 (collecting cases).

in Ziglar, the Supreme Court clarified that Bivens should not be extended to “any new

context” if there are “special factors counselling hesitation in the absence of affirmative action by

Congress.” /d. (internal quotations omitted). As the Supreme Court explained, the “proper test

for determining whether a case presents a new Bivens context is as follows. Ifthe case is different

in a meaningful way from previous Bivens cases decided by [the Supreme Court}, then the context

is new.” Jd. at 1859. A case may still be a “new” context even where the type of legal claim or

constitutional violation is quite similar to a previous case — the Court observed meaningful

differences could include the rank of the government agents involved, the constitutional right at

issue, the generality or specificity of the official action in question, the extent to which federal

officers have judicial guidance on how to respond to the issue at hand, the statutory or legal

framework guiding the officer’s conduct of his duties, the disruptive risk posed by the judiciary

expanding its authority into the province of the legislature or federal executive branch, or the

presence of other special factors. fd. at 1859-60. Thus, a court must determine whether special

factors counsel against expanding Bivens any time a case is meaningfully different in any of these

or similar ways from any of the three contexts in which the Supreme Court has found a Bivens

cause of action in the past: a Fourth Amendment search and seizure case involving federal drug

enforcement issues, a sex discrimination case against a congressman, and a case involving

inadequate medical care being provided to a prisoner. /d. at 1860,

In determining whether special factors counsel hesitation in extending Bivens, Courts may

consider any number of factors, but there are two chiefly to consider: “the existence of an

alternative remedial structure and separation-of-powers principles.” Bistrian vy. Levi, 912 F.3d 79,

90 Gd Cir, 2018) (citing Ziglar, 137 8. Ct. 1857-58). Where an alternate structure is available,

that alone may prevent judicial expansion of Bivens, but where there are separation of powers

concerns, that must be central to any special factors analysis. fd. Other factors which may be

considered include the financial and administrative cost to the government of recognizing a private

cause of action and whether the judiciary is well suited to weigh those costs, the necessity to deter

future violations, whether Congress has already taken action in a related context indicating that

judicial “interference” is unwarranted, whether a claim impugns or otherwise calls into question

executive policy questions, whether national security is involved, and whether litigation would

intrude on the function of the executive or legislative branches, Jd.

In this matter, Plaintiff wishes to raise two classes of claims under Bivens — a denial of

access to the Courts claim under the First and Fifth Amendment and a Fifth Amendment Due

Process claim, buttressed by a conspiracy claim tying the Defendants to alleged wrongs of the

other Defendants. Despite Plaintiffs protestations to the contrary, most of which are based on

pre-Ziglar Third Circuit cases which cannot, in and of themselves, establish a non-novel context

for a Bivens claim, see Bistrian, 912 F.3d at 95-96 (Ziglar set Supreme Court precedent, and not

lower-court decisions as guide post for what is or is not a new context); see also Vanderklok v.

United States, 868 F.3d 189, 199-200 Gd Cir. 2017) (“[o]ur past pronouncements are thus not

controlling” in a Ziglar “new context” analysis), it is clear that Plaintiff’s claims present a novel

context as they are quite dissimilar to the few Bivens contexts recognized by the Supreme Court.

Indeed, as the Court of Appeals explained in Bistrian, the Supreme Court has never extended

Bivens to cover a First Amendment claim, and post-Zig/ar, most, if not all, courts to consider the

issue have declined to extend Bivens into the First Amendment context, be it based on denial of

access to the courts, retaliation, or any other issue. Id. at 95-96. Likewise, although the Supreme

Court did recognize a Fifth Amendment claim in one Bivens case, that claim was related to a sex

discrimination case, and was wholly dissimilar to a claim asserting a denial of due process in a

separate family court matter where the plaintiff was represented by counsel. Jd. at 94; see also

Ziglar, 137 8. Ct. at 1859-60. Indeed, the Supreme Court has on several occasions declined to

extend Bivens into other contexts raising either substantive or procedural due process claims, and

the Third Circuit has likewise declined in the few post-Bivens cases presenting species of due

process complaints. Ziglar, 1378. Ct. at 1857; Bistrian, 912 F.3d at 94-95,

As it is clear, then, that Plaintiffs claims present a new Bivens context, this Court must

consider whether special factors are present which caution against expanding the Bivens remedy.

If there are any special factors present which would “cause a court to hesitate” before affirmatively

finding that this Court is well suited to permit a new cause of action in the absence of Congressional

guidance, this Court must not extend the Bivens remedy and must dismiss Plaintiff's complaint.

Ziglar, 137 8. Ct. at 1857-58. This Court finds that such special factors exist in this case. First,

the Court notes that, contrary to Plaintiff's assertions, he did have alternative mechanisms through

which to seek relief to abate the alleged violation in this matter — his inability to access his state

court parental termination proceedings. Ata minimum, Plaintiff could have, through his attorney,

sought a court order or other injunctive relief from either the family court or a federal court while

his termination proceedings were ongoing to compel the prison to permit him telephone access on

the relevant dates. Likewise, Plaintiff could have made timely use of the prison administrative

grievance process to secure telephonic access to his state court proceedings, but he instead did not

seek such relief until July 2017, eighteen months after the first alleged obstruction, at which point

his claims were not timely under administrative grievance rules. (See ECF No. 69 at 9-10.) That

Plaintiff's delay may have prevented him from adequately making use of this alternative procedure

does not change the ultimate fact that he could have, but did not, file a timely administrative

grievance to address his issues before his parental rights termination proceedings had nearly

concluded. The fact that these alternative methods for addressing the alleged constitutional

violations were available cautions against an expansion of Bivens. See, e.g., Ziglar, 137 S. Ct.

1862-63, 1875 (injunctive relief, where available, can be sufficient alternative process to alleviate

need for Bivens extension); Mack y. Yost, 968 F.3d 311, 321 (3d Cir. 2020) (availability of redress

through administrative prison remedy “offers a convincing reason . . . to refrain from creating a

new damages remedy against federal prison offictals”),

There are several additional factors which also cause this Court to hesitate to expand

Bivens. First, expanding Bivens in this context — the interference with a prisoner’s access to non-

crimimal or prisoner civil rights proceedings even where he already has counsel in that case — has

the potential to cause the Government to incur substantial administrative and financial costs in

preparing for and defending future suits. Though this factor is not alone dispositive, it is certainly

one which this Court should consider. Mack, 968 F.3d at 324-25, This case, in particular, also has

the potential to implicate comity concerns insomuch as a finding in Plaintiff's favor would, at the

very least, cast some doubt on completed state court proceedings and would involve at least some

review of the propriety of state court family proceedings in Plaintiff's absence. All of these special

factors — governmental cost concerns, comity, and the availability of alternative remedial process

through the state court or a timely administrative grievance — give this Court pause, and militates

against extending the Bivens cause of action into this context. As such, this Court must decline to

extend the Bivens remedy without clear legislative guidance, and Plaintiff’s amended complaint

must be dismissed as a result. Ziglar, 137 S. Ct. 1857-58, 1863. Defendants’ motion shail

therefore be granted.’

IV. CONCLUSION

In conclusion, Defendants’ motion (ECF No. 74) is GRANTED, and Plaintiff’s amended

complaint (ECF No. 69) is DISMISSED, An appropriate order follows. □

oo

i

I oh. Karen M. Williams,

United States District Judge

* Although the Court need not reach the issue in light of its conclusion that the Bivens remedy

should not be extended into this new context at this time, the Court further notes that Defendants

are likely entitled to qualified immunity in this matter in any event as it has not been clearly

established that prisoners have a right of personal, telephonic access to family court matters in

which they are represented by counsel. See, e.g., Spady v. Bethlehem Area Sch. Dist., 800 F.3d

633, 637-40 Gd Cir. 2015) (civil rights defendant entitled to qualified immunity where the alleged

constitutional violation is not “clearly established” by Supreme Court precedent or robust

consensus of appellate precedent); Monroe v. Beard, 536 F.3d 198, 205 Gd Cir, 2008) (convicted

prisoners may pursue an access to courts related claim only involving cases involving direct or

collateral challenges to their criminal conviction or in prisoner civil rights matters). While the

Third Circuit has suggested that a prisoner’s access to the courts claim may be viable where it

involves the termination of an individuals’ fundamental parental rights, see, e.¢., Ball v. Hartman,

396 F, App’x 823, 825 (3d Cir. 2010), there is no clear body of law holding that such a claim is

certainly viable, especially in cases where the plaintiff was represented by counsel in those

proceedings. This lack of clear binding precedent suggesting such a viable claim, would likely

require that this Court find an entitlement to qualified immunity in this case even if Ziglar did not

counsel against an extension of the Bivens remedy.