Cohen v. United States of America

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

nanan DATE FILED:_11/14/2022

MICHAEL COHEN, :

Plaintiff, :

: 21-cv-10774 (LJL)

-v- :

: OPINION AND ORDER

UNITED STATES OF AMERICA, et al., :

Defendants. :

we KX

LEWIS J. LIMAN, United States District Judge:

Plaintiff Michael Cohen’s complaint centers around allegations of serious violations of

his constitutional rights by the United States government, then-President Donald J. Trump, then-

Attorney General William Barr, and various officers within the Federal Bureau of Prisons.

Cohen alleges—and another Court found with respect to certain of the defendants, see infra—

that the defendants remanded him to prison because he wanted to publish a book critical of the

then-President. He seeks redress for the violations of his constitutional rights through this

damages action.

Cohen’s complaint and the motions to dismiss now before this Court raise fundamental

questions about the meaning and value of constitutional rights, the relationship between a citizen

and the government, and the role of the federal courts in protecting those rights. The ability to

publicly criticize even our most prominent politicians and leaders without fear of retaliation is a

hallmark of American democracy; political speech is core First Amendment speech. “[I]t is a

prized American privilege to speak one’s mind, although not always with perfect good taste, on

all public institutions.” Bridges v. California, 314 U.S. 252, 270 (1941). And it is a further

hallmark of American democracy that, where one’s rights have been violated, one may seek to

vindicate those rights in the courts. In the oft-quoted words of Chief Justice John Marshall:

“The government of the United States has been emphatically termed a government of laws, and

not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy

for the violation of a vested legal right.” Marbury v. Madison, 1 Cranch 137, 163 (1803). The

Court today must consider the limits of these hallmark principles.

BACKGROUND

The following facts are drawn from the complaint and are taken as true for the purposes

of this motion to dismiss.

Plaintiff Michael D. Cohen (“Cohen” or “Plaintiff”) was formerly employed by

individual defendant Donald J. Trump (“Trump”) as his attorney and personal advisor for over a

decade. Dkt. No. 3 (“Compl.”) ¶ 48. In August and November of 2018, Cohen pleaded guilty to

various crimes including lying to Congress and campaign finance violations; he was sentenced to

thirty-six months of incarceration. Id. ¶¶ 4, 52–53. In May of 2019, he voluntarily surrendered

for service of his sentence at FCI Otisville. Id. ¶ 54.

While incarcerated, Cohen began to work on a book about his association with Trump.

Id. ¶ 55. The book chronicles the arc of his experiences with Trump and describes how, upon

reflection, he came to the realization that his actions in furtherance of Trump’s agenda ultimately

led to his own downfall. Id. ¶ 56. Cohen publicly spoke about his forthcoming book in ways

that made it clear that the book would be critical of and perhaps damaging to Trump; he publicly

stated that his book would be unfavorable to Trump and would substantiate the descriptions he

gave during his congressional testimony of Trump as “a cheat, a liar, a conman, [and] a racist,”

among other things. Id. ¶¶ 57, 59. The complaint also alleges that Cohen was privy to years of

non-public behavior by Trump, which included witnessing anti-Semitic and racist remarks by

him; that the book included quotes and documentary evidence of such behavior; and that Trump

was aware that Cohen was witness to many years of such behavior that, if made public, could

damage Trump’s reputation and his future political goals, including, at that time, his potential

run for a second term as President in 2020. Id. ¶¶ 57–58, 60.

Cohen’s incarceration in 2019 and the beginning of 2020 was uneventful. Id. ¶ 62. Upon

completion of his sentence, Cohen was to be released from FCI Otisville on November 21, 2021.

Id. ¶ 63. The onset of the COVID-19 pandemic, however, altered this. Id. ¶ 64. COVID-19

caused significant concerns for prison populations because the virus spreads easily within the

close confines of a prison; this was particularly concerning for Cohen because he has various

health comorbidities that make him highly susceptible to COVID-19 risks. Id. ¶¶ 64–65. Cohen

petitioned the defendants for early release from FCI Otisville based on Congress’s passage of the

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Pub. L. No. 116-136, and

then-Attorney General Barr’s memoranda of March 26, 2020 and April 3, 2020. Id. ¶ 66. Cohen

submitted his request to officials from the Federal Bureau of Prisons (“FBOP”) on March 31,

2020; the officials determined that Cohen should be released on furlough and then transferred to

home confinement. Id. ¶¶ 67–68. The FBOP granted Cohen furlough approval on April 18,

2020; the furlough time period was from May 1, 2020 to May 31, 2020. Id. ¶ 69.

During that time period, while on furlough, Cohen made several public statements via

Twitter regarding the imminent publication of his book about Trump, a number of which were

accompanied by the hashtag #WillSpeakSoon. Id. ¶ 72. Cohen planned to release his book by

late September of 2020. Id.

On July 9, 2020, in compliance with a directive by defendant Adam Pakula, a probation

officer with U.S. Probation and Pretrial Services, Cohen reported to the U.S. Probation Office in

downtown Manhattan, along with his attorney, in order to transition from furlough to home

confinement. Id. ¶ 73. They met with Pakula as well as defendant Enid Febus, a supervisory

probation officer. Id. Pakula and Febus gave Cohen a Federal Location Monitoring Program

Participant Agreement (“FLM”), which set forth conditions for Cohen’s home confinement. Id.

¶ 74. In the first paragraph, it contained a broad provision prohibiting Cohen from engaging with

the media in any form, including books, and from posting on social media:

No engagement of any kind with the media, including print, tv, film, books, or any

other form of media/news. Prohibition from all social media platforms. No posting

on social media and a requirement that you communicate with friends and family

to exercise discretion in not posting on your behalf or posting information about

you. The purpose is to avoid glamorizing or bringing publicity to your status as a

sentenced inmate serving a custodial term in the community.

Id. ¶ 75. Cohen viewed this condition as an attempt to chill and restrain his First Amendment

rights; he also suspected that this condition was not a standard one in FLMs for those transferring

to home confinement, partially because he noted that the document was not in the standard FLM

form, contained grammatical and typographical errors, and was not identified with its federal

form designation. Id. ¶¶ 76–78. He and his attorney inquired why the paragraph was included in

the FLM, since it did not appear to be standard and would prohibit the publication of his book.

Id. ¶ 79. Febus replied—and Pakula agreed—that that this was the standard form used, and that

Cohen was not being treated differently than other prisoners.1 Id. ¶¶ 80–81. Cohen and/or his

1 The complaint alleges that “[i]n a July 22, 2020 signed declaration made under penalty of

perjury and submitted to the Court in Cohen v. Barr et al, supra, document number 23, defendant

Pakula admitted in great detail how he and defendant Febus lied to plaintiff.” Id. ¶ 82. The

declaration, however—which is referred to and relied upon by the complaint and is thus

incorporated by reference, and which the Court can take judicial notice of the contents of as a

public record pursuant to Federal Rule of Evidence 201(b), see Rothman v. Gregor, 220 F.3d 81,

92 (2d Cir. 2000)—does not contain such a broad admission. Rather, Pakula states that he drew

the FLM agreement presented to Cohen from an agreement sent to him by a probation officer in

another district as an example of an FLM agreement used for high-profile inmates. Declaration

of Adam Pakula, Cohen v. Barr et al., 1:20-cv-05614 (S.D.N.Y. July 22, 2020), ECF No. 23.

Taking Cohen’s allegations here as true—particularly, that Febus and Pakula told Cohen that this

was the standard form and that he was not being treated differently than other prisoners—

Pakula’s declaration does indicate that the statements made to Cohen were not true, in that he

attorney asked whether it would be possible to adjust the language of the paragraph or remove it

entirely; the parties agreed to table the question so that they could “run it up the chain of

command,” and continued with reviewing the rest of the FLM. Id. ¶¶ 84–86. Cohen was not

asked at that time or at any other point in the meeting to sign the FLM agreement, nor did he

refuse to sign the agreement, withhold consent to electronic monitoring, or refuse any other

condition of home confinement. Id. ¶¶ 87–88.

After Cohen, his attorney, Pakula, and Febus finished reviewing the agreement, Pakula

and Febus directed Cohen and his attorney to remain in the waiting area while they waited for a

response from their supervisors about the first paragraph of the FLM. Id. ¶ 89. After waiting for

about an hour and half—during which time Cohen’s attorney checked in with Pakula and Febus

to see if everything was alright, and was assured that everything was fine and that they were just

waiting for a response from their supervisors—three United States marshals came to the waiting

area and served Cohen’s attorney with a remand ordered by defendant Patrick McFarland that

stated that Cohen had failed to agree to the terms of FLM and was being remanded for that

reason. Id. ¶¶ 90–91. Cohen was shackled, handcuffed, and remanded to prison. Id. ¶ 92.

Cohen’s attorney explained that the meeting had not concluded, that they were still waiting to

hear back as to what, if anything, could be adjusted, that Cohen had not refused to agree to the

terms of the FLM, and that Cohen was prepared to sign the FLM “as is.” Id. ¶ 95. Pakula and

Febus responded that it was “out of their hands,” and that the proposed FLM was no longer on

the table. Id. ¶ 96.

was, at least, being treated differently than lower-profile prisoners, and this was not the standard

form used in such cases.

Cohen was transported to the Metropolitan Correctional Center (“MCC”) in Manhattan

and then transported back to FCI Otisville, where he was placed in a special segregated housing

unit and then transferred to solitary confinement for sixteen days. Id. ¶¶ 98–100. While in

solitary confinement, he spent all but thirty minutes of his day alone in a twelve by eight-foot

cell with poor ventilation, no air conditioning, and temperatures frequently over one hundred

degrees. Id. ¶¶ 101–102. These conditions caused health problems for Cohen; his blood

pressure was elevated, resulting in severe headaches, shortness of breath, and anxiety, which

required immediate medical attention. Id. ¶ 102. While incarcerated, Cohen was unable to

proceed with drafting his book and was unable to make any public statements. Id. ¶ 103.

Cohen filed a habeas petition against Barr, Michael Carvajal, in his official capacity as

Director of the FBOP, and James Petrucci, in his official capacity as Warden of FCI Otisville,

challenging his incarceration on July 20, 2020, eleven days after having been remanded. On July

23, 2020, Judge Hellerstein issued an order granting Cohen’s motion for a preliminary injunction

directing these defendants to release Cohen to home confinement. Id. ¶ 108. Judge Hellerstein

found that the defendants’ “purpose in transferring Cohen from release on furlough and home

confinement back to custody was retaliatory in response to Cohen desiring to exercise his First

Amendment rights to publish a book critical of the President and to discuss the book on social

media.” Cohen v. Barr, 2020 WL 4250342, at *1 (S.D.N.Y. July 23, 2020). Cohen had spent

two weeks either in the special segregated housing unit or in solitary confinement. Compl. ¶ 27.

Cohen filed the complaint in this case on December 17, 2021. See generally id. The

complaint names as defendants: (i) the United States of America, (ii) former President Trump,

(iii) former Attorney General Barr, (iv) Director of the FBOP Carvajal, (v) Administrator of the

Residential Reentry Management Branch of the FBOP Jon Gustin, (vi) Residential Reentry

Manager of the FBOP McFarland, (vii) Warden of FCI Otisville Petrucci, (viii) Supervisory

Probation Officer Febus, (ix) Probation Officer Pakula, and (x) John and Jane Doe (1-10) agents,

servants, and employees of the United States.

The United States and the individual defendants with the exception of Trump filed a joint

motion to dismiss on March 31, 2022; Trump filed a separate motion to dismiss the same day.

Dkt. Nos. 39, 41. Cohen filed oppositions to the motions on May 27, 2022. Dkt. Nos. 59, 61.

The defendants filed replies on June 17, 2022. Dkt. Nos. 67, 68. The Court held oral argument

on the motions on August 2, 2022.

DISCUSSION

Cohen’s complaint asserts seven causes of action. Broadly, they can be grouped into two

categories. First, Cohen brings claims against all the individual defendants, including Trump, for

violations of his First, Fourth, and Eighth Amendment rights; the claims are brought under a

Bivens cause of action. See Compl. ¶¶ 139–142. Second, Cohen brings claims against the

United States for (i) retaliation; (ii) false arrest, false imprisonment, and abuse of authority and

process; (iii) negligent failure to protect; (iv) negligent infliction of emotional distress;

(v) intentional infliction of emotional distress; and (vi) negligent hiring, retention, training, and

supervision. See Compl. ¶¶ 111–138. These claims are all brought under the Federal Tort

Claims Act (“FTCA”).

The Court turns first to the Bivens claims brought against all the individual defendants

and then considers the FTCA claims against the United States.

I. Cohen’s Bivens Claims

The seventh cause of action in the complaint—the only one brought against the

individual defendants—is brought as a Bivens cause of action for violations of Cohen’s First,

Fourth, and Eight Amendment rights, and alleges that defendants intentionally retaliated against

Cohen by remanding him to prison for exercising his right to free speech, in violation of his First

Amendment rights; committed an unlawful seizure in so doing, in violation of his Fourth

Amendment rights; and placed him in dangerous solitary confinement conditions, in violation of

his Eighth Amendment rights. Compl. ¶¶ 139–142. All of the individual defendants move to

dismiss this count. They do not dispute that Cohen’s constitutional rights were violated and that

he suffered injury as a result. They instead argue that the Bivens cause of action is not available

for Cohen’s claims. See Dkt. No. 40 at 20; Dkt. No. 42 at 10.

The Supreme Court has held that whether a Bivens cause of action is available is an

“antecedent issue” to whether a plaintiff has alleged a violation of a clearly established

constitutional right. See Wood v. Moss, 572 U.S. 744, 757 (2014); see also Hernandez v. Mesa,

137 S. Ct. 2003, 2006 (2017) (“The Court turns first to the Bivens question, which is ‘antecedent’

to the other questions presented.” (quoting Wood, 572 U.S. at 757)). At this stage, therefore, the

question before this Court is simple: Assuming, in the first instance, that Cohen has sufficiently

alleged that federal officials violated his constitutional rights, is there a judicial mechanism

through which he can vindicate those rights and seek to recover for the harm he suffered from

those who harmed him? It is a question that, here, is strengthened by the fact that—with regard

to Cohen’s First Amendment claim—another court in this District has already found Cohen’s

constitutional rights were violated. The question thus becomes whether the Constitution and the

courts afford Cohen a forum in which to seek relief for the injury he suffered as a result of that

violation. It is a question that, in 1803—“The very essence of civil liberty certainly consists in

the right of every individual to claim the protection of the laws, whenever he receives an injury,”

Marbury, 1 Cranch at 163—or in 1971—“Historically, damages have been regarded as the

ordinary remedy for an invasion of personal interests in liberty,” Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 395 (1971)—likely would have been

answered in the affirmative. His claim would have been entertained either in state or in federal

court. It is a question to which the answer seems intuitive; what, after all, is the value of a right

if one has no recourse when that right is violated? But it is also a question that the Supreme

Court has unequivocally answered in the negative. The Court is bound by that ruling. See State

Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (“[I]t is this Court’s prerogative alone to overrule one of

its precedents.”).

In 1971, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the

Supreme Court squarely considered this question for the first time, in the Fourth Amendment

context; as it put it, the question before the Court was “merely whether petitioner, if he can

demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment

rights, is entitled to redress his injury through a particular remedial mechanism normally

available in the federal courts.” 403 U.S. at 397. In Bivens, the petitioner, Webster Bivens,

alleged that agents of the now-defunct Federal Bureau of Narcotics violated his Fourth

Amendment rights by entering his apartment, searching it, and arresting him, all without a

warrant and with unreasonable force. Id. at 389. The Court concluded that Bivens was entitled

to redress his alleged constitutional injury through the mechanism of a damages suit against the

federal officers. Justice Brennan, writing for the majority, noted: “That damages may be

obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials

should hardly seem a surprising proposition.” Id. at 395. After looking to Marbury, the Court

held that “petitioner is entitled to recover money damages for any injuries he has suffered as a

result of the agents’ violation of the Amendment.” Id. at 397.

After Bivens, the Supreme Court twice extended the implied cause of action to other

constitutional rights: In Davis v. Passman, the Court expanded the Bivens action to sex

discrimination under the due process clause of the Fifth Amendment, 442 U.S. 228 (1979), and

in Carlson v. Green, the Court expanded the Bivens action to a violation of Eight Amendment

rights in a federal prison, 446 U.S. 14 (1980). In each of these cases, the Court treated the

expansion of Bivens as the straightforward application of settled law and settled constitutional

principles.

In the era after Bivens, Passman, and Carlson, however, the Court’s jurisprudence

markedly shifted. By 2001, in Correctional Services Corp. v. Malesko, the Court recognized that

it had “consistently refused to extend Bivens liability to any new context or new category of

defendants.” 534 U.S. 61, 68 (2001).

This shift has frequently been explained in context of the broader shift in the Court’s

approach towards implying damages remedies for statutory violations. Bivens was decided in an

era in which the Court took an expansive view of the ability of the courts to fashion a remedy to

persons injured as a result of a violation of a congressional statute. See, e.g., J. I. Case Co. v.

Borak, 377 U.S. 426 (1964) (“While this language makes no specific reference to a private right

of action, among its chief purposes is ‘the protection of investors,’ which certainly implies the

availability of judicial relief where necessary to achieve that result.”). The Court later retreated

from that view, instead believing that “[l]ike substantive federal law itself, private rights of

action to enforce federal law must be created by Congress,” and that “[t]he judicial task” is not to

give effect to the statute’s purpose but rather “to interpret the statute Congress has passed to

determine whether it displays an intent to create not just a private right but also a private

remedy.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Indeed, this contextualization of

the Court’s newfound hostility towards the Bivens cause of action has repeatedly been professed

by the Court itself: “Bivens is a relic of the heady days in which this Court assumed common-

law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a

statutory or constitutional provision.” Malesko, 534 U.S. at 75 (Scalia, J., concurring).

In Ziglar v. Abbasi, against the backdrop of the September 11 terrorist attacks, the Court

again considered the availability—and continued force—of the Bivens cause of action. 137 S.

Ct. 1843 (2017). The Court emphasized that Bivens and its progeny were part of an “ancien

regime” in which “the Court followed a different approach to recognizing implied causes of

action than it follows now.” Id. at 1855. Under the new approach, “the Court adopted a far more

cautious course before finding implied causes of action,” and “clarified . . . that, when deciding

whether to recognize an implied cause of action, the ‘determinative’ question is one of statutory

intent.” Id. at 1855–56. The Ziglar Court did recognize that “[t]he decision to recognize an

implied cause of action under a statute involves somewhat different considerations than when the

question is whether to recognize an implied cause of action to enforce a provision of the

Constitution itself.” Id. at 1856. The Court failed, however, to give significant meaning to that

distinction, recounting that “the Court’s expressed caution as to implied causes of actions under

congressional statutes led to similar caution with respect to actions in the Bivens context, where

the action is implied to enforce the Constitution itself.” Id. Noting that “expanding the Bivens

remedy is now a ‘disfavored’ judicial activity,” id. at 1857 (quoting Ashcroft v. Iqbal, 556 U.S.

662, 675 (2009)), the Court clarified the somewhat piecemeal Bivens jurisprudence into a

cohesive—and narrow—two-step test, which first asks “[i]f the case is different in a meaningful

way from previous Bivens cases decided by this Court,” meaning that it presents a new context,

id. at 1859, and then asks if there are “special factors counselling hesitation in the absence of

affirmative action by Congress,” in which case a court should decline to extend Bivens, id. at

1857.

Hernandez v. Mesa, the next significant Bivens case confronted by the Court, followed

the reasoning and analysis of Ziglar. Again distinguishing Bivens, Passman, and Carlson as “the

products of an era when the Court routinely inferred ‘causes of action’ that were ‘not explicit’ in

the text of the provision that was allegedly violated,” but from which the Court has now retreated

as it “came to appreciate more fully the tension between this practice and the Constitution’s

separation of legislative and judicial power,” the Court declined to extend a Bivens cause of

action to a lawsuit brought under the Fourth Amendment by the family of Sergio Hernandez, a

fifteen-year-old Mexican citizen who was shot and killed by a U.S. border patrol agent, allegedly

without provocation. 140 S. Ct. 735, 741 (2020). The Hernandez Court applied the same “two-

step inquiry” articulated in Ziglar, asking first “whether the request involves a claim that arises

in a new context or involves a new category of defendants,” with “new context” understood to

mean any context that “is different in a meaningful way from previous Bivens cases decided by

this Court,” and then, if a claim arises in a new context, asking “whether there are any special

factors that counsel hesitation about granting the extension.” Id. at 743 (internal quotation marks

and citations omitted).

Finally, and most recently, in Egbert v. Boule, the Supreme Court considered the

availability of a Bivens cause of action for a First Amendment retaliation claim and a Fourth

Amendment excessive force claim. Rejecting both claims, the Court stated that “our cases have

made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job

for Congress, not the courts.” 142 S. Ct. 1793, 1800 (2022). The Court provided an even

narrower test than that articulated in Ziglar and Hernandez—“[w]hile our cases describe two

steps, those steps often resolve to a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” Id. at 1803.

Explaining that test, the Egbert Court made clear that, effectively, it operates as a bar to a

Bivens claim in all cases except, perhaps, those involving Fourth, Fifth and Eighth Amendment

claims factually indistinguishable from Bivens, Passman, or Carlson. In an all-encompassing

articulation of the special factors inquiry, the Court majority stated that “[e]ven in a particular

case, a court likely cannot predict the ‘systemwide’ consequences of recognizing a cause of

action under Bivens. That uncertainty alone is a special factor that forecloses relief.” Id. at

1804. And claims that paralleled Bivens, Passman, or Carlson exactly could also be foreclosed:

“Even assuming the factual parallels [to Passman] are as close as Boule claims, Passman carries

little weight because it predates our current approach to implied causes of action and diverges

from the prevailing framework in three important ways.” Id. at 1808. Departing from Ziglar’s

assurance that “this opinion is not intended to cast doubt on the continued force, or even the

necessity, of Bivens in the search-and-seizure context in which it arose,” 137 S. Ct. at 1856,

Egbert held that where a case is directly parallel to Bivens, Passman, or Carlson, even that is

insufficient, because those cases do not align with the Court’s current approach to Bivens; “a

plaintiff cannot justify a Bivens extension based on ‘parallel circumstances’ with Bivens,

Passman, or Carlson unless he also satisfies the ‘analytic framework’ prescribed by the last four

decades of intervening case law,” 142 S. Ct. at 1809. Concluding, the Court all but held that no

case would ever be able to satisfy that analytic framework, because “if we were called to decide

Bivens today, we would decline to discover any implied causes of action in the Constitution.” Id.

at 1809.

Applying those principles to the First Amendment claim before it, and in keeping with its

sweeping rejection of Bivens, the Egbert Court went beyond merely holding that a damages

cause of action should not be extended to the particular facts of the case before it; seemingly

rejecting the fact-specific inquiry set forth in its prior Bivens jurisprudence, it categorically held

that “there is no Bivens action for First Amendment retaliation.” Id. at 1807.

That holding squarely forecloses Cohen’s First Amendment retaliation claim here. And

the Court’s broader Bivens jurisprudence forecloses his Fourth Amendment claim as well; there

is no question that it is factually distinct from the Fourth Amendment claim implied in Bivens.

The federal officers at issue in Bivens were members of the Federal Bureau of Narcotics, while

the federal officers named as individual defendants in Cohen’s complaint are members of the

Bureau of Prisons, in addition to the former President and former Attorney General. Under the

Court’s current jurisprudence, this distinction alone appears to be enough to create a new context

because one of the oft-quoted examples of a “new context” is a case that involves a “new

category of defendants.” Malesko, 534 U.S. at 68; see Egbert, 142 S. Ct. at 1803; Ziglar, 137 S.

Ct. at 1876. Nor were the Bureau of Prisons officers performing functions “in the common and

recurrent sphere of law enforcement,” as in Bivens, see Ziglar, 137 S. Ct. at 1857; rather, they

were effectuating a remand of a federal prisoner who had already been sentenced to a term of

incarceration.

Likewise, Cohen’s Eighth Amendment claim arises in a new context. In Carlson, the

Eighth Amendment claim centered on grossly inadequate medical care provided to an inmate

during a severe asthma attack. 446 U.S. at 16 n.1. Cohen’s Eighth Amendment claim centers on

the conditions of his solitary confinement, which—although he claims “posed serious health

risks”—did not result in him receiving inadequate medical care. Compl. ¶ 102. To the contrary,

the complaint states that the conditions resulted in Cohen’s “blood pressure bec[oming]

dangerously high resulting in severe headaches, shortness of breath, and anxiety requiring

immediate medical attention,” implying, if anything, that “immediate medical attention” was

provided to him. Id. Cohen’s claim asserts a somewhat different “mechanism of injury”

(conditions of confinement as opposed to deliberate indifference to medical needs) and thus

presents a new context under the Supreme Court’s precedents. Egbert, 142 S. Ct. at 1805

(quoting Ziglar, 137 S. Ct. at 1859); see, e.g., Mammana v. Barben, 856 F. App’x 411 (3d Cir.

2021) (mem.) (holding that Eight Amendment claim based on conditions of “confinement in a

chilled room with constant lighting, no bedding, and only paper-like clothing” bore little

resemblance to the facts in Carlson); Schwarz v. Meinberg, 761 F. App’x 732 (9th Cir. 2019)

(mem.) (holding that Eighth Amendment claim based on unsanitary cell conditions presented a

new context). While these contexts are undoubtedly similar, the Supreme Court has counseled

that “even a modest extension [of Bivens liability] is still an extension.” Ziglar, 137 S. Ct. at

1864.

Because Cohen’s claims arise in a new context, the next question is whether there are

“special factors” which the Supreme Court has stated indicate “that the Judiciary is at least

arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages

action to proceed’” and thus further prevent the Court from recognizing a Bivens remedy.

Egbert, 142 S. Ct. at 1803 (quoting Ziglar, 137 S. Ct. at 1858). The Supreme Court has stated

that “[i]f there is even a single ‘reason to pause before applying Bivens in a new context,’ a court

may not recognize a Bivens remedy,” id. (quoting Hernandez, 140 S. Ct. at 743), and where there

are “alternative remedial structures in place, ‘that alone,’ like any special factor, is reason

enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action,’” id. at 1804

(quoting Ziglar, 137 S. Ct. at 1858). It does not matter if those existing remedial structures “do

not provide complete relief” or are “not as effective as an individual damages remedy.” Id.

(quoting Bush v. Lucas, 462 U.S. 367, 372, 388 (1983)).

In this case, defendants point to two remedial structures that they argue preclude this

Court from recognizing a Bivens remedy for Cohen: (i) the FBOP’s Administrative Remedy

Program and (ii) a writ of habeas corpus. Dkt. No. 40 at 27–29. Cohen does not contest that he

had these remedial structures available to him; to the contrary, he admits that he availed himself

of the latter option. See Oral Argument Tr. at 56 (“Again, one thing about the habeas relief. My

client was freed because of the habeas relief. That stopped the bleeding, your Honor.”).

While the Supreme Court has held that the FBOP’s Administrative Remedy Program is

an alternative remedial structure sufficient to preclude Bivens liability in prior cases, see, e.g.,

Malesko, 534 U.S. at 74 (declining to find Bivens remedy where “[i]nmates in respondent’s

position [] have full access to remedial mechanisms established by the BOP, including suits in

federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy

Program”), this Court is reluctant to find—assuming that Cohen’s allegations are true as it must

at this stage—that Cohen could have successfully remedied the alleged constitutional violations

in such a forum. Cohen alleges in his complaint that senior FBOP officials, including the

Director of the FBOP and the Warden of FCI Otisville, effectively acted at the behest of

President Trump in committing the various Constitutional violations alleged. See, e.g., Compl. ¶

39. Yet, it is precisely these senior FBOP officials who exercise control over the Administrative

Remedy Program: Complaints are made to the Warden and are appealed to the General Counsel

who appears to report up to the Director of the FBOP.2 If Cohen’s allegations are thus proved, it

2 See Administrative Remedy Program, FBOP (Jan. 6, 2014),

is hard to imagine that the same individuals who committed the constitutional violations against

Cohen would, in any meaningful sense, provide a remedy for those violations.

Defendants’ argument that Cohen had an alternative remedial structure through a writ of

habeas corpus is more persuasive. See Ziglar, 137 S. Ct. at 1865 (“And there might have been

alternative remedies available here, for example, a writ of habeas corpus.”); Rodriguez v. Easter,

2022 WL 356478, at *6 (D. Conn. Feb. 7, 2022) (“[C]ourts that have applied the Ziglar analysis

to a claim of First Amendment retaliation by an inmate have noted the existing alternative

remedial structures, including the BOP administrative grievance process and writ of habeas

corpus.”). While the Supreme Court has left open the availability of habeas relief for federal

prisoners challenging the conditions of their confinement (as Cohen does here), see Ziglar, 137

S. Ct. at 1862–63 (“[W]e have left open the question whether they might be able to challenge

their confinement conditions via a petition for a writ of habeas corpus.”); Bell v. Wolfish, 441

U.S. 520, 527 (1979) (leaving “to another day the question of the propriety of using a writ of

habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or

length of the confinement itself”), the Second Circuit has held that prisoners in federal custody

may seek habeas relief related to the conditions of their confinement under 28 U.S.C. § 2241, see

Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (“This court has long interpreted § 2241

as applying to challenges to the execution of a federal sentence, ‘including such matters as the

administration of parole, . . . prison disciplinary actions, prison transfers, type of detention and

https://www.bop.gov/policy/progstat/1330_018.pdf; FBOP – Administrative Remedy Program,

D.C. Corrections Information Counsel,

https://cic.dc.gov/sites/default/files/dc/sites/cic/page_content/attachments/BOP%20Administrativ

e%20Remedies%2011.15.17%20REVISED.pdf (last visited Nov. 11, 2022); Experienced

Leadership, FBOP, https://www.bop.gov/about/agency/leadership.jsp (last visited Nov. 11,

2022).

prison conditions.’”); Roba v. United States, 604 F.2d 215, 219 (2d Cir. 1979) (“At that point

petitioner’s challenge to his transfer while seriously ill would be a challenge to the conditions of

his confinement, for which habeas corpus relief under § 2241 would be available.”); Elleby v.

Smith, 2020 WL 2611921, at *2 (S.D.N.Y. May 22, 2020) (“[T]he Second Circuit has held that

both habeas petitions, at least for prisoners in federal custody . . . may address conditions of

confinement and seek the remedy of transfer (e.g., to a different prison population or facility).”);

Ilina v. Zickefoose, 591 F. Supp. 2d 145, 146–49 (D. Conn. 2008) (describing § 2241 as a “broad

remedy available to federal prisoners challenging the conditions of their confinement”). That

Cohen could successfully avail himself of habeas relief is borne out by the fact that he was able

to do so in this case.

Cohen also likely could have sought relief through the right of federal courts to enjoin

unconstitutional actions by state and federal officers. “Availability of federal equitable relief to

remedy constitutional violations has been presumed by the courts,” Jensen v. Farrell Lines, Inc.,

625 F.2d 379, 383 (2d Cir. 1980), and “it is established practice . . . to sustain the jurisdiction of

federal courts to issue injunctions to protect rights safeguarded by the Constitution,” Free Enter.

Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 491 n.2 (2010) (quoting Bell v. Hood, 327

U.S. 678, 684 (1946)); see Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 337 (2015)

(Sotomayor, J., concurring) (“That parties may call upon the federal courts to enjoin

unconstitutional government action is not subject to serious dispute.”); see also Stephen I.

Vladeck, Douglas and the Fate of Ex Parte Young, Yale L.J. (Forum) (Apr. 30, 2012) (“Whether

or not Ex parte Young itself articulated this rule, it is now generally understood that injunctive

relief for constitutional violations does not require a freestanding statutory cause of action (and

instead arises under the relevant constitutional provision).”). As the Supreme Court stated in

Armstrong, the “ability to sue to enjoin unconstitutional actions by state and federal officers is

the creation of courts of equity, and reflects a long history of judicial review of illegal executive

action, tracing back to England.” 575 U.S. at 327. Thus, even if habeas relief were not

available, a citizen imprisoned by the President to prevent him from expressing critical views of

that President on the eve of an election is not without remedy. Cohen—and if there ever are any

others similarly situated—could have sought an injunction for defendants’ violations of the

Constitution. See Ojo v. United States, 364 F. Supp. 3d 163, 174 (E.D.N.Y. 2019) (finding

“there were alternative channels that plaintiff could have pursued” including “injunctive or

declaratory relief to challenge and seek alterations to the BOP Policy affecting the provision of

dental care.”); see also Malesko, 534 U.S. at 74 (“And unlike the Bivens remedy, which we have

never considered a proper vehicle for altering an entity’s policy, injunctive relief has long been

recognized as the proper means for preventing entities from acting unconstitutionally.”).

It is worth noting that these alternative remedial structures are hardly adequate

replacements for a suit for monetary damages. These alternative remedies would not compensate

Cohen for or address the harms Cohen had already suffered prior to the issuance of the

injunction. While Cohen would have been able to enjoin the defendants, as he did in this case,

“a prospective injunction” does not “normally provide plaintiffs with redress for harms they have

already suffered.” Ziglar, 137 S. Ct. at 1879. Moreover, those avenues for prospective relief do

not eliminate the deterrent effect that imprisonment (in solitary confinement) can have on all but

the most intrepid. And, while Bivens is “concerned solely with deterring the unconstitutional

acts of individual officers,” Egbert, 142 S. Ct. at 1806 (quoting Malesko, 534 U.S. at 71), the

injunctive relief that Cohen was awarded in his prior case in front of Judge Hellerstein does little

to deter the unconstitutional acts of the defendants. An injunction is primarily focused on

stopping an unconstitutional violation from occurring on an ongoing basis. It does not seek to

punish someone for what they have done and thus, in turn, deter that person from committing

similar wrongs in the future. See Sec. & Exch. Comm’n v. Stubos, 2022 WL 6776741, at *10

(S.D.N.Y. Oct. 11, 2022) (“Injunctive remedies, as discussed, are tailored to deter future

violations of law by that individual; not to punish the defendant and, through that punishment,

send a message to those in the community not to do similar bad acts.”). Nevertheless, the

Supreme Court has instructed that it does not matter whether the existing remedies provide

“complete relief” or appear inadequate. Egbert, 142 S. Ct. at 1804 (citation omitted). These

difficult issues merit, and will no doubt receive, further consideration in the future, if not in this

case.

As things currently stand, however, the Supreme Court’s precedents squarely and

unequivocally foreclose the Bivens claims here. None of the claims present a direct parallel to

Bivens, Passman, or Carlson; even if one did, the Egbert Court has thrown into doubt the

availability of the Bivens cause of action for any new claim, particularly where, as here,

alternative remedial structures are in place.

As such, Cohen’s Bivens claims must be dismissed. Before doing so, however, this Court

pauses to reiterate the profound violence this holding does to Cohen’s constitutional rights.

Cohen’s complaint alleges an egregious violation of constitutional rights by the executive

branch—nothing short of the use of executive power to lock up the President’s political enemies

for speaking critically of him. The Supreme Court’s precedents ensure that there is at best a

partial remedy for the abuse of power and violation of rights against the perpetrators of those

wrongs. And those precedents rest on a mistaken proposition—that the Court’s reluctance to

imply a damages remedy for statutorily created rights where Congress did not explicitly intend

for there to be such a remedy necessarily must extend to a reluctance to find such a remedy for

constitutionally guaranteed rights.

As Justice Harlan articulated in Bivens, “[I]t must also be recognized that the Bill of

Rights is particularly intended to vindicate the interests of the individual in the face of the

popular will as expressed in legislative majorities.” 403 U.S. at 407 (Harlan, J., concurring).

The notion that, for there to be any remedy for such a right, it must be explicitly provided for by

one of the very branches of government from whom the right is designed to protect the

individual is particularly insidious. And it does not logically follow from the Court’s decisions

in the statutory realm. The parallel to a jurisprudential shift towards looking to express

congressional intent3 in deciding whether to recognize an implied cause of action for a right

conferred by Congress is emphatically not looking towards congressional intent in deciding

whether to recognize an implied cause of action for a right conferred by the Constitution itself.

Unlike statutory rights, constitutional rights do not stem from Congress; there is no reason why

the remedies for such rights must then stem from Congress, and much reason to think that they

need not.4 This is the precise distinction that the Supreme Court recognized, but failed to give

3 See Steven I. Vladeck, Bivens Remedies and the Myth of the “Heady Days,” 8 U. St. Thomas

L.J. 513, 521–22 (2011) (“Whatever the merits of Sandoval’s approach, it is worth emphasizing

that the crux of the dispute between the majority and the dissenters—and between more recent

and older case law—boils down to methodological disagreements over statutory interpretation.

There is simply no dispute today that congressional intent is dispositive when it comes to the

existence of a private cause of action to enforce a federal statute . . . .”).

4 See George D. Brown, Letting Statutory Tails Wag Constitutional Dogs—Have the Bivens

Dissenters Prevailed?, 64 Ind. L.J. 263, 265 (1989) (“One may agree with the Court’s

reservations about judicial lawmaking, its concern for the doctrine of separation of powers and

its general views about the superior institutional competence of Congress. These positions . . .

should not be determinative in the Bivens context. The basic question is availability of judicial

relief for constitutional violations. In the recent cases the statutory tail comes to wag the

constitutional dog. That is, the Court’s emphasis on the statutory component of the remedial

issues tends to obscure and downgrade their constitutional dimension. It is as if the whole

problem involved only the judiciary’s role in an article I legislative scheme. Yet the Bivens

meaning to, in Ziglar: “The decision to recognize an implied cause of action under a statute

implies somewhat different considerations than when the question is whether to recognize an

implied cause of action to enforce a provision of the Constitution itself.” 137 S. Ct. at 1856.

Rather, a proper inquiry—one parallel to that articulated in Sandoval, one still removed from the

“heady days” where the Court looked to whether it believed a damages remedy should

normatively be available for a particular right, and one that would honor the important

distinction between rights conferred by a legislative majority and rights conferred by the

Constitution—would look to whether the framers—in the language they used, the structure of the

government they established, the limitations they intended to place on executive power, and the

authority they gave to the federal courts—intended for there to be such a remedy.

There are powerful reasons to believe that, in many circumstances, the answer to that

question will be yes,5 reasons that are not easily brushed aside with the Supreme Court’s

rejection of Marbury’s promise—drawn from English common law, see Marbury, 1 Cranch at

163 (quoting Blackstone’s commentaries)—that, if one’s rights are violated by executive

officials, the courts provide a legal remedy for that violation.

* * *

doctrine deals with judicial enforcement of rights whose origin is outside of, and hierarchically

superior to, any statute.”).

5 See, e.g., Walter Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L.

Rev. 1532, 1542 (1972) (“Given a common law background in which courts created damage

remedies as a matter of course, it is not unreasonable to presume that the judicial power would

encompass such an undertaking on the part of the federal courts, unless there were some contrary

indication that the judicial implementation of such a remedy was not to be a part of the article III

judicial power. While with one exception prior to Bivens, the Court has never explicitly

exercised the judicial power to create a damage remedy in a case arising under the Constitution,

its power to do so would seem rather easily established.”).

For the foregoing reasons, the complaint’s claims against all the individual defendants,

brought under the Bivens cause of action, are dismissed.6

II. Cohen’s FTCA Claims

Cohen’s remaining causes of action—all brought against the United States—are brought

under the FTCA. Cohen asserts claims for retaliation under New York common law; false arrest,

false imprisonment, and abuse of authority and process under New York common law; negligent

failure to protect under 18 U.S.C. § 4042; negligent infliction of emotional distress under New

York common law; intentional infliction of emotional distress under New York common law;

and negligent hiring, retention, training, and supervision under New York common law. The

United States moves to dismiss all of Cohen’s FTCA claims.

“The United States, as sovereign, is immune from suit save as it consents to be sued, . . .

and the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the

6 Defendant Trump also moves to dismiss the claims against him for the independent reason that

they are barred by presidential immunity. Because the claims against Trump are dismissed along

with the claims against the other individual defendants, the Court need not address his claimed

immunity here. Nonetheless, it is worth noting—and rejecting—Trump’s argument that,

effectively, a president may never be subject to a damages suit for violations of constitutional

rights because “[i]t is blackletter law that a president is entitled to absolute immunity for acts

taken within the scope of his official duties,” Dkt. No. 42 at 1 (quoting Nixon v. Fitzgerald, 457

U.S. 731 (1982)), and Bivens claims—if available at all—are available only for actions taken by

the official “under color of his authority,” Bivens, 403 U.S. at 389. Trump reasons that “[s]ince a

president is entitled to absolute immunity for ‘acts within the outer perimeter of his official

capacity,’ it follows that a Bivens claim—which must arise from an act performed ‘under color

of his authority’—cannot be maintained against a [p]resident.” Dkt. No 42 at 3. But the

language of these two doctrines is not the same, and there is no reason to assume that the one

wholly subsumes the other. For an official’s actions to be “under color of authority,” “the

conduct must be ‘cloaked with official power and the official must purport to be acting under

color of official right.’” Mueller v. Gallina, 137 F. App’x 847, 850 (6th Cir. 2005) (mem.)

(internal quotation marks omitted and alterations adopted) (quoting Browning v. Clinton, 292

F.3d 235, 250 (D.C. Cir. 2002)). One could imagine a situation, for example, in which the

President ordered Secret Service to kidnap his political opponent a few weeks before an

election—asserting, all the while, that he was doing so in an exercise of executive authority.

Such an action could be taken under color of authority, while at the same time not legitimately

within the president’s official capacity, and thus not subject to presidential immunity.

suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal quotation marks omitted)

(quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). “‘The FTCA, 28 U.S.C.

§§ 13469(b), 2401(b), and 2671–2680, constitutes a limited waiver by the United States of its

sovereign immunity’ and allows for tort suits against the United States under specified

circumstances.” Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007) (quoting Millares

Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir. 1998)). “Under the FTCA, a

private citizen may sue for injuries caused by ‘the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of his office or employment, under

circumstances where the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission occurred.’” Id. (quoting 28

U.S.C. § 1346(b)). The FTCA waives sovereign immunity for claims that are:

[1] against the United States, [2] for money damages, . . . [3] for injury or loss of

property, or personal injury or death [4] caused by the negligent or wrongful act or

omission of any employee of the Government [5] while acting within the scope of

his office or employment, [6] under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the

place where the act or omission occurred.

Id. (quoting FDIC v. Meyer, 510 U.S. 471, 477 (1994)). The “source of substantive liability

under the FTCA” is “law of the State.” FDIC, 510 U.S. at 478.

Cohen’s first FTCA claim is a claim for “retaliation,” for “the exercising of his right to

free speech,” which he asserts is “a tort under the laws of the state of New York.” In defending

the claim in his opposition to the United States’ motion to dismiss, however, Cohen makes it

clear that the only substantive source of this claim is the First Amendment. See Dkt. No. 59 at

27 (concluding that “defendants did imprison Mr. Cohen for the lawful exercise of his First

Amendment rights”); see also id. at 26 (first quoting Lancaster v. Incorporated Village of

Freeport, 1 N.E.3d 302 (N.Y. 2013) (considering a First Amendment retaliation claim); then

quoting People v. Oeser, 721 N.Y.S.2d 147 (3d Dep’t 2001) (not considering free speech claims

at all); then quoting People v. Bollander, 558 N.Y.S.2d 795 (Sup. Ct. 1990) (considering whether

fear of retaliatory prosecution for challenging a conviction implicates due process rights, which

is inapposite to Cohen’s claim, and not considering free speech claims at all); and then quoting

People v. Douglas, 704 N.Y.S.2d 438, 439 (Sup. Ct. 1999) (noting that “retaliatory” motivation

behind indictment “was particularly offensive and repugnant to the fair administration of law,”

and therefore dismissing an indictment). That a handful of New York cases, one arising in the

First Amendment context, mention the word “retaliation” does not demonstrate a freestanding

New York common law tort claim for retaliation. Rather, Cohen’s claim is clearly predicated on

the First Amendment. “The FTCA ‘has not waived the Government’s sovereign immunity with

respect to claims that its employees have committed constitutional torts’ under the federal

constitution.” Hernandez v. United States, 939 F.3d 191, 205 (2d Cir. 2019) (alteration adopted)

(quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)).7 As such, Cohen’s first cause

of action against the United States for First Amendment retaliation is not cognizable under the

FTCA and must be dismissed.

Cohen’s second FTCA claim is for false arrest, false imprisonment, and abuse of

authority and process under New York common law. “False arrest and false imprisonment

overlap; the former is a species of the latter.” Wallace v. Kato, 549 U.S. 384, 388 (2007).

“Under New York law, the elements of a false arrest and false imprisonment claim are: ‘(1) the

defendant intended to confine the plaintiff, (2) the plaintiff was conscious of the confinement,

(3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise

7 In Hernandez, the Second Circuit also held that a FTCA claim could not be brought against a

federal officer on the theory that his actions violated the New York State constitution. 939 F.3d

at 205-06.

privileged.’” Hernandez, 939 F.3d at 199 (quoting McGowan v. United States, 825 F.3d 118,

126 (2d Cir. 2016) (per curiam)). “For purposes of the privilege element of a false arrest and

false imprisonment claim, an act of confinement is privileged if it stems from a lawful arrest

supported by probable cause.” Id. (internal quotation marks omitted) (quoting De Lourdes

Torres v. Jones, 47 N.E.3d 747 (2016)). A claim for false imprisonment will only lie where the

confinement does not stem from legal process. As the Supreme Court articulated:

Reflective of the fact that false imprisonment consists of detention without legal

process, a false imprisonment ends once the victim becomes held pursuant to such

process—when, for example, he is bound over by a magistrate or arraigned on

charges. Thereafter, unlawful detention forms part of the damages for the ‘entirely

distinct’ tort of malicious prosecution, which remedies detention accompanied, not

by absence of legal process, but by wrongful institution of legal process.

Wallace, 549 U.S. at 389–90. “[T]he tort of false arrest does not permit recovery for

‘confinement imposed pursuant to legal process.’” Coakley v. Jaffe, 72 F. Supp. 2d 362, 363

(S.D.N.Y. 1999) (quoting Heck v. Humphrey, 512 U.S. 477, 483 (1994)).

Cohen’s false arrest and false imprisonment claim are based on the marshals’ shackling

him, handcuffing him, and remanding him to MCC and then to FCI Otisville, and his

confinement there for sixteen days. The first three elements of a claim for false arrest and/or

false imprisonment are not in contention; there is no doubt that defendants intended to confine

Cohen, that Cohen was aware of his confinement, and that Cohen did not consent to his

confinement. The fourth element, however, is plainly absent. The complaint alleges that Cohen

was shackled, handcuffed, remanded, and confined during his thirty-six-month period of

incarceration; although he was temporarily released on furlough with a planned transfer to home

confinement, an inmate on furlough “[r]emains in the legal custody of the U.S. Attorney General,

in service of a term of imprisonment.” 28 C.F.R. § 570.38(b)(1). “Plaintiff’s confinement was

uncategorically privileged because he was a convicted felon serving his sentence.” McGowan v.

United States, 94 F. Supp. 3d 382, 390 (E.D.N.Y. 2015). Just as a prisoner serving a term of

incarceration in prison would not have a claim for false imprisonment for his transfer from one

cell to another, or even from standard conditions to solitary confinement, Cohen does not have a

claim for false imprisonment for his remand and confinement. Cohen’s only response is that “it

has already been adjudicated by the Honorable Alvin K. Hellerstein that plaintiff’s incarceration

was not ‘privileged’ and was a result of retaliatory conduct engaged in by defendants for the

lawful exercise of his First Amendment rights.” Dkt. No. 59 at 28. That argument does not hold

water; Judge Hellerstein found that Cohen’s remand was an unconstitutional retaliation for

Cohen’s exercise of his First Amendment rights, but it does not follow that the remand and his

confinement—effectuated pursuant to a remand order for an inmate in federal custody—was the

product of “the absence of legal process,” see Wallace, 549 U.S. at 390. Rather, Cohen’s

complaint is not about the absence of legal process but for wrongs incurred while Cohen was

subject to legal process and as a result of that process for which a claim of false imprisonment

does not lie.

“To prove abuse of process, plaintiff must show that the defendant ‘(1) employs regularly

issued legal process to compel performance or forbearance of some act (2) with intent to do harm

without excuse of justification, and (3) in order to obtain a collateral objective that is outside the

legitimate ends of the process.’” Hernandez, 939 F.3d at 204 (quoting Savino v. City of New

York, 331 F.3d 63, 76 (2d Cir. 2003)). The United States argues that this claim, too, fails “[f]or

similar reasons.” Dkt. No. 40 at 12. They argue that the FBOP exercising its authority to

determine where a prisoner serves a sentence of incarceration is not exercising “legal process”;

no court order is required to effectuate its decisions. See Cook v. Sheldon, 41 F.3d 73, 80 (2d

Cir. 1994) (citing Mormon v. Baran, 35 N.Y.S.2d 906, 909 (Sup. Ct. 1942) for the proposition

that “legal process means that a court issued the process, and the plaintiff will be penalized if he

violates it”). In some sense, the government’s argument appears troubling: Cohen cannot pursue

a false imprisonment claim for his being shackled, handcuffed, remanded to prison, and confined

because it was done pursuant to valid legal process in the form of his sentence from Judge

Pauley, and thus “his confinement was legally permitted during the duration of his sentence,”

Dkt. No. 40 at 12, but Cohen also cannot pursue an abuse of process claim for being shackled,

handcuffed, remanded to prison, and confined because that was not done pursuant to any legal

process, i.e., a court order. After all, as the unavailability of a false imprisonment claim reflects,

Cohen’s entire period of detention is pursuant to legal process; without his sentence, the Bureau

of Prisons would not possess the authority to remand him to prison without a separate court

order. But—as the only case Cohen cites recognizes—the tort of abuse of process lies in

“causing process to issue lawfully but to accomplish some unjustified purpose.” Bd. of Educ. of

Farmingdale Union Free Sch. Dist. v. Farmingdale Classroom Teachers’ Ass’n, 343 N.E.2d

278, 280 (N.Y. 1975). The “abuse” referenced by the tort is that “for maliciously abusing the

process of the court,” i.e., it addresses those cases in which the process of the court “is

manipulated to achieve some collateral advantage, whether it be denominated extortion,

blackmail, or retribution.” Id. at 281, 283. Cohen does not allege that there was an abuse in the

process of obtaining the court order pursuant to which he was confined. What he complains

about is that the FBOP perverted its authority under already issued legal process, to accomplish

goals for which that process was not originally intended. In short, since Cohen alleges no

misconduct in connection with causing the process to issue, he does not properly allege a claim

for abuse of process and his second cause of action must be dismissed.

Third, the government argues that Cohen’s emotional distress claims—for negligent

infliction of emotional distress and intentional infliction of emotional distress—relate to the same

conduct as his false imprisonment and abuse of process claims, and therefore must fall with those

claims. Dkt. No. 40 at 12 (first citing Moore v. City of New York, 219 F. Supp. 2d 335, 229

(E.D.N.Y. 2002) for the proposition that “[n]o intentional infliction of emotional distress claim

will lie where the conduct underlying the claim falls within the ambit of traditional tort

authority”; and then citing Rheingold v. Harrison Town Police Dep’t, 568 F. Supp. 2d 384, 395

n.3 (S.D.N.Y. 2008) for the proposition that “[t]o the extent a plaintiff is alleging an alternate

theory of liability for false arrest, imprisonment and prosecution sounding in negligence, New

York does not provide a cause of action under such a theory”). Cohen nowhere addresses this

argument or defends the availability of his emotional distress claims if his false imprisonment

and abuse of process claims are dismissed. Therefore, the Court deems the claims abandoned.

See, e.g., Pincover v. J.P. Morgan Chase Bank, N.A., 2022 WL 864246, at *11 (S.D.N.Y. Mar.

22, 2022) (“A court may, and generally will, deem a claim abandoned when a plaintiff fails to

respond to a defendant’s arguments that the claim should be dismissed.” (internal quotation

marks omitted) (first quoting Williams v. Mirabal, 2013 WL 174187, at *2 (S.D.N.Y. Jan 16,

2013)); and then quoting Lipton v. County of Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y.

2004))).

Finally, the United States moves to dismiss Cohen’s remaining FTCA claims—for

negligent failure to protect and negligent hiring, retention, training, and supervision—as barred

by the FTCA’s discretionary function exception, which provides that the Government is not

liable for:

[a]ny claim based upon an act or omission of an employee of the Government,

exercising due care, in the execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not the discretion involved

be abused.

28 U.S.C. § 2680(a). “The exception covers only acts that are discretionary in nature, acts that

‘involve an element of judgment or choice,’ and ‘it is the nature of the conduct, rather than the

status of the actor that governs whether the exception applies.’” United States v. Gaubert, 499

U.S. 315, 322 (1991) (citations omitted and alterations adopted) (first quoting Berkovitz by

Berkovitz v. United States, 486 U.S. 531, 536 (1988); and then quoting United States v. S.A.

Empresa de Viavao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984)). “[E]ven

‘assuming the challenged conduct involves an element of judgment,’ it remains to be decided

‘whether that judgment is of the kind that the discretionary function exception was designed to

shield.’” Id. (quoting Berkovitz, 486 U.S. at 536). The exception “marks the boundary between

Congress’ willingness to impose tort liability upon the United States and its desire to protect

certain governmental activities from exposure to suit by private individuals.” Varig Airlines, 467

U.S. at 808.

The Second Circuit has described a two-part test, termed the Berkovitz-Gaubert test, as

“the framework for evaluating whether particular governmental conduct falls under the”

discretionary function exception:

According to the Berkovitz-Gaubert test, the [discretionary function exception] bars

suit only if two conditions are met: (1) the acts alleged to be negligent must be

discretionary, in that they involve “an element of judgment or choice” and are not

compelled by statute or regulation and (2) the judgment or choice in question must

be grounded in “considerations of public policy” or susceptible to policy analysis.

Coulthurst v. United States, 214 F.3d 106, 109–10 (2d Cir. 2000).

The governmental conduct challenged in the two remaining causes of action is

(1) “negligently operating and managing FCI Otisville,” Compl. ¶ 123, presumably in placing

Cohen in solitary confinement in a space with poor ventilation, no air conditioning, and daily

temperatures exceeding one-hundred degrees, id. ¶ 102; and (2) “negligence, carelessness, and

recklessness . . . in failing to meet its duty of care to plaintiff in its screening, hiring, training,

supervising, evaluating, managing, controlling, and retaining of defendants and other agents,

servants, and employees of the United States,” id. ¶ 137. As to the second of these, even

assuming that it is well-plead and not conclusory, it clearly falls within the discretionary function

exception. See, e.g., Saint-Guillen v. United States, 657 F. Supp. 2d 376, 387 (E.D.N.Y. 2009)

(“[F]ederal courts have found such hiring, training, and supervision decisions generally fall

within the exception.”); Li v. Aponte, 2008 WL 4308127, at *8 (S.D.N.Y. Sept. 16, 2008)

(holding that the plaintiff’s “common law claims against the United States for negligent hiring,

training and supervision are barred by the ‘discretionary function’ exception of the FTCA,” and

collecting cases for the proposition that “[p]ersonnel decisions of the United States generally fall

within the discretionary function exception to the FTCA”). Cohen’s negligent hiring, retention,

training, and supervision claim therefore cannot proceed.

As to the first of this challenged conduct—the negligent operation and management of

FCI Otisville—however, it is a closer call. The Second Circuit has held that certain negligence

claims related to prison management are not subject to the discretionary function exception. See

Coulthurst v. United States, 214 F.3d 106, 109 (2d Cir. 2000). In Coulthurst, the plaintiff, who

was a federal prisoner, was lifting weights in the prison exercise room and suffered an injury

when a cable on a lateral pull down machine snapped. Id. at 107. He brought claims against the

prison for “‘negligence and carelessness’ in that the defendant ‘failed to diligently and

periodically inspect the weight equipment, and the cable’ and ‘failed to replace the cable after

undue wear and tear.’” Id. at 108 (citation omitted). The district court dismissed the claim as

barred by the discretionary function exception, and the Second Circuit vacated. Id. at 108, 111.

In doing so, the Second Circuit distinguished between the type of negligence that is involved in

designing deficient procedures or decisions about how frequently to inspect the exercise

equipment, which involve “elements of judgment and choice” as well as “considerations of

public policy,” id. at 109, and thus would be subject to the discretionary function exception, and

the type of negligence that results from an individual officer being carelessly inattentive or lazy

in not checking on things, which does not involve elements of judgment and choice or

considerations of governmental policy and would not be subject to the discretionary function

exception, id. The Second Circuit found that the complaint was ambiguous as to which type of

negligence was alleged, and therefore that the district court was wrong to dismiss the claim

entirely as barred by the discretionary function exception. Id. at 109–10.

Cohen’s allegations in his complaint are similarly ambiguous as to what type of

negligence Cohen is alleging. While Cohen alleges generally that his negligent failure to protect

claim is based on the United States’ breach of its duty “in negligently operating and managing

FCI Otisville,” Compl. ¶ 123, it is not clear whether Cohen claims that the alleged “negligence”

resulted from the policies and procedures governing FCI Otisville (which allowed for the unsafe

conditions in Cohen’s cell to occur perhaps due to concerns about costs or resource allocation) or

from the carelessness of an individual guard in failing to check that the cell was well-ventilated,

air conditioned, and a safe temperature.

To clarify this issue, the Court asked Cohen’s counsel at oral argument which of these

two theories (or both) he was alleging. Oral Argument Tr. 50. Cohen’s counsel stated that he

was only alleging that the “policies and procedures in place during COVID at Otisville were

egregiously bad in that they, aside from deliberately indifferent, were just negligent in the

maintenance and upkeep.” /d. at 50-51. In other words, Cohen admitted that he was not

asserting a negligent guard theory of liability. Unfortunately for Cohen, this concession is fatal

to his ability to assert this claim: Coulthurst is clear that the designing of such policies and

procedures regarding maintenance and upkeep of prisons are subject to the discretionary function

exception and thus Cohen’s claim of negligent failure to protect must be dismissed accordingly.

CONCLUSION

The motions to dismiss are GRANTED.

The Clerk of Court is respectfully directed to close Dkt. Nos. 38,° 39, 41.

SO ORDERED.

wel tra,

Dated: November 14, 2022 men

New York, New York LEWIS J. LIMAN

United States District Judge

Defendants’ request to stay discovery in this matter pending adjudication of their motions to

dismiss, Dkt. No. 38 has already been addressed, Dkt. No. 66, and nonetheless should be denied

as moot.

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