Dongarra v. Smith

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JORDON DONGARRA, : Civil No. 3:18-CV-01939

:

Plaintiff, :

:

v. :

:

OFFICER D. SMITH, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

This is a Bivens action brought by an inmate in a federal prison. Plaintiff

Jordon Dongarra (“Dongarra”) alleges that Defendants, three officers of the

Federal Bureau of Prisons (“BOP”), violated his civil rights by taking actions that

led other inmates to believe that he was a sex offender, which allegedly put him in

danger of physical harm. The case is presently before the court on Defendants’

motion to dismiss and/or for summary judgment and Dongarra’s “motion for

judgment,” which the court construes as a motion for summary judgment. For the

reasons that follow, Defendants’ motion is granted, Dongarra’s motion is denied as

moot, and this case is dismissed with prejudice.

BACKGROUND AND PROCEDURAL HISTORY

Dongarra initiated this case by filing a complaint on October 5, 2018. (Doc.

1.) According to the allegations in the complaint, Dongarra was transferred to the

United States Penitentiary, Canaan (“USP Canaan” or “the prison”) in Wayne

County, Pennsylvania on August 10, 2018. (Doc. 1 at 14.) When Dongarra

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arrived at the prison, Defendant D. Smith (“Smith”) gave Dongarra a t-shirt that

was different from the t-shirts given to the other arriving prisoners. (Id.)

Dongarra’s t-shirt contained a reference to the Federal Correctional Institution in

Terre Haute, Indiana (“FCI Terre Haute”).1 (Id.) The complaint alleges that FCI

Terre Haute is “a prison for child molesters, rapist[s],” and other sex offenders.

(Id.) In addition to the t-shirt, Dongarra was also given an “I.D. card register

offender [sic] so all the inmates would think [he was] a sex offender.” (Id.)

Dongarra immediately asked Smith for a different t-shirt and different ID card,

explaining that he feared he would be in danger if he was not given those items

because the t-shirt and ID card that he had been given would give other inmates the

impression that he was a sex offender. (Id.) Smith allegedly disregarded

Dongarra’s concerns, telling Dongarra that he “[didn’t] give a shit” and that he

hoped Dongarra knew “how to fight or make, and use a knife.” (Id. at 14–15.)

Dongarra then asked other staff members to intervene on his behalf. (Id. at 15.)

The other staff members asked Smith to give Dongarra a new t-shirt, but Smith

again refused to do so. (Id.)

After his initial experience with Smith, Dongarra entered the prison’s

general population “with some explaining to do to other inmates” who may have

1 The complaint alleges that the t-shirt had “terrihut” on it, which the court liberally construes as

a reference to “Terre Haute.”

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had the misapprehension that Dongarra was a sex offender. (Id.) Because

Dongarra feared that other inmates had such a misapprehension, he avoided going

to meals and avoided recreation time so as to prevent encounters with other

inmates. (Id.) After several weeks in the prison, Dongarra was given a new t-shirt

and a new ID card. (Id.)

Dongarra alleges that he attempted to exhaust his administrative remedies

with respect to the incident involving Smith on September 4, 2018, but that staff

members from the prison threw his mail away. (Id.) Dongarra alleges that the

incident involving Smith was captured on prison surveillance cameras. (Id.) The

complaint names as defendants Smith and two John Doe officers who were

allegedly on camera with Dongarra and Smith during the incident. (Id. at 2–3.) As

remedies for the alleged violation of his constitutional rights, Dongarra seeks a

declaration that Defendants violated his rights, injunctive relief requiring the prison

to terminate Smith from his job, $150,000 in compensatory damages, and $250,000

in punitive damages. (Id. at 17–18.)

On April 22, 2019, Smith filed a motion to dismiss and/or a motion for

summary judgment. (Doc. 21.) Briefing on that motion has concluded. (See

Docs. 31, 33, 37, 38, 41.)2 Dongarra has also filed a “motion for judgment,” which

2 Briefing on Defendants’ motion includes two sur replies filed by Dongarra. (See Docs. 38, 41.)

Dongarra did not obtain leave of the court to file those sur replies as required by Local Rule 7.7.

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the court construes as a motion for summary judgment. (Doc. 39.) Dongarra has

not filed a brief in support of his motion, and the time for doing so has expired

under Local Rule 7.5. Accordingly, since briefing on both motions has concluded,

the motions are ripe for the court’s resolution.

JURISDICTION

This court has jurisdiction under 28 U.S.C. § 1331, which allows a district

court to exercise subject matter jurisdiction in civil cases arising under the

Constitution, laws, or treaties of the United States.

MOTION TO DISMISS STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

Nevertheless, in order to give Dongarra’s filings a liberal construction, the court has considered

the sur replies in its review of Defendants’ motion. See, e.g., Sause v. Bauer, 585 U.S. __, 138 S.

Ct. 2561, 2563 (2018) (noting that district courts must liberally construe filings from

unrepresented litigants).

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2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (Bistrian I).

In determining whether to dismiss a complaint brought by an unrepresented

litigant, a court must construe the complaint liberally. Sause, 138 S. Ct. at 2563.

Nevertheless, unrepresented litigants “still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

245 (3d Cir. 2013).

SUMMARY JUDGMENT STANDARD OF REVIEW

A court may grant a motion for summary judgment when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of

the dispute “might affect the outcome of the suit under the governing law.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “‘A

dispute is genuine if a reasonable trier-of-fact could find in favor of the

nonmovant’ and ‘material if it could affect the outcome of the case.’” Thomas v.

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Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).

In reviewing a motion for summary judgment, the court must view the facts

in the light most favorable to the non-moving party and draw all reasonable

inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288

(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher

Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the

court’s role in reviewing the facts of the case is “to determine whether there is a

genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of

informing the district court of the basis for its motion, and identifying those

portions of ‘the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then

oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but instead, ‘must set forth specific facts showing that

there is a genuine issue for trial. Bare assertions, conclusory allegations, or

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suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to

make a showing sufficient to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the

non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION

In his motion, Smith argues that he should be granted dismissal or summary

judgment because (1) he is entitled to sovereign immunity as to Dongarra’s

official-capacity claims, (2) Bivens should not be extended to the facts of this case,

(3) Dongarra failed to exhaust his administrative remedies under the Prison

Litigation Reform Act (“PLRA”), (4) Smith was not personally involved in the

alleged violation of Dongarra’s rights, and (5) Smith is entitled to qualified

immunity. (See Doc. 31 at 8.) Having reviewed Smith’s motion, the court

concludes that Smith is entitled to sovereign immunity, that Bivens should not be

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extended to the facts of this case, and that Dongarra is not entitled to injunctive

relief. The court accordingly dismisses Dongarra’s complaint without addressing

Smith’s remaining arguments. See Woodford v. Ngo, 548 U.S. 81, 101 (2006)

(noting that a district court has the discretion to address the merits of a complaint

before addressing the issue of administrative exhaustion under the PLRA).

Furthermore, because the John Doe Defendants are entitled to the same relief as

Smith, the court will dismiss the action as to all Defendants.

A. Defendants Are Entitled to Sovereign Immunity

The doctrine of sovereign immunity bars suits against the United States or

its agencies unless the government has waived that immunity. FDIC v. Meyer, 510

U.S. 471, 475 (1994) (citing Loeffler v. Frank, 486 U.S. 549, 554 (1988)).

Sovereign immunity extends to individual officers acting in their official

capacities. See Treasurer of N.J. v. U.S. Dep’t of Treasury, 684 F.3d 382, 395 (3d

Cir. 2012) (“Without a waiver of sovereign immunity, a court is without subject

matter jurisdiction over claims against federal agencies or officials in their official

capacities.” (citing United States v. Mitchell, 445 U.S. 535, 538 (1980))).

Accordingly, Dongarra’s claims in this case are barred by the doctrine of sovereign

immunity to the extent that they are brought against the Defendants in their official

capacities. Perez-Barron v. United States, 480 F. App’x 688, 691 (3d Cir. 2012)

(granting sovereign immunity to BOP officers acting in their official capacities).

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B. The Court Will Not Extend Bivens to the Facts of This Case

The court will next address Smith’s argument that the implied damages

remedy under Bivens does not apply to the facts of this case and that the court

should not extend it to this situation. (Doc. 31 at 19–34.) In Bivens, the Supreme

Court recognized that a plaintiff may bring an implied damages remedy against a

federal official for violation of the plaintiff’s Fourth Amendment right to be free

from unreasonable searches, despite the fact that no federal statute or constitutional

provision allowed such a cause of action. Bivens v. Six Unknown Named Agents of

the Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); see also Mack v. Yost, __

F.3d __, No. 18-3504, 2020 WL 4459994, at *1 (3d Cir. Aug. 4, 2020). Since that

decision, the Supreme Court has only recognized an implied damages remedy

against a federal official in two other cases: Davis v. Passman, 442 U.S. 228, 245

(1979) (recognizing an implied cause of action for sex discrimination under the

Fifth Amendment), and Carlson v. Green, 446 U.S. 14, 18–23 (1980) (recognizing

an implied cause of action for inadequate medical care under the Eighth

Amendment). See Mack, 2020 WL 4459994, at *1 n.1.

In the absence of Supreme Court extensions of the implied damages remedy

under Bivens, lower federal courts recognized that they had the power to extend

Bivens to new fact situations in appropriate circumstances. See id. at *5. That

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changed with the Supreme Court’s decision in Ziglar v. Abbasi, 582 U.S. __, 137

S. Ct. 1843 (2017).

In Abbasi, the Supreme Court considered several Bivens claims brought to

enforce the plaintiff’s rights under the Fourth and Fifth Amendment, all of which

were factually distinct from the claims in Bivens, Davis, and Carlson. Id. at 1853–

54. In analyzing the claims, the Court noted that it had taken a much more

cautious approach to implying causes of action in the years since Bivens had been

decided. Id. at 1855–56. Given that more cautious approach, the Court

acknowledged that the decision in Bivens, Davis, and Carlson “might have been

different if they were decided today.” Id. at 1856. The Court instructed lower

courts to be cautious in extending Bivens remedies to new contexts, noting that

“expanding the Bivens remedy is now a ‘disfavored’ judicial activity,” and that

decisions of whether to recognize new causes of action should generally be left to

Congress. Id. at 1857 (quoting Iqbal, 556 U.S. at 675).

Under Abbasi, a court presented with a Bivens claim must conduct a two-

part analysis. Mack, 2020 WL 4459994, at *3. First, the court “must determine

whether the Bivens claim presents a ‘new context.’” Id. (quoting Abbasi, 137 S.

Ct. at 1859). A case presents a new context if “is different in a meaningful way

from previous Bivens cases decided by the Supreme Court.” Id. (internal

alterations omitted) (quoting Abbasi, 137 S. Ct. at 1859). The difference between

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the two cases does not need to be stark, because “a modest extension is still an

extension.” Id. (quoting Abbasi, 137 S. Ct. at 164). Second, if the case presents a

new context, the court “must then determine if there are ‘special factors

counselling hesitation’ in expanding Bivens.” Id. (quoting Abbasi, 137 S. Ct. at

1857). This determination “concentrate[s] on whether the Judiciary is well suited,

absent congressional action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.” Id. (quoting Abbasi, 137 S. Ct.

at 1857–58.) “If ‘there are any special factors that counsel hesitation,’ courts must

‘reject the request’ to expand Bivens.” Id. (quoting Hernandez v. Mesa, 589 U.S.

__, 140 S. Ct. 735, 743 (2020)).

Turning to the facts of this case, it is clear that Dongarra’s Bivens claim

presents a new context to which Bivens has never been extended. Dongarra’s

claim is grounded in the Eighth Amendment, and, liberally construed, is based on

both a conditions of confinement theory and a cruel and unusual punishment

theory. (See Doc. 1 at 17.) The Supreme Court has never recognized a Bivens

cause of action under either theory. Although Carlson recognized that a Bivens

claim could be brought for violation of a plaintiff’s Eighth Amendment rights, the

claim in that case was based exclusively on a theory of deliberate indifference to a

serious medical need under Estelle v. Gamble, 429 U.S. 97 (1976). See Carlson,

446 U.S. at 1471. Dongarra’s claim—that Smith and the other Defendants violated

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his rights under the Eighth Amendment by giving him a t-shirt and ID card that

were different from the ones given to other arriving inmates—is notably different

from that claim and is not based on deliberate indifference to a serious medical

need.

Thus, because Dongarra’s claim presents a new context, the court must

determine whether there are any special factors that counsel hesitation in extending

Bivens. Mack, 2020 WL 4459994, at *3. The court finds that there are.

A special factors analysis depends on the context of an individual case. Id.

at *5. Nevertheless, two special factors are, if present, “‘particularly weighty’: the

availability of an alternative remedial structure and separation-of-powers

concerns.” Id. at *6 (quoting Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018)

(Bistrian II)).

Here, Dongarra had access to an alternative remedial structure through the

use of the BOP’s grievance process. See id. (finding that BOP’s grievance process

provided alternative remedial structure). “Although the alternative remedy would

not provide [Dongarra] with money damages for the constitutional violation

incurred,” it could still provide some of the redress that Dongarra seeks, including

his request for injunctive relief. Id. Like Mack, “this was not a case of ‘damages

or nothing,’” and, like the plaintiff in that case, Dongarra “did not sustain any

physical injuries with resulting monetary loss, which may have otherwise caused

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[the court] to create a damages remedy despite the availability of the BOP’s

administrative remedy.” Id. (quoting Abbasi, 137 S. Ct. at 1862).

Separation of powers concerns similarly caution against expanding Bivens to

this case. Because Dongarra’s complaint alleges that Defendants took improper

actions when admitting him into the prison, resolution of his claim would

necessarily involve judicial determinations as to the proper procedures for

admitting inmates into a prison, and Congress has delegated such determinations to

the BOP. See id. at *7 (noting that courts should proceed with caution before

extending Bivens to decisions that have been delegated to the BOP).

Accordingly, because Dongarra’s complaint presents a new context to which

Bivens has not previously been extended and because special factors counsel

against extending Bivens to that new context, the court declines to extend Bivens to

the facts of this case.

C. Dongarra’s Claim for Injunctive Relief Is Dismissed

In his complaint, Dongarra seeks “[a] preliminary and permanent injunction

ordering defendant D. Smith to be fired from [his] job.” (Doc. 1 at 17.)

Dongarra’s request for injunctive relief is dismissed because Dongarra has not

named any defendant who has the power to terminate Smith from his job. See

Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646, at *12 (M.D. Pa.

Aug. 31, 2016) (finding that injunctive relief against defendant prison officials

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would not be proper where none of the named defendants had the authority to

implement the requested relief).

D. The Court Will Deny Dongarra Leave to Amend

Before dismissing a civil rights complaint, a district court “must permit a

curative amendment unless such an amendment would be inequitable or futile.”

Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). Here, because the

court declines to extend Bivens to the facts of this case and because Defendants are

entitled to sovereign immunity, the court finds that amendment of Dongarra’s

complaint would be futile. The court will accordingly deny leave to amend.

CONCLUSION

For the foregoing reasons, Smith’s motion to dismiss is granted and

Dongarra’s motion for summary judgment is denied as moot.3 An appropriate

order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Court Judge

Middle District of Pennsylvania

Dated: August 24, 2020

3 Having concluded that dismissal is warranted for other reasons, the court does not address

Defendants’ qualified immunity, administrative exhaustion, or personal involvement arguments.

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