Brinkley v. Howard

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TYRONE MICHAEL BRINKLEY, Civil No. 3:22-cv-256

Plaintiff (Judge Mariani)

V.

CATRICIA HOWARD, et ai.,

Defendants

MEMORANDUM

Plaintiff Tyrone Michael Brinkley (“Brinkley”), an inmate who was confined, at all

relevant times, at the Federal Correctional Institution, Allenwood, in White Deer,

Pennsylvania,’ initiated this action pursuant to Bivens?, 28 U.S.C. § 1331. Brinkley

subsequently filed an amendment to the complaint. (Doc. 36). Named as Defendants are

Warden Howard, Case Management Coordinator Gainer, Unit Manager Nicholas, and two

John Doe individuals. Presently pending before the Court is Defendants’ motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 44). Brinkley failed to respond

‘Brinkley has been released to a Residential Reentry Center. See Federal Bureau of Prisons’

online Inmate Locator, available at: https:/www.bop.gov/inmateloc/ (last accessed May 1, 2023).

2 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

In Bivens, the Supreme Court created a limited federal tort counterpart to the remedy created by 42 U.S.C.

§ 1983 as it applies to federal officers.

to the motion and the time for responding has now passed.? Therefore, the motion is

deemed unopposed and ripe for resolution. For the reasons set forth below, the Court will

grant Defendants’ motion. The Court will also dismiss the action against the John Doe

Defendants pursuant to Federal Rule of Civil Procedure 4(m).

I. Allegations of the Complaint

While incarcerated at the Federal Correctional Institution, Schuylkill, Pennsylvania,

Brinkley alleges that he completed the residential component of the Residential Drug Abuse

Program (“RDAP”). (Doc. 1 J 9). He alleges that he was entitled to a one-year sentence

reduction if he completed the final two phases of the three-phase RDAP program. (/d. J

10). In May of 2017, Brinkley was transferred to FCl-Allenwood and completed twelve

months of follow-up services. (/d. J 11). The Transitional Drug Abuse Treatment

component must be completed while in a Residential Reentry Center. (/d. 12).

On or about February 20, 2019, Brinkley’s home plan was completed and sent to the

case manager supervisor for approval. (/d. 14). However, on February 23, 2019, Brinkley

was brought to the Special Housing Unit pending an investigation into his violation of prison

rules. (/d. 16). Brinkley alleges that on February 25, 2019, he asked the case manager

supervisor about the status of his release date. (/d. 18). The case manager supervisor

3 Brinkley was directed to file a brief in opposition to Defendants’ motion and was admonished

that failure to file an opposition brief would result in Defendants’ motion being deemed unopposed. (Docs.

47, 50) (citing M.D. PA. LOCAL RULE OF CouRT 7.6).

allegedly informed Brinkley that the release process was discontinued pending the outcome

of his disciplinary offense. (/d. 19).

On March 5, 2019, Brinkley was informed that he was expelled from the RDAP

program due to his 100-series offense. (/d. 22). Brinkley contends that governing RDAP

policies had been amended to remove 100-series offenses as immediate grounds for

disqualification from RDAP. (/d. § 26). He alleges that Defendants violated his Eighth and

Fourteenth* Amendment rights by intentionally delaying his release from prison because

they did not process his halfway house packet before being formally charged with a violation

of prison rules. (/d. Jf] 43-46).

Il. Legal Standards

A. _ Federal Rule of Civil Procedure 12(b)(6)

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The

plaintiff must aver “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129

S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

4 Although Brinkley invokes the Fourteenth Amendment, the Fourteenth Amendment only

applies to the actions of state actors and not federal actors. See Brown v. Philip Morris, Inc., 250 F.3d 789,

800 (3d Cir. 2001). The Court therefore addresses Brinkley’s due process claim under the Fifth

Amendment.

“Though a complaint ‘does not need detailed factual allegations, . . . a formulaic

recitation of the elements of a cause of action will not do.” DelRio-Mocci v. Connolly Prop.

Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,

“[flactual allegations must be enough to raise a right to relief above the speculative level.”

Covington v. Int'l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)

(internal citations and quotation marks omitted). A court “take{s] as true all the factual

allegations in the Complaint and the reasonable inferences that can be drawn from those

facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v.

Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation

marks omitted).

Twombly and Iqbal require {a district court] to take the following three steps to

determine the sufficiency of a complaint: First, the court must take note of the

elements a plaintiff must plead to state a claim. Second, the court should

identify allegations that, because they are no more than conclusions, are not

entitled to the assumption of truth. Finally, where there are well-pleaded

factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[Whhere 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.” Iqbal, 556 U.S. at 679 (internal citations and quotation marks

omitted). This “plausibility” determination will be a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” /d.

However, even “if a complaint is subject to Rule 12(b)(6) dismissal, a district court

must permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a

defendant moves to dismiss it, unless the district court finds that amendment

would be inequitable or futile, the court must inform the plaintiff that he or she

has leave to amend the complaint within a set period of time.

Id.

B. Bivens Claims

A Bivens civil rights action asserted under 28 U.S.C. § 1331 is evaluated using the

same standards applicable to a 42 U.S.C. § 1983 civil rights action. See Paton v. LaPrade,

524 F.2d 862, 871 (3d Cir. 1975). To state a claim under Bivens, a plaintiff must allege that

he was deprived of a federal right by a person acting under color of federal law. See Young

v. Keohane, 809 F. Supp. 1185, 1199 (M.D. Pa. 1992).

Ill. Discussion

Defendants move to dismiss the complaint on the following grounds: (1) a Bivens

remedy is not available for Brinkley’s claims; (2) Brinkley failed to state a Due Process

Claim; (3) Brinkley failed to state an Eighth Amendment Claim; (4) Brinkley failed to

establish the personal involvement of Defendants Howard and Nicholas; and (5) Defendants

are entitled to qualified immunity. (See Doc. 45). Because the Court declines to extend

Bivens to Brinkley’s Fifth and Eighth Amendment claims, the Court does not reach

Defendants’ remaining arguments.

A. A Bivens Remedy is not Available for Brinkley’s Claims

Defendants first move to dismiss Brinkley’s due process and deliberate indifference

claims on the basis that there is no Bivens remedy available for these Fifth and Eighth

Amendment claims following the United States Supreme Court's decision in Ziglar v.

Abbasi, 582 U.S. 120, 137 S. Ct. 1843 (2017). (Doc. 45, pp. 11-18). In Bivens, the

Supreme Court recognized an implied damages remedy for a Fourth Amendment violation

committed by federal officials, whose conduct was not encompassed by the statutory

remedy available against state actors under 42 U.S.C. § 1983. See Bivens, 403 U.S. at

397. Since that decision, the Supreme Court has extended the Bivens remedy only twice:

first, to a claim for gender discrimination under the Fifth Amendment's Due Process Clause,

see Davis v. Passman, 442 U.S. 228, 248-49 (1979), and then to a claim for inadequate

prison medical care under the Cruel and Unusual Punishment Clause of the Eighth

Amendment, see Carlson v. Green, 446 U.S. 14, 18-23 (1980).

In Abbasi, the Supreme Court set forth a two-part test to determine whether a Bivens

claim may proceed. First, courts must ascertain whether the case presents a “new context.”

Abbasi, 582 U.S. at 138. If the case differs “in a meaningful way from previous Bivens

cases decided by th[e Supreme] Court, then the context is new.” /d. at 139. And the

meaning of “new context” is “broad.” See Hernandez v. Mesa, 589 U.S.__, 140 S. Ct.

735, 743 (2020). Second, if the case presents a new context, the court must then consider

whether “special factors” counsel against extending the Bivens remedy. See id. This

inquiry asks whether “the Judiciary is at least arguably less equipped than Congress to

weigh the costs and benefits of allowing a damages action to proceed.” See Egbert v.

Boule, 596 U.S.__, 142 S. Ct. 1793, 1798 (2022) (quoting Abbasi, 582 U.S. at 136). Ifa

court concludes that “even a single reason’ exists to pause “before applying Bivens in a

new context or to a new class of defendants,” then special factors counseling hesitation

exist and a Bivens remedy does not lie. See id. (quoting Hernandez, 140 S. Ct. at 743)

(internal quotation marks omitted); Hernandez, 140 S. Ct. at 743.

In Egbert v. Boule, 596 U.S. ___, 142 S. Ct. 1793, the Supreme Court reemphasized

that the Court’s continued refusal to “imply a similar cause of action for other alleged

constitutional violations” is intentional...recognizing a new Bivens cause of action is “a

disfavored judicial activity.” Egbert, 152 S. Ct. at 1797 (quoting Abbasi, 137 S. Ct. at 1843;

Hernandez, 140 S. Ct. at 742-43). Egbert clarified that the two-step process laid out in

Abbasi “often resolve[s] to a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” /d. at 1798. In other

words: if there is “any rational reason (even one) to think that Congress is better suited” to

determine the propriety of a cause of action, then a Bivens action cannot proceed. /d. at

1805. The court must broadly inquire whether “there is any reason to think that ‘judicial

intrusion’ into a given field might be ‘harmful’ or ‘inappropriate’ —and if the answer is “yes,”

or potentially yes, the plaintiff cannot recover under Bivens. See id. (quoting United States

v. Stanley, 483 U.S. 669 681 (1987)). The Court proceeds with Abbasi’s two-step analysis.

1. New Context

Brinkley alleges that he was terminated from the RDAP program in violation of his

right to due process. He also alleges a non-bodily injury stemming from the Bureau of

Prison’s (“BOP”) alleged failure to process his halfway house packet, in violation of his

Eighth Amendment rights. There is no question that Brinkley’s Fifth and Eighth Amendment

claims present new contexts—they are “different in a meaningful way from previous Bivens

cases decided by [the Supreme] Court.” Abbasi, 582 U.S. at 139. Brinkley’s instant claims

on their face “bear little resemblance” to “a claim against FBI agents for handcuffing a man

in his own home without a warrant; a claim against a Congressman for firing his female

secretary; and a claim against prison officials for failure to treat an inmate’s asthma,” the

contexts previously recognized by the Supreme Court. Abbasi, 582 U.S. at 140.

Of the three cases in which the Supreme Court has recognized Bivens claims, only

Davis and Carlson—involving Fifth and Eighth Amendment claims, respectively—are

tenably relevant. In Davis, the Court concluded that the Fifth Amendment’s Due Process

Clause provided a damages remedy to an administrative assistant claiming that a

Congressman had discriminated against her on the basis of gender. See Davis 442 U.S. at

248-49. In Carlson, a prisoner's estate filed suit alleging that prison officials had been fully

aware Of the prisoner's serious “chronic asthmatic condition” as well as the “gross

inadequacy” of medical facilities and staff at the Federal Correctional Center in Terre Haute,

Indiana. See Carlson, 446 U.S. at 16 1n.1. The estate alleged officials failed to provide the

prisoner “competent medical attention for some eight hours after he had an asthmatic

attack,” including an inordinate delay of his transfer to an outside hospital, all of which led to

the prisoner's death. See id.

Brinkley’s Fifth Amendment claim for relief regarding his termination from the RDAP

program is decidedly different from the gender discrimination claim in Davis. And Brinkley’s

claim that the BOP failed to process his halfway house packet is markedly different from the

Eighth Amendment inadequate medical care claim recognized in Carlson. See, e.g.,

Mammana v. Barben, 856 F. App’x 411 (3d Cir. 2021) (nonprecedential) (rejecting

prisoner's argument that Carlson gives footing to Eighth Amendment conditions-of-

confinement claim against federal prison officials). The claims do arise under the same

constitutional amendments, but a common constitutional basis is simply not enough to link a

new Bivens theory to an existing Bivens context. See Hernandez, 140 S. Ct. at 743

(indicating courts must “look beyond the constitutional provisions invoked”). Nor is it

enough that the new theory matches an existing context at a high level of generality, i.e.,

“prisoner mistreatment.” Cf. Abbasi, 582 U.S. at 146-49: see also Hernandez, 140 S. Ct. at

743 (“{O]ur understanding of a ‘new context’ is broad.”).

Brinkley’s Fifth and Eighth Amendment claims differ meaningfully from Davis and

Carlson. They differ in terms of the nature and scope of the actions alleged, and the legal

standards that would apply. See Abbasi, 582 U.S. at 140-41; see also Mammana v.

Barben, No. 4:17- CV-645, 2020 WL 3469074, at *3 (M.D. Pa. June 25, 2020) (Brann, J.)

(noting differing elements for medical-deliberate-indifference and conditions-of-confinement

claims), aff'd, 856 F. App’x 411. The Court thus concludes that Brinkley’s Fifth and Eighth

Amendment claims present new contexts for purposes of Bivens.

2. Special Factors

Because the Court concludes that Brinkley’s claims present new contexts, the Court

must next ask whether “there are any special factors that counsel hesitation” in extending

Bivens. See Hernandez, 140 S. Ct. at 743 (internal quotation marks and alterations

omitted) (quoting Abbasi, 137 S. Ct. at 1857). Although courts may consider various special

factors, see Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018) (citing Abbasi, 137 S. Ct. at

1856-63), two “are ‘particularly weighty’: availability of an alternative remedial structure and

separation-of-powers concerns,” see Mack v. Yost, 968 F.3d 311, 320 (3d Cir. 2020)

(quoting Bistrian, 912 F.3d at 90).

In Egbert, the Supreme Court reiterated its prior emphasis on the availability of

alternative remedies, further extending the Court’s longstanding view that “when alternative

methods of relief are available, a Bivens remedy usually is not,” see Abbasi, 582 U.S. at 145

(citing Bush v. Lucas, 462 U.S. 367, 386-88 (1983); Schweiker v. Chilicky, 487 U.S. 412,

425-26 (1988); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74 (2001); Minneci v.

Pollard, 565 U.S. 118, 125-26 (2012)). The BOP’s administrative remedy program provides

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an alternative process for seeking relief. See Malesko, 534 U.S. at 68 (holding that

“administrative review mechanisms” can provide “meaningful redress’—even if they do not

“fully remedy the constitutional violation”). And Egbert makes clear that the question for this

Court is not whether a Bivens damages remedy would be more effective, nor even whether

the existing remedy is sufficient. “So long as Congress or the Executive has created a

remedial process that it finds sufficient to secure an adequate level of deterrence, the courts

cannot second-guess that calibration by superimposing a Bivens remedy.” Egbert, 142 S.

Ct. at 1807. The existence of the BOP’s administrative remedy process “independently

forecloses” a Bivens remedy in this new context. /d. at 1806.

Assuming arguendo the BOP’s administrative remedy program does not constitute

an alternative remedy, the Court must still consider whether there are other factors—such

as separation-of-powers concerns—that weigh against creating a Bivens remedy to fill the

void. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The essential inquiry “is ‘who

should decide’ whether to provide for a damages remedy, Congress or the courts?” See

Abbasi, 582 U.S. at 135. Thus, any special-factors assessment must seek to discern

whether Congress would want the federal judiciary to impose “a new substantive legal

liability” in a particular case. /d. at 136. In Egbert, the Supreme Court stressed that “even

one” reason to believe the federal legislature is better equipped to provide a damages

remedy means a Bivens action cannot proceed. See Egbert, 142 S. Ct. at 1805.

Congress's silence, particularly when it has already legislated in a given sphere, can be

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“telling” in this analysis. See Abbasi, 582 U.S. at 144. The Supreme Court has suggested

that Congress's omission of a “standalone damages remedy against federal jailers” from the

Prison Litigation Reform Act (“PLRA”), enacted 15 years after Car/son, may imply a

congressional intent to limit Carlson's damages remedy to its context. See id. at 1865. The

Third Circuit Court of Appeals has disagreed with this notion and opined that Congress's

silence in the PLRA does not necessarily signal legislative intent that “a Bivens cause of

action should not exist at all.” See Bistrian, 912 F.3d at 93; see also Mack, 968 F.3d at 323-

24 (quoting Bistrian, 912 F.3d at 93). However, the Third Circuit has also observed,

“congressional silence on prison litigation can still counsel hesitation in some contexts,”

particularly wnen—as here—the alleged mistreatment is “different . . . than that alleged in

[Davis and] Carlson.” Mammana, 856 F. App’x at415.

The claims before the Court warrant hesitation. The Supreme Court has never

extended Bivens to the Fifth and Eighth Amendment claims before the Court. Based on the

foregoing, the Court concludes, as many courts have concluded,° that special factors weigh

5 See, e.g., Zavala v. Rios, 721 F. App’x 720, 721-22 (9th Cir. 2018) (declining to extend Bivens

to inmates’ Fifth Amendment due process claims); Louis-E/ v. Ebbert, 448 F. Supp. 3d 428, 439-41 (M.D.

Pa. 2020) (same); Mammana v. Barben, No. 20-2364, 2021 WL 2526847, at *4 (3d Cir. May 21, 2021)

(footnote omitted) (plaintiff alleging Eighth Amendment violation for confinement for four days “in a chilled

room with constant lighting, no bedding, and only paper-like clothing” did not state a Bivens claim, with the

Third Circuit noting plaintiff “asks for a new implied cause of action to sue federal prison officials for

unconstitutional conditions of confinement, a step never taken by the Supreme Court nor any circuit court’);

Hill v. Lappin, No. 3:11-cv-1609, 2021 WL 2222725, *3 (M.D. Pa. June 2, 2021) (noting that “courts began

to appreciate Abbasi’s watershed scope, [and] the better-reasoned authority has declined to recognize a

Bivens remedy for Eighth Amendment conditions-of-confinement . . .claims.”).

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against extending Bivens to these new contexts. The Court, therefore, declines to extend

Bivens to Brinkley’s Fifth and Eighth Amendment claims, and his claims will be dismissed.

IV. Leave to Amend

When a complaint fails to present a prima facie case of liability, district courts must

generally grant leave to amend before dismissing the complaint. See Grayson v. Mayview

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d

Cir. 2000). Specifically, the Third Circuit Court of Appeals has admonished that when a

complaint is subject to dismissal for failure to state a claim, courts should liberally grant

leave to amend “unless such an amendment would be inequitable or futile.” Phillips, 515

F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004)). The Court finds that

granting leave to amend would be futile based on the legal defects identified in Brinkley’s

complaint and amendment; further amendment would not cure the defects identified herein.

V. Federal Rule of Civil Procedure 4(m)

Rule 4(m) sets forth the following time frame a plaintiff has to serve a defendant with

the summons and copy of the complaint:

If a defendant is not served within 90 days after the complaint is filed, the

court -- on motion or on its own after notice to the plaintiff -- must dismiss the

action without prejudice against that defendant or order that service be made

within a specified time. But if the plaintiff shows good cause for the failure,

the court must extend the time for service for an appropriate period.

FED. R. Civ. P. 4(m). The John Doe Defendants were named in the complaint that was filed

on February 22, 2022 and, to date, have not been identified or served in this case. The

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Court must engage in a two-step process in determining whether to dismiss the unidentified,

non-served Defendants or grant Brinkley additional time to effect service. “First, the district

court should determine whether good cause exists for an extension of time. If good cause

is present, the district court must extend time for service and the inquiry is ended. If,

however, good cause does not exist, the court may in its discretion decide whether to

dismiss the case without prejudice or extend time for service.” Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Good cause requires good faith on the part

of the party seeking an enlargement and some reasonable basis for noncompliance with the

time specified in the rules. MC/ Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097

(3d Cir. 1995). In determining whether good cause exists, a court's “primary focus is on the

plaintiff's reasons for not complying with the time limit in the first place.” /d. Although

prejudice is a factor to be considered, the absence of prejudice to the opposing party alone

does not constitute good cause to excuse late service. /d.

In the present matter, Brinkley failed to establish good cause. After the expiration of

the ninety-day time period set forth in Rule 4(m), the Court notified Brinkley that the action

against the John Doe Defendants was subject to dismissal and directed him to show cause

why the action against these Defendants should not be dismissed pursuant to Rule 4(m).

(Doc. 42). In response to the Rule 4 show cause order, Brinkley states that he attempted to

obtain counsel for purposes of identifying the John Doe Defendants. (Doc. 46). However,

Brinkley's pro se status is not good cause to excuse his failure to timely identify or serve

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these Defendants. Veal v. United States, 84 F. App’x 253, 256 (3d Cir. 2004). Based upon

the lack of a reasonable explanation for his failure to adhere to the requirements of Rule 4,

the Court finds that Brinkley failed to establish good cause.

If a plaintiff cannot show good cause for his failure to serve the defendant within

ninety days, a district court may either dismiss the defendant, or exercise its discretion to

order that service be made within a specific time. Petrucelli, 46 F.3d at 1305; see also FED.

R. Civ. P. 4(m). It is Brinkley’s responsibility to properly identify all defendants, and provide

accurate mailing addresses for the defendants, in a timely fashion. (See Doc. 9 {| 7)

(advising Brinkley that failure to properly name a defendant, or provide an accurate mailing

address for a defendant, may result in dismissal of the claims against that defendant

pursuant to Federal Rule of Civil Procedure 4(m)).

In light of Brinkley’s lack of good faith effort to identify or serve the John Doe

Defendants, despite this Court's warning of the possible consequences, including dismissal,

the Court concludes that dismissal is appropriate under the present circumstances.

Accordingly, the non-identified, non-served Defendants will be dismissed from this action.

VI. Conclusion

Based on the foregoing, the Court will grant Defendants’ motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). (Doc. 44). The Court will also dismiss the

action against the John Doe Defendants pursuant to Federal Rule of Civil Procedure 4(m).

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A separate Order shall issue.

OY ova

1 “@AtCdh

Robert D. Mariani

United States District Judge

Dated: May j , 2023

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