Nazario v. Garland

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

:

RAUL NAZARIO,

:

Plaintiff ACTION NO. 3:22-CV-1366

:

v. (JUDGE MANNION)

:

MERRICK GARLAND and

SCOTT FINLEY, :

Defendants :

MEMORANDUM

Defendant Merrick Garland moves to dismiss Plaintiff Raul Nazario’s

complaint. Defendant Garland is the Attorney General of the United States,

and Defendant Scott Finley was the Warden and Chief Executive Officer of

the Federal Correctional Institution at Schuylkill County, Pennsylvania,

where Plaintiff was employed. Plaintiff alleges violations of the Rehabilitation

Act, Title VII of the Civil Rights Act of 1964, and the United States

Constitution.

I. BACKGROUND

A. Factual Background1

Plaintiff was employed as a Recreational Specialist at FCI Schuylkill.

(Doc. 1 ¶5). During his employment, his coworkers and supervisors

commented on his accent and Puerto Rican heritage. (Id. ¶¶101–02). His

coworkers also talked about the fact that Plaintiff drove a Mercedes, and they

criticized his interactions with Spanish-speaking inmates. (Id. ¶¶104–06).

In late January 2020, Plaintiff was diagnosed with localized

osteoarthritis in his right knee. (Id. ¶41). His treating physician initially

ordered temporary work restrictions until February 22, 2020. (Id. ¶¶45–46).

After Plaintiff was told by his supervisor that he would not be allowed to return

to work with restrictions, he obtained revised medical clearance to return

immediately without restrictions. (Id. ¶¶59–65). Another Recreation

Specialist, Adam Ducayne, was permitted to return to work in a “light duty”

position for several weeks after breaking his foot. (Id. ¶¶52–54).

Upon returning to work, Plaintiff was ordered to submit to a physical

search of his person and belongings. (Id. at ¶¶70–72). He was then

1 Because this is a motion to dismiss, the court must “accept all factual

allegations as true.” Bruni v. City of Pittsburgh, 824 F.3d 353, 360 (3d Cir.

2016). The factual background is therefore drawn from the Complaint. (Doc.

1).

reassigned to a position in the administration building. (Id. ¶76). Defendant

Finley told Plaintiff that he was being reassigned because he was under

investigation for misconduct. (Id. ¶80).

On March 18, 2020, Plaintiff participated in an EEO informal

counseling telephone interview with his attorney and an EEO counselor. (Id.

¶107). Later that day, he was asked to speak privately with his supervisor,

who said that “Management” had instructed him to warn Plaintiff about

“watching too much TV in the staff room.” (Id. ¶110–12).

In late November 2020, Defendant Finley received a copy of the report

of investigation for Plaintiff’s EEO complaint against him. (Id. ¶119). In early

December, Finley came to Plaintiff’s office and “verbally berated him” for not

wearing a mask. (Id. ¶120). Plaintiff submitted a memorandum to the union

president about the incident, and later that same day received a negative

performance entry ordered by Defendant Finley. (Id. ¶121–22). Plaintiff

made a complaint to the prison’s human resources manager, and Defendant

Finley thereafter “went out of his way to come to Plaintiff’s office to check on

Plaintiff every single day.” (Id. ¶124). Plaintiff submitted a complaint against

Finley to the Bureau of Prisons’ Northeast Regional Office in January 2021,

alleging harassment and retaliation. (Id. ¶125). Finley continued to come to

Plaintiff’s office every day. (Id. ¶128). Defendant Finley retired from BOP

service in September 2021. (Id. ¶131).

In February 2022, Plaintiff was interviewed by an agent of the United

States Office of Inspector General at the request of the new warden. (Id.

¶¶141, 143). The agent informed Plaintiff that he was subject to investigation

for suspected involvement in narcotics smuggling efforts at the prison. (Id.

¶144). He also told Plaintiff that the investigation had been sent back to

Defendant Finley multiple times but that Finley had referred the investigation

back to the OIG. (Id. ¶146). Plaintiff was notified in May 2022 that the

investigation was closed. (Id. ¶153).

B. Procedural History

Plaintiff initially contacted an EEO Counselor on February 28, 2020,

(Id. ¶17), and on March 18 participated in an EEO interview and requested

a 60-day extension of the EEO counseling period. (Id. ¶¶18–19). He received

a Notice of Right to File a Discrimination Complaint on May 28, 2020. (Id.

¶20). He submitted a formal complaint of discrimination on June 12, 2020.

(Id. ¶22). On August 4, 2021, he requested a final agency decision, which

decision remained unissued as of August 1, 2022. (Id. ¶¶25, 28).

Plaintiff filed a complaint (the “Complaint”) in this court on September

2, 2022. (Doc. 1). The Complaint brings the following claims against

Defendant Garland: (I) Rehabilitation Act – Failure to Provide Reasonable

Accommodation; (II) Rehabilitation Act – Disparate Treatment; (III)

Rehabilitation Act – Retaliation; (IV) Rehabilitation Act – Interference; (V)

Title VII of the Civil Rights Act – Disparate Treatment; (VI) Title VII –

Retaliation; and (VII) Title VII / Rehabilitation Act – Retaliatory Hostile Work

Environment. (Doc. 1 at 25–33). It brings the following claims against

Defendant Finley: (VIII) Fourth Amendment – Seizure / Investigatory

Detention; and (IX) Fourth Amendment – Warrantless Search. (Id. at 33–36).

Plaintiff seeks damages and demands a jury trial. (Id. at 36).

II. LEGAL STANDARD

In response to a complaint, a party may move for dismissal for “failure

to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

To survive dismissal, a complaint must make more than “conclusory or ‘bare-

bones’ allegations,” and “‘threadbare recitals of the elements of the cause of

action, supported by mere conclusory statements, do not suffice.’” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009)). Instead, the complaint must “set out

‘sufficient factual matter’ to show that the claim is facially plausible.” Id.

(quoting Iqbal, 556 U.S. at 678).

In considering the complaint, the court must apply a “two-part

analysis.” Id. “First,” the court “must accept all of the complaint’s well-pleaded

facts as true, but may disregard any legal conclusions.” Id. at 210–11.

“Second,” the court “must then determine whether the facts alleged in the

complaint are sufficient to show that the plaintiff has a plausible claim to

relief.” Id. at 211.

III. DISCUSSION

A. Defendants

Defendants are Merrick Garland and Scott Finley. Defendant Finley is

sued in his personal capacity. (Doc. 1 ¶9). Because the Complaint does not

allege any actions taken by Defendant Garland personally, the court

assumes that he is sued in his official capacity,2 as the Attorney General of

2 An official-capacity suit “generally represent[s] only another way of

pleading an action against the entity of which the officer is an agent.”

Kentucky v. Graham, 473 U.S. 159, 165 (1985). Such a suit “is … to be

treated as a suit against the entity.” Id. at 166. “Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.” FDIC

v. Meyer, 510 U.S. 471, 475 (1994). Here, Plaintiff sues Defendant Garland

under §501 of the Rehabilitation Act and Title VII of the Civil Rights Act of

1964. “Congress has waived the Federal Government’s sovereign immunity

from compensatory damages claims for violations of §501 of the

Rehabilitation Act,” Lane v. Pena, 518 U.S. 187, 193 (1996) (citing 29 U.S.C.

§794a(a)(1)), as well as for claims under Title VII. Libr. of Cong. v. Shaw,

478 U.S. 310, 323 (1986).

the United States and head of the United States Department of Justice, of

which the Bureau of Prisons and FCI Schuylkill are part.

B. Count I – Failure to Provide Reasonable Accommodation

“To establish a prima facie case of discrimination under the

Rehabilitation Act, a plaintiff must initially show, ‘(1) that he or she has a

disability; (2) that he or she is otherwise qualified to perform the essential

functions of the job, with or without reasonable accommodations by the

employer; and (3) that he or she was nonetheless terminated or otherwise

prevented from performing the job.’” Wishkin v. Potter, 476 F.3d 180, 184–

85 (3d Cir. 2007).

Defendant argues that Count I should be dismissed because Plaintiff

“fails to allege what specific accommodations he was seeking,” and thus has

not plead that he was qualified to perform the essential functions of his

position with or without reasonable accommodations. (Doc. 16 at 14). But

Plaintiff alleges that his physician initially cleared him to work with “physical

restrictions that included ‘no running, no restraints, squatting, kneeling.’”

(Doc. 1 ¶56). Those limitations were later revised, Plaintiff alleges, to just “no

running.” (Id. ¶60). Plaintiff has alleged what accommodations he was

seeking. He has plead that he is qualified to perform the essential functions

of his position with or without reasonable accommodations. (Id. ¶36).

Defendant’s motion to dismiss Count I will be denied.

C. Counts II–IV

Defendant argues that Counts II through IV should be dismissed for

the same reason as Count I: because Defendant has not alleged that he was

qualified to perform the essential functions of his position with or without

reasonable accommodations. (Doc. 16 at 14). As discussed supra Section

III.B, the court disagrees. It will therefore not dismiss on this basis.

The court concludes that Plaintiff has not failed to state a claim for relief

in Counts II–IV, so Defendant’s motion to dismiss these counts will be

denied.

1. Count II - Rehabilitation Act Disparate Treatment

Plaintiff has alleged that he was disabled by his knee injury, that he

was qualified to perform the essential functions of his position with or without

reasonable accommodations, and that he suffered an adverse employment

action by Management’s refusal to allow him to return to work with temporary

physical restrictions. He has also alleged that a similarly situated individual,

Specialist Ducayne, was treated differently. He has thus not failed to state a

Rehabilitation Act disparate treatment claim. See Luckiewicz v. Potter, 670

F. Supp. 2d 400, 407 (E.D. Pa. 2009).

2. Count III - Rehabilitation Act Retaliation

Plaintiff alleges that he engaged in a Rehabilitation Act protected

activity by requesting reasonable accommodations. He also alleges that his

employer took an adverse action by reassigning him shortly after this

request. This short interval suggests a causal connection between the

protected activity and the adverse action. Plaintiff has thus not failed to state

a Rehabilitation Act retaliation claim. See Lauren W. v. DeFlaminis, 480 F.3d

259, 267 (3d Cir. 2007).

3. Count IV - Rehabilitation Act Interference

Plaintiff alleges that Defendant violated Section 503 of the ADA, which

is incorporated by Section 501 of the Rehabilitation Act. 29 U.S.C. §791(f).

Section 503 of the ADA provides that:

It shall be unlawful to coerce, intimidate, threaten, or interfere

with any individual in the exercise or enjoyment of, or on account

of his or her having exercised or enjoyed, or on account of his or

her having aided or encouraged any other individual in the

exercise or enjoyment of, any right granted or protected by this

Act.

42 U.S.C. §12203(b).

The court concludes that Plaintiff has alleged that Defendant interfered

with his ADA right to reasonable accommodations by denying his request for

accommodations.

D. Count V - Title VII Disparate Treatment

A prima facie Title VII disparate treatment claim requires that a plaintiff

“show that (1) []he is a member of a protected class; (2) []he was qualified

for the position []he sought to retain; (3) []he suffered an adverse employment

action, and (4) the action occurred under circumstances that could give rise

to an inference of intentional discrimination.” Smith v. RB Distribution, Inc.,

498 F. Supp. 3d 645, 654 (E.D. Pa. 2020) (citing Makky v. Chertoff, 541 F.3d

205, 214 (3d Cir. 2008)).

1. Adverse employment action

Defendant contends that Plaintiff has not alleged that he suffered an

adverse employment action. (Doc. 16 at 15). An “adverse employment

action” in the Title VII context is “an action by an employer that is serious and

tangible enough to alter an employee’s compensation, terms, conditions, or

privileges of employment.” Jones v. Se. Pa. Transp. Auth., 796 F.3d 323,

326 (3d Cir. 2015).

Plaintiff alleges that because of the investigation he was indefinitely

reassigned to a position in the administrative building. (Id. ¶79). He alleges

that due to this reassignment, he “lost significant income in the form of

differential pay, holiday pay, overtime, and other additional income staff

would otherwise be entitled to earn on their normal duty assignment.” (Id.

¶163). Additionally, with regard to his request for an accommodation, Plaintiff

alleges that he was not permitted to return to work with temporary physical

restrictions as ordered by his physician. This denial of Plaintiff’s request

altered the conditions of his employment. He has thus alleged that he

suffered an adverse employment action.

2. Inference of intentional discrimination

Defendant also contends that Plaintiff has not plead facts sufficient to

show a discriminatory intent. (Doc. 16 at 16). Plaintiff alleges that the basis

for placing him under investigation and reassigning him was his interactions

with Spanish-speaking or Hispanic, Latino, or Puerto Rican inmates, which

interactions were “being evaluated or scrutinized differently because of

Plaintiff’s race/color and national origin.” (Doc. 1 ¶99). He also alleges that

supervisors “have made taunting comments about Plaintiff’s accent and the

way Plaintiff pronounces certain words in English,” and “about Plaintiff’s

Puerto Rican heritage.” (Doc. 1 ¶¶101–02).

Although in some circumstances, “[d]eragatory or negative remarks”

can give rise to an inference of intentional discrimination, May v. PNC Bank,

434 F. Supp. 3d 284, 296 (E.D. Pa. 2020) (citing Rossi v. Wyoming Valley

Health Care Sys., 2010 WL 2766343, at *4 (M.D. Pa. 2010)), “[s]tray remarks

by non-decisionmakers or by decisionmakers unrelated to the decision

process are rarely given great weight, particularly if they were made

temporally remote from the date of decision.” Pivirotto v. Innovative Sys., 191

F.3d 344, 359 (3d Cir. 1999). Plaintiff alleges that it was “Management” who

made the decisions not to allow him to return to work with temporary physical

limitations, (Doc. 1 ¶¶59, 64) and Defendant Finley’s decision to have him

removed from his Recreation Specialist position. (Id. ¶87). Plaintiff does not

allege that the derogatory comments toward him were made by the

decisionmakers who allegedly caused him to suffer adverse employment

actions. These comments are insufficient to support an inference of

intentional discrimination.

Such an inference can also be supported by “showing that similarly

situated individuals who were not members of the protected class were more

favorably treated than the plaintiff.” Mitchell v. City of Pittsburgh, 995 F.

Supp. 2d 420, 430 (W.D. Pa. 2014). Plaintiff does allege that in 2019,

Recreation Specialist Adam Ducayne (who, in construing the complaint’s

factual allegations in the light most favorable to Plaintiff, the court assumes

is not a member of the same protected class), was permitted to work in a

“light duty” position for several weeks after breaking his foot. (Doc. 1 ¶¶52–

54). Although Plaintiff has not alleged that Ducayne worked for the same

supervisor, he alleged that the decision to allow Ducayne to work in a “light

duty” position was made by “Management.” Because they held the same

position, were subject to decisions by the same “Management,” and suffered

similarly severe injuries, Ducayne and Plaintiff were similarly situated for

purposes of the Complaint’s allegation of disparate treatment.

The more favorable treatment of Ducayne is sufficient for an inference

of intentional discrimination, but only with respect to Management’s refusal

to permit Plaintiff to work with temporary physical restrictions. Because

Plaintiff has not alleged circumstances that could give rise to an inference of

intentional discrimination in connection with his reassignment, he has failed

to state a claim of disparate treatment with respect to that reassignment.

Thus, Defendant’s motion will be granted to the extent that Plaintiff claims

disparate treatment with respect to his reassignment, but denied to the extent

that Plaintiff claims disparate treatment with respect to Management’s

refusal to permit him to work with temporary restrictions.

E. Count VI – Title VII Retaliation

A Title VII retaliation plaintiff must plead “sufficient factual allegations

to raise a reasonable expectation that discovery will reveal evidence of the

following elements: (1) she engaged in conduct protected by Title VII; (2) the

employer took adverse action against her; and (3) a causal link exists

between her protected conduct and the employer’s adverse action.” Connelly

v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016).

Defendant asserts that Plaintiff has not alleged a causal link between

protected conduct and an adverse action. (Doc. 16 at 18). Title VII prohibits

discrimination against an employee for the reason that “he opposed … an

unlawful employment practice … or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. §2000e-3(a). Thus, “the anti-

retaliation provision of Title VII protects those who participate in certain Title

VII proceedings (‘the participation clause’) and those who oppose

discrimination made unlawful by Title VII (‘the opposition clause’).” Moore v.

City of Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006).

First, Plaintiff’s allegation that “Management had knowledge of

Plaintiff’s prior EEO activity,” specifically, a 2018–2019 EEO complaint

against the United States Attorney’s Office in Newark, New Jersey, (Doc. 1

¶¶32, 34), is insufficient to raise a reasonable expectation that discovery will

reveal evidence of a causal link between that activity and subsequent

adverse employment actions. Plaintiff’s complaints against a different

agency, in a different state, are too far removed from the present allegations

for the court to consider a causal link plausible. In addition, although Plaintiff

alleges that during his FCI Schuylkill employment he participated in an EEO

informal counseling interview, (Doc. 1 ¶108), that interview came after

Management’s refusal to permit him to work with temporary physical

restrictions and his reassignment.

But Plaintiff also alleges he received a negative performance entry,

which was ordered by Defendant Finley, after he submitted complaints about

Finley. (Id. ¶¶119–22) The court concludes that these allegations are

sufficient to suggest a causal link between protected activity and adverse

action. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53,

67–68 (2006) (“The [Title VII] antiretaliation provision protects an individual

not from all retaliation, but from retaliation that produces an injury or harm

…. a plaintiff must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means it well

might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” (internal quotations omitted)).

Therefore, Defendant’s motion to dismiss Count VI will be denied.

F. Count VII – Retaliatory Hostile Work Environment (Title

VII & Rehabilitation Act)

Defendant argues that Plaintiff’s retaliatory hostile work environment

claim should be dismissed (1) because he failed to exhaust his administrative

remedies for this claim, (Doc. 16 at 12), and (2) because he did not

sufficiently plead severe or pervasive conduct. (Id. at 19).

1. Exhaustion of Administrative Remedies

Before bringing suit for retaliation under Title VII or the Rehabilitation

Act, a plaintiff must exhaust Title VII administrative remedies. Robinson v.

Dalton, 107 F.3d 1018, 1020–21 (3d Cir. 1997); Spence v. Straw, 54 F.3d

196, 201 (3d Cir. 1995). In general, “exhaustion requires both consultation

with a counselor and filing a formal EEOC complaint within the required

times.” Robinson, 107 F.3d at 1021. Once the EEOC has dismissed the

charge, or 180 days have passed since its filing, a civil action may be filed.

42 U.S.C. §2000e-5(f)(1); 29 C.F.R. §1614.107.

Where, like here, a plaintiff brings several claims, disagreement may

arise as to which ones have actually been exhausted. “The ‘relevant test’ for

determining whether a later claim needs to be exhausted despite the filing of

a previous charge is a two-pronged inquiry into whether ‘the acts alleged in

the subsequent suit are fairly within the scope of [1] the prior EEOC

complaint, or [2] the investigation arising therefrom.” Simko v. United States

Steel Corp., 992 F.3d 198, 207 (3d Cir. 2021) (quoting Waiters v. Parsons,

729 F.2d 233, 237 (3d Cir. 1984)). With regard to the second prong, the court

“must only look at the scope of the EEOC investigation that would reasonably

grow out of, or arise from, the initial charge filed with the EEOC, ‘irrespectve

of the actual content of the Commission’s investigation.’” Id. at 209. In

“determining whether a claim fairly or reasonably falls within the investigation

arising from a charge, courts consider (1) whether the claim arises from the

same set of facts that support the original charge and (2) whether the claim

advances the same theory of discrimination as the original charge.” Id.

Defendant asserts that Plaintiff did not raise a hostile work environment

claim in his EEOC complaint. (Doc. 16 at 12). Defendant has attached the

Report of Investigation concerning Plaintiff’s EEOC complaint. (Doc. 16-1).3

In that complaint, Plaintiff alleged that from January 28, 2020 through

February 7, 2020, he was (1) denied a reasonable accommodation by

management’s refusal to permit him to work with restrictions, (2) subjected

to disparate treatment by that refusal, (3) and subjected to discrimination

when he was reassigned to a different job and placed under investigation for

misconduct. (Id. at 2). He also alleges that on March 18, 2020, he was

subjected to retaliation after participating in an EEO counseling interview

when he was warned about watching too much TV during work. (Id. at 3).

3 The Report details Plaintiff’s allegations, but the memorandum

describing them submitted by Plaintiff with his EEOC complaint has not been

provided.

In sum, he alleged that he faced retaliation at work for engaging in

protected activities. Although he does not specifically allege a “hostile work

environment,” his claim that he was subjected to a retaliatory hostile work

environment advances a closely related theory of discrimination. Given that

he alleged a pattern of discrimination and retaliation by his supervisors, it is

reasonable to expect that investigation of further instances of a hostile work

environment would grow out of his charge. By these allegations, Plaintiff’s

supervisors can fairly be said to have been “put on notice” of a retaliatory

hostile work environment claim. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.

1996).

Defendant further contends that some of the instances of retaliation

alleged by Plaintiff occurred after the investigation of his EEOC complaint

concluded. (Doc. 16 at 12). But the exhaustion inquiry does not depend on

what investigation actually took place. See Simko, 992 F.3d at 207. Because

Plaintiff’s retaliatory hostile work environment claims are within the scope of

the investigation that would have reasonably grown out of his EEOC

complaint, the court concludes that they have been administratively

exhausted.

2. Failure to state a claim

A retaliatory hostile work environment claim requires a plaintiff to prove

that “(1) [he] he suffered intentional discrimination because of [his] protected

activity; (2) the discrimination was severe or pervasive; (3) the discrimination

detrimentally affected [him]; (4) it would have detrimentally affected a

reasonable person in like circumstances; and (5) a basis for employer liability

is present.” Komis v. Sec. of U.S. Dep’t Lab., 918 F.3d 289, 293 (3d Cir.

2019). Defendant argues that Plaintiff “cannot show [that] management’s

actions were tied to any of his prior alleged protected activity” and has not

alleged severe or pervasive discrimination. (Doc. 16 at 20).

As to Plaintiff’s Title VII claim: He alleges that after Defendant Finley

received a copy of the report of investigation, he “berated” Plaintiff for not

wearing a mask. (Doc. 1 ¶119–20). He also alleges that after he complained

about this incident, he received a negative performance entry ordered by

Defendant Finley, (Id. ¶121–22), and that Defendant Finley “went out of his

way to come to Plaintiff’s office to check on Plaintiff every single day.” (Id.

¶124). The court concludes that Plaintiff has alleged pervasive discrimination

by prison management which would have detrimentally affected a

reasonable person in like circumstances.

As to Plaintiff’s Rehabilitation Act claim: a request for an

accommodation for a disability is a protected activity under the Rehabilitation

Act. See Minter v. Dist. of Columbia, 809 F.3d 66, 70 (D.C. Cir. 2015); Coons

v. Sec. of U.S. Dep’t Treasury, 383 F.3d 879, 887 (9th Cir. 2004). Plaintiff

alleges that, following his knee injury, he asked to return to work with

temporary physical restrictions. (Doc. 1 ¶47). His request was denied, and

shortly thereafter, he was reassigned to an administrative position. (Id. ¶76).

He alleges that this reassignment, which lasted more than two years,

resulted in lost income. (Id. ¶163). The court concludes that Plaintiff has

alleged protected activity and sufficiently severe or pervasive discrimination,

and that the close temporal proximity between these two provides a plausible

causal link.

For these reasons, Defendant’s motion to dismiss Count VII will be

denied.

G. Count VIII and IX - Fourth Amendment - Seizure /

Investigatory Detention / Search

Plaintiff’s next two counts are against Defendant Finley. Defendant

argues that these should be dismissed for insufficient service of process,

(Doc. 16 at 6), and failure to state a claim. (Doc. 16 at 6–12).

1. Service of Process on Defendant Finley

A defendant must be served within 90 days after the complaint is filed.

Fed. R. Civ. P. 4(m). Service may be effected by “(A) delivering a copy of the

summons and of the complaint to the individual personally; [or] (B) leaving a

copy of each at the individual’s dwelling or usual place of abode with

someone of suitable age and discretion who resides there.” Fed. R. Civ. P.

4(e)(2). “[T]he party asserting the validity of service bears the burden of proof

on that issue.” Grand Ent. Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476,

488 (3d Cir. 1993).

Defendant asserts that “Warden Finley reported he has not received

service of the Complaint in this matter.” (Doc. 16 at 6). An affidavit filed by

Plaintiff, sworn by process server Frank Smith, avers that the summons and

the complaint was left with an adult at Defendant Finley’s address. (Doc. 5;

Doc. 22-2 at 5:20–22). The court concludes that Plaintiff has satisfied his

burden of proof regarding effective service of process. See J & J Sports

Prods., Inc. v. Graham, 2014 WL 1340622, at *3 (E.D. Pa. 2014) (“[C]ourts

in this district have concluded that return of service by a private process

server creates a rebuttable presumption that proper service was

effectuated.”).

2. Failure to state a claim

The Fourth Amendment guards “[t]he right of the people to be secure

in their persons, houses, papers and effects, against unreasonable searches

and seizures.” U.S. Const. amend. IV. Plaintiff claims that Defendant Finley

violated the Fourth Amendment by subjecting him to a warrantless (Count

VIII) seizure (by “reassing[ing] Plaintiff to a different position and restrict[ing]

his access to the secure perimeter of FCI Schuylkill solely because of his

status as the uncharged target of a criminal investigation”), and (Count IX)

search (by ordering that he be physically searched at the security entrance

to the prison.) (Doc. 1 ¶¶71, 242, 251). He brings these Fourth Amendment

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

(1971), which allowed a claim for damages against federal officers for

violating the Fourth Amendment.

Recently, the Supreme Court has “emphasized that recognizing a

cause of action under Bivens is a ‘disfavored judicial activity.’” Egbert v.

Boule, 596 U.S. 482, 491 (2022) (quoting Ziglar v. Abassi, 582 U.S. 120, 135

(2017)). It has “framed the inquiry as proceeding in two steps.” Id. at 492.

“First,” the court asks “whether the case presents ‘a new Bivens context’—

i.e., is it ‘meaningfully’ different from the three cases in which the Court has

implied a damages action.” Id. (quoting Ziglar, 582 U.S. at 139). “Second, if

a claim arises in a new context, a Bivens remedy is unavailable if there are

‘special factors’ indicating that the Judiciary is at least arguably less

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

damages action to proceed.’” Id. (quoting Ziglar, 582 U.S. at 136). “If 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 v.

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

The court agrees with Defendant both that this case presents a new

Bivens context and that special factors weigh against recognizing a Bivens

remedy here.

First, unlike Bivens, in which federal agents entered the plaintiff’s

residence, arrested him, “manacled” him “in front of his wife and children,

and threatened to arrest the entire family,” 403 U.S. at 189, the alleged

search and seizure here occurred at Plaintiff’s place of employment, in the

form of a security search and reassignment to a position in another building.

That is a new context. The Bivens search and seizure occurred within the

home, which, “when it comes to the Fourth Amendment, … is first among

equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). And the agents there

allegedly used excessive force. The court concludes that these facts

meaningfully distinguish this case from Bivens.4

The fact that Plaintiff’s claims are based on the Fourth Amendment is

not enough to bring them within the scope of Bivens, for “[a] claim may arise

in a new context even if it is based on the same constitutional provision as a

claim in a case in which a damages remedy was previously recognized.”

Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). Indeed, courts have found

new Bivens contexts where a Fourth Amendment violation has been alleged.

See Egbert, 596 U.S. at 493 (“The Court of Appeals conceded that Boule’s

Fourth Amendment claim presented a new context for Bivens purposes.”);

Xi v. Haugen, 68 F.4th 824, 834 (3d Cir. 2023) (“[T]he differences between

Bivens and this case make clear that Xi’s Fourth Amendment claims arise in

a context the Supreme Court has not previously countenanced.”); Weir v.

FBI, 2023 WL 7018415, at *6 (W.D. Pa. 2023); Karkalas v. Marks, 2019 WL

3492232, at *9 (E.D. Pa. 2019).

For the second step, the court considers Count VIII and IX separately.

4 The other two contexts in which the Court has fashioned a private

cause of action under the Constitution involved alleged violations of the Fifth,

Davis v. Passman, 442 U.S. 228 (1979), and Eighth, Carlson v. Green, 446

U.S. 14 (1980), amendments. Egbert, 596 U.S. at 490–91. Because this case

implicates the Fourth Amendment, Bivens is the only relevant comparator.

Count VIII alleges that Defendant Finley’s “actions to reassign Plaintiff

to a different position and restrict his access to the secure perimeter of FCI

Schuylkill solely because of his status as the uncharged target of a criminal

investigation, amounted to a seizure subject to the requirements of the

Fourth Amendment.” (Doc. 1 ¶242). Special factors indicate that Congress

is better equipped to weigh the costs and benefits of allowing a damages

action in a context like this one. For one thing, the alleged violations occurred

in the context of a supervisor-employee relationship. Congress has enacted

extensive legislation, like the Rehabilitation Act and Title VII of the Civil

Rights Act, protecting employees from wrongful treatment by their

employers. And although Defendant Finley is a law enforcement officer, in

reassigning Defendant to a different position and restricting his access to

other areas of the facility, he would have been acting as his supervisor.

Congress’ activity in the area of workplace conduct suggests that it is better

equipped to assess the wisdom of allowing a damages action for conduct

alleged in this context.

Next, in Count IX, Plaintiff alleges that Defendant Finley’s actions to

order a warrantless search of his person violated his rights under the Fourth

Amendment. (Doc. 1 ¶255). According to the Complaint, on February 7,

2020, after Plaintiff arrived at work and went through security, he was told to

go into a private search area, where he was subjected to “an invasive

physical search of his person and all of his belongings.” (Id. ¶¶71–72). “This

was,” he alleges, “the first time Plaintiff had ever been searched coming into

work in almost 10 years working in the Federal Bureau of Prisons.” (Id. ¶73).

Like most federal buildings, FCI Schuylkill has a security screening

area. At such areas, like at airports, entrants routinely submit to searches of

their persons and belongings. And screening at federal prisons, where

violence and attempts to smuggle contraband are all too common, serves an

especially important safety purpose. These considerations provide reason to

hesitate before recognizing a Bivens action in such a context. Given the

ubiquity of security screening and the important interest in safety it

implicates, it is at least arguable that Congress is better equipped to weigh

the costs and benefits of permitting private damages suits for alleged

searches in this context.

For these reasons, the court concludes that Plaintiff’s Fourth

Amendment claims present a new Bivens context and that special factors

weigh against recognizing a remedy for them under Bivens. Therefore,

Defendant’s motion to dismiss Counts VIII and IX will be granted.

IV. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss will be

denied as to Counts I through IV, Count VI, and Count VII. As to Count V,

the motion to dismiss will be granted to the extent that Plaintiff claims

disparate treatment with respect to his reassignment, but denied to the extent

that Plaintiff claims disparate treatment with respect to Management’s

refusal to permit him to work with temporary restrictions. Finally, the motion

to dismiss will be granted as to Counts VIII and IX. An appropriate order will

follow.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: January 5, 2024

22-1366-01