Morrison v. Wilson

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

KLEE MORRISON, '

(TDCJ No. 11556-059) '

'

Plaintiff, '

'

v. ' Civil Action No. 4:20-cv-00222-O

'

ERIC D. WILSON (Warden) et al., '

'

Defendants. '

OPINION AND ORDER

Before the Court are Defendants’ Motion to Dismiss (ECF No. 19), filed June 1, 2021;

Plaintiff’s response thereto (ECF No. 22), filed June 22, 2021; Plaintiff’s Request for Appointment

of Counsel (ECF No. 21), filed June 22, 2021; and Plaintiff’s Motion to Suspend Filing Fees (ECF

No. 22), filed June 22, 2021. Having considered the pleadings, legal briefing, record, and

applicable law, and for the reasons that follow, the Court GRANTS Defendants’ Motion to

Dismiss (ECF No. 19); DENIES Plaintiff’s Request for Appointment of Counsel (ECF No. 21);

and DENIES Plaintiff’s Motion to Suspend Filing Fees (ECF No. 22).

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On March 9, 2020, pro se Plaintiff Klee Morrison (“Morrison”), who was incarcerated with

the federal Bureau of Prisons (“BOP”) at Federal Medical Center, Fort Worth, Texas (“FMC-Fort

Worth”), filed this civil rights complaint seeking monetary and injunctive relief. Pl.’s Compl., ECF

No. 1. On July 27, 2020, Morrison filed an Amended Complaint, the live pleading. Pl.’s Am.

Compl., ECF No. 7. Insofar as he seeks monetary relief, this action is brought pursuant to Bivens

v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1

Morrison has been permitted to proceed in forma pauperis. Because Morrison is

proceeding pro se in this matter, the Court liberally construes his pleadings. Andrade v. Gonzales,

459 F.3d 538, 543 (5th Cir. 2006); Haines v. Kerner, 404 U.S. 519 (1972).2

In his Amended Complaint, Morrison alleges he was being housed in a “zero ventilation

room over 200% rated capacity” at FMC-Fort Worth. Am. Compl. ¶ IV, ECF No. 7. He further

alleges prison authorities transferred him into this room “for unwarranted punishment” and that

the room was “used for torture,” allegedly as a punitive or retaliatory measure in response to

Morrison’s failure to keep his prior cell clean. Id. ¶¶ IV, V, ECF No. 7. Morrison names as

defendants the former warden of FMC-Fort Worth, Eric D. Wilson (“Wilson”), and B.P. Waller

(“Waller”), whom he identifies as a “unit manager” of the housing unit. Id. ¶ IV, ECF No. 7. With

respect to the relief he seeks from the Court, Morrison asserts that he “want[s] people responsible

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that

federal officers acting under color of law are liable for damages for certain violations of the United States

Constitution).

2 The court is mindful of the extent to which it must go in construing the pleadings of a non-lawyer but

must also remember the limits of liberal construction. Morrison’s pro se status does not exempt him from

the requirement that he comply with relevant rules of procedural and substantive law, including Rule 8’s

pleading requirements. See Hulsey v. Tex., 929 F.2d 168, 171 (5th Cir. 1991); Boswell v. Honorable

Governor of Texas, 138 F. Supp. 2d 782, 785 (N.D. Tex. 2000) (Mahon, J.) (“While a complaint need not

outline all the elements of a claim, the complaint must be comprehensible and specific enough to draw the

inference that the elements exist.”). The court does not excuse the failure to make any argument; nor does

the requirement for liberally construing a petition give the court license to raise issues that the pro se litigant

has omitted. See, e.g., Johnson v. Quarterman, 479 F.3d 358 (5th Cir. 2007) (Pro se briefs are entitled to

liberal construction, but even pro se litigants must brief arguments in order to preserve them.); Smith v.

CVS Caremark Corp., 3:12-cv-2465-B, 2013 WL 2291886, at *8 (N.D. Tex. May 23, 2013) (Boyle, J.)

(But “liberal construction does not require that the Court . . . create causes of action where there are

none[.]”).

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for this torture fired and compensation for the suffering, and long term effects of living in these

conditions.” Id. ¶ VI, ECF No. 7. In addition, in an attachment to his Amended Complaint, he

states that he wishes to be “moved to a room with ventil[]ation.” Ex. A to Am. Comp., ECF No.

7.

After screening his Amended Complaint pursuant to 28 U.S.C. §§ 1915A(b) and

1915(e)(2)(B), the Court permitted Morrison to obtain service of his claims against Defendants.

See Order Regarding Completion and Service of Summons (ECF No. 12).

On June 1, 2021, Defendants moved to dismiss all claims pursuant to Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). See Defs.’ Mot. Dismiss, ECF No. 19. On June 22, 2021,

Morrison filed correspondence which the Court liberally construed as Plaintiff’s response to

Defendants’ Motion to Dismiss. See Pl.’s Resp., ECF No. 22. He also filed a Request for

Appointment of Counsel (ECF No. 21) and a Motion to Suspend Filing Fees (ECF No. 22).

II. LEGAL STANDARDS

A. Case or Controversy Requirement

Federal courts are courts of limited jurisdiction and must have statutory or constitutional

power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994)

(citations omitted); Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010

(5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power

to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.;

Stockman v. Federal Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v.

United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994) ). The court cannot assume that it has

jurisdiction; rather, “the basis upon which jurisdiction depends must be alleged affirmatively and

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distinctly and cannot be established argumentatively or by mere inference.” Getty Oil Corp. v. Ins.

Co. of N.A., 841 F.2d 1254, 1259 (5th Cir. 1988) (citing Illinois Cent. Gulf R.R. Co. v. Pargas,

Inc., 706 F.2d 633, 636 n.2 (5th Cir. 1983)).

Article III of the United States Constitution limits federal jurisdiction to actual “[c]ases”

and “[c]ontroversies.” U.S. Const. art. III, § 2. “[C]ourts may not decide cases that since have

become moot because there is no longer a live case or controversy.” Tex. v. EEOC, 933 F.3d 433,

449 (5th Cir. 2019). The requirement that there be a case-or-controversy “subsists through all

stages of federal judicial proceedings, trial and appellate. [I]t is not enough that a dispute was very

much alive when suit was filed; the parties must continue to have a personal stake in the ultimate

disposition of the lawsuit.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (internal citation and

quotation marks omitted). A case becomes moot when “it is impossible for a court to grant any

effectual relief whatever to the prevailing party.” Knox v. Serv. Emp. Int’l Union, Loc. 1000, 567

U.S. 298, 307 (2012) (internal quotation marks omitted).

With mootness, a plaintiff must demonstrate that he has a personal stake in the outcome of

the litigation, and it continues through “all stages of review, not merely at the time the complaint

is filed. A case that becomes moot at any point during the proceedings is . . . outside the jurisdiction

of the federal courts.” United States v. Sanchez-Gomez, __ U.S. __, 138 S. Ct. 1532, 1537 (2018)

(citation and quotation marks omitted).

B. Fed. R. Civ. P. 12(b)(1)

In considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, “a

court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts

evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court’s

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resolution of disputed facts.” Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420,

424 (5th Cir. 2001) (citation omitted). When a motion to dismiss for lack of subject matter

jurisdiction is supported by evidence, it is considered a factual attack, and “no presumptive

truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not

preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Williamson

v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). The court is therefore “free to weigh the evidence

and satisfy itself as to the existence of its power to hear the case.” Id. In response to a factual

attack, the plaintiff, as the party seeking to invoke jurisdiction, has the burden of submitting

evidence and proving by a preponderance of the evidence the existence of subject matter

jurisdiction. Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Regardless of whether

the attack is facial or factual, the party asserting federal jurisdiction “constantly bears the burden

of proof that jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001) (per curiam).

Here, Defendants raise a factual challenge to the Court’s subject matter jurisdiction.

C. Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 8(a) requires a claim for relief to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Rule

8 does not require detailed factual allegations, but “it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a plaintiff fails to satisfy Rule

8(a), the defendant may file a motion to dismiss the plaintiff’s claims under Federal Rule of Civil

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Procedure 12(b)(6) for “failure to state a claim upon which relief may be granted.” FED. R. CIV. P.

12(b)(6).

To defeat a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must plead “enough

facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

663 (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”

Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).

In reviewing a Rule 12(b)(6) motion, the Court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mut. Auto. Ins. Co., 509 F.3d 673, 675 (5th Cir. 2007). The Court is not bound to accept legal

conclusions as true, and only a complaint that states a plausible claim for relief survives a motion

to dismiss. Iqbal, 556 U.S. at 678-79. When there are well-pleaded factual allegations, the Court

assumes their veracity and then determines whether they plausibly give rise to an entitlement to

relief. Id.

“Generally, a court ruling on a 12(b)(6) motion may rely on the complaint, its proper

attachments, documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.

2011) (citations omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

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(2007). A court may also consider documents that a defendant attaches to a motion to dismiss if

they are referred to in the plaintiff’s complaint and are central to the plaintiff’s claims. Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000).

III. ANALYSIS

A. Defendants’ Motion to Dismiss

1. Rule 12(b)(1)

Pursuant to Federal Rule of Civil Procedure 12(b)(1), Defendants raise a factual challenge

to the subject matter jurisdiction of this Court. They contend Morrison’s request for injunctive

relief is moot because he is no longer incarcerated at FMC-Fort Worth. For the reasons that follow,

the Court agrees that it lacks subject matter jurisdiction over Morrison’s request for injunctive

relief and will dismiss his claims seeking injunctive relief.

The undisputed evidence shows that on or about March 11, 2021, Morrison was transferred

out of FMC-Fort Worth and now resides at a halfway house in the Phoenix, Arizona area in

anticipation of his upcoming release upon the completion of his sentence, which release date is

currently projected to be September 1, 2021. See ECF No. 15 (change of address notice with

Arizona address); see also Fed. Bureau of Prisons, Find an Inmate,

https://www.bop.gov/inmateloc/ (search for Klee Morrison as of June 30, 2021, shows current

location in Phoenix and a projected release date of September 1, 2021).

When an inmate challenges the conditions of his confinement, his transfer from the

allegedly offending institution generally renders moot any claims for non-monetary relief. See

Edwards v. Johnson, 209 F.3d 772, 776 (5th Cir. 2000) (citations omitted). These non-monetary

claims may avoid becoming moot only when there is a “demonstrated probability” or a “reasonable

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expectation” that the inmate will be returned to the institution in question. Oliver v. Scott, 276 F.3d

736, 741 (5th Cir. 2002) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). This is a narrow

exception; the mere possibility of a later transfer back to the facility is too speculative to keep a

moot claim alive. Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (citations omitted).

In this case, Morrison is nearing the completion of his sentence and the Court concludes

that he has demonstrated no probability that he will be returned to FMC-Fort Worth in the future.

For these reasons, Morrison has failed to meet his burden of proof to show a live case or

controversy and his request for injunctive relief pertaining to his conditions of confinement at

FMC-Fort Worth is, therefore, moot. Accordingly, the Court will grant Defendants’ Motion to

Dismiss Morrison’s claims for injunctive relief pursuant to Federal Rule of Civil Procedure

12(b)(1) and will dismiss these claims as moot.

2. Rule 12(b)(6)

Defendants moves to dismiss Morrison’s claims for compensatory damages pursuant to

Federal Rule of Civil Procedure 12(b)(6) on numerous alternative grounds including, without

limitation, that his claims (i) are not cognizable under Bivens; and (ii) are barred by the Prison

Litigation Reform Act because he has not pleaded a physical injury. Defs.’ Mot. Dismiss 4, ECF

No. 19. Additionally, with respect to Morrison’s claims against Wilson, Defendants contend

dismissal is required because Morrison has failed to adequately allege that Wilson was personally

involved in the alleged constitutional violation or in implementing a policy that resulted in the

alleged violation.3 The Court addresses these arguments in turn.

3 Defendants, in the alternative, also contend dismissal is required because Morrison has failed to overcome

Defendants’ entitlement to qualified immunity. Because the Court concludes that Defendants’ motion to

dismiss should be granted on other grounds set forth in their motion, it need not reach this argument.

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a. Bivens does not Extend to Morrison’s Claims for Monetary Relief

against Defendants Sued in their Individual Capacities

Morrison seeks monetary relief under Bivens based on alleged constitutional violations by

federal actors. Given the context of this case, however, as Defendants correctly argue, his Bivens

claims cannot succeed and must be dismissed.4

Bivens, unlike 42 U.S.C. § 1983 (applicable to state actors), is not a Congressional statute

that “entitles an injured person to money damages if a state official violates his or her constitutional

rights.” Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843, 1854 (2017) (“Congress did not create an

analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did

not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by

agents of the Federal Government.”).

The United States Supreme Court “has approved of an implied damages remedy under the

Constitution itself” only three times – in Bivens, to enforce “a damages remedy to compensate

persons injured by federal officers who violated the prohibition against unreasonable search and

seizures” in violation of the Fourth Amendment; in Davis v. Passman, 442 U.S. 228 (1979),

4 Insofar as Morrison may be seeking monetary damages against Defendants in their official capacities, this

claim is barred by sovereign immunity. Lawsuits against federal employees in their official capacities are

treated as lawsuits against the United States. See Ischy v. Miles, 75 F. App’x 257, 258 (5th Cir. 2003) (citing

Kentucky v. Graham, 473 U.S. 159, 166 (1985)). Suits against the United States are generally barred by

sovereign immunity. Id. (citing Affiliated Prof’l Home Health Care Agency v. Shalala, 164 F.3d 282, 286

(5th Cir. 1999)). “The basic rule of federal sovereign immunity is that the United States cannot be sued at

all without the consent of Congress.” Block v. N.D. ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287

(1983). “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.”

FDIC v. Meyer, 510 U.S. 471, 475 (1994). Since federal sovereign immunity is jurisdictional in nature, the

consent or waiver must be unequivocally expressed. Freeman v. United States, 556 F.3d 326, 335 (5th Cir.

2009). Plaintiff has the burden to show an “unequivocal waiver of sovereign immunity.” St. Tammany

Parish ex rel. Davis v. FEMA, 556 F.3d 307, 315 (5th Cir. 2009). He has not pleaded any waiver. In

addition, the government has not waived sovereign immunity for claims for money damages based on

alleged violations of the Constitution. Garcia v. United States, 666 F.2d 960, 966 (5th Cir. Unit B 1982);

Brown v. United States, 653 F.2d 196, 199 (5th Cir. Unit A 1981).

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holding “that the Fifth Amendment Due Process Clause gave [a Congressman’s administrative

assistant] a damages remedy for gender discrimination”; and in Carlson v. Green, 446 U.S. 14

(1980), holding “that the Eighth Amendment Cruel and Unusual Punishments Clause gave [a

prisoner] a damages remedy for failure to provide adequate medical treatment.” Abassi, 137 S. Ct.

at 1854-55; see id. at 1855 (“These three cases—Bivens, Davis, and Carlson—represent the only

instances in which the Court has approved of an implied damages remedy under the Constitution

itself.”). Further, the Supreme Court “has ‘never held that Bivens extends to First Amendment

claims.’” Butler v. S. Porter, No. 19-30029, __ F.3d __, 2021 WL 2221463, at *3 (5th Cir. June

2, 2021) (quoting Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012)).

The Supreme Court has developed a two-part test to determine if a Bivens claim may

proceed. Abbasi, 137 S. Ct. 1843, 1843 (2017). Because Bivens is a judicially crafted remedy, and

not a statutory one like 42 U.S.C. § 1983, courts should consider (1) whether the case “presents a

new context” and, if it does, (2) whether “there are any special factors that counsel hesitation about

granting the extension.” Byrd v. Lamb, 990 F.3d 879, 881 (5th Cir. 2021) (finding “the Bivens

question is antecedent” to other issues in a case, including qualified immunity (internal quotations

and citations omitted)). The Supreme Court has also strongly counseled against extending Bivens

to new contexts, Hernandez v. Mesa, 140 S. Ct. 735, 744 (2020), and repeatedly held that such

extensions are “a ‘disfavored’ judicial activity.” Abassi, 137 S. Ct. at 1857; see also Oliva v. Nivar,

973 F.3d 438, 442 (5th Cir. 2020) (“Bivens was the product of an ‘ancient regime’ that freely

implied rights of action” and that “ended long ago.”) (emphasis in original), cert. denied, 2021 WL

2044553, at *1 (U.S. May 24, 2021).

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1. Morrison’s Claims Represent a New Bivens Context

For purposes of implying a damages remedy under the Constitution, a proposed Bivens

claim is “new” if the “case is different in a meaningful way from previous Bivens cases” in which

the Supreme Court had recognized a Bivens remedy. Abassi, 137 S. Ct. at 1859. “Virtually

everything else is a ‘new context’” and the “understanding of a ‘new context’ is broad” . . .

“because ‘even a modest extension’ of the Bivens trilogy ‘is still an extension.’” Oliva, 973 F.3d

at 442 (citations omitted). The types of differences that are meaningful enough to make the context

“new” are myriad and include “the rank of the officers involved; the constitutional right at issue;

the generality or specificity of the official action; the extent of judicial guidance as to how an

officer should respond to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary

into the functioning of other branches; or the presence of potential special factors that previous

Bivens cases did not consider.” Abassi, 137 S. Ct. at 1860. Moreover, “it is not enough even if ‘a

plaintiff asserts a violation of the same clause of the same amendment in the same way.’” Oliva,

973 F.3d at 442 (quoting Cantu v. Moody, 933 F.3d 414, 422 (5th Cir. 2019)).

Morrison requests damages against federal defendants based on his conditions of

confinement and alleges violations of the Eighth Amendment. In addition, he appears to be

alleging a violation of the First Amendment, asserting that his transfer to a different cell was

retaliatory. Although his First Amendment claim is dubious, as he alleges that he was moved from

his cell because he failed to keep his prior cell clean, as opposed to any “First Amendment” activity

(see Am. Compl. ¶ V, ECF No. 7), the Court will broadly interpret his allegations as seeking to

raise claims for violations of both the Eighth and First Amendments.

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Morrison asserts a Bivens claim against Defendants under the Eighth Amendment. He

alleges that his conditions of confinement amount to cruel and unusual punishment. Because the

Court concludes this case differs significantly from the Bivens trilogy of actions sanctioned by the

Supreme Court, the Court determines that Morrison’s claims arise in a new context. Compare

Bivens, 403 U.S. at 389-90 (manacling the plaintiff in front of his family in his home and strip-

searching him in violation of the Fourth Amendment); Carlson, 446 U.S. at 16-18 (recognizing a

Bivens cause of action under the Eighth Amendment for a deceased prisoner who was deprived

medical attention by prison officers who knew of his serious medical condition); Davis, 442 U.S.

at 229-34 (recognizing a Bivens cause of action under the Due Process Clause of the Fifth

Amendment for a female employee who was terminated based on her gender).

The Court reaches this determination for several reasons. First, Morrison does not allege

Fourth or Fifth Amendment violations and he makes no factual allegations that would support such

claims. As such, his case is different from Bivens and Davis. Although Morrison premises his

claims on alleged violations of the Eighth Amendment, as did the plaintiff in Carlson, his case

differs significantly from Carlson. In Carlson, the Court recognized a Bivens cause of action under

the Eighth Amendment in a case involving an alleged failure to provide medical treatment for an

inmate with a “serious[ ]” and “Chronic Asthmatic Condition” known to prison officials. Carlson,

446 U.S. at 16 n.1. Morrison’s allegations do not concern the deprivation of medical care but rather

his conditions of confinement at FMC-Fort Worth, including allegations that he was housed in a

“zero ventilation room.” Am. Compl. ¶ IV, ECF No. 7. As such, Morrison’s claim clearly

represents a new Bivens context. Any other conclusion is foreclosed by Abassi, as the Court there

confined Carlson to its facts. Relying in part on its holding in Correctional Services Corp. v.

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Malesko, 534 U.S. 61 (2001), the Abassi Court held that Carlson had only recognized an implied

damages remedy under the Eighth Amendment for “failure to provide medical treatment.” Abassi,

137 S. Ct. at 1859, 1865; see also Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019)

(“Schwarz’s Eighth Amendment claim regarding unsanitary cell conditions presents a new Bivens

context because Schwarz does not allege a failure to treat a serious medical condition, which was

the issue in Carlson. Rather the basis of Schwarz’s claim—a nonfunctioning toilet—resembles the

conditions of [] confinement claim the Supreme Court rejected in Abbasi.” (citations omitted)).

Further, with respect to Morrison’s First Amendment claim, assuming he has even pleaded

one, as previously stated, the Supreme Court has “never held that Bivens extends to First

Amendment claims.” Butler v. Porter, __ F.3d __, 2021 WL 2221463, at *3 (5th Cir. June 2, 2021)

(declining to extend Bivens to a prisoner’s First Amendment retaliation claim); Watkins v. Three

Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682, 686 (5th Cir. 2021) (noting that

the “Supreme Court has not only never recognized a Bivens cause of action under the First

Amendment, but also once rejected a First Amendment retaliation Bivens claim for federal

employees” and declining to extend Bivens to a prisoner’s First Amendment claim that he was

subjected to spoiled and contaminated food as a form of retaliation by prison officials). In short,

none of the three cases in which the Supreme Court recognized a Bivens remedy has sufficient

overlap or commonality with the instant case. As such, this “new” designation is warranted

because Bivens remedies, as previously recognized, arose under different constitutional

amendments and/or factually different circumstances.

As the Court concludes that Morrison’s claims represent a “new” Bivens context, it

proceeds to the second step of the analysis.

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2. Special Factors Counsel Hesitation in Extending New

Bivens Remedy Here

When a claim arises in a different context from one of the three Supreme-Court-recognized

Bivens claims, the Court turns to whether “there are special factors counselling hesitation in the

absence of affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857 (cleaned up). In such a

case, “a Bivens remedy will not be available.” Id.

The “special factors” inquiry “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. at 1857-58. These factors include whether Congress has legislated

on the right at issue and whether alternative remedies exist for protecting that right. Id. at 1858,

1862. Courts also consider separation-of-powers concerns. Hernandez, 140 S. Ct. at 743.

Three special factors cause the Court to hesitate here. First, congressional legislation

already exists in this area. Congress addressed the issue of prisoners’ constitutional claims in the

PLRA, 42 U.S.C. § 1997e, which “does not provide for a standalone damages remedy against

federal jailers.” Abbasi, 137 S. Ct. at 1865. This factor supports the conclusion that Congress

considered and rejected a federal damages remedy for claims like Morrison’s.

Second, the Federal Tort Claims Act (“FTCA”) and the Administrative Remedy Program

operated by the Federal Bureau of Prisons provide a potential, alternative remedy, and militate

against expansion of a Bivens remedy. See Abassi, 137 S. Ct. at 1865 (“the existence of alternative

remedies usually precludes a court from authorizing a Bivens action.”). The FTCA waives the

Government’s sovereign immunity from tort claims that arise from the negligent or wrongful acts

or omissions of federal employees in the course of their employment. 28 U.S.C. §§ 1346(b)(1),

2679(b)(1). Additionally, the and the availability of a claim for injunctive relief against prison

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officials in their official capacities serve as two such alternative remedial structures for conditions-

of-confinement claims.

Third, as the Fifth Circuit recently stated in Butler, “separation-of-powers concerns counsel

against extending Bivens.” Butler, No. 19-30029, 2021 WL 2221463, at *4. The Supreme Court

has recognized that

[r]unning a prison is an inordinately difficult undertaking that requires

expertise, planning, and the commitment of resources, all of which are peculiarly

within the province of the legislative and executive branches of government. Prison

administration is, moreover, a task that has been committed to the responsibility of

those branches, and separation of powers concerns counsel a policy of judicial

restraint.

Id. (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987), superseded by statute on other grounds,

42 U.S.C. § 2000cc-1(a), as recognized in Warsoldier v. Woodford, 418 F.3d 989, 994 (9th Cir.

2005)). As in Butler, the Court concludes that extending Bivens to claims like Plaintiff’s “would

run afoul of this restraint and risk improperly entangling courts in matters committed to other

branches. Indeed, because of the very complex nature of managing federal prisons, such a holding

would substantially impinge on the executive branch, in addition to the legislative branch.” Id. at

*5. “Such a result would be a paradigmatic violation of separation-of-powers principles.” Id.

For these reasons, the Bivens claims that Morrison asserts against Defendants for monetary

relief must be dismissed. Accordingly, the Court will grant Defendants’ Motion to Dismiss

Morrison’s Bivens claims for monetary relief against Defendants pursuant to Federal Rule of Civil

Procedure 12(b)(6) and will dismiss these claims with prejudice.

b. Physical Injury Requirement

Defendants, in the alternative, move to dismiss Morrison’s claims for compensatory

damages because the “amended complaint is devoid of any well-pleaded facts showing that

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Morrison actually sustained a physical injury as a result of the allegedly deficient conditions of

confinement.” Defs.’ Mot. Dismiss 12, ECF No. 19. For the reasons that follow, after considering

the legal briefing, pleadings, and applicable law, the Court agrees with Defendants that because

Morrison pleads no physical injury in his Amended Complaint, the recovery of compensatory

damages for emotional or mental injuries allegedly suffered is precluded.

Title 42 U.S.C. § 1997e(e) provides that “No Federal Civil action may be brought by a

prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of

physical injury or the commission of a sexual act.” This requirement “applies to all federal civil

actions in which a prisoner alleges a constitutional violation,” including First Amendment and

RLUIPA claims. Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005); see also Mayfield v. Tex.

Dep’t of Criminal Justice, 529 F.3d 599, 603, 605-06 (5th Cir. 2008) (affirming district court’s

grant of summary judgment in favor of defendants, where prisoner only sought compensatory

damages and did not allege any physical injury regarding his claim that defendants violated his

First Amendment right to freely exercise his religion). The application of § 1997e(e) is based on

“the relief sought, and not the underlying substantive violation.” Geiger, 404 F.3d at 375; see also

Mayfield, 529 F.3d at 605 (“We have held that the application of [§ 1997e(e)] . . . turns on the

relief sought by a prisoner, and that it prevents prisoners from seeking compensatory damages for

violations of federal law where no physical injury is alleged.”). Section 1997e(e) does not bar

claims for nominal and punitive damages. See Pomier v. Leonard, 532 F. App’x 553 (5th Cir.

2013); Hutchins v. McDaniels, 512 F.3d 193, 196-98 (5th Cir. 2007).

The Court has scoured the Amended Complaint (ECF No. 7) and its attachment, and even

liberally construed, concludes that Morrison never sought punitive or nominal damages.

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In short, under Fifth Circuit law, Morrison’s failure to allege a physical injury requires the

Court to dismiss his claims for compensatory damages against Defendants. Accordingly, in the

alternative, the Court will grant Defendants’ Motion to Dismiss Morrison’s Bivens claims for

monetary relief against Defendants pursuant to Federal Rule of Civil Procedure 12(b)(6) and will

dismiss these claims with prejudice for failure to plead a physical injury.

c. No Respondeat Superior

In the alternative, Defendants move to dismiss Morrison’s Bivens claims against Wilson

for failure to allege Wilson was personally involved in any constitutional violations. See Defs.’

Mot. Dismiss 15, ECF No. 17. For the reasons that follow, the Court concludes that Morrison’s

Bivens claims against Wilson, insofar as he has any, must be dismissed.

To assert a claim of a constitutional right under the Bivens theory of recovery, a plaintiff

must first demonstrate that the defendant was personally involved in the alleged violation.

Guerrero-Aguilar v. Ruano, 118 F. App’x 832, 832-33 (5th Cir. 2004); see also Iqbal, 556 U.S. at

683 (noting that defendants “cannot be held liable unless they themselves acted”). “Because there

is no doctrine of respondeat superior under Bivens, supervisors cannot be liable solely on that

basis.” Allen v. Tuberra, No. 4:13-CV-619-A, 2013 WL 5943120, at *3 (N.D. Tex. Nov. 6, 2013)

(McBryde, J.) (dismissing a Bivens claim against a warden where it was not alleged that the warden

was personally involved in the alleged constitutional violation or in implementing a policy that

itself resulted in the alleged violation) (citation omitted)).

Accordingly, in the alternative, the Court will grant Defendants’ Motion to Dismiss

Morrison’s Bivens claims against Wilson for compensatory damages pursuant to Federal Rule of

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Civil Procedure 12(b)(6) because he has failed to allege Wilson was personally involved in any

alleged constitutional violations.

B. Morrison’s Request for Appointment of Counsel

Morrison requests that the Court appoint him counsel. On December 4, 2020, the Court

denied without prejudice a previous request for counsel filed by Morrison. See Order, ECF No. 10.

The Court incorporates that Order by reference as if fully set forth herein. In that Order, the Court

stated that it would consider his motion again if he presented “additional facts showing

circumstances that establish the Court should exercise its discretion to appoint counsel.” Id. at 1.

As he has failed to provide additional facts to demonstrate that his case presents “exceptional

circumstances” warranting the appointment of counsel, see Ulmer v. Chancellor, 691 F.2d 209,

213 (5th Cir. 1982), for the reasons previously stated in its December 4, 2020 Order (ECF No. 10),

and herein, the Court will deny Morrison’s Request for Appointment of Counsel.

C. Morrison’s Motion to Suspend Filing Fees

Morrison also requests that the Court suspend payment of fees because he lacks the funds

to pay them. The Prison Litigation Reform Act (“PLRA”) requires prisoners seeking to bring civil

actions to pay an initial partial filing fee. See 28 U.S.C. § 1915(b). The PLRA further requires

prisoners thereafter to pay the remainder of the $350.00 filing fee. Id.; 28 U.S.C. § 1914(a).

On December 4, 2020, the Court issued a filing fee order granting Morrison’s request to

proceed in forma pauperis. The Court assessed an initial fee of $50 and directed the agency having

custody of Morrison to deduct 20% of each deposit made to his inmate trust account and forward

payments to the Court on a regular basis provided the account exceeds $10. See Filing Fee Order,

ECF No. 11. In the event the account is below $10, no payment need be made. Id.

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Given the mandate of the PLRA, absent more, the Court will deny Morrison’s Motion to

Suspend Filing Fees.

IV. LEAVE TO AMEND

Generally, “a pro se litigant should be offered an opportunity to amend his complaint

before it is dismissed.” Brewster v. Dretke, 587 F.3d 764, 767-68 (5th Cir. 2009). However, the

Court is not required to grant leave to amend “if the plaintiff has already pleaded his ‘best case.’”

Id.

For the reasons outlined here, Morrison’s claims against Defendants are fatally infirm. In

addition, he has already had the opportunity to amend his Complaint. Thus, the Court concludes

Morrison has already pleaded his best case and granting leave to amend would be futile and cause

needless delay.

V. CONCLUSION

Based on the foregoing, the Court GRANTS Defendants’ Motion to Dismiss (ECF No.

19); DENIES Morrison’s Request for Appointment of Counsel (ECF No. 21); and DENIES

Morrison’s Motion to Suspend Filing Fees (ECF No. 22). Accordingly, Morrison’s claims for

injunctive relief are dismissed without prejudice as moot; and Morrison’s Bivens claims for

compensatory damages against Defendants are dismissed with prejudice for failure to state a

claim. Under Federal Rule of Civil Procedure 58(a), a final judgment will issue separately.

SO ORDERED this 30th day of June, 2021.

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