# Alward v. Newell

> District Court, N.D. Ohio · August 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10664501

## Case

- **Court:** District Court, N.D. Ohio
- **Decided:** August 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10664501

## How later opinions describe it (automated extraction)

- stating that a federal prisoner can not bring a Bivens action against the BOP
- finding that an officer’s suggestion of sexual favors was not sufficient to state Eighth Amendment claim
- stating that a federal prisoner can not bring a Bivens action against the BOP

## Opinion text

PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MATTHEW KEITH ALWARD, )
) CASE NO. 4:24CV0935
Plaintiff, )
) JUDGE BENITA Y. PEARSON
v. )
)
BRIAN NEWELL, et al., ) MEMORANDUM OF OPINION
) AND ORDER
Defendants. ) [Resolving ECF Nos. 2, 7, 10, and 11]
Pro Se Plaintiff Matthew Keith Alward filed this action against Elkton Federal Satellite
Low (“FSL Elkton”), FSL Elkton Warden Healey, FSL Elkton Case Manager Brian Newell, and
the Federal Bureau of Prisons (“BOP”). In the Complaint (ECF No. 1), Plaintiff claims that
Newell hindered his ability to qualify for placement in a residential re-entry center because he
refused Newell’s offer to engage in sexual activity. He contends this violated his Eighth
Amendment rights. Plaintiff seeks monetary damages.
I. Background
Plaintiff alleges that in July 2023, he asked Newell what he needed to do to transfer to the
camp within the prison. He claims Newell told him he needed to be cleared of all pending
criminal charges. In August 2023, Plaintiff received confirmation from the Washtenaw County
Court that he received a final disposition of the charges pending against him. Plaintiff contends
Newell was not in the office on the day he received the documentation of the disposition, so he
gave the paperwork to another counselor who promised to forward it to Newell. Plaintiff claims
he saw Newell in the conference room on August 14, 2023 and asked if he had received the
(4:24CV0935)
paperwork. See ECF No. 1 at PageID #: 3. Newell indicated that he had received the
information and would remove the pending charge and management variable from Plaintiff’s
prison record “if we played a little.” ECF No. 1 at PageID #: 3. Plaintiff states that he
understood this to mean that Newell was proposing that they engage in sexual conduct, an offer

he declined. Plaintiff contends that Newell then claimed he would not remove the pending
charge and management variable from his prison file. Plaintiff claims the information in his file
made him ineligible for federal time credits and placement in a residential re-entry center. See
ECF No. 1 at PageID #: 3. Plaintiff alleges Newell subjected him to cruel and unusual
punishment in violation of the Eighth Amendment.
Plaintiff was transferred to FCI Allenwood Low prior to filing the Complaint (ECF No.
1) in the United States District Court for the Southern District of Ohio (Case No. 1:24-cv-265).1
On May 29, 2024, the case was transferred to this Court due to improper venue in the Southern

District of Ohio.

1 According to the BOP website (https://www.bop.gov/inmateloc/ (last visited
Aug. 16, 2024)), Plaintiff is currently housed at FCI Cumberland.
Plaintiff has failed to provide the court with his current address. It is the party,
not the court, who bears the burden of apprising the court of any changes to his mailing
address. See Yeschick v. Mineta, 675 F.3d 622, 630 (6th Cir. 2012) (citing Casimir v.
Sunrise Fin., Inc., 299 Fed.Appx. 591, 593 (7th Cir. 2008) (affirming district court’s
denial of Fed. R. Civ. P. 60(b) motion when movants claimed due to house fire they did
not receive mail informing them of court’s entry of summary judgment); Soliman v.
Johanns, 412 F.3d 920, 922 (8th Cir. 2005) (“[A] litigant who invokes the processes of
the federal courts is responsible for maintaining communication with the court during the
pendency of his lawsuit.”); Watsy v. Richards, No. 86-1856, 1987 WL 37151, at *1 (6th
Cir. April 20, 1987) (affirming dismissal for failure to prosecute when appellant failed to
provide district court with “current address necessary to enable communication with
him”).
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II. Standard for Dismissal
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S. 364,
365 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519, 520 (1972), the district court is
required to dismiss an in forma pauperis action under 28 U.S.C. § 1915(e) if it fails to state a

claim upon which relief may be granted or if it lacks an arguable basis in law or fact. Neitzke v.
Williams, 490 U.S. 319 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v.
City of Strongsville, 99 F.3d 194, 197 (6th Cir. 1996). An action has no arguable basis in law or
fact when it is premised on an indisputably meritless legal theory or when the factual contentions
are clearly baseless. Neitzke, 490 U.S. at 327.
A cause of action fails to state a claim upon which relief may be granted when it lacks
“plausibility in th[e] complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A
pleading must contain a “short and plain statement of the claim showing that the pleader is

entitled to relief.” Ashcroft v. Iqbal , 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P.
8(a)(2)). The factual allegations in the pleading must be sufficient to raise the right to relief
above the speculative level on the assumption that all the allegations in the complaint are true.
Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed factual allegations,
but must provide more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Iqbal, 556 U.S. at 678. A pleading that offers legal conclusions or a simple recitation of the
elements of a cause of action will not meet this pleading standard. Id. In reviewing a complaint,
the court must construe the pleading in the light most favorable to the plaintiff. Bibbo v. Dean
Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998).

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II. Law and Analysis
A.
Before proceeding to the merits of this claim, the Court must decide whether Bivens2
provides a cause of action in this context. Congress provided a specific damages remedy for

Plaintiffs whose constitutional rights were violated by state officials through 42 U.S.C. § 1983.
They, however, did not provide a corresponding remedy for constitutional violations by federal
officials. In Bivens, the Supreme Court recognized an implied damages action to compensate
persons injured by federal officers who violated the Fourth Amendment’s prohibition against
unreasonable searches and seizures. Since then, the Court has allowed Bivens remedies in only
two other contexts: (1) in a Fifth Amendment gender discrimination case, Davis v. Passman,
442 U.S. 228 (1979); and (2) in an Eighth Amendment Cruel and Unusual Punishments Clause
case, Carlson v. Green, 446 U.S. 14 (1980). The Court has not approved of an implied damages

remedy under the Constitution itself. Ziglar v. Abbasi, 582 U.S. 120, 131-32 (2017). The
Supreme Court recently clarified that principles of separation of powers dictate that Congress
and not the Courts should determine when to authorize a damages suit. Id. For this reason, the
Supreme Court instructed that federal courts should refrain from extending Bivens outside of the
three specific contexts in which it has already been applied, absent the presence of special
factors.

2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971).
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In addition, the Court declined to extend Bivens to claims against the United States, any
federal agency, or any federal employees sued in their official capacities. See FDIC. v. Meyer,
510 U.S. 471, 484-86 (1994); Okoro v. Scibana, 63 Fed.Appx. 182, 184 (6th Cir. 2003) (stating
that a federal prisoner can not bring a Bivens action against the BOP). The BOP is an agency of

the United States Government and FSL Elkton is a prison operated by the BOP. Bivens claims
cannot be brought against these Defendants. Id. The claims against them fail to state a claim as
a matter of law.
B.
Furthermore, Bivens claims cannot be brought against a defendant under a theory of
respondeat superior. Jones v. City of Memphis, 586 F.2d 622, 625 (6th Cir.1978) (“the theory of
respondeat superior would be fundamentally inconsistent with the import of Bivens”) (internal
quotation marks and citation omitted). Supervisors may not be held liable for the

unconstitutional conduct of their subordinates based solely on a mere right to control employees
or on a failure to act. Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.1999) (citing Leach v.
Shelby Cnty. Sheriff, 891 F.2d 1241, 1246 (1989)). Instead, “supervisory liability requires some
‘active unconstitutional behavior’ on the part of the supervisor.” Peatross v. City of Memphis,
818 F.3d 233, 241 (6th Cir. 2016) (quoting Bass, 167 F.3d at 1048). Plaintiff must show that the
supervisor somehow encouraged or condoned the actions of her employees. Id. Consequently,
unless the plaintiff affirmatively pleads facts demonstrating the direct involvement of the
defendant in the allegedly unconstitutional action, the complaint fails to state a claim against that
defendant and dismissal is warranted. Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984).

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Plaintiff alleges that Warden Healy “was charged with the safety of inmates.” Supplemental
Complaint (ECF No. 6). He further claims “notice was given to Warden and staff but was
ignored.” ECF No. 6. Plaintiff, however, does not explain this statement. These allegations do
not demonstrate that Warden Healey was personally involved in the proposal for sexual activity

or that he actively approved of the Case Manager’s alleged actions. These claims are based on a
respondeat superior theory of liability and do not state a claim under Bivens.
C.
The only remaining claim is Plaintiff’s Eighth Amendment claim asserted against
Newell. Eighth Amendment claims arguably fall within one of the three contexts already
recognized for Bivens claims. Plaintiff, however, fails to state a claim for relief against Newell
under the Eighth Amendment.
The Eighth Amendment imposes a constitutional limitation on the power of the states to

punish those convicted of crimes. Punishment may not be “barbarous” nor may it contravene
society’s “evolving standards of decency.” Rhodes v. Chapman, 452 U.S. 337, 346 (1981). The
Eighth Amendment protects inmates by requiring that “prison officials . . . ensure that inmates
receive adequate food, clothing, shelter, and medical care, and . . . ‘take reasonable measures to
guarantee the safety of the inmates.’ ” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). This, however, does not mandate that a
prisoner be free from discomfort or inconvenience during her incarceration. Ivey v. Wilson, 832
F.2d 950, 954 (6th Cir. 1987) (per curiam) (quoting Rhodes, 452 U.S. at 346). Prisoners are not
entitled to unfettered access to the medical treatment of their choice, see Hudson v. McMillian,

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503 U.S. 1, 9 (1992), nor can they “expect the amenities, conveniences and services of a good
hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988); see Thaddeus-X v. Blatter,175
F.3d 378, 405 (6th Cir. 1999). In sum, the Eighth Amendment affords the constitutional
minimum protection against conditions of confinement which constitute health threats, but does

not address those conditions which cause the prisoner to feel merely uncomfortable or which
cause aggravation or annoyance. Hudson, 503 U.S. at 9-10 (requiring extreme or grave
deprivation).
The Supreme Court in Wilson v. Seiter, 501 U.S. 294, 298 (1991), set forth a framework
for courts to use when deciding whether certain conditions of confinement constitute cruel and
unusual punishment prohibited by the Eighth Amendment. A plaintiff must first plead facts
which, if true, establish that a sufficiently serious deprivation has occurred. Id. Seriousness is
measured in response to “contemporary standards of decency.” Hudson, 503 U.S. at 8 (citation

omitted). Routine discomforts of prison life do not suffice. Id. Only deliberate indifference to
serious medical needs or extreme deprivations regarding the conditions of confinement will
implicate the protections of the Eighth Amendment. Id. at 9. A plaintiff must also establish a
subjective element showing the prison officials acted with a sufficiently culpable state of mind.
Id. Deliberate indifference is characterized by obduracy or wantonness, not inadvertence or
good faith error. Whitley v. Albers, 475 U.S. 312, 319 (1986). Liability cannot be predicated
solely on negligence. Id. A prison official violates the Eighth Amendment only when both the
objective and subjective requirements are met. Farmer, 511 U.S. at 834.

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“Not every unpleasant experience a prisoner might endure while incarcerated constitutes
cruel and unusual punishment within the meaning of the Eighth Amendment.” Ivey, 832 F.2d at
954. Although cases of sexual assault and severe instances of sexual abuse are sufficiently
serious to violate the Eighth Amendment, Rafferty v. Trumbull Cnty., 915 F.3d 1087, 1095 (6th

Cir. 2019) (male prison official’s sexual harassment of a female prisoner by demanding on
multiple occasions that the prisoner expose herself and masturbate while the official watched and
intimidated her into complying violated the Eighth Amendment), isolated, brief, and not severe
instances of sexual harassment, without more, do not give rise to Eighth Amendment violations.
See Walker v. Baker, No. 23-1232, 2023 WL 6380124, at *2-3 (6th Cir. Sept. 27, 2023)
(officer’s sexually suggestive comments to an inmate did not meet the Eighth Amendment
objective standard); Violett v. Reynolds, 76 Fed.Appx. 24, 27 (6th Cir. 2003) (finding that an
officer’s suggestion of sexual favors was not sufficient to state Eighth Amendment claim);

Johnson v. Ward, No. 99-1596, 2000 WL 659354, at *1 (6th Cir. May 11, 2000) (male prisoner’s
claim that a male officer placed his hand on the prisoner’s buttock in a sexual manner and made
an offensive sexual remark did not meet the objective component of the Eighth Amendment).
Here, Plaintiff alleges that Newell suggested that they “play a little.” ECF No. 1 at
PageID #: 3. He does not indicate that this suggestion was made more than once, or that Newell
in any way attempted physical interaction with Plaintiff. Plaintiff indicates that Newell refused
to remove a management variable from his prison record. His allegations describe verbal
harassment, not physical abuse or prolonged severe sexual harassment. Plaintiff’s claim against
Newell does not meet the objective standard of an Eighth Amendment claim.

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III. Conclusion
Accordingly, this action is dismissed pursuant to 28 U.S.C. § 1915(e). Plaintiff’s
Motions to Appoint Counsel (ECF Nos. 2 and 7), Plaintiff’s Motions for Order to Supply
Certified Copy of Trust Account and for Release from Segregation; Use of Phone and Law

Library; Paperwork Access; and No Contact and Gag Orders (ECF No. 10) (filed on June 7,
2024), and Plaintiff’s Motions to Schedule a Hearing for the Motions filed on June 7, 2024 and
for Status of this Case (ECF No. 11) are denied as moot. The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith.
The Clerk is directed to issue a copy of this Memorandum of Opinion and Order by
regular mail to Matthew Keith Alward, #22732-040, FCI Cumberland, P.O. Box 1000,
Cumberland, MD 21501.

IT IS SO ORDERED.
August 16, 2024 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10664501. Public record. Not legal advice.