Watley v. Kowcheck

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

MICHAEL DAVID WATLEY,

Plaintiff,

v. Civil Action No. 5:24-CV-187

Judge Bailey

DRAKE KOWCHECK, Correctional

Officer, WILLIAM KOPPEL, Correctional

Officer, and MATTHEW COX,

Correctional Officer,

Defendants.

REPORT AND RECOMMENDATION

I. Background

The plaintiff initiated this action on September 18, 2024, by filing a Complaint

asserting claims for violations of his constitutional rights pursuant to Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Doc.

1]. Plaintiff is a federal prisoner currently incarcerated at USP Hazelton in Bruceton Mills,

West Virginia, and is asserting claims against defendants for retaliation. This matter is

assigned to the Honorable John Preston Bailey, United States District Judge, and it is

referred to the undersigned United States Magistrate Judge for submission of proposed

findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For

the reasons that follow, the undersigned recommends the case be dismissed.

II. The Complaint

In his Complaint, plaintiff alleges that each of the defendants retaliated against

him. Plaintiff alleges that he requested to speak to a lieutenant and that defendants

placed him “in a paper suit for six days, taking away his bedding, and denying Plaintiff’s

request to speak to a L.T. while in solitary confinement.” [Doc. 1-1 at 1]. He argues that

retaliating against him for asking to speak to a higher-ranked officer was a violation of his

First Amendment rights and that forcing him to wear a paper suit and taking away his

bedding while in solitary confinement for six days was cruel and unusual punishment in

violation of the Eighth Amendment. [Id.]. He alleges that defendant Koppel falsified an

incident report to cover up these unconstitutional deprivations. [Id.]. He further alleges

that “Correctional officer Matthew Cox actions were deliberate as he admitted to the

Plaintiff that he was not placed in paper for actions given in a false Incident Report.” [Id.].

For relief, plaintiff seeks damages for mental anguish, anxiety, difficulty sleeping, chronic

back pain, and ongoing fear, as well as a declaration from the Court that defendants

violated his Constitutional rights. [Doc. 1 at 9].

III. Standard of Review

Because the plaintiff is a prisoner seeking redress from a governmental entity or

employee, the Court must review the complaint to determine whether it is frivolous or

malicious. Pursuant to 28 U.S.C. § 1915A(b), a court is required to perform a judicial

review of certain suits brought by prisoners and must dismiss a case at any time if the

court determines that the complaint is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief against a defendant who is immune

from such relief.

A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke

v. Williams, 490 U.S. 319, 325 (1989). However, the court must read pro se allegations

in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint which

fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See

Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are

“indisputably meritless,”1 or when the claims rely on factual allegations which are “clearly

baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which

the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106

(1976).

The plaintiff is proceeding pro se and therefore the Court is required to liberally

construe his pleadings. Estelle, 429 U.S. at 106; Haines v. Kerner, 404 U.S. 519, 520-1

(1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007); Loe v. Armistead, 582

F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). While pro se

pleadings are held to a less stringent standard than those drafted by attorneys, Haines,

404 U.S. at 520, even under this less stringent standard, a pro se complaint is still subject

to dismissal.

IV. Analysis

In Bivens, the Supreme Court first recognized an implied cause of action for money

damages under the Fourth Amendment against federal agents who allegedly entered the

plaintiff’s home without a warrant, handcuffed him in front of his family, conducted a

warrantless search, and threatened to arrest his entire family while arresting him for

narcotics violations. Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 389 (1971). In the decade following Bivens, the Court twice

more recognized implied causes of action for constitutional violations by federal officials.

In Davis v. Passman, 442 U.S. 228 (1979), the Court held that the Due Process Clause

of the Fifth Amendment provided a damages remedy for a former congressional staffer’s

1 Id. at 327.

sex-discrimination claim. In Carlson v. Green, 446 U.S. 14 (1980), the Court held that

the Eighth Amendment provided a damages remedy for a federal prisoner’s inadequate-

care claim. Outside of these contexts, however, the Supreme Court has consistently

refused to extend Bivens to any new context, and over the past 42 years, it has declined

twelve (12) times to approve an implied damages remedy for other alleged constitutional

violations. See Mitchell v. Skinner, 2023 WL 11264898, at *1 (N.D. W.Va. Feb. 27,

2023) (collecting authority).

Most recently, the Court refused to recognize a Bivens-type remedy in Egbert v.

Boule, 596 U.S. 482 (2022). While not overruling Bivens, the Egbert decision

nonetheless further restricted the implied cause of action, and as the Fourth Circuit

declared, has “all but closed the door on Bivens remedies.” Dyer v. Smith, 56 F.4th 271,

273 (4th Cir. Dec. 29, 2022). In Egbert, the Court emphasized once again that

recognizing a Bivens cause of action is “a disfavored judicial activity.” Egbert at 491

(citing Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) and Hernández v. Mesa, 589 U.S. 93,

101 (2020)). The Court also discussed the well-established two-step inquiry which courts

are to use for determining whether a Bivens claim may proceed:

First, we ask whether the case presents “a new Bivens context” - i.e., is it

“meaningful[ly]” different from the three cases in which the Court has implied

a damages action. 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.” If there is even

a single “reason to pause before applying Bivens in a new context,” a court

may not recognize a Bivens remedy.

Egbert at 492 (internal citations omitted). See Ziglar at 122; Hernández at 102 (internal

citations omitted).

This two-step test, however, was “significantly modified” by the Egbert court.

Mitchell at *3. The Court explained that although its previous cases “describe two steps,

these steps often revolve into a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” Egbert at 492. In this

respect, “[e]ven a single sound reason to defer to Congress” is enough to require a court

to refrain from creating such a remedy.” Id. at 491–492.

As this Court has observed, however, in cases decided by the Fourth Circuit since

Egbert, the Court has nonetheless continued to follow the “two-step new context test.”

Mitchell, at *4 (citing Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022) and Dyer v. Smith,

56 F.4th 271 (4th Cir. 2022)). See also Mays v. Smith, 70 F.4th 198, 202 (4th Cir. June

6, 2022); Bulger v. Hurwitz, 64 F.4th 127, 138 (4th Cir. March 3, 2023). Accordingly,

this Court must determine whether the case now before it: (1) presents a new Bivens

context, which is meaningfully different from the three cases in which the Supreme Court

has implied a damages action; and (2) if the claim does arise in such a new context,

whether there are any special factors that counsel hesitation about granting the extension

of Bivens. Bulger at 137 (citation omitted).

A. Plaintiff’s claims present new Bivens contexts.

Turning first to plaintiff’s First Amendment claim, the Court must decide whether

the proffered cause of action presents a “new context” under Bivens in that it is “different

in [any] meaningful way” from the three prior cases in which the Court has provided a

Bivens remedy. Ziglar at 139; Tun-Cos v. Perrotte, 922 F.3d 514,522–23 (4th Cir.

2019). Clearly, in this case, the plaintiff’s claim that defendants have violated his First

Amendment rights by retaliating against him for asking to speak to a lieutenant is in no

way similar to those of the Supreme Court’s Bivens trilogy, and the “new context” inquiry

is thus easily satisfied. Additionally, in this respect, the undersigned notes that both the

Supreme Court and the Fourth Circuit have ruled that a prisoner’s First Amendment

retaliation claim presents a new Bivens context. See Egbert at 499 (“[T]here is no

Bivens action for First Amendment retaliation.”); Dyer at 278 (agreeing with district court

that a First Amendment retaliation claim arose in a new context); Earle v. Shreves, 990

F.3d 774,779 (4th Cir. 2021) (an inmate’s First Amendment retaliation claim presents a

new Bivens context). This Court has likewise previously determined that a prisoner’s

First Amendment retaliation claim, where the plaintiff alleged he was being threatened for

filing grievances, presented a new context under Bivens. See Milliron v. K. Brown,

2021 WL 6062061, at *6 (N.D. W.Va. December 1, 2021).

Likewise, plaintiff’s Eighth amendment claim for cruel and unusual punishment for

being made to wear a paper suit and placed in solitary confinement without bedding for

six days is clearly a “new context.” Although Carlson allowed for a damages remedy for

an Eighth Amendment claim against prison officials, Carlson concerned deliberate

indifference to medical needs after the prisoner suffered an asthma attack. “[T]he

Supreme Court has made clear that courts should not interpret Carlson to apply outside

the precise context at issue in that case, noting that even claims challenging the adequacy

of medical care may involve the same ‘right and . . . mechanism of injury’ as in Carlson

but still present ‘different’ contexts.” Bulger, 62 F.4th at 138 (citation omitted).

Accordingly, the undersigned finds that the plaintiff’s First Amendment retaliation claim

and Eighth Amendment claim are new contexts for purposes of the two-step Bivens

inquiry.

B. Special factors counsel against extending Bivens.

Having determined that this case presents a new context, the next inquiry for the

Court is “whether there are any special factors that counsel hesitation about granting the

extension of Bivens.” Tate at 844 (citing Hernandez at 102). In this regard, the Supreme

Court has further directed that the “special factors” inquiry must center on “separation-of-

powers principles” and “requires that a court ask whether judicial intrusion into a given

field is appropriate.” Bulger at 137 (citing Hernandez at 94 and Ziglar at 135). While the

Supreme Court has not provided a comprehensive list of special factors, lower courts are

instructed to “consider the risk of interfering with the authority of other branches” and to

determine “whether there are sound reasons to think Congress might doubt the efficacy

or necessity of a damages remedy,” as well as “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.” Tate at 845 (citing Hernandez at 102); Dyer

at 278–79 (quoting Ziglar at 136). If there is “reason to pause before applying Bivens in

a new context or to a new class of defendants,” the request to extend Bivens should be

rejected. Hernandez at 102.

Courts must also look at whether there is an alternative remedial structure available

in a case. Ziglar at 122. The Supreme Court has instructed that “a court may not fashion

a Bivens remedy if Congress has already provided, or has authorized the Executive to

provide, an ‘alternative remedial structure.’” Egbert at 493 (internal citations omitted).

When there is an alternative remedial structure in place, that fact alone, “like any special

factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause

of action.” Id. Furthermore, it is of no matter that the “existing remedies do not provide

complete relief.’” Id. (internal citations omitted).

The Supreme Court has ruled that Bivens relief is “unavailable” for federal

prisoners who can, “among other options, file grievances through an Administrative

Remedies Program” (ARP) to pursue their claims. Id. at 497 (citing Correctional

Services Corp. v. Malesko, 534 U.S. 61, 74 (2001)). In this regard, the Supreme Court

has long acknowledged that: “So long as the plaintiff had an avenue for some redress,

bedrock principles of separation of powers foreclosed judicial imposition of a new

substantive liability.” Malesko at 69 (internal citations omitted). Moreover, as this Court

recently observed with respect to Malesko: “This holding alone would appear to bar any

Bivens type action brought by a federal prisoner.” Mitchell at *6.

The Fourth Circuit has also consistently ruled that “the existence of an alternative

remedial structure for prisoners, even if it is not as effective as a suit for damages, weighs

heavily against recognizing a new Bivens cause of action.” Nellson v. Doe, 2023 WL

3336689, at *5 (4th Cir. 2023) (unpublished) (citing Bulger at 140–141); see also Tate at

847–48; Earle v. Shreves, 990 F.3d 774,780 (4th Cir. 2021). Finally, this Court, has

found that the alternative remedies available to a federal prisoner “strongly caution

against an expansion of Bivens into a new context.” Milliron at *7; see also Scates v.

Craddock, 2019 WL 6462846, at *8 (N.D. W.Va. July 26, 2019), report and

recommendation adopted, 2019 WL 4200862 (N.D. W.Va. Sept. 5, 2019) (“[M]any courts

have explicitly recognized that the BOP’s administrative remedy program is an alternative

process that precludes a Bivens remedy.”) (collecting authority).

In this case, plaintiff’s Complaint and attached exhibits demonstrate that

administrative remedies were available to him and that he pursued such remedies.

While the existence of alternative remedies alone would be sufficient grounds to preclude

the extension of Bivens in this case, there are nonetheless other special factors

counseling hesitation here. In this regard, the Supreme Court has directed that other

factors to be considered in the special factors analysis include “‘economic and

governmental concerns,” along with “administrative costs,” and the “impact on

governmental operations systemwide.” Ziglar at 134, 136. As this Court has further

found, these special factors might encompass, among other considerations, the burdens

on both the government and its employees, as well as whether Congress has previously

enacted legislation in the area, indicating that the judiciary should refrain from interfering.

Milliron at *6 (citing Ziglar at 132–43). The Supreme Court has expressly stated that

“[u]nsurprisingly, Congress is ‘far more competent than the Judiciary’ to weigh such policy

considerations. And the Judiciary’s authority to do so at all is, at best, uncertain.” Egbert

at 491 (internal citations omitted). This Court has recognized that the burdens on

Government employees who are sued personally, as well as the projected costs and

consequences to the Government, are particularly high in the prison setting:

The burdens on the government, the prison administration, and on the

individual employees, who must defend claims often filed without merit and

simply for harassment, are great. Specifically, being named in a frivolous

lawsuit subjecting the employee to personal liability may cause financial

problems for defendants and their families who then face difficulties

refinancing or taking out home loans or other credit due to being involved in

a pending legal matter.

Crisantos v. Sims, 2023 WL 3115686, at *6, (N.D. W. Va. Feb. 27, 2023). Additionally,

the harmful effect that the creation of a Bivens remedy could have on the discharge of

official duties must be taken into account, as officials “who face personal liability for

damages might refrain from taking urgent and lawful action in a time of crisis.” Id. (quoting

Ziglar at 145). Evaluating these impacts “to determine whether, and the extent to which,

monetary and other liabilities should be imposed upon individual officers and employees

of the Federal Government” is a responsibility best left for Congress and not the judiciary.

Id. at 134.

These concerns are especially significant with respect to retaliation claims.

Certainly, expanding Bivens to allow First Amendment retaliation claims by prisoners

would result in an increased number of such suits, in addition to the increase in the

systemwide costs and impacts enumerated above. The Supreme Court has also

recognized that “a plaintiff can turn practically any adverse action into grounds for a

retaliation claim,” thereby adding to the substantial social costs already associated with

recognizing new Bivens claims. Egbert at 499. Likewise, to the extent the plaintiff may

be claiming that any particular disciplinary action, or his transfer to another housing unit,

was retaliatory, the Fourth Circuit has long cautioned that such claims “intersect with the

statutory scheme delegating authority” to the Bureau of Prisons over, among other areas,

housing decisions and discipline, and that extending Bivens to retaliation claims in such

instances could “lead to an intolerable level of judicial intrusion into an issue best left to

corrections experts.” Mays at 205, quoting Earle v. Shreves at 780–81.

Finally, legislative action which suggests that Congress “does not want a damages

remedy, is itself a factor counseling hesitation.” Ziglar at 148; see also Egbert at 493.

Particularly in the prison context, the Fourth Circuit has observed that “Congress’ decision

not to include an individual capacity damages remedy in the Prison Litigation Reform Act

‘speaks volumes and counsels strongly against judicial usurpation of the legislative

function.’” Nellson at *5 (citing Bulger at 141). Accordingly, because Congress has

expressed a desire to prevent courts from interfering with BOP decisions and has been

“conspicuously silent about creating a remedy for prisoners to obtain damages from

individual officers, ‘the existence of the ARP and PLRA counsel hesitation in extending

Bivens to Appellant’s claims.’” Bulger at 141. This Court has also previously recognized

that “Congress’s inaction and failure to provide a damage remedy, particularly where it

has acted to enact sweeping reforms of prisoner litigation, suggest that an extension of a

damages remedy for other types of mistreatment should not be judicially created.”

Milliron at *7 (citing Ziglar at 148).

Based on the foregoing, the undersigned finds that there are several special factors

counselling hesitation in this case, and that accordingly, no Bivens remedy exists for the

plaintiff’s claims.

V. Recommendation

For the reasons set forth above, the undersigned recommends that the plaintiff’s

case be DISMISSED WITH PREJUDICE for failure to state a claim.

The petitioner shall have fourteen days from the date of service of this Report and

Recommendation within which to file with the Clerk of this Court, specific written

objections, identifying the portions of the Report and Recommendation to which

objection is made, and the basis of such objection. A copy of such objections should

also be submitted to the United States District Judge. Objections shall not exceed ten

(10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless

accompanied by a motion for leave to exceed the page limitations, consistent with LR PL

P 12.

Failure to file written objections as set forth above shall constitute a waiver

of de novo review by the District Court and a waiver of appellate review by the

Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas

v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

This Report and Recommendation completes the referral from the district court.

The Clerk is DIRECTED to terminate the Magistrate Judge’s association with this case.

The Clerk of the Court is further DIRECTED to mail a copy of this Report and

Recommendation to the pro se plaintiff by certified mail, return receipt requested, to his

last known address as reflected on the docket sheet.

DATED: December 3, 2024.

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JAMES P. MAZZONE

UNITED STATES MAGISTRATE JUDGE