# Watley v. Kowcheck

> District Court, N.D. West Virginia · December 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10765882

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** December 3, 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/10765882

## Opinion text

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.

á ]tÅxá cA `tééÉÇx
/
JAMES P. MAZZONE
UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10765882. Public record. Not legal advice.