Petition for Writ of Certiorari — Matthew Paul Borowski, Petitioner v. Kimberly Bechelli, et al.

In the

United States Supreme Court

MATTHEW PAUL BOROWSKI,

Plaintiff-Appellant,

v.

KIMBERLY BECHELLI, THOMAS

CRAWFORD, MARK SVENINGSON,

Defendants-Appellees.

APPENDIX

MATTHEW PAUL BOROWSKI

pro se

Reg. No. 58580-060

USP Marion

P.O. Box 1000

Marion, Illinois 62959

21

NONPRECEDENTIAL disposition

To be cited only in accordance with Fed. R. App. P. 32.1

Urtifelt

fflouri of i\pp2aIs

For the Seventh Circuit

Chicago, Illinois 60604

Submitted June 20, 2019'

Decided June 20, 2019

Before

MICHAEL S. KANNE, Circuit fudge

AMY C. BARRETT, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

No. 19-1113

MATTHEW P. BOROWSKI,

Plaintiff-Appellant,

v.

KIMBERLY BECHELLI, et al„

Defendants-Appellees.

Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:16-cv-00848-JPG-GCS

J. Phil Gilbert,

Judge.

ORDER

Matthew Borowski, a federal inmate, sues prison officials under Bivens v. Six

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

Amendment violations. He contends that the defendants improperly rejected a calendar

featuring photographs of scantily clad female models in sexually suggestive poses. The

district court granted the defendants' motion to dismiss, concluding that Borowski

cannot pursue a First Amendment claim with a Bivens action. We affirm the judgment.

’ We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. See Fed. R. App. P. 34(a)(2)(C).

No. 19-1113

Page 2

Borowski is housed at the federal penitentiary in Marion, Illinois—a facility with

a Sexual Offender Management Program designed to rehabilitate sexual offenders, like

Borowski, and reduce their risk of recidivism. Borowski twice tried to obtain a risque

calendar, once from an outside vendor and once from his mother. But prison officials

returned the publications in accordance with mail screening procedures. Citing Bureau

of Prisons Program Statement 5266.11, they explained that the calendar was rejected

because it contained "sexually explicit material" and "features nudity." See 28 C.F.R.

§§ 540.71(b)(7), 540.72(a). Borowski disputed those findings through the prison's

internal grievance procedure. He relied on his email communications with the vendor

in which the vendor stated that the calendar did not feature nudity and confirmed that

other federal prisons had not rejected the publication.

When the grievance procedure proved unsuccessful, Borowski brought a Bivens

suit, alleging violations of his First Amendment right to receive publications. (He also

claimed that the defendants violated his due-process rights, but he does not challenge

that claim's dismissal on appeal.) The defendants moved to dismiss the complaint, and

the magistrate judge recommended granting their motion. Accepting the

recommendation, the district judge concluded that extending Bivens to cover Borowski's

claim would contravene the Supreme Court's decision in Ziglar v. Abbasi, 137 S. Ct. 1843

(2017), which strongly cautioned against creating new Bivens claims where an

alternative remedial structure already exists to protect the constitutional right.

Borowski acknowledges that the Supreme Court has not declared First

Amendment violations actionable under Bivens. See, e.g., Reickle v. Howards, 566 U.S. 658,

663 n.4 (2012). Thus, on appeal, he does not meaningfully challenge the district court's

reasoning. Instead, he argues that the Supreme Court's holding in Abbasi should be

overturned because it arbitrarily eliminates judicial remedies for federal prisoners. But

this court cannot disregard Supreme Court precedent; we can do no more than

acknowledge that Borowski has preserved the argument. See United States v. Faulkner,

793 F.3d 752, 756 (7th Cir. 2015).

AFFIRMED

Case 3:16-cv-00848-JPG-SCW Document 66 Filed 12/14/18 Page 1 of 1 Page ID #464

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MATTHEW PAUL BOROWSKI,

Plaintiff,

v.

Case No. 3:16-cv-00848-JPG-SCW

MAUREEN P. BAIRD, et al.,

Defendants.

JUDGMENT

This matter having come before the Court, the issues having been heard, and the Court

having rendered a decision,

IT IS HEREBY ORDERED AND ADJUDGED that this matter is DISMISSED

WITH PREJUDICE.

DATED: December 14, 2018

MARGARET M. ROBERTIE,

Clerk of Court

BY:

Approved:

s/ /. Phil Gilbert

J. Phil Gilbert

U.S. District Judge

s/Tina Gray

Deputy Clerk

Case 3:16-cv-00848-JPG-SCW Document 65 Filed 12/14/18 Page 1 of 4 Page ID #460

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MATTHEW.PAUL BOROWSKI,

Plaintiff,

Case No. 3:16-cv-00848-JPG-SCW

v.

MAUREEN P. BAIRD, et al.,

Defendants.

MEMORANDUM AND ORDER

J. PHIL GILBERT, DISTRICT JUDGE

This is a First Amendment case against federal officials pursuant to Bivens v. Six

Unknown Named Agents, 403 U.S. 388 (1971). Plaintiff Matthew Paul Borowski—a prisoner at

the United States Penitentiary in Marion, Illinois—claims that prison officials violated his First

Amendment rights when they confiscated some of his mail: specifically, a risque “Straight

Stuntin’ Double Trouble 2016-18” calendar that Borowski ordered from an outside vendor.

(ECF No. 47, p. 4.) Prison officials explained that several pages of the calendar had pictures of

women with areolas, genitals, and the like visible—so they exercised their discretion pursuant to

28 C.F.R. §§ 540.71 and 540.72 to reject the calendar as sexually explicit material. {Id.)

Borowski then sued, arguing that the publisher of the magazine informed him that the calendar

contained no nudity and that Marion was the first federal facility to reject the calendar—an

alleged violation of his First Amendment rights. {Id.)

The defendants have now moved to dismiss this case pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject-matter jurisdiction—although the Court more correctly

construes it under Rule 12(b)(6) for failure to state a claim, for the Court has jurisdiction over

this case pursuant to 28 U.S.C. § 1331 since it deals with a federal constitutional question—and

1

Case 3:16-cv-00848-JPG-SCW Document 65 Filed 12/14/18 Page 2 of 4 Page ID #461

Magistrate Judge Williams advises this Court to grant that motion in his Report and

Recommendation. (ECF Nos. 53, 62.) Because of Borowski’s objection to Magistrate Judge

Williams’s Report, this Court has reviewed it de novo. Fed. R. Civ. P. 72(b)(3); Johnson v. Zema

Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). And as always with a Rule 12(b)(6) motion to

dismiss, the Court accepts as true all well-pled allegations in the complaint and centers instead

on whether the plaintiff has pled factual content that suggests that he has a plausible claim for

relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

It is well established that the First Amendment protects a prisoner’s ability to send and

receive mail, with certain caveats related to the prison’s legitimate penological interests. Pell v.

Procunier, 417 U.S. 817, 822 (1974); Thornburgh v. Abbott, 490 U.S. 401 (1989); Zimmerman v.

Tribble, 226 F.3d 568, 572 (7th Cir. 2000). The problem for Borowski, however, is that he

cannot bring this type of claim against federal officials pursuant to Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971). Even though district courts used to routinely adjudicate

these types of matters, the Supreme Court changed the game in Ziglar v. Abbasi, — U.S. —, 137

S.Ct. 1843 (2017). In Ziglar—a prisoner Bivens action dealing with the Fourth and Fifth

Amendments—the Supreme Court held that federal courts should not expand Bivens actions to

reach contexts that the Supreme Court has not officially recognized unless “special factors”

counsel otherwise. 137 S.Ct. at 1859-60. The idea is that since Bivens is an implied remedy for

damages under Constitutional principles rather than a legislatively-created remedy like 42 U.S.C.

§ 1983, courts should not expand that remedy unless there are special circumstances at hand. Id.

at 1854-55.

2

Case 3:16-cv-00848-JPG-SCW Document 65 Filed 12/14/18 Page 3 of 4 Page ID #462

The Supreme Court then explained that they have only officially recognized Bivens

theories in three scenarios: (1) Fourth Amendment unreasonable searches and seizures; (2) Fifth

Amendment gender discrimination; and (3) Eighth Amendment deliberate indifference to

medical needs. Id. at 1855—56 (citing Bivens, 403 U.S. at 397; Davis v. Passman, 442 U.S. 228

(1979); Carlson v. Green, 446 U.S. 14 (1980)). This case—a First Amendment action dealing

with a raunchy calendar—is none of those things, and even though federal courts used to

adjudicate First Amendment Bivens actions all the time, the Court may no longer do so according

to Ziglar. Especially considering that the Supreme Court said a few years before Ziglar: “We

have never held that Bivens extends to First Amendment claims”—making it quite clear that the

Supreme Court has not yet “officially recognized” a First Amendment Bivens claim. Reichle v.

Howards, 566 U.S. at 663 n. 4 (2012).

There is one exception, however, as previously mentioned: whether there are “special

factors” in this case that urge expanding Bivens here. These include questions like “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,” and whether “there is an alternative

remedial structure present in a certain case.” Id. at 1858. And here, as Magistrate Judge Williams

explains in his Report and Recommendation, Borowski has alternative avenues to obtain relief:

he can go through the Bureau of Prison’s administrative remedies program; he can file small

claims under 31 U.S.C. § 3723 and 3724; he can file complaints with the Inspector General; and

more. The Court does not believe it should turn this simple prison administrative issue regarding

sexually explicit material into a lawsuit about money damages absent any sort of congressional

action. Indeed, “[nationwide, district courts seem to be in agreement that, post-Abbasi, prisoners

have no right to bring a Bivens action for violation of the First Amendment.” Harris v. Dunbar,

3

Case 3:16-cv-00848-JPG-SCW Document 65 Filed 12/14/18 Page 4 of 4 Page ID #463

No. 217CV00536WTLDLP, 2018 WL 3574736, at *3 (S.D, Ind. July 25, 2018) (collecting

cases). This Court joins those hordes of other district courts in agreement.

CONCLUSION

Accordingly, the Court:

•

ADOPTS Magistrate Judge Williams’s Report and Recommendation in regards to its

analysis on the Ziglar issue (ECF No. 62);

•

OVERRULES Borowski’s objection to the Report (ECF No. 63);

•

GRANTS the defendants’ motion to dismiss Borowski’s First Amendment claims

(ECF No. 53);

•

REMINDS Borowski that even though he filed a second-amended complaint that

attempts to bring a Fifth Amendment due process claim against defendants Powers,

Nelson, and Connors, the Court already dismissed that claim WITH PREJUDICE

(ECF No. 45);

•

DISMISSES this action WITH PREJDICE, and

•

DIRECTS the Clerk of Court to judgment to enter accordingly.

IT IS SO ORDERED.

DATED: DECEMBER 14, 2018

s/ /. Phil Gilbert

J. PHIL GILBERT

U.S. DISTRICT JUDGE

4

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 1 of 19 Page ID #432

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MATTHEW PAUL BOROWSKI,

)

)

)

)

)

)

)

)

)

Plaintiff,

vs.

KIMBERLY BECHELLI, MARK

SVENINGSON, and THOMAS

CRAWFORD,

Case No. 16-cv-848-JPG-SCW

Defendants.

REPORT AND RECOMMENDATION

WILLIAMS, Magistrate Judge:

Introduction

Pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), Plaintiff

filed his complaint against three BOP officials in the mailroom at USP-Marion for

violating his First Amendment rights when they rejected two copies of Plaintiff's

Calendar entitled "Straight Stuntin Double Trouble 2016-2018". This matter is before

the Court on Defendants' motion to dismiss, or in the alternative, motion for summary

judgment (Doc. 53). Plaintiff has filed a response (Doc. 56) in opposition to the motion.

Defendants have filed a supplement (Doc. 59) to their motion and Plaintiff has filed a

supplement (Doc. 60) to his response.

The matter has now been referred to United States Magistrate Judge Stephen C.

Williams by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. §§

636(b)(1)(B) and (c), Federal Rule of Civil Procedure 72(b), and Local Rule 72.1(a).

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 2 of 19 Page ID #433

Based on the following, the Court RECOMMENDS that Defendants' motion to dismiss

and summary judgment motion be GRANTED.

Factual Background

Plaintiff is currently incarcerated at USP-Marion. USP-Marion contains a Sex

Offender Management Program (SOMP) designed to provide services to sexual

offenders in order to minimize their risk of re-offense (Doc. 53-6, p. 2). Plaintiff is

currently incarcerated for receipt of child pornography (Id. at p. 6). Although Plaintiff

was offered to opportunity to participate in SOMP, he has declined on two occasions (Id.

at p. 7).

The claim in this case arises from Plaintiff's receipt of a copy of the 2016-2018

Straight Stuntin Magazine Double Trouble Calendar, which the mailroom at Marion

rejected on January 12, 2016 as sexually explicit. A second issue of the calendar was

also rejected by staff on February 18, 2016 (Doc. 1, p. 6). The calendar was rejected

because it contained sexually explicit and/or nude material on pages 5, 21, 35, and 39 of

the calendar (Id. at p. 6, 8). Specifically, the relevant pages contained images of females

with breasts, nipples, areolas, and genitalia visible (Id. at p. 6).

The calendar was

rejected pursuant to 28 C.F.R. §§ 540.71 and 540.72, as well as the corresponding BOP

Program Statement 5266.11 (Id. at p. 10). Plaintiff was informed by the publisher, Black

Media Family, that the calendar did not contain nudity and that Marion was the first to

reject the calendar as numerous other federal facilities had accepted the calendar (Id. at

p. 8-9).

Page 2 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 3 of 19 Page ID #434

Plaintiff filed his complaint against individuals in die mailroom staff, who

rejected the calendar, pursuant to Bivens, arguing that die rejection of the calendar on

two occasions violated Plaintiffs First Amendment rights (Doc. 10, p. 5). Defendants

have filed the pending motion to dismiss and/or summary judgment motion, arguing

that Bivens does not extend to First Amendment violations as alleged by Plaintiff and

that the rejection of the calendar did not violate his First Amendment rights.

Legal Standards

"A motion under Rule 12(b)(6) challenges the sufficiency of die complaint to state

a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi.

Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009).

"[A] Rule 12(b)(6) motion must be

decided solely on the face of the complaint and any attachments that accompanied its

filing." Miller v. Herman, 600 F.3d 726, 733 (7th Cir. 2010) (citing Fed.R.Civ.P. 10(c)).

"If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented

to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56. All parties must be given a reasonable opportunity to present

all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d).

Summary Judgment is proper only "if the admissible evidence considered as a

whole shows there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law." Dynegy Mktg. & Trade v. Multi Corp., 648

F.3d 506, 517 (7th Cir. 2011) (internal quotation marks omitted) (citing FED. R. CIV. P.

56(a)). See also Ruffin-Thompkins v. Experian Info. Solutions, Inc., 422 F.3d 603, 607

Page 3 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 4 of 19 Page ID #435

(7th Cir. 2005). A fact is material if it is outcome determinative under applicable law,

and a genuine issue of material fact exists if "the evidence is such that a reasonable jury

could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

The party

seeking

summary judgment bears

the

initial

burden

of

demonstrating—based on the pleadings, affidavits, and the other information

submitted — the lack of any genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317,323 (1986). After a proper motion for summary judgment is made, the adverse

party "must set forth specific facts showing that there is a genuine issue for trial."

Anderson, 477 U.S. at 250 (quoting FED. R. CIV. P. 56(e)(2)).

A mere scintilla of

evidence in support of the nonmovant's petition is insufficient; a party will be successful

in opposing the motion when it presents definite, competent evidence to rebut it.

Szymanski v. Rite-Way Lawn Maintenance Co., Inc., 231 F.3d 360,364 (7th Cir. 2000).

On summary judgment, the Court considers the facts in the light most favorable

to the non-movant, and adopts reasonable inferences and resolves doubts in the

non-movant's favor. Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009). Even if the

material facts are not in dispute, summary judgment is inappropriate when the

information before the Court reveals that "alternate inferences can be drawn from the

available evidence." Spiegla v. Hull, 371 F.3d 928,935 (7th Cir. 2004), abrogated on other

grounds by Spiegla II, 481 F.3d at 966 (7th Cir. 2007).

Page 4 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 5 of 19 Page ID #436

Analysis

A. Extending Bivens after Abbasi

Defendants first argue that the Court should dismiss Plaintiffs First Amendment

claim as the Court lacks jurisdiction. Defendants specifically argue that Bivens should

not be extended to Plaintiffs claim after the recent Supreme Court decision in Ziglar v.

Abbasi, - U.S.

137 S.Ct. 1843 (2017).

In Abbasi, the Court reviewed the implied cause of action under Bivens and the

framework for determining whether a Bivens-type remedy should be extended to a

particular claim.

In its opinion, the Court set forth the proper framework for

determining whether a case presented a new Bivens context. Abassi, — U.S. —, 137 S.Ct.

at 1859-60. There are only three types of cases in which a Bivens remedy has been

recognized: 1) a Fourth Amendment case against federal officers for unreasonable search

and seizure when they arrested a man without a warrant, Bivens, 403 U.S. 388; 2) a Fifth

Amendment gender discrimination claim by a woman whose federal employment was

terminated by a congressman, Davis v. Passman, 422 U.S. 228, 99 S.Ct. 2264 (1979); and

3) an Eighth Amendment deliberate indifference claim brought by a federal inmate's

estate claiming that his asthma was not being treated adequately, Carlson v. Green, 446

U.S. 14,100 S.Ct. 1468 (1980). A court must determine if the case before it "is different

in a meaningful way from [these] previous Bivens cases decided by [the Supreme

Court]." Id. Such "meaningful differences" can be

because of the rank of tire officers involved; the constitutional right at

issue; the generality or specificity of the official action; the extent of judicial

Page 5 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 6 of 19 Page ID #437

guidance as to how any 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 hot consider.

Id.

Should the case presented differ in any meaningful way from the Bivens claims

previously approved by the Supreme Court, then the case presents a new Bivens

context. Abassi ~U.S.~, 137 S.Ct. at 1859-60. Upon such a finding, the Court must go

on to consider if there are "special factors counselling hesitation in the absence of

affirmative action by Congress" which would make a remedy unavailable under Bivens.

Id. at 1857.

An inquiry of the "special factors" requires the Court to determine

"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.

A new Bivens cause of action may also be prohibited "if there is an

alternative remedial structure present in a certain case." Id. at 1858.

Plaintiff's First Amendment claim in this case is meaningfully different from the .

Fourth, Fifth, and Eighth Amendment cases enumerated by the Court. Here, Plaintiff

claims that he was denied receipt of a calendar that was mailed to him on two occasions

and that prison officials returned the calendar to the sender. Plaintiffs claim that the

prison official's refusal to allow him to possess the calendar violated his free speech

rights are factually dissimilar from core Bivens actions. The claim implicates a different

constitutional amendment and such restrictions were allegedly imposed upon Plaintiff

Page 6 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 7 of 19 Page ID #438

due to the unique circumstances of his conviction. Further, the Supreme Court has

"never implied a Bivens action under any clause of the First Amendment", although it

has assumed, without deciding, "that such an action exists."

States, 868 F.3d 189, 198 (3rd Cir. 2017).

Vanderklok v. United

See Harris v. Dunbar, Case No.

17-CV-536-WTL-DLP, 2018 WL 3574736, at * 2 (S.D. Ind. July 25, 2018)( "[Although in

some cases the Supreme Court assumed without deciding that a Bivens remedy was

available for a First Amendment claim, it never identified one." (citing Reichle v.

Howards, 566 U.S. 658, 663 n. 4,132 S.Ct. 2088 (2012) ("We have never held that Bivens

extends to First Amendment claims.")). See also Wood v. Moss, --U.S.--, 134 S.Ct.

2056, 2066 (2014) (assuming without deciding that Bivens extends to First Amendment

cases); Reichle v. Howards, 566 U.S. at 663 n. 4 (2012) ("We have never held that Bivens

extends to First Amendment claims); Ashcroft v. Iqbal, 556 U.S. 662, 675,129 S.Ct. 1937

(2009) ("For while we have allowed a Bivens action to redress a violation of the equal

protection component of the Due Process Clause of the Fifth Amendment... we have

not found an implied damages remedy under the Free Exercise Clause."); Bush v.

Lucas, 462 U.S. 367, 103 S.Ct. 2404 (1983) (declining to extend Bivens to a First

Amendment claim); but see King v. Federal Bureau of Prisons, 415 F.3d 634 (7th Cir.

2005) (permitting a similar First Amendment claim, refusal of the prison to provide

books, without commenting on Bivens) and White v. Inch, 2017 WL 5756912, * 3-4

(S.D.I11. 2017). As Plaintiffs claims in this case are meaningfully different than those

identified by tire Supreme Court, the Court must consider whether factors counsel

Page 7 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 8 of 19 Page ID #439

against expanding a Bivens remedy to Plaintiff's claim.

Abassi stated that expanding Bivens remedy is a "disfavored" policy. As set forth

above, the Court explained that if a case presents a new Bivens context, die Court must

next determine "whether any alternative, existing process for protecting the interest

amounts to a convincing reasons for the Judicial Branch to refrain from providing a new

and freestanding remedy in damages." Wilkie v. Robbins, 551 U.S. 537, 550,127 S.Ct.

2588 (2007). Even if there is no alternative, the court also must "'make the kind of

remedial determination that is appropriate for a common-law tribunal, paying particular

heed, however, to any special factors counseling hesitation before authorizing a new

kind of federal litigation.'" Id. (quoting Bush v. Lucas, 462 U.S. 367, 378,103 S.Ct. 2404

(1983)).

Defendants argue that Plaintiff has alternative avenues for pursuing his claims.

They point to the possibility of injunctive or declaratory relief; BOP's administrative

remedies program which Plaintiff must follow in accordance with the Prison Litigation

Reform Act, 42 U.S.C. § 1997e(a); and the ability to file complaints with the DOJ's

Inspector General. See Harris, 2018 WL 3574736, at * 3 (noting other avenues for relief

for a federal inmate, including the BOP's administrative grievance process). While

none of these alternative remedies allow for money damages and most do not permit

Plaintiff to file a lawsuit in order to vindicate his constitutional rights, Plaintiff may also

bring a claim for money damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§

1346, 2671-2680, for any injuries that he sustained.

Page 8 of 19

Plaintiff is not without some

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 9 of 19 Page ID #440

recourse to address his concerns. Therefore, this Court concludes that he does have

alternative remedies to address his free speech claims.

In addition, this Court Considers whether judicial intervention is necessary. This

Court does not function to administer federal prisons and decisions regarding the safety,

security classifications, and communications of federal inmates should be left to the

sound discretion of the BOP except in extraordinary circumstances that do not appear

present in this case. See Bell v. Wolfish, 441 U.S. 520, 532, 99 S.Ct. 1861 (1979). And,

as set forth in Abbasi, "legislative action suggests that Congress does not want a damages

remedy is itself a factor counseling hesitation." Abbasi, —U.S.—, 137 S.Ct. at 1865.

Some 15 years after Carlson [u. Green, 446 U.S. 14 (1980)] was decided, Congress

passed the Prison Litigation Reform Act of 1995, which made comprehensive

changes to the way prisoner abuse claims must be brought in federal court. So it

seems clear that Congress had specific occasion to consider the matter of prisoner

abuse and to consider the proper way to remedy those wrongs. This Court has

said in dicta that the Act's exhaustion provisions would apply to Bivens suits.

But the Act itself does not provide for a standalone damages remedy against

federal jailers. It could be argued that this suggests Congress chose not to extend

the Carlson damages remedy to cases involving other types of prisoner

mistreatment.

Id. (internal citations omitted). See also Harris, 2018 WL 3574736, at *3 (collecting

cases that have found no right to bring a Bivens action for First Amendment

infringements).

For these reasons, this undersigned RECOMMENDS that special factors dictate

hesitation in applying Bivens to Plaintiff's First Amendment claims and it is

RECOMMENDED that the Court GRANT Defendants' motion to dismiss as this Court

Page 9 of 19

Case 3:16-cv-00848-JPG-SCW Document 62 Filed 08/24/18 Page 10 of 19 Page ID #441

lacks subject matter jurisdiction over Plaintiff's First Amendment claims.

B. First Amendment Claim

Should the Court decline to adopt the undersigned's recommendations regarding

the extension of Bivens to First Amendment claim, the undersigned also

RECOMMENDS that the Court GRANT summary judgment as to Defendants on

Plaintiff's First Amendment claim.

The Seventh Circuit has held that " [t]he free-speech clause of the First

Amendment applies to communications between an inmate and an outsider."

Zimmerman v. Tribble, 226 F.3d 568, 572 (7th Cir. 2000).

The freedom of speech

protected by the First Amendment is also not merely freedom to speak; it is also freedom

to read. King v. Fed. Bureau of Prisons, 415 F.3d 634, 648-49 (7th Cir. 2005) (citing

Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243 (1969); Lamont v. Postmaster

General, 381 U.S. 301, 306-07, 85 S.Ct. 1493 (1965)). While inmates do not lose their

constitutional rights upon being confined in prison, some restrictions on those rights

may be imposed by prison authorities. In Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254

(1987), the Supreme Court held that "when a prison regulation impinges on inmates'

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests." Id. at 89, 107 S.Ct. 2254. Turner outlined four factors which

courts must consider in evaluating whether a regulation restricting prisoners' rights is

sufficiently reasonably related to legitimate penological interests to withstand

constitutional scrutiny: "(1) the validity and rationality of the connection between a

Page 10 of 19

Case 3:16-cv-00848-JPG~SCW Document 62 Filed 08/24/18 Page 11 of 19 Page ID #442

legitimate and neutral government objective and the restriction; (2) whether the prison

leaves open 'alternative means of exercising' the restricted right; (3) tire restriction's

bearing on the guards, other inmates, and the allocation of prison resources; and (4) the

existence of alternatives suggesting that the prison exaggerates its concerns." Munson

v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012) (citingT urner, 482 U.S. at 89-91, 107 S.Ct.

2254)). "The burden...is not on the State to prove the validity of prison regulations but

on the prisoner to disprove it." Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162

(2003).

Plaintiff does not contend that the existing BOP policy governing Incoming

Publications is overly broad. BOP Program Statement 5266.11 states that "the warden

may reject a publication only if it is determined detrimental to the security, good order,

or discipline of the institution or if it might facilitate criminal activity."

28 C.F.R.

§540.71(b). Such publications which may be rejected include "sexually explicit material

which by its nature br content poses a threat to the security, good order, or discipline of

the institution.

28 C.F.R. § 540.71(b)(7). Commercially published materials which

cannot be disseminated to inmates pursuant to the Ensign Act1 because they are

sexually explicit or contain nudity, are to be returned to the publisher. 28 C.F.R. §

540.72(a). Nudity includes "a pictorial depiction where genitalia or female breasts are

exposed" while sexually explicit materials are "pictorial depiction[s] of actual or

1 The Ensign Act states: “no funds may be used to distribute or make available to a prisoner any

commercially published information or material that is sexually explicit or features nudity.” 28 U.S.C. 5

530C(b)(6)(D).

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stimulated sexual acts including sexual intercourse, oral sex, or masturbation."

28

C.F.R. § 540.72(b)(2) and (4). Such provisions have been upheld, see Amatel v. Reno,

156 F.3d 192, 194-95 (D.C. Cir. 1998)(upholding federal regulations under the Ensign

Act which bar commercial materials that are sexually explicit or contain nudity)2, and

Plaintiff does not question the constitutionality of these provisions.

Instead, Plaintiff argues that the images in his calendar were not "nudity" and,

thus, should not have been rejected. Plaintiff argues that the warden rejected the

calendar for containing nudity (Doc. 53-2, p. 17), stating that the materials contained

"females with breasts, nipples, areolas and genitalia visible, which by its nature, poses a

threat to orderly operation of the institution." (Doc. 1, p. 6). Plaintiff offers an email

from the publishers of the calendar indicating that there was no nudity in their calendar

(Doc. 1, p. 8).3 Defendants have provided the uncensored pictures for the Court's

review (Doc. 54) and general descriptions of the pictures (Doc. 53, p. 10).

undersigned finds these descriptions to be accurate.

The

While all of the females are

wearing clothing, one female is wearing a lace bra which allows her areola to be seen

through the bra. Two other pictures prominently display the image of the model's

crotch covered by tight underwear.

While the undersigned agrees that whether these pictures qualify as nudity under

the BOP Program Statement as an issue of fact, the undersigned need not reach the

2 See also Jones v. Salt Lake Cnty., 503 F.3d 1147, 1154-56 (10th Cir. 2007); Mauro v. Arpaio, 188 F.3d

1054, 1057-64 (9th Cir. 1999); Waterman v. Farmer, 183 F.3d 208, 209-10 (3rd Cir. 1999).

3 Stating in an email that “there is no nudity and saying that there are ‘breasts, nipples, areolas, and

genitalia visible’ is a stretch...” (Doc. 1, p. 8).

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factual dispute in this case. Instead, Defendants argue that regardless of whether the

images contained nudity, they were of a sexual nature and would be disruptive to the

inmate population. Defendants note that USP-Marion is a Sex Offender Management

Program (SOMP) facility which seeks to "minimize dais population's risk for sexual

re-offense." BOP Program Statement 5324.10 §1.1. As part of the program, materials,

including photographs that are sexually explicit or are of suggestive poses, are

prohibited. See § 4.6.1. Although Plaintiff is not a current participant in the program

(Doc. 53-6, p. 7), he is incarcerated for receipt of child pornography and is housed in and

around inmates in die SOMP program (Doc. 53-6, p. 6).

Dr. Patrick Cook, who

previously served as the SOMP Coordinator at USP-Marion, testified that the images in

the calendar would be detrimental to Plaintiffs rehabilitation "and the SOMP mission at

USP Marion." (Doc. 53-6, p. 7). He cites several studies in support of his opinion that

exposure to "sexually explicit materials can elicit both aggressive attitudes and

behaviors" (Doc. 53-6, p. 3-5).

Dr. Cook notes that Plaintiff was assessed as

"moderate-high" risk of sexual recidivism and that his psychological records indicate a

"deviant sexual attraction, sexual preoccupation, and histoiy of sexually abusive

behavior" (Doc. 53-6, p. 7).

Access to images that are "indicative of sexual

objectification of women", like those in the calendar, would be detrimental to his

rehabilitation (Id.). Further, Dr. Cook testified that if Plaintiff were allowed to possess

the images he could trade, sell, or circulate the images to other individuals who are also

incarcerated for sexual crimes which would be detrimental to their rehabilitation and to

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the purpose of the SOMP program (Id. at p. 8). According to Dr. Cook, the presence of

the calendar at USP-Marion is at odds with the SOMP's goals "and incongruent with

creating an institution climate conducive to voluntary participation in treatment" (Doc.

53-6, p. 6).

The undersigned RECOMMENDS that the Court FIND that Defendants have

shown that the restriction on the calendar has a valid, rational connection to a legitimate

government interest. Sexually suggestive images, including sexual posing, "are nearly

indistinguishable from 'sexually explicit' or 'nude' images with respect to the threats

they pose to prisons - all categories contain sexually arousing content." Roberts v.

Apker, 570 Fed. Appx. 646 (9th Cir. 2014). The Seventh Circuit has upheld regulations

prohibiting "sexually explicit material" in general population. See Payton v. Cannon,

806 F.3d 1109,1110 (7th Cir. 2015 (noting that the ex-warden's statements regarding a

penological interest, although not supported by academic or scientific literature, were

unrebutted).

It has also stated that "[p]risons have great latitude in limiting the

reading material of prisoners." Mays v. Springborn, 575 F.3d 643, 649 (7th Cir. 2009)

(upholding ban on article describing prison riots and showing images of gang signs).

Further, the Seventh Circuit has stated that reading materials could be censored "in the

interest of rehabilitation." King v. Federa l Bureau of Prisons, 415 F.3d 634, 639 (7th Cir.

2005). See also Koutnik v. Brown, 456 F.3d 777, 784 (7th Cir. 2006)(security, order, and

rehabilitation of inmates are legitimate interests of penal institutions); Van de Bosch

v. Raemisch, 658 F.3d 778, 785 (7th Cir. 2011) (legitimate penological interests include

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crime determine, rehabilitation, and safety of guards and other inmates).

Plaintiff has not provided any evidence that the restrictions on "sexually

suggestive poses" is irrational, other than his own belief that allowing sex offenders to

view such materials would test their rehabilitation prior to release (Doc. 56, p. 10-11).

He provides no supporting evidence for this belief. See Tanksley v. Litscher, 723 Fed.

Appx. 370, 371 (7th Cir. 2018) (inmates own belief as to whether images will interfere

with his rehabilitation not objective) (citing Borzych v. Frank, 439 F.3d 388, 391 (7th

Cir. 2006)). On the other hand, Defendants have provided academic and scientific data,

through Dr. Cook's affidavit and citation to numerous studies on inmate access to

sexually explicit materials, to support their position (Doc. 53-6, p. 3-4).

Dr. Cook

testified that, based on his knowledge, experience, and review of Plaintiff's record, there

were concerns about the impact of viewing such materials by Plaintiff as it would

interfere with his rehabilitation as a sex offender as the materials are "indicative of the

sexual objectification of women, sexual preoccupation, and potentially other paraphilic

and/or deviant interests" (Doc. 53-6, p.7). Dr. Cook also testified that there was a

concern that materials could reach other inmates who are participating in the SOMP

program. Van den Bosch, 658 F.3d at 789 (prison officials have legitimate concern of

materials reaching other prisoners once they enter the prison system). Thus, tire

undersigned finds that Defendants have demonstrated a rational relationship between

the rejection of Plaintiff's calendar, containing scantily-clad females in suggestive poses,

and a legitimate penological interest for rehabilitation in a sex offender facility.

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Having found no evidence that the regulation is irrational, the undersigned need

not "run[] through each factor at length." Mays, 575 F.3d at 648. Even still, the other

three factors are easily met.

The second factor, "whether the prison leaves open

alternative means of exercising the restricted right", Munson, 673 F.3d at 633, is met "if

other means of expression...remain[] available." Thornburgh v. Abbott, 490 U.S. 401,

417-18, 109 S.Ct. 1874 (1989). The factor is satisfied when the regulation "permit[sj a

broad range of publications to be sent, received, and read." Id. at 418, 109 S.Ct. 1874.

Here, Plaintiff may receive a wide range of publications that do not contain nudity or

sexually suggestive poses. Thus, the undersigned finds that the second factor is met.

Turning to the third factor, the undersigned must consider "the restriction's

bearing on the guards, other inmates, and the allocation of prison resources." Munson,

673 F.3d at 633. The Supreme Court's analysis in Abbott is particularly relevant in this

case:

The class of publications to be excluded is limited to those found

potentially detrimental to order and security; the likelihood that such

material will circulate with the prison raises the prospect of precisely the

kind of "ripple effect" with which the Court in Turner was concerned.

Where, as here, the right in question "can be exercised only at the cost of

significantly less liberty and safety for everyone else, guards and other

prisoners alike", the courts should defer to the "informed discretion of

corrections officials."

Thornburgh, 490 U.S. at 418,109 S.Ct. 1874 (quoting Turner, 482 U.S. at 90-92,107 S.Ct.

2254). Here, Defendants have pointed out that there is a risk in Plaintiff having these

materials as they could be disseminated throughout the prison. USP-Marion is a SOMP

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facility and has a particular concern in inmates in that program obtaining materials, like

Plaintiff's calendar, as it would be detrimental to their progress in the sex offender

program (Doc. 53-6, p. 8). The Court should defer to the discretion of the officials who

run this program in determining that such materials would be detrimental to the goals of

the SOMP program, even if Plaintiff is not a participant in the program.

Finally, tire fourth factor looks at "tire existence of alternatives suggesting that the

prison exaggerates its concerns." Munson, 673 F.3d at 633. "[I]f an inmate claimant

can point to an alternative that fully accommodates the prisoner's rights at de minimis

cost to valid penological interests, a court may consider that as evidence that the

regulation does not satisfy the reasonable relationship standard." Turner, 482 U.S. at

91,107 S.Ct. 2254. The burden of posing such an alternative is on the plaintiff. Mauro

v. Arpaio, 188 F.3d 1054, 1062 (9th Cir. 1999) (citing O'Lone v. Estate of Shabazz, 482

U.S. 342, 350, 107 S.Ct. 2400 (1987)). Plaintiff offers no such alternative, other than to

allow all inmates, including those in the sex offender program, to have access to

"sexually explicit" materials in order to test their rehabilitation.

As such, the

undersigned also finds that the fourth factor weighs in favor of Defendants.

Accordingly, the undersigned RECOMMENDS that the Court FIND that

Defendants have shown that the decision to reject such sexually suggestive materials, as

found in Plaintiff's requested calendar, are reasonably related to a legitimate penological

/

interest and Plaintiff has failed in his burden to show otherwise.

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C. Remaining Issues

Defendants have also sought summary judgment on the grounds that Plaintiff

failed to exhaust his administrative remedies as to the February 18, 2016 rejection of

Plaintiff's calendar and that Defendants were not personally involved in either rejection

of Plaintiff's calendar. However, as the undersigned finds that Plaintiff's claims either

fail for lack of subject matter jurisdiction or, in the alternative, that Defendants are

entitled to summary judgment on the merits, the undersigned need not further discuss

these two additional avenues for summary judgment.

Conclusion and Recommendation

Accordingly, it is RECOMMENDED that the Court FIND that Bivens should not

be extended to First Amendment violations and DISMISS Plaintiff's claim for lack of

subject matter jurisdiction. Should the Court REJECT the undersigned's findings as to

the Bivens issue, it is RECOMMENDED that the Court GRANT summary judgment on

the merits of Plaintiff's claim for violation of his First Amendment rights.

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1(b), the parties may object to

any or all of the proposed dispositive findings in this Recommendation. The failure to

file a timely objection may result in the waiver of the right to challenge this

Recommendation before either the District Court or the Court of Appeals. See, e.g.,

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Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004). Accordingly, Objections to this

Report and Recommendation must be filed on or before September 10,2018.

IT IS SO ORDERED.

DATED: August 24, 2018.

/s/ Stephen C. Williams_______

STEPHEN C. WILLIAMS

United States Magistrate Judge

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United States District Court

for the

Southern District of Illinois

NOTICE

Pursuant to Title 28 U.S.C. §636(b) and Rule 73.1(b) of the Local Rules of Practice in the

United States District Court for the Southern District of Fllinois, any party may serve and File

written OBJECTIONS to this Report and Recommendation/ Proposed Findings of Fact and

Conclusions of Law within fourteen (14) days of service.

Please note:

You are not to file an appeal as to the Report and

Recommendation/Proposed Findings of Fact and Conclusions of Law. At this point, it is

appropriate to file OBJECTIONS, if any, to the Report and Recommendation/ Proposed

Findings of Fact and Conclusions of Law. An appeal is inappropriate until after the District

Judge issues an Order either affirming or reversing the Report and Recommendation/ Proposed

Findings of Fact and Conclusions of Law of the U.S. Magistrate Judge.

Failure to file such OBJECTIONS shall result in a waiver of the right to appeal all issues,

both factual and legal, which are addressed in the Report and Recommendation/Proposed

Findings of Fact and Conclusions of Law. Video Views, Inc. v Studio 21, Ltd. and Joseph

Sclafani, 797 F.2d 538 (7th Cir. 1986).

You should e-file/mail your OBJECTIONS to the

Clerk, U.S. District Court, at the address indicated below:

301 West Main, Benton, IL 62812