Petition for Writ of Certiorari — Max Ray Butler, Petitioner v. S. Porter, et al.
Supreme Court briefNov 1, 2021
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APPENDIX
1a
APPENDIX A
United States Court of Appeals
for the Fifth Circuit
No. 19-30029
MAX RAY BUTLER,
Plaintiff—Appellant,
versus
S. PORTER; K. MORGAN; CALVIN JOHNSON; CAPTAIN REX;
CALEB GOTREAUX; KACI MAXEY; A. WHITE;
CHRISTOPHER GORE; JOHN DOES; SHU STAFF; SIA
LIEUTENANT S. BROWN; SIS TECHNICIAN R. RODRIGUEZ;
J. LEDOUX; F. COKER; C. ROBINSON; C. WILSON;
UNKNOWN OFFICER;
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:17-CV-230
Before OWEN, Chief Judge, and DENNIS and HAYNES,
Circuit Judges.
HAYNES, Circuit Judge:
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Max Ray Butler appeals the district court’s
dismissal of his First Amendment and Due Process
claims, denial of his motions for appointment of
counsel, and denial of leave to file a surreply and
amend his complaint. For the following reasons, we
AFFIRM in part and DISMISS in part.
I.
Background
Butler, a federal prisoner, filed a civil rights
complaint under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971), against various staff members (“Defendants”)
at the Oakdale Federal Correctional Complex. He
claimed that he had been held in the prison’s Special
Housing Unit (“SHU”) without due process for over
280 days, which he asserted was not the result of a
disciplinary violation. He also claimed that after he
filed a grievance concerning his detention, officials
manufactured a backdated detention order with
deficient or false information. He noted the harsh
conditions in SHU and said that his extended
confinement there could affect his mental health.
Butler contended that prison officials at Oakdale
had deprived him of his due process rights and
violated Bureau of Prisons (“BOP”) policy by
maintaining his close-custody status and by
recommending him for a prison transfer despite his
verbal and written complaints. He argued that his
continued stay in SHU and his transfer to another
facility constituted retaliation for his filing of
grievances. He alleged that he was deprived of
medical care, medications, and eyeglasses in further
retaliation.
In a supplement, construed as an
amended
complaint,
Butler
contended
that
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Defendants were retaliating against him and denying
him access to the courts by destroying commissary
requests and not allowing him to buy stamps.
Butler filed a series of motions for appointment of
counsel, which were all denied by the magistrate judge.
He also filed a series of amended complaints adding
defendants and further challenging his SHU detention.
The magistrate judge issued a report recommending
that most of Butler’s claims be dismissed as frivolous,
as moot, or as failing to state a claim. In relevant part,
the magistrate judge found that Butler had not alleged
a denial of due process for his SHU detention because
he was able to participate in some activities and had
not remained in SHU long enough to trigger a due
process interest. The magistrate judge also found that
the failure of Oakdale staff to follow BOP policies did
not rise to the level of a constitutional violation.
However, the magistrate judge found that Butler’s
assertions of retaliation were sufficient to allege a
constitutional violation and recommended that these
claims proceed. The magistrate judge ordered Butler
to amend his complaint to clarify which defendants
had retaliated against him.
Butler objected to the magistrate judge’s report. In
yet another amended complaint, Butler complained
about actions by officials and his continued SHU stay
at a new facility in California. He also sought
reconsideration of his due process claim.
The magistrate judge issued a supplemental report
and recommendation finding that Butler’s claims
against the defendants in California were not brought
in the proper forum and that the claims against the
Oakdale defendants not identified as participating in
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retaliatory acts should also be dismissed. With respect
to Butler’s motion for reconsideration, the magistrate
judge found that his argument relating to the duration
of time spent in SHU did not entitle him to relief
because he still had not met the threshold for atypical
close custody.
The district court adopted the
magistrate judge’s original and supplemental reports
and dismissed Butler’s claims, other than the one for
retaliation, under 28 U.S.C. § 1915(e)(2)(B).
Defendants moved to dismiss Butler’s retaliation
claims under Federal Rule of Civil Procedure 12(b)(6).
They argued that, in accordance with the reasoning in
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the district
court should decline to extend Bivens to address
claims of First Amendment retaliation.
In addition to responding (and then filing a laterstricken surreply), Butler also moved for leave to
amend his complaint after the magistrate judge issued
a third and final report and recommendation. The
magistrate judge originally granted Butler’s motion,
but later rescinded that order, noting that no
amendment had been attached and concluding that
despite having “multiple opportunities to amend his
complaint already,” Butler did “not provide adequate
excuse for his failure to uncover the legal standards
for the claims he first asserted . . . over twenty months
ago.” Butler later moved for leave to amend again,
which the district court denied.
The district court then dismissed Butler’s
remaining retaliation claim for failure to state a claim
for relief under Rule 12(b)(6). Butler filed a timely
notice of appeal and was later appointed counsel. He
now challenges (1) the district court’s refusal to extend
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Bivens to his First Amendment retaliation claim;
(2) the district court’s rejection of his due process claim
arising from his stay in the SHU; (3) the magistrate
judge’s denials of his motions for appointment of
counsel; and (4) the district court’s denials of his
motions for leave to file a surreply and an amended
complaint.
II.
Standard of review
We review a Rule 12(b)(6) dismissal de novo,
“accepting all well-pleaded facts as true and viewing
those facts in the light most favorable to the plaintiff[].”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(internal quotation marks and citation omitted).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “To survive a
motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 570). A pro se litigant’s pleadings are construed
liberally. Haines v. Kerner, 404 U.S. 519, 520–21
(1972).
The Prison Litigation Reform Act (“PLRA”) requires
a district court to dismiss a prisoner’s in forma
pauperis civil rights complaint if the court determines
that the action is frivolous or fails to state a claim upon
which relief may be granted. Black v. Warren, 134
F.3d 732, 733 (5th Cir. 1998) (per curiam); see 28 U.S.C.
§ 1915(e)(2)(B)(i)–(ii). We review a § 1915(e)(2)(B)(i)
dismissal as frivolous for abuse of discretion. Black,
134 F.3d at 734.
We review dismissals under
§ 1915(e)(2)(B)(ii) for failure to state a claim de novo,
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using the same standard applicable to Rule 12(b)(6)
dismissals. Id.
We review a district court’s decision on whether to
permit a surreply for abuse of discretion. See Austin v.
Kroger Tex., L.P., 864 F.3d 326, 336 (5th Cir. 2017)
(per curiam). We similarly review a district court’s
denial of leave to file an amended complaint for abuse
of discretion. Lowrey v. Tex. A & M Univ. Sys., 117
F.3d 242, 245 (5th Cir. 1997).
III.
A.
Discussion
Bivens
Butler first challenges the district court’s conclusion
that Bivens did not create an implied cause of action
for his First Amendment retaliation claim. We
recently addressed this issue and declined to extend
Bivens to First Amendment retaliation claims.
Watkins v. Three Admin. Remedy Coordinators of
Bureau of Prisons, No. 19-40869, 2021 WL 2070612, at
*3 (5th Cir. May 24, 2021). That holding binds us here.
Bivens recognized an implied cause of action against
federal employees for unreasonable searches and
seizures in violation of the Fourth Amendment. 403
U.S. at 389. Thereafter, the Supreme Court extended
Bivens in only two more cases: Davis v. Passman, 442
U.S. 228, 248–49 (1979) (gender discrimination in
violation of the Fifth Amendment) and Carlson v.
Green, 446 U.S. 14, 16–18 (1980) (failure to treat a
prisoner’s medical condition in violation of the Eighth
Amendment). See Abbasi, 137 S. Ct. at 1855 (“These
three cases—Bivens, Davis, and Carlson—represent
the only instances in which the Court has approved of
an implied damages remedy under the Constitution
itself.”). It has “never held that Bivens extends to First
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Amendment claims.” Reichle v. Howards, 566 U.S.
658, 663 n.4 (2012). Indeed, in recent decades, the
Supreme Court has “consistently refused to extend
Bivens to any new context.” Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 68 (2001) (emphasis added);
accord Abbasi, 137 S. Ct. at 1857 (noting that the
Court has refused to recognize new Bivens actions “for
the past 30 years” and listing a series of cases
involving such refusals).
In Abbasi, the Court stated that “[w]hen a party
seeks to assert an implied cause of action under the
Constitution itself . . . separation-of-powers principles
are or should be central to the analysis. The question
is who should decide whether to provide for a damages
remedy, Congress or the courts?” 137 S. Ct. at 1857
(internal quotation marks and citation omitted). “The
answer,” the Court concluded, “most often will be
Congress.” Id. This is because “[i]n most instances . . .
the Legislature is in the better position to consider if
the public interest would be served by imposing a new
substantive legal liability.” Id. (cleaned up). As a
result, “the Court has urged caution before extending
Bivens remedies into any new context.” Id. (internal
quotation marks and citation omitted).
Indeed,
“expanding the Bivens remedy is now considered a
disfavored judicial activity.” Id. (internal quotation
marks and citation omitted)
Recently, we have declined to extend Bivens to other
contexts. See, e.g., Hernandez v. Mesa, 885 F.3d 811,
823 (5th Cir. 2018) (en banc) (refusing to extend
Bivens to Fourth and Fifth Amendment claims arising
from a cross-border shooting), aff’d, 140 S. Ct. 735
(2020). We have noted that, “as First Amendment
retaliation claims are a ‘new’ Bivens context, it is
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unclear—and unlikely—that Bivens’s implied cause of
action extends this far.” Petzold v. Rostollan, 946 F.3d
242, 252 n.46 (5th Cir. 2019) (citing Abbasi, 137 S. Ct.
at 1859). This suspicion was later confirmed in
Watkins, which expressly “decline[d] to extend Bivens
to include First Amendment retaliation claims against
prison officials.” No. 19-40869, 2021 WL 2070612, at
*3.
Butler has not raised any issues that draw the
conclusion in Watkins into question due to the steps
we take in addressing a Bivens claim. The first step
requires determining “whether the claim arises in a
new Bivens context, i.e., whether the case is different
in a meaningful way from previous Bivens cases
decided by [the Supreme] Court.” Abbasi, 137 S. Ct.
at 1864 (internal quotation marks and citation
omitted). That is the case here. We have already
concluded that “First Amendment retaliation claims
are a ‘new’ Bivens context.”1 Petzold, 946 F.3d at 252
n.46; see also Brunson v. Nichols, 875 F.3d 275, 279
n.3 (5th Cir. 2017).
This “new” designation is
appropriate because previously recognized Bivens
remedies have arisen under different constitutional
amendments and factually distinct circumstances.
See Carlson, 446 U.S. at 16–18 (recognizing a Bivens
cause of action under the Eighth Amendment for a
deceased prisoner who was deprived medical attention
by prison officers who knew of his serious medical
condition); Davis, 442 U.S. at 229–34 (recognizing a
Indeed, we recently held that “Bivens claims are limited to
three situations . . . [v]irtually everything else is a new context.”
Byrd v. Lamb, No. 20-20217, 2021 WL 871199, at *2 (5th Cir. Mar.
9, 2021) (cleaned up).
1
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Bivens cause of action under the Due Process Clause
of the Fifth Amendment for a female employee who
was terminated based on her gender); Bivens, 403 U.S.
at 389–90 (recognizing a Bivens cause of action for
damages under the Fourth Amendment for an
unwarranted search and seizure of the plaintiff’s
apartment, as well as his arrest). Given our previous
holdings and the lack of Supreme Court precedent on
the issue, see Reichle, 566 U.S. at 663 n.4, we conclude
that Butler’s First Amendment retaliation claim
presents a new Bivens context, Watkins, No. 19-40869,
2021 WL 2070612, at *2. We thus proceed to the
second step of the analysis.
We also look at whether “there are special factors
counselling hesitation in the absence of affirmative
action by Congress.” Abbasi, 137 S. Ct. at 1857
(cleaned up). In such a case, “a Bivens remedy will not
be available.” Id.
The “special factors” inquiry “concentrate[s] on
whether the Judiciary is well suited, absent
congressional action or instruction, to consider and
weigh the costs and benefits of allowing a damages
action to proceed.” Id. at 1857–58. Such factors
include whether Congress has legislated on the right
at issue and whether alternative remedies exist for
protecting that right. Id. at 1858, 1862. Courts also
consider separation-of-powers concerns. Hernandez,
140 S. Ct. at 743. Importantly, “[e]ven before Abbasi
clarified the special factors inquiry, we agreed with
our sister circuits that the only relevant threshold—
that a factor counsels hesitation—is remarkably low.”
Hernandez, 885 F.3d at 823 (cleaned up).
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At least two special factors counsel hesitation here.
First, congressional legislation already exists in this
area. Congress addressed the issue of prisoners’
constitutional claims in the PLRA, 42 U.S.C. § 1997e,
which “does not provide for a standalone damages
remedy against federal jailers.” Abbasi, 137 S. Ct. at
1865. This supports a conclusion that Congress
considered—and rejected—the possibility of federal
damages for First Amendment retaliation claims like
Butler’s. 2 Such “legislative action suggesting that
Congress does not want a damages remedy is itself a
factor counseling hesitation.”3 Id.
Second, separation-of-powers concerns counsel
against extending Bivens. The Supreme Court has
recognized that
Butler points to § 806 of the PLRA as evidence that
Congress implicitly recognized a Bivens remedy in the context of
the PLRA. Such recognition is not surprising considering the
Supreme Court’s decision to extend Bivens to an Eighth
Amendment claim against prison officials for the failure to treat
an inmate’s life-threatening condition. See Carlson, 446 U.S. at
16 & n.1, 24–25. Relevant here, Butler offers no argument that
§ 806 indicates congressional intent to extend Bivens to a new
context. Therefore, congressional enactment of § 806 does
nothing to diminish the suggestion that Congress did not intend
for a standalone damages remedy against federal jailers, apart
from the one previously established before the PLRA’s enactment.
2
3
Another example of express congressional remedies
addresses a different part of the First Amendment: religious
freedom. Indeed, the Supreme Court recently decided a case
regarding the question of whether the Religious Freedom
Restoration Act of 1993 (“RFRA”) permits lawsuits seeking
monetary damages against individual federal employees (in other
words, a statute, not Bivens). See Tanzin v. Tanvir, 141 S. Ct.
486, 489 (2020). That statute is not at issue here, but it
illustrates Congress’s attention to this subject matter.
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[r]unning a prison is an inordinately difficult
undertaking that requires expertise, planning,
and the commitment of resources, all of which are
peculiarly within the province of the legislative
and executive branches of government. Prison
administration is, moreover, a task that has been
committed to the responsibility of those branches,
and separation of powers concerns counsel a
policy of judicial restraint.
Turner v. Safley, 482 U.S. 78, 84–85 (1987),
superseded by statute on other grounds, 42 U.S.C.
§ 2000cc-1(a), as recognized in Warsoldier v. Woodford,
418 F.3d 989, 994 (9th Cir. 2005). Extending Bivens
to First Amendment retaliation claims like Butler’s
would run afoul of this restraint and risk improperly
entangling courts in matters committed to other
branches. Indeed, because of the very complex nature
of managing federal prisons, such a holding would
substantially impinge on the executive branch, in
addition to the legislative branch. Such a result would
be a paradigmatic violation of separation-of-powers
principles.
Additionally, as Watkins explained, a robust
amount of case law from other circuits supports this
conclusion. See, e.g., Earle v. Shreves, No. 19-6655,
2021 WL 896399, at *5 (4th Cir. Mar. 10, 2021)
(declining to extend a Bivens remedy to include a
prisoner’s First Amendment retaliation claim because
“special factors” counseled hesitation, including
considerations that there could be “significant
intrusion into an area of prison management” and that
“other avenues [were] available”); Callahan v. Fed.
Bureau of Prisons, 965 F.3d 520, 523–26 (6th Cir. 2020)
(declining to extend Bivens to a prisoner’s First
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Amendment retaliation claim because of the existence
of the PLRA, availability of alternative means of relief,
and separation-of-powers concerns); Bistrian v. Levi,
912 F.3d 79, 95–96 (3d Cir. 2018) (declining to extend
Bivens to a prisoner’s First Amendment retaliation
claim because it “involve[d] executive policies,
implicate[d] separation-of-power concerns, and
threaten[ed] a large burden to both the judiciary and
prison officials”); Vega v. United States, 881 F.3d 1146,
1153–55 (9th Cir. 2018) (declining, “[i]n light of the
available alternative remedies,” to extend Bivens to a
former prisoner’s First and Fifth Amendment claims).
As a result, even if Watkins had come out the other
way, this case would be subject to qualified immunity
given the lack of “clearly established” law supporting
Butler’s claim. See Lane v. Franks, 573 U.S. 228, 243–
46 (2014) (internal quotation and citation omitted).
B.
Due Process
Butler next argues that Defendants violated his due
process rights by placing him in SHU. The district
court sua sponte dismissed this claim under 28 U.S.C.
§ 1915(e)(2)(B). Butler v. Porter, No. 2:17-CV-230,
2018 WL 505333, at *1 (W.D. La. Jan. 19, 2018). We
affirm.
As a general rule, “[a]n inmate has neither a
protectible property nor liberty interest in his custody
classification.” Moody v. Baker, 857 F.2d 256, 257–58
(5th Cir. 1988) (per curiam). Great deference is
accorded to prison officials in their determination of
custodial status. See Wilkerson v. Goodwin, 774 F.3d
845, 852 (5th Cir. 2014). Thus, “absent extraordinary
circumstances, administrative segregation as such,
being an incident to the ordinary life as a prisoner, will
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never be a ground for a constitutional claim.”
Pichardo v. Kinker, 73 F.3d 612, 612 (5th Cir. 1996).
In other words, segregated confinement is not grounds
for a due process claim unless it “imposes atypical and
significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner,
515 U.S. 472, 484 (1995). We look specifically at the
severity and duration of restrictive conditions to
decide whether a prisoner has a liberty interest in his
custodial classification. Wilkerson, 774 F.3d at 854–
55; accord Bailey v. Fisher, 647 F. App’x 472, 476–77
(5th Cir. 2016) (per curiam).4
The Supreme Court has recognized that there are
circumstances where solitary confinement, in
conjunction
with
indefinite
duration
and
disqualification from parole, can constitute such
hardship. Wilkinson v. Austin, 545 U.S. 209, 223–24
(2005). Regarding the duration of the restrictive
confinement, we have said “that two and a half years
of segregation is a threshold of sorts for atypicality . . .
such that 18–19 months of segregation under even the
most isolated of conditions may not implicate a liberty
interest.” Bailey, 647 F. App’x at 476 (citing Wilkerson,
774 F.3d at 855).
In Wilkinson, the Supreme Court concluded that the
defendant experienced “atypical and significant
hardship” because he was in an Ohio Supermax
facility and prohibited from “almost all human
contact,” including communication with other inmates;
the lights were on for twenty-four hours per day; he
“An unpublished opinion issued after January 1, 1996 is
not controlling precedent, but may be persuasive authority.”
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006).
4
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could exercise only one hour per day in a small room;
review of placement occurred only annually; and
placement in the facility disqualified an inmate from
parole consideration. 545 U.S. at 223–24. Here, in
contrast, the magistrate judge found that Butler could
take courses, had weekly access to a telephone, and
could exercise outside. Moreover, Butler provided
documentation showing that prison officials reviewed
his SHU stay at least monthly and sometimes weekly.
Butler does not challenge the determination that
the conditions he faced in the SHU were not onerous
enough to constitute an atypical prison situation. See
Wilkerson, 774 F.3d at 854–55; Bailey, 647 F. App’x at
476–77. He has thus abandoned this argument. See
Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Moreover, Butler is unable to show that the conditions
in the SHU were severe enough to implicate due
process concerns.
Butler instead argues that his circumstances
implicated a liberty interest, relying upon internal
regulations. However, “[o]ur case law is clear . . . that
a prison official’s failure to follow the prison’s own
policies, procedures or regulations does not constitute
a violation of due process, if constitutional minima are
nevertheless met.” Myers v. Klevenhagen, 97 F.3d 91,
94 (5th Cir. 1996) (per curiam). Because Butler did
not allege a protectable liberty interest, he has not
shown that any omissions in process violated the
Constitution,5 regardless of whether the prison did or
did not follow its own policies.
With respect to Butler’s complaint that his transfer to a
higher-security BOP facility implicates due process concerns, the
Supreme Court has held, in the case of a state prisoner, that the
5
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C.
Appointment of Counsel
The magistrate judge denied Butler’s motions for
appointment of counsel. Butler challenges these
denials, noting that he requested an attorney because
he lacked legal training.
If a magistrate judge’s order is “clearly erroneous or
contrary to law,” a district court judge may reconsider
the matter. 28 U.S.C. § 636(b)(1)(A). But Butler did
not seek district court review of the magistrate judge’s
rulings; he instead filed a letter describing his efforts
to retain counsel. Later, he filed another motion to
appoint counsel, but (again) did not mention a possible
appeal to the district court.
Because we lack
jurisdiction to hear appeals directly from a magistrate
judge, we cannot consider his arguments. See United
States v. Renfro, 620 F.2d 497, 500 (5th Cir. 1980); see
also Wren v. Curtis, 697 F. App’x 304, 304 (5th Cir.
2017) (per curiam). We thus dismiss this portion of
Butler’s appeal.
D.
Denial of Butler’s Other Motions
Butler appeals the district court’s denial of his
motion for leave to file a surreply following Defendants’
motion to dismiss. We review this decision for abuse
of discretion. See Austin, 864 F.3d at 336. Butler fails
to show any such abuse. He contends that delays in
his mail caused by Defendants’ counsel resulted in his
surreply being “misconstrued” as an objection, and the
district court should have had the “due diligence” to
consider whether he had “pointed” out legal issues in
Due Process Clause does not protect a convicted prisoner against
transfer from one institution to another within the state’s prison
system, even if “life in one prison is much more disagreeable than
in another.” Meachum v. Fano, 427 U.S. 215, 225 (1976).
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his filing. However, the district court was not required
to review the merits of Butler’s claims;6 Butler failed
to move for leave of court to file his surreply and the
third report and recommendation on Defendants’
motion to dismiss had already issued. We cannot
therefore say that the district court erred in striking
his surreply.
See RedHawk Holdings Corp. v.
Schreiber Tr. ex rel. Schreiber Living Tr., 836 F. App’x
232, 235 (5th Cir. 2020) (per curiam) (acknowledging
there is “no right to file a surreply and surreplies are
‘heavily disfavored’”).
Butler also asserts that the district court should
have granted his two motions for leave to file an
amended complaint. In particular, Butler sought
leave to amend to include various Eighth Amendment
claims, which were dismissed sua sponte.7 He argues
that this dismissal was improper because he had
“stated” the factual basis for his Eighth Amendment
claims in his complaint and other filings and thus
should have been granted another opportunity to
amend his complaint. In addition, Butler maintains
that he should have been permitted to amend his
Butler did not allege that Defendants’ reply brief raised
new arguments or that the district court relied on those new
arguments in making its decision. See RedHawk Holdings Corp.
v. Schreiber Tr. ex rel. Schreiber Living Tr., 836 F. App’x 232, 235
(5th Cir. 2020) (per curiam) (acknowledging that “a district court
abuses its discretion when it denies a party the opportunity to file
a surreply in response to a reply brief that raised new arguments
and then relies solely on those new arguments it its decision”).
Indeed, Defendants’ reply brief focused on responding to Butler’s
arguments, including his new Eighth Amendment claim.
6
Butler’s First and Eighth Amendment claims were the
focus of his oral argument and supplemental briefing.
7
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complaint because he could add new factual
allegations and legal claims, noting that relevant
“events and information occurred after the original
filings[,] so it was not possible” for him to raise the
claims earlier. We disagree.
A party may amend a pleading—as of right—within
twenty-one days after serving it or within twenty-one
days after being served a mandatory responsive
pleading.
FED. R. CIV. P. 15(a)(1).
All other
amendments require leave of court, although the court
should “freely give leave when justice so requires.” Id.
15(a)(2). Reasons for denying leave to amend include
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Lowrey,
117 F.3d at 245 (quoting Foman v. Davis, 371 U.S. 178,
182 (1962)).
We observe that Butler did not mention the Eighth
Amendment at all in his initial complaint or all its
elements. Nor did he mention the Eighth Amendment
in six additional filings that the district court
construed as amendments to his complaint. In fact,
the grounds for his later asserted Eighth Amendment
claims were discussed solely in the context of his due
process and retaliation claims. In other words, there
was nothing to put the court on notice that Butler was
trying to raise an Eighth Amendment claim at all until
well into the proceedings—after Defendants moved to
dismiss.
When Butler finally moved to amend his complaint
to include his Eighth Amendment claims, the
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magistrate judge had already issued the final report
and recommendation. After the magistrate judge
denied his motion, Butler again moved to amend. The
magistrate judge denied this motion as well, and
Butler objected. Although the district court did not
explicitly rule on this objection, its entry of judgment
without granting leave to amend was an implicit
denial. See Norman v. Apache Corp., 19 F.3d 1017,
1021 (5th Cir. 1994) (“The denial of a motion by the
district court, although not formally expressed, may be
implied by the entry of a final judgment or of an order
inconsistent with the granting of the relief sought by
the motion.”).
The district court’s denial was justified.8 Contrary
to Butler’s assertions, he had been given numerous
opportunities to amend his complaint. He could have
added new information that occurred after his initial
complaint in those earlier filings. Moreover, he fails
to explain what part of and why the factual basis for
his Eighth Amendment claims9 were not available at
the time of the original complaint. Thus, Butler has
Though the district court did not explain the reasons for its
implicit denial, we “may affirm on any grounds supported by the
record.” McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000).
8
9
Butler also sought to raise a Fourth Amendment claim
regarding mail tampering. The magistrate judge construed
Butler’s mail related complaints as a First Amendment claim,
and Butler never challenged this interpretation. Butler later
discussed various mail tampering claims, in-depth, in his sixth
amended complaint, but that complaint referred to First
Amendment claims, not Fourth Amendment ones. He also
mentioned that Defendants opened a sealed letter in March 2017,
which could have been discussed in various amended complaints.
Therefore, Butler could have raised his Fourth Amendment claim
at an earlier date.
19a
not shown that he should have been permitted to
amend his complaint and that various factors justified
such a denial. See Lowrey, 117 F.3d at 245 (listing
“undue delay,” “prejudice,” and “repeated failure to
cure deficiencies by amendments previously allowed”
as reasons to deny leave to amend) (quoting Foman,
371 U.S. at 182)); see, e.g., Harris v. BASF Corp., 81 F.
App’x 495, 496 (5th Cir. 2003) (per curiam) (holding
that the district court did not abuse its discretion in
deciding that allowing the plaintiff to expand his
action from three claims to eight would cause undue
delay and undue prejudice to the defendant, late in the
proceedings).10 In sum, the district court did not abuse
its discretion in denying Butler’s motions to amend his
complaint. See Lowrey, 117 F.3d at 245.
Accordingly, the portion of Butler’s appeal
concerning appointment of counsel is DISMISSED for
want of jurisdiction. In all other respects, the
judgment of the district court is AFFIRMED.
10 To the extent that Butler sought to identify defendants who
participated in retaliatory acts against him, the magistrate judge
had already recommended dismissing these claims because they
were not cognizable under Bivens. The district court adopted the
magistrate judge’s conclusion. Thus, any amendment to identify
the individuals who retaliated against Butler would have been
futile. See Lowrey, 117 F.3d at 245.
20a
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MAX RAY BUTLER CASE NO.
2:17-CV-00230 SEC P
#09954-011
VERSUS
JUDGE SUMMERHAYS
S PORTER ET AL
MAGISTRATE JUDGE KAY
JUDGMENT
For the reasons stated in the Report and
Recommendation [Doc. No. 69] of the Magistrate
Judge previously filed herein and after an
independent review of the record, a de novo
determination of the issues, and consideration of the
objections filed herein, and having determined that
the findings are correct under applicable law;
IT IS ORDERED that the defendants’ Motion to
Dismiss [Doc. No. 56] be GRANTED and that this
case be DISMISSED WITH PREJUDICE under
Rule 12(b)(6) of the Federal Rules of Civil Procedure.
THUS DONE in Chambers on this 2nd day of
January, 2019.
21a
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MAX RAY BUTLER
B.O.P. # 09954011
v.
S. PORTER, ET AL.
*
*
*
*
*
*
*
CIVIL ACTION NO.
2:17-CV-230
UNASSIGNED
DISTRICT JUDGE
MAGISTRATE
JUDGE KAY
***********************************************
JUDGMENT
For the reasons stated in the Report and
Recommendation (Rec. Doc. 30), and supplemental
Report and Recommendation (Rec. Doc. 42), of the
Magistrate Judge previously filed herein, after an
independent review of the record, a de novo
determination of the issues, and determining that the
findings are correct under applicable law, the Court
hereby adopts the Report and Recommendation, as
well
as
the
supplemental
Report
and
Recommendation. Accordingly,
IT IS ORDERED that the defendants Russell L.
Johnson, Associate Warden Weeks, B. Moorehead,
J.A. Keller, Becky Clay, Terrance M. Steffey, Dante
Alexander, and Lieutenant Brian A. Nichols be and
are hereby DISMISSED WITH PREJUDICE from
this matter.
22a
IT IS FURTHER ORDERED that all claims
against Warden Swain, J. Sorenson, Officer Tyson,
and Michael Rios be and are hereby DISMISSED
WITHOUT PREJUDICE to Butler pursuing such
claims in the proper forum.
IT IS FURTHER ORDERED that Butler’s Motion
to Reconsider (Rec. Doc. 40) be and is hereby
DENIED, and for the reasons detailed in the Report
and Recommendation (Rec. Doc. 30), and supplement
thereto (Rec. Doc. 42), all of Butler’s claims, with the
exception of the retaliation claims, be and are hereby
DENIED AND DISMISSED WITH PREJUDICE
as frivolous and for failing to state a claim upon which
relief can be granted in accordance with 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii).
THUS DONE AND SIGNED, in Shreveport,
Louisiana, this 19th day of January, 2018.
23a
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MAX RAY BUTLER
REG. # 09954-011
:
DOCKET NO.
2:17-cv-0230
VERSUS
:
UNASSIGNED
DISTRICT JUDGE
S. PORTER, ET AL.
:
MAGISTRATE
JUDGE KAY
REPORT AND RECOMMENDATION
Before the court is a Motion to Dismiss [doc. 56] filed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure by all remaining defendants in this suit.
The matter has been referred to the undersigned for
review, report, and recommendation in accordance
with the provisions of 28 U.S.C. § 636.
I.
BACKGROUND
The motion to dismiss relates to a pro se civil rights
suit filed in this court under Bivens v. Six Unknown
Named Agents, 91 S.Ct. 1999 (1971), by plaintiff Max
Ray Butler. Doc. 1. Butler is an inmate in the custody
of the Bureau of Prisons (“BOP”) and was incarcerated
at the Federal Correctional Institute at Oakdale,
Louisiana (“FCIO”) when the complained-of events
24a
occurred. Id. After initial review and the filing of
multiple amended complaints, Butler’s sole surviving
claim is that he was confined in the Special Housing
Unit (“SHU”) in retaliation for filing administrative
grievances and the current lawsuit. Docs. 1, 36; see
docs. 30, 42, 51. In his original complaint, filed on
February 3, 2017, Butler alleged that he had been in
SHU since April 25, 2016, and that the reasons he was
given for this placement included a threat against him
and an ongoing investigation. Doc. 1. He also listed
the multiple grievances he had filed while in SHU and
alleged that he had been continued in SHU without
the required review. Id. He has since been transferred
to another federal facility and released from SHU,
though he complains that the new facility is more
dangerous and that he avoids filing any
administrative grievances out of fear of further
retaliation. Doc. 64, pp. 8–9.
The defendants now move to dismiss the suit,
asserting that Butler’s retaliation claim is not
cognizable under Bivens. Doc. 56, att. 1. They also
maintain that, even if a Bivens remedy is implied, all
federal defendants are entitled to qualified immunity.
Doc. 60.
Butler opposes the motion and the
defendants have filed a reply. Docs. 64, 68.
II.
LAW & ANALYSIS
A. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure
allows for dismissal of a claim when a plaintiff “fail[s]
to state a claim upon which relief can be granted.”
When reviewing such a motion, the court should focus
exclusively on the complaint and its attachments.
25a
Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012).
Such motions are also reviewed with the court
“accepting all well-pleaded facts as true and viewing
those facts in the light most favorable to the plaintiff.”
Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th
Cir. 2010). However, “the plaintiff must plead enough
facts ‘to state a claim to relief that is plausible on its
face.’” In re Katrina Canal Breaches Litig., 495 F.3d
191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 127 S.Ct. 1955, 1974 (2007)). “A pleading
that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not
do. Nor will a complaint suffice if it tends naked
assertions devoid of further factual enhancement.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (cleaned
up). Instead, the complaint must contain enough
factual matter to raise a reasonable expectation that
discovery will reveal evidence of each element of the
plaintiff’s claim. Lormand v. US Unwired, Inc., 565
F.3d 228, 257 (5th Cir. 2009). Accordingly, the court’s
task in evaluating a motion to dismiss under
Rule 12(b)(6) is “not to evaluate the plaintiff’s
likelihood of success,” but instead to determine
whether the claim is both legally cognizable and
plausible.
Billups v. Credit Bureau of Greater
Shreveport, 2014 WL 4700254, *2 (W.D. La. Sep. 22,
2014) (quoting Lone Star Fund V (U.S.), L.P. v.
Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).
B. Application
The Civil Rights Act of 1871 created a broad right of
action for damages against state officials for
“deprivation of any rights, privileges, or immunities
secured by the Constitution . . . .” 42 U.S.C. § 1983
(emphasis added); see Ziglar v. Abbasi, 137 S.Ct. 1843,
26a
1854 (2017). However, it did not create an analogous
remedy for constitutional violations by federal officials
and no such right of action existed until the Supreme
Court’s decision in Bivens, supra, exactly one hundred
years later. Abbasi, 137 S.Ct. at 1854. There the
Court enforced a damages remedy to compensate
persons injured by federal officials who violated the
Fourth Amendment prohibition against unreasonable
searches and seizures. Bivens, 91 S.Ct. at 2004–05.
The Court then extended the remedy authorized under
Bivens twice more, to a violation of the Fifth
Amendment’s Due Process guarantee based on an
employment discrimination claim and a violation of
the Eighth Amendment’s ban on cruel and unusual
punishment based on a federal jailer’s failure to treat
a prisoner’s asthma. See Davis v. Passman, 99 S.Ct.
2264 (1979); Carlson v. Green, 100 S.Ct. 1468 (1980).
As the Court recently noted, “[t]hese three cases . . .
represent the only instances in which the Court has
approved of an implied damages remedy under the
Constitution itself.” Abbasi, 137 S.Ct. at 1855. In the
decades since, the Court has made
[a] notable change in [its] approach to recognizing
implied causes of action, [and] made clear that
expanding the Bivens remedy is now a
“disfavored” judicial activity. Iqbal, 556 U.S., at
675, 129 S.Ct. 1937. This is in accord with the
Court’s observation that it has “consistently
refused to extend Bivens to any new context or
new category of defendants.”
Correctional
Services Corp. v. Malesko, 534 U.S. 61, 68, 122
S.Ct. 515, 151 L.Ed.2d 456 (2001). Indeed, the
Court has refused to do so for the past 30 years.
27a
Id. at 1857; see also Corr. Svcs. Corp. v. Malesko, 122
S.Ct. 515, 524 (2001) (Scalia, J., concurring) (“Bivens
is a relic of the heady days in which this Court
assumed common-law powers to create causes of
action—decreeing them to be ‘implied’ by the mere
existence
of
a
statutory
or
constitutional
prohibition. . . . [W]e have abandoned that power to
invent ‘implications’ in the statutory field [and there]
is even greater reason to abandon it in the
constitutional field . . . .”)1
In this regard, the Court distinguishes recognizing implied
causes of actions under § 1983 from recognizing them under the
Constitution itself through Bivens:
1
When Congress enacts a statute, there are specific
procedures and times for considering its terms and the
proper means for its enforcement. It is logical, then, to
assume that Congress will be explicit if it intends to create
a private cause of action. With respect to the Constitution,
however, there is no single, specific congressional action to
consider and interpret.
Even so, it is a significant step under separation-ofpowers principles for a court to determine that it has the
authority, under the judicial power, to create and enforce a
cause of action for damages against federal officials in order
to remedy a constitutional violation. When determining
whether traditional equitable powers suffice to give
necessary constitutional protection—or whether, in
addition, a damages remedy is necessary—there are a
number of economic and governmental concerns to consider.
Claims against federal officials often create substantial
costs, in the form of defense and indemnification. Congress,
then, has a substantial responsibility to determine whether,
and the extent to which, monetary and other liabilities
should be imposed upon individual officers and employees
of the Federal Government. In addition, the time and
administrative costs attendant upon intrusions resulting
28a
In Butts v. Martin, the Fifth Circuit reviewed, in
relevant part, the district court’s decision on a
prisoner’s Bivens claims based on retaliation and
violation of the Free Exercise Clause of the First
Amendment. The court acknowledged that it had
previously held that “a Bivens action is analogous to
an action under § 1983—the only difference being that
§ 1983 applies to constitutional violations by state,
rather than federal, officials.” Butts, 877 F.3d 571, 588
(5th Cir. 2017) (quoting Evans v. Ball, 168 F.3d 856,
863 n. 10 (5th Cir. 1999)). It also recognized that it
“[had] largely permitted Bivens claims against prison
officials alleging retaliation for exercising a
constitutional right without addressing whether a
Bivens remedy is available for such claims.” Id. at 589.
It noted, however, that the Supreme Court had not
recognized a Bivens remedy for First Amendment
violations like the ones presented there and had
recently expressed strong skepticism under Abbasi
against the creation of new causes of action under
Bivens. Id. at 587–89.
The Fifth Circuit then instructed the district court
to determine whether a Bivens remedy was available
under Butts’s free exercise and retaliation claims,
using the following test:
In order to determine whether a Bivens remedy
is available, courts must first assess whether
Butts’s claim presents a new Bivens context. See
Iqbal, 556 U.S. at 675, 129 S.Ct. 1937 (quoting
Malesko, 534 U.S. at 68, 122 S.Ct. 515). If so,
from the discovery and trial process are significant factors
to be considered.
Abbasi, 137 S. Ct. at 1856.
29a
there are two circumstances where Bivens does
not recognize an implied cause of action for
constitutional violations. First, Bivens claims are
unavailable “if there are ‘special factors
counselling hesitation in the absence of
affirmative action by Congress.’” Abbasi, 137
S.Ct. at 1857 (quoting Carlson, 446 U.S. at 18,
100 S.Ct. 1468); see also Zuspann v. Brown, 60
F.3d 1156, 1160 (5th Cir. 1995) (quoting Bivens,
403 U.S. at 396, 91 S.Ct. 1999). Second, Bivens
remedies may be foreclosed by congressional
action where an “alternative, existing process for
protecting the interest amounts to a convincing
reason 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, 168 L.Ed.2d 389 (2007).
Id. at 587–88. The case was remanded to the United
States District Court for the Eastern District of Texas,
where a Motion to Dismiss is currently pending. See
Butts v. Martin, No. 1:12-cv-114 (E.D. Tex.).
Accordingly, we now apply the test outlined by the
Fifth Circuit to determine whether a Bivens remedy is
available for Butler’s retaliation claim.
A claim presents a new Bivens context if it differs
“in a meaningful way from previous Bivens cases
decided by [the Supreme Court].” Abbasi, 137 S.Ct. at
1859. The retaliation claim presents a new Bivens
context under the limits recognized by the Supreme
Court because it involves a different constitutional
right—the First Amendment—than the ones approved
30a
for Bivens remedies under the Court’s prior decisions.2
See Reichle v. Howard, 132 S.Ct. 2088, 2093 n. 4 (2012)
(“We have never held that Bivens extends to First
Amendment claims.”); see also Andrews v. Miner, 301
F.Supp.3d 1128, 1133–34 (N.D. Ala. 2017) (noting that
Court has at times assumed that a First Amendment
Bivens action exists, but has never actually decided
the matter or otherwise discussed the propriety of the
remedy).
The defendants argue that this court should decline
to extend a Bivens remedy to Butler’s retaliation
claim, on the basis that (1) special factors counsel
hesitation in such an expansion and (2) alternative,
existing processes preclude the Bivens remedy. Under
the first prong, defendants point to the general
concerns outlined in Abbasi, supra, on judiciallycreated remedies. Doc. 56, att. 1, p. 18. Specifically,
they argue that extension of Bivens in this context
would violate Congress’s intent, create increased costs
on the Bureau of Prisons, and have a harmful effect on
institutional security and federal officers’ discharge of
their duties.3 Id. at 21–26.
Butler argues that he has raised Due Process and Eighth
Amendment violations. Doc. 64, p. 10. To the extent that he is
discussing claims already dismissed, these have no bearing on the
issue before us. To the extent that he argues that his sole
remaining claim, based on retaliation for filing administrative
grievances, arises under these constitutional provisions rather
than the First Amendment, he is incorrect. See, e.g., Butts, 877
F.3d at 588–89.
2
They also argue the existence of an alternative remedy.
Doc 56, att. 1, pp. 19–20. We reserve that factor for the second
prong of the test outlined in Butts, and address it only if we do
3
31a
As the Court observed in Abbasi, the threshold for
this first factor is low: a special factor must only
“cause a court to hesitate” in order to weigh against
implying a new Bivens remedy. 137 S.Ct. at 1858.
Any such factors are reviewed in the aggregate. Id. at
1857–58, 1860–63. We note the recent distillation of
the concerns involved in extending Bivens to a
prisoner’s retaliation claim by the Northern District of
Alabama in Andrews, supra. The court pointed out
there that such an extension “could lead to the
unwanted result of inmates filing grievances against
correctional officers and then claiming that any use of
force [or, in this case, disciplinary segregation] by the
officers resulted from retaliatory animus.” Andrews,
supra, 301 F.Supp.3d at 1135. It further observed:
Any increase in suits by inmates necessarily
involves increased litigation costs to the
Government and burdens on the individual
employees who must defend such claims. First
Amendment retaliation claims, requiring inquiry
into a defendant’s subjective state of mind, often
would present genuine issues of material fact not
easily resolved on summary judgment. This, in
turn, would necessitate trials and further
increase litigation costs.
Id. As the defendants point out, extension of the
remedy would therefore not only increase costs of
defending against such claims but could also unduly
limit officers in their use of disciplinary segregation as
a security measure at the prisons. Though the court
is aware of the potential hardships of disciplinary
not find the government’s other arguments under the first prong
persuasive.
32a
segregation and the ways in which inmates might be
retaliated against for filing legitimate grievances,
concerns of institutional security in particular counsel
more than mere hesitation.
Butler maintains that such special factors are
insufficient in his case because he challenges
individual instances of overreach by federal employees
that do not implicate the national security or executive
policy considerations cited in Abbasi, a case involving
alien detainees held on immigration violations in the
wake of the September 11, 2001 terrorist attacks.
Doc. 64, p. 14. As the Court pointed out in Abbasi,
however, “legislative action suggesting that Congress
does not want a damages remedy is itself a factor
counseling hesitation.”
137 S.Ct. at 1865.
Accordingly, Congress’s efforts to limit prisoner suits
through the Prison Litigation Reform Act of 1995, and
failure therein to provide a standalone remedy against
federal jailers, likewise weighs against the extension
of Bivens in his case. See Badley v. Granger, 2018 WL
3022653, at *4 (S.D. Ind. Jun. 18, 2018) (rejecting
extension of Bivens to prisoner’s retaliation claim
under Abbasi, based in part on Congress’s history of
attempting to curb prisoner suits); Reid v. United
States, 2018 WL 1588264, at *3 (E.D. Cal. Apr. 2,
2018) (same).
The above special factors are sufficient to dictate
hesitation in extending Bivens to Butler’s retaliation
claim. Furthermore, we have not located a single case
post-Abbasi in which a court has determined that
Bivens should be extended to First Amendment
retaliation claims against BOP employees. On that
basis we decline to extend the remedy here and do not
address whether an “alternative, existing process for
33a
protecting the interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new
and freestanding remedy in damages.” Butts, supra,
877 F.3d at 587–88 (quoting Wilkie v. Robbins, 127
S.Ct. 2588 (2007)). Butler’s complaint must therefore
be dismissed for failure to state a claim on which relief
can be granted.
III.
CONCLUSION
For
the
reasons
stated
above,
IT
IS
RECOMMENDED that the Motion to Dismiss
[doc. 56] be GRANTED and that this case be
DISMISSED WITH PREJUDICE under Federal
Rule of Civil Procedure 12(b)(6).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b)
of the Federal Rules of Civil Procedure, the parties
have fourteen (14) days from receipt of this Report and
Recommendation to file written objections with the
Clerk of Court. Failure to file written objections to the
proposed factual findings and/or the proposed legal
conclusions
reflected
in
this
Report
and
Recommendation within fourteen (14) days of receipt
shall bar an aggrieved party from attacking either the
factual findings or the legal conclusions accepted by
the District Court, except upon grounds of plain error.
See Douglass v. United Services Automobile Ass’n, 79
F.3d 1415, 1429–30 (5th Cir. 1996).
THUS DONE AND SIGNED in Chambers this 10th
day of September, 2018.
34a
APPENDIX E
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MAX RAY BUTLER
B.O.P. # 09954011
:
DOCKET NO.
17-cv-230
VERSUS
:
UNASSIGNED
DISTRICT JUDGE
S. PORTER, ET AL.
:
MAGISTRATE
JUDGE KAY
SUPPLEMENTAL REPORT AND
RECOMMENDATION
Before the court is a civil rights complaint filed by
plaintiff Max Ray Butler (“Butler”). Doc. 1.
Butler is proceeding in forma pauperis in this
matter. Doc. 10. Butler is an inmate in the custody of
the Federal Bureau of Prisons (“BOP”).1 He complains
about events that occurred while he was incarcerated
at the Federal Correctional Institute in Oakdale,
Louisiana (“FCIO”). He was subsequently transferred
to the Federal Correctional Institution in Victorville,
California (“FCIV”). See doc. 25.
This matter arises under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 91 S. Ct. 1999 (1971). Bivens
authorizes civil rights suits filed against federal agents or
employees for a violation of a constitutional right.
1
35a
This matter has been referred to the undersigned
for review, report, and recommendation in accordance
with the provisions of 28 U.S.C. § 636 and the standing
orders of the court.
I.
BACKGROUND
The claims originally asserted by Butler in this
matter have been thoroughly addressed by this court
in the Report and Recommendation issued on
August 1, 2017, and will not be reiterated herein.
Doc. 30. Via the Report and Recommendation, the
court recommended that all of Butler’s claims be
dismissed except for his retaliation claims. On the
same day the court issued an order instructing Butler
to amend his complaint to state which defendants
remained parties to the suit under his claims of
retaliation only. Doc. 31. Butler’s response to the
amend order was received by the court on August 31,
2017. Doc. 36. Butler’s response also requests the
preservation of “John Doe” defendants. Id. at 4.
Butler then filed an amended complaint, asserting
civil rights claims against officers at FCIV based on
alleged acts of retaliation. Doc. 38. Further, on
October 19, 2017, Butler filed a Motion to Reconsider
Due Process Claim in Light of the Passage of Time.
Doc. 40. Therein, he asked the court to reconsider its
ruling recommending dismissal of his claims based on
solitary confinement as “the duration of [his] SHU
confinement has changed due to the passage of time.”
Id.
The court has prepared a memorandum order for
service of process on the following defendants
identified by Butler: Warden Calvin Johnson, J.
36a
Ledoux, F. Coker, C. Robinson, C. Wilson, R.
Rodriguez, A. White, Kaci Maxey, Caleb Gotreaux,
Captain Rex, S. Porter, K. Morgan, S. Brown, and
Lieutenant Gore. We now consider the presence of the
remaining defendants in this matter, the amended
complaint, and Butler’s request for reconsideration.
II.
LAW & ANALYSIS
A. Frivolity Review
Butler has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Doc. 10.
Under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), a district
court is directed to dismiss an action if the court
determines that the action is frivolous, malicious, or
fails to state a claim on which relief may be granted.
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998).
A complaint is frivolous if it lacks an arguable basis
in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019
(5th Cir. 1998) (citing Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997)). A complaint fails to state a
claim upon which relief may be granted if it is clear
the plaintiff cannot prove any set of facts in support of
his claim that would entitle him to relief. Doe v. Dallas
Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). In
determining whether a complaint is frivolous or fails
to state a claim upon which relief may be granted, the
court must accept the plaintiff’s allegations as true.
Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995)
(frivolity); Bradley, 157 F.3d at 1025 (failure to state a
claim).
37a
B. Non-Retaliation Defendants
As stated above, Butler was specifically ordered to
name the defendants alleged to be involved in his
retaliation claims. The following named defendants
were not identified by Butler as part of those claims:
Russell L. Johnson, Associate Warden Weeks, B.
Moorehead, J.A. Keller, Becky Clay, Terrance M.
Steffey, Dante Alexander, Lieutenant Brian A.
Nichols, Warden Swain, J. Sorenson, Officer Tyson,
and Michael Rios.
It appears that Warden Swain, J. Sorenson, Officer
Tyson, and Michael Rios are located at FCIV, Butler’s
present place of incarceration. Doc. 38. Butler has
filed an amended complaint raising civil rights claims
against these defendants, based on alleged incidents
of retaliation that began after he filed a copout to the
FCIV warden. Id. Butler’s claims against these
defendants should be dismissed without prejudice as
the proper forum for such claims is the United States
District Court for the Central District of California.
Butler’s claims against defendants Russell L. Johnson,
Associate Warden Weeks, B. Moorehead, J.A. Keller,
Becky Clay, Terrance M. Steffey, Dante Alexander,
and Lieutenant Brian A. Nichols should be dismissed
with prejudice, as we have already determined that
Butler’s previously raised non-retaliation claims are
subject to dismissal. See doc. 30.
C. “John Doe” Defendants
Butler sues “John Does involved in and responsible
for extended SHU confinement and deprivation of
rights.” Doc. 1, p. 3. He later identified three of the
John Doe defendants as Lieutenant Brian A. Nichols,
Lieutenant S. Brown, R. Rodriguez. Doc. 20, p. 1. He
38a
also identified Officer J. Ledoux as one of the John Doe
defendants. Doc. 22. As part of his response to the
court’s amend order relative to the retaliation
defendants, Butler stated, “Because some of the staff
involved in extending my SHU confinement,
intercepting and destroying my mail, and executive
staff giving orders are not necessarily known to me, I
request that John Does be preserved as a Defendant
until they can be identified in discovery or in
testimony or documents.” Doc. 36, p. 4 (emphasis in
original).
A civil rights action may be filed against
unidentified defendants when their true names are
not yet known to the plaintiff but may be learned.
Spencer v. Doe, Civ. Action No. 10-1801, 2011 WL
3444336, at *1 (N.D. Tex. Jun. 2, 2011) (citing Bivens,
91 S.Ct. at 2001 n. 2)). “Although the use of a ‘John
Doe’ is disfavored, it serves the legitimate function of
giving a plaintiff the opportunity to identify, through
discovery, unknown defendants.” Green v. Doe, 260
Fed. App’x 717, *3 (5th Cir. 2007). Where it appears
that the plaintiff has sufficient information to
determine the identity of his unknown defendant,
discovery is warranted. See id. at *2; see also Murphy
v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992) (requiring
district court to order discovery in a prisoner suit
where it may lead to identification of unidentified
defendants). Here Butler has provided sufficient
information at this stage for the court to determine
that he might identify these John Does. See doc. 36,
p. 4. Accordingly, the placeholder defendant should
remain in the suit at this stage. However, Butler is
warned that relief cannot be granted against an
unidentified party and so he must act to discover the
39a
identity of any remaining defendants on his
retaliation claim or see them dismissed from the suit
on summary judgment.
Furthermore, Butler is warned that the statute of
limitations for Bivens actions is determined by state
law and so his claims are subject to Louisiana’s
one-year prescriptive period for delictual actions.
Brown v. Nationsbank Corp., 188 F.3d 579, 590 (5th
Cir. 1999); Hawkins v. McHugh, 46 F.3d 10, 12 (5th
Cir. 1995). The prescriptive period begins to run “the
moment the plaintiff becomes aware that he has
suffered an injury or has sufficient information to
know that he has been injured.” Gray v. Negi,
No. 9-2105, 2012 WL 1014983, *3 (W.D. La. Mar. 23,
2012). Furthermore, an amendment to add a new
defendant does not relate back to the original date of
filing when it is done to identify a John Doe.3 Fed. R.
Civ. P. 15(c); see Jacobsen v. Osborne, 133 F.3d 315,
320–22 (5th Cir. 1998). Accordingly, Butler is warned
of a potential prescription problem should he be able
to identify any further defendants on his retaliation
claim..
State law also governs any tolling provisions. Harris v.
Hegman, 198 F.3d 153, 156–57 (5th Cir. 1999). Accordingly,
courts in the Eastern District of Louisiana have determined that,
even under Jacobsen, interruption of prescription by filing a civil
rights suit against one defendant extended to plaintiffs’ claims
against later-named defendants who were alleged joint
tortfeasors and solidary obligors. See Sanchez v. Edwards,
No. 08-1227, 2010 WL 11538593 (E.D. La. Feb. 17, 2010) (and
cases cited therein). We find this analysis persuasive, but do not
yet determine whether it would apply to any later-named
defendants in this matter.
3
40a
D. Motion for Reconsideration
Butler’s Motion to Reconsider Due Process Claim in
Light of the Passage of Time [doc. 40] asked the court
to reconsider its ruling denying his SHU claims as “the
duration of [his] SHU confinement has changed due to
the passage of time.” Id. at 1. In his Motion to
Reconsider, Butler alleged that he had been in SHU
confinement for approximately eighteen months. Id.
The Federal Rules of Civil Procedure do not
recognize a “Motion to Reconsider.” Lavespere v.
Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 173
(5th Cir. 1990), abrogated on other grounds by Little v.
Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994). Under
the facts of the present case, Butler’s motion is best
construed as an objection to the Report and
Recommendation issued on August 1, 2017. However,
his new argument concerning the duration of time
spent in SHU fares no better than his original
argument. In this regard, “[t]he Fifth Circuit recently
suggested that two and a half years of segregation is a
threshold of sorts for atypicality, such that 18–
19 months of segregation under even the most isolated
of conditions may not implicate a liberty interest.”
Bailey v. Fisher, 647 Fed. App’x 472, 476–77 (5th Cir.
2016) (footnote and internal citations omitted).
Considering that Butler’s total segregation (including
his alleged segregation at FCIV) has not exceeded the
Fifth Circuit’s two and a half year threshold, his
current “passage of time” argument fails to trigger a
due process interest and should be dismissed.
41a
III.
CONCLUSION
For reasons stated,
IT IS RECOMMENDED that the defendants
Russell L. Johnson, Associate Warden Weeks,
B. Moorehead, J.A. Keller, Becky Clay, Terrance M.
Steffey, Dante Alexander, and Lieutenant Brian A.
Nichols be DISMISSED WITH PREJUDICE from
this matter, in accordance with this court’s earlier
report and recommendation.
IT IS ALSO
RECOMMENDED that all claims against Warden
Swain, J. Sorenson, Officer Tyson, and Michael Rios
be DISMISSED WITHOUT PREJUDICE to Butler
pursuing such claims in the proper forum.
IT IS FURTHER RECOMMENDED that Butler’s
Motion to Reconsider [doc. 40] be DENIED, and for
the reasons detailed herein and in the court’s prior
Report and Recommendation [doc. 30], all of Butler’s
claims, with the exception of the retaliation claims, be
DENIED AND DISMISSED WITH PREJUDICE
as frivolous and for failing to state a claim upon which
relief can be granted in accordance with 28 U.S.C.
§ 1915(e)(2)(B)(i) and (ii).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and
Fed. R. Civ. P. 72(b), parties aggrieved by this
recommendation have fourteen (14) days from service
of this report and recommendation to file specific,
written objections with the clerk of court. A party may
respond to another party’s objections within fourteen
(14) days after being served with a copy thereof.
Failure to file written objections to the
proposed factual finding and/or the proposed
legal conclusions reflected in this Report and
42a
Recommendation within fourteen (14) days
following the date of its service, or within the
time frame authorized by Fed. R. Civ. P. 6(b),
shall bar an aggrieved party from attacking
either the factual findings or the legal
conclusions accepted by the District Court,
except upon grounds of plain error.
See
Douglass v. United Services Automobile
Association, 79 F.3d 1415 (5th Cir. 1996).
THUS DONE AND SIGNED in Chambers this
6th day of November, 2017.
43a
APPENDIX F
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
MAX RAY BUTLER
B.O.P. # 09954011
:
DOCKET NO.
2:17-cv-230
VERSUS
:
JUDGE MINALDI
S. PORTER, ET AL.
:
MAGISTRATE
JUDGE KAY
REPORT AND RECOMMENDATION
Before the court is a civil rights complaint filed in
forma pauperis by pro se plaintiff Max Ray Butler
(“Butler”), an inmate in the custody of the Federal
Bureau of Prisons (“BOP”).1
He is currently
incarcerated at the Federal Correctional Institute in
Adelanto, California (“FCIA”). However, he complains
about events that occurred during his incarceration at
the Federal Correctional Institute in Oakdale,
Louisiana (“FCIO”).
This matter has been referred to the undersigned
for review, report, and recommendation in accordance
with the provisions of 28 U.S.C. § 636 and the standing
This matter arises under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971). Bivens
authorizes civil rights suits filed against federal agents or
employees for a violation of a constitutional right.
1
44a
orders of the court. For the following reasons it is
recommended that all claims, save the one alleging
retaliation, be DISMISSED WITH PREJUDICE.
I.
BACKGROUND
Butler claims that he was in wrongfully placed in
FCIO’s administrative segregation in the Special
Housing Unit (“SHU”). He states that he was in
general population at FCIO from June 26, 2014, to
April 25, 2016, and “never presented any disciplinary
or security problems to prison officials” during that
time. Doc. 1, p. 4. He claims that he was placed in
administrative segregation in the SHU on April 25,
2016, for the purpose of “investigation.” Id. He
contends that his SHU placement was not in response
to a prison disciplinary infraction and that there was
a lack of proper paperwork. Id. He complains that
BOP Program Statements were not followed in regard
to his SHU placement, including that he never
received an incident report on the matter. Id. at 4–8,
13, 18. He contends that a backdated administrative
detention order was manufactured after he filed an
administrative grievance. Id. at 4–5.
Butler states that he filed several grievances
regarding the alleged violations of his due process
rights, beginning on May 12, 2016. Id. at 10, 15, 17,
18; see doc. 1, att. 1, pp. 1–4. In one such grievance, he
states, “On April 25th (2016) SIS Lt. Porter told me
that over that past weekend she received anonymous
copouts threatening me. I told her . . . that I am not
threatened yet she put me in SHU under
‘investigation’ anyway.” Doc. 1, att. 1, p. 1. Butler
contends that his continued placement in SHU was an
45a
act of retaliation against him for filing grievances.
Doc. 1, p. 10. He also claims that the SHU staff
retaliated against him for filing the present matter by
increasing his criminal history score with the intent of
reclassifying him to medium custody [doc. 24, p. 1] and
by targeting him for cell searches [doc. 22, att. 1, p. 1].
Butler claims that he was denied access to the
courts as the SHU staff threw away his commissary
submissions and he was not able to buy paper and
stamps for legal mail. Doc. 7; Doc. 22, att. 1, p. 1. He
also maintains that SHU staff delayed his mail by at
least a week. Doc. 16, p. 1. He claims that these
actions were retaliatory. Doc. 7.
Butler complains about the conditions of
confinement in SHU. He alleges that there is a
disparity between the SHU commissary and that of
general population, namely that some items available
to general population are not available in the SHU
commissary. Doc. 21, p. 1. He also states that SHU
officers speak to SHU inmates disrespectfully, fail to
wash inmates’ jumpsuits until late in the day, bring
the telephone out too late in afternoon for everyone to
use it, and subject inmates to cold showers. Doc. 22,
att. 1, p. 1. In addition, he states that SHU inmates
are only allowed one hour per day to exercise outside,
spend twenty-three hours a day in their cell and eat
all meals there, and have restricted access to the
telephone, visitation, mail, personal property,
clothing, and educational, religious, and recreational
programs. Doc. 1, p. 6. He also complains of the lack
of natural light or fresh air in his cell. Id.
Butler was transferred from FCIO to FCIA on or
about April 28, 2017. Doc. 23. He claims that FCIO
46a
officials are continuing their retaliation against him as
they called FCIA and that they have continued to act
to prevent him from being released from SHU at FCIA.
Doc. 28; doc 28, att. 1. At the time he filed his
supplement to the instant complaint, dated June 27,
2017, and received by this court on July 3, 2017, he
alleged that he had been held in SHU continuously for
428 days. Doc. 28.
Butler claims that the prolonged segregation (at
FCIO and FCIA) has adversely impacted his mental
and physical health. He states that in November 2016,
the stress of the SHU confinement caused him to have
chest pains and sleeping problems, for which he was
put on waiting lists for cardiology and neurology
consults. Doc. 1, pp. 6, 16. He contends that he has
lost a total of forty-six pounds during his combined
SHU confinement. Doc. 28. He also states that the
extended confinement has caused a delay in his
participation in the Residential Drug Abuse
Treatment Program (“RDAP”), thereby extending his
total term of imprisonment. Doc. 28, att. 1.
As relief in regard to his SHU confinement at FCIO,
Butler asked: (1) to be released from SHU; (2) for
punitive damages in the amount of $50,000; and (3) for
nominal damages in the amount of $200.00 per day for
each day that he was held in SHU. Doc. 1, p. 26. He
also asks the court to order his release from FCIA’s
SHU. Doc. 28.
II.
LAW & ANALYSIS
A. Frivolity Review
Butler has been granted leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Doc. 10.
47a
Under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), a district
court is directed to dismiss an action if the court
determines that the action is frivolous, malicious, or
fails to state a claim on which relief may be granted.
Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir.
1998).
A complaint is frivolous if it lacks an arguable basis
in law or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019
(5th Cir. 1998) (citing Siglar v. Hightower, 112 F.3d
191, 193 (5th Cir. 1997)). A complaint fails to state a
claim upon which relief may be granted if it is clear
the plaintiff cannot prove any set of facts in support of
his claim that would entitle him to relief. Doe v. Dallas
Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir. 1998). In
determining whether a complaint is frivolous or fails
to state a claim upon which relief may be granted, the
court must accept the plaintiff’s allegations as true.
Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995)
(frivolity); Bradley, 157 F.3d at 1025 (failure to state a
claim).
B. Due
Process
Detainment
Claim—SHU
Detention/
Butler alleges that his detention in SHU violated
his due process rights.
Ordinarily an inmate has no recognized due process
interest in his custodial classification. Moody v.
Baker, 857 F.2d 256, 257–58 (5th Cir. 1988). In
Sandin v. Conner, the Supreme Court held that a
prisoner’s liberty interest is “generally limited to
freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own
force, . . . nonetheless imposes atypical and significant
48a
hardship on the inmate in relation to the ordinary
incidents of prison life.” 115 S. Ct. 2293, 2300 (1995)
(internal citations omitted).
Solitary confinement is typically viewed as an
ordinary, expected, and permissible incident of prison
life. See Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir.
1996). However, it may be used in a way that “imposes
atypical and significant hardship.” Hernandez v.
Velasquez, 522 F.3d 556, 562–63 (5th Cir. 2008)
(quoting Sandin, 115 S. Ct. at 2300); see also
Wilkerson v. Goodwin, 774 F.3d 845, 855–57 (5th Cir.
2014). “[S]everity of the restrictive conditions and
their duration [are] key factors” in determining
whether an inmate has a liberty interest in his
custodial classification. Wilkerson, 774 F.3d at 854–
55.
There is no question that Butler’s daily activities
were limited in FCIO’s SHU. However, it is noted that
he completed multiple courses while in SHU [doc. 1,
p. 21], that he had use of a telephone for
approximately fifteen minutes per week [id. at 22],
and that he had the opportunity to exercise outside for
an hour day [id. at 6]. His other complaints simply do
not impose atypical and significant hardships relative
to the ordinary incidents of prison life.
Additionally, the duration of confinement must also
be considered. In this regard, the court in stated:
The Fifth Circuit recently suggested that two and
a half years of segregation is a threshold of sorts
for atypicality, Wilkerson, 774 F.3d at 855, such
that 18–19 months of segregation under even the
most isolated of conditions may not implicate a
liberty interest. See also Hernandez, 522 F.3d at
49a
563 (lockdown in “a shared cell for twelve months
with permission to leave only for showers,
medical appointments, and family visits” not an
atypical or significant hardship).
Bailey v. Fisher, 647 Fed. App’x 472, 476–77 (5th Cir.
2016) (footnote omitted). Considering that Butler was
in segregation at FCIO for no more than one year, and
that this time still falls well under eighteen months
even adding the administrative segregation at FCIA,
it appears that such duration is not sufficiently
atypical to trigger a due process interest and his
claims in this regard should be dismissed.
C. Due Process Claim—Failure to Follow BOP
Program Statement
Butler alleges that he was denied due process
because FCIO officers did not comply with BOP
Program Statement 5270.11 (28 C.F.R. 541.5), in that
he did not receive an incident report relative to his
SHU placement nor was there any objective evidence
articulated on the administrative detention order in
support of his detention. Doc. 1, pp. 4–5, 7–9. He also
complains that he was not present for each thirty day
SHU review.
Doc. 1, p. 18.
He provided
approximately thirty-six pages of the special housing
unit reviews relative to his continued housing in SHU.
Doc. 20, att. 1, pp. 1–36.
For Butler to state a valid Bivens claim, the act or
omission he alleges must rise to the level of a
constitutional violation. See Siegert v. Gilley, 111
S.Ct. 1789 (1991). Fifth Circuit case law is clear “that
a prison official’s failure to follow the prison’s own
policies, procedures, or regulations does not rise to a
level of constitutional violation if constitutional
50a
minima are nevertheless met.” Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996); Taylor v. Howards, 268
F.3d 1063 (5th Cir. 2001). Here, as shown above,
Butler had no constitutionally protected liberty
interest in avoiding assignment to the SHU. Thus, the
defendants’ alleged failure follow their internal
policies/program statements did not give rise to a
constitutional violation, because there was no
underlying liberty interest to violate and therefore no
constitutional right to due process. Butler’s claims in
this regard should be dismissed.
D. Retaliation
Butler claims that his continued detention in the
SHU was in retaliation for his filing of administrative
grievances and the current law suit.
Officials may not retaliate against an inmate “for
complaining through proper channels.” Morris v.
Powell, 449 F.3d 682, 684 (5th Cir. 2006). In order to
prevail on a claim for retaliation, an inmate must
demonstrate: (1) a specific constitutional right; (2) the
defendant’s intent to retaliate against the prisoner for
exercising that right; (3) a retaliatory adverse act; and
(4) causation. McDonald v. Steward, 132 F.3d 225,
231 (5th Cir. 1998). An inmate’s personal belief that
he is the victim of retaliation is insufficient. Johnson
v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997).
Rather, the inmate must present direct evidence of a
motivation or “allege a chronology of events from
which retaliation may plausibly be inferred.” Woods
v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995) (quoting
Cain v. Lane, 857 F.2d 1139, 1143 n. 6 (7th Cir. 1988)).
In order to establish causation, the inmate must
51a
demonstrate that but for the retaliatory motive, the
incident complained of would not have occurred. Id.
In this matter Butler sets forth sufficient
allegations under each element required for a
retaliation claim. Accordingly, this claim survives
initial review. Butler will be ordered to amend his
complaint and identify the defendants responsible
under this claim alone, and the court will then order
service on those defendants.
E. Access to the Courts Claim
Butler argues that he was denied access to the
courts as his commissary submissions were discarded
and he was not able to purchase adequate postage for
legal mailings. Doc. 7, p. 1.
“It is clearly established that prisoners have a
constitutionally protected right of access to the
courts.” Brewer v. Wilkinson, 3 F.3d 816, 820 (5th Cir.
1993). This right “assures that no person will be
denied the opportunity to present to the judiciary
allegations concerning violations of fundamental
constitutional rights.” Lewis v. Casey, 116 S.Ct. 2174,
2194 (1996) (quoting Wolff v. McDonnell, 94 S.Ct.
2963, 2986) (Thomas, J., concurring). Claims alleging
violations of the right of access to courts are not
cognizable unless the inmate’s position as a litigant
was actually prejudiced by the denial of access. See
Chriceol v. Phillips, 169 F.3d 313, 317 (5th Cir. 1999);
Lockamy v. Dunbar, 399 Fed. App’x 953, 955 (5th Cir.
2010). Butler has not shown that his ability to prepare
and transmit legal documents was inhibited nor has
he alleged any other actual injury. In fact, he has filed
several supplements to the present suit. He also filed
at least two other lawsuits subsequent to filing the
52a
present matter. See Butler v. Johnson, No. 2:17-cv394 (W.D. La.); Butler v. Johnson, 2:17-cv-559 (W.D.
La.). He has not shown that he has, in any way, been
hindered in his efforts to purse legal claims. His
access to courts claims should be dismissed.
F. Residential Drug Abuse Treatment Program
Butler contends that his continued confinement in
SHU has caused a delay in his participation in the
Residential Drug Abuse Treatment Program,
resulting in him serving more time in prison. Doc. 28,
att. 1.
Butler’s claims presuppose that he has a
constitutional right to participate in rehabilitation
programs. However, neither the Due Process Clause,
nor any other provision of the Constitution, affords
prisoners the constitutional right to educational or
rehabilitative services or programs. Simply put,
prisoners do not have a constitutional right to
participate in drug treatment programs. See Moody v.
Doggett, 97 S. Ct. 274, 289 n. 9 (1976) (prisoner
classification and eligibility for rehabilitation
programs are not subject to due process protections).
As Butler does not have a protected liberty interest in
participating in the RDAP, alleged consequences of a
delay in attending such program fail to state a claim
for which relief may be granted.
G. Injunctive Relief
Butler seeks injunctive relief for alleged actions that
occurred when he was incarcerated at FCIO.
However, he has been transferred from FCIO’s
custody since the filing of his complaint. The law is
clear that the transfer of a prisoner out of an allegedly
offending institution generally renders his claims for
53a
injunctive relief moot. Cooper v. Sheriff, Lubbock
County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991). Any
suggestion of the possibility of transfer back to FCIO
is too speculative to warrant relief. See Herman v.
Holiday, 238 F.3d 660, 665 (5th Cir. 2001).
Furthermore, this court does not have jurisdiction to
order Butler’s release from the SHU at FCIA. Butler
should address such claims for relief with the
appropriate parties in his current place of
incarceration.
III.
CONCLUSION
While a pro se litigant should ordinarily be given an
opportunity to amend his complaint before it is
dismissed, leave to amend is not required if the
petitioner has already pleaded his “best case.”
Brewster v. Dretke, 587 F.3d 764, 767–68 (5th Cir.
2009) (quoting Bazrowx v. Scott, 136 F.3d 1053, 1054
(5th Cir. 1998)). In this matter, under all claims but
the one for retaliation, it is clear that Butler simply
cannot state a claim under applicable law and that
leave to amend will not cure the deficiencies in his
allegations. Therefore, for reasons stated,
IT IS RECOMMENDED that all claims, with the
exception of the retaliation claim, be DENIED AND
DISMISSED WITH PREJUDICE as frivolous and
for failing to state a claim upon which relief can be
granted in accordance with 28 U.S.C. § 1915(e)(2)(B)(i)
and (ii).
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and
Fed. R. Civ. P. 72(b), parties aggrieved by this
recommendation have fourteen (14) days from service
of this report and recommendation to file specific,
54a
written objections with the clerk of court. A party may
respond to another party’s objections within fourteen
(14) days after being served with a copy thereof.
Failure to file written objections to the
proposed factual finding and/or the proposed
legal conclusions reflected in this Report and
Recommendation within fourteen (14) days
following the date of its service, or within the
time frame authorized by Fed. R. Civ. P. 6(b),
shall bar an aggrieved party from attacking
either the factual findings or the legal
conclusions accepted by the District Court,
except upon grounds of plain error.
See
Douglass v. United Services Automobile
Association, 79 F.3d 1415 (5th Cir. 1996).
THUS DONE AND SIGNED in Chambers this
1st day of August, 2017.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.