JEROME B. SIMANDLE, District Judge.
Kendall Charles Alexander, Sr., a federal prisoner formerly confined at FCI Fort Dix, New Jersey, filed an amended complaint alleging racial discrimination and retaliation by his prison workplace supervisor, Robert Ortiz, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Amended Complaint, Docket Entry 30. On September 29, 2017, Defendant Ortiz filed a motion to dismiss the amended complaint in light of the Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Motion to Dismiss, Docket Entry 55. The Court appointed counsel for Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), received supplemental briefing, and conducted oral argument on January 29, 2018.
After considering the submissions and arguments of the parties, the Court will not extend Bivens to a First Amendment retaliation or Fifth Amendment Equal Protection claim in the prison workplace context. The motion to dismiss is granted.
On September 21, 2015, Plaintiff filed a civil rights action against Robert Ortiz, the United States, the Federal Bureau of Prisons ("BOP"), and UNICOR
According to the complaint, Plaintiff began working with UNICOR in August 2013 as a mechanic with prior experience from a different institution. Id. ¶ 6. Plaintiff alleged that Ortiz, the UNICOR manager, passed him over for promotion, overlooked Plaintiff's benefits, longevity, and pay in spite of Plaintiff's experience, and denied Plaintiff the ability to work overtime after he filed grievances about the alleged racial discrimination. Id. Plaintiff further alleged that Caucasian mechanics were promoted before him even though they were hired after him. Plaintiff also stated none of the Caucasian mechanics had to wait as long as Plaintiff did before receiving a promotion. Id. He asked the Court to reinstate his longevity credit and award him back pay retroactive to the date he should have been promoted. He also requested back pay for overtime opportunities he was unlawfully denied. Id. ¶ 7.
After granting Plaintiff's in forma pauperis application, the Court screened the complaint under 28 U.S.C. § 1915. It dismissed the United States, the BOP, and UNICOR from the case as the United States is immune from suit and the Supreme Court declined to extend Bivens liability to federal agencies and employers. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)("The [federal] prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP."); F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994) (declining to extend Bivens liability to federal agencies). Opinion and Order of Dec. 2, 2015, Docket Entries 3 & 4. It dismissed the racial discrimination claim without prejudice, but permitted a retaliation claim to proceed against Ortiz based on Plaintiff's allegations that Ortiz excluded him from working overtime after Plaintiff filed grievances about the alleged discrimination. Complaint ¶ 6. The Court ordered summonses to issue. Ortiz was served and later filed his answer on April 25, 2016. Docket Entry 18.
On June 8, 2016, Plaintiff moved to amend his complaint to address the deficiencies in his Equal Protection claim that the Court had noted in its screening opinion and order. Motion to Amend, Docket Entry 24. Ortiz indicated that he had no objection to the motion to amend. Response, Docket Entry 25. He requested permission to file an answer to the amended complaint within ten days of the amended complaint's filing, as well as an additional two weeks to file a motion for summary judgment. Id. Ortiz further indicated he reserved the right to file a venue transfer motion and asked that discovery be stayed pending resolution of the summary judgment motion. Id. After reviewing the amended complaint under Federal Rule of Civil Procedure 15(a), the Court granted the motion to amend. Opinion and Order of Aug. 10, 2016, Docket Entries 28 & 29. Ortiz answered the amended complaint seven days later, Docket Entry 31.
The case continued in discovery and motion practice before Magistrate Judge Donio, culminating in Ortiz's motion for summary judgment filed on February 10, 2017. Docket Entry 38. Plaintiff, still proceeding pro se at this point in time, filed opposition to the motion. Docket Entry 39. On June 19, 2017, the Supreme Court issued its decision in Ziglar. Ortiz filed a letter requesting that the Court postpone ruling on the motion for summary judgment as the US Attorney's Office was conducting an office-wide review of pending Bivens cases in consultation with the Department of Justice. Letter, Docket Entry 41.
On August 14, 2017, Ortiz supplemented his summary judgment motion with an argument based on Ziglar. Ortiz argued that Plaintiff's retaliation and Equal Protection claims are "new contexts" under Bivens, meaning the federal courts should not extend Bivens liability to those claims in the absence of specific congressional action. Supplemental Letter, Docket Entry 44. As the issue was one of first impression, the Court administratively terminated the summary judgment motion and appointed counsel for Plaintiff for the limited purpose of addressing the Ziglar issue. Pro Bono Order, Docket Entry 45; Administrative Termination Order, Docket Entry 47. Appointed counsel entered an appearance on September 1, 2017. Ortiz subsequently filed this motion to dismiss.
The Court conducted oral argument on January 29, 2018. At the conclusion of argument, the Court directed the parties to submit supplemental briefing on an issue that arose during argument: whether the Inmate Accident Compensation Act ("IACA"), 18 U.S.C. § 4126(c), provided a remedy for claims of discrimination in the prison workplace. Ortiz submitted his response on February 13, 2018, and Plaintiff submitted his on February 20, 2018. Ortiz Supplemental Brief, Docket Entry 63; Plaintiff Supplemental Brief, Docket Entry 64.
The matter is now ripe for disposition.
When considering a motion to dismiss a complaint for failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rule 8 does not require "detailed factual allegations," it requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must "tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks omitted). "[A] complaint's allegations of historical fact continue to enjoy a highly favorable standard of review at the motion-to-dismiss stage of proceedings." Id. at 790.
Ortiz moves for dismissal of Plaintiff's amended complaint on the basis that there is no Bivens remedy for his retaliation and Equal Protection claims in light of the Supreme Court's Ziglar decision. He asserts the claims are new contexts under Bivens and that special factors counsel against extending the Bivens remedy. Alternatively, Ortiz asserts he is entitled to qualified immunity.
Section 1983 of Title 42 created a remedy for monetary damages for those injured by persons acting under color of state law, but "Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government." Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). The Supreme Court created an implied cause of action in Bivens based on a violation of the Fourth Amendment by federal officers. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971)("The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts."). The Court extended the Bivens remedy twice more: Davis v. Passman, 442 U.S. 228 (1979) (holding administrative assistant fired by Congressman had a Bivens remedy for her Fifth Amendment gender discrimination claim), and Carlson v. Green, 446 U.S. 14 (1980) (holding prisoner's estate had Bivens remedy against federal jailers for failure to treat his asthma). "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." Ziglar, 137 S. Ct. at 1855.
In Ziglar, the Supreme Court confronted Bivens claims from detainees held on immigration violations in the Metropolitan Detention Center ("MDC") in Brooklyn, New York, after the September 11, 2001 terrorist attacks.
The detainees filed suit under Bivens alleging violations of substantive due process component of the Fifth Amendment, the equal protection component of the Fifth Amendment, and the Fourth Amendment. Id. at 1853-54.
The Supreme Court in Ziglar concluded "that expanding the Bivens remedy is now a `disfavored' judicial activity." Id. at 1857. It held that federal courts should exercise caution before extending the remedy to claims that are meaningfully different than "the three Bivens claims the Court has approved in the past: a claim against FBI agents for handcuffing a man in his own home without a warrant; a claim against a Congressman for firing his female secretary; and a claim against prison officials for failure to treat an inmate's asthma." Id. at 1860 (citing Bivens, 403 U.S. 388; Davis, 442 U.S. 228; Carlson, 446 U.S. 14). The Court concluded that the detention policy claims against the Executive Officials were not properly brought pursuant to Bivens "as a Bivens action is not a proper vehicle for altering an entity's policy." Id. at 1860 (internal quotation marks omitted). The Court remanded the abuse claim back to the Second Circuit to consider whether it was appropriate for the courts to extend Bivens in light of the identified "special factors." Id. at 1869.
Ziglar created a funnel through which plaintiffs alleging constitutional violations by federal officials must pass. First, federal courts must determine whether the cause of action presents a "new context" for Bivens cases. If it does, courts must then determine whether alternative remedies exist. Finally and most critically, courts must determine whether there are special factors counselling against extending the Bivens remedy to the new cause of action.
As announced in Ziglar,
Id. at 1860.
Plaintiff Alexander, an African American federal prisoner, alleges Ortiz, the UNICOR factory manager, discriminated against him on the basis of his race by promoting less qualified Caucasian and Hispanic workers before him, in violation of the Fifth Amendment. Plaintiff further alleges Ortiz retaliated against him by denying Plaintiff opportunities to work overtime shifts after Plaintiff filed grievances about the discrimination, in violation of the First Amendment.
None of the three prior Bivens cases addressed federal prisoners in the prison employment context. Carlson extended the remedy to Eighth Amendment denial of medical care claims against prison officials. 446 U.S. 14 (1980). Although Plaintiff's claims arise in the prison context, they are under the Fifth and First Amendments and concern his job assignment, not his medical care. Davis, while addressing a Fifth Amendment discrimination claim, concerns a congressional employee. Plaintiff's situation is vastly different from the plaintiff in Davis as he is a federal prisoner and is therefore not an "employee" within the meaning of federal employment protection statutes. See, e.g., Wilkerson v. Samuels, 524 F. App'x 776, 779 (3d Cir. 2013) (per curiam) ("It is well established that a prisoner is not an employee under the Fair Labor Standards Act (FLSA), because the relationship is not one of employment, but arises out of the prisoner's status as an inmate.")(citing E.E.O.C. Dec. No. 86-7, *3, 40 Fair Empl. Prac. Cas. (BNA) 1892 (1986)). Plaintiff's Fifth Amendment claim is therefore a new Bivens context because it is meaningfully different from Bivens, Davis, and Carlson.
The Supreme Court has "never held that Bivens extends to First Amendment claims" Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012) (granting qualified immunity to Secret Service agents on retaliatory arrest claim). See also Bush v. Lucas, 462 U.S. 367, 368 (1983) (refusing to extend Bivens to a First Amendment speech claim involving federal employment). It has "several times assumed without deciding that Bivens extends to First Amendment claims." Wood v. Moss, 134 S.Ct. 2056, 2066 (2014) (holding Secret Service agents were entitled to qualified immunity on viewpoint discrimination claim); see also Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) ("[W]e assume, without deciding, that respondent's First Amendment claim is actionable under Bivens.").
Plaintiff relies on a series of pre-Ziglar Third Circuit precedent holding that Bivens extends to First Amendment claims. See Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981) (holding Bivens remedy existed for prisoner's right of access to the courts claim); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (holding Bivens remedy existed for First Amendment for high school student whose name and address on mail to the Socialist Workers Party was recorded by the FBI). See also Wilkerson v. Samuels, 524 F. App'x 776, 777-79 (3d Cir. 2013) (per curiam) (reversing district court's dismissal of prisoner's Bivens retaliation claim against UNICOR supervisor). However, the Third Circuit recently reevaluated its First Amendment approach post-Ziglar in a suit alleging retaliatory prosecution by a Transportation Security Administration ("TSA") officer. Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017).
The plaintiff in Vanderklok alleged the TSA officer "called the Philadelphia police and falsely reported that Vanderklok had threatened to bring a bomb to the airport" because he had "stated an intent to file a complaint against [the officer]." Id. at 193. Vanderklok was acquitted of all criminal charges at trial. Id. After reviewing its pre-Ziglar First Amendment Bivens jurisprudence, the Third Circuit acknowledged that "[s]ince our decisions in Paton and Milhouse permitting Bivens actions in certain First Amendment contexts, the Supreme Court has plainly counseled against creating new Bivens causes of action." Id. at 199. "Our past pronouncements are thus not controlling in the specific circumstances now at issue. It is not enough to argue .. . that First Amendment retaliation claims have been permitted under Bivens before." Id. at 199.
Pursuant to Vanderklok, Plaintiff cannot rely on the fact that courts have permitted Bivens First Amendment retaliation actions to proceed in the past. See id. See also Gonzalez v. Hasty, 269 F.Supp.3d 45, 58 (E.D.N.Y. 2017) ("As an initial matter, even though the Supreme Court has recognized causes of action in Bivens under the Fourth Amendment, in Davis under the Fifth Amendment, and in Carlson under the Eighth Amendment, that does not mean that any cause of action may lie under those Amendments simply by virtue of these Supreme Court cases."). Courts must examine each raised claim anew on its own particular set of facts. Vanderklok, 868 F.3d at 199-200.
None of the Supreme Court's prior Bivens cases concern a First Amendment retaliation claim brought against a federal prison workplace supervisor. The Court therefore concludes that Plaintiff's First Amendment retaliation claim, in the context of a prison job assignment, is a new Bivens context.
The next question the Court must ask is "`whether any 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.'" Id. at 200 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)). See also Butts v. Martin, 877 F.3d 571, 587-88 (5th Cir. 2017). "[I]f there is an alternative remedial structure present in a certain case, that alone may limit the power of the Judiciary to infer a new Bivens cause of action." Ziglar, 137 S. Ct. at 1858.
The Court finds an alternative remedy is not available to Plaintiff. An injunction prospectively requiring the warden to comply with Federal Prison Industries' non-discrimination policy
Plaintiff may not bring his claim for damages under Title VII of the Civil Rights Act of 1964, FLSA, Age Discrimination in Employment Act (ADEA), Equal Pay Act (EPA), or Rehabilitation Act as he is not an "employee" within the meaning of those statutes. See Wilkerson v. Samuels, 524 F. App'x 776, 779 (3d Cir. 2013) (per curiam); Williams v. Meese, 926 F.2d 994, 997 (10th Cir. 1991) ("We conclude that plaintiff is not an `employee' under either Title VII or the ADEA because his relationship with the Bureau of Prisons, and therefore, with the defendants, arises out of his status as an inmate, not an employee."). See also 1 Charles R. Richey, Manual on Employment Discrimination, § 3:26 (2018).
Plaintiff also may not rely on the Federal Tort Claims Act ("FTCA") to sue the United States instead of Ortiz because federal constitutional violations, such as those claimed by Plaintiff, are not cognizable under the FTCA. See F.D.I.C. v. Meyer, 510 U.S. 471, 477-78 (1994) (holding 28 U.S.C. § 1346(b) does not provide a cause of action for constitutional torts).
The Court also concludes IACA does not provide a remedy for Plaintiff in this particular situation. IACA states in relevant part that UNICOR "is authorized to employ the fund . . . in paying, under rules and regulations promulgated by the Attorney General . . . compensation to inmates or their dependents for injuries suffered in any industry or in any work activity in connection with the maintenance or operation of the institution in which the inmates are confined." 18 U.S.C. § 4126(c)(4). The regulations then permit compensation to be paid "to former federal inmates or their dependents for physical impairment or death resultant from injuries sustained while performing work assignments" and for lost-time wages. 28 C.F.R. § 301.101(a)-(b). "Work-related injury" is defined by the regulation as "any injury, including occupational disease or illness, proximately caused by the actual performance of the inmate's work assignment." 28 C.F.R. § 301.102(a).
The cases applying IACA have limited it to physical injuries and illnesses. The IACA precludes relief under the FTCA for "work-related" injuries, see United States v. Demko, 385 U.S. 382 (1966), and has been analogized to civilian worker's compensation laws, see Thompson v. U.S. Fed. Prison Indus., 492 F.2d 1082, 1083 (5th Cir. 1974). See also H.R. REP. NO. 87-534, at 1-2 (1961) ("This compensation is specified to be no greater than that provided in the Federal Employees' Compensation Act."). This supports the inference that Congress did not intend IACA to provide a remedy for constitutional violations such as those alleged by Plaintiff. See also Cooleen v. Lamanna, 248 F. App'x 357, 362 & n.5 (3d Cir. 2007) (holding IACA does not bar Bivens denial of medical care claim); Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997) (holding § 4126 did not provide procedural safeguards protecting Eighth Amendment rights and permitting Bivens claim).
The lack of an alternative remedy for damages does not necessarily mean the Court should extend Bivens, however. The Court must still "`make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed. . . to any special factors counselling hesitation before authorizing a new kind of federal litigation.'" Wilkie v. Robbins, 551 U.S. 537, 550 (2007) (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)).
Most critically, Ziglar requires courts to consider whether there are "special factors counselling hesitation" before extending a Bivens remedy to a new context.
"The Court's precedents now make clear that a Bivens remedy will not be available if there are `special factors counselling hesitation in the absence of affirmative action by Congress.'" Ziglar, 137 S. Ct. at 1857 (quoting Carlson v. Green, 446 U.S. 14, 18 (1980)). The Supreme Court did not define the phrase "special factors counselling hesitation." "The necessary inference, though, is that the inquiry must concentrate 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. A "special factor counselling hesitation" is something that "cause[s] a court to hesitate before answering that question in the affirmative." Id. at 1858. "The question is `who should decide' whether to provide for a damages remedy, Congress or the courts? The answer most often will be Congress." Id. at 1857 (quoting Bush, 462 U.S. at 380).
The Court finds that the prison workplace context is a special factor precluding extending the Bivens remedy. The Supreme Court has previously stated that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. . . . Running 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." Turner v. Safley, 482 U.S. 78, 84-85 (1987) (internal citations and quotation marks omitted). "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." Id. at 85. See also Ziglar, 137 S. Ct. at 1857 ("When 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.").
UNICOR is a legislative creation designed to carry out the work requirement for federal prisoners, subject to security, disciplinary, medical, and rehabilitation exceptions. 18 U.S.C. §§ 4121-4129. See also 28 C.F.R. § 345.10 ("It is the policy of the Bureau of Prisons to provide work to all inmates (including inmates with a disability who, with or without reasonable accommodations, can perform the essential tasks of the work assignment) confined in a federal institution."). "There is no statutory requirement that inmates be paid for work in an industrial assignment." 28 C.F.R. § 345.10. Congress has provided for discretionary compensation in 18 U.S.C. § 4126 and has delegated authority to the Attorney General to promulgate rules and regulations to implement those policies. See 18 U.S.C. § 4126(c)(4); 28 C.F.R. § 345.10. Congress specifically created a mechanism by which prisoners could be compensated for workplace injuries and illnesses, but did not extend that remedy to other forms of workplace discrimination or constitutional violations. Had Congress intended to include a monetary remedy against federal officers or employees for those sorts of claims in the UNICOR implementing statutes, it would have so stated. See Ziglar, 137 S. Ct. at 1856("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.").
Because the prison workplace is an area that is heavily regulated by the legislative and executive branches, and because it is not regarded as an employer/employee relationship, the Court finds that it should be left to those branches to determine whether an action for damages for claims of racial discrimination and retaliation exists. Given the constraints of Ziglar, the Court will not extend Bivens and will grant the motion to dismiss for failure to state a claim.
For the reasons stated above, the motion to dismiss the amended complaint is granted.
An accompanying Order will be entered.
