Sylvia H. Rambo, United States District Judge.
This case was initiated by the filing of a complaint pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), in Civil Action No. 18-716 by pro se Plaintiffs Camden Barlow, Christopher Alvarez, Justin Haynes, Darryl Taylor, Tabarus Holland, Terrell Wilson, Tony C. Knott, Agustin Argueta, Douglas Piggee, and Nathan A. Railey ("Railey"), all of whom were incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania ("USP Lewisburg") at that time. (Doc. No. 1.) In that complaint, Plaintiffs alleged that Defendants had violated their rights under the Equal Protection Clause of the Fourteenth Amendment, their First Amendment rights to access the courts, and their First Amendment rights regarding mail. Subsequently, Doreteo Garcia, Juan Carlos Valles, and David Jackson were added as Plaintiffs. (Doc. No. 28). On July 24, 2018, the Court dismissed Plaintiffs' Equal Protection claim and their access to the courts claim and directed service of their First Amendment enhanced mail restriction claim. (Doc. Nos. 38, 39). On October 10, 2018, the Court granted Railey's motion to sever and directed that each individual Plaintiff file an amended complaint under a separate civil action number by November 9, 2018. (Doc. Nos. 89, 90).
Railey filed an amended complaint on December 12, 2018 (Doc. No. 106), which the Court dismissed for failure to comply with the Federal Rules of Civil Procedure on January 3, 2019 (Doc. No. 110). The Court granted Railey leave to file a second amended complaint within twenty (20) days. (Id.) After receiving extension of time (Doc. Nos. 117-120), Railey filed his second amended complaint and memorandum in support thereof (Doc. Nos. 121-22) on April 18, 2019. In his second amended complaint, Railey names as Defendants Warden David J. Ebbert ("Ebbert"), SIS Officer Buebendorf ("Buebendorf"), Officer Gass ("Gass"), Counselor Tharp ("Tharp"), and an Unnamed Mailroom Officer. He alleges that Defendants violated his First Amendment rights by interfering with and destroying his mail and by retaliating against him by seizing his legal property, refusing to provide legal copies, and interfering with the administrative remedy process. (Doc. No. 121.) He also contends that Defendants violated his Fifth Amendment due process rights by failing to properly implement and apply the enhanced mail monitoring procedures and his equal protection rights
Defendants Ebbert, Buebendorf, Tharp, and Gass filed a motion to dismiss and/or motion for summary judgment on July 1, 2019 (Doc. No. 132) and filed their supporting materials on July 15, 2019 (Doc. Nos. 135-36). After receiving an extension of time (Doc. Nos. 137-38), Railey filed his response to Defendants' statement of material facts and oppositional brief (Doc. Nos. 143-44) on September 4, 2019. In an Order dated September 17, 2019, the Court noted that Defendants' motion to dismiss and/or motion for summary judgment asserts, inter alia, that Railey failed to properly exhaust his administrative remedies before filing this action. Pursuant to Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), the Court informed the parties that it would consider the exhaustion issue in the context of summary judgment, and by doing so, would consider matters outside the pleadings in its role as factfinder. (Id.) Accordingly, the Court directed Defendants to, within fourteen (14) days, file an amended or supplemental brief and statement of material facts "to further address the issue of whether Plaintiff has exhausted his administrative remedies and present any additional materials pertinent to the issue to the extent they have not already done so." (Id.) The Court directed Railey to file a brief in opposition within twenty-one (21) days from the date that Defendants filed their amended or supplemental materials. (Id.) The Court directed Railey to "specifically address the issue of administrative exhaustion and submit materials and documents pertinent to the issue." (Id.) The Court also directed him to "file a statement of material facts specifically responding to the numbered paragraphs in Defendants' statements." (Id.)
Defendants filed their reply brief on September 18, 2019 (Doc. No. 146), as well as a letter noting that they "will not avail themselves of the opportunity to file a supplemental memorandum and statement of material facts but will instead rely on the papers previously filed" (Doc. No. 147 at 2). Given Defendants' letter, there will be no supplemental materials to which Railey can respond. Accordingly, the motion to dismiss and/or motion for summary judgment is ripe for resolution.
When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court's inquiry is guided by the standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929
Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when determining the sufficiency of a complaint under Rule 12(b)(6): (1) identify the elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint "not entitled" to the assumption of truth; and (3) determine whether any "well-pleaded factual allegations" contained in the complaint "plausibly give rise to an entitlement to relief." See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).
In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, "a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). A court may also consider "any `matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.'" Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d Ed. 2004)).
In the context of pro se prisoner litigation specifically, the court must be mindful that a document filed pro se is "to be liberally construed." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).
Federal Rule of Civil Procedure 56(a) requires the court to render summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Third Circuit has held that filing a motion to dismiss, or in the alternative, a motion for summary judgment is sufficient "to place the parties
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if there is sufficient evidence with which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). A factual dispute is "material" if it might affect the outcome of the case. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the non-moving party. Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse Elec, Co., 862 F.2d 56, 59 (3d Cir. 1988).
A party seeking summary judgment always bears the initial burden of informing the court of the basis of its motion and identifying those portions of the record that it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party then has the burden to "come forth with `affirmative evidence, beyond the allegations of the pleadings,' in support of its right to relief." U.S. Bank, Nat'l Ass'n v. Greenfield, No. 1:12-cv-2125, 2014 WL 3908127, *2 (M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c)," a court may grant summary judgment or consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2-3).
Railey was previously confined in the Special Management Unit ("SMU") at
The BOP "has established a multi-tier system whereby a federal prisoner may seek formal review of any aspect of his imprisonment." (Id. ¶ 9.) First, an inmate must present his complaint to staff "on an Informal Resolution Attempt form commonly referred to as a BP-8." (Id. ¶ 10.) If informal resolution is not successful, the inmate may then submit a Request for Administrative Remedy (BP-9) to the Warden. (Id. ¶ 11.) "The deadline for completion of the BP-8 and submission of the BP-9 is twenty days from the date of the event which is the subject of the remedy." (Id. ¶ 12.) The Warden has twenty (20) days to respond to the BP-9. (Id. ¶ 13.) If an inmate is unsatisfied with the Warden's response, he may file a Regional Administrative Remedy Appeal (BP-10) with the Regional Director within twenty (20) days from the date of the Warden's response. (Id. ¶ 14.) The Regional Director has thirty (30) days to respond. (Id. ¶ 15.) Finally, an inmate may appeal the Regional Director's response by filing a Central Office Administrative Remedy Appeal (BP-11) with the Central Office within thirty (30) days of the Regional Director's response. (Id. ¶ 16.) The Central Office has forty (40) days to respond. (Id. ¶ 17.) The Central Office appeal is the final appeal, and no appeal is fully exhausted "until it is decided on its merits by the BOP's Central Office." (Id. ¶¶ 18-19.) An administrative remedy may be rejected at any level if it was not properly or timely submitted. (Id. ¶ 20.) If rejected, the remedy is "returned to the inmate and the inmate is provided with a written notice explaining the reason for rejection." (Id.) Usually, the BOP does not "maintain a copy of an administrative remedy that has been rejected." (Id. ¶ 21.) A rejection of a remedy is not a decision on the merits. (Id. ¶ 22.)
Each administrative remedy is given an identification number upon submission. (Id. ¶ 23.) The number is then followed by a letter to indicate "the level at which that particular remedy was filed." (Id. ¶ 24.) "F" refers to the institution level; "R" refers to the Regional Director; and "A" refers to the Central Office. (Id. ¶¶ 25-27.)
The BOP maintains a computerized index of all remedies and appeals filed by all inmates. (Id. ¶ 29.) An "Administrative Remedy Generalized Retrieval provide[s] details concerning each remedy filed by the inmates including the administrative remedy ID number, the date the remedy was received, an abstract (description) of the issue(s) raised, the three-letter code of the facility where the event occurred, the date the remedy was responded to, the status code, and the status reason." (Id. ¶ 30.) Railey has filed several administrative remedies during his incarceration at USP Lewisburg.
Railey was assigned to Counselor Reese's caseload from December 26, 2017 until March 2, 2018. (Id. ¶¶ 56-58.) Reese's logbook indicates that there "is no record of Railey returning a completed BP-8 form during that time." (Id. ¶ 59.) Reese never refused to provide Railey with administrative remedy forms and never interfered in
Defendant Tharp is employed as a correctional counselor at USP Lewisburg. (Id. ¶ 36.) Railey was assigned to Defendant Tharp's caseload from March 2, 2018 through May 6, 2019. (Id. ¶ 38.) Administrative remedy forms "are primarily distributed by Correctional Counselors who make routine rounds several times a week."
Defendant Tharp's logbook shows that Railey returned two completed BP-8 forms during the time period from March 2, 2018 through April 3, 2019. (Id. ¶ 45.) On March 29, 2018, Railey returned a completed BP-8 concerning his mail and a BP-8 concerning a medical issue. (Id. ¶¶ 46, 48.) Defendant Tharp gave Railey BP-9 forms on April 3, 2018, when he also provided Railey with the responses to his BP-8s. (Id. ¶¶ 47, 49.) Defendant Tharp continued to provide Railey "with BP-8s, responses to BP-8s, along with BP-9s, 10s, and 11s."
In their motion to dismiss and/or motion for summary judgment, Defendants Ebbert, Buebendorf, Tharp, and Gass argue that: (1) the Court should decline to imply a Bivens remedy for Railey's claims; (2) Railey failed to exhaust his administrative remedies; and (3) sovereign immunity bars Railey's claims against them in their official capacities. (Doc. No. 136.) The Court will therefore first consider whether a Bivens remedy is even available to Railey.
In 1971, the Supreme Court concluded that, even absent statutory authorization, it would enforce a damages remedy allowing individuals to be compensated after experiencing violations of the prohibition against unreasonable searches and seizures contained in the Fourth Amendment. Bivens, 403 U.S. at 397, 91 S.Ct. 1999. Subsequently, the Court extended the Bivens cause of action in two cases involving constitutional violations. First, in Davis v. Passman, 442 U.S. 228, 249-49, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Court concluded that the Fifth Amendment's Due Process Clause provided a damages remedy to an administrative assistant claiming that a Congressman had discriminated against her on the basis of gender. Next, the Court concluded that the Eighth Amendment's prohibition on cruel and unusual punishment provided a prisoner a
As noted above, Railey's second amended complaint raises the following claims: (1) Defendants Ebbert and Buebendorf violated his First Amendment rights by interfering with and destroying his mail; (2) Defendants Buebendorf, Tharp, and Gass violated his First Amendment rights by retaliating against him by seizing his legal property, interfering with the administrative remedy process, and refusing to provide legal copies; (3) Defendants Ebbert and Buebendorf violated his Fifth Amendment due process rights by failing to properly implement and apply the enhanced mail monitoring procedures; and (4) Defendants Ebbert and Buebendorf violated his Fifth Amendment rights by discriminating again him on the basis of his classification as a sovereign citizen. (Doc. No. 121 ¶¶ 33-83.) The Court considers below whether Bivens extends to each of these claims.
The Supreme Court has "never [explicitly] held that Bivens extends to First Amendment claims." Reichle v. Howards, 566 U.S. 658, 663 n.4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). For many years, courts, including the Supreme Court, assumed that Bivens extended to First Amendment claims. See Wood v. Moss, 572 U.S. 744, 757, 134 S.Ct. 2056, 188 L.Ed.2d 1039 (2014) ("[W]e have several times assumed without deciding that Bivens extends to First Amendment claims."). Moreover, the Third Circuit has, on many occasions, held that plaintiffs could see redress for First Amendment violations by bringing a Bivens suit. See, e.g., Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981) (concluding that Bivens would allow a cause of action alleging denial of a prisoner's right to access the courts); Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975) (concluding that a high school student who mailed an envelope to the Socialist Workers Party and had her name and address recorded by the FBI could bring suit under Bivens for free speech violations); cf. George v. Rehiel, 738 F.3d 562, 585 n.24 (3d Cir. 2013) (assuming without deciding that a Bivens action could be brought alleging a First Amendment right to be free from government retaliation for speech).
However, recently, in Ziglar, the Supreme Court noted that "expanding the Bivens remedy is now a `disfavored' judicial activity." Ziglar, 137 S. Ct. at 1857. As the Court stated in Ziglar:
Id. at 1859-60. If the case presents a new context, a court must then consider whether
The undersigned recently determined that federal inmates are not entitled to a Bivens remedy for claims of retaliation brought under the First Amendment. See Rinaldi v. United States, No. 1:13-cv-450, 2019 WL 1620340, at *8-9 (M.D. Pa. Apr. 16, 2019). Specifically, this Court stated:
In light of the Court's previous conclusion in Rinaldi, the Court concludes here that extending Bivens to Railey's First Amendment retaliation claims would be contrary to law. Accordingly, Railey's First Amendment retaliation claims are subject to dismissal.
Railey also maintains that Defendants Ebbert and Buebendorf violated his First Amendment rights by interfering with and destroying his mail. (Doc. No. 121 ¶¶ 33-45.) Specifically, Railey alleges that he has not received mail, that his mail has been delayed, and that the original letters and other correspondence are destroyed after being copied so that the copies can be provided to the recipients. (Id.)
The Court agrees with the several other federal courts that have concluded that Railey's claim for interference with and destruction of his mail presents a new context for purposes of Bivens. See, e.g., Zavala v. Rios, 721 F. App'x 720, 721 (9th Cir. 2018); White v. True, No. 19-CV-418-JPG, 2019 WL 3074528, at *2 (S.D. Ill. July 15, 2019); White v. Inch, No. 3:17-cv-1059-JPG-DGW, 2018 WL 6584899, at *1 (S.D. Ill. Dec. 14, 2018); Cox v. True, No. 3:17-cv-338-JPG-DGW, 2018 WL 6928796, at *3 (S.D. Ill. Sept. 20, 2018), Report and Recommendation adopted, 2019 WL 95478 (S.D. Ill. Jan. 3, 2019); White v. Sloop, No. 3:17-cv-1059-JPG-DGW, 2018 WL 6977336, at *2-3 (S.D. Ill. Aug. 31, 2018), Report and Recommendation adopted, 2018 WL 6584899 (S.D. Ill. Dec. 14, 2018); Stratmon v. Morris, No. 1:12-cv-1837-DAD-SAB (PC), 2018 WL 3388406, at *3 (E.D. Cal. July 10, 2018); Howard v. Lackey, No. 7:16-129-KKC, 2018 WL 1157547, at *3 (E.D. Ky. Mar. 5, 2018). Thus, the Court must next consider, under Ziglar, whether any alternative remedies exist and whether special factors counsel against extending the Bivens remedy. Ziglar, 137 S. Ct. at 1859-60.
Defendants Ebbert, Buebendorf, Tharp, and Gass assert that Railey has alternative remedies in the form of the BOP's administrative remedy process as well as under state tort law. (Doc. No. 136 at 18-21.) They also argue that four (4) special factors are present:
(Id. at 21.)
The Court agrees with Defendants, as well as the other courts to have considered the issue, that alternative remedies are
Railey also alleges that Defendants Ebbert and Buebendorf violated his Fifth Amendment due process rights by failing to properly implement and apply the enhanced mail monitoring procedures, as well as his equal protection rights by discriminating against him based upon his classification as a sovereign citizen. (Doc. No. 121 ¶¶ 46-65.) For the reasons set forth below, the Court declines to extend the Bivens remedy to these claims.
As noted above, the Supreme Court has recognized a Bivens remedy for gender discrimination in violation of the Fifth Amendment. See Davis, 442 U.S. at 230, 99 S.Ct. 2264. Railey's Fifth Amendment claims thus present new contexts than that present in Davis. See, e.g., Zavala, 721 F. App'x at 721 (concluding that inmate's Fifth Amendment claim regarding violations of procedural due process related to prison mail was distinguishable from Davis); Vega v. United States, 881 F.3d 1146, 1152-55 (9th Cir. 2018) (declining to extend Bivens to federal inmate's procedural
As with Railey's First Amendment claims, the Court finds that the availability of alternative remedies and the existence of special factors leads to a conclusion that the Bivens remedy should not be extended to Railey's Fifth Amendment claims. As noted above, Railey could seek relief through the BOP's administrative remedy process, as he attempted to do. See Cox, 2018 WL 6928796, at *4; Stratmon, 2018 WL 3388406, at *4; Howard, 2018 WL 1157547, at *3; see also Hunt, 336 F. Supp. 3d at 1169 (noting that federal inmate could have used the BOP's administrative grievance process to address his due process claim); Vanaman, 2018 WL 4698655, at *4 (concluding that federal inmate could have used administrative remedy process to address his equal protection claim). Moreover, as other courts have recognized, special factors exist counseling against the expansion of Bivens to Fifth Amendment claims due process claims, such as Congress' decision to not provide a damages remedy for certain violations and the financial burden on federal agencies resulting from litigation. See, e.g., Ojo, 364 F. Supp. 3d at 175-76; Hunt, 336 F. Supp. 3d at 1169; Vanaman, 2018 WL 4698655, at *4. Furthermore, "the judicial restraint exercised in cases implicating the administration of prisons" is another factor weighing against extension of the Bivens remedy. Thomas v. Paul, 16-cv-12-SM, 2019 WL 4451349, at *5 (D.N.H. Sept. 17, 2019). Thus, the Court will also dismiss Railey's Fifth Amendment due process and equal protection claims.
For the foregoing reasons, the Court will grant the motion to dismiss and/or motion for summary judgment filed by Defendants Ebbert, Buebendorf, Tharp, and Gass. (Doc. No. 132). Because Railey's claims against the Unknown Mailroom Officer are premised on the same allegations as his claims against Defendants Ebbert, Buebendorf, Tharp, and Gass, the Court will dismiss Plaintiff's claims against the Unknown Mailroom Officer pursuant to 28 U.S.C. §§ 1915A & 1915(e)(2)(B)(ii) for failure to state a claim upon which relief can
