Opinion
4:17-CV-10895-TGB-APP
2022-09-09
Walter Lee HALL, Plaintiff, v. Kevin M. CHAPMAN, Nicholas Jukuri, Frank O. Finch, Daniel Swetz, and John Polkinghorn, Defendants.
Walter Lee Hall, Davenport, IA, Pro Se. Jennifer L. Newby, U.S. Attorney, Defensive Litigation, Detroit, MI, for Defendants Kevin M. Chapman, Nicholas Jukuri, Daniel Swetz, John Polkinghorn.
Walter Lee Hall, Davenport, IA, Pro Se. Jennifer L. Newby, U.S. Attorney, Defensive Litigation, Detroit, MI, for Defendants Kevin M. Chapman, Nicholas Jukuri, Daniel Swetz, John Polkinghorn. ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING MOTION TO DISMISS CLAIMS AGAINST DEFENDANTS CHAPMAN, JUKURI, SWETZ AND POLKINGHORN (ECF NO. 34)
AND
ALSO DISMISSING CLAIM AGAINST DEFENDANT FINCH (ECF NO. 52)
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Magistrate Judge Anthony P. Patti's August 17, 2022 Report and Recommendation (ECF No. 52) recommending the dismissal of Plaintiff's claims against Defendant Finch, and granting Defendants Chapman, Jukuri, Swetz, and Polkinghorn's motion to dismiss (ECF No. 34).
The Court has reviewed the Magistrate Judge's Report and Recommendation and finds that it is well-reasoned and supported by the applicable law. The law provides that either party may serve and file written objections "[w]ithin fourteen days after being served with a copy" of the report and recommendation. 28 U.S.C. § 636(b)(1). The district court will make a "de novo determination of those portions of the report . . . to which objection is made." Id.
Where, as here, neither party objects to the report, the district court is not obligated to independently review the record. See Thomas v. Arn, 474 U.S. 140, 149-52, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). The Court will, therefore, accept the Magistrate Judge's Report and Recommendation of August 17, 2022 as this Court's findings of fact and conclusions of law.
Accordingly, it is hereby ORDERED that Magistrate Judge Patti's Report and Recommendation (ECF No. 52) is ACCEPTED and ADOPTED.
It is FURTHER ORDERED that Plaintiff's claims against Defendant Finch are DISMISSED with prejudice.
It is FURTHER ORDERED that Defendants Chapman, Jukuri, Swetz, and Polkinghorn's motion to dismiss is GRANTED. (ECF No. 34).
IT IS SO ORDERED. REPORT AND RECOMMENDATION TO DISMISS PLAINTIFF'S CLAIMS AGAINST DEFENDANT FINCH and GRANT DEFENDANTS CHAPMAN , JUKURI, SWETZ, AND POLKINGHORN'S MOTION TO DISMISS (ECF No. 34) Anthony P. Patti, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION: The Court should: (1) DISMISS Plaintiff's claims against Defendant Finch without prejudice for failure to comply with Fed. R. Civ. P. 4(m) (or, alternatively, with prejudice under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)); and, (2) GRANT Defendants Chapman, Jukuri, Swetz, and Polkinghorn's September 7, 2021 motion to dismiss (ECF No. 34).
II. REPORT:
A. Prior Cases
In 2015, while incarcerated at FCI Milan, Walter Lee Hall filed two cases in this Court. See Hall v. Federal Bureau of Prisons, Case No. 2:15-cv-12376-AJT-SDD (E.D. Mich.) (judgment Aug. 29, 2016), Hall v. Chapman, et al., Case No. 4:15-cv-13771-TGB-APP (E.D. Mich.) (judgment Jan. 20, 2018). In the latter, he sued three individuals who are also parties to the instant case: (1) Kevin M. Chapman, identified as the FCI Milan UNICOR Paint A Department Supervisor; (2) Nicholas Jukuri, identified as a sheet metal worker foreman; and, (3) Frank 0. Finch, identified as General Manager UNICOR. Hall v. Chapman, et al., Case No. 4:15-cv-13771-TGB-APP (E.D. Mich.) (ECF No. 1, PageID.1-2, therein).
Defendants were represented by the U.S. Attorney's Office. On January 17, 2017, Hall - "in direct response" to the Court's December 21, 2016 opinion and order (see ECF No. 33, therein) - filed an amended complaint against Chapman "based on events that transpired on or about September and October 2014." (ECF No. 38, therein.) As Judge Berg recognized on February 17, 2017, the superseding amended complaint "appears to have tried to address the problems with the original Complaint raised by Magistrate Judge Patti." (ECF No. 42, PageID.408-409, therein.) The matter concluded in January 2018, when the Court granted Defendants' motion to dismiss, dismissed Hall's claims without prejudice, and entered judgment. (ECF Nos. 52, 53, therein.)
B. Instant Complaint
On March 21, 2017, Hall filed the instant matter, which concerns his incarceration at FCI Milan "from July 2014 to November 2016." (ECF No. 1, PageID.1.) Defendants are: (1) Chapman; (2) Jukuri; (3) Finch; (4) Daniel M. Swetz, a Correctional Counselor; and, (5) John T. Polkinghorn, who is described as a Unit Case Manager. (ECF No. 1, PageID.2, 76.)
At the time Hall filed this lawsuit in March 2017, he was incarcerated at FCI El Reno in Oklahoma. (Id., PageID.79.) On February 27, 2020, Judge Berg referred this case to me for pretrial matters. (ECF No. 11.) Plaintiff was released from the Federal Bureau of Prisons' custody on August 12, 2020. In December 2020, he informed the Court of his new address. (ECF No. 20.)
See https://www.bop.gov/inmateloc/ (08528-030) (last visited Aug. 5, 2022).
C. Defendant Finch has yet to appear, and the claims against him should be dismissed without prejudice.
Plaintiff is proceeding in forma pauperis (IFP). (ECF Nos. 2, 3.) Therefore, the Court directed the U.S. Marshal Service (USMS) "to serve the appropriate papers in this case on defendant(s) without prepayment of the costs for such service." (ECF No. 7; see also ECF No. 13.) The USMS made multiple attempts at service, some of which were successful, some of which were not. (ECF Nos. 8-9, 14, 16, 17-19, 21-24, 27.)
The copy of this order sent to Plaintiff at FPC Duluth was returned as undeliverable. (ECF No. 15.)
On May 26, 2021, Chapman, Jukuri, Swetz, and Polkinghorn appeared via counsel. (ECF No. 28.) To date, Finch has not appeared. It seems the USMS's January 2021 attempt to serve Finch was unsuccessful. (ECF No. 26.) On May 26, 2021, the Government informed the Court that "Finch is retired[,] and the Bureau of Prisons (BOP) provided his last known address to the United States Marshals Service." (ECF No. 29, PageID.155 ¶ 7.)
Approximately five months later, on November 1, 2021, I entered an order, which provided, in part: "[U]nless the United States Attorney's Office informs this Court, in writing, that it agrees to accept service on behalf of Defendant Finch or enters an appearance on Defendant Finch's behalf, the Federal Bureau of Prisons must furnish the [USMS] with Defendant Finch's last-known address." (ECF No. 39, PageID.207.)
It is not clear what became of the apparent February 2022 attempt to effect service upon Finch. (ECF No. 43.) On April 15, 2022, the Clerk of the Court issued a summons as to Finch. (ECF No. 44.) This attempt was also unfruitful. (ECF Nos. 45, 46, 51.) Then, on June 8, 2022, the USMS filed a notice of reasonable effort search, explaining as follows: "An alternate address could not be located due to multiple search results being returned for the defendant's name and state indicated in the address provided by the Michigan Department of Corrections. The [USMS] will make no additional efforts to perform service." (ECF No. 47.) Therefore, on June 9, 2022, I entered an order requiring Plaintiff to show cause - in writing, and no later than Friday, July 8, 2022 - why Defendant Finch should not be dismissed for the failure to serve him in accordance with Fed. R. Civ. P. 4(m). (ECF No. 49.) To date, Plaintiff has not filed a related response.
"If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the plaintiff—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed. R. Civ. P. 4(m). Considering that this case has been pending for more than five years, that the USMS's multiple attempts to effect service upon Finch have been unsuccessful (see, e.g., ECF Nos. 9, 26, 46), and that Plaintiff has not responded to the Court's related show cause order, the Court should dismiss Plaintiff's claims against Defendant Finch without prejudice for failure to comply with Fed. R. Civ. P. 4(m). Alternatively, pursuant to this Court's screening functions in IFP and prisoner cases (see 28 U.S.C. §§ 1915(e)(2)(B) , 1915A(b)), and in the interest of judicial economy, the claims against Finch should be dismissed with prejudice, because the Bivens claims that form the basis of Plaintiff's complaint are not cognizable in this context under recent Supreme Court jurisprudence, as explained in great detail below (see Section II.E.3).
D. Defendants Chapman, Jukuri, Swetz, and Polkinghorn's Motion to Dismiss
Currently before the Court is Defendants Chapman, Jukuri, Swetz, and Polkinghorn's September 7, 2021 motion to dismiss, which argues that:
1. This Court should dismiss Hall's official capacity claims for lack of subject matter jurisdiction.(ECF No. 34, PageID.171-172, 181-199.)
2. The Court should dismiss Plaintiff's individual capacity First and Fifth Amendment claims based on a lack of subject matter jurisdiction where no remedy lies under Bivens [v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 [, 91 S.Ct. 1999, 29 L.Ed.2d 619] (1971)].
3. Defendants are entitled to qualified immunity as to Plaintiff's First and Fifth Amendment claims.
Although Plaintiff's response was originally due on October 8, 2021, he sought an extension, and Plaintiff was given until December 10, 2021 by which to file a response. (ECF Nos. 35, 38, 40.) Thus, Plaintiff's response, which was dated December 13, 2021 and post-marked January 4, 2022 (ECF No. 41) is tardy, although I have considered it in this report and recommendation. Importantly, Plaintiff "concedes that this Court should in fact dismiss Plaintiff's official capacity claims." (ECF No. 41, PageID.211, 216-218.) Therefore, only Defendants' Bivens and qualified immunity arguments remain at issue.
Defendants timely replied on January 18, 2022. (ECF No. 42.)
E. Discussion
1. Factual background
UNICOR is "the trade name for Federal Prison Industries (FPI), a wholly owned Government corporation . . ." with a goal to "prepar[e] inmates for successful reentry through job training." Hall claims he was working in UNICOR's Paint Department at FCI Milan when Chapman took over the department in June or July of 2014. (ECF No. 1, PageID.5.) Hall alleges Chapman started to form "dislike and ill feelings" toward him after Hall corrected "Chapman's [unspecified] miss-statements [sic][,]" which Hall believes "lead to C/O Chapman deciding to make his life . . . at FCI-Milan a living hell." (Id.)
See https://www.bop.gov/inmates/custody_and_care/unicor_about.jsp (last visited Aug. 5, 2022).
Hall alleges he "worked his way up through UNICOR and secured a job as an Inventory Clerk," but Chapman "told Mr. Hall that he doesn't think he should have that job." (Id.) Plaintiff also alleges:
• In September 2014, he was the only one from whom Chapman took money for exceeding the lunch break. (Id., PageID.6; see also id., PageID.49, 51, 53 [Administrative Remedy Case No. 808450].)
• In October 2014, on more than one occasion, Chapman removed Hall from the overtime list. According to Plaintiff, he "is the only one that works in the department that [Chapman] took off the list." Also, Chapman gave Plaintiff until October 23, 2014 "to find some place to go[,]" as Chapman did not think Plaintiff should have "the count job," presumably the "inventory clerk" position, because it gave "too much lee way [sic]." Additionally, when Plaintiff worked overtime in the paint booth, Chapman "took Mr. Hall off that job and gave it to somebody else." Later, on October 16, 2014, Chapman informed Hall, "I'm thinking of putting you on the take off line[,]" which Hall claims would lower his grade. In Hall's words, he "went from grade 1 to 2, a demotion which resulted in roughly loss of pay of $175.00 monthly." (ECF No. 1, PageID.6-8; see also id., PageID.49, 51, 52, 54 [808450]).
• On November 25, 2014 and again on November 30, 2014, Plaintiff spoke with Finch, the general manager, about Chapman, to no avail. (Id., PageID.7-8, 39 ¶ 10 [Pl.'s Unsigned Declaration].)
• In May 2015, Finch and Jukuri "reassigned 2 white inmates," with "no loss of grade and full time[,]" while Plaintiff was "demoted by one grade and put on part-t[i]me status at Unicor." (Id., PageID.8.)
• On September 8, 2015, Plaintiff was tardy to work. Although this was his
"first time ever being late[,]" Jukuri wrote an incident report for "unexcused absence from work or assignment," as opposed to issuing a warning, and the Unit Discipline Committee (UDC)'s action - signed by Swetz and perhaps also Polkinghorn - was "loss of preferred housing" and "loss of job." By comparison, inmate Sutcliffe - a white male - was late for work on the same day but was not issued a misconduct report. (Id., PageID.7, 34-35 [Incident Report], 76-77 [Sept. 9, 2015 Attempt at Informal Resolution], 55-60 [AR Case No. 839039], 63-66 [AR Case No. 839043], 68-75 [AR Case No. 842104].)(ECF No. 1, PageID.6-8; see also id., PageID.15.) Significantly, Plaintiff seeks only monetary relief in this lawsuit, i.e., compensatory, nominal and punitive damages. (ECF No. 1, PageID.27.)
The BOP's Administrative Remedy (AR) Program involves attempts at informal resolution, an AR Request (Forms BP-9 / BP-229), a Regional AR Appeal (Forms BP-10 / BP-230), and a Central Office AR Appeal (Forms BP-11 / BP-231). (See https://www.bop.gov/Public Info/execute/policysearch?todo=query#.)
2. Interpreting Plaintiff's original pleading
a. Form
Plaintiff's initial filing takes an unconventional form. Preliminarily, it does not state its claims in numbered paragraphs, as required by Fed. R. Civ. P. 10(b). Nor are the pages numbered consecutively, as required by Local Rule 5.1. See E.D. Mich. LR 5.1(a)(2).
However, there is a more perplexing issue with the March 2017 pleading's form - the layout of its content. After explaining in a "background" section that he filed the instant lawsuit in response to my December 2016 report and recommendation in his prior case (ECF No. 1, PageID.1), the pleading next lists his twelve counts against the various Defendants (ECF No. 1, PageID.2-4), which is followed by his statement of facts (id., PageID.5-8). Even setting aside this unconventional form and order, the pleading then turns to a section labeled, "complaint," (see id., PageID.9-26), which contains several irregularities for an initial pleading, e.g.: (a) multiple references to his prior case (id., PageID.10, 11, 19); (b) multiple references to a proposed first amended complaint (id., PageID.9-12, 14, 18-21); (c) a single reference to a "past filing," (id., PageID.13); (d) a single reference to "non-party D. Swetz," who Plaintiff has clearly named as a Defendant in the caption (compare id., PageID.1; with id., PageID.15); (e) multiple references to the BOP's AR Policy on initial filing (28 C.F.R. § 542.14) and appeals (28 C.F.R. § 542.15) (id., PageID.17), when failure to exhaust is a defense; and, (f) several references to qualified immunity, entitlement to which is also a defense (id., PageID.18, 21-23). As it turns out, significant portions of these pages are borrowed from my December 2016 report and recommendation in Plaintiff's prior case. (Compare, e.g., ECF No. 1, PageID.11-13, 15-18, 25-26; with Case 4:15-cv-13771-TGB-APP (ECF No. 30, PageID.290-295, 301-308).) Thus, in considerable part, the 18-page "complaint" portion of this original pleading (ECF No. 1, PageID.9-26) seems repurposed from his prior lawsuit or perhaps even, in some form, a response thereto.
And, the pleading specifically refers to a "May 10, 2016 proposed first amended complaint . . . [,]" (id., PageID .19), which is almost certainly a reference to the attachments to his same-day motion for leave to file an amended complaint in Case 4:15-cv-13771-TGB-APP (ECF No. 20, PageID .204-206 [Motion], 207-216 [Proposed Amended Complaint]), which motion was granted in part and denied in part on December 21, 2016 (ECF No. 33, therein).
b. Breadth
Looking past the pleading's formatting anomalies, there is some question about the breadth of Plaintiff's allegations. While he states his complaint concerns his incarceration at FCI Milan from July 2014 to November 2016 (id., PageID.1), his "statement of facts" seems to fine-tune the period at issue to June or July 2014 to September 2015 (id., PageID.5-8), as do the various delineated claims within the section he labels "complaint" (id., PageID.9-26). Yet, notwithstanding the pleading's caption and counts naming up to five Defendants - i.e., Chapman, Jukuri, Finch, Swetz, and Polkinghorn - or the pleading's apparent June or July 2014 to September 2015 time span, the "conclusion" of Plaintiff's initial pleading only mentions: (a) his First Amendment retaliation claim against Chapman "concerning the events of September and October 2014;" (b) his First Amendment retaliation claim against Finch concerning the events of November 2014; and, (c) his Fifth Amendment equal protection claim against Chapman "concerning the September 2014 pay cut and the October 2014 overtime events . . . ." (ECF No. 1, PageID.27.) (See also id., PageID.2-4, 8-10, 12-19, 21-23, 25-26.) In other words, the conclusion of Plaintiff's pleading suggests there are only two Defendants - Chapman and Finch - and also suggests the time period at issue is only September 2014 to November 2014. This report and recommendation follows this narrowed construction of Plaintiff's claims.
To the extent Plaintiff alleges his complaint is based on 42 U.S.C. § 1983 ("Civil action for deprivation of rights") (see ECF No. 1, Pa geID.1, 13, 14, 20, 22), he is mistaken, because he is not suing state or local officials. The same is true of Plaintiff's references to the Fourteenth Amendment (id., PageID.2, 18), which applies to the states. Each of the Defendants in this case are or were federal officials. (Id., PageID.1-2.)
3. Plaintiff's First Amendment retaliation and Fifth Amendment equal protection claims, Defendants' Bivens argument, and intervening authority
Moving from these observations regarding the form and breadth of Plaintiff's pleading to Defendants' alleged bases for dismissal, Defendants argue that this Court should not extend Bivens - the Supreme Court's 1971 holding that "violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct[,]" Bivens, 403 U.S. at 389, 91 S.Ct. 1999 - "into the new contexts sought by Plaintiff." (ECF No. 34, PageID.182-190.) As Defendants note, the Supreme Court has articulated "[t]he proper test for determining whether a case presents a new Bivens context . . . ." Ziglar v. Abbasi, — U.S. —, 137 S. Ct. 1843, 1859 , 198 L.Ed.2d 290 (2017). (ECF No. 34, PageID.183-184.) "If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new." Ziglar, 137 S. Ct. at 1859.
a. Intervening authority
In its initial briefing, Defendants argue the Court "should not extend Bivens" to "redress First Amendment retaliation claims[,]" or to "the new Fifth Amendment context raised by Plaintiff." (ECF No. 34, PageID.172, 182, 185-190.) The month after Defendants filed their motion, the Sixth Circuit summarized the "Bivens trilogy" as follows:
The Supreme Court has recognized an implied cause of action to recover damages from federal officers who violate constitutional rights in only three narrow circumstances. See Bivens, 403 U.S. 388, 91 S.Ct. 1999 . . . (Fourth Amendment search-and-seizure violation by
federal narcotics agents); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 . . . (1979) (Fifth Amendment employment-discrimination violation by a United States congressman); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 . . . (1980) (Eighth Amendment inadequate-medical-care violation by prison officials).Elhady v. Unidentified CBP Agents, 18 F.4th 880, 882-83 (6th Cir. 2021), reh'g denied, No. 20-1339, 2022 WL 326693 (6th Cir. Jan. 25, 2022). In fact, the Supreme Court has previously recognized that 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 January 2022, Plaintiff responded to Defendants' Bivens argument (ECF No. 41, PageID.211-213), and Defendants filed their reply (ECF No. 42). However, approximately six months after briefing concluded, the Supreme Court further opined on Bivens's scope. In addition to observing that "our cases have made clear that, in all but the most unusual circumstances, prescribing a cause of action is a job for Congress, not the courts," the Supreme Court: (i) declined to extend Bivens to a Fourth Amendment excessive-force claim in the border-security context; and, (ii) held "there is no Bivens action for First Amendment retaliation." Egbert v. Boule, — U.S. —, 142 S. Ct. 1793, 1800, 1804, 1807, 213 L.Ed.2d 54 (2022) (emphasis added).
Defendants immediately filed a notice of intervening authority, contending that Egbert "is dispositive of the issues in this case." (ECF No. 48.) Accordingly, on June 11, 2022, I entered an order requiring Plaintiff to show cause - no later than Wednesday, July 13, 2022, and in writing - why his March 2017 complaint (ECF No. 1) should not be dismissed in light of Egbert. (ECF No. 50, PageID.291.) To date, Plaintiff has not filed a related response.
b. First Amendment retaliation
In response to Defendants' argument that this Court "should not extend Bivens to redress First Amendment retaliation claims[,]" (ECF No. 34, PageID.185-188), Plaintiff relies upon three cases: (i) Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (§ 1983 action brought by state prisoner Plaintiffs); (ii) Crawford-El v. Britton, 523 U.S. 574, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (a § 1983 lawsuit); and, (iii) Vance v. Barrett, 345 F.3d 1083, 1093-94 (9th Cir. 2003) (a § 1983 lawsuit). (ECF No. 41, PageID.211-212.) However, these are non-Bivens lawsuits, and each of them precedes the Supreme Court's 2017 decision in Ziglar. (ECF No. 42, PageID.220.)
More to the point, just two months ago, the Supreme Court stated unequivocally that, "we hold that there is no Bivens action for First Amendment retaliation." Egbert, 142 S. Ct. at 1807. And, if there were any doubt about the breadth of this broad pronouncement, and whether it is limited to the facts of that specific case, Justice Sotomayor's partial concurrence (joined by Justices Breyer and Kagan) - given immediately after dissenting from the Court's refusal to recognize the plaintiff's Fourth Amendment excessive force Bivens claim concurs "in the Court's judgment that Boule's First Amendment retaliation claim may not proceed under Bivens," explaining that she agrees with the resulting dismissal of the First Amendment Bivens action "not for the reasons the Court identifies . . . but because precedent requires it." Id. at 1811, 1818 (Sotomayor, J. concurring) (emphasis added). These statements are straightforward, and, if Plaintiff intended to argue that Egbert somehow applied only to the border-security context involved in Egbert - a proposition with which the Undersigned disagrees - then Plaintiff waived any such argument by failing to respond to the Court's show cause order. Accordingly, the Court should dismiss Plaintiff's First Amendment retaliation claims in this Bivens action.
Moreover, Justice Thomas's majority opinion labeled respondent's "First Amendment retaliation claim" as a "new Bivens context[,]" which "arises when there is a new 'constitutional right at issue[.]' " Egbert, 142 S.Ct. at 1807 (quoting Ziglar, 137 S.Ct. at 1860).
c. Fifth Amendment equal protection
As explained in Egbert, "[t]o inform a court's analysis of a proposed Bivens claim, our cases have framed the inquiry as proceeding in two steps:
First, we ask whether the case presents "a new Bivens context"—i.e., is it "meaningful[ly]" different from the three cases in which the Court has implied a damages action. Ziglar, 582 U. S., at —, 137 S.Ct. at 1859-1860. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are "special factors" indicating that the Judiciary is at least arguably less equipped than Congress to "weigh the costs and benefits of allowing a damages action to proceed." Ziglar, 582 U. S., at —, 137 S.Ct. at 1858 (internal quotation marks omitted). If there is even a single "reason to pause before applying Bivens in a new context," a court may not recognize a Bivens remedy. Hernández, 589 U. S., at —, 140 S.Ct. at 743.Egbert, 142 S. Ct. at 1803. "While our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy." Id., 142 S. Ct. at 1803. "Finally, . . . a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, 'an alternative remedial structure.' " Id., 142 S. Ct. at 1804 (quoting Ziglar, 582 U. S., at —, 137 S.Ct. at 1858).
Defendants argue that the Court "should not extend Bivens to the new Fifth Amendment context raised by Plaintiff." (ECF No. 34, PageID.188-190.) They acknowledge the Fifth Amendment equal protection gender discrimination remedy recognized in Davis, but they contend Hall's Fifth Amendment equal protection claim "is a new context." (ECF No. 34, PageID.188.) "A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized." Hernandez v. Mesa, — U.S. —, 140 S. Ct. 735, 743, 206 L. Ed. 2d 29 (2020). "[E]ven a modest extension is still an extension." Ziglar, 137 S. Ct. at 1864.
i. Plaintiff's Fifth Amendment equal protection race-based discrimination claim arguably presents a new Bivens context.
Plaintiff's Fifth Amendment equal protection claim seems to be based on race, disparate treatment, and discrimination as it relates to his September 2014 pay cut and the October 2014 overtime events, if not also his May 2015 loss of grade and placement on part-time status, as well as the September 2015 loss of preferred housing and loss of job. (ECF No. 1, PageID.2-4, 8-9, 11-12, 15-20, 22, 25.) With the exception of his loss of preferred housing, his other losses are directly related to his employment at UNICOR, which is perhaps the reason Plaintiff cites Title VII of the Civil Rights Act and DeWalt v. Carter, 224 F.3d 607, 618 (7th Cir. 2000) (state prisoner alleged defendants "worked to remove him from his prison job because of his race and because he filed a grievance . . . ."). (ECF No. 41, PageID.215.). Yet, Hall's similarity to Davis seems limited to alleged discrimination in governmental employment. Plaintiff's alleged basis of discrimination is race, including various comparisons with white prisoners (see id., PageID.4, 7, 8, 15, 19), while Davis involved gender discrimination. Also, Plaintiff could seek recourse through the BOP's AR Program; for Davis, there were "available no other alternative forms of judicial relief." Davis, 442 U.S. at 245, 99 S.Ct. 2264. See also, Egbert, 142 S.Ct. at 1807 ("So long as Congress or the Executive has created a remedial process that it finds sufficient to secure an adequate level of deterrence, the courts cannot second-guess that calibration by superimposing a Bivens remedy.") In Defendants' words, "[t]here are material differences between the context of this case and Davis[.]" (ECF No. 34, PageID.189.) See also Zelaya v. Hammer, 516 F. Supp. 3d 778, 798 (E.D. Tenn. 2021) ("the Court cannot extend a Bivens remedy" to "a race-based equal-protection claim under the Fifth Amendment."); Doe v. Meron, 929 F.3d 153, 169 (4th Cir. 2019) (finding Doe's "multiple alleged Fifth Amendment Due Process Clause violations, including violations of his right to parentage, to familial relations and to equal protection of the laws[,]" and the "meaningful differences between the rank of the officers involved and the legal mandate under which the officers were operating" presented a "new Bivens context."); Harris v. FBOP, No. 19-3585, 2020 WL 7586968, at *2 (6th Cir. Sept. 22, 2020) ("Harris's claim . . . differs 'in a meaningful way' because he claimed that his rights to equal protection and due process had been violated by the defendants' failure to facilitate his attempts to exercise his right to marry and satisfy Ohio's requirements to obtain a marriage license, a right and context that was not at issue in Davis."). Neither party cited a published Sixth Circuit case on the new context issue (see ECF No. 34, PageID.188-190; ECF No. 41, PageID.212-213; ECF No. 42, PageID.220), and the Court did not find any on its own. However, albeit in an unpublished opinion, I am persuaded by the Third Circuit's holding and reasoning in Alexander v. Ortiz, 807 F. App'x 198 (3rd Cir. 2020), a case also relying on Ziglar and affirming dismissal of a Fifth Amendment Bivens action "for allegedly denying [like Hall, a former federal prisoner plaintiff] pay increases, overtime opportunities, and promotions on account of race." Alexander, 807 F. App'x at 199. There, the Court found that Davis did not supply Alexander with a legal basis for a Bivens action, reasoning that "a UNICOR workplace and a congressional office are 'vastly different,' operating under separate sets of legal mandates[,]" and concluded that Alexander's Fifth Amendment racial discrimination claim "arises in a new context." Id. at 200. Taking all this into account, to the extent the instant case requests relief based on race discrimination in violation of the Equal Protection Clause of the Fifth Amendment, in the context of a prison employment setting, I will assume for purposes of this motion that it presents a new Bivens context.
DeWalt was abrogated by Savory v. Cannon, 947 F.3d 409 (7th Cir. 2020).
ii. Scrutiny of special factors disfavors extension
Defendants also contend that "[s]pecial factors counsel against extending Bivens into this new context." (ECF No. 34, PageID.190; see also ECF No. 42, PageID.221-222.) I agree. Such factors "include whether existing legislation covers the area and whether alternative processes exist for protecting the right." Callahan v. Fed. Bureau of Prisons, 965 F.3d 520, 524 (6th Cir. 2020) (citing Ziglar, 137 S. Ct. at 1858, 1862). The alleged events underlying this lawsuit took place at FCI Milan, where Plaintiff was incarcerated. The absence of a "standalone damages remedy" in the PLRA "suggests a considered decision not to extend a damages remedy to First Amendment violations." Callahan, 965 F.3d at 524 (citing Ziglar, 137 S. Ct. at 1865). Also, "[t]he federal prisons' grievance process provides an alternative path for [the prisoner] to air his claims." Callahan, 965 F.3d at 524 (citing 28 C.F.R. § 542.10 et seq.). See also Harris, 2020 WL 7586968, at *2. Moreover, "[p]rison-based claims also present a risk of interference with prison administration." Callahan, 965 F.3d 520, 524 (6th Cir. 2020).
In response, Plaintiff relies upon multiple cases, only three of which are binding upon this Court, the others all being from other circuits or lower courts: (i) City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (the Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike.") (citation omitted); (ii) Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) ("This Court's approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment."); and, (iii) Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) ("In Bivens . . . we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights."). (ECF No. 41, PageID.212-213.)
However, as Defendants point out, each of these cases precedes the Supreme Court's 2017 decision in Ziglar, and the Sixth Circuit's more recent, November 19, 2021 decision in Elhady reinforced the "narrow circumstances" of the "Bivens trilogy." Elhady, 18 F.4th at 882-883. (ECF No. 42, PageID.220-221.) And Defendants note a further distinction: The Defendant in Davis was a U.S. congressman, whereas Defendants are "lower-level prison staff[.]" (ECF No. 42, PageID.221.) Likewise, in Egbert, the Supreme Court recognized the uniqueness of the context faced by the Davis court. Egbert, 142 S.Ct. at 1808 ("[In Davis], the Court permitted a congressional staffer to sue a congressman for sex discrimination under the Fifth Amendment.")
As the Sixth Circuit recently observed: "the Supreme Court devised a two-part inquiry to determine when we should engage in the 'disfavored judicial activity' of recognizing a new Bivens action . . . . And under this exacting test, the answer will almost always be never." Elhady, 18 F.4th at 883 (internal citation omitted). So it should be with Plaintiff's Fifth Amendment equal protection race-based discrimination claim, particularly where, as noted above, the Court of Appeals has previously recognized that "[p]rison-based claims also present a risk of interference with prison administration." Callahan, 965 F.3d at 524. And the Supreme Court's reasoning reminds us why this is so: "the question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts." Egbert, 142 S.Ct. at 1807. Its stated concern that, "[a]t bottom, creating a cause of action is a legislative endeavor[,]" id., at 1802, does not bode well for recognizing or extending new Bivens claims here. Indeed, the Court has "emphasized[,]" and now re-emphasized, "that recognizing a cause of action under Bivens is 'a disfavored judicial activity.' " Id., at 1803 (quoting Ziglar, 137 S.Ct. at 1856-1857). In the Court's own words, "[u]nsurprisingly, Congress is 'far more competent than the Judiciary' to weigh such policy considerations . . . . And the Judiciary's authority to do so at all is, at best, uncertain." Egbert, 142 S.Ct. at 1803 (quoting Schweiker v. Chilicky, 487 U.S. 412, 423, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) and citing Hernandez, 140 S.Ct. at 742). As the Third Circuit stated in Alexander:
In his concurrence in Egbert, Justice Gorsuch pointedly observes:
And if the only question is whether a court is "better equipped" than Congress to weigh the value of a new cause of action, surely the right answer will always be no. Doubtless, these are the lessons the Court seeks to convey. I would only take the next step and acknowledge explicitly what the Court leaves barely implicit. Sometimes, it seems, "this Court leaves a door ajar and holds out the possibility that someone, someday might walk through it" even as it devises a rule that ensures "no one . . . ever will." Edwards v. Vannoy, . . . — U.S. —, 141 S.Ct. 1547, 1566 , 209 L.Ed.2d 651 (2021) (GORSUCH, J., concurring). In fairness to future litigants and our lower court colleagues, we should not hold out that kind of false hope, and in the process invite still more "protracted litigation destined to yield nothing." Nestlé [USA, Inc. v. Doe], . . . — U.S. —, 141 S.Ct. [1931,] 1943, 210 L.Ed.2d 207 [(2021)]Egbert, 142 S. Ct. at 1810 (Gorsuch, J. concurring).
(GORSUCH, J. concurring).
Congress envisioned that UNICOR would be managed within the executive branch by a board appointed by the President, see 18 U.S.C. § 4121, and did not suggest any role for the federal courts . . . . We agree this remedial scheme for physical injuries is a strong signal that Congress did not intend to create a judicially enforceable remedy for constitutional violations and that any decision to do so must be left to Congress.Id., 807 F. App'x at 200. Likewise here, consideration of the "special factors" makes it apparent that "Congress might be better equipped to create a damages remedy" in this context. Egbert, 142 S.Ct. at 1803. That being so, the Court should not extend Bivens to redress Plaintiff's Fifth Amendment equal protection race-based discrimination claim, and it should be dismissed.
4. Plaintiff's conspiracy claims
Plaintiff mentions conspiracy throughout his pleading, including "conspiracy and the events of September 2015," in support of which he points to the August 2, 2016 declaration of Benjamin P. Foreman (ECF No. 1, PageID.41-42), although he does not mention 42 U.S.C. § 1985 ("Conspiracy to interfere with civil rights"). (Id., PageID.2-4, 9, 13, 20-25.) As Plaintiff correctly
A civil conspiracy claim under § 1983 or Bivens lies where there is "an agreement between two or more persons to injure another by unlawful action." Revis v. Meldrum, 489 F.3d 273, 290 (6th Cir. 2007). To prevail on such a claim in this context, appellants must demonstrate "that (1) a single plan existed, (2) the conspirators shared a conspiratorial objective to deprive the plaintiffs of their constitutional rights, and (3) an overt act was committed" in furtherance of the conspiracy that caused the injury. Id.Robertson v. Lucas, 753 F.3d 606, 622 (6th Cir. 2014). (ECF No. 1, PageID.20.) "It is well-settled that conspiracy claims must be pled with some degree of specificity and that vague and conclusory allegations unsupported by material facts will not be sufficient . . . ." Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987).
Defendants challenge Plaintiff's claim(s) of conspiracy at least in part for their alleged lack of specificity. (ECF No. 34, PageID.195-198.) However, if the Court agrees with the above recommendation that Plaintiff's First Amendment retaliation and Fifth Amendment equal protection race-based discrimination claims are not recognized by Bivens, then the Court need not resolve the exact basis of Plaintiff's conspiracy claim or whether he has pleaded such claim with requisite specificity. "In the absence of a viable underlying constitutional claim, the district court [does] not err by dismissing [Plaintiff]'s claim of a conspiracy to violate his constitutional rights." Montgomery v. Ferentino, No. 20-3114, 2021 WL 3204843, at *3 (6th Cir. Feb. 24, 2021) (a mixed 42 U.S.C. § 1983 and Bivens case against multiple federal, state, and private prison officials and employees"). See also Wiley v. Oberlin Police Dep't, 330 F. App'x 524, 530 (6th Cir. 2009) (where Plaintiff brought her federal claims pursuant to 42 U.S.C. § 1983, she could not "succeed on a conspiracy claim because there was no underlying constitutional violation that injured her.").
5. Qualified immunity
Defendants argue that Defendants are entitled to qualified immunity. (ECF No. 34, PageID.191-199.) The related two-step analysis requires the Court to consider "whether the facts that a plaintiff has alleged . . . or shown . . . make out a violation of a constitutional right[,]" and "whether the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citations omitted). "Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right." Pearson, 555 U.S. at 232, 129 S.Ct. 808 (citation omitted).
Plaintiff relies upon a number of cases to make his argument, including: (i) Crawford-El, 523 U.S. at 589 n.10, 592, 118 S.Ct. 1584 (in a § 1983 lawsuit, "[t]he reason why such retaliation offends the Constitution is that it threatens to inhibit exercise of the protected right[,]" and recognizing that "the First Amendment bars retaliation for protected speech" is a "general rule" that "has long been clearly established . . . ."); (b) Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (§ 1983 action brought by state inmate Plaintiffs); and, (iii) Weinberger, 420 U.S. at 638 n.2, 95 S.Ct. 1225. (ECF No. 41, PageID.213-216.) Still, if the Court agrees that Plaintiff's First Amendment retaliation and Fifth Amendment equal protection race-based discrimination claims are not recognized by Bivens, and in turn that Plaintiff cannot sustain his conspiracy claim, then the Court need not address whether Defendants are entitled to qualified immunity on such claims. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity.")
F. Conclusion
For the reasons stated above, the Court should: (1) DISMISS Plaintiff's claims against Defendant Finch without prejudice for failure to comply with Fed. R. Civ. P. 4(m) (or, alternatively, with prejudice under 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)) (see Section II.C.); and, (2) GRANT Defendants Chapman, Jukuri, Swetz, and Polkinghorn's September 7, 2021 motion to dismiss (ECF No. 34), because Plaintiff concedes that his official capacity claims should be dismissed, no Bivens claim exists for First Amendment retaliation, the Court should not extend Bivens to Plaintiff's Fifth Amendment equal protection race-based discrimination claim, and, consequently, Plaintiff cannot succeed on his conspiracy claim (see Section II.E.).
III. PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Fed. R. Civ. P. 72(b)(2) and E.D. Mich. LR 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.