Opinion
4:21-CV-04001-KES
2022-07-15
Handsome P. PARKER, Plaintiff, v. Lt. HUESER, in his official and individual capacity, Defendant.
Handsome P. Parker, Coleman, FL, Pro Se. Alexis Anne Warner (USA), Alison J. Ramsdell, U.S. Attorney's Office, Sioux Falls, SD, for Defendant.
Handsome P. Parker, Coleman, FL, Pro Se. Alexis Anne Warner (USA), Alison J. Ramsdell, U.S. Attorney's Office, Sioux Falls, SD, for Defendant. ORDER GRANTING DEFENDANT'S MOTION TO DISMISS KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE
Plaintiff, Handsome Parker, an inmate at Coleman Low FCI in Sumterville, Florida, filed a pro se civil rights lawsuit under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and 28 U.S.C. § 1331. Docket 1. Defendant, Lt. Hueser, moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(6). Docket 50. For the reasons stated below, Lt. Hueser's motion to dismiss is granted.
FACTUAL BACKGROUND
The facts alleged in the Amended Complaint, accepted as true, are as follows:
On or about December 8, 2020, at FPC Yankton in Yankton, South Dakota, Parker was removed from his cell in the Special Housing Unit and met with Lt. Hueser, who showed Parker several screenshots from Parker's personal Facebook Messenger inbox. Docket 33 at 1. Parker claims that his friends outside the prison manage his Facebook profile for him. Id. Parker alleges that prison staff overheard his conversations with friends outside the prison, learned his Facebook password, and accessed his Facebook page to "message and interact with persons on the outside." Id. When Parker asked Lt. Hueser why prison staff accessed his Facebook account, Lt. Hueser stated that they acted in the interests of "protecting the institution." Id. Parker told Lt. Hueser that he intended to take legal action, believing that prison staff were prohibited from accessing inmates' personal pages and accounts without permission or a search warrant pursuant to BOP policy. Id. Parker claims that following his conversation with Lt. Hueser, he was prohibited by Captain Reisig from using the FPC Yankton phone for two days in violation of BOP policy statement 541-20(j). Id. at 2.
Parker notified prison staff that he "feared for his life" and was seen by the Acting Assistant Warden, Dr. Pierce. Id. The next day, Parker spoke with Reisig and Assistant Warden Jury and told them that he was being held in the Special Housing Unit for no reason. Id. Parker requested that he be moved to a different prison and, after being held in the Special Housing Unit for months, was moved to a prison in Florida, farther from his home than he desired. Id. Parker alleges that Reisig and Jury conspired with Lt. Hueser to access his Facebook account and hold him in the Special Housing Unit. Id. Parker seeks $2.8 million dollars in damages. Id.
On October 28, 2020, Parker filed a Bivens action against defendants Yankton Camp, Warden J. Cox, Correctional Officer Beatty, and Lt. Kryto in their individual and official capacities. Docket 1. On March 16, 2021, the court issued a 1915A Screening Order dismissing Parker's claims against Yankton Camp, Cox, Beatty, and Kryto in their official capacities. Docket 28 at 5-6. The court also dismissed Parker's First Amendment claims against Cox and Beatty in their individual capacities, id. at 6-12, and Parker's Eighth Amendment claim against Cox related to his inability to communicate with his family, id. at 14. But the court found that Parker had sufficiently pleaded his Eighth Amendment claim against Cox, Beatty, and Kryto with regard to restroom conditions under 28 U.S.C. § 1915A. Id. at 12-14. The court directed service upon Cox, Beatty, and Kryto in their individual capacities concerning the Eighth Amendment claim. Docket 29. Parker later moved to dismiss Beatty and Kryto from his Eighth Amendment claim (Docket 39), and the court ultimately dismissed the Eighth Amendment claim against Cox for failure to prosecute. Docket 42.
Parker was given until October 29, 2021, to complete and submit a USM-285 form for defendant Cox but failed to do so. Docket 41 at 11.
Following service of the complaint, Parker moved to supplement and amend his complaint, adding claims against defendants Lt. Hueser, Captain Reisig, and Assistant Warden John Jury. See Dockets 31, 32, 33, 36, 39. On October 15, 2021, the court granted Parker's motion to amend (Docket 39) and screened Parker's new claims. Docket 41 at 2. The court then dismissed Parker's claims against Lt. Hueser, Reisig, and Jury in their official capacities, id. 4-5, his Fourth Amendment claim against Reisig and Jury in their individual capacities, id. at 5-7, and his First Amendment retaliation claims against Lt. Hueser, Reisig, and Jury in their individual capacities, id. at 7-10. Parker's Fourth Amendment individual-capacity claim against Lt. Hueser is the only claim that survived the court's 1915A Screening Order of the Amended Complaint. Docket 41 at 5-7. Lt. Hueser moves to dismiss Parker's Fourth Amendment claim for failure to state a claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6). Docket 50. Parker failed to file a responsive brief or otherwise respond.
Lt. Hueser also argues that dismissal is appropriate under the Doctrine of Qualified Immunity. Docket 51 at 14-19.
Parker's responsive brief was due on May 6, 2022, under D.S.D. Civ. LR 7.1B.
LEGAL STANDARD
A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "Courts must accept a plaintiff's specific factual allegations as true but are not required to accept a plaintiff's legal conclusions." Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). "[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. Inferences are construed in favor of the non-moving party. Whitney v. Guys, Inc., 700 F.3d 1118, 1129 (8th Cir. 2012) (citing Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 595 (8th Cir. 2009)). A well-pleaded complaint should survive a motion to dismiss "even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (internal quotation omitted).
Pro se complaints, " 'however inartfully pleaded,' [are] held to 'less stringent standards than formal pleadings drafted by lawyers[.]' " Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). Nonetheless, a pro se complaint must comply with the minimal requirements set forth in the Federal Rules of Civil Procedure, which specifically require pleadings to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The court is not required to supply a pro se plaintiff "additional facts, nor will [it] construct a legal theory . . . that assumes facts that have not been pleaded." Stone v. Harry, 364 F.3d 912, 914 (2004) (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)). If the complaint does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985).
DISCUSSION
Parker alleges in his Amended Complaint that Lt. Hueser violated his Fourth Amendment rights by unlawfully accessing Parker's Facebook account. Docket 36 at 1. Lt. Hueser moves to dismiss the Fourth Amendment claim. Docket 50. Specifically, Lt. Hueser argues that "Parker's Fourth Amendment claim is not cognizable under Bivens," and that alternatively, even if Parker has "stated a cognizable Fourth Amendment claim related to the warrantless search of his Facebook messages," Lt. "Hueser is entitled to qualified immunity." Docket 51 at 4, 14-15.
"A Bivens claim is a cause of action brought directly under the United States Constitution against a federal official acting in his or her individual capacity for violations of constitutionally protected rights." Buford v. Runyon, 160 F.3d 1199, 1203 n.6 (8th Cir. 1998) (citing Bivens, 403 U.S. 388, 91 S.Ct. 1999). "The purpose of Bivens is to deter individual federal officers from committing constitutional violations." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001).
In Bivens, the Supreme Court recognized an implied cause of action under the Fourth Amendment against federal officers for handcuffing a man in his own home without a warrant. 403 U.S. at 389, 397, 91 S.Ct. 1999. The Supreme Court has only recognized a Bivens remedy in two other contexts: a Fifth Amendment gender discrimination claim against a Congressman for firing his female staffer, Davis v. Passman, 442 U.S. 228, 248-49, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), and an Eighth Amendment claim against federal prison officials for failure to treat an inmate's serious medical need that resulted in his death, Carlson v. Green, 446 U.S. 14, 24, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). See Ziglar v. Abbasi, 582 U.S. 120, 137 S. Ct. 1843, 1855, 198 L.Ed.2d 290 (2017) (recognizing that "[t]hese 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."). A Bivens remedy is not available for all constitutional violations and expanding the implied cause of action under Bivens is "a 'disfavored' judicial activity." Id. at 1857 (citing Iqbal, 556 U.S. at 672, 129 S.Ct. 1937). The Eighth Circuit Court of Appeals has adopted a "presumption against judicial recognition of direct actions for violations of the Constitution by federal officials." Farah v. Weyker, 926 F.3d 492, 500 (8th Cir. 2019) (quoting Neb. Beef, Ltd. v. Greening, 398 F.3d 1080, 1084 (8th Cir. 2005)).
In deciding whether to extend a Bivens remedy, the court engages in a two-step inquiry. See Egbert v. Boule, — U.S. —, 142 S.Ct. 1793, 1803, 213 L.Ed.2d 54 (2022). First, the court considers whether the claim at issue is " 'meaningful[ly]' different from the three cases in which the Court has implied a damages action." Id. (alteration in original) (quoting Abbasi, 137 S. Ct. at 1859). If the claim has not been previously recognized as a Bivens claim, the court proceeds to step two. At step two, the court asks "if there are 'special factors [that] counsel[ ] hesitation' " before implying a new cause of action "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). Related to this second step is the question of whether an alternative remedy exists. Id. at 1858; see also Wilkie v. Robbins, 551 U.S. 537, 550, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007). If a court has "reason to pause before applying Bivens in a new context or to a new class of defendants—[it should] reject the request." Hernandez v. Mesa, — U.S. —, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020). I. Whether Parker Presents a Bivens Claim in a New Context
The Supreme Court considers "a context as 'new' if it is 'different in a meaningful way from previous Bivens cases decided by [the] Court.' " Id. (quoting Abbasi, 137 S. Ct. at 1859). A case may be meaningfully different:
[B]ecause of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.Abbasi, 137 S. Ct. at 1860.
Lt. Hueser asserts that the facts of this case present a claim that is "not cognizable under Bivens," and that Parker's claim arises in a new context. Docket 51 at 4-6. Of the three Bivens actions recognized by the Supreme Court, only Bivens v. Six Unknown Federal Narcotics Agents involved a Fourth Amendment search and seizure violation. Bivens involved a search of home and person, but here, Parker's allegations concern a search of a digital media platform. See Hernandez, 140 S. Ct. at 743 (asserting that "[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."). Further, the search at issue in Bivens involved a private, non-incarcerated individual, while Parker is an inmate at a BOP facility. See Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (finding that imprisonment carries a loss of many significant rights, including the right to a reasonable expectation of privacy enshrined in the Fourth Amendment). The court finds that Parker's claim is "meaningfully different" than those Bivens claims previously recognized by the Supreme Court. Thus, the court proceeds to the second step. II. Whether Special Factors Counsel Hesitation to Recognize a Bivens Claim
"[A] Bivens remedy will not be available 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). Courts hesitate to extend Bivens because "Congress, not the courts, is better suited to authorize such a damages remedy." Egbert, 142 S.Ct. at 1807. Although the Supreme Court has not defined the phrase "special factors counseling hesitation," it has given some guidance on how to analyze step two:
[T]he 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 . . . . [T]he decision to recognize a damages remedy requires an assessment of its impact on governmental operations systemwide. Those matters include the burdens on Government employees who are sued personally, as well as the projected costs and consequences to the Government itself when the tort and monetary liability mechanisms of the legal system are used to bring about the proper formulation and implementation of public policies . . . . In sum, if there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, the courts must refrain from creating the remedy in order to respect the role of Congress . . . .Abbasi, 137 S. Ct. at 1857-58. A related inquiry is whether an alternative remedy exists. Id. at 1858.
A. Whether an Alternative Remedy Exists
"[A] court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, 'an alternative remedial structure.' " Egbert, 142 S.Ct. at 1804 (quoting Abbasi, 137 S. Ct. at 1858). It does not "matter that 'existing remedies do not provide complete relief.' " Id. at 1804 (quoting Bush v. Lucas 462 U.S. 367, 388, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1984)). The alternative need only provide "an avenue for some redress" for the plaintiff. Malesko, 534 U.S. at 69, 122 S.Ct. 515. The Supreme Court has "made clear that even remedies that provide no compensation to victims and little deterrence for violators . . . trigger the general rule that, 'when alternative methods of relief are available, a Bivens remedy usually is not.' " Farah, 926 F.3d at 502 (quoting Abbasi, 137 S. Ct. at 1863) (emphasis omitted).
Here, Lt. Hueser asserts that the BOP's Administrative Remedy Program provides an alternative remedy. Docket 51 at 7-8. The purpose of the BOP's Administrative Remedy Program, 28 C.F.R. §§ 542.10-542.19, "is to allow an inmate to seek formal review of an issue relating to any aspect of his/her own confinement." 28 C.F.R. § 542.10. Lt. Hueser avers that "[i]n fact, Parker utilized the BOP's Administrative Remedy Program to address his complaint in this instance." Docket 51 at 8. Parker claims to have submitted "two BP-8 [and] one BP-10 [forms] and a staff request to Warden and Dr. Pierce." Docket 31 at 4-5. The court has no record of FPC Yankton's receipt of Parker's "BP-8" and "BP-10" forms. Even though the court cannot find a formal record of Parker's filing of the "BP-8" and "BP-10" forms, or FPC Yankton's receipt of such forms, the court finds that Congress has authorized a remedy under the BOP's Administrative Remedy Program. Cf. id. (noting that an administrative remedy exists in part through filing a "BP-8" and "BP-10" form). Thus, the court finds that Parker has an alternative remedy for the Fourth Amendment violations alleged in the Amended Complaint.
B. Other Special Factors
"If there are alternative remedial structures in place, 'that alone,' like any special factor, is reason enough to 'limit the power of the Judiciary to infer a new Bivens cause of action.' " Egbert, 142 S.Ct. at 1804 (quoting Abassi, 137 S. Ct. at 1858). Here, the availability of an alternative remedy "alone" causes the court to hesitate before implying a new cause of action under Bivens. See Abbasi, 137 S. Ct. at 1858. This alternative remedy demonstrates that Congress has contemplated disputes such as the one alleged by Parker and has authorized the BOP, an executive agency, to provide an alternative remedial structure as it sees fit to provide relief through an administrative forum. See 28 C.F.R. §§ 542.10-542.19.
Considering that an alternative remedy exists, "recognizing an implied cause of action here would pose a greater risk of interference with the other branches of government than it did in Bivens." Farah, 926 F.3d at 499. That consideration causes the court to hesitate before extending Bivens to a new context. Thus, having completed the requisite two-step analysis, the court declines to recognize Parker's Bivens claim. And because the court declines to recognize a cause of action under Bivens, it need not reach the issue of qualified immunity. See Docket 51 at 14-19; Greening, 398 F.3d at 1085 ("Because we resolve the instant case on the lack of a Bivens remedy, we do not reach the issue of qualified immunity.").
CONCLUSION
Parker asks this court to recognize a Bivens claim under the Fourth Amendment's protections against illegal searches and seizures. This claim would extend Bivens to a new context. An alternative remedy exists and that alone counsels hesitation before recognizing an implied cause of action in Parker's Amended Complaint. Thus, it is
ORDERED that Lt. Hueser's motion to dismiss for failure to state a claim (Docket 50) is granted.