Opinion
21 C 0995
07-06-2022
KEITH DEWITT DAVIS (46841-424), Plaintiff, v. OFFICER R. GREER, Defendant.
ORDER
Manish S. Shah U.S. District Judge
Defendant's motion to cite additional authority [29] is granted. Defendant's motion to dismiss [21] is granted. The Bivens claim is dismissed with prejudice because it fails to state a claim. Enter judgment and terminate civil case. This dismissal is without prejudice to Plaintiff filing a new suit against the United States under the Federal Tort Claims Act (subject to the pursuit and exhaustion of administrative remedies). Plaintiff's motion for attorney representation [27] is denied as moot.
Statement
Keith Dewitt Davis, who is currently a federal prisoner, initiated this pro se civil rights action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), regarding his pre-trial detention at the Metropolitan Correctional Center in Chicago. The Court screened Plaintiff's complaint and allowed him to proceed with a due process claim that Correctional Officer Greer used excessive force against him during an altercation at the MCC on December 7, 2020. (Dkt. 9.) (Because Plaintiff was then a pretrial detainee, his constitutional right to be free from the use of excessive force came from the due process clause. Hardeman v. Curran, 933 F.3d 816, 823 (7th Cir. 2019); Kingsley v. Hendrickson, 576 U.S. 389, 398 (2015).) In allowing the claim to proceed, the Court noted that it was presuming for screening purposes that Plaintiff had a remedy for his excessive force claim under Bivens, see generally Ziglar. (Id.)
Now before the Court is Defendant's motion to dismiss under Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) (urging lower courts to use caution before extending a Bivens remedy to any new context). (Dkt. 21.) Defendant argues that Bivens does not provide a remedy for Plaintiff's claim. (Id.)
A motion under Rule 12(b)(6) challenges the sufficiency of the complaint. See Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The Court “must determine whether the complaint states ‘a claim to relief that is plausible on its face.'” Gill v. City of Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In so doing, the Court accepts Plaintiff's factual allegations as true and draws reasonable inferences in his favor. Taylor v. JPMorgan Chase Bank, 958 F.3d 556, 562 (7th Cir. 2020).
Under Bivens, a federal official can be sued for damages for an unreasonable search and seizure in violation of the Fourth Amendment. Bivens, 403 U.S. at 397. The Supreme Court has since recognized an implied cause of action under Bivens in two other types of cases: (1) Fifth Amendment gender discrimination, Davis v. Passman, 442 U.S. 228, 248- 49 (1979); and (2) Eighth Amendment deliberate indifference to serious medical needs, Carlson v. Green, 446 U.S. 14, 19 (1980). The Supreme Court clarified in Ziglar v. Abbasi, 137 S.Ct. 1843, 1855 (2017), 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” and cautioned against expansion of a Bivens remedy in a new context.
More recently, the Supreme Court again limited (under most circumstances) further expansion of Bivens liability. See Egbert v. Boule, No. 21-147, 2022 WL 2056291 (U.S. June 8, 2022); see id. at *11 (“[I]f we were called to decide Bivens today, we would decline to discover any implied causes of action in the Constitution.”). Egbert explains that the threshold inquiry resolves “to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert, No. 21-147, 2022 WL 2056291, at *6. Courts may not imply a cause of action under Bivens “if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.'” Egbert, No. 21-147, 2022 WL 2056291, at *6 (quoting Ziglar, 582 U.S. at(slip op., at 14)). If an alternative remedial structure is 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.'” Id. This is true even if the remedial structure that exists does not provide complete relief. Id. “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.” Id.
In Egbert, no Fourth Amendment claim of excessive force against a border patrol agent could be brought under Bivens. Id., at *8. Congress provided alternative remedies for the alleged excessive force. Id. Plaintiff here likewise does not have a remedy through Bivens for his claim. A due process claim for excessive force would be an extension of Bivens, but Congress has already created a remedial process for such a claim. First, the MCC has an administrative grievance process, and Plaintiff alleged that he used that process. (Dkt. 9, pg. 2; Dkt. 10, pg. 10-13.) This alone is sufficient to bar a Bivens action. Egbert, No. 21-147, 2022 WL 2056291, at *8. In addition, Congress created another remedial process: Plaintiff could bring a claim under the Federal Tort Claims Act to redress the correctional officer's conduct. See 28 U.S.C § 2675(a). These remedial processes demonstrate that Congress and the Executive are better equipped to create a damages remedy, and thus no Bivens action can be judicially created.
The Court dismisses Plaintiff's complaint with prejudice as to the Bivens claim (the only claim against the only defendant before the court, defendant Greer). This dismissal is without prejudice to Plaintiff bringing suit against the United States under the FTCA. Before a plaintiff may bring an FTCA claim, he must “have first presented the claim to the appropriate Federal agency” and received a final written denial from that agency. 28 U.S.C. § 2675(a). A claimant “presents” his claim by submitting an executed administrative claim (SF-95). 28 C.F.R. § 14.2(a). The United States is the only proper defendant in a FTCA suit. Jackson v. Kotter, 541 F.3d 688, 693 (7th Cir. 2008).
If Plaintiff wishes to appeal, he must file a notice of appeal with this Court within sixty days of the entry of judgment. See Fed. R. App. P. 4(a)(1)(B). If Plaintiff appeals, he will have to pay the $505.00 appellate filing fee regardless of the appeal's outcome. See Evans v. Ill. Dep't of Corr., 150 F.3d 810, 812 (7th Cir. 1998). If Plaintiff seeks leave to proceed in forma pauperis on appeal, he must file a motion for leave to proceed in forma pauperis in this Court stating the issues he intends to present on appeal. See Fed. R. App. P. 24(a)(1).