Opinion
24-3117-JWL
09-16-2024
MONARE MOORE, Plaintiff, v. DONALD HUDSON, et al., Defendants.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Plaintiff, a federal prisoner, brings this pro se civil rights action under 28 U.S.C. § 1331. Although Plaintiff is currently incarcerated at Pekin-FCI in Pekin, Illinois, his claims arose during his incarceration at FCI-Leavenworth in Leavenworth, Kansas (“FCIL”), formerly named USP Leavenworth (“USPL”). The Court granted Plaintiff leave to proceed in forma pauperis and assessed an initial partial filing fee in the amount of $41.70. The initial fee was due August 16, 2024, and has not been paid.
On August 2, 2024, the Court entered a Memorandum and Order (Doc. 4) (“M&O”) granting Plaintiff until September 3, 2024, in which to show good cause why his Complaint should not be dismissed for the reasons set forth in the M&O. Plaintiff has failed to respond by the Court's deadline.
The Court found in the M&O that Plaintiff has not shown that a Bivens remedy is available for his claims. The Tenth Circuit recently noted that the Supreme Court “is on course to treating Bivens as a relic of the 20th century” and that “[t]his development has been gradual, but relentless.” Logsdon v. U.S. Marshal Serv., 91 F.4th 1352, 1355 (10th Cir. 2024), rehr'g denied (Apr. 5, 2024). The Tenth Circuit in Logsdon found that:
Without explicitly overruling its three acknowledged precedents, the [Supreme] Court has shown an increasing willingness to distinguish them, now stating that the ultimate question to ask when determining whether the courts should recognize a Bivens cause of action not created by Congress is ordinarily only “whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert v. Boule, 596 U.S. 482, 492, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022). And the circumstances in which the answer to the question is “no” appears to comprise a null set. See id. at 503, 142 S.Ct. 1793. (Gorsuch, J., concurring) (“When might a court ever be ‘better equipped' than the people's elected representatives to weigh the ‘costs and benefits' of creating a cause of action? It seems to me that to ask the question is to answer it. To create a new cause of action is to assign new private rights and liabilities-a power that is in every meaningful sense an act of legislation.”); see also Silva v. United States, 45 F.4th 1134, 1140 (10th Cir. 2022) (“[W]e are left in no doubt that expanding Bivens is not just ‘a disfavored judicial activity,' it is an action that is impermissible in virtually all circumstances.” (quoting Egbert, 596 U.S. at 491, 142 S.Ct. 1793) (citation omitted)). The Court has said in effect that almost any difference between the case at hand and the three Court precedents can justify rejecting a cause of action. See Egbert, 596 U.S. at 503, 142 S.Ct. 1793 (Gorsuch, J., concurring) (“Candidly, I struggle to see how this set of facts differs meaningfully from those in Bivens itself.”).
And, perhaps even more striking, the Court has justified a departure from those precedents even when the facts are virtually the same if the government can provide a reason for not recognizing a cause of action that was not considered in the applicable precedent. Thus, in Egbert itself the Court considered an excessive-force claim, similar to the one in Bivens, against a federal officer. See Egbert, 596 U.S. at 495, 142 S.Ct. 1793 (“Bivens and this case do involve similar allegations of excessive force and thus arguably present almost parallel circumstances or a similar mechanism of injury.” (internal quotation marks omitted)). But it held that the court of appeals erred by recognizing a cause of action under Bivens, distinguishing Bivens based on facts that have no bearing on the elements of an excessive-force claim: the incident arose in the “border-security context,” and Congress had created remedies for misconduct by government agents. See id. at 494, 142 S.Ct. 1793. Given such hurdles placed in the way of a Bivens cause of action, Mr. Logsdon has no claim.Id. at 1355-56.
The Tenth Circuit in Logsdon found that “[a] second independent ground for not recognizing a Bivens action . . . is that the availability of alternative remedies for misconduct . . . suggests that this court should not be the institution to create a remedy.” Id. at 1359. “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.” Id. (quoting Egbert, 596 U.S. at 493). The Tenth Circuit quoted Egbert as follows:
“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. That is true even if a court independently concludes that the Government's procedures are not as effective as an individual damages remedy.” Id. at 498, 142 S.Ct. 1793 (internal quotation marks omitted).Id.
In Silva, the Tenth Circuit held that the Bureau of Prison's Administrative Remedy Program “ARP” was adequate. Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022) (finding that the key takeaway from Egbert is “that courts may dispose of Bivens claims for ‘two independent reasons: Congress is better positioned to create remedies in the [context considered by the court], and the Government already has provided alternative remedies that protect plaintiffs' ”) (citation omitted); see also Noe v. United States Gov't, 2023 WL 8868491, at *3 (10th Cir. Dec. 22, 2023) (“We need not decide whether Noe's case is meaningfully different from Carlson, because in the wake of Egbert and Silva . . . the availability of the ARP is sufficient to foreclose a Bivens claim despite any factual similarity between the two.”).
In Silva, the Tenth Circuit had little difficulty in concluding “that the BOP Administrative Remedy Program is an adequate ‘means through which allegedly unconstitutional actions . . . can be brought to the attention of the BOP and prevented from recurring.' ” Silva, 45 F.4th at 1141 (citation omitted). The Silva court found that “because Bivens ‘is concerned solely with deterring the unconstitutional acts of individual officers,' . . . the availability of the BOP's Administrative Remedy Program offers an independently sufficient ground to foreclose Plaintiff's Bivens claim.” Id. (citing Egbert, 142 S.Ct. at 1806 (quoting Malesko, 534 U.S. at 71, 122 S.Ct. 515)).
The Court found in the M&O that based on the reasoning set forth in the recent Tenth Circuit opinions cited above, Plaintiff fails to state a claim for relief under Bivens. The Court also found that Plaintiff's request for declaratory relief, as well an any claim for injunctive relief, would be moot because he is no longer incarcerated at FCIL. “A claim for declaratory relief that does not ‘settl[e] . . . some dispute which affects the behavior of the defendant toward the plaintiff' is moot, Rio Grande Silvery Minnow, 601 F.3d at 1110 (quotations omitted), because it fails to ‘seek[] more than a retrospective opinion that [the plaintiff] was wrongly harmed by the defendant[.]” Prison Legal News v. Federal Bureau of Prisons, 944 F.3d 868, 880 (10th Cir. 2019) (quoting Jordan v. Sosa, 654 F.3d 1012, 1025 (10th Cir. 2011)); see also Church v. Polis, 2022 WL 200661, at *4 (10th Cir. Jan. 24, 2022) (“But declaratory-judgment claims become moot if circumstances change such that the defendants are not ‘actually situated to have their future conduct toward the plaintiff altered by the court's declaration of rights.'”) (citation omitted).
The Court's M&O required Plaintiff to show good cause why his Complaint should not be dismissed for the reasons stated in the M&O, and provided that “[f]ailure to respond by the deadline may result in dismissal of this matter without further notice for failure to state a claim.” (Doc. 4, at 7.) Plaintiff has failed to respond by the Court's deadline and has failed to show good cause why this matter should not be dismissed for failure to state a claim.
IT IS THEREFORE ORDERED BY THE COURT that this matter is dismissed for failure to state a claim.
IT IS SO ORDERED.