Opinion
5:23-cv-319-MCR-MJF
05-06-2024
ROBERT J. TLUSTY, Plaintiff, v. D. SWAIN, et al, Defendants.
REPORT AND RECOMMENDATION
Michael J. Frank, United States Magistrate Judge.
Plaintiff Robert Tlusty, a prisoner proceeding pro se and in forma pauperis, has filed a third amended civil rights complaint against federal prison officials under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Tlusty alleges excessive-force and failure-to-protect claims under the Eighth Amendment. Doc. 22. The undersigned recommends that this case be dismissed under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), because Tlusty fails to state a claim on which relief can be granted.
I. Allegations of Tlusty's Complaint
Tlusty is a prisoner of the Wisconsin Department of Corrections currently housed at the Columbia Correctional Institution in Portage, Wisconsin. Doc. 22 at 2. Tlusty's claims arise from his incarceration in Federal Correctional Institution-Marianna. Tlusty's third amended complaint names five Defendants: Officer D. Swaim, Officer K. Davis, “Unknown Defendants,” Officer S. Vann, and Lieutenant T. Sherman. Id. at 2-3, 18 in ECF. All Defendants are prison officials at FCI-Marianna, and all are sued in their individual capacities. Id.
The undersigned takes judicial notice that Tlusty was in the custody of the Bureau of Prisons pursuant to the judgment and sentence of the United States District Court for the Western District of Wisconsin, after Tlusty was convicted of receipt of child pornography. See United States of America v. Robert Tlusty, No. 3:14-cr-64-jdp; see also Doc. 22 at 15 in ECF (identifying federal criminal case).
Tlusty claims that the Defendants violated Tlusty's rights under the Eighth and Fourteenth Amendments. Specifically, Tlusty alleges that Swaim used excessive force by pushing and striking Tlusty after Tlusty refused and physically prevented Swaim from placing Tlusty in a particular cell in the Special Housing Unit. Doc. 22 ¶¶ 6-14. Later, Vann and Sherman allegedly failed to protect Tlusty by placing Tlusty in a cell with a “known sexual predator” who later “sexually harassed” Tlusty by “rubbing on the Plaintiff's person, commenting on how soft [Tlusty's] skin was, while continuing to request sexual favors.” Id. ¶¶ 18-21. Tlusty alleges that the following day, Davis used excessive force on Tlusty when Davis sprayed a chemical agent into Tlusty's cell. Id. ¶¶ 27-32. Tlusty alleges that Swaim and the Unknown Defendants “colluded” with Davis and “orchestrated” Davis's unjustified use of force. Id. at 19 in ECF. As relief, Tlusty seeks millions of dollars in compensatory and punitive damages. Id. at 22-23 in ECF.
II. Screening Under 28 U.S.C. §§ 1915(e)(2) and 1915A
Because Tlusty is a prisoner and is proceeding in forma pauperis, this court is required to review the third amended complaint, identify cognizable claims and dismiss the complaint, or any portion thereof, if the complaint “(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a)-(b); see also 28 U.S.C. § 1915(e)(2)(B) (comparable screening provision of in forma pauperis statute).
To prevent dismissal for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed.R.Civ.P. 12(b)(6). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The complaint must include “[f]actual allegations . . . [sufficient] to raise a right to relief above the speculative level,” that is, “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555, 570. The mere possibility that the defendant acted unlawfully is insufficient. Iqbal, 556 U.S. at 678.
III. Review of Tlusty's Complaint
A. Tlusty's Eighth and Fourteenth Amendment Claims Must Be Dismissed Because a Bivens Remedy Is Not Available
The Supreme Court has recognized an implied cause of action under the Constitution for damages in only three specific contexts: (1) an unreasonable-search-and-seizure claim under the Fourth Amendment, Bivens, 403 U.S. at 392; (2) a gender-discrimination claim under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 248-49 (1979); and (3) a medical-deliberate-indifference claim under the Eighth Amendment, Carlson v. Green, 446 U.S. 14, 18 (1980). The expansion of Bivens beyond these three specific contexts is “disfavored.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). After the original Bivens trilogy, the Supreme Court consistently has declined to imply new damages remedies. See Egbert v. Boule, 596 U.S. 482, 486 (2022) (collecting cases and declining, again, to imply a cause of action for constitutional violations arising in other contexts-in that case, a Fourth-Amendment excessive-force claim and a First-Amendment retaliation claim).
When determining whether a plaintiff may bring a claim under Bivens, a court first determines whether the claim presents “a new Bivens context.” Ziglar, 582 U.S. at 139. A case presents a new Bivens context if it “is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Ziglar, 582 U.S. at 139; Egbert, 596 U.S. at 492.
“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, 589 U.S. 93, 103 (2020); Ziglar, 582 U.S. at 139.
A case might differ in a meaningful way because 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.Ziglar, 582 U.S. at 139-40.
If the case presents a new Bivens context, then “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.” Egbert, 596 U.S. at 492 (internal quotation marks and citations omitted).
Although courts traditionally have described the analysis as involving 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.” Egbert, 596 U.S. at 492. That is because some of the considerations in step one-for example, the risk of disrupting other branches and the presence of special factors that prior Bivens cases did not consider-are similar to and overlap with the second step. See Egbert, 596 U.S. at 492; see also e.g., Ziglar, 582 U.S. at 139-40.
In short, if “there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed.'” Egbert, 596 U.S. at 496 (quoting Ziglar, 582 U.S. at 136), a court cannot provide a Bivens cause of action. Egbert, 596 U.S. at 492.
1. Tlusty's Excessive-Force and Failure-to-Protect Claims Present New Bivens Contexts
“While the Supreme Court previously recognized a Bivens action under the Eighth Amendment in the context of a prison official's deliberate indifference to a prisoner's serious medical needs, an excessive force claim under the Eighth Amendment raises a new context, as the alleged official actions in each case differ significantly.” Farrington v. Diah, No. 22-13281, 2023 WL 7220003, at *1 (11th Cir. Nov. 2, 2023) (citing Ziglar, 582 U.S. at 139-40). The same is true of a failure-to-protect claim.
Not only do the alleged official actions differ, but Tlusty's claims also would interfere with a vastly different part of prison operations- security/uses of force and housing assignments, instead of medical care- thereby threatening to intrude into the functioning of federal prisons in ways Carlson did not contemplate. See Sargeant v. Barfield, 87 F.4th 358, 366-67 (7th Cir. 2023) (Eighth-Amendment failure-to-protect claim presented new Bivens context); Bulger v. Hurwitz, 62 F.4th 127, 138-39 (4th Cir. 2023) (Eighth-Amendment failure-to-protect and failure-to- intervene claims presented new Bivens contexts); Chambers v. Herrera, 78 F.4th 1100, 1105-08 (9th Cir. 2023) (Eighth-Amendment excessive-force and failure-to-protect claims presented new Bivens contexts); Looper v. Jones, No. 22-40579, 2023 WL 5814910, at *2 (5th Cir. Sept. 8, 2023) (unpublished) (Eighth-Amendment failure-to-protect and failure-to-intervene claims presented new Bivens contexts); Hower v. Damron, No. 21-5996, 2022 WL 16578864, at *3 (6th Cir. Aug. 31, 2022) (unpublished) (Eighth-Amendment failure-to-protect and verbalharassment claims presented new Bivens contexts).
In Sargeant, the Seventh Circuit rejected the prisoner's argument that in Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court impliedly established a new context-or at least stretched the bounds of Carlson's context to include Eighth-Amendment failure-to-protect claims. Sargeant, 87 F.4th at 365 (“The [Supreme] Court never held-just assumed-that a Bivens remedy was available to the plaintiff....A silent assumption in an opinion cannot generate binding precedent.”); see also id. at 365 (“Farmer never said anything about the scope of the Bivens doctrine[;] there is no Bivens holding in Farmer.”); see also Bulger v. Hurwitz, 62 F.4th 127, 139 (4th Cir. 2023) (Farmer did not extend Bivens to the failure-to-protect context); Chambers v. Herrera, 78 F.4th 1100, 1105 n.2 (9th Cir. 2023) (same). The court in Sargeant also observed:
The Supreme Court's three most recent opinions in the Bivens space align with our conclusion. Each recognized only three times that a constitutional damages remedy has been implied against federal officers: in Bivens, in Davis, and in Carlson. Egbert, 596 U.S. at 490-91, 142 S.Ct. 1793; Hernandez, 140 S.Ct. at 741; Abbasi, 582 U.S. at 131, 137 S.Ct. 1843. Not once has the Supreme Court mentioned Farmer alongside those cases, and we think it would have if Farmer created a new context or clarified the scope of an existing one.Sargeant, 87 F.4th at 365.
2. Special Factors Weigh Against Implying a Remedy Under Bivens
Additional factors make this context new and counsel against extending Bivens to Tlusty's claims. One factor is that after Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e. Although the PLRA did not preclude Bivens actions, it did not provide for damages remedies in new contexts either. Because of this, the Court in Ziglar observed that “[i]t could be argued that this suggests Congress chose not to extend the Carlson damages remedy to cases involving other types of prisoner mistreatment.” Ziglar, 582 U.S. at 148-49; Farrington, at *2 (“Congress specifically considered the issue of prisoner abuse in the passage of the Prison Litigation Reform Act, ultimately providing an alternative remedy pathway that did not provide for standalone damages against federal employees.”); Sargeant, 87 F.4th at 368 (recognizing same); Looper, 2023 WL 5814910, at *2 (same); Hower, 2022 WL 16578864, at *4 (same); Chambers, 78 F.4th at 1106, 1107 (“[A]ny decision by Congress or the Executive not to create an express Eighth Amendment failure to protect cause of action for prisoners, where it has legislated, suggests that they have decided against creating such an action.”).
Another factor counseling against extending Bivens to the new contexts at issue here is the existence of an alternative remedial structure provided by the Executive Branch, namely, the Bureau of Prisons' Administrative Remedy Program. See Egbert, 596 U.S. at 493 (“[A] court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, an alternative remedial structure.”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (declining to recognize a Bivens action for an Eighth-Amendment claim in part because prisoners “have full access to remedial mechanisms established by the [Bureau of Prisons],” including “grievances filed through [its] Administrative Remedy Program.”); Farrington, at *2 (the BOP's Administrative Remedy Program weighed against extending Bivens to excessive-force claim); Sargeant, 87 F.4th at 368 (same as to extending Bivens remedy to Eighth-Amendment failure-to-protect claims); Chambers, 78 F.4th at 1106-08 (same as to Eighth-Amendment failure-to-protect and excessive-force claims); Bulger, 62 F.4th at 140-41 (same as to failure-to-protect and failure-to-intervene claims); Hower, 2022 WL 16578864, at *3 (same as to failure-to-protect and verbalharassment claims).
The Court said in Egbert:
[T]he relevant question is not whether a Bivens action would disrupt a remedial scheme, or whether the court should provide for a wrong that would otherwise go unredressed. Nor does it matter that existing remedies do not provide complete relief. Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies should be augmented by the creation of a new judicial remedy.Egbert, 596 U.S. at 493 (alterations adopted) (internal quotation marks and citations omitted).
The PLRA and the BOP's grievance program satisfy the low bar set by Egbert for declining to extend Bivens to the new contexts Tlusty's claims present. These reasons constitute “any rational reason (even one) to think that Congress is better suited to weigh the costs and benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 496 (internal quotation marks omitted); Sargeant. 87 F.4th at 368 (the PLRA and the BOP's administrative grievance procedure “suggest[ ] that Congress is better positioned to assess the need for a remedy or that Congress might not desire a new remedy.”).
Because Bivens does not extend to include excessive-force and failure-to-protect claims arising under the Eighth Amendment, this Bivens action must be dismissed.
The undersigned has not overlooked Caldwell v. Warden, FCI Talladega, 748 F.3d 1090 (11th Cir. 2014). In Caldwell, a federal prisoner brought a Bivens action against federal prison officials asserting a failure-to-protect claim under the Eighth Amendment. The Eleventh Circuit addressed the merits, reversing the district court's grant of summary judgment based on qualified immunity. The issue of whether a Bivens action for that type of claim existed was not raised or discussed in the district court, nor was the issue raised on appeal. More significantly, Caldwell predated the Supreme Court's later guidance in Ziglar and Egbert. Thus, Caldwell is not binding precedent on the issue of whether Bivens creates a cause of action for an Eighth-Amendment failure-to-protect claim.
B. Tlusty's Claims Asserted Under the Universal Declaration of Human Rights and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment Must Be Dismissed
Tlusty's Statement of Claims alleges that the Defendants' conduct also violated the Universal Declaration of Human Rights (the “UDHR”) and the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the “CAT Treaty”). Doc. 22 at 19-22 in ECF.
“The rights secured by the UNDHR are not federal rights.” Moore v. McLaughlin, 569 Fed.Appx. 656, 660 (11th Cir. 2014)) (citing Sosa v. Alvarez-Machain, 542 U.S. 692, 734 (2004)). Similarly, the CAT Treaty is “not self-executing, or subject to relevant legislation, and, therefore, do[es] not confer upon aliens a private right of action to allege a violation of their terms. United States v. Casaran-Rivas, 311 Fed.Appx. 269, 272 (11th Cir. 2009) (citations omitted).
Thus, to the extent Tlusty's conclusory references to the UNDHR and the CAT Treaty were intended as standalone federal claims, they must be dismissed for failure to state a claim upon which relief can be granted.
IV. Conclusion
For the reasons set forth above, the undersigned respectfully RECOMMENDS that:
1. This action be DISMISSED under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b), for failure to state a claim upon which relief can be granted.
2. The clerk of court be directed to enter judgment accordingly and close this case file.
NOTICE TO THE PARTIES
The District Court referred this case to the undersigned to make recommendations regarding dispositive matters. See 28 U.S.C. § 636(b)(1)(B), (C); Fed.R.Civ.P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only. A party must serve a copy of any objections on all other parties. A party who fails to object to this report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. R. 3-1; 28 U.S.C. § 636.