94 F. Supp. 3d 382
E.D.N.Y2015Background
- Plaintiff, a federal inmate assigned to a BOP-contracted halfway house (RRC), published an article under his byline criticizing BOP conduct regarding placement in a Communications Management Unit.
- BOP/halfway-house staff prepared and issued an incident report citing a byline prohibition; plaintiff was remanded from the halfway house to an MDC SHU and lost privileges.
- After counsel alerted BOP that the byline prohibition had been repealed, the incident report was expunged and plaintiff was returned to the halfway house; some written warnings issued to plaintiff were later rescinded.
- Plaintiff sued: (1) FTCA false arrest/false imprisonment and negligence claims against the United States; (2) negligence and negligent hiring/supervision claims against the private halfway-house operator CFS; and (3) a Bivens claim against Rivers for First Amendment retaliation.
- The United States and Rivers moved to dismiss; the court granted their motion and deferred disposition of CFS claims pending supplemental briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of a Bivens remedy for alleged First Amendment retaliation by federal prison/halfway-house officials | McGowan: Bivens should extend to permit money damages for retaliation and to vindicate his First Amendment rights | US/Rivers: Bivens should not be extended in this new prisoner-context given alternative remedies, separation-of-powers concerns, and special factors counseling hesitation | Denied extension of Bivens; no Bivens damages remedy here |
| Adequacy of alternative remedies to preclude Bivens | McGowan: Administrative routes are insufficient for full relief | US: Administrative remedies (BOP grievance/§2241 habeas, PLRA exhaustion) and judicial review exist; monetary relief not dispositive | Court finds available administrative/judicial avenues and treats that as weighty against implying Bivens |
| Whether remand to MDC SHU supports FTCA false imprisonment/false arrest claim under New York common law analogue | McGowan: Reassignment from halfway house to MDC was unlawful and therefore false imprisonment/false arrest | US: Plaintiff remained in lawful custody as part of his sentence; reassignment changed conditions, not custody; no private-law analogue to subject the government to false imprisonment liability here | False imprisonment/false arrest FTCA claims dismissed—confinement privileged by sentence; claim fails |
| Whether misapplication of BOP regulations supports FTCA negligence claim | McGowan: BOP had duty to follow its regulations; Rivers’ misapplication was negligence | US: Reliance on violation of internal government regulations as the basis for negligence lacks a private analogue; sovereign immunity/FTCA bars such claims | Negligence claim dismissed for lack of private analogue and FTCA jurisdiction |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (recognition of an implied damages remedy against federal officers) (establishes original Bivens framework)
- Carlson v. Green, 446 U.S. 14 (Bivens remedy recognized in Eighth Amendment context)
- Davis v. Passman, 442 U.S. 228 (Bivens remedy recognized for Fifth Amendment equal protection/due process in employment context)
- Bush v. Lucas, 462 U.S. 367 (refusal to imply Bivens where comprehensive administrative remedies exist)
- Wilkie v. Robbins, 551 U.S. 537 (two-step Wilkie framework for extending Bivens: alternatives and special factors counseling hesitation)
- Malesko v. Corr. Servs. Corp., 534 U.S. 61 (caution against implying Bivens remedies and discussion of Congressional role)
- Jordan v. Pugh, 504 F. Supp. 2d 1109 (invalidating blanket byline prohibition without individualized security assessment)
- Triestman v. Federal Bureau of Prisons, 470 F.3d 471 (FTCA negligence theory allowed where employee-level negligence in following prison procedures alleged)
- Liranzo v. United States, 690 F.3d 78 (FTCA false imprisonment analogue where custody status changed from liberty to detention)
- Porter v. Nussle, 534 U.S. 516 (PLRA exhaustion applies to inmate suits about prison life)