McGowan v. United States
2016 U.S. App. LEXIS 10263
| 2d Cir. | 2016Background
- Daniel McGowan, serving a federal sentence, published a bylined political article on the Huffington Post while at a Residential Reentry Center (Brooklyn House RRC).
- Residential Reentry Manager Tracy Rivers issued an incident report citing a BOP “Byline Regulation” (prohibiting bylined publications by inmates) and McGowan was remanded to a detention center’s SHU for ~22 hours.
- The Byline Regulation had been held unconstitutional in 2007, and the BOP issued guidance and later rescinded the rule; BOP officials agreed to expunge the report and return McGowan to RRC.
- McGowan sued: (1) Bivens claim for First Amendment violation against Rivers; (2) FTCA false imprisonment claim against the United States; and (3) FTCA negligence claim for failure to follow BOP rules.
- The district court dismissed: declined to recognize a Bivens remedy for federal prisoners’ First Amendment claims, held false imprisonment failed because confinement was privileged, and ruled it lacked jurisdiction for the FTCA negligence claim for want of a private analogue.
- On appeal, the Second Circuit affirmed: declined to reach Bivens extension question because Rivers was entitled to qualified immunity; affirmed dismissal of FTCA claims for lack of a private analogue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Availability of Bivens remedy for a federal prisoner’s First Amendment byline claim | McGowan: Bivens remedy should apply; no adequate alternative remedies; no special factors counseled against Bivens | Government: New context; special factors counsel hesitation; qualified immunity | Court: Did not decide Bivens extension; granted qualified immunity to Rivers because right was not clearly established |
| Qualified immunity for the Bivens defendant | McGowan: Right to publish under a byline was clearly established | Rivers: Preexisting case law did not clearly establish such a right; Turner deference applies | Held: Right not clearly established; qualified immunity applies |
| FTCA false imprisonment (state-law private-analogue) | McGowan: New York recognizes wrongful confinement as a species of false imprisonment applicable to solitary/segregation | Government: Confinement pursuant to lawful sentence is privileged; no private analogue exists | Held: No private analogue for wrongful confinement by private person; FTCA claim fails |
| FTCA negligence based on BOP’s failure to follow its own regulations | McGowan: BOP negligently violated its rules; private analogue is failure of a private actor to follow its own internal rules | Government: Private law does not recognize an independent tort from violating internal rules; regulations are evidence, not independent duties | Held: No private analogue and no freestanding duty; negligence claim fails |
Key Cases Cited
- Bivens v. Six Unknown Named Agents, 403 U.S. 388 (recognition of implied damages action against federal officers)
- Turner v. Safley, 482 U.S. 78 (prison regulations valid if reasonably related to penological interests)
- Anderson v. Creighton, 483 U.S. 635 (qualified immunity: right must be clearly established so reasonable official would know conduct unlawful)
- Wood v. Moss, 134 S. Ct. 2056 (doctrine of qualified immunity described)
- Chen v. United States, 854 F.2d 622 (FTCA private-analogue requirement; violations of federal regulations not necessarily actionable under FTCA)
- United States v. Olson, 546 U.S. 43 (private-analogue inquiry focuses on liability of private persons, not municipalities)