965 F.3d 520
6th Cir.2020Background
- Scott Callahan, a federal prisoner convicted of child pornography offenses, sued the Bureau of Prisons, the recreation supervisor, and the warden after prison officials seized a painting and mail-order photos as sexually explicit.
- Callahan exhausted the BOP administrative grievance process before suing for compensatory and punitive damages and for declaratory and injunctive relief under the First Amendment.
- The district court dismissed the damages claim for lack of an implied Bivens cause of action and granted summary judgment to defendants on the remaining claims for lack of a triable First Amendment issue.
- The Sixth Circuit majority affirmed: it declined to extend Bivens to a First Amendment, prison-context damages action and endorsed special‑factors/ separation‑of‑powers concerns (PLRA, grievance process, prison administration) that counsel hesitation.
- Judge Moore dissented: she argued the court should have decided the Turner merits first (finding genuine fact issues) and that a Bivens remedy for money damages should be recognized here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an implied Bivens damages remedy exists for a First Amendment free‑speech claim by a federal prisoner in this context | Extend Bivens to allow money damages for seizure of art/mail; no adequate congressional alternative | No Bivens extension — presumption against new Bivens actions; Congress/PLRA and BOP grievance system counsel hesitation | No Bivens extension; damages claim dismissed (majority) |
| Whether the BOP administrative remedy (grievance) or PLRA precludes a Bivens remedy | ARP inadequate because it provides no money damages; PLRA gatekeeping does not show Congress intended to bar damages | PLRA, ARP and related statutory scheme counsel against judicially creating a damages remedy | Majority: ARP/PLRA are special‑factor considerations weighing against Bivens; dissent: ARP insufficient to preclude Bivens |
| Whether the officials’ actions violated the First Amendment under Turner (as‑applied) | Seizure was arbitrary/unevenly applied; material factual disputes about whether items met prohibitions | Seizure reasonably related to penological interests (safety, security, harassment prevention, rehabilitation) | Majority: affirmed district court’s summary judgment for defendants; dissent: genuine disputes under Turner require reversal as to equitable/declaratory claims |
| Whether the claim is properly characterized as a Fourth Amendment seizure claim within Bivens’ original scope | (Argued by Callahan on appeal) Seizure of property resembles Bivens seizure context | Court: materially different context (prisoner, prison admins, property not person) — still a new context | Court: Fourth Amendment framing does not overcome the new‑context bar to Bivens extension |
Key Cases Cited
- Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (recognition of implied damages remedy for Fourth Amendment violations)
- Ziglar v. Abbasi, 137 S. Ct. 1843 (disfavored to create new Bivens actions; special‑factors framework)
- Carlson v. Green, 446 U.S. 14 (Bivens remedy recognized for Eighth Amendment deliberate‑indifference claim)
- Davis v. Passman, 442 U.S. 228 (recognition of an implied damages remedy under the Fifth Amendment)
- Hernandez v. Mesa, 140 S. Ct. 735 (refusal to extend Bivens to a new Fourth Amendment cross‑border context)
- Minneci v. Pollard, 565 U.S. 118 (declining Bivens extension in privately operated prison context)
- Reichle v. Howards, 566 U.S. 658 (noting the Court has never recognized a First Amendment Bivens action)
- Bush v. Lucas, 462 U.S. 367 (rejecting First Amendment damages remedy for federal employees)
- Turner v. Safley, 482 U.S. 78 (prison regulation: Turner reasonableness test for as‑applied First Amendment claims)
- Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (limits on Bivens and discussion of alternative remedies)
- Merriweather v. Zamora, 569 F.3d 307 (6th Cir. case assuming Bivens for opened legal mail)
- Koprowski v. Baker, 822 F.3d 248 (6th Cir. discussion that ARP existence alone does not necessarily foreclose Bivens)
- Bistrian v. Levi, 912 F.3d 79 (3d Cir. rejecting a similar prison First Amendment Bivens claim)
- Vega v. United States, 881 F.3d 1146 (9th Cir. rejecting a similar prison First Amendment Bivens claim)