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Crowder v. Jones

United States District Court, S.D. Indiana, Terre Haute Division

November 29, 2017

RICKY CROWDER, Plaintiff,
v.
CHAPLAIN JONES, Defendant.

          ENTRY DISCUSSING MOTION TO DISMISS

          HON. JANE MAGNUS-STINSON, CHIEF JUDGE

         Plaintiff Ricky Crowder, an inmate at the Federal Correctional Complex in Terre Haute, Indiana (“FCC Terre Haute”), brings this action pursuant to the Religious Freedom Restoration Act (“RFRA”) and the theory recognized in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Crowder alleges that his right to practice his religion was violated when the defendants denied his request for a kosher diet. Crowder's Bivens and RFRA claims against Chaplain Jones remain. Jones now moves to dismiss Crowder's Bivens claim based on the recent Supreme Court case Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017). Crowder has not opposed the motion.

         I. Motion to Dismiss Standard

         A motion to dismiss asks whether the complaint “contain[s] 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 Twombly, 550 U.S. at 570). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

         II. Discussion

         Chaplain Jones argues that the Abbasi court explained that a cause of action for damages under Bivens has been recognized by the Supreme Court only three times and expansion of Bivens beyond the three types of cases already recognized should be allowed in only very limited circumstances, which, according to Jones, are not present in this case. Jones concludes therefore that Crowder's First Amendment claims brought pursuant to Bivens must be dismissed.

         The Abbasi court explained that, to determine whether a Bivens remedy is available for a claim under the Constitution or federal law the court must first determine whether the claim arises in a new Bivens context. Abbasi, 137 S.Ct. at 1864. If the case presents a Bivens context not previously recognized by the Supreme Court, the court must ask whether there are any other “special factors counseling hesitation before authorizing a new kind of federal litigation, ” including whether there is “‘any alternative, existing process for protecting the [injured party's] interest' that itself may ‘amoun[t] to a convincing reason for the Judicial Branch to refrain from providing a new and freestanding remedy in damages.'” Id. at 1858 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

         A. New Bivens Context

         Chaplain Jones first argues that Crowder's claim, that Jones infringed on his right to exercise his religion in violation of the First Amendment, is a new Bivens context. The Supreme Court has recognized a Bivens remedy in only three cases: (1) a Fourth Amendment claim against federal agents for violating the prohibition against unlawful searches and seizures when they handcuffed a man in his home without a warrant, Bivens, 403 U.S. 388; (2) a Fifth Amendment gender discrimination claim against a congressman for firing his female administrative assistant, Davis v. Passman, 442 U.S. 228 (1979); and (3) an Eighth Amendment claim brought by an inmate's estate against prison officials for failure to provide adequate medical care for his asthma, Carlson v. Green, 446 U.S. 1 (1980). To determine whether a case presents a new Bivens context, the Abbasi court explained: “If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new.” Abbasi, 137 S.Ct. at 1859. The Abbasi court explained the following factors that might be considered when determining whether a claim presents a new Bivens context:

Without endeavoring to create an exhaustive list of differences that are meaningful enough to make a given context a new one, some examples might prove instructive. 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.

Id. at 1859-60. The Court also pointed out that it had declined to extend Bivens in a number of contexts:

a First Amendment suit against a federal employer, Bush v. Lucas, 462 U.S. 367, 390 (1983); a race-discrimination suit against military officers, Chappell v. Wallace, 462 U.S. 296, 297, 304-305 (1983); a substantive due process suit against military officers, United States v. Stanley, 483 U.S. 669, 671-672, 683- 684 (1987); a procedural due process suit against Social Security officials, Schweiker v. Chilicky, 487 U.S. 412, 414 (1988); a procedural due process suit against a federal agency for wrongful termination, FDIC v. Meyer, 510 U.S. 471, 473-474 (1994); an Eighth Amendment suit against a private prison operator, Malesko, supra, at 63, 122 S.Ct. 515; a due process suit against officials from the Bureau of Land Management, Wilkie v. Robbins, 551 U.S. 537, 547-548, 562 (2007); and an Eighth Amendment suit against prison guards at a private prison, Minneci v. Pollard, 565 U.S. 118, 120, (2012).

Id. at 1857.

         Crowder's free exercise claim in this case is unlike the Fourth Amendment unreasonable seizure claim at issue in Bivens, the gender discrimination claim in Davis, or the deliberate indifference claim in Carlson. Notably, while the Supreme Court has assumed in some cases without deciding that a Bivens remedy is available for a First Amendment claim, it has never identified one. See Wood v. Moss, 134 S.Ct. 2056, 2066 (2014); Reichle v. Howards, 566 U.S. 658 n.4, 1 (2012) (“We have never held that Bivens extends to First Amendment claims.”); Ashcroft v. Iqbal, 556 U.S. 662, 6752009 (assuming, without deciding, that a free exercise claim was available because the issue was not raised on appeal, but noting that the reluctance ...


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