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Badley v. Granger

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

June 18, 2018

ANDRE BADLEY, Plaintiff,
v.
Mr. F. GRANGER Lieutenant, DEREK MOORE Correctional Officer, D. MOORE Lieutenant, J. SIMS Officer, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FIRST AMENDMENT CLAIMS FOR FAILURE TO STATE A CLAIM, AND DENYING AS MOOT OFFICER SIMS'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON FAILURE TO EXHAUST DEFENSE

          Hon. Jane Magnus-Stinson, Chief Judge

         In January 2017, plaintiff Andre Badley filed this lawsuit asserting that defendants Lieutenant Granger, Officer Derek Moore, and Lieutenant D. Moore retaliated against him in early February 2015 for filing grievances. Mr. Badley also asserts that Lieutenant Granger failed to protect him from an assault from another inmate, in violation of the Eighth Amendment. In January 2018, defendant Officer J. Sims was added as a defendant related to Mr. Badley's claim that he was retaliated against. See Dkt. No. 55.

         Presently pending before the Court is defendants' motion to dismiss the First Amendment claims pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 71. Defendant Sims has filed a notice of joinder in defendants' motion to dismiss. Dkt. No. 98.

         I. Standard of Review

         Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with “fair notice of what the . . . claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)). 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). A Rule 12(b)(6) 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). 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. Background

         The following are the factual allegations in the Complaint, which the Court must accept as true at this time:

In January 2015, after Mr. Badley filed a grievance alleging employee misconduct on the part of Lieutenant Granger, Lieutenant Moore attempted to discourage him from submitting such grievances. Mr. Badley was then subjected a body cavity search by Granger and denied his evening meal. His cell was searched and Officer D. Moore wrote a false report that heroin was found. Because drugs were stated to have been found, he was transferred to the Special Housing Unit. Defendant Lieutenant Moore told him, “I told you to drop your complaint on Lieutenant Granger, you been around long enough to know how we get down.” Then, Mr. Badley was placed in a cell with an inmate who Granger knew would assault him, and who did assault him.

         Mr. Badley next told former Warden LaRiva, not a defendant in this action, that he was placed in the SHU based on a false report of possession of heroin, but former Warden LaRiva responded that it was heroin in his cell. Mr. Badley was then called to Lieutenant Moore's office and Lieutenant Moore told him that he needed to drop his complaint against Granger or she would have him transferred and write an incident report for operating a gambling pool. Mr. Badley then complained to former Warden Daniels, also not a defendant in this action, that officers were threatening him and former Warden Daniels told him to send an email and file a grievance. A few months later, after he believed he was harassed and his cell was searched and “destroyed, ” Mr. Badley again complained to former Warden Daniels that he was being mistreated for filing grievances and former Warden Daniels told him he needed to “drop his complaints.”

         III. Discussion

         Defendants have filed a Motion to Dismiss, arguing that Mr. Badley's First Amendment claim fails as a matter of law as against all Defendants. Specifically, they argue that Mr. Badley's First Amendment retaliation claims against the individual defendants must be dismissed because the United States Supreme Court has not recognized a right of action under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), for First Amendment retaliation. See Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). In response, Mr. Badley argues that violations of the First Amendment do not create a new Bivens context, and that filing a lawsuit in the court is the proper way to seek redress when the Bureau of Prisons' administrative process fails to provide a proper remedy.

         While prisoners do not have unfettered First Amendment rights, the rights they retain may not be infringed upon by prison officials retaliating against them for exercising those rights. Crawford-El v. Britton, 523 U.S. 574, 588 n. 10, 592-93 (1998). But Crawford-El was a 42 U.S.C. § 1983 action, not a Bivens action. Last year the Supreme Court in Abbasi, clarified the very limited scope of Bivens actions. If the asserted Bivens claim is not one of the three Bivens-type actions previously recognized by the Supreme Court, closer scrutiny is required. This calls into question whether a First Amendment free speech retaliation claim is a viable claim when asserted against federal officials.

         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. 14 (1980). To determine whether a case presents a new Bivens context, the Abbasi court explained: “[i]f 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. To determine whether a Bivens remedy is available for a claim outside of these three circumstances, this 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)). As the Abbasi court explained:

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 ...

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