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Harris v. Dunbar

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

July 25, 2018



          Hon. William T. Lawrence, Judge

         I. Background

         On May 27, 2016, plaintiff Donte Rolando Harris filed this lawsuit in the District of Columbia. It was transferred to this Court on November 28, 2017. At all relevant times, Mr. Harris was incarcerated in the United States Penitentiary in Terre Haute, Indiana. He is currently confined in a federal penitentiary in Marion, Illinois.

         In the amended complaint filed on June 30, 2017, Dkt. No. 36, Mr. Harris names three defendants: 1) Angela P. Dunbar; 2) Stephen Cope; and 3) Paul Adams (named “John Doe” in the amended complaint, but identified as Paul Adams in the defendants' motion to dismiss). Mr. Harris alleges that Angela P. Dunbar, an official with the Bureau of Prisons (“BOP”), continued Mr. Harris' special confinement within the Communications Management Unit (“CMU”) for over six years without any procedural due process. He further alleges that in May 2011, Stephen Cope, a BOP employee, intercepted an outgoing letter intended for Mr. Harris' cousin (who has a son in prison) and at other times opened legal/special mail outside his presence. Mr. Harris' claim against Mr. Adams is that as the Director of the Counter Terrorism Unit (“CTU”), he continued Mr. Harris' special confinement within the CTU for over six years without any procedural due process. He seeks compensatory and punitive damages and the expungement of all records relating to his being monitored in the CTU.

         Mr. Harris' claims implicate the First and Fifth Amendments to the United States Constitution. His claims for damages are brought pursuant to the doctrine created in Bivens v. Six Unknown Named Agents of Feb. Bur. Of Narcotics, 403 U.S. 388 (1971).

         Presently pending before the Court is the defendants' motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 60.

         II. 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).

         III. Discussion

         As noted, this action is brought under the implied cause of action theory adopted in Bivens, which authorized the filing of constitutional tort suits against federal officers. The defendants' motion to dismiss argues that the plaintiff's claims fail to state a claim upon which relief can be granted based on recent Supreme Court law. In Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme Court held that “expanding the Bivens remedy is now a disfavored judicial activity.” Id. at 1857 (internal quotation omitted). “This is in accord with the Court's observation that it has consistently refused to extend Bivens to any new context or new category of defendants” and has done so “for the past 30 years.” Id. (internal quotation omitted). “The Court's precedents now make clear that a Bivens remedy will not be available if there are special factors counselling hesitation in the absence of affirmative action by Congress.” Id. (internal quotation omitted).

         The Supreme Court has recognized an implied damages remedy under the Constitution 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 substantive due process and equal protection gender discrimination claim against a congressman for firing his female administrative assistant because she was a woman, 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). Abbasi, 137 S.Ct. at 1854-55, 1860.

         A. New Bivens Context

         Post-Abbasi, additional scrutiny is required before a plaintiff may proceed with a Bivens action if the claims arise “in a new Bivens context.” Abbasi, 137 S.Ct. at 1864. “If the case is different in a meaningful way from previous Bivens cases determined by this Court, then the context is new.” Id. at 1859.

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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