United States District Court, S.D. Indiana, Terre Haute Division
ENTRY GRANTING DEFENDANTS' MOTION TO DISMISS AND
DIRECTING ENTRY OF FINAL JUDGMENT
William T. Lawrence, Judge
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.
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.
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.
pending before the Court is the defendants' motion to
dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6). Dkt.
Standard of Review
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).
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
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
New Bivens Context
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 ...