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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11937
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-21790-JAL
HARVEY R. JOHNSON,
Plaintiff-Appellee,
versus
KEVIN BURDEN,
Lieutenant,
BOBBY ROY,
Lieutenant,
ROB WILSON,
Warden,
WILLIAM ORAMAS,
CAPTAIN DONALDSON,
WILLIAM GARCIA,
CHARLES HANNA,
Case Manager,
YIMA POSADA,
Unit Manager,
BEARDEN,
Case Manager,
A.W. NANETTE BARNES,
CASSANDRA ANDREWS,
ANTONINETTE NICHOLSON,
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Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 9, 2019)
Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Officer Jason Cooke, along with other Federal Bureau of Prisons (BOP)
employees (collectively, Defendants), appeal the district court’s partial denial of
their motion to dismiss, or, in the alternative, motion for summary judgment. On
appeal, Defendants argue that the district court erred by extending a Bivens1
remedy to Johnson’s First Amendment claims, and that “special factors” counsel
against extending Bivens to encompass Johnson’s suit. Defendants also contend
that, even if Bivens did extend to Johnson’s claims, they are entitled to qualified
immunity. Because Johnson’s First Amendment claims represent a new Bivens
context, we remand to the district court to reconsider its ruling on Defendants’
motion to dismiss or for summary judgment in light of Ziglar v. Abbasi, 137 S. Ct.
1843 (2017), and we decline to consider Defendants’ qualified immunity
argument.
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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I. Factual and Procedural Background
Plaintiff Harvey Johnson, a federal inmate, filed a 52-count pro se complaint
against 82 BOP officials, seeking damages pursuant to Bivens v. Six Unknown
Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleged, in
relevant part, that several BOP officials retaliated against him after he filed
grievances through the Bureau’s Administrative Remedy Program, in violation of
his First Amendment rights. According to Johnson, Defendants’ retaliatory acts
included transferring him to another prison, denying him medical treatment, and
cutting his work detail pay. The district court dismissed many of Johnson’s claims
for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), but permitted the
remaining retaliation claims to go forward against 15 of the named Defendants.
Defendants jointly filed a motion to dismiss Johnson’s complaint, or
alternatively, for summary judgment. Defendants argued that First Amendment
claims are not implied under Bivens, and that the Supreme Court has refused to
recognize Bivens liability in any context other than the three it previously
recognized. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). They argued that, to
create an implied damages remedy, a court must first conduct a “special factors”
analysis and determine that the judiciary is well suited, absent congressional
instruction, to weigh the costs and benefits of allowing a damages action.
Defendants also asserted that they were entitled to qualified immunity because
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each of the BOP actions at issue were performed in accordance with BOP policy
and for reasons unrelated to Johnson’s filing of grievances.
Johnson filed his own motion for summary judgment, arguing that he
“presented irrefutable proof of the defendants’ liability, and therefore, summary
judgment in his favor [was] clearly warranted.”
The magistrate judge issued a Report and Recommendation (R&R),
recommending that Defendants’ motion be denied, except as to a claim regarding
work detail against one named Defendant. The Defendants filed objections to the
R&R, contending that the magistrate judge failed to address arguments regarding
Abbasi or qualified immunity.
The district court acknowledged Abbasi, but concluded that the Supreme
Court had recognized that Bivens extends to First Amendment claims in Hartman
v. Moore, 547 U.S. 250 (2006). Regarding qualified immunity, the district court
concluded that, assuming Defendants acted within the scope of their employment,
they were not entitled to qualified immunity because Johnson alleged facts
demonstrating that Defendants violated his constitutional rights. Accordingly, the
district court granted in part and denied in part Defendants’ motion to dismiss or
for summary judgment.
II. Bivens Analysis
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We review a district court’s denial of summary judgment de novo,
construing all facts and making all reasonable inferences in favor of the non-
moving party. Holloman v. Mail-Well Corp., 443 F.3d 832, 836–37 (11th Cir.
2006). Summary judgment is appropriate when there is no genuine dispute of
material fact, and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a). An issue of fact is not genuine unless a reasonable jury could return
a verdict in favor of the non-moving party. Morton v. Kirkwood, 707 F.3d 1276,
1284 (11th Cir. 2013).
Defendants argue that the district court erred by extending a Bivens remedy
to Johnson’s First Amendment retaliation claims and that “special factors” counsel
against extending Bivens to encompass Johnson’s suit. In Bivens, the Supreme
Court held that injured plaintiffs can bring an action for damages against federal
officers for violations of their constitutional rights. Behrens v. Regier, 422 F.3d
1255, 1263 n.15 (11th Cir. 2005). But the Supreme Court has since stated that the
expansion of Bivens beyond the three specific contexts it has recognized is
disfavored. Abbasi, 137 S. Ct. at 1857. Bivens has been applied to a Fourth
Amendment case involving a search and seizure, a Fifth Amendment gender
discrimination case, and an Eighth Amendment case involving cruel and unusual
punishment. Id. at 1854–55. Only in these three contexts did the Supreme Court
approve an implied damages remedy under the Constitution itself. Id. at 1855.
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When a party seeks to assert an implied cause of action under the Constitution
itself, just as when a party seeks to assert an implied cause of action under a federal
statute, it is usually Congress who should decide whether to provide for a damages
remedy, not the courts. Id. at 1857.
The Supreme Court has also noted that, generally, Bivens will not be
extended to a new context where special factors counsel hesitation in the absence
of affirmative action by Congress. Abbasi, 137 S. Ct. at 1857. The Court has not
defined the “special factors,” but has stated that “the inquiry must concentrate on
whether the Judiciary is well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a damages action to
proceed.” Id. at 1857–58. The availability of alternative means of relief may alone
limit the power of courts to “infer a new Bivens cause of action.” Id. at 1858. For
example, both injunctions and habeas petitions are alternative judicial forms of
relief that probably preclude a Bivens remedy. Id. at 1862–63.
The district court erred in concluding that Bivens extends to First
Amendment retaliation claims. The district court concluded that in Hartman v.
Moore, 547 U.S. 250 (2006), the Supreme Court explicitly recognized a First
Amendment retaliation claim under Bivens. But the district court discounted the
fact that Abbasi 2 did not identify a First Amendment retaliation claim as one of the
2
Abbasi was decided sixteen years after Hartman.
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three recognized Bivens contexts, reasoning that “the Court must assume the
Supreme Court knew what it was saying and meant what it said in Hartman when
it recognized a First Amendment retaliation claim under Bivens.”
In Hartman, the Supreme Court held that a plaintiff cannot state a claim of
retaliatory prosecution in violation of the First Amendment if the charges were
supported by probable cause. 547 U.S. at 252. The Supreme Court stated that,
“[w]hen the vengeful officer is federal, he is subject to an action for damages on
the authority of Bivens.” Id. at 256. But the Court appeared to assume the
availability of a Bivens remedy for purposes of reaching its holding—that a
complaint claiming retaliatory prosecution must allege and prove a lack of
probable cause. Id. at 252. In doing so, the Court qualified its holding, stating that
“we are addressing a requirement of causation, which [the plaintiff] must plead and
prove in order to win, and our holding does not go beyond a definition of an
element of the tort, directly implicated by the defense of qualified immunity and
properly before us on interlocutory appeal.” Id. at 257 n.5 (emphasis added).
Following Hartman, the Supreme Court has repeatedly confirmed that it has
not extended a Bivens remedy to First Amendment claims. See Ashcroft v. Iqbal,
556 U.S. 662, 675 (2009) (noting that it has previously “declined to extend Bivens
to a claim sounding in the First Amendment”); see also Reichle v. Howards, 566
U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First
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Amendment claims.”). And in Wood v. Moss, 134 S. Ct. 2056, 2066 (2014), the
Supreme Court confirmed that it has “several times assumed without deciding that
Bivens extends to First Amendment claims.” The Court did so again in Wood
because that “antecedent issue” was not preserved. Id. Moreover, the Court in
Abbasi did not mention Hartman as one of the cases establishing appropriate
contexts in which to apply Bivens, indicating that the Hartman language was mere
dicta. See Abbasi, 137 S. Ct. at 1854–55.
The Supreme Court’s post-Hartman cases indicate that First Amendment
claims, like Johnson’s here, represent a new Bivens context. The district court was
therefore required to apply a “special factors” analysis consistent with Abbasi to
determine whether expanding Bivens would be appropriate in Johnson’s case.
Accordingly, we remand to the district court to reconsider its ruling on the
Defendants’ motion to dismiss or for summary judgment in light of Abbasi, and we
decline to consider Defendants’ qualified immunity argument.
REMANDED.
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