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Freeman v. Benson

United States District Court, D. Kansas

November 28, 2017

CLIFTON Z. FREEMAN, JR., Plaintiff,
v.
BRENDA JOY BENSON, et al., Defendants.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree United States District Judge

         On June 15, 2016, pro se[1] plaintiff Clifton Z. Freeman, Jr. brought this Bivens[2] action against defendants Brenda Benson, Joseph Bleier, Jason Wells, Claude Maye, Joseph Wilson, and John/Jane Doe. Plaintiff's Complaint alleges that defendants violated his First, Sixth, and Fourteenth Amendment rights, and he seeks a declaratory judgment and monetary damages for these violations. Doc. 1 at 19-25. On January 3, 2017, Judge Sam A. Crow entered a Screening Order (Doc. 12) under 28 U.S.C. § 1915A. In that Order, Judge Crow dismissed defendant John/Jane Doe without prejudice and dismissed plaintiff's Sixth and Fourteenth Amendment claims without prejudice. Doc. 12 at 12.

         Now, defendants Brenda Benson, Joseph Bleier, Jason Wells, Claude Maye, and Joseph Wilson have moved to dismiss this action for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rule of Civil Procedure or for failing to state a claim upon which relief can be granted under Rule 12(b)(6). Alternatively, defendants move the court to grant summary judgment under Rule 56. For reasons discussed below, the court grants defendants' motion to dismiss. Alternatively, the court concludes that even were it to deny defendants' Rule 12(b) motion, it would still conclude the case by granting summary judgment against all plaintiff's claims.

         I. Motion to Dismiss

         Plaintiff alleges First Amendment retaliation claims against all defendants. Defendants assert that plaintiff fails to state a claim upon which relief may be granted. The court considers defendants' dismissal argument below.

         A. Alleged First Amendment Retaliation

         The Complaint alleges that Dr. Brenda J. Benson, former coordinator for the Residential Drug Abuse Program (“RDAP”) at U.S. Penitentiary (“USP”) Leavenworth, filed false disciplinary charges against plaintiff as punishment for his filing of repeated complaints against her and for making unflattering remarks about her in e-mail correspondence dispatched to non-inmates. Plaintiff alleges that Dr. Benson did so to have him placed in punitive segregation. Such punishment forfeited his § 3621(e)[3] early release eligibility.

         Plaintiff's Complaint also alleges that Claude Maye, former Warden of USP Leavenworth, participated in Dr. Benson's alleged retaliatory conduct by allowing plaintiff to remain in punitive segregation for 13 days. Plaintiff alleges that Warden Maye knew or should have known about Dr. Benson's desire to retaliate against plaintiff.

         The Complaint also alleges that Joseph Wilson, Unit Disciplinary Committee (“UDC”) Chairman at USP Leavenworth, participated in retaliatory conduct when he informed plaintiff that the UDC had found plaintiff committed the prohibited act of insolence towards a staff member, and sanctioned plaintiff with 30 days loss of commissary, phone, and visiting privileges. Plaintiff also alleges that Mr. Wilson denied plaintiff's appeal from the UDC decision.

         Finally, plaintiff's Complaint alleges that Dr. Joseph Bleier and Dr. Jason Wells participated in the retaliatory acts when they colluded with Dr. Benson to expel plaintiff from RDAP.

         B. Rule 12(b)(6) Standard

          Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Although this Rule “does not require ‘detailed factual allegations, '” it demands more than “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.'” Carter v. United States, 667 F.Supp.2d 1259, 1262 (D. Kan. 2009) (quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).

         On a motion to dismiss like the one presented here, the court assumes that a complaint's factual allegations are true, but need not accept mere legal conclusions as true. Id. at 1263. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not enough to state a claim for relief. Iqbal, 556 U.S. at 678.

         C. Analysis

         Since Bivens recognized an implied private right of action for damages against federal officials who violate a citizen's Fourth Amendment rights, it has extended Bivens only to reach Equal Protection Clause claims and “deliberate indifference” claims under the Eighth Amendment. Ingram v. Faruque, 728 F.3d 1239 (10th Cir. 2013) (citing Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980). Indeed, the Supreme Court has “consistently refused to extend Bivens liability to any new context.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001). Relevant to plaintiff's claims here, the Supreme Court specifically has refused to recognize a Bivens claim for alleged First Amendment violations. See Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (noting that the Supreme Court has “declined to extend Bivens to a claim sounding in the First Amendment”); see also Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining to extend Bivens to First Amendment retaliation claim). District courts thus have dismissed prisoner First Amendment retaliation claims under Bivens for failing to state a claim. See, e.g., Mochama v. Zwetow, No. 14-2121-KHV, 2017 WL 36363, at *11 (D. Kan. Jan. 3, 2017); Williams v. Klien, 20 F.Supp.3d 1171, 1175 (D. Colo. 2014); Hall v. Shumard, No. 15-cv-01949-RBJ-MJW, 2017 WL 694589, at *2 (D. Colo. Feb. 21, 2017).

         Consistent with this precedent, the court dismisses plaintiff's First Amendment claims because they fail to state a claim for relief as a matter of law. The court could end its analysis here, but other reasons lead to a similarly decisive outcome. Namely, even if Bivens included a First Amendment retaliation claim, the undisputed material facts warrant summary judgment against that claim. Part II of this Order provides the summary judgment analysis supporting this conclusion.

         II. Motion for Summary Judgment

         Because defendants alternatively moved for summary judgment, they provided-and referenced-matters outside the pleadings in that aspect of their motion and supporting papers. See Docs. 42, 48. Plaintiff also provided matters outside the pleadings in his Response to defendants' Motion. See Doc. 47. The court considered those matters for the analysis below so the court treats it as a motion for summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). Also, all parties were given a reasonable opportunity to present all the material pertinent to defendant's motion because plaintiff responded to that motion and defendants replied. See Id. (“All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.”)

         A. Uncontroverted Facts[4]

         The following facts govern this motion and are uncontroverted or, where controverted, are recited in the light most favorable to the plaintiff, the party opposing summary judgment. Scott v. Harris, 550 U.S. 372 378 (2007).

         1. Retaliatory Acts

         On September 13, 2015, plaintiff wrote an email to a non-inmate that included the following message:

. . . that racist bitch [Dr. Benson] set me back 60 days, I told her dirty ass, however, that she would likely suffer a pyrrhic victory behind fucking with me because it was now my turn and I write a mean complaint . . . she was just too nefariously pompous, just an evil little racist ass White woman . . . I am happy about that, to see her go and to know that she'll never forget my name for as long as she lives . . . She was just too fucking nefariously evil and pompous and certainly needed to find humility or better yet, I made sure humility found her. . . .

Doc. 43-6 at 3. After Dr. Benson saw the email on September 15, 2015, she prepared an incident report against plaintiff for violating: (1) Disciplinary Code 307, Refusing to obey and order; (2) Code 312, Insolence towards a staff member; and (3) Code 203, Threatening. Dr. Benson previously had instructed plaintiff to stop using derogatory language towards staff in his emails because it was inconsistent with RDAP. Doc. 1-1 at 7. Thus, plaintiff knew that Dr. Benson was monitoring his email.

         That same day, plaintiff submitted a request for administrative remedy against Dr. Benson. Two hours later, Dr. Benson approached him and said: “I finally got your ‘ass' like I told you I would. Oh well, you won't be graduating after all. You need to report to the Lieutenant's Office right now.” When plaintiff reported to the Lieutenant's Office, he was seized, stripped of his personal property, placed in punitive segregation, and issued the incident report authored by Dr. Benson alleging institutional violations.

         Eight days later, on September 23, 2015, plaintiff asked Warden Maye how long he would remain in punitive segregation on false charges. In response, Warden Maye allegedly said that plaintiff was not falsely charged and that plaintiff should expect punishment when he writes derogatory things about prison staff in outside communications.

         The next day, Joseph Wilson, Unit Disciplinary Committee Chairman, told plaintiff that the UDC had found plaintiff guilty of insolence towards a staff member and sanctioned him with loss of phone, commissary, and visiting privileges for 30 days. He also informed plaintiff that he had been expelled from RDAP and his § 3621(e) early release credit had been forfeited. See n.3, above. Plaintiff asked to submit documentary evidence in his defense. But, Mr. Wilson refused to review the documentary evidence because plaintiff already had been found guilty of insolence. Mr. Wilson also told plaintiff that Dr. Benson could censor plaintiff's non-threatening email correspondence with plaintiff's family.

         According to a form signed on September 25, 2015 by Dr. Jason Wells, plaintiff was expelled from RDAP seven days before he was scheduled to graduate from the program. Dr. Wells wrote that plaintiff was expelled for lack of progress and that plaintiff already had received a behavioral contract and formal warning, but continued to ...


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