United States District Court, D. Kansas
CLIFTON Z. FREEMAN, JR., Plaintiff,
BRENDA JOY BENSON, et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
15, 2016, pro se plaintiff Clifton Z. Freeman, Jr. brought
this Bivens 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.
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
Motion to Dismiss
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.
Alleged First Amendment Retaliation
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) early release eligibility.
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.
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.
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.
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)).
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.
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.
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).
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
Motion for Summary Judgment
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
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).
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.
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.
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.
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
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 ...