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Culver v. Federal Bureau of Prisons (BOP)

United States District Court, N.D. Florida, Pensacola Division

September 24, 2019

BRIAN CULVER, Plaintiff,



         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint (ECF Doc. 40) and Plaintiff's opposition (ECF Doc. 42). The matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). After reviewing the parties' submissions and the relevant law, the undersigned respectfully recommends that Plaintiff's claims for monetary damages as to all defendants be dismissed as not cognizable under Bivens.[1] Additionally, the undersigned orders Plaintiff to show cause why his claims for injunctive and declarative relief should not be dismissed as moot.

         I. BACKGROUND

         Plaintiff is an inmate of the Federal Bureau of Prisons (“BOP”) currently confined at UPS Yazoo City. His claims are based on events that took place while he was confined at the Federal Correctional Institution in Marianna, Florida (“FCI Marianna”). Plaintiff's amended complaint (ECF Doc. 37) names six Defendants: the Federal Bureau of Prisons; Shannon D. Withers, warden of FCI Marianna; Stephanie Rush, former chief psychologist at FCI Marianna; Ramon Rivera, Sex Offender Management Program (“SOMP”) coordinator at FCI Marianna; Michelle Proulx, SOMP psychologist at FCI Marianna; and Adam McCord, SCSS at FCI Marianna and former acting warden. Plaintiff brings this action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971) and the Administrative Procedures Act (APA). Plaintiff alleges that an FCI Marianna SOMP institution supplement, which bars Plaintiff from having any photos of minors who are not his children, violates the ex post facto clause and his First Amendment, due process, equal protection, and Eighth Amendment rights. Additionally, Plaintiff claims the FCI Marianna supplement violates BOP policy. The photos at issue are of his nephews. Plaintiff seeks declaratory relief, preliminary and permanent injunctions, compensatory damages of $1, punitive damages of $100 assessed against each Defendant, and a jury trial on all triable issues.

         Plaintiff's amended complaint sets forth the factual allegations that follow, the truth of which are accepted for purposes of this Report and Recommendation. FCI Marianna is designated as a SOMP institution, which means that one of its primary goals is the reduction of recidivism among sex offenders by identifying risk relevant behavior and properly managing it.[2] If an inmate engages in risk relevant behavior, he can be placed on a Correctional Management Plan (“CMP”) and sexually explicit materials can be confiscated from him. Plaintiff was not placed on a CMP while at FCI Marianna, nor has he engaged in risk relevant behavior. Plaintiff claims that by preventing him from having photos of his nephews, Defendants have placed him on a de facto CMP.

         Plaintiff claims Defendants Rivera and Proulx exceeded the scope of their BOP authority when they created FCI Marianna's SOMP supplement. Plaintiff claims the supplement is both unconstitutional and unauthorized because it prohibits all sex offender inmates from possessing photos of any minor child who is not the biological or adopted child of that inmate, and the policy does not apply to non-sex offenders. Plaintiff asserts that there is no rational basis for rejecting appropriate family photos and BOP policy specifically states, “[o]rdinarily photographs, particularly those of family and friends are approved, since they represent meaningful ties to the community.” Yet, under FCI Marianna's SOMP supplement, Plaintiff is prohibited from possessing photos of his nephews. Prior to filing this suit, Plaintiff filed a grievance and an appeal through the prison grievance procedure at FCI Marianna; his grievance and appeal were both denied. Plaintiff also appealed to the Central Office in Washington, D.C.; that appeal was similarly denied.


         In considering a motion to dismiss for failure to state a claim, the Court reads Plaintiff's pro se allegations in a liberal fashion, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), and accepts “[a]ll well-pleaded facts in plaintiff's complaint and all reasonable inferences drawn from those facts . . . as true.” McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004) (citation omitted). As the Supreme Court reiterated in Ashcroft v. Iqbal, although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 556 U.S. 662, 678 (2009). A complaint must state a plausible claim for relief, and “[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.


         A. Plaintiff's Claim for Monetary Damages Under Bivens

         Defendants have moved to dismiss Plaintiff's claims for monetary damages on the ground that they are not cognizable under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 402 U.S. 388 (1971). ECF Doc. 40 at 4. In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights, ” specifically for violation of the Fourth Amendment. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). In recent years, however, the Supreme Court has narrowed the application of Bivens and “rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court.” Id. at 69. Indeed, the Supreme Court has recognized a Bivens remedy in only two other contexts: (1) a Fifth Amendment equal protection claim against a Congressman for gender-based employment discrimination, Davis v. Passman, 442 U.S. 228 (1979); and (2) an Eighth Amendment claim against federal prison officials for failing to adequately treat an inmate's medical condition, Carlson v. Green, 446 U.S. 14 (1980).

         When determining whether a Bivens claim may proceed, courts must first consider whether the claim extends Bivens to a new context. If a case differs in a meaningful way from previous Bivens cases decided by the Supreme Court, the context is new. See Ziglar v. Abbasi, 137 S.Ct. 1843, 1859 (2017). In Ziglar, the Court explained as follows:

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 Judiciary into the functioning of ...

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