United States District Court, M.D. Florida, Ocala Division
ROBERT F. DUGAN, Plaintiff,
FNU SCOTT, et al., Defendants.
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE.
a federal inmate, initiated this case by filing a pro se
Civil Rights Complaint (Doc. 1). On October 6, 2016, this
Court entered an Order granting in part and denying in part
Defendants’ Motion for Summary Judgment (Doc. 78). As
explained in the Court’s summary judgment Order, the
only claims now remaining are Plaintiff’s First
Amendment claims against Defendants Vargas, Dole, Scott,
Figueroa, Lopes, and Kajander:
Plaintiff alleges that the remaining Defendants subjected him
to retaliation for exercising his First Amendment right to
Free Speech. Specifically, Plaintiff claims that he engaged
in the administrative remedy process, assisted other inmates
with their own grievances and pursued his lawsuit in
5:10-cv-367. In response, Plaintiff alleges that the
remaining Defendants strip searched him, transferred him to
another prison, confiscated his property, delayed his access
to his medical records and placed him in the
Defendants argue that there is “no
Bivens liability for violation of the First
Amendment.” (Doc. 73). While the Supreme Court
has not specifically extended a Bivens cause of
action based on the First Amendment, the Court is not
persuaded that the Eleventh Circuit does not recognize such a
claim. See Hollins v. Samuals, 2013 U.S.
App. LEXIS 20007 (11th Cir. 2013) (citing Alexander v.
Hawk, 159 F.3d 1321 (11th Cir. 1998) (stating that
“[w]e’ve considered a Bivens claim for
an alleged First Amendment violation.[”]); See also
Walden v. CDC & Prevention, 669 F.3d 1277 (11th Cir.
2012) (disposing of the case on other grounds, but assuming
without deciding that the plaintiff could seek a
Bivens remedy for violations of the First Amendment
Free Exercise Clause.); Burns v. Warden, USP
Beaumont, 2012 U.S. App. LEXIS 13209 (11th Cir. 2012)
(finding that there was a sufficient factual basis for a
prisoner’s First Amendment retaliation claim brought
pursuant to Bivens.). As such, the Court will
consider this ground for relief.
Doc. 78 at 21-22 (emphasis added). The Court went on to find
that genuine issues remain as to whether those six Defendants
violated Plaintiff’s clearly established First
Amendment rights, and allowed this case to proceed on
Plaintiff’s First Amendment claims for nominal damages.
See id. at 23-28.
the Court is Defendants’ Motion for Reconsideration of
the Court’s Order Based upon an Intervening Change in
Controlling Law (Doc. 104). Defendants assert that after
entry of this Court’s summary judgment Order, the
United States Supreme Court decided Ziglar v.
Abbasi, 137 S.Ct. 1843 (2017), which is an intervening
change in controlling law. According to Defendants,
Abbasi provides a new multi-part test that courts
must undertake to determine whether a Bivens remedy
is available. They argue that applying the new test to this
case dictates that the Court reconsider its prior Order and
grant summary judgment in Defendants’ favor on
Plaintiff’s First Amendment retaliation claims.
through counsel,  filed a Response in opposition (Doc. 121).
Plaintiff argues that reconsideration is inappropriate
because Abbasi merely “collects and clarifies
50 years of controlling law; it does not change
Bivens at all.” Even assuming it is an
intervening change in controlling law, Plaintiff argues that
application of the Abbasi test warrants denial of
Defendants’ request for reconsideration.
Federal Rule of Civil Procedure 54(b), an order “that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties’ rights and
liabilities.” Fed.R.Civ.P. 54(b). The decision to
grant a motion for reconsideration is within the sound
discretion of the trial court. Region 8 Forest Serv.
Timber Purchasers Council v. Alcock, 993 F.2d 800,
805-06 (11th Cir. 1993). Courts have delineated three major
grounds that may justify reconsideration: “(1) an
intervening change in controlling law; (2) the availability
of new evidence; [and] (3) the need to correct clear error or
prevent manifest injustice.” Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994) (citation omitted).
History of Bivens
1871, an injured person has been entitled to sue a state
official for monetary damages if that official violates his
federal constitutional rights. See Abbasi, 137 S.Ct.
at 1854 (citing 42 U.S.C. § 1983). However,
“Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up to
Bivens, Congress did not provide a specific damages
remedy for plaintiffs whose constitutional rights were
violated by agents of the Federal Government.”
1971, the Supreme Court decided Bivens, in which it
recognized an implied cause of action for damages against
federal officials who violate an individual’s Fourth
Amendment rights against unreasonable search and seizures.
Since then, the Court has extended Bivens on only
In Davis v. Passman, 442 U.S. 228 (1979), an
administrative assistant sued a Congressman for firing her
because she was a woman. The Court held that the Fifth
Amendment Due Process Clause gave her a damages remedy for
gender discrimination. Id. at 248-49. And in
Carlson v. Green, 446 U.S. 14 (1980), a
prisoner’s estate sued federal jailers for failing to
treat the prisoner’s asthma. The Court held that the
Eighth Amendment Cruel and Unusual Punishments Clause gave
him a damages remedy for failure to provide adequate medical
treatment. See id. at 19. These three