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Dugan v. Scott

United States District Court, M.D. Florida, Ocala Division

September 27, 2019

ROBERT F. DUGAN, Plaintiff,
FNU SCOTT, et al., Defendants.



         I. Status

         Plaintiff, 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 SHU.[1] (Doc. 1).
Defendants argue that there is “no Bivens[2] 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.

         Before 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.

         Plaintiff, through counsel, [3] 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.

         II. Legal Standard

         Under 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).[4] 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).

         III. History of Bivens

         Since 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.” Id.

         In 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 two occasions.

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 cases-Biven ...

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