Opinion
Case No. 19-cv-00629-JPG
04-23-2020
ANTONIO NATHANIEL SPEED, #40750-044, Plaintiff, v. B. TRUE, ASSOCIATE WARDEN COOPER, LIEUTENANT McALLISTER, LIEUTENANT BLAIR, WINN, SCHREIBER, and JARRETT, Defendants.
MEMORANDUM AND ORDER GILBERT, District Judge :
This matter is now before the Court for preliminary review of the First Amended Complaint (Doc. 10) filed by Plaintiff Antonio Speed. Plaintiff is a former federal inmate at the United States Penitentiary located in Marion, Illinois ("USP-Marion"). He filed this action to challenge his placement in USP-Marion's Prison Camp on due process grounds under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). (Id. at pp. 1-25). He seeks money damages. (Id. at p. 13).
The Amended Complaint is now before the Court for screening under 28 U.S.C. § 1915A, which requires the Court to screen prisoner complaints and filter out nonmeritorious claims. 28 U.S.C. § 1915A(a). The Court is required to dismiss any portion of the Amended Complaint that is legally frivolous or malicious, fails to state a claim for relief, or seeks money damages from a defendant who is immune from relief. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations in the pro se Amended Complaint are liberally construed. Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Plaintiff was a prisoner when he filed his Complaint, and the First Amended Complaint is therefore subject to review under 28 U.S.C. § 1915A. (See Doc. 1, p. 7).
The Amended Complaint
Plaintiff sets forth the following allegations in the Amended Complaint (Doc. 10, pp. 1-25): On or around September 11, 2018, Plaintiff was forced to participate in USP-Marion's Prison Camp, where Defendants imposed the following sanctions against him without prior notice, a disciplinary report, or a hearing: (a) loss of television privileges and movies (September 2018 to June 2019); (b) 5-minute limit on daily phone calls (April 2019); (c) commissary spending restrictions of $150/month instead of $360/month (May 2019); and (d) periodic recreation restrictions (September 2018 to May 2019). (Id. at p. 12).
Based on the allegation in the Amended Complaint, the Court designates a single count in this pro se action:
Count 1: Defendants violated Plaintiff's Fifth Amendment right to due process of law by placing him in USP-Marion's Prison Camp and punishing him without notice or a hearing.Any claim in the Amended Complaint that is not addressed herein is considered dismissed without prejudice as inadequately pled under Twombly .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (an action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face"). --------
Discussion
Plaintiff's Fifth Amendment due process claim against the defendants is not cognizable under Bivens. In Ziglar v. Abbasi, 137 U.S. 1843 (2017), the Supreme Court held that federal courts should not expand Bivens into contexts not officially recognized by the Supreme Court, unless certain "special factors" counsel otherwise. Ziglar, 137 U.S. at 1859-60. The Court cited only three instances in which a Bivens remedy should be recognized against federal officials: (1) Fourth Amendment claims involving unlawful searches and seizures; (2) Fifth Amendment due process claims involving gender discrimination; and (3) Eighth Amendment claims for inadequate medical treatment. Ziglar, 137 U.S. at 1854-55 (citations omitted). Plaintiff's claim does not fit into any of these categories.
The Seventh Circuit Court of Appeals has declined to recognize a new theory of relief in a Bivens action premised on due process violations like the one presented. See Smadi v. True, 783 F. App'x 633, 634 (7th Cir. 2019) (affirming district court's dismissal of due process claim at screening as indistinguishable from the due process challenge rejected in Abbasi but remanding for review of First Amendment claim for injunctive and monetary relief); Goree v. Serio, 735 F. App'x 894, 895 (7th Cir. 2018) (claims premised on due process violations arising from administrative and disciplinary proceedings not cognizable under Bivens and properly dismissed at screening). Other courts have likewise declined to extend Bivens to due process claims like the one presented in Count 1. See, e.g., Vega v. United States, 881 F.3d 1146, 1154-55 (9th Cir. 2018) (declining to recognize Bivens action for due process violation); Harris v. Dunbar, Case No. 17-cv-00536-WTL, 2018 WL 3574736, at *3-4 (S.D. Ind. 2018) (declining to recognize Bivens action for due process claim based on continued placement in communications management unit). Consistent with these previous rulings, this Court declines to extend Bivens to Plaintiff's due process claim challenging his placement in USP-Marion's Prison Camp with restrictions. Accordingly, Count 1 shall be dismissed with prejudice.
Disposition
IT IS ORDERED that this action, including the Amended Complaint (Doc. 10) and COUNT 1, are DISMISSED with prejudice for failure to state a claim for relief.
Plaintiff is ADVISED that this dismissal shall count as one of his allotted "strikes" under the provisions of 28 U.S.C. § 1915(g).
If Plaintiff wishes to appeal this Order, he may file a notice of appeal with this Court within thirty days of the entry of judgment. FED. R. APP. 4(A)(4). If Plaintiff does choose to appeal, he will be liable for the $505.00 appellate filing fee irrespective of the outcome of the appeal. See FED. R. APP. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien, 133 F.3d at 467. Moreover, if the appeal is found to be nonmeritorious, Plaintiff may also incur another "strike." A proper and timely motion filed pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion must be filed no more than twenty-eight (28) days after the entry of judgment, and this 28-day deadline cannot be extended.
The Clerk shall CLOSE THIS CASE and enter judgment accordingly.
IT IS SO ORDERED.
DATED: 4/23/2020
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge