McGowan v. United States

• Decision Date: 23 March 2015
• Docket Number: No. 14 Civ. 4945BMC.,14 Civ. 4945BMC.
• Citation: 94 F.Supp.3d 382
• Parties: Daniel McGOWAN, Plaintiff, v. UNITED STATES of America; Tracy Rivers, Residential Reentry Manager; Community First Services, Inc. ; and Core Service Group, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

94 F.Supp.3d 382

Daniel McGOWAN, Plaintiff

v.UNITED STATES of America; Tracy Rivers, Residential Reentry Manager; Community First Services, Inc. ; and Core Service Group, Inc., Defendants.

No. 14 Civ. 4945BMC.

United States District Court, E.D. New York.

Signed March 23, 2015.

David Bruce Rankin, Rankin & Taylor, New York, NY, for Plaintiff.

Charles Michael Rowan, Jr., Saul Ewing LLP, Princeton, NJ, Elliot M. Schachner, Assistant U.S. Attorney, New York, for Defendants.

MEMORANDUM DECISION AND ORDER

COGAN, District Judge.

This case raises some novel issues concerning the availability of remedies for the alleged violation of a prisoner's right to freedom of speech under the First Amendment and corresponding remedies under the common law. Plaintiff's fundamental problem is that he approaches the case as if he were an ordinary citizen. He is not. Whether in a federal prison or a halfway house, he was at all relevant times a convicted felon in the custody of the United States, and any rights of redress have to be viewed from that perspective. I hold that on the facts of this case, there is no right of action against the Government or its employees.

BACKGROUND

The amended complaint alleges that as he was nearing the end of his 84–month federal prison sentence, plaintiff was assigned to a halfway house to serve out the remainder. He enjoyed certain privileges as a halfway house inmate that prisoners do not enjoy in most other BOP facilities. He was given a work pass, and obtained full time employment as a receptionist. He was allowed home visits on weekends, and had the ability to apply for passes to attend social events.

After about four months in the halfway house, on April 1, 2013, plaintiff, under his byline, published an article on an internet news site entitled Court Documents Prove I Was Sent to a Communications Management Unit (CMU) For My Political Speech. The article described how plaintiff had been reassigned to a Communications Management Unit, where he was restricted in his contacts with visitors, in retaliation for his engaging in protected speech. The subject of that article is not the retaliation at issue in the instant case—it is the BOP's response to the article itself.

The article came to the attention of Bryan Acosta, a BOP Information Technologies employee, who prepared an “incident report” on April 3, 2013. The incident report recited the fact of the published article under plaintiff's byline, and stated: “The BOP Program Statement no. 1480.05 dated September 21, 2000; 540.62 page 5, section (d) stipulates that an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline.” The reference was to former 28 C.F.R. § 540.62(d). (I refer to this below as the “byline prohibition.”)

That is indeed what the regulation said, but not at the time of the incident report. A “Final Rule” published in the Federal Register by the BOP on April 3, 2012, and annexed to the amended complaint, discusses some of the history of the byline prohibition and its ultimate demise. This Final Rule explains that the byline prohibition in the Program Statement was eliminated by Interim Rule in April, 2010, in response to the decision in Jordan v. Pugh, 504 F.Supp.2d 1109 (D.Colo.2007). The court in Jordan held that the blanket regulatory prohibition against an inmate's use of his byline, without a case by case assessment of whether the use posed a threat to prison security, violated inmates' First Amendment right to freedom of speech because it did not serve a “legitimate penological objective.” Id. at 1123. The court entered an injunction prohibiting the BOP from enforcing the byline prohibition.¹ The comment to the Final Rule also noted that on November 27, 2007, prior to the Interim Rule in 2010, it had issued “mandatory guidance” to its staff that it was revising the rule, and that pending that revision, “an inmate publishing under a byline, by itself, can no longer support disciplinary action” under the regulation.

Defendant Tracy Rivers was the residential entry manager for the halfway house and an employee of the BOP. The halfway house itself was run by a private company, defendant Community First Services, Inc. (“CFS”), under contract with the BOP. Upon learning of plaintiff's publication, defendant Rivers directed Grace Terry, who is employed by CFS as Facility Manager of the halfway house, to issue the incident report concerning the article to plaintiff, which Terry did on April 4, 2014.

Rivers decided that as a result of publishing the article, plaintiff should be remanded from the halfway house to a federal detention center. On the morning of that same day, U.S. Marshals transported him to the Special Housing Unit of the Metropolitan Detention Center. Plaintiff lost his work pass as a result.

Upon a complaint from plaintiff's attorneys, Rivers' superior advised her that the byline prohibition had been repealed. Rivers then expunged the incident report and arranged for plaintiff's return to the halfway house in the early evening of April 5, 2014.

Once returned, plaintiff was given a written warning by his case manager, a CFS employee named Massiel Suriel, not to have any contact with the media without prior approval from Rivers. That warning was rescinded at Rivers' direction because it applied too broadly another BOP regulation prohibiting media representatives from interviewing inmates at a BOP institution—the regulation did not prohibit all contacts between an inmate and a reporter.

The amended complaint further alleges that as a result of Rivers' retaliatory remand, plaintiff suffered damages including embarrassment, loss of enjoyment of life, and lost liberty. It contains four claims for relief: (1) against the United States under the Federal Tort Claims Act, for false arrest and false imprisonment for “violat[ing] his statutory and common law rights as guaranteed by the laws and Constitution of the State of New York”; (2) against the United States, under the FTCA, and CFS, for negligence resulting from the actions of Terry and Suriel under the doctrine of respondeat superior; (3) against CFS, for negligent hiring and supervision of Terry and Suriel; and (4) against Rivers, under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violating plaintiff's right to free speech.

Both the United States and Rivers, on the one hand, and CFS, on the other, have moved to dismiss the amended complaint.

DISCUSSION

I

There may be situations where it would be appropriate to extend Bivens to encompass First Amendment violations. But it may not ever be appropriate to do so in the area of federal prisoners' rights, and it is certainly not appropriate to do so in the context of the facts alleged here. The Supreme Court has viewed the judicial damage remedy in Bivens itself as “extraordinary,” one that should rarely be applied in “new contexts.” See Arar v. Ashcroft, 585 F.3d 559 (2d Cir.2009) (en banc) (quoting Correctional Services Corp. v. Malesko, 534 U.S. 61, 69, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), and citing Schweiker v. Chilicky, 487 U.S. 412, 421, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988) ). As the Second Circuit further noted in Arar, the Supreme Court has allowed a Bivens remedy, beyond the facts of Bivens itself, only to deter violations of the cruel and unusual punishment prohibition of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and to protect federal employees from employment discrimination pursuant to the Due Process Clause of the Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979).

Notably, although Carlson and Davis were handed down within a decade of Bivens, they mark the beginning of a still-unbroken period of more than 30 years since the Supreme Court authorized a Bivens damage action covering the exercise of any other constitutional right. This supports the observation of the majority in Malesko that since Bivens, “we have retreated from our previous willingness to imply a cause of action where Congress has not provided one,” 534 U.S. at 67 n. 3, 122 S.Ct. at 519 n. 3, and the even stronger observation of two Justices that

Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition.... [W]e have abandoned that power to invent “implications” in the statutory field. There is even greater reason to abandon it in the constitutional field, since an “implication” imagined in the Constitution can presumably not even be repudiated by Congress.

Malesko, 534 U.S. at 75, 122 S.Ct. at 524 (Scalia, J., concurring) (citation omitted). It is impossible not to observe that although the Court has found a variety of reasons to decline the extension of Bivens into a number of different scenarios, it has not found a single scenario to authorize that extension since 1980.²

Two of the scenarios into which the Supreme Court has refused to extend Bivens are at least informative if not somewhat analogous to the present case. In Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the Court refused to extend First Amendment protection through Bivens to federal employees who had been subjected to retaliation for exercising their First Amendment rights. There, the plaintiff had made public statements critical of his employer, NASA, which demoted him as a result of his statements. Although he prevailed in his administrative challenge on First Amendment grounds, including reinstatement and back pay, he sought consequential damages in court under Bivens. Based, in part, on the comprehensive administrative scheme for redressing these grievances, the Supreme Court refused to imply a damage remedy:

The question is not what remedy the court should provide for a wrong that would otherwise go

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