Butler v. Porter

• Decision Date: 02 June 2021
• Docket Number: No. 19-30029,19-30029
• Citation: 999 F.3d 287
• Parties: Max Ray BUTLER, Plaintiff—Appellant, v. S. PORTER; K. Morgan; Calvin Johnson; Captain Rex ; Caleb Gotreaux; Kaci Maxey; A. White; Christopher Gore ; John Does; SHU Staff; Sia Lieutenant S. Brown; SIS Technician R. Rodriguez; J. Ledoux; F. Coker; C. Robinson; C. Wilson; Unknown Officer; Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

999 F.3d 287

Max Ray BUTLER, Plaintiff—Appellant,

v.S. PORTER; K. Morgan; Calvin Johnson; Captain Rex ; Caleb Gotreaux; Kaci Maxey; A. White; Christopher Gore ; John Does; SHU Staff; Sia Lieutenant S. Brown; SIS Technician R. Rodriguez; J. Ledoux; F. Coker; C. Robinson; C. Wilson; Unknown Officer; Defendants—Appellees.

No. 19-30029

United States Court of Appeals, Fifth Circuit.

FILED June 2, 2021

Thomas S. Leatherbury, Esq., Vinson & Elkins, L.L.P., Dallas, TX, for Plaintiff - Appellant.

Paul C. Quast, U.S. Department of Justice, Washington, DC, Cristina Walker, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Louisiana, Shreveport, LA, for Defendants - Appellees.

Before Owen, Chief Judge, and Dennis and Haynes, Circuit Judges.

Haynes, Circuit Judge:

Max Ray Butler appeals the district court's dismissal of his First Amendment and Due Process claims, denial of his motions for appointment of counsel, and denial of leave to file a surreply and amend his complaint. For the following reasons, we AFFIRM in part and DISMISS in part.

I. Background

Butler, a federal prisoner, filed a civil rights complaint under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), against various staff members ("Defendants") at the Oakdale Federal Correctional Complex. He claimed that he had been held in the prison's Special Housing Unit ("SHU") without due process for over 280 days, which he asserted was not the result of a disciplinary violation. He also claimed that after he filed a grievance concerning his detention, officials manufactured a backdated detention order with deficient or false information. He noted the harsh conditions in SHU and said that his extended confinement there could affect his mental health.

Butler contended that prison officials at Oakdale had deprived him of his due process rights and violated Bureau of Prisons ("BOP") policy by maintaining his close-custody status and by recommending him for a prison transfer despite his verbal and written complaints. He argued that his continued stay in SHU and his transfer to another facility constituted retaliation for his filing of grievances. He alleged that he was deprived of medical care, medications, and eyeglasses in further retaliation. In a supplement, construed as an amended complaint, Butler contended that Defendants were retaliating against him and denying him access to the courts by destroying commissary requests and not allowing him to buy stamps.

Butler filed a series of motions for appointment of counsel, which were all denied by the magistrate judge. He also filed a series of amended complaints adding defendants and further challenging his SHU detention.

The magistrate judge issued a report recommending that most of Butler's claims be dismissed as frivolous, as moot, or as failing to state a claim. In relevant part, the magistrate judge found that Butler had not alleged a denial of due process for his SHU detention because he was able to participate in some activities and had not remained in SHU long enough to trigger a due process interest. The magistrate judge also found that the failure of Oakdale staff to follow BOP policies did not rise to the level of a constitutional violation. However, the magistrate judge found that Butler's assertions of retaliation were sufficient to allege a constitutional violation and recommended that these claims proceed. The magistrate judge ordered Butler to amend his complaint to clarify which defendants had retaliated against him.

Butler objected to the magistrate judge's report. In yet another amended complaint, Butler complained about actions by officials and his continued SHU stay at a new facility in California. He also sought reconsideration of his due process claim.

The magistrate judge issued a supplemental report and recommendation finding that Butler's claims against the defendants in California were not brought in the proper forum and that the claims against the Oakdale defendants not identified as participating in retaliatory acts should also be dismissed. With respect to Butler's motion for reconsideration, the magistrate judge found that his argument relating to the duration of time spent in SHU did not entitle him to relief because he still had not met the threshold for atypical close custody. The district court adopted the magistrate judge's original and supplemental reports and dismissed Butler's claims, other than the one for retaliation, under 28 U.S.C. § 1915(e)(2)(B).

Defendants moved to dismiss Butler's retaliation claims under Federal Rule of Civil Procedure 12(b)(6). They argued that, in accordance with the reasoning in Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017), the district court should decline to extend Bivens to address claims of First Amendment retaliation.

In addition to responding (and then filing a later-stricken surreply), Butler also moved for leave to amend his complaint after the magistrate judge issued a third and final report and recommendation. The magistrate judge originally granted Butler's motion, but later rescinded that order, noting that no amendment had been attached and concluding that despite having "multiple opportunities to amend his complaint already," Butler did "not provide adequate excuse for his failure to uncover the legal standards for the claims he first asserted ... over twenty months ago." Butler later moved for leave to amend again, which the district court denied.

The district court then dismissed Butler's remaining retaliation claim for failure to state a claim for relief under Rule 12(b)(6). Butler filed a timely notice of appeal and was later appointed counsel. He now challenges (1) the district court's refusal to extend Bivens to his First Amendment retaliation claim; (2) the district court's rejection of his due process claim arising from his stay in the SHU; (3) the magistrate judge's denials of his motions for appointment of counsel; and (4) the district court's denials of his motions for leave to file a surreply and an amended complaint.

II. Standard of review

We review a Rule 12(b)(6) dismissal de novo, "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff[ ]." Gonzalez v. Kay , 577 F.3d 600, 603 (5th Cir. 2009) (internal quotation marks and citation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A pro se litigant's pleadings are construed liberally. Haines v. Kerner , 404 U.S. 519, 520–21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

The Prison Litigation Reform Act ("PLRA") requires a district court to dismiss a prisoner's in forma pauperis civil rights complaint if the court determines that the action is frivolous or fails to state a claim upon which relief may be granted. Black v. Warren , 134 F.3d 732, 733 (5th Cir. 1998) (per curiam); see 28 U.S.C. § 1915(e)(2)(B)(i)–(ii). We review a § 1915(e)(2)(B)(i) dismissal as frivolous for abuse of discretion. Black , 134 F.3d at 734. We review dismissals under § 1915(e)(2)(B)(ii) for failure to state a claim de novo, using the same standard applicable to Rule 12(b)(6) dismissals. Id.

We review a district court's decision on whether to permit a surreply for abuse of discretion. See Austin v. Kroger Tex., L.P. , 864 F.3d 326, 336 (5th Cir. 2017) (per curiam). We similarly review a district court's denial of leave to file an amended complaint for abuse of discretion.

Lowrey v. Tex. A & M Univ. Sys. , 117 F.3d 242, 245 (5th Cir. 1997).

III. Discussion

A. Bivens

Butler first challenges the district court's conclusion that Bivens did not create an implied cause of action for his First Amendment retaliation claim. We recently addressed this issue and declined to extend Bivens to First Amendment retaliation claims. Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons , No. 19-40869, 998 F.3d 682, 685–86 (5th Cir. May 24, 2021). That holding binds us here.

Bivens recognized an implied cause of action against federal employees for unreasonable searches and seizures in violation of the Fourth Amendment. 403 U.S. at 389, 91 S.Ct. 1999. Thereafter, the Supreme Court extended Bivens in only two more cases: Davis v. Passman , 442 U.S. 228, 248-49, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (gender discrimination in violation of the Fifth Amendment) and Carlson v. Green , 446 U.S. 14, 16–18, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (failure to treat a prisoner's medical condition in violation of the Eighth Amendment). See Abbasi , 137 S. Ct. at 1855 ("These three cases— Bivens , Davis , and Carlson —represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself."). It has "never held that Bivens extends to First Amendment claims." Reichle v. Howards , 566 U.S. 658, 663 n.4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012). Indeed, in recent decades, the Supreme Court has "consistently refused to extend Bivens to any new context." Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (emphasis added); accord Abbasi , 137 S. Ct. at 1857 (noting that the Court has refused to recognize new Bivens actions "for the past 30 years" and listing a series of cases involving such refusals).

In Abbasi , the Court stated that "[w]hen a party seeks to assert an implied cause of action under the Constitution itself ... separation-of-powers principles are or should be central to the analysis. The question is who should decide whether to provide for a damages remedy, Co...