Cale v. Johnson
| Decision Date | 17 November 1988 |
| Docket Number | No. 87-1970,87-1970 |
| Parties | Louis CALE, Plaintiff-Appellant, v. J.R. JOHNSON, Warden, F.C.I.; et al., Defendants, James Wahl, Food Service Administrator, F.C.I., Milan, and Melvin Persky, Inmate and Clerk to James Wahl, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Martin A. Geer, Eric M. Acker, Mark Bernstein, University of Michigan Law School, Clinical Law Program, Paul D. Reingold (argued), Ann Arbor, Mich., for plaintiff-appellant.
Geneva S. Halliday (argued), Asst. U.S. Atty., Detroit, Mich., for defendants-appellees.
Before MARTIN and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.
Louis Cale appeals from the district court's grant of summary judgment in this Bivens action. 1 For the following reasons, we reverse the district court's judgment and remand this case for further proceedings.
Appellant Louis Cale was an inmate at the Federal Correctional Institution at Milan, Michigan (F.C.I. Milan) on November 19, 1982. On that date, at approximately 10:15 a.m. Cale took the diet line lunch tray which he had just been served and complained to the associate warden of operations, Jack Fevurly, concerning the poor quality of food in the diet line. Shortly thereafter, Fevurly met with the administrator of food service, James Wahl, and informed him of Cale's complaint. According to the deposition of the cook foreman, Mikko Peterson, who testified that he had heard this conversation, Wahl responded to Fevurly that he would have Cale locked up and that that would be the end of Cale's complaints. Peterson also deposed that he heard Wahl inform duty correctional supervisor Jerry Wells that Wells was going to "get the duces" 2 at about three o'clock and that Cale was going to be locked up.
At approximately 3:00 p.m., there was an incident in the diet line which led to the filing of disciplinary charges against Cale and Cale's administrative detention. At that time, allegedly under Wahl's direction, inmate Melvin Persky, who worked in the kitchen, approached Cale from behind and placed a small package in his pocket. Cale began shouting repeatedly, "You're trying to set me up." Cale was approached by safety and occupational health specialist Harry Farris who placed his hand around the upper portion of Cale's arm to get his attention. Cale stated to Farris, At that time, Wahl shouted at Farris to get the packet from Cale. Farris did not know what Wahl meant by this statement, but Cale threw a piece of paper which was folded in a small square on the top of the main serving line directly in front of Farris. This packet subsequently was determined to contain marijuana. Cale again became very agitated and shouted accusations at Persky.
Wells, the duty correctional supervisor, was called to the scene of the incident. He ordered correctional officers to escort Cale to administrative detention and instructed Wahl to file an incident report documenting the appropriate charges. Cale was thought to have been in possession of marijuana, and he had made threats toward others; therefore, Wells believed that if Cale had been allowed to remain in the general population the lives of others or his own life might have been in jeopardy.
Cale remained in administrative segregation through November 22, 1982, when an investigation of the incident was completed. On November 24, 1982, a three-member unit discipline committee which had considered the incident report written against Cale charging him with threatening another with bodily harm and possession of narcotics concluded that Cale had not committed a violation of the bureau of prison's disciplinary policy. No sanctions were imposed on Cale by the committee. The incident report would have been expunged, but it was retained at Cale's request.
On January 14, 1983, Cale filed a pro se Bivens action, alleging conspiracy to violate procedural and substantive due process and cruel and unusual punishment. Original defendants included Warden J.R. Johnson, Fevurly, Wells, Wahl, and Persky.
On September 18, 1983, the district court granted summary judgment in favor of Johnson, Fevurly, and Wells. Wahl renewed his motion for summary judgment. Thereafter, on August 28, 1985, the district court adopted a magistrate's report and recommendation which recommended denial of Wahl's second motion for summary judgment. According to the magistrate, Cale's procedural due process and eighth amendment theories were without merit. However, the magistrate continued,
On May 28, 1986, this case was transferred from the docket of the Honorable Charles Joiner to that of the Honorable George LaPlata. Subsequently, Wahl filed a third motion for summary judgment. Thereafter, on September 17, 1987, the district court granted Wahl's motion for summary judgment, sua sponte granted summary judgment in favor of inmate Persky, 3 and dismissed the complaint.
Cale filed this timely appeal. We are asked to decide whether the district court erred in granting summary judgment in favor of Wahl and Persky. Preliminarily, we must consider our authority to entertain a Bivens action in this context.
In Schweiker v. Chilicky, --- U.S. ----, 108 S.Ct. 2460, 101 L.Ed.2d 370 (1988), the Supreme Court recently reconsidered the proper scope of Bivens actions. 4 In that case, the Court evaluated its authority to entertain Bivens actions as follows:
In 1971, this Court held that the victim of a Fourth Amendment violation by federal officers acting under color of their authority may bring suit for money damages against the officers in federal court. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 [91 S.Ct. 1999, 29 L.Ed.2d 619]. The Court noted that Congress had not specifically provided for such a remedy and that 'the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation.' Nevertheless, finding 'no special factors counselling hesitation in the absence of affirmative action by Congress,' and 'no explicit congressional declaration' that money damages may not be awarded, the majority relied on the rule that ' "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." '
So-called 'Bivens actions' for money damages against federal officers have subsequently been permitted under Sec. 1331 for violation of the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228 [99 S.Ct. 2264, 60 L.Ed.2d 846] (1979), and the Cruel and Unusual Punishment Clause of the Eighth Amendment, Carlson v. Green, 446 U.S. 14 [100 S.Ct. 1468, 64 L.Ed.2d 15] (1980). In each of these cases, as in Bivens itself, the Court found that there were no 'special factors counselling hesitation in the absence of affirmative action by Congress,' no explicit statutory prohibition against the relief sought, and no exclusive statutory alternative remedy.
Our more recent decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts. The absence of statutory relief for a constitutional violation, for example, does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation. Thus, in Chappell v. Wallace, 462 U.S. 296 [103 S.Ct. 2362, 76 L.Ed.2d 586] (1983), we refused--unanimously--to create a Bivens action for enlisted military personnel who alleged that they had been injured by the unconstitutional actions of their superior officers and who had no remedy against the Government itself....
....
See also United States v. Stanley, 483 U.S. ----, ---- [107 S.Ct. 3054, 3062, 97 L.Ed.2d 550] (1987) ().
Similarly, we refused--again unanimously--to create a Bivens remedy for a First Amendment violation 'aris[ing] out of an employment relationship that is governed by comprehensive procedural and substantive provisions given meaningful remedies against the United States.' Bush v. Lucas, 462 U.S. 367, 368 [103 S.Ct. 2404, 2406, 76 L.Ed.2d 648] (1983).
....
In sum, the concept of 'special factors counselling hesitation in the absence of affirmative action by Congress' has proved to include an appropriate judicial deference to indications that congressional inaction has not been inadvertent. When the design of a government program suggests that Congress has provided what it considers adequate remedial mechanisms for constitutional violations that may occur in the course of its administration, we have not created additional Bivens remedies.
Id. 108 S.Ct. at 2466-68 (some citations omitted). In Chilicky, the Court held that the improper denial of Social Security disability benefits allegedly resulting from due process violations by the petitioners in their administration of the continuing disability review program could not give rise to a Bivens action.
Of the Bivens actions considered by the Supreme Court, the instant case is most similar to Carlson v. Green. In that case, a Bivens action was brought against federal prison officials for violation of a prisoner's eighth amendment rights. The Court permitted a Bivens action in that context, reasoning as follows:
First, the case involves no special factors counselling hesitation in the absence of affirmative action by Congress. Petitioners do not enjoy such independent status in our constitutional scheme as to suggest that...
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