Dixon v. von Blanckensee

• Decision Date: 12 April 2021
• Docket Number: August Term, 2020,Docket No. 20-1651-pr
• Citation: 994 F.3d 95
• Parties: Male DIXON, aka James King, Plaintiff - Appellee, v. Warden Barbara VON BLANCKENSEE, Individually, Defendant - Appellant.
• Court: U.S. Court of Appeals — Second Circuit

994 F.3d 95

Male DIXON, aka James King, Plaintiff - Appellee,

v.Warden Barbara VON BLANCKENSEE, Individually, Defendant - Appellant.^*

Docket No. 20-1651-pr

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: March 12, 2021

Decided: April 12, 2021

Steven J. Kochevar, Assistant United States Attorney, for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Defendant - Appellant.

David C. Russell (Kent A. Yalowitz, on the brief), Arnold & Porter Kaye Scholer LLP, New York, NY for Plaintiff - Appellee.

Samuel Weiss, Washington, D.C., for Amicus Curiae Rights Behind Bars.

Before: Lynch and Bianco, Circuit Judges, and Halpern, District Judge.^**

Gerard E. Lynch, Circuit Judge:

This case stems from actions that allegedly occurred during a civil case that Plaintiff-Appellee James King¹ filed in the Court of Common Pleas of Luzerne County, Pennsylvania, in 2015. At the time of that filing, King was serving a sentence at the Federal Correctional Institution at Otisville, New York ("FCI Otisville"). King's complaint alleged that Pennsylvania state officials violated his rights by using excessive force during an arrest. In the course of proceedings in that case, a state court judge issued a "transport order" that purported to "authorize[ ]" officials at FCI Otisville to "release [King] into the temporary custody of the Sheriff of Luzerne County ... for the purpose of attending a hearing scheduled for January 26, [2016]." J. App'x at 19. Warden Barbara von Blanckensee did not transport King to the hearing; instead, arrangements were made for King to appear telephonically. King's complaint was ultimately dismissed.

King, proceeding pro se, filed the instant action against von Blanckensee in her official and individual capacities asserting violations of his First, Fifth, Sixth, and Seventh Amendment rights stemming from her failure to transport him to his hearing and requesting money damages under 42 U.S.C. § 1983 and 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). Warden von Blanckensee moved to dismiss the complaint, and the United States District Court for the Southern District of New York (Nelson S. Román, J. ) dismissed all of King's claims except for his First and Fifth Amendment claims. She then moved for reconsideration, and the district court dismissed King's First Amendment claim.²

Warden von Blanckensee appeals the district court's denial of qualified immunity as to King's Fifth Amendment claim against her. She argues that, as a matter of law, King has failed to allege a violation of a clearly established constitutional right and she is thus entitled to qualified immunity. We agree. Accordingly, we REVERSE the orders of the district court to the extent that they denied von Blanckensee's motion to dismiss King's Fifth Amendment Bivens claim and REMAND this case with instructions to dismiss that claim.

BACKGROUND

I. The State Court Proceedings and King's Federal Complaint

While incarcerated at FCI Otisville, King, acting pro se, filed a complaint in Pennsylvania state court alleging that Pennsylvania police officers used excessive force against him during the course of an arrest. The presiding state judge scheduled a pre-trial conference to be held on January 26, 2016 and issued a "transport order" stating in relevant part that:

the Superintendent of FCI Otisville is hereby authorized to release into the temporary custody of the Sheriff of Luzerne County or his proper Deputies for the purpose of attending a hearing scheduled for January 26, [2016] at 1:00 p.m. at the Luzerne County Courthouse, 200 North River Street, Wilkes-Barre, Pennsylvania 18711 before the Honorable Tina Polachek Gartley.

Defendant shall be housed at the Luzerne County Correctional Facility until further Order of this Court.

J. App'x at 19 (emphasis omitted).

King was not transported to that hearing. Instead, von Blanckensee (or other officials at the prison subordinate to her) arranged for him to appear telephonically. King's state-court complaint was ultimately dismissed as barred by the statute of limitations, for failure to state a claim, and for failure to effectuate service on the defendants.

On September 25, 2017, King filed the instant action in the Southern District of New York. King's Second Amended Complaint ("SAC"), filed February 5, 2018, asserts violations of his First, Fifth, Sixth, and Seventh Amendment rights stemming from von Blanckensee's failure to transport him to his hearing. He alleges that von Blanckensee "refused to obey a court order" that "directed her to deliver [him] to the court by allowing the local Sheriff to take custody and control of [him]." Id . at 16. King further alleges that "[t]here existed no legal reason for the defendant [to refuse] to permit [him] to attend the scheduled court proceeding." Id . "Consequently," King alleges, "the ... lawsuit was dismissed due to the defendant's conduct." Id .

II. Proceedings in the District Court

On October 16, 2018, von Blanckensee moved to dismiss the SAC. She argued that any claims made against her in her official capacity were barred by sovereign immunity, that Bivens should not be extended to provide a cause of action for money damages against her in her personal capacity, that King failed to state any claim for relief, and that, in any event, she is protected by qualified immunity.

On June 11, 2019, the district court granted the motion in part and denied it in part. The district court held that King could not sue von Blanckensee in her official capacity, that § 1983 does not provide a remedy against a federal officer, and that King failed to allege a violation of his Sixth and Seventh Amendment rights. However, the court allowed King to proceed with his Bivens claim for violations of his First and Fifth Amendment rights.

In its order, the court construed King's pro se complaint liberally. It characterized King's complaint as alleging that "Defendant retaliated against [King] for filing a lawsuit by preventing him [from] attending his scheduled court proceedings" for no reason "other than retaliation, spite, and her desire to inflict punishment on him" in violation of King's First Amendment right to petition the government for redress. Id . at 50. Further, the "Complaint alleges that [King] was denied meaningful access to the courts" because of von Blanckensee's "unilateral[ ] and arbitrar[y]" decision not to comply with the state court transfer order in violation of King's Fifth Amendment right to due process. Id . at 39-41. Accepting those allegations as true, the district court held that King properly pleaded claims under the First and Fifth Amendments.

Warden von Blanckensee timely moved for reconsideration, arguing, inter alia, that the district court failed to address qualified immunity in its order addressing the motion to dismiss. On June 18, 2019, the district court sua sponte directed the Clerk of Court to seek pro bono counsel to assist King in opposing the motion for reconsideration.

On October 7, 2019, King, through pro bono counsel, opposed the motion for reconsideration.³ On March 26, 2020, the district court again granted the motion in part and denied it in part. First, the district court held that King failed to refute von Blanckensee's qualified immunity defense as to his First Amendment claim and granted the motion as to that claim. The district court, however, denied the defense as to King's Fifth Amendment claim because, in its view, King might be able to defeat the defense after eliciting further facts through discovery. This appeal followed.

DISCUSSION

Warden von Blanckensee argues that King's allegations, taken as true, do not state a violation of his Fifth Amendment right to due process because federal officials do not need to abide by orders from a state court. Next, she contends that even if the acts alleged by King did violate the Constitution, the law was not clearly established at the time of that violation. Lastly, von Blanckensee argues that Bivens should not be extended to this context.⁴

I. Standards of Review

"We review a district court's denial of qualified immunity on a motion to dismiss de novo, ‘accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs’ favor.’ " Garcia v. Does , 779 F.3d 84, 91 (2d Cir. 2015), quoting Johnson v. Newburgh Enlarged Sch. Dist. , 239 F.3d 246, 250 (2d Cir. 2001). Because King filed his complaint pro se, we construe it liberally. See Tracy v. Freshwater , 623 F.3d 90, 101 (2d Cir. 2010) (describing the "special solicitude" that this Court affords to pro se litigants).

II. Qualified Immunity

"[Q]ualified immunity protects government officials from liability for civil damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." McGowan v. United States , 825 F.3d 118, 124 (2d Cir. 2016) (internal quotation marks omitted). At the motion to dismiss stage, the qualified immunity defense "faces a formidable hurdle ... and is usually not successful" because it is the defendant that must plead and prove the defense. Estate of Chamberlain v. City of White Plains , 960 F.3d 100, 111 (2d Cir. 2020), quoting Field Day, LLC v. County of Suffolk , 463 F.3d 167, 191-92 (2d Cir. 2006). However, "[i]f the complaint does not allege a cognizable federal claim, the defendant is entitled to have his qualified-immunity motion granted promptly as a matter of law." Munafo v. Metro. Transp. Auth. , 285 F.3d 201, 211 (2d Cir. 2002).

To determine whether King has alleged a cognizable claim we "accept as true, as we must, all well-pleaded factual allegations in the complaint." Chamberlain , 960 F.3d at 103 n.8. We need not consider "conclusory allegations or legal conclusions couched as factual allegations."...