Mack v. Yost

• Decision Date: 04 August 2020
• Docket Number: No. 18-3504,18-3504
• Citation: 968 F.3d 311
• Parties: Charles MACK v. John YOST, Tim Khun and Jeffrey Stephens, sued in their individual and official capacities; and Doug Roberts and Samuel Venslosky, sued in their individual capacities Jeffrey Stephens, Samuel Venslosky, and Douglas Roberts, Appellants
• Court: U.S. Court of Appeals — Third Circuit

968 F.3d 311

Charles MACK

v. John YOST, Tim Khun and Jeffrey Stephens, sued in their individual and official capacities; and Doug Roberts and Samuel Venslosky, sued in their individual capacitiesJeffrey Stephens, Samuel Venslosky, and Douglas Roberts, Appellants

No. 18-3504

United States Court of Appeals, Third Circuit.

Argued April 23, 2020

Opinion Filed: August 4, 2020

Sarah Czypinski (Argued), John M. Hagan, K&L Gates LLP, K&L Gates Center, 210 Sixth Avenue, Pittsburgh, PA 15222, Counsel for Appellee

Courtney Dixon (Argued), Sharon Swingle, Barbara Herwig, Appellate Staff, U.S. Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530, Laura S. Irwin, Ira M. Karoll, Office of the United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellant

Before: PORTER, RENDELL, and FISHER, Circuit Judges

OPINION

RENDELL, Circuit Judge:

Although Congress has never enacted a statute permitting a damages remedy for constitutional claims brought against federal officials, the Supreme Court first recognized an implied damages action for such claims under the Fourth Amendment in 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). The Supreme Court has since recognized an implied damages remedy in only two other instances.¹ Most recently, in Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 198 L.Ed.2d 290 (2017), the Supreme Court cautioned against creating additional implied damages remedies and explicitly declared Bivens expansion a "disfavored judicial activity." Id . at 1857 (internal quotations omitted).

Here, Charles Mack, a former inmate, seeks to bring a First Amendment retaliation claim against federal prison officials, alleging that he was terminated from his prison job for complaining that correctional officers were harassing him at work because of his religion. In light of Abbasi and our recent precedents, we decline to expand Bivens to create a damages remedy for Mack's First Amendment retaliation claim. For the following reasons, we will reverse the District Court's denial of the Government's motion for summary judgment as to this claim.

I. BACKGROUND

A. Factual Background

Mack is a practicing Muslim and a former inmate at the Federal Correctional Institution in Loretto, Pennsylvania. While an inmate, Mack worked for pay at the prison's commissary from May 26, 2009 until he was terminated on October 21, 2009. During this time, Doug Roberts and Samuel Venslosky were correctional officers at the prison and were assigned to supervise the inmates working in the prison's commissary. Mack alleges that while working in the commissary, he was harassed by Roberts and Venslosky because he is a Muslim. Specifically, Mack alleges that Roberts told him, "I don't like Muslims" and "[t]here is no good Muslim except a dead Muslim." App. 8. Mack also alleges that Roberts placed a sticker on Mack's back which read, "I love pork bacon." Id . Mack further alleges that Roberts and Venslosky purposefully attempted to disrupt his prayers, causing Mack to limit his prayers during work.

Mack alleges that he raised these issues with Roberts and Venslosky's supervisor, Jeffrey Stephens, who responded that he would "look into it." Id . Mack alleges that upon overhearing Mack's oral complaint to Stephens, Roberts told Mack, "[y]ou are not going to be here long." Id . Venslosky fired Mack less than two weeks later.

Mack filed an inmate request-to-staff form seeking a written explanation for his termination. The prison informed Mack in writing that he had been fired for bringing another inmate's commissary slip into work. Mack denies ever doing so. Mack then filed a formal administrative remedy request, alleging that he was wrongfully terminated from his work assignment. The Acting Warden informed Mack that his allegation was "referred to the appropriate office for investigation." App. 62. Mack was later informed that his request for an administrative remedy was denied. Mack then filed this federal lawsuit.

B. Procedural History

Mack filed a First Amendment retaliation claim against the prison officials,² alleging that he was wrongfully terminated for orally complaining to Stephens about Venslosky's and Roberts's religious harassment.³ The District Court adopted the Magistrate Judge's recommendation to dismiss Mack's complaint for failure to state a claim and dismissed the complaint without leave to amend. Mack appealed the District Court's dismissal, and we reversed and remanded to the District Court, concluding that Mack should have been granted leave to amend. Mack v. Yost , 427 F. App'x 70, 72 (3d Cir. 2011) ( Mack I ). Mack filed an amended complaint and the District Court dismissed the amended complaint for failure to state a claim. Mack v. Yost , 979 F. Supp. 2d 639, 652 (W.D. Pa. 2013). Mack again appealed the District Court's dismissal, and we reversed in Mack v. Warden Loretto FCI , 839 F.3d 286 (3d Cir. 2016) ( Mack II ).

In Mack II , we considered whether Mack presented a cognizable First Amendment retaliation claim under Bivens . Id . at 296. We first noted that while the Supreme Court never "formally extended" Bivens actions to include First Amendment claims, the Court seemed to imply in Hartman v. Moore , 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), that such actions were available. 839 F.3d at 296. Lacking clear guidance from the Supreme Court, we then turned to our Court's prior precedents. We first referred to our decision in Paton v. La Prade , 524 F.2d 862 (3d Cir. 1975), which involved an intrusive FBI investigation of a high school student who had mailed a letter to the Socialist Workers Party as a part of a class assignment. Id. at 865-66. We recognized the student's right to proceed with a damages remedy against the FBI agents for denial of First Amendment free speech, noting that the factors which weighed in favor of recognizing a damages action for Fourth Amendment violations in Bivens applied equally to First Amendment violations. Id . at 869-70. We then cited to our decision in Milhouse v. Carlson , 652 F.2d 371 (3d Cir. 1981), which relied upon La Prade to recognize a First Amendment retaliation claim brought in the prison context. There, a federal inmate alleged that he was transferred to a less desirable prison cell location in retaliation for initiating a lawsuit against prison officials to remedy his religious grievances. Id . at 372-73. We held that the inmate could bring a First Amendment Bivens action against the prison officials who sought to punish him for initiating the civil rights action. Id . at 374.

So, at the time that Mack II was decided, we had clearly recognized an implied right to damages to remedy First Amendment violations and had no indication from the Supreme Court that we should exercise restraint in expanding Bivens in this context. Relying upon our prior precedents which had "explicitly recognized" a Bivens remedy under the First Amendment, we recognized a cause of action for Mack's First Amendment retaliation claim under Bivens . Mack II , 839 F.3d at 296-97. We also held that the prison officials were not entitled to qualified immunity as to this claim because it was clearly established that inmates have a right to be free from retaliation for exercising their First Amendment rights. Id. at 300. Accordingly, we remanded to the District Court and the parties proceeded to discovery. Id. at 301.

The Government then moved for summary judgment, arguing that the Supreme Court's decision in Abbasi —decided after our decision in Mack II —alters our analysis under Bivens and forecloses Mack's First Amendment retaliation claim. Abbasi involved six men of Arab or South Asian descent, five of whom were Muslim, who had been detained for several months in the wake of the September 11, 2001 terrorist attacks. 137 S. Ct. at 1853. The detainees brought a Bivens action against federal officials under the Fourth and Fifth Amendments, challenging high-level executive detention policies and confinement conditions within the detention facility. Id.

The Court of Appeals for the Second Circuit determined that the claims did not present a new Bivens context. See id. at 1852. The Second Circuit relied on its own prior precedents and the Supreme Court's decision in Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), which recognized a Bivens remedy for an Eighth Amendment prisoner mistreatment claim.⁴ Turkmen v. Hasty , 789 F.3d 218, 235 (2d Cir. 2015), rev'd in part, vacated in part sub nom. Abbasi , 137 S. Ct. 1843. Because the claims did not present a "new context," the Second Circuit held that a Bivens remedy was available against the federal officials for the detention policy and detainee abuse claims. Id . at 236-37. In Abbasi , the Supreme Court reversed the Second Circuit's decision regarding the detention policy claim and vacated and remanded the holding regarding the detainee abuse claim. 137 S. Ct. at 1869.

Abbasi reflected a "notable change" in the Supreme Court's attitude toward creating an implied damages remedy directly from the Constitution and declared that Bivens expansion is now "disfavored." Id . at 1857. To curtail improper Bivens expansion, Abbasi provided a restrictive two-step framework for courts to follow when analyzing Bivens claims. First, courts must determine whether the Bivens claim presents a "new context." Id . at 1859. The Supreme Court defined "new context" broadly, indicating that "a modest extension is still an extension." Id . at 1864. Abbasi instructed that a context is "new" if it "is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court." Id . at 1859. The Supreme Court thus rejected the Second Circuit's reliance upon Second Circuit precedent in the "new context" inquiry. As to the Second Circuit's view that the context was not new based on Carlson , the Supreme Court acknowledged that the differences...