McGowan v. United States

• Decision Date: 07 June 2016
• Docket Number: August Term, 2015,Docket No. 15-1786
• Citation: McGowan v. United States, 825 F.3d 118 (2nd Cir. 2016)
• Parties: Daniel McGowan, Plaintiff–Appellant, v. United States of America, Tracy Rivers, Residential Reentry Manager, Defendants–Appellees, Core Service Group, Inc., Community First Services, Inc., Grace Terry, Facility Director, Massiel Suriel, Case Manager, Unknown United States Marshals, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

825 F.3d 118

Daniel McGowan, Plaintiff–Appellant

v.United States of America, Tracy Rivers, Residential Reentry Manager, Defendants–Appellees

Core Service Group, Inc., Community First Services, Inc., Grace Terry, Facility Director, Massiel Suriel, Case Manager, Unknown United States Marshals, Defendants.

Docket No. 15-1786

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: March 2, 2016

Decided: June 7, 2016

Alexander A. Reinert, New York, NY (David B. Rankin, Rankin & Taylor PLLC, New York, NY, on the brief), for Plaintiff–Appellant.

Elliot M. Schachner, Assistant United States Attorney (Varuni Nelson, Assistant United States Attorney, on the brief), for Robert L. Capers, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Defendants–Appellees.

Before: Katzmann, Chief Judge, Sack and Lohier, Circuit Judges.

Per Curiam:

Plaintiff Daniel McGowan appeals from a judgment of the United States District Court for the Eastern District of New York (Cogan, J. ), entered on April 7, 2015, dismissing his complaint. As relevant here, McGowan asserted claims for violation of his First Amendment rights under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and for false imprisonment and negligence under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 –2680. The district court dismissed McGowan's Bivens claim on the ground that there is no private right of action for violation of a federal prisoner's First Amendment rights. It dismissed McGowan's false imprisonment claim for failure to state a claim upon which relief may be granted and dismissed his negligence claim for lack of subject-matter jurisdiction. We affirm the dismissal of McGowan's negligence claim for lack of subject-matter jurisdiction, and we affirm the dismissal of his remaining claims on alternative grounds.

Background

On June 4, 2007, following his conviction in the United States District Court for the District of Oregon on multiple counts of arson, attempted arson, and conspiracy to commit arson, McGowan was sentenced principally to eighty-four months' incarceration. On December 11, 2012, he was transferred to Brooklyn House Residential Reentry Center (“RRC”) to serve the remainder of his sentence. McGowan alleges that, at Brooklyn House RRC, he received daily work passes, which allowed him to maintain full-time employment as a receptionist, and enjoyed privileges such as weekend home visits, unrestricted use of the internet, a shopping pass, and the opportunity to apply to attend social events.

On April 1, 2013, McGowan published an article on the Huffington Post website under his own byline. See Daniel McGowan, Court Documents Prove I was Sent to a Communications Management Unit (CMU) for my Political Speech , Huffington Post (Apr. 1, 2013, 8:36 AM), http://www.huffingtonpost.com/daniel-mcgowan/communication-management-units_b_2944580.html. In the article, McGowan asserted that, while serving his federal sentence, he had been placed in a highly restrictive Communication Management Unit in retaliation for publishing political opinion pieces. Id.

McGowan alleges that, shortly after his article appeared online, defendant Tracy Rivers, the Residential Reentry Manager at the New York Residential Reentry Management Office of the Bureau of Prisons (“BOP”), determined that he should be issued an incident report and remanded to a federal detention center. The incident report stated that McGowan had violated “BOP Program Statement no. 1480.05 dated September 21, 2000; 540.62 page 5, section (d),” which provided that “an inmate currently confined in an institution may not be employed or act as a reporter or publish under a byline” (the “Byline Regulation”).

However, unbeknownst to Rivers, by the time these events occurred, the Byline Regulation had been rescinded. Specifically, in August 2007, a district court in Colorado held that the Byline Regulation was unconstitutional under the First Amendment. See Jordan v. Pugh , 504 F.Supp.2d 1109, 1124 (D. Colo. 2007). On November 27, 2007, the BOP issued mandatory guidance to its staff instructing them not to enforce it. On April 23, 2010, the BOP published an interim rule rescinding the Byline Regulation, and finalized that rule on May 3, 2012.

McGowan alleges that on April 4, 2013, he was taken from Brooklyn House RRC to the Metropolitan Detention Center and placed in the Special Housing Unit (“SHU”). After McGowan's lawyers contacted the BOP, Kerry P. Kemble, Assistant Administrator of the Residential Reentry Management Branch of the BOP, informed Rivers that the Byline Regulation had been rescinded. Kemble and Rivers agreed to expunge the incident report and return McGowan to Brooklyn House RRC. McGowan returned to Brooklyn House RRC on April 5, 2013, having spent approximately twenty-two hours in the SHU.

McGowan commenced this action on August 20, 2014, and filed his Amended Complaint on November 12, 2014. As relevant here, he asserted claims for: (1) violation of his First Amendment rights against Tracy Rivers under Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ; (2) false imprisonment against the United States under the FTCA; and (3) negligence against the United States under the FTCA. McGowan also brought state law claims against Core Services Group, Inc. d/b/a Community First Services, Inc., the private operator of Brooklyn House RRC; those claims are not at issue in this appeal.²

On March 23, 2015, the district court granted the defendants' motion to dismiss McGowan's Amended Complaint. First, it declined to recognize a Bivens remedy for violations of federal prisoners' First Amendment rights. McGowan v. United States , 94 F.Supp.3d 382, 387–90 (E.D.N.Y. 2015). Second, it held that McGowan failed to state a claim for false imprisonment because, as an inmate serving a lawful sentence, his confinement was “uncategorically privileged.” Id. at 390. Third, it held that it lacked subject-matter jurisdiction to hear McGowan's FTCA negligence claim because there was no “private analogue” to the BOP's allegedly negligent failure to follow its own regulation. Id. at 392–94. Having dismissed all of McGowan's federal claims, the district court declined to exercise supplemental jurisdiction over his state law claims. Id. at 394. This appeal followed.

Discussion

I. Bivens Claim

In Bivens, the Supreme Court recognized “an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs. Corp. v. Malesko , 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (citing Bivens v. Six Unknown Named Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ). We have established a two-step process for determining whether a Bivens remedy is available for an alleged constitutional injury. “First, the court must determine whether the underlying claims extend Bivens into a ‘new context.’ ” Turkmen v. Hasty , 789 F.3d 218, 234 (2d Cir. 2015) (quoting Arar v. Ashcroft , 585 F.3d 559, 572 (2d Cir. 2009) ). If the plaintiff's claims arise in a new context, the court then asks “(a) ‘whether there is an alternative remedial scheme available to the plaintiff,’ and, even if there is not, (b) ‘whether special factors counsel hesitation in creating a Bivens remedy.’ ” Id. (quoting Arar , 585 F.3d at 572 ).

McGowan argues that his claim does not require us to extend Bivens to a new context, and, even if it did, that there is no adequate “alternative remedial scheme” and no “special factor[ ] counsel[ing] hesitation.” Id. Accordingly, he argues, the district court erred in refusing to recognize a Bivens remedy. We need not decide this difficult issue, however, because we conclude that McGowan's Bivens claim fails for the independent reason that defendant Rivers is entitled to qualified immunity.

Although we generally decline to consider arguments that were not passed on by the district court, this principle is prudential, not jurisdictional. See Fabrikant v. French , 691 F.3d 193, 212 (2d Cir. 2012). We retain discretion to consider such arguments based on factors such as “the interests of judicial economy” and “whether the unaddressed issues present pure questions of law.” Bacolitsas v. 86th & 3rd Owner, LLC , 702 F.3d 673, 681 (2d Cir. 2012). Both of these factors are present here. The issue of qualified immunity was presented in the district court, has been fully briefed on appeal, and turns on the purely legal question of whether McGowan alleged a violation of a clearly established right. See Fabrikant , 691 F.3d at 212 (“The matter of whether a right was clearly established at the pertinent time is a question of law.” (quoting Dean v. Blumenthal , 577 F.3d 60, 67 n.6 (2d Cir. 2009) )). It is therefore appropriate for us to consider the defense of qualified immunity on appeal.

“The doctrine of qualified 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.’ ” Wood v. Moss , ––– U.S. ––––, 134 S.Ct. 2056, 2066–67, 188 L.Ed.2d 1039 (2014) (quoting Ashcroft v. al–Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). For a right to be “clearly established,” the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). In making this determination, we consider Supreme Court and Second Circuit precedent as it existed at the time of the challenged conduct. See Garcia v. Does , 779 F.3d 84, 92 (2d Cir. 2014). Nonetheless, the “ ‘absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the...