Sharp v. Numsen
| Decision Date | 21 March 2022 |
| Docket Number | 18-cv-195-wmc |
| Court | U.S. District Court — Western District of Wisconsin |
| Parties | ROBERT SHARP, Plaintiff, v. JOHN NUMSEN, T. ROBERTS, LOUIS WILLIAMS, II, SARA REVELL, and IAN CONNORS, Defendants. |
Pro se plaintiff Robert Sharp is proceeding under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1974), claiming that a prison mailroom supervisor interfered with his legal mail while a federal prisoner at the Federal Correctional Institution in Oxford, Wisconsin, in violation of the First Amendment, and that four, other defendants did as well by declining to intervene. Defendants have since filed a motion to dismiss, which asserts a combination of defenses under Federal Rule of Civil Procedure 12(b). Specifically, the out-of-state Bureau of Prisons (“BOP”) defendants, Revell and Connors, seek dismissal under Rule 12(b)(2) for lack of personal jurisdiction as a threshold matter, while all defendants seek dismissal of plaintiff's complaint for failure to state a claim under Rule 12(b)(6). (Dkt. #25.) The court agrees and will dismiss (1) without prejudice the claims against the BOP defendants for lack of personal jurisdiction and (2) with prejudice the claims against the Oxford defendants, Numsen, Roberts and Williams, because Bivens does not extend to the circumstances of this case. Because all defendants will be dismissed and this case closed, the court will also deny as moot plaintiff's pending motions for a preliminary injunction (dkt. #21) and for assistance in recruiting counsel (dkt. #31).
ALLEGATIONS OF FACT[1]
Sharp is currently incarcerated at the McDowell Federal Correctional Institution located in Welch, West Virginia. At all times relevant to this lawsuit, he was incarcerated at the Oxford Federal Correctional Institution (“FCI-Oxford”). The defendants working at FCI-Oxford are: John Numsen, the prison mailroom supervisor Tiffany Roberts, a legal administrative assistant for inmates complaints; and Louis Williams II, the warden. Sharp is also proceeding against two BOP administrators: Defendant Sara Revell was, at all times relevant to this lawsuit, the Regional Director for the North Central Region with her business office in Kansas City, Kansas (dkt. #27); and defendant Ian Connors is the National Inmate Appeals Administrator who oversees the BOP's grievance process at the national level from the BOP Central Office in Washington, D.C. (dkt. #28 at 2).
Both Revell and Connors assert that they have never resided, worked, been professionally licensed in, or owned real property in Wisconsin. (Dkt. ##27, 28 at 2.) Revell further maintains that she has never attended school in Wisconsin either. (Dkt. #27.) For his part, Connors indicates that he earned a master's degree from the University of Wisconsin-Platteville, but through an online distance education program while living in California. (Dkt. #28 at 2.)
Sharp alleges that defendant Numsen improperly processed some of his legal mail at FCI-Oxford while he was still appealing his criminal conviction. After being transferred from FCI-Oxford to Iowa to face new criminal charges in 2015, Sharp returned to FCI-Oxford in December 2016 following his conviction. Sharp then appealed his Iowa criminal conviction, and in February 2017, he began receiving letters from his appellate counsel, as well as both state and federal courts and two state attorney disciplinary boards. Sharp's lawyers would mark their envelopes either as “special mail” or “legal mail” intended to be opened only in Sharp's presence. Although Sharp does not allege that his lawyers expressly identified themselves as lawyers on these envelopes, they at least included the name and address of the sender law firm or legal aid organization along with the lawyer's name. Sharp's court mail from the United States Court of Appeals for the Eighth Circuit was also marked as “legal mail” to be opened in Sharp's presence, while mail from other courts and the disciplinary boards indicated the name and address of that sender institution. (Dkt. #21-2.)
That same month, Sharp informed Oxford's prison mailroom supervisor Numsen that the first few letters sent by his appellate lawyers had been opened outside his presence by mailroom staff. Sharp also showed Numsen the envelopes and provided Numsen with his lawyers' names, addresses and phone numbers, as well as caselaw instructing “how prisons should treat privileged legal mail from attorneys and courts.” (Dkt. #1 at 2.) However, Numsen responded that he was already following BOP policy and would continue to do so. When Sharp subsequently informed Numsen that staff had now opened six attorney letters in Sharp's presence that were stamped and addressed identically to those opened outside his presence, Numsen acknowledged that none of the legal letters should have been opened outside of Sharp's presence.
Sharp also turned in frustration to FCI-Oxford's legal department in March 2017, filing grievances about his opened mail. However, mailroom assistant Roberts allegedly refused to sign off on Sharp's grievances or otherwise intervene, again stating that FCI-Oxford was following BOP policy. Warden Williams allegedly gave the same response in July 2017, when one of Sharp's attorneys also notified him that prison staff were opening Sharp's legal mail outside his presence. Next, in July 2017, a corrections counselor allegedly gave Sharp two opened attorney letters that the mailroom supervisor Numsen left while the counselor was out of the office. According to Sharp, one letter “was 7 days past the post mark, ” the other “was 18 days past [its] post mark, ” and both letters contained time-sensitive affidavits that had to be returned to his attorney immediately. (Id. at 3.) Sharp then sent a grievance to defendant Revell as the Regional Director for the BOP's North Central Region in September 2017, alleging that FCI-Oxford's mailroom supervisor Numsen and his staff were opening Sharp's legal mail outside his presence. Sharp received a response back less than a month later indicating that staff was opening his mail in accordance with BOP policy. (Dkt. #27-1.) While Revell asserts that she had “general supervisory responsibility for facilities and inmate care at FCI Oxford, ” she generally “did not exercise control over the day-to-day operations” or personally sign responses to administrative remedy appeals, and specifically did not review or deny Sharp's appeal. (Dkt. #27.) Although Revell acknowledges that her name appears in the signature block of the response to Sharp's appeal, she also explains that the signature itself is that of a non-defendant, deputy regional director to whom Revell assigned her signature authority. (Id.) As the BOP's National Inmate Appeals Administrator, defendant Connors similarly responded in kind to the October 20, 2017, grievance he later received from Sharp.
Finally, while the Eighth Circuit affirmed his Iowa criminal conviction in February 2018, Sharp now suggests that defendant Numsen, having opened some of Sharp's legal mail while the appeal was pending, showed “an overzealous interest” in his appeal and “may have shared privileged information with the agency prosecuting” him. (Dkt. #1 at 5.)
Sharp filed this lawsuit in March 2018 under 42 U.S.C. § 1983, alleging that all defendants violated his First and Sixth Amendment rights. The court screened Sharp's complaint as required by 28 U.S.C. § 1915A and evaluated his claims under Bivens because § 1983 does not apply to federal actors. (Dkt. #15 at 1.) The court allowed Sharp to proceed only on his First Amendment claim that: (1) FCI-Oxford's mailroom supervisor Numsen repeatedly either opened his mail outside his presence or delayed the delivery of Sharp's correspondence from his attorneys; and (2) the other defendants (Roberts, Williams, Revell and Connors) each validated Numsen's unconstitutional behavior. (Id. at 8.) The court cautioned, however, that the United States Supreme Court had yet to declare a First Amendment claim actionable under Bivens. (Id. at 4.) In lieu of answering the complaint, defendants moved to dismiss.
OPINIONAs noted, all defendants seek dismissal under Rule 12(b)(6), arguing that plaintiff's First Amendment claim is not available under Bivens.[2] The two BOP defendants (Revell and Connors) also seek dismissal for lack of personal jurisdiction under Rule 12(b)(2). The court will address each argument in turn.
A motion to dismiss under Rule 12(b)(6) is designed to test the complaint's legal sufficiency. See Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss under Rule 12(b)(6), ” a plaintiff must allege sufficient facts to “state a claim for relief that is plausible on its face.” Spierer v. Rossman, 798 F.3d 502, 510 (7th Cir. 2015). Moreover, a Rule 12(b)(6) motion is the proper means for dismissal when Bivens does not authorize a claim. See Massey v. Helman, 196 F.3d 727, 738 (7th Cir. 1999) ().
In Bivens, the Supreme Court recognized an implied cause of action for damages against federal officers for a constitutional violation. Engel v. Buchan, 710 F.3d 698, 703 (7th Cir. 2013). However, the Supreme Court has only allowed an implied damages remedy under Bivens in three cases: (1) a Fourth Amendment claim against FBI agents for handcuffing a man in his home without a warrant Bivens, 403 U.S. 388; (2) a Fifth Amendment sex discrimination claim against a congressman for firing his female administrative assistant, Davis v....
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