Smadi v. Brown
| Decision Date | 08 July 2021 |
| Docket Number | 18-cv-02149-JPG |
| Court | U.S. District Court — Southern District of Illinois |
| Parties | HOSAM MAHER SMADI, #39482-177, Plaintiff, v. WILLIAM TRUE, T. C. BROWN, GARY BURGESS, KATHY HILL, S. BYRAM, and J. MICHAELIS, Defendants. |
Now before the Court for consideration is the question of whether Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), provides Plaintiff Hosam Smadi with a vehicle for bringing First Amendment claims of mail interference and retaliation against federal officials in light of the United States Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). This Court previously dismissed Smadi's Complaint at screening pursuant to 28 U.S.C. § 1915A, and he appealed. The Seventh Circuit reversed only that portion of the screening order dismissing the First Amendment claims with instructions to obtain additional counseled briefing on the issue of which First Amendment claims for damages, if any, may proceed after Abbasi and under what authority an alternative remedy, such as injunctive relief, is available. See Smadi v. True, et al., 783 Fed.Appx. 633 (7th Cir. 2019). This Court reinstated the First Amendment claims recruited counsel to represent Smadi, and ordered adversarial briefing on these issues. (Doc. 28). All briefing is now complete. (See Docs. 46 and 53).
Smadi brought this action pursuant Bivens for alleged violations of his constitutional rights by prison officials who interfered with his outgoing mail between 2016 and 2018 while he was in the custody of the Federal Bureau of Prisons (BOP) and housed at the United States Penitentiary in Marion, Illinois (USP-Marion). At the time, Smadi was trying to publicize his belief that he was coerced into pleading guilty to an attempted act of terrorism. Prison officials allegedly thwarted his efforts to mail a letter seeking representation in bringing a civil rights action to an attorney, a letter regarding FBI and BOP misconduct to the Jordanian ambassador, and blog posts/collages/newspaper articles to a journalist. Officials also kept him in an area of the prison that restricted his communications-the communications management unit (CMU)-without a hearing and in retaliation for trying to make these contacts. Smadi brought claims against these officials in their individual capacities for mail interference, denial of due process, and retaliation. He sought declaratory judgment, money damages, and injunctive relief.
After reviewing this matter pursuant to 28 U.S.C. § 1915A and severing an unrelated religious meal claim (Count 7), this Court dismissed all other claims (Counts 1-6) as unauthorized expansions of the implied damages remedy in Bivens following the Supreme Court's decision in Abbasi. (Doc. 12). This Court concluded that the implied damages remedy recognized for the first time under the Fourth Amendment in Bivens does not extend to Smadi's First Amendment claims (Counts 1-4, 6) and Fifth Amendment claim (Count 5) for money damages in light of the Abbasi decision. (Id.). The Court rejected Smadi's related request for injunctive relief and dismissed the Complaint with prejudice. (Id.).
On appeal, the Seventh Circuit affirmed all aspects of this Court's decision, except its dismissal of the First Amendment claims, which are listed below:
The Seventh Circuit held that these claims could not be fully evaluated on the record before the Court at the time. Smadi v. True, et al., 783 Fed.Appx. 633 (7th Cir. 2019). Although recognizing that courts of appeals have held that a Bivens-type damages remedy for First Amendment claims is foreclosed post-Abbasi, the Seventh Circuit noted that these courts have typically reached this conclusion only after receiving counseled briefing on the issue. Id. (citing Effex Capital, LLC v. National Futures Association, 933 F.3d 882, 885 (7th Cir. 2019); Doe v. Meron, 929 F.3d 153, 167-70 (4th Cir. 2019); Cantu v. Moody, 933 F.3d 414, 421-24 (5th Cir. 2019); Farah v. Weyker, 926 F.3d 492, 498-500 (8th Cir. 2019); Vega v. United States, 881 F.3d 1146 (9th Cir. 2018)). Therefore, this case was remanded for adversarial briefing on the First Amendment claims. Specifically, counsel was instructed to consider which damages claims Smadi may pursue, if any, and whether he may pursue an alternative remedy, such as injunctive relief, under Bivens or any other authority. Id.
The Seventh Circuit did not explicitly state whether Smadi's First Amendment claims should be reviewed again pursuant to 28 U.S.C. § 1915A, prior to service of this suit on the defendants, or in response to a motion filed pursuant to Federal Rule of Civil Procedure 12(b)(6) or some other authority, following service of this suit on the defendants. Similar legal standards apply to screening under Section 1915A and motions to dismiss under Rule 12(b)(6). Section 1915A requires the Court to screen prisoner complaints and dismiss any portion that fails to state a claim for relief, is legally frivolous or malicious, or asks for money damages from a defendant who is immune from such relief. 28 U.S.C. § 1915A(a)-(b). Rule 12(b)(6) provides for dismissal of a complaint, or any portion of it, for failure to state a claim upon which relief may be granted. FED. R. CIV. P. 12(b)(6). To survive review under both standards, a complaint must include sufficient facts to state a claim for relief that is plausible on its face and must also state sufficient facts to raise the right to relief above the speculative level. Bissessur v. Indiana Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Bissessur, 581 F.3d at 603. When reviewing a complaint through both lenses, the Court must construe the allegations liberally in favor of the pro se plaintiff.[1] Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Smadi brings his First Amendment claims pursuant to the theory recognized in Bivens v. Six Unknown Fed'l Narcotics Agents, 403 U.S. 388 (1971). Bivens “authorizes the filing of constitutional tort suits against federal officers in much the same way that 42 U.S.C. § 1983 authorizes such suits against state officers.” King v. Fed'l Bureau of Prisons, 415 F.3d 634, 636 (7th Cir. 2005). But Bivens and Section 1983 are certainly not the same.
When enacting Section 1983, Congress explicitly authorized courts to award money damages for constitutional deprivations caused by officials acting under color of state law, but Congress did not enact analogous authority to award damages for constitutional violations caused by officials acting under color of federal authority. Abbasi, 137 S.Ct. at 1854. In Bivens, the Supreme Court instead recognized an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Bivens, 403 U.S. 388 (1971). In the fifty years since this decision, the Supreme Court has acknowledged only two other instances in which an implied damages remedy is available for a constitutional deprivation. In Davis v. Passman, the Court recognized this implied authority to award damages for a Fifth Amendment claim based on sex discrimination. 442 U.S. 228 (1979). In Carlson v. Green, the Court extended the authority to an Eighth Amendment claim based on the denial of medical care for a serious medical condition. 446 U.S. 14 (1980). In Abbasi, the Supreme Court pointed out that “these three cases-Bivens, Davis, and Carlson-represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.” Abbasi, 137 S.Ct. at 1855.
Further expansion of the Bivens remedy has become a “disfavored judicial activity.” Abbasi, 137 S.Ct. at 1857. When considering extending this implied damages remedy, the Court has consistently cited various “special factors counselling hesitation” in doing so and identified alternative remedies available to address the injuries alleged by plaintiffs. Id. at 1857 (collecting cases). Absent “special factors” that counsel otherwise, the Abbasi court made clear that federal courts should not recognize an implied damages remedy in a new context. Id.
A two-part test is now used to determine whether a Bivens-type damages remedy exists outside of those three limited contexts cited above. First, a court must ask whether the claim represents an extension of one of the three previously recognized claims, such that it presents a new context. Abbasi, 137 S.Ct. at 1857-58. If so, the court must then...
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