United States District Court, W.D. Wisconsin
BROCK B. BARRETT and SUZANNE A. HOGAN KENT-BARRETT, Plaintiffs,
JOE IDSTEIN and KRIS KIEL, Defendants.
OPINION & ORDER
D. PETERSON District Judge.
plaintiffs Brock B. Barrett and Suzanne A. (Hogan)
Kent-Barrett bring this action alleging that defendant U.S.
Probation Officers Joe Idstein and Kris Kiel have violated
their constitutional right to marriage by enforcing the
court-ordered conditions of their supervised release. Dkt. 4.
I granted them leave to proceed in forma pauperis
pursuant to the theory recognized in Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). Dkt. 7 and Dkt. 8. Defendants now move to
dismiss the case for lack of personal jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(2) and for failure
to state a claim upon which relief can be granted pursuant to
Rule 12(b)(6). Dkt. 16.
reasons set forth below, I will grant defendants' motion
and this case will be dismissed with prejudice.
the following facts from the plaintiffs' complaint, Dkt.
4, and publicly available court records in United States
v. Brock Barrett, No. 13-cr-152 (W.D. Wis. filed Dec. 5,
2013); United States v. Suzanne Hogan, No. 09-cr-129
(W.D. Wis. filed Sept 16, 2009); and United States v.
Brock Barrett, No. 07-cr-50069 (N.D. Ill. filed Dec. 18,
2007). I accept the facts in plaintiffs' complaint as
true for purposes of reviewing defendants' motion to
dismiss. See Bonte v. U.S. Bank, N.A., 624 F.3d 461,
463 (7th Cir. 2010). I summarized plaintiffs' allegations
in my screening order, Dkt. 8, and so I will repeat only the
pertinent allegations here.
are both convicted felons, and both have been subject to
federal supervision because of their criminal convictions.
They were married on July 6, 2015, and have wanted to live
together as a couple ever since. Dkt. 4, at 5. They have both
asked their probation officers and the courts for permission
to do so, but their requests have been denied. Instead, they
have been told “to dissolve the marriage or face
further violations of probation.” Id.
move to dismiss plaintiffs' Bivens claim for
failure to state a claim upon which relief may be granted. I
note that in reviewing defendants' motion, I construe the
allegations in plaintiffs' complaint in the light most
favorable to the plaintiffs, accepting their well-pleaded
facts as true and drawing all permissible inferences in their
favor. See Burke v. 401 N. Wabash Venture, LLC, 714
F.3d 501, 504 (7th Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). Further, I recognize
that pleadings filed by a pro se litigant are entitled to a
liberal construction that affords all reasonable inferences
which can be drawn from them. See Haines v. Kerner,
404 U.S. 519, 521 (1972). Nevertheless, to survive a motion
to dismiss, plaintiffs still must allege “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
Supreme Court recently set forth a two-step test to determine
if a Bivens claim may proceed. See Ziglar v.
Abbasi, 137 S.Ct. 1843 (2017). First, a court must
determine whether the claim presents a new Bivens
context. Id. at 1864. Second, if the context is new,
the court must determine whether there are any “special
factors counseling hesitation” before extending the
remedy to a new context. Id. at 1858.
argue plaintiffs' case must be dismissed because a claim
against federal probation officers for violating the
constitutional right to marriage is a new Bivens
context. Further, they argue that because alternative methods
of relief are available to plaintiffs, this case does not
present the type of very limited circumstance that would call
for an extension of Bivens. For the following
reasons, I agree.
New Bivens context
test to determine if a Bivens claim presents a new
context “is whether the case is different in a
meaningful way from previous Bivens cases.”
Abbasi, 137 S.Ct. at 1859. Factors a court may
consider to determine if the context is new include the
“constitutional right at issue, ” the “rank
of the officers involved, ” and the “legal
mandate under which the officer was operating.”
Id. at 1860.
only three cases in which the Supreme Court has recognized a
Bivens remedy are: (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 gender discrimination claim against a congressman
for firing his female administrative assistant, Davis v.
Passman, 442 U.S. 228 (1979); and (3) an Eighth
Amendment claim against prison officials for failure to
provide adequate medical care, Carlson v. Green, 446
U.S. 14 (1980).
cases all differ from plaintiffs' claim in meaningful
ways. They did not address the right to marriage recognized
in Zablocki v. Redhail, 434 U.S. 374 (1978). They
were not brought against probation officers. And, finally,
they did not concern federal actors whose actions were taken
pursuant to a court order. Therefore, I find that
plaintiffs' claim presents a new Bivens ...