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Barrett v. Idstein

United States District Court, W.D. Wisconsin

February 26, 2018

JOE IDSTEIN and KRIS KIEL, Defendants.[1]

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se 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.

         For the reasons set forth below, I will grant defendants' motion and this case will be dismissed with prejudice.


         I draw 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.

         Plaintiffs 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.


         Defendants 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)).

         The 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.

         Defendants 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.

         A. New Bivens context

         The 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.

         The 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).

         These 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 ...

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