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Silva v. Ward

United States District Court, W.D. Wisconsin

September 26, 2019




         Plaintiff Natividad Silva is proceeding in this civil action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1974), claiming that during his incarceration at the Federal Correctional Institution in Oxford, Wisconsin (“FCI-Oxford”), all defendants housed him in conditions that violated his Eighth Amendment rights; defendant Braker retaliated against him in violation of his First Amendment rights; and defendant Braker discriminated against him on the basis of his race, in violation of his Fifth Amendment rights. Currently before the court is defendants’ motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. #32.) While defendants raise three arguments in support of dismissal, the court finds their first argument dispositive: plaintiff’s claims are not cognizable in light of the Supreme Court’s decision in Ziglar v. Abbasi, __U.S.__, 137 S.Ct. 1843 (2017).


         Silva, who is Hispanic, is currently a federal inmate incarcerated by the Bureau of Prisons at the Federal Medical Center in Rochester, Minnesota (“FMC-Rochester”). Silva was previously incarcerated at the FCI-Oxford, where defendants L.C. Ward was the warden, Ms. Braker was a unit manager, and James was a counselor.

         To save money, inmates at FCI-Oxford were informed in very early 2016 that the institution was temporarily closing the Sauk housing unit, where Silva was then placed. In February 2016, Silva asked Counselor James if he could be moved to one of the “better” housing units, because Silva had been bothered by undisciplined inmates and excessive noise. James told Silva that he would speak to Unit Manager Braker. Silva also sent an electronic request to Braker to be considered for “better” housing, specifically requesting that he not be placed in the Waushara housing unit, which he considered to be disruptive and unsanitary. In contrast, according to Silva, the Waupaca housing unit was one of the nicer units at FCI-Oxford, because it is quiet and clean, has larger cells, and generally houses inmates with long sentences.

         On February 29, 2016, Braker asked the inmates already housed on the Waupaca unit to review requests from inmates who wanted to be transferred there. Despite the inmates in the Waupaca unit allegedly identifying Silva as an inmate who would be compatible on the unit, Braker denied Silva’s request to be moved there. Instead, he allowed three white inmates with unfavorable disciplinary histories to move to that unit.

         Worse, on March 2, 2016, Silva was ordered to move to the Waushara housing unit, which he not only expressly wanted to avoid, but which is rundown and disproportionately Hispanic. Moreover, when Silva arrived, he found: both the unit and his cell were filthy and smelly; trash was overflowing; mold was on the walls and shower curtains; grease and old food had built up in the sinks; chewing tobacco stains were on the ceiling; and there was dirt everywhere. Finally, Silva was also placed with a cellmate who was not only a gang member, but did not shower or wash his clothes or bedding.

         Nevertheless, when Silva and his cellmate approached Counselor James about moving, he rejected their request. Silva then filed a grievance about his cell, which James also rejected, stating that Silva could help “straighten out” his cellmate. James further denied Silva’s requests to have his cell cleaned or for cleaning materials. Silva next appealed to Unit Manager Braker and Warden Ward, who both affirmed James’s denial of his grievance. Silva also requested another TV for the Waushara unit, as most of the other units had at least two TVs and Waushara’s only TV was allegedly old and “burning out.” James denied that request as well.

         After Silva filed this lawsuit in March of 2016, Braker allegedly also ordered two inmates to verbally threaten him, prompting Silva to amend his complaint to bring a retaliation claim against her. Silva was transferred to FMC-Rochester in May of 2016.


         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). Dismissal is warranted only if no recourse could be granted under any set of facts consistent with the allegations. Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). “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 fact.” Spierer v. Rossman, 798 F.3d 502, 510 (7th Cir. 2015) (citing Twombly, 550 U.S. at 570). A Rule 12(b)(6) motion is the proper means for dismissal when Bivens does not authorize a claim. Massey v. Helman, 196 F.3d 727, 738 (7th Cir. 1999) (“[T]he appropriate basis for dismissing a Bivens claim . . . is failure to state a claim upon which relief can be granted . . . .”). That is the case here.

         Defendants urge the court to conclude that all of Silva’s claims require dismissal because a Bivens remedy is inappropriate in these circumstances. In its 2017 Abbasi decision, the United States Supreme Court explained that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity, ” such that the Court “has ‘consistently refused to extend Bivens to any new context or new category of defendants’” over the past thirty years. 137 S.Ct. at 1857 (internal citations omitted) (collecting cases). In Abbasi, the court further established a three-step inquiry that district courts must follow before finding that a Bivens remedy exists: (1) whether the claim “presents a new Bivens context”; (2) whether there is any “alternative, existing process for protecting the interest” at stake; and (3) whether any other “special factors counsel[] hesitation” before authorizing a new kind of federal litigation. Id. at 1856-60. The court addresses each question below.

         I. New Bivens Context?

         A constitutional claim presents a new Bivens context “[i]f the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. The cases considered for comparison by the Abbasi Court were: Bivens, 403 U.S. 388 (FBI agents handcuffed a man in his home without a warrant); Davis v. Passman, 442 U.S. 228 (1979) (Congressman fired a female secretary); and Carlson v. Green, 446 U.S. 14 (1980) (prison officials failed to treat inmate’s asthma). Abbasi, 137 S.Ct. at 1854-55, 1860, 1864-65. The Court also suggested that “meaningful” differences can be discerned by:

the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond . . .; the statutory or legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.

Id. at 1860. The Supreme Court further cautioned that “even a modest extension is still an extension.” Id. at 1864.

         As a result, after Abbasi, “additional scrutiny is required before a plaintiff may proceed with a Bivens action if the claims arise ‘in a new Bivens context.’” Harris v. Dunbar, No. 2:17-cv-00536-WTL-DLP, 2018 WL 3574736 at *2 (S.D. Ind. July 25, 2018) (quoting Abbasi, 137 S.Ct. at 1864) (declining to extend Bivens remedy to First Amendment interference with mail and Fifth Amendment due process claims). “[E]ven where a circuit court has previously found a Bivens remedy, that court must still consider the availability of an implied right of action in subsequent cases relying on the same precedent.” Gonzalez v. Hasty, 269 F.Supp. 3d 45');">269 F.Supp. 3d 45, 58 (E.D.N.Y. 2017) (citing Vanderklok v. United States, 868 F.3d 189, 199-200 (3d Cir. 2017)), affirmed in Gonzalez v. Hasty, 755 F. App’x 67 (2d Cir. 2018) (acknowledging Bivens cognizability arguments but concluding that all claims failed on qualified immunity grounds regardless).

         In this case, Silva’s retaliation, equal protection and conditions of confinement claims are “meaningfully different” from the Fourth, Fifth and Eighth Amendment claims recognized in Bivens, Davis and Carlson. Starting with his Eighth Amendment claim, Silva points to Carlson to argue that he is not pursuing a new Bivens context, reading Carlson far more broadly than authorized by Abbasi. In Carlson, the Supreme Court authorized federal prisoners to seek compensation for prison officials’ failure to provide medical care in violation of the Eighth Amendment, while Silva’s Eighth Amendment claim, challenging the conditions of his confinement, involves a different legal standard. Indeed, the objective element of an Eighth Amendment medical care claim is whether the plaintiff is suffering from a serious medical need, but the objective element of a conditions of confinement claim asks whether the plaintiff has been denied “the minimal civilized measure of life’s necessities, ” see ...

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