United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT.
Theodore Howard is confined at the United States
Penitentiary-Big Sandy in Inez, Kentucky. Proceeding without
an attorney, Howard filed a civil rights action against a
federal official pursuant to Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1].
Defendant, Lana Lackey, has filed a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). [R.
22]. Howard has filed a response [R. 28] and Lackey has filed
a reply. [R. 29]. Thus, this matter has been fully briefed
and is ripe for review.
reasons set forth below, the Court will grant Lackey's
motion to dismiss and dismiss Howard's claims.
Howard's handwritten Complaint is somewhat difficult to
read, from what the Court is able to ascertain, Howard
alleges that, in 2014, he was attempting to pursue claims of
prosecutorial misconduct and ineffective assistance of
counsel claims in his underlying criminal case, United
States v. Howard, No. 1:07-cr-674-2 (N. D. Ill. 2007),
via a petition for a writ of habeas corpus filed pursuant to
28 U.S.C. § 2255, United States v. Howard, No.
1:13-cv-7819 (N.D. Ill. 2013). [R. 1 at p. 2]. In connection
with these efforts, Howard alleges that, on or about May 27,
2014, he was sent trial and sentencing transcripts from the
United States District Court for the Northern District of
Illinois. [Id.]. According to Howard, Defendant Lana
Lackey, a legal mail secretary at USP-Big Sandy, signed the
USP-Big Sandy legal mail log book for the transcripts, but
failed to tender these transcripts to Howard. [Id.].
Howard claims that an investigation into the matter made at
his request showed that Lackey lost, misplaced, or discarded
the transcripts that were sent to him from the federal court
in Illinois. [Id. at p. 3]. Howard alleges that
Lackey has violated the Bureau of Prisons (“BOP”)
Program Statement 5800.10 for inmate-legal mail procedures,
as well as 18 U.S.C. §§ 1701, 1702, and 1703, all
in violation of his rights to receive mail under the First,
Fourth, and Fourteenth Amendments to the Constitution.
[Id. at p. 4, 8]. Howard seeks monetary damages.
[Id. at p. 8].
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all well-pleaded facts in the complaint.
D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th
Cir. 2014). Because the plaintiff here is proceeding without
the benefit of an attorney, the Court reads his complaint to
include all fairly and reasonably inferred claims. Davis
v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
complaint must contain allegations, either expressly stated
or necessarily inferred, with respect to every material
element necessary to sustain a recovery under some viable
legal theory. Philadelphia Indem. Ins. Co. v. Youth
Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013). But the
complaint must be dismissed if it undoubtedly fails to allege
facts sufficient to state a facially-plausible claim.
Republic Bank & Trust Co. v. Bear Stearns & Co.,
Inc., 683 F.3d 239, 247 (6th Cir. 2012). A complaint may
be dismissed for failure to state a claim if “it fails
to give the defendant fair notice of what the...claim is and
the grounds upon which it rests.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations
to the extent that Howard's Complaint alleges violations
of 18 U.S.C. §§ 1701, 1702, and 1703, these are
criminal statutes prohibiting the obstruction of mail and do
not give rise to a private cause of action. See Miles v.
Bottom, 2016 WL 2344222 at *4 (E.D. Ky.
2016)(“Because a private citizen lacks a judicially
cognizable interest in the criminal prosecution of another, a
civil plaintiff has no standing to assert a claim arising
under a criminal statute.”)(citing Linda R.S. v.
Richard D., 410 U.S. 615, 619 (1973); Chrysler Corp.
v. Brown, 441 U.S. 281, 316 (1979)). See also Woods
v. McGuire, 954 F.2d 388, 391 (6th Cir. 1992)(federal
courts have uniformly held that there is no private right of
action under 18 U.S.C. § 1703); Berlin Democratic
Club v. Rumsfeld, 410 F.Supp. 144, 162 (D.D.C.
1976)(“Section 1702 is purely a criminal statute and
cannot support a civil cause of action.”).
although it is not entirely clear given the difficulty of
reading Howard's handwriting, it appears that Howard may
reference the Fourth and Fourteenth Amendments of the United
States Constitution in his Complaint. [R. 1 at p. 8].
However, to the extent that Howard is attempting to suggest
that Lackey “seized” his mail in violation of the
Fourth Amendment, “the Fourth Amendment does not apply
to searches of prison cells or seizures of property within
them.” Simmons v. Szelewski, 642 Fed.Appx. 95,
99 (3d Cir. 2016) (citing Hudson v. Palmer, 468 U.S.
517, 533 (1984)); Shakur v. Coelho, 421 Fed.Appx.
132, 133 (3d Cir. 2011). This is so because “[t]he
recognition of privacy rights for prisoners in their
individual cells simply cannot be reconciled with the concept
of incarceration and the needs and objectives of penal
institutions.” Hudson, 468 U.S. at 526.
addition, Howard fails to allege any facts to support a
Fourteenth Amendment Claim for violation of his due process
or equal protection rights. Generally, pro se
pleadings are liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94 (2007). Even so, the principles
requiring generous construction of pro se pleadings
are not without limits. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989). The Court has an obligation to
liberally construe a complaint filed by a person proceeding
without counsel, but it has no authority to create arguments
or claims that the plaintiff has not made. Coleman v.
Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir.
2003) (“Pro se parties must still brief the issues
advanced with some effort at developed
argumentation.”); Superior Kitchen Designs, Inc. v.
Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148
(D. Mass. 2003) (“While the allegations of the
complaint are construed favorably to the plaintiff, the court
will not read causes of action into the complaint which are
not alleged.”). Thus, Howard's failure to allege
any facts that would give rise to a Fourteenth Amendment
claim is a sufficient reason to dismiss this claim.
the Supreme Court has expressly held that where a
constitutional claim is covered by a specific constitutional
provision, the claim must be analyzed under the standard
appropriate to that specific provision, not under the broad
rubric of substantive due process. County of Sacramento
v. Lewis, 523 U.S. 833, 843 (1998); see also Graham
v. Connor, 490 U.S. 386, 395 (1989) (“Where a
particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized
notion of substantive due process, must be the guide for
analyzing these claims.”). “A prisoner's
right to receive mail is protected by the First
Amendment.” Sallier v. Brooks, 343 F.3d 868,
873 (6th Cir. 2003). See also Stanley v. Vining, 602
F.3d 767, 769 (6th Cir. 2010)(recognizing that a
prisoner's liberty interest in receiving mail is grounded
in the First Amendment). Because the First Amendment is the
proper vehicle to assert claims of interference with
Howard's right to receive mail, his claim under the
Fourteenth Amendment fails as a matter of law, and must be
dismissed. See Cooleen v. Lamanna, 248 Fed.Appx.
357, 362 (3rd Cir. 2007) (viability of claim under Eighth
Amendment to challenge medical care of prisoner forecloses
availability of substantive due process claim); Bell v.
Johnson, 308 F.3d 594, 609-10 (6th Cir. 2002)
(prisoner's claim that officials retaliated against him
for filing grievances was squarely covered by First
Amendment, precluding due process claim under Fourteenth
Amendment). Thus, to the extent that Howard purports to bring
claims against Lackey under the Fourth and Fourteenth
Amendment, these claims will be dismissed.
to Howard's First Amendment claim, pursuant to
Bivens, an individual may “recover money
damages for any injuries...suffered as a result of [federal]
agents' violation of” his constitutional rights.
See Bivens, 403 U.S. at 397; Baranski v. Fifteen
Unknown Agents of Bureau of Alcohol, Tobacco &
Firearms,452 F.3d 433, 438 (6th Cir.2006). However, as
Lackey correctly points out, the Supreme Court has repeatedly
indicated that a First Amendment claim is not cognizable
under Bivens. See Reichle v. Howards, 132
S.Ct. 2088, 2093 n.4 (2012) (“We have never held that
Bivens extends to First Amendment claims.”);
Ashcroft v. Iqbal, 556 U.S. 662, 675
(2009)(“For while we have allowed a Bivens
action to redress a violation of the equal protection
component of the Due Process Clause of the Fifth
Amendment..., we have not found an implied damages remedy
under the Free Exercise Clause. Indeed, we have declined to
extend Bivens to a claim sounding in the First
Amendment.”)(citations omitted); Bush v.
Lucas, 462 U.S. 367, 387-89 (1983)(First Amendment
retaliation claim was not cognizable under Bivens).
While the Supreme Court ...