United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge.
se plaintiff Bryan Alan Hanson claims he suffered a
violation of his Eighth Amendment right to be free from cruel
and unusual punishment when he was deprived of the use of the
restroom on one occasion at the Federal Correctional
Institute (“FCI”)-Manchester. Accordingly, Hanson
has sued an FCI-Manchester employee, Officer Mills, for
damages pursuant to Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), and he also seeks
compensation from the United States under the Federal Tort
Claims Act (“FTCA”). For the reasons that follow,
the Court will GRANT the Defendants'
Motion to Dismiss Hanson's claims.
Alan Hanson is a federal inmate currently incarcerated in
Marion, Illinois. Proceeding pro se, Hanson filed a
civil Complaint in this Court stemming from an incident that
occurred on August 21, 2016, while he was incarcerated at
FCI-Manchester in Manchester, Kentucky. (Doc. # 1).
Hanson's Complaint alleges, among other things, that
Officer Mills prevented him from using the toilet and, as a
result, Mr. Hanson soiled himself in public. Pursuant to 28
U.S.C. §§ 1915(e)(2) and 1915A, the Court conducted
an initial screening of Hanson's Complaint. (Doc. # 11).
The Court dismissed a number of Hanson's claims upon
screening, but the Court ultimately concluded that
Hanson's Bivens claim against Officer Mills in
his individual capacity and his FTCA allegation against the
United States could proceed. (Id.)
Officer Mills and the United States both moved to dismiss, or
in the alternative, for summary judgment on those remaining
claims. (Doc. # 21). The matter is now fully briefed and ripe
for the Court's review.
Standard of Review
the Defendants' motion invokes both Federal Rules of
Civil Procedure 12(b)(6) and 56, the bulk of the Motion
argues that Hanson failed to state a claim upon which relief
may be granted under Rule 12(b)(6). (See Doc. # 21-1
at 3-13). A motion to dismiss pursuant to Rule 12(b)(6) tests
the sufficiency of the plaintiff's complaint. Gardner
v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir.
2014). To evaluate such a motion, the Court views the
complaint in the light most favorable to the plaintiff and
accepts all “well-pleaded facts” in the complaint
as true. D'Ambrosio v. Marino, 747 F.3d 378, 383
(6th Cir. 2014). Because Hanson is proceeding without the
benefit of an attorney, the Court reads Hanson's
complaint to include all fairly and reasonably inferred
claims. See Davis v. Prison Health Servs., 679 F.3d
433, 437-38 (6th Cir. 2012).
Defendants' Motion to Dismiss Hanson's
Bivens claim is granted.
first matter before the Court is Hanson's Bivens
claim against Officer Mills in his individual capacity.
Hanson alleges that Mills violated his Eighth Amendment right
to be free from cruel and unusual punishment when Mills
refused to allow Hanson to use the restroom during a
urinalysis procedure, causing Hanson to defecate on
himself. (See Doc. # 1 at 4-8). While the
facts alleged are unfortunate, the Court finds that they do
not provide a basis for Hanson to recover money damages under
the Bivens doctrine. See Bivens, 403 U.S.
388. Hanson's claim presents a new context for a
Bivens action, and there are special factors
counselling against expanding the Bivens remedy to
a civil-rights claim against state officials under 42 U.S.C.
§ 1983, which is a remedy explicitly created by
Congress, a civil-rights claim against federal officials
under Bivens is a judicially-created cause of action
that has been implied only in limited circumstances.
Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). The
Sixth Circuit Court of Appeals has noted that “[a]
Bivens remedy is available only if (1) there are no
alternative, existing processes for protecting a
constitutional interest and, (2) even in the absence of an
alternative, there are no special factors counselling
hesitation before authorizing a new kind of federal
litigation.” Haines v. Fed. Motor Carrier Safety
Admin., 814 F.3d 417, 431 (6th Cir. 2016) (internal
quotation marks and citation omitted). Further, the United
States Supreme Court has recently “made clear that
expanding the Bivens remedy is now a
‘disfavored' judicial activity.”
Ziglar, 137 S.Ct. at 1857. Indeed, the Supreme
Court's Ziglar opinion emphasizes that lower
courts must consider in the first instance whether a
plaintiff's claims are cognizable under Bivens,
even if courts have historically assumed the availability of
a Bivens remedy for a particular constitutional
allegation. See Id. at 1863-65; see also
Gonzalez v. Hasty, 269 F.Supp.3d 45, 57 (E.D.N.Y. 2017).
begin, Hanson's claim against Officer Mills presents a
new Bivens context, particularly in light of the
guidance recently set forth in Ziglar v. Abassi. To
date, the Supreme Court has recognized only three contexts
where a Bivens claim was appropriate: a Fourth
Amendment claim in the search and seizure context, a Fifth
Amendment discrimination claim against a congressmen who
fired a female secretary, and an Eighth Amendment claim for a
prison official's deliberate indifference to an
inmate's medical needs. Ziglar, 137 S.Ct. at
1854-55. Hanson's complaint is sufficiently distinct from
all three of these prior contexts, and, therefore, is
considered a “new context” for purposes of the
Court's present analysis. Regarding the Fourth Amendment
and Fifth Amendment cases where the Supreme Court previously
allowed plaintiffs to recover damages under Bivens,
Hanson's case invokes entirely different constitutional
rights and plainly presents a new context. Id. at
1860 (noting a case may present a new Bivens context
when there is a different “constitutional right at
issue”). Further, although Hanson alleges a violation
of his Eighth Amendment rights, Hanson's case still
differs meaningfully from the Eighth Amendment
deliberate-indifference case where the Supreme Court
previously allowed a Bivens remedy.
because the Supreme Court has previously recognized a
Bivens remedy in one Eighth Amendment context does
not mean that any and all Eighth Amendment claims present a
Bivens remedy going forward. See Id. at
1859 (noting that a case may involve the same constitutional
right and mechanism of injury but that the context from a
prior case may nonetheless differ); Corr. Serv. Corp. v.
Malesko, 534 U.S. 61, 70 (2001). The Ziglar
court made clear that while “the constitutional right
at issue” is one factor courts may use to determine
whether a case presents a new Bivens context, other
factors- such as “the generality or specificity of the
official action”-also impact the analysis.
Ziglar, 137 S.Ct. at 1859-60. In the prior Eighth
Amendment case where recovery under Bivens was
allowed, the key issue was whether prison officials had been
deliberately indifferent to an inmate's serious medical
needs. See Carlson v. Green, 446 U.S. 14 (1980).
Deliberate indifference to an inmate's medical needs is
but one subset of the Eighth Amendment right to be free from
cruel and unusual punishment. Other subsets include the
deprivation of essential food, lack of hygiene, the
deprivation of adequate shelter or clothing, and “other
conditions intolerable for prison confinement.” See
Rhodes v. Chapman, 452 U.S. 337, 348 (1981); Bellamy
v. Bradley, 729 F.2d 416, 419 (6th Cir. 1984).
Hanson's complaint uses the phrase “deliberate
indifference” on at least one occasion, it does not at
its core allege any deliberate indifference to Hanson's
medical needs. (See Doc. # 1). Hanson does not argue
he had a medical condition above and beyond the typical
individual's need to periodically use the restroom. He
instead takes issue with a different condition of his
confinement-indeed, Hanson challenges Officer Mills's
refusal to allow him to use the restroom on one occasion,
implying that the Eighth ...