         Case: 18-11937   Date Filed: 07/09/2019   Page: 1 of 8


                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 18-11937
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:15-cv-21790-JAL



HARVEY R. JOHNSON,

                                                          Plaintiff-Appellee,

versus

KEVIN BURDEN,
Lieutenant,
BOBBY ROY,
Lieutenant,
ROB WILSON,
Warden,
WILLIAM ORAMAS,
CAPTAIN DONALDSON,
WILLIAM GARCIA,
CHARLES HANNA,
Case Manager,
YIMA POSADA,
Unit Manager,
BEARDEN,
Case Manager,
A.W. NANETTE BARNES,
CASSANDRA ANDREWS,
ANTONINETTE NICHOLSON,
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                                                                    Defendants-Appellants.

                                ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             ________________________

                                        (July 9, 2019)

Before WILSON, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM:

          Officer Jason Cooke, along with other Federal Bureau of Prisons (BOP)

employees (collectively, Defendants), appeal the district court’s partial denial of

their motion to dismiss, or, in the alternative, motion for summary judgment. On

appeal, Defendants argue that the district court erred by extending a Bivens1

remedy to Johnson’s First Amendment claims, and that “special factors” counsel

against extending Bivens to encompass Johnson’s suit. Defendants also contend

that, even if Bivens did extend to Johnson’s claims, they are entitled to qualified

immunity. Because Johnson’s First Amendment claims represent a new Bivens

context, we remand to the district court to reconsider its ruling on Defendants’

motion to dismiss or for summary judgment in light of Ziglar v. Abbasi, 137 S. Ct.

1843 (2017), and we decline to consider Defendants’ qualified immunity

argument.

1
    Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
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                     I.   Factual and Procedural Background

      Plaintiff Harvey Johnson, a federal inmate, filed a 52-count pro se complaint

against 82 BOP officials, seeking damages pursuant to Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleged, in

relevant part, that several BOP officials retaliated against him after he filed

grievances through the Bureau’s Administrative Remedy Program, in violation of

his First Amendment rights. According to Johnson, Defendants’ retaliatory acts

included transferring him to another prison, denying him medical treatment, and

cutting his work detail pay. The district court dismissed many of Johnson’s claims

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii), but permitted the

remaining retaliation claims to go forward against 15 of the named Defendants.

      Defendants jointly filed a motion to dismiss Johnson’s complaint, or

alternatively, for summary judgment. Defendants argued that First Amendment

claims are not implied under Bivens, and that the Supreme Court has refused to

recognize Bivens liability in any context other than the three it previously

recognized. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017). They argued that, to

create an implied damages remedy, a court must first conduct a “special factors”

analysis and determine that the judiciary is well suited, absent congressional

instruction, to weigh the costs and benefits of allowing a damages action.

Defendants also asserted that they were entitled to qualified immunity because


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each of the BOP actions at issue were performed in accordance with BOP policy

and for reasons unrelated to Johnson’s filing of grievances.

      Johnson filed his own motion for summary judgment, arguing that he

“presented irrefutable proof of the defendants’ liability, and therefore, summary

judgment in his favor [was] clearly warranted.”

      The magistrate judge issued a Report and Recommendation (R&R),

recommending that Defendants’ motion be denied, except as to a claim regarding

work detail against one named Defendant. The Defendants filed objections to the

R&R, contending that the magistrate judge failed to address arguments regarding

Abbasi or qualified immunity.

      The district court acknowledged Abbasi, but concluded that the Supreme

Court had recognized that Bivens extends to First Amendment claims in Hartman

v. Moore, 547 U.S. 250 (2006). Regarding qualified immunity, the district court

concluded that, assuming Defendants acted within the scope of their employment,

they were not entitled to qualified immunity because Johnson alleged facts

demonstrating that Defendants violated his constitutional rights. Accordingly, the

district court granted in part and denied in part Defendants’ motion to dismiss or

for summary judgment.

                                II.   Bivens Analysis




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      We review a district court’s denial of summary judgment de novo,

construing all facts and making all reasonable inferences in favor of the non-

moving party. Holloman v. Mail-Well Corp., 443 F.3d 832, 836–37 (11th Cir.

2006). Summary judgment is appropriate when there is no genuine dispute of

material fact, and the movant is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a). An issue of fact is not genuine unless a reasonable jury could return

a verdict in favor of the non-moving party. Morton v. Kirkwood, 707 F.3d 1276,

1284 (11th Cir. 2013).

      Defendants argue that the district court erred by extending a Bivens remedy

to Johnson’s First Amendment retaliation claims and that “special factors” counsel

against extending Bivens to encompass Johnson’s suit. In Bivens, the Supreme

Court held that injured plaintiffs can bring an action for damages against federal

officers for violations of their constitutional rights. Behrens v. Regier, 422 F.3d

1255, 1263 n.15 (11th Cir. 2005). But the Supreme Court has since stated that the

expansion of Bivens beyond the three specific contexts it has recognized is

disfavored. Abbasi, 137 S. Ct. at 1857. Bivens has been applied to a Fourth

Amendment case involving a search and seizure, a Fifth Amendment gender

discrimination case, and an Eighth Amendment case involving cruel and unusual

punishment. Id. at 1854–55. Only in these three contexts did the Supreme Court

approve an implied damages remedy under the Constitution itself. Id. at 1855.


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When a party seeks to assert an implied cause of action under the Constitution

itself, just as when a party seeks to assert an implied cause of action under a federal

statute, it is usually Congress who should decide whether to provide for a damages

remedy, not the courts. Id. at 1857.

         The Supreme Court has also noted that, generally, Bivens will not be

extended to a new context where special factors counsel hesitation in the absence

of affirmative action by Congress. Abbasi, 137 S. Ct. at 1857. The Court has not

defined the “special factors,” but has stated that “the inquiry must concentrate on

whether the Judiciary is well suited, absent congressional action or instruction, to

consider and weigh the costs and benefits of allowing a damages action to

proceed.” Id. at 1857–58. The availability of alternative means of relief may alone

limit the power of courts to “infer a new Bivens cause of action.” Id. at 1858. For

example, both injunctions and habeas petitions are alternative judicial forms of

relief that probably preclude a Bivens remedy. Id. at 1862–63.

         The district court erred in concluding that Bivens extends to First

Amendment retaliation claims. The district court concluded that in Hartman v.

Moore, 547 U.S. 250 (2006), the Supreme Court explicitly recognized a First

Amendment retaliation claim under Bivens. But the district court discounted the

fact that Abbasi 2 did not identify a First Amendment retaliation claim as one of the


2
    Abbasi was decided sixteen years after Hartman.
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three recognized Bivens contexts, reasoning that “the Court must assume the

Supreme Court knew what it was saying and meant what it said in Hartman when

it recognized a First Amendment retaliation claim under Bivens.”

      In Hartman, the Supreme Court held that a plaintiff cannot state a claim of

retaliatory prosecution in violation of the First Amendment if the charges were

supported by probable cause. 547 U.S. at 252. The Supreme Court stated that,

“[w]hen the vengeful officer is federal, he is subject to an action for damages on

the authority of Bivens.” Id. at 256. But the Court appeared to assume the

availability of a Bivens remedy for purposes of reaching its holding—that a

complaint claiming retaliatory prosecution must allege and prove a lack of

probable cause. Id. at 252. In doing so, the Court qualified its holding, stating that

“we are addressing a requirement of causation, which [the plaintiff] must plead and

prove in order to win, and our holding does not go beyond a definition of an

element of the tort, directly implicated by the defense of qualified immunity and

properly before us on interlocutory appeal.” Id. at 257 n.5 (emphasis added).

      Following Hartman, the Supreme Court has repeatedly confirmed that it has

not extended a Bivens remedy to First Amendment claims. See Ashcroft v. Iqbal,

556 U.S. 662, 675 (2009) (noting that it has previously “declined to extend Bivens

to a claim sounding in the First Amendment”); see also Reichle v. Howards, 566

U.S. 658, 663 n.4 (2012) (“We have never held that Bivens extends to First


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Amendment claims.”). And in Wood v. Moss, 134 S. Ct. 2056, 2066 (2014), the

Supreme Court confirmed that it has “several times assumed without deciding that

Bivens extends to First Amendment claims.” The Court did so again in Wood

because that “antecedent issue” was not preserved. Id. Moreover, the Court in

Abbasi did not mention Hartman as one of the cases establishing appropriate

contexts in which to apply Bivens, indicating that the Hartman language was mere

dicta. See Abbasi, 137 S. Ct. at 1854–55.

      The Supreme Court’s post-Hartman cases indicate that First Amendment

claims, like Johnson’s here, represent a new Bivens context. The district court was

therefore required to apply a “special factors” analysis consistent with Abbasi to

determine whether expanding Bivens would be appropriate in Johnson’s case.

Accordingly, we remand to the district court to reconsider its ruling on the

Defendants’ motion to dismiss or for summary judgment in light of Abbasi, and we

decline to consider Defendants’ qualified immunity argument.


      REMANDED.




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