Thomas v. FCI Berlin, Warden, et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Thomas
v. Civil No. 23-cv-224-SE
Robert Hazlewood, Warden, Federal
Correctional Institution, Berlin,
New Hampshire; et al.1
REPORT AND RECOMMENDATION
Before the court in this civil rights case is former
federal prisoner Robert Thomas’s Complaint (Doc. No. 1), seeking
damages under Bivens v. Six Unknown Named Agents of Fed. Bureau
of Narcs., 403 U.S. 388 (1971) and the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b), 2671-2680 (“FTCA”). The Complaint is
before the undersigned Magistrate Judge for preliminary review,
pursuant to 28 U.S.C. § 1915A(a) and LR 4.3(d)(1).
1 The defendants named in the complaint are: Robert
Hazlewood, (former) Warden, Federal Correctional Institution,
Berlin, New Hampshire (“FCI Berlin”); FCI Berlin Warden Richard
Luna; FCI Berlin Assistant Warden of Operations Mr. Martinez,
whose first name is unknown (“FNU”); FCI Berlin Assistant Warden
of Programs Ms. FNU Scheriber; FCI Berlin CMC Mr. B. Rouleau;
FCI Berlin Record Officer Supervisor Maury Yeakel; FCI Berlin A-
Unit Manager Mr. N. Carnis; FCI Berlin A-1 Case Manager Mrs. D.
Shuler; and Team Rome, Designation Sentence Computation Center,
Grand Prairie, Texas.
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Preliminary Review Standard
In conducting preliminary review under LR 4.3(d)(1) and 28
U.S.C. § 1915A(a), the Court takes as true the facts asserted in
the Complaint and inferences reasonably drawn from those facts,
strips away the legal conclusions, and considers whether
Plaintiff states a claim that is plausible on its face.
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 102-03 (1st Cir. 2013)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In
determining whether a pro se pleading states a claim, the court
construes pleadings liberally. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) (per curiam). The Court may dismiss claims if the
court lacks subject matter jurisdiction, a defendant is immune
from the relief sought, the complaint fails to state a claim
upon which relief might be granted, or the action is frivolous
or malicious. See 28 U.S.C. § 1915(e)(2).
Background
Mr. Thomas was incarcerated at the Federal Correctional
Institution in Berlin, New Hampshire, (“FCI Berlin”) when he
filed this action. During his incarceration, Mr. Thomas
successfully litigated a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 in this Court. See Thomas v. Warden, No.
13-cv-259-LM (D.N.H.) (“§ 2241 Petition”). In the Order
granting Mr. Thomas’s § 2241 Petition, the Court directed the
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Federal Bureau of Prisons (“BOP”) to recalculate Mr. Thomas’s
federal sentence using a sentence commencement date of November
5, 2001, and running the sentence continuously from that date.
See id. (July 27, 2022 Order (ECF No. 151), as amended by Aug.
24, 2022 Order). The BOP released Mr. Thomas from federal
custody on December 5, 2023.
Mr. Thomas brings this action asserting that the defendants
violated his federal rights and acted negligently in that, while
he was incarcerated, they: miscalculated his federal sentence;
failed to investigate his complaints that his sentence had been
miscalculated; and violated his right to serve his sentence
continuously rather than in installments. See Doc. No. 1, at 2.
Mr. Thomas does not allege that he served more time in prison
than was called for by his sentence. Instead, Mr. Thomas seeks
damages in this case for the mental and emotional harm he claims
he suffered as a result of his twenty-one-year struggle to
obtain relief from BOP officials relating to the calculation of
his sentence. See id. at 6.
Discussion
I. Constitutional Claims Under Bivens
Mr. Thomas asserts that the defendants violated his federal
constitutional rights by miscalculating his sentence, failing to
investigate his complaints about his sentence, and requiring him
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to serve his federal sentence in installments. Liberally
construed, those claims arise under the Fifth Amendment’s Due
Process Clause.
The Bivens doctrine, under certain circumstances, provides
a plaintiff alleging a violation of his or her federal
constitutional rights with a private right of action for damages
against the federal employee(s) and/or official(s) the plaintiff
charges with responsibility for such violations, in their
individual capacities. See DeMayo v. Nugent, 517 F.3d 11, 14
(1st Cir. 2008). In Bivens, the Supreme Court authorized a
private damages action against a federal official for an alleged
violation of the plaintiff’s Fourth Amendment right not to be
subject to unreasonable search and seizure. 403 U.S. at 396-97.
Since deciding Bivens, the Supreme Court has recognized only two
other contexts in which a plaintiff may seek damages under the
Bivens doctrine: a gender discrimination claim asserted under
the Fifth Amendment, in Davis v. Passman, 442 U.S. 228, 248-49
(1979); and a federal prisoner’s Eighth Amendment claim alleging
inadequate medical care, in Carlson v. Green, 446 U.S. 14, 18-21
(1980). See Quinones-Pimentel v. Cannon, 85 F.4th 63, 69 (1st
Cir. 2023).
However, “[s]ince [Passman and Carlson] were decided . . .
the Supreme Court has charted a significantly different path,
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consistently refusing ‘to extend the Bivens doctrine to new
settings.’” Quinones-Pimental, 85 F.4th at 69 (quoting González
v. Vélez, 864 F.3d 45, 52 (1st Cir. 2017)); see also Hernández
v. Mesa, 589 U.S. 93, 102 (2020) (collecting Supreme Court cases
declining to extend Bivens); Ziglar v. Abbasi, 582 U.S. 120, 135
(2017). In recent cases, the Supreme Court has further
cautioned that “recognizing a cause of action under Bivens is ‘a
disfavored judicial activity[,]’” and “‘if there are sound
reasons to think Congress might doubt the efficacy or necessity
of a damages remedy[,] the courts must refrain from creating
[it].’” Egbert v. Boule, 596 U.S. 482, 491, 492 (2022) (quoting
Abbasi, 582 U.S. at 135, 137).
The Supreme Court has established a two-step process for
evaluating whether Bivens claims for damages against federal
officials may proceed in a particular case. See Egbert, 596
U.S. at 492. The first step requires the court to “ask whether
the case presents a new Bivens context, which boils down to
whether the case is meaningfully different from Bivens, Davis,
and Carlson.” Quinones-Pimentel, 85 F.4th at 63. A meaningful
difference may include:
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 to the problem or
emergency to be confronted; the statutory or other
legal mandate under which the officer was operating;
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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.
Abbasi, 582 U.S. at 139-40. It may also include “a ‘new
category of defendants.’” Egbert, 596 U.S. at 492 (citation
omitted).
If the court decides that a “case does present a new Bivens
context, its next and final question is whether there are any
‘special factors’ counseling against extending Bivens.”
Quinones-Pimentel, 85 F.4th at 70 (quoting Egbert, 596 U.S. at
492). The Supreme Court has not clearly defined what is meant
by “special factors” for purposes of this analysis. Quinones-
Pimentel, 85 F.4th at 70 (quoting Egbert, 596 U.S. at 493).
“Special factors” include “‘alternative remedial structures,’
such that if Congress has already given a would-be Bivens
plaintiff a way to redress the constitutional violation, the
Bivens suit cannot proceed.” Id.
A. New Context
Mr. Thomas asserts constitutional claims this Court
construes as asserting violations of his Fifth Amendment due
process rights. Those claims, however, differ significantly
from the Fifth Amendment gender discrimination claim previously
recognized by the Supreme Court in Davis, as well as the claims
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in Bivens and Carlson, and therefore present a new Bivens
context. See Roundtree v. Bureau of Prisons, C/A No. 6:23-cv-
01701-SAL-KFM, 2023 U.S. Dist. LEXIS 236573, at *9, 2023 WL
10479550, at *4 (Dec. 12, 2023) (“the plaintiff’s Bivens claim,
that his sentence is being improperly calculated, is a new
Bivens context”), R&R adopted 2024 U.S. Dist. LEXIS 52499, at
*2, 2024 WL 1259266, at *1 (D.S.C. Mar. 25, 2024).
B. Special Factors/Alternative Remedies
As Mr. Thomas’s claims present a new Bivens context, this
Court considers whether there are “special factors” which
counsel against extending the Bivens doctrine to the claims in
this case. In this action for damages, Mr. Thomas seeks relief
from the BOP’s improper calculation of his sentence. Mr. Thomas
previously sought and obtained relief for the same improper
sentence calculations in his § 2241 Petition in this Court,
specifically, an Order directing the BOP to recalculate Mr.
Thomas’s sentence.
A prisoner’s ability to obtain relief through a § 2241
petition on claims relating to BOP’s sentence calculations
counsels against finding a Bivens remedy in this context.2
2 Relying on cases decided by Federal Circuit Courts of
Appeals issued prior to the Supreme Court’s decisions in Abbasi
and Egbert, Mr. Thomas asserts that, because he was barred, by
Heck v. Humphrey, 512 U.S. 477 (1994), from pursuing the damages
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Although the deterrent effect of a successful habeas petition
may not be as great as that which could come from a personal
capacity claim for damages, equitable “remedies that
provide no compensation for victims and little deterrence for
violators, such as injunctions and writs of habeas corpus,”
still “trigger the general rule that, ‘when alternative methods
of relief are available, a Bivens remedy usually is
not.’” Farah v. Weyker, 926 F.3d 492, 502 (8th Cir.
2019) (emphasis in original) (quoting Abbasi, 582 U.S. at 145));
see also Thomas v. Paul, Case No. 16-cv-12-SM, 2019 DNH 153,
2019 U.S. Dist. LEXIS 158085, at *11, 2019 WL 4451349, at *4
(D.N.H. Sept. 17, 2019). “[L]egislative action suggesting that
Congress does not want a damages remedy is itself a fact
counseling hesitation.” Abbasi, 582 U.S. at 148.
Congress created § 2241, which provides a remedy for a
prisoner asserting that the erroneous calculation of his federal
sentence violated his constitutional rights in a manner that
extends the duration of his confinement, but did not provide a
damages remedy for such a violation. Additionally, in enacting
claims asserted here until he obtained a “favorable termination”
of his challenge by the granting of his § 2241 Petition, the
granting of his § 2241 Petition entitles him to pursue damages
claims based on the events underlying the § 2241 Petition.
Satisfaction of Heck’s “favorable termination” requirement,
however, does not itself give rise to a cause of action for
damages where no such cause exists.
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42 U.S.C. § 1983, Congress created a cause of action for damages
to remedy alleged constitutional violations by state actors,
including prison employees and officials, but did not provide a
similar cause of action for federal prisoners alleging
constitutional violations against their jailers. Those
legislative acts and omissions suggest that Congress did not
intend to create a damages remedy for federal prisoners for
violations of their federal constitutional rights by federal
employees or officials. Cf. Abbasi, 528 U.S. at 148 (Congress’s
passage of the Prison Litigation Reform Act fifteen years after
the Supreme Court decided Carlson makes it “clear that Congress
had specific occasion to consider the matter of prisoner abuse
and to consider the proper way to remedy those wrongs,” and did
“not provide for a standalone damages remedy against federal
jailers,” suggesting that “Congress chose not to extend the
Carlson damages remedy to cases involving other types of
prisoner mistreatment.”).
This Court concludes that a Bivens remedy is not
appropriately inferred as to Mr. Thomas’s Fifth Amendment due
process claims. Congress, and not the courts, is better
situated to weigh the costs and benefits of creating a damages
remedy for such claims. See Abbasi, 582 U.S. at 136 (purpose of
special factors inquiry is to determine if Congress, not the
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Judiciary, “is in the better position to consider if ‘the public
interest would be served’ by imposing . . . ‘new substantive
legal liability’” (quoting Schweiker v. Chilicky, 487 U.S. 412,
426-427 (1988)) (citations omitted)). The District Judge,
therefore, should dismiss Mr. Thomas’s due process claims
relating to the BOP’s calculation of his sentence, the BOP’s
handling of his administrative complaints about his sentence,
and the BOP’s remaining acts and omissions that form the basis
of the relief granted in Mr. Thomas’s § 2241 Petition and/or the
claims asserted here.
II. Negligence Claims Asserted Under the FTCA
The FTCA provides this court with jurisdiction over certain
claims for damages asserted against the United States, arising
from allegations that federal employees caused injuries or
property damage through their tortious acts or omissions, while
acting within their scope of employment. See 28 U.S.C.
§§ 1346(b)(1), 2674.
An FTCA claim is actionable if it alleges the six
elements of § 1346(b), which are that the claim be:
“[1] against the United States, [2] for money
damages, . . . [3] for injury or loss of
property, or personal injury or death [4] caused
by the negligent or wrongful act or omission of
any employee of the Government [5] while acting
within the scope of his office or employment, [6]
under circumstances where the United States, if a
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private person, would be liable to the claimant
in accordance with the law of the place where the
act or omission occurred.”
Brownback v. King, 592 U.S. 209, 212 (2021) (quoting FDIC v.
Meyer, 510 U.S. 471, 475–76 (1994)). In the case of a plaintiff
who has been convicted of a felony, and who is incarcerated at
the time his FTCA action is filed, § 1346(b)(2) requires that
the plaintiff establish an additional element: a “showing of
physical injury or the commission of a sexual act.” 28 U.S.C. §
1346(b)(2).
Here, Mr. Thomas does not assert any physical injury or
sexual act, and specifically states that his damages are for
mental and emotional injury.3 See Doc. No. 1, at 6. Mr. Thomas
has failed to demonstrate, or even allege, that he suffered any
physical injury or sexual act that might give rise to a claim
under the FTCA. On that basis, the District Judge should
dismiss Mr. Thomas’s FTCA claim on that basis.
III. Unspecified Federal Statutory Claims
Mr. Thomas asserts generally that defendants are liable for
violating his federal statutory rights. Apart from the FTCA,
3 According to a letter Mr. Thomas attached to his
complaint, his administrative tort claim was denied under
§ 1346(b)(2), as Mr. Thomas did not allege any “specific
physical injury actionable under the Federal Tort Claims Act.”
Doc. No. 1-2.
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discussed above, Mr. Thomas points to no specific federal
statutes which Defendants violated. The District Judge should
dismiss Mr. Thomas’s claims asserting violations of unspecified
federal statutes, as he fails to plead facts sufficient to
demonstrate that Defendants have violated any federal statute
giving rise to a private right of action for damages which can
be litigated in this matter.
Conclusion
For the foregoing reasons the District Judge should dismiss
this action in its entirety, and should direct the Clerk’s
office to enter judgment and close this case. Any objections to
this Report and Recommendation must be filed within fourteen
days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2).
The objection period may be extended upon motion. Only those
issues raised in the written objections “‘are subject to review
in the district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016) (citations omitted).
___________ ______________
Andrea K. Johnstone
United States Magistrate Judge
May 28, 2024
cc: Robert Thomas, pro se
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