Matthew P. Borowski v. Kimberly Bechelli

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 20, 2019*
Decided June 20, 2019
Before
MICHAEL S. KANNE, Circuit Judge
AMY C. BARRETT, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 19‐1113
MATTHEW P. BOROWSKI,
Plaintiff‐Appellant,
v.
KIMBERLY BECHELLI, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 3:16‐cv‐00848‐JPG‐GCS
J. Phil Gilbert,
Judge.
O R D E R
Matthew Borowski, a federal inmate, sues prison officials under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for First
Amendment violations. He contends that the defendants improperly rejected a calendar
featuring photographs of scantily clad female models in sexually suggestive poses. The
district court granted the defendants’ motion to dismiss, concluding that Borowski
cannot pursue a First Amendment claim with a Bivens action. We affirm the judgment.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. See FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 19‐1113 Page 2
Borowski is housed at the federal penitentiary in Marion, Illinois—a facility with
a Sexual Offender Management Program designed to rehabilitate sexual offenders, like
Borowski, and reduce their risk of recidivism. Borowski twice tried to obtain a risqué
calendar, once from an outside vendor and once from his mother. But prison officials
returned the publications in accordance with mail screening procedures. Citing Bureau
of Prisons Program Statement 5266.11, they explained that the calendar was rejected
because it contained “sexually explicit material” and “features nudity.” See 28 C.F.R.
§§ 540.71(b)(7), 540.72(a). Borowski disputed those findings through the prison’s
internal grievance procedure. He relied on his email communications with the vendor
in which the vendor stated that the calendar did not feature nudity and confirmed that
other federal prisons had not rejected the publication.
When the grievance procedure proved unsuccessful, Borowski brought a Bivens
suit, alleging violations of his First Amendment right to receive publications. (He also
claimed that the defendants violated his due‐process rights, but he does not challenge
that claim’s dismissal on appeal.) The defendants moved to dismiss the complaint, and
the magistrate judge recommended granting their motion. Accepting the
recommendation, the district judge concluded that extending Bivens to cover Borowski’s
claim would contravene the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843
(2017), which strongly cautioned against creating new Bivens claims where an
alternative remedial structure already exists to protect the constitutional right.
Borowski acknowledges that the Supreme Court has not declared First
Amendment violations actionable under Bivens. See, e.g., Reichle v. Howards, 566 U.S. 658,
663 n.4 (2012). Thus, on appeal, he does not meaningfully challenge the district court’s
reasoning. Instead, he argues that the Supreme Court’s holding in Abbasi should be
overturned because it arbitrarily eliminates judicial remedies for federal prisoners. But
this court cannot disregard Supreme Court precedent; we can do no more than
acknowledge that Borowski has preserved the argument. See United States v. Faulkner,
793 F.3d 752, 756 (7th Cir. 2015).
AFFIRMED

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