Harvey R. Johnson v. Officer Jason Cooke

USCA11 Case: 21-12096 Date Filed: 10/12/2022 Page: 1 of 5

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 21-12096 Non-Argument Calendar ____________________

HARVEY R. JOHNSON, Plaintiff-Appellant, versus OFFICER JASON COOKE, LIEUTENANT KEVIN BURDEN, LIEUTENANT BOBBY ROY, LIEUTENANT JOSEPH FREEHILL, WARDEN, et al.,

Defendants-Appellees, USCA11 Case: 21-12096 Date Filed: 10/12/2022 Page: 2 of 5 2 Opinion of the Court 21-12096 WARDEN, FCI MIAMI, et al.,

Defendants.

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Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:15-cv-21790-JAL ____________________

Before WILSON, GRANT, and ANDERSON, Circuit Judges. PER CURIAM: Plaintiff-Appellant Harvey Johnson, a former federal pris- oner proceeding pro se, appeals the district court’s grant of sum- mary judgment 1 in favor of several Bureau of Prison (BOP) staff members, arguing that Bivens 2 should be extended to allow him to

1 We review a district court’s order granting summary judgment de novo, viewing all the evidence, and drawing all reasonable inferences, in favor of the non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (per curiam). Summary judgment is appropriate when the record shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). 2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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recover money damages for his First Amendment retaliation claims. Under Bivens, injured plaintiffs can bring a cause of action for damages against federal officers based on violations of their con- stitutional rights. Behrens v. Regier, 422 F.3d 1255, 1263 n.15 (11th Cir. 2005). But the Supreme Court disfavors the expansion of Bivens beyond the three specific contexts 3 in which it has already been applied. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). The Supreme Court also held that, generally, Bivens will not be ex- tended to a new context where special factors counsel hesitation with no affirmative action by Congress. Id. at 1857. Although the Supreme Court did not define the phrase “special factors counsel- ing hesitation,” it 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 allow- ing a damages action to proceed.” Id. at 1857–58. In Egbert v. Boule, a recent Supreme Court decision, the plaintiff asserted a First Amendment claim under Bivens against a Border Patrol Agent based on allegations that the agent retaliated against him after he filed a grievance with the agent’s supervisors, and an administrative claim with the Border Patrol, under the

3 Bivens has been applied in the context of a Fourth Amendment case involv- ing an unreasonable search and seizure, a Fifth Amendment gender-discrimi- nation case, and an Eighth Amendment case involving cruel and unusual pun- ishment for denial of medical treatment. Ziglar v. Abbasi, 137 S. Ct. 1843, 1854–55 (2017).

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Federal Tort Claims Act. 142 S. Ct. 1793, 1801–02 (2022). The Su- preme Court held that the court of appeals plainly erred when it created a cause of action for the First Amendment retaliation claim. Id. at 1804. It explained that, in determining whether to infer a cause of action under Bivens, “[a] court faces only one question: whether there is any rational reason (even one) to think that Con- gress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed’” than the judiciary. Id. at 1805 (citing Ziglar, 137 S. Ct. at 1858). Ultimately, the Supreme Court deter- mined that the judiciary is ill equipped to alter the framework es- tablished by the political branches for addressing conduct that al- legedly violates the Constitution, “especially . . . when it comes to First Amendment claims.” Id. at 1808. Although the district court did not have the benefit of Eg- bert, the district court clearly noted that “Congress is in the better position than the Court” to consider the costs and benefits of al- lowing a new Bivens claim for damages to proceed. Considering that the district court correctly followed the inquiry from Ziegler, the district court was correct in not extending Bivens to the First Amendment retaliation claims. Thus, given the Supreme Court’s recent, express refusal to extend Bivens to First Amendment retaliation claims and the dis- trict court’s analysis that Congress is better suited to weigh the costs and benefits of permitting federal prisoners to bring actions for money damages against BOP staff, the district court correctly

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granted summary judgment in the BOP staff members’ favor. Ac- cordingly, we affirm. AFFIRMED.