Biron v. Upton

LISA BIRON, (BOP No. 12775-049) Plaintiff, v. JODY UPTON, Warden, FMC-Carswell, et al. Defendants.

Civil Action No. 4:15-CV-205-P

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

January 7, 2020

OPINION and ORDER GRANTING MOTION TO DISMISS

This case was recently reassigned from the docket of Judge Reed O'Connor the docket of the undersigned district judge. Special Order, ECF No. 55. Now pending is the collective motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) filed by all Defendants. Mot. Dismiss, ECF No. 45. Plaintiff Lisa A. Biron has filed a response to the motion to dismiss (ECF No. 53), and Defendants filed a reply (ECF No. 54). After considering the relief sought by Biron, the record, the briefing and the applicable law, the Court finds that the Defendants' motion to dismiss must be GRANTED, and all Biron's claims must be dismissed.

I. BACKGROUND

A. § 1915A/1915(e)(2)(B) Initial Screening, Appeal, and Order of Remand

Biron, then an inmate at the Bureau of Prisons' FMC-Carswell facility, filed a complaint naming as defendants several officials at FMC-Carswell in their individual and official capacities, and asserting claims for relief under the First, Fifth, and Eighth Amendments under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), and seeking monetary damages and declaratory and injunctive relief. Compl. 2-6, ECF No. 1. In an order and judgment issued under authority of 28 U.S.C. § 1915A and 1915(e)(2)(B), the then presiding judge dismissed all claims. Order 1-13, ECF No. 13. Biron appealed. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of Biron's Eighth Amendment claim and all official capacity claims, but vacated the dismissal of the remaining claims and remanded for further proceedings. Biron v. Upton, 737 F. App'x 713 (5th Cir. 2018). After remand, Biron filed a first amended complaint. First Am. Complaint 1-10, ECF No. 27.

B. Related Habeas Corpus Cases

Before the Court recites the claims in Biron's first amended complaint, it is important to place those claims in context with her criminal conduct, with prior suits seeking habeas corpus relief, and with court orders issued during her criminal prosecution proceedings. Prior to filing this civil suit seeking relief under Bivens, Biron filed four separate petitions challenging disciplinary proceedings in this district under 28 U.S.C. § 2241; Biron v. Upton, No. 4:14-cv-603-O (N.D. Tex. Aug. 1, 2014) (order dismissing for lack of jurisdiction); Biron v. Upton, No. 4:14-cv-627-A (N.D. Tex. Aug. 15, 2014) (order dismissing for lack of exhaustion); Biron v. Upton, No. 4:14-cv-772-O (consolidated with 4:14-cv-823-O) (N.D. Tex. June 9, 2015) (order dismissing in part and denying in part).¹ The background sectionof the Opinion and Order issued by the court in case number 4:14-cv-772-O explains:

[Biron] was charged in the United States District Court for the District of New Hampshire with transportation of a minor with intent to engage in criminal sexual activity, sexual exploitation of children, and possession of child pornography. Resp's App., No. 4:14-CV-823-O, at 6, ECF No. 19. All charges involved her minor daughter, R.B. On December 4, 2012, before the criminal trial, the 9th Circuit-Family Division Court of Manchester, New Hampshire, ordered that Petitioner "shall not contact or attempt to contact R.B. either directly or indirectly" and "shall have no contact with R.B. including third party contact except that as may be deemed appropriate by and monitored by DCYF." [FN- "DCYF" stands for the Division for Children, Youth and Families of the State of New Hampshire's Department of Health and Human Services according to the Department's website.] Id. at 6, 12. Also, on January 3, 2013, before the criminal trial, the convicting court, as an addendum to its detention order, ordered that Petitioner "shall have no contact (either direct or indirect) with the minor victim between now and the resolution of this case." Id. at 21. Following her convictions, Petitioner appealed, but, on November 14, 2014, the First Circuit affirmed the judgment of the convicting court, and, on March 23, 2015, the Supreme Court denied a petition for writ of certiorari. Id. at 78; Order, Biron v. United States, 135 S. Ct. 1576 (2015). Petitioner continues to serve her combined 480-month term of imprisonment.

Op. and Order 1-2, ECF No. 16, Biron v. Upton, No.4:14-CV-772-O.

As referenced, prior to Biron's criminal conviction, on December 4, 2012, the 9th Circuit Family Division Court of Manchester, New Hampshire, held a "dispositional hearing" regarding Biron's parental rights with respect to her daughter. Hearing Order 1-7, Biron v. Upton, No. 4:14-CV-823-O, ECF No. 19-1, 4-7; ECF No. 19, 6-7.² Finding that Biron's daughter had suffered abuse, the New Hampshire, Family Division Court ordered that Biron "shall not contact or attempt to contact [R.B.] either directly or indirectly" and "shall haveno contact with [R.B.] including third party contact except that as may be deemed appropriate by and monitored by DCYF." Hearing Order 7, Biron v. Upton, No. 4:14-cv-823-O, ECF No. 19. Each of Biron's § 2241 petitions ultimately challenged the Bureau of Prisons (BOP) disciplinary proceedings brought against Biron for her attempts, while housed in FMC-Carswell, to make contact with her minor daughter R.B. See Op. and Order 1-2, Biron v. Upton, No. 4:14-cv-603-O, ECF No. 4; Mem. Op. and Order 1-2, Biron v. Upton, No. 4:14-cv-627-A, ECF No. 6; Op. and Order 2-8, Biron v. Upton, No. 4:14-cv-772-O, ECF No. 16.

C. Biron's First Amended Complaint

Biron's first amended complaint re-asserts violations of the First and Fifth Amendments to the Constitution over actions taken by FMC-Carswell officials to attempt to regulate her continuing efforts to make contact with R.B., including seeking compensatory and punitive monetary damages and declaratory relief. First Am. Complaint 1-2, 10, ECF No. 27. She names as defendants persons associated with FMC-Carswell: Jody Upton, (then) warden; Lauren Cimperman (Carter), staff psychologist; Debra Winger, special investigative services (SIS) officer; Lieutenant Kingsley, SIS officer; and E. Smith-Branton, identified as a member of the disciplinary committee. Id. 1, 4. Biron recites numerous claims against these defendants arising from their actions in attempting to block her communication with R.B. including (as numbered by Biron):

¶ 9. On or about June 30, 2014, SIS Officer Wenger intercepted, stopped, and confiscated a letter mailed by Ms. Biron to her daughter R.B.

¶ 10. On or about June 30, 2014, SIS Officer Wenger intercepted, stopped, and confiscated mail mailed by Ms. Biron to her father (and power of attorney) Michael Bonczar.

¶ 11. On or about July 5, 2014, Warden Jody Upton was made aware of thiswrongful mail interception and confiscation via detailed email from Ms. Biron and failed to act to rectify this wrongful action.

¶ 12. On or about July 15, 2014, Lauren Cimperman told Ms. Biron not to contact or attempt to contact her daughter R.B.

¶ 13. On or about October 16, 2014, warden Jody Upton issued a "Restricted Correspondence Notification" to bar Ms. Biron's lawful mail to her daughter R.B.

¶ 14. On or about November 19, 2014 and on or about November 30, 2014, SIS Officer Wenger intercepted and stopped two (2) letters written and mailed by Ms. Biron to Michael Biron (her ex-husband) and told Ms. Biron that she could no longer send mail to Michael Biron.

¶ 15. On or about December 1, 2014 through December 3, 2014, Warden Jody Upton was informed and failed to intervene and correct the wrongful interference with the two (2) November 2014 mailings to Michael Biron, and directed or allowed staff to block future mailings to both R.B. and Michael Biron by disabling her ability to print TRULINCS labels to their address which are required to send mail.

¶ 16. On or about November 27, 2014, SIS Officer Wenger in concert with Warden Upton blocked Ms. Biron's ability to call Michael Biron and R.B.

¶ 17. On or about December 12, 2014, Lauren Cimperman, in concert with SIS Officer Kingsley, imposed a "Correctional Management Plan" to bar Ms. Biron's contact with R.B.

¶ 18. On January 28, 2015, Lauren Cimperman issued a prison discipline report against Ms. Biron for asking a family member over the phone to find out how R.B. liked a book that she had received for Christmas.

¶ 19. On or about February 24, 2015, Lauren Cimperman issued a prison discipline report against Ms. Biron for asking the family's pastor to contact R.B. to see how she was doing.

¶ 20. On or about February 26, 2015, Ms. E. Smith-Branton sanctioned Ms. Biron with loss of telephone privileges in connection with the February 24, 2015 incident report for attempting to exercise her constitutional right to contact R.B.¶ 21. On or about March 12, 2015, Ms. E. Smith-Branton sanctioned Ms. Biron with loss of telephone privileges in connection with the January 28, 2015 incident report for attempting to exercise her constitutional right to contact R.B.

¶ 23. Since Ms. Biron's transfer to FCI Waseca, MN, she has requested that the illegal bar to contact with her daughter R.B. be removed. Her request was denied because the staff at Waseca did not independently evaluate the situation and continue to enforce the Carswell defendants' unconstitutional bar to contact.

First Am. Complaint, 4-8, ECF No. 27. Immediately after the listing of each of these factual allegations, Biron recites that "[This 'act' or 'action'] violated Ms. Biron's rights under the First and Fifth Amendment to the U.S. Constitution as no State or Federal bar to contact existed or exists and said act served no legitimate penalogical [sic] purpose in furtherance of the safety and security of the institution or staff or protection of the public." Id. Biron also contends that she has a "First Amendment right to association with her...