Callahan v. Fed. Bureau of Prisons

965 F.3d 520

Scott O. CALLAHAN, Plaintiff-Appellant,

v.FEDERAL BUREAU OF PRISONS; Steven Garcia, individually; Francisco J. Quintana, individually, Defendants-Appellees.

No. 19-5210

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 16, 2020

OPINION

SUTTON, Circuit Judge.

Federal prison officials seized one of Scott Callahan's paintings and some mail-order photos on the ground that they violated the prison's rules against possessing sexually explicit materials. After filing internal grievances without success, Callahan turned to federal court to seek money damages and other relief under the First Amendment's right to freedom of speech. The district court declined to create an implied cause of action, often called a Bivens claim, under the First Amendment for Callahan's claim. We affirm.

Callahan has spent the past nine or so years in a federal prison after pleading guilty to child pornography charges. In prison, he took up painting and art history. He describes himself as a "fairly[ ] highly trained artist" and says his work is in demand. R. 1 at 3.

He tends to "paint pictures of women, mostly clad in bikinis," sometimes topless, sometimes wearing more clothing. R. 23-1 at 4–5. Some of the women in his paintings are "rendered sensuously," as Callahan acknowledges. R. 23-1 at 26. Prison administrators, including Steven Garcia (the recreation supervisor) and Francisco Quintana (the warden), have seized Callahan's paintings in the past when they went too far.

In this pro se lawsuit under the First Amendment against the Bureau of Prisons, Garcia, and Quintana, Callahan complains about their seizure of a painting in June 2017. The painting depicts a reclining, bikini-clad woman with exaggerated breasts. He also complains that the prison seized mail-order photos of "pretty women posing for pictures." R. 1 at 7–8. Before filing the lawsuit, he sought, and failed to obtain, relief through the prison grievance system. Callahan seeks $100,000 in compensatory damages, additional punitive damages, and declaratory and injunctive relief.

The district court dismissed the damages claim because Callahan lacked a cause of action against the Bureau of Prisons and prison officials. The court granted the defendants’ motion for summary judgment on the other claims because Callahan did not raise a triable issue over whether the defendants violated his rights. This appeal followed.

Between 1971 and 1980 in a trio of decisions, the Supreme Court recognized an implied cause of action by individuals who sued federal officers for violations of their constitutional rights. Carlson v. Green , 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) ; Davis v. Passman , 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) ; Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Court reasoned that sometimes individual-rights violations could be redressed only by damages, and it had the power to create such actions unless Congress limited them. Bivens , 403 U.S. at 397, 91 S.Ct. 1999.

Subsequent developments leave Callahan with a forbidding hill to climb. What started out as a presumption in favor of implied rights of action has become a firm presumption against them. The Supreme Court has not recognized a new Bivens action in the 40 years since Carlson . And it has repeatedly declined invitations, many just like Callahan's, to create such actions. Ziglar v. Abbasi , ––– U.S. ––––, 137 S. Ct. 1843, 1857, 198 L.Ed.2d 290 (2017) (collecting eight examples). Over the same period of time, it has renounced the method of Bivens , Davis , and Carlson . When asked "who should decide" whether a cause of action exists for violations of the Constitution, "[t]he answer most often will be Congress." Id. The Court has not just rejected the Bivens inclination that a private right of action exists when Congress is silent; it has adopted the opposite approach in statutory and constitutional cases. See Alexander v. Sandoval , 532 U.S. 275, 286–87, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

The Court's actions over the last four decades match its words. Most telling of all, it has rejected extensions of Bivens to claims that involve constitutional rights that Bivens already reaches. Carlson , for example, authorized a Bivens action for an Eighth Amendment claim of deliberate indifference to an inmate's medical needs. 446 U.S. at 16–18, 100 S.Ct. 1468. But Minneci v. Pollard rejected a deliberate-indifference claim in the context of a privately operated prison, even if the Eighth Amendment otherwise applied there. 565 U.S. 118, 121, 131, 132 S.Ct. 617, 181 L.Ed.2d 606 (2012). Bivens itself involved a Fourth Amendment seizure. 403 U.S. at 389–90, 91 S.Ct. 1999. But just five months ago, Hernandez v. Mesa rejected an invitation to innovate a similar remedy for a Fourth Amendment claim arising from a cross-border shooting. ––– U.S. ––––, 140 S. Ct. 735, 744, 750, 206 L.Ed.2d 29 (2020).

The problem for Callahan is not just that there has been a long drought since the Court last recognized a new Bivens action or even that the Court has cut back on the three constitutional claims once covered. What's harder still is that the Court has never recognized a Bivens action for any First Amendment right, Reichle v. Howards , 566 U.S. 658, 663 n.4, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012), and it rejected a First Amendment retaliation claim decades ago for federal employees, Bush v. Lucas , 462 U.S. 367, 368, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). There's something to be said for leaving it at that and pointing out that the best idea for people in Callahan's situation is to urge Congress to create a cause of action for constitutional claims against federal officials like the one used against state officials. See 42 U.S.C. § 1983.

But even if we look at the court-created criteria for ascertaining whether a Bivens claim exists, they do not help Callahan. One consideration is whether the proposed claim differs "in a meaningful way from previous Bivens cases decided by th[e] Court." Abbasi , 137 S. Ct. at 1859. As just shown, that does not help Callahan because his First Amendment claim arises in a context the Supreme Court has never countenanced before—and indeed once rejected.

Another consideration is whether "special factors counsel[ ] hesitation" in recognizing the new claim. Id. Those factors include whether existing legislation covers the area and whether alternative processes exist for protecting the right. Id. at 1858, 1862. We also consider separation-of-powers principles, including the risk of interfering with the authority of the other branches and whether the judiciary can competently weigh the costs and benefits at stake. Hernandez , 140 S. Ct. at 743.

These considerations do not help Callahan either. "[L]egislative action suggesting that Congress does not want a damages remedy" counsels against judicial do-it-yourself projects. Abbasi , 137 S. Ct. at 1865. Congress paid close attention to inmate constitutional claims when it enacted the Prison Litigation Reform Act of 1995. 42 U.S.C. § 1997e. The Act "does not provide for a standalone damages remedy against federal jailers." Abbasi , 137 S. Ct. at 1865. That suggests a considered decision not to extend a damages remedy to First Amendment violations. Id.

In addition, "when alternative methods of relief are available, a Bivens remedy usually is not." Id. at 1863. Alternative processes, for Bivens purposes, do not have to be creations of Congress. Minneci , 565 U.S. at 126–31, 132 S.Ct. 617. Nor must a sufficient scheme be "perfectly congruent" with a Bivens remedy or "provide complete relief" for the alleged violation. Id. at 129, 132 S.Ct. 617 (quotation omitted). The federal prisons’ grievance process provides an alternative path for Callahan to air his claims. 28 C.F.R. § 542.10 et seq. The process is substantial; it contains its own statutes of limitations, filing procedures, and appeals process. Id. §§ 542.13–15. And prisoners may retain attorneys for assistance with the process. Id. § 542.16. That resembles the many cases in which the Court has pointed to existing schemes providing relief to injured parties and deterrence to constitutional violations. See Abbasi , 137 S. Ct. at 1863 (collecting cases).

Prison-based claims also present a risk of interference with prison administration. "Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources." Turner v. Safley , 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Those tasks fall "peculiarly within the province of the legislative and executive branches." Id. at 85, 107 S.Ct. 2254. Given the array of challenges facing prison administration and the complexity of those problems, "separation of powers concerns counsel a policy of judicial restraint," id. —counsel in favor in other words of the judiciary not creating new causes of action in this area. That First Amendment claims have less purchase in prisons for some of these same reasons, see id ., would make it especially puzzling to recognize a Bivens First Amendment claim for federal inmates but not for federal employees. See Bush , 462 U.S. at 368, 103 S.Ct. 2404.

Callahan's claims bring these considerations into focus. He is in prison based on serious child pornography convictions. His lawsuit challenges the prison's determination that his painting project and pictures were sexually explicit enough to increase risks of harassment of female personnel and disorder among prisoners. See Mauro v. Arpaio , 188 F.3d 1054, 1059 (9th Cir. 1999). Defining similar concepts has bedeviled the courts. Cf. Jacobellis v. Ohio , 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, J., concurring). We ought to hesitate before volunteering the judiciary to extend deep enough into everyday federal prison administration to apply those standards to endless variations of racy and provocative...