UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Oliver Thomas

v. Case No. 16-cv-12-SM Opinion No.

Joey Paul and M. Vigneault

O R D E R

Before the court is defendants’ Supplemental Motion for

Summary Judgment (Doc. No. 77). Plaintiff, Oliver Thomas,

objects. See Doc. No. 79.

Background

Thomas alleges violations of his constitutional rights

while he was an inmate at the Federal Correctional Institution

in Berlin, New Hampshire (“FCI Berlin”). Since filing this

action, he has been transferred to FCI Forrest City Medium, in

Arkansas.

Thomas, who is African American, filed a complaint in

federal district court on January 6, 2016, alleging that while

employed in the prison laundry at FCI Berlin he was subjected to

racial discrimination and violations of his First Amendment

right to free speech. In its preliminary review pursuant to

(e)(2), the court construed Thomas’s Complaint as

asserting three types of claims:

1 In Claim 1, Thomas alleges that defendants, two FCI Berlin

laundry room supervisors, Corrections Officer (“C.O.”) Joey Paul

and C.O. M. Vigneault, violated his Fifth Amendment right to

equal protection by: (a) firing him because of his race; (b)

paying him less than they paid white inmates and denying him a

bonus paid to white inmates; and (c) demoting him so his

position could be given to a white inmate.

In Claim 2, Thomas asserts that defendants violated his

First Amendment right to petition the government by firing him

in retaliation for threatening to report their racially and

sexually motivated behavior to prison officials.

And in Claim 3, Thomas claims that defendants violated his

First Amendment right to free speech by coercing him to lie to

safety inspectors, by threatening to fire him if he told the

truth about improper practices in the laundry. See July 13,

2016 Order (Doc. No. 11) (approving May 16, 2016 Report and

Recommendation (“R&R”) (Doc. No. 5)).

Thomas seeks reinstatement with full benefits, back pay,

compensatory damages, punitive damages, declaratory relief, and

other unspecified injunctive relief. The court construed

Thomas’s damages claims as asserted against Paul and Vigneault

in their individual capacities under Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics,

(1971).

2 In 2017, defendants moved to dismiss Thomas’s claims for

failure to state a claim and failure to exhaust administrative

remedies. The court denied the motion without prejudice as to

the exhaustion argument. See July 17, 2017 Order (Doc. No. 54)

(approving June 21, 2017 R&R (Doc. No. 53)). Defendants then

filed a Motion for Summary Judgment, focusing on Claims 1 and 2.

(Doc. No. 64).

The court denied the Motion for Summary Judgment without

prejudice to defendants’ ability to refile a similar dispositive

motion addressing four issues identified by the court. See

Sept. 10, 2018 Order (Doc. No. 71). The court appointed counsel

to represent Thomas for the purpose of responding to any

dispositive motion filed by defendants in response to the Sept.

10, 2018 Order. See Sept. 10, 2018 Order (Doc. No. 72); Oct. 5,

2018 Order (Doc. No. 73).

Defendants have filed a supplemental motion for summary

judgment (Doc. No. 77), and Thomas, through counsel, has filed

an objection (Doc. No. 79). This matter is ripe for review.

Summary Judgment Standard

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

3

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “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). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

Consequently, “[a]s to issues on which the party opposing

summary judgment would bear the burden of proof at trial, that

party may not simply rely on the absence of evidence but,

rather, must point to definite and competent evidence showing

the existence of a genuine issue of material fact.” Perez v.

Lorraine Enters.,

, 29–30 (1st Cir. 2014). In other

words, “a laundry list of possibilities and hypotheticals” and

“[s]peculation about mere possibilities, without more, is not

enough to stave off summary judgment.” Tobin v. Fed. Express

Corp.,

, 451–52 (1st Cir. 2014). See generally

Anderson v. Liberty Lobby, Inc.,

(1986).

Discussion

Thomas seeks damages, injunctive relief, and declaratory

relief on each of his claims, namely, his First Amendment

4 compelled speech claim, alleging he was compelled to lie to

workplace safety inspectors upon the threat of being fired

(Claim 3); his First Amendment retaliation claim, alleging a

retaliatory job termination (Claim 2); and his Fifth Amendment

equal protection claims, alleging race discrimination in his

compensation (Claim 1(a)), his demotion (Claim 1(c)), and his

job termination (Claim 1(b)). Defendants move for summary

judgment on each of those claims, arguing that the Bivens

doctrine does not provide a damages remedy in Thomas’s

circumstances, and that Thomas presently lacks standing to

obtain injunctive relief. 1

I. Availability of Bivens Remedy

The Bivens doctrine allows a plaintiff to vindicate certain

constitutionally protected rights through a private cause of

action for damages against federal officials in their individual

capacities. See DeMayo v. Nugent,

(1st Cir.

2008). An action under Bivens serves as a limited “federal

analog to [42 U.S.C.] § 1983 suits against state officials.”

Soto–Torres v. Fraticelli,

(1st Cir. 2011).

1Defendants also argue that Thomas failed to exhaust his available administrative remedies. As the Bivens issue is dispositive, this court does not address the exhaustion issue.

5 Courts presented with Bivens claims must first consider

whether the claim presents a new context for applying Bivens.

See Ziglar v. Abbasi,

(2017) (test for

determining if Bivens context is new). A court must decline to

expand Bivens into a new context if “there are special factors

counselling hesitation in the absence of affirmative action by

Congress,” Abassi,

(internal quotation marks

and citations omitted), taking into consideration such factors

as whether “alternative methods of relief are available” to the

plaintiff,

(“when alternative methods of relief are

available, a Bivens remedy usually is not”).

A. New Context

The first step in addressing Thomas’s Equal Protection and

Free Speech claims requires this court to determine whether

those claims in this case present new contexts for applying

Bivens. “If the case is different in a meaningful way from

previous Bivens cases, . . . then the context is new.” Abassi,

.

A case might differ in a meaningful way because of 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; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of

6 potential special factors that previous Bivens cases did not consider.

.

1. First Amendment Claims

Thomas’s First Amendment claims -- alleging that defendants

fired him in retaliation for his stated intent to report their

sexually charged comments and racial discrimination and alleging

that they forced him to lie about safety issues in the laundry -

- arise in a meaningfully different context than the three cases

in which the Supreme Court has recognized an implied cause of

action for damages for constitutional violations. See generally

Abassi,

-55 (citing Bivens; Davis v. Passman,

(1979); and Carlson v. Green,

(1980)).

The Supreme Court has never recognized a Bivens remedy for First

Amendment claims, and it has affirmatively declined to extend a

Bivens remedy to claims invoking the First Amendment. See Wood

v. Moss,

(2014) (acknowledging that the

Supreme Court has never recognized an implied damages remedy

under the First Amendment); Bush v. Lucas,

(1983) (declining to extend Bivens to federal employee’s First

Amendment retaliatory demotion claim). Moreover, although the

Supreme Court has extended the Bivens remedy to prisoners

asserting one type of prison conditions claim, it has done so

7 explicitly only for Eighth Amendment medical care claims. 2 See

Abbasi,

(citing Carlson,

).

There is no Supreme Court case like Thomas’s involving First

Amendment claims arising out of the prison workplace, and no

First Circuit case presenting like circumstances in which a

Bivens remedy has been inferred; it is clear that Thomas’s First

Amendment retaliatory job termination claim and First Amendment

compelled speech claim (Claims 2 and 3) both present new

contexts for Bivens.

2. Fifth Amendment Discrimination Claims

Similarly, Thomas’s Fifth Amendment race discrimination

claims present a new context for Bivens. In Davis v. Passman,

the Supreme Court held that an administrative assistant to a

member of Congress could bring a damages remedy against the

Congressman for workplace gender discrimination. 442 U.S. at

248–49; see also Lipsett v. Univ. of P.R.,

(1st

Cir. 1988) (following Davis in finding Bivens remedy for gender

2This court need not consider whether the Supreme Court or other controlling authority has implicitly expanded the reach of Bivens remedies to other types of prison conditions claims that are patently distinguishable from those at issue in this case. Cf. Bistrian v. Levi,

, 90–92 (3d Cir. 2018) (finding, in light of Farmer v. Brennan,

(1994), that pretrial detainee’s Fifth Amendment failure-to-protect claim was not a new context for Bivens).

8 discrimination claims of V.A. doctor). Thomas’s equal

protection claims arise out of a prison workplace setting, “a

highly regulated environment with little similarity to

employment for a Congressman,” Stile v. United States, No. CV

16-3832 (RMB),

, at *4,

, at *8-*9 (D.N.J. Jan. 22, 2019), or the surgical residency

at issue in Lipsett. Prisoners, unlike government employees

outside of a prison setting, lack the compensation protections,

and the right to obtain, maintain, and quit jobs when they will.

See generally U.S. Const. amend. XIII; see also Dupont v.

Saunders,

(1st Cir. 1986) (per curiam)

(“[P]risoners have no vested property or liberty rights to

either obtain or maintain prison jobs.” (citations omitted)).

Federal inmates are employed and compensated “solely by

legislative grace and primarily for their own benefit and

rehabilitation.” Stile,

, at *4,

, at *9; see also Sprouse v. Fed. Prison Indus., Inc.,

(5th Cir. 1973) (“whatever right plaintiffs have

to compensation is solely by congressional grace and governed by

the rules and regulations promulgated by the Attorney General”).

The prison workplace context here is thus meaningfully

distinguishable from prior cases like Carlson and Davis and

presents a new context for a Bivens remedy. See Stile,

, at *4,

, at *13; Brown v.

9 Cooper, No. 18-219 (DSD/BRT),

, at

*33,

, at *12 (D. Minn. Dec. 11, 2018), R&R

adopted, No. 18-219 (DSD/BRT),

,

(D. Minn. Jan. 7, 2019), appeal docketed, No. 19-1387

(8th Cir. Feb. 26, 2019); Alexander v. Ortiz, No. CV 15-6981

(JBS-AMD),

, at *11-*12,

, at *4 (D.N.J. Mar. 20, 2018) (prisoner’s claims of race

discrimination and retaliation in prison employment arise in a

context “vastly different” from Davis), appeal docketed, No. 18-

1778 (3d Cir. Apr. 13, 2018).

B. Alternative Remedies and Special Factors

Defendants argue that special factors counsel against

extending Bivens to plaintiff’s claims under the First and Fifth

Amendments. The special factors inquiry “concentrate[s] on

whether the Judiciary is well suited, absent congressional

action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.” Abbasi,

. “Special factors” may arise because some

“feature of a case . . . causes a court to pause before acting

without express congressional authorization.”

Special

factors have been found where “Congress has designed its

regulatory authority in a guarded way, making it less likely

10 that Congress would want the Judiciary to interfere.”

(citations omitted).

Since Abbasi, most courts considering the issue have

determined that special factors counsel against inferring Bivens

remedies for prisoners’ free speech claims and equal protection

claims, and courts considering claims arising out of a prison

workplace context have uniformly declined to find a damages

remedy available under Bivens. 3 This court has identified no

case in which any court has found that there is a Bivens remedy

for the type of prison employment retaliatory discharge, race

3See, e.g., Turner v. Doe, No. CV155942RBKAMD,

, at *15,

, at *6 (D.N.J. May 18, 2018) (“it should be left to the legislative and executive branches to determine whether an action for damages for a claim of racial discrimination exists in the prison-workplace environment” (citing Abassi and Alexander,

,

), aff’d on other grounds, No. 19-1030,

,

(3d Cir. July 10, 2019); Rodriguez v. Hamel, No. CV157980NLHKMW,

, at *4,

, at *8 (D.N.J. May 17, 2018) (“prison housing and the prison workplace are special factors precluding the extension of Bivens” to inmate’s First Amendment retaliatory transfer and job reassignment claims); see also Bistrian,

-96 & n.25 (no Bivens remedy for pretrial detainee’s First Amendment retaliation claim); Ajaj v. United States, No. 14-CV-01245-JPG-RJD,

,

, at *3 (S.D. Ill. Aug. 13, 2019) (no Bivens remedy for prisoner’s First Amendment free exercise and retaliation claims); Vanaman v. Molinar, No. CV-17-00222-TUC- JGZ,

, at *11,

, at *4 (D. Ariz. Sept. 28, 2018) (no Bivens remedy for prisoner’s First Amendment magazine censorship claim and Fifth Amendment equal protection claim).

11 discrimination, and work-related compelled speech claims Thomas

asserts here.

Defendants point to Thomas’s ability to obtain injunctive

relief on his claims, at the outset of the case, as an

alternative remedy that may be available in such circumstances,

precluding a Bivens remedy. Such “‘[a]lternative remedial

structures’” can take many forms, “including administrative,

statutory, equitable, and state law remedies.” Vega v. United

States,

(9th Cir. 2018) (citation omitted).

To decide if the existence of alternative remedies is a

“‘convincing reason’” for a court to refrain from extending

Bivens, courts consider whether the remedies provide “roughly

similar incentives” for potential defendants to comply with

federal constitutional provisions, “while also providing roughly

similar compensation to victims of violations.” Minneci v.

Pollard,

, 130 (2012) (citations omitted). Although

its deterrent effect 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,

(8th Cir.

2019) (emphasis in original) (quoting Abassi,

1863)). The potential availability of injunctive relief at the

outset of Thomas’s case is one factor counselling against

inferring a new damages remedy for his claims, as the

possibility of reinstatement or court-ordered backpay could

provide some measure of relief. But cf. Alexander,

, at *6,

, at *16-*17 (neither

writ of habeas corpus, nor injunction prohibiting future

discrimination, nor statutes providing remedies for federal tort

claims, for employment discrimination, and for prison work-

related injuries provided adequate alternative relief as to

inmate’s claims of discrimination and retaliation in prison

employment).

In circumstances where the BOP Administrative Remedy

Program (“ARP”) could provide some relief for the type of claims

at issue, the ARP can also be deemed to be an “alternative

remedial structure,” Abbasi,

, that weighs

against inferring a Bivens remedy. See Stile,

, at *16,

, at *6 (potential

availability of pay adjustments through ARP counselled against

finding a Bivens remedy for inmate’s Fifth Amendment equal

protection claims challenging the practice of docking his pay

for time he spent away from his workstation awaiting

distribution of his prescription medication). The ARP, designed

to allow inmates to seek formal review of any issues relating to

13 their confinement, allows for payroll corrections where

appropriate. See Stile,

, at *6,

, at *16. Here, Thomas’s workplace discrimination and

retaliatory discharge claims are the type of claims for which

relief through the ARP could provide monetary relief, roughly

similar to the compensatory relief Thomas seeks for his unequal

compensation, demotion, and job termination claims, see

generally

Cf. Jerra v. United States, No. 2:12-cv-01907-ODW

(AGRx),

, at *14,

, at

*5 (C.D. Cal. Mar. 29, 2018) (ARP does not preclude Bivens

remedy where inmate’s First Amendment retaliation claims were

“based on the fact the grievances he filed pursuant to the BOP’s

process resulted in retaliation”).

Even without finding that the ARP’s monetary remedy and the

possibility of injunctive relief are the types of alternative

remedial structures that preclude an inference of a Bivens

remedy in this case, this court would find that the heavily

regulated prison workplace setting for all of Thomas’s First and

Fifth Amendment claims, and the judicial restraint exercised in

cases implicating the administration of prisons, are special

factors that counsel against extending Bivens here. “Prison

administration is . . . a task that has been committed to the

responsibility of . . . [the legislative and executive]

branches, and separation of powers concerns counsel a policy of

14 judicial restraint.” Turner v. Safley,

(1987).

See also Abbasi,

(“When a party seeks to

assert an implied cause of action under the Constitution itself,

. . . separation-of-powers principles are or should be central

to the analysis.”).

Congress, in passing laws relating to the federal prison

workplace, has granted considerable discretion to the BOP to

regulate and administer prison employment, while exempting

prison jobs from coverage under federal laws governing

employment relations outside of the prison context, in light of

the special status of inmate workers. 4 Congress created the BOP

Federal Prison Industries program (known as “UNICOR”) to provide

authority for the industrial employment of federal inmates. See

. Congress has delegated authority to the

Attorney General to promulgate regulations to implement the

statutes authorizing inmate pay for industrial work, special

4Inmates may not recover damages under federal statutes regulating compensation and prohibiting employment discrimination, as inmates are not deemed to be BOP “employees” for purposes of those statutes. See Wilkerson v. Samuels,

(3d Cir. 2013) (per curiam) (unpublished) (“It is well established that a prisoner is not an employee under the Fair Labor Standards Act (FLSA), because the relationship is not one of employment, but arises out of the prisoner’s status as an inmate.”); Williams v. Meese,

, 997 (10th Cir. 1991) (federal prisoner is not BOP employee under either Title VII or Age Discrimination in Employment Act because their relationship “arises out of [the prisoner’s] status as an inmate, not an employee”).

15 compensation for institutional work assignments, and

compensation for work-related illnesses and injuries incurred in

institutional and industrial worksites. 5

(c)(4);

.

Pursuant to that authority, the BOP regulates the inmate

work program within each of its institutions. See

. Each sentenced inmate who can work is assigned to an

institutional, industrial, or commissary work program. See

§ 545.23. Each BOP warden is tasked with establishing an

Institution Inmate Work and Performance Pay Committee to

administer the institution’s work and performance pay program.

See id. § 545.22(a). BOP regulations govern inmate work/program

assignments, work conditions, eligibility for performance pay,

inmate vacations, special commendations, and BOP supervisory

5The Inmate Accident Compensation Act (“IACA”),

(c)(4), authorizes UNICOR to compensate inmates for “injuries suffered in any . . . work activity in connection with the maintenance or operation of the institution in which the inmates are confined.” Id.; see also

. Consistent with BOP’s regulatory definition of a work-related injury, courts have concluded that IACA funds are not available to compensate inmates who allege claims of constitutional violations like Thomas’s, see Alexander,

, at *20,

, at *6 (citing

), the unavailability of alternative remedies alone does not preclude this court from finding that there are other special factors counselling hesitation against extending Bivens to Thomas’s claims. See Alexander,

, at *7,

, at *20.

16 staff training, see

§§ 545.23-545.31, among other work-

related issues.

Given the heavily regulated nature of the prison workplace,

the restraint courts must exercise when confronting issues

affecting prison administration, and the potential availability

of alternative forms of relief for claims like Thomas’s, this

court concludes that a Bivens remedy is not appropriately

inferred as to any of Thomas’s First Amendment compelled speech,

First Amendment retaliation, and Fifth Amendment race

discrimination claim. Congress, and not the courts, is better

situated to weigh the costs and benefits of creating a damages

remedy for prison workplace misconduct like that alleged by

Thomas. Cf. Abbasi,

(purpose of special

factors inquiry is to determine if Congress, not the 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,

, 426-

427 (1988)) (citations omitted)). Defendants’ supplemental

motion for summary judgment on all of Thomas’s Bivens claims is

thus properly granted.

II. Availability of Equitable and Declaratory Relief

Defendants have also moved for summary judgment on

plaintiff’s claims for equitable and declaratory relief.

17 Plaintiffs who request equitable remedies must demonstrate a

“likelihood of substantial and immediate irreparable injury, and

the inadequacy of remedies at law.” O’Shea v. Littleton,

(1974); see also Rizzo v. Goode,

(1976) (“[p]ast exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse

effects” (quoting O’Shea,

).

Injunctive relief on Thomas’s claims against Vigneault and

Paul is no longer available to Thomas as he is now housed at

another BOP facility. See Ford v. Bender,

(1st

Cir. 2014) (in the absence of claims for damages, “[a]

prisoner’s challenge to prison conditions or policies is

generally rendered moot by his transfer or release.”). There is

no evidence before this court suggesting any realistic prospect

that Thomas will be sent back to FCI Berlin or otherwise placed

under Vigneault’s or Paul’s supervision in the future. And

plaintiff’s argument is purely speculative that Thomas will

again suffer the same type of race discrimination alleged in

this case. Accordingly, judgment as a matter of law on Thomas’s

claims for injunctive relief is warranted.

Thomas has also lost any legally cognizable interest in a

declaration that defendants’ actions were unconstitutional. Cf.

ACLU of Mass. v. U.S. Conf. of Cath. Bishops,

, 53

18 (1st Cir. 2013) (“With limited exceptions, not present here,

issuance of a declaratory judgment deeming past conduct illegal

is . . . not permissible as it would be merely advisory.”).

Accordingly, the court grants the Supplemental Motion for

Summary Judgment as to Thomas’s claims for injunctive and

declaratory relief.

Conclusion

For the foregoing reasons, the court GRANTS defendants’

Supplemental Motion for Summary Judgment as to all of Thomas’s

claims for damages, injunctive relief, and declaratory relief

(Doc. No. 77). The clerk is directed to enter judgment for

defendants and close the case.

SO ORDERED.

_____________________________ Steven J. McAuliffe United States District Judge

September 17, 2019

cc: Marrielle B. Van Rossum, Esq. Terry L. Ollila, Esq.

19