United States District Court, D. South Dakota
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
E. SCHREIER, UNITED STATES DISTRICT JUDGE
Guadalupe Gonzalez, was a federal inmate housed at the
Federal Prison Camp in Yankton, South Dakota (FPC
Yankton). On March 17, 2016, Gonzalez filed a
complaint under § 1983 alleging several violations of
his constitutional rights by several defendants. Docket 1.
Defendants moved to dismiss the complaint (Docket 14) and the
court granted the motion in part and denied the motion in
part. Docket 20. The remaining issue in this case is
Gonzalez's claim that defendant, R. Bendt, violated
Gonzalez's rights by denying Gonzalez access to grievance
forms. Docket 20 at 9. Bendt moves for summary judgment on
Gonzalez's claim. Docket 25.
the facts in the light most favorable to the non-moving
party: On September 9, 2012, Gonzalez's property arrived
at FPC Yankton from his previous placement at the Federal
Correctional Institute in Loretto, Pennsylvania (FCI
Loretto). Docket 1 ¶ 2. A staff member at FPC Yankton
would not permit Gonzalez to possess his book-Federal
Aviation Regulations/Aeronautical Information Manual
(FAR/AIM). Id. Gonzalez was permitted to have
FAR/AIM at FCI Loretto. Id. On September 17, 2012,
Gonzalez initiated the Bureau of Prison's administrative
remedy process. Id. ¶ 3.
Bureau of Prisons has a four-tiered administrative procedure
for inmate grievances-a procedure codified at 28 C.F.R.
§ 542.10 et seq. The first step is informal
resolution with prison staff. 28 C.F.R. § 542.13.
Requests for Informal Resolution Forms (also referred to as
BP-8) are not assigned a Remedy ID number and are not
tracked. Docket 28 ¶ 7. If an inmate does not resolve
his complaint with an informal resolution, he may proceed to
the second step and file a formal Administrative Remedy at
the institution where the inmate is incarcerated (BP-9). 28
C.F.R. § 542.14. The third step is for the inmate to
file a Regional Office Administrative Remedy Appeal (BP-10)
with the Regional Director. 28 C.F.R. § 542.15. And
finally, the fourth step is for the inmate to file a Central
Office Administrative Remedy Appeal (BP-11). Id.
denied Gonzalez's informal resolution request stating
that Gonzalez was not participating in an approved
post-secondary education course. Id. Gonzalez's
subsequent appeals were similarly denied. Id.
¶¶ 3-4. On April 17, 2013, Gonzalez initiated the
administrative remedy process again alleging that his copy of
the FAR/AIM had been removed from FPC Yankton before his
administrative remedy process was completed. Id.
¶ 5. Bendt again denied the informal resolution.
claims that, as a result of his participation in the
administrative remedy process, Bendt has retaliated against
him. Id. ¶ 8. Specifically, Gonzalez states
that he “was forced to file a BP-9 to Warden J.S.
Willis because Mr. Bendt refused to supply [Gonzalez] with an
informal resolution form, barring him from the administrative
remedy process altogether.” Id. ¶ 10.
Later, Gonzalez states that “Mr. R. Bendt again refused
to provide Mr. Gonzalez with a form BP-11 in order for him to
be able to complete his administrative remedy process.”
Id. ¶ 11.
asserts an action under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). Gonzalez alleges that Bendt retaliated
against him by not providing Gonzalez with the necessary
forms to complete his administrative appeal in violation of
the First Amendment.
judgment is proper “if the movant 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). “[A] party seeking summary judgment always bears
the initial responsibility of . . . demonstrat[ing] the
absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The moving party must inform the court of the basis for its
motion and also identify the portion of the record that shows
there is no genuine issue in dispute. Hartnagel v.
Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citation
avoid summary judgment, “[t]he nonmoving party may not
‘rest on mere allegations or denials, but must
demonstrate on the record the existence of specific facts
which create a genuine issue for trial.' ”
Mosley v. City of Northwoods, 415 F.3d 908, 910 (8th
Cir. 2005) (quoting Krenik v. County of Le Sueur, 47
F.3d 953, 957 (8th Cir. 1995)). “[T]he mere existence
of some alleged factual dispute between the parties is not
sufficient by itself to deny summary judgment . . . .
Instead, ‘the dispute must be outcome determinative
under prevailing law.' ” Get Away Club, Inc. v.
Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (quoting
Holloway v. Pigman, 884 F.2d 365, 366 (8th Cir.
1989)). On a motion for summary judgment, the facts and
inferences drawn from those facts are “viewed in the
light most favorable to the party opposing the motion.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986) (quoting United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), the Supreme Court
recognized a cause of action for implied damages against
federal officers in their individual capacities for
violations of the Fourth Amendment. The Supreme Court
recognized a Bivens remedy for violations of the
Fifth Amendment and of the Eighth Amendment. Davis v.
Passman, 442 U.S. 228, 249 (1979); Carlson v.
Green, 446 U.S. 14, 24 (1980). Several Circuits have
found that a plaintiff may bring a Bivens claim for
violation of the First Amendment. Yiamouyiannis v. Chem.
Abstracts Serv., 521 F.2d 1392, 1393 (6th Cir. 1975)
(“We recognize that Bivens dealt with a Fourth
Amendment violation, but its logic appears to us to be
equally applicable to a First Amendment violation.”);
Paton v. La Prade, 524 F.2d 862, 870 (3d Cir. 1975)
(“Thus, we believe the extension of the Bivens
rule to violations of first amendment rights to be both
justifiable and logical.”); Mendocino Envtl. Ctr.
v. Mendocino Cty., 14 F.3d 457, 464 (9th Cir. 1994)
(finding that the plaintiffs sufficiently stated a
Bivens claim under the First Amendment). But more
recently the United States Supreme Court has exercised
caution as to expanding the scope of Bivens actions,
and some circuits have followed suit.
Ziglar v. Abbasi, 137 S.Ct. 1843 (2017), the Supreme
Court acknowledged that it had recognized three instances
where a Bivens remedy is available: (1) a violation
of the Fourth Amendment's prohibition on unreasonable
searches and seizures; (2) a violation of the Fifth
Amendment's Due Process Clause for gender-based
discrimination; and (3) a violation of the Eighth
Amendment's prohibition on cruel and unusual punishment.
Id. at 1854-55. But the Court explained that it now
expresses caution as to judicial findings of implied causes
of action under congressional statutes. Id. at 1856.
And that “expanding the Bivens remedy is now a
‘disfavored' judicial activity.” Id.
at 1857 (citing Ashcroft v. Iqbal, 556 U.S 662, 675
(2009)). The Ziglar Court laid out “[t]he