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Alexander v. Ortiz

United States District Court, D. New Jersey

March 20, 2018

ROBERT ORTIZ, Defendant.

          Sharon King, Esq. [1] King & King, LLC Attorneys for Plaintiff, Kendall Charles Alexander, Sr.

          Craig Carpenito, United States Attorney David Bober, Assistant United States Attorney Office of the U.S. Attorney District of New Jersey Attorneys for Defendant, Robert Ortiz


          JEROME B. SIMANDLE U.S. District Judge


         Kendall Charles Alexander, Sr., a federal prisoner formerly confined at FCI Fort Dix, New Jersey, filed an amended complaint alleging racial discrimination and retaliation by his prison workplace supervisor, Robert Ortiz, under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Amended Complaint, Docket Entry 30. On September 29, 2017, Defendant Ortiz filed a motion to dismiss the amended complaint in light of the Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Motion to Dismiss, Docket Entry 55. The Court appointed counsel for Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), received supplemental briefing, and conducted oral argument on January 29, 2018.

         After considering the submissions and arguments of the parties, the Court will not extend Bivens to a First Amendment retaliation or Fifth Amendment Equal Protection claim in the prison workplace context. The motion to dismiss is granted.


         On September 21, 2015, Plaintiff filed a civil rights action against Robert Ortiz, the United States, the Federal Bureau of Prisons (“BOP”), and UNICOR[2] alleging discrimination in his prison employment at FCI Fort Dix. Complaint, Docket Entry 1.

         According to the complaint, Plaintiff began working with UNICOR in August 2013 as a mechanic with prior experience from a different institution. Id. ¶ 6. Plaintiff alleged that Ortiz, the UNICOR manager, passed him over for promotion, overlooked Plaintiff's benefits, longevity, and pay in spite of Plaintiff's experience, and denied Plaintiff the ability to work overtime after he filed grievances about the alleged racial discrimination. Id. Plaintiff further alleged that Caucasian mechanics were promoted before him even though they were hired after him. Plaintiff also stated none of the Caucasian mechanics had to wait as long as Plaintiff did before receiving a promotion. Id. He asked the Court to reinstate his longevity credit and award him back pay retroactive to the date he should have been promoted. He also requested back pay for overtime opportunities he was unlawfully denied. Id. ¶ 7.

         After granting Plaintiff's in forma pauperis application, the Court screened the complaint under 28 U.S.C. § 1915. It dismissed the United States, the BOP, and UNICOR from the case as the United States is immune from suit and the Supreme Court declined to extend Bivens liability to federal agencies and employers. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001)(“The [federal] prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP.”); F.D.I.C. v. Meyer, 510 U.S. 471, 484-86 (1994) (declining to extend Bivens liability to federal agencies). Opinion and Order of Dec. 2, 2015, Docket Entries 3 & 4. It dismissed the racial discrimination claim without prejudice, but permitted a retaliation claim to proceed against Ortiz based on Plaintiff's allegations that Ortiz excluded him from working overtime after Plaintiff filed grievances about the alleged discrimination. Complaint ¶ 6. The Court ordered summonses to issue. Ortiz was served and later filed his answer on April 25, 2016. Docket Entry 18.

         On June 8, 2016, Plaintiff moved to amend his complaint to address the deficiencies in his Equal Protection claim that the Court had noted in its screening opinion and order. Motion to Amend, Docket Entry 24. Ortiz indicated that he had no objection to the motion to amend. Response, Docket Entry 25. He requested permission to file an answer to the amended complaint within ten days of the amended complaint's filing, as well as an additional two weeks to file a motion for summary judgment. Id. Ortiz further indicated he reserved the right to file a venue transfer motion and asked that discovery be stayed pending resolution of the summary judgment motion. Id. After reviewing the amended complaint under Federal Rule of Civil Procedure 15(a), the Court granted the motion to amend. Opinion and Order of Aug. 10, 2016, Docket Entries 28 & 29. Ortiz answered the amended complaint seven days later, Docket Entry 31.

         The case continued in discovery and motion practice before Magistrate Judge Donio, culminating in Ortiz's motion for summary judgment filed on February 10, 2017. Docket Entry 38. Plaintiff, still proceeding pro se at this point in time, filed opposition to the motion. Docket Entry 39. On June 19, 2017, the Supreme Court issued its decision in Ziglar. Ortiz filed a letter requesting that the Court postpone ruling on the motion for summary judgment as the U.S. Attorney's Office was conducting an office-wide review of pending Bivens cases in consultation with the Department of Justice. Letter, Docket Entry 41.

         On August 14, 2017, Ortiz supplemented his summary judgment motion with an argument based on Ziglar. Ortiz argued that Plaintiff's retaliation and Equal Protection claims are “new contexts” under Bivens, meaning the federal courts should not extend Bivens liability to those claims in the absence of specific congressional action. Supplemental Letter, Docket Entry 44. As the issue was one of first impression, the Court administratively terminated the summary judgment motion and appointed counsel for Plaintiff for the limited purpose of addressing the Ziglar issue. Pro Bono Order, Docket Entry 45; Administrative Termination Order, Docket Entry 47. Appointed counsel entered an appearance on September 1, 2017. Ortiz subsequently filed this motion to dismiss.

         The Court conducted oral argument on January 29, 2018. At the conclusion of argument, the Court directed the parties to submit supplemental briefing on an issue that arose during argument: whether the Inmate Accident Compensation Act (“IACA”), 18 U.S.C. § 4126(c), provided a remedy for claims of discrimination in the prison workplace. Ortiz submitted his response on February 13, 2018, and Plaintiff submitted his on February 20, 2018. Ortiz Supplemental Brief, Docket Entry 63; Plaintiff Supplemental Brief, Docket Entry 64.

         The matter is now ripe for disposition.


         When considering a motion to dismiss a complaint for failure to state a claim, Fed.R.Civ.P. 12(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the non-moving party. A motion to dismiss may be granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations, ” it requires “more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

         In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements [the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks omitted). “[A] ...

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