United States District Court, D. New Jersey
King, Esq.  King & King, LLC Attorneys for
Plaintiff, Kendall Charles Alexander, Sr.
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
B. SIMANDLE U.S. District Judge
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.
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.
September 21, 2015, Plaintiff filed a civil rights action
against Robert Ortiz, the United States, the Federal Bureau
of Prisons (“BOP”), and UNICOR alleging
discrimination in his prison employment at FCI Fort Dix.
Complaint, Docket Entry 1.
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.
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.
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.
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.
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.
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.
matter is now ripe for disposition.
STANDARD OF REVIEW
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).
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] ...