Dowell v. Kobayashi

• Court: District Court, S.D. Texas
• Decided: February 24, 2023
• Docket: 4:22-cv-04486
• Status: Unknown

Opinion

Southern District of Texas . a ENTERED February 24, 2023 ' UNITED STATES DISTRICT COURT Nathan Ochsner, Clerk SOUTHERN DISTRICT-OF TEXAS HOUSTON DIVISION MATTHEW SCOTT DOWELL, § BOP #22131-041, § Plaintiff, § VS. § | CIVIL ACTION NO. H-22-4486 § WARDEN H. KOBAYASHI, et al., §

Defendants. § □

MEMORANDUM OPINION AND ORDER The plaintiff, Matthew Scott Dowell (BOP #22131-041), is a pretrial detainee in custody at the Houston Federal Detention Center. Proceeding pro se and in forma pauperis, he filed a civil rights complaint against Warden H. Kobayashi and Senior Attorney Troy Dorrett, alleging that they have violated his constitutional right of

access to the courts through restrictions on his use of the law library. (Dkt. 1). At the Court’s request, Dowell also filed a More Definite Statement of his claims. (Dkt. 8). whe

Because Dowell is a prisoner seeking relief from the government, the Court is required to screen his complaint as soon as feasible after docketing. 28 U.S.C. § 1915A(a); see also 28 U.S.C. § 1915(e)(2)(B) (providing for screening of complaints filed by prisoners who are proceeding in forma pauperis). “As part of

this review, the district court is authorized to dismiss a complaint if the action ‘is frivolous, malicious, or fails to state a claim upon which relief may be granted.’” Fleming vy. United States, 538 F. App’x 423, 425 (sth Cir. 2013) (per curiam) (quoting 28 USC. § 1915A(b)(1)). A complaint is frivolous “if it lacks an arguable basis in law or fact.” Geiger v. Jowers, 404 F.3d 371, 373 (Sth Cir. 2005) (per curiam). “A complaint lacks an arguable basis-in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges the violation of a legal interest which clearly does not exist.” Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009) (per curiam); Salen v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). Having conducted this required screening, the Court “dismisses Dowell’s action with prejudice for the reasons explained below. □ an I. BACKGROUND Dowell is currently in pretrial detention ome pending charge of conspiracy to receive and distribute child pornography. See United States v. Dowell, Case No. 4:19-cr-00719-5 (S.D. Tex). The Court pepe mredicouneel to represent Dowell in those proceedings. Jd. at Dkt. 91. It appears from the publicly available records that Dowell has accepted a plea offer and is sviaiting ‘sentencing, Id. at Dkt. 444. Sentencing is currently set for March 23, 2023. Id at Dkt. 470. On December 23, 2022, Dowell filed a civil rights complaint against Warden Kobayashi and Senior Attorney Dorrett, both of whom are employed at the Federal

Detention Center (“FDC”) where Dowell is currently incarcerated. (Dkt. 1). Dowell ‘alleges that after he was denied access to the law library computers, he filed a BP-8 □

Informal Remedy Request form seeking relief (ia 2). In anor to the BP-8, □ Dowell was advised that his SOnIputer access had been revoked because he is under investigation for violations of the EDC’s computer use policy. (Dkts. 1, p. 2; 8, p. 1). The response on the BP-8 form advised Dowell that he could request the books he needed from the law library and that they would be provided to him. (Dkt. 1, p.

Dowell alleges that he submitted an inmate request form to the library listing the books he needed. (Dkts. 1 p. 2; 8, p:2). Dotrett responded to the request by stating that the FDC does not provide the books Dowell requested to inmates because they are available on the electronic law library. (Id... Dortet also told Dowell that because he was currently barred from accessing the slectronic law library, Dowell would have to ask his attorney to provide legal research. (Dkt. 1, p. 2). Dowell alleges that he later spoke with Warden Kobayashi about the matter, and Warden Kobayashi told him to “file his ieinedies” through the Administrative Remedy Program. (/d.). Dowell alleges that he tivice submitted BP-8 Informal Request forms raising the issue, but he has not received a penance to either request. (Id.). Dowell also alleges that prison officials have aed to provide him with a BP-9 Administrative Remedy Request forin aaitil he receives a written response □□ BoE

his BP-8 Informal Requests. (DKt. 8, p. 4). | : Dowell alleges that Warden Kobayashi bas violated and is violating his right of access to the courts by blocking his access to the electronic law library based on

an allegation made by a fellow inmate and without any evidence that Dowell did anything wrong. (DKt. 8, p. 3). He alleges that Dorrett has violated and is violating his right of access to the courts by refusing to provide him with the requested materials in book form since Dowell is barred from using the electronic law library. (Id.). Dowell alleges that he needs law bray access because he believes that appointed counsel in his criminal case has made mistakes by omitting critical evidence from a motion to suppress and by failing to file a motion to dismiss the indictment on the basis of selective prosecution. (a at 2-3). He alleges that he needs to conduct research to determine whether appointed counsel made mistakes and, if so, to have the law necessary to present his claims of ineffective assistance of counsel to the courts. (/d.). He alleges that by interfering with his. ability to prepare for trials and hearings, Warden Kobayashi and Dorrett have denied his right of

access to the courts. (/d.). 7 As relief, Dowell seeks a declaratory judgment from this Court finding that the actions of Warden Kobayashi and Dorrett violated his constitutional right of

access to the courts. (Dkt. 1, p. 3). He also seeks an neon ordering Warden Kobayashi and Dorrett to provide him with adequate legal materials to permit him

to prepare for hearings and possibly atrial. (/d.). . Il. DISCUSSION The constitutional right of access to the courts arises from one of two sources: (1) the Due Process Clause, which “assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights,” Wolff v. McDonnell 418 U.S. 539, 579 (1974); or (2) the First Amendment, which protects a prisoner’s right to petition the government for grievances. See Calif. Motor ransport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); see also Brewer v.. Wilkinson, 3 F.3d 816, 820-21 (Sth Cir. 1993) (identifying these two sources of the right of access to the courts). While constitutional violations by persons acting under color of state law may be raised in an action under 42 U.S.C. § 1983, there is no statutory basis for a claim

based on a constitutional violation by a federal actor. Instead, actions for violations of constitutional rights by federal actors and those acting under color of federal law are authorized, in some instances, by Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US. 388 (1971). In Bivens, the Supreme Court “recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The Supreme Court has since characterized a Bivens action as the “federal analog to suits brought against state officials under...

42 U.S.C. § 1983.” Ashcroft v. Iqbal, 556 US. 662, 675-76 (2009) (quoting Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006). But a Bivens action is not available to remedy every constitutional violation that may be committed by a federal actor. The Bivens decision implied a cause of action for damages under the Fourth Amendment for alleged violations of the plaintiff's right to be free from unreasonable searches and seizures by federal officials. See Bivens, 403 U.S. at 397. The Supreme Court later used Bivens to □ imply causes of action for gender discrimination under the Due Process Clause of the Fifth Amendment, see Davis v. Passman, 442 U.S. 228, 241-42 (1979), and for failing to provide adequate medical treatment Oletonten the Eighth Amendment. See Carlson v. Green, 446 U.S. 14, 18-19 (1980). . Since Carlson, however, the Supreme Court has repeatedly declined to extend Bivens to allow new constitutional claims. See Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020) (noting that “for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens”); Malesko, 534 US. at 68. The Court has made clear that “expanding the Bivens remedy is non a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (citing Iqbal, 556 U.S. at 675). Because of this “disfavored” status, federal courts must undertake a two-step inquiry when deciding whether to extend the Bivens remedy to a new constitutional claim. See Hernandez, 140 S. Ct. at 743. □

First, the court considers whether the request to extend Bivens “involves a claim that arises in a ‘new context’ or involves a “new category of defendants.’” Jd. (citing Malesko, 534 U.S. at 68); see also Cantu v. Moody, 933 F.3d 414, 422 (Sth Cir. 2019) (noting that the court must first determine whether the plaintiff's claims “fall into one of the three existing Bivens actions”). A case presents a “new context” if it is different in a meaningful way from previous Bivens cases decided by the Supreme Court. See Abbasi, 137 S. Ct. at 1859. Examples of such differences include oe 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 potential special factors that previous Bivens cases did not consider. Id. at 1860 (emphasis added). □□

Second, if the claim does arise in a “new context,” the court must consider whether there are “special factors counselling hesitation” about using Bivens to imply a new cause of action. Jd. at 1857 (quoting Carlson, 446 U.S. at 18). “A special factor is a sound reason to think Congress. might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong.” Canada v. United States, 950 F.3d 299, 309 (Sth Cir. 2020). Special factors include the availability of a statutory cause of action; the length of

time Congress has had to create a Bivens-like cause of action for that claim, and the underlying nature of the federal official’s activity. See Canti, 933 F.3d at 422. If special factors exist, the court should not eal Bivens to imply a new cause of action. See Carlson, 446 U.S. at 18; Canada, 950 F.3d at 309 (noting that courts must refrain from creating an implied cause of een if any special factors exist). Dowell’s claim arises in a new context neeauee the Supreme Court has not

previously implied a cause of action fora violation of the right of access to the courts. See Oliva v. Nivar, 973 F.3d 438, 442 (sth cir, 2020) (noting that “virtually everything” other than strip-searching a plaintiff in violation of the Fourth Amendment, gender discrimination in violation of the Fifth Amendment, and failure to provide medical care.to a prisoner in violation of the Eighth Amendment is a new context); see also Montalban v. Samuels, No. 21-11431, 2022 WL 4362800, at *4 (11th Cir. Sept. 21, 2022) (concluding that aclaim of denial of access to the courts

was meaningfully different than a claim of gender discrimination and so did not fall under the recognized Bivens extension for due process claims under the Fifth Amendment). Because Dowell’s claim arises in a new context, the Court must consider whether special factors exist that would Soe against extending Bivens to this type of claim. . And in the context of Dowell’s elaine two special factors exist. First, an alternate form of relief exists through the Administrative Remedy Procedure 8 oe

provided by the Bureau of Prisons. See 28 C.F R. §§ $42.10 et seq.; see also Watkins

v. Carter, No. 20-40234, 2021 WL 4533206, at *2 (Sth Cir. Oct. 4, 2021) (noting that the Bureau of Prisons’ Administrative Remedy Program provides an aremeive method of relief to a Bivens action). Second, Congress’s failure to enact legislation to extend the reach of Bivens to cover access-to-courts claims milieres against judicially creating this cause of action: See Egbert v. Boule, 142 S. Ct. 1793, 1804 (2022) (refusing to use Bivens to imply a First Amendment claim for retaliation because “Congress is better positioned . to create Femedices for constitutional violations). Because these two special factors exist, this Court will not extend Bivens to imply a new cause of action for violation of the right of access to the courts, and Dowell’s complaint does not state a claim upon which relief can be granted. Moreover, even if this Court were to imply a cause of action under Bivens for the violation of a right of access to the courts, Dowel would not be entitled to the relief he seeks. Dowell asks this Court to award him declaratory and injunctive relief. But even when relief under Bivens is Ponerally available, a plaintiff is entitled to only monetary, not injunctive, relief. See Butz v Economou, 438 U.S. 478, 504— 05 (1978); see also Chappell v. Wallace, 462 U.S: 296, 298 (1983) (characterizing a Bivens action as a “suit for damages against federal officials” and declining to extend Bivens to a petition seeking declaratory relief and injunctive relief). Because the relief Dowell seeks is unavailable in an action under Bivens, he would not be entitled 90

to the relief he seeks even if this Court were to imply a new Bivens cause of action. In sum, Dowell’s complaint does not allege a recognized cause of action under Bivens, and the two-step inquiry required by the Supreme Court for reviewing new ‘causes of action leads this Court to conclude that it should not use Bivens to imply a

cause of action in this case. Beenie Dowwell’s complain does not state a claim upon which relief can be granted under Bivens, this action must be dismissed. Ill. CONCLUSION AND ORDER | a .

Based on the FOrepoInentlie Court ORDERS as follows:

1. Dowell’s complaint, (Dkt. 1), is DISMISSED with prejudice for failure to state a claim upon which relief can be'gianted 2. Any pending motions are DENIED as moot. : 3. This dismissal counts as a strike for pupoues of 28 US.C.§ 1915(g).

. The Clerk of Court will send a copy of this cee to the plaintiff. The Clerk shall also send a copy of this dismissal to the Three-Strikes List Manager at the. following email: Three Strikes@ exs.uschirtes ov. Me SIGNED at Houston, Texas on = Fol ly 2, oe , 2023.

UNITED Seen JUDGE

10 wes