Elbert Walker, Jr. v. Dismas Charities, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 14, 2023
• Docket: 22-13847
• Status: Unpublished

Opinion

USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 1 of 13

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-13847 Non-Argument Calendar ____________________

ELBERT WALKER, JR., Plaintiff-Appellant, versus DISMAS CHARITIES, INC., CAROL OATES, KIMBERLY JOHNSON,

Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Georgia USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 2 of 13

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D.C. Docket No. 5:21-cv-00460-MTT ____________________

Before JILL PRYOR, ABUDU, and ANDERSON, Circuit Judges. PER CURIAM: Elbert Walker, Jr., proceeding pro se, appeals the district court’s orders denying his motion for a default judgment. He also argues that the district court judge should have sua sponte recused himself due to a conflict of interest. After careful review, we affirm. I. Walker’s claims in this lawsuit arise out of incidents that oc- curred while he was on home confinement as part of a federal crim- inal sentence. After Walker was convicted in federal court of con- spiracy to commit arson and other crimes, he received a sentence that consisted of 121 months’ imprisonment and a three-year term of supervised release. In June 2020, Walker was released from prison and permitted to serve the remainder of his custodial sen- tence in home confinement. His home confinement was overseen by Dismas Charities, Inc., a corporation that contracted with the Federal Bureau of Prisons (“BOP”). While on home confinement, Walker had to obtain permis- sion from Dismas to leave his home. In March 2021, he requested permission from Dismas to leave his home to work for a construc- tion company. Initially, Dismas employee Kimberly Johnson ap- proved Walker’s request. But shortly after giving approval, John- son told Walker that he could not work for the construction USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 3 of 13

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company. Six months later, Johnson apparently changed her mind and approved Walker to work at the construction company. But a month later she again told Walker that he could not. According to Walker, there was no valid reason for Johnson’s decisions that he could not work at the construction company. In October 2021, while on home confinement, Walker sought permission from Dismas to attend religious services at a mosque. Dismas employee Carol Oates denied the request, telling Walker that it was not allowed under BOP policy. Walker filed a complaint in federal district court against Dis- mas, Johnson, and Oates. Walker claimed that Johnson’s decisions denying him permission to work for the construction company vi- olated his due process rights under the Fifth Amendment because he did not receive a hearing. And he claimed that Oates’s decision denying him permission to attend religious services at the mosque violated his First Amendment right to free exercise of religion. Walker also alleged that these decisions constituted cruel and unu- sual punishment in violation of the Eighth Amendment. Walker demanded money damages for the mental and physical suffering that he experienced, as well as punitive damages. He did not re- quest any injunctive or declaratory relief. After Walker filed his complaint, he served the three defend- ants. The defendants failed to file a responsive pleading or other- wise defend the lawsuit, and the clerk entered a default. Walker then filed a motion for a default judgment. He ar- gued that the allegations in the complaint established that the USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 4 of 13

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defendants had violated his constitutional rights. He requested that the district court award him $463,500 in damages. The district court denied Walker’s motion for a default judg- ment. It explained that after the clerk’s entry of default, the defend- ants were deemed to have admitted all the well-pleaded factual al- legations in Walker’s complaint. But, the court cautioned, Walker was not automatically entitled to a default judgment; the court had to consider whether the unchallenged facts in his complaint estab- lished a legitimate cause of action. The court concluded that the allegations in Walker’s com- plaint failed to state a claim for relief. It liberally construed Walker’s complaint as asserting claims under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for violations of his constitutional rights. But the court explained that the Supreme Court had recognized that a Bivens remedy was available for a con- stitutional violation by a federal official in three specific contexts: “under the Fourth Amendment for an unreasonable seizure arising from a warrantless arrest of a man in his home,” “under the Fifth Amendment for gender discrimination arising from the termina- tion of a congressional aide,” and “under the Eighth Amendment arising from the failure to provide medical care to a prisoner.” Doc. 8 at 5. 1 The district court concluded that no Bivens remedy was available for the constitutional violations that Walker alleged.

1 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 5 of 13

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Regarding Dismas, the district court explained that the Supreme Court had held that there was no remedy under Bivens against a private business that operated “under contract with the Bureau of Prisons.” Id. at 6 (citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 63 (2001)). And as to the claims against Johnson and Oates, the district court concluded that Walker’s constitutional claims arose in a new context—that is, a context different from one in which the Supreme Court had previously recognized a Bivens remedy—and that special factors counseled hesitation against implying a Bivens remedy for a federal prisoner serving the remainder of his prison sentence on home confinement. The district court thus denied Walker’s motion for a default judgment. 2 Because Walker’s com- plaint failed to state a claim for relief, the district court gave him an opportunity to file an amended complaint to address the deficien- cies that the court had identified.

2 The district court liberally construed Walker’s complaint as raising three other claims: (1) “a claim for employment discrimination based on religion,” (2) a negligent infliction of emotional distress claim arising under Georgia law, and (3) an intentional infliction of emotional distress claim arising under Geor- gia law. Doc. 8 at 8. With respect to these three claims, the district court con- cluded that Walker’s complaint failed to state a claim for relief and thus denied his motion for default judgment as to these claims as well. Because Walker’s appellate brief, even liberally construed, does not raise any argument related to these non-constitutional claims, we discuss them no further. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned[.]” (citation omitted)). USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 6 of 13

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When Walker failed to file an amended complaint by the court’s deadline, it ordered him to show cause why the case should not be dismissed. In response, Walker stated he would not amend because the allegations in his complaint were sufficient to state a claim for relief and established that he was entitled to a default judgment. After finding that Walker failed to comply with multiple orders, the district court dismissed his complaint without preju- dice. This is Walker’s appeal. II. We review for abuse of discretion a district court’s denial of a motion for a default judgment. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1316 (11th Cir. 2002). “A district court abuses its discretion if it applies an incorrect legal standard, applies the law in an unreasonable or incorrect manner, follows improper procedures in making a determination, or makes findings of fact that are clearly erroneous.” Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068 (11th Cir. 2014) (internal quotation marks omitted). Generally, we review for abuse of discretion a district court judge’s refusal to recuse. In re Walker, 532 F.3d 1304, 1308 (11th Cir. 2008). But when a party fails to argue for a judge’s recusal before the district court, we review the failure of a district court judge to sua sponte recuse for plain error. Hamm v. Members of the Bd. of Re- gents of Fla., 708 F.2d 647, 651 (11th Cir. 1983). Thus, we will only correct an error that the plaintiff failed to raise in the district court USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 7 of 13

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if: (1) an error occurred; (2) the error was plain; and (3) the error affected substantial rights. See United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (applying the plain error standard to review a district court judge’s failure to recuse). III. On appeal, Walker argues that the district court erred when it denied his motion for a default judgment because the allegations in his complaint were sufficient to state a claim that the defendants violated his constitutional rights. He also argues for the first time on appeal that the district court judge should have recused himself. We address each issue in turn. A. When a defendant has failed to plead or defend, a district court may grant a motion for a default judgment. Fed. R. Civ. P. 55(b)(2). Because of our “strong policy of determining cases on their merits,” default judgments are generally disfavored. In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1295 (11th Cir. 2003). Although “a defaulted defendant is deemed to admit the plaintiff’s well-pleaded allegations of fact, he is not held to admit facts that are not well-pleaded or to admit conclusions of law.” Cot- ton v. Mass. Mut. Life Ins. Co., 402 F.3d 1267, 1278 (11th Cir. 2005) (alteration adopted) (internal quotation marks omitted). A default judgment is warranted only “when there is a sufficient basis in the pleadings for the judgment entered.” Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (internal quotation marks omitted); see Chudasama v. Mazda Motor Corp., 123 F.3d 1353, USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 8 of 13

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1370 n.41 (11th Cir. 1997) (“[A] default judgment cannot stand on a complaint that fails to state a claim.”). “[A] motion for default judgment is like a reverse motion to dismiss for failure to state a claim,” requiring a court to assess the legal sufficiency of the claims. Surtain, 789 F.3d at 1245. We thus ask whether the complaint “con- tain[ed] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). The issue before us is here is whether the allegations in Walker’s complaint were sufficient to state a claim against the de- fendants for violations of his constitutional rights. At the outset, we note that although the complaint stated that the constitutional claims were brought under 42 U.S.C. § 1983, this statute is inappli- cable. Section 1983 provides a cause of action for a claim brought against a “person acting under color of state law.” Patrick v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). But there is no alle- gation that Dismas, Johnson, or Oates were acting under color of state law. Instead, the allegations in the complaint reflect the claims against the defendants arise out of actions they took while acting pursuant to a contract with the federal government. Because Walker is a pro se litigant, we liberally construe his complaint as bringing claims against the defendants for money damages under Bivens and thus ask whether he stated a claim for relief under Bivens. In Bivens, the Supreme Court recognized an implied cause of action for money damages against the federal officers who alleg- edly violated an individual’s Fourth Amendment when arresting USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 9 of 13

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him inside his home. See Bivens, 403 U.S. at 389. After Bivens, the Supreme Court recognized implied causes of action under the Con- stitution for money damages in two additional contexts: (1) under the Fifth Amendment for gender discrimination arising from the termination of a congressional aide, Davis v. Passman, 442 U.S. 228, 230 (1979), and (2) under the Eighth Amendment for failure to pro- vide medical care to a prisoner, Carlson v. Green, 446 U.S. 14, 19–20 (1980). “Since these cases, the [Supreme] Court has not implied ad- ditional causes of action under the Constitution.” Egbert v. Boule, 596 U.S. 482, 491 (2022). Instead, the Court has described “expand- ing the Bivens remedy” as “a disfavored judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (internal quotation marks omitted). Recently, the Court clarified that the inquiry into whether a Bivens remedy is available “often resolve[s] to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Boule, 596 U.S. at 492. And when a case “involves a new category of defendants, . . . a court is not un- doubtedly better positioned than Congress to create a damages ac- tion.” Id. (internal quotation marks omitted). The Supreme Court’s decision in Malesko is particularly in- structive here. In that case, a federal inmate was injured while liv- ing at a halfway house where he was serving part of his federal criminal sentence. See 534 U.S. at 64. A private corporation, acting under a contract with the Bureau of Prisons, operated the halfway USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 10 of 13

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house. Id. at 63–64. The inmate later sued the contractor for dam- ages. Id. at 64–65. The Supreme Court considered whether the inmate had an implied cause of action against the contractor. Id. at 63. The Court explained that “[t]he purpose of Bivens is to deter individual officers from committing constitutional violations” through “the threat of litigation and liability.” Id. at 70. The Court stated that the “threat of suit against an individual’s employer was not the kind of deter- rence contemplated by Bivens.” Id. The Court reasoned that “if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury.” Id. at 71. The Court refused to “infer[] a constitutional tort remedy against a private entity” such as the con- tractor. Id. It also noted that the inmate had an adequate alternative remedy he could pursue by filing a grievance through the BOP’s administrative procedures. Id. at 74. Based on the Supreme Court’s decision in Malesko, we con- clude that Walker failed to state a claim against Dismas. Just like the inmate in Malesko had no implied damages remedy under the Constitution against a contractor that operated a halfway house for individuals serving federal criminal sentences, we conclude that Walker has no implied damages remedy under the Constitution against Dismas, a private contractor supervising federal prisoners serving their federal criminal sentences on home detention. See id. at 70–71; see also Walden v. Ctrs. for Disease Control & Prevention, 669 F.3d 1277, 1291 (11th Cir. 2012) (holding that Malesko USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 11 of 13

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“foreclosed inferring a constitutional tort remedy against a private entity” (internal quotation marks omitted)), abrogated on other grounds by EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015). We also conclude that Walker failed to state a claim against Johnson or Oates. In effect, Walker’s complaint seeks to extend the implied remedy against federal officials first recognized in Bivens to a new class of defendants: individual employees of government contractors. On top of that, he asks us to recognize an implied cause of action under the Constitution to claims brought by a per- son in home confinement as part of a federal criminal sentence al- leging violations of his right to free exercise of religion under the First Amendment, his right to procedural due process under the Fifth Amendment, and his right to be free from cruel and unusual punishment under the Eighth Amendment. Because “a court is not undoubtedly better positioned than Congress to create” such a damages remedy, we conclude that Walker does not have an im- plied cause of action under the Constitution for his constitutional claims against Johnson or Oates. Boule, 596 U.S. at 492. Because Walker’s complaint failed to state a claim for relief, we cannot say that the district court erred when it denied his mo- tion for a default judgment. 3

3 In his appellate brief, Walker states in passing that the district court also erred in dismissing his complaint. Even assuming that Walker adequately raised a challenge to the district court’s dismissal of his complaint for failure to comply with court orders, we cannot say that the district court abused its discretion. USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 12 of 13

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B. We now consider Walker’s argument that the district court judge should have recused himself. A judge is to recuse “himself in any proceeding in which his impartiality might reasonably be ques- tioned.” 28 U.S.C. § 455(a). The standard for recusal under § 455(a) is “whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal quotation marks omitted). In general, “bias sufficient to disqualify a judge must stem from extrajudicial sources” unless a “judge’s re- marks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party.” Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (internal quota- tion marks omitted). The Supreme Court has recognized that

We treat the district court’s dismissal in this case as a dismissal without preju- dice. It’s true that when the statute of limitation bars a plaintiff from refiling, we will review a dismissal without prejudice as though it was a dismissal with prejudice. See Mickles v. Country Club, Inc., 887 F.3d 1270, 1280 (11th Cir. 2018). But we treat the dismissal here as being without prejudice because the district court dismissed the action well before the limitations period for any of Walker’s claims had expired. And “because the case was dismissed without prejudice, we cannot say that the district court abused its discretion” when it dismissed the action for failure to comply with court orders. Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983). In addition, we also may affirm on the alternative ground that the complaint failed to state a claim for relief. See James River Ins. Co. v. Ultratec Special Effects, Inc., 22 F.4th 1246, 1256 (11th Cir. 2022) (explaining that we can affirm a district court’s “ruling on any ground that is supported by the record”). USCA11 Case: 22-13847 Document: 12-1 Date Filed: 11/14/2023 Page: 13 of 13

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“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Because Walker raises the recusal issue for the first time on appeal, we review the district court’s failure to recuse himself sua sponte for plain error only. See Hamm, 708 F.2d at 651. Walker says that the district court should have recused himself because his rul- ings in this case show that he was biased against Walker. But we cannot say that the district court’s judicial rulings demonstrated any bias. Thus, the district court did not plainly err in failing to sua sponte recuse himself. See Thomas, 293 F.3d at 1329. IV. For the reasons set forth above, we affirm. AFFIRMED.