United States District Court, W.D. Pennsylvania
OVERTON WAYNE PAULEY, on behalf of Asatru/Odinist Faith community; WILLIAM RAY RHOADES, Plaintiffs
CHARLES E. SAMUELS, JR, BOBBY L. MEEKS, HOWARD BARRON, DOUG BAILY, RICHARD GLOGAU, BRIAN GRIMM, TINA SWANSON, SIS LT. MR. ASHLEY, DAN BOYER, Defendants
MEMORANDUM OPINION ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT ECF NO. 95
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
Overton Wayne Pauley (Pauley) and William Ray Rhoades
(Rhoades) are Odinists. That is, they are adherents to
Odinism, which Pauley described as "an ancestral folk
religion." ECF No. 99-1, at 7. This religion is also
known as "Asatru" or "Wotanism." See,
e.g., Karow v. Fuchs, 695 Fed.Appx. 966 (7th
Cir. 2017) (Rovner, J., dissenting), Rivera v.
Kernan, 2018 WL 4680191, *2 (N.D. Ca. Sept. 28,
2018). Pauley and Rhoades filed a lawsuit in
which they allege that various officials of the Federal
Correctional Institution at McKean (FCI McKean) violated
their constitutional and statutory rights relating to the
exercise and practice of their faith. The remaining
Defendants have moved for summary judgment. After a thorough
review of the summary judgment record, the Court finds that
no genuine issue of material fact remains for trial and that
the Defendants are entitled to judgment as a matter of law as
to the Plaintiffs' remaining claims. The Court will
therefore grant the Defendants' motion.
Rhoades, and six other inmates who were members of the
Odinist faith community at FCI McKean filed this action in
the Court of Common Pleas of McKean County, Pennsylvania.
Their Complaint asserted that the United States Bureau of
Prisons (BOP)-more specifically, the BOP's Chaplaincy
Services-had failed to afford them adequate time, tools,
resources, and funding to practice their religion.
See ECF No. 99-1, p. 22-23. The Defendants removed
the case to this Court on June 23, 2015. ECF No. 1. As
defendants, the Plaintiffs initially named Charles E.
Samuels, Director of the Federal Bureau of Prisons, and the
following thirteen staff members at FCI McKean: Bobby L.
Meeks, Warden ("Meeks"); Howard Barron, Assistant
Warden ("Barron"); Doug Bailey, Captain
("Bailey"); Richard Glogau, Supervisor Chaplain
("Glogau"); Brian Grimm, Assistant Chaplain
("Grimm"); Scott Wilson, BB Unit Manager
("Wilson"); Keith Williams, DA Unit Manager
("Williams"); T. Smith, BB Unit Case Counselor
("Smith"); Chase Farrell, DA Unit Case Manager
("Farrell"); Tina Swanson, Budget Analyst
("Swanson"); SIS Lt. Mr. Troublefield
("Troublefield"); SIS Lt. Mr. Ashley
("Ashley"); and Dan Boyer, SOR ("Boyer").
The Plaintiffs claimed violations of the Religious Land Use
& Institutionalized Persons Act ("RLUIPA"), 42
U.S.C. § 2000cc, et seq.; the Religious Freedom
Restoration Act of 1993 ("RFRA"), 42 U.S.C. §
2000bb, et seq.; and the First, Fifth, and Fourteenth
Amendments to the Constitution, pursuant to Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). They sought injunctive relief and
punitive damages. All parties consented to the jurisdiction
of a United States Magistrate Judge over the matter. ECF Nos.
8, 10, 11, 12. See also 28 U.S.C. § 636(c)(1).
Five of the original plaintiffs were voluntarily dismissed
from this action by an order dated December 1, 2015. ECF No.
remaining Defendants moved to Dismiss the Complaint. ECF No.
13. This Court granted-in part-the Defendants' motion in
September of 2016. ECF No. 37. As a result, two categories of
claims remain: (1) Pauley and Rhoades' First, Fifth,
Eighth, and Fourteenth Amendment claims against Defendants
Glogau, Grimm, Swanson, Ashley, Boyer, Samuels, Meeks,
Barron, and Bailey; and (2) Pauley and Rhoades' RFRA
claims against Defendants Glogau, Samuels, Meeks, Barron, and
period of discovery, the remaining Defendants moved for
summary judgment on December 21, 2018. ECF No. 95. Their
motion was accompanied by a supporting brief (ECF No. 96) and
a Concise Statement of Material Facts (ECF No. 97). In
response, Pauley filed a "Statement of Undisputed
Factual Issues" (ECF No. 109) as well as a "Notice
to Defendants to Withdraw their Motion for Summary
Judgment," which the Court and the Defendants have
construed as his Response in Opposition to Summary Judgment.
ECF No. 113. Pauley also filed a "Request to Take
Judicial Notice," which included seventeen exhibits. ECF
No. 114. The Defendants filed a Reply in support of their
motion and a Response to Pauley's statement of undisputed
facts. ECF No. 128. Rhoades did not respond to the
Defendants' motion or supporting
failed to respond to the Defendants' motion or engage in
any docket activity since October 2, 2015, see ECF
No. 12, it is apparent that Rhoades has abandoned his claims.
The Defendants ask that Rhoades' claims be dismissed for
a failure to prosecute. ECF No. 128, pp. 2-3. But because
Rhoades is proceeding pro se, and lacking any explanation for
his nearly four years of docket inactivity, the Court cannot
discern whether his failure to prosecute is willful or in bad
faith. See Hildebrand v. Allegheny, 923 F.3d 128,
135 (3d Cir. 2019). Instead, because Rhoades did not respond
to the Defendants' Concise Statement of Material Facts
(ECF No. 97), the Court will treat the facts stated therein
as undisputed for purposes of resolving their motion as it
relates to Rhoades. See, e.g., Williamson v. Link,
2019 WL 3202515, *1 (E.D. Pa. July 15, 2019) (citing Federal
Rule of Civil Procedure 56(e)(2)).
Court also notes that Pauley has failed to comply with Local
Rule 56.1. This rule requires a party opposing a motion for
summary judgment to file a response to the movant's
concise statement of material facts and, with proper citation
to the record, admit or deny the facts stated in the
corresponding paragraphs of the movant's concise
statement, and in separately numbered paragraphs, set forth
any other facts material to the motion. See LCvR
56.C.1. Courts in the Western District of Pennsylvania
require strict compliance with the provisions of Local Rule
56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at
*2 n. 3 (W.D. Pa. Oct. 10, 2018); First Guard Ins. Co. v.
Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa.
Feb. 16, 2018); Hughes v. Allegheny County Airport
Authority, 2017 WL 2880875, at *1 (W.D. Pa. July 6,
non-moving party "faces severe consequences for not
properly responding to a moving party's concise
statement." Hughes, 2017 WL 2880875, at *1. Any
alleged material facts "set forth in the moving
party's Concise Statement of Material Facts ... which are
claimed to be undisputed, will for the purpose of deciding
the motion for summary judgment be deemed admitted unless
specifically denied or otherwise controverted by a separate
concise statement of the opposing party." LCvR 56.E.
While courts apply procedural rules to pro se litigants with
some leniency, they are not free to ignore procedural rules
that apply to parties assisted by counsel. McNeil v.
United States, 508 U.S. 106, 113 (1993) (explaining that
"we have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to
excuse mistakes by those who proceed without counsel").
Accordingly, any properly supported factual statements in the
Defendants' concise statement of material fact to which
Pauley has failed to respond will be deemed admitted. LCvR
56.E. Even so, the Court will consider any facts properly
alleged in his pro se responses that specifically contradict
Defendants' statements of fact, to the extent that they
are supported by the record. Boyd v. Citizens Bank of
Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22,
2014) (stating that "[t]o the extent Plaintiffs
statement of 'fact' specifically controverts
Defendant's, the Court will consider these facts in
determining whether summary judgment should be
granted"). Pauley was also deposed and his deposition is
a matter or record. See ECF No. 99-1. Where
appropriate, the Court will also note his deposition
testimony. With that in mind, the Court turns to the factual
and Rhoades are adherents to Odinism. Id. at 23, 52;
ECF No. 99-2, 16:13-16. They described Odinism as an
"ancestral folk religion" which requires them to
hold, among other things, outdoor festivals every month.
Id. at 37-39, 45-46; id. at 23-24.
According to Rhoades, the four main festivals of the religion
take place on the winter, spring, summer, and fall equinoxes.
ECF No. 99-2 at 32-33. One of the primary symbols associated
with the faith is a "solar wheel," which Pauley
described as a "rounded swastika." ECF No. 99-1 at
46. The religion has no "bible" but several books
guide the faithful in their practices. Id. at 30.
FCI McKean bought many titles for its Odinist inmates. ECF
No. 97, ¶ 33. Pauley also authored a book on Odinism
entitled "The Path of Wotanisms' Beginners Handbook:
Faith, Community, Purpose, and Guidelines." ECF No.
99-1, 52. Pauley testified that his handbook was the only
text needed by Odinists at FCI McKean to practice their
faith. Id. at 58. Pauley's monograph contains a
section called "Wotansvolk Ethnic Philosophy,"
which instructs adherents to have pride in the
"Aryan" or "white" race, stating:
"It is to the advantage of every race to conserve its
own unique ethnic purity." ECF No. 97, If 36.
has a program statement on congregational worship practices
in its facilities.
regulation in question, BOP Program Statement 5360.09.7.a,
The level of scheduled activities is expected to be
commensurate with the institution's mission/need.
Authorized congregate services will be made available for all
inmates weekly with the exception of those detained in any
Special Housing Units (SHUs). If a state of emergency exists
(e.g. fog, institution lock down, food strike), the warden or
designee will determine the appropriate level of chapel
See ECF No. 97, ff 18-20. Under this regulation, FCI
McKean permitted the Odinists two religious services per
week, the same number of services allotted to every other
religious group in its confines. Id., ¶ 37.
These were held indoors in the prison chapel. Id.
The institution also gave the Odinists twelve (12) outside
services per year (once a month), on a date of their
choosing. Id., ¶ 38. FCI McKean permits its
Odinists to have religious fires, maintain an altar, worship
circle, and other things such as stones and logs in the
outside worship area. Id., ¶ 41.
institution also permits the observance of a ceremonial meal
by a religious group once a year. Id., ¶ 65.
Pauley acknowledges that Odinism has no dietary restrictions:
"we eat what we want." ECF No. 99-1, p.32. Rhoades
characterized the Odinist diet as "meat-heavy,"
with meat generally eaten as part of the "Yule"
meal at the end of the year. ECF No. 99-2, 50.
prison has also purchased a number of items sacred to its
Odinist population. For example, the prison obtained a
"Blot Bowl," "Ash Wood Ruins, (sic)" an
"Oath Ring," a "Thor's Hammer," a
drinking horn, and apple juice and honey from which to make
mead. ECF No. 97, ¶ 75. Pauley also stated
that the "majority of the tools" that the Odinists
need to practice their faith "can easily [be] made in
the prison shops." ECF No. 99-1, 119. The chaplain at
FCI McKean, Defendant Glogau, requested that the prison's
carpentry shop fashion a set of runes, a Thor's hammer,
an Oath ring, a gander stick, and two bowls for the Odinists
to use in their worship ceremonies. ECF No. 97, ¶ 78.
These are but some of the many accommodations FCI McKean has
made for its Odinist inmates. The impetus for this lawsuit,
however, is the Defendants' alleged refusal to provide
the Plaintiffs with additional accommodations, various
religious items, and funding to practice their religion. The
Defendants have moved for summary judgment.
Summary Judgment Standard
Rule of Civil Procedure 56(a) requires a court to render
summary judgment "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). "[T]his standard provides that the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is
"material" if proof of its existence or
nonexistence would affect the outcome of the case under
applicable substantive law. Id. at 248; Gray v.
York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.
1992). A dispute is "genuine" if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. Anderson, 477 U.S. at 257;
Brenner v. Local 514, United Bhd. of Carpenters and
Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
determining whether a genuine issue of material fact remains
for trial, the court must consider the evidence and all
reasonable inferences to be drawn therefrom in the light most
favorable to the nonmoving party. Moore v. Tartler,
986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail
Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v.
Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988).
To defeat a properly supported motion for summary judgment,
however, the nonmoving party may not rest on the
unsubstantiated allegations of his or her pleadings but must
identify evidence that demonstrates the existence of a
genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Furthermore, the
party opposing the motion "must do more than simply show
that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith
Radio, 475 U.S. 574, 586 (1986). The moving party may
also rely upon the absence of evidence to support an
essential element of the opposing party's claim as a
basis for the entry of summary judgment because "a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial." Celotex, 477 U.S. at 323.
See also Harter v. G.A.F. Corp., 967 F.2d 846, 851
(3d Cir. 1992). V. Analysis and Discussion A. Plaintiffs'
Claims for Injunctive Relief are Moot.
and Rhoades have asked for equitable relief in the form of a
preliminary injunction. See ECF No. 1-1, p. 7-9. At
their depositions, both Plaintiffs testified that the
allegations underlying their Complaint took place while they
were incarcerated at FCI McKean. For example, when asked
about the incidents underlying his Complaint: "we're
talking about McKean here, correct?" Pauley answered
"yes sir." ECF No. 99-1, p. 19. Rhoades similarly
testified that the basis for his claims relate to his time at
FCI McKean. ECF No. 99-2, p. 18. Defendants also note in
their concise statement of material facts that Pauley and
Rhoades both testified that the allegations in this lawsuit
are limited to incidents that took place during their period
of incarceration at FCI McKean. See also ECF No. 97,
¶ 17. Rhoades testified, however, that he was released
from federal custody on November 28, 2016. ECF No. 99-2, p.
6. Pauley remains in federal custody, but stated that he was
transferred to FCI Estill on April 18, 2017. ECF No. 99-1, p.
6; ECF No. 114, p. 3.
Third Circuit explained, "It is axiomatic that the
federal courts may not decide an issue unless it presents a
live case or controversy." Abdul-Akbar v.
Watson, 4 F.3d 195, 206 (3d Cir. 1993) (citing Ortho
Pharm. Corp. v. Amgen, Inc., 882 F.2d 806, 810-11 (3d
Cir. 1989) ("Federal courts, having jurisdiction only to
decide actual cases and controversies, are 'without the
power to decide questions that cannot affect the rights of
litigants in the case before them.'").
Pauly and Rhoades are no longer incarcerated at FCI McKean
renders their claim for injunctive relief moot. Summary
judgment is therefore granted on the Plaintiffs' claims
for injunctive relief. See Fortes v. Harding, 19
F.Supp.2d 323, 326 (M.D. Pa. 1998) (internal citations
omitted) ("[a] plaintiffs transfer to another
institution moots any claims for injunctive or declaratory
Constitutional Claims: Plaintiffs' Claimed Violation of
the First, Fifth, Eighth, and Fourteenth Amendments against
Defendants Glogau, Grimm, Swanson, Ashley, Boyer, Samuels,
Meeks, Barron, and Bailey.
the mootness of their request for injunctive relief, the only
question remaining in this litigation is whether the
Plaintiffs are entitled to monetary damages from the
remaining Defendants in their personal capacities under
either Bivens or the RFRA. Although Plaintiffs'
Complaint asserts generally that the Defendants violated
their rights under the First, Fifth, Eighth, and Fourteenth
Amendments, it does so without factual allegations to support
the alleged constitutional infractions. As did the
Defendants, the Court will look to the Plaintiffs'
deposition testimony and other evidence in the record to fill
in the gaps. See, e.g., Quezada v. Roy, 2015 WL
5970355, *11 (S.D.N.Y. Oct. 13, 2015) (motion for summary
judgment decided on the basis of the allegations of the
plaintiffs complaint, as "fleshed out in the plaintiffs
deposition," consideration of which "allows
plaintiff (who may be an unsophisticated litigant) to fill in
the gaps in his pleading."); see also Prince v.
Rice, 570 F.Supp.2d 123, 128 n.1 (D.D.C. 2008).
and Rhoades purport to anchor their constitutional claims in
Bivens. The Third Circuit has instructed that the
question "[w]hether a Bivens claim exists in a
particular context is 'antecedent to the other questions
presented, '" cautioning that "it will often be
best to tackle heac on whether Bivens provides a
remedy, when that is unsettled." Bistrian v.
Levi, 912 F.3d 79, 88 (3d Cir. 2018) (citing
Hernandez v. Mesa, __U.S. __, 137 S.Ct. 2003,
2006-07 (2017)). This a threshold determination because
"[a]ssuming the existence of a Bivens cause of
action-without deciding the issue-can risk needless
expenditure of the parties' and the courts' time and
resources." Id. at 89. The Court will therefore
consider whether a Bivens cause of action exists for
each claim at issue and will begin with a discussion of the
analytical framework for making such a determination.
Constitutional Claims and Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971).
established a damages remedy under 42 U.S.C. § 1983
against state officials for constitutional violations but it
did not create a corresponding statute for damages against
federal officials. Karkalas v. Marks, 2019 WL
3492232, *6 (E.D. Pa. July 31, 2019) (citation omitted).
Bivens, however, the United States Supreme Court
recognized an implied right of action for damages against
federal officials who have violated a person's Fourth
Amendment rights. 403 U.S. 388. That claim was not based on
either an expressed or implied statutory authorization to
sue, but instead was grounded in the Constitution itself. The
Supreme Court extended a Bivens remedy twice: in
Davis v. Passman, 442 U.S. 228 (1979), where it held
that an administrative assistant fired by a congressman had a
Bivens remedy for her Fifth Amendment gender
discrimination claim, and in Carlson v. Green, 446
U.S. 14 (1980), where the Court permitted a Bivens
remedy against federal prison officials for failure to treat
a prisoner's asthma. The Supreme Court has not overruled
Bivens but also has not extend it. Instead, the
Court has expressly confined Bivens actions to the
limited range of claims previously recognized. See Corr.
Srvs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)
(referring to Bivens as a "limited
holding."). The Court recently reaffirmed this holding
in Ziglar v. Abbasi, stating that these three cases
are the "only instances in which the Court has approved
of an implied damages remedy under the Constitution
itself." __U.S.__, 137 S.Ct. 1843, 1855 (2017).
Ziglar, the Supreme Court reviewed Bivens
claims asserted by individuals detained on immigration
violations at the Metropolitan Detention Center
("MDC") in Brooklyn, New York, after the September
11, 2001 terrorist attacks. These detainees sued former
Attorney General John Ashcroft, former FBI Director Robert
Mueller, and former Immigration and Naturalization Service
Commissioner James Ziglar (referred to by the Supreme Court
as the "Executive Officials") challenging the
official policies that caused their detention. They also brought
claims challenging the conditions of confinement at the MDC.
Id. at 1852-53. The detainees alleged violations of
the substantive due process component of the Fifth Amendment,
the equal protection component of the Fifth Amendment, and
the Fourth Amendment, grounding their claims in Bivens.
Id. at 1853-54. They also alleged the prison warden
permitted MDC guards to abuse them. Id. at 1854. The
primary issue before the Supreme Court was whether
Bivens provided a remedy for damages against the
Executive Officials and prison wardens. Id.
Supreme Court observed that Bivens was decided
during an "ancien regime," in which "the Court
assumed it to be a proper judicial function to 'provide
such remedies as are necessary to make effective' a
statute's purpose." Id. at 1855 (citations
omitted). Noting that "expanding the Bivens
remedy is now a 'disfavored' judicial activity,"
the Supreme Court instructed federal courts to exercise
caution before extending the remedy to claims that are
meaningfully different than "the three Bivens
claims the Court has approved in the past...."
Id. at 1857, 1860 (citing Bivens, 403 U.S.
388; Davis, 442 U.S. 228; Carlson, 446 U.S.
14). The Court then concluded that the detention policy
claims against the Executive Officials were not properly
brought because "a. Bivens action is not a
proper vehicle for altering an entity's policy."
Id. at 1860 (internal quotation marks omitted). The
abuse claim was remanded to the Court of Appeals for the
Second Circuit for consideration whether extending
Bivens to such claims was appropriate in light of
the identified "special factors." Id. at
jurist aptly explained,
Ziglar created a funnel through which plaintiffs
alleging constitutional violations by federal officials must
pass. First, federal courts must determine whether the cause
of action presents a "new context" for
Bivens cases. If it does, courts must then determine
whether alternative remedies exist. Finally, and most
critically, courts must determine whether there are special
factors counselling against extending the Bivens
remedy to the new cause of action.
Alexander v. Ortiz, 2018 WL 1399302, *4 (D.N.J. Mar.
20, 2018) (Simandle, J.). Accord Jacobs v.
Alam, 915 F.3d 1028, 1037 (6th Cir. 2019)
("For our purposes, Ziglar clarifies the
analytical framework for how courts must approach asserted
Ziglar makes clear, "[t]he proper test for
determining whether a case presents a new Bivens
context is as follows. If the case is different in a
meaningful way from previous Bivens cases decided by
this Court, then the context is new." __U.S.__, 137
S.Ct. at 1859. The Court explained:
A case might differ in a meaningful way because of 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. This inquiry is usually easy to
satisfy. Id. at 1864, 1865. As to the subsequent
inquiry, the Court instructed that
the inquiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a
damages action. Thus, to be a "special factor
counselling hesitation," a factor must cause a court to
hesitate before answering that question in the affirmative.
Id. at 1857-1858. With these instructions in mind,
the Court turns to the Plaintiffs' claims.
Summary Judgment will be granted to Defendants on
Plaintiffs' First Amendment Retaliation Claim.
and Rhoades bring what the Court construes as a First
Amendment retaliation claim against Defendants Ashley and
Glogau. The Complaint charges that
"petitioner Overton W. Pauley was called to the
Lieutenant's office & threatened that he would be
placed into segregated custody if he did not stop pursuing
legal remedies against the crimes being committee on this
inmates [sic] faith groups [sic] right to practice
religion." ECF No. 1-1, p. 3. The Complaint also alleges
that the Plaintiffs "face substantial retaliation &
discrimination at the hands of their staff members."
Id. While the factual basis of this claim is not
particularly clear, Pauley stated at his deposition that
Defendant Ashley threatened to "ship [him] out" of
the institution if he did not cease his complaints about
being able to practice his religion. See ECF No.
99-1, p. 24.
have filed a Notice of Supplemental Authority in which they
argue that, in light of a recent Third Circuit decision,
prisoners can no longer bring First Amendment retaliation
claims against individually named defendants under
Bivens. Neither Plaintiff has responded to this
supplemental authority, and, in any event, the Court agrees
with the Defendants that the Third Circuit's decision in
Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018)
precludes the Plaintiffs' First Amendment Bivens
claim. In Bistrian, the Court of Appeals
unambiguously held that prisoners cannot bring First
Amendment retaliation claims under Bivens against
individually named defendants. Although such claims were
previously permitted, the Third Circuit recognized that the
Supreme Court's decision in Ziglar reversed its
prior precedent permitting such actions. Id. at
95-96. This holding was recently reaffirmed. See Jones v.
Sposato, 2019 WL 3546470, *2 (3d Cir. Aug. 5, 2019)
("In Bistrian v. Levi, we observed that
'[f]he Supreme Court has never recognized a
Bivens remedy under the First Amendment,' and
concluded that special factors militated against recognizing
such a remedy in the prison context because the
prisoner's 'retaliation claim involves executive
policies, implicates separation-of-power concerns, and
threatens a large burden to both the judiciary and prison
officials.'") (citations omitted). See also
Keller v. Walton, 2019 WL 1513498, *2 (S.D. 111. Apr. 8,
2019) (citing Bistrian).
light of Bistrian, Plaintiffs' First Amendment
retaliation claim is no longer viable in this Circuit. For
that reason, Defendants Ashley and Glogau's Motion ...