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Pauley v. Samuels

United States District Court, W.D. Pennsylvania

September 23, 2019

OVERTON WAYNE PAULEY, on behalf of Asatru/Odinist Faith community; WILLIAM RAY RHOADES, Plaintiffs
v.
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

         I. Introduction

         Plaintiffs 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).[1] 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.

         II. Procedural History

         Pauley, 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. 24.

         The 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.[2] 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 Bailey.

         After a 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 submissions.[3]

         Having 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)).

         The 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, 2017).

         A 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 background.

         III. Factual Background

         Pauley 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.

         The BOP has a program statement on congregational worship practices in its facilities.

         The regulation in question, BOP Program Statement 5360.09.7.a, states:

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 programming.

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.

         The 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.

         The 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.[4] 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.

         IV. Summary Judgment Standard

         Federal 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).

         In 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.

         Pauley 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.

         As the 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.'").

         That 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 relief").

         B. 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.

         Given 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.[5] 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).

         Pauley 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.

         1. Constitutional Claims and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

         Congress 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).

         In 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).

         In 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.[6] 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.

         The 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."[7] 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 1869.

         As one 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 Bivens claims.").

         As 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.

         a. Summary Judgment will be granted to Defendants on Plaintiffs' First Amendment Retaliation Claim.

         Pauley and Rhoades bring what the Court construes as a First Amendment retaliation claim against Defendants Ashley and Glogau.[8] 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.

         Defendants 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).

         In light of Bistrian, Plaintiffs' First Amendment retaliation claim is no longer viable in this Circuit. For that reason, Defendants Ashley and Glogau's Motion ...


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