[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 11937 Non

- Argument Calendar

________________________ D.C. Docket No. 1:15

- cv - 21790

- JAL

HARVEY R. JOHNSON, Plaintiff

- Appellee,

versus KEVIN BURDEN, Lieutenant, BOBBY ROY, Lieutenant, ROB WILSON, Warden, WILLIAM ORAMAS, CAPTAIN DONALDSON, WILLIA M GARCIA, CHARLES HANNA, Case Manager, YIMA POSADA, Unit Manager, BEARDEN, Case Manager, A.W. NANETTE BARNES, CASSANDRA ANDREWS, ANTONINETTE NICHOLSON,

Case: 18-11937 Date Filed: 07/09/2019 Page: 1 of 82 Defendan ts

- Appellants.

________________________ Appeal from the United States District Court for the Southern District of Florida

________________________ ( July 9, 2019 ) Before WILSON , BRANCH, and JULIE CARNES , Circuit Judges.
PER CURIAM: Officer Jason Cook e , along wi th other Federal Bureau of Prisons (BOP) employees (collectively , Defendants), appeal the distric t court’s partial denial of their motion to dismiss, or, in the alternative, motion for summary judgment. On appeal, Defendants argue that the district court erred by extending a Bivens 1 remedy to Johnson’s First Amendment claims , and that “special factors” counsel against extending Bivens to encompass Johnson’s suit. Defendants also contend that, even if B ivens did extend to Johnson’s claims , they are entitled to qualified immunity. Because Johnson’s First Amendment claims represent a new Bivens context, we remand to the district court to reconsider its ruling on Defendants’ motion to dismiss or for summary judgment in light of Ziglar v. Abbasi , 137 S. Ct. 1843 (2017), and we decline to consider Defendants’ qualified immunity argument.

1 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971)

.

Case: 18-11937 Date Filed: 07/09/2019 Page: 2 of 83 I. Factual and Proced ural Background Plaintiff Harvey Johnson, a federal inmate, filed a 52

- count pro se complaint against 82 BOP officials, seeking damages pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics , 403 U.S. 388 (1971)

. He alleged, in relevant part, that several BOP officials retaliated against him after he filed grievances through the Bureau’s Administrative Remedy Program, in violation of his First Amendment rights. According to Johnson, Defendants’ retaliatory acts included transfer ring him to another prison, denying him medical treatment, and cutting his work detail pay. The district court dismissed many of Johnson’s claims
for failure to state a claim under 28 U.S.C. § 1915(e) (2)(B)(ii) , but permitted the remaining retaliation cla ims to go forward against 15 of the named Defendants. Defendants jointly filed a motion to dismiss Johnson ’ s complaint, or alternative ly , for summary j udgment. Defendants argued that First Amendment claims are not implied under Bivens , and that the Supreme Court has refused to recognize Bivens liability in any context other than the three it previously recognized. See Ziglar v. Abbasi , 137 S. Ct. 1843 (2017). They argued that , to
creat e an implied damages remedy, a court must first c onduct a “special factors” analysis and determine that the judiciary is well suited, absent congressional instruction, to weigh the costs and benefits of allowing a damages action

. Defendants also asserted that they were entitled to qualified immunity because

Case: 18-11937 Date Filed: 07/09/2019 Page: 3 of 84 each of the BOP actions at issue were performed in accordance with BOP policy and for reasons unrelated to Johnson’s filing of grievances. Johnson filed his own motion for summary judgment, arguing that he “p resented irrefutable proof of the defendants’ liability, and therefore, summary judgment in his favor [was] clearly warranted.” The magistrate judge issued a Report and Recommendati on (R&R), recommending that D efendants’ motion be denied, except as to a claim regarding work detail against one named Defendant. The Defendants filed objections to the R&R, contending that the magistrate judge failed to address arguments regarding Abbasi or qualified immunity. The district court acknowledged Abbasi , but c oncluded that the Supreme Court had recognized that Bivens extends to First Amendment claims in Hartman
v. Moore , 547 U.S. 250 (2006). Regarding qualified immunity, the district court concluded that, assuming Defendants acted within the scope of their employment, they were not entitled to qualified immunity because Johnson alleged facts
demonstrat ing that Defendants violated his constitutional rights. Accordingly, the district court granted in part and denied in part Defendants’ motion to dismiss or for summary judgment.
II. Bivens A nalysis

Case: 18-11937 Date Filed: 07/09/2019 Page: 4 of 85 We review a district court’s denial of summary judgment de novo , construing all facts and making all reasonable inferences in favor of the non

moving party

. Holloman v. Mail

- Well Corp. , 443 F.3d 832, 836

– 37 (11th Cir. 2006). Summary judgment is appropriate when there is no genuine dispute of material fact , and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue of fact is not genuine unless a reason able jury could return a verdict in favor of the non

- moving party. Morton v. Kirkwood , 707 F.3d 1276, 1284 (11th Cir. 2013). Defendants argue that the district court erred by extending a Bivens remedy
to Johnson’s First Amendment retaliation claims and that “special factors” counsel against extending Bivens to encompass Johnson’s suit. In Bivens , the Supreme Court held that injured plaintiffs can bring a n action for damages against federal
officers for violations of their constitutional rights. Behrens v. Regier , 422 F.3d 1255, 1263 n.15 (11th Cir. 2005). But t he Supreme Court has since stated that the expansion of Bivens beyond the three specific contexts it has recognized is disfavored. Abbasi, 137 S. Ct. at 1857

. Bivens has been applied to a Fourth Amendment case involving a search and seizure, a Fifth Amendment gender discrimination case , and an Eighth Amendment case involving cruel and unusual punishment

. Id. at 1854

– 55. Only in these three contexts did the Supreme Court approve an implied damages remedy under the Constitution itself. Id. at 1855.

Case: 18-11937 Date Filed: 07/09/2019 Page: 5 of 86 When a party seeks to assert an impli ed cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, it is usually Congress who should decide whether to provide for a damages remedy, not the courts. Id. at 1857.
T he Supreme Court has also noted that, generally, Bivens will not be extended to a new context where special factors counsel hesitation in the absence of affirmative action by Congress. Abbasi , 137 S. Ct. at 1857. The Court has not defined the “special fa ctors,” but has stated 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 to proceed.” Id. at 1857

– 58. The avai lability of alternative means of relief may alone limit th e power of courts to “infer a new Bivens cause of action.” Id. at 1858. For example, both injunctions and habeas petitions are alternative judicial forms of relief that probably preclude a Bivens remedy. Id. at 1862

– 63.
T he district court erred in concluding that Bivens extends to First Amendment retaliation claims. The district court concluded that in Hartman v.
Moore , 547 U.S. 250 (2006), the Supreme Court explicitly recognized a First Amendment retaliation claim under Bivens

. But t he district court discounted the
fact that Abbasi 2 did not identify a First Amendment retaliation claim as one of the

2 Abbasi was decided sixteen years after Hartman

.

Case: 18-11937 Date Filed: 07/09/2019 Page: 6 of 87 three recognized Bivens contexts , reasoning that “the Court must assume the Supreme Court knew what it was saying and meant what it said in Hartman when it recognized a First Amendment retaliation claim under Bivens .”
In Hartman , the Supreme Court held that a plaintiff cannot state a claim of retaliatory prosecution in violation of the First Amendment if the charges were supported by probabl e cause. 547 U.S. at 252. T he Supreme Court stated that , “[w]hen the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens .” Id. at 256. But the Court appeared to assume the availability of a Bivens remedy for purposes of reaching its holding

— that a complaint claiming retaliatory prosecution must allege and prove a lack of probable cause. Id. at 252. In doing so, the Court qualified its holding, stating that

“ we are addressing a requirement of causation, which [the plaintiff] must plead and prove in order to win, and our holding does not go beyond a definition of an element of the tort , directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal.” Id. at 257 n.5 (emphasis added). Following Hartman , the Supreme Court has repeatedly confirmed that it has not extended a Bivens remedy to First Amendment claims. See Ashcroft v. Iqbal , 556 U.S. 662, 675 (2009) (noting that it has previously “declined to extend Bivens to a claim sounding in the First Amendment”); see also Reichle v. Howards , 566 U.S. 658, 663 n.4 (2012) (“ W e have never held that Bivens ex tends to First

Case: 18-11937 Date Filed: 07/09/2019 Page: 7 of 88 Amendment claims

. ”) . And in Wood v. Moss , 134 S. Ct. 2056, 2066 (2014), the Supreme Court confirmed that it has “several times assumed without deciding that
Bivens extends to First Amendment claims.” The Court did so again in Wood because that “anteceden t issue” was not preserved. Id. Moreover, the Court in Ab b asi did not mention Hartman as one of the cases establishing appropriate contexts in which to apply Bivens , indicating that the Hartman language was mere dicta. See Ab b asi , 137 S. Ct. at 1854

– 55.
T he Supreme Court’s post

- Hartman cases indicate that F irst Amendment claims, like Johnson ’s here , represent a new Bivens context . T he district court was
therefore required to apply a “special factors” analysis consistent with A bbasi to determine whether expanding Bivens would be appropriate in Johnson’s case. Accordingly, we remand to the district court to reconsider its ruling on the
Defendants’ motion to dismiss or for summary judgment in light of Abbasi , and we decline to co nsider Defendants’ qualified immunity argument.

REMANDED . Case: 18-11937 Date Filed: 07/09/2019 Page: 8 of 8