IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION

DANIEL E. KELLER §

VS. § CIVIL ACTION NO. 1:23cv224

DALLAS B. JONES §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff Daniel E. Keller, formerly an inmate confined within the Bureau of Prisons,

proceeding pro se, brings this lawsuit pursuant to Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971), against Dallas B. Jones. The defendant was a warden

at the Federal Correctional Complex at Beaumont, Texas (“FCC-Beaumont”). This matter was

referred to the undersigned magistrate judge pursuant to 28 U.S.C. § 636 and the Amended Order

for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge

for findings of fact, conclusions of law, and recommendations for the disposition of the case.

Factual Allegations

Plaintiff was incarcerated at FCC-Beaumont when Hurricane Harvey made landfall in

August, 2017. He complains that officials at FCC-Beaumont, including the defendant, failed to

evacuate the complex before the hurricane struck. Plaintiff contends he was confined to his cell 24

hours a day from August 16, 2017, twelve days before the hurricane made landfall, through

September 12, 2017.

Plaintiff states that during this period, FCC-Beaumont experienced a continuous power

outage. He further alleges he suffered from dehydration, excessive heat and hunger as a result of

food shortages. Plaintiff contends inmates were not provided with sufficient clean water and that

the ventilation system was not functioning properly. He alleges the defendant was aware of these

conditions, but failed to take action to provide relief.

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Standard of Review

An in forma pauperis proceeding shall be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)

if it: (1) is frivolous or malicious; (2) fails to state a claim upon which relief may be granted or (3)

seeks monetary relief from a defendant who is immune from such relief. A complaint is subject to

dismissal for failure to state a claim if the plaintiff has failed to plead “enough facts to state a claim

for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

Analysis

Plaintiff asserts he was subjected to unconstitutional conditions of confinement after

Hurricane Harvey made landfall. For the reasons set forth below, this claim may not be pursued in

a Bivens action.

“Disfavored Judicial Activity”

The Supreme Court recently restated that expanding causes of action under Bivens is “a

‘disfavored’ judicial activity.” Hernandez v. Mesa, 140 S. Ct. 735, 742 (2020) (quoting Ziglar v.

Abbasi, 137 S. Ct. 1843, 1857 (2017)). Separation-of-powers principles are central to the analysis

of whether Bivens should be expanded. The question is whether Congress or the courts should

authorize a damages lawsuit. Abbasi, 137 S. Ct. at 1857. Mindful of separation-of-powers interests,

the Court developed a two-part test. Id. at 1859-60. First, a court must ask whether a plaintiff’s

claim falls into one of three existing Bivens causes of action. Oliva v. Nivar, 973 F.3d 438, 441 (5th

Cir 2020). Then, if a case does not fall into one of those causes of action, a court asks whether there

are “special factors counseling hesitation” in extending the remedy available under Bivens. Abbasi,

137 S. Ct. at 1857. The special factors inquiry concentrates on “whether the Judiciary is well suited,

absent congressional action or instruction, to consider and weigh the benefits of allowing a damages

action to proceed.” Abbasi, 137 S. Ct. at 1858. These factors include whether Congress has

legislated on the right at issue. Id. “[I]f there is an alternative remedy structure present in a certain

case,” the existence of that process “alone may limit the power of the judiciary to infer a new Bivens

cause of action.” Id. Courts are also to consider separation-of-powers concerns. Hernandez v.

2

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Mesa, 885 F.3d 811, 818 (5th Cir. 2018) (en banc). “[T]he only relevant threshold–that a factor

counsels hesitation–is remarkably low.” Id. at 823. 

The three existing Bivens causes of action are as follows:

(1) manacling the plaintiff in front of his family in his home and strip-searching him

in violation of the Fourth Amendment, see Bivens, 403 U.S. at 389-90, 91 S. Ct. at

1999; (2) discrimination on the basis of sex by a congressman against a staff person

in violation of the Fifth Amendment, see Davis v. Passman, [442 U.S. 228 (1979)];

and (3) failure to provide medical attention to an asthmatic person in federal custody

in violation of the Eighth Amendment, see Carlson v. Green, [446 U.S. 14 (1980)].

Oliva, 973 F.3d at 442. “Virtually everything else is a ‘new context,’” Id. (quoting Abbasi, 137 S.

Ct. at 1865), because the case needs only be “different in [one] meaningful way from previous

Bivens cases” for the “context [to be] new.” Abbasi, 137 S. Ct. at 1859. “[E]ven a modest extension

[of Bivens] is still an extension.” Abbasi, 137 S. Ct. at 1864.

Unconstitutional Conditions of Confinement

A claim that an inmate was subjected to unconstitutional condition of confinement presents

a new Bivens context because the Supreme Court has not previously recognized an implied cause

of action for this type of claim. Mammana v. Barben, 856 F. App’x 411, 413-414 (3rd Cir. 2021);

Schwarz v. Meinberg, 761 F. App’x 732, 734 (9th Cir. 2019); Silva v. Ward, No. 1:16cv185, 2019

WL 4721052, at *3-4 (W.D. Wis. Sept. 26, 2019). The claim is different in a meaningful way from

the claims recognized in Bivens, Davis and Carlson. Specifically, this Eighth Amendment claim is

a different context from the Eighth Amendment medical claim recognized in Carlson. Sebolt v.

Tyndall, No. 19cv429, 2021 WL 4948959, at *3 (N.D. Ind. Oct, 25, 2021); Thomas v. Matevousian,

No. 1:17cv1592. 2019 WL 266323, at * 1 (E.D. Ca. Jan. 18, 2019). A claim arises in a new context

even if it is based on the same constitutional provision as a case in which a damages remedy has

previously been recognized. Hernandez, 140 S. Ct. at 743.

In addition, there are special factors counseling hesitation. As the United States Court of

Appeals for the Fifth Circuit stated in Watkins v. Martinez, No. 20-20781, 2022 WL 278376, at *1

(5th Cir. Jan. 31, 2022), the Federal Tort Claims Act and the Administrative Remedy Program of

the Bureau of Prisons provide alternative methods of relief. Further, like in Watkins v. Three Admin.

Remedy Coordinators of the Bureau of Prisons, 998 F.3d 682, 685 (5th Cir. 2021), the Prison

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Litigation Reform Act counsels hesitation as Congress, when it had an opportunity to do so, failed

to provide for a damages remedy against federal employees who expose inmates to unconstitutional

conditions of confinement.

If any special factor exists, a court must refrain from expanding Bivens. Canada v. U. S., 950

F.3d 299, 309 (5th Cir. 2020). Here, more than one factor counsels hesitation. As a result, special

factors counseling hesitation prevent the expansion of the remedy available under Bivens to

unconstitutional conditions of confinement claims. Mamana, 856 F. App’x at 416; Sebolt, at *4;

Thomas, at *2. 

 Based on the foregoing, an exposure to unconstitutional conditions of confinement claim

under the Eighth Amendment may not be brought pursuant to Bivens. Plaintiff has therefore failed

to state a claim upon which relief may be granted. 

Recommendation

This Bivens lawsuit should be dismissed for failure to state a claim upon which relief may

be granted.

Objections

Objections must be (1) specific, (2) in writing, and (3) served and filed within 14 days after

being served with a copy of this report. 28 U.S.C. § 636(b)(1); FED.R.CIV. P. 6(a), 6(b) and 72(b).

A party's failure to object bars that party from (1) entitlement to de novo review by a district

judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual

findings and legal conclusions accepted by the district court, Douglass v. United Serv. Auto. Ass’n,

79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

4

_________________________

Zack Hawthorn

United States Magistrate Judge SIGNED this 22nd day of May, 2024.

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