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Sixth Circuit Refuses to Extend Bivens to BOP Prisoner’s First Amendment Claims

Federal prisoner Scott Callahan is incarcerated at the Federal Medical Center in Lexington, Kentucky. While serving a 210-month sentence for child pornography, he learned to paint. He typically paints topless or bikini-clad women.

In June 2017, Bureau of Prisons (BOP) recreation supervisor Steven Garcia and Warden Francisco Quintana seized one of Callahan’s paintings of a reclining, bikini-clad woman with exaggerated breasts. They also seized mail-order photos of “pretty women posing for pictures.” Neither the painting nor the photos depicted children, but both were confiscated for violating a BOP rule prohibiting sexually explicit materials.

After unsuccessfully grieving the seizures, Callahan brought federal suit pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). He alleged that the confiscation violated the First Amendment to the United States Constitution. He sought declaratory and injunctive relief, $100,000 in compensatory damages and punitive damages.

The federal district court granted the defendants’ motion to dismiss Callahan’s suit, noting that “a civil-rights claim against federal officials pursuant to Bivens is a judicially-created cause of action that has been implied only in limited circumstances.” See: Ziglar v. Abbasi, 137 S.Ct. 1843, 1854 (2017). The Supreme Court has recognized Bivens claims in just three contexts: (1) Fourth Amendment search and seizure claims; (2) Fifth Amendment discrimination claims; and (3) Eighth Amendment deliberate indifference to serious medical need claims. Noting that the Supreme Court “has never recognized a Bivens remedy in the First Amendment context,” the district court refused to extend Bivens to such claims and dismissed Callahan’s suit.

The Sixth Circuit affirmed, finding that the Supreme Court has not recognized a new Bivens action in 40 years and it “has never recognized a Bivens action for any First Amendment right.”

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Related legal case

Callahan v. Fed. Bureau of Prisons