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Fifth Circuit Affirms Dismissal of Federal Prisoner’s Bivens Action Challenging Due Process in 280-Day SHU Stay and Alleging Retaliation

by Matt Clarke

On June 2, 2021, the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of a federal prisoner’s claims of insufficient due process used in maintaining his Special Housing Unit (SHU) status for 280 days. In doing so, the court refused to expand the scope of lawsuits filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 403 U.S. 388, 91 S. Ct. 1999 (1971) to First Amendment claims of retaliation.

Federal prisoner Max Ray Butler was held 280 days in the SHU at Oakdale Federal Correctional Complex in Louisiana. He filed a Bivens action in federal court alleging numerous prison officials violated his due process rights and federal Bureau of Prisons (BOP) policy by maintaining his close-custody status. He claimed that his extended stay in SHU, later transfer to another prison, and deprivation of medications, medical care, eyeglasses and access to commissary constituted retaliation for filing grievances.

Butler also filed several motions for appointment of counsel. The motions were denied and the complaint dismissed. Butler appealed and was appointed counsel for the appeal.

The Fifth Circuit noted that a magistrate judge had found that Butler failed to allege a denial of due process because, for the duration of his SHU stay, he was allowed to participate in some activities and was not held in SHU long enough to trigger a due process interest. The court agreed that Butler’s short SHU stay, weekly access to a telephone and ability to take courses and exercise outside undermined his due process claim. Further, his allegations that Oakdale staff violated BOP policy, even if true, could not constitute a constitutional due process violation.

The district court had dismissed the retaliation claims after refusing to expand Bivens to include them, citing Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

While the appeal was pending, Watkins v. Three Admin. Remedy Coordinators of Bureau of Prisons, 998 F.3d 682 (5th Cir. 2021) was decided. The Watkins Court declined to extend Bivens to First Amendment retaliation claims. Thus, the district court correctly dismissed the retaliation claim.

Butler could not raise the issue of the magistrate judge’s denial of his motions to appoint counsel on appeal because he failed to seek district court review of the magistrate judge’s decision. The Fifth Circuit lacked jurisdiction to review such decisions of a magistrate judge and that portion of the appeal was dismissed.

There was also no error in the denial of his later motions to file amended complaints as he had already had multiple opportunities to amend his complaint and did not file the motions until after the magistrate judge had ruled. Likewise, the refusal to file his surreply was not error because he failed to file a motion for leave to file a surreply. The dismissal of Butler’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) was affirmed. See: Butler v. Porter, 999 F.3d 287 (5th Cir. 2021). 

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Related legal case

Butler v. Porter