Powers v. Community Resources for Justice, Inc.

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Jay Powers
v. 	Case No. 21-cv-775-SE
Community Resources for Justice
REPORT AND RECOMMENDATION
Plaintiff John Jay Powers, a former federal prisoner
released on September 30, 2021, sued Community Resources for
Justice (“CRJ”), a halfway house under contract with the Federal
Bureau of Prisons (“BOP”), alleging that CRJ personnel
unconstitutionally retaliated against him for complaining about
CRJ employee conduct during his stay at CRJ. 	See Amended Compl.
(Doc. 9-1).1
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings which are filed in forma pauperis. 	See LR 4.3(d). The
magistrate judge may recommend to the district judge that one or
more claims be dismissed if, among other things, the court lacks
1 Plaintiff also filed a motion for injunctive relief prior
to his release. (Doc. No. 2). The court denied the motion as
moot, as the online BOP inmate locator indicated he had been
released from custody. (Doc. No. 6). 	In undertaking this
preliminary review, the court considers the factual allegations
in all of plaintiff’s submissions, including his original
Complaint (Doc. No. 1).
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 1 of 6

2
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d). In conducting
its preliminary review, the court construes pro se complaints
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” 	Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). 	The court
treats as true all well-pleaded factual allegations, and
construes reasonable inferences in plaintiff's favor. See
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.
2011).
Background
From June through September 2021, plaintiff, a federal
prisoner in the custody of the BOP, was residing at a halfway
house operated by CRJ in Manchester, New Hampshire. 	After Mr.
Powers injured a tooth in mid-June 2021, a dispute over his care
developed. 	Mr. Powers claims that he needed a root canal, and
that CRJ personnel instead insisted he get the injured tooth
extracted. 	Not wanting to have a tooth extracted, he sought to
file a grievance to resolve the dispute, but decided not to
proceed after being warned that individuals who file grievances
“usually did not last long” in the halfway house. 	After later
being denied the desired dental procedure, Mr. Powers complained
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 2 of 6

3
to CRJ management about his dental care, interference with his
mail, and the lack of access to grievance procedures.
Subsequent to his complaints, and at the suggestion of his
mental health counselor, Mr. Powers purchased certain vitamins
and health supplements. 	On August 22, 2021, CRJ staff searched
Mr. Powers’s room and confiscated the vitamins and supplements
as contraband. 	On September 10, 2021, Mr. Powers filed
grievances against CRJ staff. 	That afternoon, Mr. Powers’s
residency at the halfway house was terminated and he completed
the remaining 20 days of his sentence in jail.
Discussion
Construing all of his submissions liberally, Mr. Powers
asserts the CRJ, through its employees, retaliated against him
for both his formal and informal grievances, in violation of his
First Amendment rights. 	In Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme
Court recognized for the first time an implied private right of
action for damages against federal officers alleged to have
violated a citizen's constitutional rights. 	Id. at 397.2 	The
scope of constitutional violations redressable by means of a
2 Although Mr. Powers cites 42 U.S.C. § 1983 in his
submissions, “A ‘Bivens’ action is a civil suit brought against
agents of the United States, and is viewed as the federal analog
to § 1983 suits against state officials.” Casey v. Dep’t of
Health and Human Serv., 807 F.3d 395, 398 n.1 (1st Cir. 2015)
(internal citation omitted).
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 3 of 6

4
Bivens action is, however, limited. 	Bivens itself recognized a
right to relief against federal officers alleged to have
undertaken a warrantless search and seizure in violation of the
Fourth Amendment. 	Id. 	In the more than four decades since, the
Supreme Court has extended the Bivens holding beyond its
original Fourth Amendment confines only twice. See Davis v.
Passman, 442 U.S. 228 (1979) (employment discrimination in
violation of the Due Process Clause of the Fifth Amendment);
Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment
violations committed by prison officials). 	Moreover, the
Supreme Court “has made clear that expanding the Bivens remedy
is now a “disfavored” judicial activity. 	Ziglar v. Abbasi, 137
S. Ct. 1843, 1857 (2017).
More specifically, both the Supreme Court and the First
Circuit have declined to extend Bivens to encompass First
Amendment claims like the one pressed here. 	See Wood v. Moss,
572 U.S. 744, 757 (2014) (acknowledging that the Supreme Court
has never recognized an implied damages remedy under the First
Amendment); Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (noting
that the Supreme Court has so far “declined to extend Bivens to
a claim sounding in the First Amendment”); Casey, 807 F.3d at
401 (citing Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35 (1st
Cir. 2011) (“It is questionable whether Bivens extends to cases
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 4 of 6

5
asserting a violation of First Amendment rights or retaliation
for the exercise of those rights.”)).
Beyond the fact that First Amendment claims have not been
recognized under Bivens, the Supreme Court has also held that a
plaintiff cannot assert a cognizable Bivens action against a
private halfway house that contracted with the BOP. 	Corr. Serv.
Corp. v. Malesko, 534 U.S. 61, 65–66, (2001); see also Minneci
v. Pollard, 565 U.S. 118, 125 (2012) (holding that a prisoner at
a federal facility operated by a private company could not
assert a Bivens claim for damages against employees of the
facility based on alleged Eighth Amendment violations).
Because Mr. Powers cannot state a Bivens claim against CRJ,
the District Judge should dismiss this complaint for failure to
state a claim upon which relief can be granted.
Conclusion
For the foregoing reasons, the District Judge should
dismiss this case in its entirety for failure to state a claim
and direct the clerk’s office to enter judgment and close the
case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion.
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 5 of 6

6
Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 28, 2022
cc: 	John Jay Powers, pro se
Case 1:21-cv-00775-SE Document 13 Filed 01/28/22 Page 6 of 6