McGowan v. United States, No. 15-1786 (2d Cir. 2016)
Annotate this CasePlaintiff filed suit asserting claims for violation of his First Amendment rights under Bivens v. Six Unknown Named Agents, and for false imprisonment and negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671–2680. Plaintiff alleged that he was placed in solitary confinement in retaliation for publishing an on-line article. The court concluded that, in light of the different interests at stake, the court's case law establishing a prisoner’s right to file a lawsuit or grievance does not clearly establish a prisoner’s right to publish an article under a byline. Therefore, the court held that Defendant Rivers, a BOP employee, is entitled to qualified immunity from the Bivens claim and did not reach the question of whether Rivers violated plaintiff's First Amendment rights. The court also concluded that the district court correctly dismissed plaintiff’s negligence claim on the ground that it lacks a private analogue. Accordingly, the court affirmed the judgment.
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