Opinion
Civil Action 22-cv-00014-PAB-MEH
05-11-2023
SHEHERYAR ALAM QAZI, Plaintiff, v. J. SEROSKI, Physician Assistant, in her individual and official capacities, DR. OBA, Clinical Director, in his individual and official capacities, and JOHN/JANE DOES, unknown BOP employees, in their individual and official capacities, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
MICHAEL E. HEGARTY, UNITED STATES MAGISTRATE JUDGE.
Defendants Physician Assistant Seroski (“P.A. Seroski”) and Dr. Oba have filed Defendants' Motion to Dismiss. ECF 34. Defendants argue that Plaintiff has no available Bivens remedy, and Defendants are entitled to qualified immunity. Because I find the first argument decides this lawsuit, I do not reach the second. On this basis, I recommend dismissing this action.
PROCEDURAL BACKGROUND
On January 4, 2022, Plaintiff pro se filed this case. ECF 1. Unopposed by Defendants, Plaintiff filed the operative Amended Complaint on November 1, 2022 [ECF 31] after Defendants had filed a Motion to Dismiss [ECF 22]. The Amended Complaint alleges the following six claims for relief against Defendants: (1) violation of the Eighth Amendment based on a theory of deliberate indifference to a serious medical need, against P.A. Seroski; (2) a deliberate indifference claim against Dr. Oba; (3) a deliberate indifference claim against Defendants Dr. Oba, P.A. Seroski, and John/Jane Does; (4) a Federal Tort Claims Act (“FTCA”) claim against the United States based on the actions of P.A. Seroski; (5) an FTCA claim against the United States based on the actions of Dr. Oba; and (6) an FTCA claim against the United States based on the actions of the prison's Utilization Review Committee. ECF 31. On November 17, 2022, I recommended granting Plaintiff's ore tenus motion to dismiss his claims for relief that are based on the FTCA (claims Four, Five, and Six). ECF 33. On November 22, 2022, Defendants moved to dismiss the Amended Complaint in its entirety. ECF 34. Chief Judge Brimmer adopted my Recommendation on December 7, 2022, thus eliminating the FTCA claims and rendering Defendants' dismissal arguments as to these claims moot. ECF 40.
FACTUAL BACKGROUND
For the purposes of this ruling, the Court accepts as true the factual allegations-as opposed to any legal conclusions, bare assertions, or conclusory allegations-that Plaintiff raises in his Amended Complaint. See generally Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (a complaint's factual allegations are “accepted as true” for purposes of Fed.R.Civ.P. 12(b)(6) analysis).
I am compelled here to note that Plaintiff's Amended Complaint was thorough and very well written, one of the best by a pro se litigant that I have seen.
Plaintiff, an inmate at the Federal Bureau of Prison's (BOP) United States Penitentiary-Administrative Maximum (“ADX,” also known as “Supermax”) in Florence, Colorado, alleges that beginning in 2017, he began “experiencing serious and substantial” back pain. ECF 31 ¶¶ 3-4. The pain ranged from a level 5 to level 10 out of 10. Id. ¶ 7. The cause of this pain “could not be determined initially by the [D]efendants.” Id. ¶ 4. Plaintiff states that although he has received medications and treatments, they have been “totally inadequate, ineffective and in some cases only increased [Plaintiff's] . . . pain.” Id. ¶ 5.
Regarding specific complaints and treatment, “[in] late 2018, [Plaintiff] sent a sick-call request” about his back and was seen on January 3, 2019, by P.A. Seroski. Id. ¶ 9. Plaintiff informed P.A. Seroski that the over-the-counter medication he had been taking was ineffective, so he requested an “x-ray or MRI and more effective medication.” Id. ¶¶ 11-12. Although at first P.A. Seroski stated that Plaintiff should continue his current pain medications, at Plaintiff's insistence P.A. Seroski (1) issued Plaintiff a Medrol Dosepak, which P.A. Seroski agreed was intended to treat Plaintiff's “long time excruciating pain,” and (2) ordered an x-ray. Id. ¶¶ 13, 15-17. On January 29, 2019, Plaintiff received the x-ray of his back “which showed ‘disc space narrowing.'” Id. ¶ 18. Plaintiff's pain did not subside. Id. ¶ 19.
On March 20, P.A. Seroski saw Plaintiff and told him she would order an MRI for him. Id. ¶¶ 21, 23. On May 19, 2019, Plaintiff received the first MRI of his back which showed disc issues including irregularities, thickening, bulging, impingement on nerve roots, and facet arthropathy. Id. ¶ 24. Plaintiff continued to complain about pain. Id. ¶ 27. At a June 18, 2019, encounter, Plaintiff saw Dr. Oba who opined that Plaintiff's conditions were being taken care of because the medical “records show[ed] that [Plaintiff] has been seen on several occasions by the medical staff.” Id. ¶¶ 115-17. But, Dr. Oba “made a note ‘requesting pain management evaluation for possibl[e] steroid injections.'” Id. 118.
On August 9, 2019, upon hearing Plaintiff's continued complaints of pain, P.A. Seroski prescribed the anti-inflammatory medication Meloxicam. Id. ¶¶ 28-29. On November 25, 2019, Plaintiff received an epidural injection in his spine “from an outside pain management clinic.” Id. ¶ 30. Plaintiff was informed it was “not unusual that this injection fails to help a patient at first or second instance.” Id. ¶ 33. After several weeks, Plaintiff's pain had not reduced. Id. ¶¶ 35, 37. However, in mid-January 2020, Plaintiff “was transferred to USP Florence,” a different facility (although only a short distance away) than the ADX. Id. ¶ 38. There, Dr. Norton prescribed Oxcarbazepine 150 mg, increased it to 300 mg, and ordered an MRI. Id. ¶ 38. Medical staff also told Plaintiff “he must exercise and lose weight.” Id. ¶ 39. A nurse saw Plaintiff on September 21 and 29, 2020 in response to Plaintiff's complaints. Id. ¶ 40. On October 18, 2020, Plaintiff received a second MRI of his back, showing most of the same conditions as the previous MRI. Id. ¶ 41. Following that MRI, on November 10, 2020, Plaintiff informed P.A. Seroski that his pain medication “was not helping” and his pain was worsening. Id. ¶¶ 42, 44. Based on what Plaintiff learned from other inmates with nerve and chronic back pain, Plaintiff requested a drug known as Gabapentin from P.A. Seroski. Id. ¶ 45. According to Plaintiff, P.A. Seroski denied Plaintiff's request for Gabapentin because other inmates abuse the medication, it was very expensive, and he did not think it would “help [Plaintiff] with [his] pain.” Id. ¶ 46. P.A. Seroski then increased Plaintiff's dosage of Oxcarbazepine. Id. ¶ 47. However, at Plaintiff's request, P.A. Seroski stated she would ask Dr. Oba about prescribing Gabapentin. Id. ¶ 48. At this encounter Plaintiff reminded P.A. Seroski that the outside pain management doctor had recommended a potential follow-up injection, but P.A. Seroski denied that request, stating that it was the BOP's obligation to determine the proper course of treatment. Id. ¶¶ 50-51.
The BOP's medical staff saw Plaintiff on March 30, 2021, at his request, but did not prescribe additional medication. Id. ¶¶ 54-55. On April 13, 2021, P.A. Seroski saw Plaintiff, and Plaintiff again requested Gabapentin. Id. ¶¶ 56-58. P.A. Seroski, in consultation with Dr. Oba, again told Plaintiff that the BOP was discouraging them from prescribing Gabapentin because of its cost. Id. ¶ 58. Instead, on April 22, 2021, P.A. Seroski changed Plaintiff's medication from Oxcarbazepine to Amitriptyline and then to Carbamazepine after Plaintiff experienced side effects. Id. ¶ 59. Plaintiff states that around this time, he asked repeatedly for better treatment, and BOP staff, including P.A. Seroski, told him he had to learn to live with pain and stop complaining so much. Id. ¶¶ 62-68.
On April 26, 2021, Plaintiff was taken to the outside pain management clinic for a second epidural injection. Id. ¶ 70. Perceiving a worsening of Plaintiff's condition, the attending doctor gave him a larger dose of the injection drug. Id. ¶ 71. On June 11, 2021, Dr. Oba increased Plaintiff's dosage of Carbamazepine. Id. ¶ 124. Plaintiff again asked about Gabapentin, but Dr. Oba allegedly denied prescribing it because of the cost, and “prisoners sometimes sniff it.” Id. On June 24, 2021, Plaintiff was then taken to a “neurosurgeon consultation” at an outside facility. Id. ¶ 79. The neurosurgeon informed Plaintiff he “needed an urgent surgery.” Id. ¶ 81. On July 11, 2021, Plaintiff obtained a third MRI of his back. Id. ¶ 83.
On July 29, 2021, Dr. Oba prescribed Plaintiff Gabapentin. Id. ¶¶ 97, 125. Dr. Oba later doubled the dosage, which Plaintiff admits helped his pain. Id. ¶¶ 99, 103. On August 23, 2021, Plaintiff was taken again to the outside pain management clinic and received a third epidural injection, which relieved his pain at the injection site for two days. Id. ¶¶ 84, 88. On October 21, 2021, P.A. Seroski saw Plaintiff and renewed the prescription for Gabapentin. Id. ¶ 101. On December 1, 2021, Plaintiff was again taken to an outside clinic, but was not provided any treatment because “the first [treatment] did not produce much of a result.” Id. ¶¶ 148, 156. On June 1, 2022, Dr. Oba recommended surgery (hopefully by August 2022) and informed Plaintiff that he would increase the Gabapentin dosage and order a new MRI. Id. ¶¶ 191-95.
LEGAL STANDARDS
The purpose of a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Twombly requires a two-prong analysis. Id. at 678.
First, courts must identify “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are “legal conclusions,” “bare assertions,” or merely “conclusory” Iqbal, 556 U.S. at 678, 680-81. Indeed, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing Twombly, 550 U.S. at 555). The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action”; “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (internal citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal quotations and citation omitted).
Second, courts must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679. Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). It “refers to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, “[w]hile the 12(b)(6) standard does not require that [a plaintiff] establish a prima facie case in [a] complaint, the elements of each alleged cause of action may help to determine whether [a plaintiff] has set forth a plausible claim.” Khalik, 671 F.3d at 1191 (internal citations omitted).
II. Dismissal of a Pro Se Plaintiff's Complaint
Federal courts must construe pro se plaintiffs' pleadings “liberally” and hold them “to a less stringent standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). However, courts “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). The Tenth Circuit interprets this rule to mean, if courts “can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, [they] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). But it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110); see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (“[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.” (quoting Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989))).
ANALYSIS
As noted above, Defendants argue that Plaintiff has no available Bivens remedy, and Defendants are entitled to qualified immunity. ECFs 34, 45. Because the first argument is dispositive to this case, I do not address the second.
I. No Bivens Remedy
Over fifty years ago, the Supreme Court adopted an “implied cause of action theory” permitting victims of “a violation of the Fourth Amendment by federal officials” to have a right to recover damages against the officials in federal court although no statute confers such a right. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-96 (1971). Soon after, the Supreme Court extended the Bivens remedy against federal officers in two other contexts: (1) a former congressional staffer's claim for discrimination based on sex in violation of the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U.S. 228, 230-31, 248 (1979), and, relevant here, (2) a federal prisoner's Eighth Amendment claim for failure to provide adequate medical treatment, Carlson v. Green, 446 U.S. 14, 16, 17 n.1 (1980). Since Carlson, however, the Supreme Court has “consistently refused to extend Bivens liability to any new context or new category of defendants.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001); cf. Iqbal, 556 U.S. at 675 (explaining “implied causes of action are disfavored, [so] the Court has been reluctant to extend Bivens liability”). The Tenth Circuit has interpreted this as a “warning”- “lower courts expand Bivens claims at their own peril.” Silva v. United States, 45 F.4th 1134, 1136 (10th Cir. 2022).
A. The Supreme Court's analytical framework for Bivens claims.
When a case raises a Bivens claim, a court must undertake a “two-step inquiry.” Hernandez v. Mesa, 140 S.Ct. 735, 743 (2020). First, a court asks whether the case presents a new Bivens context, i.e., whether it is meaningfully different from the three cases in which the Supreme Court previously implied a damages action. See Ziglar v. Abbasi, 582 U.S. 120, 139-40 (2017). Courts must analyze the allegations carefully because “[e]ven a modest extension is still an extension.” Id. at 147. The same “right and [] mechanism of injury” do not equate to the same context. Id. at 139 (internal citations omitted); cf. Hernandez, 140 S.Ct. at 743 (“A claim may arise in a new context even if it is based on the same constitutional provision as a claim in a case in which a damages remedy was previously recognized.”). Second, if a claim does arise in a new context, the court must consider whether any “‘special factors counsel[] hesitation.'” Ziglar, 582 U.S. at 136. This focuses “on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Id.
Most recently, the Supreme Court stated, “[w]hile our cases describe two steps, those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy.” Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022). If even one reason gives the court pause before extending Bivens into a new context, the court cannot recognize a Bivens remedy. Id. (quoting Hernandez, 140 S.Ct. at 743). Egbert also reiterated “a plaintiff cannot justify a Bivens extension based on ‘parallel circumstances' with Bivens, Passman, or Carlson unless he also satisfies the ‘analytic framework' prescribed by the last four decades of intervening case law.” Id. at 1809 (quoting Ziglar, 582 U.S. at 139). The Tenth Circuit has interpreted Egbert to mean “expanding Bivens . . . is an action that is impermissible in virtually all circumstances.” Silva, 45 F.4th at 1140 (citing Egbert, 142 S.Ct. at 1803-07).
B. Plaintiff's claims are meaningfully different from Carlson and thus arise in a new context.
In Carlson, multiple medical personnel allegedly failed to adequately respond to a prisoner's asthma attack for about eight hours, causing him to die from respiratory arrest. 446 U.S. at 17 n.1. Post-Egbert decisions involving medical care and determining whether a case presents a new Bivens context have interpreted meaningful difference from Carlson in varying ways.
Some courts have broadly compared alleged facts against Carlson. See, e.g., Wolfe v. Sproul, No. 21-cv-01471-SPM, 2023 WL 3160292, at *6 (S.D. Ill. Apr. 28, 2023) (finding factual allegation that medical staff refused to provide inmate supplies for his colostomy for a period of two weeks was not meaningfully different than Carlson); Thomas v. Ahmed, No. 21-cv-00192-JPG, 2023 WL 2499597, at *5 (S.D. Ill. Mar. 14, 2023) (finding an allegation that an inmate received “inadequate medical treatment of a knee injury” was not meaningfully different from Carlson because “[b]oth claims arise from the denial of medical care at a prison . . . are against prison medical officials . . . [and] implicate the Eighth Amendment.”).
Interestingly, Thomas is analogous to the present case as it involved (1) persistent painful knee problems (2) that were treated by a P.A. and a doctor, (3) who initially prescribed pain medication, but (4) followed up with an x-ray, (5) progressing to an MRI, resulting in (6) seeing an outside specialist, and (7) subsequently treated without surgery, which did not resolve the issue. Id. at *2. However, I find its Bivens analysis inconsistent with the Supreme Court's Ziglar and Egbert opinions. See infra.
Yet other courts compared allegations, including severity, more specifically against those in Carlson. See, e.g., Locke v. Root, No. 21-3051-DDC-JPO, 2023 WL 2914184, at *6 (D. Kan. Apr. 12, 2023) (finding a prisoner's request to see a medical specialist for “cuts and bruises on his eye and pain in his neck and back” was a meaningfully different context than Carlson); Feao v. Ponce, No. CV 20-06016 DMG (KSx), 2023 WL 3213553, at *13 (C.D. Cal. Mar. 3, 2023) (“This Court is not persuaded that the long-term mismanagement of a serious condition, resulting in an inmate's death, is meaningfully different from the more immediate mismanagement at issue in Carlson, at least for purposes of determining whether a Bivens remedy should be available.”). Many of these courts required fatality or a medical emergency to equate severity with Carlson. See, e.g., Manzo v. Mateware, No. 3:19-CV-812-S-BK, 2021 WL 6284098, at *4 (N.D. Tex. Dec. 13, 2021) (finding plaintiff's claims were meaningfully different from Carlson where plaintiff alleged delay and denial of treatment causing “‘irreversible damage to his retina' and partial loss of eyesight” but no “significant failure . . . [leading] to [his] death”), report and recommendation adopted, 2022 WL 48395 (N.D. Tex. Jan. 5, 2022), aff'd sub nom. Manzo v. Mateware, No. 2210091, 2022 WL 5101930 (5th Cir. Oct. 4, 2022); (Washington v. Fed. Bureau of Prisons, No. 5:16-3913-BHH, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022) (finding “Plaintiff's Bivens claims do not involve a medical emergency, as did Carlson, but rather focus on a long term and ongoing course of medical treatment of Plaintiff's chronic, non-fatal condition.”); Lu v. Kwon, No. 22-00122 JMS-RT, 2023 WL 2456207, at *5-6 (D. Haw. Mar. 10, 2023) (finding “the severity of [plaintiff's] claims is nothing like the claims in Carlson” because plaintiff “asserts that he experienced ‘worsening symptoms'” but “does not describe the nature or severity of his symptoms, nor does he allege that his need for the CPAP machine amounted to a medical emergency” (citing Washington, 2022 WL 3701577, at *5)). Importantly, the Washington court found:
It is of no moment that Plaintiff's claims parallel those in Carlson to the degree they are brought under the Eighth Amendment and relate to medical care in the prison setting generally. After Egbert, such broad similarities with Bivens, Passman, or Carlson are not sufficient on their own to authorize a claim.2022 WL 3701577, at *5 (citing Egbert, 142 S.Ct. at 1804).
I find this latter, nuanced approach particularly persuasive as it is consistent with the Supreme Court's directives in Ziglar to analyze beyond the “right and [] mechanism of injury” and Egbert that “parallel circumstances” alone are insufficient. See supra § I.A. Here, Plaintiff's claims are parallel to those in Carlson in the same sense that “they are brought under the Eighth Amendment and relate to medical care in the prison setting generally.” Washington, 2022 WL 3701577, at *5 (citing Egbert, 142 S.Ct. at 1804). But the differences between the medical condition in Carlson and the Plaintiff's allegations are material. The former involved a life-threatening medical condition that, when treated inadequately over a very short period of time, resulted in the inmate's death. 446 U.S. at 17 n.1. The latter involves, for the most part, pain management for a chronic but not life-threatening back condition. ECF 31. This alone supports the conclusion that Plaintiff's claims are meaningfully different than any case recognized by the Supreme Court as qualifying under a Bivens theory. Accordingly, this is a new context and I proceed to the second inquiry.
C. “Special factors” counsel deference to Congress to determine whether to extend Bivens into this new context.
As Egbert noted, whether “special factors indicat[e] that the Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action to proceed'” is often the dispositive inquiry. 142 S.Ct. at 1803 (quoting Ziglar, 582 U.S. at 136). The Supreme Court has “never” identified an “exhaustive” list of such factors. Id. (“[N]o court could forecast every factor that might ‘counse[l] hesitation.'” (quoting Ziglar, 582 U.S. at 143)). Egbert reiterated this analysis involves reviewing for “alternative remedial structure[s]” and determining whether the Judiciary is the best branch to determine whether the remedy should be created. Id. at 1804 (internal citations omitted).
First, Egbert emphasized “that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.'” Id. at 1804 (quoting Ziglar, 582 U.S. at 137). Indeed, “[i]f there are alternative remedial structures in place, ‘that alone,' like any special factor, is reason enough to ‘limit the power of the Judiciary to infer a new Bivens cause of action.'” Id. (quoting Ziglar, 582 U.S. at 137). This includes the BOP's Administrative Remedy Program (“ARP”), a “‘means through which allegedly unconstitutional actions . . . can be brought to the attention of the BOP and prevented from recurring.'” See Silva, 45 F.4th at 1141 (quoting Corr. Servs. Corp., 534 U.S. at 74) (“find[ing] the availability of the BOP's Administrative Remedy Program offers an independently sufficient ground to foreclose Plaintiff's Bivens claim.” (citing Egbert, 142 S.Ct. at 1806)); see also Locke, 2023 WL 2914184, at *6 (“[L]ike Silva, the court finds that the BOP has created an independent alternative remedy- the ARP-that plaintiff used to seek relief for his claims, independently foreclosing plaintiff's claim against defendant Delgado.”). Such structures also include the FTCA, 28 U.S.C. §§ 1346(b)(1), 2671-2680, which provides a damages remedy for injury due to medical negligence by federal employees. See, e.g., Watkins v. Martinez, No. 20-40781, 2022 WL 278376, at *1 (5th Cir. Jan. 31, 2022) (identifying FTCA claims as an alternative remedy precluding a Bivens action); Lu, 2023 WL 2456207, at *5-6 (“[T]he Court cannot recognize a Bivens remedy because alternative remedies are available to [Plaintiff] ....[T]the Executive, through the Federal Bureau of Prisons, has an alternative remedial program for federal prisoners . . . [and] Congress provided an alternative remedy through the Federal Tort Claims Act ....”); Kaneakua v. Derr, No. 22-cv-00201-DKW-WRP, 2023 WL 2539952, at *5 (D. Haw. Mar. 16, 2023) (finding similarities and “multiple factual differences when compared with Carlson” yet ultimately finding under Egbert “a new context not contemplated by Carlson” given the available alternative remedies, specifically “the BOP's Administrative Remedy Program” and “the Federal Torts Claims Act” (internal citations omitted)).
Like these cases, the ARP was available to Plaintiff. Although Carlson did not specifically consider the ARP, 446 U.S. at 19, the Tenth Circuit in Silva viewed the ARP as dispositive in precluding an extension of Bivens, see supra. Plaintiff argues that he has utilized the ARP, but it offers no damages remedy. ECF 44 at 11-12. However, Egbert rejected the argument that the ARP is inadequate because it does not award damages. 142 S.Ct. at 1806-07. “[T]he question whether a given remedy is adequate is a legislative determination that must be left to Congress, not the federal courts.” Id. at 1807. “[E]xisting remedies” need “not provide complete relief.” Id. at 1804; see also Susinka v. Trujillo, No. 21-cv-01837-PAB-MEH, 2023 WL 2366730, at *6 (D. Colo. Mar. 6, 2023) (Chief Judge Brimmer agreeing that under Silva, the ARP is “an independently sufficient ground to foreclose a Bivens claim” (internal quotations and citation omitted)); Noe v. United States, No. 21-cv-01589-CNS-STV, 2022 WL 18587706, at *9 (D. Colo. Dec. 14, 2022) (Magistrate Judge Varholak relying on Silva and “find[ing] the existence of [the ARP] forecloses the availability of a Bivens remedy . . . despite any ‘parallel circumstances' that may exist between it and Carlson”), report and recommendation adopted sub nom. Noe v. United States Gov't, No. 21-cv-01589-CNS-STV, 2023 WL 179929 (D. Colo. Jan. 13, 2023), appeal filed, No. 23-1025 (10th Cir. Jan. 30, 2023). Thus, the ARP alone is “sufficient ground to foreclose [Plaintiff's] Bivens claim[s].” Silva, 45 F.4th at 114.
Still, Plaintiff has another alternative remedial structure available-the FTCA. See 28 U.S.C. §§ 1346(b)(1), 2671-2680. He has actually pursued this remedy, filing a separate action which remains pending. ECF 33 at 2; Qazi v. United States, No. 23-cv-00292-KLM (D. Colo. Feb. 1, 2023). Plaintiff cites older appellate cases that did not find the existence of a remedy under the FTCA as precluding a Bivens remedy. ECF 44 at 12-14. However, the more recent Supreme Court cases have made those decisions obsolete. See, e.g., Egbert, 142 S.Ct. at 1803 (“If there is even a single ‘reason to pause before applying Bivens in a new context,' a court may not recognize a Bivens remedy.” (quoting Hernandez, 140 S.Ct. at 743)); id. at 1804 (“[O]ur cases hold that a court may not fashion a Bivens remedy if Congress already has provided, or has authorized the Executive to provide, ‘an alternative remedial structure.'” (quoting Ziglar, 582 U.S. at 137)); Watkins, 2022 WL 278376, at *1 (finding no “viable Bivens claim” under Ziglar because “special factors [] counsel hesitation, including the existence of the Federal Tort Claims Act”); Schwarz v. Meinberg, 761 Fed.Appx. 732, 734-35 (9th Cir. 2019) (holding the FTCA is an alternative remedy precluding a Bivens action pursuant to Ziglar). Cf. Williams v. Keller, No. 21-4022, 2021 WL 4486392, at *4 (10th Cir. Oct. 1, 2021) (discussing reasons why Congress would doubt the necessity of a Bivens remedy and citing Cantu v. Moody, 933 F.3d 414, 423-24 (5th Cir. 2019) which found the FTCA to be an alternative remedy precluding a Bivens action).
Second, Egbert also requires the court to consider which branch of government is best suited to fashion a remedy for a Bivens plaintiff. 142 S.Ct. at 1804. “Under Egbert, rarely if ever is the Judiciary equally suited as Congress to extend Bivens even modestly. The creation of a new cause of action is inherently legislative, not adjudicative.” Mejia v. Miller, 61 F.4th 663, 669 (9th Cir. 2023) (citing Egbert, 142 S.Ct. at 1802). Moreover, lower courts confronted with allegations of inmates with chronic but not life-threatening medical conditions have found the Judiciary is not best suited. See, e.g., Kaneakua, 2023 WL 2539952, at *5 (interpreting Egbert as “foreshadow[ing] there is no doubt that the legislature is” the better suited branch to determine the “remedy in the field of deliberate indifference to prisoners' medical needs and other forms of cruel and unusual punishment”); Washington, 2022 WL 3701577, at *6 (“‘[T]he Judiciary is not undoubtedly better positioned than Congress to authorize a damages action' in the context of chronic medical care in federal prisons.”).
Under Egbert, these multiple factors establish that there is at least one rational reason to defer to Congress to afford a remedy for Plaintiff and thus this Court “may not recognize a Bivens remedy.” 142 S.Ct. at 1803.
For all these reasons, I respectfully recommend dismissing this action.
II. Dismissal With Prejudice
Dismissal of a case is a harsh remedy, and a pro se litigant's pleadings are to be construed liberally. As a general rule, therefore, courts may give such a litigant the opportunity to amend the complaint to cure a pleading defect. See Hall, 935 F.2d at 1109-10; see also Reynolds v. Shillinger, 907 F.2d 124, 126 (10th Cir. 1990). However, courts may dismiss pro se complaints without an opportunity to amend if “it is ‘patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Curly v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110). Here, the dismissal of Plaintiff's claims would not stem from any pleading deficiency or any oversight in Plaintiff's allegations. Indeed, as noted above, Plaintiff pleaded his claims very thoroughly. Rather, the Court finds, as a matter of law, Plaintiff has no Bivens remedy. Any opportunity to amend would be futile. Thus, Plaintiff's claims should be dismissed with prejudice.
CONCLUSION
Accordingly, the Court recommends granting Defendants' Motion to Dismiss [filed November 22, 2022; ECF 34] and dismissing Plaintiff's claims with prejudice.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed.R.Civ.P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)). Finally, all parties must consult and comply with the District Judge's practice standards for any specific requirements concerning the filing and briefing of objections.