Opinion
Civil Action 4:22-CV-0006
03-17-2023
DWAYNE SCOTT, Plaintiff v. UNITED STATES OF AMERICA et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
On Defendants Kiddish, Bodge, O'Kane, Price, Frisk, Connor, Walker, Simyan, Condella, Maiorana, and Carvajal's Motion to Dismiss and/or For Summary Judgment (Doc. 10)
WILLIAM I. ARBUCKLE, U.S. MAGISTRATE JUDGE
I. INTRODUCTION
Federal Inmate Dwayne Scott (“Plaintiff”) was attacked by his cellmate at USP Canaan. (Doc. 1). Staff arrived at the cell door and ordered the cellmate to stop. The cellmate did not stop until BOP staff deployed pepper spray. After the first spray, the cellmate stopped attacking. Despite this surrender the staff deployed another round of pepper spray and shot capsules containing pepper spray into the cell. Following the attack, Plaintiff filed this counseled, fee paid Complaint seeking money damages from the United States under the Federal Tort Claims Act, and from eleven prison employees under Bivens (hereinafter the “Bivens Defendants”).
Before the Court is the Bivens Defendants' Motion to Dismiss and/or Motion for Summary Judgment. With respect to the claims against the Bivens Defendants, Plaintiff alleges claims of: Retaliation for speaking out (under the First Amendment); Use of Excessive Force (under the Eighth Amendment); and Failure to Protect (also under the Eighth Amendment).
After reviewing the motion, and the parties' briefs, we find that, even if the facts as pleaded in the complaint are taken as true, the Bivens Defendants' Motion to Dismiss should be granted. The Supreme Court has not extended Bivens to provide a remedy for these types of claims. Plaintiff must make do with the FTCA and Prison Grievance system as his remedies. The following Report and Recommendation explains this result.
II. LEGAL STANDARDS
We begin by discussing the well-known legal standards for a Motion to Dismiss and a Motion for Summary Judgement and the evolving standards for Bivens type claims.
A. Motion to Dismiss Standard
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss, the court “must accept all factual allegations in the complaint as true, construe the complaint in the light most favorable to the plaintiff, and ultimately determine whether Plaintiff may be entitled to relief under any reasonable reading of the complaint.” In review of a motion to dismiss, a court must “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010).
Id. at 230.
“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. To determine the sufficiency of a complaint under the pleading regime established by the Supreme Court, the court must engage in a three-step analysis:
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Id.
First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where they are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556 U.S. at 675, 679).
“In other words, a complaint must do more than allege the plaintiff's entitlement to relief” and instead must “‘show' such an entitlement with its facts.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955]. A complaint satisfies the plausibility standard when the factual pleadings “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, “stops short of the line between possibility and plausibility of ‘entitlement of relief.'” Id. (citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).
B. Summary Judgment Standard
Rule 56(a) of the Federal Rules of Civil Procedure, provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Through summary adjudication the court may dispose of those claims that do not present a ‘genuine dispute as to any material fact' and for which a jury trial would be an empty and unnecessary formality.”
Goudy-Bachman v. U.S. Dep't of Health & Human Servs., 811 F.Supp.2d 1086, 1091 (M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(a)).
The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by “‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Id. at 325.
Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must show a genuine dispute by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the absence . . . of a genuine dispute.”
Summary judgment is also appropriate if the nonmoving party provides merely colorable, conclusory, or speculative evidence. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Id. at 252.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” A dispute about a material fact is genuine only if there is enough evidence to allow a reasonable factfinder to return a verdict for the non-moving party. When “faced with a summary judgment motion, the court must view the facts ‘in the light most favorable to the nonmoving party.'”
Anderson, 477 U.S. at 248.
Id. at 248-49.
N.A.A.C.P. v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
At the summary judgment stage, the judge's function is not to weigh the evidence or to determine the truth of the matter; rather it is to determine whether there is a genuine issue for trial. The proper inquiry of the court “is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 249.
Id. at 250.
Summary judgment is warranted, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. “Under such circumstances, ‘there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.'”“[S]ummary judgment is essentially ‘put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.”
Celotex, 477 U.S. at 322.
Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002) (quoting Celotex, 477 U.S. at 323).
Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); Hickey v. Merritt-Scully, No. 4:18-CV-01793, 2022 WL 883851, at *2-3 (M.D. Pa. Mar. 24, 2022)
C. The Evolution of the Bivens Remedy
In 1871, Congress passed a statute that was later codified at Rev. Stat. § 1979, 42 U.S.C. § 1983. It entitles an injured person to money damages if a state official violates his or her constitutional rights. Congress did not create an analogous statute for federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal Government.
In 1971, and against this background, this Court decided Bivens. The Court held that, even absent statutory authorization, it would enforce a damages remedy to compensate persons injured by federal officers who violated the prohibition against unreasonable search and seizures.
Ziglar v. Abbasi, 137 S.Ct. 1843 (2017).
In Bivens, that plaintiff alleged that federal agents entered his home, handcuffed him in front of his family, searched his home, and then arrested him and took him away, all without probable cause. He sued the officers involved for a violation of his Fourth Amendment right to be free from unreasonable searches and seizures and sought money damages for the invasion of his privacy and for the humiliation it caused. The Government argued and the trial court found that there was no federal cause of action and that he should be required to sue in state court under a tort theory. The Court of Appeals agreed. The Supreme Court reversed.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Speaking for the majority, Justice Brennan reviewed the differences between a private party committing a tort and the same conduct when done by a federal officer under color of state law. He called the awarding of damages for a Fourth Amendment violation “hardly surprising.” After finding a Fourth Amendment violation Brennan said: “Having concluded that petitioner's complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the Amendment.”
Id. at 397.
In dissent Chief Justice Burger said: “I dissent from today's holding which judicially creates a damage remedy not provided for by the Constitution and not enacted by Congress. We would more surely preserve the important values of the doctrine of separation of powers-and perhaps get a better result-by recommending a solution to the Congress as the branch of government in which the Constitution has vested the legislative power.”
Id. at 411-412.
The competing policies of enforcing rights via civil damages and deference to the legislatures responsibility to create causes of action dominates the cases that followed. The Court has been reluctant to recognize other Bivens claims. Over 51 years have passed since the Bivens decision, and in that time the Supreme Court has expanded the remedy twice. In Davis v. Passman, the Court extended the remedy to a claim for gender discrimination under the Fifth Amendment Due Process Clause where a Congressman fired his female employee. In Carlson v. Green, the Court extended the remedy to a claim for inadequate medical care under the Eighth Amendment Cruel and Unusual Punishment Clause where prison officials failed to treat an inmate's asthma leading to his death.
Davis v. Passman, 442 U.S. 228 (1979).
Carlson v. Green, 446 U.S. 14 (1980).
Since those three cases, the Supreme Court has clearly expressed that the expansion of the Bivens remedy is disfavored. In a recent line of cases, Ziglar v. Abbasi, Hernandez v. Mesa, and Egbert v. Boule, the Supreme Court has emphasized how disfavored expansion is and has refined and clarified the two-step test used to determine whether to expand Bivens.
See Egbert v. Boule, 142 S.Ct. 1793 (2022); Hernandez v. Mesa, 140 S.Ct. 735 (2020); Abbasi, 137 S.Ct. 1843.
In Abbasi, the Supreme Court declined to extend Bivens to the detention policy claims of alien detainees who were held on immigration violations in the aftermath of the September 11, 2001 attacks. Abbasi, 137 S.Ct. 1843. Those claims arose under the Fourth and Fifth Amendments. Id. In Hernandez, the Supreme Court declined to extend Bivens and recognize claims for a violation of civil rights under the Fourth and Fifth Amendment where a fifteen-year-old Mexican child was shot and killed by a United States Border Patrol agent across the border. Hernandez, 140 S.Ct. 735. In Egbert, the Supreme Court declined to extend Bivens to claims for First Amendment retaliation and Fourth Amendment excessive force. Egbert, 142 S.Ct. 1793. In that case, the plaintiff alleged a United States Border Patrol agent retaliated against him for lodging grievances with the agent's supervisor and bringing an administrative claim. Id. That plaintiff also alleged Border Patrol Agent Egbert used excessive force against him when the Agent was attempting to check Mr. Boule's guest's immigration paperwork. Id.
First, we ask whether the case presents “a new Bivens context” - i.e., is it “meaningful[ly]” different from the three cases in which the Court has implied a damages action. Second, if a claim arises in a new context, a Bivens remedy is unavailable if there are “special factors” indicating that the Judiciary is at least arguable less equipped than Congress to “weigh the costs and benefits of allowing a damages action to proceed.” If there is even a single “reason to pause before applying Bivens in a new context,” a court may not recognize a Bivens remedy. While 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, 142 S.Ct. at 1803 (internal citations omitted).
The three cases where the Court has implied a Bivens remedy are Bivens, Davis, and Carlson. These three cases “represent the only instances in which the Court has approved of an implied damages remedy under the Constitution itself.”
Abbasi, 137 S.Ct. at 1855; Hernandez 140 S.Ct. at 742-43; Egbert 142 S.Ct. at 1803.
Abbasi, 137 S.Ct. at 1855.
In evaluating whether a proposed Bivens claim presents a “new context,” from Bivens, Davis, and Carlson, the meaning of what is a “new context” is “broad.” “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.” If a court determines a Bivens claim presents a new context, it proceeds to the second step of the analysis.
Hernandez, 140 S.Ct. at 743 (citing Abbasi, 137 S.Ct. at 1859).
Hernandez, 140 S.Ct. at 743.
When completing the second step, the court must determine whether special factors counseling hesitation of expanding Bivens are present. If so, the court should “reject the request” to expand Bivens. During the second step a court is to ask broadly “if there is any reason to think that ‘judicial intrusion' into a given field might be ‘harmful' or ‘inappropriate.' If so, or even if there is the ‘potential' for such consequences, a court cannot afford a plaintiff a Bivens remedy.'” “When evaluating whether to extend Bivens, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?” If “there is any rational reason (even one) to think that Congress is better suited to ‘weigh the costs and benefits of allowing a damages action to proceed,'” a court cannot recognize a Bivens remedy.
Id.
Id.
Egbert, 142 S.Ct. at 1805 (internal citations omitted) (emphasis in original).
Hernandez, 140 S.Ct. at 750 (quoting Abbasi, 137 S.Ct. at 1857) (internal quotation marks omitted).
Egbert, 142 S.Ct. at 1805 (internal citations omitted) (emphasis in original).
The Court has also made clear that the existence of an alternative remedial structure forecloses a court from recognizing a proposed Bivens claim.
Finally, our 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.” If 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.” Importantly, the relevant question is not whether a Bivens action would “disrupt[t]” a remedial, scheme, or whether the court “should provide for a wrong that would otherwise go unredressed.” Nor does it matter that “existing remedies do not provide complete relief.” Rather, the court must ask only whether it, rather than the political branches, is better equipped to decide whether existing remedies “should be augmented by the creation of a new judicial remedy.”
Id. at 1804 (internal citations omitted).
The Court has “never held that a Bivens alternative must afford rights to participation or appeal.” It is not for a court to decide whether the remedy at issue is “adequate” as that is a “legislative determination that must be left to Congress.” As long as Congress (or the Executive if so authorized) has established a remedy it finds sufficient to deter, “the courts cannot second-guess that calibration by superimposing a Bivens remedy.”
Id. at 1806.
Id. at 1807.
Id.
The Supreme Court has made it clear that courts must act with great caution when evaluating whether a Bivens claim should proceed as “expanding the Bivens remedy is now a ‘disfavored' judicial activity.”
Abbasi, 137 S.Ct. at 1857.
With these three legal standards in mind we turn to the relevant background and procedural history.
III. BACKGROUND & PROCEDURAL HISTORY
This case began on January 3, 2022, when Plaintiff filed his Complaint. (Doc.
1). As Defendants Plaintiff names:
1. The United States (US DOJ/US BOP);
2. Joshua Kiddish (health services unit at USP-Canaan);
3. Lieutenant Bodge (BOP Staff as SHU at USP-Canaan);
4. Lieutenant P. O'Kane (BOP Staff at USP-Canaan);
5. B. Price (security officer at USP-Canaan);
6. Lieutenant C. Frisk (USP-Canaan);
7. Lieutenant J. Connor (USP-Canaan);
8. C. Walker (BOP employed security officer at USP-Canaan);
9. R. Condella (BOP employed security officer at USP-Canaan);
10. Charles Maiorana (warden at USP-Canaan);
11. Michael Carvajal (director of the BOP/Washington, D.C.); and
12. A. Simyan (BOP employed security officer at USP-Canaan).
Defendants Kiddish, Bodge, O'Kane, Price, Frisk, Connor, Walker, Condella, Maiorana, Carvajal, and Simyan are collectively the “Bivens Defendants.”
Plaintiff brings five claims. (Doc. 1). Plaintiff brings a claim against the United States under the Federal Torts Claim Act. (Doc. 1, p. 13). Plaintiff brings four claims against the Bivens Defendants under Bivens v. Six Unknown Named Agents, for: 1) First Amendment retaliation; 2) Eighth Amendment failure to protect; 3) Eighth Amendment excessive force; and 4) Eighth Amendment failure to intervene. (Doc. 1, pp. 9-13). On July 25, 2022 the Bivens Defendants filed the instant Motion to Dismiss and/or for Summary Judgment. (Doc. 10).
403 U.S. 388 (1971).
In his Complaint, Plaintiff titles this claim “Failure to Protect from Excessive Force in Violation of Mr. Scott's Eighth Amendment Right ....” (Doc. 1, p. 13). In Defendants' Brief in Support of their Motion to Dismiss and/or for Summary Judgment they refer to this claim as a failure to intervene claim. In his Brief in Opposition, Plaintiff uses that same label. For the sake of clarity, the Court will use the failure to intervene title adopted by both parties in the briefing relevant to this Motion.
Plaintiff was incarcerated at USP-Canaan at the time of the events giving rise to this action. (Doc. 1, ¶¶ 1-2, 34). While an inmate there, Plaintiff was housed in the Special Housing Unit (“SHU”) due to his need for special medical treatment. (Doc. 1, ¶ 35). Plaintiff has been diagnosed with Asthma, COPD, and “related raspatory [sic] conditions.” Id. at ¶ 7.
When Plaintiff believed prison staff had violated his basic rights, he would not “sit idly by” but would routinely file administrative complaints against the offender. (Doc. 1, ¶ 3). Plaintiff alleges that these complaints frustrated Bureau of Prisons (“BOP”) staff and in retaliation for his complaints, inmate Johnathan Riley was transferred to Plaintiff's cell at Defendant Bodge's discretion. (Doc. 1, ¶¶ 4, 38). Mr. Riley had a reputation and a history of infractions which included several “unprovoked and violent attacks” against his cellmates. Id. at ¶ 39. Plaintiff alleges that Mr. Riley told him Lieutenant Bodge had celled the two men together because of the numerous administrative complaints Plaintiff had filed. Id. at ¶ 41.
Fearing for his safety, Plaintiff petitioned Lieutenant O'Kane for relocation and made “numerous” administrative requests to be relocated to a different cell. (Doc. 1, ¶¶ 42, 44). Lieutenant O'Kane denied Plaintiff's request, affirming Lieutenant Bodge's decision to cell Mr. Riley and Plaintiff together. Id. at ¶ 43. At this time, other cells on the SHU block were vacant where Mr. Riley or Plaintiff could have been relocated. Id. at ¶¶ 40, 45. “Despite these repeated requests to numerous individuals,” Plaintiff remained celled with Mr. Riley for just over a month. Id. at ¶ 47.
On January 3, 2020, Defendant Kiddish made rounds to distribute medication to prisoners, including Plaintiff. (Doc. 1, ¶ 49). Defendant Kiddish was delivering a battery for Plaintiff's CPAP machine, which Plaintiff needed due to his respiratory illnesses. Id. at ¶¶ 50-51. Plaintiff alleges that the named defendants knew or should have known of these illnesses as he was routinely treated by doctors at USP-Canaan. Id. at ¶ 52. As Defendant Kiddish approached the cell, Mr. Riley began attacking Plaintiff, punching and striking him. Id. at ¶¶ 53-54. Defendant Kiddish alerted fellow staff and at least six responded: Lieutenants C. Frisk and J. Connor, and Security Officers B. Price, C. Walker, A. Simyan, and R. Condella. Id. at ¶¶ 55-56.
Plaintiff alleges that when the staff arrived, they ordered Mr. Riley to stop, but he did not. (Doc. 1, ¶ 58). Instead of opening the door to restrain the inmates, the air vent to the cell was shut and Defendant Price immediately used BOP-issued pepper spray. Id. at ¶¶ 59-60. Plaintiff alleges no officers inquired about any reasons pepper spray may be unadvisable due to Plaintiff's respiratory illnesses, nor did Defendant Kiddish alert his fellow officers of the risk of using pepper spray on Plaintiff. Id. at ¶¶ 61-62. After this first stream of pepper spray was sprayed, the attack ceased and both men got on the floor, rendering them no longer a threat to each other or any BOP staff. Id. at ¶¶ 65-67. Despite this, Defendant Price proceeded to fire a second stream of pepper spray into the cell. Id. at ¶ 68. After the second spray, the attack had still ceased, and Plaintiff and Mr. Riley continued to no longer represent a threat to each other or BOP staff. Id. at ¶ 69. Again, despite this, Defendant Frisk proceeded to use a gas-powered firearm to fire multiple capsules into the cell which hit the wall and exploded, releasing more pepper spray into the cell. Id. at ¶¶ 70-71. Plaintiff alleges this unnecessary use of force was done without any regard for the increased risk it may pose to him. Id. at ¶ 72. Plaintiff also alleges the BOP “was forced to acknowledge [that Plaintiff] did nothing to warrant this excessive use of force that placed him, an individual diagnosed with Asthma, COPD, and related raspatory [sic] conditions in unnecessary danger.” Id. at ¶ 7.
After the third use of pepper spray, the men were ordered to stand and place their hands through the cell door, and both complied. (Doc. 1, ¶¶ 74-75). Their hands were secured behind their back and they were then taken for showers and decontamination, and BOP staff took photographs of Plaintiff's injuries resulting from the attack. Id. at ¶¶ 76-77, 82. Plaintiff was treated for bumps and bruises resulting from the attack and for the use of the pepper spray. Id. at ¶ 87.
Defendants Frisk, Connor, Price, Walker, Simyan and Condella filed reports about the incident. (Doc. 1, ¶ 83). Defendant Frisk and Defendant Price's reports use identical language and state that Plaintiff and Mr. Riley remained combative despite having their hands secured behind their backs. Id. at ¶ 84. The reports from Defendants Connor and Kiddish do not include any mention of that continued combativeness between Plaintiff and Mr. Riley. Id. at ¶ 85. Plaintiff does not have reports from Defendants Walker, Simyan, and Condella. Id at ¶ 86.
Plaintiff alleges a camera outside his cell recorded the incident. (Doc. 1, ¶ 78). Plaintiff filed an administrative tort claim about this incident, and as such, that video should have been preserved in anticipation of this litigation. Id. at ¶ 79. Additionally, BOP policy requires, where practicable, that use of force incidents be recorded with a camera. Id. at ¶ 80. Plaintiff states that he “has petitioned the BOP using the appropriate administrative remedies which have been denied and, thus, his claims are fully exhausted.” Id. at ¶ 10.
Plaintiff states that, recognizing its danger, the BOP has policies in place that limit the use of oleoresin capsicum, also known as pepper spray. (Doc. 1, ¶¶ 29, 64). That policy requires the spray to be used at a distance greater than four feet and be aimed at the individual, not generally sprayed into an area. Id. at ¶ 30. The BOP's use of force policy requires that medical staff be consulted before chemical agents or “pepper mace” is used. Id. at ¶ 31. Plaintiff alleges medical staff was on-site, but that Defendants Kiddish, Price, Frisk, Connor, Walker, Simyan, and Condella failed to consult them. Id. at ¶ 33.
As relief Plaintiff seeks compensatory and punitive damages, reasonable attorney's fees and litigation costs, pre- and post-judgment interest, and any other relief the Court deems appropriate. (Doc. 1, ¶¶ 128-132).
With this background in mind and taking all of Plaintiff's well pleaded facts as true, we now turn to our analysis.
IV. ANALYSIS
Plaintiff has alleged three different types of Bivens claims. We will analyze each in turn.
A. First Amendment Retaliation
The first count in Plaintiff's Complaint is a First Amendment retaliation claim brought under Bivens against Defendants Bodge and O'Kane. (Doc. 1, ¶¶ 88-94). In Egbert, the Supreme Court held “there is no Bivens cause of action for First Amendment retaliation.” The parties agree on this. Therefore it will be recommended that this claim be dismissed.
Egbert, 142 S.Ct. at 1807.
Defendants Bodge and O'Kane raise this argument in their Brief in Support of their Motion. (Doc. 16, p. 14). Plaintiff concedes there is no Bivens action for First Amendment retaliation in its Brief in Opposition to Defendants' Motion. (Doc. 24, p. 15).
B. Defendant Maiorana
The second count in Plaintiff's Complaint is an Eighth Amendment failure to protect claim brought under Bivens. (Doc. 1, ¶¶ 95-106). Plaintiff brings this claim against, among others, Charles Maiorana, who he alleges in his Complaint was the Warden of USP-Canaan at the relevant time. However, the parties agree that on January 3, 2020, Defendant Maiorana was retired and not the Warden of USP-Canaan and that he should be dismissed. (Doc. 16, p. 35; Doc. 24, p. 14). It will therefore be recommended Defendant Maiorana be dismissed from this action.
C. Eighth Amendment Failure to Protect
In addition to Defendant Maiorana, Plaintiff brings his Eighth Amendment failure to protect claim under Bivens against two other Defendants, Bodge, and O'Kane. Plaintiff alleges that Defendant Bodge knew or should have known of Mr. Riley's proclivity for attacking his cellmates and that he in fact brought this issue to the attention of Defendants Bodge and O'Kane, repeatedly requesting a transfer to a less dangerous housing situation. (Doc. 1, ¶¶ 95-98). Plaintiff alleges that Defendant Bodge's decision to cell him with Mr. Riley, and Defendant O'Kane's ratification of that decision was a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Id. at ¶¶ 99-101.
As the parties have agreed to the dismissal of Defendant Maiorana, the Court will not address Plaintiff's allegations against him.
Plaintiff argues that Mr. Riley's attack on him was the reasonable and foreseeable consequence of Defendant Bodge and O'Kane's decision to cell the two inmates together, putting Plaintiff in greater danger than he would have otherwise been in. Id. at ¶ 102. Plaintiff appears to be broadly alleging that Defendants Bodge and O'Kane were deliberately indifferent to the threat to his safety and forced him to cell with a dangerous inmate. Defendants Bodge and O'Kane argue that no Bivens remedy exists for this Eighth Amendment failure to protect claim. (Doc. 16, pp. 1214, 18-34). These Defendants argue this case and claim are meaningfully different from previously recognized Bivens cases and special factors exist counseling hesitation in expanding Bivens to this context. Id. We will turn now to evaluating whether Plaintiff's proposed Bivens claim under the Eighth Amendment for failure to protect may move forward using the two-step test laid out by the Supreme Court in Abbasi.
i. Is Failure to Protect a New Context?
Of the three cases where the Supreme Court has found an implied damages remedy under the Constitution, Carlson is relevant to our analysis. In Carlson, the Supreme Court extended the Bivens remedy to an Eighth Amendment inadequate medical care claim. Defendants Bodge and O'Kane argue that this case meaningfully differs from Carlson despite both being brought under the Eighth Amendment. In that case, Carlson sought redress for injuries stemming from a failure to provide adequate medical care, not from a failure to protect from another inmate. (Doc. 16, p. 18).
Taking Plaintiff's well pleaded facts as true, the claim at issue does not involve an illegal search or use of excessive force under the Fourth Amendment as in Bivens, or a sex-discrimination claim under the Fifth Amendment as in Davis.
Carlson, 446 U.S. 14.
The Court agrees. While the cases both share allegations of a violation of the Eighth Amendment, “the Supreme Court has made clear that a common constitutional basis is simply not enough to link a new Bivens theory to an existing Bivens context.” It is also not enough “that the new theory matches an existing context at a high level of generality, i.e., ‘prisoner mistreatment.'” Here, Plaintiff's case, and its Eighth Amendment failure to protect claim, meaningfully differs from Carlson. The two “differ[] in the nature and scope of the misconduct alleged, and differ[] in the legal standards and judicial guidance that would apply to that misconduct,” and thus this case represents a new Bivens context.
Hill v. Lappin, 561 F.Supp.3d 481, 488 (M.D. Pa. 2021) (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Id.
Landis v. Moyer, No. 1:19-CV-470, 2022 WL 2677472, at *6 (M.D. Pa. July 11, 2022) (citing Abbasi, 137 S.Ct. at 1860; Mammana v. Barben, No. 4:17-CV-645, 2020 WL 3469074, at *3 (M.D. Pa. June 25, 2020), aff'd 856 Fed.Appx. 411.
Our analysis does not stop there. The Court will also evaluate Plaintiff's proposed failure to protect Bivens claim under a Third Circuit inspired Farmer analysis.
Farmer v. Brennan, 511 U.S. 825, 829-34.
Although recent Supreme Court cases have not mentioned Farmer as one of the cases in which the Court recognized a Bivens remedy, see Egbert, 142 S.Ct. at 1803; Hernandez, 140 S.Ct. at 741; Abbasi, 137 S.Ct. at 1855, our court of appeals has recognized, post-Abbasi, that Farmer recognized an implied Bivens remedy for claims that prison officials were deliberately indifferent to a risk that an inmate would be assaulted by other inmates. See Bistrian v. Levi, 912 F.3d 79, 90-91 (3d Cir. 2018).
Davis v. FCI-Schuylkill, No. 1:22-CV-1270, 2022 WL 4348462, at *3 (M.D. Pa. Sept. 19, 2022).
Defendants Bodge and O'Kane argue that Bistrian does not survive Egbert.
Bistrian v. Levi, 912 F.3d 79, 90-91 (3d Cir. 2018).
However, we agree with Judge Conner's analysis of the issue:
The Supreme Court's more recent decisions in Hernandez and Egbert cloud this conclusion [that Farmer recognized an implied Bivens remedy for claims that prison officials were deliberately indifferent to a risk that an inmate would be assaulted by other inmates]. In Hernandez, decided two years after Bistrian, the Court reiterated that Bivens, Davis, and Carlson are the only cases in which the Court has recognized an implied damages remedy under Bivens. Hernandez, 140 S.Ct. at 741. In Egbert, decided in June of this year, the Court reiterated that after Bivens, Davis, and Carlson, “the Court has not implied additional causes of action under the Constitution.” Egbert, 142 S.Ct. at 1802. Thus, to determine whether a Bivens claim presents a new context under Egbert, a trial court must determine whether the claim at issue is meaningfully different “from the three cases in which the Court has implied a damages action.” Id. at 1803 (emphasis added) (citing Abbasi, 137 S.Ct. at 1859-60).
A recent decision of our court of appeals also calls into question the continued viability of Bistrian. In Dongarra v. Smith, 27 F.4th 174, 18081 (3d Cir. 2022), decided between the Supreme Court's decisions in Hernandez and Egbert, our court of appeals considered a claim brought by a prisoner plaintiff alleging, like the plaintiff in Farmer, that prison officials were deliberately indifferent to the risk that the plaintiff would be assaulted by other inmates. See Dongarra, 27 F.4th at 17677. Despite the facial similarities between the facts of Dongarra and the facts of Farmer, the court of appeals limited its analysis to the deliberate indifference claim recognized in Carlson and did not rely on
or cite the implied damages remedy recognized in Farmer. See id. at 180-81.
Despite these signs of weakness in Bistrian's holding, we acknowledge that Dongarra did not overrule Bistrian because Dongarra is not an en banc decision. See, e.g., Bracey v. Superintendent Rockview SCI, 986 F.3d 274, 290 n.14 (3d Cir. 2021). Hence, we continue to treat Bistrian as binding precedent, and must address the relevance of Farmer to the instant case.
Davis, 2022 WL 4348462, at *3 n.3.
In Milhouse v. Heath, Judge Mehalchick, in a Report and Recommendation adopted by Judge Kane, followed Judge Conner's reasoning and treated Bistrian as binding precedent. Judge Mehalchick then completed the new context analysis, finding that Milhouse's case was a new context in light of both Carlson and Farmer. We will also complete the new context analysis looking at Farmer.
Milhouse v. Heath, et al., No. 1:15-CV-01400, 2022 WL 18860932, at *8-9, *8 n.7 (M.D. Pa. Dec. 30, 2022), report and recommendation adopted, Milhouse v. Heath, et al., No. 1:15-CV-01400, 2023 WL 2212987 (M.D. Pa. Jan. 24, 2023).
Id. at *8-9.
In Farmer, the Supreme Court recognized a Bivens cause of action for a prisoner's claim that prison officials were deliberately indifferent to a risk that the prisoner would be assaulted by other inmates. The plaintiff in Farmer was a transexual inmate who was initially placed into segregation due to safety concerns. She was then transferred to a prison prolific for violence and sexual assault and placed in general population. After the transfer, the Farmer plaintiff was then later raped and beaten in her cell.
Farmer, 511 U.S. at 829-34.
Id.
Id. at 830-31.
In Milhouse, Judge Mehalchick found that plaintiff's case was a new context from Farmer. The Milhouse case contains facts similar to this case. In that case, the plaintiff alleged “harm suffered at the hands of cellmates caused by the indifference of prison officials despite multiple warnings of pending injury” and his repeated requests to be placed in protective custody. Here too Plaintiff alleges that he was injured by his cellmate despite Mr. Riley's known proclivity for violence against his cellmates, which prison officials did nothing about even when Plaintiff complained about being in danger and requested to be moved. (Doc. 1, ¶¶ 95-106).
Milhouse, 2022 WL 18860932 at *8-9.
Id.
Id. at *2-5.
Like in Milhouse, we find that this case meaningfully differs from Farmer. While Farmer and this case share allegations of failure to protect a prisoner from inmate-on-inmate violence, an Eighth Amendment violation, that common constitutional basis is not enough. It is also not enough that both Farmer and this case could be classified as prisoner mistreatment or conditions of confinement cases. The Supreme Court has instructed that it is not enough “that the new theory matches an existing context at a high level of generality, i.e., ‘prisoner mistreatment,'” or case conditions of confinement. It too is not enough that both Farmer and this case represent a failure to protect claim. The Supreme Court has instructed that 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.” Therefore, though Farmer and this case share an Eighth Amendment basis for failure to protect and could both be broadly classified as prisoner mistreatment or conditions of confinement cases, that does not establish a shared context.
Hill, 561 F.Supp.3d at 488 (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Id.
Id.
Hernandez, 140 S.Ct. at 743.
Hill, 561 F.Supp.3d at 488 (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Farmer and this case meaningfully differ. In Shorter v. United States, the Third Circuit said, “Farmer made clear . . . that an Eighth Amendment Bivens remedy is available to a transgender prisoner who has been assaulted by a fellow inmate.” Here, Plaintiff is not a transgender prisoner who was raped and beaten by another inmate when placed in general population. Plaintiff, unlike the plaintiff in Farmer, is not complaining about being placed in general population instead of protective custody. In this case, Plaintiff complains he was celled with a dangerous inmate and Defendants Bodge and O'Kane failed to protect him from that cellmate. (Doc. 1, ¶¶95-106). While there may be some “superficial similarities” between Farmer and this case, that is “not enough to support the judicial creation of a cause of action.” As the Supreme Court has said, “even a modest extension is still an extension.”
Shorter v. United States, 12 F.4th 366, 373 (3d Cir. 2021).
Farmer, 511 U.S. at 831.
Egbert, 142 S.Ct. at 1805. In Egbert, the Supreme Court said, “[w]hile Bivens and this case do involve similar allegations of excessive force and thus arguably present ‘almost parallel circumstances' or a similar ‘mechanism of injury,' these superficial similarities are not enough to support the judicial creation of a cause of action.” Id. (quoting Abbasi, 137 S.Ct. at 1859). Thus, even if one views this case as having “‘almost parallel circumstances'” or a similar ‘mechanism of injury,'” with Farmer, that is not enough to establish a shared context. Id.
Abbasi, 137 S.Ct. 1864.
For the reasons analyzed above, we find that this case and its Eighth Amendment failure to protect claim represents a new Bivens context.
To the extent Plaintiff argues that we must consider the context of the Bistrian case and its failure to protect claim in deciding whether this case represents a new context, and to the extent Defendants Bodge and O'Kane argue this case represents a new context from Bistrian, we will decline to use the claim Bistrian recognized in analyzing whether this case presents a new context. (See Doc. 16, pp. 27-34, Doc. 24 pp. 6-9, Doc. 39, p. 12-13). “Abbasi made clear that lower courts could no longer rely on their own prior precedent to recognize a Bivens remedy. Unless the Supreme Court has recognized the context before, the context is ‘new' ....” When conducting a new context analysis, “[o]nly decisions by the Supreme Court - and not those by [the Third Circuit] or any other circuit court - are relevant.” Thus, we are looking to Farmer, the Supreme Court decision, not Bistrian, to determine whether Plaintiff's proposed Bivens claim is a new context. As the Third Circuit did in Shorter, we “rely on [Bistrian] solely for its holding that Farmer, which supplies the relevant Bivens context for our case, remains good law.”
For the same reasons discussed here below, we will also decline to use the Bistrian claim in evaluating whether this case represents a new context for the Eighth Amendment excessive force and failure to intervene claims.
Mack v. Yost, 968 F.3d 311, 319 (3d Cir. 2020).
Mammana v. Barben, 856 Fed.Appx. 411, 414 (3d Cir. 2021).
In Davis and Milhouse, Judge Conner and Judge Mehalchick (as adopted by Judge Kane), respectively, found that Bistrian remained binding precedent and performed a new context analysis of their cases with Farmer, but did not perform that analysis of their cases with Bistrian. Davis, 2022 WL 4348462, at *3; Milhouse, 2022 WL 18860932, at *8-9.
Shorter, 12 F.4th at 373 n.5. Defendants Bodge and O'Kane also argue that Shorter does not survive Egbert. As we find that Bistrian itself is still binding precedent, we need not address whether Shorter may have survived Egbert. Defendants, as they do with Bistrian, also argue that this case presents a new context from Shorter. However, for the same reasons discussed above, we do not need to do this analysis.
Having determined that this case does represent a new Bivens context, we proceed to the next step for evaluating whether Plaintiff's Bivens claim may go forward, the special factors analysis.
ii. Are Special Factors Counseling Hesitation Present?
Defendants Bodge and O'Kane argue that one special factor counseling hesitation in expanding Bivens to this context is the availability of an alternative remedy process. (Doc. 16, pp. 20-23). The Court agrees that the BOP has such an alternative remedy process in the form of their administrative remedy program which “allow[s] an inmate to seek formal review of an issue relating to any aspect of his/her confinement.” The existence of this program does not appear to be a dispute among the parties. The Supreme Court has explicitly said “our 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.'” It does not matter that the BOP's administrative remedy program does not allow for money damages. Courts are to focus on “whether the Government has put in place safeguards to prevent constitutional violations from recurring,” and are not to evaluate whether the court believes that remedy is adequate. As long as Congress (or the Executive if so authorized) has established a remedy it finds sufficient to deter, “the courts cannot second-guess that calibration by superimposing a Bivens remedy.”
The parties do, however, dispute whether Plaintiff has exhausted all of his administrative remedies. (See Docs. 16, 24, 39). As will be discussed further below in the special factors analysis for Plaintiff's Eighth Amendment excessive force claim, Plaintiff seems to try and make the argument that because Plaintiff's efforts to utilize the BOP's administrative remedy program were frustrated in this case, this discounts the existence of the administrative remedy program as a special factor the Court must consider. The Court is not sure this fact necessarily matters and, in any event, even if that fact did discount the existence of the administrative remedy program, two other special factors counseling hesitation exist.
Egbert, 142 S.Ct. at 1804 (quoting Abbasi, 137 S.Ct. at 1858) (internal quotations omitted).
Egbert, 142 S.Ct. at 1804.
Id. at 1807 (internal quotation marks omitted).
Id.
Another special factor also present in this case is the separation of powers. “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” The judiciary is simply not equipped to tackle issues involving prison administration. “Prison administration is, moreover, a task that has been committed to the responsibility of [the legislative and executive] branches, and separation of powers concerns counsel a policy of judicial restraint.” This fact is a “rational reason” to think that Congress (or the Executive) is better suited to create a damage remedy than the Judiciary. It would be inappropriate and betray the separation of powers for the Court to intrude on a task committed to the other branches and recognize a Bivens cause of action here. Indeed, because there is a “rational reason to think” Congress is better suited to provide a damages remedy, “no Bivens action may lie.”
Turner v. Safely, 482 U.S. 78, 84-85 (1987); see Bistrian, 912 F.3d at 9495.
Turner, 428 U.S. at 84.
Id. at 85.
Egbert, 142 S.Ct. at 1805.
Id. at 1803.
Lastly, the Court is unable to “predict the ‘systemwide' consequences of recognizing a cause of action under Bivens” in this context. “That uncertainty alone is a special factor that forecloses relief.”
Id. at 1803-04 (quoting Abbasi, 137 S.Ct. at 1858).
Id. at 1804.
Any one of these three special factors alone is enough to “foreclose[] relief.”“When evaluating whether to extend Bivens, the most important question is who should decide whether to provide for a damages remedy, Congress or the courts?”In this case, after careful of consideration of the special factors, the Court finds that, as the Supreme Court has said “as it will be in most every case,” the answer to this question is Congress.
Id.
Hernandez, 40 S.Ct. at 750 (quoting Abbasi, 137 S.Ct. at 1857) (internal quotation marks omitted).
Egbert, 142 S.Ct. at 1803.
Finding that this case presents a new Bivens context and that special factors counseling hesitation towards recognizing a Bivens cause of action are present in this case, we will decline to recognize a Bivens remedy for Plaintiff's Eighth Amendment failure to protect claim. It will therefore be recommended that Plaintiff's Eighth Amendment failure to protect claim under Bivens be dismissed.
D. Eighth Amendment Excessive Force
In count three of his Complaint, Plaintiff brings an Eighth Amendment excessive use of force claim under Bivens against Defendants Price, Frisk, and Carvajal. (Doc. 1, ¶¶ 107-116). Plaintiff alleges that on January 3, 2020, Mr. Riley attacked him in his cell and in response, Defendant Price sprayed pepper spray into the cell to subdue the attack. (Doc. 1, ¶ 64). After that initial spray, Plaintiff alleges that that the attack stopped, Mr. Riley and Plaintiff dropped to the floor thus neither of them presented any further danger to each other or prison staff. (Doc. 1, ¶¶ 6567). Plaintiff alleges that although neither man presented further danger, Defendant Price fired a second stream of pepper spray into the cell. (Doc. 1, ¶ 68). Plaintiff argues Defendant Price should have known the second spray was unnecessary, unreasonable and without justification. (Doc. 1, ¶¶ 109-110). As the second stream of pepper spray was not needed, its utilization was a violation of Plaintiff's Eighth Amendment right to be free from cruel and unusual punishment. (Doc. 1, ¶ 111).
Plaintiff alleges that after this second unwarranted and unnecessary use of pepper spray, Defendant Frisk used a gas-powered firearm to fire multiple pepper spray filled capsules into the cell. (Doc. 1, ¶ 70). Those capsules then hit the back of the cell and exploded, releasing more pepper spray into the cell. (Doc. 1, ¶ 71). Plaintiff alleges Defendant Frisk did this despite neither Plaintiff nor Mr. Riley presenting a danger to each other or prison staff. (Doc. 1, ¶¶ 72, 113-114). Plaintiff argues that this was an excessive use of force under the circumstances. (Doc. 1, ¶ 115).
The Bivens Defendants argue that there is no Bivens remedy available under the Eighth Amendment for excessive force. (Doc. 16, p. 14-16). Specifically they argue that Eighth Amendment excessive force claims arise in a different context than any of the Supreme Court's previously recognized Bivens cases. Id.
We now turn to evaluate whether Plaintiff's proposed Bivens claim under the Eighth Amendment for excessive force may proceed by using the two-step test laid out by the Supreme Court in Abbasi.
i. Is Excessive Force a New Context?
Looking at the three cases where the Supreme Court has found an implied damages remedy under the Constitution, Bivens and Carlson are relevant to our analysis. Farmer also appears to be relevant to our analysis. The Bivens Defendants argue that this case is meaningfully different from Bivens and Carlson in relation this case's excessive force claim. (Doc. 16, pp. 14-15). They further argue courts in this district have declined to extend Bivens to Eighth Amendment excessive force claims, finding such claims to represent a new context. Id. Plaintiff argues that this case features the same right at issue in Carlson and Farmer and that the mechanism of injury “naturally flows” from Plaintiff's failure to protect claim meaning it does not present a new context. (Doc. 24, pp. 6-9).
Taking Plaintiff's factual allegations as true, this case and this claim do not involve a sex-discrimination claim under the Fifth Amendment as in Davis.
Beginning with Bivens, the claim in Bivens was implied under the Fourth Amendment. Plaintiff's claim not only arises under the Eighth Amendment, but also in “an entirely different factual setting.” Bivens involved “a claim against FBI agents for handcuffing a man in his own home without a warrant,” and “allegations of excessive force.” Plaintiff's claim and this case “bear little resemblance” to the claim and facts in Bivens. The facts of this case surrounding Plaintiff's excessive force claim do not involve the Fourth Amendment, nor do they involve an entry and search of Plaintiff's home, his arrest, or the use of excessive force during those events. The plaintiff in Bivens was not a prisoner at the time of the alleged use of excessive force whereas our Plaintiff is. All that is shared between the two cases is the allegation of excessive force. This is not enough.
Bivens, 403 U.S. 388.
Landis, 2022 WL 2677472, at *5.
Abbasi, 137 S.Ct. at 1860.
Egbert, 142 S.Ct. at 1805.
Abbasi, 137 S.Ct. at 1860.
Egbert, 142 S.Ct. at 1805.
In Egbert, the plaintiff brought a claim under the Fourth Amendment for the use of excessive force, similar to Bivens. However, the Supreme Court refused to extend Bivens to cover that plaintiff's case despite finding that the two cases did “involve similar allegations of excessive force and thus arguably present[ed] almost parallel circumstances or a similar mechanism of injury.” The Court found that “these superficial similarities are not enough to support the judicial creation of a cause of action.” This case does not share the common Fourth Amendment claim that Bivens and Egbert did, nor does it share a non-incarcerated Plaintiff. Egbert represents a case more similar to Bivens than ours and was found to be a new Bivens context. Given this, the lack of a shared Amendment and notably different factual bases, we find that this case is a new context from Bivens.
Id. (internal quotation marks and citations omitted).
Id.
Id. at 1800-1807.
We also find this case represents a new context from Carlson. In Carlson, the Supreme Court recognized a Bivens cause of action under the Eighth Amendment for inadequate medical care. While the claims in Carlson and this case arise under the same Amendment, “the Supreme Court has made clear that a common constitutional basis is simply not enough to link a new Bivens theory to an existing Bivens context.” The factual allegations in this case, taken as true, do not align with Carlson. Plaintiff does not bring an inadequate medical care claim like the Carlson plaintiff. Instead, he alleges the count three Defendants used excessive force against him. (Doc. 1, ¶¶107-116). The two cases allege different misconduct and different legal standards would apply to them. Thus, this case differs meaningfully from Carlson.
Hill, 561 F.Supp.3d at 488 (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Landis, 2022 WL 2677472, at *6 (citing Abbasi, 137 S.Ct. at 1860; Mammana, 2020 WL 3469074, at *3.
We similarly find that this case represents a new context from Farmer. Plaintiff cites to Ward v. Enigk where Judge Carlson stated that in Farmer, “the Supreme Court recognized Eighth Amendment claims premised upon excessive force, inhumane conditions of confinement, and failure to protect inmates from known dangers.” However, in finding that there was no excessive force claim in Ward, Judge Mariani found excessive force presented a new context as “the Supreme Court has never extended Bivens to claims against federal prison officials for the use of excessive force or in addressing conditions of confinement.
Ward v. Enigk, No. 1:20-CV-615, 2021 WL 8322122, at *8 (M.D. Pa. Sept. 24, 2021), report and recommendation adopted in part, rejected in part, No. 1:20-CV-615, 2022 WL 1424984 (M.D. Pa. May 5, 2022).
Ward v. Enigk, No. 1:20-CV-615, 2022 WL 1424984, at *4-5 (M.D. Pa. May 5, 2022).
In Farmer, the Court stated “[i]n its prohibition of ‘cruel and unusual punishments,' the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners.” But the Supreme Court has made clear that not every violation of the Constitution is redressable by a Bivens cause of action.
Farmer, 511 U.S. at 832.
See Chappell v. Wallace, 462 U.S. 296 (1983); Bush v. Lucas, 462 U.S. 367 (1983); United States v. Stanley, 483 U.S. 669 (1987); Schweiker v. Chilicky, 487 U.S. 412 (1988); FDIC v. Meyer, 510 U.S. 471 (1994); Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001); Wilkie v. Robbins, 551 U.S. 537 (2007); Hui v. Castaneda, 559 U.S. 799 (2010); Minneci v. Pollard, 565 U.S. 118 (2012); Abbasi, 137 S.Ct. 1843; Hernandez, 140 S.Ct. 735; Egbert, 142 S.Ct. 1793.
It is true the Supreme Court in Farmer spoke in broad language, holding that if prison officials were deliberately indifferent to “an excessive risk to inmate health or safety,” they could be held “liable under the Eighth Amendment for denying an inmate human conditions of confinement ” However, since that holding, the Supreme Court has made it clear that such level of generality is insufficient to find that a case falls into the context of one of the recognized Bivens causes of action. It is not enough “that the new theory matches an existing context at a high level of generality, i.e., ‘prisoner mistreatment,'” or conditions of confinement. Although framed broadly, Farmer involved the failure of prison officials to protect that plaintiff, not the use of excessive force. Again, in Farmer a transgender plaintiff was beaten and raped in her cell after being placed in general population. As relevant to this claim, this case does not resemble the Farmer claim. This case involves prison officials allegedly using excessive force against Plaintiff by inappropriately using pepper spray against him (Doc. 1, ¶¶ 107-116). Even accepting as true that three of the Bivens Defendants did use excessive force against Plaintiff, we find that the factual distinctions between Farmer and this case, and the different Eighth Amendment claims brought in the two cases are meaningful differences. Thus, we find this case represents a new context from Farmer.
Farmer, 511 U.S. at 837.
Hill, 561 F.Supp.3d at 488 (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Farmer, 511 U.S. 825.
Id.
Plaintiff argues that in Abbasi the Supreme Court “recognized that the first question is ‘whether the right at issue was the same: the Eighth Amendment right to be free from cruel and unusual punishment.'” (Doc. 24, p. 7). Plaintiff states the next step per Abbasi was “the Court then assess[ing] whether the mechanism of injury were identical.” (Doc. 24, p. 7). Plaintiff argues that both are satisfied in this case. Id. However, the Court made this statement in the context of describing the improper test the Court of Appeals used to determine whether there was a new Bivens context. The Court then stated, “the proper test for determining whether a case presents a new Bivens context” begins with an evaluation of whether “the case is different in a meaningful way from previous Bivens cases decided by this Court ....” As discussed above, we find that it does.
Abbasi, 137 S.Ct. at 1859.
Id.
Finally, Plaintiff argues that courts in our district have denied motions for summary judgment, citing two cases where BOP officials were alleged to have acted with excessive force in situations similar to the one in this case. (Doc. 24, p. 8). However, as the Bivens Defendants note, those cases did not consider whether the claims at issue were still actionable after Abbasi, which is what we are considering in this case. (Doc. 39, p. 7).
In the wake of Abbasi, there was indeed some dissonance regarding the continued viability of such claims. Initially, defendants did not argue, and courts did not sua sponte consider, whether such claims for damages remained viable. As the dust settles, however, and courts begin to appreciate Abbasi's watershed scope, the better-reasoned authority has declined to recognize a Bivens remedy for Eighth Amendment conditions-of-confinement and excessive-force claims.
Hill, 561 F.Supp.3d at 487.
We agree with Judge Conner and the other courts in this district that have found Eighth Amendment excessive force claims like this one to represent a new context.
Hill, 561 F.Supp.3d 481; Landis, 2022 WL 2677472 at *1; Johnson v. Mace-Leibson, No. 1:20-CV-1247 at Dkt. No. 53 (M.D. Pa. Mar. 25, 2022), report and recommendation adopted, No. 1:20-CV-1247 at Dkt. No. 57 (M.D. Pa. July 18, 2022).
For the reasons explained above, we find that this case and its Eighth Amendment excessive force claim represents a new Bivens context. Thus, we will turn now to the second step and determine whether any special factors are present.
As to Defendant Carvajal, Plaintiff's claim against him also represents a new context because Plaintiff's claim is supervisory in nature. In Abbasi, the Supreme Court faced a similar claim against a warden and found that this represented a new context, citing to the fact that “judicial guidance . . . with respect to his supervisory duties, was less developed.” Abbasi, 137 S.Ct. at 1864.
ii. Are Special Factors Counseling Hesitation Present?
The same special factors counseling hesitation discussed above in Section IV(C)(ii) apply to Plaintiff's Eighth Amendment excessive force Bivens claim.
The BOP has an alternative remedial structure in place, its administrative remedy program. In his Complaint, Plaintiff alleges that he “has petitioned the BOP using the appropriate administrative remedies, which have been denied and, thus, his claims are fully exhausted.” (Doc. 1, ¶ 10). Then, in his Brief in Opposition Plaintiff states that “Mr. Scott's access to the administrative remedy procedure was frustrated by BOP employees.” (Doc. 24, p. 7 n.2).
Plaintiff then tries to distinguish this case from Ward v. Enigk. In Ward, the court found an extension of Bivens to an excessive force claim brought under the Eighth Amendment was unwarranted due to the BOP's alternative remedy program. Plaintiff argues that in this case his efforts to utilize that program were frustrated. (Doc. 24, p. 7 n.2). Plaintiff seems to argue that this fact undercuts that the existence of the BOP's alternative remedy program as a special factor counseling hesitation and that we should discount the alternative remedy program as a special factor. Id.
Ward, 2022 WL 1424984 at *4, report and recommendation adopted in part, rejected in part, 2022 WL 1424984.
Id.
As Bivens Defendants correctly note, Plaintiff cannot amend his Complaint through his Brief in Opposition. (Doc. 39, p. 2). Nevertheless, even operating as though Plaintiff had amended his Complaint to allege such thwarting and taking as true that such thwarting did in fact occur, the Court does not believe this necessarily makes the availability of the administrative remedy program no longer a special factor counseling hesitation.
Reed v. Chambersburg Area Sch. Dist., 951 F.Supp.2d 706, 720 (M.D. Pa. 2013).
In Milhouse, that plaintiff alleged defendants prevented him from using the administrative remedy program. Judge Mehalchick observed:
[T]he Supreme Court does not condition the existence of alternative remedial structures special factor on whether an inmate actually utilizes the process. Rather, the Court only requires that the process was created to provide an alternative remedy because even an allegedly “inadequate” grievance process can “independent[ly]” foreclose Bivens relief from a federal law enforcement officer. Egbert, 142 S.Ct. at 1806. This is because the relevant “focus is whether the Government has put in place safeguards to prevent constitutional violations from recurring,” not whether the reviewing Court deems those adequate. Egbert, 142 S.Ct. at 1807 (quotations omitted).
Milhouse, 2022 WL 18860932 at *9.
The Supreme Court has also instructed that “a court should not inquire . . . whether Bivens relief is appropriate in light of the balance of circumstances in the particular case.”
Egbert, 142 S.Ct. at 1805 (quoting U.S. v. Stanley, 483 U.S. 669, 683 (1987) (internal quotation marks omitted)).
Even assuming Plaintiff had amended his Complaint to include the frustration of his use of the BOP's administrative remedy program, that frustration did occur, and that frustration did discount that alternative remedy process as a special factor, the two other special factors counseling hesitation discussed above are present in this context.
The separation of powers special factor is equally applicable to Plaintiff's Eighth Amendment excessive force claim for the same reasons discussed above. Congress and the Executive have been entrusted with the task of prison administration and are far more capable of competently doing so. It is not for the Court to intrude on a task committed to the Legislature and Executive. The Court is also unable to “predict the ‘systemwide' consequences” that recognizing an Eighth Amendment excessive force Bivens cause of action would have. That fact alone is reason enough for the Court to decline to extend Bivens. Any one of these factors precludes this Court from expanding Bivens in this case.
Turner, 482 U.S. at 85.
Egbert, 142 S.Ct. at 180-04 (quoting Abbasi, 137 S.Ct. at 1858).
Id. at 1804.
Id. at 1805.
After considering the special factors present, when we ask who is better suited to decide whether a damages remedy should exist in this context, we find that the answer is Congress. As we find this case represents a new Bivens context with special factors present that counsel our hesitation in expanding Bivens, we will decline to do so. It will be recommended that Plaintiff's Eighth Amendment excessive force claim be dismissed.
E. Eighth Amendment Failure to Intervene
In count four of his Complaint, Plaintiff brings a failure to intervene claim against Defendants Kiddish, Connor, Walker, Simyan, and Condella for not protecting him from or intervening in the use of excessive force against him. (Doc. 1, ¶¶ 117-122). Plaintiff alleges that Defendant Kiddish was distributing medical equipment to Plaintiff at the time of the attack and that despite knowing Plaintiff's particular vulnerability to pepper spray, he failed to inform the other responding officers of that vulnerability. Id. at ¶¶ 118-119. Plaintiff also alleges the other responding BOP personnel knew the BOP's policy that medical staff be consulted when using pepper spray on a vulnerable inmate, which they knew Plaintiff was based on his respiratory diagnoses, but took no action to intervene in the use of pepper spray. Id. at ¶¶ 120-121. Plaintiff argues this failure to act was a violation of his Eighth Amendment right to be free from cruel and unusual punishment. Id. at ¶ 122. The Bivens Defendants argue that there cannot be a Bivens remedy for failure to intervene in the use of excessive force when there is no Bivens remedy for excessive force and that the Court should not extend Bivens to an Eighth Amendment failure to intervene claim. (Doc. 16, pp. 16-18). These Defendants also argue that several courts confronted with this claim have declined to recognize a Bivens remedy. Id. at p. 17-18.
We will turn now to evaluating whether Plaintiff's proposed Bivens claim under the Eighth Amendment for failure to intervene may move forward using the two-step test laid out by the Supreme Court.
i. Is Failure to Intervene a New Context?
Bivens and Carlson are the two of the three cases where the Supreme Court has found an implied damages remedy under the Constitution that are potentially relevant to our analysis of Plaintiff's failure to intervene claim. Farmer also appears to be relevant to our analysis. The Bivens Defendants argue that a failure to intervene claim is even further removed from Bivens and Carlson than the excessive force claim, and that other courts have found a failure to intervene claim as a new context. (Doc. 16, p. 16-18).
This case does not involve a sex-discrimination claim under the Fifth Amendment as in Davis.
Plaintiff argues that the right at issue in Carlson and Farmer is the same right at issue here, and that the mechanisms of injury are similar, and so this case does not represent a new context. (Doc. 24, p. 7). However, as discussed above this is not the proper test to use to make such a determination. That the same right is at issue and the mechanisms of injury are similar is not enough to find a proposed Bivens claim does not represent a new context.
Egbert, 142 S.Ct. at 1805; Hill, 561 F.Supp.3d at 488 (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
Looking to Bivens, the facts of this case relevant to Plaintiff's failure to intervene claim do not align with those of Bivens at all. The claim in Bivens arose under the Fourth Amendment and involved “a claim against FBI agents for handcuffing a man in his own home without a warrant,” and “allegations of excessive force.” In contrast, Plaintiff alleges that count four Defendants stood by and watched pepper spray be used against Plaintiff despite their knowledge that medical staff should have been consulted and that Plaintiff was particularly vulnerable. (Doc. 1, ¶¶ 119-121). Given the different factual settings in these cases, as well as the different Amendments, it is clear that this case represents a new context from Bivens.
Abbasi, 137 S.Ct. at 1860.
Egbert, 142 S.Ct. at 1805.
Turning to Carlson, that case involved an Eighth Amendment claim for inadequate medical care. While Plaintiff's failure to intervene claim and Carlson's inadequate medical care claim do arise under the same Amendment, the Supreme Court has instructed that “is simply not enough to link a new Bivens theory to an existing Bivens context.” In this case, Plaintiff is not alleging inadequate medical care and does not plead any facts suggesting he was given inadequate medical care. Plaintiff is alleging that Defendants knowingly failed to intervene when excessive force was used against him. (Doc. 1, ¶¶ 117-122). These cases allege different forms of misconduct, and different legal standards would apply to each form. As such, this case meaningfully differs from Carlson and is a new Bivens context.
Hill, 561 F.Supp.3d at 488 (M.D. Pa. 2021) (citing Hernandez, 140 S.Ct. at 743 (indicating courts must “look beyond the constitutional provisions invoked.”)).
That the inmate in Carlson and Plaintiff both have asthma is not enough to find this claim shares a context with Carlson.
Landis, 2022 WL 2677472, at *6 (citing Abbasi, 137 S.Ct. at 1860; Mammana, 2020 WL 3469074, at *3, aff'd 856 Fed.Appx. 411.
We also find this case represents a new context from Farmer. Plaintiff's argument regarding Ward and the broadness of the holding in Farmer are also applicable to this claim, as is our analysis of that argument. While Farmer and this case share a common amendment and a failure to protect claim and failure to intervene claim are similar, or perhaps even at base the same, this is not enough for a finding of common context. 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.” That is the case here.
Even keeping the terminology in Plaintiff's Complaint and calling this claim a failure to protect from excessive force claim, we would conduct the same analysis and find that this case represents a new context from Farmer even though both cases share the failure to protect label. We would also conduct the same analysis for Bivens and Carlson and find that this case represents a new context from those cases if the failure to protect terminology was used.
Hernandez, 140 S.Ct. at 743.
The plaintiff in Farmer was a transgender inmate who was placed into general population and then beaten and raped by another inmate. In this case, as relevant to this claim, Plaintiff does not allege that he was injured when he was placed into general population and then beaten by another inmate. Plaintiff alleges four Bivens Defendants did not intervene as he was subjected to excessive force by their coworkers. These factual differences, even if viewed as modest, are enough to make this case meaningfully differ from Farmer. As the Supreme Court has said, “even a modest extension is still an extension.”
Farmer, 511 U.S. 825.
Abbasi, 137 S.Ct. 1865.
For the reasons analyzed above, we find that this case and its Eighth
Amendment failure to intervene claim represents a new Bivens context. We will therefore turn to the second step and determine whether any special factors are present.
Count four Defendants cite to four cases in which other district courts have also found a failure to intervene claim to arise in a new context. (Doc. 16, p. 17-18). “See Bulger v. Hurwitz, 2022 WL 340594, at *5-6 (N.D. W.Va. Jan. 12, 2022) (finding Eighth Amendment failure to protect and failure-to-intervene claims “clearly” arose in new context); Freeman v. Provost, 2021 WL 710376, at *3 (S.D.Miss. Jan. 27, 2021) (concluding that Eighth Amendment claims alleging “failure to intervene against a use of excessive force when [officer] sprayed [plaintiff] with ‘OC'” gas arose in a new context), report and recommendation adopted, 2021 WL 709704 (S.D.Miss. Feb. 23, 2021); Abdo v. Balsick, 2019 WL 6726230, at *6 (D. Colo. Dec. 11, 2019) (finding Eighth Amendment claims alleging, among other things, failure to intervene presented a new context); Belt v. Fed. Bureau of Prisons, 336 F.Supp.3d 428, 440 (D. N.J. 2018) (same).” Id.
ii. Are Special Factors Counseling Hesitation Present?
Again, the same special factors counseling hesitation discussed above in Section IV(C)(ii) apply to Plaintiff's Eighth Amendment failure to intervene Bivens claim. The BOP has an alternative remedy process in the form of its administrative remedy program. The expansion of Bivens to Plaintiff's Eighth Amendment failure to intervene claim would be an intrusion into the domain of the Legislature and Executive who have been entrusted with the task of prison administration. Finally, this Court is unable to tell what effects expanding Bivens to an Eighth Amendment failure to intervene claim would have on the prison system. Anyone of these factors standing alone is enough to require this Court to decline to extend Bivens to this proposed claim.
Turner, 482 U.S. at 85.
Egbert, 142 S.Ct. at 1803-04.
Id. at 1805.
Upon reviewing the special factors present here, we find that the answer to the question of who is better suited to decide whether a damages remedy should exist in this context is Congress. As such, we will decline to extend Bivens to Plaintiff's Eighth Amendment failure to intervene claim. Therefore, it will be recommended that Plaintiff's Eighth Amendment failure to intervene claim be dismissed.
F. Further Arguments
In addition to arguing whether Bivens remedies exist in this case, the parties also raise arguments around Plaintiff's failure to exhaust his claims, whether Plaintiff alleges the personal involvement of Defendant Carvajal, whether Defendants are entitled to qualified immunity, and whether Plaintiff has properly served Defendants. (Docs. 16, 24, 39). Because we find that Plaintiff has failed to state a claim upon which relief can be granted and will recommend his Bivens claims be dismissed, we will decline to address the remaining arguments presented by the parties.
V. FUTILITY OF AMENDMENT
When a complaint is subject to dismissal for failing to state a claim, a court must allow for curative amendment, except where such an amendment would be futile or inequitable. As we find that the extension of Bivens to Plaintiff's claims is inappropriate, we will recommend that leave to amend Plaintiff's Bivens claims be denied as futile.
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
VI. RECOMMENDATION
Accordingly, it is RECOMMENDED that:
(1) Defendant Maiorana be DISMISSED from this case because he retired before these incidents took place and the Clerk of Court be directed to TERMINATE him from this case.
(2) Defendants Kiddish, Bodge, O'Kane, Price, Frisk, Connor, Walker, Simyan, Condella, Maiorana, and Carvajal's Motion to Dismiss and/or For Summary Judgment (Doc. 10) be GRANTED as follows:
a. Plaintiff's First Amendment retaliation claim against Defendants Bodge and O'Kane be DISMISSED.
b. Plaintiff's Eighth Amendment failure to protect claim against Defendants Bodge, and O'Kane be DISMISSED.
c. Plaintiff's Eighth Amendment excessive force claim against Defendants Price, Frisk, and Carvajal be DISMISSED.
d. Plaintiff's Eight Amendment failure to protect from excessive force/failure to intervene claim against Defendants Kiddish, Connor, Walker, Simyan, and Condella be DISMISSED.
(3) The Clerk of Court be directed to TERMINATE Defendants Kiddish, Bodge, O'Kane, Price, Frisk, Connor, Walker, Simyan, Condella, and Carvajal from this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.