BELSKIS v. ORTIZ<font color="red">DO NOT FILE IN THIS CASE</font>

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

___________________________________

JOSEPH EDWARD BOVIN BELSKIS, :

:

Plaintiff, : Civ. No. 21-10322 (RBK) (AMD)

:

v. :

:

DAVID ORTIZ, et al., : OPINION

:

Defendants. :

____________________________________:

ROBERT B. KUGLER, U.S.D.J.

I. INTRODUCTION

Plaintiff, Joseph Edward Bovin Belskis (“Plaintiff” or “Belskis”), is a former federal

prisoner proceeding pro se with a civil complaint pursuant to the Federal Tort Claims Act

(“FTCA”) and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). Defendants David Ortiz, Kimberly Kodger, Carl Sceusa, Tavis Hazqynski,

Kevin Cassano, Nicoletta Turner-Forster, Pradip Patel, Vicente Elias (collectively the

“Individual Moving Defendants”) and the United States (collectively with the Individual Moving

Defendants the “Moving Defendants”) have filed a motion to dismiss the complaint pursuant to

Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Previously, this matter was

administratively terminated as Plaintiff failed to sign his complaint and the motion to dismiss

was administratively terminated. (See Dkt. No. 100). Thereafter, Plaintiff filed a signed copy of

his complaint. (See Dkt. No. 105 at 15-36). Accordingly, Moving Defendants’ motion to dismiss

will be reinstated for analysis. For the following reasons, Moving Defendants’ motion is granted

in part and denied in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was previously incarcerated at F.C.I. Fort Dix in Fort Dix, New Jersey. His

complaint raises claims related to the purported lack or inadequate medical care he received

while imprisoned there from 2018 to 2019. The following nine Defendants remain in the case:

1. United States

2. David Ortiz – Warden of F.C.I. Fort Dix

3. FNY Kodger, M.D. – Associate Warden of F.C.I. Fort Dix

4. Carl Sceusa, M.D. – Medical/Clinical Director

5. FNY Haczynski – Health Services Administrator

6. Kevin Cassano – Assistant Health Services Administrator

7. Nicoletta Turner-Foster, M.D. – Medical Director

8. Pradeep Patel – Physician

9. Vincente Elias, N.P. – Mid-Level Provider1

Plaintiff is a diabetic with a history of lower extremity vascular disease. (See Dkt. No.

105 at 28). He suffers from foot ulcers and has had two toes amputated. (See id.). A physician

prescribed that Plaintiff receive a new pair of special diabetic shoes by July 1, 2018. (See id. at

29). On May 7, 2018, Plaintiff reported to the F.C.I. Fort Dix Health Services Unit. (See id.).

Defendant Sceusa acknowledged that Plaintiff would need a new pair of shoes on July 1, 2018.

(See id.). However, Plaintiff did not receive a new pair of shoes until over one year later in

August, 2019. (See id.). During the period from July, 2018, to August, 2019, Plaintiff

complained to a host of people that he needed new shoes so he could walk without further injury

to his feet. (See id.). Plaintiff explains that “throughout this time” he complained to Defendants

Ortiz, Sceusa, Kodger, Hacynski, Cassano, Turner-Foster, Patel and Elias. (See id.). Plaintiff

states the new diabetic shoes he received on August 7, 2019 were not meant for diabetics who

had toe amputations. Thus, Plaintiff could not walk properly in them. (See id.).

1 The United States District Court for the District of Maine granted Defendant Barry Wisler’s

separate motion to dismiss Plaintiff’s complaint against him prior to transferring this case to this

Court. (See Dkt. No. 84). Thus, Wisler is no longer a part of this action.

On August 12, 2019, Plaintiff returned to the Health Services Unit and complained to

Defendant Haczynski that he could not walk properly in the newly issued shoes. (See id.).

Defendant Haczynski refused to listen to Plaintiff and told him that he would take the newly

issued shoes back and order him regular institution boots if he was not satisfied. (See id.)

Plaintiff complains not only about the delay in receiving his prescribed diabetic shoes by

July 1, 2018, but also that once he received diabetic shoes, they caused him extreme pain. (See

id.). Plaintiff claims he suffered an increased risk of further amputations, extreme pain in his feet

and legs, ankle inversion, bipedal instability and diabetic foot ulcers as a result. (See id. at 5).

On September 9, 2019, the Federal Bureau of Prisons Philadelphia Regional Counsel’s

office received Plaintiff’s administrative tort claim seeking $10,000,000 in damages. (See Dkt.

No. 91-1 at 32). On October 21, 2019, the United States District Court for the District of Maine

received Plaintiff’s complaint in this action. (See Dkt. No. 1). By the time Plaintiff filed his

complaint in federal court, he was now housed at a halfway house in Portland, Maine. (See Dkt.

No. 105 at 16).

Plaintiff sues the United States under the FTCA for medical malpractice and negligence.

He brings Bivens claims against the Individual Moving Defendants for violating his right to be

free from cruel and unusual punishment under the Eighth Amendment. He seeks monetary

damages for his injuries. Plaintiff was released from incarceration on November 25, 2019. (See

Dkt. No. 7). Plaintiff continues to reside in Maine.

On March 6, 2020, the Bureau of Prisons denied Plaintiff’s administrative tort claim. (See

Dkt. No. 91-1 at 39). The denial stated if Plaintiff was still dissatisfied, he could sue the United

States within six months in an appropriate United States District Court. (See id.).

Thereafter, in this federal civil case, the District of Maine rejected Plaintiff’s numerous

attempts to seek the appointment of pro bono counsel throughout 2020 and into early 2021. (See

Dkt. Nos. 4, 19, 30, 34, 37, 63, 76). On November 12, 2020, Moving Defendants filed a motion

to dismiss or in the alternative transfer venue. (See Dkt. No. 59). Plaintiff then sought and

received extensions of time to file a response to Moving Defendants’ motion to dismiss or in the

alternative transfer venue. (See Dkt. No. 60, 66, 69). On February 22, 2021, Plaintiff filed his

response in opposition to the Moving Defendants motion to dismiss or transfer venue. (See Dkt.

No. 74 & 75). Moving Defendants filed their reply in support of their motion on March 5, 2021.

(See Dkt. No. 82). On April 26, 2021, the District of Maine transferred this action to this Court.

(See Dkt. No. 84).

On June 25, 2021, Moving Defendants filed their motion to dismiss in this Court. (See

Dkt. No. 91). The United States seeks dismissal of Plaintiff’s complaint against it pursuant to

Federal Rule of Civil Procedure 12(b)(1) alleging this Court lacks subject matter jurisdiction.

More specifically, the United States argues Plaintiff’s FTCA claim should be dismissed because

Plaintiff did not exhaust his administrative remedies prior to filing an FTCA claim against it in

federal court. The Individual Moving Defendants seek dismissal of Plaintiff’s Bivens claims

against them pursuant to Federal Rule of Civil Procedure 12(b)(6) arguing Plaintiff has failed to

state an Eighth Amendment claim against them.

At the time Moving Defendants filed their motion to dismiss, the operative complaint in

this action was the complaint Plaintiff filed in the District of Maine. (See Dkt. No. 1). However,

Plaintiff failed to sign that complaint. Thus, on February 1, 2022, this Court gave Plaintiff

twenty-one (21) days in which to file a signed copy of his complaint. (See Dkt. No. 98). Having

failed to submit a signed complaint within the time allotted, this Court then struck Plaintiff’s

complaint for failure to include a signature under Federal Rule of Civil Procedure 11(a). (See

Dkt. No. 100). Thereafter, Plaintiff was given additional time in which to file a signed complaint.

(See Dkt. No. 102). Plaintiff then filed a signed copy of his original complaint. (See Dkt. No. 105

at 15-36). Accordingly, the Clerk shall be ordered to file this signed complaint as the operative

pleading in this matter.2 Furthermore, now that Plaintiff has submitted a signed complaint,

Moving Defendants’ motion to dismiss the complaint (see Dkt. No. 91) is also reinstated for

analysis.

III. LEGAL STANDARDS

A. Rule 12(b)(1) Standard

A defendant may move to dismiss a complaint for lack of subject-matter jurisdiction

under Federal Rule of Civil Procedure 12(b)(1) by challenging jurisdiction facially or factually.

See Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014). A facial

challenge to subject-matter jurisdiction “considers a claim on its face and asserts that it is

insufficient to invoke the subject-matter jurisdiction of the court because, for example, it does

not present a question of federal law[.]” Id. at 358. In contrast, a factual challenge “is an

argument that there is no subject matter jurisdiction because the facts of the case . . . do not

support the asserted jurisdiction.” Id. Drawing this distinction is important because it

“determines how the pleading must be reviewed.” Id. at 357–58 (citing In re Schering Plough

Corp. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In analyzing a facial challenge, “the court must

only consider the allegations of the complaint and documents referenced therein and attached

thereto[.]” Constitution Party of Pennsylvania, 757 F.3d at 358 (citing In re Schering Plough

2 Plaintiff also submitted a prior habeas petition he filed that this Court denied in Civ. No. 19-

8669. (See Dkt. No. 105 at 3-14). Accordingly, that portion of Plaintiff’s recent submission will

not be considered as part of his operative complaint in this civil rights action.

Corp. Intron, 678 F.3d at 243). Whereas in considering a factual challenge to subject-matter

jurisdiction, the court “may look beyond the pleadings to ascertain the facts.” Id. Furthermore, in

considering a factual challenge to subject matter jurisdiction, “the plaintiff's allegations enjoy no

presumption of truthfulness, and [the plaintiff] bears the burden of establishing jurisdiction.”

Meehan v. Taylor, No. 12–4079, 2013 WL 4517943, at *2 (D.N.J. Aug. 26, 2013) (citing CNA v.

United States, 535 F.3d 132, 139 (3d Cir. 2008); Mortensen v. First Fed. Sav. Loan Ass'n., 549

F.2d 884, 891 (3d Cir. 1977)). A motion to dismiss for failure to exhaust administrative

remedies, like the one raised in this case by the United States, is considered a factual challenge.

See, e.g., Diaz v. United States, No. 20-6305, 2021 WL 3022452, at *2 (E.D. Pa. July 16, 2021)

(citing Medina v. City of Phila., No. 04-5698, 2005 WL 1124178, at *2 (E.D. Pa. May 9, 2005)).

B. Rule 12(b)(6) Standard

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to

state a claim upon which relief can be granted. When evaluating a motion to dismiss under Rule

12(b)(6), “courts accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a

complaint survives a motion to dismiss if it contains sufficient factual matter, accepted as true, to

“state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“A claim has facial plausibility when the pleaded factual content allows the court to draw

the reasonable inference that the defendant is liable for misconduct alleged.” Iqbal, 556 U.S. at

678. This “plausibility standard” requires that the complaint allege “more than a sheer possibility

that a defendant has acted unlawfully,” but it “is ‘not akin to a probability requirement.’” Id.

(quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not required, but “more

than an unadorned, the defendant-harmed-me accusation” must be pleaded; it must include

“factual enhancements” and not just conclusory statements or a recitation of the elements of a

cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] ... a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. “[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

‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

However, courts are “not compelled to accept ‘unsupported conclusions and unwarranted

inferences,’” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (quoting Schuylkill Energy

Res. Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir. 1997)), nor “a legal conclusion

couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

A court conducts a three-part analysis in analyzing a motion to dismiss pursuant to Rule

12(b)(6). See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court

must “tak[e] note of the elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556

U.S. at 675). Second, the court should identify allegations that, “because they are no more than

conclusions, are not entitled to the assumption of truth.” Id. at 131 (quoting Iqbal, 556 U.S. at

680). Finally, “where there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. ‘

In this case, Plaintiff’s complaint is liberally construed by this Court he is proceeding pro

se. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).

IV. DISCUSSION

A. FTCA Claim

The United States asserts Plaintiff’s FTCA claim must be dismissed because Plaintiff

failed to exhaust his administrative remedies. “The FTCA operates as a limited waiver of the

United States’ sovereign immunity.” White–Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d

Cir. 2010) (citation omitted). Under the FTCA, the United States is liable “in the same manner

and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. An

incarcerated FTCA plaintiff may sue only the United States, may seek only monetary damages,

and may not recover for mental or emotional damages in the absence of physical injury. See 28

U.S.C. § 1346(b)(1)–(2) (providing jurisdiction for “civil actions on claims against the United

States, for money damages” and providing that incarcerated felons may not bring actions “for

mental or emotional injury suffered while in custody without a prior showing of physical

injury.”); CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008) (“The Government is the

only proper defendant in a case brought under the FTCA.”).

A plaintiff suing under the FTCA must present the offending agency with notice of the

claim, including a “sum certain” demand for monetary damages. See White–Squire, 592 F.3d at

457. “Because the requirements of presentation and a demand for a sum certain are among the

terms defining the United States’s consent to be sued, they are jurisdictional.” Id. (citing United

States v. Sherwood, 312 U.S. 584, 587 (1941)). These requirements cannot be waived. See id.

(citing Bialowas v. United States, 443 F.2d 1047, 1049 (3d Cir. 1971)).

Under the FTCA:

A tort claim against the United States shall be forever barred

unless it is presented in writing to the appropriate Federal agency

within two years after such claim accrues or unless action is begun

within six months after the date of mailing, by certified or

registered mail, of notice of final denial of the claim by the agency

to which it was presented.

28 U.S.C. § 2401(b). A plaintiff must satisfy both provisions of § 2401(b) for an FTCA

complaint to be timely. See Seiss v. United States, 792 F. Supp. 2d 729, 732 (D.N.J. 2011)

(collecting cases and finding that both provisions of § 2401(b) must be satisfied for an FTCA

complaint to be timely); see also Martinez v. United States Postal Service, No. 15–8545, 2016

WL 6892074, at *3 (D.N.J. Nov. 22, 2016). Additionally, the FTCA provides that:

[a]n action shall not be instituted upon a claim against the United

States for money damages for injury or loss of property or personal

injury or death caused by the negligent or wrongful act or omission

of any employee of the Government while acting within the scope

of his office or employment, unless the claimant shall have first

presented the claim to the appropriate Federal agency and his claim

shall have been finally denied by the agency in writing and sent by

certified or registered mail. The failure of an agency to make final

disposition of a claim within six months after it is filed shall, at the

option of the claimant any time thereafter, be deemed a final denial

of the claim for purposes of this section.

28 U.S.C. § 2675(a).

The United States argues Plaintiff failed to exhaust his administrative remedies because

he filed this action in the District of Maine in October, 2019, only one month after he filed his

administrative tort claim with the Bureau of Prisons in September, 2019, well prior to the Bureau

of Prisons’ March 6, 2020 denial. According to the United States, the fact that the Bureau of

Prisons subsequently denied Plaintiff’s administrative tort claim in March, 2020, while this

action was pending, does not change the outcome that Plaintiff needed to file suit within six

months after the Bureau of Prisons arrived at its denial decision. This Court agrees. See Smith v.

Riley, No. 14-7247, 2015 WL 4615913, at *5 (D.N.J. July 31, 2015) (citing Wadhwa v.

Nicholson, 367 F. App’x 322, 324 (3d Cir. 2010)) (dismissing claims against the United States

because plaintiff failed to satisfy strict requirement that he exhaust before instituting a civil

action against the United States); see also Turulski v. Dep’t of Veteran’s Affairs, No. 18-779,

2019 WL 130352, at *2 (D. Del. Jan. 8, 2019) (citing McNeil v. United States, 508 U.S. 106, 107

(1993); Priovolos v. Federal Bureau of Investigation, 686 F. App’x 150, 152 (3d Cir. 2017) (“If

a plaintiff files an FTCA suit before exhausting his administrative claim, the case must be

dismissed, even if the plaintiff exhausts before substantial progress is made in the litigation.”).

Plaintiff asserts though that equitable tolling should save his FTCA claim from dismissal.

This Court disagrees. Initially, Plaintiff invokes equitable tolling for filing his action too early,

not too late. As a panel of the Third Circuit has noted though, “equitable tolling is a doctrine that

traditionally applies when a plaintiff files his claim too late, not too early” as Plaintiff did in this

case. See Walker v. United States, 616 F. App’x 497, 500 (3d Cir. 2015) (citing Santos ex. rel.

Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009)); see also Hinton v. United States, 660

F. Supp. 2d 22, 27 (D.D.C. 2009) (“Plaintiff’s arguments regarding equitable tolling are

irrelevant. The United States does not move to dismiss Plaintiff’s FTCA claim because it was

filed too late, but because it was filed too early.”). Here, Plaintiff is not entitled to equitable

tolling as his complaint was filed too early rather than too late.

Furthermore, even if equitable tolling is somehow cognizable in this case, Plaintiff has

failed to establish that he is entitled to it. In Walker, the District of Delaware noted the type of

equitable tolling Plaintiff seeks here, namely where a plaintiff files an FTCA suit too early before

exhausting his administrative remedies. That Court explained such a request for tolling should be

considered as seeking to toll § 2401(b)’s six months limitations period. See Walker v. United

States, No. 11-866, 2013 WL 5890270, at *7 (D. Del. Oct. 31, 2013) (citing Estate of George v.

Veteran's Admin. Med. Ctr., 821 F.Supp.2d 573, 580–81 (W.D.N.Y.2011); Mar v. United States,

No. 08–0644, 2009 WL 737040, at *1–4 (E.D. Cal. Mar. 19, 2009)), report and recommendation

adopted by, 2014 WL 2917084 (D. Del. June 25, 2014), aff’d by, 616 F. App’x 497. In the

context of equitable tolling and the FTCA though, the Third Circuit has explained as follows:

[e]quitable tolling, if available, can rescue a claim otherwise barred

as untimely by a statute of limitations when a plaintiff has “been

prevented from filing in a timely manner due to sufficiently

inequitable circumstances.” Seitzinger v. Reading Hosp. & Med.

Ctr., 165 F.3d 236, 240 (3d Cir.1999). “This occurs (1) where the

defendant has actively misled the plaintiff respecting the plaintiff's

cause of action; (2) where the plaintiff in some extraordinary way

has been prevented from asserting his or her rights; or (3) where

the plaintiff has timely asserted his or her rights mistakenly in the

wrong forum.” Hedges [v. United States], 404 F.3d [744] at 751

[(3d Cir. 2005)] (internal citations omitted); School Dist. v.

Marshall, 657 F.2d 16, 19–20 (3d Cir.1981) (internal citations

omitted).

But a plaintiff will not receive the benefit of equitable tolling

unless she exercised due diligence in pursuing and preserving her

claim. Irwin [v. Dep’t of Veterans Affairs], 498 U.S. [89] at 96, 111

S. Ct. [453] at 457–58 [(1990)]. The principles of equitable tolling

thus do not extend to “garden-variety claims of excusable neglect.”

Id. at 96, 111 S. Ct. at 458. The remedy of equitable tolling is

extraordinary, and we extend it “only sparingly.” Id. at 96, 111 S.

Ct. at 457; Hedges, 404 F.3d at 751. It is especially appropriate to

be restrictive with respect to extension of equitable tolling in cases

involving the waiver of the sovereign immunity of the United

States. The Supreme Court made that point clear when it indicated

that inasmuch as the FTCA “waives the immunity of the United

States, ... in construing the [FTCA's] statute of limitations, which is

a condition of that waiver, we should not take it upon ourselves to

extend the waiver beyond that which Congress intended,” and the

Court should not “assume the authority to narrow the waiver that

Congress intended.” [United States v.] Kubrick, 444 U.S. [111] at

117–19, 100 S. Ct. [352] at 357 [(1979)].

Santos ex rel. Beato, 559 F.3d at 197-98.

Plaintiff does not show that Defendants actively misled him regarding his cause of action.

Indeed, the Bureau of Prisons’ March 6, 2020 denial of Plaintiff’s administrative tort claim

expressly told Plaintiff he had six months to bring suit if he was unsatisfied with its denial of his

administrative tort claim. (See 91-1 at 39). Nor does Plaintiff adequately show that he timely

asserted his right, but in the wrong forum. As described above, Plaintiff’s complaint in this

action was premature, and therefore not timely. Once Plaintiff received the March 6, 2020 notice

from the Bureau of Prisons, Plaintiff had several months in which he could have refiled his

FTCA action as well as his Bivens claims in a new action. By that point, his FTCA claim was

properly administratively exhausted and his Bivens claims would have presumably still been

timely as well.3

Next, Plaintiff alludes to the COVID-19 pandemic as an extraordinary circumstance that

prevented him from properly filing his FTCA claim against the United States in federal court.

First, this Court notes that Plaintiff was no longer incarcerated when the Bureau of Prisons issued

its denial of his administrative tort claim. Thus, there is no, nor can there be any allegation that

Plaintiff’s incarceration and any related COVID-19 procedures an institution may have taken to

lessen the spread of the disease impacted him. Furthermore, Plaintiff made several filings in this

case between March 6, 2020 and July 1, 2020 (when presumably the statute of limitations on his

Bivens claims may have expired at the earliest, see supra note 2). Thus, given that Plaintiff

clearly showed the ability to file documents, this Court finds that the COVID-19 pandemic does

not constitute an extraordinary circumstance which prevented Plaintiff from properly filing an

FTCA suit after his administrative tort claim was administratively exhausted on March 6, 2020.

3 The statute of limitations for Bivens claims is taken from the forum state's personal injury

statute. See Hughes v. Knieblher, 341 F. App'x 749, 752 (3d Cir. 2009). New Jersey's statute of

limitations for personal injury causes of action is two years. See N.J. Stat. Ann. § 2A:14-2,

Plaintiff's two-year statute of limitations for filing a civil action asserting these claims under

Bivens presumably then may have expired — at the earliest on July 1, 2020, or two years after

the delay to Plaintiff receiving new diabetic shoes began. See Hughes, 341 F. App'x at 752 (a

Bivens claim accrues when the plaintiff knows, or has reason to know, of the injury that forms

the basis of the action).

Finally, Plaintiff complains about the length of time it took the District of Maine to rule

on Moving Defendants’ motion to dismiss/transfer venue. However, that motion was not even

filed by the Moving Defendants until November 21, 2020, more than two months after Plaintiff’s

six-month period in which to file his FTCA claim in federal court expired on September 6, 2020.

This Court fails to see how Plaintiff was prevented in an extraordinary way from properly and

timely pursuing his FTCA claim. The fact that Plaintiff may have been unknowledgeable about

the applicable limitations period and the law accompanying it does not constitute an

extraordinary circumstance to warrant equitable tolling. C.f., Ross v. Varano, 712 F.3d 784, 799-

800 (3d Cir. 2013) (noting in habeas context that lack of legal knowledge or training alone does

not justify equitable tolling). However, as previously noted, going even one step further, in this

case, Plaintiff was not even unknowledgeable about the applicable filing period given that the

Bureau of Prisons on March 6, 2020 expressly told him when he needed to file. Plaintiff could

have refiled both his FTCA claim and his Bivens claims after March 6, 2020 and before July 1,

2020 to make them timely.

Accordingly, for the foregoing reasons, the United States’ motion to dismiss the FTCA

claim against it is granted.

B. Bivens Claims

Plaintiff also brings claims against the Individual Moving Defendants pursuant to Bivens.

The Supreme Court has recognized, in limited situations, a private cause of action against federal

officials. See Bivens, 403 U.S. at 389. “A Bivens action, which is the federal equivalent of the §

1983 cause of action against state actors, will lie where the defendant has violated the plaintiff's

rights under color of federal law.” Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir.

2001); see also Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018) (stating “Bivens is the short-hand

name given to causes of action against federal officials for alleged constitutional violations.”).

“In order to state a claim under Bivens, a claimant must show: (1) a deprivation of a right secured

by the Constitution and laws of the United States; and (2) that the deprivation of the right was

caused by an official acting under color of federal law.” Doty v. United States, Civ. No. 15-3016,

2016 WL 3398579, at *6 (D. N.J. June 15, 2016) (citations omitted).

Bivens permits 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, 1854 (2017). The Supreme Court has extended Bivens to only a few other limited

constitutional violations. See id. For example, in Davis v. Passman, 442 U.S. 228 (1979), the

Supreme Court held that the Fifth Amendment Due Process Clause gave an administrative

assistant a damages remedy against a Congressman for firing her due to gender. See Ziglar, 137

S. Ct. at 1854. In Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court held the Eighth

Amendment gave a prisoner's estate a damages remedy against prison officials for failing to

provide adequate medical treatment. See Ziglar, 137 S. Ct. at 1855; see also Dongarra v. Smith,

27 F.4th 174, 180 (3d Cir. 2022) (noting the Supreme Court has only recognized implied causes

of action in Bivens, Davis and Carlson). Plaintiff’s Bivens claims against the Individual Moving

Defendants fall within its purview since Plaintiff seeks relief against them for their purported

deliberate indifference to his serious medical needs.

For the delay or denial of medical care to rise to a violation of the

Eighth Amendment’s prohibition against cruel and unusual

punishment, a prisoner must demonstrate “(1) that defendants were

deliberately indifferent to [his] medical needs and (2) that those

needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.

1999). Deliberate indifference requires proof that the official

“knows of and disregards an excessive risk to inmate health or

safety.” Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582

(3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837,

114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). We have found

deliberate indifference where a prison official: “(1) knows of a

prisoner’s need for medical treatment but intentionally refuses to

provide it; (2) delays necessary medical treatment based on a

nonmedical reason; or (3) prevents a prisoner from receiving

needed or recommended treatment.” Rouse, 182 F.3d at 197.

Deference is given to prison medical authorities in the diagnosis

and treatment of patients, and courts “disavow any attempt to

second-guess the propriety or adequacy of a particular course of

treatment ... (which) remains a question of sound professional

judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d

754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44,

48 (4th Cir. 1977)). Allegations of negligent treatment or medical

malpractice do not trigger constitutional protections. Estelle v.

Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285, 50 L.Ed.2d 251

(1976).

Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir. 2013). Deliberate indifference can also be found

“where the prison official persists in a course of treatment in the face of resultant pain and risk of

permanent injury.” See McCluskey v. Vincent, 505 F. App'x 199, 202 (3d Cir. 2012) (internal

quotation marks and citation omitted). “A medical need is serious if it ‘has been diagnosed by a

physician as requiring treatment,’ or if it ‘is so obvious that a lay person would easily recognize

the necessity for a doctor’s attention.’” See Mitchell v. Beard, 492 F. App'x 230, 236 (3d Cir.

2012) (quoting Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d Cir. 2003) (quoting Monmouth

Cnty. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987))).

The Individual Moving Defendants rely on qualified immunity to support their dismissal

motion. Qualified immunity protects officials who violate a plaintiff's federally protected right,

so long as the right was not clearly established by law. See Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982). Whether government officials can assert qualified immunity is resolved by a two-

part test: (1) whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right and, if so; (2) whether the right at issue was “clearly established” at the time

of the defendant's alleged misconduct. See Saucier v. Katz, 533 U.S. 194, 201 (2001); Walker v.

Coffey, 905 F.3d 138, 144 (3d Cir. 2018) (footnotes omitted).

“[T]he clearly established right must be defined with specificity.” City of Escondido v.

Emmons, 139 S. Ct. 500, 503 (2019). Thus, “[a] clearly established right is one that is

‘sufficiently clear that every reasonable official would have understood that what he is doing

violates that right.’” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards,

566 U.S. 658 (2012)). Qualified immunity is designed to allow government officials to make

reasonable judgments, even if they are mistaken, about open legal questions. It is intended to

protect “all but the plainly incompetent or those who knowingly violate the law.” Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

Qualified immunity has been defined as a “fair warning” standard by the Supreme Court,

meaning that if the federal right is clearly established, the official is sufficiently on notice and

may be held monetarily liable. See Hope v. Pelzer, 536 U.S. 730, 741 (2002). Qualified

immunity “will attach if the official can demonstrate his conduct was ‘objectively reasonable.’”

Davis v. Malitzki, 451 F. App'x 228, 232 (3d Cir. 2011).

A right is clearly established when precedent exists that is like the case at hand, although

the facts of the precedent do not need to be “materially similar.” See Anderson v. Creighton, 483

U.S. 635, 640 (1987); Hope, 536 U.S. at 739, While there is no need for a “case directly on point

. . . existing precedent must have placed the statutory or constitutional question beyond debate,”

and the “violative nature of particular conduct” must not be defined at a “high level of

generality.” See Ashcroft v. Al-Kidd, 563 U.S. 731, 741-42 (2011). To determine whether a right

is clearly established, “we look first for ‘applicable Supreme Court precedent.’ If none exists, we

consider whether there is a case of controlling authority in our jurisdiction or a ‘robust consensus

of cases of persuasive authority in the Courts of Appeals that could clearly establish a right for

purposes of qualified immunity.’” Barna v. Bd. of Sch. Dirs. of the Panther Valley Sch. Dist.,

877 F.3d 136, 142 (3d Cir. 2017) (citing Mammaro v. N.J. Div. of Child Prot. & Permanency,

814 F.3d 164, 169 (3d Cir. 2016)).

The Individual Moving Defendants assert Plaintiff failed to allege an objectively

sufficiently serious deprivation and/or failed to allege they were deliberately indifferent to his

health and safety. According to them, Plaintiff’s complaints about the delay and the difference of

opinion concerning what shoe he should have been issued are insufficient to state a constitutional

claim. For the following reasons, at this pleading stage, this Court disagrees.

Plaintiff names all eight Individual Moving Defendants expressly and states that that he

complained to all of them “throughout this time.” (See Dkt. No. 1 at 15). This Court interprets

this to mean that Plaintiff complained to the Individual Moving Defendants from July 1, 2018,

through the period of his complaints about the fit of his shoes in August, 2019.4 A physician

prescribed that Plaintiff needed new diabetic shoes by July 1, 2018. As the Individual Moving

Defendants themselves recognize in their brief, a delay in medical treatment based on a non-

medical reason or preventing a prisoner from receiving recommended medical treatment can

constitute deliberate indifference. See Rouse, 182 F.3d at 197. Given Plaintiff’s complaints to

them, the Individual Moving Defendants were presumably all on notice about Plaintiff’s lack of

care but did nothing. Accordingly, at this early pleading stage, this Court finds Plaintiff has

sufficiently alleged deliberate indifference against the Individual Moving Defendants.

4 The Individual Moving Defendants assert Plaintiff’s “throughout this time” reference only

refers to the period after he received the purportedly defective shoes. However, this must

liberally construe Plaintiff’s complaint and construes this allegation as including the period

between July 1, 2018 and August 7, 2019 for which Plaintiff complained to the Individual

Moving Defendants.

The Individual Moving Defendants next argue that Plaintiff failed to allege that he

suffered from a sufficiently serious deprivation. In making this argument, the Individual Moving

Defendants cite to and rely on this Court’s decision in Foreman v. Bureau of Prisons, No. 04-

5413, 2005 WL 3500807 (D.N.J. Dec. 20, 2005), aff’d by, C.A. No. 06-1274, 2007 WL 108457

(3d Cir. Jan. 16, 2007). That case though is distinguishable.

First, Foreman involved this Court applying a summary judgment standard, not a motion

to dismiss standard under Rule 12(b)(6). This Court summarized the facts in Foreman as

follows:

In 2002, one of the plaintiff's treating physicians expressed

concern that Foreman's shoes may not have adequately fit him. He

noted the importance for Foreman to have “protective footwear on

him that keeps his foot warm and there is no pressure.” (See Dr.

Silver's Note, attached as Exhibit 9 to Def. Mem.) Furthermore, he

added that it was irrelevant what form the shoe took as long as “it

fits him.” (See Dr. Silver's Note, attached as Exhibit 9 to Def.

Mem.) Thereafter, the defendant was given an authorization form

to receive shoes from an outside source, and he also received

authorization to buy new shoes at the prison commissary. (See

Inmate Request dated Aug. 3, 2000, attached as Exhibit 5 to Def.

Mem.; Inmate Request Form, attached as Exhibit 10 to Def. Mem.)

Although plaintiff did not receive the shoes his mother

subsequently sent him because of an interim change in prison

policy, he did receive (1) a new pair of high top sneakers from the

commissary and (2) a letter from the assistant warden that the

prison would make sure he had medically appropriate footwear.

(See Disposition Letter from J. Henry, dated 3/29/04, attached as

Exhibit D to Pl. Opp.; Email from J. Tilghman, dated 6/29/04,

attached as Exhibit 19 to Def. Mem.) A month after Foreman

received these new shoes from the commissary, he had a doctor's

appointment wherein there was no indication of any problems with

Foreman's feet. (See Record of Medical Care, attached as Exhibit

14 to Def. Mem.) Moreover, throughout the plaintiff's

incarceration at FCI Fairton, the prison staff has been responsive to

plaintiff's podiatric complaints by providing multiple doctor

consultations, medication, and topical treatments. (See Def. Mem.

at 3–5.)

Foreman, 2005 WL 3500807, at *9. With respect to Foreman’s Bivens claim, this Court held as

follows:

Foreman's deliberate indifference claim must fail because (1) the

prisoner cannot make a claim for medical indifference unless the

alleged denial at issue caused harm and (2) a mere disagreement

over the proper treatment does not constitute a constitutional claim.

Monmouth County, 834 F.2d at 346; Davidson v. Scully, 155

F.Supp.2d 77, 84 (S.D.N.Y.2001); Munoz v. Marshall, No. 94–

1839, 1994 WL 508633, at *3 (N.D. Cal. Sept.8, 1994) (citation

omitted). Here, although the plaintiff did not receive the particular

shoes he wanted from his mother, he did receive new shoes from

the commissary, and there is no indication that he has had serious

problems with his feet due to those new shoes. Cf. Saunders v.

Horn, 959 F. Supp. 689, 694 (E.D.Pa.1996) (finding deliberate

indifference where prison staff failed to provide any appropriate

footwear to inmate and instead chose to ignore his podiatric

needs). In addition, just because the plaintiff wants a particular

kind of medical shoe does not mean that the provision of different

shoes constitutes deliberate indifference. Davidson, 155 F. Supp.

2d at 84 (finding no constitutional violation where inmate received

treatment for podiatric problems, but complained that he wanted a

different course of treatment including different orthopedic shoes

than the ones provided by the prison); Munoz, 1994 WL 508633, at

*2 (failure to permit inmates to wear the most comfortable or

desirable apparel does not rise to level of constitutional violation).

Consequently, the plaintiff here does not allege a sustainable

deliberate indifference claim because the defendants were

responsive to plaintiff's foot condition, and plaintiff has not shown

that the footwear provided to him was so deficient as to cause

serious harm.

Foreman, 2005 WL 3500807, at *9.

Plaintiff in this case alleges not only a complaint about the quality of the shoes he

received, but also challenges the delay of over one year whereby he failed to receive physician

prescribed shoes. As previously noted, the delay of necessary medical treatment can constitute

deliberate indifference if it was for non-medical reasons. Discovery is warranted to resolve the

root cause of the delay.

Furthermore, unlike the plaintiff in Foreman, Plaintiff indicates he made complaints

about how his shoes were hurting him after he received them. This Court disagrees with the

Individual Moving Defendants assertion that Plaintiff failed to allege injuries during the delay as

well as after he received the shoes. Indeed, Plaintiff states in the injury section of his complaint

that he suffered from: (1) increased risk of further amputations; (2) extreme pain in feet and legs;

(3) ankle inversion; (4) bipedal instability; and (5) diabetic foot ulcers. (See Dkt. No. 1 at 5). A

liberal reading of the complaint leads this Court to construe Plaintiff’s complaint about these

injuries both during the period from July 1, 2018 up to and including the time he received the

shoes and continued to complain about his new shoes in August, 2019.

This Court also rejects the Individual Moving Defendants argument that Plaintiff failed to

allege the denial of a clearly established federal right. As noted above, delays in necessary

medical treatment based on a nonmedical reason, preventing a prisoner from receiving needed or

recommended treatment and/or persisting in a course of treatment in the face of resultant pain

and risk of permanent injury, are clearly established rights. See McCluskey, 505 F. App'x at 202;

Rouse 182 F.3d at 197. Plaintiff has sufficiently alleged these clearly established rights both with

respect to the delay in receiving shoes and in the Individual Moving Defendants’ course of

continuing with treatment (i.e. the new shoes he did receive) which caused him pain.

Defendants Ortiz and Kodger separately and individually assert the Bivens claims against

them should be dismissed because Plaintiff only brings claims against them as supervisors. It is

true that there is no respondeat superior theory of liability under Bivens. Rather, a defendant

must have personal involvement in the constitutional violation for liability to attach. Iqbal, 556

U.S. at 676. A supervisor, however, may be liable for his own misconduct. See Barkes v. First

Corr. Medical, Inc., 766 F.3d 307, 320 (3d Cir. 2014), reversed on other grounds by, Taylor v.

Barkes, 135 S. Ct. 2042 (2015). Here, as detailed above, Plaintiff alleges he made all of the

Individual Moving Defendants aware of the issues he was having throughout the period from

July, 2018 to August, 2019. Thus, this Court rejects this argument by Defendants Ortiz and

Kodger at this time given Plaintiff’s allegations regarding their personal involvement in the

alleged deprivation of his constitutional rights.

In their reply brief, the Individual Moving Defendants next argue they are entitled to

dismissal of the complaint against them because Plaintiff abandoned his Bivens claims. More

specifically, they assert dismissal is warranted because Plaintiff did not address his Bivens claims

in his response to their motion to dismiss. (See Dkt. No. 95). This Court disagrees. While

Plaintiff incorrectly notes in his response that he is pursuing Section 1983 claims rather than

claims pursuant to Bivens, this Court will not fault Plaintiff for improperly referring to Section

1983, which relates to state actors, as compared to Bivens, which applies to federal actors. The

underlying analysis of the claims remain relatively the same. This abandonment argument by the

Individual Moving Defendants is therefore also rejected.

Accordingly, the Individual Moving Defendants are not entitled to dismissal of the

complaint, which includes rejecting their argument based on qualified immunity. Nevertheless,

the Individual Moving Defendants may seek summary judgment based on qualified immunity

after discovery should the facts ultimately warrant.

V. CONCLUSION

For the following reasons, Moving Defendants’ motion to dismiss is granted in part and

denied in part. Plaintiff’s FTCA claim against the United States is dismissed. The United States

is terminated as a Defendant. The remainder of Moving Defendants’ motion to dismiss is denied.

An appropriate order will be entered.

DATED: April 26, 2022 s/ Robert B. Kugler

ROBERT B. KUGLER

United States District Judge