THIEME v. CARVAJAL

*NOT FOR PUBLICATION ECF NO. 38

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

CHRISTOPHER THIEME, JACOB :

SILVA, SIDDEEQ WILLIAMS, and : CIV. NO. 21-682 (RMB-AMD)

ROBERT SPEED, individually and on :

behalf of all others similarly situated, :

:

Plaintiffs, : OPINION

:

v. :

:

UNITED STATES OF AMERICA, et al., :

:

Defendants :

______________________________

APPEARANCES:

Lawrence S. Lustberg, Esq., Pro Bono Counsel

Gibbons PC

One Gateway Center

Newark, NJ 07102-5310

On behalf of Plaintiffs1

John Francis Basiak, Assistant United States Attorney

U.S. Attorney’s Office

402 E. State Street, Room 430

Trenton, NJ 08608

John T. Stinson, Jr., Assistant United States Attorney

Samantha R. D’Aversa, Assistant United States Attorney

U.S. Attorney’s Office

Mitchell H. Cohen Building & U.S. Courthouse

401 Market Street, 4th Floor

P.O. Box 2098

Camden, NJ 08101-2098

On behalf of Defendants

1 The Court acknowledges the excellent work by counsel in this matter and expresses

appreciation to Pro Bono Counsel on behalf of Plaintiffs.

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon Defendants’ motion to dismiss the

complaint (Docket No. 38; Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-

1), Plaintiff’s brief in opposition to the motion to dismiss (Pl’s Opp. Brief, Docket

No. 42), and Defendants’ reply brief (Defs’ Reply Brief, Docket No. 47). The Court

will decide the motion on the briefs without an oral hearing, pursuant to Federal

Rule of Civil Procedure 78(b). For the reasons discussed below, the Court will grant,

in part, and deny, in part, Defendants’ motion to dismiss.

I. PROCEDURAL HISTORY

This case arises out of the conditions of confinement for federal prisoners in

the Federal Correctional Institution in Fort Dix, New Jersey, the largest federal

prison by population, during the COVID-19 pandemic in the early days before a

vaccine was available, and where social distancing was not possible. On January 13,

2021, Plaintiff Christopher Thieme filed a pro se “Ex Parte Application—Plea for

Emergency Aid on Behalf of All Inmates at FCI Fort Dix.” (Compl., Docket No. 1).

Thieme alleged the Bureau of Prisons (“BOP”) failed to protect himself and similarly

situated inmates from the spread of COVID-19 in the Federal Correctional

Institution in Fort Dix, New Jersey. On May 3, 2021, Thieme, pro se, filed his first

amended complaint. (“FAC,” Docket No. 8.) This Court appointed pro bono

counsel and granted leave to file a second amended complaint. (Orders, Docket Nos.

10, 15.) Plaintiffs Thieme, Jacob Silva, Sideeq Williams and Robert Speed filed a

second amended complaint on February 10, 2022. (“SAC,” Docket No. 16.)

On behalf of a proposed class, Plaintiffs assert three claims for damages and

other relief in the SAC. Count One is brought under Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), and alleges that Defendants violated the Eighth

Amendment by showing deliberate indifference to Plaintiffs’ unconstitutional

conditions of confinement, including their need for medical care. (SAC, Docket No.

16, ¶¶ 224-234.) Counts Two and Three are brought under the Federal Tort Claims

Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and allege that Defendants were

negligent and grossly negligent in failing to implement measures to protect Plaintiffs

from COVID-19. (Id., ¶¶ 235-256.)

II. THE SECOND AMENDED COMPLAINT

Plaintiffs Christopher Thieme, Jacob Silva, Robert Speed, and Siddeeq

Williams (“Plaintiffs”) became infected with COVID-19 while they were incarcerated

in FCI Fort Dix in the Fall of 2020, and they seek to represent a putative class of

similarly situated prisoners. The Defendants are United States of America; Michael

Carvajal, Director of the Federal Bureau of Prisons (“BOP”); Nicole English, BOP

Northeast Regional Director; David Ortiz, former Warden of FCI Fort Dix; Lamine

N’Diaye, former Warden of FCI Fort Dix; and Dr. Kimberly Kodger, Associate

Warden of FCI Fort Dix, whom Plaintiffs allege failed to protect their health from the

spread of COVID-19. Plaintiffs focus their allegations on three specific actions or

inactions that allegedly led to widespread COVID-19 infections in FCI Fort Dix: (1)

four BOP transfers of prisoners with COVID-19 from FCI Elkton to FCI Fort Dix in

September and October 2020 (SAC, Docket No. 16, ¶¶ 96-136); (2) transfer of

prisoners with COVID-19 to the east side of FCI Fort Dix in September and October

2020 (Id. ¶¶ 137-164); and (3) failure to provide adequate medical care to prisoners

who were sick from COVID-19 initially and with lingering symptoms. (Id. ¶¶ 165-191.)

III. DISCUSSION

A. Standard of Law

1. Motion to Dismiss Rule 12(b)(1)

Defendants seek dismissal of the SAC for lack of subject matter jurisdiction. A

party may challenge subject matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1) by means of a facial attack or a factual attack. Davis v. Wells Fargo, 824 F.3d

333, 346 (3d Cir. 2016). In a facial attack, a party may not dispute the facts alleged in

the complaint, and the court must accept the alleged facts as true. Id. Unlike a facial

challenge to jurisdiction, in a factual challenge, a plaintiff’s jurisdictional allegations

are not entitled to a presumption of truth. Id. Additionally, courts may weigh and

consider evidence outside the pleadings. Id. Plaintiffs have the burden of proof to

satisfy the existence of jurisdiction. Id.

“‘[A] district court must take care not to reach the merits of a case when

deciding a Rule 12(b)(1) motion.’” Id. at 348 (quoting CNA v. U.S., 535 F.3d 132, 144

(3d Cir. 2008.) “[W]hen a factual challenge to jurisdiction attacks facts at the core of

the merits of the underlying cause of action,” district courts should find jurisdiction

and address the attack on the merits of the plaintiff’s case. Id. (citing Kulick v. Pocono

Downs Racing Ass'n, Inc., 816 F.2d 895, 898 n.5 (3d Cir. 1987) (3d Cir. 1987) .

2. Motion to Dismiss Rule 12(b)(6)

District courts addressing a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “must ‘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.’” Bruni v. City of

Pittsburgh, 824 F.3d 353, 360 (3d Cir. 2016) (quoting Fowler v. UPMC Shadyside, 578

F.3d 203, 210 (3d Cir. 2009) (internal quotation marks omitted). In determining

whether a plaintiff has failed to state a claim, district courts should disregard

allegations that are no more than legal conclusions. Id. In performing this analysis,

district courts may consider exhibits attached to the complaint, documents upon

which the claims are based, and matters of public record, but may not otherwise go

beyond the facts alleged in the complaint. Id. (citations omitted). In this regard, this

Court declines to consider materials outside of the SAC submitted by Defendants,

insofar as they are offered in support of their Rule 12(b)(6) motion to dismiss. Such

materials may be submitted in a subsequent motion for summary judgment.

B. FTCA Exhaustion

1. Standard of Law

“The Federal Tort Claims Act … provides that an ‘action shall not be instituted

upon a claim against the United States for money damages’ unless the claimant has

first exhausted his administrative remedies.” McNeil v. United States, 508 U.S. 106, 107

(1993) (quoting 28 U.S.C. § 2675(a)). Specifically, a plaintiff may only seek relief under

the FTCA in federal court if, after six months from the date of presentment, the

appropriate federal agency has rejected the plaintiff’s administrative tort claim or failed

to “make a final disposition of the claim.” § 2675(a). The FTCA exhaustion

requirement “is jurisdictional and cannot be waived.” Roma v. United States, 344 F.3d

352, 362 (3d Cir. 2003).

2. The Parties’ Arguments

Defendants contend that this Court should dismiss Plaintiff Thieme’s and

Plaintiff Speed’s FTCA claims under Rule 12(b)(1) because they failed to exhaust their

administrative remedies under 28 U.S.C. § 2675(a). (Defs’ Brief in Supp. of Mot. to

Dismiss, Docket No. 38-1 at 47-50.) BOP first received an administrative tort claim

from Speed on August 25, 2021. (Declaration of Corrie Dobovich (“Dobovich Decl.”)

¶ 45 and Ex. 13, Docket No. 38-2.) The tort claim was rejected as unsigned. (Id.) Speed

presented a new administrative tort claim to BOP on September 3, 2021. (Dobovich

Decl. ¶ 49 and Ex. 14, Docket No. 38-2.) Pursuant to § 2675(a), BOP had six months

to make a final disposition of Speed’s claim before he could deem his claim denied and

file suit, which would have been March 3, 2021. Speed joined this lawsuit on February

10, 2021 (SAC ¶¶ 212-223, 235-256), before BOP made a final decision on his

administrative tort claim and before expiration of that statutory six month-period.

(Dobovich Decl. ¶ 49, Docket No. 38-2.)

Defendants contend that Thieme, like Speed, failed to exhaust his FTCA claims

before initiating this case in January 2021. Thieme first presented his administrative

tort claim to BOP on December 4, 2020. (Dobovich Decl. ¶ 36 and Ex. 10, Docket

No. 38-2.) Thieme asserted three issues in the administrative tort claim that he now

seeks to litigate before this Court: (1) BOP’s transferring of inmates between

institutions cased a COVID-19 outbreak; (2) BOP’s failure to take preventive

measures, such as testing officers, staff, and outside contractors before they entered the

facility contributed to the COVID-19 outbreak; and (3) BOP’s failure to provide

adequate medical care to inmates who tested positive for COVID-19, and allegedly

falsifying inmates’ medical records. (Dobovich Decl., Ex. 10, Docket No. 38-2.) On

January 13, 2021, before the statutory six-month period expired, Thieme initiated this

case, complaining of the same alleged harms as those raised in his administrative tort

claim. (Compl., Docket No. 1.) Thieme also filed the First Amended Complaint

(“FAC”) before expiration of the six-month period. (FAC, Docket No. 8.) Defendants

assert that the FAC contained the same allegations Thieme included in his

administrative tort claim and his original pleading. (Id.)

On February 10, 2022, when Thieme filed the SAC with three additional

plaintiffs, they were represented by pro bono counsel. (SAC, Docket No. 16.) As in

Thieme’s prior pleadings and his administrative tort claim, Plaintiffs alleged

Defendants failed: (1) to provide adequate protections against the spread of COVID-

19; (2) to implement preventative measures, such as halting transfers (like those from

FCI Elkton), reducing prison population, and cancelling work details; and (3) to

provide adequate medical services to prisoners during the pandemic. (SAC ¶¶ 201-223,

Docket No. 16.)

Plaintiffs oppose dismissal for failure to exhaust FTCA administrative

remedies. (Pl’s Opp. Brief, Docket No. 42 at 49-52.) Plaintiffs note there is no dispute

that Silva and Williams complied with the exhaustion requirement in § 2675(a). They

concede that Speed joined in the SAC before the six-month FTCA exhaustion period

came to a close; although, now his claims are exhausted. Concerning Thieme, he first

raised an FTCA claim in the SAC on February 10, 2022, 14 months after the

administrative tort claim was received, and well beyond the six-month exhaustion

requirement. (SAC, Docket No. 16). Thieme did not raise an FTCA claim in his

original or his amended complaint. (Compl., FAC, Docket Nos. 1, 8.) This is

significant, Plaintiffs contend, because § 2675(a)’s “jurisdictional limit is specific to

actions that raise claims for tort damages.” (Pl’s Opp. Brief, Docket No. 42 at 50,

quoting Malouf v. Turner, 814 F. Supp. 2d at 461.) Plaintiffs note the SAC was the first

time that Thieme named the United States as a defendant—a requirement for an

FTCA claim.

Based on Plaintiffs’ concession that Speed brought an FTCA claim before

exhausting administrative remedies under the FTCA, in their reply brief, Defendants

seek dismissal of his FTCA claims. (Defs’ Reply Brief, Docket No. 47 at 14-17.)

Concerning Thieme, Defendants argue that because he alleged a cognizable medical

negligence claim in his original and amended complaint prior to exhausting his

administrative remedies under the FTCA, that his FTCA claims should be dismissed.

Defendants’ rely on Malouf, 814 F. Supp. 2d at 461, where the district court liberally

construed a pro se complaint as containing an FTCA claim based on the allegation of

medical negligence. (Id. at 14-15.)

3. Analysis

Title 28 “‘Section 1346(b) grants the federal district courts jurisdiction over a

certain category of claims for which the United States has waived its sovereign

immunity and ‘render[ed]’ itself liable.’” F.D.I.C. v. Meyer [“FDIC”], 510 U.S. 471,

477 (1994) (quoting Richards v. United States, 369 U.S. 1, 6 (1962) (alteration in FDIC)).

A plaintiff alleges a cognizable claim under the FTCA if the claim is brought:

[1] against the United States, [2] for money damages, ... [3]

for injury or loss of property, ... [4] caused by the negligent

or wrongful act or omission of any employee of the

Government [5] while acting within the scope of his office

or employment, [6] under circumstances where the United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred.

Deutsch v. United States, 67 F.3d 1080, 1091 (3d Cir. 1995) (quoting 28 U.S.C. § 1346(b)

and citing FDIC, 114 S.Ct., at 1001)). Naming the United States as a defendant is an

element of a claim under § 1346(b). FDIC, 114 S.Ct., at 1001 (“a claim is actionable

under § 1346(b) if it alleges the six elements outlined above.”) Thieme did not allege a

claim against the United States in his original or amended complaint. Therefore, he

did not raise a cognizable FTCA claim by alleging medical negligence against an

individual defendant. See, Murchison v. Warden Lewisburg USP, 566 F. App'x 147, 150

(3d Cir. 2014) (quoting Mars v. Hanberry, 752 F.2d 254, 255 (6th Cir. 1985) (“[T]he

FTCA does not grant federal courts jurisdiction over actions against individual

defendants such as federal employees.”); Brownback v. King, 141 S.Ct. 740, 746 (2021)

(the FTCA “opened a new path to relief (suits against the United States) while

narrowing the earlier one (suits against employees).” 2 By the time Thieme added an

FTCA claim against the United States in the SAC on February 10, 2022, he had

exhausted his administrative remedies under § 2675(a) because BOP denied his

administrative tort claim on September 28, 2021. (Dobovich Decl., Ex. 10, Docket

No. 38-2.) Therefore, Thieme’s FTCA claims are exhausted. The Court will grant

Defendants’ motion to dismiss Speed’s FTCA claims for failing to exhaust

administrative remedies and deny the motion to dismiss Thieme’s FTCA claims for

nonexhaustion.

C. FTCA Discretionary Function Exception

1. Standard of Law

Under the discretionary function exception, the FTCA’s limited waiver of

liability for tort damages against the Government:

shall not apply to—(a) Any claim based upon an act or

omission of an employee of the Government, exercising due

care, in the execution of a statute or regulation, whether or

not such statute or regulation be valid, or based upon the

exercise or performance or the failure to exercise or perform

a discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not

the discretion involved be abused.

28 U.S.C. § 2680(a). This provision “marks the boundary between Congress’s

willingness to impose tort liability upon the United States and its desire to protect

certain governmental activities from exposure to suit by private individuals.” United

2 Malouf, 814 F. Supp. 2d 454 (D.N.J. 2011), cited by Defendants, is not precedential, nor

does it discuss whether the plaintiff named the United States as a defendant to his

negligence claims before exhausting administrative remedies under the FTCA.

States v. S.A. Empresa de Viacao Aereo Rio Gradense (Varig Airlines), 467 U.S. 797, 808

(1984). Furthermore, Congress sought to “prevent judicial second-guessing of

legislative and administrative decisions grounded in social, economic, and political

policy through the medium of an action in tort[.]” United States v. Gaubert, 499 U.S.

315, 323 (1991) (internal quotation omitted).

Courts employ a two-part test to determine whether challenged conduct falls

within this exception. “First, a court must determine whether the act involves an

‘element of judgment or choice.’” Mitchell v. United States, 225 F.3d 361, 363 (3d Cir.

2000) (quoting Gaubert, 499 U.S. at 322). Second, if the challenged conduct does

involve judgment or choice, a court must determine “‘whether that judgment is of the

kind that the discretionary function exception was designed to shield.’” Id. at 363-64

(quoting Gaubert, 499 U.S. at 322) (quoting United States v. Varig Airlines, 467 U.S. 797,

813 (1984)). Defendants bear the burden of establishing the applicability of the

discretionary function exception. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,

333 (3d Cir. 2012) (citation omitted).

2. The Parties’ Arguments

Defendants contend Plaintiffs’ FTCA claims are barred by the discretionary

function exception because both elements of the discretionary function exception are

applicable here. (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 38-44.)

In satisfaction of the first element, Defendants assert their decisions regarding

pandemic management involved an element of judgment or choice. In satisfaction of

the second element, Defendants claim their pandemic management decisions are the

types of judgment that the discretionary function was designed to shield. Defendants

rely on precedent that BOP is “accorded wide ranging deference in the adoption and

execution of policies and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional security.” (Defs’ Brief in

Supp. of Mot. to Dismiss, Docket No. 38-1 at 40, citing Whitley v. Albers, 475 U.S. 312,

321, 322 (1986)). Defendants contend this “wide ranging” discretion applies to FTCA

claims concerning BOP’s implementation of COVID-19 protocols. (Id. at 40-41, citing

Swinton v. United States, Civ. No. 21-11, 2022 U.S. Dist. LEXIS 60084, at *17-18 (W.D.

Pa. Mar. 31, 2022) (R.& R.); Sanford v. United States, Civ. No. 21-2552-RMG, 2022

WL 1210717, at *3 (D.S.C. Apr. 25, 2022); Santiago v. United States, Civ. No. 21-00436,

2022 WL 790805, at *2-3 (W.D. Va. Mar. 14, 2022). Defendants maintain that there

was no blueprint for how to use BOP’s limited resources to address the pandemic while

at the same time balancing inmate welfare and public safety.

Defendants also address Plaintiffs’ allegation of negligence in BOP’s use of

home confinement under the CARES Act. The discretionary function exception

applies to BOP’s decisions to release an individual to home confinement because

exercise of BOP’s discretion involves individualized review and a multi-factor

consideration. (Id. at 43-44, citing 18 U.S.C. § 3624(c)(2); Sanford, 2022 WL 1210717,

at *3 (discretionary function exception applied to FTCA claims because “[l]egislation

concerning an inmate’s” placement in “home confinement” leaves “that decision to

the BOP’s discretion”). Similarly, Defendants maintain their decision to seek

compassionate release for inmates under 18 U.S.C. § 3582(c)(1) is discretionary and

“judicially unreviewable.” (Id. at 44, citing Crowe v. United States, 430 F. App’x 484,

485 (6th Cir. 2011) (collecting cases). Thus, any FTCA claim based on home

confinement or compassionate release is not cognizable.

Plaintiffs’ oppose dismissal under the FTCA’s discretionary function exception.

(Pl’s Opp. Brief, Docket No. 42 at 30-43.) They argue that if a federal actor’s conduct

is mandatory, the discretionary function exception does not apply. (Id. at 31, quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988); (citation omitted)). Under Third

Circuit law, the exception does not apply if the act “violates the Constitution, a statute,

or an applicable regulation,” (Id. at 31-32, quoting U.S. Fid. & Guar. Co., 837 F.2d at

120), because “the employee has no rightful option but to adhere to the directive,” (id.

quoting Berkovitz, 486 U.S. at 536.) Once a policy is promulgated to require employees

to take certain acts, it must be implemented in a reasonable manner; thus, officers

cannot ignore a policy’s mandate or implement it negligently. (Id. at 32, citing Fisher

Bros. Sales v. United States, 46 F.3d 279, 288 (3d Cir. 1995)).

Plaintiffs point to allegations in the SAC, including: “Defendants were

responsible for implementation of BOP policies” (SAC, ¶¶ 14-19); “Defendants did

not learn from the initial COVID-19 outbreak. Rather, they continued to ignore the

relevant guidance and disregard pertinent policies with impunity[.]” (SAC, ¶ 96.)

Plaintiffs submit that the most relevant policy is BOP’s Coronavirus (COVID-19)

Phase Nine Action Plan (Pl’s Exhibit One, Docket No. 42-1.) Plaintiffs contend this

was a mandatory policy which required Defendants to:

• Test staff before entering the facility, SAC ¶¶ 80, 87, 100, 122;

• Test incarcerated individuals exposed to COVID-19 or showing symptoms of

the virus, Id. ¶¶ 80, 88-89, 93, 99, 106, 135, 145, 158, 163, 186-187, 229;

• Provide enough masks to staff and incarcerated persons and require their use,

Id. ¶¶ 50-51, 70, 80, 82, 86, 188;

• Quarantine infected staff and incarcerated individuals, including transferees

from other BOP facilities, Id. ¶¶ 4, 53, 68-69, 80, 91, 93, 99, 116-117, 138, 148,

159-160, 190, 250; and

• Clean the facility, Id. ¶¶ 85, 114, 118, 123, 163, 188, 190.

Plaintiffs concede that Defendants have discretion to create their own policies,

but they assert Defendants are mandated to implement those policies and procedures

once adopted. (Pl’s Opp. Brief, Docket No. 42 at 39, quoting Hewitt v. Helms, 459

U.S. 460, 471 (1983)). In sum, Plaintiffs submit they adequately alleged Defendants

were negligent in implementing mandatory BOP policies, and the discretionary

function exception does not apply.

Next, Plaintiffs submit that Defendants did not have discretion to violate

Plaintiffs’ constitutional rights. (Id. at 43-44, citing U.S. Fid. & Guar. Co., 837 F.2d at

120) (citation omitted). Plaintiffs alleged that Defendants’ failures to follow BOP’s

mandatory policies violated Plaintiffs’ Eighth Amendment rights.

In their reply brief, Defendants suggest three particular errors in Plaintiffs’

interpretation and application of the discretionary function exception. (Defs’ Reply

Brief, Docket No. 47 at 7-11.) First, Defendants contend BOP’s Action Plan provides

guidance that allows flexibility and discretion not strict mandates.

The second error Defendants attribute to Plaintiffs’ discretionary function

analysis is overemphasis on “mandatory-sounding terms” in BOP’s Action Plan.

Instead, Defendants contend that federal courts must analyze the overall type of

regulation or policy, not just instances where words like “shall” or “must” appear. (Id.

at 9, citing Thrower v. United States, 528 F. App’x 108, 111 (3d Cir. 2013) (additional

citations omitted)). Relatedly, Defendants submit that government actions should be

classified along a spectrum and immunized when fully grounded in regulatory policy.

(Id. at 9-10, citing Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005)). In

this light, BOP’s pandemic policies fit within the discretionary function exception.

The third error Defendants attribute to Plaintiffs’ discretionary function analysis

is their failure to allege instances where Defendants violated mandatory BOP

guidelines. Defendants cite the following examples from the SAC.

• “Defendant Ortiz, N’Diaye, and Kodger never instituted a policy to test prison

staff or guards for the virus[.]” SAC ¶ 87.

• “From March to October 2020, Defendants never tested the prisoner population

as a whole” and “at all times relevant to this Complaint, Defendants did not

have a policy to test all prisoners, even those who came into contact with

COVID-19 positive staff or prisoners.” SAC ¶¶ 88-89; see also Id. ¶¶ 80, 88-89,

93, 99, 106, 135, 145, 158, 163, 186-187, 229.

• BOP did not “[p]rovide enough masks to staff and incarcerated persons and

require their use.” SAC ¶¶ 50-51, 70, 80, 82, 86, 188

• BOP failed to “[q]uarantine infected staff and incarcerated individuals,

including transferees from other BOP facilities.” SAC ¶¶ 4, 53, 68- 69, 80, 91,

93, 99, 116-117, 138, 148, 159-160, 190, 250.

• BOP did not “[c]lean the facility.” Id. ¶¶ 85, 114, 118, 123, 163, 188, 190.

For these reasons, Defendants urge the Court to dismiss Plaintiff’s FTCA claims

under the discretionary function exception of the FTCA.

3. Analysis

The question of whether the discretionary function exception precludes

Plaintiffs’ FTCA claims involves a factual attack on jurisdiction under Rule 12(b)(1).

Therefore, the Court may consider evidence outside the pleadings, but may not

determine the merits of Plaintiffs’ claims in doing so. In the SAC, Plaintiffs do not

identify any specific mandatory BOP policies or procedures that a federal actor

allegedly violated. Defendants assert BOP’s multi-phased operational plan “the Action

Plan” offers discretionary guidance because it “was flexible to address the unique

circumstances, conditions, limitations, and available resources at each of BOP’s 122

institutions.” (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 22);

Declaration of James Reiser, ¶¶ 5-6, Docket No. 38-3.) Certain aspects of the Action

Plan are also addressed in the Declarations of Adam Sassaman and Nicoletta Turner-

Foster. (Docket Nos. 38-4, 38-5, respectively.) Plaintiffs discuss the alleged mandatory

nature of aspects of the Action Plan in their opposition brief. (Pl’s Opp. Brief, Docket

No. 42 at 32-40.)

First, the Court notes that in an FTCA claim, the United States is the defendant,

and may be liable for “the negligent or wrongful act or omission of any employee of

the Government while acting within the scope of his office or employment….” 28

U.S.C. § 1346(b)(1). Plaintiff is not required to plead that the individual defendants

were negligent, but only that any employee of the Government was negligent while

acting within the scope of his office or employment. Therefore, allegations that

“Defendants or their agents” were negligent are sufficient.

Second, release to home confinement under the CARES Act, and early

compassionate release for inmates is a BOP discretionary decision, and requires

individualized determinations for each prisoner. See, Collins v. Warden Canaan FPC,

No. 21-2878, 2022 WL 2752536, at *2 (3d Cir. July 14, 2022) (where “BOP gave

“individual review” to plaintiff’s case, “and given the discretion afforded to the BOP's

home confinement determinations” BOP did not abuse its discretion under the

CARES Act); see 18 U.S.C. § 3582(c)(1)(A)(i) (describing Director of BOP’s

discretionary authority to bring a motion to reduce sentence on a prisoner’s behalf,

based on extraordinary and compelling reasons.”) Therefore, the discretionary

function exception of the FTCA precludes negligence claims based on the exercise of

such discretion.

Third, this Court finds that the multiple iterations of the Action Plan and other

relevant pandemic procedures submitted by the parties contain both discretionary

terms “should” and “may” and mandatory terms “shall” and “must.”3 For BOP

policies and procedures that are mandatory for all institutions (if any), the

discretionary function exception does not apply. Where guidance is discretionary, for

example, where BOP made recommendations for institutions to adopt discretionary or

mandatory rules, depending on the needs of each institution, the discretionary function

3 See examples, attachments to Reiser, Sassaman, and Turner-Foster Declarations (Docket

Nos. 38-3, 38-4, 38-5); Plaintiffs’ Exhibits One-Five (Docket Nos. 42-1 – 42-5.)

exception applies. However, where Defendants adopted mandatory procedures for

FCI Fort Dix, the discretionary function exception does not shield the United States

from FTCA claims. See, Gray v. U.S., 486 F. App’x 975, 978 (3d Cir. 2012) (finding

discretionary function exception inapplicable where policy in BOP Program Statement

specifically prescribed a course of conduct for prison staff to follow.). Based on the

exhibits submitted by the parties on this issue, some of the alleged acts of negligence

in the SAC are based on mandatory pandemic procedures, while others are not.4

Plaintiffs, however, have not clearly identified allegations in the SAC that are based

on specific mandatory BOP or FCI Fort Dix policies or procedures. Therefore, the

Court will request supplemental briefing. In their supplemental brief, Plaintiffs shall

identify, for example, as in footnote 4 supra, the mandatory language from a BOP or

FCI Fort Dix policy or procedure that supports a specific allegation in the SAC.

Defendants may file a responsive supplemental brief.

For Defendants’ discretionary actions, the second element of the discretionary

function test turns on whether Plaintiffs’ allegations reflect the type of judgment

exercised by the BOP that the discretionary function exception was designed to shield.

4 See e.g., Pls’ Exhibit One, Docket No. 42-1 at 7, under the heading “INTAKES,” the

following language is mandatory “inmates who test positive and/or are symptomatic will be

placed immediately in isolation. They will remain in medical isolation until they meet CDC

symptom-based (for symptomatic inmates) or time-based (for asymptomatic inmates)

release from isolation criteria. See also e.g., Attach. A to Reiser Decl., Docket No. 38-3 at

22, “COVID-19 GUIDANCE FOR INMATES WHO ARE TRANSFERRING OR

RELEASING FROM A BOP FACILITY” the following language is discretionary “an

inmate who is currently in or meets the criteria for COVID-19 medical isolation should not

be transferred or released from BOP custody unless absolutely necessary (e.g. immediate

release).”

The discretionary function exception of the FTCA is designed to shield from liability

public policy decisions, including those grounded in social, economic and political

policy. Gaubert, 499 U.S. at 322-23. Relevant here,

[w]here Congress has delegated the authority to an

independent agency or to the Executive Branch to

implement the general provisions of a regulatory statute and

to issue regulations to that end, there is no doubt that

planning-level decisions establishing programs are

protected by the discretionary function exception, as is the

promulgation of regulations by which the agencies are to

carry out the programs.

Id. at 323.

Plaintiffs’ allegations are premised on Defendants’ duties to ensure the safety of

all prisoners and staff at the institution and ensure that the institution operated in an

orderly fashion. (SAC ¶¶ 14-18, Docket No. 16.) Although not cited in the SAC, this

duty arises from 18 U.S.C. § 4042, which provides, in relevant part:

(a) In general.--The Bureau of Prisons, under the direction

of the Attorney General, shall—

(1) have charge of the management and regulation of all

Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the

safekeeping, care, and subsistence of all persons charged

with or convicted of offenses against the United States, or

held as witnesses or otherwise;

(3) provide for the protection, instruction, and discipline of

all persons charged with or convicted of offenses against the

United States….

Thus, many of Plaintiffs’ allegations fall squarely within the second element of the

discretionary function exception. Rodriguez v. United States, 695 F. App'x 669, 673 (3d

Cir. 2017) (“every Court of Appeals to have addressed the issue precedentially has

reached the same conclusion” “§ 4042(a) leaves the performance of those general

duties to the discretion of the BOP”) (emphasis added).

Even for those claims that are subject to the discretionary function exception,

the analysis continues because “[f]ederal officials do not possess discretion to violate

constitutional rights….” U.S. Fid. & Guar. Co., 837 F.2d at 120). Plaintiffs allege

Defendants’ conduct violated the Cruel and Unusual Punishments Clause of the

Eighth Amendment. Therefore, unless Plaintiffs have failed to state an Eighth

Amendment claim, the application of the discretionary function exception may not be

decided until the Court reaches the merits of the constitutional claims. See, Davis, 824

F.3d at 348 (“when a factual challenge to jurisdiction attacks facts at the core of the

merits of the underlying cause of action,” district courts should find jurisdiction and

address the attack on the merits of the plaintiff’s case) (quoting Kulick, 816 F.2d at 898

n. 5 (3d Cir. 1987) (internal quotation marks omitted in Davis)). Ultimately, the Court

must reserve its decision on the application of the discretionary function exception for

further briefing.

D. FTCA Quarantine Exception

1. Standard of Law

Pursuant to 28 U.S.C. § 2680(f): “… section 1346(b) of this title shall not apply

to-- … [a]ny claim for damages caused by the imposition or establishment of a

quarantine by the United States.” It appears that the Supreme Court and the Third

Circuit Court of Appeals have not interpreted the meaning of § 2680(f). Therefore, this

Court must do so. The Supreme Court has instructed courts to interpret statutes

according to their “‘ordinary, contemporary, common meaning.’” Sw. Airlines Co. v.

Saxon, 142 S.Ct. 1783, 1788 (2022) (quoting Sandifer v. United States Steel Corp., 571

U.S. 220, 227 (2014) (quoting Perrin v. United States, 444 U.S. 37, 42, (1979)); see also

New Prime Inc. v. Oliveira, 139 S.Ct. 532, 538-539 (2019)). In doing so, words “‘must be

read’ and interpreted ‘in their context,’ not in isolation.” Id. (quoting Parker Drilling

Management Services, Ltd. v. Newton, 139 S.Ct. 1881, 1888 (2019) (quoting Roberts v. Sea-

Land Services, Inc., 566 U.S. 93, 101, (2012)). The starting point is with the definition

of the words used in the statute. See e.g., Id. at 1888-90 (considering dictionary

definitions of relevant statutory terms). Courts may also look to the context of the

statute and other canons of statutory construction to confirm the ordinary meaning of

the word. Id. at 1789.

2. The Parties’ Arguments

Defendants observe that 28 U.S.C. § 2680(f) precludes jurisdiction under the

FTCA for “[a]ny claim for damages caused by the imposition or establishment of a

quarantine by the United States.” (Defs’ Brief in Supp. of Mot. to Dismiss, Docket

No. 38-1 at 44-46.) This provision is applicable to all of Plaintiffs’ claim, Defendants

assert, because the SAC is focused on BOP’s alleged negligence in failing to quarantine

COVID-19 positive prisoners. Defendants rely on a case from the Eastern District of

North Carolina. (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 44-45,

citing Wallace v. United States Dep't of Just., No. 5:21-CT-3035-D, 2021 WL 2853692, at

*2 (E.D.N.C. June 24, 2021), aff'd, No. 21-7017, 2022 WL 1024613 (4th Cir. Apr. 6,

Mar. 9, 2018) (unpublished) (quoting Cascabel Cattle Co. v. United States, No. B-17-61,

2018 WL 5850575, at *14 (S.D. Tex. Sept. 5, 2018) (unpublished), report and

recommendation adopted, 2018 WL 5811007 (S.D. Tex. Nov. 6, 2018) (unpublished),

aff'd, 955 F.3d 445 (5th Cir. 2020) (additional citations omitted)). There, the district

court found § 2680(f) applicable where the warden of a federal prison was allegedly

negligent for failing to secure a corridor to prevent transmission of COVID-19 by

inmates passing between a quarantined dormitory and a non-quarantined dormitory.

Plaintiffs contend that Defendants have not met their burden to prove the

quarantine exception applies. (Pl’s Opp. Brief, Docket No. 42 at 44-49.) First, Plaintiffs

submit that the quarantine exception applies only to quarantines of animals and

damages to property, not public health quarantines of humans. Plaintiffs argue the

Wallace case, relied on by Defendants, is not precedential and was wrongly decided.

Second, Plaintiffs maintain that the allegations in the SAC fall outside any reasonable

reading of the quarantine exception. The plain text of § 2680(f) covers only the

“imposition or establishment of a quarantine….” Thus, even if § 2680(f) could apply

to public health quarantines of persons, Plaintiffs’ damages were not caused by a

quarantine. Instead, Plaintiffs argue their quarantine-related claims center on

Defendants’ failure to establish or implement an effective quarantine.

In their reply brief, Defendants provide the definition of “quarantine,” noting

that it includes isolation of “persons.” (Defs’ Reply Brief, Docket No. 47 at 12-13.)

Thus, they contend there is no livestock limitation in FTCA’s quarantine exception.

Defendants contend allegations that BOP was negligent in effectively imposing a

quarantine are excluded by § 2680(f).

3. Analysis

The relevant statutory text excludes from the FTCA’s waiver of sovereign

immunity “[a]ny claim for damages caused by the imposition or establishment of a

quarantine by the United States.” 28 U.S.C.A. § 2680(f). Quarantine means isolation

of a person or animal afflicted with a communicable disease or prevention of such a

person or animal from coming into a particular area, the purpose being to prevent the

spread of disease.” Black’s Law Dictionary, 1362 (9th ed. 2009). The ordinary meaning

of quarantine encompasses persons and animals. The statute is not limited to

livestock quarantines.

But the Court must also determine the meaning of the statutory phrase “any

claim for damages caused by the imposition or establishment of a quarantine by the United

States.” § 2680(f) (emphasis added). Imposition means “to levy or exact” as in a tax

or duty. Black's Law Dictionary, 824 (9th ed. 2009). “Establishment” has several

meanings, relevant here is “the act of establishing; the quality, state, or condition of

being established. Id. In turn, “establish” means: 1) “to settle, make, or fix firmly; to

enact permanently;” or 2) “[t]o make or form; to bring about or into existence;” or 3)

“[t]o prove; to convince someone of;” or 4) “[t]o make (a church or religion) an

official, governmentally sponsored institution.” Black’s Law Dictionary 626 (9th ed.

2009).

The District Court in Wallace held § 2680(f) immunized the Government from

damages caused by “any actions undertaken by the Government to carry out the

purposes of the quarantine.” 2021 WL 2853692, at *2. Plaintiffs’ claims, however,

do not fit within this definition. Plaintiffs do not allege they were harmed by

Defendants’ acts in carrying out a quarantine; for example, that they were harmed by

the quarantine lock-down conditions imposed on them. Rather, Plaintiffs’ damages

are based on the Government’s alleged failure to impose stricter quarantine protocols

to prevent them from becoming infected with COVID-19. Therefore, the FTCA

quarantine exception does not immunize the Government from Plaintiffs’ claims that

Defendants were negligent.

As discussed above, however, the discretionary function exception immunizes

the Government from damages caused by Defendants’ discretionary decisions on

how to protect inmates from the spread of COVID-19, and this includes their

decisions on how to carry out a quarantine in FCI Fort Dix, to the extent that

mandatory procedures were not violated. But the discretionary function exception

does not apply when Government actions violate the Constitution. In this case,

oddly, the question of whether Plaintiffs may bring their damages claims under the

FTCA based on discretionary decisions turns on whether those discretionary

decisions rose to the level of a constitutional violation, which under the Eighth

Amendment requires deliberate indifference. Thus, the Court turns to Plaintiffs’

constitutional claims, and will first address the procedural aspects.

E. Exhaustion of Bivens Claims

Defendants invoke the exhaustion requirement of 42 U.S.C. § 1997e(a) for

dismissal of Plaintiffs’ Eighth Amendment claims under Bivens. (Defs’ Brief in Supp.

of Mot. to Dismiss, Docket No. 38-1 at 50-54.) Section 1997e(a) provides: “[n]o

action shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” Proper exhaustion, in compliance with the procedural rules of the

prison’s administrative grievance program, is required before a prisoner can bring a

lawsuit in a federal court. Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). Defendants

seek dismissal of Plaintiff’s Bivens claims because Plaintiffs alleged in the SAC that

they exhausted administrative remedies by fulfilling the FTCA exhaustion

requirement, but this does not satisfy the PLRA exhaustion requirement.

Plaintiffs oppose dismissal of their Bivens claims based on nonexhaustion

because § 1997e(a) does not impose a pleading requirement. (Pl’s Opp. Brief, Docket

No. 42 at 52-56.) They alleged exhaustion of FTCA administrative remedies in the

SAC, but they were not required to allege exhaustion of PLRA administrative

remedies. In reply, Defendants argue that dismissal is proper for nonexhaustion

under § 1997e(a) because nonexhaustion is apparent on the face of the complaint,

where Plaintiffs allege only exhaustion of FTCA administrative remedies. (Defs’

Reply Brief, Docket No. 47 at 17-18.)

“[F]ailure to exhaust is an affirmative defense under the PLRA, and [] inmates

are not required to specially plead or demonstrate exhaustion in their complaints.”

Jones v. Bock, 549 U.S. 199, 216 (2007)). In this case, Plaintiffs specifically pleaded

FTCA exhaustion but did not plead PLRA exhaustion. The SAC, on its face, does not

demonstrate that Plaintiffs failed to exhaust the prison’s administrative grievance

procedures. Therefore, there is no basis to dismiss Plaintiffs’ Bivens claims for

nonexhaustion under § 1997e(a) at this stage of the proceedings.

F. Availability of Bivens Remedy

1. Standard of Law

Bivens is “the short-hand name given to causes of action [for damages] against

federal officials for alleged constitutional violations.” Bistrian v. Levi, 912 F.3d 79, 88

(3d Cir. 2018) (alteration added). In Egbert, the Supreme Court recently reminded

courts that it had not implied any new damages remedies against federal officials for

alleged constitutional violations after three Supreme Court cases, Bivens, Carlson5 and

Davis,6 the last of which was decided in 1980. Egbert v. Boule, 142 S.Ct. 1793, 1802

(2022). Since then, the Supreme Court has “come ‘to appreciate more fully the tension

between’ judicially created causes of action and ‘the Constitution's separation of

legislative and judicial power,’” Id. at 1802 (quoting Hernández v. Mesa, 140 S.Ct. 735,

741 (2020)). “[C]reating a cause of action is a legislative endeavor.” Id. Congress is

the proper branch of the Government to evaluate policy considerations such as

“economic and governmental concerns,” “administrative costs,” and the “impact on

governmental operations systemwide.” Id. at 1803 (quoting Ziglar v. Abbasi, 137 S.Ct.

5 Carlson v. Green, 446 U.S. 14 (1980).

6 Davis v. Passman, 442 U.S. 228 (1979).

1856, 1858 (2017). The Egbert Court, however, chose not to “dispense with Bivens

altogether.” Id. at 1803. Instead, Egbert instructs that when courts are asked to imply

a Bivens damages remedy:

“the most important question is who should decide whether

to provide for a damages remedy, Congress or the courts?”

Hernández, 589 U. S., at –––– – ––––, 140 S.Ct., at 750

(internal quotation marks omitted). If there is a rational

reason to think that the answer is “Congress”—as it will be

in most every case, see Ziglar, 582 U. S., at ––––, 137 S.Ct.,

at 1857-1858—no Bivens action may lie.

Id. New Bivens actions cannot be created where “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.’” Id. at 1805 (emphasis in original) (quoting Ziglar, 137

S.Ct., at 1858). “The Court's focus in determining whether such a claim can be brought

… is on whether courts should be in the business of creating avenues for liability….”

Graber v. Doe II, 59 F.4th 603, 609 (3d Cir. 2023).

Egbert does not do away with the two-step inquiry for courts to consider before

implying a Bivens claim, but it states,

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. For example, we

have explained that a new context arises when there are

potential special factors that previous Bivens cases did not

consider. And we have identified several examples of new

contexts—e.g., a case that involves a new category of

defendants—largely because they represent situations in

which a court is not undoubtedly better positioned than

Congress to create a damages action. We have never offered

an exhaustive accounting of such scenarios, however,

because no court could forecast every factor that might

counsel hesitation. Even in a particular case, a court likely

cannot predict the systemwide consequences of recognizing

a cause of action under Bivens. That uncertainty alone is a

special factor that forecloses relief.

142 S.Ct., at 1803–04 (internal quotation marks and quotations omitted).

The first step of the inquiry is whether a cause of action presents “a new Bivens

context.” Id. at 1803 (quoting Ziglar, 137 S.Ct., at 1859-60). The “proper test” under

the first step is whether “the case is different in a meaningful way from previous Bivens

cases decided by this Court.” Ziglar, 137 S.Ct., at 1859-60. The Supreme Court

recognizes only three cases where it decided whether to imply a Bivens damages

remedy:7 Bivens itself created a cause of action for violating the Fourth Amendment’s

protections against warrantless search and arrest. 403 U.S. at 397. Davis v. Passman,

442 U.S. 228 (1979), recognized a cause of action for a Fifth Amendment equal

protection claim against a Congressman for gender discrimination. Carlson v. Green,

446 U.S. 14 (1980), created a cause of action for an Eighth Amendment claim

involving the failure to treat a federal prisoner’s asthma, which resulted in the

prisoner’s death.

2. The Parties’ Arguments

Defendants submit the Court should not imply a damages remedy for Plaintiffs’

Bivens claims. (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 54-64.)

Defendants argue that after the Supreme Court’s decisions in Ziglar and Egbert, special

7 “These three cases—Bivens, Davis, and Carlson—represent the only instances in which the

Court has approved of an implied damages remedy under the Constitution itself.” Ziglar,

137 S.Ct., at 1855.

factors counsel against recognizing an implied damages remedy in the new Bivens

context presented here. First, Defendants maintain that Plaintiffs’ Eighth Amendment

pandemic management claims arise in a new Bivens context. Plaintiffs’ claims involve:

1) the outbreak of COVID-19 after infected FCI-Elkton inmates were transferred to

FCI Fort Dix; 2) the outbreak when prisoners were moved into the east side of FCI

Fort Dix; and 3) inadequate medical care for prisoners who contracted COVID-19.

(SAC ¶¶ 96-191). The Supreme Court has not extended Bivens to claims against federal

prison officials regarding conditions of confinement. (Defs’ Brief in Supp. of Mot. to

Dismiss, Docket No. 38-1 at 56, citing Mammana v. Barben, 856 F. App’x 411, 414-15

(3d Cir. 2021) (rejecting the argument that Carlson recognizes an Eighth Amendment

conditions-of-confinement claim against federal officials).

Defendants further contend that Plaintiffs’ claims bear little resemblance to the

facts in Carlson, where the plaintiff suffered extreme deviations from the medical

standard of care in the treatment of his asthma. Plaintiffs’ claims arise in the context

of a global pandemic that required prison officials to prioritize the needs of an entire

prison population within its limited resources, unlike Carlson, where the prison failed

to provide treatment for a single inmate who had asthma.

Next, Defendants maintain that there are alternative remedies for Plaintiffs’

claims, and this counsels against creating a Bivens remedy in this new context. First,

Plaintiffs could have sought relief through BOP’s administrative grievance program.

Second, Plaintiffs could have sought equitable or injunctive relief from this Court [they

have] or moved for compassionate release based on their conditions of confinement.

Third, Plaintiffs could have pursued a damages remedy against the United States

under the FTCA, which they have done.

Finally, Defendants submit that other special factors counsel against finding a

Bivens remedy here, including Congressional action taken, separation of powers, and

potential enormous social costs. Congress took action by passing legislation to address

the pandemic. (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 62-63,

citing Melendez v. City of New York, 16 F.4th 992, 998 (2d Cir. 2021) (cataloging the

expenditures and payments made by the federal government in response to the

pandemic); see also, CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (2020) (providing

multiple kinds of relief or protection for individuals effected by quarantines). Congress,

however, did not provide a statutory damages remedy against federal officials

overseeing prisons for their response to the COVID-19 pandemic. The separation of

powers doctrine counsels against “judicial usurpation of the legislative function” in

this context. (Id. at 63, citing De La Paz v. Coy, 786 F.3d 367, 377 (5th Cir. 2015).

Finally, Defendants submit that extending Bivens to this context might impose

enormous societal costs, a decision better made by Congress.

Plaintiffs’ oppose dismissal of their Bivens claims for damages. (Pl’s Opp. Brief,

Docket No. 42 at 56-62.) Their Bivens claims, they argue, fit squarely within the

decisions in Carlson and Farmer, where the Supreme Court recognized a Bivens remedy

for Eighth Amendment violations based on inadequate medical care and failure to

protect inmate safety. In Farmer, the estate of an inmate who died in a federal prison

brought a Bivens cause of action under the Eighth Amendment based on the prison

officials’ failure to protect him from a known risk of substantial harm. 511 U.S. at 831.

The Third Circuit has stated that Farmer “recognized a failure-to-protect claim under

the Eighth Amendment.” (Id. at 59, quoting Bistrian v. Levi, 912 F.3d at 91).

Moreover, Plaintiffs submit that even if their Bivens claims arise in a new

context, there are compelling reasons to recognize a Bivens remedy. First, “the

existence of an FTCA remedy does not foreclose an analogous remedy under Bivens.”

(Pl’s Opp. Brief, Docket No. 42 at 60, citing Bistrian, 912 F.3d at 92; Correctional Services

Corp. v. Malesko, 534 U.S. 61, 68 (2001) (It is “‘crystal clear’ that Congress intended the

FTCA and Bivens to serve as ‘parallel’ and ‘complementary’ sources of liability[.]” (Pl’s

Opp. Brief, Docket No. 42 at 60, quoting Carlson, 446 U.S. at 19-20)). Additionally,

“[t]he administrative grievance process is not an alternative” to Bivens because it does

not remedy harms “which could only be remedied by money damages.” (Id. at 60,

citing Bistrian, 912 F.3d at 92.)

Plaintiffs recognize that, under Egbert and Ziglar, the ultimate question is

whether “Congress is better suited to ‘weigh the costs and benefits of allowing a

damages action to proceed.’” (Id. at 61, quoting Egbert, 142 S.Ct., at 1805 (quoting

Ziglar, 137 S.Ct., at 1858)). The answer, according to Plaintiffs, is that the courts are

better suited, as they have done so for many years without direction or interference by

Congress. In reply, Defendants’ rely on the Supreme Court’s statement in Egbert that

“in most every case” the answer will be that “no Bivens action may lie.” (Defs’ Reply

Brief, Docket No. 47 at 18, quoting Egbert, 142 S.Ct., at 1803.)

3. Analysis

Carlson is the only case where the Supreme Court implied a damages remedy

under the Eighth Amendment based prison officials’ failure to provide adequate

medical care to a federal prisoner. In Carlson, the plaintiff

alleged that [the defendants] being fully apprised of the

gross inadequacy of medical facilities and staff at the

Federal Correction Center in Terre Haute, Ind., and of the

seriousness of [the inmate’s] chronic asthmatic condition,

nonetheless kept him in that facility against the advice of

doctors, failed to give him competent medical attention for

some eight hours after he had an asthmatic attack,

administered contra-indicated drugs which made his attack

more severe, attempted to use a respirator known to be

inoperative which further impeded his breathing, and

delayed for too long a time his transfer to an outside

hospital. The complaint further alleges that [the inmate’s]

death resulted from these acts and omissions, that [the

defendants] were deliberately indifferent to [the inmate’s]

serious medical needs, and that their indifference was in

part attributable to racial prejudice.

Carlson, 446 U.S. at 17 n.1. Comparing Carlson to the present case, the plaintiff in

Carlson was the estate of the deceased inmate, and the defendants were prison officials,

including the Director of the Federal Bureau of Prisons. The obvious differences in

this case are that Plaintiffs here suffered from COVID-19, which was not life-

threatening to them at the time they sought treatment, unlike an acute attack of

asthma, and Plaintiffs here did not die from Defendants’ alleged inadequate medical

care. Plaintiffs here did not allege that Defendants were fully apprised of the gross

inadequacy of medical facilities and medical staff at FCI Fort Dix, nor is it obvious

from the facts alleged in the complaint that that medical facilities and staff were grossly

inadequate.

This case presents a meaningfully different fact pattern than Carlson because the

prison officials here were responding to a global pandemic of a new, little known virus

that required them to prioritize the medical needs of the entire prison population

within the resources they had. Certainly, a prisoner-plaintiff with life-threatening

medical emergencies would fall within the context of the claim alleged in Carlson.

None of the plaintiffs’ here allege they suffered a life-threatening need for immediate

medical care that prison officials knew could not be provided within FCI Fort Dix.

This is enough to present a new Bivens context under Egbert. Likewise, Plaintiffs’

conditions of confinement claims, based on Defendants’ response to the spread of

COVID-19 in FCI Fort Dix, is undoubtedly a new Bivens context, as no prior Supreme

Court case addressed prison conditions in light of a global pandemic of a new and

highly contagious virus. The question remains whether special factors counsel

hesitation of implying a damages remedy in this new Bivens context.

Starting with the Egbert Court’s prediction that “in most cases” the answer will

be that “no Bivens action may lie,” this Court must consider whether special factors

counsel hesitation in implying a damages remedy here. “If there is even a single ‘reason

to pause before applying Bivens in a new context,’ a court may not recognize a Bivens

remedy.” Egbert, 142 S. Ct at 1803 (quoting Hernández, 140 S.Ct., at 743.) The two

examples provided in Egbert that foreclose an implied Bivens remedy are applicable

here. First, if a court cannot predict the “systemwide” consequences of recognizing a

cause of action under Bivens … “[t]hat uncertainty alone is a special factor that

forecloses relief.” Id. at 1804 (internal quotation and citation omitted). “COVID-19

presents highly unusual and unique circumstances that have radically transformed our

everyday lives in ways previously inconceivable and have altered [our world] with

lightning speed ... and unprecedented [results.]” Hope v. Warden York Cnty. Prison, 972

F.3d 310, 330 (3d Cir. 2020) (internal quotations marks and quotations omitted)

(alterations in original). This Court certainly cannot predict the systemwide

consequences of recognizing a damages remedy for prisoners who alleged they were

not provided adequate medical care for COVID-19.

Second, the Egbert Court instructs 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.” Egbert, 142 S.Ct., at 1804 (quoting Ziglar, 137 S.Ct., at

1858). In this context, a court may not consider “whether a Bivens action would

“disrup[t] a remedial scheme[];”8 whether the court “should provide for a wrong that

would otherwise go unredressed[;]”9 or that “existing remedies do not provide

complete relief.”10 “[T]he 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. (quoting Bush, 462 U.S. at 388).

8 Egbert, 142 S.Ct., at 1804 (quoting Schweiker v. Chilicky, 487 U.S. 412, 426 (1988)).

9 Id. (quoting Bush v. Lucas, 462 U.S. 357, 388 (1983)).

10 Id., (quoting Bush, 462 U.S. at 388).

Equitable relief under 28 U.S.C. § 1331 or the BOP’s administrative grievance

procedure,11 may not provide complete relief for violations of constitutional rights by

federal actors. But courts must consider whether the judicial branch is better equipped

to decide whether existing remedies should be augmented. There may be such a case,

but Defendants’ response to the unprecedented COVID-19 pandemic is not such a

case. Especially in responding to a global pandemic, it is the role of Congress to

evaluate policy considerations, such as “economic and governmental concerns,”

“administrative costs,” and the “impact on governmental operations systemwide.” Id.

at 1803 (quoting Ziglar, 137 S.Ct., at 1856, 1858.) Therefore, this Court will not imply

a Bivens damages remedy for Plaintiffs’ condition of confinement claims.

G. Supervisory Liability under Bivens

Although this Court has concluded that it should not imply a damages remedy

under Bivens, Plaintiffs have also sought equitable relief for Eighth Amendment

violations. Furthermore, whether Plaintiffs’ FTCA claims are barred by the

discretionary function exception depends, in part, on whether Plaintiffs stated a

cognizable Eighth Amendment claim(s). Therefore, the Court must address

Defendants’ motion to dismiss Plaintiffs’ Eighth Amendment conditions of

confinement and inadequate medical care claims.

1. Standard of Law

11 28 C.F.R. §§ 542.10 et seq.

Under § 1983, supervisors “are liable only for their own unconstitutional

actions.” Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), cert. granted,

judgment rev'd sub nom. on other grounds, Taylor v. Barkes, 575 U.S. 822 (2015)); Ashcroft

v. Iqbal, 556 U.S. 662, 676 (2009) (“[A] plaintiff must plead that each Government-

official defendant, through the official’s own individual actions, has violated the

Constitution.”). “[T]he level of intent necessary to establish supervisory liability will

vary with the underlying constitutional tort alleged.” Barkes, 766 F.3d at 319.

Supervisors may be liable if, with the requisite level of intent for the constitutional

violation alleged, they “established and maintained a policy, practice or custom which

directly caused [the] constitutional harm.’” Barkes, 766 F.3d at 316 (quoting A.M. ex

rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration

in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir.

1989)). Supervisors may also be liable “if [they] participated in violating the plaintiff's

rights, directed others to violate them, or, as the person in charge, had knowledge of

and acquiesced” in the subordinate's unconstitutional conduct.” Id. (citations

omitted). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citations omitted).

The Eighth Amendment protects prisoners from cruel and unusual prison

conditions. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). To plead such a claim, a

plaintiff must allege facts showing that: (1) the deprivation was sufficiently serious;

and (2) the defendant prison officials acted with “deliberate indifference to inmate

health or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). To satisfy the element

of deliberate indifference, a plaintiff must establish that the prison officials actually

knew of and disregarded the serious risk of harm posed by the conditions. Id. at 844.

However, “prison officials who actually knew of a substantial risk to inmate health or

safety may be found free from liability if they responded reasonably to the risk, even if

the harm ultimately was not averted.” Id. In the context of Eighth Amendment claims

for inadequate medical care, “[a] non-physician defendant is not deliberately

indifferent to an inmate’s serious medical need if the inmate is being treated by a prison

doctor, unless the non-physician has reason to believe the inmate is being mistreated

or not treated.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).

2. The Parties’ Arguments

Defendants contend Plaintiffs failed to state cognizable Eighth Amendment

conditions of confinement and inadequate medical care claims against them as

supervisors. (Defs’ Brief in Supp. of Mot. to Dismiss, Docket No. 38-1 at 65-71.)

Defendants rely on a number of cases where courts have found that general policies

and procedures instituted by BOP officials in response to the spread of COVID-19

were not deliberately indifferent to inmate health and safety, even if those policies and

procedures were allegedly inconsistently followed or were unsuccessful, because BOP

reasonably responded to the risk. (Id. at 66-68, citing Wilson v. Williams, 961 F.3d 829,

841 (6th Cir. 2020); Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020); Swain v. Junior,

961 F.3d 1276, 1287 (11th Cir. 2020); Ross v. Russell, No. 20-0774, 2022 WL 767093,

at *11 (W.D. Va. Mar. 14, 2022); Ryan v. Nagy, No. 20-11528, 2021 WL 6750962, at

*9 (E.D. Mich. Oct. 25, 2021), R. & R. adopted in part, No. 20-11528, 2022 WL 260812

(E.D. Mich. Jan. 26, 2022); Grinis v. Spaulding, 459 F. Supp. 3d 289, 292 (D. Mass.

2020); Chunn v. Edge, 465 F. Supp. 3d 168, 203 (E.D.N.Y. 2020); Aipoalani v. Derr, Civ.

No. 22-00093, 2022 WL 1241822, at *5 (D. Haw. Apr. 27, 2022); Cook v. Fed. Bureau

of Prisons, Civ. No. 4:21-0766, 2021 WL 6064750, at *2 (N.D. Ohio Dec. 21, 2021).

Furthermore, Defendants contend that Plaintiffs’ Eighth Amendment claims

are premised on respondeat superior liability, and their allegations that Defendants

were personally involved in the prison transfers or other failures to protect inmates

from COVID-19 are only conclusory. Defendants seek dismissal of Plaintiffs’ medical

care claims because none of the individual defendants works in health services at FCI

Fort Dix.

Plaintiffs contend they alleged cognizable Eighth Amendment claims in the

SAC, which contains allegations that each of the individual defendants were

personally involved in violations of Plaintiffs’ constitutional rights. (Pl’s Opp. Brief,

Docket No. 42 at 62-71.) For example, Plaintiffs allege that Defendants Carvajal and

English “transferred a large number of inmates from FCI Elkton[, which was] known

to be in the midst of a serious COVID-19 outbreak[,] to Fort Dix without an effective

plan in place to avoid spreading the virus from transferring inmate[.]” SAC ¶ 97; see

generally Id. ¶¶ 96-136. And those transfers took place even though both Defendants

knew of the immediate danger to individuals at FCI Fort Dix—so much so that

Defendant English even requested a transfer moratorium, but only to take effect the

day after the fourth FCI Elkton transfer. Id. ¶ 110. Defendants Ortiz and Kodger

“failed to enforce mask mandates or social distancing protocols,” Id. ¶ 86, and

Defendants Ortiz, N’Diaye, and Kodger failed to timely test FCI Fort Dix staff, Id. ¶

87.

Second, Plaintiffs allege that the individual defendants were “aware of and

adopted and enforced policies that left Plaintiffs and all those similarly situated

exposed to infection, severe illness, and death due to COVID-19,” SAC ¶¶ 14-18, and

Defendants participated in or knew about the unconstitutional conditions, e.g., Id. ¶

231 (summarizing allegations that Defendants “knew of and disregarded an excessive

risk to health and safety”). Third, Plaintiff’s claim they have alleged that the individual

defendants were both involved in and knew about FCI Fort Dix’s failure to provide

adequate medical treatment.

In their reply brief, Defendants urge the Court to follow decisions where district

courts have found that general policies and procedures instituted by BOP officials did

not rise to the level of an Eighth Amendment violation, even if those policies and

procedures were allegedly inconsistently followed or were unsuccessful in slowing the

spread of COVID-19. (Defs’ Reply Brief, Docket No. 47 at 22-25.) Additionally,

Defendants contend that Plaintiffs have not alleged a plausible claim for relief, which

“calls for enough facts to raise a reasonable expectation that discovery will reveal

evidence of [the necessary element of that claim.]” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007). (Id. at 23.) Defendants contend the allegations in the SAC generally

attribute the failures of staff to protect inmate health to safety to them, as

administrators, without sufficiently alleging their direct personal involvement.

3. Analysis

Beginning with Plaintiffs’ claims regarding Defendants’ knowledge and

acquiescence in denying them adequate medical care, Plaintiffs have failed to state an

Eighth Amendment claim. Plaintiffs have not alleged sufficient facts to show that

Defendants, who are not medical providers, knew Plaintiffs were being mistreated or

not treated by prison medical providers. Spruill, 372 F.3d at 236 (3d Cir. 2004)). For

instance, Plaintiffs allege that when they contracted COVID-19, they were given only

Acetaminophen and/or cough medicine. (SAC ¶¶ 10-13). They allege they were

prematurely declared recovered from COVID-19 and forced to work. (Id., ¶¶ 12-13.)

Further, they allege medical staff delayed treating their lingering COVID-19 symptoms

or other health conditions that arose during the pandemic. (Id., ¶¶ 10-11.) Plaintiffs

do not allege any facts to establish how Defendants knew of and acquiesced in the

failure of medical staff to adequately or timely provide medical treatment to them.

Turning to Plaintiffs’ condition of confinement claims, Defendants cite a

number of cases which generally held prison officials were not deliberately indifferent

to inmates’ health and safety because they responded reasonably to the serious risk to

inmate health in response to the COVID-19 pandemic. The problem with Defendants’

reliance on these cases is that the cases arose in the context of motions for preliminary

injunctive relief, where it was proper for the courts to address evidence submitted by

the defendants to establish Plaintiffs were not likely to succeed on the merits of their

claims, or on motions to dismiss where the plaintiff mentioned the jail’s COVID-19

procedures in the complaint or included the procedures as an attachment to the

complaint. See, e.g., Wilson v. Williams, 961 F.3d 829, 841 (6th Cir. 2020) (on appeal of

preliminary injunctive relief); Valentine v. Collier, 978 F.3d 154 (5th Cir. 2020) (on

motion to stay permanent injunction pending appeal); Swain v. Junior, 961 F.3d 1276,

1287 (11th Cir. 2020) (on appeal of preliminary injunctive relief); Ross v. Russell, No.

20-0774, 2022 WL 767093, at *11 (W.D. Va. Mar. 14, 2022) (granting motion to

dismiss amended complaint, which had jail’s pandemic policy attached); Ryan v. Nagy,

No. 20-11528, 2021 WL 6750962, at *9 (E.D. Mich. Oct. 25, 2021) R. & R. adopted in

part, No. 20-11528, 2022 WL 260812 (E.D. Mich. Jan. 26, 2022), vacating in part, No.

20-11528, 2022 WL 17091985 (E.D. Mich. Nov. 21, 2022) (affirming grant of qualified

immunity and vacating dismissal of state law claim); Grinis v. Spaulding, 459 F. Supp.

3d 289, 292 (D. Mass. 2020) (denying preliminary injunctive relief); Chunn v. Edge, 465

F. Supp. 3d 168, 203 (E.D.N.Y. 2020) (denying preliminary injunctive relief);

Aipoalani v. Derr, Civ. No. 22-00093, 2022 WL 1241822, at *5 (D. Haw. Apr. 27, 2022)

(Rule 12(b)(6) dismissal for failure to state supervisory liability claim and finding

vaccinated prisoner did not allege a serious medical need); Cook v. Fed. Bureau of

Prisons, Civ. No. 4:21-0766, 2021 WL 6064750, at *2 (N.D. Ohio Dec. 21, 2021) (Rule

12(b)(6) dismissal for failure to allege supervisory defendants’ personal involvement in

Eighth Amendment claims).

On a Rule 12(b)(6) motion to dismiss for failure to state a claim, this Court may

not consider evidence outside the pleadings; for example, the BOP Action Plan or the

declarations of BOP officials stating what actions were taken to address the risk of

COVID-19 spreading in FCI Fort Dix. Without reference to materials outside the

pleadings, the Court cannot conclude that Defendants responded reasonably to the

serious risk to inmate health.

Accepting the factual allegations in the SAC as true and making all reasonable

inferences in Plaintiffs’ favor, they have sufficiently alleged Defendants failed to

implement and enforce reasonable measures to protect FCI Fort Dix inmates from the

spread of COVID-19. In the SAC, Plaintiffs allege “from the early days of the

pandemic, medical and public health experts urged emergency action to fight the

spread of COVID-19 in carceral settings, including decarceration, improved access to

medical care, compliance with CDC guidelines, and more.” (SAC ¶ 38.) Plaintiffs

cite to dozens of CDC recommendations for prisons to protect inmates from the spread

of COVID-19. (SAC, ¶ 40.) They cite to publicly available guidance from the World

Health Organization aimed at slowing the spread of the virus, such as testing prisoners

immediately upon showing symptoms. (SAC ¶¶ 40 n. 41, 42.) Based on this publicly

available guidance, Plaintiffs’ allegations that Defendants’ were aware of the actions

necessary to protect inmate health from the spread of COVID-19, and that they failed

to do so are plausible, at this juncture, although discovery may not bear the allegations

out.

H. Qualified Immunity

This Court has determined that it should not imply a damages remedy for

Plaintiffs’ Bivens claims. Plaintiffs, however, also seek equitable relief for their

Eighth Amendment claims. “[T]he defense of qualified immunity is available only

for damages claims—not for claims requesting prospective injunctive relief.” Hill v.

Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006) (citations omitted). Thus, the

Court need not address Defendants’ qualified immunity defense.

IV. CONCLUSION

In summary: (1) Plaintiff Speed failed to exhaust his FTCA remedies, the

remaining Plaintiffs exhausted FTCA remedies; (2) application of the FTCA

discretionary function exception requires further briefing; (3) the FTCA quarantine

exception does not apply to Plaintiffs’ claims; (4) the issue of exhaustion of Bivens

claims is premature; (5) the Court will not imply a damages remedy for Plaintiffs’

Bivens claims, but Plaintiffs’ also seek equitable or injunctive relief under the Eighth

Amendment; (6) Plaintiffs’ adequately alleged Eighth Amendment supervisory

liability claims regarding conditions of confinement but did not adequately allege

Eighth Amendment supervisory liability claims regarding inadequate medical care.

Thus, the Court will grant, in part, and deny, in part, Defendants’ motion to dismiss.

An appropriate Order

follows. Date: March 21,2023

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge