# KING v. X. PONCE

> District Court, D. New Jersey · November 29, 2023

URL: https://www.frixlaw.com/law-library/cases/10277893

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** November 29, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

**NOT FOR PUBLICATION ECF NO. 35

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

:
MARKIESE KING, : CIV. NO. 21-5628 (RMB/AMD)
:
Plaintiff, : OPINION
:
v. :
:
XAVIER PONCE, et al., :
:
Defendants :
______________________________

APPEARANCES:

Mark A. Gulbranson, Jr., Esq.
Katherine D. Hartman, Esq.
Attorneys Hartman, Chartered
68 E. Main Street
Moorestown, NJ 08057-1590
Pro Bono Counsel on behalf of Plaintiff

Kristin Lynn Vassallo, Assistant United States Attorney
Thandiwe Boylan, Assistant United States Attorney
Office of the U.S. Attorney, District of New Jersey
970 Broad Street
Newark, NJ 07102
On behalf of Defendants
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court upon the motion to dismiss Plaintiff’s
amended complaint under Fed. R. Civ. P. 12(b)(6) filed by Defendants Xavier
Ponce, Dr. Kimberly Kodger, Michael Fernandez, Bernard Winn, Cheryl Rogers-
Gallam, Randy Rodriguez, Jose Frias, Jason Montgomery, and Kevin Bullock (Mot.
to Dismiss, Dkt. No. 35; Defs’ Brief, Dkt. No. 35-3), Plaintiff’s brief in opposition to
Defendants’ motion to dismiss (Pl’s Brief, Dkt. No. 44), and Defendants’ reply brief

in further support of Defendants’ motion to dismiss (Defs’ Reply Brief, Dkt. 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 dismiss the amended complaint for failure to state a Bivens claim.

I. THE AMENDED COMPLAINT
Plaintiff filed a pro se amended complaint in this matter on or about May 12,
2022, and alleges the following. (Am. Compl., Dkt. No. 22.) In September 2020,
Plaintiff was incarcerated in FCI Fort Dix, where he had a job with UNICOR. (Id.
at 3, ¶¶ 1-2.) One morning, Defendant Xavier Ponce (“Ponce”) called Plaintiff into

his office and, with a creepy grin on his face, told Plaintiff that a source had told him
Plaintiff was in a dark room with a transgender person. (Id. at 3, ¶¶ 3-6.) On another
occasion, Ponce walked by Plaintiff’s workstation, with the same creepy grin, and
said he had heard Plaintiff was out all night with “the transgenders.” (Id. at 4, ¶¶ 7-
12.) The following day, Ponce told everyone in the UNICOR factory that Plaintiff

had been in a dark room with a transgender person. (Id. at 4, ¶ 13.) Plaintiff asked
Ponce to stop spreading misinformation, and Ponce responded with lewd questions
about the alleged sexual encounter, and grabbed Plaintiff’s hand and caressed it in a
sexual manner. (Id. at 4, ¶¶ 13-23.) Plaintiff left the office immediately. (Id. at 4, ¶
24.)
The next day, Plaintiff went to speak to Defendant Winn (“Winn”) about the
incident with Ponce, and Winn referred Plaintiff to the Psychology Department. (Id.
at 4, ¶¶ 25-26.) A staff member, who went by “Ms. W.,” took a statement from

Plaintiff, and asked him if he wanted to file a PREA [Prison Rape Elimination Act]
complaint. (Id. at 4, ¶¶ 26-28.) After Associate Warden Kodger told Ms. W. that
Plaintiff’s statement fell within PREA, Plaintiff decided to make a PREA complaint
against Ponce. (Id. at 5, ¶¶ 30-31.) Plaintiff also met with Lt. Fernandez, who took

a statement from him, took pictures of his upper body, and sent Plaintiff to the
medical department, where a doctor took his statement. (Id. at 5, ¶¶ 32-33.)
Beginning the following day, Ponce began to harass Plaintiff by searching his
cell and body and writing him up for no reason. (Id. at 5, ¶¶ 34-35.) Plaintiff
reported the harassment to Ms. W. and the Psychology Department but nothing was

done. (Id. at 5, ¶ 36.) For months Plaintiff complained about Ponce’s continued
harassment in retaliation for filing a PREA complaint, but the warden and Associate
Warden Kodger refused to remove Ponce or Plaintiff from UNICOR. (Id. at 5, ¶¶
40-42.)
From September 30, 2020, to October 21, 2020, Plaintiff was sent to the SHU

pending a PREA investigation against inmate Anthony Riker. (Id. at 6, ¶ 43.) While
in the SHU, Lt. Fernandez interviewed Plaintiff again, and asked if he thought
Ponce had put Riker “up to this,” to which King replied, “yes.” (Id. at 6, ¶¶ 44-49.)
Plaintiff reported this to Ms. W, who added it to Plaintiff’s PREA complaint but said
she there was nothing more she could do. (Id. at 6, ¶ 51.)
In January 2021, Plaintiff explained his situation to Jane Doe Secretary,
whom he recognized from the Psychology Unit, but she was working as an officer on
his unit. (Id. at 6, ¶¶ 52-54.) She referred him to “Compound Lt. Morocco,” who

was angry and aggressive toward Plaintiff. (Id. at 6, ¶¶ 55-58.) Plaintiff lied to Lt.
Morocco, denying that he felt his life was in danger, because he was afraid of Lt.
Morocco. (Id. at 7, ¶ 61.) Lt. Morocco told Plaintiff to return to his unit and not to
discuss “psychology” issues with Jane Doe Secretary. (Id. at 6-7, ¶ 62.) Ponce

continued to harass Plaintiff, and Plaintiff continued to report him, which caused
Plaintiff to feel stressed, scared and suicidal. (Id. at 7, ¶¶ 65-68.)
Ponce conducted an aggressive body search on Plaintiff in front of others, for
no reason. Plaintiff reported this to Ms. W. (Id. at 7, ¶¶ 69-71.) On March 3, 2021,
Plaintiff quit his UNICOR job because he felt unsafe and humiliated in Ponce’s

presence. (Id. at 7, ¶ 72.) Plaintiff felt hopeless, depressed and wanted to die, which
he reported to Ms. W, but she could only add his complaints to his PREA complaint.
(Id. at 7, ¶¶ 75-78.) Plaintiff filed a BP-8 grievance form with his unit team, but they
returned it to him unanswered with a BP-9 form, which was returned to him with a
BP-10 form. (Id. at 8, ¶¶ 80-83.) Plaintiff never received a response to any of these

grievances. (Id. at 8, ¶ 84.) Plaintiff wrote to a number of outside agencies, including
OIG, the “PREA Auditor of America,” and this Court, about how FCI Fort Dix
failed to help him with his PREA situation. (Id. at 8, ¶¶ 85-86.)
Plaintiff asserts three causes of action in his amended complaint: (1) a First
Amendment retaliation claim against Ponce for harassment by filing false reports
and spreading misinformation about Plaintiff’s sexual orientation, after Plaintiff filed
a PREA complaint against him; (2) Fifth Amendment due process claims against

Associate Warden Kodger, Lt. Fernandez, Lt. Morocco, and John Doe defendants
for failing to investigate Ponce’s sexual harassment or remove him from UNICOR,
in violation of BOP Program Statement 5324 and BOP regulations; and (3) an
Eighth Amendment claims against all Defendants for failing to protect Plaintiff from
Ponce’s sexual harassment, failing to remove Ponce from UNICOR, and failing to

investigate or prevent Ponce’s continued harassment. (Id. at 8-12.) For relief, King
seeks damages and an injunction1 enforcing PREA regulations and BOP Program
Statement 5324. (Id. at 12-13.)
II. DISCUSSION

A. 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

1 Defendants assert injunctive relief is not available under Bivens (Defs’ Brief, Dkt. No. 35-3
at 11 n. 1). Plaintiff did not address this issue. “The only remedy available in a Bivens
action is an award for monetary damages from defendants in their individual capacities.”
Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007). The parties left open whether there is
another basis for this Court’s jurisdiction over Plaintiff’s claims for injunctive relief.
Therefore, this Court considers only Plaintiff’s Bivens claims for damages.
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. “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” Palakovic v. Wetzel, 854 F.3d 209, 219–20 (3d Cir. 2017) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted in
Palakovic). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. Plausibility is “more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.
B. The Parties’ Arguments
Defendants seeks dismissal of the amended complaint for two separate reasons:

(1) the Court should not extend a Bivens damages remedy to Plaintiff’s First, Fifth, and
Eighth Amendment claims; and (2) Defendants are entitled to qualified immunity on
Plaintiff’s claims. (Defs.’ Brief, Dkt. No. 35-3 at 2.) Defendants contend the Supreme
Court has determined that Bivens does not extend to a First Amendment retaliation
claim. (Id. at 15-16.) Defendants further argue that Plaintiff’s Fifth and Eighth

Amendment claims each present a new Bivens context, and should be dismissed
because special factors counsel hesitation in extending Bivens in these new contexts.
(Id. at 16-24.) Finally, Defendants submit they are entitled to qualified immunity on
each of Plaintiff’s claims. (Id. at 25-29.)
In opposition to Defendants’ motion to dismiss, Plaintiff asserts that the facts
pled in the amended complaint are not materially different from cases where the
Supreme Court has extended Bivens liability. (Pl’s Brief, Dkt. No. 44 at 5-8.) Even if

the Court finds Plaintiff’s claims present a new Bivens context, Plaintiff argues that
special factors do not counsel hesitation in extending a Bivens damages remedy because
Plaintiff was unable to obtain a remedy through the BOP Administrative Remedy
Program or any other avenue. (Id. at 8-10.) Plaintiff also opposes relief on qualified

immunity because Defendants had a duty to intervene in Ponce’s harassment of
Plaintiff, and discovery is necessary to show Defendants’ deliberate indifference to
Plaintiff’s safety. (Id. at 10-11.)
Defendants, in their reply brief, assert Plaintiff failed to acknowledge that the
Supreme Court, in Egbert v. Boule,2 held there is no Bivens cause of action for a First

Amendment Retaliation claim. (Defs’ Reply Brief, Dkt. No. 47 at 6.) Additionally,
Defendants contend Plaintiff failed to address whether his Fifth Amendment claims
presents a new Bivens context, where special factors counsel hesitation in implying a
Bivens damages remedy. Defendants also disagree with Plaintiff’s argument that his
Eighth Amendment claims of failure to protect do not present a new Bivens context.

(Id. at 6-11.) Finally, Defendants assert they are entitled to qualified immunity because
Plaintiff failed to plausibly allege any constitutional violation. (Defendants’ Reply
Brief, Dkt. No. 47 at 12-13.)

2 142 S. Ct. 1793 (2022).
1. Whether the Court Should Imply a Bivens Damages Remedy
for Plaintiff’s First Amendment Retaliation Claim

Plaintiff, a federal prisoner, seeks money damages against Ponce, a federal
actor, for retaliating against Plaintiff after he filed a PREA complaint, see 34 U.S.C. §
30302 et. seq., against Ponce in FCI Fort Dix. “Although § 1983 gives plaintiffs the
statutory authority to sue state officials for money damages for constitutional
violations, see 42 U.S.C. § 1983, there is no statutory counterpart to sue federal
officials.” Mays v. Smith, 70 F.4th 198, 202 (4th Cir. 2023). In three prior cases, the
Supreme Court has implied a cause of actions for damages under the Constitution,

where no statutory cause of action existed for claims against federal actors. Egbert, 142
S. Ct. at 1802. The Court identified those three cases: Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) (implying a damages remedy
for a Fourth Amendment unreasonable search and seizure claim); Davis v. Passman,
442 U.S. 228 (1979) (implying a damages remedy for a Fifth Amendment claim based

on gender-based discrimination); and Carlson v. Green, 446 U.S. 14 (1980) (implying
damages remedy for an Eighth Amendment claim of deliberate indifference to a
prisoner’s serious medical need).
In 2022, the Supreme Court in Egbert stated that if “called to decide Bivens
today, we would decline to discover any implied causes of action in the Constitution.”

142 S. Ct. 1793, 1802-1803, 1809. Nonetheless, the Court retained the familiar two-
step test for courts to determine whether to imply a damages remedy against federal
actors for Constitutional violations: (1) courts must first ask whether the case presents
“a new Bivens context” and, if so (2) determine whether there are “‘special factors’
indicating that the Judiciary is at least arguably less equipped than Congress to ‘weigh

the costs and benefits of allowing a damages action to proceed.’” Id. at 1803. Tellingly,
the Court stated, “in all but the most unusual circumstances, prescribing a cause of
action is a job for Congress, not the courts[.]” Id. at 1800.
Under the first step, the “new-context inquiry is easily satisfied[.]” Id. A new

context is any context “different in a meaningful way” from the three cases in which
the Supreme Court has implied a damages action. Id. (quoting Ziglar v. Abbasi, 582
U.S. 120, 139-40 (2017)).
A case might differ in a meaningful way because of the rank
of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to the
problem or emergency to be confronted; the statutory or
other legal mandate under which the officer was operating;
the risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.

Abbasi, 137 S. Ct. at 1860.
If a case presents a new Bivens context, courts may not extend Bivens if any single
factor counsels against a judicially created damages remedy. Egbert, 142 S. Ct. at 1803.
Moreover, the two 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.”
Id. “If there is even a single ‘reason to pause before applying Bivens in a new context,’
a court may not recognize a Bivens remedy.” Id. (quoting Hernandez v. Mesa, 140 S. Ct.
735, 743 (2020)). Special factors that counsel hesitation in implying a Bivens remedy
include whether the court can predict the systemwide consequences of implying a

damages remedy; and whether Congress has provided or authorized the Executive
Branch to provide an alternative remedial structure, even if the remedy does not
provide complete relief. Id. at 1804 (citations omitted). Ultimately, the question is
which political branch is better equipped to decide the available remedies. Id.

(citations omitted). The Court has “recognized that Congress is best positioned to
evaluate ‘whether, and the extent to which, monetary and other liabilities should be
imposed upon individual officers and employees of the Federal Government’ based on
constitutional torts.” Hernandez, 140 S. Ct. at 742 (quoting Abbasi, 137 S. Ct. at 1856).
In Egbert, the Supreme Court determined that courts should not imply a Bivens

remedy for any First Amendment retaliation claim because “there are many reasons
to think that Congress, not the courts, are better suited to authorize such a damages
remedy.” 142 S. Ct. at 1807. Therefore, the Court will grant Defendants’ motion to
dismiss Plaintiff’s First Amendment retaliation claim(s) for damages.
2. Whether the Court should imply a Bivens remedy for Plaintiff’s
Fifth Amendment Due Process Claims

Plaintiff asserts that PREA regulations and BOP Program Statement 5324
create a due process right for investigation of a prisoner’s claim of sexual harassment
and disciplinary action against a prison employee for sexually harassing an inmate.
(Am. Compl., Dkt. No. 22 at 9-10.) Plaintiff alleges Defendants failed to investigate
or take appropriate action under these regulatory standards and policy statement. The
only similarity between Plaintiff’s claims and one of the three cases where the Supreme
Court implied a Bivens damages remedy is that Davis involved a claim of gender-based

discrimination. Here, Defendants are prison officials guided by BOP regulations and
policies concerning PREA complaints. Unlike the employer-employee relationship
between a Congressman and a staff member, courts “must accord substantial
deference to the professional judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections system and for

determining the most appropriate means to accomplish them[.]” Overton v. Bazzetta,
539 U.S. 126, 132 (2003). Based on the federal actors involved and context of the
discrimination claims, Plaintiff’s Fifth Amendment claims are meaningfully different
from Davis. Thus, the Court must determine whether special factors counsel hesitation

in implying a Bivens remedy in this new context.
Before extending a Bivens remedy in a new context, this Court must consider
whether: (1) there is “any alternative, existing process for protecting the injured
party’s interests” or (2) there exists other “special factors counselling hesitation in
the absence of affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857-58.

Defendants submit there are existing alternatives for protecting Plaintiff’s interests,
and there are several factors that counsel hesitation in implying a damages remedy for
Plaintiff’s Fifth Amendment due process claims. Defendants submit the BOP
administrative remedy program and the Federal Tort Claims Act are existing remedial
alternatives to an action for damages. (Defs’ Brief, Dkt. No. 35-3 at 21.) Factors that
counsel hesitation in implying a damages remedy in this new context, according to
Defendants, include: 1) separation of powers principles, based on Congress’ failure to
create a damages remedy for federal prisoners and delegating the protection of federal

prisoners to the Bureau of Prisons under 18 U.S.C. § 4042(a)(3) and PREA, 34 U.S.C.
§§ 30301 et seq., which does not include a private right of action for damages; (2) the
systemwide costs and burden on the Government of a damages action in the prison
context, and harmful effects on the discharge of prison officials’ duties; and (3) that
the sheer volume of potential suits are difficult to administer, with 150,000 inmates in

BOP custody and 35,000 BOP employees. (Id. at 21-24.)
Plaintiff argues that he availed himself of the BOP administrative remedy
program and PREA protections, but nothing was done to protect him. (Pl’s Brief, Dkt.
No. 44 at 8-9.) Therefore, these alternatives were not available to him, and should not

preclude a damages remedy. Plaintiff also contends that special factors do not counsel
hesitation in extending a damages remedy because the Third Circuit has recognized
that the Prison Litigation Reform Act (“PLRA”) “governs the process by which federal
prisoners may bring Bivens claims,” and thus “cannot rightly be seen as dictating that
a Bivens cause of action should not exist at all.” (Id. at 10, quoting Mack v. Yost, 968

F.3d at 323-24 (3d Cir. 2020) (internal quotation marks and citation omitted)).
In their reply brief, Defendants assert that, pursuant to Egbert, courts may no
longer recognize a Bivens damage remedy if “there is any rational reason (even one) to
think that Congress is better suited to weigh the costs and benefits of allowing a
damages action to proceed.” (Defs’ Reply Brief, Dkt. No. 47 at 9, citing Egbert, 142 S.
Ct. at 1805 (citation omitted)). Defendants contend they have offered several rational
reasons that Congress is better suited to determine whether a damages action may
proceed, including separation of powers concerns, the availability of alternative

remedial processes, and they systemwide costs and burden of creating a damages
remedy. (Id.)
Defendants’ arguments are well-supported by Egbert. The existence of
alternative remedial processes alone are sufficient to counsel hesitation in implying a
Bivens damages remedy to Plaintiff’s Fifth Amendment claims. The Supreme Court

explained:
our cases hold that a court may not fashion a Bivens remedy
if Congress already has provided, or has authorized the
Executive to provide, “an alternative remedial structure.”
Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858; see also
Schweiker [v. Chilicky], 487 U.S. [412,] 425, 108 S.Ct. 2460
[1988]. If there are alternative remedial structures in place,
“that alone,” like any special factor, is reason enough to
“limit the power of the Judiciary to infer a new Bivens cause
of action.” Ziglar, 582 U. S., at ––––, 137 S.Ct., at 1858.

Egbert, 596 U.S. at 493. The Court stated “[i]n Malesko, we explained that Bivens relief
was unavailable because federal prisoners could, among other options, file grievances
through an “Administrative Remedy Program.” Id. at 497 (citing Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 74 (2001)). The Court added,
the question whether a given remedy is adequate is a
legislative determination that must be left to Congress, not
the federal courts. So long as Congress or the Executive has
created a remedial process that it finds sufficient to secure
an adequate level of deterrence, the courts cannot second-
guess that calibration by superimposing a Bivens remedy.
That is true even if a court independently concludes that the
Government's procedures are “not as effective as an
individual damages remedy.” Bush [v. Lucas], 462 U.S.
[367,] 372, 103 S. Ct. 2404 [1983].

Egbert, 596 U.S. at 498.
Therefore, Congress’ delegation of power to the BOP to “have charge of the
management and regulation of all Federal penal and correctional institutions,” 18
U.S.C. § 4042(a)(1), and the BOP’s creation of an administrative remedy system for
prisoners’ grievances, 28 C.F.R. § 542.10 et seq., foreclose a Bivens damages remedy for
Plaintiff’s Fifth Amendment claims. Mack v. Yost, 968 F.3d 311, 321 (3d Cir. 2020)
(where plaintiff had access to some redress for retaliation claim, “BOP's
administrative remedy program offers a ‘convincing reason,’ Abbasi, 137 S. Ct. at 1858,
for us to refrain from creating a new damages remedy against federal prison officials”);

see also Bulger v. Hurwitz, 62 F.4th 127, 140 (4th Cir. 2023) (existence of BOP
administrative remedies constituted a “special factor” counseling against the extension
of a Bivens remedy into a new context of failure to protect inmate from violence). The
legislative and executive branches have created a remedial process that the courts may
not second-guess. This Court will not imply a Bivens remedy for Plaintiff’s Fifth

Amendment claims.
3. Whether the Court should imply a Bivens remedy for Plaintiff’s
Eighth Amendment Failure to Protect Claims

Plaintiff contends that his Eighth Amendment failure to protect claims do not
arise in a new Bivens context, his claims are substantially the same as that in Carlson,
where the Supreme Court implied a damages remedy for a federal prisoner who
alleged the prison failed to provide him with proper medical attention. (Pl’s Brief, Dkt.
No. 44 at 6, citing Carlson, 446 U.S. 14 (1980)). Plaintiff likens his case to Carlson

because “in both cases the claims allege a deliberate indifference and failure by prison
officials to intervene, which resulted in harm to the plaintiff-prisoner.” (Pl’s Brief, Dkt.
No. 44 at 6-7.)
Plaintiff further relies on Bistrian v. Levi, 912 F.3d 79, 90-91 (3d Cir. 2018),
where the Third Circuit held “an inmate’s claim that prison officials violated his Fifth

Amendment rights by failing to protect him against a known risk of substantial harm
does not present a new Bivens context.” (Pl’s Brief, Dkt. No. 44 at 7.) The Third
Circuit concluded that the Supreme Court “recognized a failure-to-protect claim under
the Eighth Amendment.” (Id., citing Farmer v. Brennan, 511 U.S. 825, 829-34 (1994)).

Plaintiff submits there is no reason to assume the Supreme Court in Egbert overruled
Farmer. (Id. at 8.)
Defendants disagree. First, Defendants contend that Plaintiff’s claims bears no
resemblance to the three cases where the Supreme Court has recognized a Bivens
damages remedy, Bivens, Davis or Carlson. (Defs’ Reply Brief, Dkt. No. 47 at 6.) The

plaintiff in Carlson alleged that prison staff knew her son had a serious, chronic
asthmatic condition, but
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.

Carlson, 446 U.S. at 17 n.1. Here, Plaintiff’s Eighth Amendment claims are based on
the defendants’ failure to protect him from a prison employee who repeatedly gave
him creepy looks, made suggestive comments, spread rumors in the prison about his
sexual orientation, and caressed his hand in a sexual manner. Unlike Carlson, where
the issue involved the prison’s response to a medical emergency, the defendants’
actions were guided by PREA and BOP Program Statement 5324.3 This case presents
a new Bivens context from Carlson, and the existence of the BOP Administrative
Remedy Program counsels hesitation in implying a damages remedy in the new
context. Accord, Chambers v. C. Herrera, 78 F.4th 1100, 1106 (9th Cir. 2023) (“[n]o case
has extended Bivens to claims that BOP employees violated the Eighth Amendment by

failing to protect an inmate from other staff members). Therefore, this Court turns to
whether the Supreme Court implied a Bivens damages remedy in Farmer, and whether
Plaintiff’s Eighth Amendment failure to protect claims arise in the same context.
In Farmer, the plaintiff alleged BOP officials and employees “despite knowledge
that the penitentiary had a violent environment and a history of inmate assaults, and

despite knowledge that petitioner, as a transsexual who ‘projects feminine
characteristics,’ would be particularly vulnerable to sexual attack by some USP–Terre

3 See BOP Program Statement 5324.12, Sexually Abusive Behavior Prevention and
Intervention Program. Available at
https://www.bop.gov/PublicInfo/execute/policysearch?todo=query# (last visited
November 6, 2023).
Haute inmates” failed to protect him from rape and beating by other inmates. Farmer,
511 U.S. at 830-31 (1994). The Supreme Court granted certiorari “because Courts of
Appeals had adopted inconsistent tests for ‘deliberate indifference.’” Id. at 832. The

Court did not address whether Farmer presented a new Bivens context or whether
special factors counseled hesitation in implying a Bivens damages remedy, although
the plaintiff sought damages and injunctive relief. Id. at 831.
Defendants argue that, after Egbert, plaintiffs may no longer rely on Third

Circuit precedent holding the Supreme Court implied a Bivens damages remedy for
Eighth Amendment claims of failure to protect inmate safety in Farmer. (Defs’ Brief,
Dkt. No. 47 at 8.) In Egbert, the Court recognized only three cases where it had implied
a Bivens damages remedy. (Id., citing Egbert, 142 S. Ct. at 1803.) Alternatively,
Defendants argue this case presents a new Bivens context because the plaintiff in Farmer

was a transgender woman with female characteristics, which put her in danger of
inmate violence in the general prison population in a male prison, and plaintiff here is
not transgender, nor was he assaulted by inmates in prison.
In Egbert, the Court stated, “[s]ince these cases [Bivens, Davis and Carlson] the
Court has not implied additional causes of action under the Constitution.” The last of

these three Supreme Court cases, Carlson, was decided in 1980. Farmer was decided in
1994. In Egbert, the Court did not recognize Farmer as a case where it implied a Bivens
damages remedy. Moreover, “the [Supreme] Court has ‘consistently rebuffed’ every
request—12 of them now—to find implied causes of action against federal officials for
money damages under the Constitution.” Mays v. Smith, 70 F.4th 198, 202 (4th Cir.
2023) (quoting Tate v. Harmon, 54 F.4th 839, 843 (4th Cir. 2022) (quoting Hernandez v.
Mesa, ––– U.S. ––––, 140 S. Ct. 735, 743)). Thus, it is unlikely the Court in Egbert

simply overlooked Farmer in identifying previous cases where the Court implied a
Bivens damages remedy. Even assuming for sake of argument that the Supreme Court
implied a Bivens damages remedy in Farmer, this case presents a new Bivens context.
First, the allegations here are materially distinguishable from Farmer because

the protection afforded by the Eighth Amendment in Farmer was from inmate on
inmate violence, rather than sexual harassment by a corrections officer. See Berry v.
Fitzgerald, No. CV174904NLHAMD, 2023 WL 2424181, at *5 (D.N.J. Mar. 9, 2023)
(distinguishing Farmer because prisoner’s allegations of sexual assault by BOP
corrections officers “were not contemplated by the Supreme Court's decisions in

Bivens, Davis, or Carlson”).
Second, the Court in Egbert noted that the two questions courts must ask to
determine whether to imply a Bivens damages remedy “often resolve to a single
question: whether there is any reason to think that Congress might be better equipped
to create a damages remedy.” 596 U.S. at 492. Therefore, even where the factual

allegations may be similar, a case presents a new Bivens context if there is a reason to
think Congress should make the decision to provide a damages remedy.
In analyzing whether there is a rational reason to believe Congress is better
equipped to create a damages remedy, “the focus is not on the individual's recovery at
all. It is on deterrence.” Xi v. Haugen, 68 F.4th 824, 837 (3d Cir. 2023) (quoting Egbert,
142 S. Ct. at 1807.) Courts “cannot second-guess” the decision of Congress or the
Executive when those branches of government have “created a remedial process that

it finds sufficient to secure an adequate level of deterrence.” Egbert, 596 U.S. at 498.
“In light of the PREA's purpose—to ‘establish a zero-tolerance standard for the
incidence of [sexual assault] in prisons in the United States,” 34 U.S.C. § 30302(1)—
and the numerous federal regulations governing reporting procedure and providing
that the presumptive discipline for violations by staff members is termination [28

C.F.R. § 115.76(b)],” courts cannot second-guess whether PREA, and BOP
regulations implementing PREA, provide an adequate level of deterrence for
Plaintiff’s Eighth Amendment failure to protect claim. Accord, Bivens v. Blaike, No. 21-
CV-00783-PAB-NYW, 2022 WL 2158984, at *7 (D. Colo. June 15, 2022), report and

recommendation adopted, No. 21-CV-00783-PAB-NYW, 2022 WL 2716533 (D. Colo.
July 13, 2022), appeal dismissed sub nom. Bivens v. McGaugh, No. 22-1228, 2022 WL
18494647 (10th Cir. Sept. 12, 2022); Chambers v. C. Herrera, 78 F.4th 1100, 1107 (9th
Cir. 2023) (“the PLRA gives authority to the BOP, as part of the Executive Branch, to
structure grievance procedures”) (citing Jones v. Bock, 549 U.S. 199, 218 (2007) (noting

that rules “are defined not by the PLRA, but by the prison grievance process itself”);
see also Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022) (declining to imply
Bivens damages remedy for Eighth Amendment excessive force claim in prison context
where “the Supreme Court has long since described the BOP Administrative Remedy
Program as an adequate remedy.”)
Therefore, this Court concludes that Plaintiff’s Eighth Amendment failure to
protect claim presents a new Bivens context, and at least one special factor—all that is
needed—the existence of the BOP’s administrative remedy program, counsels against

creating a Bivens damages remedy here. Therefore, the Court will grant Defendants’
motion to dismiss the Bivens claims alleged in the complaint.
III. CONCLUSION
Having determined the Court should not imply a Bivens remedy for Plaintiff’s

First, Fifth and Eighth Amendment claims in the amended complaint, the Court need
not reach Defendants’ argument that they are entitled to qualified immunity. The
Court will grant Defendants’ motion to dismiss the Bivens claims because the amended
complaint fails to state a cognizable Bivens claim.

An appropriate Order follows.
Date: November 29, 2023
s/Renée Marie Bumb
RENÉE MARIE BUMB
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10277893. Public record. Not legal advice.