EADS v. UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

CHRISTOPHER JUSTIN EADS,

Plaintiff,

v. Civil No. 21-17369 (NLH/MJS)

UNITED STATES OF AMERICA, et

al.,

Defendants.

O P I N I O N & O R D E R

This matter comes before the Court on the motion for leave to

file a second amended complaint (“Motion”) brought by plaintiff

Christopher Justin Eads (“Plaintiff”), an inmate previously

incarcerated at FCI Fairton, a Bureau of Prisons (“BOP”) facility

in Fairton, New Jersey [ECF No. 46]. Defendant United States of

America (“the Government”) and individual defendants Health

Services Administrator (“HSA”) C. Hansen, Warden Bergami,

Lieutenant Wieler,1 and Counselor Freeman (collectively, “BOP

defendants”) filed their brief opposing the motion on July 3, 2023

[ECF No. 49], to which Plaintiff’s reply was filed on August 31,

1 Defendant Wieler’s name is spelled “Weiler” in Plaintiff’s

Motion. Counsel shall confer further on the proper spelling of

this name.

1

2023 [ECF No. 61]. The Court has considered the papers submitted

in support of and in opposition to the motion and has decided the

matter without oral argument pursuant to Fed. R. Civ. P. 78. For

the reasons set forth below, Plaintiff’s motion is GRANTED IN PART

AND DENIED IN PART.

I. Background

The following facts are taken from Plaintiff’s proposed

second amended complaint [ECF No. 46-2], which the Court reads

with all reasonable inferences drawn in Plaintiff’s favor.2

Plaintiff’s claims arise out of an interrelated series of

events stemming from the BOP defendants’ alleged failure to adhere

to FCI Fairton’s COVID-19 protocols, causing Plaintiff to contract

COVID-19 in June 2020. ECF No. 46-2 ¶¶ 10-14. According to the

complaint, after Plaintiff contracted COVID, he began suffering

from chronic shortness of breath that made him “unable to breathe,

lightheaded and dizzy,” and he “repeatedly fainted” as a result.

Id. ¶ 15. Although Plaintiff “submitted over a dozen requests for

urgent medical treatment” over “a period of four months,” the staff

at FCI Fairton, including the BOP defendants, “repeatedly ignored

2 Defendants’ opposition to the motion is based on the argument

that Plaintiff’s proposed amendment is futile. See Yah’Torah v.

Hicks, Civ. No. 15-5501, 2016 WL 6909103, at *3 (D.N.J. Nov. 23,

2016) (“In order to determine if a motion to amend is futile, the

Court must accept as true all the facts alleged in the pleading

and draw all reasonable inferences in favor of the plaintiff.”).

2

[Plaintiff’s] requests for urgent medical attention and did not

provide the required medical care.” Id. ¶¶ 16-17. Plaintiff was

ultimately seen by medical staff in October 2020, at which time

staff also diagnosed him with “several additional health issues,

including high blood pressure, anemia, and blood sugar issues.”

Id. ¶ 20. Despite the diagnoses, Plaintiff did not receive

treatment for any of these issues and he was not given high blood

pressure medication until January 2021. Id. ¶ 21. Consequently,

Plaintiff experienced “continued dizziness and fainting,” and he

sustained “head trauma” after a fainting spell caused him to hit

his head. Id.

Following Plaintiff’s head injury, BOP staff, including the

BOP defendants, “threatened” Plaintiff and instructed him “not to

seek further treatment.” Id. ¶ 22. In particular, Plaintiff alleges

that defendant Hansen “cornered [Plaintiff] in her office, trapped

and would not let him leave, cursed at and verbally abused

[Plaintiff]” for continuing to submit requests for care. Id. ¶ 23.

She further promised that Plaintiff would not receive additional

medical attention “[n]ow or ever.” Id. Defendant Wieler also

“reiterated” this threat and “physically assaulted [Plaintiff]

causing him further head trauma.” Id. ¶ 24. When Plaintiff sought

care against their advice, he was transferred to the prison’s

“Special Housing Unit (SHU).” Id. ¶ 26.

3

Plaintiff, acting pro se, filed his initial complaint on

September 22, 2021. ECF No. 1. Shortly thereafter, on October 6,

2021, Plaintiff moved to file an amended complaint. ECF No. 2.

Plaintiff’s first amended complaint was filed on March 10, 2022.

ECF No. 13. On February 17, 2023, the Court entered an order sua

sponte appointing pro bono counsel for Plaintiff. ECF No. 33. On

April 25, 2023, the Court entered another order appointing Alan S.

Naar, Esq., of the law firm Greenbaum, Rowe, Smith & Davis, LLP,

to represent Plaintiff in this matter.3 ECF No. 41. This Motion

was filed on June 23, 2023. ECF No. 46. Defendants’ opposition to

the Motion was filed on July 3, 2023. ECF No. 49. Plaintiff’s reply

was filed on August 31, 2023. ECF No. 61.

As amended, Plaintiff’s proposed complaint raises the

following claims: negligence by and through all defendants (Count

I); medical malpractice by and through the conduct of defendant

Hansen and other medical staff (Count II); intentional infliction

of emotional distress by and through the conduct of defendants

Hansen and Wieler (Count III); deliberate indifference to

Plaintiff’s serious medical needs by defendants Hansen, Wieler,

Bergami, and as-yet unidentified lieutenants (Count IV); cruel and

unusual punishment and retaliation (Count V); and denial of access

3 On April 26, 2023, Meredith C. Sherman, Esq., entered her

appearance on behalf of Plaintiff and on May 31, 2023, Mitchell J.

Horner, Esq., entered his appearance. ECF Nos. 42, 43.

4

to legal books and records (Count VI). ECF No. 46-2 ¶¶ 27-100.4

Plaintiff seeks declaratory judgment in his favor on all counts,

compensatory and punitive damages against all defendants, as well

as injunctive relief in the form of ordering Plaintiff removed

from the Special Housing Unit and prohibiting further retaliation

against Plaintiff. Id. ¶¶ 101-07.

Defendants do not oppose Plaintiff’s motion for leave to amend

Counts I and II, but do oppose the amendment of Counts III through

VI on several grounds. ECF No. 49 at 1.5 First, the defendants

argue that Plaintiff has failed to state a valid Bivens6 claim

against the BOP defendants under Ziglar v. Abbasi, 582 U.S. 120

(2017) and Egbert v. Boule, 596 U.S. 482 (2022), and therefore has

no remedy for any of his constitutional claims.7 ECF No. 49 at 10.

Second, the defendants argue that Plaintiff “has not plausibly

4 In the first amended complaint, Plaintiff’s claim of intentional

infliction of emotional distress named defendant Hansen only. ECF

No. 13 ¶ G. Furthermore, Counts V and VI are new additions proposed

by the Motion. ECF No. 46-2 ¶¶ 80-100.

5 For the purpose of this opinion, the Court adopts the page numbers

assigned by each party to their respective briefs.

6 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971).

7 Defendants characterize Plaintiff’s claims regarding

retaliation, denial of access to legal materials/counsel, cruel

and unusual punishment, and deliberate indifference as falling

within this category. ECF No. 49 at 9.

5

pled that Defendant Hansen’s conduct was extreme and outrageous,”

and Plaintiff has failed to exhaust available remedies regarding

the conduct of Defendant Wieler as required by the Federal Tort

Claims Act (“FTCA”). Id. at 1. Third, the defendants argue that

punitive damages are not available to Plaintiff against the United

States under the FTCA. Id. Fourth, the defendants argue that

Plaintiff failed to exhaust available administrative remedies

regarding his constitutional claims prior to bringing this suit,

and therefore his claims are barred under the Prison Litigation

Reform Act (“PLRA”). Id. at 1-2. Finally, the defendants argue

that the BOP defendants are entitled to qualified immunity against

Plaintiff’s deliberate indifference claims, since Plaintiff has

“failed to adequately plead a constitutional violation against

them and Plaintiff has not alleged the violation of a clearly

established right.” Id. at 2.

II. Discussion

Motions to amend pleadings are governed by Federal Rule of

Civil Procedure 15(a). Where, as here, a party seeks to amend their

complaint after responsive pleadings have been filed, the party

may do so “only with the opposing party’s written consent or the

court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15 states that

“[t]he court should freely give leave when justice so requires.”

Id. However, although “motions to amend pleadings should be

6

liberally granted,” Long v. Wilson, 393 F.3d 390, 400 (3d Cir.

2004), a court may deny the motion “where there is (1) undue delay,

(2) bad faith or dilatory motive, (3) undue prejudice, (4) repeated

failures to cure deficiencies, or (5) futility of amendment,”

Centennial Plaza Prop, LLC v. Trane U.S. Inc., Civ. No. 22-1262,

2023 WL 7403640, at *2 (D.N.J. Nov. 9, 2023) (citing Foman v.

Davis, 371 U.S. 178, 182 (1962)). “The decision to grant a motion

to amend a pleading rests in the sound discretion of the district

court.” Falco v. Zimmer, Civ. No. 13-1648, 2014 WL 12910938, at *1

(D.N.J. June 10, 2014) (citing Zenith Radio Corp. v. Hazeltine

Rsch., Inc., 401 U.S. 321, 330 (1971)).

The defendants’ arguments in opposition to the Motion center

on the futility of the proposed amendments. “Leave to amend a

complaint is futile when the complaint as amended would still be

properly dismissed or immediately subject to summary judgment for

the defendant.” Centennial Plaza Prop, LLC, 2023 WL 7403640, at *2

(quoting Am. Corp. Soc’y v. Valley Forge Ins. Co., 424 F. App’x

86, 90 (3d Cir. 2011)). “In determining whether a claim would be

futile, ‘the district court applies the same standard of legal

sufficiency as applies under [Federal] Rule [of Civil Procedure]

12(b)(6).’” Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238,

243 (3d Cir. 2010) (alterations in original) (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.

7

1997)). Thus, the party opposing the motion must demonstrate that

the alleged facts, as amended, are insufficient to “allow[] the

court to draw the reasonable inference that the defendant is liable

for the misconduct alleged.” See Yah’Torah, 2016 WL 6909103, at *2

(alteration in original) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

677 (2009)); see also Rhulen v. LG Chem Am., Inc., Civ. No. 16-

6924, 2018 WL 515851, at *2 (D.N.J. Jan. 23, 2018) (noting that

party opposing the motion carries heavy burden in establishing

futility of proposed amendment).

Plaintiff’s Constitutional Claims

As recently noted by the Third Circuit,

In Ziglar v. Abbasi, [582 U.S. 120] (2017), the

Supreme Court summarized the status of Bivens

jurisprudence. The Court emphasized that, although the

doctrine is a “settled,” “fixed principle in the law” in

certain spheres, “expanding the Bivens remedy is now a

‘disfavored’ judicial activity.” The Court then

prescribed a two-pronged inquiry for courts to follow in

deciding whether to recognize a Bivens remedy. First,

they must evaluate whether a case presents “a new Bivens

context,” meaning that it “is different in a meaningful

way from previous Bivens cases decided by [the Supreme]

Court.” The Abbasi Court named three previous cases in

which a Bivens remedy has been recognized: Bivens

itself, in addition to . . . Davis [v. Passman, 442 U.S.

228 (1979)] and Carlson [v. Green, 446 U.S. 14 (1980)].

Shorter v. United States, 12 F.4th 366, 372 (3d Cir. 2021) (second

alteration in original) (citations omitted) (quoting Ziglar, 582

U.S. at 134-35, 139).

8

The Supreme Court has only recognized an implied damages

remedy in three previous cases. Egbert v. Boule, 596 U.S. at 490.

First, in Bivens, the Supreme Court held “that a person claiming

to be the victim of an unlawful arrest and search could bring a

Fourth Amendment claim for damages against the responsible agents

even though no federal statute authorized such a claim.” Hernandez

v. Mesa, 140 S. Ct. 735, 741 (citing Bivens, 403 U.S. at 388).

Second, in Davis, the Supreme Court extended Bivens to recognize

a cause of action under the Fifth Amendment for a former

congressional staffer who was dismissed from employment on the

basis of her sex. Davis, 442 U.S. at 248-49. And finally, in

Carlson, the Supreme Court again extended Bivens to provide a cause

of action under the Eighth Amendment against prison officials who

failed to treat a federal prisoner’s asthma, resulting in the

prisoner’s death. Carlson, 446 U.S. at 18-23. “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, 582 U.S. at 131.

When a claim arises in a new Bivens context, “a Bivens remedy

is unavailable if 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.’” Egbert, 596 U.S. at 492 (quoting Ziglar, 582 U.S. at

9

136). A case presents a new Bivens context if it is

“‘meaningful[ly]’ different from the three cases in which the Court

has implied a damages action.” Egbert, 596 U.S. at 492 (alteration

in original) (quoting Ziglar, 582 U.S. at 139). “Meaningful

differences” may include, but are not limited to, factors such as

the ranks of the officers involved, the constitutional rights at

issue, the nature of the challenged conduct, the extent of judicial

guidance as to the appropriate conduct in a given situation, the

legal mandate under which the officer was operating, or the

presence of other factors that previous Bivens cases did not

consider. Ziglar, 582 U.S. at 139-40. “If a case does not present

a new Bivens context, the inquiry ends there, and a Bivens remedy

is available.” Berry v. Fitzgerald, Civ. No. 17-4904, 2023 WL

2424181, at *4 (D.N.J. Mar. 9, 2023) (quoting Shorter, 12 F.4th at

372).

Defendants assert that Plaintiff has not specified which

constitutional rights he seeks to enforce in Counts IV, V, and VI

of his proposed second amended complaint, but nevertheless contend

that Plaintiff’s claims “seemingly invoke the First, Fifth, and

Eighth Amendments of the United States Constitution.” ECF No. 49

at 12. Proceeding from that premise, Defendants argue that

Plaintiff’s proposed amendments would be futile because each of

Plaintiff’s constitutional claims presents a new Bivens context,

10

and no special circumstances exist that would permit judicial

extension of a Bivens remedy for Plaintiff’s claims. Id.

Retaliation (Count V)

Viewed in context, Plaintiff’s retaliation claims are clearly

raised under the Eighth Amendment.8 Count V of the proposed second

amended complaint is titled “Cruel and Unusual Punishment &

Retaliation.” ECF No. 46-2. Under that count, Plaintiff alleges he

was “placed wrongfully in the SHU in retaliation for his requests

that he be provided medical treatment.” Id. ¶ 84. While in the

SHU, Plaintiff allegedly has “little to no contact with the outside

world” and “spend[s] approximately 23 hours per day in [his] cell.”

Id. ¶¶ 82-83. Prison officials have allegedly “relayed that

[Plaintiff’s] placement in [the SHU] is indefinite” despite the

fact that “Plaintiff was never provided with any incident report,

policy violation, or any other documentation as to why he was

placed in the SHU.” Id. ¶¶ 85-86. Plaintiff alleges that his

“indefinite placement in isolation . . . continues to be mentally

and physically damaging and cruel and unusual.” Id. ¶ 87.

Moreover, Defendants have allegedly “escalated to retaliation

for the filing of [this] lawsuit by assaulting Plaintiff.” Id.

¶ 89. The proposed amendments describe several examples of

8 In light of the Court’s analysis, the Court finds it unnecessary

to address Defendants’ First and Fifth Amendment arguments.

11

Defendants’ alleged retaliation against him for continuing to

request medical care, including an incident in which defendant

Wieler allegedly “placed Plaintiff’s hands behind his back then

proceeded to kick Plaintiff in his back, sending him crashing into

the wall head[-]first.” Id. ¶ 90. Plaintiff also alleges an

incident in which “an unknown Lieutenant ha[d] provided

[Plaintiff] with cleaning solution to drink” under the guise that

it was “Kool-Aid,” which caused Plaintiff to “become ill.” Id.

¶ 94. Plaintiff asserts that these and other described incidents

of “retaliation and attempted retaliation against Plaintiff is

wrongful, cruel and unusual, and in violation of Plaintiff’s

constitutional rights.” Id. ¶ 95.

Defendants argue that the proposed amendment to Count V is

futile because “it is meaningfully different from Carlson, the

Supreme Court’s decision recognizing a Bivens remedy for an Eighth

Amendment deliberate indifference claim.” ECF No. 49 at 14.

Specifically, Defendants note that Plaintiff’s claims arise out of

“his initial and alleged ‘indefinite’ placement in the SHU, the

alleged assault by Defendant [Wieler], the threat of assault from

other inmates, and his allegedly being tricked into drinking

cleaning solution.” Id. at 15. While Defendants concede that the

allegations involve “serious misconduct,” Defendants assert that

“Carlson clearly did not involve its like.” Id. As a result,

12

Plaintiff has failed to state a cause of action under Bivens with

respect to Count V.

The Court agrees with Defendants in this regard. In Carlson,

an inmate’s estate alleged that prison officials failed to provide

the inmate with competent medical care following an asthma attack,

which ultimately resulted in the inmate’s death. 446 U.S. at 16

n.1. In that regard, the constitutional violation recognized in

Carlson arose out of deliberate indifference to a serious medical

need. Here, however, Count V of the proposed second amended

complaint alleges, essentially, a violation arising out of

allegedly unconstitutional conditions of confinement. See Farmer

v. Brennan, 511 U.S. 825, 832 (1994) (recognizing that the Eighth

Amendment requires prison officials to “provide humane conditions

of confinement”). The Supreme Court has not recognized a Bivens

cause of action for conditions of confinement claims. Berry, 2023

WL 2424181, at *4-5. Accordingly, the Court finds that Plaintiff’s

retaliation claims present a new Bivens context. See Hernandez,

140 S. Ct. at 743 (“A claim may arise in a new context even if it

is based on the same constitutional provision as a claim in a case

in which a damages remedy was previously recognized.”).

Because Count V concerns a new Bivens context, the Court next

considers “whether any ‘special factors counsel[] hesitation’ in

extending a Bivens remedy to [this] context.” Shorter, 12 F.4th at

13

372 (alteration in original) (quoting Ziglar, 582 U.S. at 135)).

“There may be many such factors, but two are particularly weighty:

the existence of an alternative remedial structure and separation-

of-powers principles.” Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir.

2018).

Here, both factors would suggest that a Bivens remedy is

unavailable as to Plaintiff’s claim in Count V. First, “[t]he

Supreme Court has held 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,”’” and

has concluded “that the BOP’s Administrative Remedy program

satisfies this requirement.” Berry, 2023 WL 2424181, at *6 (quoting

Egbert, 596 U.S. at 493).

Separate from the availability of administrative remedies,

the Third Circuit has already concluded in similar cases that

separation-of-powers concerns likewise foreclose a Bivens remedy

for this type of claim. In Mammana v. Barben, 856 F. App’x 411 (3d

Cir. 2021) (Mammana II), prison staff punished an inmate for

seeking medical care by placing him into administrative

segregation, where the inmate was “deprived of his clothing,

provided only ‘paper like’ coverings instead, denied bedding, and

exposed to low cell temperatures and constant bright lighting for

four days.” Mammana v. Fed. Bureau of Prisons, 934 F.3d 368, 370-

14

374 (3d Cir. 2019) (footnote omitted) (Mammana I). The Third

Circuit found that the plaintiff’s claims presented a new Bivens

context, and “significant separation-of-powers concerns” militated

against permitting a Bivens action to proceed. Mammana II, 856 F.

App’x at 415. The Third Circuit reasoned:

Candidly, [Mammana] asks for a new implied cause of

action to sue federal prison officials for

unconstitutional conditions of confinement, a step never

taken by the Supreme Court nor any circuit court.

“Heeding the reasoning in Abbasi, we must be reluctant

to ‘establish whole categories of cases in which federal

officers must defend against personal liability claims

in the complex sphere of litigation.’” Bistrian, 912

F.3d at 95 (quoting Abbasi, [582 U.S. at 136]).

Recognizing such a broad new category of claims would

step well into the lawmaking privilege delegated only to

Congress, and well over the bounds of our limited

constitutional power. . . .

That is a special factor counseling hesitation to

expand Bivens. Because we pause, we must “reject the

request” to recognize this new Bivens context.

Id. at 415-16 (footnote omitted).

The Mammana II court’s reasoning carries equal force here.

The Court further notes that Plaintiff’s claims regarding his

placement in the SHU implicate “executive policies” regarding

inmate discipline, which “threatens a large burden to both the

judiciary and prison officials.” Bistrian, 912 F.3d at 96

(declining to extend Bivens remedy to claim brought under First

Amendment for placement in SHU as retaliation for inmate’s lodging

complaints about officers’ conduct). “If there is even a single

15

‘reason to pause before applying Bivens in a new context,’ a court

may not recognize a Bivens remedy.” Berry, 2023 WL 2424181, at *5

(quoting Egbert, 596 U.S. at 492). Because there are many reasons

to pause before extending Bivens in this case, the Court finds

that Plaintiff’s amendment as to Count V is futile, and will

therefore DENY Plaintiff leave to amend as to that count.9

Deliberate Indifference (Count IV)

Defendants argue that Count IV of the proposed second amended

complaint is futile because Plaintiff’s deliberate indifference

claim is “meaningfully different from Carlson.” ECF No. 49 at 16.

Defendants reason that “[u]nlike Carlson, Plaintiff does not

allege to have suffered a life-threatening emergency that was

ignored, despite clear medical guidance, and resulted in a

fatality.” Id. at 17. Moreover, “Plaintiff admits that he was

treated by BOP medical staff for his complaints regarding

9 To the extent that Plaintiff seeks any monetary damages regarding

the alleged denial of access to legal materials (Count VI), the

Court notes that the amendment is futile because it similarly

presents a novel Bivens context. See Mammana II, 856 F. App’x at

415 (declining to recognize a Bivens cause of action for conditions

of confinement); see also Goldberg v. United States, Civ. No. 17-

6024, 2022 WL 833295, at *3 (D.N.J. Mar. 21, 2022) (declining to

recognize Bivens cause of action under First and Fifth Amendments

for denial of access to courts). To the extent that the proposed

amended complaint seeks permanent injunctive relief ordering

Plaintiff’s release from the SHU, providing access to legal

materials, and prohibiting further retaliation by Defendants as a

non-monetary remedy [ECF No. 46-2 ¶ 107], that request is moot, as

Plaintiff has since been transferred to another institution. ECF

No. 63.

16

difficulty breathing, dizziness, and lightheadedness,” that “he

received blood tests, blood pressure readings, and was prescribed

blood pressure medication,” and “that the cut on his head was

bandaged.” Id.; ECF No. 46-2 ¶¶ 33-35, 38, 41, 44, 72. In response,

Plaintiff points out that his claims “fall directly within the

heart of recognized Bivens claims.” ECF No. 61 at 14.

The Court will grant Plaintiff’s Motion as to Count IV. The

Court recognizes that there are some differences between

Plaintiff’s claims and those raised in Carlson, particularly, as

Defendants argue, with respect to the severity of the medical

conditions and ultimate injuries alleged. Furthermore, unlike in

Carlson, Plaintiff apparently did ultimately receive treatment.

However, the severity of Plaintiff’s alleged medical conditions

and whether he received treatment go to whether Plaintiff has

adequately stated a violation of his Eighth Amendment rights; they

have no bearing on the type of claim Plaintiff is raising, which

is an Eighth Amendment claim based on the Defendants’ purported

deliberate indifference to his serious medical need. See Shorter,

12 F.4th at 373 (analyzing availability of Bivens remedy as

separate issue from whether plaintiff adequately pled Eighth

Amendment claim). In that regard, the Court does not find that the

differences pointed out by Defendant are “meaningful” such that

17

Plaintiff’s claims present a new Bivens context, and a Bivens

remedy is, at least theoretically, available.

The question at this stage is not whether Plaintiff’s claims

will succeed, but whether, taking the allegations as true,

Plaintiff has stated a plausible claim for relief. Centennial Plaza

Props, LLC, 2023 WL 7403640, at *2. To establish an Eighth

Amendment deliberate indifference claim, “an inmate must plead

facts that show (1) []he was incarcerated under conditions posing

a substantial risk of serious harm, (2) the official was

deliberately indifferent to that substantial risk to h[is] health

and safety, and (3) the official’s deliberate indifference caused

h[im] harm.” Shorter, 12 F.4th at 374 (quoting Bistrian v. Levi,

696 F.3d 352, 367 (3d Cir. 2012)). To show deliberate indifference,

“‘the prison official-defendant must actually have known or been

aware of the excessive risk to inmate safety’ and disregarded that

risk.” Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125

(3d Cir. 2001)).

Plaintiff alleges that after contracting COVID-19, he

experienced shortness of breath so severe that he experienced

dizziness and repeated fainting, at one point losing consciousness

in the shower and sustaining a significant head injury. ECF No. 46-

2 ¶¶ 14-18, 70. He also alleges that he suffered from “extremely

high” blood pressure, anemia, and blood sugar issues. Id. ¶ 35. He

18

has further alleged that the BOP defendants were aware of his

fainting episodes, the head injury, and other conditions, id. ¶¶

69-78, but instead of “attempting to provide or secure appropriate

medical care,” threatened to deny him all future care, physically

assaulted him, and ignored his requests for care. Id. ¶¶ 64-65,

69-79. Finally, Plaintiff alleges that he continued to suffer

worsening symptoms due to the delay in care, including an

“inability to form words or complete coherent sentences” following

the incident in the shower. Id. ¶ 74. Based on these allegations,

the Court finds that leave to amend would not be futile. Therefore,

the Court will GRANT Plaintiff leave to amend Count IV.

Plaintiff’s FTCA Claims (Count III)

Defendants next argue that Plaintiff’s proposed amendments to

Count III, which states Plaintiff’s claim for intentional

infliction of emotional distress (“IIED”), are futile because: (1)

Plaintiff has failed to state a claim for IIED by defendant Hansen;

and (2) Plaintiff has “not met the FTCA’s exhaustion requirements”

with respect to conduct by defendant Wieler. ECF No. 49 at 25.

Defendant also argues that to the extent Plaintiff seeks punitive

damages for his tort claims under the FTCA, the amendment is futile

“because such damages are barred.” Id. at 27.

Under the FTCA, the federal government waives its immunity

for injuries “caused by the negligent or wrongful act or omission

19

of any employee of the Government while acting within the scope of

his office or employment.” 28 U.S.C. § 1346(b)(1). The government’s

liability for injuries under the FTCA is “‘generally determined by

reference to state law.’” In re Orthopedic Bone Screw Prod. Liab.

Litig., 264 F.3d 344, 362 (3d Cir. 2001) (quoting Reo v. U.S.

Postal Serv., 98 F.3d 73, 75 (3d Cir. 1996)); 28 U.S.C.

¶ 1346(b)(1). “To establish a claim for [IIED] under New Jersey

law, a plaintiff must show that (1) the defendant acted

intentionally or recklessly; (2) the defendant’s conduct was

extreme and outrageous; (3) the actions proximately caused

emotional distress; and (4) the emotional distress was severe.”

Conte v. Goodwin, Civ. No. 19-8333, 2021 WL 141337, at *8 (D.N.J.

Jan. 15, 2021) (citing Buckley v. Trenton Sav. Fund Soc’y, 544

A.2d 857, 863 (N.J. 1988)). “[U]nder New Jersey law, intentional

infliction of emotional distress comprehends conduct ‘so

outrageous in character, and so extreme in degree, as to go beyond

all possible bounds of decency, and to be regarded as atrocious,

and utterly intolerable in a civilized community.’” Weber v. Don

Longo, Inc., Civ. No. 15-2406, 2018 WL 1135333, at *17 (D.N.J.

Mar. 2, 2018) (alteration in original) (quoting Subbe-Hirte v.

Baccigalupi, 94 F.3d 111, 114 (3d Cir. 1996)). “The standard is an

objective one. The defendant’s conduct must be ‘sufficiently

severe to “cause genuine and substantial emotional distress or

20

mental harm to average persons.”’” Ramirez v. SWSP Custody

Officers, Civ. No. 20-3887, 2023 WL 2523693, at *8 (D.N.J. Mar.

15, 2023) (quoting Turner v. Wong, 832 A.2d 340, 348 (N.J. Super.

Ct. App. Div. 2003)).

Taking the facts in the light most favorable to Plaintiff as

is required, Yah’Torah, 2016 WL 6909103, at *2, and given the early

stage of litigation, the Court finds that Plaintiff has adequately

pled his IIED claim to permit the amendment as to defendant Hansen.

According to the proposed second amended complaint, defendant

Hansen summoned Plaintiff to her office “for an unscheduled visit,”

then proceeded to “verbally abuse[] him,” threaten to withhold

“all future medical care” and “place him in the SHU” indefinitely

if he continued requesting care. ECF No. 46-2 ¶¶ 48-50. As alleged,

Hansen also effectively locked Plaintiff in her office, causing

him to “suffer a panic attack, i.e., shaking, crying,

hyperventilating, and having trouble breathing.” Id. ¶ 52.

Notwithstanding Plaintiff’s symptoms, Hansen “continued to

verbally abuse and threaten [Plaintiff] with punishment of

placement into the SHU and transfer to another institution if he

ever attempted to seek medical attention again.” Id. ¶ 53.

An amendment to a pleading is only futile if it is “legally

insufficient on its face.” Witherspoon v. Rent-A-Center, Inc., 173

F. Supp. 2d 239, 243 (D.N.J. 2001). Here, however, the Court finds

21

that the allegations against defendant Hansen support a plausible

inference that defendant Hansen acted at least recklessly, because

her actions were allegedly deliberate and it is highly probable

that a person suffering from serious and continuing medical

conditions will experience emotional distress when credibly

threatened with the withholding of all future medical assistance.

See Conte, 2021 WL 141337, at *8 (“A defendant acts recklessly

when he [or she] acts in deliberate disregard of a high degree of

probability that emotional distress will follow.”). Indeed,

defendant Hansen’s conduct allegedly caused Plaintiff to suffer a

panic attack, ECF No. 46-2 ¶¶ 51-52, 54. See Turner, 832 A.2d at

348 (“Severe emotional distress is a severe and disabling emotional

or mental condition which may be generally recognized and diagnosed

by trained professionals. The emotional distress must be

sufficiently substantial to result in either physical illness or

serious psychological sequelae.” (citations omitted)). Moreover,

not only did defendant Hansen allegedly cause the panic attack,

but she also allegedly continued to threaten Plaintiff as he was

“shaking, crying, hyperventilating, and having trouble breathing.”

ECF No. 46-2 ¶¶ 52-53.

Defendants contend that Plaintiff has failed to state a claim

of IIED with respect to defendant Hansen’s conduct because “these

allegations do not sufficiently plead that [d]efendant Hansen’s

22

conduct was extreme and outrageous.” ECF No. 49 at 25. The Court

finds that this argument has some merit; defendant Hansen’s alleged

conduct largely consists of threats, and IIED “‘does not extend to

mere insults, indignities, threats, annoyances, petty oppressions,

or other trivialities,’” Taylor v. Metzger, 706 A.2d 685, 694 (N.J.

1998) (quoting 49 Prospect St. Tenants’ Ass’n v. Sheva Gardens,

Inc., 547 A.2d 1134, 1145 (N.J. Super. Ct. App. Div. 1988)). At

the same time, Plaintiff’s allegations include that when Plaintiff

attempted to leave Hansen’s office, she “physically forced the

door out of [Plaintiff’s] hand and shut it again, placing herself

between him and the door and keeping him confined in her office.”

ECF No. 46-2 ¶ 51. She also allegedly continued to threaten

Plaintiff even as he began hyperventilating and crying. To be sure,

reasonable minds might differ as to whether Hansen’s conduct

ultimately meets the “extreme and outrageous” standard. However,

at this stage of the litigation, “[t]he focus is not on ‘“whether

a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.”’” Stevenson v.

Cnty. Sheriff’s Off. of Monmouth Cnty., Civ. No. 13-5953, 2019 WL

117978, at *2 (D.N.J. Jan. 7, 2019) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 563 n.8 (2007)). Therefore, the Court will

permit Plaintiff’s IIED claim with respect to defendant Hansen’s

conduct to proceed at this time. See Torres v. Monmouth Cnty. Corr.

23

Inst., Civ. No. 19-17704, 2021 WL 3773687, at *8 (D.N.J. Aug. 25,

2021) (permitting IIED claim to proceed against prison officer

despite finding that the plaintiff’s allegations that officer’s

conduct was extreme and outrageous were “borderline”).

Plaintiff’s IIED claim with respect to defendant Wieler’s

conduct presents a much easier question. “An FTCA action may not

be instituted against the United States ‘unless the claimant shall

have first presented the claim to the appropriate Federal agency

and his claim shall have been finally denied by the agency in

writing and sent by certified or registered mail.’” Bakhtiari v.

Spaulding, 779 F. App’x 129, 132 (3d Cir. 2019) (quoting 28 U.S.C.

¶ 2675(a)). The exhaustion requirement “is jurisdictional and

cannot be waived.” Id. (quoting Roma v. United States, 344 F.3d

352, 362 (3d Cir. 2003)); McNeil v. United States, 508 U.S. 106,

111 (1993). Consequently, “a district court may dismiss a claim

brought under the FTCA for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1) where the plaintiff has not exhausted

his administrative remedies prior to filing suit.” Bakhtiari v.

Spaulding, No. 1:17-cv-00016, 2018 WL 5841664, at *8 (M.D. Pa.

Nov. 8, 2018), aff’d, 779 F. App’x 129 (2019).

As Defendants point out, the underlying incident involving

defendant Wieler allegedly occurred on January 17, 2023. ECF No.

46-2 ¶ 56. This Motion seeking to add Wieler’s conduct as a basis

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for liability was filed on June 23, 2023. ECF No. 46. The record

shows that Plaintiff’s administrative claim regarding defendant

Wieler’s alleged assault was not denied in writing until almost

five months later, on November 13, 2023. ECF No. 66. As a result,

even if the Court permitted the addition of defendant Wieler’s

conduct as a basis for Plaintiff’s IIED claim, such a claim would

be subject to dismissal for lack of jurisdiction to the extent it

pertained to defendant Wieler. See Accolla v. U.S. Gov’t, 369 F.

App’x 408, 410 (3d Cir. 2010) (concluding that district court was

without jurisdiction to rule on FTCA claim where FTCA action was

filed in federal court prior to date of final disposition of

administrative tort claim). Such would be the case notwithstanding

the fact that Plaintiff’s administrative claim has been denied —

i.e., Plaintiff has exhausted his administrative remedies — since

the filing of this Motion. Hoffenberg v. Provost, 154 F. App’x

307, 310 (3d Cir. 2005) (affirming dismissal of FTCA claim as

unexhausted on the grounds that federal suit was filed while

administrative claims were pending, and subsequent filing of an

amended complaint following conclusion of administrative

proceedings did not change the date the federal suit was instituted

for FTCA purposes); see also Ibarra v. U.S.P. Allenwood, No. 1:06-

CV-1160, 2007 WL 465537, at *4-5 (M.D. Pa. Feb. 9, 2007).

Punitive Damages

25

Defendants also argue that to the extent that Plaintiff seeks

to amend any tort claim for punitive damages under the FTCA, such

amendment is futile because the FTCA bars recovery of punitive

damages [ECF No. 49 at 27]. 28 U.S.C. § 2674. Plaintiff responds

that the FTCA’s statutory bar on punitive damages “has no bearing

on whether Plaintiff should be permitted to amend” his complaint.

ECF No. 61 at 19.

Under the circumstances, the Court agrees with Plaintiff.

Plaintiff’s proposed second amended complaint requests

“compensatory damages and punitive damages against [D]efendants.”

ECF No. 46-2 ¶ 106. Although punitive damages are not available

against the United States to Plaintiff for his tort claims, they

are available for his Bivens claims against the individual

defendants. See Carlson, 446 U.S. at 22 (noting that punitive

damages are available in Bivens suit despite being prohibited under

FTCA). Given that Plaintiff did not specify which types of damages

requests applied to which claims, the Court sees no reason to

impute such specificity into the requests and deny Plaintiff’s

request to amend. Therefore, the Court will permit the proposed

amendment at this time.

PLRA Exhaustion

Defendants next argue that Plaintiff’s proposed amendments as

to his constitutional claims are futile because Plaintiff

26

“abandoned each of his administrative grievances before seeking

resolution up through all appellate levels within BOP,” and

therefore has failed to satisfy the PLRA’s exhaustion requirement.

ECF No. 49 at 27.10 Defendants acknowledge that Plaintiff is not

required to affirmatively plead exhaustion, but argue that because

Plaintiff did plead it in the proposed second amended complaint

[ECF No. 46-2 ¶ 9], the Court should deny Plaintiff’s request to

amend his complaint as futile. ECF No. 49 at 28. In response,

Plaintiff argues that any decision on whether Plaintiff has

satisfied the exhaustion requirement is premature at this stage of

the litigation. ECF No. 61 at 7. In the alternative, Plaintiff

contends that to the extent Plaintiff has failed to exhaust

administrative remedies, it is because such remedies are

effectively unavailable to him. Id. at 9.

“The Prison Litigation Reform Act of 1995 (“PLRA”) requires

that prisoners seeking relief in federal court must first exhaust

the administrative remedies available at the prison level.”

Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting 42

U.S.C. § 1997e(a)). The statute requires “proper exhaustion of

administrative remedies,” even if monetary damages are not

10 “[T]he administrative exhaustion requirements under the PLRA and

the FTCA are separate and distinct,” and “each must be

independently followed in order for an inmate to maintain Bivens

and negligence claims in the same action.” West v. Shultz, No.

1:CV-12-1004, 2014 WL 1668093, at *9 (M.D. Pa. Apr. 24, 2014).

27

available through the administrative process. Woodford v. Ngo, 548

U.S. 81, 84 (2006). Moreover, the requirement is “a non-

jurisdictional prerequisite to an inmate bringing suit

and . . . constitutes a ‘“threshold issue that courts must address

to determine whether litigation is being conducted in the right

forum at the right time.”’” Rinaldi v. United States, 904 F.3d

257, 265 (3d Cir. 2018) (quoting Small v. Camden County, 728 F.3d

265, 270 (3d Cir. 2013)). Consequently, “a court may not excuse a

failure to exhaust, even to take [special] circumstances into

account.” Ross v. Blake, 578 U.S. 632, 639 (2016).

That said, “the PLRA requires exhaustion of only those

remedies that are ‘available.’” Bakhtiari, 779 F. App’x at 132.

The Supreme Court has identified “three kinds of circumstances in

which an administrative remedy, although officially on the books,

is not capable of use to obtain relief”: (1) where prison officers

are ”unable or consistently unwilling to provide any relief to

aggrieved inmates,” making the procedure functionally a “dead

end,”; (2) when the procedures are “so confusing that . . . no

reasonable prisoner can use them,”; and (3) “when prison

administrators thwart inmates from taking advantage of a grievance

process through machination, misrepresentation, or intimidation.”

Ross, 578 U.S. at 643-44. “Failure to exhaust is an affirmative

28

defense the defendant must plead and prove; it is not a pleading

requirement for the prisoner-plaintiff.” Small, 728 F.3d at 268.

Applying these principles, the Court finds that it would be

inappropriate to address the exhaustion issue at this time. First,

ruling on this issue at this point necessarily involves resolving

issues of disputed fact, which is not properly undertaken in

deciding a motion to amend a complaint. On the contrary, in

determining whether a proposed amendment is futile, a court

“accept[s] as true all the facts alleged” by the plaintiff and

gives the plaintiff the benefit of all reasonable inferences.

Stevenson, 2019 WL 117978, at *2. Here, the proposed second amended

complaint alleges that “Plaintiff has fully exhausted both

informal and formal resolution through the administrative remedy

and appeals programs of the Bureau of Prisons,” to no avail. ECF

No. 46-2 ¶ 9. Plaintiff also alleges that he “hand delivered”

multiple “Administrative Remedy request[s]” to defendant Bergami,

the warden at FCI Fairton. Id. ¶¶ 69, 72. The first request was

allegedly delivered on January 28, 2021, the second was delivered

on February 1, 2021. Id. Plaintiff allegedly filed a third

administrative remedy request on February 8, 2021, which defendant

29

Bergami apparently received.11 Each of these requests allegedly

went unanswered. Id. ¶ 79. Based on these facts, it is not clear

that Plaintiff’s proposed amendment would be futile based on a

supposed failure to exhaust administrative remedies. See Alston v.

Wenerowicz, 167 F. Supp. 3d 714, 718 (E.D. Pa. 2016) (“A plaintiff

only fails to state a claim for relief [based on] failure to

exhaust when non-exhaustion is apparent from the face of the

complaint.”). Therefore, denying Plaintiff leave to amend his

constitutional claims on this ground is improper. See Harrison

Beverage Co. v. Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J.

1990) (“‘If a proposed amendment is not clearly futile, then denial

of leave to amend is improper.’” (quoting 6 Wright, Miller & Kane,

Fed. Prac. & Proc. § 1487 at 637-42 (2d ed. 1990))).

Second, while Defendants have submitted a wealth of documents

to support their arguments,12 in considering a motion to amend

pleadings, a court “considers only the pleading, exhibits attached

to the pleading, matters of public record, and undisputedly

11 Plaintiff alleges that after he filed the February 8, 2021

request, defendant Bergami told him to “seek medical attention

through the medical department” rather than by filing

administrative grievances. ECF No. 46-2 ¶ 75.

12 To support their exhaustion arguments, Defendants have included

the sworn declarations of Eva Baker-Dykstra, a paralegal employed

by the BOP; and Robert Jensen, a BOP attorney. ECF Nos. 49-1, 49-

2. The declarations are accompanied by what appears to be a full

recounting of every administrative grievance Plaintiff has ever

filed dating back as far as 2013. See ECF No. 49-1, Exhibit C.

30

authentic documents if the party’s claims are based upon the same.”

Love v. Does, Civ. No. 17-1036, 2020 WL 5760447, at *3 (D.N.J.

Sept. 28, 2020) (citing Pension Benefit Guar. Corp. v. White

Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). The

documents submitted by Defendants are not “integral to or

explicitly relied upon in the complaint,” and Plaintiff’s

complaint is not “‘based on the document[s]’”; therefore, it would

be inappropriate to consider them in deciding this Motion. See

Mills v. Ethicon, Inc., 406 F. Supp. 3d 363, 372 (D.N.J. 2019)

(quoting In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d

280, 287 (3d Cir. 1999)) (stating that courts need not consider

such documents in deciding motion to dismiss); cf. Alston, 167 F.

Supp. 3d at 718 (finding that court could consider the actual

grievance filed by the inmate-plaintiff, which defendant attached

to motion to dismiss, where plaintiff specifically referenced the

grievance by number in pleading satisfaction of exhaustion

requirement). In any event, Plaintiff has presented sworn

certifications denying the availability of the administrative

remedy process and the grounds for the BOP’s rejections of his

requests. ECF Nos. 61-1, 61-2. Although “judges may resolve

factual disputes relevant to the exhaustion issue without the

participation of a jury,” the Third Circuit has made clear that a

court “must at least provide the parties with an opportunity to

31

submit materials relevant to exhaustion that are not already before

it.” Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018) (quoting

Small, 728 F.3d at 271). As a result, even if the Court did consider

the parties’ extraneous submissions, the Court would be without

authority to deny the Motion on exhaustion grounds at this time.

Qualified Immunity

Finally, Defendants argue that even if the Court extended a

Bivens remedy to Plaintiff’s constitutional claims, amendment

would be futile because the BOP defendants are entitled to

qualified immunity. ECF No. 49 at 29. Because the Court has already

determined that amendment would be futile as to Counts V and VI,

the Court focuses its analysis on whether Defendants are entitled

to the defense of qualified immunity against Plaintiff’s claim

that they were deliberately indifferent to his serious medical

need.

“The doctrine of qualified immunity shields officials from

civil liability so long as their conduct ‘does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Peroza-Benitez v. Smith, 994

F.3d 157, 165 (3d Cir. 2021) (quoting Mullenix v. Luna, 577 U.S.

7, 11 (2015) (per curiam)). In assessing whether an officer is

entitled to qualified immunity, courts employ a two-prong test,

“the first prong being whether the facts, as viewed in the light

32

most favorable to the plaintiff, show the violation of a legal

right, and the second being whether that right was clearly

established.” Mack v. Yost, 63 F.4th 211, 227 (3d Cir. 2023).

At this stage of the litigation, the Court finds that it would

be premature to decide the availability of the defense of qualified

immunity. The Court has already found that, for purposes of this

Motion, Plaintiff has adequately pled an Eighth Amendment

violation. Therefore, whether the BOP defendants are entitled to

qualified immunity hinges on whether, under the circumstances, it

was “sufficiently clear that every reasonable official would have

understood that what he [or she was] doing violate[d] that right.”

Mullenix, 577 U.S. at 11 (quoting Reichle v. Howards, 566 U.S.

658, 664 (2012)). In answering this question, “[t]he dispositive

question is ‘whether the violative nature of particular conduct is

clearly established.’” Id. at 12 (quoting Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011)). This analysis is necessarily incredibly

fact-specific, Peroza-Benitez, 994 F.3d at 165 (noting that

analysis under second prong is framed “in light of the specific

context of the case, not as a broad general proposition”), making

it unsuitable for decision based on the limited record in the

context of a motion to amend, see Stevenson, 2019 WL 117978, at *2

(noting that in determining futility of amendment, the court

“considers only the pleading, exhibits attached to the pleading,

33

matters of public record, and undisputedly authentic documents if

the party’s claims are based upon same”). Therefore, the Court

will not find that the defense of qualified immunity renders

Plaintiff’s amendment futile at this time.

III. Conclusion

For the foregoing reasons, Plaintiff’s Motion to Amend the

Complaint is GRANTED in part, and DENIED in part. Plaintiff shall

file a second amended complaint consistent with the directives of

this Opinion and Order within 14 days.

s/ Matthew J. Skahill

MATTHEW J. SKAHILL

United States Magistrate Judge

cc: Hon. Noel L. Hillman

Senior United States District Judge

34