# EADS v. UNITED STATES OF AMERICA

> District Court, D. New Jersey · January 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10278175

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** January 25, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10278175

## How later opinions describe it (automated extraction)

- noting that analysis under second prong is framed “in light of the specific context of the case, not as a broad general proposition”
- 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
- noting that punitive damages are available in Bivens suit despite being prohibited under FTCA

## Opinion text

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
24
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278175. Public record. Not legal advice.