FLOYD v. UNITED STATES

*NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

AIKIAM FLOYD, : CIV. NO. 22-1229 (RMB-SAK)

:

Plaintiff, : OPINION

:

v. :

:

UNITED STATES OF AMERICA, et al., :

:

Defendants :

______________________________

APPEARANCES:

AIKIAM FLOYD

3055 3rd Ave.

Bronx, NY 10451

Plaintiff, pro se

HOPE LU, Assistant United States Attorney

Office of the United States Attorney

970 Broad Street

Newark, NJ 07102

JOHN T. STINSON, Assistant United States Attorney

Office of the United States Attorney

401 Market St., 4th Floor

Camden, NJ 08081

On behalf of Defendants

RENÉE MARIE BUMB, Chief United States District Judge

This matter comes before the Court upon Plaintiff Aikiam Floyd’s (“Plaintiff”)

pro se prisoner complaint (Docket No. 1), Defendants United States of America, Mr.

Byrd, Mr. Haczynski, Mr. Wilks, Warden Ortiz, and Health Services Director Dr.

Turner-Foster’s (“Defendants”) motion to dismiss the complaint (Mot. to Dismiss,

Dkt. No. 39), Plaintiff’s brief in opposition to the motion to dismiss (Pl’s Opp.

Brief, Docket No. 43), and Defendants’ reply brief (Defs’ Reply Brief, Docket No.

44). The Court will decide the motion on the briefs without an oral hearing,

pursuant to Federal Rule of Civil Procedure 78(b). For the reasons discussed below,

the Court will grant Defendants’ motion to dismiss.

I. PROCEDURAL HISTORY

This case arises out of Plaintiff’s conditions of confinement in the Federal

Correctional Institution in Fort Dix, New Jersey (“FCI Fort Dix”), within the

Federal Bureau of Prisons (“BOP”), during the COVID-19 pandemic from March

22, 2020 through February 2022. Plaintiff filed his complaint on March 7, 2022, and

he was granted in forma pauperis status under 28 U.S.C. § 1915. (Compl., Dkt. No. 1;

Order, Dkt. No. 6.) By Order dated December 16, 2022, Plaintiff’s complaint was

permitted to proceed beyond sua sponte screening for dismissal pursuant to 28 U.S.C.

§ 1915(e)(2)(B). (Order, Dkt. No. 12.) Summons were returned as executed upon

the following Defendants: the United States of America (Dkt. No. 17, 19), Mr. Byrd,

Mr. Haczynski, Warden Ortiz, and Health Services Director Dr. Turner-Foster.

(Dkt. No. 20.) On March 24, 2023, Assistant United States Attorney Peter

Vizcarrando entered an appearance on behalf of Defendant United States of

America. On August 7, 2023, Assistant U.S. Attorney John T. Stinson, Jr. entered

an appearance on behalf of Defendants Byrd, Haczynski, Ortiz, Turner-Foster, and

Wilks. (Dkt. No. 31.) There is no indication on the docket that summons was

executed on Defendant C.O. Johnson. The John and Jane Doe Defendants have not

been identified or served with process.

On August 28, 2023, this matter was reassigned to the undersigned. (Dkt. No.

33.) After receiving extensions of time to answer or otherwise respond to the

complaint, Defendants filed a joint motion to dismiss for lack of jurisdiction under

Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim for relief

under Rule 12(b)(6). (Mot. to Dismiss, Dkt. Nos. 39.) Plaintiff filed a brief in

opposition to Defendants’ motion to dismiss on January 17, 2024. (Pl’s Opp. Brief,

Dkt. No. 43.) Defendants filed a reply brief on January 29, 2024. (Defs’ Reply Brief,

Dkt. No. 44.) Plaintiff filed a notice of change of address on February 21, 2024.

(Notice of Change of Address, Dkt. No. 45.) Plaintiff is no longer incarcerated.

II. THE COMPLAINT

The pro se complaint begins with a summary of Plaintiff’s claims.1 Plaintiff

alleges that during the COVID-19 pandemic, BOP negligently transferred COVID-19

infected and contagious inmates from the Federal Correctional Institution (“FCI”)

1 Plaintiff submitted documentary evidence and an affidavit in support of his complaint.

(Dkt. Nos. 1-1, 1-2, 1-3.) “To decide a motion to dismiss [under Rule 12(b)(6), courts

generally consider only the allegations contained in the complaint, exhibits attached to the

complaint and matters of public record.” Pension Ben. Guar. Corp. v. White Consol. Indus.,

Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citing 5A C. Wright & A. Miller, Federal Practice

and Procedure § 1357, at 299 (2d ed.1990); Watterson v. Page, 987 F.2d 1, 3–4 (1st Cir. 1993);

Emrich v. Touche Ross & Co., 846 F.2d 1190, 1198 (9th Cir. 1988)). Evidence is not required

to withstand a motion to dismiss for failure to state a claim, although it may be considered

in determining a defendant’s factual attack on jurisdiction under Rule 12(b)(1).

Elkton in Lisbon, Ohio2 to FCI Fort Dix, New Jersey. BOP then transferred

contagious inmates internally within FCI Fort Dix, which caused half the inmate

population, including Plaintiff, to become infected with COVID-19. Plaintiff contends

BOP was negligent in protecting his health, and deliberately indifferent to his health,

by failing to impose, enforce and regulate Centers for Disease Control and Prevention

(“CDC”) policies3 to reduce the spread of COVID-19 in FCI Fort Dix. Defendants

failed to adopt the basic recommendations of the CDC, and they made only limited

use of the CARES Act home confinement provision4 or other tools at their disposal to

reduce the inmate population. FCI Fort Dix never implemented or enforced a

mandatory testing requirement for staff. This permitted staff to infect the inmates.

Plaintiff was infected with COVID-19 on several occasions.

The Court liberally construes the complaint, where the timeline of certain

incidents is not clear, to allege the following. On March 22, 2020, Plaintiff was

assigned to FCI Fort Dix housing unit 5812 (“Unit 5812”). He sent Warden Ortiz an

email stating that he feared for his life because a staff member was sick, potentially

with COVID-19. Lieutenant Guillepsi told the inmates in Unit 5812 to disregard the

2 Available at https://www.bop.gov/locations/institutions/elk/ (last visited June 15,

2024).

3 The Court takes judicial notice, under Federal Rule of Evidence 201(b), of “CDC

Guidance and Management of COVID-19 in Correctional and Detention Facilities”

published on the CDC website on April 9, 2020. Available at

https://stacks.cdc.gov/view/cdc/86815 (last visited June 15, 2024).

4 The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, PL 116-136, March

27, 2020, 134 Stat 281, Sec. 12003(b)(2).

sick officer. Plaintiff did not allege that he developed COVID-19 symptoms or a

confirmed case of COVID-19 from exposure to this sick officer.

Plaintiff asserts a claim of cruel and unusual punishment, in violation of the

Eighth Amendment, based on the overall conditions under which he lived in FCI Fort

Dix during the COVID-19 pandemic from March 2020 through February 2022.

Plaintiff alleges he was packed in his living quarters “like a sardine in a can.” There

was no ventilation in the buildings. The water provided for inmates to drink and

shower was contaminated. Some top-floor housing units had missing windows, which

exposed inmates, including Plaintiff, to the elements. During this period, Plaintiff was

variously housed in two condemned units and three quarantine/isolation units. The

housing units had no heat and were infested with insects and rodents. All food was

served cold and sometimes moldy or freezer burned.

Plaintiff asserts a claim of intentional infliction of emotional distress. At some

point during the relevant time period, Plaintiff was taken to a hospital and placed on

an IV. The Court assumes this occurred after Plaintiff tested positive for COVID-19

on or about November 2, 2020. When Plaintiff returned to FCI Fort Dix from the

hospital, he was placed in a room in medical unit 5806 (“Unit 5806”) overnight. The

room had no toilet or sink. He was given a bottle to urinate in, but it overflowed into

the cell. Plaintiff had diarrhea and no toilet, no cleaning supplies, nor a change of

clothing. He was denied “the right of certain diagnostic test of infectious disease.” He

was also denied timely medical treatment recommended by a healthcare provider. The

complaint does not identify the recommended treatment or how long treatment was

delayed.

Plaintiff alleges two incidents where his request for medical treatment was

delayed: (1) on March 5, 2021, medical staff did not provide timely evaluation and

treatment of H. Pylori;5 (2) and, at an unidentified time, Plaintiff asked C.O. Johnson

for medical attention for shortness of breath, and Johnson told Plaintiff to wait for his

unit officer. The only remedy available to Plaintiff for his shortness of breath was to

breathe into a paper bag.

In support of his claims that BOP and FCI Fort Dix staff were negligent or

deliberately indifferent in their response to the risk to his health posed by COVID-19,

Plaintiff alleges the following. On October 19, 2020, Plaintiff, housed in Unit 5812,

tested negative for COVID-19. He learned that a staff person in Unit 5812 had tested

positive and exposed three inmates. Plaintiff was forced to return to Unit 5812 with

the infected inmates, and his request for a separate quarantine was denied.

Plaintiff alleges medical staff were negligent by declaring people recovered from

COVID-19 before they had two negative tests, as recommended by the CDC. On

October 22, 2020, 54 inmates in Unit 5812 tested positive. On October 26, 2020, after

175 inmates in the unit had tested negative, FCI Fort Dix administration staff allowed

COVID-19 positive inmates into Unit 5812. On October 29, 2020, 105 inmates in

Unit 5812 tested positive. On November 2, 2020, Plaintiff and 45 other inmates in

5 See Pl’s Exhibit, Dkt. No. 1-2 at 14.

Unit 5812 tested positive. By November 9, 2020, the entire housing unit was infected.

On November 18, 2020, Plaintiff tested negative, but he remained housed with

infected inmates.

On December 3, 2020, the status of Unit 5812 was changed to “recovered,” and

Plaintiff was transferred to Unit 5852 the next day. No testing was done before the

transfer. Within three or four weeks, there was a COVID-19 outbreak in Unit 5852.

Staff did not test any inmate who had been transferred from Unit 5812. One of the

inmates who transferred into Unit 5852 had a positive COVID-19 test two weeks

before his transfer. Plaintiff alleges this contributed to his infection with COVID-19.

He suffered from many symptoms. Throughout the relevant time period of March

2020 through February 2022, Plaintiff was housed in three different

quarantine/isolation units including: 5812, 5852, 5806, and two condemned housing

units, 5703 and 5803.

For relief, Plaintiff seeks damages and injunctive relief, as follows: remove lead

pipes and lead paint from all BOP buildings; provide clean water at all BOP locations;

and bring all housing units up to the standard of living at all BOP locations. Plaintiff

asserts jurisdiction under Bivens6 over his damages claims for violation of the Eighth

Amendment Cruel and Unusual Punishments Clause. He asserts jurisdiction for

6 See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1974)

(recognizing a judicially created damages remedy where federal actors allegedly violated the

Fourth Amendment prohibition on unreasonable search and seizure.)

injunctive relief under federal question jurisdiction, 28 U.S.C. § 1331.7 Finally, he

asserts jurisdiction over his tort claims under the Federal Tort Claims Act (“FTCA”)

28 U.S.C. §§ 2671 et seq. and 1346(b) et seq. based on negligence or deliberate

indifference in response to the risk posed by COVID-19, and intentional infliction of

emotional distress by federal employees.

III. THE PARTIES’ ARGUMENTS

A. Defendants’ Motion to Dismiss

Defendants seek dismissal of Plaintiff’s: (1) unexhausted FTCA claims for lack

of jurisdiction; (2) exhausted FTCA claim for lack of jurisdiction under the

discretionary function exception; (3) exhausted FTCA claim for lack of jurisdiction

under the quarantine exception; (4) unexhausted Bivens claims for lack of jurisdiction;

(5) all Bivens claims for lack of jurisdiction, because a Bivens remedy is not available in

a new context where special factors counsel hesitation in creating a new remedy; and

alternatively, (6) exhausted Bivens claim for failure to state a claim under Rule 12(b)(6),

because Defendants are entitled to qualified immunity. (Mot. to Dismiss, Dkt. No.

39-2.)

B. Plaintiff’s Brief in Opposition to the Motion to Dismiss

Plaintiff opposes Defendants’ motion to dismiss for lack of jurisdiction and for

failure to state a claim upon which relief may be granted. (Pl’s Opp. Brief, Dkt. No.

7 Plaintiff’s request for injunctive relief is moot because he has been released from

confinement under the custody of the Bureau of Prisons. See e.g. Sutton v. Rasheed, 323 F.3d

236, 248 (3d Cir. 2003), as amended (May 29, 2003).

43.) Plaintiff reiterates the allegations and legal claims in his complaint and concludes

that he has exhausted his remedies, and that he has adequately alleged negligence and

intentional infliction of emotional distress under the FTCA, and cruel and unusual

punishment in violation of the Eighth Amendment.

C. Defendants’ Reply Brief

Defendants maintain that Plaintiff failed to respond to the substance of their

arguments. (Defs’ Reply Brief, Dkt. No. 44.) Therefore, the Court may either deem

Plaintiff to have waived opposition to their motion to dismiss, or grant their motion to

dismiss on the merits of their arguments. The Court will address the merits of

Defendants’ arguments.

IV. DISCUSSION

A. Rule 12(b)(1) Standard of Law

Defendants seek dismissal of the complaint for lack of subject matter

jurisdiction based on a factual attack to jurisdiction. “[A] factual 12(b)(1) challenge

attacks allegations underlying the assertion of jurisdiction in the complaint, and it

allows the defendant to present competing facts.” Hartig Drug Co. Inc. v. Senju Pharm.

Co., 836 F.3d 261, 268 (3d Cir. 2016) (quoting Constitution Party of Pa. v. Aichele, 757

F.3d 347, 358 (3d Cir. 2014)). “[T]he court ‘is free to weigh the evidence[, including

evidence outside the pleadings,] and satisfy itself as to the existence of its power to

hear the case,” and “no presumptive truthfulness attaches to [the] plaintiff's

allegations....’” Id. (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891

(3d Cir. 1977) (first alteration added)). The burden is on the plaintiff to establish the

court’s jurisdiction. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009).

B. Administrative Exhaustion Requirement of the FTCA

Defendants argue that Plaintiff has not exhausted all FTCA claims alleged in

his complaint, and the unexhausted claims should be dismissed for lack of jurisdiction.

“The FTCA operates as a limited waiver of the United States’[] sovereign immunity”

from suits by its citizens. White-Squire v. United States Postal Serv., 592 F.3d 453, 456

(3d Cir. 2010) (citing Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003)). Courts

“‘should not take it upon [them]selves to extend the waiver beyond that which

Congress intended.’” Id. (quoting United States v. Kubrick, 444 U.S. 111, 117-18

(1979)). Thus, courts should strictly enforce the procedural requirements of the FTCA.

Id.

Under the FTCA, prior to commencing an action in court, a plaintiff

shall have first presented the claim to the appropriate

Federal agency and [the] claim shall have been finally

denied by the agency in writing and sent by certified or

registered mail. The failure of an agency to make final

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

at the option of the claimant, any time thereafter, be deemed

a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a) (alteration added). “The statute requires ‘complete exhaustion’ of

administrative remedies before a claimant can seek relief in court.” Ahmed v. United

States, 334 F. App’x 512, 513 (3d Cir. 2009) (citing McNeil v. United States, 508 U.S.

106, 112 (1993)). A plaintiff may not “‘present one claim to the agency and then

maintain suit on the basis of a different set of facts.’” Roma v. United States, 344 F.3d

352, 362 (3d Cir. 2003) (quoting Deloria v. Veterans Admin., 927 F.2d 1009, 1011–12

(7th Cir. 1991)). Pursuant to 28 U.S.C. § 2675, the notice of a plaintiff’s claim to the

federal agency, in claim form SF-95, must allege sufficient facts to allow the agency to

investigate. Roma, 344 F.3d at 363 (citing Tucker v. United States Postal Serv., 676 F.2d

954, 959 (3d Cir. 1982)).

Defendants submit that jurisdiction under the FTCA in this Court exists solely

over the FTCA claim contained in Plaintiff’s SF-95 claim form. BOP received

Plaintiff’s SF-95 claim form on January 12, 2021. (Declaration of Corrie Dobovich

(“Dobovich Decl.”) ¶ 7, Attach. E (Dkt. No. 39-3 at 37-41.)) Plaintiff exhausted the

following claim:

1). I’m a[n] inmate at the FCI Fort Dix.

2). I tested negative on October 19, 2020, for COVID-19,

on this same day I found out that the R&D staff had tested

positive with COVID-19 virus, and had exposed three

inmates that was housed in same living quarters as myself

to the COVID-19 virus, that Housing Unit (“H.U.”) #5812.

I immediately went to the Unit Manager Mr. Byrd, and the

Health Services Administrator Mr. Wilk, requesting to be

moved from the Housing Unit, where the inmates that had

test[ed] positive for coronavirus, because I tested negative.

3). On October 20, 2020, testing was conducted again in

H.U. #5812, for the COVID-19 virus, however, I was not

tested.

4). On October 22, 2020, the testing results confirmed that

54 inmates w[ere] positive [for] COVID-19, in the H.U.

#5812, and those w[ere] removed from the Unit that

evening at 4:20 p.m.

5.) On October 26, 2020, FCI Fort Dix’s administration

staff exposed healthy inmates like myself to COVID-19,

when … those inmates that w[ere] positive [for] COVID-19

w[ere] placed in rooms with no ventilation, and limited

space in the living quarters. Th[e]n, around 1:30 p.m. [on]

October 26, 2020, after two more inmates had tested

positive for COVID-19, the 56 inmates w[ere] moved back

into H.U. # 5812, among the 175 inmates that had

[previously] tested negative.

6.) On October 29, 2020, [] 105 inmates in H.U.#5812,

tested positive for COVID-19 virus. I was among [] 70

inmates that again tested negative, but was being forced to

remain in the H.U. # 5812.

7). On November 2, 2020, I tested positive for the COVID-

19 virus, along with 45 other inmates in the H.U. # 5812,

this r[a]ised the number of positive COVID-19 cases.

8). As of November 5, 2020, 207 confirmed cases of

inmates infected with COVID-19 virus in H.U. #5812. By

November 9, 2020, the entire Housing Unit # 5812’s

inmates w[ere] confirmed cases of COVID-19 virus.

9). The FCI Fort Dix[] Prison Administration Staff[’s]

scheme in place, to identify, and isolate COVID-19 infected

inmates failed. The Bureau of Prisons has failed to impose

or enforce a policy, or regulation in accord[ance] to the

Centers of Disease Control advisory guideline for social

distance, within the FCI Fort Dix[.] Also because of

impossible factor that social distance has proven to be here

in the prison complex, and impossible for protecting

inmates from COVID-19 virus, or to control the COVID-19

pandemic and by both BOP’s and Warden Ortiz of FCI Fort

Dix’s not meeting the basic recommendation of Center of

Disease Control (“CDC”) making only limited use of

“CARES ACT” home confinement as well as other

material tools at their disposal to reduce the prison general

population during the COVID-19 pandemic. The failures

of the Bureau’s profound [] vested responsibilities, and

obligations in the protection and health of its inmates such

as myself have create[d] conditions of my confinement to

render cruel and unusual to me under the oppressor’s hands

and mind states of deliberate[] indifference, with negligen[t]

conduct.

10. Mandatory testing requirement for staff has not been

enforced, or implemented at the FCI Fort Dix, which

permitted staff members to transport the COVID-19 virus

into the prison complex and into the inmates[’s] living

quarters (“Housing Units”), as well as the Special Housing

Unit (“SHU”).

11). I have not been tested for the COVID-19 virus, since

testing positive on November 16, 2020, and November 18,

2020, but was transferred to the Residential Drug Abuse

Program (“RDAP”) in the Housing Unit # 5852, among

other inmates that have never been tested, or have tested

negative for COVID-19 virus.

12. The Medical staff at FCI Fort Dix, d[uring] my time in

the H.U. # 5812, never on[ce] taking blood tests, before

sending me to RDAP.

13. My transfer[] to the Housing Unit #5852 … occurred

on December 4, 2020, and again I was not tested although

my last test of November 18, 2020, confirmed I was positive

with coronavirus.

14. I had symptoms that consisted of diarrhea, back and

body aches, stomach cramps, vomiting, dizzines[s], chest

pains, headaches, los[s] of taste, and f[a]tigue.

15. During my periods of quarantining I was in a room with

11 other inmates, in the open Housing Unit #5812, where

every inmate[] in the housing unit had access to the room I

was quarantine[d] in. Please note: Prior to the COVID-19

pandemic in H.U.#5812 a townhall meeting was held and

at that townhall meeting Dr. [Turner-]Foster, informed [us]

that staff could get tested for the [C]ovid-19, but it was not

mandatory for them to do so, because when they entered

the facility they w[ere] allegedly to have their temperatures

checked[.] Nevertheless, staff members, in R&D, the

din[]ing hall and RDAP building [] tested positive for

COVID-19 before and after the COVID-19 pandemic

within[] the prison complex.

(Id. at 39-41.)

Accordingly, Defendants maintain that jurisdiction over Plaintiff’s FTCA claim are

limited to the above allegations. His claim for “intentional infliction of emotional

distress” is unexhausted, as are the allegations in the complaint regarding the

following:

• The United States was negligent by transferring inmates from FCI Elkton to

FCI Fort Dix.

• The United States deliberately or negligently failed to provide adequate medical

care at FCI Fort Dix.

• The United States deliberately or negligently ran overcrowded housing, failed

to address pest infestations, failed to provide ventilation and/or heat, and

provided contaminated water and/or improper food.

• The United States deliberately or negligently placed Plaintiff in a cell/room

without adequate toileting facilities while he was ill [his intentional infliction of

emotional distress claim].

• The United States negligently maintained housing facilities with peeling paint,

lead paint, and/or lead pipes.

(Compl., Dkt. No. 1 at 2, 4-7, 10-11.)

Upon review of Plaintiff’s SF-95 form, the only FTCA claim Plaintiff exhausted

before filing his complaint is that negligence and/or deliberate indifference by federal

employees of BOP and FCI Fort Dix caused him to contract COVID-19 on November

2, 2020. (Dobovich Decl. ¶ 7, Attach. E (Dkt. No. 39-3 at 37-41.)) In this exhausted

FTCA claim, Plaintiff alleged Government employees failed to adopt and implement

adequate COVID-19 testing and quarantine policies and practices at FCI Fort Dix.

Plaintiff also exhausted the claim that Government employees were negligent and/or

deliberately indifferent to his health by limiting use of the CARES Act home

confinement provision to reduce the prison population, create space for social

distancing, and reduce the spread of COVID-19 in prison. As a result, Plaintiff

contracted COVID-19 and suffered from diarrhea, back and body aches, stomach

cramps, vomiting, dizziness, chest pains, headaches, loss of taste, and fatigue. The

Court lacks jurisdiction over the remaining FTCA claims in the complaint, outlined

by Defendants above. The Court will dismiss without prejudice the unexhausted

FTCA claims under Fed. R. Civ. P. 12(b)(1).8 Therefore, the Court turns to whether

the discretionary function exception bars Plaintiff’s exhausted FTCA claim.

C. Discretionary Function Exception to FTCA

Based on the waiver of sovereign immunity under the FTCA, an individual

may bring a tort claim against the United States under 28 U.S.C. § 1346(b)(1) for

personal injury caused by the negligent or wrongful act or

omission of any employee of the Government while acting

within the scope of his office or employment, under

circumstances where the United States, if a private person,

would be liable to the claimant in accordance with the law

of the place where the act or omission occurred.

Under the discretionary function exception, this waiver of sovereign immunity

shall not apply to—

(a) Any claim based upon an act or omission of an employee

of the Government, exercising due care, in the execution of

a statute or regulation, whether or not such statute or

8 See, e.g., Wadhwa v. Nicholson, 367 F. App'x 322, 325 (3d Cir. 2010) (holding district court

properly dismissed without prejudice unexhausted FTCA claim); Bray v. Bon Secours Mercy

Health, Inc., 97 F.4th 403, 418 (6th Cir. 2024) (“We therefore find that the district court

correctly dismissed plaintiffs’ [FTCA] claim without prejudice for failure to exhaust[.]”)

regulation be valid, or based upon the exercise or

performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency or an employee of the Government, whether or not

the discretion involved be abused.…

28 U.S.C. § 2680(a).

1. Unconstitutional Government Conduct Is Per Se Outside the

Discretionary Function Exception.

Recently, the Third Circuit held that “unconstitutional government conduct is

per se outside the discretionary function exception[,]” because a Government

employee does not have discretion to violate the Constitution. Xi v. Haugen, 68 F.4th

824, 839 (3d Cir. 2023). “At the motion-to-dismiss stage, all a plaintiff must do to

negate the discretionary function exception is plausibly allege a constitutional

violation.” Id. at 840. Thus, the Court will first determine whether Plaintiff’s

exhausted FTCA claim states a plausible constitutional violation.

a. Whether Plaintiff adequately alleged that Government

employees, by limiting the use of Cares Act home

confinement to reduce the prison population, violated the

Eighth Amendment?

Plaintiff exhausted his FTCA claim that Government employees were

deliberately indifferent to his health and safety9 by limiting the use of their authority

9 “A claim of inhumane prison conditions may rise to the level of an Eighth Amendment

violation where the prison official ‘deprived the prisoner of the minimal civilized measure of

life's necessities’ and ‘acted with deliberate indifference in doing so, thereby exposing the

inmate to a substantial risk of serious damage to [his] future health.’” Palakovic v. Wetzel, 854

F.3d 209, 225 (3d Cir. 2017) (quoting Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016)

(quoting Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 226 (3d Cir. 2015)).

to reduce the prison population during the COVID-19 pandemic. The Coronavirus

Aid, Relief, and Economic Security (“CARES”) Act, provides, in relevant part:

HOME CONFINEMENT AUTHORITY.—During the

covered emergency period, if the Attorney General finds

that emergency conditions will materially affect the

functioning of the Bureau [of Prisons], the Director of the

Bureau may lengthen the maximum amount of time for

which the Director is authorized to place a prisoner in home

confinement under the first sentence of section 3624(c)(2) of

title 18, United States Code, as the Director determines

appropriate.

PL 116-136, March 27, 2020, 134 Stat 281, Sec. 12003(b)(2) (alteration added). The

Court takes judicial notice, under Federal Rule of Civil Procedure 201(b), of the Office

of Attorney General’s March 26, 2020 “Memorandum for Director of Bureau of

Prisons[.]” (Declaration of Ashley (“Crisson Decl.”), Attach. J, Dkt. No. 39-4 at 88-

90.) The Attorney General instructed the Director of the Bureau of Prisons to “transfer

inmates to home confinement where appropriate to decrease the risks to their health.”

The Attorney General offered this guidance, “[i]n assessing which inmates should be

granted home confinement . . . , you are to consider the totality of the circumstances

for each individual inmate, the statutory requirements for home confinement, and the

following non-exhaustive list of discretionary factors[.]” Id. The listed factors

included the age and medical vulnerability of the inmate, the security level of the

facility where the inmate was housed, the inmate’s conduct in prison, the inmate’s

recidivism risk score (“PATTERN score”), the inmate’s re-entry plan, the inmate’s

crime of conviction, and an assessment of the risk of danger posed to the community

by the inmate’s release to home confinement. Id.

The Court takes judicial notice of the April 3, 2020, “Memorandum for Director

of Bureau of Prisons” issued by the Attorney General. (Crisson Decl., Attach. K, Dkt.

No. 39-4 at 91-94). Pursuant to the CARES act, the Attorney General directed the

Bureau of Prisons to “immediately maximize appropriate transfers to home

confinement of all appropriate inmates” from the correctional facilities most affected

by the spread of COVID-19. In the memorandum, the Attorney General also

conveyed the following message:

The last thing our massively over-burdened police forces

need right now is the indiscriminate release of thousands of

prisoners onto the streets without any verification that those

prisoners will follow the laws when they are released, that

they have a safe place to go where they will not be mingling

with their old criminal associates, and that they will not

return to their old ways as soon as they walk through the

prison gates. Thus, while I am directing you to maximize

the use of home confinement at affected institutions, it is

essential that you continue making the careful,

individualized determinations BOP makes in the typical

case. Each inmate is unique and each requires the same

individualized determinations we have always made in this

context.

Plaintiff’s vague allegation that BOP staff were deliberately indifferent to his

health by limiting their use of CARES Act home confinement fails to state an Eighth

Amendment claim. By delegation from the Attorney General, the CARES Act

required BOP employees to consider the totality of circumstances for each offender

before releasing the offender to home confinement. It is difficult to imagine how

Plaintiff could establish deliberate indifference by the limited use of home

confinement for inmates in this context. Therefore, the FTCA claim does not allege

a constitutional violation, and it is subject to the discretionary function exception, if

applicable.

b. Whether Plaintiff adequately alleged that BOP and FCI

Fort Dix employees violated the Eighth Amendment by

failing to adopt, implement and enforce mandatory

COVID-19 testing and effective quarantine procedures?

Plaintiff alleged a second theory of liability in support of his exhausted FTCA

claim, that Government employees were deliberately indifferent to his health,

constituting cruel and unusual punishment, by failing to adopt, implement and enforce

mandatory testing and adequate quarantine measures to his prevent his exposure to

COVID-19. The Eighth Amendment imposes duties on prison officials “who must

provide humane conditions of confinement; prison officials must ensure that inmates

receive adequate food, clothing, shelter, and medical care, and must “take reasonable

measures to guarantee the safety of the inmates[.]” Farmer v. Brennan, 511 U.S. 825,

832 (1994) (citing Hudson v. Palmer, 468 U.S. 517, 526–527 (1984) (additional citations

omitted)); accord Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010).

Specifically, under the Eighth Amendment, “prison officials may [not] be deliberately

indifferent to the exposure of inmates to a serious, communicable disease.” Helling v.

McKinney, 509 U.S. 25, 33 (1993). In other words, prison officials have a limited duty

to protect an inmate’s future health. Id. To allege the objective component of such a

claim, the plaintiff must show “that he [] is being exposed to” an unreasonable risk to

his health. Id. at 35. This entails inquiry into “the seriousness of the potential harm”

and “requires a court to assess whether society considers the risk that the prisoner

complains of to be so grave that it violates contemporary standards of decency to

expose anyone unwillingly to such a risk.” Id. at 36; see Mammana v. Fed. Bureau of

Prisons, 934 F.3d 368, 372–73 (3d Cir. 2019) (quoting Farmer, 511 U.S. at 834) (“the

deprivation alleged must be, objectively, ‘sufficiently serious,’” resulting in “the denial

of ‘the minimal civilized measure of life’s necessities.’”)

The subjective component of an Eighth Amendment conditions of confinement

claim demands a showing that “prison officials are deliberately indifferent to [the

prisoner’s] plight.” Id. at 35. “[D]eliberate indifference describes a state of mind more

blameworthy than negligence[.]” Farmer, 511 U.S. at 835. The Supreme Court

explained the standard as follows:

a prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of

confinement unless the official knows of and disregards an

excessive risk to inmate health or safety; the official must

both be aware of facts from which the inference could be

drawn that a substantial risk of serious harm exists, and he

must also draw the inference.

Id. at 837. If the official did not perceive a significant risk, his conduct “cannot . . . be

condemned as the infliction of punishment.” Id. at 838.

In a case brought by immigration detainees, the Third Circuit held the

Constitution does not require prison officials to eliminate all risk that an inmate will

contract COVID-19. Hope v. Warden York Cnty. Prison, 972 F.3d 310, 330 (3d Cir.

2020). Plaintiff alleges Government employees were deliberately indifferent to his

health because they “were not meeting the basic recommendation of [CDC].”

(Compl., Dkt. No. 1 at 2.) The Government looked to CDC for guidance on

responding to the spread of the novel COVID-19 virus. The Court takes judicial notice

of “People who are at higher risk for severe illness” published on the CDC website on

March 22, 2020.10 CDC continued to update this information based on new

10 Available at https://stacks.cdc.gov/view/cdc/86074. The CDC advised:

Based upon available information to date, those at high-risk for

severe illness from COVID-19 include:

People aged 65 years and older

People who live in a nursing home or long-term care facility

Other high-risk conditions could include:

People with chronic lung disease or moderate to severe asthma

People who have serious heart conditions

People who are immunocompromised including cancer treatment

People of any age with severe obesity (body mass index [BMI]

>40) or certain underlying medical conditions, particularly if not

well controlled, such as those with diabetes, renal failure, or liver

disease might also be at risk

People who are pregnant should be monitored since they are

known to be at risk with severe viral illness, however, to date data

on COVID-19 has not shown increased risk

Many conditions can cause a person to be

immunocompromised, including cancer treatment, bone

marrow or organ transplantation, immune deficiencies, poorly

controlled HIV or AIDS, and prolonged use of corticosteroids

and other immune weakening medications

information.11 Plaintiff did not allege that he had any of the risk factors that put him

at higher risk for severe illness from COVID-19.

Nevertheless, early in the pandemic, CDC had not determined all risk factors

that might cause an individual to be at higher risk for severe illness or death from

COVID-19. The Government turned to CDC to recommend measures to protect

everyone, not just those known to be at higher risk, from contracting the virus.

Therefore, Plaintiff sufficiently alleged that the danger to his health was sufficiently

serious that contemporary standards of decency would not allow Defendants to sit idly

by while the virus spread to inmates who were not known to be at higher risk for severe

illness or death from COVID-19.

Under the Eighth Amendment, “prison officials who actually knew of a

substantial risk to inmate health or safety may be found free from liability if they

responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer,

511 U.S. at 844. In the early days of the pandemic, CDC guidance was “based on

what is currently known about the transmission and severity of coronavirus disease

2019 (COVID-19) as of March 30, 2020.” CDC Guidance and Management of

COVID-19 in Correctional and Detention Facilities, supra n. 3. To prevent the spread

of COVID-19 within correctional and detention facilities, CDC recommended “screen

everyone coming in for symptoms,” and specifically “screen … staff daily on entry.”

11 See “Underlying Medical Conditions Associated with Higher Risk for Severe COVID-19:

Information for Healthcare Professionals” (updated April 12, 2024). Available at

https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-

care/underlyingconditions.html.

Id. at 8-9. Regarding isolation and quarantine, CDC recommended immediate

medical isolation for “symptomatic people,” ideally to be confined to an individual

cell, but if unavailable, confined in a cohort of similar inmates. Id. at 13-15. CDC

recommended that inmates with confirmed cases of COVID-19 should not be grouped

or “cohorted” with inmates with suspected cases of COVID-19. Id. at 16.

CDC’s quarantine recommendations, as of March 30, 2020, included

identifying those inmates with close contacts to a confirmed or suspected case of

COVID-19. Id. at 18. When quarantine of a single exposed inmate in a single cell was

unavailable, group cohorting was the next best option. Id. at 19. If inmates in a whole

housing unit were exposed, CDC recommended the inmates quarantine in place. Id.

at 19. CDC also recommended that facilities “do not add people to an existing

quarantine cohort” and “do not mix people quarantined due to exposure with people

under routine intake quarantine.” Id. at 20.

Plaintiff alleges he was exposed to COVID-19 in October 2020, and he tested

positive on November 2, 2020. On October 7, 2020, CDC published an update to its

guidance for correctional and detention facilities.12 In addition to verbal screening and

temperature checks daily for staff, CDC recommended facilities “consider strategies

for testing asymptomatic staff without known [] exposure” and “[f]ollow guidance

from the Equal Employment Opportunity Commission when offering testing to staff.”

12 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and

Detention Facilities, Oct. 7, 2020, at 2, https://www.lb7.uscourts.gov/documents/14-

186URL3correction-.pdf.

Id. at 14. CDC did not recommend mandatory testing of staff. Therefore, Plaintiff’s

allegation that BOP and FCI Fort Dix staff were deliberately indifferent to his health

by failing to implement and enforce mandatory staff testing, an action that went

beyond CDC’s recommendations, fails to state an Eighth Amendment claim.

Plaintiff further alleged that inadequate quarantine policies and practices caused

him to contract COVID-19 on November 2, 2020. Accepting Plaintiff’s allegations as

true, he was in quarantined housing Unit 5812 on October 19, 2020. He tested

negative on October 19, 2020, and again on October 29, 2020, but he was not removed

from the quarantine unit. At that time, CDC advised, “[c]ohorting multiple

quarantined close contacts could transmit SARS-CoV-2 from those who are infected

to those who are uninfected. Cohorting should only be practiced if there are no other

available options.” Id. at 25. Plaintiff has not alleged that any other quarantine

housing options were available at FCI Fort Dix. CDC further recommended:

Incarcerated/detained persons who are close contacts of

someone with confirmed or suspected COVID-19 (whether

the infected individual is another incarcerated/detained

person, staff member, or visitor) should be placed

under quarantine for 14 days. … :

◦ If a quarantined individual is tested again during

quarantine and they remain negative, they should

continue to quarantine for the full 14 days after last

exposure and follow all recommendations of local

public health authorities.

Id. at 24. Plaintiff alleges Defendants were deliberately indifferent to his health

because he was exposed to inmates who tested positive for COVID-19 on October 19,

22, 26, and 29, 2020. However, CDC recommended exposed inmates remain in

quarantine for a full 14 days since their last exposure. Id. (emphasis added). Thus,

Plaintiff failed to allege Defendants were deliberately indifferent by failing to

implement the CDC quarantine release recommendation.

Plaintiff further alleges in his exhausted FTCA claim that on October 26, 2020,

56 inmates who tested positive for COVID-19 were removed from Unit 5812 to

medical isolation, but they were returned to Unit 5812 later that afternoon. CDC

recommended that:

If the facility is housing individuals with confirmed

COVID-19 as a cohort:

◦ Only individuals with laboratory-confirmed

COVID-19 should be placed under medical isolation

as a cohort. Do not cohort those with confirmed

COVID-19 with those with suspected COVID-19,

with close contacts of individuals with confirmed or

suspected COVID-19, or with those with

undiagnosed respiratory infection who do not meet

the criteria for suspected COVID-19[.]

Id. at 20.

However, in its guidance to correctional and detention facilities CDC stated,

“[t]he guidance may need to be adapted based on individual facilities’ physical space,

staffing, population, operations, and other resources and conditions.” Supra note 13.

Because Plaintiff has not alleged that FCI Fort Dix had no valid reason to adapt the

CDC quarantine/medical isolation policy, he has not sufficiently pled that

Defendants acted with deliberate indifference to his health. CDC guidelines were

advisory. Without alleging Defendants had a safer option reasonably available to

them and chose not to follow it, Plaintiff fails to allege the element of deliberate

indifference. The Court turns to whether the discretionary function exception is

applicable to Plaintiff’s claims of negligence.

2. Application of the Discretionary Function Exception

The discretionary function exception “marks the boundary between Congress’s

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

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

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

(1984). With this exception, Congress sought to “prevent judicial ‘second-guessing’ of

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

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

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

“To invoke the discretionary-function exception, the Government must show

two things: (1) its agent's action “involve[d] an element of judgment or choice” and

(2) its agent's judgment was “of the kind that the ... exception was designed to shield,”

meaning that it was “susceptible to policy analysis.” Clark v. Sec'y of United States Navy,

No. 23-1784, --F.4th--, 2024 WL 2340775, at *1 (3d Cir. May 23, 2024) (quoting

Gaubert, 499 U.S. at 322–23, 325 (brackets and internal quotation marks omitted in

Clark). It has long been recognized, in the prison administration context, that BOP is

“accorded wide ranging deference in the adoption and execution of policies and

practices that in their judgment are needed to preserve internal order and discipline

and to maintain institutional security.” Whitley v. Albers, 475 U.S. 312, 321, 322

(1986).

Under the first step of the discretionary function analysis, “[i]f a law, regulation,

or policy leaves the agent no meaningful choice, the exception does not apply.” Clark

2024 WL 2340775, at *2 (quoting Xi v. Haugen, 68 F.4th 824, 837–38 (3d Cir. 2023)).

The Government must show its agent(s) had the discretion to act. Id. A plaintiff may

attempt to rebut the Government’s showing by pointing to limits on that discretion.

Id. At the second step of the analysis, “the Government must show that the agent's

function was discretionary.” Id. Courts must look at the agent’s duty and determine

the discretion needed to carry out that duty. Id. If the agent’s duty can be analyzed or

debated in policy terms, courts should presume that the exception applies. Id.

Plaintiff alleges BOP and FCI Fort Dix staff had a duty to protect inmate health

by reducing the spread of COVID-19 in the prison. 18 U.S.C. § 4042(a) provides, in

relevant part:

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

of the Attorney General, shall—

(1) have charge of the management and regulation of

all Federal penal and correctional institutions;

(2) provide suitable quarters and provide for the

safekeeping, care, and subsistence of all persons

charged with or convicted of offenses against the

United States, or held as witnesses or otherwise[.]

This statute gives BOP officials discretion in carrying out these duties. Sargent v. United

States, 620 F. App'x 69, 71 (3d Cir. 2015).

a. Discretionary nature of CARES Act home confinement

provision.

Plaintiff alleges BOP and FCI Fort Dix employees were negligent in protecting

his health by limiting their use of the CARES Act home confinement provision to

reduce the prison population and allow for social distancing. As discussed above, the

CARES Act allowed BOP complete discretion in determining whether each individual

prisoner was appropriate for early release to home confinement. Plaintiff has not

pointed to any mandatory statute or regulation.

The next question is for application of the discretionary function exception is

whether the discretionary judgment at issue is susceptible to policy analysis. CARES

Act home confinement determinations for each individual prisoner involved social

policy considerations. BOP was directed to weigh factors regarding the risk of each

inmate’s exposure to COVID-19 and the danger each inmate posed to society before

releasing an inmate to home confinement during the pandemic. Therefore, the

discretionary function exception bars Plaintiff from bringing this claim under the

FTCA.

b. Discretionary nature of CDC guidance for correctional

and detention facilities.

Plaintiff alleges BOP and FCI Fort Dix employees were negligent in protecting

his health by failing to impose mandatory COVID-19 testing, failing to quarantine

inmates who tested positive for COVID-19 from those who tested negative for

COVID-19; and failing to implement the “basic recommendations” of the CDC.

Again, 18 U.S.C. § 4042 allows BOP discretion in “provid[ing] suitable quarters and

provid[ing] for the safekeeping, care, and subsistence of all persons charged with or

convicted of offenses against the United States….” Rinaldi v. United States, 904 F.3d

257, 273 (3d Cir. 2018). “The [Supreme] Court also emphasized that the judiciary is

“ill equipped to deal with the increasingly urgent problems of prison administration

and reform” and should therefore give significant deference to judgments made by

prison officials in establishing, interpreting, and applying prison regulations. Fraise v.

Terhune, 283 F.3d 506, 515 (3d Cir. 2002) (quoting Turner v. Safely, 482 U.S. 78 at 84–

85 (1987)).

Plaintiff does not point to any mandatory statute, regulation or BOP policy for

the protection of inmates from COVID-19 in FCI Fort Dix. Instead, his claim is based

on the failure to follow CDC’s guidance for correctional and detention facilities,

particularly for staff testing and quarantine procedures. CDC’s recognized the

discretionary nature of its guidance; “[t]he guidance may need to be adapted based on

individual facilities’ physical space, staffing, population, operations, and other

resources and conditions.” Supra note 11. Therefore, the Court must determine

whether the exercise of such discretion by BOP and FCI Fort Dix staff involved policy

considerations.

The issue of mandatory testing of staff raised social and economic policy

considerations. Staff may have been unwilling to be tested at their own expense, on

their own time, or for other personal reasons. Staff resignations over mandatory

testing may have presented severe operational issues for FCI Fort Dix. If the cost of

mandatory testing was to be covered by the prison, this raised economic policy

considerations on how to best spend the limited resources available for operating the

prisons, as many more expenses would be anticipated during a nationwide pandemic.

The decision of how to quarantine inmates was dependent on the availability of

testing, physical space and staff. The decision required prison officials to set priorities

to accommodate all the different risks posed to inmates and staff, and to meet all the

basic needs of all inmates. Such determinations implicate social and public policy

considerations with prison operations. See Rinaldi, 904 F.3d at 273 (decisions

regarding prison housing and cellmate assignments involve the type of policy

considerations the discretionary function exception of the FTCA was designed to

protect); Donaldson v. United States, 281 F. App'x 75, 77 (3d Cir. 2008) (internal

quotation omitted ) (“how best to protect one inmate from the threat of attack by

another—is of the kind that the discretionary function exception was designed to

shield”); Calderon v. United States, 123 F.3d 947, 951 (7th Cir. 1997) (“It is clear that

balancing the need to provide inmate security with the rights of the inmates to circulate

and socialize within the prison involves considerations based upon public policy”);

Busara v. United States, No. 2:21-CV-4055, 2023 WL 4946460, at *8 (W.D. La. Apr.

27, 2023), report and recommendation adopted sub nom. Busara v. USA, No. 2:21-CV-

04055, 2023 WL 4938479 (W.D. La. Aug. 2, 2023) (finding the task of responding to

a global pandemic involves social, economic and political policy). Therefore, the

discretionary function exception to the FTCA bars Plaintiff’s exhausted claim.

Consequently, only Plaintiff’s Bivens claims remain.

D. Whether the Court Should Imply a Damages Remedy for New Bivens

Claims?

“[E]xpanding the Bivens remedy is now a ‘disfavored’ judicial activity.” Ziglar

v. Abbasi, 582 U.S. 120, 135 (2017). In prior cases, the Supreme Court recognized a

Bivens remedy only three times: (1) Bivens,13 a Fourth Amendment unreasonable

search and seizure claim based on the warrantless search of the claimant’s home by

federal narcotics agents, and his arrest on narcotics charges without probable cause;

(2) Davis v. Passman, 442 U.S. 228 (1979), a Fifth Amendment equal protection claim

against a Congressman for gender discrimination in the workplace; and (3) Carlson v.

Green, 446 U.S. 14 (1980), an Eighth Amendment claim against federal prison

officials for failing to provide emergency medical care to treat an inmate’s life-

threatening asthma. Id. at 130-31.

In 2022, the Supreme Court further instructed courts to hesitate before

recognizing a Bivens damages remedy because “creating a cause of action is a

legislative endeavor,” “the Judiciary’s authority” to create a Bivens remedy is “at

best, uncertain,” and if it “were called to decide Bivens today, [it] would decline to

discover any implied causes of action in the Constitution.” Egbert v. Boule, 596 U.S.

482, 491, 502 (2022) (citation omitted). Yet, the Court retained the two-step

framework for consideration of a Bivens damages remedy. First, courts must ask

whether the case presents “a new Bivens context” and, if so, whether there are

“‘special factors’ indicating that the Judiciary is at least arguably less equipped than

13 Supra note 6.

Congress to ‘weigh the costs and benefits of allowing a damages action to proceed.’”

Id. at 492 (emphasis added). The Court advised that “in all but the most unusual

circumstances, prescribing a cause of action is a job for Congress, not the courts[.]”

Id. at 486. “Unless the Supreme Court has recognized the context before, the context

is ‘new’ and a special factors inquiry is required to determine if Bivens expansion is

appropriate.” Mack v. Yost, 968 F.3d 311, 319 (3d Cir. 2020).

Under the second step of the analytical framework, “a Bivens remedy will not

be available if there are ‘special factors counselling hesitation in the absence of

affirmative action by Congress.’” Abbasi, 582 U.S. at 136 (quoting Carlson, 446 U.S.

at 18 (quoting Bivens, 403 U.S. at 396)). Under this step, courts must consider

“whether the Judiciary is well suited, absent congressional action or instruction, to

consider and weigh the costs and benefits of allowing a damages action to proceed.”

Id. The two analytical steps “often resolve to a single question: whether there is any

reason to think that Congress might be better equipped to create a damages remedy.”

Egbert, 596 U.S. at 482 (emphasis added). Ultimately, “[i]f there is even a single

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

Bivens remedy.” Id.

1. Whether Plaintiff’s Claims Present a New Bivens Context?

COVID-19 was unprecedented and placed high demands on correctional and

detention facilities. (Decl. of N. Turner-Foster, Dkt. No. 39-5); (Crisson Decl., Dkt.

No. 39-4); (Declaration of Adam Sassaman, Dkt. No. 39-6). Therefore, Plaintiff’s

Eighth Amendment claim based on Defendants’ alleged deliberate indifference to

Plaintiff’s health by exposing Plaintiff to COVID-19 undeniably presents a new

Bivens context. See Greer v. Caravajal, No. 5:22-cv-00334-VBF-JDE, 2022 WL

4826513, at *6 (C.D. Cal. June 30, 2022), report and recommendation adopted sub nom.

Greer v. Carvajal, 2022 WL 4842927 (C.D. Cal. Sept. 30, 2022) (collecting cases).

Plaintiff also alleges an Eighth Amendment claim based on conditions of

confinement including overcrowding, lack of sanitation, broken windows, spoiled

food, lack of heat and lead pipes. This claim is meaningly different from the three

prior cases where the Supreme Court implied a damages remedy, none of which

involved the physical living conditions in a prison. See, Mammana, 856 F. App’x at

414-15 (holding an Eighth Amendment conditions-of-confinement claim against

federal prison officials presents a new Bivens context).

Plaintiff further alleges prison employees were deliberately indifferent to his

serious medical needs in violation of the Eighth Amendment by delaying treatment

for H. Pylori, shortness of breath, and other unidentified medical conditions during

the COVID-19 pandemic. In Carlson, where the Supreme Court recognized a

damages remedy, the estate of a deceased federal prisoner brought an Eighth

Amendment claim against prison officials who failed to provide any medical

treatment for the decedent’s asthma, resulting in the death of the inmate. 446 U.S.

14. “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.” Hernandez v. Mesa, 589 U.S. 93, 743 (2020).

Relevant here, Dr. Turner Foster explained:

In order to minimize the movement of inmates, sick call

slips were distributed in the housing units. Inmate[s] were

triaged at the daily Pill-line. … Pill line was conducted

while inmates were obtaining their grab and go meal[s].

Pill Line was conducted one unit at a time. …

A Registered Nurse ran sick call Monday through Friday.

The Nurse triaged the complaints, and any priority

complaints were discussed with the Nurse Practitioner or

me, as the Clinical Director at the Facility and assigned

physician at the Camp. All other routine sick call

complaints were scheduled for a later date. . . .

The COVID-19 pandemic had a profound impact on

medical providers throughout New Jersey, making

“routine” medical care more scarce in 2020. That fact,

combined with necessary limitations of movement and

BOP quarantine policies, affected the Health Services

Department’s ability to access outside services in 2020.

Accordingly, wait times for non-emergent outside medical

services increased for FCI Fort Dix inmates.

(Decl. of N. Turner-Foster, Dkt. No. 39-5 at 4-5.) Plaintiff’s Eighth Amendment

claim of inadequate medical care arises in a new Bivens context because providing

medical care to inmates during COVID-19 was significantly impacted by the need to

prioritize limited health care resources.

2. Whether Special Factors Counsel Hesitation in Implying a

Damages Remedy?

The Supreme Court has instructed that if “there is any reason to think that

Congress might be better equipped to create a damages remedy[,]”in a new Bivens

context, then courts should not imply a damages remedy. Egbert, 596 U.S. at 492.

Defendants have offered multiple reasons why this Court should hesitate to create a

damages remedy for Plaintiff’s constitutional claims, including: (1) there are

alternative processes capable of protecting the interests at stake; (2) separation-of-

powers; (3) congressional action; and (4) the potentially enormous social costs in

extending Bivens to Eighth Amendment claims. (Defs’ Brief, Dkt. No. 39-1 at 51-56.)

Defendants have identified alternate processes that protect inmates’ Eighth

Amendment interests in humane conditions of confinement and adequate medical

care, including the BOP administrative remedy program, 28 C.F.R. § 542.10 et seq.;

motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A); FTCA damages

remedy (where appropriate); and injunctive relief under 28 U.S.C. § 1331. The

Supreme Court has stated, “when alternative methods of relief are available, a Bivens

remedy usually is not.” Abbasi, 582 U.S. at 145; see Egbert, 596 U.S. at 498 (“the

ability to submit a grievance through a process created by Congress or the Executive

with a sufficient level of deterrence should not be second-guessed by the courts

superimposing a Bivens remedy”). The ultimate question is whether the court,

“rather than the political branches, is better equipped to decide whether existing

remedies should be augmented by the creation of a new judicial remedy.” Id. at 493

(internal quotation marks omitted).

Here, Plaintiff had existing remedies available to obtain injunctive relief,

although his claim for injunctive relief became moot when he was released from

prison. Plaintiff also had a claim for damages available under the FTCA, assuming

that he alleged a plausible constitutional violation and administratively exhausted the

claim before bringing suit. The Supreme Court in Egbert explained why this is a

sufficient reason not to extend a Bivens damages remedy in a new context:

the question whether a given remedy is adequate is a

legislative determination that must be left to Congress, not

the federal courts. So long as Congress or the Executive

has created a remedial process that it finds sufficient to

secure an adequate level of deterrence, the courts cannot

second-guess that calibration by superimposing a Bivens

remedy. That is true even if a court independently

concludes that the Government's procedures are “not as

effective as an individual damages remedy.” Bush [v.

Lucas], 462 U.S. [367,] 372, 103 S.Ct. 2404 [1983].

Id. at 498.

Plaintiff has raised several Bivens claims in new contexts under the Eighth

Amendment: physical condition of the prison; conditions of confinement involving

protection from COVID-19; and inadequate medical care during the COVID-19

pandemic. “Recognizing any new Bivens action, entail[s] substantial social costs,

including the risk that fear of personal monetary liability and harassing litigation will

unduly inhibit officials in the discharge of their duties.” Id. at 499 (internal quotation

marks and quotation omitted). The Supreme Court warned, “[e]ven in a particular

case, a court likely cannot predict the systemwide consequences of recognizing a

cause of action under Bivens.” Id. at 493 (internal quotation marks and quotation

omitted). Therefore, special factors counsel hesitation in implying a Bivens damages

remedy for Plaintiff’s Eighth Amendment claims, and this Court will dismiss the

Bivens claims for lack of jurisdiction.

V. CONCLUSION

Plaintiff’s requests for injunctive relief based on his Eighth Amendment

conditions of confinement claims are moot because he has been released from

confinement by the Bureau of Prisons. The Court lacks jurisdiction over Plaintiff’s

unexhausted FTCA claims, which will be dismissed without prejudice. The Court

lacks jurisdiction over Plaintiff’s exhausted FTCA claim under the discretionary

function exception, and the claim will be dismissed with prejudice. Finally, the

Court declines to imply a Bivens damages remedy for Plaintiff’s constitutional claims,

and the Bivens claims will be dismissed with prejudice for lack of jurisdiction.

An appropriate Order follows.

DATE: June 20, 2024

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge