YAEGER v. SONG

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SHAWN YAEGER,

Case No. 22–cv–05056–ESK–SAK

Plaintiff,

v.

OPINION

DR. HWAJUNG SONG,

Defendant.

KIEL, U.S.D.J.

THIS MATTER comes before the Court on defendant Dr. Hwajung Song’s

motion to dismiss the second amended complaint (Motion) (ECF No. 63.)

Plaintiff Shawn Yaeger opposes the Motion and asked permission to file an

overlength brief. (ECF No. 70.) For the following reasons, I will grant

plaintiff’s request to file his overlength brief. I will grant the Motion and

dismiss the second amended complaint with prejudice.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff filed a pro se complaint on August 15, 2022 pursuant to Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)

alleging Dr. Song was deliberately indifferent to his need for dental care while

he was detained in FCI Fort Dix, New Jersey (Fort Dix). (ECF No. 1.) He

submitted an amended complaint on September 14, 2022. (ECF No. 5.)

District Judge Noel L. Hillman reviewed the amended complaint pursuant to

28 U.S.C. § 1915 and allowed it to proceed on October 11, 2022. (ECF No. 9.)

Dr. Song filed a motion for judgment on the pleadings on April 24, 2023.

(ECF No. 39.) Judge Hillman denied the motion as moot after plaintiff filed

the second amended complaint. (ECF No. 61.) Dr. Song filed the Motion on

October 10, 2023. (ECF No. 63.) Plaintiff submitted opposition to the motion

and requested to file an overlength brief. (ECF No. 70.)

According to the second amended complaint, plaintiff was detained in Fort

Dix on September 22, 2021. (ECF No. 59 p. 19.) Dr. Song was Fort Dix’s

Chief Dental Officer. (Id.) On September 22, 2021, plaintiff went to sick-call

due to “extreme pain” in his tooth. (Id.) He did not receive treatment for

several weeks and contacted the associate warden on October 13, 2021 for help.

(Id.) The associate warden suggested that plaintiff return to sick-call. (Id.)

Plaintiff went back to sick-call the next morning and asked Dr. Song “either to

repair the bad tooth that was causing him significant pain or if she is unwilling

to repair the tooth then asking her to immediately pull the tooth.” (Id.)

Plaintiff submitted several requests to Dr. Song asking her to treat his

tooth. (Id.) Dr. Song asked plaintiff to come to dental on November 29, 2021

for an examination and x-rays. (Id.) “At the time Dr. Song told the [p]laintiff

that she was not seeing him for anything else so don’t ask.” (Id.) She told

plaintiff that she would see him again in a couple weeks. Plaintiff did not

receive any other treatment until April 18, 2022 when Dr. Song extracted

plaintiff’s tooth. (Id.)

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 12(b)(6), when deciding a

motion to dismiss, a court accepts all well-pled facts as true, construes the

complaint in the plaintiff’s favor, and determines “whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.”

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal

quotation marks omitted). “Under Federal Rule of Civil Procedure 8(a)(2), a

complaint must contain a ‘short and plain statement of the claim showing that

the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

To survive a Rule 12(b)(6) challenge, the plaintiff’s claims must be facially

plausible, meaning that the well-pled facts “allow[] the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Id. at 678. The allegations must be “more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555. Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must

consider only the complaint, exhibits attached to the complaint, matters of

public record, as well as undisputedly authentic documents if the complainant’s

claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010).

III. DISCUSSION

Dr. Song argues that the second amended complaint must be dismissed

because it presents a new context that does not warrant an implied remedy

under Bivens. (ECF No. 63-2 p. 5.) She also argues that plaintiff has failed

to state an Eighth Amendment claim against her and that she has qualified

immunity for the claim “because there is no clearly established right to dental

care to address subjective reports of oral pain, particularly during the COVID-

19 pandemic, when non-health threatening dental care was temporarily

suspended by [the Bureau of Prisons] nationwide.” (Id.) Plaintiff opposes,

arguing that his claim for denial of medical care is a recognized Bivens claim.

(ECF No. 70 p. 8 (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)).

“In Bivens, the Court held that it had authority to create ‘a cause of action

under the Fourth Amendment’ against federal agents who allegedly manacled

the plaintiff and threatened his family while arresting him for narcotics

violations.” Egbert v. Boule, 596 U.S. 482, 490 (2022) (quoting Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971)).

“Over the following decade, the Court twice again fashioned new causes of

action under the Constitution—first, for a former congressional staffer’s Fifth

Amendment sex-discrimination claim; and second, for a federal prisoner’s

inadequate-care claim under the Eighth Amendment.” Id. at 490–91 (citing

Davis v. Passman, 442 U.S. 228 (1979); Carlson v. Green, 446 U.S. 14 (1980)).

“In the fifty-two years since Bivens was decided, however, the Supreme Court

has pulled back the reins to what appears to be a full stop and no farther.” Xi

v. Haugen, 68 F.4th 824, 832 (3d Cir. 2023).

In 2017, the Supreme Court concluded “that expanding the Bivens remedy

is now a ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 582 U.S. 120, 135

(2017); see also Hernández v. Mesa, 589 U.S. 93, 101 (2020) (“In both statutory

and constitutional cases, our watchword is caution.”). “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.”

Abbasi, 582 U.S. at 131. “Indeed, in light of the changes to the Court’s general

approach to recognizing implied damages remedies, it is possible that the

analysis in the Court’s three Bivens cases might have been different if they were

decided today.” Id. at 134.

Abbasi “created a funnel through which plaintiffs alleging constitutional

violations by federal officials must pass.” Alexander v. Ortiz, No. 15–cv–06981,

2018 WL 1399302, at *4 (D.N.J. Mar. 20, 2018). “First, we ask whether the

case presents ‘a new Bivens context’—i.e., is it ‘meaningful[ly]’ different from

the three cases in which the Court has implied a damages action.” Egbert, 596

U.S. at 492 (quoting Abbasi, 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.”

Shorter v. United States, 12 F.4th 366, 372 (3d Cir. 2021). “[I]f it is a new

context, we ask, second, whether there are special factors’ indicating that the

Judiciary is at least arguably less equipped than Congress to weigh the costs

and benefits of allowing a damages action to proceed.” Xi, 68 F.4th at 833

(internal quotation marks omitted). The Supreme Court has “observed that

these 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’; if

so, [the court] may not expand Bivens to cover the claim.” Id. (quoting Abbasi,

582 U.S. at 136).

A. New Bivens Context

Carlson is the most relevant of the three remedy cases to plaintiff’s claims.

There, the Supreme Court recognized a Bivens cause of action where federal

prison officials failed to treat a prisoner’s chronic asthma which culminated in

a fatal attack. Carlson v. Green, 446 U.S. 14 (1980). Here, plaintiff alleges

Dr. Song failed to treat his injured tooth for several months while he was in

extreme pain. He asserts an Eighth Amendment claim for denial of medical

care is a recognized Bivens claim. (ECF No. 70 p. 8.) However, it is not

enough that plaintiff alleges an Eighth Amendment violation due to a prison

official’s deliberate indifference to medical needs post-Egbert. See Egbert, 596

U.S. at 501 (“[A] plaintiff cannot justify a Bivens extension based on ‘parallel

circumstances’ with ... Carlson unless he also satisfies the ‘analytic framework’

prescribed by the last four decades of intervening case law.”).

“[T]he Supreme Court ha[s] made clear that the category of ‘new contexts’

is ‘broad,’ and this threshold test is ‘easily satisfied.’” Xi v. Haugen, 68 F.4th

824, 834 (3d Cir. 2023) (quoting Hernández, 589 U.S. at 102; Abbasi, 582 U.S.

at 139). “A context may be regarded as new if it is different in any ‘meaningful

way’ from the three contexts where the Court has recognized a Bivens remedy,

and even ‘a modest extension is still an extension.’” Id. (quoting Abbasi, 582

U.S. at 139, 142). I find that plaintiff’s Eighth Amendment claim is

meaningfully different from the facts in Carlson because plaintiff alleges that

prison officials failed to properly treat his chronic and non-life-threatening

condition. “[T]he Carlson Court extended an implied cause of action for money

damages pursuant to Bivens where the alleged deliberate indifference of prison

officials was most serious; it resulted in a fatality of a prisoner.” Peguero v.

Quay, No. 1:22–cv–00057, 2023 WL 2410882, at *10 (M.D. Pa. Mar. 8, 2023)

(declining to extend Bivens remedy to claim of chronic low back pain); see also

Mostafa v. Garland, No. 20–cv–00694, 2024 WL 37977, at *13 (D. Colo. Jan. 3,

2024) (finding “allegations concern[ing] health maintenance issues of

inadequate dental care” to be a new context); Washington v. Fed. Bureau of

Prisons, No. 5:16–cv–03913, 2022 WL 3701577, at *5 (D.S.C. Aug. 26, 2022)

(“Plaintiff’s Bivens claims do not involve a medical emergency, as did Carlson,

but rather focus on a long term and ongoing course of medical treatment of

[p]laintiff’s chronic, non-fatal condition.”).

Plaintiff’s claim that Dr. Song failed to treat his ongoing dental issues is

meaningfully different from the medical emergency faced by the inmate in

Carlson that ultimately resulted in death. See Dongarra v. Smith, 27 F.4th

174, 180–81 (3d Cir. 2022) (“Carlson extended Bivens to remedy prison officers’

failure to give medical assistance. But there, the prisoner died because of the

officers’ neglect. Put differently, the risk that the prison officer ignored (death

from not treating the prisoner’s chronic asthma) in fact resulted.”). “This

difference is significant for multiple reasons, including that administrative and

injunctive relief would have a completely different application to [p]laintiff’s

claims than to the claims in Carlson ….” Washington, 2022 WL 3701577, at

*5; see also Holton v. Finley, No. 4:21–cv–00737, 2024 WL 1919238, at *9 (M.D.

Pa. Mar. 21, 2024) (concluding claim was meaningly different from Carlson

because the administrative remedy system in Carlson was not available as

complaint was filed by prisoner’s estate), report and recommendation adopted,

No. 4:21–cv–00737, 2024 WL 1913172 (M.D. Pa. May 1, 2024). Therefore,

plaintiff’s claim presents a new Bivens context, and the Court must proceed to

the second step of review.

B. Special Factors

Step two requires the Court to consider “whether special factors counsel

hesitation in extending a Bivens remedy.” Xi, 68 F.4th at 836 (cleaned up).

“The Bivens inquiry does not invite federal courts to independently assess the

costs and benefits of implying a cause of action. A court faces only one

question: whether there is any rational reason (even one) to think that Congress

is better suited to ‘weigh the costs and benefits of allowing a damages action to

proceed.’” Egbert, 596 U.S. at 496 (quoting Abbasi, 582 U.S. at 136). “If there

is even a single ‘reason to pause before applying Bivens in a new context,’ a

court may not recognize a Bivens remedy.” Id. at 492 (quoting Hernández, 589

U.S. at 102); see also Graber v. Doe II, 59 F.4th 603, 609 (3d Cir. 2023).

The 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.’” Egbert, 596 U.S. at 495 (quoting

Abbasi, 582 U.S. at 137). The Supreme Court has held that the Bureau of

Prison’s administrative remedy program satisfies this requirement. Id. at 497

(citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001)); see also Bulger v.

Hurwitz, 62 F.4th 127, 140–41 (4th Cir. 2023) (finding that Bureau of Prison’s

administrative remedy is a sufficient “alternative remedial structure” in special

factors analysis); Silva v. United States, 45 F.4th 1134, 1141 (10th Cir. 2022)

(same). It is irrelevant that monetary damages are not available through the

Bureau of Prison’s program. “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.” Egbert, 596 U.S. at 498. The Court “recognize[s] this

remedial scheme might prove to be cold comfort to [plaintiff], who seeks an

adversarial process and monetary damages, but the Supreme Court has

declared that the government’s procedures need not be as effective as an

individual damages remedy to foreclose Bivens relief.” Barry v. Anderson, et

al., No. 22–cv–03098, 2023 WL 8449246, at *4 (3d Cir. Dec. 6, 2023).

Therefore, I conclude that plaintiff lacks a viable Bivens action and will

dismiss the second amended complaint with prejudice.1

IV. CONCLUSION

For the reasons stated above, I will grant both plaintiff’s request to file an

overlength brief and the Motion. I will dismiss the second amended complaint

with prejudice. An appropriate order accompanies this opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: June 20, 2024

1 As I am dismissing the second amended complaint based on the lack of a viable

Bivens action, it is unnecessary to address Dr. Song’s qualified immunity argument.