Landis v. Ebbert

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CARLTON THEODORE LANDIS, : CIVIL ACTION NO. 1:19-CV-470

:

Plaintiff : (Judge Conner)

:

v. :

:

CORRECTIONAL OFFICER MOYER, :

BUREAU OF PRISONS, :

:

Defendants :

MEMORANDUM

Plaintiff Carlton Theodore Landis, a prisoner who was housed at all

relevant times at the United States Penitentiary, in Lewisburg, Pennsylvania

(“USP Lewisburg”), filed an amended complaint against defendants Senior

Officer Moyer and the Federal Bureau of Prisons (“BOP”), purporting to sue them

under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), state

tort law, and the Administrative Procedures Act. Before the court are defendants’

motion to dismiss or, in the alternative, for summary judgment; Landis’s motion for

reconsideration; and Landis’s motion for a preliminary injunction. For the reasons

set forth below, we will grant defendants’ motion to dismiss. Because our analysis

begins and ends with defendants’ dispositive motion, we do not consider the merits

of Landis’s motions.

I. Factual Background & Procedural History

Landis’s amended complaint arises from a series of events that he alleges

began in the fall of 2018 while he was incarcerated at USP Lewisburg. Landis

alleges that at some unspecified time in the fall of 2018, he complained to prison

officials about a dangerous cell assignment. (See Doc. 78 at 12 ¶ 1). Specifically,

Landis claims that he had been forced to share a cell with a prisoner who was

“openly adverse” to Landis’s prior cooperation with federal authorities. (See id.)

According to Landis, prison officials retaliated against him for his complaints “by

unjustly revoking his recreation from September 21, 2018, to October 4, 2018.” (See

id.)

On October 5, 2018, after Landis participated in recreation, defendant Moyer

escorted him back to his cell. (See id. at 12 ¶ 2). Landis complained to Moyer that,

during recreation, other prisoners had threatened and harassed him about his prior

cooperation. (See id.) Landis claims Moyer then threw him against a wall, applied

pressure to his neck, buttocks, and groin, and suggested that Landis would not have

to worry about such harassment if he “wasn’t a snitch.” (Id. at 12-13 ¶ 2). Landis

alleges he suffered various injuries as a result of this assault, including soreness,

bruising, and swelling of his testicles, buttocks, and inner thighs, and swelling of

his left eye. (See id. at 16-17 ¶ 15).

Landis asserts that he filed a grievance related to the October 5, 2018

harassment and assault. (See id. at 13 ¶ 3). He claims officials at USP Lewisburg

thereafter retaliated against him for filing the grievance by revoking his recreation

from October 8, 2018, through June 1, 2019. (See id.) He further claims officials at

various BOP facilities continue to retaliate against him by removing his protective

custody status and changing his housing assignments. (Id. at 14-15 ¶¶ 5, 7).

Defendants move to dismiss Landis’s amended complaint pursuant to Rules

12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment pursuant to Rule

56. The motion is fully briefed and ripe for resolution.

II. Legal Standards

A. Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss

a claim for lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Such

jurisdictional challenges take one of two forms: (1) parties may levy a “factual”

attack, arguing that one or more of the pleading’s factual allegations are untrue,

removing the action from the court’s jurisdictional ken; or (2) they may assert a

“facial” challenge, which assumes the veracity of the complaint’s allegations but

nonetheless argues that a claim is not within the court’s jurisdiction. See Lincoln

Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015) (quoting CNA

v. United States, 535 F.3d 132, 139 (3d Cir. 2008)). In either instance, it is the

plaintiff’s burden to establish jurisdiction. See Mortensen v. First Fed. Sav. &

Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).

B. Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the

dismissal of complaints that fail to state a claim upon which relief may be granted.

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule

12(b)(6), the court must “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under

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

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker

v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

Federal notice and pleading rules require the complaint to provide “the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts

a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31

(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a

plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a

claim must be separated; well-pleaded facts are accepted as true, while mere legal

conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578

F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual

allegations, it must determine whether they are sufficient to show a “plausible claim

for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550

U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]

the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion

Defendants’ Rule 12(b) motion raises both jurisdictional and merits

challenges to Landis’s claims. Our analysis begins, as it must, with defendants’

challenges to the court’s subject-matter jurisdiction.

A. Jurisdictional Challenges

1. Official Capacity Claim Against Defendant Moyer

Defendants argue first, and correctly, that Landis’s Bivens claim against

defendant Moyer in his official capacity is barred by sovereign immunity. (See Doc.

120 at 13-14). Sovereign immunity constitutes a jurisdictional bar to claims against

the United States and its agencies, unless Congress has specifically waived such

immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). Moreover, “[a]n action

against government officials in their official capacities constitutes an action against

the United States” and is therefore also “barred by sovereign immunity, absent an

explicit waiver.” Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (nonprecedential);

Webb v. Desan, 250 F. App’x 468, 471 (3d Cir. 2007) (nonprecedential).1 And Bivens

does not waive sovereign immunity with respect to claims brought against federal

employees sued in their official capacities. See Corr. Servs. Corp. v. Malesko, 534

U.S. 61, 72 (2001). Thus, to the extent Landis attempts to assert a Bivens claim

against Moyer in his official capacity, that claim is barred by sovereign immunity

1 The court acknowledges that nonprecedential decisions are not binding

upon federal district courts. Citations to nonprecedential decisions reflect that the

court has carefully considered and is persuaded by the panel’s ratio decidendi.

and will be dismissed for lack of jurisdiction. See Lewal, 289 F. App’x at 516; Webb,

250 F. App’x at 471.2

2. State-Law Tort Claims

Landis attempts to sue defendant Moyer for various state-law tort claims,

including negligence, negligent infliction of emotional distress, intentional infliction

of emotional distress, and assault and battery. (See Doc. 89 at 3; see also Doc. 149 at

304). The proper avenue to pursue such tort claims is a suit against the United

States under the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. §§ 2674, 2679;

CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008) (“The Government is the

only proper defendant in a case brought under the FTCA.”). The FTCA allows

federal prisoners to sue the United States for injuries sustained while incarcerated.

2 Landis counters that he can proceed on his official-capacity claim against

Moyer because he seeks only declaratory and injunctive relief on that claim. (See

Doc. 149 at 5). However, Landis is no longer housed at USP Lewisburg. Article

III of the United States Constitution provides that the judicial power of the United

States shall extend to “cases” and “controversies.” See U.S. CONST., art. III, § 2.

“[F]ederal courts may adjudicate only actual, ongoing cases or controversies,”

Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990), and “[i]t is a basic principle

of Article III that a justiciable case or controversy must remain ‘extant at all stages

of review, not merely at the time the complaint is filed,’” United States v. Juvenile

Male, 564 U.S. 932, 936 (2011) (citation omitted). Generally, a prisoner’s transfer

from the facility complained of moots claims for equitable and declaratory relief.

See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003); Johnson v. Wenerowicz, 440

F. App’x 60, 62 (3d Cir. 2011) (nonprecedential) (prisoner’s request for injunctive

and declaratory relief against named defendants was rendered moot by transfer to

another prison). Because Landis is no longer incarcerated at USP Lewisburg, he

does not present a live case or controversy for injunctive or declaratory relief

against Moyer regarding the policies or practices at that facility.

See 28 U.S.C. § 2674. Federal district courts have jurisdiction over civil actions

against the United States for damages

for injury or loss of property, or personal injury or death

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.

28 U.S.C. § 1346(b)(1). The court may not entertain a civil suit for a claim

cognizable under Section 1346(b) against “any employee of the Government while

acting within the scope of his office or employment.” See 28 U.S.C. § 2679(b)(1).

As a threshold matter, we note that Landis expressly states that he does

not want his complaint construed as “asserting any claim under the Federal Tort

Claims Act.” (See Doc. 89 at 2). Thus, to the extent Landis’s complaint appears

to pursue an FTCA claim, he has expressly disavowed it. Landis believes he can

nonetheless proceed on his tort claims against defendant Moyer under the common

law because Moyer acted outside the scope of his employment when he committed

the alleged torts. (See Doc. 149 at 6-7; see also Doc. 89 at 2-3). Upon review of the

allegations of the complaint, there is no question Moyer was acting within the scope

of his BOP employment at the time of the alleged incidents. See CNA, 535 F.3d at

146-47 (looking to state-law factors to determine if conduct was within scope of

defendant’s employment, namely, if it is “the kind [the employee] is employed to

perform,” “occurs substantially within the authorized time and space limits,” and

“is actuated, at least in part, by a purpose to serve” the employer). The complaint

offers no factual allegations whatsoever suggesting Moyer acted outside the scope

of his employment; to the contrary, it establishes he was working in his capacity as

a corrections officer within USP Lewisburg at the time of the alleged incidents.

Accordingly, the United States is the only proper defendant with respect

to any tort claim Landis seeks to pursue, and those claims must be brought under

the FTCA. Landis has been adamant that he does not want to proceed against the

United States under the FTCA; he wishes to proceed only against defendant Moyer,

which as a matter of law, he cannot do. See 28 U.S.C. § 2679(b)(1). Thus, the court

will grant defendants’ motion to dismiss these claims for lack of jurisdiction.

B. Merits Challenges

1. Administrative Procedures Act

Landis asserts that he is suing under the Administrative Procedures Act

(“APA”), 5 U.S.C. § 701 et seq., to compel the BOP to comply with its own policies.

(See Doc. 78 at 14-15). The APA creates a private right of action for judicial review

of “final agency action for which there is no other adequate remedy in a court,” see

generally 5 U.S.C. §§ 702, 704, and waives the sovereign immunity of the United

States for claims falling within the Act’s ambit, see id. § 702. Pursuant to Section

706 of the APA, a reviewing court may set aside a final agency action if it is found

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” See id. § 706(2)(A).

The parties dispute whether Landis’s APA claim arises from a “final

agency action.” But they ignore a threshold legal hurdle—Landis’s claims are not

cognizable under the APA. In Section 3625 of Title 18 of the United States Code,

Congress explicitly provided that “sections 554 and 555 and 701 through 706 of [the

APA] do not apply to the making of any determination, decision, or order” under

certain statutes governing federal imprisonment. See 18 U.S.C. § 3625; see also id.

§§ 3621-3624, 3626. The referenced statutes concern BOP security classifications

and housing determinations, see id. § 3621(b), as well as claims with respect to

remedies for prison conditions, see id. § 3626. Our court of appeals has held that

Section 3625 effectively forecloses judicial review under the APA of prisoner claims

challenging security classifications, housing designations, and similar decisions

made by the BOP. See Burnam v. Marberry, 313 F. App’x 455, 456 (3d Cir. 2009)

(nonprecedential) (citing 18 U.S.C. § 3625; Martin v. Gerlinski, 133 F.3d 1076, 1079

(8th Cir. 1998)); see also Murray v. Young, No. 12-1673, 2012 WL 5398628, at *5 (M.D.

Pa. Nov. 5, 2012) (APA claim not available for challenge to placement in special

management unit (citation omitted)); Harrison v. Fed. Bureau of Prisons, 248 F.

Supp. 3d 172, 182-83 (D.D.C. 2017) (citing Burnam v. Marberry, No. 07-CV-97, 2008

WL 4190785, at *7 (W.D. Pa. Sept. 10, 2008), aff’d, 313 F. App’x 455, and noting

“housing and security determinations . . . fall into [exempt] category”). As the

Eighth Circuit explained in Martin, the effect of Section 3625 is to “preclude[]

judicial review of agency adjudicative decisions but not of rulemaking decisions.”

See Martin, 133 F.3d at 1079.

Landis’s APA claim falls squarely within the category of claims exempted

from judicial review by Section 3625. Landis challenges the BOP’s adjudicative

decisions changing his protective custody status and housing assignments and

denying him recreation. (See Doc. 78 at 15; Doc. 149 at 7-8). As we observed supra,

Section 3625 eliminates any private cause of action under the APA for such claims.

See 18 U.S.C. § 3625 (incorporating, inter alia, Section 3621(b), as to housing and

security determinations, and Section 3626, as to remedies for prison conditions); see

also Burnam, 313 F. App’x at 456. Landis, for his part, fails to acknowledge this bar

to his APA claim, much less attempt to surmount it. Accordingly, we conclude that

the claim under the APA, as styled in Landis’s pleading, is incognizable as a matter

of law. We will dismiss Landis’s APA claim.

2. Bivens Excessive-Force Claim

Defendants next move to dismiss Landis’s excessive-force claim on the basis

that there is no Bivens remedy available for this Eighth Amendment claim following

the United States Supreme Court’s decision in Ziglar v. Abbasi, 582 U.S. ____, 137

S. Ct. 1843 (2017).3 In Bivens, the Supreme Court recognized an implied damages

remedy for a Fourth Amendment violation committed by federal officials, whose

conduct was not encompassed by the statutory remedy available against state

actors under 42 U.S.C. § 1983. See Bivens, 403 U.S. at 397. More than 50 years have

passed since Bivens was handed down in June 1971. In that time, the Court has

extended the Bivens remedy only twice: first, to a claim for gender discrimination

under the Fifth Amendment’s Due Process Clause, see Davis v. Passman, 442 U.S.

228, 248-49 (1979), and later to a claim for inadequate prison medical care under the

3 Defendants also move to dismiss any claims against the BOP under Bivens.

(See Doc. 120 at 17). In the amended complaint, Landis clarifies he is only raising a

Bivens claim against defendant Moyer. (See Doc. 78 at 16; see also Doc. 149 at 8).

We therefore construe Landis’s pleading as stating a Bivens claim against Moyer

alone.

Cruel and Unusual Punishment Clause of the Eighth Amendment, see Carlson

v. Green, 446 U.S. 14, 18-23 (1980).

The Abbasi decision invoked by defendants sets forth a two-part test for

determining whether a prospective Bivens claim may proceed. First, courts must

ascertain whether the case presents a “new context.” See id. at 1859. If the case

differs “in a meaningful way from previous Bivens cases decided by th[e Supreme]

Court, then the context is new.” Id. And the meaning of “new context” is “broad.”

See Hernandez v. Mesa, 589 U.S. ___, 140 S. Ct. 735, 743 (2020). Second, if the case

presents a new context, the court must then consider whether “special factors”

counsel against extending the Bivens remedy. See id. This inquiry asks whether

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

and benefits of allowing a damages action to proceed.” See Egbert v. Boule, 596

U.S. ___, 142 S. Ct. 1793, ___, slip op. at 7 (2022) (quoting Abbasi, 137 S. Ct. at 1858).

If a court concludes that “even a single reason” exists to pause “before applying

Bivens in a new context or to a new class of defendants,” then special factors

counseling hesitation exist and a Bivens remedy does not lie. See id. (quoting

Hernandez, 140 S. Ct. at 743) (internal quotation marks omitted); Hernandez, 140 S.

Ct. at 743.

The Supreme Court’s decision in Egbert v. Boule, 596 U.S. ___, 142 S. Ct.

1793 (2022), handed down just last month, reemphasized that the Court’s continued

refusal to “imply a similar cause of action for other alleged constitutional violations”

is intentional—recognizing a new Bivens cause of action is “a disfavored judicial

activity.” See Egbert, slip op. at 2, 6 (quoting Abbasi, 137 S. Ct. at 1857; Hernandez,

140 S. Ct. at 742-43). Egbert clarified that the two-step process laid out in Abbasi

“often resolve[s] to a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” See id. at 7. In

other words: if there is “any rational reason (even one) to think that Congress is

better suited” to determine the propriety of a cause of action, then a Bivens action

cannot proceed. See id. at 11. The court must broadly inquire whether “there is

any reason to think that ‘judicial intrusion’ into a given field might be ‘harmful’ or

‘inappropriate’”—and if the answer is “yes,” or even potentially yes, the plaintiff

cannot recover under Bivens. See id. (quoting United States v. Stanley, 483 U.S.

669 681 (1987)). Mindful of Egbert’s recent clarification and emphasis on the

presence of special factors, we proceed with Abbasi’s two-step analysis.

a. New Context

Landis alleges that defendant Moyer used excessive force against him

in violation of his Eighth Amendment rights. There is no question that Landis’s

excessive-force claim presents a new context—it is “different in a meaningful way

from previous Bivens cases decided by [the Supreme] Court.” See Ziglar, 137 S. Ct.

at 1859. Landis’s instant claim on its face “bear[s] little resemblance” to “a claim

against FBI agents for handcuffing a man in his own home without a warrant; a

claim against a Congressman for firing his female secretary; and a claim against

prison officials for failure to treat an inmate’s asthma,” the contexts previously

recognized by the Supreme Court. See Ziglar, 137 S. Ct. at 1860. Landis is correct

that Bivens itself involved an excessive-force claim; that claim, however, arose

under the Fourth Amendment, not the Eighth, and in an entirely different factual

setting. As the Supreme Court recently reminded us, such “superficial similarities”

are insufficient to justify creating a Bivens remedy. See Egbert, slip op. at 10

(quoting Abbasi, 137 S. Ct. at 1859) (observing that even “almost parallel

circumstances . . . are not enough”).4

Of the three cases in which the Supreme Court has recognized Bivens claims,

only Carlson—involving an Eighth Amendment claim for failure to provide medical

care—is tenably relevant. In Carlson, a prisoner’s estate filed suit alleging that

prison officials had been fully aware of the prisoner’s serious “chronic asthmatic

condition” as well as the “gross inadequacy” of medical facilities and staff at the

Federal Correctional Center in Terre Haute, Indiana. See Carlson, 446 U.S. at 16

n.1. The estate alleged officials failed to provide the prisoner “competent medical

attention for some eight hours after he had an asthmatic attack,” including an

inordinate delay of his transfer to an outside hospital, all of which led to the

prisoner’s death. See id.

At the outset, we note that the Supreme Court’s approach to the Fifth

Amendment claims of prisoner abuse raised in Abbasi suggests it may not find

excessive-force claims to be within Carlson’s scope. The claims at issue in Abbasi

4 Landis contends that his claim does not arise in a “new” context, but

assumes for the sake of argument that the court will disagree with him, alleging that

he “knows that this Court . . . is more concerned with managing its docket instead

of weeding out clarity in the midst of argumentation.” (See Doc. 149 at 9). Just last

year, this court wrote at length on the question of whether prisoner excessive-force

claims under the Eighth Amendment constitute a “new context” in light of Abbasi.

See Hill v. Lappin, 561 F. Supp. 3d 481, 486-88 (M.D. Pa. 2021) (Conner, J.) Rather

than merely incorporating our analysis from Hill, we reiterate that analysis in full

herein for Landis’s benefit.

arose under a different constitutional amendment than this case, and they involved

markedly different facts (a warden’s alleged deliberate indifference to an abusive

environment toward certain immigration detainees after the September 11, 2001

terrorist attacks), see Abbasi, 137 S. Ct. at 1863-64, but they were, in essence, claims

of failure to remedy prisoner mistreatment. The Court conceded the case had

“significant parallels to . . . Carlson,” which it also characterized as a “prisoner

mistreatment” case. See id. at 1864. But the Court nonetheless refused to extend

Bivens to the claims before it, concluding the type of mistreatment alleged—“that a

warden allowed guards to abuse pre-trial detainees”—was meaningfully different

than the mistreatment at issue in Carlson. See id. at 1864-65. The Court noted,

inter alia, that the constitutional claims were distinct, the law as to the scope of the

warden’s supervisory responsibilities was not as refined, and there may have been

other remedies available. See id. These differences, the Court reasoned, were

enough to set the case apart from Carlson. See id.

Landis’s claim is also markedly different from the Eighth Amendment

inadequate medical care claim recognized in Carlson. See Mammana v. Barben,

856 F. App’x 411 (3d Cir. 2021) (nonprecedential) (rejecting prisoner’s argument

that Carlson gives footing to Eighth Amendment conditions-of-confinement claim

against federal prison officials). The claims do arise under the same constitutional

amendment, but a common constitutional basis is simply not enough to link a

new Bivens theory to an existing Bivens context. See Hernandez, 140 S. Ct. at

743 (indicating courts must “look beyond the constitutional provisions invoked”).

Nor is it enough that the new theory matches an existing context at a high level of

generality, i.e., “prisoner mistreatment.” Cf. Abbasi, 137 S. Ct. at 1864-65; see also

Hernandez, 140 S. Ct. at 743 (“[O]ur understanding of a ‘new context’ is broad.”).

Other than high-level parallels, Landis’s claim differs meaningfully from

Carlson. It differs in terms of the nature and scope of the misconduct alleged, and

it differs in the legal standards and judicial guidance that would apply to that

misconduct. See Abbasi, 137 S. Ct. at 1860; see also Mammana v. Barben, No. 4:17-

CV-645, 2020 WL 3469074, at *3 (M.D. Pa. June 25, 2020) (Brann, J.) (noting differing

elements for medical-deliberate-indifference and conditions-of-confinement claims),

aff’d, 856 F. App’x 411. We conclude that Landis’s excessive-force claim presents a

new context for purposes of Bivens.

b. Special Factors

Having concluded Landis’s claim presents a new context, we must ask

whether “there are any special factors that counsel hesitation” in extending Bivens.

See Hernandez, 140 S. Ct. at 743 (internal quotation marks and alterations omitted)

(quoting Abbasi, 137 S. Ct. at 1857). Although courts may consider various special

factors, see Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir. 2018) (citing Abbasi, 137 S. Ct.

at 1856-63), two “are ‘particularly weighty’: availability of an alternative remedial

structure and separation-of-powers concerns,” see Mack v. Yost, 968 F.3d 311, 320

(3d Cir. 2020) (quoting Bistrian, 912 F.3d at 90).

In its recent decision in Egbert, the Supreme Court reiterated its prior

emphasis on the availability of alternative remedies, see Egbert, slip op. at 13,

further extending the Court’s longstanding view that “when alternative methods of

relief are available, a Bivens remedy usually is not,” see Abbasi, 137 S. Ct. at 1863

(citing Bush v. Lucas, 462 U.S. 367, 386-88 (1983); Schweiker v. Chilicky, 487 U.S.

412, 425-26 (1988); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74 (2001); Minneci

v. Pollard, 565 U.S. 118, 125-26 (2012)). The BOP’s administrative remedy program

provides just such an alternative process for seeking relief. See Malesko, 534 U.S.

at 68 (holding that “administrative review mechanisms” can provide “meaningful

redress”—even if they do not “fully remedy the constitutional violation”). And

Egbert makes clear that the question for this court is not whether a Bivens damages

remedy would be more effective, nor even whether the existing remedy is sufficient.

“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, slip op. at 13. The

existence of the BOP’s administrative remedy process “independently forecloses”

a Bivens remedy in this new context. See id. at 12.

Assuming arguendo the BOP’s administrative remedy program does not

constitute an alternative remedy, we must still consider whether there are other

factors—in particular, separation-of-powers concerns—that weigh against creating

a Bivens remedy to fill the void. See Wilkie v. Robbins, 551 U.S. 537, 550 (2007).

The essential inquiry “is ‘who should decide’ whether to provide for a damages

remedy, Congress or the courts?” See Abbasi, 137 S. Ct. at 1857. Thus, any special-

factors assessment must seek to discern whether Congress would want the federal

judiciary to impose “a new substantive legal liability” in a particular case. See id. at

1857-58. In Egbert, the Supreme Court stressed that “even one” reason to believe

the federal legislature is better equipped to provide a damages remedy means a

Bivens action cannot proceed. See Egbert, slip op. at 11.

Congress’s silence, particularly when it has already legislated in a given

sphere, can be “telling” in this analysis. See Abbasi, 137 S. Ct. at 1862, 1865. The

Supreme Court has suggested that Congress’s omission of a “standalone damages

remedy against federal jailers” from the Prison Litigation Reform Act (“PLRA”),

enacted 15 years after Carlson, may imply a congressional intent to limit Carlson’s

damages remedy to its context. See id. at 1865. Our court of appeals has disagreed

with this notion as a broad proposition, opining Congress’s silence in the PLRA

does not necessarily signal legislative intent that “a Bivens cause of action should

not exist at all.” See Bistrian, 912 F.3d at 93; see also Mack, 968 F.3d at 323-24

(quoting Bistrian, 912 F.3d at 93). But as one panel of the court more recently

observed, “congressional silence on prison litigation can still counsel hesitation in

some contexts,” particularly when—as here—the alleged mistreatment is “different

. . . than that alleged in Carlson.” See Mammana, 856 F. App’x at 415.

We conclude the claims sub judice warrant hesitation. The Supreme Court

has never extended Bivens to excessive-force claims against federal prison officials.

As we have previously observed, such claims squarely implicate BOP policy and are

“inextricably tied to the preservation of institutional rules and order.” See Hill,

561 F. Supp. 3d at 489. Adjudicating prisoner excessive-force claims would also

“entangle the federal judiciary in byzantine issues of prison administration and

institutional security and would impact BOP operations ‘systemwide.’” See id.

(quoting Abbasi, 137 S. Ct. at 1858) (citing Mammana, 2020 WL 3469074, at *4). For

all these reasons, we hold, as this court and many others have now concluded,5 that

special factors weigh decisively against extending Bivens to this new context. The

court, therefore, declines to extend Bivens to Landis’s Eighth Amendment

excessive-force claim and his claim will be dismissed.

C. Leave to Amend

Our court of appeals requires district courts to grant leave to amend before

dismissing a civil rights complaint for failure to state a claim, unless amendment

would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103,

114 (3d Cir. 2002); Phillips, 515 F.3d at 245 (citing Alston v. Parker, 363 F.3d 229, 235

(3d Cir. 2004)). The court finds that amendment would be futile for several reasons.

First, amendment cannot remedy the many jurisdictional and legal defects that we

have identified in Landis’s amended complaint; these defects are incapable of being

cured by an amended pleading. Second, to the extent other problems with Landis’s

pleading are factual in nature, we have already granted Landis leave to file several

5 See, e.g., Bone v. Ebbert, No. 3:19-CV-112, 2022 WL 943036, at *7-9 (M.D.

Pa. March 29, 2022) (declining to extend Bivens to prisoner’s Eighth Amendment

excessive-force claim); Figaro v. Pistro, No. 21-CV-2346, 2021 WL 2577071, at *2-3

(E.D. Pa. June 22, 2021) (noting Third Circuit has not recognized a Bivens claim

for excessive force under the Eighth Amendment); Hill, 561 F. Supp. 3d at 490 n.5

(holding Eighth Amendment excessive-force claim is a new context and special

factors counsel against extending Bivens remedy) (citing, inter alia, Brown v. Nash,

No. 3:18-CV-528, 2019 WL 7562785, at *4-6 (S.D. Miss. Dec. 13, 2019) (concluding

Bivens did not extend to prisoner’s Eighth Amendment claim of excessive force,

noting, inter alia, that concerns of institutional security counseled hesitation),

report and recommendation adopted, 2020 WL 129101 (S. D. Miss. Jan. 10, 2020);

Hunt v. Matevousian, 336 F. Supp. 3d 1159, 1169-70 (E.D. Cal. Oct. 1, 2018)

(declining to extend Bivens to prisoner’s Eighth Amendment claim of excessive

force, noting “Congress has been active in the area of prisoners’ rights, and its

actions do not support the creation of a new Bivens claim”)).

amendments to his initial complaint, none of which has remedied the deficiencies in

his claims. See Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944 F.3d 478,

483 (3d Cir. 2019) (when prisoner plaintiff “has already had two chances to tell his

story . . . giving him further leave to amend would be futile”). We will dismiss

Landis’s pleading without further leave to amend.

IV. Conclusion

We will grant defendants’ Rule 12(b) motion (Doc. 115) to dismiss. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: July 11, 2022