# Castro a/k/a Worthington v. United States of America

> District Court, M.D. Pennsylvania · February 7, 2023

URL: https://www.frixlaw.com/law-library/cases/10412772

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 7, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412772

## How later opinions describe it (automated extraction)

- noting that “[s]o long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MAXIMO CASTRO, a/k/a Carl : Civil No. 1:21-CV-02162
Worthington, :
:
Plaintiff, :
:
v. :
:
UNITED STATES OF AMERICA, et :
al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
Plaintiff’s complaint raises claims under the Federal Tort Claims Act
(“FTCA”) and Bivens, alleging that he was forced into a cell contaminated with the
Covid-19 virus with another inmate who was exhibiting signs of Covid-19 at the
time. (Doc. 1.) He alleges that he contracted Covid-19 and is continuing to
experience symptoms of “long covid” and extreme mental anguish. (Id.)
Defendants have filed a joint motion to dismiss and motion for summary judgment.
(Doc. 21.) Prior to Defendants filing their motion, Plaintiff filed requests that Dr.
Sommer and the unnamed medical professionals be voluntarily dismissed as
defendants in this action. (Docs. 16, 20.) The court will grant Plaintiff’s voluntary
dismissal requests and grant Defendants’ joint motion for dismissal and summary
judgment.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff, a federal inmate currently housed in the United States Penitentiary,

Canaan (“USP-Canaan”), initiated this action by filing a complaint in December of
2021, alleging that in December of 2020, he was placed in a cell with another
inmate who was exhibiting symptoms of Covid-19. (Doc. 1, p. 4.)1 Plaintiff
alleges that the cell had previously been occupied by an inmate who had tested

positive for Covid-19, and it had not been properly decontaminated prior to his
placement in the cell. (Id.) He further alleges that after being housed with the
symptomatic inmate in the contaminated cell, he contracted Covid-19. (Id.) He

alleges that he has since suffered from symptoms of “long Covid,” and extreme
mental anguish. (Id.) He brought a claim under the FTCA against the United
States of America and claims under Bivens against the unit manager at USP-
Canaan, P. Kurilla, the Warden at USP-Canaan, Eric Bradley, the clinical director

at USP-Canaan, Diane Sommer, and unnamed physician assistant and doctors.
(Id.)
On January 21, 2022, the court entered an order granting Plaintiff’s motion

to proceed in forma pauperis and directing service on the named defendants. (Doc.
10.) This same order granted Plaintiff thirty days to provide the court with
sufficient information to identify of the unknown medical professionals listed as

1 For ease of reference, the court utilizes page numbers from the CM/ECF header.
defendants. (Id.) On March 25, 2022, Plaintiff stated that he had been unable to
identify these unknown medical professionals and consented to these unnamed

defendants being dismissed from the action. (Doc. 16.)
On April 6, 2022, Defendants filed a notice giving Defendant thirty days in
which to file a certificate of merit or the United States would seek dismissal of all

FTCA medical professional liability claims. (Doc. 17.) On April 18, 2022,
Plaintiff filed a response to Defendants’ notice stating that he did not have the
physical or financial ability to obtain the necessary certificate of merit and
requested that Dr. Sommer and the unnamed medical professionals be dismissed as

defendants in this action. (Doc. 20.)
On May 23, 2022, Defendants filed a joint motion to dismiss and a motion
for summary judgment. (Doc. 21.) They filed a brief in support and statement of

undisputed material facts on June 6, 2023. (Docs. 24, 25.) On June 16, 2022,
Defendant filed a brief in opposition to the pending motion. (Doc. 27.)
The court will now address Plaintiff’s request to voluntarily dismiss Dr.
Sommer and the unnamed medical professionals as defendants in this case.

Likewise, the court will address Defendants’ pending joint motion to dismiss and
motion for summary judgment.
JURISDICTION AND VENUE
The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil
cases arising under the Constitution, laws, or treaties of the United States. Venue
is proper in this district because the alleged acts and omissions giving rise to the
claims occurred at USP-Canaan, located in Wayne County, Pennsylvania, which is

located within this district. See 28 U.S.C. § 118(b).
MOTION TO DISMISS STANDARD
In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint
survives a motion to dismiss, a court identifies “the elements a plaintiff must plead
to state a claim for relief,” disregards the allegations “that are no more than
conclusions and thus not entitled to the assumption of truth,” and determines
whether the remaining factual allegations “plausibly give rise to an entitlement to
relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).
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)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, as well as undisputedly authentic documents”
attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon

these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196
(3d Cir. 1993)).
The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193
(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be

granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend, unless such an amendment would be inequitable or futile.
See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.

2014); see also Phillips, 515 F.3d at 245. A complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to recover is properly
dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d

103, 106 (3d Cir. 2002).
MOTION FOR SUMMARY JUDGMENT STANDARD
A court may grant a motion for summary judgment when “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is material if resolution of
the dispute “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is
not precluded by “[f]actual disputes that are irrelevant or unnecessary.” Id. “A

dispute is genuine if a reasonable trier-of-fact could find in favor of the
nonmovant’ and ‘material if it could affect the outcome of the case.” Thomas v.
Tice, 943 F.3d 145, 149 (3d Cir. 2019) (quoting Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 300 (3d Cir. 2012)).
In reviewing a motion for summary judgment, the court must view the facts
in the light most favorable to the non-moving party and draw all reasonable
inferences in that party’s favor. Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288
(3d Cir. 2018) (citing Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006)). The court may not “weigh the evidence”

or “determine the truth of the matter.” Anderson, 477 U.S. at 249. Instead, the
court’s role in reviewing the facts of the case is “to determine whether there is a
genuine issue for trial.” Id.

The party moving for summary judgment “bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any,’ which it believes demonstrate the

absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). The non-moving party must then
oppose the motion, and in doing so “‘may not rest upon the mere allegations or

denials of [its] pleadings’ but, instead, ‘must set forth specific facts showing that
there is a genuine issue for trial. Bare assertions, conclusory allegations, or
suspicions will not suffice.’” Jutrowski, 904 F.3d at 288–89 (quoting D.E. v. Cent.
Dauphin Sch. Dist., 765 F.3d 260, 268–69 (3d Cir. 2014)).

Summary judgment is appropriate where the non-moving party “fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”

Celotex, 477 U.S. at 322. “The mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be evidence on which the
jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252. “Where

the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

DISCUSSION
A. Dr. Sommer and Unnamed Medical Professionals Will Be Dismissed
as Defendants.
Plaintiff has twice petitioned this court to voluntarily remove defendants
from this action. The first was a request that the unnamed medical professionals be
removed as defendants. (Doc. 16.) The second was a request that Dr. Sommer and
the unnamed medical professionals be removed as defendants in this action. (Doc.

20.) Federal Rule of Civil Procedure 41 grants the court authority to enter an order
dismissing claims or parties at the plaintiff’s request on terms that the court
considers proper. Therefore, the court will grant Plaintiff’s requests and dismiss

Dr. Sommer and the unnamed medical professionals as defendants in this action
without prejudice to any action Plaintiff may later bring against these individuals.
B. Facts Material to the Claims.
1. Covid-19 Symptoms and Diagnosis

In the complaint, Plaintiff alleges that on December 1, 2020, while housed at
USP-Canaan, he and Inmate Derrick Davis (“Davis”) were forced by Defendant
Kurilla to move into a cell that two days prior had housed two inmates who had
tested positive for Covid-19. (Doc. 1, p. 4.) He alleges that the cell had not been

“properly decontaminated.” (Id.) Furthermore, he alleges that on December 1,
2020, Davis was experiencing “flu-like symptoms.” (Id., p. 4.) Plaintiff alleges
that both he and Davis objected to the forced consolidation into this particular cell.

(Id.) He alleges that in response to their objections, Defendant Kurilla stated that
“this is coming straight from the Warden.” (Id.) Plaintiff alleges that on
December 4, 2020, Davis tested positive for Covid-19, and on December 10, 2020,
he tested positive for Covid-19. (Id.) Plaintiff acknowledges that the BOP has

stated that both he and Davis tested negative for Covid-19 on November 28, 2020,
prior to the consolidation. (Id.) He alleges that he developed “long Covid” and
extreme mental anguish. (Id.) He alleges that the “medical staff are not providing

adequate medical care.” (Id.)
In their statement of undisputed material facts, Defendants allege that on
December 1, 2020, Plaintiff was placed in a new cell where he was housed for ten
days. (Doc. 24, ¶ 4.) Then, on December 4, 2020, during medical rounds, Plaintiff

denied Covid-19 symptoms, made no other complaints, and was given a Covid-19
test. (Id., ¶ 5.) That test was negative. (Id.) Defendants allege that subsequent
tests on December 8th and December 9th, 2020, were also negative. (Id., ¶ 6.) On

December 10, 2020, Plaintiff reported to health services with a headache and body
aches, his Covid-19 test was positive, and he was placed in isolation. (Id., ¶ 7.)
On December 17, 2020, Dr. Sommer ordered a Covid-19 test, the results of which

indicated that Covid-19 was detected. (Id., ¶ 8.) On December 20, 2020, Plaintiff
denied symptoms of Covid-19 and he had completed his required ten-day isolation.
(Id., ¶ 9.) Following this, Plaintiff did not report Covid-19 symptoms in

subsequent medical appointments and quarantine periods. (Id., ¶¶ 18–21.)
Plaintiff provided an affidavit from Davis in support of his brief in
opposition to the pending motion. (Doc. 27.) In it, Davis states that he tested
negative for Covid-19 on November 28, 2020, but had experienced close contact

on November 23, 2020 with another inmate who had tested positive. (Id., p. 8.)
He states that despite his negative test, he believed he was already infected with
Covid-19 on November 28, 2020. (Id.) He states that on that same date, he

reported to medical staff that he was expediting flu-like symptoms including
congestion, cough, head and body aches, chills, cold sweats, weakness, and the
complete loss of taste and smell. (Id.) A nurse told him he was a “suspected
positive” for Covid-19 and that he should be kept “isolated individually.” (Id.) He

states that this nurse taped a notice on the outside of his door regarding his Covid-
19 status. (Id.) He states that he reported his symptoms again on November 29,
2020, and November 30, 2020, and was told he was experiencing the common

cold. (Id., p. 9.) Davis states that on December 1, 2020, Defendant Kurilla
ordered him and Plaintiff to move from cells where they were the sole occupants
into a single cell to share. (Id.) He stated that both he and Plaintiff objected to

such consolidation and that he told Defendant Kurilla about his symptoms. (Id.)
After Defendant Kurilla threatened them with disciplinary action, Davis and
Plaintiff moved into the cell together. (Id.) He states that on December 1, 2020,

several other cells were empty and the two inmates could have been housed in cells
individually. (Id.) On December 4, 2020, Davis tested positive for Covid-19 and
was moved to quarantine. (Id., p. 10.)
2. Administrative Remedies

As part of their statements of facts, Defendants allege that a review of the
BOP database reveals that Plaintiff has not filed a single administrative tort claim
while in custody of the BOP. (Doc. 24, ¶¶ 23–24.) However, a review of the
Administrative Remedy Generalized retrieval system shows that Plaintiff has filed

for nine administrative remedies while in BOP custody. (Id., ¶ 30.) Of these nine,
he has only exhausted one request, No. 1033139-F1-A1. (Id., ¶ 31.) Defendants
characterize this one exhausted request as a request for compassionate release.

(Id.) Defendants assert that Plaintiff has not filed or exhausted any administrative
remedies related to any of the claims raised in this Bivens action. (Id., ¶ 33.)
In response to Defendants’ statements of facts, Plaintiff filed what he alleged
is a copy of a tort claim dated December 31, 2020, that he alleges he placed in the
mailbox on his unit in USP-Canaan on that same date. (Doc. 27, pp. 1, 15–16.) He
states that “[i]f there is no record of this Tort Claim being received, then U.S.P.

Canaan Staff clearly and obviously caused it to vanish instead of mailing it to the
Region in order to shield themselves from being sued.” (Id., pp. 1–2, 15–16.) The
document is standard form 95, dated December 31, 2020, setting forth allegations

of negligence and deliberate indifference, and requests monetary compensation
related to Plaintiff’s Covid-19 exposure at USP-Canaan. (Id. at pp. 15–16.) This
form is unsigned. (Id.)
Plaintiff also filed the completed appeal form for grievance number

1066139-F1-A1 and the BOP’s response to the appeal. (Doc. 27, pp. 13–14.)
Plaintiff’s appeal form states the following as his reason for the appeal:
U.S.P. Canaan staff violated C.D.C. recommendations by forcing
inmate Worthington to cohort with a Covid-19 infected inmate
resulting in inmate Worthington becoming infected with Covid-19.
Worthington suffered severe symptoms and still suffers from “long
hauler” symptoms to this day. U.S.P. Canaan staff’s actions
demonstrated deliberate indifference towards inmate Worthington’s
health and safety. Inmate Worthington requests to be compensated for
his pain and suffering.

(Id., p. 13.) The document includes verification that this appeal form was received
by the Administrative Remedy Section of The BOP on August 4, 2021. (Id.) The
response to this appeal stated the following:
This is in response to your Central Office Administrative Remedy
Appeal wherein you challenge the denial of your request for a
Reduction in Sentence (RIS) based on extraordinary and compelling
reasons. Specifically, you request a compassionate release due to your
vulnerability to COVID-19 infection due to underlying health
conditions. For relief, you request a RIS.

(Id., p. 14.) Neither party has provided a copy of the initial request for remedy in
grievance number 1066139-F1-A1.
C. Defendants’ Motion for Summary Judgment Will Be Denied To The
Extent It Is Based On Plaintiff’s Failure to Exhaust Administrative
Remedies.
The crux of Defendants’ motion for summary judgment is based on the
premise that Plaintiff failed to exhaust his administrative remedies prior to filing
the instant action. (Doc. 25, pp. 17–24.) The Prison Litigation Reform Act of
1995 (PLRA), 42 U.S.C. § 1997e et seq., requires prisoners to exhaust available
administrative remedies before suing prison officials for alleged constitutional
violations. See id. § 1997e(a); Ross v. Blake, 578 U.S. 632, 639, 642 (2016)

(explaining that only “available” remedies must be exhausted). Proper exhaustion
is mandatory, even if the inmate is seeking relief—like monetary damages—that
cannot be granted by the administrative system. See Woodford v. Ngo, 548 U.S.
81, 85 (2006).

However, there are situations in which a grievance procedure may be
rendered “unavailable” to an inmate, such as when a prison official thwarts an
inmate’s ability to use it, Ross, 578 U.S. at 643–44, when intimidation by means

of “serious threats of retaliation and bodily harm” prevent an inmate from filing,
Rinaldi v. United States, 904 F.3d 257, 266-67 (3d Cir. 2018), or when a prison has
“rendered its administrative remedies unavailable . . . when it failed to timely (by

its own procedural rules) respond to [an inmate’s] grievance and then repeatedly
ignored his follow-up requests for a decision on his claim,” Robinson v.
Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016).

Plaintiff’s complaint fails to address whether he exhausted his administrative
remedies. (Doc. 1.) Defendants’ motion asserts that he failed to exhaust his
administrative remedies in both the FTCA claim and the Bivens action. (Doc. 25,
p. 17–24.)

1. FTCA Claim
Plaintiff raises an FTCA claim in his complaint alleging that he was
knowingly placed in a life-threatening situation when he was placed in a Covid-19
contaminated cell with another inmate exhibiting symptoms of Covid-19. (Doc. 1,

p. 5.) Defendants allege that they are entitled to summary judgment on this claim
because “[a] claim under the FTCA must first be presented to the appropriate
federal agency and be denied by the agency before any individual can file suit in

federal court.” (Doc. 25, p. 14 citing 28 U.S.C. § 2675(a)).
“The statutory language is clear that a court does not have jurisdiction before
administrative remedies have been exhausted, and a court must dismiss any action
that is initiated prematurely.” Wilder v. Luzinski, 123 F. Supp. 2d 312, 313 (E.D.
Pa. 2000) (citing McNeil v. United States, 508 U.S. 106 (1993)). In support of
their argument, Defendants have attached a printout from the Content Manager, the

electronic database tracking administrative claims filed by inmates, as evidence
that Plaintiff had not filed a single administrative tort claim while in BOP custody.
(Doc. 24, p. 6; Doc. 24-1, pp. 2, 73; Doc. 25, p. 15.) In response, Plaintiff

provided what he alleged is a copy of a tort claim dated December 31, 2020, that
he alleges he placed in the mailbox on his unit in USP-Canaan on that same date.
(Doc. 27, p. 1.) Plaintiff states that “[i]f there is no record of this Tort Claim being
received, then U.S.P. Canaan Staff clearly and obviously caused it to vanish

instead of mailing it to the Region in order to shield themselves from being sued.”
(Id., at pp. 1–2, 15–16.) The attached document is standard form 95, dated
December 31, 2020, and sets forth allegations of negligence and deliberate

indifference, and requests monetary compensation. (Id. at pp. 15–16.) However,
the form is unsigned. (Id.)
While the form is unsigned, and Plaintiff has provided no evidence absent
his assertion that it was placed in the mail on December 31, 2020, Plaintiff has

rebutted the evidence presented by Defendants regarding the administrative
exhaustion of the FTCA claim. Therefore, he has established that there is a general
issue of material fact regarding whether or not he presented his claim to the
appropriate federal agency. As such, the court cannot grant summary judgment on
this legal theory.

2. Bivens Action
Similar to the FCTA claim, Defendants have submitted evidence in support
of their assertion that Plaintiff failed to exhaust his administrative remedies prior to
filing the instant Bivens claims. (Doc. 24-1, pp. 3, 90–95.) Specifically,

Defendants allege that their evidence supports the finding that Plaintiff filed nine
remedies throughout his incarceration and none of those remedies addressed the
issues raised in the complaint. (Doc. 24-1, p. 3.) Defendants asserts that of those

nine remedies, Plaintiff only exhausted one, numbered 1066139-F1-A1, and it was
regarding compassionate release and not related to the instant Bivens action. (Doc.
24, p. 8; Doc. 25, p. 16.) In response, Plaintiff provided the appeal form for
grievance number 1066139-F1-A1 and the BOP’s response. (Doc. 27, pp. 13–14.)

Plaintiff’s appeal form addresses the alleged exposure to Covid-19 as the reason
for his appeal. (Id., p. 13.) The document was received by the Administrative
Remedy Section of the BOP on August 4, 2021. (Id.) Yet, the response to this

appeal denies a request for compassionate release without addressing the alleged
Covid-19 exposure. (Id., p. 14.)
Here, there appears to be an inconsistency in what Plaintiff alleged and how
the appeal was characterized. What was raised in the initial request for remedy is
unknown because it was not provided to the court. What is known is that Plaintiff
addressed the issues raised in the present Bivens action in the appeal. Therefore,

there is a genuine issue of material fact regarding whether or not Plaintiff properly
raised these issues in his initial request for remedy and whether he then exhausted
his administrative remedies. As such, Plaintiff’s motion for summary judgment

premised on the failure to exhaust his administrative remedies will be denied.
D. Defendants’ Motion to Dismiss the FTCA Claims Will Be Granted.
Defendants’ brief in support argues that the FTCA claims should be
dismissed because this court lacks jurisdiction to consider such claims and, in the

alternative, that the complaint fails to state a claim for negligence under Fed. R.
Civ. P. 12(b)(6). (Doc. 25, pp. 33–39.)
1. Jurisdiction
“The FTCA offers a limited waiver of the federal government’s sovereign

immunity from civil liability for negligent acts of government employees acting
within the scope of their employment.” Rinaldi, 904 F.3d at 273; see also 28
U.S.C. § 1346(b)(1). “[T]he FTCA does not itself create a substantive cause of
action against the United States; rather, it provides a mechanism for bringing a

state law tort action against the federal government in federal court. Thus, ‘the
extent of the United States’ liability under the FTCA is generally determined by
reference to state law.’” In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d
344, 361-62 (3d Cir. 2001) (quoting Reo v. U.S. Postal Serv., 98 F.3d 73, 75 (3d
Cir. 1996)).

However, there is a significant limitation on FTCA liability, referred to as
the “discretionary function exception,” (“DFE”). S.R.P. ex rel. Abunabba v.
United States, 676 F.3d 329, 332 (3d Cir. 2012); 28 U.S.C. § 2680(a). The DFE to

the FTCA eliminates jurisdiction “for claims based upon the exercise of a
discretionary function on the part of any employee of the government.” Baer v.
United States, 722 F.3d 168, 172 (3d Cir. 2013) (citing 28 U.S.C. § 2680(a)). The
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.” S.R.P. ex rel. Abunabba,
676 F.3d at 332 (quoting United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). The exception applies to
discretionary actions “whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a); Merando v. United States, 517 F.3d 160, 167 (3d Cir. 2008). The
government bears the burden of establishing that the DFE applies. S.R.P. ex rel.

Abunabba, 676 F.3d at 333 (citation omitted).
When faced with a DFE challenge, the court must first identify the conduct
at issue in the FTCA claim. Id. at 332. Once the conduct is identified, the court
performs a two-step inquiry to determine if the DFE immunizes the government
from an FTCA claim arising out of that conduct. Id. at 332–33.

First, the court considers whether the conduct at issue “is a matter of choice
for the acting employee” because “conduct cannot be discretionary unless it
involves an element of judgment or choice.” Baer, 722 F.3d at 172. If a federal

statute, regulation, or policy dictates a course of action for a federal employee to
follow, the DFE cannot apply because “the employee has no rightful option but to
adhere to the directive.” S.R.P. ex rel. Abunabba, 676 F.3d at 333 (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

If a specific course of conduct is not prescribed for the employee, the court
proceeds to the second step. Id. At step two, because the challenged conduct
involves an element of judgment or choice, the court must determine “whether that

judgment is of the kind that the [DFE] was designed to shield.” United States v.
Gaubert, 499 U.S. 315, 322–23 (1991). That is because the DFE “protects only
governmental actions and decisions based on considerations of public policy.” Id.
at 323 (quoting Berkovitz, 486 U.S. at 537). The focus of this inquiry is not on the

employee’s subjective intent in exercising discretion, but “on the nature of the
actions taken and . . . whether they are susceptible to policy analysis.” Id. at 325.
As the Supreme Court has explained, “[t]here are obviously discretionary acts

performed by a Government agent that are within the scope of his employment but
not within the [DFE] because these acts cannot be said to be based on the purposes
that the regulatory regime seeks to accomplish.” Id. at 325, n.7. However, “if a

regulation allows the employee discretion, the very existence of the regulation
creates a strong presumption that a discretionary act authorized by the regulation
involves consideration of the same policies which led to the promulgation of the

regulations.” Baer, 722 F.3d at 172–73 (quoting Gaubert, 499 U.S. at 324).
Here, the alleged conduct is Plaintiff being forced into a contaminated cell
with another inmate who was displaying symptoms of Covid-19 at the time. (Doc.
1, p. 4.) As to the first step, Defendants contend that, because the CDC’s guidance

was not mandatory for the BOP, there was no prescribed course of action and thus
the federal employees’ actions were a product of judgment or choice. (Doc. 25 at
35 (citing Santiago v. United States, No. 7:21CV00436, 2022 WL 790805, at *2

(W.D. Va. Mar. 14, 2022).) Defendants are correct. The CDC provided some
legally binding orders and guidance with respect to COVID-19, but those
mandatory requirements applied only to domestic public transportation and
international travel. See Coronavirus Disease 2019 (COVID-19): CDC Orders,

Centers for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-
ncov/cdcresponse/laws-regulations.html (last visited Jan. 10, 2023).
Defendants argue that the second step, determining whether that judgment is

of the kind that the DFE was designed to shield, is met because “the development
and implementation of safety protocols in federal prisons is unquestionably based
on consideration of public policy.” (Doc. 25, p. 35 citing Santiago, 2022 WL

790805, at *3.) The court agrees. The Supreme Court has held that “[p]rison
administrators . . . should be 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.” Whitely v.
Albers, 475 U.S. 312, 321–22 (1986) citing Bell v. Wolfish, 441 U.S. 520, 547
(1979). Therefore, Defendants have met their burden of establishing that the DFE
applies. As such, this court is divested of jurisdiction to consider the FTCA

claims, and such claims are dismissed.
E. Plaintiff’s Motion for Summary Judgment Regarding the Bivens
Deliberate Indifference Action Will Be Granted and the Conditions-
of-Confinement Claim Will Be Dismissed.
Defendants characterize Plaintiff’s complaint as raising a deliberate
indifference claim under the Eighth Amendment. (Doc. 25, p. 24–29.) In doing
so, Defendants focus on the alleged lack of treatment that Plaintiff received
following his positive Covid-19 test, with little argument regarding the crux of

Plaintiff’s complaint: that he only contracted Covid-19 because he was allegedly
placed in a contaminated cell with another inmate who was exhibiting Covid-19
symptoms. (Id.) In the complaint, Plaintiff alleges that “[a]s for the Constitutional

claim, clearly Warden Bradley and Unit Manager Kurilla were deliberately
indifferent to the very serious medical issue, and by forcing the cell consolidation
noted above, violated Plaintiff’s Eighth Amendment right to be free from the

imposition of cruel and unusual punishment.” (Doc. 1, p. 5.) Therefore, this court
will address Plaintiff’s constitutional claims as a deliberate indifference action
brought under Bivens. However, the court also recognizes that the complaint can

be construed as a conditions-of-confinement claim under the Eighth Amendment.
Defendants failed to address any general conditions-of-confinement claim in their
joint motion to dismiss and motion for summary judgment. (Docs., 21, 25.)
However, the court can address such a claim pursuant to 42 U.S.C. 1915(e)(B)(ii)

under the Fed. R. Civ. P. 12(b)(6) standard because Plaintiff is proceeding in forma
pauperis. Therefore, the court will address both legal theories in the Bivens
context.

“Bivens is the short-hand name given to causes of action against federal
officials for alleged constitutional violations.” Bistrian, 912 F.3d at 88. In the
case giving the doctrine its name, the Supreme Court held there is a cause of action
for damages when a federal agent, acting under color of his authority, conducts an

unreasonable search and seizure in violation of the Fourth Amendment. Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971). To date, the Supreme Court has only recognized a Bivens remedy in the

context of the Fourth, Fifth, and Eighth Amendments. See Id. at 388 (Fourth
Amendment prohibition against unreasonable searches and seizures); Davis v.
Passman, 442 U.S. 228 (1979) (Fifth Amendment gender-discrimination in the

employment context); Carlson v. Green, 446 U.S. 14 (1980) (Eighth Amendment
Cruel and Unusual Punishment Clause for failure to provide an inmate adequate
medical treatment). The Supreme Court cautioned against expanding Bivens

beyond the three established circumstances where it has formally acknowledged
the availability of a Bivens remedy. Ziglar v. Abbasi, 137 S.Ct. 1843, 1857 (2017)
(“[E]xpanding the Bivens remedy is now a disfavored judicial activity” and
clarifying that “a Bivens remedy will not be available if there are special factors

counselling hesitation in the absence of affirmative action by Congress.”) (internal
citation and quotation marks omitted).
Post-Ziglar, courts must conduct a two-part test to determine whether a

claim for relief expands the Bivens remedy to a new context or category of
defendants. Id. at 1849. First, a court must determine if the Bivens claim presents
a new context. Mack, 968 F.3d at 317. The context is new if it is different in a
“meaningful” way from the three established Bivens cases. Ziglar, 137 S.Ct. at

1849. “Meaningful” differences can be based on:
the rank of the officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of judicial
guidance as to how an officer should respond to the problem or
emergency to be confronted; the statutory or other legal mandate under
which the officer was operating; the risk of disruptive intrusion by the
Judiciary into the functioning of other branches; or the presence of
potential special factors that previous Bivens cases did not consider.

Id. at 1859-60; see also Mack, 968 F.3d at 320 (“[T]he ‘proper test’ for
determining whether a case presents a new Bivens context is if the Supreme Court
has not previously recognized a claim in that context. A context is ‘new’ if it
implicates a constitutional right not previously recognized by the Supreme Court.”)
(internal citations omitted).
Second, if the case presents a new context, the court must consider whether

“special factors counselling hesitation” against extending Bivens into this area exist
“in the absence of affirmative action by Congress.” Id. at 1857. “[T]he inquiry
must concentrate on 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. at 1858. “[I]f there are sound reasons to think
Congress might doubt the efficacy or necessity of a damages remedy,” then the
Judiciary should defer and allow Congress to play its proper role. Id. at 1858.

This analysis requires the Court to assess the impact on governmental
operations system-wide, including the burdens on government employees who are
sued personally, as well as the projected cost and consequences to the government

itself. Id. Additionally, “the existence of alternative remedies usually precludes a
court from authorizing a Bivens action.” Id., at 1865. In the prison context, the
Supreme Court noted that:
Some 15 years after Carlson was decided, Congress passed the Prison
Litigation Reform Act of 1995, which made comprehensive changes to
the way prisoner abuse claims must be brought in federal court. See 42
U.S.C. § 1997e. So it seems clear that Congress had specific occasion
to consider the matter of prisoner abuse and to consider the proper way
to remedy those wrongs . . . [T]he Act itself does not provide for a
standalone damages remedy against federal jailers. It could be argued
that this suggests Congress chose not to extend the Carlson damages
remedy to cases involving other types of prisoner mistreatment.

Id. at 1865.
Post–Ziglar, the Third Circuit Court of Appeals has held that the
“recognition of a cause of action under a constitutional amendment does not mean
that such an action can vindicate every violation of the rights afforded by that
particular amendment.” Vanderklok v. United States 868 F.3d 189, 199 (3d Cir.
2017). Here, Plaintiff’s complaint raises two claims under the Eighth Amendment,
one deliberate indifference claim and one conditions-of-confinement claim.
2. Deliberate Indifferent Claim
Only one of the three cases in which the Supreme Court has recognized a
Bivens claim is potentially relevant to the instant matter. In Carlson, the Court
recognized an implied damages remedy under Bivens for prison officials’ failure to
provide medical care. See Carlson, 446 U.S. at 25.
The instant deliberate indifference claim can be divided into two separate
claims: (1) officials’ actions prior to illness in which Plaintiff alleged that he was
forcibly housed in a contaminated cell with an infected inmate; and (2) officials’
actions after illness, in which Plaintiff alleged that the medical staff were not
providing adequate medical care.

The first claim, officials’ actions prior to illness, focuses on Plaintiff being
forcibly housed in an allegedly contaminated cell with an allegedly infected
inmate. This first claim is notably different from Carlson. Although both cases

involve prison officials’ actions regarding an inmate’s illness, Carlson concerned
inadequate medical treatment of the illness after the inmate was already ill, while
the instant case concerns officials’ actions prior to an illness. In other words,
Carlson concerned alleged failure to treat an illness while this case concerns an

alleged failure to prevent an illness. As such, the court finds that Plaintiff’s claim
regarding a failure to prevent an illness presents a new context that is meaningfully
different from the claims previously recognized under Bivens. See Davis v. SCI-

Schuylkill, No. 1:22-CV-1270, 2022 WL 4348462, at *3 (M.D. Pa. Sep. 19, 2022).
Therefore, the court must consider whether there are “special factors
counselling hesitation” against extending Bivens to this area. Again, the court
notes that Plaintiff had the BOP’s administrative remedy process available to

address his claims. The court acknowledges that there is a factual question
regarding whether Plaintiff filed a remedy request and whether the BOP properly
characterized his remedy requests regarding these claims. See supra. However,

regardless of how the BOP actually addressed his claim, the fact that there is an
administrative remedy available counsels hesitation against extending Biven in this
context. Malesko, 534 U.S. 61, 69 (2001) (noting that “[s]o long as the plaintiff

had an avenue for some redress, bedrock principles of separation of powers
foreclosed judicial imposition of a new substantive liability”). “[W]hen alternative
methods of relief are available, a Bivens remedy usually is not.” Ziglar, 137 S. Ct.

at 1863. Therefore, the court declines to extend Bivens to this new context.
The second claim, officials’ actions after illness, focuses on Plaintiff’s
allegations that medical staff were not providing adequate medical care. (Doc. 1,
p. 4.) While this claim is similar to the claim in Carlson, i.e. failing to provide

medical care following the onset of illness, all medical staff have been voluntarily
dismissed by Plaintiff. See supra. Plaintiff cannot pursue claims against dismissed
defendants. Therefore, summary judgment will be granted regarding the deliberate

indifference claim.
3. Conditions-of-Confinement Claim
As addressed above, the allegations in the complaint can also be construed
as a conditions-of-confinement claim. Such a claim is a new context under Bivens.

A panel of the Third Circuit Court of Appeals provided guidance in such situations
in a nonprecedential opinion in Mammana v. Barben, 856 Fed.App’x. 411 (3d Cir.
May 21, 2021). In the decision, the court rejected the argument that Carlson gives
footing to an Eighth Amendment conditions-of-confinement claim against federal
officials. See Mammana, 856 Fed.App’x. at 414-15. The plaintiff in Mammana
challenged his “confinement in a chilled room with constant lighting, no bedding,

and only paper-like clothing.” Id. The court found that, other than sharing a
constitutional amendment and the federal prison setting, there was “little
resemblance” between the plaintiff’s conditions-of-confinement claim and the

estate’s claim in Carlson “against prison officials for failure to treat an inmate’s
asthma.” Id. (quoting Ziglar, 137 S. Ct. at 1860). This court has previously found
that conditions-of-confinement claims regarding inmate exposures to Covid-19
constitute a new context under Bivens. See, e.g., Walker v. United States, No.

3:21-CV-1881 2022 WL 1472872, at *4 (M.D. Pa. May 10, 2022). Therefore, the
court will follow the guidance in Mammana and prior decisions, and find that a
conditions-of-confinement claim is a new context under Bivens.

Therefore, the court must consider whether there are “special factors
counselling hesitation” against extending Bivens to this area. Again, the court
notes that Plaintiff had the BOP’s administrative remedy process available to
address his claims. The court acknowledges that there is a factual question

regarding whether Plaintiff filed a remedy request and whether the BOP properly
characterized his remedy request. See supra. However, this claim is being
addressed under the Fed. R. Civ. P. 12(b)(6) standard. This does not allow the

court to look past the allegations in the complaint and any documentation attached
to the complaint. Mayer, 605 F.3d at 230. Therefore, regardless of how the BOP
actually addressed his claim, the fact that there is a remedy available counsels

hesitation against extending Biven in this context. Malesko, 534 U.S. at 69 (noting
that “[s]o long as the plaintiff had an avenue for some redress, bedrock principles
of separation of powers foreclosed judicial imposition of a new substantive

liability”). “[W]hen alternative methods of relief are available, a Bivens remedy
usually is not.” Ziglar, 137 S. Ct. at 1863.
Additionally, as the Supreme Court in Ziglar explained, “legislative action
suggesting that Congress does not want a damages remedy is itself a factor

counseling hesitation” and Congress’s omission of a “standalone damages remedy
against federal jailers” when it passed the PLRA post-Carlson “suggests Congress
chose not to extend the Carlson damages remedy to cases involving other types of

prisoner mistreatment.” Ziglar, 137 S. Ct. at 1865. While the Third Circuit has
rejected the argument that Congress’s inaction in this area “suggests that Congress
did not want a damages remedy against prison officials for constitutional
violations,” Mack, 968 F.3d at 324, because the PLRA “cannot rightly be seen as

dictating that a Bivens cause of action should not exist at all,” Bistrian, 912 F.3d at
93, a district court can find that congressional silence on prison litigation can still
counsel hesitation in some contexts. See Mammana, 856 Fed. App’x. at 415. A

conditions-of-confinement claim is different and far more general than the failure
to provide adequate medical treatment alleged in Carlson. As such, the court
declines to extend the Bivens remedy to this context and the claim will be

dismissed with prejudice.
CONCLUSION
For the foregoing reasons, Defendants’ joint motion to dismiss and motion
for summary judgment will be granted. All claims raised against Dr. Sommer and

the unnamed medical professionals are dismissed without prejudice pursuant to
Plaintiff’s request for a voluntary dismissal. Plaintiff’s FTCA claim is dismissed
with prejudice. Defendants Kurilla and Bradley will be granted summary

judgment on the deliberate indifference claim. The conditions-of-confinement
claim will be dismissed with prejudice.
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania

Dated: February 7, 2023

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412772. Public record. Not legal advice.