Scott v. United States of America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

DWAYNE SCOTT, :

Plaintiff, : CIVIL ACTION NO. 4:22-0006

v. : (JUDGE MANNION)

UNITED STATES OF AMERICA, :

et al.,

:

Defendants.

:

MEMORANDUM

Presently before the court are two reports from Judge Arbuckle that

make recommendations with regard to Defendants’ motions to dismiss

Plaintiff’s complaint. (Docs. 42 & 45). Judge Arbuckle recommends the court

grant the United States’ motion to dismiss (Doc. 9) in part and grant the

prison officials’ motion to dismiss (Doc. 10) in full. The United States objects

to the recommendation that the court deny its motion to dismiss Plaintiff’s

FTCA claims regarding the BOP’s use of chemical munitions and failure to

intervene. (Doc. 49). Plaintiff objects to the recommendation that the court

dismiss his Bivens claims. (Doc. 50). Upon review of the record, the court

will SUSTAIN Plaintiff’s objection in part and OVERRULE the United States’

objection. Thus, the court will ADOPT IN PART the first report (Doc. 42) and

ADOPT IN ITS ENTIRETY the second report (Doc. 45) as follows.

I. STANDARD OF REVIEW1

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.

Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation. See Fed. R. Civ. P. 72(b), advisory committee notes;

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (M.D.

Pa. 2010) (citation omitted). Nevertheless, whether timely objections are

made or not, the district court may accept, not accept, or modify, in whole or

in part, the findings or recommendations made by the magistrate judge. 28

U.S.C. §636(b)(1); Local Rule 72.31.

1 Judge Arbuckle stated the relevant factual and procedural

backgrounds of this case in his reports. (See Doc. 42 at 13–19; Doc. 45 at

7–12).

II. DISCUSSION

Judge Arbuckle accurately stated the legal standards relevant to the

defendants’ motions to dismiss in his reports. (See Doc. 42 at 2–13; Doc. 45

at 2–7). With those standards as a backdrop, this court will address the two

objections raised by the parties: (a) that Judge Arbuckle erred in finding

Plaintiff’s Bivens claims should be dismissed and (b) that Judge Arbuckle

erred in allowing part of Plaintiff’s FTCA claim to proceed.

A. New Bivens context

As Plaintiff puts it in his objection to Judge Arbuckle’s report, “the sole

issue is whether Mr. Scott’s dual Eighth Amendment, failure to

intervene/protect claims present a new Bivens context in light of his medical

and housing situations.” (Doc. 50 at 7). Plaintiff’s objection stems from the

well-established principle in this area of law that judicial expansion of the

Bivens remedy is disfavored. Rather, courts must limit such remedy to the

specific contexts in which Bivens and its progeny were decided. The

threshold question then is whether Plaintiff’s claims present a new context in

which the Bivens remedy has not been recognized. If so, they should be

dismissed unless certain factors warrant judicial expansion. “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.’” Xi v. Haugen, 68 F.4th 824, 834 (3d

Cir. 2023) (quoting Ziglar v. Abbasi, 582 U.S. 120, 147 (2017)).

Plaintiff first argues his failure to protect claim falls into the same

Bivens context as Farmer v. Brennan, 511 U.S. 825 (1997), and Shorter v.

United States, 12 F.4th 366 (3d Cir. 2021), which relied on Farmer. In

Farmer, the Supreme Court recognized a Bivens remedy for a transgender

prisoner who alleged prison officials were deliberately indifferent to the risk

that she would be assaulted by other inmates. Id. at 829–34. The plaintiff

inmate in Farmer had been placed in segregation for safety concerns and

then transferred to a more dangerous prison and housed in general

population where she was later beaten and raped in her cell. Id. at 830–31.

In Shorter, the Third Circuit held that a transgender inmate's claim that prison

officials failed to protect her from being sexually assaulted by other inmates

did not present a new Bivens context in light of Farmer. Shorter, 12 F.4th at

373. “Farmer made clear, in circumstances virtually indistinguishable from

our case, that an Eighth Amendment Bivens remedy is available to a

transgender prisoner who has been assaulted by a fellow inmate.” Id.

The court notes at the outset that the Supreme Court has not included

Farmer in its list of the three contexts in which the Court has recognized a

Bivens remedy. In Abassi (2017), the Court named three previous cases in

which a Bivens remedy has been recognized: Bivens itself (Fourth

Amendment unreasonable search and seizure), in addition to the Davis v.

Passman, 442 U.S. 228, 249 (1979) (Fifth Amendment gender discrimination

in employment), and Carlson v. Green, 446 U.S. 14, 16 n.1 (1980) (Eighth

Amendment deliberate indifference to a prisoner's serious medical needs).

Abassi, 582 U.S. at 131 (“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.”). The court did not include

Farmer in its Bivens trilogy. Nonetheless, the Third Circuit held in Bistrian v.

Levi, 912 F.3d 79, 91 (3d Cir. 2018), that Farmer was still a Bivens case,

reasoning the Supreme Court neglected to name Farmer in Abassi because

it saw that case as falling under the umbrella of Carlson.

Then in Hernandez v. Mesa, 140 S. Ct. 735, 741–43 (2020), the

Supreme Court again referenced only Bivens, Davis, and Carlson as the

cases in which a Bivens remedy has been recognized. But, again, in Shorter

v. United States, 12 F.4th 366, 373 n.5 (3d Cir. 2021), the Third Circuit

subsequently held that Farmer’s absence from Hernandez was due to the

Court seeing that case as falling under the Carlson umbrella.

Then in Egbert v. Boule, 142 S. Ct. 1793, 1802 (2022), the Supreme

Court again listed only Bivens, Davis, and Carlson as the three cases in

which the Court has “fashioned new [Bivens] causes of action under the

Constitution.” No mention of Farmer. In its most recent Bivens case, the Third

Circuit grew similarly silent on Farmer. See Xi v. Haugen, 68 F.4th 824, 832

(3d Cir. 2023).2 In Xi, the Third Circuit explained, “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” from the trilogy of Bivens,

Davis, and Carlson. Id. But, somewhat cryptically, the court in Xi included

Bistrian (applying a Bivens remedy to a Fifth Amendment failure-to-protect

claim) in a footnote string citation of cases exemplifying the Third Circuit’s

purported “refus[al] to extend Bivens except in one of these three established

contexts.” Id. at 832–33 n.7.

Thus, it appears that, in the Third Circuit’s view, Bivens claims include

a failure to protect claim arising under Farmer, even though Farmer has been

conspicuously absent from the Supreme Court’s Bivens jurisprudence. It is

not clear how many Supreme Court Bivens cases that exclude Farmer it will

take before the Third Circuit interprets the exclusion as intentional.

In any event, it seems Judge Arbuckle took the correct approach in still

considering Farmer. Shorter and Bistrian, in which the Third Circuit relied on

2 See also Dongarra v. Smith, 27 F.4th 174, 180 (3d Cir. 2022)

(analyzing prisoner deliberate indifference claim under Bivens, Davis, and

Carlson, without reference to Farmer).

Farmer as demonstrating a proper Bivens context, remain good law, and it

is not clear that Xi or Egbert implicitly abrogated those cases. So we proceed

to compare this case to Farmer to determine whether Plaintiff’s claims come

in a new context.

Judge Arbuckle found meaningful differences between Plaintiff’s

claims and Farmer. First, Judge Arbuckle noted Plaintiff is not a transgender

prisoner who has been assaulted by a fellow inmate. (Doc. 42 at 26).

Second, Judge Arbuckle noted Plaintiff is not complaining about being

placed in general population instead of protective custody, unlike the Farmer

plaintiff. (Doc. 42 at 26–27). Rather, Plaintiff is complaining about the

decision to place him in the same cell as a known violent prisoner. Plaintiff

calls these distinctions mere “slivers of daylight” between this case and

Farmer, not “meaningful” differences. (Doc. 50 at 7). The court agrees.

The crux, or “context,” of the plaintiffs’ claims in Farmer, Shorter, and

this case is a prisoner claiming there was a known, substantial risk that he

or she would be assaulted by another prisoner, which prison officials were

deliberately indifferent to in violation of the Eighth Amendment. Distinctions

based on the prisoner’s gender identity and the custodial status of the

prisoner are “trivial.” See Abbasi, 582 U.S. at 149; see also Shorter, 12 F.4th

at 373 n.6 (noting the “remarkable” extent of factual overlap between Farmer

and Shorter is not required to conclude the case does not present a new

Bivens context). Thus, the court will sustain Plaintiff’s objection to the extent

it cries error in Judge Arbuckle’s determination that Plaintiff’s failure to

protect claim presents a new Bivens context. Should discovery reveal facts

demonstrating “meaningful differences” between this claim and other Bivens

contexts, Defendants are free to raise this argument again in a future motion.

Plaintiff’s failure to intervene claim does not fair as well. This claim

arises in a new Bivens context, to which Judge Arbuckle properly determined

not to extend the Bivens remedy. Plaintiff alleges that Defendants stood by

and watched pepper spray be used against Plaintiff despite their knowledge

that medical staff should have been consulted and that Plaintiff was

particularly vulnerable due to his asthma. (Doc. 1, ¶¶119–121). Judge

Arbuckle correctly found this claim comes in a different context than Bivens,

which involved FBI agents handcuffing a man in his home without a warrant

and excessive force in violation of the Fourth Amendment. (See Doc. 42 at

45). Judge Arbuckle also correctly found this claim comes in a different

context than Carlson. In Carlson, a prisoner brought an Eighth Amendment

claim based on a failure to provide adequate medical care for his asthma.

Here, as Judge Arbuckle correctly noted, this case in meaningfully different

because Plaintiff is alleging Defendants knowingly failed to intervene when

excessive force was used against him. Thus, Plaintiff’s objection to Judge

Arbuckle’s recommendation that the failure to intervene claim should be

dismissed will be overruled.

Finally, since the court finds Plaintiff’s failure to protect claim does not

present a new Bivens context, we must address Defendant’s argument that

the claim should nonetheless be dismissed because Plaintiff failed to

exhaust administrative remedies, which Judge Arbuckle did not reach.

Plaintiff alleged in his complaint that he exhausted administrate remedies;

but he backtracked in his opposition to the motion to dismiss, arguing he

“could not exhaust his Bivens claims because such efforts were thwarted by

BOP Staff.” Plaintiff asks in the alternative to be given leave to amend his

complaint to include these allegations. (See Doc. 24 at 9–10).

Under the Prison Litigation Reform Act (PLRA), a prisoner must pursue

all avenues of relief available within a prison’s grievance system before

bringing a federal civil rights action concerning prison conditions. 42 U.S.C.

§1997(e)(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000).

The broad rule favoring full exhaustion admits of one, narrowly

defined exception. If the actions of prison officials directly caused

the inmate's procedural default on a grievance, the prisoner will

not be held to strict compliance with this exhaustion requirement.

See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (finding

administrative remedies “unavailable” when correctional officers

told prisoner that his grievances would not reach the Grievance

Coordinator).

Holton v. Finley, No. 4:21-CV-737, 2021 WL 7186197, at *10 (M.D. Pa. Dec.

30, 2021), report and recommendation adopted, No. 4:21-CV-737, 2022 WL

585148 (M.D. Pa. Feb. 25, 2022).

The court agrees with Plaintiff that he should have the opportunity to

develop his theory that the BOP officials “thwarted” his attempt to exhaust

administrative remedies through discovery. However, that theory is not

pleaded in the complaint, which includes the inconsistent allegation that

Plaintiff did exhaust administrative remedies. Thus, the best way forward is

for the court to grant Defendants’ motion to dismiss and dismiss Plaintiff’s

Bivens claims without prejudice and with leave to amend. It has not been

shown that amendment in this regard would be futile.3

B. FTCA discretionary function exemption

Next, the United States’ objection to Judge Arbuckle’s report turns on

the applicability of the discretionary function exemption (DFE) under the

3 Defendants also moved to dismiss Plaintiff’s claims against Mr.

Carvajal and Mr. Maiorana because the complaint contains no allegations of

their personal involvement in the alleged wrongs. (See Doc. 16). Plaintiff

responded by agreeing Maiorana should be dismissed. Plaintiff did not

dispute dismissal of Carvajal. (Doc. 24). The court’s review of the complaint

reveals there are no plausible claims alleged against Carvajal. Thus, the

court will dismiss the claims against both Maiorana and Carvajal. Dismissal

with regard to Carvajal will be without prejudice because it is not clear that

amendment would be futile.

FTCA. As Judge Arbuckle helpfully explained, to determine whether the DFE

applies to the official conduct at issue—here, the officers’ use of force in

repeatedly deploying pepper spray and pepper balls to diffuse the situation—

the court conducts a two-step inquiry:

First, we ask whether the challenged conduct involved an

element of judgment or choice, which depends on whether there

is a federal statute, regulation or policy [that] specifically

prescribes a course of action for an employee to follow.” If a

course of action is specifically prescribed[,] then the DFE is

inapplicable because “the employee has no rightful option but to

adhere to the directive.” If a course of action is not specifically

prescribed, then the court proceeds to the second step.

Second, if the act does involve judgment, we ask whether the

judgment involved is the kind that the discretionary function

exception was designed to shield.” The DFE will only except

those actions and decisions “based on considerations of public

policy.” The focus at this second prong is whether the employee’s

actions are “susceptible to policy analysis,” but a court does not

focus on the employee’s “subjective intent in exercising the

discretion . . . .”

(Doc. 45 at 6–7) (citations omitted).

Staying within the four corners of the complaint, which courts generally

must do when deciding a motion to dismiss, Judge Arbuckle found Plaintiff’s

allegations regarding the prison staff’s conduct bring the FTCA claim outside

the ambit of the DFE. Specifically, Judge Arbuckle found that under either

dueling policy proposed by the parties, the prison staff would not have had

discretion to administer the second or third round of chemical munitions if,

as Plaintiff alleges, the emergency had ceased and the erstwhile combatants

lay facedown in submission. Instead, the “on-point” policies proffered by the

parties both deal with BOP’s response to emergencies. (See Doc. 45 at 24–

25) (citing BOP Program Statements 5566.06 & 5576.06). Judge Arbuckle

decided at this stage the court cannot make a factual finding that there was

an ongoing emergency permitting further discretionary use of chemical

munitions.

Judge Arbuckle also rejected the United States’ argument that the

officers had discretion to deploy chemical munitions the second and third

round because Plaintiff’s complaint makes clear the prisoners in the cell had

not submitted to hand restraints. Judge Arbuckle reasoned it is not clear from

the complaint whether the officers had ordered the prisoners to submit to

hand restraints.

The United States objects, arguing Judge Arbuckle erred in allowing

Plaintiff’s FTCA claim based on the prison officials’ response to the

emergency to proceed. The United States argues this claim also falls under

the discretionary function exemption and should be dismissed. However, a

review of the record reveals Judge Arbuckle correctly declined to dismiss

Plaintiff’s claims based on the discretionary function exception at this stage.

The on-point policies allowing prison officials discretion to deploy chemical

munitions prescribe such discretion only in the context of responding to an

emergency. Whether there was truly an emergency when the prison officials

deployed the second and third round of chemical munitions is a factual

question not appropriate for adjudication at the motion to dismiss stage.

Moreover, the United States’ argument that the prison officials had

discretion to deploy chemical munitions the second and third round because

the prisoners had still not submitted to hand restraints proves too much. The

United States specifically avers that “even if it were true that the BOP

continued to deploy chemical munitions after hostilities between the inmates

ceased—an allegation which the United States denies—the emergency

nevertheless remained uncontained until Plaintiff and his cellmate finally

submitted to hand restraints.” But, as Judge Arbuckle points out, it is not

clear at this stage whether the prisoners were ordered to submit to hand

restraints.

Taken to its logical conclusion, the United States’ reading of applicable

policy would mean prison officials have discretion to indiscriminately deploy

chemical munitions in responding to a prisoner fight, even after the fight

cedes and the prisoners lay prone, so long as the prison officials unilaterally

withhold orders to submit to restraints or refrain from actually restraining the

prisoners. Such a reading of the applicable policies guiding prison official’s

chemical munition deployment is untenable. The objection will thus be

overruled and Judge Arbuckle’s report (Doc. 45) adopted in its entirety.

III. CONCLUSION

In light of the foregoing, the court will SUSTAIN Plaintiff’s objection to

Judge Arbuckle’s report to the extent the report finds Plaintiff’s failure to

protect claim presents a new Bivens context. The court will OVERRULE the

United States’ objection. In turn, the court will ADOPT IN PART the first

report (Doc. 42) and ADOPT IN ITS ENTIRETY the second report (Doc. 45).

An appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: July 20, 2023

22-06-01