# Orange v. Keen

> District Court, M.D. Pennsylvania · August 25, 2023

URL: https://www.frixlaw.com/law-library/cases/10413581

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 25, 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/10413581

## How later opinions describe it (automated extraction)

- stating 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” (citation omitted)
- holding that “administrative review mechanisms” can provide “meaningful redress and thereby forelose[ ] the need to fashion a new, judicially crafted cause of action[,]” even if those mechanisms do not “fully remedy the constitutional violation . . .”
- stating that “[s]eparation-of-powers principles are or should be central to the analysis”
- recognizing an implied cause of action for inadequate medical care under the Eighth Amendment
- recognizing an implied cause of action for sex discrimination under the Fifth Amendment

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAMPOIRE ORANGE, : Civil No. 1:22-CV-01019
:
Plaintiff, :
:
v. :
:
R. KEEN, et al., :
:
Defendants. : Judge Jennifer P. Wilson
MEMORANDUM
In this Bivens action brought by Shampoire Orange (“Plaintiff”), presently
before the court is Defendants’ motion for summary judgment for failure to
exhaust administrative remedies, or in the alternative to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 27.) Also pending is
Plaintiff’s motion to proceed with discovery. (Doc. 44.) The court will deny
Defendants’ motion for summary judgment, and grant Defendant’s alternative
motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) in part. The only
surviving claims are Plaintiff’s Eighth Amendment failure to protect claim and the
conspiracy claim. Since Defendants will be given an opportunity to answer the
complaint prior to the start of discovery, Plaintiff’s motion to proceed with
discovery is denied.
BACKGROUND AND PROCEDURAL HISTORY
In June of 2022, Plaintiff, a federal prisoner housed at the United States

Penitentiary Canaan (“USP Canaan”) in Waymart, Pennsylvania at the time, filed a
complaint. (Doc. 1.) The complaint named ten Defendants: (1) J. Keen (“Keen”),
officer at UPS Canaan; (2) B. Price (“Price”); (3) K. Oakley (“Oakley”), medical
nurse at UPS Canaan; (4) J. Simonson (“Simonson”), medical director at USP

Canaan; (5) A. Burgh (“Burgh”), officer at USP Canaan; (6) G. Zevan (“Zevan”),
Disciplinary Hearing Officer at USP Canaan; (7) L.T. Frisk (“Frisk”); (8) B. Butts
(“Butts”) officer at USP Canaan; (9) R. Orth (“Orth”), officer at USP Canaan; and

(10) Ofc. Houch (“Houch”), officer at USP Canaan. (Id., pp. 3–6.)1 The complaint
raises Eighth and Fourteenth Amendment claims based on an allegedly
prearranged attack on Plaintiff by another inmate on December 28, 2021, an attack
against Plaintiff by officers on December 28, 2021, and a failure to provide

medical care for the resulting injuries. (Id.)
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

1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.
claims occurred at USP Canaan, located in Wayne County, Pennsylvania, which is
within this district. See 28 U.S.C. § 118(b).

DISCUSSION
Defendants have filed a joint motion for summary judgment and to dismiss
for failure to state a claim. (Doc. 27.) Therefore, the court will address each
portion of the joint motion in turn.

A. Defendants’ Motion for Summary Judgment Will Be Denied.
1. 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).
2. Facts Regarding Exhaustion of Administrative Claims.
Defendants’ motion asks the court to grant summary judgment based on
Plaintiff’s failure to exhaust his administrative remedies. (Doc. 29.) Therefore,

the court sets forth the facts alleged by both parties regarding administrative
exhaustion and finds that the parties agree that Plaintiff did not exhaust his
administrative remedies, but there is a genuine dispute of facts as to whether or not
administrative remedies were available to Plaintiff. Therefore, the motion for

summary judgment will be denied.
i. Defendants’ Alleged Facts
Defendants allege that Plaintiff was confined at USP Canaan between

December 22, 2021 thru December 14, 2022. (Doc. 31, p. 2.) The Bureau of
Prisons (“BOP”) maintains a computerized system of inmate administrative
remedies called the Administrate Remedy Generalized Retrieval, which Defendant
attached, showing every administrative remedy filed by Plaintiff prior to his June
29, 2022 complaint. (Doc. 31, p. 2; Doc. 31-1, pp. 10–21.) Between December
22, 2021 and June 29, 2022, Plaintiff failed seven administrative remedies with

only one pertaining to the claims raised in the instant complaint – Administrative
Remedy No. 1108964. (Doc. 31, p. 3; Doc. 31-1, pp. 19–20.) Administrative
Remedy No. 1108964 was an appeal of the Hearing Officer Report filed on April

7, 2022. (Doc. 31-1, pp. 19–20, 23–26.) Plaintiff appealed the Hearing Officer
Report four times with the Regional Director prior to filing this complaint:
February 3, 2022 (this filing was duplicated); May 17, 2022; and June 8, 2022;
(Doc. 31, p. 3; Doc. 31-1, pp. 19–20.) Plaintiff filed an appeal three additional

times after filing this complaint: July 5, 2023; July 15, 2022; and August 15, 2022.
(Doc. 31, p. 4; Doc. 31-1, pp. 20–21.) Each of the seven times, the appeal was
denied. (Doc. 31, pp. 3–4; Doc. 31-1, pp. 19–21.) Plaintiff never filed an appeal

with the Central Office. (Doc. 31, p. 4; 31-1, pp. 19–21.)
During this time, Plaintiff filed multiple other requests for administrative
remedies including 1112146-F1 regarding missing jail time credit denied on March
14, 2022, appealed to the Regional Director and denied on March 29, 2022, and

appealed to the Regional Direction second time and denied on July 11, 2022.
(Doc. 31-1, pp. 19–20.) Plaintiff also filed Grievance No. 1116019-F1 requesting
an administrative remedy denied on April 6, 2022, appealed to the Regional

Director and denied on April 15, 2022, and appealed to the Central Office and
denied on May 13, 2022. (Id.) Plaintiff also sought an appeal of a decision of the
Hearing Officer, which was denied on June 10, 2022 under Grievance No.

1116632-R1. (Id., p. 20.)
ii. Plaintiff’s Alleged Facts
Plaintiff states that he arrived at USP Canaan on December 22, 2021. (Doc.
42, p. 1.) He states that on December 28, 2021 he was assaulted by inmate Blake

and by two BOP staff who broke two of his ribs with two punches while he was
handcuffed. (Id., pp. 1–2.) He states that after the December 28, 2021 incident,
BOP staff threatened to cause him harm if he were to write them up for the

misconduct. (Id., p. 2.) He states that on January 10, 2022, he wrote a BP-8 form
about BOP staff failure to protect him and denying him proper medical care for the
December 28, 2021 incident. (Id.) He alleges that an officer saw him turn in the
grievance and told him they would break his legs if he wrote them up. (Id.) He

states he never received a response from the January 10, 2022 BP-8 form. (Id.) He
states that on January 20, 2022, he gave a counselor a sensitive BP-9 form about
being denied proper medical treatment and failure to protect him from harm and

never received a response. (Id.) He states that he then filed a Grievance No.
1116019 informing the administration that he never received a response to his
grievance. (Id.)
Additionally, Plaintiff attached a copy of the Grievance No. 1116019
appeals to the Regional Director and Central Office. (Doc. 41-7.) The subject of

these grievance appeals was the BOP’s failure to respond to the BP-8 and BP-9
forms he filed following the initial assault in December of 2021. (Id.) The reason
for the rejection of the appeal to the Central Office was a failure to file informal

resolution, BP-9, BP-10 and then BP-11 forms. (Id.)
3. Plaintiff, the Non-Moving Party, Has Presented Sufficient
Evidence to Survive Summary Judgment.
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 (3rd 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).
The BOP has a multi-step administrative remedy program allowing an
inmate “to seek formal review of an issue relating to any aspect of his/her own

confinement.” See 28 C.F.R. § 542.10(a). First, an inmate should attempt
informal resolution of the issue with the appropriate staff member. See id. §
542.13(b). If informal resolution is unsuccessful, the inmate may submit a formal
written grievance, using the BP-9 form, to the Warden within twenty (20) calendar

days “following the date on which the basis for the Request occurred.” See id. §
542.14(a). The Warden is to respond to the request within twenty (20) calendar
days. See id. § 542.18. An inmate dissatisfied with the Warden’s response may

appeal, using the BP-10 form, “to the appropriate Regional Director within 20
calendar days of the date the Warden signed the response.” See id. § 542.15(a).
Finally, an inmate may appeal the Regional Director’s response, using the BP-11
form, to the BOP’s General Counsel “within 30 calendar days of the date the

Regional Director signed the response.” See id.
Decision Hearing Officer appeals are filed initially to the Regional Director
for the region where the inmate is located and are not required to be filed initially

with the Warden. 28 C.F.R. § 542.14(d)(2).
Under Third Circuit precedent, “exhaustion is a question of law to be
determined by a judge, even if that determination requires the resolution of

disputed facts.” Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013); see also
Drippe, 604 F.3d at 781 (“Juries decide cases, not issues of judicial traffic control.
Until the issue of exhaustion is resolved, the court cannot know whether it is to

decide the case or the prison authorities are to.”) (quoting Pavey v. Conley, 544
F.3d 739, 741 (7th Cir. 2008)); cf. Wilkerson v. United States, No. 3:13-1499, 2014
WL 1653249, at *9 (M.D. Pa. Apr. 24, 2014) (“[I]f there is a dispute of material
fact, the court should conduct a plenary trial on the contested facts prior to making

[an exhaustion of administrative remedies] determination.”). “Although the
availability of administrative remedies to a prisoner is a question of law, it
necessarily involves a factual inquiry.” Small, 728 F.3d at 271 (citations omitted).

Here, Defendants have presented evidence that Plaintiff filed multiple
grievances between December 28, 2021 and June 29, 2022, when he filed the
instant complaint. In addition to the seven grievances filed to appeal the Hearing
Officer’s decision at issue in this action, Plaintiff filed multiple other grievances.

(Doc. 31-1, pp. 19–20.) Therefore, Defendants have presented evidence that
despite Plaintiff’s allegations that BOP staff prevented him from filing the
necessary documents to exhaust his administrative remedies, he was able to file

multiple requests for administrative remedies during the relevant period.
However, Plaintiff has presented evidence that Grievance No. 1116019
focused on the BOP’s failure to respond to the initial BP-8 and BP-9 forms that

were filed in January of 2022 following the December 28, 2021 assaults at issue in
Plaintiff’s complaint. (Doc. 41-5.) Therefore, Plaintiff has supplied evidence that
he was, at a minimum, asserting that his grievances regarding the December 28,

2021 incidents were not being addressed well before the complaint was filed with
this court. Additionally, he exhausted the administrative remedies available to him
in seeking to have his initial grievances resolved. There is an unresolved factual
issue of why these initial grievances were not filed with the BOP, when Plaintiff

asserts that he filed both a BP-8 and a BP-9 form and then continued to seek
resolution of these forms. As such, the court cannot grant summary judgment on
the issue of administrative exhaustion, and Defendants’ motion will be denied.

The court is not required to hold a trial on the issue of administrative exhaustion
immediately because discovery has not yet occurred, and the parties will have an
opportunity to readdress the issue of administrative exhaustion in subsequent
dispositive orders.

B. Defendants’ Motion To Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
Will Be Granted In Part.
1. 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).

2. Allegations In the Complaint
The complaint brings a Bivens action against the ten defendants alleging
Eighth Amendment violations including cruel and unusual punishment, excessive
use of force, failure to protect from harm, deliberate indifference to a medical need,
and denying proper medical care, and Fourteenth Amendment violations including
denial of due process and failure to supervise, and conspiracy to commit such

violations. (Doc. 1.) Specifically, Plaintiff alleges that on December 22, 2021, he
arrived at USP Canaan on a wheelchair transfer from another USP facility due to a
knee injury. (Id., p. 9.) He requested protective custody from Lieutenant Young

due to threats to his life. (Id.) He alleges that Defendant Frisk was present and
told Plaintiff that he controlled the isolated/protective housing unit and if he did
not go to population, he would make it “a living hell” for Plaintiff in the protective
housing unit. (Id.)

Nonetheless, Plaintiff was sent to protective custody on December 22, 2021,
and while in handicap cell 140, Defendant Burgh placed Inmate Blaine in the cell
with Plaintiff. (Id.) Plaintiff alleges that Inmate Blaine is a well-known violent

inmate who was in protective custody for new federal charges for stabbing another
inmate. (Id.) While Inmate Blaine was placed in the cell, Plaintiff told Defendant
Burgh that he was not supposed to be housed with inmates with a status such as
Inmate Blaine. (Id.) To which Defendant Burgh allegedly responded by

reminding Plaintiff that he was told that they were going to make this stay “a living
hell.” (Id.) Plaintiff alleges that Inmate Blaine then told him he was placed in the
cell to beat Plaintiff up. (Id.)
Plaintiff alleges that in the following days, Defendants Burgh and Frisk
came by the cell making comments to Inmate Blaine such as “He still in there” and

“you done got soft.” (Id.) Plaintiff alleges that on December 28, 2021, Defendant
Bruch told Inmate Blaine “you need to do something today” so inmate Blaine told
Plaintiff to tell the officer to get me out of the cell or he was going to beat him up.

(Id.) At 5:30 p.m., Plaintiff pushed the emergency button to inform the officer
working the range that he was in fear for his life with inmate Blaine threating to
cause him bodily harm. (Id.) Defendant Orth told him that since he was not
bleeding, he did not care about his safety. (Id.)

Plaintiff alleges that when Defendant Orth left, Inmate Blaine started
choking Plaintiff as he sat in a wheelchair. (Id.) When Inmate Blaine stopped
choking him, Plaintiff alleges that he hit the emergency button. (Id.) When

Defendant Orth made his next rounds at 6:00 p.m., Plaintiff told him that Inmate
Blaine had choked him and requested help. (Id.) Plaintiff alleges that Defendant
Orth again refused. (Id.)
When Defendant Orth left, Plaintiff alleges that Inmate Blaine began

punching Plaintiff in the face and head area. (Id.) Plaintiff alleges that he fell out
of his wheelchair and Inmate Blaine punched him more in the face and head. (Id.)
Plaintiff called for help and the cell across form him said they hit the emergency

button until Defendant Orth did his next security round at 6:40 p.m.
When Defendant Orth arrived, Inmate Blaine was in the back of the cell and
Plaintiff was on the floor of the cell with a bleeding face and requested Defendant

Orth’s help. (Id.) Plaintiff states that Defendant Orth said “stop fighting” and
opened the tray flap and started spraying Plaintiff with O.C. spray. (Id.) Plaintiff
alleges that Defendant Keen told Inmate Blaine to get behind the shower curtain

and shot Plaintiff in the back at least 16 times with a .68 cal pepper ball launcher.
(Id.) Defendant Keen told Plaintiff to cuff-up, and Plaintiff crawled back into his
wheelchair. (Id.) Defendant Keen then told Plaintiff to stand up and cuff-up or he
would shoot Plaintiff some more. He stated that he crawled up the wall due to his

pre-existing knee injury and leaned on the door to cuff up. (Id.)
Plaintiff alleges that Defendants Houch and Price assisted Defendants Keen
and Orth to clear the cell. (Id., p. 10.) Plaintiff sates that two of the officers

grabbed him under the arms while he was cuffed behind his back and dragged him
to a room with a shower in it. (Id.) Plaintiff alleges that his eyes were burning so
bad from the excessive O.C. spray he could not open them. (Id.) H alleges that he
was taken into a shower and was leaned into the shower while cuffed behind his

back with an officer holding him by the arm. (Id.) The officers said “you want
protective custody” and then Plaintiff felt two hard blows to his right-side rib
towards his back. (Id.) His knees allegedly buckled, and officers picked him up

and ran his head into the shower stall. (Id.) He was then dragged to a holding cell
across from Inmate Blaine, and when he asked for his wheelchair, Plaintiff states
that Defendant Keen said he’d taken the wheelchair for fighting. (Id.) Plaintiff

alleges that while in the holding cell, he heard Defendant Keen talking with
Defendant Oakley telling Defendant Oakley to write down on the medical report
that Inmate Blaine had been hit in the head. (Id.) Plaintiff then alleges that

Defendant Keen told Inmate Blaine that Defendant Oakley was going to say he
suffered a hit to his head. (Id.) Inmate Blaine stated he was never hit. (Id.)
Defendant Keen threatened to take Inmate Blaine’s personal property if he said
otherwise.

Plaintiff then alleges that Defendants Price and Houch came into the holding
cell saying they were going to take him to a medical assessment and that he had
better not say anything about them punching him in the ribs. (Id.) Plaintiff was

then taken to a medical assessment on camera while both officers held him because
the pain from the cracked ribs was so significant that he felt as if he were going to
pass out. (Id.) After medical looked at Plaintiff’s head and face from the assault
by Inmate Blaine, he was taken back to cell 140, uncuffed, and dropped on the

floor. (Id.) He again asked for his wheelchair, and Defendant Keen told him that
he was taking his wheelchair and the medical director will do what he says. (Id.)
Plaintiff alleges he then laid on the floor and waited for the shift to change at 12:00

a.m. (Id.)
Plaintiff alleges that on December 29, 2021, he was still laying on the floor
and the Warden was doing a walk through with administration. (Id.) Plaintiff

asked for the medical director, which was Defendant Simonson, who came to the
cell window along with Defendant Keen. (Id.) He asked Defendant Simonson for
help because his rib was broken, saying it was hard to breathe. (Id.) Plaintiff then

asked for his wheelchair back and told Defendant Simonson that an orthopedic
surgeon ordered him to use the wheelchair, and Defendant Simonson stated that he
was told the chair was taken for fighting and he did not care. (Id.)
On December 29, 2021, Plaintiff received a Disciplinary Incident Report

written by Defendant Orth for assaulting Inmate Blaine. (Id.) Plaintiff alleges that
he never went to see the Unit Team for the UDC hearing, which is the second step
an inmate must go through for an assault incident report. (Id.) He alleges that he

did attend the Disciplinary Hearing in front of Defendant Zevan, in which Plaintiff
informed him he had never seen UDC or signed any paper that he was seen by the
UDC. (Id., pp. 10–11.) Plaintiff alleges that Defendant Zevan, at his request,
treated Inmate Blaine as a witness and asked him to write a statement, which

Inmate Blaine did, saying that that Plaintiff did not assault him. (Id.) Plaintiff
states that Defendant Zevan found him guilty even with Inmate Blaine’s statement.
(Id.)
Plaintiff alleges that he submitted multiple medical requests for treatment of
his injuries. (Id.) He was treated on January 18, 2022, and Defendant Simonson

ended the visit and rushed him out after Plaintiff said his ribs were broken. (Id.)
On January 25, 2022, he received an x-ray, and on February 8, 2022, P.A. Whalter
came to his cell and told him that two of his ribs showed cracks all the way

through. (Id.) He was then given pain medications and told to rest. (Id.)
3. Bivens Actions
In Bivens, the Supreme Court recognized that a plaintiff may bring an
implied damages remedy against a federal official for violation of the plaintiff’s

Fourth Amendment right to be free from unreasonable searches, despite the fact
that no federal statute or constitutional provision allowed such a cause of action.
Bivens, 403 U.S. at 397. Since that decision, the Supreme Court has only
recognized an implied damages remedy against a federal official in two other

cases: Davis v. Passman, 442 U.S. 228, 245 (1979) (recognizing an implied cause
of action for sex discrimination under the Fifth Amendment), and Carlson v.
Green, 446 U.S. 14, 18–23 (1980) (recognizing an implied cause of action for

inadequate medical care under the Eighth Amendment). See Mack, 968 F.3 at 314
n.1.
In the absence of Supreme Court extensions of the implied damages remedy
under Bivens, lower federal courts recognized that they had the power to extend
Bivens to new fact situations in appropriate circumstances. See id. at 319. That
changed with the Supreme Court’s decision in Ziglar v. Abbasi, 137 S. Ct. 1843

(2017).
In Ziglar, the Supreme Court considered several Bivens claims brought to
enforce the plaintiff’s rights under the Fourth and Fifth Amendments, all of which

were factually distinct from the claims in Bivens, Davis, and Carlson. Id. at 1853–
54. In analyzing the claims, the court noted that it had taken a much more cautious
approach to implying causes of action in the years since Bivens had been decided.
Id. at 1855–56. Given that more cautious approach, the court acknowledged that

the decision in Bivens, Davis, and Carlson “might have been different if they were
decided today.” Id. at 1856. The Supreme Court instructed lower courts to be
cautious in extending Bivens remedies to new contexts, noting that “expanding the

Bivens remedy is now a ‘disfavored’ judicial activity,” and that decisions of
whether to recognize new causes of action should generally be left to Congress.
Id. at 1857 (quoting Iqbal, 556 U.S. at 675).
Under Ziglar, a court presented with a Bivens claim must conduct a two-part

analysis. Mack, 968 F.3d at 320. First, the court “must determine whether the
Bivens claim presents a ‘new context.’” Id. (quoting Ziglar, 137 S. Ct. at 1859). A
case presents a new context if “is different in a meaningful way from previous

Bivens cases decided by the Supreme Court.” Id. (internal alterations omitted)
(quoting Ziglar, 137 S. Ct. at 1859). The difference between the two cases does
not need to be stark, because “a modest extension is still an extension.” Id.

(quoting Ziglar, 137 S. Ct. at 164). Second, if the case presents a new context, the
court “must then determine if there are ‘special factors counselling hesitation’ in
expanding Bivens.” Id. (quoting Ziglar, 137 S. Ct. at 1857). This determination

“concentrate[s] 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. (quoting Ziglar, 137 S. Ct. at 1857–58.) “If ‘there are any
special factors that counsel hesitation,’ courts must ‘reject the request’ to expand

Bivens.” Id. (quoting Hernandez v. Mesa, 140 S. Ct. 735, 743 (2020)).
More recently, however, on June 8, 2022, the Supreme Court decided Egbert
v. Boule, 142 S. Ct. 1793 (2022). In that case, the Supreme Court clarified the

framework that courts are to use before implying a cause action for money
damages in a new Bivens context. In particular, the Supreme Court recognized its
precedents that describe the two-part inquiry, but explained that these two parts
“often resolve 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 1803.
The Supreme Court further explained that, “[i]f there is even a single reason to
pause before applying Bivens in a new context, a court may not recognize a Bivens

remedy.” See id. (citation and internal quotation marks omitted).
Thus, the outcome of Egbert is—essentially—that extending a Bivens
remedy to a new context will be unavailable in all but the most unusual of cases.

See id. (instructing that “[i]f there is a rational reason” to think that Congress is
better equipped to create a damages remedy, “as it will be in most every case, . . .
no Bivens action may lie”). In other words, the Supreme Court has “all but closed

the door on Bivens remedies.” See Dyer v. Smith, 56 F.4th 271, 277 (4th Cir.
2022) (citation omitted).
Plaintiff’s complaint attempts to bring Bivens claims in four contexts: (1)
due process, (2) excessive force, (3) failure to protect, and (4) deliberate

indifference to a severe medical need. (Doc. 1.) The first two are new contexts
under Bivens and there are sound reasons to find that Congress is better positioned
than the Judiciary to weigh the costs and benefits of allowing a damages action to

proceed. Plaintiff’s failure to protect and deliberate indifference claims are not
new contexts under Bivens. Therefore, the court will consider if complaint plead
sufficient facts to proceed to discovery on these claims.
i. New Contexts

As discussed above, Plaintiff asserts a Bivens claim based upon allegations
of due process violations and the use of excessive force, and these constitute new
contexts under Bivens.
As set forth above, a Bivens claim arises in a new context when the case is
“different in a meaningful way from previous Bivens cases decided” by the

Supreme Court. See Ziglar, 582 U.S. at 139. Here, however, the court finds that
Plaintiff’s Fourteenth Amendment and Eighth Amendment claims “bear[s] little
resemblance” to the three (3) Bivens claims that the Supreme Court “has approved

in the past:” (1) a Fourth Amendment “claim against FBI agents for handcuffing a
man in his own home without a warrant;” (2) a Fifth Amendment “claim against a
Congressman for firing his female secretary;” and (3) an Eighth Amendment
“claim against prison officials for failure to treat an inmate’s asthma.” See id. at

140 (citations omitted).
Although Plaintiff invokes the Fourteenth Amendment, the Fourteenth
Amendment only applies to the actions of state actors and not federal actors. See

Brown v. Philip Morris, Inc., 250 F.3d 789, 800 (3d Cir. 2001). The court
therefore liberally construes the complaint and addresses Plaintiff’s due process
claim under the Fifth Amendment and the failure to supervise claim consistent
with the already raised failure to protect claim under the Eighth Amendment and

will address it below. Davis dealt with a claim for gender discrimination under the
Fifth Amendment’s equal protection component of the due process clause. 442
U.S. 228. However, Plaintiff’s alleged due process violation is in the context of

procedural due process associated with a disciplinary hearing, and not equal
protection. The claims do arise under the same constitutional amendments, 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”).
As for the Eighth Amendment use of excessive force claim, although Bivens

itself concerned an excessive use of force claim, that claim was asserted under the
Fourth Amendment and not the Eighth Amendment. Similarly, although Carlson
involved an Eighth Amendment claim, that claim stemmed from allegations of
inadequate prison medical care and not allegations of excessive use of force. Thus,

while Plaintiff’s case arguably shares broad similarities with Bivens and Carlson,
such broad similarities will be insufficient to support the court extending Bivens to
this new context. See Egbert, 142 S. Ct. at 1805 (explaining that “almost parallel

circumstances” or “superficial similarities” with Bivens, Davis, and Carlson “are
not enough to support the judicial creation of a cause of action” (citation and
internal quotation marks omitted)).
Thus, for these reasons, the court concludes that these two claims arise in

new contexts, and the court must determine under Ziglar and Egbert whether there
are any special factors that counsel hesitation in the court extending a Bivens
remedy to this claim. See Egbert, 142 S. Ct. at 1803. Ultimately, the court finds

that there are special factors that counsel such hesitation here.
As explained by the Supreme Court, a special factor suggests that Congress
is better equipped than the Judiciary to “weigh the costs and benefits” of creating a

new damages remedy. See Egbert, 142 S. Ct. at 1803 (citation and internal
quotation marks omitted). Although various special factors may be considered,
“two are particularly weighty: the existence of an alternative remedial structure and

separation-of-powers principles.” See Bistrian, 912 F.3d at 90 (citation omitted);
Ziglar, 582 U.S. at 135 (stating that “[s]eparation-of-powers principles are or
should be central to the analysis”). If “there is any rational reason (even one) to
think that Congress is better suited to ‘weigh the costs and benefits of allowing a

damages action to proceed[,]’” then the court cannot imply a cause of action for
damages under Bivens. See Egbert, 142 S. Ct. at 1805 (emphasis in original)
(citation and internal quotation marks omitted).

Here, the court finds that there are special factors that weigh against
extending a Bivens remedy to Plaintiff’s Fifth Amendment due process and Eighth
Amendment use of excessive force claims. Initially, the court finds that the BOP’s
Administrative Remedy Program provides an alternative process for addressing

Plaintiff’s claims. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)
(holding that “administrative review mechanisms” can provide “meaningful
redress and thereby forelose[ ] the need to fashion a new, judicially crafted cause

of action[,]” even if those mechanisms do not “fully remedy the constitutional
violation . . .”); see also 28 C.F.R. § 542.10(a) (providing that “[t]he purpose of the
Administrative Remedy Program is to allow an inmate to seek formal review of an

issue relating to any aspect of his/her own confinement”); see 28 C.F.R. §
542.14(d)(2) (including appeals of Decisions of Hearing Officers as part of the
Administrative Remedy Program). Indeed, and as instructed by the Supreme

Court, alternative remedies for aggrieved parties “independently foreclose a Bivens
action.” See Egbert, 142 S. Ct. at 1806; Malesko, 534 U.S. at 69 (stating 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”

(citation omitted)). Thus, “when alternative methods of relief are available,” as
they are here, “a Bivens remedy usually is not.” See Ziglar, 582 U.S. at 145.
In addition, the court finds that “the Judiciary is not undoubtedly better

positioned than Congress to authorize a damages action” in the context of the
excessive use of force in federal prisons. See Egbert, 142 S. Ct. at 1805. The
Supreme Court has generally acknowledged that “courts are ill equipped to deal
with the increasingly urgent problems of prison administration and reform[,]” that

“[r]unning a prison is an inordinately difficult undertaking that requires expertise,
planning, and the commitment of resources, all of which are peculiarly within the
province of the legislative and executive branches of government[,]” and that this

“task that has been committed to the responsibility of those branches, and
separation of powers concerns counsel a policy of judicial restraint.” See Turner v.
Safley, 482 U.S. 78, 84–85 (1987) (emphasis added) (internal citation and internal

quotation marks omitted). Thus, extending a Bivens remedy to this new context
“would step well into the lawmaking privilege delegated only to Congress, and
well over the bounds of [the court’s] limited constitutional power.” See Mammana

v. Barben, 856 F. App'x 411, 415 (3d Cir. 2021) (unpublished) (setting forth this
principle in the context of a Bivens claim based upon allegedly unconstitutional
conditions of confinement in violation of the Eighth Amendment).
Additionally, the court finds that “recognizing a Bivens remedy [here] would

likely cause an increase of suits by inmates, increased litigation costs to the
government, and . . . burdens on individual prison employees to defend such
claims.” See Bistrian, 912 F.3d at 95 (citation and internal quotation marks

omitted). “Heeding the reasoning in [Ziglar v.] Abbasi, [courts] must be reluctant
to ‘establish whole categories of cases in which federal officers must defend
against personal liability claims in the complex sphere of litigation.’” Id. (quoting
Ziglar, 582 U.S. at 136); Egbert, 142 S. Ct. at 1800 (stating that Supreme Court

precedent has “made clear that, in all but the most unusual circumstances,” a
Bivens remedy should not be recognized in new contexts). Thus, for all of these
reasons, the court concludes that special factors counsel hesitation in extending a

Bivens remedy to a plaintiff’s Fifth and Eighth Amendment claims.
In sum, the court concludes that Plaintiff’s Fifth Amendment due process
and Eighth Amendment use of excessive force claims arise in a new Bivens context

and there are sound reasons to find that Congress is better positioned than the
Judiciary to “weigh the costs and benefits of allowing a damages action to
proceed” here. See Egbert, 142 S. Ct. at 1803 (citation and internal quotation

marks omitted). Accordingly, because there are such reasons to defer to Congress,
the court will refrain from extending a Bivens remedy to Plaintiff’s claims. See id.
Therefore, the court will dismiss Plaintiff’s Fifth Amendment due process claim
and Eighth Amendment use of excessive force claim.

ii. Failure to Protect
Plaintiff also raises a failure to protect claim against Defendants. (Doc. 1.)
In addressing this claim, the court finds that Farmer v. Brennan, 511 U.S. 825
(1994), is still precedent in light of Egbert v. Boule. As a result, the court finds

that Plaintiff’s failure to protect claim is not a new context under Bivens.
In Farmer v. Brennan, the Court held that prison officials may be held liable
under the Eighth Amendment for the failure to protect the plaintiff’s safety. 511

U.S. at 847. The plaintiff in Farmer filed a Bivens complaint, alleging a violation
of the Eighth Amendment, because the defendants had placed the plaintiff in the
general population despite knowledge that she, as a transgender woman, would be
particularly vulnerable to sexual attack by some inmates. Id. at 830–31.
Throughout the opinion, the Court referred to the matter as a Bivens action. See id.
at 839 (“Bivens actions against federal prison officials (and their 42 U.S.C. § 1983

counterparts against state officials) are civil in character. . .”). The main inquiry
concerned the deliberate indifference standard of Eighth Amendment claims. Id. at
842. Thus, the Court did not dispute whether the plaintiff’s Eighth Amendment

claim for failure to protect was an actual Bivens action. The Court held that a
prison official could “be held liable under the Eighth Amendment for denying
humane conditions of confinement,” emphasizing that “prison officials have a duty
. . . to protect prisoners from violence at the hands of other prisoners.” Id. at 833–

34, 848.
Although Egbert, Hernandez, and Ziglar do not mention Farmer as one of
the cases in which the Supreme Court recognized a Bivens remedy, the Third

Circuit has held, post-Ziglar, that Farmer recognized an implied Bivens remedy for
claims that prison officials were deliberately indifferent to a risk that an inmate
would be assaulted by other inmates. See Bistrian, 912 F.3d at 90–91. The
Supreme Court’s more recent decisions in Hernandez and Egbert and the Third

Circuit’s decision in Dongarra v. Smith, 27 F.4th 174 (3d Cir. 2022) cloud this
conclusion. See Davis v. FCI-Schuylkill, No. 1:22-CV-1270, 2022 WL 4348462,
at *3 n.3 (M.D. Pa. Sept. 19, 2022) (Conner, J.). Nevertheless, Dongarra did not

overrule Bistrian because Dongarra is not an en banc decision. See, e.g., Bracey
v. Superintendent Rockview SCI, 986 F.3d 274, 290 n.14 (3d Cir. 2021). Hence,
the court will continue to treat Bistrian, and thus Farmer, as binding precedent.

Here, the court acknowledges that Plaintiff is not a transgender individual,
nor is he challenging his placement in the general population. Therefore, the facts
of this case are different than the facts at issue in Farmer. However, this is a

failure to protect claim addressing inmate-on-inmate violence and distinctions
based on the prisoner’s gender identity and the custodial status of the prisoner are
“trivial.” See Ziglar, 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 finds that based on the complaint alone, Plaintiff does not raise a new context
under Bivens. Therefore, the court will now address whether Plaintiff properly

pleads a failure to protect claim.
“A prison official’s ‘deliberate indifference’ to a substantial risk of harm to
an inmate violates the Eighth Amendment.” Farmer, 511 U.S. at 828. “[P]rison
officials have a duty . . . to protect prisoners from violence at the hands of other

prisoners.” Id. at 833 (citations omitted). “It is not, however, every injury suffered
by one prisoner at the hands of another that translates into constitutional liability
for prison officials responsible for the victim’s safety.” Id. at 834. Accordingly, to

state a claim for damages against a prison official for failure to protect from inmate
violence, “an inmate must plead facts that show (1) he was incarcerated under
conditions posing a substantial risk of serious harm, (2) the official was

deliberately indifferent to that substantial risk to his health and safety, and (3) the
official’s deliberate indifference caused him harm.” Bistrian, 696 F.3d at 367.
As explained in Beers-Capitol v. Whetzel, in Eighth Amendment cases based

on allegations of deliberate indifference on the part of prison officials or other
supervisory defendants, the Supreme Court has “rejected an objective test for
deliberate indifference; instead it looked to what the prison official actually knew
rather than what a reasonable official in his position would have known.” 256 F.3d

120, 131 (3d Cir. 2001). Specifically, “a prison official cannot be found liable
under the Eighth Amendment for denying an inmate humane conditions of
confinement unless the official knows of and disregards an excessive risk to inmate

health or safety.” Farmer, 511 U.S. at 837. This requirement of actual knowledge
on the part of officials means that “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” Farmer, 511 U.S. at 837.

The Third Circuit has recognized that a mere generalized knowledge that
prisons are dangerous places does not give rise to an Eighth Amendment claim.
See, e.g., Jones v. Beard, 145 F. App'x 743 (3d Cir. 2005). However, the Third

Circuit has interpreted Farmer to mean that “a plaintiff could make out a deliberate
indifference case by showing that prison officials simply were aware of a general
risk to inmates in the plaintiff’s situation[.]” In order to show deliberate

indifference in this fashion, a plaintiff needs to present evidence showing a
substantial basis for demonstrating that a prison official was deliberately
indifferent in the face of information that presented a substantial risk to inmate

safety for a particular inmate-plaintiff. As the Supreme Court has observed in this
context: “If an Eighth Amendment plaintiff presents evidence showing that a
substantial risk of inmate attacks was longstanding, pervasive, well-documented,
or expressly noted by prison officials in the past, and the circumstances suggest

that the defendant-official being sued had been exposed to information concerning
the risk and thus must have known about it, then such evidence would permit a
trier of fact to find that the defendant-official had actual knowledge of the risk.”

Farmer, 511 U.S. at 842–43 (emphasis added).
In support of his Eighth Amendment claim, Plaintiff alleges that Defendants
placed Inmate Blaine in his cell with the intention of having Inmate Blaine attack
Plaintiff and proceeded to encourage Inmate Blaine to attack Plaintiff. (Doc. 1.)

Therefore, Plaintiff has pled the required knowledge of a substantial risk. As such,
the court will not dismiss this claim at this time. Should discovery reveal facts
demonstrating “meaningful differences” between this claim and other Bivens
contexts, Defendants are free to raise their Bivens argument again in a future
motion.

iii. Deliberate Indifference
Plaintiff’s deliberate indifference to a serious medical need claim also fails
to present a new context under Bivens. The Supreme Court has recognized an
implied cause of action for inadequate medical care under the Eighth Amendment

under Bivens. Carlson, 446 U.S. at 18–23. However, Plaintiff has failed to raise
an adequate deliberate indifference to a serious medical need claim in his
complaint.

To sustain a constitutional claim under the Eighth Amendment for
deliberate indifference to a serious medical need, a plaintiff must make (1) an
objective showing that his medical needs were serious, and (2) a subjective
showing that the defendants were deliberately indifferent to those medical needs.

See Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious
medical need is “one that has been diagnosed by a physician as requiring treatment
or is so obvious that a lay person would easily recognize the necessity for a

doctor’s attention.” Monmouth Cty. Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326,
346–47 (3d Cir. 1987) (citation omitted). A prison official is deliberately
indifferent when he “knows of and disregards an excessive risk to inmate health or
safety.” Farmer, 511 U.S. at 837.
However, “[p]rison medical authorities are given considerable latitude in the
diagnosis and treatment of medical problems of inmates and courts will ‘disavow

any attempt to second guess the propriety or adequacy of a particular course of
treatment . . . which remains a question of sound professional judgment.’” Byrd v.
Shannon, No. 1:09-CV-1551, 2010 WL 5889519, at *4 (M.D. Pa. Nov. 24, 2010)

(quoting Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir.1979)). Mere disagreement over proper treatment does not state a claim upon
which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);
Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what

constitutes deliberate indifference, have consistently held that mere allegations of
malpractice do not raise issues of constitutional import. . . Nor does mere
disagreement as to the proper medical treatment support a claim of an eighth

amendment violation.”). Additionally, short delays in treatment do not rise to the
level of deliberate indifference. See Rodriguez v. Thomas, No. 1:CV-12-2090,
2015 WL 1470719, at *9 (M.D. Pa. Mar. 31, 2015) (“short delays unaccompanied
by arbitrary or unduly burdensome bureaucratic procedures” do not rise to the level

of deliberate indifference).
Here, Plaintiff alleges that he received treatment on the day of the assaults
for the injuries to his head and that he received treatment for the injuries to his ribs

in January and February of 2022. (Doc. 1, pp. 10–11.) Therefore, based on the
fact that he received treatment for his injuries, Plaintiff has failed to allege a
violation of the Eighth Amendment for the deliberate indifference to a serious

medical need. The court recognizes that generally, self-represented plaintiffs are
given leave to amend their complaints when their claims are dismissed pursuant to
Fed. R. Civ. P. 12(b)(g). Phillips, 515 F.3d at 245. However, the court is not

required to provide an opportunity to amend a complaint when such amendments
would be inequitable or futile. Id. Here, such an amendment would be futile. In
the event that any amended complaint omitted the medical treatment following the
assaults, discovery would result in evidence of the medical treatment, and the

deliberate indifference claim would similarly fail. As such, this claim will be
dismissed with prejudice.
C. Conspiracy Claim
Defendants did not challenge Plaintiff’s conspiracy claim in their brief in

support of their motion. (Doc. 29.) Therefore, the conspiracy claim will not be
addressed at this time, but Defendants can challenge it in subsequent dispositive
motions following discovery.

CONCLUSION
For the foregoing reasons, the court will deny Plaintiff’s motion for
summary judgment and grant Plaintiff’s alternative motion to dismiss in part. The
court will dismiss all claims brought against Defendants except the Eighth
Amendment failure to protect claim and the conspiracy claim. The Third Circuit
has found that a self-represented plaintiff may be granted leave to file an amended

complaint even when he does not seek leave to amend, unless such an amendment
would be inequitable or futile. Phillips, 515 F.3d at 245. Considering the Supreme
Court’s restriction on new contexts under Bivens following Egbert, any attempts to

cure the defects set forth above would be futile. Therefore, Plaintiff will not be
granted leave to amend.
The court will allow Defendants an opportunity to file an answer addressing
the claims that have survived. Following the answer, the court will enter a case

management order initiating discovery. Therefore, Plaintiff’s motion to proceed
with discovery will be denied at this time.
An appropriate order will follow.

s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania

Dated: August 25, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413581. Public record. Not legal advice.