Stanton v. Paul

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LEON STANTON,

Plaintiff CIVIL ACTION NO. 1:22-CV-00647

v. (MEHALCHICK, J.)

DAVID PAUL, et al.,

Defendants

MEMORANDUM

Plaintiff Leon Stanton (“Stanton”), a federal inmate in the custody of the Bureau of

Prisons (“BOP”), filed this Bivens1 action pursuant to 28 U.S.C. § 1331. (Doc. 1). Named as

defendants are Richard Andreuzzi, David Bardo, John Barrett, Troy Bartholomew, Adam

Croker, Justin Foura, Matthew Klobe, Andrew Lieu, Jared Menne, Ryan Price, Eric Spotts,

Derek Keeney, Dan Trojan, Michael Carvajal, Scott Finley, Dr. Murray, Angelo Jordan, and

David Paul.

Presently before the court is defendants’ motion (Doc. 29) to dismiss pursuant to

Federal Rule of Civil Procedure 12(b) and for summary judgment pursuant to Federal Rule

1Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). A Bivens civil rights action

asserted under 28 U.S.C. § 1331 is evaluated using the same standards applicable to a 42

U.S.C. § 1983 civil rights action. See Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975). To

state a claim under Bivens, a plaintiff must allege that he was deprived of a federal right by a

person acting under color of federal law. See Young v. Keohane, 809 F. Supp. 1185, 1199 (M.D.

Pa. 1992).

of Civil Procedure 56.2 The motion will be treated as one for summary judgment, and

disposed of as provided in Rule 56, only with respect to the issue of exhaustion of

administrative remedies.3 The remaining claims will be addressed under Rule 12(b). As set

forth below, the court will grant defendants’ motion (Doc. 29) to dismiss and for summary

judgment.

1. FACTUAL BACKGROUND & PROCEDURAL HISTORY

At all relevant times, Stanton was housed at the Federal Correctional Institution,

Schuylkill, Pennsylvania (“FCI-Schuylkill”). (Doc. 1, at 2). Stanton alleges that, on August

10, 2022, he was placed in the Special Housing Unit (“SHU”) based on an email he sent to

his wife. (Doc. 1, at 2). The email referenced a lawsuit that Stanton intended to file against

Warden Scott Finely. (Doc. 1, at 2). Stanton asserts that the Schuylkill County Sheriff’s

2The motion is filed only on behalf of Richard Andreuzzi, David Bardo, John Barrett,

Troy Bartholomew, Adam Croker, Justin Foura, Matthew Klobe, Andrew Lieu, Jared

Menne, Ryan Price, Eric Spotts, Derek Keeney, and Dan Trojan. A summons was mailed to

all defendants, including Michael Carvajal, Scott Finley, Dr. Murray, Angelo Jordan, and

David Paul. However, these five individuals are no longer employed by the BOP, and no

waivers of service have been returned by them. As set forth herein, the court will dismiss the

claims against defendants Carvajal, Finley, Murray, Jordan, and Paul pursuant to Federal

Rule of Civil Procedure 4(m) based on Stanton’s failure to properly effectuate service.

3On September 18, 2023, the court issued an order apprising the parties that it would

consider exhaustion in its role as factfinder in accordance with Paladino v. Newsome, 885 F.3d

203 (3d Cir. 2018) and Small v. Camden Cnty., 728 F.3d 265 (3d Cir. 2013), and afforded the

parties the opportunity to supplement the record with any additional evidence relevant to

exhaustion of administrative remedies. (Doc. 38).

Department attempted to serve Warden Finley, but the Special Investigative Supervisor at the

prison confiscated the complaint. (Doc. 1, at 3; Doc. 1, at 8).

On August 10, 2020, defendant Klobe allegedly issued an incident report against

Stanton charging him with a violation of BOP Disciplinary Code 196.4 (Doc. 1, at 3). Stanton

avers that the incident report was voided, but he remained in the SHU without justification.

(Doc. 1, at 3). On November 4, 2020, Stanton was issued another incident report, charging

him with violating BOP Disciplinary Codes 203 and 2045, again relating to the email he sent

to his wife. (Doc. 1, at 3). Stanton maintains that he never received any sanctions or review

by the Unit Discipline Committee for either incident report. (Doc. 1, at 3).

Stanton alleges that BOP officials placed him in the SHU and issued approximately

eleven incident reports against him in retaliation for filing the lawsuit against Warden Finley.

(Doc. 1, at 3-4; Doc. 1, at 8). He further alleges that his placement in the SHU violated his

right to due process. (Doc. 1, at 8).

The remainder of the complaint consists of the following disjointed allegations.

4Code 196— “Use of the mail for an illegal purpose or to commit or further a Greatest

category prohibited act.” See 28 C.F.R. § 541.3, Table 1; see also Inmate Discipline Program

(Aug. 2011), at 45, available at: https://www.bop.gov/policy/progstat/5270_009.pdf (last

accessed February 13, 2024).

5Code 203— “Threatening another with bodily harm[;]” Code 204— “Extortion;

blackmail; protection; demanding or receiving money or anything of value in return for

protection against others, to avoid bodily harm, or under threat of informing.” See 28 C.F.R.

§ 541.3, Table 1; see also Inmate Discipline Program (Aug. 2011), at 46, available at:

https://www.bop.gov/policy/progstat/5270_009.pdf (last accessed February 13, 2024).

Stanton avers that defendant Lieu made sexually inappropriate comments to him and

touched his backside inappropriately. (Doc. 1, at 4).

He alleges that defendants Kroker, Menne, Sports, and Barrett trashed his cell and

threw out his legal paperwork. (Doc. 1, at 4).

Defendants Barrett, Menne, and Bartholomew allegedly transported Stanton to a

“blin[d] spot” where Barrett rammed his head into the cage, and defendant Kroker threatened

to break Stanton’s neck and called him derogatory names. (Doc. 1, at 4-5).

Stanton asserts that defendant Trojan opened his legal mail outside of Stanton’s

presence and defendant Klobe called him derogatory names. (Doc. 1, at 5).

Next, defendant Lieu allegedly placed his hand in Stanton’s back pocket,

inappropriately touching him and degrading him, and defendant Menning allegedly covered-

up defendant Lieu’s behavior. (Doc. 1, at 5). Stanton maintains that defendant Kroker

harassed him with an unwarranted strip-search and made sexually charged comments in

retaliation for filing a complaint against defendant Lieu. (Doc. 1, at 5).

Stanton avers that defendant Barrett had him placed in restraints based on a false

statement that Stanton threatened him. (Doc. 1, at 5). While in restraints, Stanton alleges that

defendant Foura harassed him by calling him derogatory names, had a riot shield brought in

for a restraint check, pressed it on Stanton’s head and banged on it with his fist, and wrote

Stanton up seven times. (Doc. 1, at 5). He maintains further the defendant Jordan covered-up

these actions. (Doc. 1, at 5).

Defendants move for dismissal, and summary judgment, on the following grounds: (1)

Stanton failed to exhaust his administrative remedies; (2) sovereign immunity bars the court’s

subject matter jurisdiction over Stanton’s official capacity claims; and (3) even if Stanton had

properly exhausted his administrative remedies, his claims are not valid contexts for a Bivens

claim, he failed to establish the personal involvement of Keeney, Price, Andruzzi, and Bardo,

and defendants are protected from liability by sovereign immunity. (Doc. 35). The motion is

ripe for resolution.

2. RULE 56 MOTION

A. STANDARD OF REVIEW

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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 fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994). However, a party opposing a summary judgment motion must comply with Local Rule

56.1, which specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to be filed

by the movant], as to which it is contended that there exists a genuine issue to be tried”; if the

nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be served

by the moving party will be deemed to be admitted.” See M.D. Pa. L.R. 56.1. A party cannot

evade these litigation responsibilities in this regard simply by citing the fact that he is a pro se

litigant. These rules apply with equal force to all parties. Morrison v. United States, No. 1:20-

CV-01571, 2021 WL 4192086, at *3 (M.D. Pa. Sept. 15, 2021) (citing Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se parties “cannot flout

procedural rules—they must abide by the same rules that apply to all other litigants”)).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

In deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the

district court of the basis for its motion,” and demonstrating the absence of a genuine dispute

of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must go beyond the pleadings with affidavits or declarations,

answers to interrogatories, or the like to demonstrate specific material facts which give rise to

a genuine issue. FED. R. CIV. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must

produce evidence to show the existence of every element essential to its case, which it bears

the burden of proving at trial, because “a complete failure of proof concerning an essential

element of the nonmoving party's case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-

serving testimony, whether made in the complaint or a sworn statement, cannot be used to

obtain or avoid summary judgment when uncorroborated and contradicted by other evidence

of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); see also Thomas v. Delaware

State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported

deposition testimony, which is contradicted by the record, is insufficient to defeat summary

judgment.”); Nat’l Labor Rel. Bd. v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s]

testimony . . . amounts to an unsupported, conclusory assertion, which we have held is

inadequate to satisfy the movant’s burden of proof on summary judgment.”). With the

aforementioned standards in mind, a document filed pro se is “to be liberally

construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).

B. STATEMENT OF UNDISPUTED FACTS6

1. Facts Regarding Stanton

Stanton was housed at FCI-Schuylkill from September 26, 2016 to April 12, 2021.

(Doc. 34, at 2, ¶ 2). He is serving a 420-month sentence, plus six years of supervised release,

for possession with intent to distribute crack within 1,000 feet of a school and possession of a

6Local Rule 56.1 requires that a motion for summary judgment pursuant to Federal Rule

of Civil Procedure 56 be supported “by a separate, short, and concise statement of the material

facts, in numbered paragraphs, as to which the moving party contends there is no genuine

issue to be tried.” A party opposing a motion for summary judgment must file a separate

statement of material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. L.R. 56.1. Unless otherwise noted,

the factual background herein derives from defendants’ Rule 56.1 statement of material facts.

(Doc. 34). Although Stanton filed a brief (Doc. 37) in opposition to defendants’ motion, he

failed to file a responsive fact statement. As such, the Court will admit as uncontroverted the

statement of facts submitted by defendants. See L.R. 56.1 (“All material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted unless

controverted by the statement required to be served by the opposing party.”)

firearm in furtherance. (Doc. 34, at 2, ¶ 3). Stanton’s projected release date is January 30,

2041, via good conduct time release. (Doc. 34, at 2, 4).

2. Facts Regarding Exhaustion ¶

The BOP’s computerized record of Stanton’s administrative remedy submissions

reveals that he filed forty-seven administrative remedies between August 1, 2020, and January

3, 2023. (Doc. 34, at 2, ¶ 5). The Administrative Remedy Generalized Retrieval document

shows the following information—when remedies were received, the issue the remedy sought

to address, the status date of the remedy, and the response reason code. (Doc. 34, at 2-3, ¶ 6).

Of the forty-seven administrative remedies that Stanton filed, he only exhausted one—

administrative remedy number 1113672-F1, R1, A1—which concerned staff at the United

States Penitentiary, Allenwood, searching his cell, which is unrelated to any of the allegations

in the instant complaint. (Doc. 34, at 3, ¶ 7). The remaining forty-four remedies filed by

Stanton were not properly filed through all levels of the administrative process. (Doc. 34, at

3, ¶ 8).

Stanton filed his last remedy, number 1146223-F1, on December 29, 2022, concerning

a complaint regarding confinement in the SHU. (Doc. 34, at 3, ¶ 9). On December 29, 2022,

remedy number 1146223-F1 was rejected because it was filed at the wrong level, and Stanton

was advised as to the proper filing of a sensitive matter. (Doc. 34, at 3, ¶ 10).

3. Facts Regarding SHU Placement and Use of Force

On August 10, 2020, an Administrative Order was issued confining Stanton to the

SHU because his “continued presence in the general population poses a serious threat to life,

property, self, staff, other inmates, or to the security or orderly running of the institution due

to a Violation of Code 196.” (Doc. 34, at 3-4, ¶ 11).

On March 1, 2021, Stanton returned from recreation and was taken to the SHU

holding cell to be visually searched. (Doc. 34, at 4, ¶ 12). While in the SHU holding cell,

Stanton became agitated and disruptive, kicking the cell door and threatening the Lieutenant

with assault. (Doc. 34, at 4, ¶ 13). The Use of Force team was assembled to remove Stanton

from the cell and place him in soft ambulatory restraints. (Doc. 34, at 4, ¶ 14). Stanton was

removed from the cell, visually searched, metal detected, placed in alternative clothing,

photographed, medically assessed, and placed in soft ambulatory restraints at 9:35 a.m. (Doc.

34, at 4, ¶ 15). The Warden noted that Stanton was to remain in restraints until he could gain

control of his emotions. (Doc. 34, at 5, ¶ 16). No staff or inmate injuries were reported as a

result of the calculated use of force/application of restraints. (Doc. 34, at 5, ¶ 17).

There was only one Form 583 Report of Incident (use of force) involving Stanton at

FCI-Schuylkill. (Doc. 34, at 5, ¶ 18). On March 1, 2021, a Form 583 Report noted that a use

of force team was assembled because staff believed that Stanton was acting disruptively;

however, Stanton submitted to restraints without the need for force, and photos and medical

assessment show no injuries sustained. (Doc. 34, at 5, ¶ 18). After the calculated use of force,

medical staff evaluated Stanton in the SHU, and noted that he had no injuries. (Doc. 34, at

5, ¶ 19).

While in restraints, staff checked on Stanton every fifteen minutes to evaluate his

general welfare, behavior, and physical and mental health status. (Doc. 34, at 5-6, ¶ 20). The

staff notes of the fifteen-minute restraint checks indicate that Stanton was very agitated and

disruptive, yelling and cursing at staff, not responding to questions or orders, pacing in his

cell, kicking his bed, and making vulgar gestures toward staff. (Doc. 34, at 6, ¶ 21). The

restraint checks began on March 1, 2021, at 9:35 a.m., and continued until March 2, 2021, at

7:00 a.m. (Doc. 34, at 6, ¶ 22).

While Stanton was restrained, the lieutenant performed two-hour restraint checks to

evaluate his general welfare, behavior, and physical and mental health status. (Doc. 34, at 6,

¶ 23). The lieutenant checks began at 9:35 a.m. on March 1, 2021, and ended on March 2,

2021, at 7:00 a.m., when Stanton was noted to have been compliant with orders and was non-

argumentative. (Doc. 34, at 6, ¶ 24). On March 2, 2021, at the 3:00 a.m. lieutenant check, it

was noted that Stanton was much less agitated, and he was counseled that if he continued to

progress, his restraints would be removed. (Doc. 34, at 6-7, ¶ 25). Stanton’s leg restraints were

removed at 5:00 p.m. on March 2, 2021, and he was further advised that if he continued to

progress and remain calm, the full restraints would be removed. (Doc. 34, at 7, ¶ 26).

On March 1, 2021, while Stanton was in restraints, he had eight incident reports issued

as a result of his behavior when staff performed restraint checks. (Doc. 34, at 7, ¶ 27). Stanton

received disciplinary sanctions for four of the eight incident reports issued on March 1, 2021—

numbers 3479037, 3479197, 3479215, 3479236. (Doc. 34, at 7, ¶ 28).

C. DISCUSSION

Defendants seek an entry of summary judgment based on Stanton’s failure to properly

exhaust his administrative remedies as required by the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e, et seq. (Doc. 35, at 20-25). The PLRA requires prisoners to

exhaust available administrative remedies before suing prison officials for alleged

constitutional violations. See 42 U.S.C. § 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); see also Shifflett v. Korszniak, 934 F.3d 356, 359 (3d Cir.

2019). This is not such a case. To the contrary, the record establishes that Stanton had full

and ready access to the administrative remedy process.

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

Cnty., 728 F.3d 265, 269 (3d Cir. 2013) (citing Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir.

2010)); 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).

The BOP has established a multi-tier system enabling a federal prisoner to seek formal

review of any aspect of his imprisonment. 28 C.F.R. §§ 542.10-542.19. Before seeking formal

review, an inmate must attempt to informally resolve the issue with institutional staff by

completing a BP-8 form. 28 C.F.R. § 542.13. If informal resolution is unsuccessful, the inmate

may present the issue to the Warden within twenty days of the date of the event giving rise to

the administrative remedy request by filing a BP-9 form. 28 C.F.R. § 542.14. The Warden has

twenty days to respond. 28 C.F.R. § 542.18. An inmate dissatisfied with the Warden’s

response may submit an appeal on a BP-10 form to the BOP Regional Director within twenty

calendar days. 28 C.F.R. § 542.15(a). The Regional Director has thirty days to respond to an

appeal. 28 C.F.R. § 542.18. If the Regional Director denies the appeal, the inmate may then

appeal to the BOP’s Central Office, General Counsel, by submitting a BP-11 form within

thirty calendar days. 28 C.F.R. § 542.15(a). The Central Office has forty days to respond. 28

C.F.R. § 542.18. No administrative remedy is considered fully exhausted until it is decided

on its merits by the Central Office. 28 C.F.R. §§ 541.10-542.19.

Here, Stanton has presented no evidence that he properly exhausted his administrative

remedies, that he was prevented in any way from exhausting his administrative remedies, or

that FCI-Schuylkill personnel failed to respond to a grievance. In his complaint, Stanton sets

forth a conclusory allegation that prison officials failed to respond to his grievance appeals.

(Doc. 1, at 9). And in an attempt to refute defendants’ argument in favor of summary

judgment, Stanton asserts that “this Court has screened my complaint and exhibits and

allowed my complaint to advance after the screening process, which confirms that I did.”

(Doc. 37, at 2). Stanton is mistaken. His bald assertions, standing alone, do not carry his

burden of proving “that there was some extraordinary reason he was prevented from

complying with the statutory mandate.” Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002)

(not precedential). Stanton does not provide any evidence, via an affidavit, declaration, or

other statement made under penalty of perjury to support a claim that the administrative

remedy process was not available to him. Rather, the record before the court demonstrates

that the administrative remedy process at FCI-Schuylkill was consistently available to

Stanton, as evidenced by the forty-seven remedies he filed from August 1, 2020 through

January 3, 2023. (See Doc. 34, at 2, ¶ 5).

In contrast, defendants have presented evidence in the form of an affidavit from BOP

attorney Jenifer Knepper and the Administrative Remedy Generalized Retrieval, confirming

that Stanton did not exhaust all of his available administrative remedies. (Doc. 34-2, at 2;

Doc. 34-2, at 13-37). The record reflects that Stanton filed forty-seven administrative

remedies, but only pursued one to the final level of review. (Doc. 34 at 3, ¶ 7; Doc. 34-2, at

31-33). Stanton filed his last administrative remedy on December 29, 2022, number 1146223-

F1, regarding his confinement in the SHU. (Doc. 34 at 3, ¶ 9; Doc. 34-2, at 37). On that same

date, prison officials rejected the remedy because it was filed at the wrong level, and informed

Stanton of the proper procedure for filing a remedy involving a sensitive matter. (Doc. 34 at

3, ¶ 10; Doc. 34-2, at 37). Stanton failed to follow this directive and, instead, bypassed the

inmate grievance system and proceeded to federal court. “[I]t is beyond the power of this

court—or any other—to excuse compliance with the exhaustion requirement, whether on the

ground of futility, inadequacy or any other basis. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.

2000). Stanton’s course of action is precisely the conduct that the PLRA administrative

exhaustion requirement seeks to curtail. Defendants are entitled to summary judgment based

on Stanton’s failure to exhaust administrative remedies.

Even had Stanton properly exhausted, his claims are subject to dismissal on the merits,

as set forth below.

3. RULE 12(B)(1) MOTION

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

lack of subject matter jurisdiction. See FED. R. CIV. P. 12(b)(1). Such jurisdictional challenges

take one of two forms: (1) parties may levy a “factual” attack, arguing that one or more of the

pleading’s factual allegations are untrue, removing the action from the court’s jurisdictional

ken; or (2) they may assert a “facial” challenge, which assumes the veracity of the complaint’s

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

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

535 F.3d 132, 139 (3d Cir. 2008)). In either instance, it is the plaintiff’s burden to establish

jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).

Defendants argue that Stanton’s Bivens claims against them in their official capacities

are barred by sovereign immunity. (Doc. 35, at 25-26). Sovereign immunity bars any claims

brought against the defendants in their official capacities. Specifically, sovereign immunity

constitutes a jurisdictional bar to claims against the United States and its agencies, unless

Congress has specifically waived such immunity. FDIC v. Meyer, 510 U.S. 471, 475 (1994).

“An action against government officials in their official capacities constitutes an action

against the United States [and is] barred by sovereign immunity, absent an explicit waiver.”

Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (not precedential); Webb v. Desan, 250 F.

App’x 468, 471 (3d Cir. 2007) (not precedential).

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

federal employees sued in their official capacities. Corr. Servs. Corp. v. Malesko, 534 U.S.

61, 72 (2001) (“If a federal prisoner in a BOP facility alleges a constitutional deprivation,

he may bring a Bivens claim against the offending individual officer, subject to the

defense of qualified immunity. The prisoner may not bring a Bivens claim against the

officer’s employer, the United States, or the BOP.”). Thus, Stanton’s claims against the

defendants in their official capacities are barred by sovereign immunity and will be

dismissed for lack of jurisdiction. Lewal, 289 F. App’x at 516; Webb, 250 F. App’x at

471.

4. RULE 12(B)(6) MOTION

A. STANDARD OF REVIEW

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

which are not entitled to the assumption of truth, and finally determine whether the

complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal

claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well

as “documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions’ . . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a

court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen.

Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

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

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded

complaint must recite factual allegations that are sufficient to raise the plaintiff’s claimed right

to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a

cause of action. There is no requirement that the pleading be specific or probable. Schuchardt,

839 F.3d at 347 (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008).

Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the

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

v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting FED. R. CIV. P. 8(a)(2)); see also Phillips, 515

F.3d at 233 (citing Twombly, 550 U.S. at 545).

With the aforementioned standards in mind, a document filed pro se is “to be liberally

construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully

pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers”

and can only be dismissed for failure to state a claim if it appears beyond a doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to

relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed

that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable or futile. Grayson

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

B. DISCUSSION

Alternatively, defendants move to dismiss Stanton’s retaliation, due process,

conditions of confinement, excessive force, and sexual harassment claims on the basis that

there is no Bivens remedy available for these First, Fifth, and Eighth Amendment claims

following the United States Supreme Court’s decision in Ziglar v. Abbasi, 582 U.S. 120 (2017).

(Doc. 35, at 30-53). In Bivens, the Supreme Court recognized an implied damages remedy for

a Fourth Amendment violation committed by federal officials, whose conduct was not

encompassed by the statutory remedy available against state actors under 42 U.S.C. § 1983.

See Bivens, 403 U.S. at 397. Since the Bivens decision, the Supreme Court has extended the

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

Amendment’s Due Process Clause, see Davis v. Passman, 442 U.S. 228, 248-49 (1979), and

later to a claim for inadequate prison medical care under the Cruel and Unusual Punishment

Clause of the Eighth Amendment, see Carlson v. Green, 446 U.S. 14, 18-23 (1980).

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

whether a prospective Bivens claim may proceed. First, courts must ascertain whether the case

presents a “new context.” Abbasi, 582 U.S. at 139. If the case differs “in a meaningful way

from previous Bivens cases decided by th[e Supreme] Court, then the context is new.” Abbasi,

582 U.S. at 139. And the meaning of “new context” is “broad.” See Hernandez v. Mesa, 589

U.S. ––––, 140 S. Ct. 735, 743, 206 L.Ed.2d 29 (2020). Second, if the case presents a new

context, the court must then consider whether “special factors” counsel against extending the

Bivens remedy. See Abbasi, 582 U.S. at 139-40. This inquiry asks whether “the Judiciary is at

least arguably less equipped than Congress to ‘weigh the costs and benefits of allowing a

damages action to proceed.’” See Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Abbasi,

582 U.S. at 136). If a court concludes that “even a single reason” exists to pause “before

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

counseling hesitation exist and a Bivens remedy does not lie. See Egbert, 596 U.S. at 492

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

Ct. at 743.

The Supreme Court’s decision in Egbert reemphasized that the Court’s continued

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

intentional—recognizing a new Bivens cause of action is “a disfavored judicial activity.” See

Egbert, 596 U.S. at 483, 491 (quoting Abbasi, 582 U.S. at 136; Hernandez, 140 S. Ct. at 742-43).

Egbert clarified that the two-step process laid out in Abbasi “often resolve[s] to a single

question: whether there is any reason to think that Congress might be better equipped to create

a damages remedy.” See Egbert, 596 U.S. at 492. In other words: if there is “any rational reason

(even one) to think that Congress is better suited” to determine the propriety of a cause of

action, then a Bivens action cannot proceed. See Egbert, 596 U.S. at 496. The court must

broadly inquire whether “there is any reason to think that ‘judicial intrusion’ into a given field

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

the plaintiff cannot recover under Bivens. See Egbert, 596 U.S. at 496 (quoting United States v.

Stanley, 483 U.S. 669, 681 (1987)).

The court proceeds with Abbasi’s two-step analysis.

Stanton claims that defendants engaged in the following retaliatory acts for filing a

lawsuit against the Warden—unlawfully placing him in the SHU, using excessive force

against him and improperly placing him in restraints, forcing him to live in improper

conditions of confinement, and sexually harassing and assaulting him. The court construes

these claims as raising independent causes of action under the First, Fifth, and Eighth

Amendments.

There is no question that Stanton’s First, Fifth, and Eighth Amendment claims present

new contexts—they are “different in a meaningful way from previous Bivens cases decided by

[the Supreme] Court.” Abbasi, 582 U.S. at 139. Stanton’s instant claims on their face “bear

little resemblance” to “a claim against FBI agents for handcuffing a man in his own home

without a warrant; a claim against a Congressman for firing his female secretary; and a claim

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

recognized by the Supreme Court. Abbasi, 582 U.S. at 140.

First, the Supreme Court has never recognized a Bivens remedy under the First

Amendment. See Bistrian v. Levy, 912 F.3d 79, 95 (3d Cir. 2018) (citing Reichle v. Howards, 566

U.S. 658, 663 n.4 (2012)). Additionally, the Third Circuit has explicitly held that Bivens does

not extend to a retaliation claim under the First Amendment. See, e.g., Mack v. Yost, 968 F.3d

311, 319-25 (3d Cir. 2020) (declining to extend Bivens to a First Amendment retaliation claim

in the prison workplace assignment context); Bistrian, 912 F.3d at 95-96 (declining to extend

Bivens to a First Amendment retaliation claim in the prison restrictive housing context).

The court next considers Stanton’s Fifth and Eighth Amendment claims. Of the three

cases in which the Supreme Court has recognized Bivens claims, only Davis and Carlson—

involving Fifth and Eighth Amendment claims, respectively—are tenably relevant. In Davis,

the Court concluded that the Fifth Amendment’s Due Process Clause provided a damages

remedy to an administrative assistant claiming that a Congressman had discriminated against

her on the basis of gender. See Davis 442 U.S. at 248-49. In Carlson, a prisoner’s estate filed

suit alleging that prison officials had been fully aware of the prisoner’s serious “chronic

asthmatic condition” as well as the “gross inadequacy” of medical facilities and prison staff.

See Carlson, 446 U.S. at 16 n.1. The estate alleged officials failed to provide the prisoner

“competent medical attention for some eight hours after he had an asthmatic attack,”

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

prisoner’s death. See Carlson, 446 U.S. at 16 n.1.

Stanton’s Fifth Amendment claim for relief regarding his alleged unlawful placement

in the SHU is decidedly different from the gender discrimination claim in Davis. And

Stanton’s excessive force, conditions of confinement, and sexual harassment claims are

markedly different from the Eighth Amendment inadequate medical care claim recognized in

Carlson. See, e.g., Mammana v. Barben, 856 F. App’x 411 (3d Cir. 2021) (not precedential)

(rejecting prisoner’s argument that Carlson gives footing to Eighth Amendment conditions-of-

confinement claim against federal prison officials). While the claims arise under the same

constitutional amendment, the Supreme Court has made clear that a common constitutional

basis is 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”). This case alleges different misconduct than Davis and Carlson, and different legal

standards would apply. Thus, Stanton’s Fifth and Eighth Amendment claims differ

meaningfully from Davis and Carlson.

The court concludes that Stanton’s First, Fifth, and Eighth Amendment claims present

new contexts for purposes of Bivens.

Because the court concludes that Stanton’s claims present new contexts, the court must

turn to the second Abbasi step and determine whether any special factors are present. In this

context, the court asks whether “there are any special factors that counsel hesitation” in

extending Bivens. See Hernandez, 140 S. Ct. at 743 (internal quotation marks and alterations

omitted) (quoting Abbasi, 582 U.S. at 136). Although courts may consider various special

factors, see Bistrian, 912 F.3d at 90 (citing Abbasi, 582 U.S. at 133-45 at 1856-63), two “are

‘particularly weighty’: availability of an alternative remedial structure and separation-of-

powers concerns,” see Mack, 968 F.3d at 320 (quoting Bistrian, 912 F.3d at 90).

In Egbert, the Supreme Court reiterated its prior emphasis on the availability of

alternative remedies, see Egbert, 596 U.S. at 497-98, further extending the Court’s longstanding

view that “when alternative methods of relief are available, a Bivens remedy usually is not,”

see Abbasi, 582 U.S. at 145 (citing Bush v. Lucas, 462 U.S. 367, 386-88 (1983); Schweiker v.

Chilicky, 487 U.S. 412, 425-26 (1988); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 73-74 (2001);

Minneci v. Pollard, 565 U.S. 118, 125-26 (2012)). The BOP has an alternative remedial structure

in place, its administrative remedy program. See Malesko, 534 U.S. at 68 (holding that

“administrative review mechanisms” can provide “meaningful redress”—even if they do not

“fully remedy the constitutional violation”). And Egbert makes clear that the question for this

court is not whether a Bivens damages remedy would be more effective, nor even whether the

existing remedy is sufficient. “So long as Congress or the Executive has created a remedial

process that it finds sufficient to secure an adequate level of deterrence, the courts cannot

second-guess that calibration by superimposing a Bivens remedy.” Egbert, 596 U.S. at 498. The

existence of the BOP’s administrative remedy process “independently foreclose[s]” a Bivens

remedy in this new context. Egbert, 596 U.S. at 497.

Assuming arguendo the BOP’s administrative remedy program does not constitute an

alternative remedy, the court must still consider whether there are other factors—such as

separation-of-powers concerns—that weigh against creating a Bivens remedy to fill the void.

See Wilkie v. Robbins, 551 U.S. 537, 550 (2007). The essential inquiry “is ‘who should decide’

whether to provide for a damages remedy, Congress or the courts?” See Abbasi, 582 U.S. at

135. Thus, any special-factors assessment must seek to discern whether Congress would want

the federal judiciary to impose “a new substantive legal liability” in a particular case. Abbasi,

582 U.S. at 136. In Egbert, the Supreme Court stressed that “even one” reason to believe the

federal legislature is better equipped to provide a damages remedy means a Bivens action

cannot proceed. See Egbert, 596 U.S. at 496. Congress’s silence, particularly when it has

already legislated in a given sphere, can be “telling” in this analysis. See Abbasi, 582 U.S. at

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

remedy against federal jailers” from the PLRA may imply a congressional intent to limit

Carlson’s damages remedy to its context. See Abbasi, 582 U.S. at 149. The Third Circuit Court

of Appeals has disagreed and opined that Congress’s silence in the PLRA does not necessarily

signal legislative intent that “a Bivens cause of action should not exist at all.” See Bistrian, 912

F.3d at 93; see also Mack, 968 F.3d at 323-24 (quoting Bistrian, 912 F.3d at 93). However, the

Third Circuit has also observed, “congressional silence on prison litigation can still counsel

hesitation in some contexts,” particularly when—as here—the alleged mistreatment is

“different . . . than that alleged in [Davis and] Carlson.” Mammana, 856 F. App’x at 415.

The claims before the court warrant hesitation. The Supreme Court has never

extended Bivens to the First, Fifth, and Eighth Amendment claims before the court. Based on

the foregoing, the court concludes, as many courts have concluded,7 that special factors weigh

7See, e.g., Bistrian v. Levy, 912 F.3d 79, 96 (3d Cir. 2018) (rejecting an extension of Bivens

to a federal prisoner’s First Amendment retaliation claim and noting that this conclusion

“aligns with a strong trend in district courts, post-Abbasi, holding that a Bivens retaliation claim

under the First Amendment should not be recognized”); Zavala v. Rios, 721 F. App’x 720,

721-22 (9th Cir. 2018) (not precedential) (declining to extend Bivens to inmates’ Fifth

Amendment due process claims); Louis-El v. Ebbert, 448 F. Supp. 3d 428, 439-41 (M.D. Pa.

2020) (same); Mammana v. Barben, 856 F. App’x 411, 414 (3d Cir. 2021) (not precedential)

(footnote omitted) (plaintiff alleging Eighth Amendment violation for confinement for four

days “in a chilled room with constant lighting, no bedding, and only paper-like clothing” did

not state a Bivens claim, with the Third Circuit noting plaintiff “asks for a new implied cause

of action to sue federal prison officials for unconstitutional conditions of confinement, a step

against extending Bivens to these new contexts. Therefore, assuming, arguendo, that Stanton

properly exhausted his administrative remedies, the court would decline to extend a Bivens

remedy to his First, Fifth, and Eighth Amendment claims and would dismiss these claims.8

5. INSUFFICIENT SERVICE OF PROCESS

Defendants Carvajal, Finley, Murray, Jordan, and Paul, have not been served process.

Pursuant to Federal Rule of Civil Procedure 4(m), a plaintiff has ninety days from the date he

filed his complaint to serve the complaint on the defendants. FED. R. CIV. P. 4(m). Upon a

showing of good cause for the failure to serve, the court must extend the time for service; the

court can, at its discretion, extend the time for service even if plaintiff has not shown good

cause for the delay. FED. R. CIV. P. 4(m). The factors a court should consider in evaluating

whether good cause exists are: (1) the reasonableness of the plaintiff’s efforts to effect service;

(2) prejudice to the defendant because of untimely service; (3) whether the plaintiff has moved

for an enlargement of time; and (4) whether the statute of limitations will bar the plaintiff’s

never taken by the Supreme Court nor any circuit court”); Hill v. Lappin, 561 F.Supp.3d 481,

487 (M.D. Pa. 2021) (noting that “courts began to appreciate Abbasi’s watershed scope, [and]

the better-reasoned authority has declined to recognize a Bivens remedy for Eighth

Amendment conditions-of-confinement and excessive force claims.”); Kalu v. Spaulding, No.

3:19-CV-1621, 2022 WL 4454352, *4 (M.D. Pa. Sept. 23, 2022) (“[a]n alleged sexual assault

is a new context under Bivens.”).

8Because Stanton’s claims are not viable under Bivens, the court declines to address

defendants’ arguments as to personal involvement and qualified immunity. See, e.g., Bistrian,

912 F.3d at 96 n.25 (3d Cir. 2018) (“Because we conclude that [there is] not a recognized

Bivens remedy, we again need not address whether any of the defendants are entitled to

qualified immunity.”).

claims if the action is dismissed. See MCI Telecomms. Corp. v. Teleconcepts, Inc., 71 F.3d 1086,

1097-98 (3d Cir. 1995).

In the present matter, Stanton failed to establish good cause. Stanton’s complaint was

filed on or about May 2, 2022. (Doc. 1). In June of 2002, a summons was issued. (Doc. 7).

On September 21, 2022, the waiver of service of summons mailed to defendants Carvajal,

Finley, Murray, Jordan, and Paul were returned unexecuted. (Doc. 11). The returned waiver

of service of summons forms for defendants Carvajal, Finley, Murray, and Jordan were

marked “no longer employed by Federal Bureau of Prisons.” (Doc. 11, at 1-4). The returned

waiver of service of summons form for defendant Paul was marked “no longer employed in

BOP’s Northeast Region or as NE Regional Director.” (Doc. 11, at 5). Because these

defendants were no longer employed by the BOP, they were not able to be properly served.

The court then notified Stanton that the action against defendants Carvajal, Finley,

Murray, Jordan, and Paul was subject to dismissal and directed him to show cause why the

action against these defendants should not be dismissed pursuant to Rule 4(m). (Doc. 41). In

response, Stanton requested the appointment of counsel to assist in locating defendants’

whereabouts. (Doc. 42). The court conditionally granted Stanton’s request for counsel and

referred the matter to the Federal Bar Association’s Pro Bono Committee for purposes of

obtaining counsel for Stanton. (Doc. 43). The Pro Bono Chair informed the court that a

volunteer attorney was not available to represent Stanton. (Doc. 44). Stanton has made no

further attempts to serve defendants Carvajal, Finley, Murray, Jordan, and Paul, or to obtain

their addresses. And, in general, Stanton’s pro se status is not good cause to excuse his failure

to timely identify and serve this defendant. Veal v. United States, 84 F. App’x 253, 256 (3d Cir.

2004) (not precedential). Accordingly, the court finds that Stanton lacks good cause for his

failure to effectuate service.

If a plaintiff cannot show good cause for his failure to serve a defendant within ninety

days, a district court may either dismiss the defendant, or exercise its discretion to order that

service be made within a specific time. Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305

(3d Cir. 1995); see also FED. R. CIV. P. 4(m). It is Stanton’s responsibility to properly identify

all defendants, and provide accurate mailing addresses for the defendants, in a timely fashion.

(See Doc. 6, at 2, ¶ 3) (advising Stanton that failure to properly name a defendant, or provide

an accurate mailing address for a defendant, may result in dismissal of the claims against that

defendant pursuant to Federal Rule of Civil Procedure 4(m)).

Because Stanton is solely responsible for effecting service upon defendants Carvajal,

Finley, Murray, Jordan, and Paul, and has yet to do so, and in light of the court’s warning of

the possible consequences, including dismissal, the court concludes that dismissal is

appropriate under the present circumstances.

6. LEAVE TO AMEND

Before dismissing a complaint for failure to state a claim upon which relief may be

granted, the court must grant Stanton leave to amend his complaint unless amendment would

be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114 (3d Cir. 2002).

The court finds that amendment would be futile because Stanton cannot remedy the legal,

jurisdictional, and factual defects in the complaint: that Stanton failed to exhaust the available

administrative remedies, that sovereign immunity bars the court’s subject matter jurisdiction

over the defendants in their official capacities, and that Bivens does not extend to the First,

Fifth, and Eighth Amendment claims.

7. CONCLUSION

The court will grant defendants’ motion (Doc. 29) in its entirety. The court will also

dismiss the action against defendants Carvajal, Finley, Murray, Jordan, and Paul for

insufficient service of process pursuant to Federal Rule of Civil Procedure 4(m).

An appropriate Order will follow.

Date: May 1, 2024 BY THE COURT:

s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge