Dudley v. United States of America

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CHANTEL DUDLEY, §

§

Plaintiff, §

V. § Civil Action No. 4:19-cv-317-O

§

UNITED STATES §

OF AMERICA, Et Al., §

§

Defendants. §

OPINION and ORDER RESOLVING MOTIONS TO DISMISS

This case was filed by counsel on behalf of Bureau of Prisons (“BOP”) inmate/Plaintiff Chantel

Dudley asserting claims against former FMC-Carswell Officer Matthew McGaugh, former FMC-

Carswell Warden Jody R. Upton, and the United States of America (“USA”). Complaint 1-2, ECF

No. 1. Now pending are separate dispositive motions filed by each defendant. USA Mot. Dismiss,

ECF No. 15; Upton Mot. Dismiss, ECF No. 16; and McGaugh Request to Dismiss, ECF No. 25. Also

before the Court are Plaintiff’s responsive briefs to each motion, and a reply filed by the USA and by

Upton. Dudley USA Resp., ECF No. 21; Dudley Upton Resp., ECF No. 24; Dudley McHaugh Resp.,

ECF No. 29; USA Reply, ECF No. 26; Upton Reply, ECF No. 27. After considering the relief sought

by Dudley, the record, the briefing and the applicable law, the Court finds that McHaugh’s motion

to dismiss must be DENIED, and the motions to dismiss filed by USA and Upton must be

GRANTED.

I. BACKGROUND

Dudley, a former inmate at FMC-Carswell, was sentenced by the United States District Court

for the Eastern District of Tennessee to a 37 month term-of-imprisonment for conspiracy to distribute

28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). United States

v. Dudley, Judgment, No. 2:16-cr-7-RLJ-MCLC (E.D. Tenn. Aug. 23, 2016), ECF No. 246. In 2016,

Dudley was incarcerated in FMC-Carswell. Complaint ¶ 11.

A. McGaugh sexually assaulted Dudley at FMC-Carswell on November 1, 2016.

McGaugh was Dudley’s case manager in the mental health unit at FMC-Carswell in 2016.

Complaint ¶ 16.1 On November 1, 2016, Dudley had multiple meetings with McGaugh in his office.

During these meetings, McGaugh coerced Dudley into performing certain sexual acts, as detailed in

the Complaint. Id. ¶¶ 19-37. After these multiple coerced sexual encounters occurred on November

1, McGaugh forced Dudley to meet him late that same night in a room on the hospital floor of FMC-

Carswell. Id. ¶ 39. McGaugh proceeded to sexually assault Dudley again. Id. ¶¶ 40-45.

The next day, Dudley told her psychologist at FMC-Carswell that she wanted to be transferred

to another prison because she had been assaulted by a case manager. Complaint ¶¶ 46-50. Dudley

alleges that while she did not want to divulge the name of her attacker, Lieutenant Sosa, an FMC-

Carswell employee, asked if she was referring to McGaugh. Id. ¶¶51-55. Dudley alleges that Sosa

was able to identify McGaugh as her attacker because FMC-Carswell had experienced previous

problems with McGaugh. Id. ¶¶ 55-56.

B. The United States investigated and prosecuted McGaugh for sexual assault.

After Dudley identified McGaugh as her attacker, the BOP investigated her allegations and

identified McGaugh’s DNA on Dudley’s person. Complaint ¶ 62. When McGaugh was confronted,

he admitted his guilt and, eventually, pled guilty to sexual abuse with a ward in violation of 18 U.S.C.

§ 2243(b). See United States v. McGaugh, 4:17-cr-105-O (N.D. Tex. Nov. 14, 2017 ). In that

criminal case, this Court sentenced McGaugh to 12 months in prison. J. United States v. McGaugh,

No. 4:17-cr-105-O, ECF No. 33.

C. The United States transferred Dudley to a new BOP facility.

1Unless otherwise indicated, these facts are taken from those alleged in the complaint.

- 2 -

Dudley alleges that after she identified McGaugh as her abuser, she was harassed by FMC-

Carswell staff and other prisoners. Complaint ¶¶ 70-71. In particular, Dudley claims that correctional

officers and inmates (though not Upton): destroyed her property, spilled ink pens on her, poured out

her laundry soap, took her food, and verbally abused her (by calling her, inter alia, a snitch, a liar,

and a whore). Id. ¶¶ 71-77. Dudley asserts that she reported this harassment to Upton, and asked to

be transferred to another prison. Id. ¶¶ 78-79. Dudley further claims that Upton refused to take action,

though Dudley also acknowledges that she was transferred out of FMC-Carswell within four months

of her assault (i.e., in or around February 2017). Id. ¶¶ 80-82.

D. Dudley’s Claims

Dudley lists five causes of action in her complaint. Complaint 14-24, ECF No.1 First she

alleges claims under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971) against Defendant McGaugh for excessive force in violation of the Fourth

Amendment, and for cruel and unusual punishment under the Eighth Amendment. Id. at 14-16. Next

she alleges a Bivens claim against Upton for deliberate indifference to her health and safety under the

Eighth Amendment. Id. at 18-19. She further alleges claims against the USA under the Federal Tort

Claims Act (“FTCA”) for battery based upon the actions of McGaugh, and for negligence in the hiring,

training, retention, and supervision of McGaugh. Id. at 20-24.

II. DEFENDANT McGAUGH’S REQUEST/ MOTION TO DISMISS

A. Construction of McGaugh’s Motion under Rule 12(b)(2)

Individual Defendant Matthew McGaugh, proceeding pro se, filed a document he entitled

“Request/Motion to Dismiss” in which he wrote the following:

I, the Defendant, Matthew Corby McGaugh, request this Dismissal due to Lack of

Jurisdiction. The Defendant has residence outside the jurisdiction of the Northern

District of Texas, at 6523 Dalton Road, Hensley, Arkansas 72065. Secondly, I am

- 3 -

currently on Probation under the Federal United States Probation Office in the Eastern

District of Arkansas.

McGaugh Request Dismiss 1, ECF No. 25. McGaugh did not further provide any authority or basis

for this motion. Plaintiff Dudley interprets McGaugh’s motion as a challenge to personal jurisdiction,

and thus responded to the motion as if McGaugh raised lack of personal jurisdiction under Federal

Rule of Civil Procedure 12(b)(2). Resp. Brief 4-9, ECF No. 29. McGaugh did not file a reply.

B. Application and Analysis under Rule 12(b)(2)

A motion to dismiss for lack of personal jurisdiction permits a nonresident defendant to

challenge the court’s jurisdiction over the defendant’s person or property. Fed R. Civ. P. 12(b)(2).

The Due Process Clause of the Fourteenth Amendment protects an individual's liberty interest in not

being subject to the binding judgments of a forum with which he has established no meaningful

“contacts, ties, or relations.” Int'l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945).

Exercising personal jurisdiction over a nonresident defendant is consistent with constitutional

due process when “(1) that defendant has purposefully availed himself of the benefits and protections

of the forum state by establishing ‘minimum contacts' with the forum state; and (2) the exercise of

jurisdiction over that defendant does not offend ‘traditional notions of fair play and substantial justice.’

” Cent. Freight Lines Inc. v. APA Transp. Corp., 322 F.3d 376, 380–81 (5th Cir. 2003). (quoting

Mink v. AAAA Development LLC, 190 F.3d 333, 336 (5th Cir.1999) (quoting International Shoe Co.

at 316)). Minimum contacts can be established either through contacts sufficient to assert specific

jurisdiction, or contacts sufficient to assert general jurisdiction. Id. at 381.

This Court has personal jurisdiction over McGaugh. The fact that McGaugh now lives in

Arkansas does not divest this Court of jurisdiction. McGaugh purposefully availed himself of the

benefits and protections of the state of Texas when he lived in Texas and worked in Texas. McGaugh

was a case manager in the mental health unit at FMC-Carswell and was Dudley’s case manager.

Complaint 4 ¶16, ECF No. 1. FMC-Carswell is located in Fort Worth, Texas and is within this the

Northern District of Texas. Id. at 1. In his capacity as Dudley’s case manager at FMC-Carswell,

McGaugh took the actions against her in Fort Worth, Texas. And, McGuagh was then convicted of

sexual abuse of a ward in violation of 18 U.S.C. § 2243(b) in the Northern District of Texas, Fort

Worth division. Id. at 10. Thus, the exercise of jurisdiction over McGaugh does not offend traditional

notions of fair play and substantial justice. Cent. Freight Lines Inc. at 380-81. Furthermore, the fact

that McGaugh is on federal probation in Arkansas does not relieve him of potential civil liability for

the conduct engaged in while in Fort Worth, Texas.

For all of these reasons, the Court finds that it has personal jurisdiction over McGaugh such

that his motion to dismiss, construed as filed under Rule 12(b)(2), must be denied. The Court notes

that under Rule 12(a)(4), the filing of a motion under [Rule12] alters the time for a defendant to serve

a responsive pleading such that “if the court denies the motion . . . the responsive pleading must be

served within 14 days after notice of the Court’s action.” Fed. R. Civ. P. 12(a)(4)(A). As the Court

has denied McGaugh’s Rule 12(b) motion, he will now be directed to file a responsive pleading within

14 days after his receipt of this order.

III. DEFENDANT UPTON’S MOTION TO DISMISS

Former Warden Jody Upton moves to dismiss Plaintiff Dudley’s claims for relief on the basis

that: (1) Dudley cannot establish that a Bivens remedy is available for her claim under the Eighth

Amendment; and, (2) even if such a claim is available, Dudley fails to state a claim of a violation of

a constitutional right that was clearly established at the time, such that he is entitled to qualified

immunity. Dudley listed her claims against Upton in both his individual and official capacities.

Complaint 1,3; ECF No. 1. To the extent Dudley asserts claims under any federal statute or the

Constitution against Upton in his official capacity, those claims are actually claims against the United

States. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (explaining that suits against officers

in their official capacities are suits against the entity of which the officer is an employee or agent). Any

such claims are considered and rejected in the Court’s consideration of the USA’s motion to dismiss,

infra. Furthermore, to the extent Dudley asserts claims under Bivens against Upton in an official

capacity, those claims must be dismissed because “the FTCA does not waive federal sovereign

immunity for constitutional torts.” Patty v. United States, H-013-3173, 29015 WL 1893584, at *6

(S.D. Tex. Apr. 27, 2015) (citing Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 71-72 (2001));

see also FDIC v. Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States simply has not rendered

itself liable . . . for constitutional tort claims.”).

A. Rule 12(b)(6) Standard

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)

is generally viewed with disfavor. Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir.1997).

The court must accept all well-pleaded facts in the complaint as true and view them in the light most

favorable to the plaintiff. Bustos v. Martini Club Inc, 599 F.3d 458, 461 (5th Cir. 2010) (citing True

v. Robles, 571 F.3d 412, 417 (5th Cir. 2009)). Rule 12 must be interpreted in conjunction with Rule

8(a), which sets forth the requirements for pleading a claim for relief in federal court and calls for “a

short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

8(a)(2). The Court cannot look beyond the face of the pleadings in resolving a Rule 12(b)(6) motion.

Doe ex rel. Magee v. Covington Cnty, Sch. Dist., 649 F.3d 335, 341 (5th Cir. 2011) (explaining that

“[w]e examine only the allegations within the four corners of the complaint”), aff’d on rehearing en

banc, 675 F.3d 849 (5th Cir. 2012). A plaintiff, however, must plead specific facts, not mere

conclusory allegations, to avoid dismissal. See Schultea v. Wood, 47 F.3d 1427, 1431 (5th Cir. 1995)

(en banc); see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (“[C]onclusory

allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a

motion to dismiss”) (citation omitted)). Rule of Civil Procedure 8 “demands more than an unadorned,

the-defendant-unlawfully-harmed-me-accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

As the United States Supreme Court explained in Bell Atlantic Corp. v. Twombly, the plaintiff

must plead “enough facts to state a claim to relief that is plausible on its face” and his “factual

allegations must be enough to raise a right to relief above the speculative level, on the assumption that

all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. 544, 555

(2007) (abrogating Conley v. Gibson, 355 U.S. 41, 45-46 (1957), to the extent the Court concluded

therein that a plaintiff can survive a motion to dismiss “unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claims which would entitle him to relief”). Then, in Ashcroft

v. Iqbal, the Supreme Court clarified that review of a 12(b)(6) motion is guided by two principles:

(1) a court must apply the presumption of truthfulness only to factual matters and not to legal

conclusions; and (2) only a complaint that states a plausible claim for relief survives a motion to

dismiss. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,

556 U.S. at 678-680. If the pleadings fail to meet the requirements of Iqbal and Twombly no viable

claim is stated and the pleadings are subject to dismissal.

B. Analysis – Whether Bivens Extends to Dudley’s Constitutional Claim Against

Upton

1. Introduction

In Bivens, the United States Supreme Court for the first time “recognized ‘an implied private

action for damages against federal officers alleged to have violated a citizen’s constitutional rights,’”

specifically, under the Fourth Amendment. Butts v. Martin, 877 F.3d 571, 587 (5th Cir. 2017) (quoting

Malesko, 534 U.S. at 66). In subsequent decisions the Supreme Court decided only two other cases

in which it recognized an implied cause of action outside of the Fourth Amendment context: Davis

v. Passman, 442 U.S. 228 (1979) (holding the “Fifth Amendment Due Process Clause gave [the

petitioner] a damages remedy for gender discrimination”) and Carlson v. Green, 446 U.S. 14 (1980)

(holding that the “Eighth Amendment Cruel and Unusual Punishments Clause gave [a prisoner’s

estate] a damages remedy for failure to provide adequate medical treatment”). See Ziglar v. Abbasi,

137 S.Ct. 1843, 1854-55 (2017). In Abbasi, the Supreme Court noted that those “three cases—Bivens,

Davis, and Carlson—represent the only instances in which the Court has approved of an implied

damages remedy under the Constitution itself.” Id. at 1855. And the Court explained it had “notabl[y]

change[d] . . . [its] approach to recognizing implied causes of action . . . ma[king] clear that expanding

the Bivens remedy is now a ‘disfavored’ judicial activity.” Id. at 1857 (citing Iqbal, 556 U.S. at 675).

In order to determine whether a Bivens remedy is available to Dudley on her constitutional

claim against Upton, this Court “must first assess whether [her] claim[s] present a new Bivens

context.” Butts, 877 F.3d at 587 (citing Ashcroft v. Iqbal, 556 at 675). “If so, there are two

circumstances where Bivens does not recognize an implied cause of action for constitutional violations.

First, Bivens claims are unavailable ‘if there are special factors counseling hesitation in the absence

of affirmative action by Congress.’” Butts, 877 F.3d at 587 (quoting Abbasi, 137 S.Ct. at 1857

(internal citation omitted). “Second, Bivens remedies may be foreclosed by congressional action where

an ‘alternative, existing process for protecting the interest amounts to a convincing reason for the

Judicial Branch to refrain from providing a new and freestanding remedy in damages.’” Butts, 877

F.3d at 587 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

2. Whether Dudley’s Claim Against Upton Presents a New Bivens Context

In Abassi, after discussing the only three cases where the Supreme Court had previously

approved of an implied damages remedy—Bivens, Davis, and Carlson—the Court explained “[i]f the

case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court, then

the context is new” and courts should be cautious of recognizing any implied Bivens remedy. Abbasi,

137 S.Ct. at 1859. Dudley’s claim against Upton is an assertion that he was deliberately indifferent

to her health and safety under the Eighth Amendment for failing to protect her from verbal and

psychological abuse, threats, and harassment she sustained from both officers and her fellow inmates

after McGaugh’s sexual abuse of her was disclosed. Complaint 11 ¶ 70, 18-19 ¶¶ 120-130, ECF No.

1.2 Dudley’s Eighth Amendment claim against Upton is distinguishable from the three prior Supreme

Court cases where a Bivens remedy has been recognized , and appears to present a new Bivens

context.

The Court reaches this determination for several reasons. First, in Abbasi itself, the underlying

claim was against a warden for failing to stop prison staff from abusing a pretrial detainee, a claim

similar to that before the Court. The Supreme Court explained that a Bivens claim could not simply

be assumed to exist in the new context. Abassi, 137 S.Ct. at 1864-65. Furthermore, the only case of

the three where the Supreme Court recognized a Bivens remedy that had anything to do with the rights

of an inmate was Carlson v. Green, involving an alleged failure to provide medical treatment for an

inmate with a “serious[]” and “Chronic Asthmatic Condition” known to prison officials. Carlson, 446

U.S. at 16 n.1. Dudley argues in her response that Carlson stands for the proposition that all potential

Eighth Amendment violations are actionable as direct implied damages claims under the Constitution.

Upton Resp. 9-13, ECF No. 24. But Dudley’s interpretation of Carlson is foreclosed by Abassi, as

the Court there confined Carlson to its facts. Relying in part on its holding in Correctional Services

Corp. v. Malesko, 534 U.S. 61 (2001), the Abassi Court held that Carlson had only recognized an

2Although Upton refers to a “possible” claim against Upton for failing to protect her from the

underlying sexual assault, the Court does not so interpret Dudley’s complaint. In this regard, the section of the

complaint listing the actions of Upton begins with the phrase “After Ms. Dudley disclosed the sexual abuse by

her Case Manager, she was harassed by staff and other inmates.” Complaint 11 ¶ 70, ECF No. 1. And in the

listing of the Eighth Amendment cause of action section against Upton, the allegations are all related to Upton’s

failure to protect her from the abuse and harassment she received after “nurses in Plaintiff’s housing unit made

the situation known to other inmates and to officers in FMC Carswell.” Complaint 18 ¶ 123, ECF No. 1. Thus,

the Eighth Amendment claim Dudley pleads against Upton is defined by the complaint to relate only to

allegations of Upton’s failure to protect her from alleged harm suffered after the McGaugh sexual abuse was

revealed.

implied damages remedy under the Eighth Amendment for “failure to provide medical treatment.”

Abassi, 137 S.Ct. at 1859, 1865. And the Court noted that the standard applicable “for a claim that

a warden allowed guards to abuse pre-trial detainees is less clear [than the deliberate indifference to

serious medical needs standard] under the Court’s precedents.” Id. at 1865. Indeed, Abbasi recognized

that while the “differences between this claim and the one in Carlson are perhaps small,” given the

Court’s “expressed caution about extending the Bivens remedy . . . the new-context inquiry is easily

satisfied.” Id. at 1865.

Moreover, other recent cases in which inmates have asserted Eight Amendment claims against

an individual federal official under a failure to protect from harm theory of recovery have been found

to raise a new context. In this regard, the Court finds instructive the recent analysis of the similar

claim of whether a Bivens claim for a BOP official’s failure to protect an inmate from injury after being

called a snitch is a new context:

Plaintiff asserts that, since Defendant Preston offered to pay inmates to harm Plaintiff

and labeled Plaintiff a snitch in front of other inmates, Defendant Preston was

deliberately indifferent to a substantial risk of serious harm to Plaintiff’s health and

safety in violation of Plaintiff’s Eighth Amendment rights. Initially, Plaintiff’s apparent

argument that the Supreme Court implied a Bivens damages remedy for an Eighth

Amendment failure to protect claim in Farmer is unavailing because the Supreme

Court in Ziglar clearly stated that “Bivens, Davis, and Carlson ... represent the only

instances in which the Court has approved of an implied damages remedy under the

Constitution itself.” Ziglar, 137 S. Ct. at 1855 (italics added). Therefore, the Supreme

Court has approved of only one Bivens damages remedy under the Eighth Amendment

– specifically for failure to provide medical care. Carlson, 446 U.S. at 16 n.1, 18-23.

In this case, Plaintiff’s Eighth Amendment claim differs meaningfully from the Eighth

Amendment claim in Carlson because Plaintiff’s claim arises out of allegations that

a correctional officer offered to pay inmates to harm Plaintiff and labeled Plaintiff a

snitch in front of other inmates, not failure to provide medical care. Therefore,

Plaintiff’s Eighth Amendment failure to protect claim accordingly arises in a new

Bivens context.

Hoffman v. Preston, No.1:16-cv-01617-LJO-SAB (PC), 2019 WL 5188927, at *5 (E.D. Cal. Oct.

15, 2019), R and R adopted, 2020 WL 58029 (E.D. Cal. Jan. 6, 2020). And, that same district court

recently rejected the claim that a federal official should be liable for failing to protect an inmate from

assault by another inmate:

Here, Plaintiff brings a case under the Eighth Amendment for Defendants’ failure to

protect him from injury by his cellmate. The context of Plaintiff’s failure-to-protect

claims are unlike those in the three cases where the Supreme Court implied a damages

remedy under the Constitution. Abassi, 137 S.Ct. at 1854-55 (citing Bivens, 403 U.S.

at 388; Carlson, 446 U.S. 14; and Davis, 442 U.S. 228). Plaintiff’s argument that the

Supreme Court implied a damages remedy for failure to protect an inmate in Farmer

is unavailing because Abassi determined that “three cases -- Bivens, Davis, and Carlson

-- represent the only instance in which the Court has approved of an implied damages

remedy under the Constitution itself.” (emphasis added.) Abassi, 137 S. Ct. at 1855.

The Supreme Court permitted only one “Bivens claim for prisoner mistreatment --

specifically for failure to provide medical care.” Id. at 1864.Taking into account the

Supreme Court’s admonition that extending Bivens is now a “disfavored” judicial

activity, the court concludes that Plaintiff’s case is different in a meaningful way from

previous Bivens cases decided by the [Supreme] Court.” Id. at 1857. Although

Plaintiff’s Eighth Amendment claim is similar to Carlson in that it also involves an

Eighth Amendment claim for deliberate indifference, Plaintiff’s claim does not involve

medical care; it accordingly arises in a new context and necessitates consideration of

whether there are “special factors” that would imply a new Bivens remedy in a new

context.

Carraway v. Ciufo, No.1:17-cv-0533-DAD-GSA-PC, 2019 WL 3546429, at *4 (E.D. Cal. Aug, 5,

2019). Applying the analysis of these cases reviewing whether very similar Eight Amendment claims

present a new Bivens context, the Court finds that Dudley’s claims against Upton under the Eighth

amendment for failing to protect her from abuse, threats, and harassment from both officers and

inmates, presents a new Bivens context. Thus, the Court must turn to the analysis of whether any

“special factors”counsel hesitation in recognizing a new judicial remedy, and whether alternative

processes protect Dudley’s interests.

3. Overview of Special Factors to Consider

When a purported Bivens claim is asserted in a new context, Abbasi requires consideration

of whether “special factors” counsel against inferring such a cause of action in the absence of

“affirmative action by Congress” to create one. Abbasi, 137 S. Ct. at 1857. As clarified by Abbasi,

this “inquiry must concentrate on whether the Judiciary is well suited, absent congressional action or

instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.”

Id. at 1857–58. A Bivens remedy should not be inferred if “there are sound reasons to think Congress

might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law

and correcting a wrong.” Id. at 1858 (emphasis added). Relatedly, “if there is an alternative remedial

structure present in a certain case,” the existence of that existing process “alone may limit the power

of the Judiciary to infer a new Bivens cause of action.” Id.

4. Special Factors counsel against Bivens expansion.

One of the most significant special factors, emphasized repeatedly in Abbasi, are

separation-of-powers principles. See Abbasi, 137 S. Ct. at 1857 (“When a party seeks to assert an

implied cause of action under the Constitution itself, . . . separation-of-powers principles are or should

be central to the analysis”). Abbasi recognized that Congress’s failure to provide a damages remedy

is both “relevant” and “telling” when it has regulated extensively in a specific arena and made specific

policy choices as to how complaints should be resolved. Id. at 1862. Here, Congress has legislated

extensively with respect to prisoners’ rights, and “legislative action suggesting that Congress does

not want a damages remedy is itself a factor counseling hesitation.” Id. at 1865. “Some 15 years after

Carlson was decided, Congress passed the Prison Litigation Reform Act of 1995 (“PLRA”), which

made comprehensive changes to the way prisoner abuse claims must be brought in federal court.” Id.

(citing 42 U.S.C. § 1997e). “So it seems clear that Congress had specific occasion to consider the

matter of prisoner abuse and to consider the proper way to remedy those wrongs.” Id. Abbasi makes

clear that Congress could have extended the Carlson damages remedy to cases involving other types

of prisoner mistreatment, but chose not to. Id.

Similarly, Congress specifically addressed the issue of sexual assaults in prison when it passed

the Prison Rape Elimination Act in 2003. See 34 U.S.C. §§ 34301 et seq. Although the Prison Rape

Elimination Act (“PREA”) “was drafted to address the problem of rape in prison, authorize grant

money, and create a commission to study the issue; it does not give prisoners any specific rights.”

Johnson v. Rupert, No.6:11-cv-446, 2014 WL 6969202, at *5 (E.D. Tex. Dec. 9, 2014) (citing

Chinnici v. Edwards, No.1:07-cv-229, 2008 WL 3851294 at *3 (D. Vt. Aug. 13, 2008)). The Fifth

Circuit has also rejected a claim that the PREA creates a private right of action. Krieg v. Steele, 599

F. App’x 231, 232-33 (5th Cir. 2015) (“Insofar as Krieg argues that his rights under the [PREA] were

violated , other courts addressing this issue have found that the PREA does not extablsih a private

cause of action for allegations of prison rape”) (citations omitted). Thus, again Congress had the

opportunity to create a privately-enforceable damages remedy against federal officials for claims

relating to prison rape, but declined to do so. This Congressional inaction further counsels against

judicial creation of such a remedy that the legislature has not seen fit to create.

Additional special factors that weigh against extending Bivens to the type of Eighth

Amendment claim asserted by Dudley are the system-wide costs associated with the creation of a

damages remedy absent congressional action. As Abbasi instructs, “the decision to recognize a

damages remedy requires an assessment of its impact on governmental operations systemwide.”

Abbasi, 137 S. Ct. at 1858. This includes “the burdens on Government employees who are sued

personally, as well as the projected costs and consequences to the Government itself . . . .” Id. In the

prison context, these burdens and costs are particularly high due, in part, to the sheer volume of

potential litigation arising from the creation of a Bivens remedy––there are more than 174,000 federal

inmates and over 36,000 BOP employees. See Federal Bureau of Prisons, About Our Agency,

https://www.bop.gov/about/agency/ (last visited Jan. 31, 2020).

Yet another special factor counseling hesitation here is the difficulty in creating a workable

cause of action. See Abbasi, 137 S. Ct. at 1864–65 (discussing the lack of clarity as to the legal

standard for a purported Bivens claim alleging a warden allowed staff to abuse a pretrial detainee);

Vanderklok v. United States, 868 F.3d 189, 209 (3d Cir. 2017) (recognizing the “inherent uncertainty

surrounding” the applicable legal standard as “a factor counseling hesitation” in expanding Bivens).

Congress and the Supreme Court have repeatedly deferred to the Attorney General and prison

administrators’ expertise because “the problems that arise in the day-to-day operation of a corrections

facility are not susceptible of easy solutions.” Bell v. Wolfish, 441 U.S. 520, 547 (1979). Here,

Dudley’s claim relates to Upton’s management of prison staff and questions of whether and when to

transfer a prisoner to another BOP facility. These are matters of prison administration not subject

to any clear legal standard so as to make a Bivens claim viable. Moreover, by not legislating a

Bivens-type remedy in this area despite ample opportunity to do so, it is evident that Congress does

not intend for such a remedy to be created.

5. Alternative remedial processes available to Dudley.

One key consideration against implying a Bivens remedy in a new context is the availability

of alternative processes to address the allegedly improper actions of Upton. For example, prisoners

like Dudley can seek “an injunction requiring the warden to bring his prison into compliance” or can

seek “some other form of equitable relief.” Abbasi, 137 S. Ct. at 1865. And this “existence of

alternative remedies usually precludes a court from authorizing a Bivens action.” Id. Here, in fact,

Dudley has already pursued other alternative remedies, including her claims in this suit brought against

McGaugh and against the United States under the FTCA.3

The Federal Bureau of Prisons’ Administrative Remedy Program is another alternative process

available to prisoners like Dudley. Under this program, prisoners can file grievances about any aspect

3The fact that the Court determines later in this opinion that jurisdiction is lacking for Dudley’s FTCA

claim for different reasons, does not change this analysis, as the focus is on the availability of an alternative

remedy and not ultimate success. See generally Andrews v. Miner, 301 F. Supp. 3d 1128, 1134 (N.D. Ala.

2017) (rejecting expansion of Bivens into a new context after noting that the prisoner was able to pursue

administrative remedies, “albeit unsuccessfully”).

of their confinement, the agency must provide written responses in specified time frames, and prisoners

may appeal institution-level responses to the agency’s regional and central offices. See 28 C.F.R. §§

542.10–19 (2017). Numerous courts post-Abbasi have recognized that the Administrative Remedy

Program is an alternative process and a special factor that forecloses expansion of the Bivens remedy.

See, e.g., Begay v. Leap, No. 3:17-cv- 2639-N-BT, 2019 WL 1318410, at *3 (N.D. Tex. Feb. 6,

2019), R and R adopted, 2019 WL 1315901 (N.D. Tex. Mar. 22, 2019) (“[S]everal courts have

explicitly recognized the administrative remedy program (‘ARP’) available in the prison setting as an

alternative process foreclosing a personal-capacity damages remedy”) (quoting Brunson v. Nichols,

2018 WL 7286410, at *3 (W.D. La. Dec. 7, 2018), R and R adopted, 2019 WL 545479 (W.D. La.

Feb. 11, 2019)); Vega v. United States, 881 F.3d 1146, 1154 (9th Cir. 2018); Muhammad v. Gehrke,

No. 2:15-cv-334, 2018 WL 1334936, at *4 (S.D. Ind. Mar. 15, 2018).

6. Summary

Because Dudley’s complaint against Jody Upton seeks monetary damages relief for violation

of her Eighth Amendment rights under Bivens, and review of the law and underlying record confirms

that no Bivens remedy is available for her particular Eighth Amendment claim, Defendant Upton’s

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must be granted and Dudley’s claims

against Upton must be dismissed.4

IV. MOTION TO DISMISS OF USA UNDER RULE 12(b)(1)

A. Overview

4In Upton’s motion to dismiss under Rule 12(b)(6), he also argues that he is entitled to qualified

immunity. Mot. Dismiss 20–30, ECF No. 16. Because the Court has determined that plaintiff Dudley lacks

a cause of action under Bivens, the Court need not address the qualified immunity issue. See generally Maria

S. As Next Friend for E.H.F. v. Garza, 912 F.3d 778, 783 (5th Cir. 2019) (“The district court granted

summary judgment on the issue of qualified immunity, but the defendants prevail on an alternative basis: the

plaintiffs lack an implied cause of action under Bivens”). Furthermore, and alternatively, Defendant Upton is

entitled to qualified immunity for the reasons stated in Upton’s motion to dismiss, at section IV(B) (2)(a)-(b).

The USA filed a motion to dismiss all claims under Federal Rule of Civil Procedure 12(b)(1),

contending that each of Dudley’s claims against the USA under the FTCA are barred by sovereign

immunity for different reasons. The parties agree that Dudley’s claims against the USA include claims

of battery based on upon the conduct of McGaugh, and claims of negligence on several different

theories, including negligent hiring, negligent training, negligent retention, and negligent supervision.

Complaint 20, 22-24, ECF No.1; USA Mot. Dismiss 9, ECF No. 15. In response to the arguments

presented in the motion to dismiss, Dudley has conceded that this Court does not have jurisdiction

under the FTCA for her claims of battery, negligent hiring, and negligent training. Dudley Resp. 11,

ECF 22. Thus, those claims will be dismissed for the reasons stated in the USA’s motion, and the

balance of this section will focus on whether Dudley may proceed with her claims of negligent

retention and negligent supervision.

B. Rule 12(B)(1) Standard of Review

Federal Rule of Civil Procedure 12(b)(1) requires dismissal when a federal district court does

not have the right to exercise its limited jurisdiction over the subject matter presented in the complaint.

“Federal courts must resolve questions of jurisdiction before proceeding to the merits.” Ashford v.

United States, 463 F. App’x 387, 391-92 (5th Cir. 2012) (citing Steel Co. V. Citizens for a Better

Env’t, 523 U.S. 83, 101 (1998), USPPS, Ltd. V. Avery Dennnison Corp., 647 F.3d 274, 283 & n.6

(5th Cir. 2011), and Jasper v. FEMA, 414 F. App’x 649, 651 (5th Cir. 2011)). “It is incumbent on

all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking.

This is the first principle of federal jurisdiction.” Stockman v. FEC, 138 F.3d 144, 151 (5th Cir. 1998)

(quotation and citation omitted). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on

the party asserting jurisdiction. Accordingly, the plaintiff constantly bears the burden of proof that

jurisdiction does in fact exist.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)(citations

omitted).

The Court may consider matters outside the pleadings and attachments thereto in resolving

a motion for lack of subject-matter jurisdiction under Rule 12(b)(1). See Vinzant v. United States,

No. 2:06-cv-10561, 2010 WL 1857277, at *3 (E.D. La. May 7, 2010) (FTCA case) (citing Ambraco,

Inc. v. Bossclip B.V., 570 F.3d 233, 237-38 (5th Cir. 2009)); see also See Allen v. Schafer, No. 4:08-

cv-120-SA-DAS, 2009 WL 2245220, at *2 (N.D. Miss. July 27, 2009) (“It is well settled that on a

12(b)(1) motion the court may go outside the pleadings and consider additional facts, whether

contested or not and may even resolve issues of contested facts”)(citing Clark v. Tarrant County, 798

F.2d 736, 741 (5th Cir. 1986)). Specifically, “a court may evaluate (1) the complaint alone, (2) the

complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts.” Den Norske Stats

Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001)(citations omitted). In this case,

Dudley provided a copy of the Standard Form 95 Claim for Damages Injury or Death completed on

her behalf on September 19, 2018. Attachment to Complaint, ECF No. 1-1. The Court has considered

that document along with the complaint.

C. Lack of Proper Exhaustion of Claims of Negligent Retention/Supervision

The FTCA provides that the jurisdiction authorized under 28 U.S.C. § 1346(b) for civil actions

for loss of property, personal injury, or death caused by the negligent or wrongful act or omission of

any employee of the government while acting within the scope of his employment, is an exclusive

remedy against the United States. 28 U.S.C.A. § 1346(b)(West 2019); 28 U.S.C.A. § 2679(b)(1)

(West 2006). The United States is immune from suit unless it consents to be sued, and the terms of

such consent, or waiver of its sovereign immunity, “define [the] Court’s jurisdiction to entertain the

suit.” United States v. Testan, 424 U.S. 392, 399 (1976). The Supreme Court has recognized that

“limitations and conditions upon which the Government consents to be sued must be strictly observed

and exceptions thereto are not to be implied.”Lehman v. Nakshian, 453 U.S. 156, 161 (1981)(citations

omitted). The requirement of exhaustion of administrative review “is a jurisdictional requisite to the

filing of an action under the FTCA” and cannot be waived. Gregory v. Mitchell, 634 F.2d 199, 203-04

(5th Cir. 1981)(citations omitted).

This Court’s subject-matter jurisdiction over an action against the United States under the

FTCA is thus expressly conditioned upon compliance with the language of 28 U.S.C. § 2675(a), which

requires that a claimant “shall have first presented the claim to the appropriate federal agency,” and

either obtain a written denial of the claim or wait six months after its filing at the appropriate agency

to deem the agency decision as a final denial. See 28 U.S.C.A. § 2675(a)(West 2006). Since

presentment of the administrative claim is jurisdictional, it must be pleaded and proven by the FTCA

claimant. Barber v. United States, 642 F. App’x 411, 413 (5th Cir. 2016). “Even though the

requirements of § 2675 are minimal, an FTCA claimant must nonetheless provide facts sufficient to

allow his claim to be investigated and must do so in a timely manner.” Cook v. United States on behalf

of U.S. Dep’t of Labor, 978 F.2d 164, 166 (5th Cir. 1992).

The Supreme Court recognized that strict compliance with the administrative exhaustion

procedures outlined in the FTCA is required of a plaintiff who institutes an action against the United

States. See McNeil v. United States, 508 U.S. 106, 112 (1993) (holding that failure to completely

exhaust administrative remedies prior to filing an FTCA claim is a jurisdictional defect that cannot

be cured by administrative exhaustion after suit is filed). The purpose of the FTCA’s administrative-

presentment requirement is to allow the federal agency promptly to investigate and, if appropriate,

settle claims without having to resort to federal courts. Pleasant v. United States ex rel. Overton

Brooks Veterans Admin. Hosp., 764 F.3d 445, 448 (5th Cir. 2014). “Further, because presentment

is a condition upon which the government consent to be sued under the FTCA’s waiver of sovereign

immunity, it must be strictly construed in favor of the United States.” Barber, 642 F. App’x 413-14

(citation omitted).

As analyzed below, Fifth Circuit cases require FTCA litigants to apprise the government of

sufficient facts to put it on notice of actual or potential claims. Because Dudley’s administrative tort

claim (ECF No.1-1) did not include facts that even allude to her negligence claims, she failed to

administratively exhaust such claims, and thus failed to establish jurisdiction for such claims.

In Rise v. United States, the Fifth Circuit held that an FTCA action can only be “based on

particular facts and theories of liability” that “can be considered part of the plaintiff’s administrative

claim.” 630 F.2d 1068, 1071 (5th Cir. 1980). The Rise court held that a litigant needs to bring “to

the Government’s attention facts sufficient to enable it [to] thoroughly investigate its potential liability

and to conduct settlement negotiations with the claimant.” Id. Though “minimal, an FTCA claimant

must nonetheless provide facts sufficient to allow his claim to be investigated and must do so in a

timely manner.” Cook v. United States, 978 F.2d, 164, 166 (5th Cir. 1992) (dismissing FTCA claim

for lack of jurisdiction because the plaintiff’s administrative tort claim was not “sufficiently specific”).

In Portillo v. United States, 29 F.3d 624, 1994 WL 395174, (5th Cir. 1994) the Fifth Circuit

considered whether an administrative tort claim relating to the government’s allegedly negligent

monitoring of a plaintiff’s ankle surgery should have put the government on notice to any and all

potential problems with the surgery. There, the plaintiff argued that the district court erred by

dismissing his claim for negligent administration of spinal anesthesia. 1994 WL 395174 at *1. Relying

on Cook, the Fifth Circuit affirmed dismissal of the anesthesia claim because the plaintiff’s

administrative claim did not even allude to the administration of anesthesia. Id. at *4. Following the

Fifth Circuit’s lead, several courts in this circuit have dismissed negligence claims related to substantive

tort claims due to a plaintiff’s failure to provide the government with sufficient facts to put the

government on notice of the alleged negligence. See, e.g., Champion v. United States, No. CV-08-

1514-A, 2009 WL 3677829, at *5 (W.D. La. Sept. 11, 2009) (dismissing retaliation claim related to

the assault of an inmate because he “did not present facts from which a retaliation claim could be

inferred”) R and R adopted, 2009 WL 3677594 (W.D. La. Nov. 4, 2009); see generally Wright ex

rel. Wright v. United States, 914 F. Supp. 2d 837, 844-45 (S.D. Miss. 2012) (dismissing sexual

harassment claim because the administrative claim for wrongful death did not contain any facts relevant

to such claim); In re Katrina Canal Breaches Consol. Litig., No. 05-4182, 2008 WL 4449970 **5-6

(E.D. La. Sept. 29, 2008) (dismissing claims because while the administrative claim alleged negligence

in the handling of the canals by government officials, it did not reference the government’s allegedly

negligent management of its contractors); Nunez v. United States, No. 1:13-cv-419, 2017 WL

1147787, at *3 (E.D. Tex. Mar. 10, 2017) (dismissing inmate’s assault claim for failure to provide

specific facts), R and R adopted, 2017 WL 1148612 (E.D. Tex. Mar. 27, 2017); Smith v. United

States, 157 F. Supp. 3d 32, 37-39 (D.D.C. 2016) (applying Rise and dismissing a negligence claim

for failure to exhaust).

Notably, two courts in this circuit have recently dismissed negligence claims in situations

remarkably similar to the instant case. In Peteet v. Hawkins, No. CV H-17-1312, 2018 WL 4039375,

at *4, *6 (S.D. Tex. July 17, 2018), R and R adopted, 2018 WL 4033775 (S.D. Tex. Aug. 23, 2018),

a BOP inmate asserted claims against the United States for negligently hiring, training, supervising,

evaluating, and retaining the prison official responsible for her rape. There, the court held that the

inmate failed to exhaust her negligence claims because her administrative claim “only alleged that

Hawkins assaulted her and did not contain any allegation that Bureau of Prisons staff negligently

supervised Hawkins” nor did it contain “any facts to suggest that it should have been foreseeable to

the Bureau of Prisons management that Hawkins would assault her . . . .” Id. at *6-7. Similarly, in

Ramirez v. United States, No. 4:17-cv-1142, 2018 WL 6977340, *3 (S.D. Tex. Dec. 12, 2018), the

court dismissed an inmate’s negligence claims related to her assault by a prison guard because she did

“not assert that the actions of [the prison guard Thomas] were due to the negligence of any other

[prison] official or employee,” and the administrative claim did not contain any facts outside of the

assaults committed by the prison guard defendant. Id.

Here, Dudley’s September 19, 2018 administrative claim describes the November 1, 2016

sexual assault by McGaugh, the United States’ subsequent investigation of the assault and prosecution

of McGaugh, and the alleged harassment of Dudley following her identification of McGaugh as her

assailant. Attachment Complaint 1-5, ECF No. 1-1. But Plaintiff Dudley did not reference any prior

incidents involving McGaugh, any prior incidents involving other individuals at FMC-Carswell, and

did not assert any complaint about BOP’s hiring, supervision, training, or retention of its employees

in general or of McGaugh. Id. Like the inmates in the Peteet and Ramirez cases, Dudley only included

facts relating to the assault itself (aside from post-assault facts regarding Warden Upton not germane

here), and did not provide any other facts putting the government on notice of any other potential

claims. Thus, as Dudley failed to mention or allude to any facts providing notice of her negligence

claims, she failed to exhaust such claims and they should be dismissed for lack of jurisdiction.

D. Negligent Retention/ Supervision Claims Alternatively Barred by

Discretionary Function Exception to the FTCA Waiver of Immunity

The Court next considers, in the alternative, whether Dudley’s claims of negligent retention

and negligent supervision are barred by the discretionary function exception to the FTCA’s waiver

of immunity.

The FTCA expressly excludes from the waiver of sovereign immunity claims based “upon the

exercise or performance or the failure to exercise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Government, whether or not the discretion involved

be abused.” See 28 U.S.C. § 2680(a) (West 2019). This “discretionary function” exception “marks

the boundary between Congress’ willingness to impose tort liability upon the United States and its

desire to protect certain governmental activities from exposure to suit by private individuals.” United

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984).

The discretionary function exception is potentially applicable in this case because BOP officials

generally exercise significant judgment in fulfilling their statutory obligation to provide for the

safekeeping, care, and subsistence of all federal prisoners. See 18 U.S.C. § 4042(a) (setting out duties

of the BOP); Spotts v. United States 613 F.3d 559, 567 (5th Cir. 2010) (“[T]he Federal Bureau of

Prisons [must] provide for the safekeeping, care, and subsistence of all federal prisoners, but [Section

4042(a)]does not indicate the manner in which the duty must be fulfilled.”).

The Supreme Court has developed a two part test for determining whether qualifies as a

discretionary function such that the exception to the FTCA applies. See United States v. Gaubert,

499 U.S. 315, 322-23 (1991) (citing Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). The

first question to ask is whether the act “involv[es] an element of judgment or choice.” Id. at 322.

(internal quotation marks and citation omitted). If so, we then ask “whether that judgment is of the

kind that the discretionary function exception was designed to shield.” Id. at 322-23 (internal quotation

marks and citation omitted). “The requirement of judgment or choice is not satisfied if a ‘federal

statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’

because ‘the employee has no rightful option but to adhere to the directive.’” Id. at 322 (quoting

Berkovitz, 486 U.S. at 536). If the discretionary function exception applies, this court lacks subject

matter jurisdiction. See Castro v. United States, 608 F.3d 266, 268 (5th Cir. 2010) (en banc).

For the detailed reasons set forth in the USA reply to Dudley’s response, the Court

alternatively finds that Dudley’s remaining claims of negligent retention and negligent supervision must

also be dismissed as barred by the discretionary function exception to the FTCA’s waiver of immunity.

USA Reply 4-9. ECF No. 26. As explained therein, although Dudley relies upon the provisions and

implementing standards of the PREA, she has not shown that any prison official’s act or failure to act

contravened a mandatory statutory or policy directive as required under the first factor of Gaubert.

Furthermore, as to the second factor, the PREA standards recited by Dudley actually grant prison

officials broad discretion in investigating and disciplining actual or potential instances of sexual abuse.

USA Reply 5-7, ECF No. 26. Furthermore, the supervision of correctional officers requires a large

amount of decision making and balancing of competing objectives that courts have found are

discretionary functions. See Dorsey v. Relf, No. 4:12-cv-021-A, 2013 WL 791604, at *5 (N.D. Tex.

Mar. 4, 2013) (“Decisions regarding hiring, supervising, training, and retaining employees involve

many public policy considerations and matters of judgment and choice for Bureau of Prisons

employees making those decisions. Decision-making employees must evaluate and weigh the

qualifications of applicants, consider staffing requirements, conduct ongoing assessment of training

needs, and make numerous daily decisions regarding supervision of employees. These ‘multi-factored

choices require the balancing of competing objectives, and are of the ‘nature and quality that Congress

intended to shield from tort liability’”) (citing Tonelli v. United States,60 F.3d 492, 496 (8th

Cir.1995)(internal citation omitted)); see also Dretar v. Smith, 752 F.2d 1015, 1017 n. 2 (5th Cir.

1985) (“Supervising employees is certainly a discretionary function.”).

For these reasons, the Court finds that Dudley’s negligent retention and negligent supervision

claims are alternatively barred from review by the discretionary function exception to the FTCA’s

waiver of immunity.

V. CONCLUSION AND ORDER

For all of the above and foregoing reasons,

It is ORDERED that the motion to dismiss of the USA (ECF No.15) is GRANTED such

that all Plaintiff Dudley’s claims against the United States are DISMISSED with prejudice for lack

of subject matter jurisdiction.

It is further ORDERED that Defendant Jody Upton’s motion to dismiss for failure to state

a claim under Federal Rule of Civil Procedure 12(b)(6)(ECF No. 16) is GRANTED such that all

Plaintiff Dudley’s claims against Jody Upton are DISMISSED with prejudice.

It is further ORDERED that Defendant Matthew McGaugh’s request/motion to dismiss,

construed as a motion under Federal Rule of Civil Procedure 12(b)(2) (ECF No. 25), is DENIED.

It is further ORDERED that the time for Defendant Matthew McGaugh to file a responsive

pleading to Dudley’s complaint is within 14 days from notice of this Order.5

SO ORDERED on this 3rd day of February, 2020.

5The Clerk of Court is directed to send McGaugh’s copy of this Opinion and Order and the

accompanying Rule 54(b) Judgment to him via certified mail, return receipt requested.