DORSEY v. MOHAN

*NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

:

ROBERT STERLING DORSEY, : CIV. NO. 22-936 (RMB-MJS)

:

Plaintiff, : OPINION

:

v. :

:

ELIZABETH MOHAN, et al., :

:

Defendants :

______________________________

This matter comes before the Court upon Plaintiff Robert Sterling Dorsey’s

(“Plaintiff”) pro se amended complaint (Docket No. 10), Defendants’ motion to

dismiss filed by United States of America, Elizabeth Moham, David Ortiz, and

Jeffery Wilk1 (“Defendants”) [partial] motion to dismiss the amended complaint

(Mot. to Dismiss, Dkt. No. 29), Plaintiff’s brief in opposition to the motion to

dismiss (Pl’s Opp. Brief, Docket No. 36), and Defendants’ reply brief (Defs’ Reply

Brief, Docket No. 37.) The Court will decide the motion on the briefs2 without an

oral hearing, pursuant to Federal Rule of Civil Procedure 78(b). For the reasons

discussed below, the Court will grant Defendants’ [partial] motion to dismiss.

1 Elizabeth Moham (identified in the amended complaint as Elizabeth Mohan) and Jeffrey

Wilk (identified in the amended complaint as David Wilk) provided the correct spellings of

their names, which the Court will use in this Opinion, except where Plaintiff is quoted.

2 The Court grants Defendants’ request (Dkt. No. 30) to accept their brief in support of their

motion to dismiss, four pages in excess of the page limit.

I. PROCEDURAL HISTORY

Plaintiff, who was incarcerated at the Federal Correctional Institution in Fort

Dix, New Jersey (“FCI Fort Dix”) on November 18, 2020, submitted an

administrative tort claim, received by the Bureau of Prison’s (“BOP”) Northeast

Regional Office on February 16, 2021. In his tort claim, Plaintiff alleged that on

November 18, 2020, FCI Fort Dix Pharmacist Elizabeth Moham (“Moham”)

violated the Eighth Amendment by dispensing his prescribed pain medication,

acetaminophen, to another inmate, who then passed it to another inmate before it

reached Plaintiff. Plaintiff returned the medication to staff because it had been

handled by other inmates and not properly distributed. The medication was not

replaced, causing Plaintiff to go without pain medication for 30 days. (Declaration

of Corrie Dobovich (“Dobovich Decl.”) ¶¶ 9, 10, Dkt. No. 29-3, and Ex. 5, Dkt. No.

29-4 at 62-63; Ex. 6, Dkt. No. 29-4 at 64-70.)3 BOP’s Northeast Regional Office

denied Plaintiff’s administrative tort claim in October 2021, finding that his medical

records did not substantiate his claims. (Id. ¶ 11 and Ex. 7, Dkt. No. 29-4 at 72-75.)

Consequently, Plaintiff filed this lawsuit in February 2022, after he was

released from FCI Fort Dix. (Compl., Dkt. No. 1.) This Court granted Plaintiff’s

application to proceed in forma pauperis and gave Plaintiff leave to submit an

3 The Court may consider documents relevant to subject matter jurisdiction over Plaintiff’s

FTCA claim(s). See, e.g., Wills v. USP Canaan, 635 F. App'x 5, 8 (3d Cir. 2015) (noting the

district court “was free to weigh the evidence presented and satisfy itself that the exercise of

its jurisdiction was proper” where the Government’s motion to dismiss constituted a factual

attack on the existence of subject matter jurisdiction.)

amended complaint. (Orders, Dkt. Nos. 4, 5.) Plaintiff filed his amended complaint

on November 10, 2022. (Am. Compl., Dkt. No. 10.) Defendants move to dismiss

all claims, with the exception Plaintiff’s FTCA claim based on the alleged

distribution of Plaintiff’s pain medication to another inmate.

II. THE AMENDED COMPLAINT

Plaintiff was formerly a federal inmate confined at FCI Fort Dix. (Compl.,

Dkt. No. 1.) In his amended complaint, Plaintiff alleges that on November 18, 2020,

at FCI Fort Dix, Pharmacy Technician Elizabeth Moham gave another inmate

Plaintiff’s prescribed pain medication, which left him without pain medication for 30

days. (Am. Compl., Dkt. No. 10.) Plaintiff further alleges that Health Services

Supervisor Jeffrey Wilk (“Wilk”) did not respond to Plaintiff’s informal

administrative remedy request concerning this incident, and that Warden David

Ortiz failed to conduct a full investigation into Plaintiff’s claim. Plaintiff alleges

Eighth Amendment claims against Moham, Wilk and Ortiz under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics,4 and tort claims against the

Government under the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).5

4 403 U.S. 388 (1971).

5 28 U.S.C. § 1346(b)(1) provides, in relevant part:

the district courts … shall have exclusive jurisdiction of civil

actions on claims against the United States, for money damages

… for injury or loss of property, or 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 office or employment, under circumstances where the

III. DISCUSSION

A. Rule 12(b)(1) Standard of Law

Defendants seek dismissal of the complaint for lack of subject matter

jurisdiction based on a factual attack to jurisdiction. “[A] factual 12(b)(1) challenge

attacks allegations underlying the assertion of jurisdiction in the complaint, and it

allows the defendant to present competing facts.” Hartig Drug Co. Inc. v. Senju Pharm.

Co., 836 F.3d 261, 268 (3d Cir. 2016) (quoting Constitution Party of Pa. v. Aichele, 757

F.3d 347, 358 (3d Cir. 2014)). “[T]he court ‘is free to weigh the evidence[, including

evidence outside the pleadings,] and satisfy itself as to the existence of its power to

hear the case,” and “no presumptive truthfulness attaches to [the] plaintiff's

allegations....’” Id. (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884,

891 (3d Cir. 1977) (first alteration added)). The burden is on the plaintiff to establish

the court’s jurisdiction. Lightfoot v. United States, 564 F.3d 625, 627 (3d Cir. 2009).

B. Public Health Service Immunity

Defendants seek to dismiss the Bivens claim against Elizabeth Moham (“Lt.

Cmdr. Moham”) based on her immunity as a commissioned member of the United

States Public Health Service (“PHS”). (Defs’ Mot. to Dismiss, Dkt. No. 29-6 at 15-

17.) Plaintiff opposes Defendants’ motion to dismiss, asserting that Lt. Comdr.

Moham is not entitled to qualified immunity because she violated federal law by

United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act

or omission occurred.

dispensing his medication to another inmate. (Pl’s Opp. Brief, Dkt. No. 36 at 1-2.)

In their reply brief, Defendants note Plaintiff did not address their PHS immunity

defense. (Defs’ Reply Brief, Dkt. No. 37 at 2.)

The Public Health Service Act, “Section 233(a) grants absolute immunity to

PHS officers and employees for actions arising out of the performance of medical or

related functions within the scope of their employment by barring all actions against

them for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010); 42 U.S.C. §

233(a). In support of their Rule 12(b)(1) motion to dismiss, Defendants submitted:

(1) the Declaration of Elizabeth Moham, stating that she is a commissioned Public

Health Service officer, rank lieutenant commander; and (2) Lt. Cmdr. Moham’s

Personnel Order from PHS, appointing her senior pharmacist at FCI Fort Dix on

July 10, 2010. (“Moham Decl.” ¶¶ 1-2, Dkt. No. 29-5 at 2.) Lt. Cmdr. Moham

states that from July 19, 2010 through January 13, 2023, she was stationed at FCI

Fort Dix, where she held the title of pharmacist. (Id., ¶ 3.) She continuously served

as a PHS officer. (Id., ¶ 4.)

In Hui, the Supreme Court held that 42 U.S.C. § 233(a) “grants absolute

immunity to PHS officers and employees for actions arising out of the performance

of medical or related functions within the scope of their employment by barring all

actions against them for such conduct.” 559 U.S. at 806; see, e.g., Gilmore v. McGann,

No. 23-1467, 2023 WL 6141606, at *1 (3d Cir. Sept. 20, 2023); see e.g. Landis v.

Wilson, No. 21-2985, 2022 WL 2128563, at *1 (3d Cir. June 14, 2022). Lt. Cmdr.

Moham is absolutely immune from Plaintiff’s Bivens claim. Therefore, the Court will

dismiss this claim for lack of jurisdiction.

C. Bivens Claims Against Defendants Wilk and Ortiz

Defendants seek to dismiss Plaintiff’s Bivens claims against Warden Ortiz and

Wilk for three alternative reasons: (1) special factors counsel hesitation against

extending Bivens liability to the claims in this case; (2) Plaintiff failed to exhaust

administrative remedies under the Prison Litigation Reform Act; and (3) Defendants

are entitled to qualified immunity. (Defs’ Mot. to Dismiss, Dkt. No. 29-6 at 9-10.)

Plaintiff did not respond to Defendants’ argument that this Court should not extend

Bivens liability to Plaintiff’s claims against Wilk and Warden Ortiz. (Pl’s Opp. Brief,

Dkt. No. 36; Defs’ Reply Brief, Dkt. No. 37.) Plaintiff did, however, elucidate the

basis for his claims against Wilk and Warden Ortiz. He asserts Wilk is Lt. Cmdr.

Moham’s direct supervisor, and he failed to respond to Plaintiff’s grievance alleging

she gave his medication to another inmate. (Pl’s Opp Brief, Dkt. No. 36 at 2.) He

further alleges that as a supervisor Wilk “is responsible for insubordination of staff

members that he supervises.” (Id. at 3.) Further, Plaintiff asserts Warden Ortiz

violated his right to due process by not following protocols for an investigation

through the Internal Affairs Office of the Inspector General. (Id.) In their reply brief,

Defendants correctly note Plaintiff did not address why the Court should imply a

damages remedy in this new Bivens context. (Defs’ Reply Brief, Dkt. No. 37 at 2.)

Defendants argue that Plaintiff’s Bivens claims regarding the inadequate

response to his grievances by Wilk and Warden Ortiz arise in a new Bivens context,

and special factors counsel hesitation in implying a damages remedy. (Defs’ Opp

Brief, Dkt. No. 29-6 at 17-25.) The Bivens context is new because it is different from

the three cases where the Supreme Court has implied a damages remedy against a

federal employee for an alleged constitutional violation. (Id. at 17-20.) Special

factors, including alternative avenues of relief, separation of powers principles, and

systemwide costs and burden on the Government from recognizing a new damages

claim disfavor recognition of a damages remedy. (Id. at 20-25.) The Court begins by

addressing whether Plaintiff’s claims arise in a new Bivens context.

The fact that the Supreme Court recognized a Bivens remedy only three times

in more than forty years establishes that the expansion of the Bivens remedy by the

judiciary is disfavored. Ziglar v. Abbasi, 582 U.S. 120, 135 (2017). The three cases

recognized by the Supreme Court are (1) Bivens, 403 U.S. 388 (1971), a Fourth

Amendment unreasonable search and seizure claim based on the warrantless search

of the plaintiff’s home by federal narcotics agents, and his arrest without probable

cause; (2) Davis v. Passman, 442 U.S. 228 (1979), a Fifth Amendment equal

protection claim against a Congressman for gender discrimination in the workplace;

and (3) Carlson v. Green, 446 U.S. 14 (1980), an Eighth Amendment claim against

federal prison officials for failing to provide emergency medical care to treat an

inmate’s life-threatening asthma. Id. at 130-31. The Supreme Court recently

instructed courts to hesitate before recognizing a Bivens damages remedy because

“creating a cause of action is a legislative endeavor,” “the Judiciary’s authority” to

create a Bivens remedy is “at best, uncertain,” and if it “were called to decide Bivens

today, [it] would decline to discover any implied causes of action in the

Constitution.” Egbert v. Boule, 596 U.S. 482, 491, 502 (2022) (citation omitted).

The Supreme Court, however, retained the two-step framework for implying a

Bivens damages remedy. First, courts must ask whether the case presents “a new

Bivens context” and, if so, whether there are “‘special factors’ indicating that the

Judiciary is at least arguably less equipped than Congress to ‘weigh the costs and

benefits of allowing a damages action to proceed.’” Id. at 492 (emphasis added). The

Court advised that “in all but the most unusual circumstances, prescribing a cause of

action is a job for Congress, not the courts[.]” Id. at 486. “Unless the Supreme

Court has recognized the context before, the context is ‘new’ and a special factors

inquiry is required to determine if Bivens expansion is appropriate.” Mack v. Yost, 968

F.3d 311, 319 (3d Cir. 2020).

Under the second step of the analytical framework, “a Bivens remedy will not

be available if there are ‘special factors counselling hesitation in the absence of

affirmative action by Congress.’” Abbasi, 582 U.S. at 136 (quoting Carlson, 446 U.S.

at 18 (quoting Bivens, 403 U.S. at 396)). Under this step, courts must consider

“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. The two analytical steps “often resolve to a single question: whether there is any

reason to think that Congress might be better equipped to create a damages remedy.”

Egbert, 596 U.S. at 482 (emphasis added). Ultimately, “[i]f there is even a single

reason to pause before applying Bivens in a new context, a court may not recognize a

Bivens remedy.” Id.

Plaintiff’s claims arise in a new Bivens context, having little in common with

the three prior cases where the Supreme Court implied a damages remedy. The most

analogous case, Carlson, involved an Eighth Amendment claim of inadequate

medical treatment by federal prison officials, resulting in the death of an inmate from

an asthma attack. Carlson, 446 U.S. at 16-17. The claims asserted here are far less

serious, the adequacy of the supervisory response to a complaint that medical staff

improperly dispensed a prisoner’s pain medication, acetaminophen. As a result of

the failure to respond to his grievances and conduct a full investigation, Plaintiff

alleges he needlessly suffered pain for 30 days. Plaintiff’s claims against Defendants

Wilk and Warden Ortiz arise in a new Bivens context. Therefore, this Court turns to

the second step of the analysis, whether special factors counsel hesitation in implying

a damages remedy.

Defendants argue that this Court should decline to imply a damages remedy

because Plaintiff had several alternate avenues of relief to address his claims. (Defs’

Mot. to Dismiss, Dkt. No. 29-6 at 21-22, citing e.g. Smith v. Ebbert, No. 21-915, 2021

WL 2660872, at *4 (M.D. Pa. June 29, 2021). Defendants submitted the Declaration

of Corrie Dobovich, who provided records that were maintained in the ordinary

course of business by BOP at FCI Fort Dix, showing that Plaintiff exhausted

administrative remedies for his claim against Lt. Cmdr. Moham. (“Dobovich Decl.

¶ 7, Dkt. No. 29-3; Ex. 3, Dkt. No. 29-4 at 14-50; Ex. 4, Dkt. No. 29-4 at 51-61.)

When a federal prisoner has access to the BOP’s administrative remedy

program to obtain equitable relief for a constitutional violation, this may be sufficient

reason not to imply a damages remedy. Mack v. Yost, 968 F.3d at 320-21 (quoting

Abbasi, 582 U.S. at 137). The record establishes Plaintiff had access to the BOP

administrative remedy program, and he exhausted his claim that his pain medication

was not dispensed directly to him on November 18, 2020. Petitioner also used the

administrative remedy program to report that Wilk did not respond to his informal

administrative remedy request on form BP-8. (Id., Ex. 4, Dkt. No. 29-4 at 58, 60.)

Pursuant to 28 C.F.R. § 542.10, a federal prisoner in BOP custody may “seek

formal review of an issue relating to any aspect of his/her own confinement.” It is

not for federal courts to “question whether a given remedy is adequate” rather it “is a

legislative determination that must be left to Congress[.]” Egbert, 596 U.S. at 498.

The record shows Plaintiff availed himself of the BOP administrative remedy

program. An “alternative remedy need not provide an individual with complete

relief in order to foreclose a damages remedy under Bivens.” Mack, 968 F.3d at 320

(citation omitted).

Defendants also submit that the systemwide costs and burden the Government

from creation of a damages remedy counsel hesitation in this new Bivens context.

(Defs’ Mot. to Dismiss, Dkt. No. 29-6 at 24-25.) In Abbasi, the Supreme Court

instructed courts to consider “the burden on Government employees who are sued

personally, as well as the projected costs and consequences to the Government

itself[.]” 582 U.S. at 136. Relevant to this analysis, prisoners may file grievances

under the BOP’s administrative remedy program for any issue related to prison life.

As a result, many grievances require responses from staff. The fear of personal

liability for failing to respond or inadequately responding to grievances may interfere

with the daunting task of operating a prison. Similarly, the costs to the Government,

if the Government chose to indemnify its employees, could significantly affect the

prison’s budget. For these reasons, this Court will decline to imply a damages

remedy in this new context.

D. FTCA Claims for Failure Respond to Inmate Remedy Request and

Failure to Fully Investigate Inmate Claims

Defendants argue Plaintiff’s FTCA claims based on Wilk’s and Warden

Ortiz’s negligence6 in responding to his grievances are barred by the FTCA

discretionary function exception. (Defs’ Brief, Dkt. No. 29-6 at 32.) Therefore, the

Court should dismiss the FTCA claims for lack of jurisdiction. (Id.)

Plaintiff did not directly respond to Defendants’ argument concerning the

discretionary function exception, but he opposed Defendants’ motion to dismiss,

6 Plaintiff has characterized the inadequate responses to his grievances by Wilk and Warden

Ortiz as negligence and deliberate indifference to his serious medical needs, in violation of

the Eighth Amendment. There is no constitutional right to an administrative remedy

program in prison. Heleva v. Kramer, 214 F. App'x 244, 247 (3d Cir. 2007) (citing, e.g.,

Massey v. Helman, 259 F.3d 641, 647 (7th Cir.2001) (collecting cases)). Therefore, the Court

will address Plaintiff’s allegations of negligence.

explaining that “the main defendant, Mohan, broke federal law when she dispensed

the plaintiffs [sic] ‘medically prescribed’ medication to other inmates for

distribution.” (Pl’s Opp. Brief, Dkt. No. 37 at 1.) Plaintiff further stated, “the BOP

failed to investigate the allegations and left this inmate in pain.” (Id.) Plaintiff

described Wilk’s alleged misconduct:

This BOP official is the direct supervisor of Defendant

Mohan this individual deprived the plaintiff [of] a fair and

prompt investigation this defendant failed to respond to

any emails, from staff, inmates or anything showing to

disregard towards the inmates [sic] serious medical needs.

As a supervisor Wilks is responsible for the

insubordination of staff members that he supervises.

(Id. at 2-3.)

Plaintiff also described Ortiz’s alleged misconduct, “David Ortiz (warden)

fails to follow protocol once a staff member is accused of wrongdoings Internal

Affairs Office of the Inspector General failing to do so prevents the plaintiff his right

to ‘due process.’” (Id. at 3.) Defendants, in their reply brief, note that Plaintiff did

not identify any mandatory statute, regulation, or rule violated by Defendants in

failing to respond to Plaintiff’s BP-8 informal remedy request or mandatory rules

governing investigation of inmate allegations.

1. FTCA Discretionary Function Exception

Congress, in enacting the FTCA, did not waive sovereign immunity for all

personal injury suits against the United States. One of the exceptions to the waiver

of sovereign immunity provides:

The provisions of this chapter and section 1346(b) of this

title shall not apply to—

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due care, in the

execution of a statute or regulation, whether or not such

statute or regulation be valid, or 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.

28 U.S.C. § 2680(a). To invoke this discretionary function exception, the

Government must show: “(1) its agent's action ‘involve[d] an element of judgment

or choice’ and (2) its agent's judgment was ‘of the kind that the ... exception was

designed to shield,’ meaning that it was ‘susceptible to policy analysis.’” Clark v. Sec'y

of United States Navy, 102 F.4th 658, 661 (3d Cir. 2024) (quoting United States v.

Gaubert, 499 U.S. 315, 322–23, 325 (1991) (brackets and internal quotation marks

omitted in Clark)).

2. Analysis of FTCA Claim Concerning Wilk

Defendants argue that the first prong of the discretionary function exception

test is met because there are no mandatory statutes or rules governing the manner in

which the BOP responds to informal remedy requests. The Court agrees. A federal

prisoner in BOP custody in usually required to initiate the administrative remedy

process by attempting informal resolution. The governing regulation, 28 C.F.R. §

542.13(a), provides “an inmate shall first present an issue of concern informally to

staff, and staff shall attempt to informally resolve the issue before an inmate submits

a Request for Administrative Remedy.” According to BOP Program Statement

1330.18, Administrative Remedy Program7 “[e]ach Warden shall establish

procedures to allow for the informal resolution of inmate complaints.” Further, it is

the warden’s responsibility to ensure “ that effective informal resolution procedures

are in place and that good faith attempts at informal resolution are made in an

orderly and timely manner by both inmates and staff.” Additionally, “[t]he deadline

for completion of informal resolution and submission of a formal written

Administrative Remedy Request, on the appropriate form (BP–9), is 20 calendar

days following the date on which the basis for the Request occurred.” 28 C.F.R. §

542.14(a). Extensions of this deadline are available for “valid reasons” including “an

unusually long period taken for informal resolution attempts.” Id. § 541.14(b).

Defendants submitted a copy of the BP-8 form at issue in Plaintiff’s amended

complaint. (Dobovich Decl., Dkt. No. 29-4 at 61.) The form instructs inmates,

“[y]ou are advised that prior to receiving and filing a request for Administrative

Remedy Form BP-9, you must ordinarily attempt to informally resolve your

complaint through your Correctional Counselor.” Plaintiff’s BP-8 form indicates it

was issued on November 19, 2020, and signed by Plaintiff’s Correctional Counselor.

The BP-8 form was returned to the Correctional Counselor with the explanation:

“attempted to internally resolve with no response. Consider request denied.” The

BP-8 is signed by a Unit Manager, indicating a BP-9 form was issued to Plaintiff on

December 21, 2020. In his “Request for Administrative Remedy” [BP-9 form],

7 Available at https://www.bop.gov/resources/policy_and_forms.jsp.

Plaintiff reported to the warden that “Health Service Administration has failed to

resolve this administrative remedy in a timely manner, as inmate Robert Dorsey filed

a BP-8 against E. Mohan. … This occurred on the 18th day of November and inmate

Dorsey has not received a response until this day, December 21, 2020.” (Dobovich

Decl., Ex. 4, Dkt. No. 29-4 at 60.)

The first inquiry for application of the discretionary function exception is

whether the agent’s action involved an element of judgment or choice. Prison staff

are not required to resolve a prisoner’s BP-8 request within a specific timeframe, as

evidenced by the regulation permitting an extension of time to file a BP-9 formal

remedy request when it has taken “an unusually long period” for informal resolution

attempts. Wilk had discretion in when he would respond to Plaintiff’s request to

informally resolve the matter of Lt. Cmdr. Moham’s distribution of his medication.

Wilk’s conduct involved an element of judgment, therefore, the Court turns to the

second inquiry, whether the agent’s judgment or choice is susceptible to policy

analysis.

Plaintiff alleges Wilk is the “Health Service Supervisor” at FCI Fort Dix,

responsible for supervising and training his subordinates. (Am. Compl., Dkt. No. 10

¶¶ 4(c), 6.) The Court takes judicial notice that November 18, 2020, the day of the

alleged incident, was during the height of the COVID-19 pandemic, which placed

unprecedented demand on prison health services.8 A supervisor of a prison medical

department must make economic policy decisions on the most effective manner to

meet the medical needs of prisoners with limited staff and financial resources. When

and how a supervisor responds to a complaint about medical staff falls within this

policy analysis. Therefore, Plaintiff’s FTCA claim based on Wilk’s alleged failure to

respond to his informal remedy request between November 19, 2020 and December

21, 2020, is barred by the discretionary function exception.

3. Analysis of FTCA Claim Concerning Warden Ortiz

Defendants contend the discretionary function exception is also applicable to

Plaintiff’s claim that Warden Ortiz failed to conduct a full investigation of Plaintiff’s

grievance. Defendants submit that BOP’s Correctional Services Manual outlines

general practices for correctional staff, including investigation of major incidents, but

it does not mandate specific investigatory steps. (Defs’ Mot. to Dismiss, Dkt. No.

29-6 at 38, citing BOP Prog. St. 5500.14).9 In response, Plaintiff suggests Warden

Ortiz should have investigated his complaint using the protocols of the Internal

Affairs Office of the Inspector General. (Pl’s Opp. Brief, Dkt. No. 36 at 3.)

8 “The court may judicially notice a fact that is not subject to reasonable dispute because it:

… can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b)(2).

9 Available at https://www.bop.gov/policy/progstat/5500_014_CN-1.pdf, at 1, 2, Ch. 1:6,

Ch. 6:1-6.

The record shows Plaintiff submitted an inmate remedy request on form BP-9

to Warden Ortiz on December 22, 2020, alleging Lt. Cmdr. Moham dispensed his

medication to another inmate. (Dobovich Decl., Ex. 4, Dkt. No. 29-4 at 60.) BOP

Program Statement 1330.18(5)(a)(3),10 provides, in pertinent part, that the warden

“shall” conduct an investigation into each administrative remedy request. Section

13(b) of P.S. 1330.18 provides:

The Clerk or Coordinator shall assign each filed Request

or Appeal for investigation and response preparation.

Matters in which specific staff involvement is alleged may

not be investigated by either staff alleged to be involved or

by staff under their supervision. Allegations of physical

abuse by staff shall be referred to the Office of Internal

Affairs (OIA) in accordance with procedures established

for such referrals. Where appropriate; e.g., when OIA or

another agency is assuming primary responsibility for

investigating the allegations, the response to the Request

or Appeal may be an interim response and need not be

delayed pending the outcome of the other investigation.

Requests or Appeals shall be investigated thoroughly, and

all relevant information developed in the investigation

shall ordinarily be supported by written documents or

notes of the investigator’s findings. Notes should be

sufficiently detailed to show the name, title, and location

of the information provided, the date the information was

provided, and a full description of the information

provided. Such documents and notes shall be retained with

the case file copy. When deemed necessary in the

investigator’s discretion, the investigator may request a

written statement from another staff member regarding

matters raised in the Request or Appeal. Requested staff

shall provide such statements promptly. For a disciplinary

Appeal, a complete copy of the appealed disciplinary

actions record shall be maintained with the Appeal file

copy.

10 See supra n. 7.

Only allegations of physical abuse of staff must be referred to the Office of Internal

Affairs for investigation. The BOP program statement does not otherwise require

specific steps to be taken in investigating an inmate’s remedy request. Thus, the

manner in which the warden conducts an investigation involves an element of

judgment or choice. The Court turns to the second inquiry of the discretionary

function analysis, whether the agent’s judgment or choice is susceptible to policy

analysis.

Federal prison management involves social and economic policy choices

concerning the purpose of incarceration, the health and welfare of the inmates and

staff, and the staffing and economic resources required to operate a prison. “Prison

administrators should be afforded wide-ranging deference in implementing and

executing their policies because their discretion is needed to preserve internal

discipline and maintain institutional security.” Donaldson v. United States, 281 F.

App'x 75, 77 (3d Cir. 2008) (quoting Bell v. Wolfish, 441 U.S. 520, 547–48 (1979)).

“‘[T]he discretionary function exception protects agency decisions concerning the

scope and manner in which it conducts an investigation so long as the agency does

not violate a mandatory directive.’” Alfrey v. United States, 276 F.3d 557, 565 (9th

Cir. 2002) (quoting Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000)).

Therefore, the discretionary function exception bars Plaintiff’s FTCA claim

regarding Warden Ortiz’s failure to conduct a full investigation of Plaintiff’s

grievance against Lt. Cmdr. Moham.

IV. CONCLUSION

For the reasons discussed above, Defendant’s motion to dismiss for lack of

jurisdiction Plaintiff’s Bivens claims and Plaintiff’s FTCA claims involving the

conduct of AHSA Wilk and Warden Ortiz will be granted.

An appropriate Order follows.

DATE: July 11, 2024

s/Renée Marie Bumb

RENÉE MARIE BUMB

Chief United States District Judge