# DORSEY v. MOHAN

> District Court, D. New Jersey · July 11, 2024

URL: https://www.frixlaw.com/law-library/cases/10656280

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 11, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10656280

## How later opinions describe it (automated extraction)

- 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.

## Opinion text

*NOT FOR PUBLICATION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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10656280. Public record. Not legal advice.