The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
:
ROBERT S. DORSEY, : Civ. Action No. 22-431(RMB-EAP)
:
Plaintiff, :
:
v. :
:
ANNEMARIE BURNS, et al., :
:
Defendants :
:
RENÉE MARIE BUMB, Chief United States District Judge
This matter comes before the Court on the unopposed motion to dismiss
Plaintiff’s Bivens claim for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6) by Defendants Jeremy Ardoline, David Ortiz, Lamine
N’Diaye, Adam Sassaman, and Annmarie Burns (the “Individual Defendants”)
(Individ. Defs’ Mot. to Dismiss, Dkt. No. 33.) Plaintiff Robert S. Dorsey is a
former federal inmate at the Federal Correctional Institution in Fort Dix, New
Jersey, from 2019 to 2021, (“FCI Fort Dix”) who filed a civil rights and Federal
Tort Claims action against the United States1 and the Individual Defendants for
misrepresenting the safety of the drinking water and failing to provide safe
drinking water at FCI Fort Dix. (Compl., Dkt. No. 1.) Plaintiff did not respond to
1 The United States filed a separate motion to dismiss Plaintiff’s claim under the
Federal Tort Claims Act. (Dkt. No. 36.)
Defendant’s motion to dismiss his Bivens claims. The Court will determine the
motion on the brief and record, pursuant to Federal Rule of Civil Procedure 78(b).
I. PLAINTIFF’S BIVENS CLAIMS
Plaintiff alleges that he was exposed to contaminated drinking water at FCI
Fort Dix, in violation of the Eighth Amendment. (Compl. ¶¶ 2-5, Dkt. No. 1.) He
seeks damages based on an implied cause of action under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff makes the
following factual allegations against the Individual Defendants:
• Jeffrey Ardoline, Food Service Administrator, “said that
the menu does not have water on it” and “failed to provide
safe drinking water [despite] knowing the water at [FCI]
Fort Dix is contaminated with dangerous chemicals[;]”
• Annemarie Burns, Assistant Food Service Administrator
(retired), “misled [i]nmates [by] stating [that] the water
was safe for drinking” and “failed to provide safe drinking
water [despite] knowing the water at [FCI] Fort Dix is
contaminated with dangerous chemicals[;]”
• Adam Sassaman, Safety Administrator, “falsified claims
that [the] water was safe[;]”
• David Ortiz and Lamine N’Diaye, former wardens
(retired), “failed to provide safe drinking water.”
(Id. ¶ 4.) Plaintiff alleges his requests for bottled water were denied. (Id. ¶ 5.) He
was injured by his “[c]onsumption of dangerous chemicals in the drinking water” at
FCI Fort Dix, which exposed him to perfluorooctanesulfonic acid (“PFOS”),
perfluorooctanoic acid (“PFOA”), and other toxins, and “[r]ender[ed] the [COVID-
19] vaccine ineffective[,]” causing him to “test[] positive” for COVID-19 three times.
(Id. ¶ 5.)
II. DEFENDANTS’ RULE 12(b)(6) MOTION TO DISMISS
A. New Bivens Context
The Individual Defendants argue that Plaintiff’s conditions of confinement
claims present a new Bivens context, and “special factors” counsel against implying a
damages remedy under the Constitution. (Individ. Defs’ Mot. to Dismiss, Dkt. No.
33-1 at 10.) Alternatively, the Individual Defendants claim they are entitled to
qualified immunity. (Id. at 23-24.)
First, the Individual Defendants contend the Court should not imply a Bivens
remedy for Plaintiff’s claims based on Supreme Court precedent. (Id. at 10-23.)
Plaintiff’s claims arise in a new Bivens context because the Supreme Court has
recognized a Bivens remedy only three times since Bivens was decided: (1) in Bivens
itself, which involved a Fourth Amendment claim that federal narcotics agents
“manacled” a man in his home without a warrant, 403 U.S. at 389; (2) in Davis v.
Passman, 442 U.S. 228 (1979), which involved a congressional staffer’s Fifth
Amendment claim of gender discrimination; and (3) in Carlson v. Green, 446 U.S. 14
(1980), which involved an Eighth Amendment claim of deliberate indifference to a
prisoner’s serious medical condition, resulting in his death. Egbert v. Boule, 596 U.S.
482, 490-91 (2022). (Id. at 10.) Any case that is “meaningfully different from th[ose]
three cases” presents a “new Bivens context.” Egbert, 596 U.S. at 492 (internal
quotation marks and citations omitted). (Individ. Defs’ Mot. to Dismiss, Dkt. No.
33-1 at 12.)
B. Qualified Immunity
The Individual Defendants alternatively argue they are entitled to qualified
immunity on Plaintiff’s Bivens claims. (Id. at 23-33.) “The doctrine of qualified
immunity shields officials from civil liability so long as their conduct ‘does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). (Id. at 23.) “Qualified immunity is ‘
‘an entitlement not to stand trial or face the other burdens of litigation.’” Curley v.
Klem, 298 F.3d 271, 277 (3d Cir. 2002) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526
(1985)). (Id. at 24.) The Individual Defendants submit that Plaintiff failed to plead
sufficient facts to plausibly allege a violation of a clearly established constitutional
right by each of the Individual Defendants. (Id. at 25-33.)
III. DISCUSSION
A. Rule 12(b)(6) Standard of Law
Under Federal Rule of Civil Procedure 12(b)(6), courts must determine the
legal sufficiency of the allegations in a complaint. “[A] complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Kalu v. Spaulding, No. 23-1103, 2024 WL 3884268, at *5 (3d Cir. Aug.
21, 2024) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “A claim is plausible on its face ‘when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Id. (quoting Iqbal, 556 U.S.
at 662) (quoting Twombly, 550 U.S. at 556). Dismissal of a complaint is appropriate
if, “accepting all factual allegations as true and construing the complaint in the light
most favorable to the plaintiff, … the plaintiff is not entitled to relief under any
reasonable reading of the complaint.” Id. (quoting McMullen v. Maple Shade Twp.,
643 F.3d 96, 98 (3d Cir. 2011) (quotation marks and citation omitted)).
B. Analysis
The Third Circuit Court of Appeals has recently analyzed the Supreme
Court’s decision in Egbert. The Third Circuit “read Egbert to require the following:
unless a case is indistinguishable from Bivens,2 Davis,3 or Carlson,4 a damages
remedy may be created by Congress, but not by the courts. Fisher v. Hollingsworth,
No. 22-2846, 2024 WL 3820969, at *5 (3d Cir. Aug. 15, 2024). For the reasons
discussed below, Plaintiff’s claims against the Individual Defendants are
distinguishable from Bivens, Davis, and Carlson. Therefore, the Court will grant the
Individual Defendants’ motion to dismiss Plaintiff’s Bivens claims.
Plaintiff alleges the Individual Defendants violated the Eighth Amendment
by misrepresenting the safety of the drinking water at FCI Fort Dix and failing to
2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
3 Davis v. Passman, 442 U.S. 228 (1979).
4 Carlson v. Green, 446 U.S. 14 (1980).
provide him with safe drinking water. Plaintiff’s Eighth Amendment conditions of
confinement claim is distinguishable from Bivens, supra n. 2, which involved a
Fourth Amendment claim of unreasonable search and seizure. Likewise,
Plaintiff’s claim is distinguishable from Davis, supra n. 3, which involved a Fifth
Amendment discrimination claim. Furthermore, “a claim may arise in a new
context even if it is based on the same constitutional provision as a claim in a case
in which a damages remedy was previously recognized.” Hernandez v. Mesa, 589
U.S. 93, 103 (2020). The Supreme Court implied a damages remedy for an Eighth
Amendment claim in Carlson, where the plaintiff alleged prison officials failed to
provide emergency medical treatment to an inmate who had chronic asthma,
causing the inmate’s death. The facts in Carlson bear little relation to Plaintiff’s
allegations concerning the unsafe drinking water at FCI Fort Dix causing his
COVID-19 vaccine to be ineffective. Therefore, Plaintiff’s claim arises in a new
Bivens context.
No further analysis is required because the Supreme Court in Egbert
instructed “‘uncertainty’ that results from extending Bivens to a new context
‘forecloses relief.’” Fisher v. Hollingsworth, No. 22-2846, 2024 WL 3820969, at *5
(3d Cir. Aug. 15, 2024) (quoting Egbert, 596 U.S. at 493). Said differently, “‘[t]he
newness of [a] ‘new context’ ... alone require[s] dismissal.’” Id. (quoting Egbert,
596 U.S. at 493) (citations omitted in Fisher)). Moreover, “an administrative
grievance procedure is an alternative remedy that forecloses a Bivens action.” Id. at
4 (quoting Egbert, 596 U.S. at 497-98). Petitioner has availed himself of the BOP’s
administrative remedy program. (Comp. ¶ VII(E), Dkt. No. 1.) Finally, in Kalu,
the Third Circuit declined to imply a Bivens cause of action to a prisoner’s
conditions of confinement claim because the Eighth Amendment claim was “far
broader in scope than that in Carlson.” Kalu v. Spaulding, No. 23-1103, 2024 WL
3884268, at *14 (3d Cir. Aug. 21, 2024). Here, providing safe drinking water for
inmates presents a claim far broader in scope than providing emergency treatment
for a single inmate having an asthma attack, as in Carlson. For all these reasons,
the Court will decline to imply a Bivens cause of action in this new Bivens context.
It is therefore, unnecessary to address the Individual Defendants’ alternative claim
for qualified immunity.
III. CONCLUSION
The Court will grant the Individual Defendants’ motion to dismiss Plaintiff’s
Bivens claim.
An appropriate Order follows.
Date: August 28, 2024 s/Reneé Marie Bumb
Chief United States District Judge
USDC, District of New Jersey