GEDEON v. THE ATTORNEY GENERAL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PASCAL GEDEON, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 24-CV-4277

:

THE ATTORNEY GENERAL, et al., :

Defendants. :

MEMORANDUM

GALLAGHER, J. SEPTEMBER 17, 2024

Pascal Gedeon, a pretrial detainee at FDC Philadelphia, filed this action asserting

violations of his constitutional rights. Named as Defendants are the Attorney General, the

United States, the United States Marshal Service,1 FDC Philadelphia, Unknown Director of the

U.S. Marshals, Unknown U.S. Marshal Deputy, and the Warden of FDC Philadelphia. Gedeon

also seeks leave to proceed in forma pauperis. For the following reasons, the Court will grant

Gedeon leave to proceed in forma pauperis and dismiss the case.

I. FACTUAL ALLEGATIONS2

Gedeon alleges that unknown U.S. Marshals deprived him of sanitary conditions and

access to adequate clothing during his incarceration. (Compl. at 2.) Specifically, he asserts that

while detained at FDC Philadelphia he has been placed in the custody of the United States

1 Gedeon names “U.S. Marshals” and “The U.S. Marshals” in his list of Defendants.

(Compl. at 1.) The Court understands him to name the United States Marshal Service as a

Defendant.

2 Unless otherwise stated, the factual allegations set forth in this Memorandum are taken

from Gedeon’s Complaint. (ECF No. 1). The Court adopts the sequential pagination assigned to

the Complaint by the CM/ECF docketing system.

Marshal Service for court appearances in his criminal case before this Court more than fifteen

times and “every time the U.S. Marshals had not made soap available for him to wash his

hands.” (Id.) He has “had no choice but to eat with his hands without washing them, after

defecating” causing him to experience stomachaches, diarrhea, and vomiting. (Id.) During these

occasions, he has also had to “wear a jumper from 7:30 am to 4:00 pm.” (Id. at 3.) He

complains that FDC Philadelphia has poor ventilation and the jumper has caused him to overheat

and sweat excessively during the summer months. (Id.) It also causes him to experience body

odor even if he takes showers daily and uses deodorant. (Id.) Gedeon claims that he is heat

sensitive and has to stay in his cell to avoid wearing the jumper and avoid disciplinary action.

(Id.) He alleges that detainees are allowed to receive three jumpers and “from day one, the first

jumper smells sweaty.” (Id.) He asserts that the “policy” is capricious since there is no

requirement that he wear a jumper on Saturday or Sunday. (Id. at 3-4.) Gedeon also asserts that

he has anxiety because he stays mostly alone in his cell to remain cool. (Id. at 4.) He wants to

be able to wear clothing that will allow him to stay cool when it is hot. (Id.) He also seeks $1

billion. (Id. at 1.)

II. STANDARD OF REVIEW

The Court grants Gedeon leave to proceed in forma pauperis. Accordingly, 28 U.S.C. §

1915(e)(2)(B)(ii) requires the Court to dismiss the Complaint if it fails to state a claim. Whether

a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard

applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher

v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether

the complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted); Talley v.

Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021). “At this early stage of the litigation,’ ‘[the Court

will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all reasonable inferences

in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally construed, . . .

contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12 F.4th 366,

374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015))

abrogation on other grounds recognized by Fisher v. Hollingsworth, ___ F. 4th ___, 2024 WL

3820969 (3d Cir. Aug. 15, 2024). Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678.

As Gedeon is proceeding pro se, the Court construes his allegations liberally. Vogt v. Wetzel, 8

F.4th 182, 185 (3d Cir. 2021) (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d

Cir. 2013)).

III. DISCUSSION

A. Claims for Money Damages

Gedeon asserts constitutional claims for money damages and seeks to present them in

accordance with Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388, 392 (1971), which created the source for a limited damages remedy for certain claims

against federal officials. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (stating that the

“purpose of Bivens is to deter individual federal officers from committing constitutional

violations” by subjecting them to personal liability). Since Gedeon is a federal pretrial detainee,

his allegations about the conditions of his confinement are properly understood as raising Fifth

Amendment due process claims. See Bistrian v. Levi, 912 F.3d 79, 91 (3d Cir. 2018) (“Bistrian’s

claim [ ] arises under the Fifth Amendment, not the Eighth Amendment, because he was a

pretrial detainee . . . .”) abrogation on other grounds recognized by Fisher, 2024 WL 3820969.

However, the availability of Bivens as a cause of action is limited, and the United States

Supreme Court “has plainly counseled against creating new Bivens causes of action.”

Vanderklok v. United States, 868 F.3d 189, 199 n.8 (3d Cir. 2017); see also Hernandez v. Mesa,

589 U.S. 93, 101 (2020) (stating that the “expansion of Bivens is a disfavored judicial activity,”

that “it is doubtful” that the outcome of Bivens would be the same if it were decided today, and

that “for almost 40 years, [the Supreme Court] ha[s] consistently rebuffed requests to add to the

claims allowed under Bivens.” (internal quotations marks and citations omitted)). Since Bivens

was decided in 1971, the Supreme Court “has repeatedly refused to extend Bivens actions

beyond the specific clauses of the specific amendments [of the Constitution] for which a cause of

action has already been implied, or even to other classes of defendants facing liability under

those same clauses.” Vanderklok, 868 F.3d at 200. The Supreme Court has recognized an

implied private action against federal officials in only three cases: (1) Bivens itself – a claim

under the Fourth Amendment against FBI agents for handcuffing a man in his own home without

a warrant, id. 403 U.S. at 389; (2) a claim under the Fifth Amendment against a Congressman for

firing his female secretary, Davis v. Passman, 442 U.S. 228 (1979); and, (3) a claim under the

Eighth Amendment against prison officials for failure to treat an inmate’s asthma, Carlson v.

Green, 446 U.S. 14 (1980).

Because expanding Bivens is “a ‘disfavored’ judicial activity,” see Ziglar v. Abbasi, 582

U.S. 120, 135 (2017), a “rigorous inquiry . . . must be undertaken before implying a Bivens cause

of action in a new context or against a new category of defendants.” Vanderklok, 868 F.3d at

200. The “rigorous inquiry” has two steps. A court must first determine whether the case

presents a “new Bivens context.” Abbasi, 582 U.S. at 139-40. “If the case is different in a

meaningful way from previous Bivens cases decided by [the Supreme] Court, then the context is

new.” Id. “Differing in a ‘meaningful way,’ in the very least, means ‘an extension’ of the

Bivens remedy, even if just a ‘modest extension.’” Jacobs v. Alam, 915 F.3d 1028, 1037 (6th

Cir. 2019) (quoting Abbasi, 582 U.S. at 147 (“[E]ven a modest extension is still an extension.”));

see also Hernandez, 589 U.S. 93, 102 (“[O]ur understanding of a ‘new context’ is broad.”

(citation omitted)). The Supreme Court noted that meaningful differences may include:

[T]he rank of the officers involved; the constitutional right at issue; the generality

or specificity of the official action; the extent of judicial guidance as to how an

officer should respond to the problem or emergency to be confronted; the

statutory or other legal mandate under which the officer was operating; the risk of

disruptive intrusion by the Judiciary into the functioning of other branches; or the

presence of potential special factors that previous Bivens cases did not consider.

Abbasi, 582 U.S. at 139-40.

In a recent decision, the United States Court of Appeals for the Third Circuit has

abrogated earlier decisions recognizing that its own extensions of Bivens were no longer tenable

given recent Supreme Court decisions. See Fisher, 2024 WL 3820969, at *5 (holding that the

Supreme Court decision in Egbert v. Boule, 596 U.S. 482 (2022) “seriously undermines the

rationale of Bistrian and Shorter [v. United States, 12 F.4th 366, 374 (3d Cir. 2021)]). In another

recent decision, the Third Circuit expressly refused to extend Bivens to Eighth Amendment

conditions of confinement claims brought by federally convicted prisoners. Kalu v. Spaulding,

___ F. 4th ___, 2024 WL 3884268, at *16 (3d Cir. Aug. 21, 2024).

Under the first step of the inquiry, it is clear that Gedeon’s claims are meaningfully

different from the claims recognized by the Supreme Court, and thus represent an attempt to

extend Bivens to a new context. While his allegations are properly understood as asserting

conditions of confinement claims under the Fifth Amendment, the Supreme Court has never

recognized such a claim. The only Fifth Amendment claim permitted to proceed was the claim

in Davis involving employment discrimination by a congressman. 442 U.S. 228. As recognized

in Kalu, 2024 WL 3884268, at *16, the Supreme Court has also never sanctioned a conditions of

confinement claim under the Eighth Amendment. It has also never recognized a non-medically

based conditions of confinement clam brought against the Attorney General, a U.S. Marshal, or

the warden of a federal detention facility. Cf, Henry v. Essex Cnty, No. 23-1987 (3d Cir. Aug.

29, 2014) (holding that a claim against a United States Marshal based on a post-arrest failure to

examine the plaintiff’s claims of innocence or present her to a magistrate alleged a previously

unrecognized Bivens context). Gedeon’s claims therefore present both a new and unrecognized

constitutional source for his money damages claims, as well as a new and unrecognized set of

Defendants. Hence, Gedeon’s claim as a pretrial detainee is an extension to a new Bivens

context.

Because this case presents a new Bivens context, the Court must “turn to the second step

of Abbasi and ask whether any ‘special factors counsel[ ] hesitation’ in permitting the

extension.” Bistrian, 912 F.3d at 90 (quoting Abbasi, 582 U.S. at 136) (alteration in original).

Central to the special factors analysis are “separation-of-powers principles” under which the

provision of a new damages remedy should often be committed to Congress. Abbasi, 582 U.S. at

134-35; Hernandez, 589 U.S. at 102. Among the special factors that courts have relied upon are

“the existence of an alternative remedial structure,” which “may by itself ‘limit the power of the

Judiciary to infer a new Bivens cause of action.’” Bistrian, 912 F.3d at 90 (quoting Abbasi, 582

U.S. at 137). Other special factors may include “the potential cost to the government of

recognizing a private cause of action, both financially and administratively; whether the judiciary

is well suited to weigh those costs; the necessity to deter future violations; . . . whether a claim

addresses individual conduct or a broader policy question; [and] whether litigation would intrude

on the function of other branches of government. . . .” Bistrian, 912 F.3d at 90. If there are

special factors counseling hesitation, “a Bivens remedy will not be available.” Abbasi, 582 U.S.

at 136. The Supreme Court has made clear that lower courts must exercise caution and restraint

before permitting claims that present even a modest extension of Bivens.

Gedeon does not present a situation where an extension of Bivens is warranted. The

special factors present here clearly counsel against extending Bivens to cover a Fifth Amendment

conditions of confinement claim brought by a pretrial detainee against these type of defendants.

“Any special factor – even one – suffices to foreclose a new Bivens cause of action. If there is a

single reason to pause, then we may not recognize a Bivens remedy.” Fisher, 2024 WL

3820969, at *6 (footnote omitted). Just as in Fisher, the “quintessential special factor is also

present” here, namely the Bureau of Prison’s Administrative Remedy Program applicable to

FDC Philadelphia, which is available for Gedeon to use to seek redress of his complaints about

wearing a prison jumper while in the facility. See 28 C.F.R. § 542.10(a). As noted in Fisher,

That Program “allow[s] an inmate to seek formal review of an issue relating to

any aspect of his/her own confinement.” Although the [Program] does not

include a money damages remedy, inmates may file an administrative grievance

with the BOP. . . . An alternative remedy need not be “as effective as an

individual damages remedy” to foreclose a Bivens extension. “So long as

Congress or the Executive has created a remedial process that it finds sufficient to

secure an adequate level of deterrence, the courts cannot second-guess that

calibration by superimposing a Bivens remedy.”

Fisher, at *6 (footnotes and internal citations omitted); see also Kalu, 2024 WL 3884268, at *19

(“The BOP’s ARP is an ‘administrative review mechanism[ ]’ established by the political

branches that ‘foreclose[s] the need to fashion a new, judicially crafted cause of action.’”

(quoting Malesko, 534 U.S. at 68); Mack v. Yost, 968 F.3d 311, 321 (3d Cir. 2020) (availability

of redress through administrative prison remedy “offers a convincing reason . . . to refrain from

creating a new damages remedy against federal prison officials”). The risk of judicial

interference with the functioning of another branch, see Abbasi, 582 U.S. at 140, also presents a

special factor why no Bivens damages remedy should be recognized, particularly with regard to

the United States Marshal Service and hand washing and eating, since Gedeon’s claims would

impact its operations in securing detainees and transporting them between FDC Philadelphia and

secured areas of the United States Courthouse. Gedeon’s claim for money damages, based on

his having to wear the same clothing as the other inmates and detainees at FDC Philadelphia and

being unable to wash his hands as he might like, presents obvious issues of interference with the

internal policies, rules, and functioning of the Bureau of Prisons and the Marshal Service, and

would likely entail financial and administrative costs to the government. Accordingly, his

Bivens claims for money damages are not plausible and will be dismissed.3

B. Claims for Injunctive Relief

Gedeon also appears to seek injunctive relief in the form of being permitted to wear

clothing that will allow him to stay cool when it is hot. Whatever the source, this claim is also

not plausible. As noted, Gedeon has not alleged any personal involvement of the Attorney

General, the Unknown Director of the U.S. Marshal Service, or the Warden of FDC

Philadelphia. He also does not allege that the Unknown U.S. Marshal Deputy was personally

involved in requiring him to wear jumpers. Even if he had named an appropriate Defendant, the

3 The money damages claims suffer from other defects as well. For example, Gedeon’s

claims against the United States, the United States Marshal Service, and FDC Philadelphia, an

agency of the Bureau of Prisons, are barred by sovereign immunity. See Malesko, 534 U.S.at 72;

F.D.I.C. v. Meyer, 510 U.S. 471, 486 n. 11 (1994); Jaffee v. United States, 592 F.2d 712, 717 (3d

Cir.1979). Also, where a Bivens remedy exists, a plaintiff must allege the personal involvement

of each defendant to state a claim. See Iqbal, 556 U.S. at 676 (“Because vicarious liability is

inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.”).

Gedeon has not explain how the Attorney General, the Unknown Director of the U.S. Marshal

Service, or the Warden of FDC Philadelphia were personally involved in a denial of his

constitutional rights.

claim cannot proceed. To determine whether prison officials have violated a detainee’s rights,4

“we apply a two-prong test: (1) the deprivation must be ‘objectively, sufficiently serious; a

prison official’s act or omission must result in the denial of the minimal civilized measure of

life’s necessities’; and (2) the prison official must have been ‘deliberately indifferent to inmate

health or safety.’” Porter v. Pennsylvania Dep’t of Corr., 974 F.3d 431, 441 (3d Cir. 2020)

(quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994) (alterations omitted)). Such necessities

include food, clothing, shelter, medical care, and reasonable safety. Tillman v. Lebanon Cnty.

Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000). “To violate the Eighth Amendment, conditions

of confinement must be dangerous, intolerable or shockingly substandard.” Riley v. Jeffes, 777

F.2d 143, 147 (3d Cir. 1985); Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 757 (3d

Cir. 1979). A prison official is not deliberately indifferent “unless the official knows of and

disregards an excessive risk to inmate health or safety; the official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.” Farmer, 511 U.S. at 837. Gedeon’s allegations about being

required to wear a jumper during the heat of summer months does not rise to the level of an

objectively serious deprivation, particularly since he concedes that he receives multiple changes

of clothing and he has access to deodorant and can shower regularly to maintain his hygiene.

III. CONCLUSION

For the reasons stated, the Court will grant Gedeon leave to proceed in forma pauperis

and dismiss his Complaint on statutory screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

4 Cases applying the Eighth Amendment standard to conditions of confinement claims

brought by convicted prisoners are also applicable to similar claims brought by detainees under

the Fifth Amendment. Bistrian, 912 F.3d at 91 ( “[T]he Fifth Amendment provides the same, if

not more, protection for pretrial detainees than the Eighth Amendment does for imprisoned

convicts.”).

Because it appears that any attempt to amend his claims would prove futile, the dismissal will be

with prejudice. Grayson v. Mayview State Hosp., 293 F.3d 103, 110 (3d Cir. 2002) (stating that

district courts should dismiss complaints under § 1915(e) with leave to amend “unless

amendment would be inequitable or futile”).

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER, J.