The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL D. LYNCH, : CIVIL ACTION NO. 1:23-CV-1167
:
Plaintiff : (Judge Conner)
:
v. :
:
WARDEN THOMPSON, et al., :
:
Defendants :
MEMORANDUM
This is a prisoner civil rights case filed pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The case is
presently before the court on defendants’ motion to dismiss, or, alternatively, for
summary judgment. After the motion was filed, our court of appeals issued a
precedential decision in Fisher v. Hollingsworth, __ F.4th __, No. 22-2846, 2024 WL
3820969 (3d Cir. Aug. 15, 2024), which acknowledges that the Supreme Court’s
decision in Egbert v. Boule, 596 U.S. 482 (2022), abrogates earlier circuit precedent
allowing Bivens claims for defendants’ failure to prevent inmate-on-inmate
violence. Fisher, 2024 WL 3820969, at *7. Because Lynch’s complaint no longer
states a viable Bivens claim under Fisher, the court will dismiss his failure to
protect, excessive force, and due process claims with prejudice and dismiss his
remaining claim for denial of medical care against defendant Siddall without
prejudice.
I. Procedural History
Plaintiff, Michael D. Lynch, is currently incarcerated in Big Spring Federal
Correctional Institution in Big Spring, Texas, but was incarcerated in Allenwood
Low Security Correctional Institution (“LSCI-Allenwood”) in Allenwood,
Pennsylvania at all relevant times. He filed his complaint on July 10, 2023, and the
court received and docketed it on July 13, 2023. (Doc. 1).
According to the complaint, Lynch called his friend’s mother on the
telephone on March 14, 2022, to inform her that her son had been rushed to the
hospital because of a medical emergency. (Id. at 8).1 Later that day, at
approximately 12:45 p.m., correctional officers at LSCI-Allenwood called Lynch into
a lieutenant’s office and “interrogated” him about the phone call. (Id.) Officials
then authored an incident report about the incident and transferred Lynch to the
special housing unit (“SHU”). (Id.)
When Lynch arrived in the SHU, defendant Brown, a correctional officer in
the prison, allegedly screamed at him, “who the fuck do you think you are, making a
phone call like that. Do you know who Robert Miller was?” (Id.) Brown then
purportedly told Lynch that Miller was a former coworker of Brown’s in the prison
who was “ambushed” and killed while escorting a prisoner in the prison. (Id.)
Following the interaction with Brown, defendant Sierp, another correctional
officer in the prison, allegedly placed Lynch in a cell with an inmate named
1 The court cites the complaint using the page numbers that correspond with
the court’s electronic docket.
Williams. (Id.) Williams allegedly stated, “I don’t want no white ChoMo . . . in my
cell.” (Id.) The complaint notes that “ChoMo” is a slang term for “child molester.”
Id.) Sierp purportedly smiled at Williams’s comment and told Lynch, “good luck
being in that cell.” (Id.) When Lynch walked into the cell, Williams allegedly
shoved him into the corner of the cell and told him that any food he received “was
his.” (Id. at 9). Williams proceeded to take Lynch’s meals away from him for the
next week. (Id.)
On March 20, 2022, Williams allegedly told Lynch that he either had to leave
the cell or fight him. (Id.) Lynch told defendant Anthony, a correctional officer in
the prison, that he believed he was in danger. (Id.) Anthony purportedly
responded, “too bad, you’re not being moved.” (Id.) Lynch requested to speak with
the SHU lieutenant, but his request was denied. (Id.)
At 10:00 a.m. that day, Williams allegedly assaulted Lynch, repeatedly
punching him in the right side of his head and body and causing his head to hit the
steel door frame of the cell. (Id.) Lynch allegedly suffered injuries and bleeding to
his head. (Id.) Lynch told Sierp and Greene that he needed medical attention, but
they allegedly ignored him. (Id.) About an hour after the incident, Lynch again told
Greene that he needed help. (Id.) Greene then called for backup officers and told
the other officers that a “ChoMo had been assaulted.” (Id.) The officers removed
Lynch from the cell and took him to a strip cage where the SHU lieutenant
photographed his injuries, and a paramedic gave him medical treatment. (Id.)
Lynch was then placed in a different cell without a cellmate. (Id. at 10).
On April 14, 2022, defendants Brown and Sierp placed another inmate,
Auther, in the cell with Lynch. (Id.) Both Lynch and Auther were handcuffed as
the officers moved Auther into the cell, but Auther allegedly shoved Lynch into the
wall and began to yell and scream. (Id.) Auther then purportedly told the officers
that either he or Lynch needed to be moved out of the cell or they were going to
“have problems.” (Id.) Greene allegedly responded, “you both are going to live
together until you can no longer live together.” (Id.)
Immediately after the officers left the cell, Auther began covering up the
window of the cell with envelopes to block the officers’ view inside the cell. (Id.)
Auther then “yell[ed] and berate[d]” Lynch as Lynch “c[ower]ed in the corner.”
(Id.) Auther demanded to speak with the SHU lieutenant, at which point
defendants Sierp and Brown came to the cell and told Lynch and Auther to remove
the envelopes from the window or he would pepper spray them. (Id.) Lynch
purportedly asked Sierp not to do so, noting that he has chronic obstructive
pulmonary disease and asthma. (Id.) Brown allegedly responded, “that’s the
ma[g]ic words,” opened the door, and pepper sprayed them. (Id. at 10-11). The
officers removed Lynch from the cell and placed him on suicide watch. (Id. at 11).
The SHU lieutenant, defendant Stover, questioned Lynch about the incident and
assured him that he would be removed from suicide watch the following day. (Id.)
Defendant Fry, another lieutenant in the prison, escorted Lynch back to the
SHU and again placed him in the cell with Auther. (Id.) Upon arriving in the cell,
Lynch had a panic attack, which caused chest pain. (Id.) Fry placed him back on
suicide watch and escorted him away from the cell. (Id.) While he escorted Lynch,
Fry purportedly stated that he “could not wait to get home and tell his wife this
story because she hates ChoMos just as much as me.” (Id. (internal commas and
apostrophes deleted)). Fry then allegedly told Lynch, “When you return to the SHU
on Monday, I’m going to make you my bitch.” (Id. (internal comma deleted)).
On April 15, 2022, Lynch received an incident report, which stated that
Lynch had attempted suicide by hanging on April 14, 2022, and that Brown had
pepper sprayed Lynch to subdue him. (Id.)
The complaint alleges that Lynch told defendant Siddall, a psychologist in
the prison, about his “situation” and “assault” but that Siddall refused to help him.
(Id.) The complaint asserts that Siddall had the authority to request safe housing
for Lynch but that she refused to do so. (Id.) The complaint further states that
defendant Thompson, the warden of LSCI-Allenwood, and defendant Kleinfelter, a
captain in the prison, ignored his pleas for help. (Id. at 13). Thompson purportedly
told Lynch, “[Y]ou’ll pack out soon and you can be someone else’s problem,” while
Kleinfelter allegedly stated, “I don’t give a fuck; you’re not my problem.” (Id. at 14).
The complaint names as defendants Thompson, Sierp, Brown, Fry, Siddal,
Kleinfelter, Greene, Anthony, Stover, and Hartman, who is identified as an “S.I.S.”
in the prison. (Id. at 1-6). The complaint asserts that the defendants violated
Lynch’s civil rights by failing to protect him from the assault by Williams, that
Brown violated his civil rights by pepper spraying him, that Sierp and Brown
violated his right to due process, and that Siddall violated his civil rights by failing
“to provide follow-up care.” (Id. at 15-16).
On December 22, 2023, defendants filed a motion to dismiss the complaint or,
alternatively, for summary judgment. (Doc. 13). On July 29, 2024, the court issued
an order stating that the motion would be treated as a motion for summary
judgment on the issue of whether Lynch existed administrative remedies. (Doc. 30).
The court additionally announced its intention to act as the finder of fact and
resolve any disputed issues of material fact on the issue of exhaustion. (Id.)
II. Legal Standards
A. Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.
Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable
reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,
Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts
contained in the complaint, the court may also consider “exhibits attached to the
complaint, matters of public record, [and] undisputedly authentic documents if the
complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside, 578
F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly, 550
U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that allow[]
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Courts must liberally construe complaints brought by pro se litigants. Sause
v. Bauer, 585 U.S. 957, 960 (2018). Pro se complaints, “however inartfully pleaded,
must be held to less stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
B. Motion for Summary Judgment
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. Fed. R. Civ. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This
evidence must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-
57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89
(1986). Only if this threshold is met may the cause of action proceed. See Pappas,
331 F. Supp. 2d at 315.
III. Discussion
A. Bivens Claims
Defendants’ motion seeks dismissal or summary judgment based on failure to
exhaust administrative remedies and several other arguments. Because Fisher
calls into the question the viability of Lynch’s Bivens claims, however, the court will
first consider whether his Bivens claims may proceed because that issue “logically
precedes” defendants’ other arguments. Fisher, 2024 WL 3820969, at *3.
In Bivens, the Supreme Court recognized an implied damages remedy for a
Fourth Amendment violation committed by federal officials, whose conduct was not
encompassed by the statutory remedy available against state actors under 42 U.S.C.
§ 1983. See Bivens, 403 U.S. at 397. In over 50 years since Bivens was decided in
June 1971, the Court has extended Bivens only twice: first, to a claim for sex
discrimination under the Fifth Amendment’s Due Process Clause, see Davis v.
Passman, 442 U.S. 228, 248-49 (1979), and later to a claim for inadequate prison
medical care under the Cruel and Unusual Punishment Clause of the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14, 18-23 (1980).
The Supreme Court’s decision in Ziglar v. Abbasi, 582 U.S. 120 (2017) sets
forth a two-part test for determining whether a Bivens claim may proceed. First,
courts must ascertain whether the case presents a “new context.” Id. at 138. If the
case differs “in a meaningful way” from previous Bivens cases decided by the
Supreme Court, “then the context is new.” Id. at 139. And the meaning of “new
context” is “broad.” Hernandez v. Mesa, 589 U.S. 93, 102 (2020). Second, if the case
presents a new context, the court must then consider whether “special factors”
counsel against extending the Bivens remedy. Id. This inquiry asks whether “the
Judiciary is at least arguably less equipped than Congress to weigh the costs and
benefits of allowing a damages action to proceed.” Egbert, 596 U.S. at 492 (quoting
Ziglar, 582 U.S. at 136). If a court concludes that “even a single reason” exists to
pause “before applying Bivens in a new context,” then special factors counseling
hesitation exist and a Bivens remedy does not lie. Id. (quoting Hernandez, 589 U.S.
at 102) (internal quotation marks omitted).
The Court’s decision in Egbert reemphasizes that the continued refusal to
“imply a similar cause of action for other alleged constitutional violations” is
intentional and that recognizing a new Bivens cause of action is “a disfavored
judicial activity.” Egbert, 596 U.S. at 491 (quoting Ziglar, 582 U.S. at 135). Egbert
clarifies that the two-step process laid out in Ziglar “often resolve[s] to a single
question: whether there is any reason to think that Congress might be better
equipped to create a damages remedy.” Id. at 483. In other words: if there is “any
rational reason (even one) to think that Congress is better suited” to determine the
propriety of a cause of action, then a Bivens action cannot proceed. Id. at 496. The
court must broadly inquire whether “there is any reason to think that ‘judicial
intrusion’ into a given field might be ‘harmful’ or ‘inappropriate’”—and if the
answer is “yes,” or even potentially yes, the plaintiff cannot recover under Bivens.
Id. (quoting United States v. Stanley, 483 U.S. 669, 681 (1987)). Mindful of Egbert’s
emphasis on the presence of special factors, we proceed with Ziglar’s two-step
analysis.
1. New Context
We liberally construe Lynch’s complaint as asserting four Bivens claims: (1)
that defendants were deliberately indifferent to the risk of harm to Lynch when
they failed to protect him from the assault by Williams; (2) that defendant Brown
used excessive force when he pepper-sprayed Lynch; (3) that defendant Siddall
violated the Eighth Amendment by failing “to provide follow-up care”; and (4) that
defendants Sierp and Brown violated Lynch’s due process rights by falsifying
misconduct charges against him. (See Doc. 1 at 15-16).
To determine whether a Bivens claim presents a new context, a court must
determine whether it “is different in a meaningful way from previous Bivens cases
decided” by the Supreme Court. Ziglar, 582 U.S. at 139. Although Ziglar,
Hernandez, and Egbert only list Bivens, Davis, and Carlson as cases where the
Court has recognized a Bivens claim, until very recently our court of appeals
recognized that plaintiffs could also file Bivens claims alleging that prison officials
were deliberately indifferent to the risk that they would be assaulted by other
inmates.
The primary decision in this line of cases is Bistrian v. Levi, 912 F.3d 79 (3d
Cir. 2018), abrogated by Egbert, 596 U.S. at 492, as recognized in Fisher, 2024 WL
3820969, at *4-7, which was decided after the Supreme Court’s decision in Ziglar,
but before the Court’s subsequent decisions in Hernandez and Egbert. In Bistrian,
our court of appeals held that the Supreme Court recognized a viable Bivens claim
for alleged failure to protect a plaintiff from inmate-on-inmate violence in Farmer v.
Brennan, 511 U.S. 825 (1994). Bistrian acknowledged that Farmer “did not
explicitly state that it was recognizing a Bivens claim,” but the court held that
Farmer’s extensive discussion of the deliberate indifference standard in the context
of failure to protect a plaintiff from assault constituted an implicit recognition of a
Bivens claim. Bistrian, 912 F.3d at 90-91. Although the Bistrian court further noted
that Ziglar only listed Bivens, Davis, and Carlson as the Supreme Court’s past
Bivens cases, the court found that it was not appropriate to conclude that Ziglar
overruled Farmer “by implication.” Id. at 91. “It may be,” the court continued, that
the Supreme Court “simply viewed the failure-to-protect claim as not distinct from
the Eighth Amendment deliberate indifference claim in the medical context” that
was previously recognized in Carlson. Id. Our court of appeals reiterated the
continued viability of this type of Bivens claim in Shorter v. United States, 12 F.4th
366, 372-73 (3d Cir. 2021), abrogated by Egbert, 596 U.S. at 492, as recognized in
Fisher, 2024 WL 3820969, at *4-7, which was decided between the Supreme Court’s
Hernandez and Egbert decisions.
The Bistrian line of cases recognizing a Bivens cause of action for failure to
protect a plaintiff from inmate-on-inmate violence remained good law in this circuit
until this month, when our court of appeals issued its decision in Fisher, 2024 WL
3820969, at *4-7. Fisher holds that the Supreme Court’s decision in Egbert
abrogates the contrary holdings in Bistrian and Shorter recognizing a Bivens claim
for failure to protect a plaintiff from inmate-on-inmate violence. Fisher, 2024 WL
3820969, at *5. “Egbert,” the Fisher court explains, “tightened the Ziglar test and,
in doing so, made a strong statement that lower courts should not extend Bivens
beyond the contexts recognized in Bivens, Davis, and Carlson.” Id. at *4. Egbert’s
“new articulation” of the new context step of the Ziglar test “unequivocally narrows
the universe of relevant cases to just three,” i.e., Bivens, Davis, and Carlson. Id.
Egbert additionally clarified that any cases after Bivens, Davis, and Carlson that
implicitly assume a Bivens remedy “might be available” are inapplicable to the
analysis, and, therefore, “Farmer is out.” Id. (quoting Egbert, 596 U.S. at 498). “To
sum up,” the court concludes, “we read Egbert to require the following: unless a
case is indistinguishable from Bivens, Davis, or Carlson, a damages remedy may be
created by Congress, but not by the courts. Because Bistrian and Shorter took a
more lenient approach than Egbert, we now recognize their abrogation.” Id. at *5.
Applying the Egbert test to the facts of the case, our court of appeals held that a
claim for deliberate indifference to a risk of assault by another inmate presents a
new context for Bivens. Id. at *5-6.
Fisher controls our analysis of Lynch’s claim that defendants failed to protect
him from an assault by Williams. Fisher holds that such a claim presents a new
context for Bivens and that Egbert abrogated the contrary holdings in Bistrian and
Shorter. Id. at *5-8. Hence, we conclude that this claim presents a new context for
Bivens liability.
Lynch’s claim that defendant Brown used excessive force in violation of the
Eighth Amendment likewise presents a new context for Bivens liability. As our
court of appeals recently noted, the Supreme Court “has not recognized an Eighth
Amendment [Bivens] claim arising from a correctional officer’s use of excessive
force against a prisoner.” Landis v. Moyer, No. 22-2241, 2024 WL 937070, at *2 (3d
Cir. Mar. 5, 2024) (nonprecedential);2 see also Alsop v. Fed. Bureau of Prisons, No.
22-1933, 2022 WL 16734497, at *3 (3d Cir. Nov. 7, 2022) (nonprecedential) (noting
that alleged use of force by correctional officers is “not a basis for relief under
Bivens”).
Lynch’s due process claim against Brown and Sierp also clearly presents a
new context for Bivens liability. The most closely analogous case of the Supreme
Court’s three Bivens cases is Davis, where the Supreme Court recognized the
viability of a Bivens claim alleging sex discrimination in violation of the Due
Process Clause. See Davis, 442 U.S. at 248-49. As multiple courts in this district
have recognized, claims that prison officials have violated a prisoner’s due process
2 The court acknowledges that nonprecedential decisions are not binding
upon federal district courts. Citations to nonprecedential decisions reflect that the
court has carefully considered and is persuaded by the panel’s ratio decidendi.
rights are meaningfully different from the due process claim recognized in Davis.
See, e.g., Louis-El v. Ebbert, 448 F. Supp. 3d 428, 439-40 (M.D. Pa. 2020) (Brann, J.);
Railey v. Ebbert, 407 F. Supp. 3d 510, 522-23 (M.D. Pa. 2019) (Rambo, J.).
Finally, defendants argue that Lynch’s claim that defendant Siddall failed “to
provide follow-up care” presents a new context for Bivens liability, (see Doc. 40 at
40-43), but because Lynch has not alleged any facts in support of the claim, the
court cannot conclude at this stage that the claim is meaningfully different from the
medical care claim recognized in Carlson. Rather, given the complete absence of
allegations in support of the claim, the court will dismiss it without prejudice for
failure to state a claim upon which relief may be granted.
2. Special Factors
Having concluded that Lynch’s failure to protect, excessive force, and due
process claims present new contexts for Bivens liability, we must determine
whether “there are any special factors that counsel hesitation” in extending Bivens.
Hernandez, 589 U.S. at 102 (internal quotation marks and alterations omitted)
(quoting Ziglar, 582 U.S. at 136). If a court “ha[s] reason to pause before applying
Bivens in a new context or to a new class of defendants,” then special factors
counseling hesitation exist. Id.
Our special factors analysis is again controlled by Fisher. In that case, our
court of appeals recognized that the BOP’s administrative remedy program is a
special factor barring extension of the Bivens remedy to new contexts. Fisher, 2024
WL 3820969, at *7.3 We accordingly hold that the administrative remedy program
bars this court from extending Bivens to the new contexts presented by Lynch’s
claims.
B. Amendment
Before dismissing a civil rights complaint for failure to state a claim upon
which relief may be granted, a district court must permit a curative amendment
unless the amendment would be inequitable or futile. Phillips, 515 F.3d at 245. We
will deny leave to amend as futile with respect to Lynch’s failure to protect,
excessive force, and due process claims because those claims fail as a matter of law,
but we will grant leave to amend with respect to Lynch’s claim that defendant
Siddall violated the Eighth Amendment by failing “to provide follow-up care”
because we cannot conclude that this claim fails as a matter of law at this stage of
litigation.
IV. Conclusion
We will grant defendants’ motion to dismiss, dismiss Lynch’s failure to
protect, excessive force, and due process claims with prejudice, dismiss the
deficient medical care claim against defendant Siddall without prejudice, and
3 Our court of appeals states that this holding “track[s] the Supreme Court’s
holding in Egbert that an agency’s grievance process is a special factor foreclosing
Bivens relief,” and therefore abrogates the contrary holding in Bistrian that the
BOP’s administrative remedy program is not an adequate alternative remedy for a
Bivens claim. See Fisher, 2024 WL 3820969, at *7.
terminate all defendants other than Siddall from the docket of this case. An
appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: August 22, 2024