Kornegay v. Lintner

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

RAYMOND KORNEGAY,

Plaintiff,

v. Civil Action No. 5:24-CV-137

Judge Bailey

ASS. WARDEN LINTER,

MR. H. BERRYMAN (Unit Manager),

MS. A. WELLS (Unit Case Manager),

Defendants.

REPORT AND RECOMMENDATION

I. Background

The plaintiff initiated this action on July 19, 2024, by filing a Complaint asserting

claims for violations of his constitutional rights pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). [Doc. 1]. He

paid the initial partial filing fee on September 17, 2024. [Doc. 14]. The plaintiff is currently

a federal prisoner incarcerated at Gilmer FCI, in Glenville, West Virginia, with a projected

release date of June 11, 2026. (See Federal Bureau of Prisons Inmate Locator,

www.bop.gov/inmateloc/). He claims that the Bureau of Prisons (“BOP”) has wrongfully

denied him earned time credits (“ETCs”) under the First Step Act (“FSA”), and further,

that he was retaliated against when he filed grievances through the BOP’s Administrative

Remedies Program (“ARP”). On October 11, 2024, plaintiff also filed a Motion for

Miscellaneous Relief, alleging improprieties and retaliation on the part of the Trust Officer

at FCI Gilmer regarding deductions from the plaintiff’s prisoner trust account, that are

being applied to pay the filing fee in this case. [Doc. 15]. This matter is assigned to the

Honorable John Preston Bailey, United States District Judge, and it is referred to the

undersigned United States Magistrate Judge for submission of proposed findings and a

recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons

that follow, the undersigned recommends the case be dismissed.

II. The Complaint

The Complaint alleges violations of the plaintiff’s Eighth and Fourteenth

Amendment rights. First, plaintiff alleges the “deprivation of a vested liberty interest under

the Fourteenth Amendment” in that he has not received earned time credits under the

FSA for classes and programming he says he has completed. [Doc. 1 at 7–8]. Second,

the plaintiff claims that the defendants have violated his Eighth Amendment rights “by

acts of retaliation” in response to his filing administrative grievances “against institutional

staff members.” [Id. at 8].1 Specifically, he alleges that when he told unit staff that his

rights had been violated, they “threated him with disciplinary action if he mentioned

anything about a violation of his constitutional rights again.” [Doc. 1 at 9]. He likewise

alleges intentional delays and mishandling of some grievance forms and that he was

denied access to administrative remedies. [Docs. 1 at 10, 1-1 at 1,10]. For relief, he asks

that the defendant BOP employees “be removed from their official duties,” that his

“custody scoring be corrected” to reflect his participation in work and educational

programming, and for defendants to pay damages in the amount of $25,000.00. [Id.

at 11].

1 While plaintiff’s retaliation allegations are framed as an Eighth Amendment claim, to the

extent he is alleging that he was impeded in accessing the Administrative Remedy

Program, such a claim is properly construed as a First Amendment claim. See, for

example, Earle v. Shreves, 990 F.3d 774 (4th Cir. 2021).

III. Standard of Review

Because the plaintiff is a prisoner seeking redress from a governmental entity or

employee, the Court must review the complaint to determine whether it is frivolous or

malicious. Pursuant to 28 U.S.C. § 1915A(b), a court is required to perform a judicial

review of certain suits brought by prisoners and must dismiss a case at any time if the

court determines that the complaint is frivolous, malicious, fails to state a claim upon

which relief can be granted, or seeks monetary relief against a defendant who is immune

from such relief.

A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke

v. Williams, 490 U.S. 319, 325 (1989). However, the court must read pro se allegations

in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520 (1972). A complaint which

fails to state a claim under Fed.R.Civ.P. 12(b)(6) is not automatically frivolous. See

Neitzke at 328. Frivolity dismissals should only be ordered when the legal theories are

“indisputably meritless,”2 or when the claims rely on factual allegations which are “clearly

baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). This includes claims in which

the plaintiff has little or no chance of success. See Estelle v. Gamble, 429 U.S. 97, 106

(1976).

The plaintiff is proceeding pro se and therefore the Court is required to liberally

construe his pleadings. Estelle, 429 U.S. at 106; Haines v. Kerner, 404 U.S. 519, 520–

1 (1972) (per curiam); Erikson v. Pardus, 551 U.S. 89, 94 (2007); Loe v. Armistead,

582 F.2d 1291 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978). While

pro se pleadings are held to a less stringent standard than those drafted by attorneys,

2 Id. at 327.

Haines, 404 U.S. at 520, even under this less stringent standard, a pro se complaint is

still subject to dismissal.

IV. Analysis

A. A petition for habeas corpus, rather than a Bivens action, is the proper

method for the plaintiff to challenge the BOP’s calculation of his earned

time credits and the computation of his sentence.

At the outset, the Court notes that since the plaintiff, in Count I, is challenging

the BOP’s calculation of his earned time credits, he is, in fact, challenging the manner in

which his sentence is being executed and the duration of his confinement. The law is well

settled in this respect, however, that a claim for credit against a sentence does not sound

in Bivens. See Preiser v. Rodriguez, 411 U.S. 475, 498-500 (1973). Instead of a civil

rights suit, the proper method for challenging the computation or execution of a federal

sentence is through a petition for habeas corpus under § 2241. Linsey v. Saad, No.

1:18-CV-41, 2019 WL 4601514, at *2 (N.D. W.Va. Sept. 23, 2019).

Likewise, a claim for credit against a sentence, pursuant to the provisions of the

First Step Act, also attacks the computation and execution of a prisoner’s sentence, and

accordingly must be brought as a § 2241 petition. See White v. Warden, Federal

Correctional Institution-Cumberland, 2023 WL 4867562, at *6 (D. Md. July 31, 2023)

(challenge to entitlement of ETCs under the First Step Act properly filed as a § 2241

petition) (internal citations omitted); Ben v. Janson, No. 6:23-CV-00466, 2023 WL

2603429, at *3 (D. S.C. Feb. 27, 2023), report and recommendation adopted, No. 6:23-

CV-0046, 2023 WL 2601941 (D. S.C. March 22, 2023) (“Because the petitioner

challenges the BOP’s calculation of his credits for completing educational programming

– due to the implementation of the FSA – this petition is properly brought as a § 2241

habeas petition.”) (internal citations omitted); Toussaint v. Knight, 2021 WL 2635887,

at *3 (D. S.C. June 4, 2021) report and recommendation adopted, 2021 WL 2635479 (D.

S.C. June 25, 2021) (same); Danmola v. Bureau of Prisons, 2024 WL 2138326, at *3

(W.D. Ok. Jan. 31, 2024), report and recommendation adopted, 2024 WL 1638622 (W.D.

Ok. April 16, 2024) (appropriate method of challenging the manner in which a sentence

is executed, including the calculation of time credits under the First Step Act, is through

a writ of habeas corpus pursuant to § 2241); U.S. v. Croft, 2023 WL 6457767, at *3 (D.

S.C. October 4, 2023) (proper method for challenging computation or execution of a

federal sentence, based on plaintiff’s claimed inability to earn FSA time credits, is through

a § 2241 habeas petition) (internal citations omitted).

The undersigned notes that since the time he initiated this civil rights action, the

plaintiff has, in fact, filed a § 2241 petition in this Court, 5:24-CV-199, in which he is

pursuing habeas relief for the claims alleged in Count I of this complaint regarding the

computation of earned time credits. Accordingly, based on the foregoing, the

undersigned finds that Count I of the complaint is subject to dismissal for failure to state

a claim upon which relief can be granted.

B. Plaintiff’s retaliation claim, as alleged in Count II, is not cognizable under

Bivens.

In Bivens, the Supreme Court first recognized an implied cause of action for money

damages under the Fourth Amendment against federal agents who allegedly entered the

plaintiff’s home without a warrant, handcuffed him in front of his family, conducted a

warrantless search, and threatened to arrest his entire family while arresting him for

narcotics violations. Bivens at 389. In the decade following Bivens, the Court twice more

recognized implied causes of action for constitutional violations by federal officials. In

Davis v. Passman, 442 U.S. 228 (1979), the Court held that the Due Process Clause of

the Fifth Amendment provided a damages remedy for a former congressional staffer’s

sex-discrimination claim. In Carlson v. Green, 446 U.S. 14 (1980), the Court held that

the Eighth Amendment provided a damages remedy for a federal prisoner’s inadequate-

care claim. Outside of these contexts, however, the Supreme Court has consistently

refused to extend Bivens to any new context, and over the past 42 years, it has declined

twelve (12) times to approve an implied damages remedy for other alleged constitutional

violations. See Mitchell v. Skinner, 2023 WL 11264898, at *1 (N.D. W.Va. Feb. 27,

2023) (collecting authority).

Most recently, the Court refused to recognize a Bivens-type remedy in Egbert v.

Boule, 596 U.S. 482 (2022). While not overruling Bivens, the Egbert decision

nonetheless further restricted the implied cause of action, and as the Fourth Circuit

declared, has “all but closed the door on Bivens remedies.” Dyer v. Smith, 56 F.4th 271,

273 (4th Cir. Dec. 29, 2022). In Egbert, the Court emphasized once again that

recognizing a Bivens cause of action is “a disfavored judicial activity.” Egbert at 491

(citing Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) and Hernández v. Mesa, 589 U.S. 93,

101 (2020)). The Court also discussed the well-established two-step inquiry which courts

are to use for determining whether a Bivens claim may proceed:

First, we ask whether the case presents “a new Bivens context” - i.e., is it

“meaningful[ly]” different from the three cases in which the Court has implied

a damages action. Second, if a claim arises in a new context, a Bivens

remedy is unavailable if 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.” If there is even

a single “reason to pause before applying Bivens in a new context,” a court

may not recognize a Bivens remedy.

Egbert at 492 (internal citations omitted). See Ziglar at 122; Hernández at 102 (internal

citations omitted).

This two-step test, however, was “significantly modified” by the Egbert court.

Mitchell at *3. The Court explained that although its previous cases “describe two steps,

these steps often revolve into a single question: whether there is any reason to think that

Congress might be better equipped to create a damages remedy.” Egbert at 492. In this

respect, “[e]ven a single sound reason to defer to Congress” is enough to require a court

to refrain from creating such a remedy.” Id. at 491–492. According to the Fourth Circuit,

this “conflation of the two steps,” means that “in Egbert,.. the Court recognized a

substantial overlap between the factors relevant to the two steps, often leading to an

analysis that addresses just the single question of whether there is any reason to think

that Congress is better equipped to create a damages remedy.” Jean v. Smallwood,

2022 WL 17969091, at *4 (W.D. Va. Dec. 27, 2022) (internal quotation marks omitted)

(citing Tate v. Harmon, 54 F.4th 839, 848 (internal citations omitted).

As this Court has observed, however, in cases decided by the Fourth Circuit since

Egbert, the Court has nonetheless continued to follow the “two-step new context test.”

Mitchell, at *4 (citing Tate v. Harmon, 54 F.4th 839 (4th Cir. 2022) and Dyer v. Smith,

56 F.4th 271 (4th Cir. 2022)). See also Mays v. Smith, 70 F.4th 198, 202 (4th Cir. June

6, 2022); Bulger v. Hurwitz, 64 F.4th 127, 138 (4th Cir. March 3, 2023). Accordingly,

this Court must determine whether the case now before it: (1) presents a new Bivens

context, which is meaningfully different from the three cases in which the Supreme Court

has implied a damages action; and (2) if the claim does arise in such a new context,

whether there are any special factors that counsel hesitation about granting the extension

of Bivens. Bulger at 137, quoting Hernandez at 102. Thus, the undersigned must first

consider whether the plaintiff’s case involves a “new context” for Bivens purposes.

(1) The plaintiff’s retaliation claim presents a new context for

purposes of Bivens

Turning to the first step for determining whether plaintiff’s Count II Bivens claim

can proceed, the Court must decide whether the proffered cause of action presents a

“new context” under Bivens in that it is “different in [any] meaningful way” from the three

prior cases in which the Court has provided a Bivens remedy. Ziglar at 139; Tun-Cos

v. Perrotte, 922 F.3d 514,522–23 (4th Cir. 2019). Clearly, in this case, the plaintiff’s

claim that defendants have violated his First Amendment rights by retaliating against him

for filing grievances is in no way similar to those of the Supreme Court’s Bivens trilogy,

and the “new context” inquiry is thus easily satisfied. Additionally, in this respect, the

undersigned notes that both the Supreme Court and the Fourth Circuit have ruled that a

prisoner’s First Amendment retaliation claim presents a new Bivens context. See Egbert

at 499 (“[T]here is no Bivens action for First Amendment retaliation.”); Dyer at 278

(agreeing with district court that a First Amendment retaliation claim arose in a new

context); Earle v. Shreves, at 779 (4th Cir. 2021) (an inmate’s First Amendment

retaliation claim presents a new Bivens context). This Court has likewise previously

determined that a prisoner’s First Amendment retaliation claim, where the plaintiff alleged

he was being threatened for filing grievances, presented a new context under Bivens.

See Milliron v. K. Brown, 2021 WL 6062061, at *6 (N.D. W.Va. December 1, 2021).

Accordingly, the undersigned finds that the plaintiff’s retaliation claim is a new context for

purposes of the two-step Bivens inquiry.

(2) Special factors counselling hesitation preclude the extension of

Bivens in this case

Having determined that this case presents a new context, the next inquiry for the

Court is “whether there are any special factors that counsel hesitation about granting the

extension of Bivens.” Tate at 844 (citing Hernandez at 102). In this regard, the Supreme

Court has further directed that the “special factors” inquiry must center on “separation-of-

powers principles” and “requires that a court ask whether judicial intrusion into a given

field is appropriate.” Bulger at 137 (citing Hernandez at 94 and Ziglar at 135). While the

Supreme Court has not provided a comprehensive list of special factors, lower courts are

instructed to “consider the risk of interfering with the authority of other branches” and to

determine “whether there are sound reasons to think Congress might doubt the efficacy

or necessity of a damages remedy,” as well as “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.” Tate at 845 (citing Hernandez at 102); Dyer

at 278–79 (quoting Ziglar at 136). If there is “reason to pause before applying Bivens in

a new context or to a new class of defendants,” the request to extend Bivens should be

rejected. Hernandez at 102.

Courts must also look at whether there is an alternative remedial structure available

in a case. Ziglar at 122. The Supreme Court has instructed that “a court may not fashion

a Bivens remedy if Congress has already provided, or has authorized the Executive to

provide, an ‘alternative remedial structure.’” Egbert at 493 (internal citations omitted).

When there is an alternative remedial structure in place, that fact alone, “like any special

factor, is reason enough to limit the power of the Judiciary to infer a new Bivens cause

of action.” Id. Furthermore, it is of no matter that the “existing remedies do not provide

complete relief.’” Id. (internal citations omitted).

Notable, for purposes of the present inquiry, is the fact that the Supreme Court has

ruled that Bivens relief is “unavailable” for federal prisoners who can, “among other

options, file grievances through an Administrative Remedies Program” (ARP) to pursue

their claims. Id. at 497 (citing Correctional Services Corp. v. Malesko, 534 U.S. 61, 74

(2001)). In this regard, the Supreme Court has long acknowledged that: “So long as the

plaintiff had an avenue for some redress, bedrock principles of separation of powers

foreclosed judicial imposition of a new substantive liability.” Malesko at 69 (internal

citations omitted). Moreover, as this Court recently observed with respect to Malesko:

“This holding alone would appear to bar any Bivens type action brought by a federal

prisoner.” Mitchell at *6.

The Fourth Circuit has also consistently ruled that “the existence of an alternative

remedial structure for prisoners, even if it is not as effective as a suit for damages, weighs

heavily against recognizing a new Bivens cause of action.” Nellson v. Doe, 2023 WL

3336689, at *5 (4th Cir. 2023) (quoting Bulger at 140–141); See also Tate at 847–48;

Earle v. Shreves, 990 F.3d 774,780 (4th Cir. 2021). Finally, this Court, as well, has

found that the alternative remedies available to a federal prisoner “strongly caution

against an expansion of Bivens into a new context.” Milliron at *7; See also Scates v.

Craddock, 2019 WL 6462846, at *8 (N.D. W.Va. July 26, 2019), report and

recommendation adopted, 2019 WL 4200862 (N.D. W.Va. Sept. 5, 2019) (“[M]any courts

have explicitly recognized that the BOP’s administrative remedy program is an alternative

process that precludes a Bivens remedy.”) (collecting authority).

In this case, the plaintiff’s complaint confirms that alternative remedies were

available to him, and that he could - and did - file grievances through the Bureau of

Prisons’ Administrative Remedy Program. In this regard, the undersigned is mindful of

the Fourth Circuit’s recent decision in Fields v. Federal Bureau of Prisons, et. al.,109

F.4th 264 (4th Cir. 2024), where a divided panel of the Court extended Bivens to a new

context, permitting a federal prisoner’s Eighth Amendment excessive force claim to

proceed against BOP officials. The Fields case, however, is clearly distinguishable from

the present one. The plaintiff in Fields claimed that following the alleged use of force

incidents, he attempted to use the BOP’s administrative remedy program, but that prison

officials refused to provide him with the necessary forms and that he thus was not able to

file any grievances regarding the facts of his complaint.3 Specifically, he alleged that the

defendants had denied him “the right to seek redress via the USP-Lee grievance

procedure.” [Id. at 18, 21].

While acknowledging that in the past it had declined to extend Bivens to cases

brought by federal prisoners, the Court explained that “it had done so on the theory that

inmates have access to alternative remedies.” Id. at 274 (emphasis added). The Court

found, however, that this reasoning “did not apply” to Fields, in that he “lacked access to

3 Taken from plaintiff’s civil docket available on PACER. See Fields v. Federal Bureau

of Prisons, 7:22-CV-21-EKD-JCH (W.D. Va. Jan. 9, 2022, [Doc. 1 at 1]. Philips v. Pitt

Cnty. Mem. Hosp., 572 F. 3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial

notice of public record); Colonial Penn. Ins. Co. v. Coll, 887 F.2d 1236 (4th Cir. 1989)

(“We note that ‘the most frequent use of judicial notice is in noticing the contents of court

records.”)

alternative remedies because prison officials deliberately thwarted his access to them.”

Id. Distinct from Bulger, where the inmate died before he had a chance to file a formal

grievance, the Court emphasized that “what is at issue here is not the ARP’s adequacy,

or whether Fields can obtain the remedy he seeks through the ARP. Rather the question

is whether the ARP is operational, such that it can provide any remedy to any prisoner at

all.” Id. While the ARP thus had the “capacity” to provide relief to Fields,” he alleged that

officers had “intentionally subverted” its operation, and that no alternative remedy was in

fact available to him, and the Court accordingly held that “the theoretical existence of

administrative remedies cannot bar his recourse to the judiciary to obtain a remedy.” Id

at 275. (emphasis added).

By contrast, the plaintiff in this case did, in fact, utilize the ARP to file grievances

concerning the facts related to this Complaint. [Doc. 1 at 4]. He filed at least one “Request

to Staff,” which he characterized as his “formal request” to have earned time credits

applied to his sentence. [Doc. 1-1 at 5]. He received a response, signed by the Warden,

informing him that his request had been “evaluated” and denied because his PATTERN

score was MEDIUM, he had been convicted of one or more institutional offenses, and his

public safety factor rating was “Greatest Severity.” [Doc. 1-1 at 9]. The Warden further

advised plaintiff that if he was not satisfied with the response, he could “commence an

appeal of this decision via the administrative remedy process” by filing a BP-9 within

twenty (20) days. [Id.]. Plaintiff also filed grievances at the facility, regional and central

office levels. [Doc. 1-1 at 2–4, 6–8, 11–13, 19–21]. His pleadings furthermore reflect that

he received at least one response from the BOP regional office, and one from the Central

Office. [Doc. 1-1 at 2, 11]. Thus, despite his general allegation he has “been constantly

denied access to any form of the administration remedies,” [Id. at 10, 18], it is apparent

that the ARP was not only available but was also used by this plaintiff. Accordingly, the

undersigned finds that the availability of alternative remedies to the plaintiff is a special

factor counseling hesitation which in and of itself precludes the extension of Bivens in

this case. See Egbert at 493.

The undersigned further finds that while the existence of alternative remedies alone

would be sufficient grounds to preclude the extension of Bivens in this case, there are

nonetheless, other special factors counseling hesitation here. In this regard, the Supreme

Court has directed that other factors to be considered in the special factors analysis

include “‘economic and governmental concerns,” along with “administrative costs,” and

the “impact on governmental operations systemwide.” Ziglar at 134, 136. As this Court

has further clarified, these special factors might encompass, among other considerations,

the burdens on both the government and its employees, as well as whether Congress

has previously enacted legislation in the area, indicating that the judiciary should refrain

from interfering. Milliron at *6 (citing Ziglar at 132–43). The Supreme Court has

furthermore expressly stated that “[u]nsurprisingly, Congress is ‘far more competent than

the Judiciary’ to weigh such policy considerations. And the Judiciary’s authority to do so

at all is, at best, uncertain.” Egbert at 491 (internal citations omitted). This Court has

furthermore recognized that the burdens on Government employees who are sued

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

particularly high in the prison setting:

The burdens on the government, the prison administration, and on the

individual employees, who must defend claims often filed without merit and

simply for harassment, are great. Specifically, being named in a frivolous

lawsuit subjecting the employee to personal liability may cause financial

problems for defendants and their families who then face difficulties

refinancing or taking out home loans or other credit due to being involved in

a pending legal matter.

Crisantos v. Sims, 2023 WL 3115686, at *6, (N.D. W. Va. Feb. 27, 2023). Additionally,

the harmful effect that the creation of a Bivens remedy could have on the discharge of

official duties must be taken into account, as officials “who face personal liability for

damages might refrain from taking urgent and lawful action in a time of crisis.” Id. (quoting

Ziglar at 145). Evaluating these impacts “to determine whether, and the extent to which,

monetary and other liabilities should be imposed upon individual officers and employees

of the Federal Government” is a responsibility best left for Congress and not the judiciary.

Id. at 134. These concerns, furthermore, are especially significant with respect to

retaliation claims. Certainly, expanding Bivens to allow First Amendment

retaliation claims by prisoners would result in an increased number of such suits, in

addition to the increase in the systemwide costs and impacts enumerated above. The

Supreme Court has also recognized that “a plaintiff can turn practically any adverse action

into grounds for a retaliation claim,” thereby adding to the substantial social costs already

associated with recognizing new Bivens claims. Egbert at 499. Likewise, to the extent

the plaintiff may be claiming that any particular disciplinary action, or his transfer to

another housing unit, was retaliatory, the Fourth Circuit has long cautioned that such

claims “intersect with the statutory scheme delegating authority” to the Bureau of Prisons

over, among other areas, housing decisions and discipline, and that extending Bivens to

retaliation claims in such instances could “lead to an intolerable level of judicial intrusion

into an issue best left to corrections experts.” Mays at 205, quoting Earle v. Shreves at

780–81.

Finally, legislative action which suggests that Congress “does not want a damages

remedy, is itself a factor counseling hesitation.” Ziglar at 148; see also Egbert at 493.

Particularly in the prison context, the Fourth Circuit has observed that “Congress’ decision

not to include an individual capacity damages remedy in the Prison Litigation Reform Act

‘speaks volumes and counsels strongly against judicial usurpation of the legislative

function.’” Nellson at *5 (citing Bulger at 141). Accordingly, because Congress has

expressed a desire to prevent courts from interfering with BOP decisions and has been

“conspicuously silent about creating a remedy for prisoners to obtain damages from

individual officers, ‘the existence of the ARP and PLRA counsel hesitation in extending

Bivens to Appellant's claims.’” Bulger at 141. This Court has also previously recognized

that “Congress’s inaction and failure to provide a damage remedy, particularly where it

has acted to enact sweeping reforms of prisoner litigation, suggest that an extension of a

damages remedy for other types of mistreatment should not be judicially created.”

Milliron at *7 (citing Ziglar at 148).

Based on the foregoing, the undersigned finds that there are several special factors

counselling hesitation in this case, and that accordingly, no Bivens remedy exists for the

plaintiff’s retaliation claims herein.

Finally, the undersigned notes that plaintiff has filed a letter [Doc. 15], in which he

complains that the BOP is mishandling deductions for his filing fee. Plaintiff is apparently

under the mistaken impression that this Court’s order granting in forma pauperis status

prohibits the BOP from deducting multiple encumbrances in one month. A review of the

attached correspondence and leger sheet confirms the BOP is complying with this Court’s

order, and plaintiff’s motion is without merit.

V. Recommendation

For the reasons set forth above, the undersigned recommends that the plaintiff’s

case be DISMISSED WITH PREJUDICE for failure to state a claim. It is further

recommended that his pending Motion for Miscellaneous Relief [Doc. 15 ] be DENIED.

The petitioner shall have fourteen days from the date of service of this Report and

Recommendation within which to file with the Clerk of this Court, specific written

objections, identifying the portions of the Report and Recommendation to which

objection is made, and the basis of such objection. A copy of such objections should

also be submitted to the United States District Judge. Objections shall not exceed ten

(10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless

accompanied by a motion for leave to exceed the page limitations, consistent with LR PL

P 12.

Failure to file written objections as set forth above shall constitute a waiver

of de novo review by the District Court and a waiver of appellate review by the

Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); Thomas

v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United

States v. Schronce, 727 F.2d 91 (4th Cir. 1984).

This Report and Recommendation completes the referral from the district court.

The Clerk is DIRECTED to terminate the Magistrate Judge’s association with this case.

The Clerk of the Court is further DIRECTED to mail a copy of this Report and

Recommendation to the pro se plaintiff by certified mail, return receipt requested, to his

last known address as reflected on the docket sheet.

DATED: November 20, 2024

s James P. Mazzone

/

JAMES P. MAZZONE

UNITED STATES MAGISTRATE JUDGE