terminated employee’s Fifth Amendment suit claiming deprivation of a property right without due process
How later courts described this case
- terminated employee’s Fifth Amendment suit claiming deprivation of a property right without due process
- federal inmate with a heart condition who was assigned to a Community Correctional Center’s fifth floor bedroom suffered a heart attack and fell, after defendant’s employee required inmate to use the stairs instead of the elevator to reach his bedroom
- alien detained after September 11 terrorist attack filed suit alleging harsh and punitive pre-trial conditions in violation of Fifth Amendment
- improper denial of Social Security benefits, allegedly as result of due process violations
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
ROSS MOORE THACKER,
Plaintiff,
v. CIVIL ACTION NO.: 3:23-CV-201
(GROH)
DR./MAT EMERY MCCOY, and
P.A. ALICIA WILSON,
Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
On September 5, 2023, the pro se Plaintiff, who is a federal prisoner incarcerated
at Gilmer FCI, initiated this case by filing an action pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), claiming his
Constitutional rights were violated. ECF No. 1.1 The Plaintiff paid the initial partial filing
fee on November 17, 2023. ECF No. 10.
The matter is before the undersigned for a Report and Recommendation to the
District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set
forth below, the undersigned recommends that the complaint be denied and dismissed
without prejudice.
1 All CM/ECF numbers cited herein are from the instant case, 3:23-CV-201, unless otherwise noted.
II. FACTUAL AND PROCEDURAL HISTORY
A. The Plaintiff’s Complaint
The Plaintiff initiated this litigation on September 5, 2023, by filing a complaint with
attachments. ECF Nos. 1, 1-1 through 1-4. Construed liberally, the sole claim asserted in
the complaint is that the Plaintiff was subjected to Cruel and Unusual Punishment in
violation of the Eighth Amendment because he was denied adequate medical care for a
diagnosed case of H. pylori,2 and the Defendants were deliberately indifferent to the
Plaintiff’s serious medical condition. ECF No. 1 at 8–10. The Plaintiff concedes that he
was “constantly” seen by the Defendants from May 2022, through November 2022, when
he was provided a colonoscopy by an outside provider at Stonewall Jackson Memorial
Hospital. Id. at 10. The Plaintiff claims that after his colonoscopy, he was never seen by
the doctor. Id. As a result of these actions and failure “to provide the necessary medical
screening,” the Plaintiff contends that he now must be constantly treated and monitored
and will be required “to take medication with adverse side [effects] for major portions of
[his] life.” Id. at 11. Further, the Plaintiff contends that he was informed in July 2023, that
2 According to the Mayo Clinic:
Helicobacter pylori (H. pylori) infection occurs when Helicobacter pylori (H. pylori) bacteria infect[s]
[the] stomach. This usually happens during childhood. A common cause of stomach ulcers (peptic
ulcers), H. pylori infection may be present in more than half the people in the world.
Most people don't realize they have H. pylori infection because they never get sick from it. If you
develop signs and symptoms of a peptic ulcer, your health care provider will probably test you for H.
pylori infection. A peptic ulcer is a sore on the lining of the stomach (gastric ulcer) or the first part
of the small intestine (duodenal ulcer).
H. pylori infection is treated with antibiotics. . . .
H. pylori bacteria are usually passed from person to person through direct contact with saliva, vomit
or stool. H. pylori may also be spread through contaminated food or water. The exact way H.
pylori bacteria causes gastritis or a peptic ulcer in some people is still unknown.
https://www.mayoclinic.org/diseases-conditions/h-pylori/symptoms-causes/syc-20356171.
the bacteria in his intestines resulted in Irritable Bowel Syndrome (“IBS”). Id. at 10.
In his request for relief, the Plaintiff asks the court to award him compensatory
damages in the amount of three million dollars ($3,000,000.00), and punitive damages in
the amount of two million dollars ($2,000,000.00). Id.
The Plaintiff claims he exhausted his administrative remedies prior to filing his
complaint. Id. at 6–7. Attached to his complaint are the following copies of the
administrative remedy process:
(1) Request for Administrative Remedy, Informal Resolution Form, dated
November 2, 2022, and denied November 10, 2022 [ECF No. 1-2 at 2–3];
(2) Request for Administrative Remedy ID number 1143756-F1, signed on
November 21, 2022 [Id. at 8–9];
(3) December 16, 2022, Response of the Acting Warden to Administrative
Remedy ID number 1143756-F1, received and filed on December 6, 2022, which
summarized the Plaintiff’s medical treatment for his complaints from December 13,
2021, through December 8, 2022 [Id. at 10–11];
(4) Regional Administrative Remedy Appeal submission, ID number 1143756-
R1 which is undated3 [Id. at 13];
(5) Administrative Remedy ID number 1143756-R1, rejection notice dated
February 15, 2023, based on (1) the Plaintiff’s failure to timely file his appeal within
20 days of the Warden’s response or receipt of the DHO report, and (2) failure to
provide staff verification stating that the Plaintiff’s untimely filing was not his fault
[Id. at 7];
3 According to the February 15, 2023, rejection notice, Administrative Remedy ID number 1143756-
R1 was received on February 13, 2023. ECF No. 1-2 at 7.
(6) Central Office Administrative Remedy Appeal signed on March 23, 2023 [Id.
at 14]; and
(7) Central Office Administrative Remedy ID number 1143756-A1, rejection
notice dated April 14, 2023, that states, “[c]oncur with rationale of Regional Office
and/or Institution for rejection. Follow directions provided on prior rejection notices”
[Id. at 12].
The Plaintiff also attached copies of emails between himself and Health Services
regarding his medical concerns. ECF Nos. 1-2 at 4–6, 1-3. Further, the Plaintiff filed
copies of his medical records. ECF No. 1-4.
B. The Defendants’ Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment
On May 21, 2024, the Defendants filed a Motion to Dismiss, or in the Alternative,
Motion for Summary Judgment, and a memo and exhibits in support thereof. ECF Nos.
36, 37, 37-1 through 37-5. The Defendants argue that the Plaintiff’s claims must be
dismissed because: (1) the Plaintiff failed to exhaust his administrative remedies prior to
filing his complaint, as required by 28 U.S.C. § 542.10 et seq. [ECF No. 37 at 12–18]; (2)
the claims raised by the Plaintiff present a new context not authorized under Bivens [Id.
at 18–31]; (3) the Plaintiff has failed to state a claim of deliberate indifference [Id. at 31–
33]; and (4) the Defendants are entitled to qualified immunity from liability [Id. at 33–35].
Attached thereto are the following exhibits:
(1) A Declaration of Shea Thomas, the Health Services Administrator at FCI
Gilmer, dated May 8, 2024 [ECF No. 37-1];
(2) A Declaration of Misty Shaw, a paralegal with the Mid-Atlantic Regional
Office of the BOP, dated April 29, 2024 [ECF No. 37-3];
(3) “Administrative Remedy Generalized Retrieval” dated April 25, 2024, which
lists the following thirty-one administrative remedies filed by the Plaintiff, and the
disposition of each. ECF No. 37-4. Only the following five administrative remedies
relate to a health complaint submitted by the Plaintiff:
a. Remedy ID 798334-F1, filed at the facility level, related to “downgraded
meds,” which was filed October 20, 2014, and closed October 20, 2014
[ECF No. 37-4 at 4];
b. Remedy ID 1143756-F1, filed at the facility level, regarding “multiple
medical complaints,” which was filed on December 6, 2022, and closed
with an explanation on December 6, 2022 [Id. at 13];
c. Remedy ID 1143756-R1, filed at the Regional Office level, regarding
“multiple medical complaints,” which was filed on February 13, 2023,
and rejected on February 14, 2023 [Id.];4
d. Remedy ID 1143756-Al, filed at the Central Office level, regarding
“multiple medical complaints,” which was filed on April 4, 2023, and
rejected on April 14, 2023 [Id. at 14]; and
e. Remedy ID 1175858-F1, filed at the facility level, regarding complaints
of “stomach issues,” which was filed on September 18, 2023, and closed
on September 18, 2023 [Id. at 15].
(4) “Declaration of Evan Aldridge” dated April 25, 2024, stating that as a Special
Investigation Services (“SIS”) Technician at FCI Gilmer he has “reviewed
4 The Administrative Remedy Generalized Retrieval dated April 25, 2024, lists this remedy as
rejected on February 14, 2023, but the rejection notice submitted as an exhibit by the Plaintiff is dated
February 15, 2023. ECF Nos. 37-4 at 13, 1-2 at 7.
the BOP records and discovered that, between December 19, 2022, and
April 4, 2023, FCI Gilmer was in full institutional lockdown status on the
following dates: December 8–12, 2022; December 13–20, 2022, and;
March 2–9, 2023.” [ECF No. 37-5]; and
(5) Under seal, 409 pages of medical records for the Plaintiff [ECF Nos. 43, 43-
1].
C. Plaintiff’s Response to the Defendants’ Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment
Following the May 21, 2024, issuance of a Roseboro notice [ECF No. 40], the
Plaintiff filed a response on June 13, 2024. ECF No. 51. In his response, the Plaintiff
argues that:
(1) The records “clearly show[ ] that [he] exhausted all available administrative
remedies,” but that he was prevented5 from timely appealing to the Mid-Atlantic
Regional Office because he was denied a memo from the unit manager to explain
that the Plaintiff was untimely because of an institutional lockdown [Id. at 3–7];
(2) His Bivens action does not present a new context, but rather presents
parallel circumstances which merit relief, citing Gray v. Plauger, No. CV SAG-22-
77, 2023 WL 2410852 (D. Md. Mar. 8, 2023), and Head v. Rakowski, No. CV JKB-
22-00566, 2023 WL 6388301 (D. Md. Sept. 29, 2023) to support his claims [Id. at
7–9], and that:
(a) His case presents a scenario which is “virtually the same in every
5 In his complaint, the Plaintiff stated that, “[t]he Regional Office and the central office were aware
that the institution was on lockdown due to the covid-19 outbreak. However[,] the administration refused to
provide the Plaintiff with an institutional memo to excuse the delay in filing the administrative appeals which
prohibited the Plaintiff from filing his appeal and exhausting his administrative remedies.” ECF No. 1 at 7.
instance” as that presented in Carlson [Id. at 10];
(b) Medical staff improperly mischaracterized the Plaintiff’s medical
complaints and “refused to administer the appropriate request as
requested” [Id.];
(c) The Defendants failed to follow BOP Program Statement 6031.04,6
entitled “Patient Care,” and § 549.117 entitled “Infectious Diseases
Management” in treating the Plaintiff, even though at that time there was
an outbreak of H. pylori from “contaminated water from the coal mines
underneath the institution” [Id. at 11–12];
(d) His case is like Carlson, based on “the deliberate indifference to a
serious [medical] need and the culpable negligence” of the Defendants [Id.
at 12–13];
(e) The facts and sworn affidavits of other inmates who contracted H.
pylori show that the institution and medical department were aware of the
risks posed by their inaction which constituted deliberate indifference [Id. at
13–15];
(3) The Defendants are not entitled to absolute immunity because neither is an
officer or employee of the United States Public Health Service [Id. at 17].
The Plaintiff attaches to his response copies of two affidavits signed by himself
dated May 30, 2024 [ECF No. 51-1 at 1–3], one affidavit signed by himself dated May 27,
2024 [Id. at 4–5], and four affidavits from fellow prisoners Anthony Williams, Karlos
6 See https://www.bop.gov/policy/progstat/6031_004.pdf.
7 Although § 549.11 is a code section cited in the BOP Program Statement on Infectious Disease
Management, the Program Statement is 6190.04. See https://www.bop.gov/policy/progstat/6190_004.pdf.
Clinton, Dennis Johnson, and Malcolm Carpenter [Id. at 6–12], all related to the Plaintiff’s
contraction and diagnosis of H. pylori.
Critically, although the Plaintiff mentions the Egbert decision, he does not
substantively address the impact of Egbert on his claims. ECF No. 51 at 7, 9.
D. The Defendants’ Reply
On June 27, 2024, the Defendants filed a reply which relies upon the facts and
arguments previously asserted in their motion to dismiss and accompanying
memorandum. ECF No. 56 at 1. Further, the Defendants argue although the Plaintiff
asserts that he could not exhaust his administrative remedies because his facility was on
lockdown, that argument does not match the lockdown records of the facility. During the
relevant time period between December 10, 2022, and April 4, 2023, “FCI Gilmer was
only on full lockdown status from December 8–12, 2022; December 13–20, 2022, and
March 2–9, 2023, and thus the Plaintiff had sufficient time to exhaust his remedies. Id. at
2. Moreover, the Defendants assert that “dozens of other administrative remedies were
filed by other inmates during the time that Plaintiff claims the administrative remedy
process was unavailable to him. Id. The Defendants submitted a declaration of the
secretary for the FCI Gilmer warden, and SENTRY records as exhibits to shows that “from
December 19, 2022, through February 13, 2023, inmates at FCI Gilmer filed 16
institutional remedies (BP-9), 40 regional office appeals (BP-10, and 8 central office
appeals (BP-11) for a total of 64 administrative remedies.” ECF Nos. 56-1 through 56-4.
According to the Defendants, the submitted records demonstrate that the Plaintiff’s claim
that he was denied access to the administrative remedy process because the facility was
on lockdown, is inconsistent with the records of the facility and other administrative
remedies filed during the relevant time frame.
Second, the Defendants contend that a Bivens remedy is not available for the
Plaintiff’s claims, and the cases cited by the Plaintiff in support of his claims are
distinguishable. The Defendants contend that in the two cases cited by the Plaintiff, both
plaintiffs deliberate indifference claims would fail. Id. at 3. See Gray v. Plauger, No. CV
SAG-22-77, 2023 WL 2410852 (D. Md. Mar. 8, 2023) (medical injuries); Head v.
Rakowski, No. CV JKB-22-00566, 2023 WL 6388301 (D. Md. Sept. 29, 2023) (failure to
provide medication and contact lenses). Further, the Defendants argue that the Plaintiff’s
claims of an “epidemic” of H. pylori cases were not asserted in the Plaintiff’s complaint,
and the submitted affidavits consist of affiants who “are simply repeating that they heard
about problems and that Mr. Thacker tested positive for H. pylori.” ECF No. 56 at 3.
Finally, the Defendants reassert that the Plaintiff’s claims are distinguishable from
Carlson v. Green, 446 U.S. 14, 16, n.1 (1980), “on the underlying facts alone.” Id. In
Carlson, the defendants kept the decedent in a facility against medical recommendation,
failed to give him competent medical attention for eight hours after he had an asthmatic
attack, administered contraindicated drugs which worsened his attack, attempted to use
a respirator known to be inoperative which further impeded his breathing, and delayed for
too long a time his transfer to an outside hospital where he died. By comparison, the
Plaintiff here claims, “consistent treatment through a period of two years, during which he
was non-complaint with suggestions by medical staff,” and where he received constant
treatment that “was simply not the treatment he wanted.” ECF No. 56 at 3–4.
III. LEGAL STANDARDS
A. Pro Se Litigants
Courts must read pro se allegations in a liberal fashion and hold those pro se
pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines
v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the 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) (superseded
by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d)8 is designed largely to discourage the filing
of, and waste of judicial and private resources upon, baseless
lawsuits that paying litigants generally do not initiate because
of the costs of bringing suit and because of the threat of
sanctions for bringing vexatious suits under Federal Rule of
Civil Procedure 11. To this end, the statute accords judges
not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual
power to pierce the veil of the complaint's factual allegations
and dismiss those claims whose factual contentions are
clearly baseless.
490 U.S. at 327. Frivolity dismissals should only be ordered when the legal theories are
“indisputably meritless.” Id.
Plaintiff is proceeding pro se and therefore the Court must liberally construe his
8 The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The
court may request an attorney to represent any such person unable to employ counsel and may dismiss
the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of
April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall
identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-- (1) is
frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief
from a defendant who is immune from such relief."
pleadings. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285 (1976); Haines v.
Kerner, 404 U.S. 519, 520 - 1, 92 S.Ct. 594, 596 (1972) (per curiam); Erickson v. Pardus,
551 U.S. 89, 94, 127 S.Ct. 2197 (2007). While pro se pleadings are held to a less stringent
standard than those drafted by attorneys, even under this less stringent standard, a pro
se complaint is still subject to dismissal. Haines, 404 U.S. at 520–21. “[T]he mandated
liberal construction afforded to pro se pleadings ‘means that if the court can reasonably
read the pleadings to state a valid claim on which the petitioner could prevail, it should do
so.’” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999). However, “judges are [ ] not
required to construct a party’s legal arguments for him.” Small v. Endicott, 998 F.2d 411,
417–8 (7th Cir.1993).
B. Civil Rights Actions Under Bivens.
In Bivens, supra, the Supreme Court recognized that claimants may assert a cause
of action for damages caused by federal agents. In FDIC v. Meyer, 510 U.S. 471, 484 -
86 (1994), the Court held that federal agencies may not be held liable in a Bivens claim,
writing, “Bivens from its inception has been based . . . on the deterrence of individual
officers who commit unconstitutional acts.” Id. See Correctional Services Corp. v.
Malesko, 534 U.S. 61, 71 (2001).
Pursuant to Bivens, an individual federal agent may be found liable for actions “in
excess of the authority delegated to him.” 403 U.S. at 397. “The purpose of Bivens is to
deter individual federal officers from committing constitutional violations.” Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 70 (2001). The Supreme Court further explained in
Malesko:
If a federal prisoner in a BOP facility alleges a constitutional
deprivation, he may bring a Bivens claim against the
offending individual officer, subject to the defense of qualified
immunity. The prisoner may not bring a Bivens claim against
the officer's employer, the United States, or the BOP. With
respect to the alleged constitutional deprivation, his only
remedy lies against the individual.
534 U.S. at 72. Further, in a Bivens case, the Plaintiff must specify the acts taken by each
defendant which violate his Constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2nd
Cir. 1994); See Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988)
(“section 1983 claims9 [have] the additional pleading requirement that the ‘complaint
contain a modicum of factual specificity identifying the particular conduct of defendants
that is alleged to have harmed the plaintiffs’”).
In Bivens, the Supreme Court held that it had the authority, “under general
principles of jurisdiction” to “create ‘a cause of action under the Fourth Amendment’
against federal agents who allegedly manacled the plaintiff and threatened his family
while arresting him for narcotics violations.” Egbert, 142 S.Ct. at 1802. After Bivens was
decided, the Supreme Court twice, “fashioned new causes of action under the
Constitution—first, for a former congressional staffer’s Fifth Amendment sex-
discrimination claim, see Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846
(1979); and second, for a federal prisoner’s inadequate-care claim under the Eighth
Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).”
Egbert, 142 S.Ct. at 1802.
However, the Supreme Court has cautioned that implied remedies have been
9 The Court notes that Bivens actions and § 1983 actions are both civil rights actions, and that
Bivens actions regarding deprivation of civil rights have long been considered as the federal counterpart to
state actions authorized by 42 U.S.C. § 1983. As discussed below, Egbert v. Boule, 142 S.Ct. 1793 (2022),
explains the difference between the statutorily created remedy under § 1983, and the judicially created
remedies established by Bivens and its progeny.
found in limited circumstances10, and the judiciary should not “assume[ ] common-law
powers to create causes of action.” Egbert v. Boule, 142 S.Ct. 1793, 1802 (2022) (quoting
Malesko, 534 U.S. at 75). In Egbert, the Supreme Court held that, “[a]t bottom, creating
a cause of action is a legislative endeavor. Courts engaged in that unenviable task must
evaluate a ‘range of policy considerations . . . at least as broad as the range . . . a
legislature would consider.’” 142 S.Ct. at 1802, quoting Hernandez v. Mesa, 589 U.S. at
93, 140 S.Ct. at 741 (2020).
Further, the Egbert court explained that to recognize new Bivens remedies, a court
must make a two-step inquiry to determine if: (1) the case presents a new Bivens context
which is meaningfully different from the three cases in which the Supreme Court has
10 The Supreme Court in Egbert, 142 S.Ct. at 1799 - 1800, noted that it has declined to imply a
similar cause of action for alleged constitutional violations in the following instances: Chappell v. Wallace,
462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (race discrimination suit brought by enlisted naval
men); Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) (aerospace engineer’s First
Amendment defamation and retaliation suit against director of federal space flight center); United States v.
Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (military veteran who volunteered for
chemical warfare testing program sued for being unknowingly being administered LSD which caused
psychological and personality changes); Schweiker v. Chilicky, 487 U.S. 412, 108 S.Ct. 2460, 101 L.Ed.2d
370 (1988) (improper denial of Social Security benefits, allegedly as result of due process violations); FDIC
v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (terminated employee’s Fifth Amendment
suit claiming deprivation of a property right without due process); Correctional Services Corp. v. Malesko,
534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001) (federal inmate with a heart condition who was
assigned to a Community Correctional Center’s fifth floor bedroom suffered a heart attack and fell, after
defendant’s employee required inmate to use the stairs instead of the elevator to reach his bedroom); Wilkie
v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 168 L.Ed.2d 389 (2007) (commercial rancher’s Racketeer
Influences and Corrupt Organizations Act (RICO) and Bivens claims against Bureau of Land Management
(BLM) for allegedly using extortion to force rancher to grant an easement to BLM was without merit); Hui v.
Castaneda, 559 U.S. 799, 130 S.Ct. 1845, 176 L.Ed.2d 703 (2010) (survivors of immigration detainee sued
after detainee persistently sought, but was denied medical treatment, and later died of metastatic cancer,
based on immunity for U.S. Public Health Service employees); Minneci v. Pollard, 565 U.S. 118, 132 S.Ct.
617, 181 L.Ed.2d 606 (2012) (federal inmate sued for denial of adequate medical care by employees at
privately run federal prison, was without relief under Bivens because state tort law authorized adequate
alternative damages actions); Ziglar v. Abbasi, 582 U. S. 120, 137 S.Ct. 1843, 198 L.Ed.2d 290 (2017)
(alien detained after September 11 terrorist attack filed suit alleging harsh and punitive pre-trial conditions
in violation of Fifth Amendment); Hernández v. Mesa, 589 U. S. 93, 140 S.Ct. 735, 206 L.Ed.2d 29 (2020)
(parents of 15-year old Mexican child shot and killed by United States Border Patrol agent across US-
Mexico border after child crossed into US territory and returned to Mexico, not entitled to relief under theory
of Bivens liability for violations of Fourth or Fifth Amendments).
implied a damages action; and (2) if the claim does arise in such a new context, whether
there are special factors which indicate that Congress is better equipped than the judiciary
to weigh the costs and benefits of allowing a damages action. Significantly, the Supreme
Court wrote that, [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.” 142 S.Ct. at 1803,
quoting Hernández, 589 U. S., at 102, 140 S.Ct., at 743. The Supreme Court further
explained:
Finally, our cases hold that a court may not fashion
a Bivens remedy if Congress already has provided, or has
authorized the Executive to provide, an alternative remedial
structure. If there are alternative remedial structures in place,
that alone, like any special factor, is reason enough to limit the
power of the Judiciary to infer a new Bivens cause of action.
Importantly, the relevant question is not whether
a Bivens action would disrupt a remedial scheme, or whether
the court should provide for a wrong that would otherwise go
unredressed. Nor does it matter that existing remedies do not
provide complete relief. Rather, the court must ask only
whether it, rather than the political branches, is better
equipped to decide whether existing remedies should be
augmented by the creation of a new judicial remedy.
142 S. Ct. at 1803–04 (emphasis added) (cleaned up).
C. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a
complaint fails to state a claim upon which relief can be granted. The Federal Rules of
Civil Procedure require only, “‘a short and plain statement of the claim showing that the
pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim
is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited,
“the accepted rule that a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.” Conley, 355 U.S. at 45–46.
Although a complaint need not contain detailed factual allegations, a plaintiff’s
obligation in pleading “requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do....” Twombly, 550 U.S. at 555.
Accordingly, “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the
Supreme Court found that “because the plaintiffs [ ] have not nudged their claims across
the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570.
Thus, a plaintiff must state a plausible claim in his complaint which is based on cognizable
legal authority and includes more than conclusory or speculative factual allegations.
“[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice,” because courts are not bound to accept as true a
legal conclusion couched as a factual allegation. Id. at 678. “[D]etermining whether a
complaint states a plausible claim . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus,
a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has
acted unlawfully,” in order to meet the plausibility standard and survive dismissal for failure
to state a claim. Id. at 678.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;
importantly, it does not resolve contests surrounding facts, the merits of a claim, or the
applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943,
952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a
plaintiff’s well-pleaded allegations are taken as true, and the complaint is viewed in the light
most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir.
1993); see also Martin, 980 F.2d at 952.
D. Motions for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), the Court shall grant summary
judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” In applying the standard for
summary judgment, the Court must review all the evidence in the light most favorable to
the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). However,
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears the initial burden
of informing the Court of the basis for the motion to, “demonstrate the absence of a
genuine issue of material fact.” 477 U.S. at 323. Once “the moving party has carried its
burden under Rule 56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
“The movant has the burden of showing that there is no genuine issue of fact, but
the plaintiff is not thereby relieved of his own burden of producing in turn evidence that
would support a verdict.” Anderson, 477 U.S. at 256. Thus, the nonmoving party must
present specific facts showing the existence of a genuine issue for trial, meaning that “a
party opposing a properly supported motion for summary judgment may not rest upon
mere allegations or denials of [the] pleading, but must set forth specific facts showing that
there is a genuine issue for trial.” Id. The “mere existence of a scintilla of evidence”
favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248.
To withstand such a motion, the nonmoving party must offer evidence from which
a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must
consist of facts which are material, meaning that they create fair doubt rather than
encourage mere speculation. Anderson, supra, at 248.
Summary judgment is proper only “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party.” Matsushita, 475 U.S. at 587.
“Where the record as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.’” Id. citing First Ntl. Bank of Ariz. v. Cities
Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592 (1968). See Miller v. Fed. Deposit Ins.
Corp., 906 F.2d 972, 974 (4th Cir. 1990). Although any permissible inferences to be drawn
from the underlying facts must be viewed in the light most favorable to the party opposing
the motion, where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, disposition by summary judgment is appropriate. Matsushita,
475 U.S. at 587–88. Anderson, 477 U.S. at 248–49.
IV. ANALYSIS
A. Failure to Exhaust Administrative Remedies
Under the Prison Litigation Reform Act (PLRA), a prisoner bringing an action with
respect to prison conditions under 42 U.S.C. § 1983, or any other federal law, must first
exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). “Federal prisoners
must exhaust their administrative remedies prior to filing § 2241 petitions. Failure to
exhaust may only be excused upon a showing of cause and prejudice.” McClung v.
Shearin, 90 F. App'x 444, 445 (4th Cir. 2004) (citing Carmona v. United States Bureau of
Prisons, 243 F.3d 629, 634-35 (2d Cir.2001), Little v. Hopkins, 638 F.2d 953, 953-54 (6th
Cir.1981)). Exhaustion as provided in § 1997e(a) is mandatory, regardless of the relief
offered through administrative procedures. Booth v. Churner, 532 U.S. 731, 741 (2001).
Because exhaustion is a prerequisite to suit, all available administrative remedies must
be exhausted prior to filing a complaint in federal court. Porter v. Nussle, 534 U.S. 516,
524 (2002) (citing Booth, 532 U.S. at 741). “Those remedies need not meet federal
standards, nor must they be ‘plain, speedy, and effective.’” Porter, 534 U.S. at 524.
In the complaint, the Plaintiff asserts that he filed a grievance concerning the facts
in his complaint through the prisoner grievance procedure. ECF No. 1 at 5. However, he
states that he was prevented from properly exhausting his administrative remedy
because:
The BP-10 that was filed to the Mid-Atlantic Regional office
was denied as being time barred due to the lockdown of the
institution for covid-19 reasons.
The BP-11 that was filed to the central office was answered in
the same manner. The Regional Office and the central Office
were aware that the institution was on lockdown due to the
covid-19 outbreak. However[,] the administration refused to
provide the Plaintiff with an institutional memo to excuse the
delay in filing the administrative appeals which prohibited the
Plaintiff from filing his appeal and exhausting his
administrative remedies.
Id. at 7.
The Plaintiff’s contention in the complaint that he was denied access to the
administrative remedy system is inconsistent with the statements he made in the
Administrative Remedy process. The Petitioner was notified in the Warden’s December
16, 2022, response, “If dissatisfied with this response, you may appeal to the Regional
Director, Federal Bureau of Prisons, Mid-Atlantic Regional Office, 302 Sentinel Drive,
Suite200, Annapolis Junction, MD 20701. Your appeal must be received in the Regional
Office within 20 calendar days from the date of this response.” ECF No. 1-2 at 11.
Accordingly, any appeal would have been due not later than January 5, 2023.
The Petitioner’s Regional Appeal is undated, and does not allege that the facility
staff refused to provide him with a memo to demonstrate that the delay in his appeal was
not his fault. ECF No. 1-2 at 13. However, according to the Regional Appeal rejection
notice, the appeal was received by the Regional Office on February 13, 2023, or forty-
two days after 20-day deadline. Id. at 7.
Further, the Plaintiff’s Central Office Administrative Remedy Appeal does not claim
that the Plaintiff was prevented from timely filing his appeal by BOP staff. Id. at 14.
Instead, that Appeal states, in part:
The medical staff here at [FCI] Gilmer has attempted to [deny]
the plaintiff access to the courts be [sic] stated that the
Petitioner was late [filing] his [BP-10] administrative remedy
which is a [First] Amendment violation. A prisoner[’s] Eighth
Amendment right is violated when prison doctors or officials
are deliberately indifferent to the prison’s serious medical
needs.
Id. The Plaintiff did not provide verification from staff that his untimely filing was not his
fault. Instead, he contends that a prison lockdown due to a COVID-19 outbreak prevented
him from filing a timely appeal. Plaintiff’s arguments are not supported by the facts.
The Declaration of Evan Aldridge states that the Plaintiff’s institution was on
lockdown from December 8–12, 2022, December 13–20, 2022, and March 2–9, 2023.
ECF No. 37-5 at 1. The Warden’s response to the Plaintiff’s Administrative Remedy ID
number 1143756-F1 was issued December 16, 2022. The first of two December 2022
institutional lockdowns occurred from December 8–12, 2022, and was over before the
Warden issued his response. The second December 2022 institutional lockdown
commenced on December 13, 2022, and ended December 20, 2022. The Warden issued
his response on December 16, 2022, five days before the second lockdown ended. Any
appeal to this decision would have been due on January 5, 2023. However, the Plaintiff’s
appeal was not delayed by five days, it was delayed by forty-two days. Moreover, the third
institutional lockdown did not occur until after the Regional Office issued its rejection
notice. Additionally, the Defendants submitted records which show that during the same
period when the Plaintiff claims he did not have access to the administrative remedy
process, that inmates at FCI Gilmer filed 64 separate administrative remedy claims at the
institutional, regional, and central office levels. ECF Nos. 56-1 through 56-4. It appears
that there was no justification for the Plaintiff’s delay in filing his Regional appeal.
Two days after filing the Regional appeal, the Regional Office rejected the appeal,
for two reasons: (1) the Plaintiff’s appeal was untimely. “Regional appeals (BP-10) must
be received within 20 days of the Warden/CCM response or receipt of the DHO Report.
This time includes mail time”; and (2) the Plaintiff did not provide staff verification stating
the reason for untimely filing was not his fault. Id.
Further, the Regional rejection notice bears a handwritten notation which appears
to read “Delivered to [inmate] by Unit Manager on 03/10/23,” with an initialed signature.
Id. Thus it appears that the third period of institutional lockdown occurred during the eight
days immediately preceding the Plaintiff’s receipt of his Regional Administrative Remedy
rejection. The Plaintiff’s Central Office appeal was received on April 4, 2023, and rejected
on April 14, 2023. ECF No. 1-2 at 12. The Central Office Rejection Notice states that the
administrative remedy was rejected because the reviewer concurred with the rejection
rationale of the Regional Office and/or Institution. Id. The Plaintiff was further directed to
follow directions provided on prior rejection notices. Id.
As recognized in Carmona, supra, which was cited by the Fourth Circuit in its
opinion in McClung:
[T]he interests of judicial economy and accuracy are served
by requiring that, absent a showing of cause and prejudice,
appeals proceed in the first instance through the federal
agency review process. Following the administrative
procedures could potentially obviate the need for judicial
review, or at a minimum, develop the factual record at the
agency level at a time when the disputed events are still
relatively fresh in witnesses' minds. In this sense, it is the
analogue of the exhaustion of state remedies requirement for
a state prisoner seeking federal habeas review, and the
results governing failure to take this path should be the same.
Administrative autonomy is also served by requiring that a
federal prisoner justify his failure to exhaust his intra-Bureau
remedies. When, however, legitimate circumstances beyond
the prisoner's control preclude him from fully pursuing his
administrative remedies, the standard we adopt excuses this
failure to exhaust.
Carmona, 243 F.3d at 634 (internal citations omitted).
The Bureau of Prisons’ Program Statement (BOP PS) 1330.18 § 542.10 et seq.,11
addresses the Bureau’s Administrative Remedy Program, and directs inmates on the
processes necessary to exhaust their administrative remedies by filing four mandatory12
remedies: (1) an informal resolution (BP-8)13; (2) an administrative remedy at the facility
(BP-9); (3) an appeal to the regional office (BP-10); and (4) a final appeal to the central
office (BP-11). The Plaintiff failed to complete all four mandatory administrative remedies,
although he contends that the Defendants, or other BOP officials are to blame for his failure
to exhaust because he was denied access to the Courts, and denied a memo which
justified his delayed appeal. Further, the Plaintiff does not contend that he was denied
access to the necessary administrative remedy forms. Moreover, the Defendants have
demonstrated that other inmates accessed the administrative remedy system sixty-four
times during the same time period that the Plaintiff contends it was unavailable because
of administrative lockdown.
The Plaintiff’s failure to exhaust administrative remedies ignores the standard
recognized by the Fourth Circuit in Hill v. Haynes, 380 F. App'x 268, 269, n.1 (4th Cir.
2010). Regardless of whether the Plaintiff first, presented his complaint informally to
11 See https://www.bop.gov/policy/progstat/1330_018.pdf.
12 Inmates who are incarcerated in Community Corrections Centers (CCCs) are not required to
attempt informal resolution. BOP PS 1330.18 § 542.13.b.
13 Many BOP institutional handbooks refer to the Informal Resolution Form as the BP-8 form. See:
1. FCI Waseca https://www.bop.gov/locations/institutions/was/was_ao_handbook_eng_031517.pdf;
2. FCI Oxford https://www.bop.gov/locations/institutions/oxf/OXF_aohandbook.pdf;
3. FPC Schuylkill https://www.bop.gov/locations/institutions/sch/SCH_camp_aohandbook.pdf;
4. USMC Springfield https://www.bop.gov/locations/institutions/spg/spg_ao_handbook050917.pdf;
5. USP Lewisburg https://www.bop.gov/locations/institutions/lew/LEW_smu_aohandbook.pdf;
6. FDC Tallahassee https://www.bop.gov/locations/institutions/tal/TAL_fdc_aohandbook.pdf;
7. FCI Fort Dix https://www.bop.gov/locations/institutions/ftd/FTD_aohandbook.pdf; and
8. USP/SCP McCreary https://www.bop.gov/locations/institutions/mcr/MCR_aohandbook.pdf.
prison staff using a BP–8 form, or second, filed an “Administrative Remedy Request” to
the prison warden using a BP–9 form, he did not take the third and fourth steps necessary
to timely exhaust his claims. The Plaintiff failed to take the third step by filing a timely
appeal with the Regional Director using a BP–10 form to an adverse decision on the BP–
9 from the warden.
Although he did not allege during the administrative remedy process that his delay
was caused by staff, in his complaint the Plaintiff alleges that he was prevented by BOP
staff from timely filing certain levels of his administrative remedy. The Plaintiff now
contends that BOP staff prevented him from doing so when staff refused to provide him
with a justification for his late Regional Appeal. However, the Defendants have submitted
records related to the dates of institutional lockdown which do not justify the Plaintiff’s
forty-two day delay in filing his appeal. The Plaintiff’s election to belatedly pursue
administrative remedies is insufficient to excuse the exhaustion requirement, and the
complaint should be dismissed without prejudice for failure to exhaust.
In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94 - 95 (1998), the
Supreme Court wrote that “without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the cause.”
See also Reinbold v. Evers, 187 F.3d 348, 359 n. 10 (4th Cir. 1999). Because this court
lacks jurisdiction, this court cannot entertain the complaint.
B. Failure to State a Bivens Claim Against Defendants
Notwithstanding any failure to exhaust, a review of the complaint pursuant to 28
U.S.C. § 1915A(b), reveals that the Plaintiff fails to present a claim upon which relief can
be granted as to Defendants McCoy or Wilson. The Plaintiff seeks monetary damages for
alleged violations of his Eighth Amendment rights, asserting he is entitled to relief based
on the holding of Bivens. ECF No. 1. However, in Egbert, the Supreme Court explicitly
instructed lower courts that Bivens remedies should be expanded in only limited
circumstances.
After Egbert, the Fourth Circuit declined to extend a Bivens remedy to a plaintiff
who alleged his Eighth Amendment rights were violated when “Federal prison officials
exposed him to conditions that posed a constitutionally unacceptable risk to his health
and safety and took deliberate actions that exposed him to a substantial risk of serious
physical harm.” Tate v. Harmon, 54 F.4th 839, 842 – 843 (4th Cir. 2022). In Tate, the
Fourth Circuit defined the issues presented as, “(1) whether Tate's conditions-of-
confinement claim falls within the context of Bivens and its progeny and, if not, (2)
whether the district court erred in refusing to extend Bivens to provide a damages remedy
for his claim.” Id. Echoing the Supreme Court in Egbert, the Fourth Circuit in Tate
recognized that, “in the 42 years following Carlson, which was decided in 1980, the Court
has ‘consistently rebuffed’ every request—12 of them now—to find implied causes of
action against federal officials for money damages under the Constitution. 54 F.4th at
843. “Against this now critical condition of Bivens jurisprudence and the caution that the
Court has mandated when applying it, courts are clearly warned to act with utmost
hesitation when faced with actions that do not fall precisely under Bivens, Davis,
or Carlson.” Id. at 845. The Fourth Circuit concluded:
In short, courts’ authority now to create new causes of action
for money damages under the Constitution is most limited, for
“if there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the
system for enforcing the law and correcting a wrong, the
courts must refrain from creating the remedy in order to
respect the role of Congress in determining the nature and
extent of federal-court jurisdiction under Article III.” Ziglar, 137
S. Ct. at 1858. And even “uncertainty alone” in this regard
“forecloses relief.” Egbert, 142 S. Ct. at 1804.
54 F.4th at 845.
The Plaintiff’s Complaint fails to allege that Defendants McCoy or Wilson took
specific actions which constitute civil rights violations as recognized by Bivens, Davis, or
Carlson. Accordingly, this Court must conduct the two-part Egbert analysis to determine
if the action should proceed, by determining:
(1) if Plaintiff’s case presents a new Bivens context, which is
meaningfully different from the three cases in which the Court
has implied a damages action; and
(2) if Plaintiff’s claim does arise in a new context, whether
there are special factors present which indicate the Judiciary
is less equipped than Congress to weigh the costs and
benefits of allowing the damages action to proceed.
142 S.Ct. at 1803.
1. The Plaintiff’s Case Presents a New Bivens Context
As argued by the Defendants, the Plaintiff’s claims—that his Eighth Amendment
rights were violated by the Defendants who were deliberately indifferent to the Plaintiff’s
medical conditions—constitutes a new context that were not previously recognized by
Bivens, Davis, or Carlson. A review shows that all three of those cases are distinguishable
from Plaintiff’s claims, consistent with the arguments made by the Defendants in their
memorandum in support of the motion to dismiss. ECF No. 37 at 18–31.
Construed liberally, the Plaintiff asserts that his Eighth Amendment rights were
violated by the Defendant’s actions. However, only one of the three judicially created
causes of action is arguably comparable to Plaintiff’s claims. Bivens recognized a cause
of action under the Fourth Amendment, and thus is not comparable to the Plaintiff’s
claims. Davis recognized a cause of action under the Fifth Amendment, and again, is not
comparable to the Plaintiff’s claims. Only Carlson recognized a civil rights action under
the Eighth Amendment based on failure to provide sufficient medical care. However,
Carlson is distinguishable from the Plaintiff’s claims.
Carlson was brought by a mother on behalf of her deceased son’s estate, “alleging
that he suffered personal injuries from which he died because the petitioners, federal
prison officials, violated his due process, equal protection, and Eighth Amendment rights.”
446 U.S. at 14. Note 1 of Carlson more fully explains the claims raised:
More specifically, respondent alleged that petitioners, being
fully apprised of the gross inadequacy of medical facilities and
staff at the Federal Correction Center in Terre Haute, Ind., and
of the seriousness of Jones' chronic asthmatic condition,
nonetheless kept him in that facility against the advice of
doctors, failed to give him competent medical attention for
some eight hours after he had an asthmatic attack,
administered contra-indicated drugs which made his attack
more severe, attempted to use a respirator known to be
inoperative which further impeded his breathing, and delayed
for too long a time his transfer to an outside hospital. The
complaint further alleges that Jones' death resulted from
these acts and omissions, that petitioners were deliberately
indifferent to Jones' serious medical needs, and that their
indifference was in part attributable to racial prejudice.
446 U.S. at 16, n.1.
By contrast, the Plaintiff here claims that the Defendants were deliberately
indifferent to the Plaintiff’s medical condition. ECF No. 1 at 8–10. The Plaintiff claims that
the Defendants denied or prevented the Plaintiff from receiving medical care or screening
in May 2022, and contends that he did not receive a diagnosis of illness, intestinal bacteria
“that resulted in Irritable Bowel Syndrome,” (“IBS”) until July 2023.14 Id. at 10. In one of
the Plaintiff’s affidavits attached to the complaint, the Plaintiff asserts that he was told on
June 12, 2023, that he had contracted IBS. ECF No. 1-1 at 3. The complaint is silent as
to the Plaintiff’s November 2023, diagnosis of H. pylori, because it was filed on September
5, 2023, two months before that positive test. Moreover, the records submitted by the
Defendants demonstrate that the Plaintiff was provided medical treatment on fifty dates
between May 11, 2022, and April 16, 2024. ECF No. 38-2. See also Section IV.C. herein.
Moreover, during that period, the Plaintiff was tested for H. pylori at least three times and
found to be negative prior to his November 2023 positive H. pylori test. ECF No. 38-2 at
246, 302. The BOP Health Services first documented and treated the Plaintiff’s positive
H. pylori test result on November 9, 2023. Id. at 118, 205, 246.
It is clear that the Plaintiff’s complaint concerning his alleged medical conditions is
that he now has bacteria in his intestines and stomach as a result of the complained-of
denial of medical treatment. ECF No. 1 at 11. That claim is not supported by the medical
records which show many medical treatments, and at least three tests for H. pylori before
it was found. Moreover, that claim is in no way equivalent to the allegations in Carlson of:
(1) a pre-existing chronic and life-threatening illness, asthma; (2) inadequate access to
medical treatment and medical providers; (3) delay in treatment for more than eight hours
after an acute onset of illness; (4) administration of contraindicated medication which
worsened the patient’s condition; (5) the use of machinery known to be inoperable to
14 However, according to the Mayo Clinic, “[t]he exact cause of IBS isn’t known.”
https://www.mayoclinic.org/diseases-conditions/irritable-bowel-syndrome/symptoms-causes/syc-
20360016. According to the Cleveland Clinic, “[r]esearchers don’t know exactly what causes IBS, but they
classify it as a neurogastrointestinal (GI) disorder.” https://my.clevelandclinic.org/health/diseases/4342-
irritable-bowel-syndrome-ibs.
attempt to treat the patient; and (6) failure to transport the patient for outside treatment
for the acute onset of illness. The specificity of such injuries and actions of Defendants in
Carlson differ dramatically from the situation presented by the Plaintiff.
The Fourth Circuit has cautioned that:
The Supreme Court has instructed not only that “new context”
must be understood broadly but also that a new context may
arise if even one distinguishing fact has the potential to
implicate separation-of-powers considerations. While not
providing an exhaustive list of distinguishing factors, the Court
has noted examples that would support finding a new context,
such as (1) uncertainty alone as to whether allowing a Bivens
claim would have systemwide consequences; (2) a new
category of defendants; (3) a difference as small as the rank
of the officers involved; (4) the statutory or other legal
mandate under which the officer was operating; (5) a potential
effect on foreign relations and national security; (6)
Congress’s repeatedly declining to authorize the award of
damages in the relevant context; and (7) the risk that the
burden and demand of litigation would prevent Executive
Officials from devoting the time and effort required for the
proper discharge of their duties.
54 F.4th at 846 (cleaned up).
The Plaintiff’s alleged injuries occurred in a different context than the injuries
incurred in Carlson. Further, Congress has never authorized a suit for damages under
similar claims as those raised by the Plaintiff. Thus, Plaintiff’s claim arises in a new Bivens
context. Accordingly, the Court must conduct the Egbert special factors analysis before
allowing Plaintiff’s suit to proceed.
2. There are special factors counselling hesitation and which
indicate the Judiciary is less equipped than Congress to weigh
the costs and benefits of allowing the damages action to
proceed
As recognized by the Fourth Circuit in Tate, the Supreme Court has directed that
the “special factors” inquiry “must center on “separation-of-powers principles.” 54 F.4th at
844 (quoting Ziglar, 137 S. Ct. 1843, 1857 (2017)). The Fourth Court further explained
the importance of the separation of powers principle:
We thus consider the risk of interfering with the authority of
other branches, and we ask whether “there are sound reasons
to think Congress might doubt the efficacy or necessity of a
damages remedy,” and “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.”
54 F.4th at 844–45 (quoting Ziglar, 137 S.Ct.at 1857). Further, in Tate the Fourth Circuit
recognized that, “[a]gainst this now critical condition of Bivens jurisprudence and the
caution that the Court has mandated when applying it, courts are clearly warned to act
with utmost hesitation when faced with actions that do not fall precisely
under Bivens, Davis, or Carlson.” 54 F.4th at 845. The Supreme Court in Ziglar previously
recognized that:
When a party seeks to assert an implied cause of action under
the Constitution itself, just as when a party seeks to assert an
implied cause of action under a federal statute, separation-of-
powers principles are or should be central to the analysis. The
question is “who should decide” whether to provide for a
damages remedy, Congress or the courts?
Ziglar v. Abbasi, 137 S. Ct. at 1857 (quoting Bush v. Lucas, 462 U.S. 367, 380, 103 S.Ct.
2404, 2413 (1983)).
In Tate, the Fourth Circuit recognized the directive of the Supreme Court in Egbert
that, “the absence of a remedy for a wrong is ordinarily for Congress to fix, not the courts.”
54 F.4th at 847. In Egbert, the Supreme Court wrote:
The Bivens inquiry does not invite federal courts to
independently assess the costs and benefits of implying a
cause of action. A court faces only one question: whether
there is any rational reason (even one) to think that
Congress is better suited to weigh the costs and benefits of
allowing a damages action to proceed.
Egbert, 142 S. Ct. at 1805 (cleaned up). Following the directive of Egbert, the Fourth
Circuit in Tate concluded:
[I]n this context, the political branches are indeed “better
equipped to decide whether existing remedies should be
augmented by the creation of a new judicial remedy.” [142
S.Ct.] at 1804 (cleaned up). This is especially so because we
are ill-suited to “predict the systemwide consequences of
recognizing a cause of action under Bivens,” and even our
“uncertainty” on that question “forecloses relief.” Id. at 1803,
1804 (cleaned up).
In short, the “special factors” counseling hesitation here in
providing a new cause of action are similar in kind to the
factors distinguishing Tate's claim from the claim
in Carlson. Heeding the Supreme Court's warning that courts
should not be in the business of creating causes of action and
that they must give the legislative branch “utmost deference”
in considering whether to do so, our uncertainty is itself
sufficient to resolve Tate's claims.
54 F.4th at 848. In reviewing the Plaintiff’s claims, the undersigned finds that the same
factors which counseled hesitation in Tate, are present here. This Court is ill-suited to
predict the systemwide consequences of recognizing a cause of action under Bivens. As
the Supreme Court in Egbert noted, ‘[t]hat uncertainty alone is a special factor that
forecloses [Bivens] relief.” 596 U.S. at 493. While uncertain whether allowing the Plaintiff’s
Bivens claim to proceed would have systemwide consequences, the undersigned
recognizes that where one prisoner’s action is successful, other prisoners often raise
similar claims in separate suits for damages. Thus, such uncertainty on the question of
systemwide consequences as a result of recognizing a new Bivens action forecloses relief
here, as it did in Tate. Accordingly, the Court finds that the Plaintiff has failed to state a
claim upon which relief may be granted, and his claims should be dismissed with
prejudice.
C. Defendants’ Motion for Summary Judgment as to Plaintiff’s Deliberate
Indifference to Medical Needs Claim
Further, the Plaintiff’s complaint [ECF No. 1] and response [ECF No. 51] to the
Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, both fail to set
forth specific facts showing that there is a genuine issue for trial. While the complaint
alleges that the Defendants were deliberately indifferent to the Plaintiff’s medical
conditions, the only allegation in the Complaint which indicates the Defendants were
responsible for denying the Plaintiff medical care, or were present, or involved with any
alleged denial of his medical care, relates to the Plaintiff’s claim that he was not given the
“necessary medical screening.” Id. at 11. The Plaintiff’s sole claim against the Defendants
is that they were both deliberately indifferent to his medical needs. However, the Plaintiff’s
complaint and attachments thereto acknowledge that the Plaintiff received medical care
on or about the following dates: January 2022, May 11, 2022, June 2022, July 2022,
September 2022, October 2022, November 2022, December 2022, March 29, 2023, June
12, 2023. ECF Nos. 1, 1-1.
Further, the Defendants’ exhibits15 include medical records for the Plaintiff which
demonstrate he received medical care on the following dates:
(1) May 11, 2022 [ECF No. 38-2 at 119, 166–169, 201, 203, 240, 302];
(2) May 12, 2022 [Id. at 234–235];
15 The medical records also contain records which predate the Plaintiff’s alleged onset of symptoms
in May 2022. Although the undersigned has reviewed the same, those records prior to May 2022, are not
relevant to the Plaintiff’s claims for relief. However, as early as July 26, 2021, the Plaintiff requested a colon
cancer screening, although at that time he was asymptomatic. ECF No. 38-2 at 101.
(3) May 16, 2022 [Id. at 228, 230, 232–233];
(4) May 18, 2022 [Id. at 229];
(5) May 20, 2022 [Id. at 231];
(6) May 28, 2022 [Id. at 164];
(7) July 12, 2022 [Id. at 38–39, 119–120, 154–161, 203, 303];
(8) July 13, 2022 [Id. at 218, 222, 226];
(9) July 14, 2022 [Id. at 218–219, 223–225, 227];
(10) July 18, 2022 [Id. at 203];
(11) July 22, 2022 [Id. at 206–207, 219–221];
(12) July 27, 2022 [Id. at 216–217];
(13) September 28, 2022 [Id. at 149–150];
(14) October 11, 2022 [Id. at 29, 197, 294];
(15) November 23, 2022 [Id. at 37, 119, 148, 205, 302];
(16) December 6, 2022 [Id. at 289–291, 293, 401–09];
(17) December 7, 2022 [Id. at 309];
(18) December 8, 2022 [Id. at 293, 301, 367–400];
(19) January 9, 2023 [Id. at 285–288, 301, 366];
(20) January 11, 2023 [Id. at 37, 119, 279–284, 301];
(21) January 17, 2023 [Id. at 363–65];
(22) January 18, 2023 [Id. at 326 – 328];
(23) January 30, 2023 [Id. at 213–214];
(24) March 29, 2023 [Id. at 361–62];
(25) March 30, 2023 [Id. at 278];
(26) June 13, 2023 [Id. at 272–277, 298, 300–301];
(27) August 1, 2023 [Id. at 269–271, 300];
(28) August 28, 2023 [Id. at 266–268, 300, 360];
(29) September 5, 2023 [Id. at 259–265, 300];
(30) September 18, 2023 [Id. at 314–325];
(31) September 25, 2023 [Id. at 37, 119, 257–258, 302];
(32) October 2, 2023 [Id. at 29, 113, 197, 294];
(33) October 24, 2023 [Id. at 254–256, 300];
(34) November 2, 2023 [Id. at 310, 358];
(35) November 3, 2023 [Id. at 90–93, 329–357];
(36) November 7, 2023 [Id. at 119, 247–253];
(37) November 9, 2023 [Id. at 26, 37, 118];
(38) December 11, 2023 [Id. at 22–24, 35];
(39) December 29, 2023 [Id. at 14–21, 34–35];
(40) January 11, 2024 [Id. at 13, 88];
(41) February 7, 2024 [Id. at 69–70];
(42) February 8, 2024 [Id. at 56, 59–60, 66];
(43) February 12, 2024 [Id. at 60–65];
(44) March 4, 2024 [Id. at 10–11, 34, 37, 41];
(45) March 12, 2024 [Id. at 34, 48–51];
(46) March 14, 2024 [Id. at 7–9, 34];
(47) March 21, 2024 [Id. at 73–74, 78–86];
(48) April 9, 2024 [Id. at 3–5, 34];
(49) April 11, 2024 [Id. at 52, 54]; and
(50) April 16, 2024 [Id. at 1–2].
Those treatments included outside appointments for an endoscopy, an
esophagogastroduodenoscopy (EGD)16 with biopsy, a colonoscopy, and chronic care
treatments for the Plaintiff’s diabetes.
Following a December 8, 2022, colonoscopy, the Plaintiff was tested for H. pylori
on January 18, 2023, and September 5, 2023, but H. pylori was not detected. ECF No.
38-2 at 262, 265, 270, 326. On November 3, 2023,17 the Plaintiff was again tested for H.
pylori which was found. ECF No. 38-2 at 246, 302. On November 9, 2023, the date that
the BOP Health Services documented the Plaintiff’s positive H. pylori test, he was also
prescribed four medications to treat the condition. Id. at 246. The Plaintiff contends that
he first experienced symptoms of H. pylori in May of 2022, eighteen months before H.
pylori was confirmed. In the intervening eighteen months, the Plaintiff was provided
medical care on thirty-six separate dates, for an average of one appointment every two
weeks for the entire period.
As to the Plaintiff’s claim that he was denied the necessary medical screening for
H. pylori, his medical records contradict that claim. The Plaintiff was given two H. pylori
screenings which were negative before his positive result was received on November 9,
2023. The repeated testing and repeated medical treatments provided to the Plaintiff
demonstrate that the Defendants were not deliberately indifferent to the Plaintiff’s medical
16 Esophagogastroduodenoscopy (EGD) is procedure to examine the upper gastrointestinal tract,
where an endoscope passes down the throat to visualize the esophagus, stomach and duodenum. See
https://my.clevelandclinic.org/health/diagnostics/22549-esophagogastroduodenoscopy-egd-test.
17 The sample appears to have been collected on November 3, 2023. ECF No. 38-2 at 330. The
pathologist electronically signed his reported findings on that same date. Id. However, the BOP Health
Services first documented the positive H. pylori test result on November 9, 2023. Id. at 118, 205, 246.
condition.
Even the medical records which the Plaintiff submitted with his complaint reflect
that even seven months after he first complained of symptoms, that doctors could find
nothing wrong with the Plaintiff’s gastrointestinal tract. ECF No. 1-4. However, the Plaintiff
continued to receive medical treatment and testing to diagnosis his reported
gastrointestinal condition. The Plaintiff was seen at Stonewall Jackson Memorial Hospital
by Ronald Pearson, MD, on December 8, 2022, at which time a colonoscopy was
discussed and performed. Id. at 5–30. The results of that test found that the Plaintiff, “is
found to have essentially normal examination. However multiple random colonic biopsies
were obtained to check for microscopic colitis.” Id. at 14. The Plaintiff’s physician
recommended that he repeat the colonoscopy procedure in ten years. Id. at 15. The
Plaintiff also submitted the surgical pathology report prepared from the colonoscopy
samples by Lixin Zhang, MD, which found “[u]nremarkable colonic mucosa,” and
“[n]egative for microscopid colitis, active inflammation, granuloma, or dysplasia.” Id. at 37.
Attached to his response to the Defendants’ Motion to Dismiss, or in the
Alternative, Motion for summary judgment, the Plaintiff included multiple sworn affidavits,
including three affidavits which the Plaintiff himself signed, and four affidavits, by fellow
inmates Anthony Williams, Karlos Clinton, Dennis Johnson, and Malcolm Carpenter. ECF
No. 51-1.18 The Plaintiff’s first affidavit contends that from May 2023,19 through November
2023, he “repeatedly requested to be tested” for H. pylori, but was denied, and instead
18 The Defendants assert that “[m]ost of the affidavits provided are primarily hearsay, and the
affiants are simply repeating that they heard about problems and that Mr. Thacker tested positive” for H.
pylori. ECF No. 56 at 3.
19 The Plaintiff’s complaint contends that his symptoms began in May 2022, but the first affidavit
attached to his Response lists the start date as May 2023.
directed to buy over the counter medications for pain. Id. at 1. In his second affidavit the
Plaintiff claims that in June and July of 2022, he complained of constant stomach pain,
that other inmates had contracted H. pylori, but that he was denied an H. pylori screening.
Id. at 2. The Plaintiff’s third affidavit asserts that beginning in November 2022, he began
the administrative remedy process concerning his stomach problems, but that he was
delayed in filing his regional appeal because the institution was on lockdown in January
through February of 2023. Id. at 4.
The affidavits signed by other prisoners assert that the institutional water supply
was contaminated, that multiple inmates also suffered abdominal or gastrointestinal
distress, and that the Plaintiff was denied H. pylori testing. Id. at 6–12. All four of the fellow
inmates’ affidavits assert that the Plaintiff complained of stomach pain in May or June of
2022. Id. Three of the four stated that in November 2023, the Plaintiff tested positive for
H. pylori, with the fourth stating that the Plaintiff’s positive H. pylori test was almost a year
later than his initial complaints of stomach problems. Id. Other than the affidavits, the
Plaintiff did not provide additional medical records, or other documentation that supports
his claim that the Defendants were deliberately indifferent to his medical needs. However,
the claims asserted in the affidavits of the Plaintiff and fellow inmates are flatly
contradicted by exhibits submitted by the Defendants.
The Plaintiff was given H. pylori tests on January 18, 2023, and September 5,
2023, but H. pylori was not detected. ECF No. 38-2 at 262, 265, 270, 326. A third test
administered in November 2023, revealed that the Plaintiff was then positive for H. pylori.
The Plaintiff’s claims that he was denied treatment and testing are without merit, as his
medical records clearly show otherwise.
Further, as addressed above and contrary to the Plaintiff’s argument, FCI Gilmer
was not on institutional lockdown in January or February of 2023, that would have
prevented him from filing a timely appeal to the Warden’s denial of his administrative
remedy. See ECF No. 37-5.
The Plaintiff as the nonmoving party has failed to present specific facts showing
the existence of a genuine issue for trial, as required by Anderson. In that case, the
Supreme Court further held that the Plaintiff, in “opposing a properly supported motion for
summary judgment may not rest upon mere allegations or denials of [the] pleading, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson, at
256. The Plaintiff has rested on denials of the pleading, but has set forth no specific facts
showing that there is a genuine issue for trial.
Further, in Matsushita the Supreme Court held that summary judgment is proper
only where “the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party” and “[w]here the record as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no ‘genuine issue for trial.’” 475 U.S. at 587,
citing First Ntl. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592
(1968). The record in this case when taken as a whole could not lead a rational trier of
fact to find that the Plaintiff was denied medical treatment. For all of these reasons, the
Defendants motion for summary judgment should be and the Plaintiff’s dismissed with
prejudice.
D. Failure to Respond to Defendant’s Legal Arguments
Finally, in addition to the reasons cited above, although the Plaintiff filed a
response to the motion to dismiss, his response to the legal arguments raised by the
Defendants was tangential at best. Instead, the Plaintiff addressed mainly factual issues,
repeating many of the arguments made in his Complaint, apparently relying upon the
equities of his alleged claims to merit relief. However, as noted above, the Supreme Court
in Egbert, and the Fourth Circuit in Tate, have held that extension of Bivens remedies in
new contexts should be considered with extreme caution and deference to Congress. The
Court declines to address the equities argued by the Plaintiff because the law so clearly
supports Defendants’ motion to dismiss.
As noted above, because “only those questions which are squarely presented to
a court may properly be addressed,” this Court may not construct Plaintiff’s arguments
for him. Weller, 901 F.2d at 391. Even when liberally construing the Plaintiff’s allegations,
he fails to assert any claims that the named Defendants subjected, or caused him to be
subjected, to the deprivation of any rights, privileges, or immunities which are secured by
the Constitution and laws. Instead, the Plaintiff urges this Court to judicially expand civil
rights remedies, in direct contravention of the holdings of superior courts. The Court
declines to do so. Accordingly, for all of the above reasons, the Plaintiff has failed to state
a claim for monetary relief, and his claims must be dismissed with prejudice.
V. RECOMMENDATION
For the foregoing reasons, the undersigned RECOMMENDS that the complaint
[ECF No. 1] be DISMISSED WITHOUT PREJUDICE, because the Court lacks jurisdiction
based on the Plaintiff’s failure to exhaust administrative remedies. It is further
RECOMMENDED that the Defendants’ Motion [ECF No. 36] to Dismiss, or in the
Alternative, Motion for Summary Judgment be GRANTED.
It is further RECOMMENDED that the Plaintiff’s Motion [ECF No. 50] for Judicial
Notice of the Code of Federal Regulations, and Bureau of Prisons Program Statements
be TERMINATED as MOOT, because those regulations and Program Statements were
considered and addressed herein.
Within fourteen (14) days after being served with a copy of this
Recommendation, any party may file with the Clerk of the 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 Honorable Gina M. Groh, 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
limitation, 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 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 and to all counsel of record, as
applicable, as provided in the Administrative Procedures for Electronic Case Filing in the
United States District Court for the Northern District of West Virginia.
DATED: August 13, 2024
/s/ Robert W. Trumble
ROBERT W. TRUMBLE
UNITED STATES MAGISTRATE JUDGE