Compton v. Conner

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

BECKLEY DIVISION

RODNEY C. COMPTON, )

)

Plaintiff, )

)

v. ) Civil Action No. 5:24-00230

)

J. CONNER, et al., )

)

Defendants. )

PROPOSED FINDINGS AND RECOMMENDATION

On May 3, 2024, Plaintiff, acting pro se,1 filed his Complaint pursuant to Bivens v. Six

Unknown Federal Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 24

L.Ed.2d 619 (1971). (Document No. 2.) As Defendants, Plaintiff names the following: (1) J.

Conner, SHU Property Correctional Officer at FCI Beckley; (2) A. Ross, SHU One Correctional

Officer at FCI Beckley; and (3) FCI Beckley. (Id., pp. 1 – 3.) Plaintiff alleges he was subjected

to an attack by another inmate, but the correctional officer failed to instruct that inmate to “stop”

or attempt to “stop” the fight. (Id., pp. 5 – 6.) Plaintiff, however, acknowledges that the

correctional officer called out “fight, fight, fight” and responded by using pepper spray. (Id.)

Plaintiff alleges that Defendant Conner failed to follow SHU procedure, which resulted in the

other inmate obtaining an object that was used as a weapon against Plaintiff. (Id.) Plaintiff

further complains that he was subjected to disciplinary proceedings regarding the above incident

resulting in a loss of good time credit.2 (Id.) As Exhibits, Plaintiff attaches a copy of pertinent

1 Because Plaintiff is acting pro se, the documents which he has filed in this case are held to a

less stringent standard than if they were prepared by a lawyer, and therefore they are construed

liberally. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

2 To the extent Plaintiff is challenging the validity of his disciplinary hearing and the loss of his

administrative remedies. (Document No. 2-1.)

Based on the foregoing, it was unclear from Plaintiff’s allegations whether he was

asserting the above conduct resulted in a violation of his constitutional rights or whether he was

attempting to assert a tort claim. Specifically, the undersigned found that it was unclear as to

whether Plaintiff was asserting (1) a tort claim pursuant to the FTCA, (2) a Bivens claim for

alleged violations of his constitutional rights, or (3) both. By Order entered on December 31,

2024, the undersigned directed Plaintiff to file an Amended Complaint specifically identifying

whether he is asserting a claim under the FTCA, Bivens, or both. (Document No. 10.) On

January 24, 2025, Plaintiff filed his Amended Complaint. (Document No. 11.) As Defendants,

Plaintiff names the following: (1) J. Conner, SHU Property Correctional Officer at FCI Beckley;

and (2) A. Ross, SHU One Correctional Officer at FCI Beckley. (Id., p. 2.) Plaintiff alleges that

the above Defendants acted with deliberate indifference to his safety in violation of the Eighth

Amendment by failing to intervene and protect Plaintiff from an attack by a fellow inmate. (Id.,

p. 4.) Specifically, Plaintiff states as follows:

On 10-22-23, Correctional Officer J. Conner gave Inmate Rivera Diaz #

32598-089 eyeglasses out of his property in the SHU at FCI Beckley. [Inmate]

Rivera made a knife out of them and stabbed me in the face with the. Correctional

Officer A. Ross gave other correctional officers instruction to lie and cover up

what happen by telling them to writ an Incident Report for a 201 and that they are

not to say nothing about the knife they found or about the stabbings. I am

asserting this claim under Bivens for letting an inmate retrieve an object to make a

knife and giving instructions to cover up evidence. These Correctional Officers

have violated my Eighth Amendment rights.

(Id.) As relief, Plaintiff requests monetary relief. (Id.)

STANDARD

good time credit, an award of good time credit is not an available remedy in either Bivens or the

FTCA.

2

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court is required to screen each case in which

a plaintiff seeks to proceed in forma pauperis, and must dismiss the case if the complaint is

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary

relief from a defendant who is immune from such relief. Pursuant to 28 U.S.C. § 1915A, a

similar screening is conducted where a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity. This screening is done prior to consideration of an

Application to Proceed Without Prepayment of Fees and Costs, and notwithstanding the payment

of any filing fee. On screening, the Court must recommend dismissal of the case if the complaint

is frivolous, malicious or fails to state a claim upon which relief can be granted. A “frivolous”

complaint is one which is based upon an indisputably meritless legal theory. Denton v.

Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). A “frivolous” claim lacks “an

arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827,

1831 - 32, 104 L.Ed.2d 338 (1989). A claim lacks an arguable basis in law when it is “based on

an indisputably meritless legal theory.” Id., 490 U.S. at 327, 109 S.Ct. at 1833. A claim lacks an

arguable basis in fact when it describes “fantastic or delusional scenarios.” Id., 490 U.S. at

327-28, 109 S.Ct. at 1833. A complaint, therefore, fails to state a claim upon which relief can be

granted factually when it appears beyond doubt that the plaintiff can prove no set of facts in

support of her claim which would entitle her to relief. With these standards in mind, the Court

will assess Plaintiff’s allegations in view of applicable law.

This Court is required to liberally construe pro se documents, holding them to a less

stringent standard than those drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct.

285, 50 L.Ed.2d 251 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (1978). Liberal

3

construction, however, “does not require courts to construct arguments or theories for a pro se

plaintiff because this would place a court in the improper role of an advocate seeking out the

strongest arguments and most successful strategies for a party.” Miller v. Jack, 2007 WL

2050409, at * 3 (N.D.W.Va. 2007)(citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978)).

Further, liberal construction does not require the “courts to conjure up questions never squarely

presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). In other

words, a court may not construct legal argument for a plaintiff. Small v. Endicott, 998 F.2d 411

(7th Cir.1993). Finally, the requirement of liberal construction does not mean that the Court can

ignore a clear failure in the pleadings to allege facts which set forth a claim currently cognizable

in a federal district court. Weller v. Department of Social Servs., 901 F.2d 387 (4th Cir.1990)).

Where a pro se Complaint can be remedied by an amendment, however, the District Court may

not dismiss the Complaint with prejudice, but must permit the amendment. Denton v. Hernandez,

504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992); also see Goode v. Central Va.

Legal Aide Society, Inc., 807 F.3d 619 (4th Cir. 2015).

ANALYSIS

A. Challenge Concerning Plaintiff’s Disciplinary Hearing:

In his Complaints, Plaintiff indicates that he received an Incident Report for fighting

based upon the attack by the fellow inmate. (Document Nos. 2 and 11.) Plaintiff complains that

he lost good time credit as a result of this Incident Report. (Id.) Plaintiff appears to assert that he

was denied due process because Defendants lied and falsified evidence to support the Incident

Report.3 (Id.)

3 To the extent Plaintiff alleges that the disciplinary charges were false, such does not state a

constitutional claim. It is well-established that the act of filing false disciplinary charges does not

itself violate a prisoner’s constitutional rights. See Freeman v. Rideout, 808 F.2d 949, 951 (2nd

4

In Heck v. Humphrey, 512 U.S.477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) the

Supreme Court established the following test to determine whether a prisoner’s claim for

violation of due process in the context of a criminal proceeding is cognizable under 42 U.S.C. §

1983.

In order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct appeal, expunged by executive

order, declared invalid by a state tribunal authorized to make such determination,

or called into question by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or

sentence that has not been so invalidated is not cognizable under § 1983. Thus,

when a state prisoner seeks damages in a § 1983 suit, the district court must

consider whether a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction or sentence has

already been invalidated. But if the district court determines that the plaintiff’s

action, even if successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff, the action should be allowed to proceed,

in the absence of some other bar to the suit.

Heck, 512 U.S. at 487, 114 S.Ct. at 2372-73; see also Poston v. Shappert, 222 Fed.Appx. 301 (4th

Cir. 2007)(applying Heck rationale to bar claims for damages under Section 1983 and Bivens);

Messer v. Kelly, 129 F.3d 1259 (4th Cir. 1997)(stating that the rationale in Heck applies in Bivens

actions).

Cir. 1986)(“The act of filing false disciplinary charges does not itself violate a prisoner’s

constitutional rights.”); McClary v. Fowlkes, 2008 WL 3992637, *4 (E.D.Va. 2008)(finding

inmate has no constitutional right against being falsely accused of conduct that may result in

deprivation of protected liberty interest); Rhodes v. Sterling, 475 F.Supp.3d 470 (D.S.C. July 30,

2020)(allegations that false disciplinary charges were brought were insufficient to state a Section

1983 claim); Jenkins v. Bittinger, 2016 WL 11410971, * 2 (D.S.C. Oct. 17, 2016)(“Plaintiff has

no actionable constitutional claim against either [defendant] based on his allegations of their

filing ‘false’ disciplinary charges.”).

5

The Supreme Court applied the Heck rule to prison disciplinary proceedings in Edwards

v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), when it held that, in the

context of prison disciplinary hearings that result in the loss of good-time credits, challenges to

prison hearing procedures which necessarily imply the invalidity of the judgment must be

pursued in habeas corpus, not in a Section 1983 action. In Balisok, the inmate alleged that he

was denied the opportunity to put on a defense due to the deceit and bias of the hearing officer.

The Court held “that [Balisok’s] claim for declaratory relief and money damages, based on

allegations of deceit and bias on the part of the decision maker that necessarily imply the

invalidity of the punishment imposed, is not cognizable under § 1983.” Edwards, 520 U.S. at

648, 117 S.Ct. at 1589. Accordingly, the undersigned proposes that the District Court find (1)

that Plaintiff alleges that he was denied due process in connection with his prison disciplinary

hearing, (2) that his contentions imply the invalidity of the disciplinary hearings and the review

and appeal process, (3) that there has been no invalidation of the disciplinary hearing, and (4)

that his claim is therefore barred.4

B. Extension of Bivens:

“[F]ederal courts must take cognizance of the valid constitutional claims of prison

4 The undersigned further notes that prisoner disciplinary proceedings are not part of criminal

prosecution. Thus, the full panoply of rights due a defendant in criminal proceedings do not

apply in prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct.

2963, 2975, 41 L.Ed.2d 935 (1974)(“there must be mutual accommodation between institutional

needs and objective and the provisions of the Constitution”). Inmates, however, are entitled to

the following procedural safeguards during disciplinary hearings: (1) advance written notice to

the inmate of the claimed violation; (2) an opportunity for the inmate to call witnesses and

present documentary evidence in his defense when permitting him to do so will not be unduly

hazardous to institutional safety or correctional goals; and (3) a written statement by the fact

finders of the evidence relied on and the reasons for the disciplinary action. Id., at 563 - 66. If

Plaintiff believes he was denied any of the above procedural safeguards, Plaintiff should file an

Application under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in State or Federal

Custody.

6

inmates.” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). A

Bivens action is a judicially created damages remedy which is designed to vindicate violations of

constitutional rights by federal actors. See Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. at 395-97, 91 S.Ct. at 2004-05. A Bivens action is the federal

counterpart of an action under 42 U.S.C. § 1983. An action for money damages may be brought

against federal agents acting under the color of their authority for injuries caused by their

unconstitutional conduct. Proof of causation between the official’s conduct and the alleged injury

is necessary for there to be liability. A plaintiff asserting a claim under Bivens must show the

violation of a valid constitutional right by a person acting under color of federal law. Bivens core

premise is to deter individual officers’ unconstitutional acts. Correctional Services Corp v.

Malesko, 534 U.S. 61, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001)(declining to extend Bivens to

confer a right of action for damages against private entities acting under the color of federal law).

In Bivens, the Supreme Court first recognized that a victim of a Fourth Amendment violation by

federal officers may bring suit for money damages against the officers in federal court. Bivens,

403 U.S. at 396, 91 S.Ct. 1999; Hernandez v. Mesa, 589 U.S. 93, 140 S.Ct. 735, 741, 206

L.Ed.2d 29 (2020)(In Bivens, “the Court broke new ground by holding that a person claiming to

be the victim of an unlawful arrest and search could bring a Fourth Amendment claim for

damages against the responsible agents.”) In the years following the decision in Bivens, the

Supreme Court recognized an implied damages remedy under the Due Process Clause of the

Fifth Amendment for a claim of sex discrimination, Davis v. Passman, 442 U.S. 228, 99 S.Ct.

2264, 60 L.Ed.2d 846 (1979), and the Cruel and Unusual Punishments Clause of the Eighth

Amendment for a prisoner’s claim of inadequate medical care, Carlson v. Green, 446 U.S. 14,

7

100, S.Ct. 1468, 64 L.Ed.2d 15 (1980). Since Carlson, the Supreme Court has consistently

refused to extend Bivens liability to any new context or new category of defendants. See Egbert

v. Boule, 596 U.S. 482, 486, 142 S.Ct. 1793, 1799-80, 213 L.Ed.2d 54 (2022)(noting that the

Supreme Court has declined 11 different time to imply similar causes of actions in the years

since Bivens was decided); FDIC v. Meyer, 510 U.S. at 484-86, 114 S.Ct. 996(declined to extend

Bivens to permit suit against a federal agency); also see Bulger v. Hurwitz, 62 F.4th 127, 138 (4th

Cir. March 3, 2023)(rejecting request to extend Bivens to a prisoner’s Eighth Amendment failure

to protect and intervene claims against BOP officials); Dyer v. Smith, 56 F.4th 271, 275 (4th Cir.

2022)(declining request to extend Bivens to claims against Transportation and Security

Administration officers for violations of the First and Fourth Amendments); Tate v. Harmon, 54

F.4th 839, 841-42 (4th Cir. 2022)(rejecting request to extend Bivens to conditions of confinement

claim under the Eighth Amendment); Annappareddy v. Pascale, 996 F.3d 120, 126 (4th Cir.

2021)(declining to extend Bivens to claims against federal prosecutors and investigators for

violations of the Fourth and Fifth Amendments); Earle v. Shreves, 990 F.3d 774, 776 (4th Cir.

2021)(rejecting request to extend Bivens to claims of unlawful retaliation by prison officials for

filing grievances in violation of the First Amendment); Tun-Cos v. Perrotte, 922 F.3d 514,

517-18 (4th Cir. 2019)(declining to extend Bivens to claims of unlawful searches and seizures by

Immigration and Customs Enforcement agents in violation of the Fourth and Fifth

Amendments); Holly v. Scott, 434 F.3d 287, 290 (4th Cir. 2006)(declining to extend Bivens to an

Eighth Amendment claim against employees of a privately operated prison); Lebron v.

Rumsfeld, 670 F.3d 540 (4th Cir. 2012)(declining to extend Bivens in a military context). In

2017, the Supreme Court made clear the very limited scope of Bivens actions and that

8

“expanding the Bivens remedy is now a disfavored judicial activity.” Ziglar v. Abbasi, 582 U.S.

120, 134, 137 S.Ct. 1843, 1857, 198 L.Ed.2d 290 (2017). If the asserted Bivens claim is not one

of the three Bivens-type actions previously recognized by the Supreme Court, closer scrutiny is

required. Id. More recently, the Supreme Court in Egbert noted “[n]ow long past the heady days

in which this Court assumed common-law powers to create causes of action [such as Bivens], we

have come to appreciate more fully the tension between this practice and the Constitution’s

separation of legislative and judicial power.” Egbert, 596 U.S. at 490, 142 S.Ct. at 1802(internal

citations omitted). The Supreme Court stated that “[i]n both statutory and constitutional cases,

our watchword is caution.” Hernandez, 589 U.S. at 100, 140 S.Ct. at 742; Tate, 54 F.4th at

844(stating that the Supreme Court’s “recent admonitions are clear: ‘[T]he Judiciary’s authority

to [create a cause of action under the Constitution] is, at best, uncertain,’ . . . ; courts must

beware of ‘arrogating legislative power’. . .; and ‘our watchword is caution,’. . .”)(internal

citations omitted). The Supreme Court explained that “a federal court’s authority to recognize a

damages remedy must rest at bottom on a statute enacted by Congress, . . . and no statute

expressly creates a Bivens remedy.” Hernandez, 589 U.S. at 100, 140 S.Ct. at 742; also see

Egbert, 596 U.S. at 502, 142 S.Ct. at 1809(“[M]ore recently, we have indicated that if we were

called to decide Bivens today, we would decline to discover any implied causes of action in the

Constitution.”)

Although the Supreme Court called into doubt the validity of the “implied rights” in

Bivens, the Supreme Court did not overturn Bivens. Id. The Supreme Court, however,

“impose[d] a highly restrictive analysis for Bivens cases by (1) narrowing the precedential scope

of Bivens, Davis, and Carlson and (2) imposing a broad standard of criteria that, if satisfied,

9

require courts to reject any expansion of Bivens remedies.” Tate, 54 F.4th at 844. The Supreme

Court explained that when asked to extend Bivens, a Court should engage in a two-step inquiry.

Hernandez, 489 U.S. at 101, 140 S.Ct. at 743. First, the Court should inquire “whether the

request involves a claim that arises in a ‘new context’ or involves a ‘new category of

defendants.’” Id.(citation omitted). The Supreme Court clarified that its “understanding of a ‘new

context’ is broad,” thereby requiring the scope of the exiting Bivens causes of action to be

narrowly construed. Id. Second, if a claim is found to arise in a new context, the Court should

inquire “whether there are any ‘specific factors [that] counsel hesitation’ about granting the

extension.” Id.(quoting Abbasi, 582 U.S. at 135, 137 S.Ct. at 1857); also see Greenpoint Tactical

Income Fund LLC v. Pettigrew, 38 F.4th 555, 561 (7th Cir. 2022)(The two-part test used

post-Abbasi to evaluate claims under Bivens remains the same after Egbert); Feao v. Ponce, 2023

WL 3213553 (C.D.Cal. March 3, 2023)(Although Egbert indicates that existence of “special

factors” can itself create a new context, the court rejected defendants’ argument that Egbert had

the effect of collapsing the inquiry altogether and dispensing with the “next context” inquiry).

In Abbasi, the Supreme Court set out a framework for determining whether a claim

presents a “new Bivens context.” Abbasi, 582 U.S. at 140, 137 S.Ct. at 1860. As stated above,

the Supreme Court has recognized a Bivens remedy in only three cases: (1) A Fourth

Amendment claim against agents of the Federal Bureau of Narcotics for violating the prohibition

against unlawful searches and seizures when they handcuffed a man in his home without a

warrant; (2) A Fifth Amendment general discrimination claim against a congressman for firing

his female administrative assistant; and (3) An Eighth Amendment claim brought by an inmate’s

estate against prison officials for failure to provide adequate medical care for his asthma. Id. at

10

1854-55(citations omitted). The Abbasi Court explained that “[i]f the case is different in a

meaningful way from previous Bivens cases decided by this Court, then the context is new.” Id.

at 1859. Although the Abbasi Court did not provide “an exhaustive list of differences that are

meaningful enough to make a given context a new one,” the Court did provide the following

“instructive” examples:

A case might differ in a meaningful way because of the rank of the officers

involved; the constitutional right at issue; the generality or specificity of the

official action; the extent of judicial guidance as to how an officer should respond

to the problem or emergency to be confronted; the statutory or other legal

mandate under which the officer was operating; the risk of disruptive intrusion by

the Judiciary into the functioning of other branches; or the presence of potential

special factors that previous Bivens cases did not consider.

Id. at 1859-60. In Tate, the Fourth Circuit recognized that a single fact distinguishing a case from

Bivens, Davis, and Carlson, potentially can create a “new context.” Tate, 54 F.4th at 846.

Liberally construing Plaintiff’s Complaints, Plaintiff appears to argue that Defendants

violated his Eighth Amendment rights by failing to intervene to prevent an inmate from

possessing eyeglasses that could be converted into a weapon and failing to protect Plaintiff from

an attack by this inmate. (Document Nos. 2 and 11.) Thus, the undersigned first considers

whether Plaintiff’s Eighth Amendment claims concerning failure to intervene and failure to

protect constitutes an improper extension of Bivens. Although the Supreme Court has recognized

an implied right of action for an Eighth Amendment claim based on deliberate indifference to

serious medical needs in Carlson, the Supreme Court has never held that Bivens extends to a

claim for failure to protect or failure to intervene. The Fourth Circuit recently considered the

foregoing and determined that a prisoner’s Eighth Amendment failure to protect and intervene

claims presented a “new context.” Bugler v. Hurwitz, 62 F.4th 127, 138 (4th Cir. 2023)(finding

11

plaintiff’s claims of failure to intervene and failure to protect from prisoner-on-prisoner violence

were claims “not authorized by Carlson but instead present a new context”); also see Fisher v.

Hollingworth, 115 F.4th 197, 206 (3rd Cir. 2024)(finding an inmate’s Eighth Amendment

failure-to-protect claim is a new context); Sargeant v. Barfield, 87 F.4th 358, 364-69 (7th Cir.

2023)(same); Chambers v. Herrera, 78 F.4th 1100, 1105-07 (9th Cir. 2023)(same). As the Third

Circuit explained in Fisher, an Eighth Amendment claim for failure to provide medical treatment

differs meaningfully from an Eighth Amendment claim for failure to prevent inmate-on-inmate

assault. Fisher, 115 F.4th at 206. Specifically, the Third Circuit explained as follows:

Unlike a failure-to-treat claim, a failure-to-protect claim seeks to impose liability

on prison officials who fail to control the behavior a third parties. Preventing

inmate-on-inmate assault requires keeping dangerous inmates apart from the

targets of their violence. Decisions about the placement and transfer of inmates

involve different concerns than decisions about the treatment of diseases like

asthma. And a cause of action for failure to protect from inmate-on-inmate

violence is likely to have different “systemwide consequences” than Carlson’s

cause of action for failure to provide medical treatment. So this case differs from

Carlson in meaningful ways.

Id. Based upon the foregoing, the undersigned finds that Plaintiff’s failure to intervene and

protect claims present a new Bivens context.

Next, the Court must determine whether Bivens should be extended to the above new

context. First, the Court should consider “whether any alternative, existing process for protecting

the interest amounts to a convincing reason for the Judicial Branch to refrain from providing a

new freestanding remedy in damages.” Wilkie, 551 U.S. at 550, 127 S.Ct. 2588. “[T]he existence

of alternative remedies usually precludes a court from authorizing a Bivens action.” Abbasi, 137

S.Ct. at 1865(“[I]f there is an alternative remedial structure present in a certain case, that alone

may limit the power of the Judiciary to infer a new Bivens cause of action.”); Malesko, 534 U.S.

12

at 69, 122 S.Ct. at 515(“So long as the plaintiff had an avenue for some redress,” a court may

decline to provide a new Bivens remedy). Alternative remedies can include administrative,

statutory, equitable, and state law remedies. The undersigned finds that Plaintiff had alternative

remedies available to him through the BOP administrative remedy program. See Bulger, 62 F.4th

at 140-41(finding that the existence of alternative remedial structure under the BOP’s

Administrative Remedy Program counseled against extending Bivens); Fisher, 115 F.4th at

208(“[T]he BOP’s Administrative Remedy Program precludes a Bivens remedy.”) The BOP

administrative remedy program allows inmates to seek formal review of issues relating to any

aspect of his or her confinement. Finally, the Federal Tort Claims Act authorizes claims for

damages against the United States for certain intentional torts committed by federal officers.5

5 An inmate “can sue under the FTCA to recover damages from the United States Government

for personal injuries sustained during confinement in a federal prison, by reason of the

negligence of a government employee.” United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10

L.Ed.2d 805 (1963). The FTCA, however, does not create a new cause of action. Medina v.

United States, 259 F.3d 220, 223 (4th Cir. 2001). The statute merely waives sovereign immunity

and “permits the United States to be held liable in tort in the same respect as a private person

would be liable under the law of the place where the act occurred.” Id. Thus, the FTCA is a

limited waiver of sovereign immunity. This waiver is subject to the condition that an

administrative claim must first be submitted to the appropriate agency and denied before suit can

be filed. See 28 U.S.C. § 2675(a); also see Bellomy v. United States, 888 F. Supp. 760

(S.D.W.Va. 1995). As a general matter, filing a timely administrative claim is jurisdictional and

cannot be waived. Ahmed v. United States, 30 F.3d 514, 516 (4th Cir. 1994)(citing Henderson v.

United States, 785 F.2d 121, 123 (4th Cir. 1986); Muth v. United States, 1 F.3d 246 (4th Cir.

1993); Gibbs v. United States, 34 F.Supp.2d 405 (S.D.W.Va. 1999). Thus, before an inmate can

bring a claim under the FTCA, the inmate must exhaust procedures specified at 28 C.F.R. §§

14.1 to 14.11 and 543.30 to 543.32. Additionally, the Court cannot hold the case in abeyance

while a plaintiff presents an administrative tort claim with the appropriate agency. See Plyer v.

United States, 900 F.2d 41, 42 (4th Cir. 1990)(“Since the district court has no jurisdiction at the

time the action was filed, it could not obtain jurisdiction by simply not acting on the Motion to

Dismiss until the period had expired.”). The Fourth Circuit has also recognized that “[a]n

administrative claim must be properly presented.” Kokotis v. United States Postal Service, 223

F.3d 275, 278 (4th Cir. 2000). In the above action, there is no allegation or indication that

Plaintiff satisfied the requirement of presenting an administrative claim for a sum certain to the

proper agency. A liberal review of Plaintiff’s Amended Complaint reveals only allegations of

personal liability against Defendants for violations of Plaintiff’s Eighth Amendment rights.

13

See Millbrook v. United States, 569 U.S. 50, 54 – 57, 133 S.Ct. 1441, 185 L.Ed2d 531 (2013);

also see Ball, 655 F.Supp.3d at 443-44(explaining that the FTCA offers an alternative remedy for

“certain intentional torts committed by federal officers, including assault and battery”).

Irrespective of whether an alternative remedy exists, a Bivens remedy should not be

extended where “there are ‘special factors counselling hesitation in the absence of affirmative

action by Congress.’” Abbasi, 137 S.Ct. at 1857(quoting Carlson, 446 U.S at 18, 100 S.Ct.

1468). Although the Supreme Court has not defined what constitutes “special factors counselling

hesitation,” the Court has observed that “[t]he necessary inference . . . is that the inquiry must

concentrate on 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.” Id. at

1857-58. Put simply, “a factor must cause a court to hesitate before answering that question in

the affirmative.” Id. at 1858. “[L]egislative action suggesting that Congress does not want a

damages remedy is itself a factor counseling hesitation.” Id. at 1865. The Abassi Court explained

that since Congress did not provide for a standalone damages remedy against federal jailers when

it passed the Prison Litigation Reform Act [“PLRA”], “[i]t could be argued that this suggests

Congress chose not to extend the Carlson damages remedy to cases involving other types of

prisoner mistreatment.” Id. The Supreme Court explained as follows:

Some 15 years after Carlson was decided, Congress passed the [PLRA] of 1995,

which made comprehensive changes to the way prisoner abuse claims must be

brought in federal court. See 42 U.S.C. § 1997e. So it seems clear that Congress

had specific occasion to consider the matter of prisoner abuse and to consider the

proper way to remedy those wrongs.

Id. The PLRA’s exhaustion requirement clearly applies to Bivens actions. Porter v. Nussle, 534

Furthermore, the undersigned directed Plaintiff to file an Amended Complaint clarifying whether

he was asserting a Bivens claim, FTCA claim, or both. Plaintiff filed his Amended Complaint

specifically stating he was asserting only a Bivens claim.

14

U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The Supreme Court has further recognized

that in enacting the PLRA, Congress intended to “reduce the quantity and improve the quality of

prisoner suits.” Jones v. Bock, 549 U.S. 199, 203-04, 127 S.Ct. 910, 1666 L.Ed.2d 798

(2007)(citing Porter v. Nussle, 534 U.S. at 524, 122 S.Ct. at 983). Additionally, the Supreme

Court has stated that “courts are ill equipped to deal with the increasingly urgent problems of

prison administration and reform.” Turner v. Safely, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96

L.Ed.2d 64 (1987)(citation omitted). The Supreme Court explained that “[r]unning a prison is an

inordinately difficult undertaking that requires expertise, planning, and the commitment of

resources, all of which are peculiarly within the province of the legislative and executive

branches of government.” Id. Since prison administration is a task that has been committed to the

responsibility of the legislative and executive branches of government, the Supreme Court has

stated that “separation of powers concerns counsel a policy of judicial restraint.” Id., 482 U.S. at

85, 107 S.Ct. at 2259. Thus, the foregoing supports a finding that Congress has been active in

creating legislation regarding prisoner litigation and such causes the undersigned hesitation as to

expanding Bivens to Plaintiff’s sexual assault claim. See Reid, 2018 WL 1588264 at * 3(finding

Congress has been active in the area of prisoners’ rights, and its actions do not support the

creation of a new Bivens claim); Gehrke, 2018 WL 1334936 at * 4(same); Gonzalez, 269

F.Supp.3d at 61(same); Ball, 655 F.Supp.3d at 443-45(explaining that special factors counselled

hesitation in recognizing a new cause of action under Bivens for sexual assault claims).

Furthermore, the Abbasi Court explained that “the decision to recognize a damage

remedy requires an assessment of its impact on governmental operations systemwide.” Abbasi,

137 U.S. at 1858. The impact on governmental operations systemwide include “the burdens on

15

Government employees who are sued personally, as well as the projected costs and consequences

to the Government itself when the tort and monetary liability mechanisms of the legal systems

are used to bring about the proper formulation and implementation of public policies.” Id. The

Supreme Court has emphasized that “’Congress is in a far better position than a court to evaluate

the impact of a new species of litigation’ against those who act on the public’s behalf.” Wilkie,

551 U.S. at 562, 127 S.Ct. 2588(quoting Bush, 462 U.S at 389, 103 S.Ct. 2404). In Abbasi, the

Supreme Court further explained as follows:

Claims against federal officials often create substantial costs, in the form of

defense and indemnification. Congress, then, has a substantial responsibility to

determine whether, and the extent to which, monetary and other liabilities should

be imposed upon individual officers and employees of the Federal Government.

In addition, the time and administrative costs attendant upon intrusions resulting

from the discovery and trial process are significant factors to be considered.

Abbasi, 137 U.S. at 1856. The undersigned notes that expanding Bivens to allow an Eighth

Amendment failure to intervene or protect claim would clearly result in an increase of suits by

inmates. This increase in suits would result in increased litigation costs to the Government and

impose a burden upon individual employees to defend such claims. Accordingly, the undersigned

finds there are special factors counselling hesitation as to the expansion of Bivens to an Eighth

Amendment failure to intervene or protect claim. See Bulger, 62 F.4th at 140(finding “multiple

special factors counsel against creating a new Bivens remedy” concerning an inmate’s failure to

intervene and protect claim); also see Greene, 2022 WL 13638916, * at 4; C.J., 2023 WL

3854056, * at 2; Berry, 2023 WL 2424181, * at 5 - 6; Ball, 655 F.Supp.3d at 443-45; Carthen,

2023 WL 346675, * 6 – 8. Based upon the foregoing, the undersigned respectfully recommends

that the District Court find that Plaintiff has failed to state a claim upon which relief cannot be

granted concerning his Eighth Amendment failure to intervene and protect claim.

16

PROPOSAL AND RECOMMENDATION

The undersigned therefore respectfully PROPOSES that the District Court confirm and

accept the foregoing findings and RECOMMENDS that the District Court DISMISS Plaintiffs

Complaints (Document Nos. 2 and 11), and REMOVE this matter from the docket.

The Plaintiff is hereby notified that this “Proposed Findings and Recommendation” is

hereby FILED, and a copy will be submitted to the Honorable United States District Judge

Frank W. Volk. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B),

and Rule 6(d) and 72(b), Federal Rules of Civil Procedure, the Plaintiff shall have fourteen (14)

days (filing of objections) and three (3) days (if received by mail) from the date of filing of this

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

objections identifying the portions of the Findings and Recommendation to which objection is

made and the basis of such objection. Extension of this time period may be granted for good

cause.

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, 1366 (4th Cir. 1989); Thomas v. Arn, 474 U.S. 140, 155

(1985); Wright v. Collins, 766 F.2d 841, 846 (4th Cir. 1985); United States v. Schronce, 727

F.2d 91, 94 (4th Cir. 1984). Copies of such objections shall be served on opposing patties,

District Judge Volk and this Magistrate Judge.

The Clerk is requested to send a copy of this Proposed Findings and Recommendation to

Plaintiff, who is acting pro se.

Date: February 7, 2025. Gres PISTR IE

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