GEDEON v. THE ATTORNEY GENERAL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

PASCAL GEDEON :

Plaintiff, :

:

v. : Civil No. 2:22-cv-03595-JMG

:

THE ATTORNEY GENERAL, et al., :

Defendants. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. March 14, 2025

I. INTRODUCTION

Pascal Gedeon (“Plaintiff”) brings claims under Bivens v. Six Unknown Agents, 403 U.S.

388 (1971) (“Bivens claims”), against individuals who worked at the Federal Detention Center of

Philadelphia (“FDC”). He alleges that these federal officials violated his constitutional rights. The

remaining defendants in this action, Ramona Kistler, Dr. Odeida Dalmasi, Brian Flanary, and Justin

Mendek (collectively “Moving Defendants”), have moved to dismiss under Fed. R. Civ. P. 12(b)(1)

and 12(b)(6). There are two active claims, both Bivens claims, that are attacked in Defendants’

Motion. One alleges that Defendants Kistler and Odeida failed to properly diagnose Plaintiff with

food allergies, and the next alleges that Defendants Flanary and Mendek placed Plaintiff in a cell

without access to drinking water. However, Plaintiff has failed to satisfy the exhaustion

requirements of the Prison Litigation Reform Act (“PLRA”) and is thus barred from proceeding

on these claims. What’s more, Defendant Kistler is immune from Plaintiff’s claim as a

commissioned officer of the United States Public Health Service (the “PHS”). As to the other

Defendants, Plaintiff fails to state a cognizable Bivens claim. The Court will grant Defendants’

Motion to Dismiss, and dismiss Plaintiff’s claims with prejudice.

II. FACTUAL & PROCEDURAL BACKGROUND

Plaintiff filed his Complaint (ECF No. 2) and a Motion for Leave to Perform in forma

pauperis (“IFP”) (ECF No. 1) on September 2, 2022. At its inception, this case was assigned to

Judge Gene Pratter. Judge Pratter granted his Motion to Proceed IFP and screened his Complaint.

See ECF Nos. 9 & 10. She dismissed all his claims—she dismissed some with prejudice, but others

she dismissed without prejudice and allowed him to file an amended complaint. See id.

Plaintiff filed his Amended Complaint (ECF No. 19) on November 23, 2022. This

Amended Complaint was again screened by Judge Pratter pursuant to 28 U.S.C. § 1915(e)(2)(B).

See ECF Nos. 20 & 21. Judge Pratter allowed two of Plaintiff’s claims to proceed to the responsive

pleading stage: (1) Plaintiff’s “individual capacity claims against Defendants R. Kistler and Dr.

Dalmasi in treating his allergy symptoms” and (2) Plaintiff’s “individual capacity claims against

Defendants Mendek and Flanary for placing him in a cell with no access to drinking water.” See

ECF No. 21 at ¶ 2.

On May 22, 2024, this case was reassigned to this Court following Judge Pratter’s passing.

See ECF No. 53. The Defendants filed their Motion to Dismiss on August 27, 2024. See ECF No.

58. The Court allowed Plaintiff extra time to file a response to Defendants’ Motion. See ECF No.

61 at ¶ c. Plaintiff filed responses on October 17, 2024, see ECF No. 63, and November 8, 2024.

See ECF No. 65. Defendants have filed a reply brief in support of their Motion. See ECF No. 68.

III. STANDARDS OF REVIEW

When a defendant brings a motion to dismiss under Fed. R. Civ. P. 12(b)(1) he argues that

the court lacks subject matter jurisdiction to entertain the plaintiff’s claims. See Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“Federal courts are courts of limited

jurisdiction. They possess only that power authorized by Constitution and statute . . . It is to be

presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the

contrary rests upon the party asserting jurisdiction.” (internal citations omitted)). A challenge to

the court’s subject matter jurisdiction may be facial or factual. See Petruska v. Gannon Univ., 462

F.3d 294, 302 (3d Cir. 2006). For a “factual” challenge to jurisdiction under Fed. R. Civ. P.

12(b)(1), “it is permissible for a court to review evidence outside the pleadings.” United States ex

rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).

A motion made under Fed. R. Civ. P. 12(b)(6) seeks dismissal for failure to state a claim.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at

556). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). A court is “not compelled to

accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a

factual allegation.” Wheeler v. Wheeler, 639 F. App’x 147, 149 (3d Cir. 2016) (quoting Morrow v.

Balaski, 719 F.3d 160, 165 (3d Cir. 2013)).

Also, Plaintiff brings his claims pro se. “A document filed pro se is to be liberally construed

and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation

omitted).

IV. ANALYSIS

a. Plaintiff Failed to Exhaust His Administrative Remedies

First, Plaintiff’s claims fail because he has not exhausted his administrative remedies as is

required by the PLRA. See 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524

(2002) (finding PLRA’s exhaustion requirement to be “mandatory”). PLRA exhaustion is a

“threshold issue that courts must address to determine whether litigation is being conducted in the

right forum at the right time.” Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018).

“[E]xhaustion of all available administrative remedies is required for any suit challenging prison

conditions.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). This includes claims under brought under

Bivens. See Nyhuis v. Reno, 204 F.3d 65, 68-69 (3d Cir. 2000) (“Congress clearly intended to sweep

Bivens actions into the auspices of § 1997e(a) when it enacted the PLRA.”).

Here, Plaintiff does not allege in his Amended Complaint that he has exhausted the

requisite administrative remedies, but rather he claims this failure to exhaust should be excused.

See ECF No. 19 at 2-3 (“Threats of retaliation and not just retaliation may be sufficient to excuse

exhaustion. . . . Fact that administrative requirements under 28 U.S.C. 2675 are jurisdictional does

not prevent court from considering whether there extenuating circumstances requiring that

technical compliance be excused in the interest of justice.”). Plaintiff’s argument as to this point

fails. Fear of retaliation “do[es] not except [Plaintiff] from the exhaustion requirement.” Pena-Ruiz

v. Solorzano, 281 F. App’x 110, 113 (3d Cir. 2008) (“[T]his Court has made clear that the

exhaustion requirement is mandatory and has not recognized ‘sensitive’ subject matter or ‘fear of

retaliation’ as a basis for excusing a prisoner’s failure to exhaust.” (internal citation omitted)).

Plaintiff has not exhausted the required administrative remedies and there is no question of

fact as to this point. Defendants have attached records from the Bureau of Prisons which indicate

that Plaintiff has made no administrative claims since he entered federal custody. See ECF No. 58-

2.1 Accordingly, Plaintiff’s claims can be dismissed for failure to exhaust the administrative

remedies as required by the PLRA. The Court will continue to analyze other argued reasons for

dismissal, as the Court finds that, ultimately, dismissal of Plaintiff’s claims with prejudice is

appropriate.

b. Defendant Kistler is Immune as an Officer of the Public Health Service

Plaintiff’s claim against Defendant Ramona Kistler fails because she has absolute

immunity from Plaintiff’s claim as a commissioned officer of the Public Health Service. Plaintiff

claims that Defendant Kistler failed to properly diagnose his food allergies. See ECF No. 19 at 5-

6. The essence of this claim, as Plaintiff alleges, is that Defendants Kistler and Dalmani

misdiagnosed his food allergies as anxiety. See id. at 5. Plaintiff claims “12 months for an allergy

test is excessive and that is a denial to access of medical care.” Id. at 6.

Federal law “grants absolute immunity to PHS officers and employees for actions arising

out of the performance of medical or related functions within the scope of their employment by

barring all action against them for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010)

(citing 42 U.S.C. § 233(a)). With the Motion to Dismiss, Defendant Kistler put forth in an affidavit

that she is a Lieutenant Commander in the United States Public Health Service. See ECF No. 58-

3 at ¶ 1.2 She has been a commissioned officer with the PHS since 2012, and she has been assigned

1 The Court may consider “indisputably authentic documents related to [a prisoner’s] grievances,”

such as the ones provided by the Defendants, in adjudicating questions as to PLRA exhaustion.

See Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004).

2 See Hui, 559 U.S. at 811 (“[I]mmunity is contingent upon the alleged misconduct having occurred

in the course of the PHS defendant’s duties, but a defendant may make that proof pursuant to the

ordinary rules of evidence and procedure. . . . proof of scope is in most § 233(a) cases established

by a declaration affirming that the defendant was a PHS official during the relevant time period.”).

Because this is a factual attack to the Court’s jurisdiction, the Court is permitted to examine

to the FDC as a Nurse Practitioner since 2017. See id. at ¶ 2. Given this, Plaintiff’s claim clearly

falls within the scope of her duties as a PHS officer, and thus she is immune from it.3 Any

amendment would be futile, and the Court dismisses Plaintiff’s claim against Defendant Kistler

with prejudice.

c. Plaintiff Fails to State Bivens Claims for the Remainder of the Defendants

Plaintiff’s claims against the rest of the Defendants will also be dismissed with prejudice,

as Plaintiff fails to bring cognizable claims under Bivens. The Supreme Court has recently held

that “recognizing a cause of action under Bivens is ‘a disfavored judicial activity.’” Egbert v. Boule,

596 U.S. 482, 491 (2022) (quoting Ziglar v. Abbasi, 582 U.S. 120, 135 (2017)). The Supreme Court

urges courts to be cautious in implying causes of action under Bivens. See id. Last year, the Third

Circuit gave even stricter direction: “lower courts should not extend Bivens beyond the contexts

Defendant Kistler’s August 27, 2024, affidavit in adjudicating her 12(b)(1) motion to dismiss for

lack of jurisdiction.

3 None of the cases cited by Plaintiff in his Response to Defendants’ Motion to Dismiss, see ECF

No. 63 at 3-4, persuade this Court to conclude that absolute immunity does not apply to Defendant

Kistler. For example, Plaintiff cites to Hiller v. Sogo, Civ. A. No. 20-CV-4445, 2021 WL 3403504,

at *5 (E.D. Pa. Aug. 4, 2021), where the Court allowed a deliberate indifference claim to proceed

against Defendant Kistler. However, that same court later dismissed that claim against Defendant

Kistler on the basis of absolute immunity. See Hiller v. Sogo, Civ. A. No. 20-CV-20-4445, 2022

WL 2541351, at *2-3 (E.D. Pa. July 7, 2022) (“Kistler has absolute immunity to a Bivens action,

and this claim will be dismissed.”). Other cases cited are irrelevant to this point, see, e.g., Sanders

v. Marler, Civ. A. No. 18-5477, 2022 WL 2703597 (E.D. Pa. July 12, 2022); Smith v. United States,

4:07-CV-1079, 2012 WL 580448 (M.D. Pa. Feb. 12, 2012); Morris v. Levi, Civ. A. No. 08-3842,

2011 WL 1938149 (E.D. Pa. May 20, 2011); Reynolds v. Fed. Bureau of Prisons, Civ. A. No. 09-

3096, 2010 WL 744127 (E.D. Pa. Mar. 2, 2010), or actually undercut his argument, see Cress v.

Dalmasi, Civ. A. No. 13-89, 2015 WL 1813731, at *4 (“Bivens does not provide a remedy against

defendant [ ] because actions against public health service officers must be brought under the

Federal Tort Claims Act.”); Jackson v. United States, Civ. A. No. 19-3560, 2021 WL 1174918, at

*5 (E.D. Pa. Mar. 29, 2021) (“USPHS employees enjoy an absolute statutory immunity from all

Bivens claims.”).

recognized [by the Supreme Court] in Bivens, Davis, and Carlson.” Fisher v. Hollingsworth, 115

F.4th 197, 204 (3d Cir. 2024).

To provide some context, in Bivens, “the Supreme Court implied a cause of action against

federal drug agents whose warrantless search of a home violated the Fourth Amendment.” Id. at

203. In Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court “created a Fifth Amendment

damages action against a Congressman who fired a staffer because she was a woman.” Id. Then,

in Carlson v. Green, 446 U.S. 14 (1980), the Court “implied an Eighth Amendment damages action

against federal prison officials who failed to provide medical care to an asthmatic prisoner.” Id.

So, “unless a case is indistinguishable from Bivens, Davis, or Carlson, a damages remedy may be

created by Congress, but not by the Courts.” Id. at 205 (emphasis added). There are two steps to

consider in the analysis: (1) whether the case presents a new Bivens context, or “whether the case

is different in a meaningful way from previous Bivens cases decided by the Supreme Court” and,

if so, (2) whether there are special factors counselling hesitation in extending Bivens. Kalu v.

Spaulding, 113 F.4th 311, 326 (3d Cir. 2024).

i. Denial of Drinking Water Claim Against Defendants Flanary & Mendek

Plaintiff’s first claim concerns denial of access to water. See ECF No. 19 at 11-12. He claims

that he “was assigned to a cell [ ] without a sink, and . . . and I had no way to drink water. Officer

Medek and Flannary were aware that the cell did not have a sink and did nothing to either assigned

[sic] me to another cell or replace it as soon as possible.” Id. This claim, brought under the Fifth

Amendment4, is clearly distinguishable from the three cases cited by the court in Fisher, and thus there

4 The Court agrees with Defendants that, because Plaintiff brings this claim as a pre-trial detainee,

the constitutional violation he alleges is based in the Fifth Amendment’s Due Process Clause,

rather than the Eighth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (stating it

is proper to categorize claims of pretrial detainees as claims under the “Due Process Clause rather

than the Eighth Amendment.”)

is no cognizable Bivens claim. Plaintiff’s claim presents a new context for a Bivens claim “because it

is different in a meaningful way from previous Bivens cases decided by the Supreme Court.” Kalu, 113

F.4th at 327. Perhaps the most factually similar case that Plaintiff can rest on is Carlson, but that case

involves a different constitutional provision—the Eighth Amendment. See Kalu, 113 F.4th at 327

(considering claim “meaningfully different” when claim “arises under a different constitutional

provision”). The facts are substantially different as well—Carlson was about a failure to provide

medical care to an asthmatic prisoner, this case is about the failure to place Plaintiff in a cell with a

working sink.

Moreover, although Davis and this case both implicate the Fifth Amendment, they are

brought alleging very different circumstances—one alleging gender discrimination and the other

alleging problems with prison conditions. See Fisher, 115 F.4th at 203 (describing Davis as

“creat[ing] a Fifth Amendment damages action against a Congressman who fired a staffer because

she was a woman.”); see also McIntyre v. United States Marshals Serv., Civ. No. 18-1268, 2023

WL 2447424, at *4 (D.N.J. Mar. 10, 2023) (“A common constitutional basis, in the sense of citing

the same amendment, is simply not enough to link a new Bivens theory to an existing Bivens

context.”). Recognizing a Bivens claims here would be a new context.

Then, because this is a new context for a Bivens claim, the Court moves to the second prong.

There are sufficient factors that prevent the Court from extending Bivens. The Third Circuit has

recognized two such factors as “particularly weighty”—“the existence of an alternative remedial

structure and separation-of-powers principles.” Kalu, 113 F.4th at 326 (“[A]ny reason to pause is

sufficient to forestall a Bivens extension.” (emphasis included)); Egbert, 596 U.S. at 492 (“[T]he most

important question is who should decide whether to provide for a damages remedy, Congress or the

courts? If there is a rational reason to think that the answer is ‘Congress’—as it will be in most every

case—no Bivens action may lie.” (internal citations omitted)). Here, given the availability of the prison

grievance system, there is a sufficient reason not to extend Bivens. See Kalu, 113 F.4th at 333 (“The

presence of an alternative remedial structure through BOP’s program is sufficient by itself to preclude

an extension of Bivens.” (emphasis added)); see also id. at 336 (noting additional factors that preclude

Bivens extension such as “Congress’s repeated omission of a cause of action against individual officers

in [ ] the PLRA . . . and separation of powers principles”). Because the Court will not recognize an

extension of Bivens here, he has no cognizable claim. Plaintiff’s claim against Defendants Flanary and

Mendek is dismissed with prejudice.

ii. Denial of Medical Care Claim Against Defendant Dalmasi

Next, is Plaintiff’s claim of denial of medical care against Defendant Dalmasi. Plaintiff

alleges, that Defendant Dalmasi misdiagnosed his food allergy symptom as symptoms of anxiety.

See ECF No. 19 at 5. He claims that he had to wait twelve months for an allergy test which is

“excessive” and constitutes “a denial to access of medical care.” Id. at 6.

This claim would also bring Bivens into a new context. It is true that Carlson recognized a

claim based on denial of medical care—but that claim was based in the Eighth Amendment, while

Plaintiff’s sounds in the Fifth.5 See Ziglar, 582 U.S. at 147-48 (“[A] case can present a new context

for Bivens purposes if it implicates a different constitutional right . . . The constitutional right is

different here, since Carlson was predicated on the Eighth Amendment and this claim is predicated

on the Fifth.”); see also McBride v. Laurie, Civ. A. No. 24-CV-4178, 2024 WL 4254097, at *6

(E.D. Pa. Sept. 20, 2024) (“[T]he differences between the relevant constitutional provisions and

realities of confinement pertaining to pretrial detainees and those pertaining to convicted and

sentences prisoners are a sufficient basis from which to conclude that [plaintiff’s] claims for

5 Again, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (stating it is proper to categorize claims

of pretrial detainees as claims under the “Due Process Clause rather than the Eighth Amendment.”)

deliberate indifference to his medical needs presents a new Bivens context.”). Again, the only Fifth

Amendment context where the Supreme Court recognized a Bivens case was in the context of

gender discrimination. See Davis, 442 U.S. 228. This case presents significantly different

circumstances about an alleged delay in diagnosing and treating a pre-trial detainee’s food

allergies. See McIntyre, 2023 WL 2447424, at *4 (“[T]he claims look nothing alike”).

Even if the Court were to compare this case to Carlson, which is more factually similar

than Davis, that case did not involve pretrial detainees, see id. at *5, and “the severity, type, and

treatment of [Plaintiff’s] injuries . . . [are] different from those of the plaintiff in Carlson.”

McBride, 2024 WL 4254097, at *6; see also Egbert v. Boule, 596 U.S. 482, 495 (2022) (observing

that when a case “present[s] almost parallel circumstances or a similar mechanism of injury, these

superficial similarities are not enough to support the judicial creation of a cause of action.”).

Plaintiff’s claim would be a new context from the established Bivens caselaw.

Next, given that Plaintiff’s claim would be new ground for Bivens, the Court examines if

there are any factors present that “counsel hesitation in expanding Bivens.” McIntyre, 2023 WL

2447424, at *5. “Even a single sound reason to defer to Congress is enough to require a court to

refrain from such a remedy.” Egbert, 596 U.S. at 491. There are sufficient reasons here. See

McBride, 2024 WL 4254097, at *7 (noting existence of administrative remedies, “the omission of

a cause of action against individual officials in the PLRA,” and separation of powers concerns as

factors to preclude recognizing a new Bivens claim). Plaintiff’s denial of medical care claim fails

and is dismissed with prejudice.

V. CONCLUSION

In sum, (1) Plaintiff failed to exhaust his administrative remedies, (2) Defendant Kistler is

immune from suit, and (3) Plaintiff has not plead cognizable Bivens claims. Accordingly, the

Defendants’ Motion to Dismiss (ECF No. 58) is GRANTED and Plaintiff’s claims are

DISMISSED WITH PREJUDICE. An appropriate order follows.

BY THE COURT:

/s/ John M. Gallagher

JOHN M. GALLAGHER

United States District Court Judge