# THIEME v. CARVAJAL

> District Court, D. New Jersey · August 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11130359

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CHRISTOPHER THIEME, et al.,

Plaintiffs,
Civil No. 21-682 (RMB-AMD)
v.

UNITED STATES OF AMERICA, et al., OPINION

Defendants.

APPEARANCES:

Lawrence S. Lustberg
Ruth O’Herron
Gibbons P.C.
One Gateway Center
Newark, NJ 07102-5310
On behalf of Plaintiffs

Pro bono Counsel on behalf of Plaintiffs1

John Francis Basiak, Assistant United States Attorney
U.S. Attorney’s Office
402 E. State Street, Room 430
Trenton, NJ 08608

John T. Stinson, Jr., Assistant United States Attorney
Samantha R. D’Aversa, Assistant United States Attorney
U.S. Attorney’s Office
Mitchell H. Cohen Building & U.S. Courthouse
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101-2098

Counsel on behalf of Federal Defendants

1 The Court thanks pro bono counsel for their extraordinary efforts in this case.
RENÉE MARIE BUMB, Chief United States District Judge
THIS MATTER comes before the Court following jurisdictional discovery on Federal
Defendants’ Motion to Dismiss the Second Amended Complaint. [Docket No. 38.] For the
following reasons, the Court will GRANT the Motion to Dismiss.

I. FACTUAL AND PROCEDURAL BACKGROUND
Writing primarily for the benefit of the parties, the Court offers only a brief summary
of the factual allegations and procedural background of this case which it set forth in more
detail in its prior Opinion and which it incorporates by reference. Thieme v. United States, 2023
WL 8271766, at *1–2 (D.N.J. Nov. 30, 2023) (“Thieme II”).
The operative Second Amended Complaint in this case alleges widescale
mismanagement at Federal Correctional Institution (“FCI”) Fort Dix Prison by the Federal
Defendants (“Defendants”)—high-ranking prison administrators—related to their handling
of the COVID-19 pandemic. [See Docket No. 16, Second Amended Complaint (“SAC”) ¶¶

3–5.] Plaintiffs brought claims under the Federal Tort Claims Act (“FTCA”) and for monetary
and injunctive relief under the Eighth Amendment to the U.S. Constitution on behalf of
themselves and a proposed class. [Id. ¶¶ 224–34, 235–56.]
Plaintiffs alleged that Defendants negligently exposed FCI Fort Dix prisoners to
unacceptable health risks by transferring incarcerated individuals from FCI Elkton in Ohio to
FCI Fort Dix in September and October 2020. [SAC ¶¶ 96–136.] Plaintiffs pointed to matters
of public record and evidence submitted in other cases showing that there were no cases of
COVID-19 just prior to the first FCI Elkton transfer and that, with each transfer, COVID-19
cases climbed. [SAC ¶¶ 102–05 (citing United States v. Rodriguez, 16-CR-07 (AJN) (S.D.N.Y.,

filed November 20, 2020); Docket No. 59, Declaration of Dr. Kimberly Kodger ¶¶ 9–10).]
Defendants moved to dismiss Plaintiffs’ FTCA claims for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and moved to dismiss Plaintiffs’
Eighth Amendment claims for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). The Court granted, in part, and denied, in part, Defendants’ motion to dismiss.

Thieme v. United States, 2023 WL 2584102 (D.N.J. Mar. 21, 2023) (“Thieme I”). It dismissed
Plaintiffs’ Eighth Amendment damages claim brought under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), but found that Plaintiffs could state a claim for equitable
and injunctive relief under the Eighth Amendment. Plaintiffs’ injunctive relief claims under
the Eighth Amendment have since been voluntarily dismissed upon consent of the parties,
without prejudice. Thieme I, 2023 WL 2584102, at *17.
With respect to the FTCA claims, the Court explained that it needed further briefing
to determine whether the FTCA’s discretionary function exception immunized Defendants’
COVID-19 policies and procedures from challenge. Id. at *7. The FTCA’s discretionary

function exception claws back the limited grant of sovereign immunity authorized by the Act
for “[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty ... whether or not the discretion involved be abused.” 28
U.S.C. § 2680(a). And the Court also noted that there is an exception to the exception—even
if a federal policy or procedure is discretionary, there can still be FTCA liability if the plaintiff
can show that the government violated the U.S. Constitution in carrying out (or failing to
carry out) the discretionary policies. See Xi v. Haugen, 68 F.4th 824, 837 (3d Cir. 2023).
Upon consideration of the parties’ supplemental briefing, the Court denied, in part
without prejudice, Defendants’ motion to dismiss. It found that the discretionary function

exception applied to all but one policy identified by Plaintiffs—a Bureau of Prisons (“BOP”)
memorandum entitled “Mandatory Use of Face Coverings for BOP Staff” (the “Mask
Memorandum”) which required “all BOP staff … to wear face coverings while at work when
social distancing is not possible and in common areas.” Thieme II, 2023 WL 8271766 at *5.
The Court found that the Mask Memorandum “clearly outline[d] a course of conduct that

could not be disobeyed by prison staff. It [was] a mandatory policy to which the discretionary
function exception [did] not apply.” Id.
But the Court did not have enough evidence to determine whether Plaintiffs could
plausibly allege a violation of the Eighth Amendment such that the discretionary function
exception would not apply at all. Id. at *6.2 The Court, conducting an Eighth Amendment
analysis, found that Plaintiffs had plausibly alleged objectively serious deprivations to their
health and safety given that COVID, “especially during the relevant time-period alleged pre-
vaccine—[was] [] well-known to cause a substantial risk of serious harm including
hospitalization or death.” Id. at *7. But the Court did not have enough evidence to determine

whether Defendants “were deliberately indifferent to the objectively serious harm COVID
presented,” in other words, whether Defendants “responded reasonably” to the “risk of
serious harm” posed by COVID. Id. *7–8.
So, the Court denied Defendants’ motion to dismiss the FTCA claims without
prejudice explaining that it would revisit the question of its jurisdiction over the FTCA claims

2 In so finding, the Court did not rely on its earlier ruling that Plaintiffs could plausibly state
an Eighth Amendment claim for equitable and injunctive relief under Rule 12(b)(6). That is
because Defendants brought their motion to dismiss the Eighth Amendment injunctive relief
claims under Federal Rule 12(b)(6) under which the Court could not consider evidence
outside of the pleadings and accepted all of Plaintiffs’ allegations as true. Defendants’
challenge to Plaintiffs’ FTCA claim was a factual attack on the Court's jurisdiction under Rule
12(b)(1) which meant that the Court could consider the documents submitted outside of the
pleadings. See Xi, 68 F.4th at 840.
“after the completion of relevant and expedited discovery[.]” Thieme II, 2023 WL 8271766,
at *8. The Court directed the parties to focus their jurisdictional discovery on the transfer of
289 inmates from FCI Elkton to FCI Fort Dix over four separate transports during September
and October of 2020 because Plaintiffs primarily alleged that it was those transfers that

allegedly started the rampant COVID outbreak at Fort Dix. Id. at *7 n.8; id. at *8.
The parties have completed jurisdictional discovery and submitted their second
supplemental briefs and replies. [Docket No. 106 (“Pls.’ SSB”); Docket No. 107 (“Defs.’
SSB”); Docket No. 109 (“Pls.’ SSB Reply”); Docket No. 110 (“Defs.’ SSB Reply”). The Court
must now decide whether the evidence produced in jurisdictional discovery supports
Plaintiffs’ Eighth Amendment allegations.
II. LEGAL STANDARDS
A party may challenge subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) through a facial attack or a factual attack. Davis v. Wells Fargo, 824 F.3d

333, 346 (3d Cir. 2016). Defendants bring a factual attack to this Court’s subject matter
jurisdiction. See Thieme II, 2023 WL 8271766, at *2. Under a factual attack to subject matter
jurisdiction, a plaintiff’s allegations are not entitled to a presumption of truth, and the court
may weigh and consider evidence outside the pleadings. Davis, 824 F.3d at 346 (internal
citations and quotation marks omitted).
Prison officials have a duty under the Eighth Amendment to provide humane
conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an Eighth
Amendment conditions-of-confinement claim against prison officials, a plaintiff must meet
two requirements, one objective, and one subjective. First, under the objective prong, a

prisoner-plaintiff must show that the depravation of humane conditions was “sufficiently
serious” resulting in the denial of “the minimal civilized measure of life's necessities.” Id. at
834 (first quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991), then quoting Rhodes v. Chapman,
452 U.S. 337, 347 (1981)). The Court has already determined that Plaintiffs have satisfied the
Eighth Amendment’s objective requirement. Thieme II, 2023 WL 8271766, at *7.

Second, under the subjective prong, a prisoner-plaintiff must show that the named
prison officials had a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 834 (quoting
Wilson, 501 U.S. at 297). The requisite state of mind is one of “deliberate indifference to
inmate health or safety” that the defendant prison official must have known about and
disregarded. Farmer, 511 U.S. at 834; Jones v. Ellis, 2021 WL 5015921, at *3 (D.N.J. Oct. 28,
2021) (“[A] detainee asserting deliberate indifference based on exposure to COVID-19 must
[] establish that the Defendant had the requisite mental state, which is akin to recklessness.”).
“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be
found free from liability ... even if the harm ultimately was not averted.” Farmer, 511 U.S. at

844. But their response to that substantial risk must be reasonable. Id.
III. ANALYSIS
The evidence produced in jurisdictional discovery has failed to satisfy this Court of its
subject matter jurisdiction over Plaintiffs’ FCTA claims. Plaintiffs cannot reestablish their
FTCA claims through the Eighth Amendment to defeat the application of the discretionary
function exception.
A. United States v. Newell
The Court starts where Plaintiffs start, with United States v. Newell. See 2021 WL
3269650, at *1 (M.D.N.C. July 30, 2021), appeal dismissed sub nom., United States v. Burr, No.

21-7193, 2021 WL 9299047 (4th Cir. Sept. 22, 2021). In Newell, a court in the Middle District
of North Carolina granted compassionate release motions pursuant to 18 U.S.C. §
3582(c)(1)(A) filed by prisoners incarcerated at FCI Fort Dix, serving sentences imposed by
the United States District Court for the Middle District of North Carolina. Id. The Newell
court found that prison officials at Fort Dix did “a poor job responding to the difficulties posed

by [COVID] in a congregate living situation” and that “prison officials made decisions … that
allowed the virus to spread throughout the prison.” Id. According to the Newell court:
The BOP (1) transferred a large number of inmates from another prison [i.e.,
FCI Elkton] known to be in the midst of a serious COVID-19 outbreak to Fort
Dix without an effective plan in place to avoid spreading the virus from
transferring inmates to staff and inmates at Fort Dix; (2) did not appropriately
segregate or quarantine inmates, and allowed COVID-positive inmates to use
the same common areas as noninfected inmates; (3) did not provide inmates
with [PPE], like masks or sanitizer, despite housing inmates in overcrowded
facilities without proper ventilation or sanitation; (4) did not consistently log
COVID-positive symptoms in inmates’ records; and (5) only enforced social
distancing when third-party auditors were present.

Newell, 2021 WL 3269650, at *2. The court determined that the government “offered no
evidence to contradict or undermine the defendant-inmates’ statements and evidence” and
“offered no evidence to place the B[O]P's apparently negligent decisions in context.” Id.
Newell is inapposite. It did not consider whether prison officials at Fort Dix were
deliberately indifferent under the Eighth Amendment of the Constitution; it considered only
whether the conditions at Fort Dix justified granting motions for compassionate release under
a different standard. And it did not have the benefit of the jurisdictional discovery now
completed by the parties that offer a more complete version of Defendants’ decisions with
respect to the FCI Elkton transfers. And even the Newell court characterized BOP’s actions as
“negligent,” id., and it is well established that deliberate indifference requires a state of mind
“more blameworthy than negligence.” Farmer, 511 U.S. at 835 (citing Estelle v. Gamble, 429
U.S. 97, 104 (1976) (emphasis added)). So, Newell does not help resolve the instant Rule
12(b)(1) motion.
B. Warning Emails from BOP Staff Do Not Establish Deliberate Indifference

Next, Plaintiffs suggest that Defendants ignored “[g]rave [w]arnings” from Fort Dix
staff that the prison was not equipped to handle transfers from FCI Elkton. [Pls.’ SSB at 13–
15.] In support of that argument, Plaintiffs cite email correspondence from Fort Dix staff
expressing concerns about the impending transfers. [Docket No. 106-1, Certification of
Lawrence S. Lustberg, Esq. (“Lustberg Certif.”), Exs. F, G.] But those concerns, expressed
prior to the completion of any of the FCI Elkton transfers, only tell the Court that at least
some BOP staff perceived there to be a risk, a point that is undisputed. The staff emails do not
tell the Court whether the Defendants acted reasonably (or not) in response to that risk. See
Farmer, 511 U.S. at 842. To the contrary, and as explained below, the evidence shows that
Defendants did act reasonably in response to the risk posed by the FCI Elkton transfers.

C. Defendants Managed the FCI Elkton Transfers Without Deliberate
Indifference to Prisoner Health and Safety

1. The Bus Ride from FCI Elkton to FCI Fort Dix
Defendants managed the transport of the FCI Elkton prisoner-transferees reasonably.
For the first transport, FCI Elkton selected 66 inmates who had previously tested positive for
and recovered from COVID-19 at that facility. [Stinson Decl., Ex. I, at USA028882.] The
transferees were masked for the entire eight-hour bus ride from Ohio to New Jersey. [Docket
No. 107-1, Declaration of John T. Stinson (“Stinson Decl.”), Ex. C, Deposition of Adam
Sassaman (“Sassaman Dep.”) at 109:11–113:3.] BOP staff assisting with the transport were
given personal protective equipment consisting of gowns, glasses, and N95 masks, and nitrile
gloves, which they were required to wear when interacting with inmates on the bus. [Id. at
110:17–111:23.]
These were sensible precautions. Plaintiffs argue that the transports were undertaken
with deliberate indifference because the FCI Elkton transferees were unable to socially

distance on the bus and because the windows on the bus did not open. [Pls.’ SSB at 16–17
(citing Lustberg Certif., Ex. C at 105; Ex. H).] But as many courts have recognized, it was not
always possible to practice social distancing in prisons. On the bus, it appears to have been
impossible. But “[f]ailing to do the ‘impossible’ doesn’t evince indifference, let alone
deliberate indifference.” See Swain v. Junior, 961 F.3d 1276, 1287 (11th Cir. 2020) (district
court erred in concluding that the defendants’ inability to ensure adequate social distancing
constituted deliberate indifference); see also Hope v. Warden York Cnty. Prison, 972 F.3d 310,
330 (3d Cir. 2020) (immigration detainees seeking preliminary injunction failed to show
substantial likelihood of success on merits of claim that government was deliberately

indifferent to their serious medical needs despite assertion that detainees were incapable of
social distancing); Wragg v. Ortiz, 462 F. Supp. 3d 476, 509 (D.N.J. 2020) (“That physical
distancing is not possible in a prison setting, as Petitioners urge, does not an Eighth
Amendment claim make and, as such, Petitioners are not likely to succeed on the merits.”).
In light of that impossibility, Defendants took reasonable measures to ensure the safety of the
FCI Elkton prisoner-transferees during their journey from Ohio to New Jersey.3

3 Plaintiffs also argue that a Fort Dix safety specialist who rode these buses with the Elkton
transferees wore a cloth mask on the bus ride rather than an N95 mask. [Pls.’ SSB at 17 (citing
Lustberg Certif., Ex. H).] Nobody disputes that wearing an N95 mask offers more protection
than a cloth mask. [Sassaman Dep. at 161 (admitting that cloth masks are less effective than
N95 masks).] But the relevant CDC guidance at the time was clear that even wearing a cloth
mask was sufficient to help limit the spread of the virus. [Id.]; see Trujillo v. Pueblo Cnty., 2021
2. Intake, Testing, and Quarantining Procedures
Plaintiffs challenge the intake, testing, and quarantining procedures of the FCI Elkton
transferees upon their arrival at Fort Dix. Defendants designated all of Housing Unit 5703 for
intake of the FCI Elkton prisoner transferees. [Lustberg Certif., Ex. E; Stinson Decl., Ex. A,

Deposition Transcript of Dr. Kimberly Kodger (“Kodger Dep.”) at 112:2–6; 120:19–21 (all
four transfers of FCI Elkton prisoners housed in Unit 5703).] Upon their arrival at Fort Dix,
the FCI Elkton transferees were met outside by Fort Dix Health Services staff who tested each
transferee for the virus. [Kodger Dep. at 112:8–114:7.] Members of Fort Dix’s Receiving &
Discharge unit (“R&D”) then conducted intake screenings of each prisoner. [Id.] Health
Services and R&D staff wore full PPE (e.g., gowns, gloves, goggles, and an N95 mask) while
conducting testing and intake procedures. [Kodger Dep. at 113:6–14.] R&D staff stood behind
plexiglass as they conducted intakes. [Id.] Once test results came back, FCI Fort Dix staff
sorted the FCI Elkton prisoner-transferees appropriately. [Id. at 115:12–22.] If a prisoner-

transferee received a negative test result, they would be placed back on the bus and taken to
the second and third floors of Unit 5703 which were designated as “quarantine” floors.
[Sassaman Depo. at 70:9–16.] If a prisoner-transferee received a positive test result, they were
separated into a specially designated area, screened for symptoms, and transported to the first
floor of Unit 5703 which was designated as the isolation floor. [Id.] Prisoners would not be
released from the isolation floor until they cleared a COVID-19 “send out laboratory” test.

WL 11704764, at *3 (D. Colo. Dec. 3, 2021), report and recommendation adopted, 2021 WL
11704765 (D. Colo. Dec. 29, 2021) (“The CDC has stated that wearing cloth face masks …
is sufficient to help limit the transmission of [COVID]-19 in correctional and detention
facilities.”). So, even if the safety specialist was only wearing a cloth mask, that was still a
reasonable step to help limit the spread of the virus.
[Kodger Dep. at 132:18–132:23.] Prisoners on the quarantine floors would be moved to the
isolation floor if they tested positive for COVID. [Id. at 130:9–133:19.]
Nothing about these procedures was deliberately indifferent. To the contrary, they
reflect that Defendants took reasonable measures to minimize risk to prisoner health and

safety. In opposition, Plaintiffs cite prisoner declarations that “most staff members did not
wear [full] PPE” during the R&D intake procedure. [Pls.’ SSB at 17 (citations omitted).] But
it is not clear what elements of PPE R&D staff were allegedly missing. And Plaintiffs cite no
evidence to rebut Associate Warden Kodger’s testimony that R&D staff conducted their
intake procedures from behind a plexiglass barrier and from an appropriate distance away
from the prisoner-transferee. [118:5–15.] And as a least one prisoner declaration concedes
that Health Services staff conducting testing from close distance did wear full PPE. [Lustberg
Certif., Ex. A at THIEME-000040.]
Defendants did not have to execute the intake and processing of the FCI Elkton
transferees with perfection because that is not what the Eighth Amendment requires. Freeman

v. United States, 2021 WL 4129479, at *3 (D.N.J. Sept. 9, 2021). The steps taken by Defendants
in light of the attendant risks presented by transferring prisoners between FCI Elkton and Fort
Dix do not support a finding of deliberate indifference because the steps taken were
reasonable. Cf. Ross v. Russell, 2022 WL 767093, at *11 (W.D. Va. Mar. 14, 2022) (reasoning
that even if inmates “were not always properly quarantined, properly separated, or properly
tested, and equipment and cleaning supplies were not always readily available,” those
allegations viewed “in conjunction with all steps that the prison officials did take to respond
to the known risk” did not “reflect that any of the defendants in charge of creating or
implementing overall policies were deliberately indifferent”).
3. Prisoner Housing, Movement, and Work Assignments
Each of the Plaintiffs in this case were infected with COVID-19 while housed in Unit
5812. Plaintiffs’ theory of how they first became infected relates to Defendants’ decisions with
respect to prisoner housing, movement, and work assignments. Three prisoners from Unit

5812—Jose Brito, Nelson Rodriguez, and Matthew Grant—were assigned to assist the R&D
unit with the intake of the FCI Elkton prisoner-transferees. [Lustberg Certif., Ex. A at
THIEME-000047–50.] Their job duties included cleaning the holding cells where the FCI
Elkton transferees were being processed and distributing food and clothing items to the newly
transferred prisoners. [Id.] Brito, Rodriguez, and Grant were placed into COVID-19 exposure
quarantine together in Unit 5851 based on their contact with an R&D staff member who
tested positive for the virus. [Id.] All three inmates were tested the following day after spending
the night in close proximity to one another: Brito tested positive and was moved to isolation
housing; Rodriguez and Grant did not test positive and were sent back to Unit 5812, which

the prison designed to be on “exposure quarantine” as a whole starting that day. [Id.; Lustberg
Certif., Ex. K.] By November, nearly every prisoner housed in Unit 5812 tested positive for
the virus, contributing to the overall outbreak at the prison. [Lustberg Certif., Ex. L.]
Plaintiffs suggest that Defendants acted unreasonably by staffing R&D with prisoners
coming into close contact with prison staff processing the Elkton transferees—several of
whom tested positive for COVID upon their arrival—and by sending Rodriguez and Grant
back to Unit 5812 after testing negative instead of keeping them in isolation quarantine. [Pls.’
SSB at 23–25.] The Court disagrees. As Defendants note, “whether Plaintiffs contracted
COVID from this alleged causal chain or some other source—such as from another inmate

housed in Unit 5812—is ‘wholly speculative.’” [Defs.’ SSB Reply at 16 (citing Brown v. United
States, 2023 WL 2632811, at *15 (M.D. Pa. Mar. 24, 2023)).] COVID was a highly
transmissible virus and there were many ways to become infected from many potential
intervening causes. See Lackner v. United States, 2025 WL 314965, at *7 (D.N.J. Jan. 28, 2025).
The best the Court can call the decision to release Rodriguez and Grant back to Unit 5812

after being in close contact with Brito is negligent. But (again) negligence is not the touchstone
of the Eighth Amendment. Farmer, 511 U.S. at 835 (deliberate indifference requires a state of
mind “more blameworthy than negligence” (citation omitted)). So, Plaintiffs’ evidence of
causation remains too speculative even following jurisdictional discovery to survive dismissal
with respect to this theory.
Plaintiffs’ remaining evidence with respect to prisoner housing, movement, and work
assignments also do not meet the Eighth Amendment’s constitutional floor of deliberate
indifference. Plaintiffs assert that Defendants frequently moved prisoners’ bed assignments
while they were known to be infectious. [Pls.’ SSB at 25.] But Plaintiffs do not explain how

Defendants exhibited deliberate indifference with respect to bed-assignment movement. And
the evidence produced in jurisdictional discovery suggests that Defendants acted reasonably,
moving prisoners bed assignments to ensure that quarantined prisoners bunked with
quarantined prisoners and that COVID-positive prisoners bunked with COVID-positive
prisoners. [See Kodger Dep. at 124:5–125:19 (describing the management of housing
assignments as a “dynamic” process).]
Plaintiffs also argue that Defendants were deliberately indifferent by deeming cohorts
of prisoners recovered from COVID all at once and sending those prisoners back to their work
assignments, sometimes still positive with the virus. [Pls.’ SSB at 26–27.] But those cohorts
were not deemed recovered with the waive of a wand as Plaintiffs suggest. Instead, they were
deemed recovered, consistent with CDC guidance, based on the amount of time spent in
isolation or quarantine and whether they were experiencing any symptoms. For example,
relevant CDC guidance permitted asymptomatic prisoners to be released from isolation after
ten days from his first COVID test. [Docket No. 52-14 at 10, BOP COVID-19 Pandemic

Response Plan: Module 4. Medical Isolation and Quarantine (Version 1.0, September 8,
2020).] Prisoners with mild or moderate symptoms could also be released from isolation after
ten days from his first COVID test if symptoms had improved, and he was fever free from the
preceding 24 hours. [Id.] These procedures, in line with applicable CDC guidance, were not
deliberately indifferent. Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (prison not
deliberately indifferent where it took “measures [] informed by guidance from the CDC and
medical professionals [] to abate and control the spread of the virus.”).
4. Prisoner PPE Practices
Plaintiffs argue that Defendants were deliberately indifferent by failing to provide

prisoners with PPE such as N95 masks, despite having enough for staff use. [Pls.’ SSB at 18–
19.] Courts across the country have consistently held, however, that the failure to provide
prisoners with N95 masks, as opposed to a cloth mask, does not amount to deliberate
indifference under the Eighth Amendment. See Taylor v. Macauley, 2022 WL 3025534, at *8
(W.D. Mich. Aug. 1, 2022); Johnson v. Kariko, 2022 WL 4073087, at *5 (W.D. Wash. June
10, 2022), report and recommendation adopted, 2022 WL 4017671 (W.D. Wash. Sept. 2, 2022),
aff’d, 2024 WL 4182220 (9th Cir. Sept. 13, 2024); Walker v. United States, 2022 WL 1472872,
at *6 (M.D. Pa. May 10, 2022); Toney v. Gelardo, 2022 WL 341169, at *3 (D. Colo. Jan. 3,
2022), report and recommendation adopted, 2022 WL 341170 (Jan. 26, 2022). The Court agrees.
5. Staff Screening, Testing, and Movement
Plaintiffs argue that Defendants were deliberately indifferent with respect to staff
screening, testing, and movement.4 The Court agrees with Defendants that BOP took
reasonable measures with respect to staff health. [Defs.’ SSB at 26.] FCI Fort Dix screened

all staff for COVID-19 symptoms daily and encouraged staff to get tested. [Stinson Decl., Ex.
B, Deposition Transcript of Travis Haczynski (“Haczynski Dep.”) at 58:3–59:20; Kodger
Dep. 213:8–215:14.] And Fort Dix tried to minimize staff movement when possible.
[Haczynski Dep. 75:22–76:17; Kodger Dep. 182:3–185, 272:21–273:11.] Staff were required
to where PPE in high-risk areas like quarantine and isolation housing as well as in R&D.
[Kodger Dep. 173:24–176:12.] These were reasonable measures to help limit the spread of the
virus.
6. Failing to Request a Timely Moratorium on Further Transfers
Finally, Plaintiffs challenge Defendants’ decision to complete more transfers from FCI

Elkton even as COVID cases continued to spike at Fort Dix. [Pls.’ SSB at 19–21.] Shortly
after the third bus of FCI Elkton transferees arrived at Fort Dix and about one week before
the fourth and final transfer was scheduled, Fort Dix Warden David Ortiz formally requested
a moratorium on transfers to BOP Northeast Regional Director Nicole English. [SAC ¶¶ 108–
09; SAC Ex. B.] In that letter, Warden Ortiz described the increase in positive COVID-19
cases among both prisoners and staff and the concern that “bed space for isolation and
exposure quarantine [would] be inadequate” absent a transfer moratorium. [SAC, Ex. B at 1–

4 The Court has already found that Plaintiffs’ FTCA allegations related to staff PPE practices
and masking involved mandatory policies are not shielded by the discretionary function
exception. As explained below, however, [infra at 16–17], those claims cannot go forward
because Plaintiffs cannot establish that any negligence with respect to staff PPE practices
caused their injuries.
2.] Plaintiffs’ Second Amended Complaint alleged that, despite Warden Ortiz’s letter,
Regional Director English “refrained from seeking an immediate moratorium on transfers in
order to complete the fourth FCI Elkton transfer as scheduled.” [SAC ¶ 111.]
Jurisdictional discovery does not support the allegation that the high-level BOP

leadership recklessly rammed through the fourth FCI Elkton transfer despite a moratorium
request by Fort Dix leadership. Associate Warden Kodger testified that the prison made the
moratorium request with the “understanding [] that [the prison] [was] already going to be
receiving” the fourth bus of FCI Elkton transfers. [Kodger Dep. 147 13–17.] In other words,
the moratorium request was not to stop the fourth bus; it was to stop any further transfers into
Fort Dix from FCI Elkton or elsewhere after receiving the fourth bus. [Id. at 154:3–11 (“My
personal understanding is that we as an executive staff, as an institution agreed to take the
Elkton bus inmates, so when the moratorium was requested, it had to do with future transfers
into the institution, not specifically Elkton. This has to do with us being able to manage the
facility in the future.”).] In fact, Associate Warden Kodger testified that the prison “had a

place for [the last bus of FCI Elkton transferees] already designated” and was “confident that
[the prison] would be able to handle the last bus” because it already “had a system in place.”
[Id. at 151:10–15.]
The parties dispute whether Defendants were under court-ordered obligations to
complete prisoner transfers out of FCI Elkton. [See Defs.’ SSB at 11; Pls.’ SSB Reply at 1–4.]
But the Court does not understand Plaintiffs to argue that, as a matter of law, prisoner
transfers during the COVID-19 pandemic reflect deliberate indifference. Nor could they make
such an argument. Defendants had discretion to undertake prisoner transfers. 18 U.S.C. §
3621(b) (BOP “may at any time … direct the transfer of a prisoner from one penal or
correctional facility to another”); Barden v. Keohane, 921 F.2d 476, 478–79 (3d Cir. 1991) (18
U.S.C. § 3621(b) invests BOP with “wide discretion to designate the place of confinement for
purposes of serving federal sentences of imprisonment.”)). Defendants had to manage any
attendant risks reasonably. The Court is satisfied that they did so. Having considered the

evidence produced in jurisdictional discovery, the Court finds that Plaintiffs cannot establish
this Court’s jurisdiction over their FTCA claims through the Eighth Amendment.
D. Plaintiffs’ Face-Covering Claim Will Dismissed as Speculative
Because Plaintiffs have failed to show that Defendants violated the Constitution in
carrying out their discretionary functions, the only allegations now remaining are those
related to the lack of masking by staff at Fort Dix. The Court found that Defendants’ Mask
Memorandum did not fall within the FTCA’s discretionary function exception because it was
a mandatory policy. Thieme II, 2023 WL 8271766 at *5.
The Court will now, however, dismiss those allegations because of speculative

allegations unconfirmed by jurisdictional discovery that FCI Fort Dix’s failures to enforce
mandatory staff masking caused Plaintiffs’ COVID-19 infections.5 As this Court has
explained since deciding Thieme II, “[t]here are many potential intervening causes with a
highly transmissible virus, and it would be virtually impossible to determine the cause.”
Lackner, 2025 WL 314965, at *7; Foard v. United States, 2024 WL 436378, at *8 (N.D. Ala.
Jan. 9, 2024), report and recommendation adopted, 2024 WL 420131 (N.D. Ala. Feb. 5, 2024)

5 Defendants did not initially move to dismiss the Second Amended Complaint on the theory
that causation was speculative. But because the elements of an FTCA claim are jurisdictional
and federal courts may consider dismissal for lack of subject matter jurisdiction at any time,
Fed. R. Civ. P. 12(h), the Court can consider that argument now. DeMolick v. United States,
No. 22-1973, 2023 WL 3562979, at *2 (3d Cir. May 19, 2023) (affirming dismissal of FTCA
claim for lack of subject-matter jurisdiction where plaintiff failed to establish that United
States owed duty of care).
(“Foard’s claim fails at the causation stage because he has not introduced any evidence from
which a reasonable juror could conclude that the individual defendants’ alleged failures to
wear face masks caused him to contract COVID-19.”); Barker v. Nash, 2023 WL 7135881, at
*11 (N.D. Ala. Oct. 4, 2023), report and recommendation adopted, 2023 WL 7130856 (N.D. Ala.

Oct. 30, 2023) (rejecting plaintiff’s argument that prison officials’ failure to wear face masks,
and to enforce the mask mandate, was negligent); Brown, 2023 WL2632811, at *15 (M.D. Pa.
Mar. 24, 2023) (plaintiff failed to show exposure to COVID-19 “was caused by acts or
omissions of [BOP] employees: and failed to account for the possibility that Plaintiff could
have innocently or negligently been exposed to COVID-19 by a fellow inmate”); Walker v.
United States, 2022 WL 1472872, at *3 (M.D. Pa. May 10, 2022) (dismissing a prisoner’s
FTCA claim alleging negligence for failure to establish causation). Because Plaintiffs’
causation theory with respect to staff masking is too speculative, the Court has no jurisdiction
to consider that theory under the FTCA. See Brownback v. King, 592 U.S. 209, 212 (2021)

(FTCA claim requires negligence or wrongful act or omission caused by federal employee);
28 U.S.C. § 1346).
* * *
The COVID-19 pandemic presented a unique challenge in our Nation’s prisons. But
following jurisdictional discovery, the Court “cannot conclude that, when faced with a perfect
storm of a contagious virus and the space constraints inherent in a correctional facility,
[Defendants] here acted unreasonably[.]” Swain, 961 F.3d at 1289. No doubt, the steps
Defendants took did not always work. Indeed, it is undisputed that the virus raged through
Fort Dix during the Fall of 2020. But the Eighth Amendment does not require perfection, nor

does it invite the benefit of hindsight. Freeman, 2021 WL 4129479, at *3. It requires reasonable
efforts to minimize serious risks to prisoner health and safety. The Court is satisfied upon
review of the record as a whole that Defendants undertook those efforts during this
challenging period.
IV. CONCLUSION

For the foregoing reasons, the Court will GRANT Defendants’ Motion to Dismiss the
Second Amended Complaint. An accompanying Order shall issue.

August 29, 2025 s/Renée Marie Bumb
Date RENÉE MARIE BUMB
Chief United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130359. Public record. Not legal advice.