Washington v. Federal Bureau of Prisons Central Office/General Counsel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MARCELLUS WASHINGTON, : Civil No. 3:23-cv-515

Plaintiff + (Judge Mariani)

FILED

FEDERAL BUREAU OF PRISONS SCRANTON

CENTRAL OFFICE/GENERAL :

COUNSEL, et al., 22 2025

Defendants Do cet ee □□

MEMORANDUM

Plaintiff Marcellus Washington (“Washington”), an inmate in the custody of the

Federal Bureau of Prisons (“BOP”), is pursuing claims in this action pursuant to Bivens □□ □

Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)', and the Federal Tort Claims Act

("FTCA’).2 (Doc. 1). Named as Defendants are the BOP Central Office, the BOP Northeast

Regional Office, Abram Wright, Jeremy Sweeting, Jace Conklin, Dennis Sullivan, Chalique

Williams, Jessica Garrison, Amy Walls, Corey McCauley, and Daniel Marr. (/d.).

1 In Bivens, the United States Supreme Court created a federal fort counterpart to the remedy

created by 42 U.S.C. § 1983 as it applies to federal officers.

2 The FTCA vests exclusive jurisdiction in district courts for claims against the United States for

money damages involving “injury or loss of property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while acting within the scope of his office or

employment, under circumstances where the United States, if a private person, would be liable to the

claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. §

1346(b)(1).

Presently pending before the Court is Defendants’ motion (Doc. 36) to dismiss or, □□ □

the alternative, for summary judgment. The motion is ripe for resolution. For the reasons

set forth below, the Court will grant the motion.

I. Statement of Undisputed Facts?

Washington is a federal inmate serving a life sentence imposed by the United States

District Court for the Western District of Louisiana for attempted murder of a federal

employee and resisting a federal employee. (Doc. 42 J 1). Washington is currently

designated to the United States Penitentiary, Coleman Il, in Sumter, Florida. (/d. 2).

Washington was housed at the United States Penitentiary, in Allenwood,

Pennsylvania (“USP-Allenwood”), between October 20, 2015, and February 14, 2022. □□□□

3). oe

3 Local Rule 56.1 requires that a motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56 be supported “by a separate, short, and concise statement of the material facts, in numbered

paragraphs, as to which the moving party contends there is no genuine issue to be tried.” M.D. PA. LOCAL

RULE OF Court 56.1. A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving party's statement and

identifying genuine issues to be tried. /d. Unless otherwise noted, the factual background herein derives

from Defendants’ Rule 56.1 statement of material facts. (Doc. 42). Although Washington filed a brief (Doc.

_ 52) in opposition to Defendants’ motion, he failed to file a response to Defendants’ statement of material

facts. Therefore, as authorized by Local Rule 56.1, the Court will admit as uncontroverted the statement of

facts submitted by Defendants. See M.D. PA. LOCAL RULE OF CouRT 56.1 (“All material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted unless controverted by

_the statement required to be served by the opposing party."); see also Rau v. Allstate Fire & Cas. Ins. Co.,

793 F. App’x 84, 87 (3d Cir. 2019) (upholding this Court's decision to strike non-movant’s non-responsive

counterstatement of facts under Local Rule 56.1); Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613 (3d

Cir. 2018) (finding that “the District Court is in the best position to determine the extent of a party’s

noncompliance with Local Rule 56.1, as well as the appropriate sanction for such noncompliance”); see

also Doc. 49 §.2, Doc. 51 J] 3 (advising Washington that failure to file a responsive statement of material

facts would result in the facts set forth in Defendants’ statement of material facts being deemed admitted).

The allegations of the complaint relate to an alleged incident that occurred on

October 29, 2021, when Washington was housed at USP-Allenwood, (Doc. 1, at 1-2, 6).

The crux of Washington’s claim is that staff members assaulted him during a routine cell

extraction when he was confined in the Transitional Care Unit, and that prison staff

fabricated an incident report wherein staff claimed that Washington attempted to assault

staff during that cell extraction. (/d. at 6-8). .

A. Washington's Administrative Tort Claim Remedies □

The BOP maintains administrative claims filed pursuant to the Federal Tort Claims

Act in a computerized database called “Content Manager’ or “Case File Manager’ which

catalogs all administrative claims filed with the BOP since 2007. (Doc. 42 4). According

to the BOP administrative tort claim database, Washington has not filed any administrative

tort claims since 2019, nor has he filed any administrative tort claims concerning the

October 29, 2021 incident. (/d. $5). Although Washington did not file a responsive -

statement of facts, in his opposition brief, he asserts that he submitted an administrative tort

claim regarding the October 29, 2021 incident with the Regional Office on June 12, 2022.

(Doc. 52-2, at 1-9).

B. Disciplinary Proceedings . :

On October 29, 2021, at USP-Allenwood, Officer Abram Wright issued Washington

Incident Report Number 3562139. (Doc. 424 6). According to Officer Wright, on October

29, 2021, at approximately 6:30 a.m., Washington began to be insolent toward staff by

;

demanding that staff come to his cell and saying to them: “Get off your ass and come down

here you fat fucks.” (Id. 7). When Officer Wright approached Washington's door,

Washington was at the door and said, “Fuck you fat ass, you can’t get off your bitch ass and

come down here?” (Id. $8). According to Officer Wright, Washington continued to be loud

and verbally aggressive toward staff while in his cell and, after being released from his cell,

Washington became verbally aggressive saying “fuck you, the fuck you doing this for?” and

became resistant to being pat searched, disobeyed a direct order to place his hands on the

wall, attempted to push off the wall while being searched, and attempted to turn toward

Officer Wright in an aggressive manner. (Id. { 9).

Incident Report Number 3562139 charged Washington with refusing to obey an

order (code 307), being insolent to staff members (code 312), and assaulting without

serious injury (code 224). (Id. J 10).

On November 2, 2021, Washington was advised of his rights before the Discipline

Hearing Officer ("DHO”). (Id. 11). The DHO hearing was held on December 8, 2021. (Id.

q 12). Washington invoked his right to a staff representative. (Id. | 13). At the time of the

hearing, Washington denied the charge and stated: “I did not attempt to [a]ssault the officer.

| did not refuse a pat search. My light went off that morning and | was complaining about

getting it working and it was quite (sic) in the Unit and my voice appeared to loud to staff. |

did not call staff members any names.” (/d. 14). Washington initially waived the right to

present witnesses, but at the time of the hearing, his staff representative, Dr. Garrison,

provided witness statements of three inmates. (Id. 15). The DHO considered the: = = □

following evidence: Incident Report Number 3562139, documentary evidence, video

evidence, Washington’s statement, and the witness’ statements. (/d. | 16). The DHO

found that Washington committed the prohibited acts of refusing to obey an order (code

307), being insolent to staff members (code 312), and assaulting without serious injury

(code 224). (Id. J 17). Specifically, the DHO noted: .

The DHO could find no reason staff reporting this incident had a reason to

fabricate any evidence in this case. The DHO also notes that while this

incident did not appear as al ] direct attempted assault on staff[,] inmate

Washington was guilty of interfering with staff by not complying on initial

contact with staff orders and then attempting to turn around during a pat

search more than once. Passive resistance techniques used by inmate □

Washington will not be tolerated.

(Id. J 18).

As a result of the finding of guilt, the DHO imposed the following sanctions: 10 days

of disciplinary segregation; 6 months loss of commissary privileges; 6 months loss of email

privileges; and 3 months loss of visitation privileges. (/d. {] 19). .

_ At the conclusion of the hearing, Washington was advised of the findings, the

evidence relied upon by the DHO, and his right to appeal. (Id. § 20). Washington received

the DHO report on December 13, 2021. (Id. 21).

Washington's Inmate Discipline Data confirms that the DHO decision has not been

disturbed on appeal. (/d. 22). Washington pursued an appeal of the DHO decision to the

BOP Regional Office. (/d. J 23). On March 4, 2022, the BOP Regional Office denied the

appeal. (/d.). Washington then filed an appeal to the BOP Central Office, and on May □□□ □

2022, the BOP Central Office denied his appeal. (Id).

IL Legal Standards

A. — Bivens Claim

In Bivens, the Supreme Court recognized “an implied private action for damages

against federal officers alleged to have violated a citizen’s constitutional rights.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001) (citing Bivens, 403 U.S. 388). As such,

purpose of Bivens is to deter individual federal officers from committing constitutional

violations.” /d. at 70. Courts have interpreted a Bivens action as “the federal equivalent of

the § 1983 cause of action against state actors” and exists where federal officers, acting

“under color of federal law] violate a plaintiffs constitutional rights. Brown v. Philip Morris

Inc., 250 F.3d 789, 800 (3d Cir. 2001).

B. Federal Rule of Civil Procedure 12(b)}(1)

Federal Rule of Civil Procedure 12(b)(1) authorizes a court to dismiss an action for

lack of subject matter jurisdiction. Feb. R. Civ. P. 12(b)(1). Motions brought under Rule

12(b)(1) may present either a facial or factual challenge to the court's subject matter

jurisdiction. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). A facial

challenge asserts that a claim, on ts face, is “insufficient to invoke the subject matter

jurisdiction of the court because, for example, it does not present a question of federal law.”

Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2012). A facial challenge

L 6

“requires the court to ‘consider the allegations of the complaint as true.” Davis v. Wells

Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon Univ., 462 F.3d 294,

302 n. 3 (3d Cir. 2006)).

A factual challenge maintains “that there is no subject matter jurisdiction because the

facts of the case...do not support the asserted jurisdiction.” Aichele, 757 F.3d at 358. “[A]

factual challenge allows ‘a court [to] weigh and consider evidence outside the pleadings.”

Davis, 824 F.3d at 346 (quoting Aichele, 757 F.3d at 358) (internal quotation marks □

omitted). When a factual challenge is made, the plaintiff has the burden of proof that

jurisdiction does exist, and “the court ‘is free to weigh the evidence and satisfy itself as to

the existence of its power to hear the case.” Davis, 824 F.3d at 346 (quoting Mortensen v.

First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)

C. Federal Rule of Civil Procedure 12(b)(6)

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it

does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The

plaintiff must aver “factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,

S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“Though a complaint ‘does not need detailed factual allegations,...a formulaic

recitation of the elements of a cause of action will not do.” DelRio-Mocci v. Connolly Prop.

7 .

Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words,

“[flactual allegations must be enough to raise a right to relief above the speculative level.”

Covington v. Int'l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)

(internal citations and quotation marks omitted). A court “take[s] as true all the factual

allegations in the Complaint and the reasonable inferences that can be drawn from those

facts, but...disregard[s] legal conclusions and threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott

Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks -

omitted).

Twombly and Iqbal require [a district court] to take the following three steps to

determine the sufficiency of a complaint: First, the court must take note of the

elements a plaintiff must plead to state a claim. Second, the court should

_ identify allegations that, because they are no more than conclusions, are not

entitled to the assumption of truth. Finally, where there are well-pleaded

factual allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[Whhere the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct, the complaint has alleged - but it has not show(n] - that the

pleader is entitled to relief.” [qbal, 556 U.S. at 679 (internal citations and quotation marks

omitted). This “plausibility” determination will be a “context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” /d.

3 .

However, even ‘fa complaint is subject to Rule 12(b)(6) dismissal, a district court

must permit a curative amendment unless such an amendment would be inequitable or

futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a

defendant moves to dismiss it, unless the district court finds that amendment

would be inequitable or futile, the court must inform the plaintiff that he or she

has leave to amend the complaint within a set period of time.

□□□ — Federal Rule of Civil Procedure56

Through summary adjudication, the court may dispose of those claims that do not

present a “genuine dispute as to any material fact.” FED. R. Civ. P. 56(a). “As to materiality,

... [o]nly disputes over facts that might affect the outcome of the suit under the governing

law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

The party moving for summary judgment bears the burden of showing the absence

of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106

2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving

party must offer specific facts contradicting those averred by the movant to establish a

genuine issue of material fact. Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888 (1990).

Therefore, the non-moving party may not oppose summary judgment simply on the basis of

the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S.

at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by citing to particular parts of materials in the record...or showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that an

adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P.

56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court

need consider only the cited materials, but it may consider other materials in the record.”

R. Civ. P. 56(c)(3). “Inferences should be drawn in the light most favorable to the non-

moving party, and where the non-moving party's evidence contradicts the movant's, then

the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974

F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party

only if there is a ‘genuine’ dispute as to those facts.” Scoft v. Harris, 550 U.S. 372, 380, 127

S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). Ifa party has carried its burden under the

summary judgment rule,

its opponent must do more than simply show that there is some metaphysical

doubt as to the material facts. Where the record taken as a whole could not

lead a rational trier of fact to find for the nonmoving party, there is no genuine

issue for trial. The mere existence of some alleged factual dispute between

the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of

material fact. When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could believe

it, a court should not adopt that version of the facts for purposes of ruling on a

motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

10

Ill, — Discussion

Defendants move to dismiss, or seek summary judgment, on the following grounds:

(1) Washington's official capacity Bivens claims for monetary damages are barred by

sovereign immunity; (2) Washington failed to allege a physical injury; (3) a Bivens remedy is

not available for Washington's claims; (4) even if this Court found that a Bivens remedy is

available to Washington, Defendants are entitled to qualified immunity*; and (5) Washington

failed to satisfy the FTCA’s jurisdictional tort claim requirement of 28 U.S.C. § 2401(b).

(See Doc. 43).

A. Bivens Claim Against Defendants in their Official Capacities

Defendants first seek dismissal of the Bivens claim against them in their official

capacities, based on sovereign immunity (Doc. 43, at 21-23).

Bivens constitutional tort lawsuits can only be lodged against individual government □

‘Officials. Bivens, 403 U.S. at 397. It is well-settled that Bivens actions against the United

States—and, by extension, against federal agencies or officials sued in their official

capacity—are barred by sovereign immunity, absent an explicit waiver of that immunity.

FDIC v. Meyer, 510 U.S. 471, 483 (1994). The United States and its agencies have not

waived immunity. An action against prison officials in their official capacities constitutes an

‘action against the United States. Therefore, a Bivens action cannot be brought against the

4 Because the Court declines to extend Bivens to Washington's Fifth, Eighth, and Fourteenth

Amendment claims, the Court does not reach Defendants’ alternative argument regarding qualified

immunity.

11 .

United States, or a federal agency or official, since such claims are plainly barred by the

doctrine of sovereign immunity. See Malesko, 534 U.S. at 72 (“If a federal prisoner in a

BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the

offending individual officer, subject to the defense of qualified immunity. The prisoner may

not bring a Bivens claim against the officer's employer, the United States, or the BOP.’).

‘Washington’s Bivens claims against the Defendants in their official capacities are

essentially claims against the United States that must be dismissed on sovereign immunity

grounds. See Brooks v. Bledsoe, 682 F. App’x 164, 169 (3d Cir. 2017) (per curiam) ("To the

extent that Brooks is suing the BOP employees in their official capacities, his claim fails as

actions against prison officials in their official capacities are considered actions against the

United States, and Bivens claims against the United States are barred by sovereign

immunity, absent an explicit waiver.”).

B. Failure to Allege a Physical Injury

Pursuant to the Prison Litigation Reform Act (“PLRA’), “tno Federal civil action may

be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or

emotional injury suffered while in custody without a prior showing of physical injury...” 28

U.S.C. § 1997e(e). To satisfy the PLRA, the plaintiff-prisoner must allege a “less-than-

significant-but-more-than-de minimis physical injury.” Mitchell v. Horn, 318 F.3d 523, 534

(3d Cir. 2003).

If a plaintiff fails to allege a sufficient physical injury in the context of an alleged

constitutional violation, they may not seek an award of compensatory damages; however,

they may still seek nominal or punitive damages. See id. at 533; see also Allah v. Al-

Hafeez, 226 F.3d 247, 251-52 (3d Cir. 2000) (concluding that Section 1997e(e) does not bar

plaintiff from seeking award of nominal or punitive damages for alleged constitutional

violation).

Washington does not allege that he suffered any physical injury, let alone a de

minimis physical injury, as required for a predicate to emotional injury. See Mitchell, 318

F.3d at 534-36. Rather, he asserts that he suffered “losses of certain rights and privilege|js,

and incentive benefits” and mental distress. (Doc. 1, at 7, 12). Thus, he fails to satisfy

Section 1997e(e)'s physical injury requirement, and the Court will dismiss his claim for

compensatory damages.

C. A Bivens Remedy is not Available for Washington's Fifth and Eighth

Amendment Claims Against the Defendants in their Individual Capacities

Defendants argue that Washington's due process and excessive force claims must

be dismissed on the basis that there is no Bivens remedy available for these Fifth and

Eighth Amendment claims following the United States Supreme Court's decision in Ziglar v.

Abbasi, 582 U.S. 120 (2017). (Doc. 43, at 24-32). The Court agrees and begins its

discussion with an overview of Bivens.

In Bivens, the Supreme Court recognized an implied damages remedy for a Fourth

Amendment violation committed by federal officials, wnose conduct was not encompassed

13

by the statutory remedy available against state actors under 42 U.S.C § 1983. See Bivens,

403 U.S. at 397. The availability of Bivens as a cause of action is limited, and the United

States Supreme Court “has plainly counseled against creating new Bivens causes of

action.” Vanderklok v. United States, 868 F.3d 189, 199 (3d Cir. 2017); see also Hernandez

v. Mesa, 589 U.S. 93, 101-02 (2020) (stating that the “expansion of Bivens is a disfavored

judicial activity,” that “it is doubtful” that the outcome of Bivens would be the same if it were

decided today, and that “for almost 40 years, [the Supreme Court] ha[s] consistently

rebuffed requests to add to the claims allowed under Bivens.” (internal quotations marks

and citations omitted)). Since Bivens was decided in 1971, the Supreme Court “has

repeatedly refused to extend Bivens actions beyond the specific clauses of the specific

amendments [of the Constitution] for which a cause of action has already been implied, or

even to other classes of defendants facing liability under those same clauses.” Vanderklok,

868 F.3d at 200. The Supreme Court has recognized an implied orivate action against

federal officials in only three cases: (1) Bivens itself—a claim under the Fourth Amendment

against FBI agents for handcuffing a man in his own home without a warrant, Bivens, 403

U.S. at 389; (2) a claim under the Fifth Amendment against a Congressman for firing his

female secretary, Davis v. Passman, 442 U.S. 228 (1979); and (3) a claim under the Eighth

Amendment against prison officials for failure to treat an inmate’s asthma, Carlson v. Green,

446 U.S. 14 (1980).

14

The Supreme Court's decision in Ziglar, 582 U.S. 120, sets forth a two-part test for

determining whether a prospective Bivens claim may proceed. First, courts must ascertain

whether the case presents a “new context.” Ziglar, 582 U.S. at 138. If the case differs “in a

meaningful way” from previous Bivens cases decided by the Supreme Court, “then the

context is new.” Ziglar, 582 U.S. at 139. And the meaning of “new context’ is “broad.”

Hernandez, 589 U.S. at 102. Second, if the case presents a new context, the court must

then consider whether “special factors” counsel against extending the Bivens remedy.

Hernandez, 589 U.S. at 102. This inquiry asks whether “the Judiciary is at least arguably

less equipped than Congress to ‘weigh the costs and benefits of allowing a damages action

to proceed.” Egbert v. Boule, 596 U.S. 482, 492 (2022) (quoting Ziglar, 582 U.S. at 136). If

a court concludes that “even a single reason” exists to pause ‘before applying Bivens ina

new context,” then special factors counseling hesitation exist and a Bivens remedy does not

lie. Egbert, 596 U.S. at 492 (quoting Hernandez, 589 U.S. at 102) (internal quotation marks

omitted).

The Supreme Court decision in Egbert reemphasizes that the continued refusal to

“imply a similar cause of action for other alleged constitutional violations” is intentional—

recognizing a new Bivens cause of action is “a disfavored judicial activity.” Egbert, 596 U.S.

at 491 (quoting Ziglar, 582 U.S. at 135). In a recent decision, the Third Circuit Court of

Appeals analyzed Egbert and abrogated earlier decisions recognizing that its own

extensions of Bivens were no longer tenable given recent Supreme Court decisions. Fisher

15

v. Hollingsworth, 115 F.4th 197, 206 (3d Cir. 2024) (holding that the Supreme Court

decision in Egbert “seriously undermines the rationale of Bistrian [v. Levi, 912 F.3d 79 (3d

Cir. 2018)] and Shorter [v. United States, 12 F.4th 366 (3d Cir. 2021)]"—cases involving

inmate-on-inmate assault). The Fisher court explained that Egbert tightened the Ziglar test

and, in doing so, made a strong statement that lower.courts should not extend Bivens

beyond the contexts recognized in Bivens, Davis, and Carlson.” Fisher, 115 F.4th at 204.

Egbert’s “new articulation” of the new context step of the Ziglar test “unequivocally narrows

the universe of relevant cases to just three,” i.e., Bivens, Davis, and Carlson. Fisher, 115

F.4th at 204. In yet another recent decision, the Third Circuit Court of Appeals refused to

extend Bivens to Eighth Amendment conditions of confinement claims brought by federally

convicted prisoners because the Eighth Amendment claim was “far broader in scope than |

that in Carlson.” Kalu v. Spaulding, 113 F.4th 311, 338 (3d Cir. 2024).

in June of 2025, the United States Supreme Court held that an Eighth Amendment

excessive force claim brought by a federal inmate against federal corrections officers

presented a new Bivens context and that “special factors’ counsel against recognizing an

implied Bivens cause of action for Eighth Amendment excessive-force violations.” Goldey v.

Fields, 606 U.S. 942, 944 (2025). The Goldey Court reasoned that “Congress has actively □

legislated in the area of prisoner litigation but has not enacted a statutory cause of action for

money damages.” /d. (citations omitted). It further reasoned that “extending Bivens to allow

an Eighth Amendment claim for excessive force could have negative systemic

16

consequences for prison officials and the inordinately difficult undertaking’ of running a

prison.” Id. (quoting Turner v. Safley, 482 U.S. 78, 84-85 (1987)). Finally, the Goldey Court

explained that the existence of an alternative remedial structure for aggrieved federal

prisoners “counsels against allowing Bivens suits even if such ‘procedures are not as

effective as an individual damages remedy.” /d. at 944-45 (quoting Egbert, 596 U.S. at

498).

Mindful of these decisions, the Court proceeds with Ziglar's two-step analysis.

1. New Context

Washington's claims present new contexts—they differ “in a meaningful way” from

Bivens, Carlson, and Davis. Ziglar, 582 U.S. at 139.

First, Washington asserts a Bivens claim based upon allegations that his due

process rights were violated under the Fifth Amendment when Defendant Wright allegedly

falsified an incident report. Although the Supreme Court has recognized a Bivens action for

gender discrimination in violation of the Fifth Amendment, see Davis, 442 U.S. at 230,

Washington's claim plainly presents a new Bivens context and is factually different from the

gender discrimination context in Davis.

Second, Washington sets forth a Bivens claim based upon allegations that

Defendants used excessive force against him, and that BOP staff failed to intervene in the

excessive force or disciplinary action, in violation of the Eighth Amendment. The Supreme

Court's decision in Goldey forecloses any cognizable Eighth Amendment excessive force

17

claim in this case. See Goldey, 606 U.S. 942. Additionally, the Supreme Court has never

recognized an Eighth Amendment claim arising from a correctional officer's failure to

intervene. See Fields v. Federal Bureau of Prisons, 2025 WL 2409060, at *2 (3d Cir. Aug.

20, 2025) (“extending Bivens to allow Eighth Amendment claims for excessive force,

confinement conditions, and failure to protect would substantially burden prison

operations.”).

For these reasons, the Court finds that Washington's due process, excessive force,

and failure to intervene claims present new contexts for Bivens liability. Thus, the Court will

turn now to the second step and determine whether any special factors are present.

2. Special Factors

Having concluded that Washington's claims present new contexts, the court must

determine whether “there are any special factors that counsel hesitation’ in extending

Bivens. Hemandez, 589 U.S. at 102 (internal quotation marks and alterations omitted)

(quoting Ziglar, 582 U.S. at 136). If a court “hals] reason to pause before applying Bivens in

a new context or to a new class of defendants,” then special factors counseling hesitation

exist. Hernandez, 589 U.S. at 102. :

In Fisher, the Third Circuit Court of Appeals recognized that the Bureau of Prisons’

administrative remedy program is a.special factor barring extension of the Bivens remedy to

new contexts. Fisher, 115 F.4th at 207-08; see also Kalu, 113 F.4th at 346 (“The BOP’s

radministrative remedy program] is an ‘administrative review mechanism |’ established by

18

the political branches that ‘foreclose[s] the need to fashion a new, judicially crafted cause of

action.” (quoting Malesko, 534 U.S. at 68). And, as the Supreme Court in Goldey stated,

“an alternative remedial structure’ already exists for aggrieved federal prisoners.” Goldey,

606 U.S. at 944. (quoting Ziglar, 582 U.S. at 137). “The existence of such alternative

remedial procedures counsel against allowing Bivens suits even if such ‘procedures are not

as effective as an individual damages remedy.” /d. at 944-45 (quoting Egbert, 596 U.S. at

498). Therefore, the administrative remedy program bars this Court from extending Bivens

to the new contexts presented by Washington’s claims. Accordingly, the Court will enter

judgment in favor of Defendants on these Bivens claims.

D. A Bivens Remedy is not Available for Washington’s Fourteenth Amendment

Claim

Washington also raises a Fourteenth Amendment equal protection claim. Because

of their status as federal actors, Defendants maintain that the Fourteenth Amendment does

not apply to the federal government. (Doc. 43, at 32). They argue that due to the

Fourteenth Amendment being applied to the states, Washington has no Fourteenth

Amendment Bivens claim against the Defendants. (/d.). .

It is well-settled that the Fourteenth Amendment of the United States Constitution □

does not apply to federal actors. See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (noting

that the Fourteenth Amendment applies only to the states); In re Automotive Refinishing

Paint, 229 F.R.D. 482, 488 (E.D. Pa. 2005) (“The Fifth Amendment's Due Process Clause

applies to the federal government...while the Fourteenth Amendment Due Process Clause

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applies to the states.”). Accordingly, Washington has no claims against the Defendants

under the Fourteenth Amendment of the United States Constitution. □

E. ~ FTCA Claim Against the Individual Defendants

Washington sets forth an FTCA claim, based on negligence and assault, due to the

alleged actions of government employees acting within the scope of their employment.

(Doc. 1, at 9-11). Defendants argue that the FTCA claim must be dismissed for lack of

subject matter jurisdiction.5 (Doc. 43, at 41-42).

Under the doctrine of sovereign immunity, the United States is immune from suits

seeking monetary damages, unless it consents to being sued through an act of Congress

waiving immunity. Dep’t of Agric. Rural Dev. Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024).

Absent such a waiver of sovereign immunity, federal courts lack subject matter jurisdiction

to hear claims against the United States. United States v. Mitchell, 463 U.S. 206, 212

(1983) (“It is axiomatic that the United States may not be sued without its consent and that

the existence of consent is a prerequisite for jurisdiction.”). Because waiver of sovereign

_ immunity is jurisdictional, the party invoking federal jurisdiction bears the burden of

establishing that the United States has waived its immunity. See Lujan v. Defs. of Wildlife,

504 U.S. 555, 561 (1992).

The FTCA provides a limited waiver of sovereign immunity. The FTCA states:

5 The Court may consider documents relevant to subject matter jurisdiction over Washington’s

FTCA claim. See Wills v. USP Canaan, 635 F. App’x 5, 8 (3d Cir. 2015) (noting the district court “was free

to weigh the evidence presented and satisfy itself that the exercise of its jurisdiction was proper” where the

Government's motion to dismiss constituted .a factual attack on the existence of subject matter jurisdiction).

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[T]he district courts...shall have exclusive jurisdiction of civil actions on claims

against the United States, for money damages,...for injury or loss of property,

or personal injury or death caused by the negligent or wrongful act or

omission of any employee of the Government while acting within the scope of

his office or employment....

28 U.S.C. § 1346(b)(1). Thus, the United States has consented to suit under the FTCA,

permitting judicial review of FTCA claims based on the acts or omissions of government

employees. See CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008) (reasoning that 28

U.S.C. § 1346(b)(1), the FTCA provision conferring jurisdiction on district courts, treats

actions against government employees like the “analogous behavior" of “private persons”

under state law). .

A prerequisite to suit under the FTCA is that a claim must first be presented to the

federal agency and be denied by that agency. Specifically, the FTCA provides: □

An action shall not be instituted against the United States for money damages

for injury or loss of property or personal injury...unless the claimant shall have

first presented the claim to the appropriate Federal agency and his claim shall

have been finally denied by the agency in writing and sent by certified or

registered mail. .

28 U.S.C. § 2675(a). To satisfy this “presentment” requirement, a plaintiff must file written

notice of the claim within two years after the claim accrues to the appropriate federal agency

and make a demand for a sum certain. See 28 U.S.C. §§ 2675(a), (b); see also 28 U.S.C. §

2401(b) (“A tort claim against the United States shall be forever barred unless it is

presented in writing to the appropriate Federal agency within two years after such claim

accrues or unless action is begun within six months after the date of mailing, by certified or

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registered mail, of notice of final denial of the claim by the agency to which it was

presented.”). A claim is presented when the federal agency receives from the claimant “an

executed Standard Form 95 or other written notification of an incident, accompanied by a

claim for money damages in a sum certain for injury...” 28 C.F.R. § 14.2. “The failure of an

agency to make final disposition of a claim within six months after it is filed shall, at the

option of the claimant any time thereafter, be deemed a final denial of the claim.” 28 U.S.C.

§ 2675(a). “The final denial requirement is ‘jurisdictional and cannot be waived.” Lightfoot

v. United States, 564 F.3d 625, 627 (3d Cir. 2009) (quoting Bialowas v. United States, 443

F.2d 1047, 1049 (3d Cir. 1971)). The plaintiff has the burden of demonstrating that a proper

administrative claim was filed. See Livera v. First Nat'l State Bank of N.J., 879 F.2d 1186,

1195 (3d Cir. 1989). A failure to comply with the prerequisites set forth in the FTCA prior to

filing suit deprives a court of jurisdiction. See McNeil v. United States, 508 U.S. 106, 113

(1993) (“The FTCA bars claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”).

Here, Defendants submitted the declaration of Joshua M. Bower, a BOP attorney at

USP-Lewisburg. (Doc. 42-2, Declaration of BOP Attorney Joshua M. Bower (“Bower

Decl.”)). Bower attests that, according to the BOP’s computerized database, Washington

has not filed any administrative tort claims since 2019, which predates the incident alleged

in the instant complaint. (/d., Bower Decl. at 3 7 5; see also Doc. 42-5, Administrative Tort

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Case File Manager). He further attests that Washington has not filed any administrative tort

claims concerning the issues he raises in the instant complaint. (See id.).

In response, Washington asserts that he filed an administrative tort claim with the

Regional Office on June 12, 2022. (Doc. 92, at 7-8; Doc. 52-2, at 1-9). While Washington

maintains that he filed this administrative tort claim, he failed to demonstrate that the agency

actually received the claim, as is required under the FTCA. “In order to satisfy the

presentment requirement, a plaintiff must demonstrate that the appropriate federal agency

actually received the claim.” Medina v. City of Philadelphia, 219 F. App’x 169, 172 (3d Cir.

2007) (emphasis added). The Third Circuit explained that “[t]his is not an onerous

requirement, as proof of receipt can easily be obtained by sending a claim by certified mail

or by registered mail, or by obtaining acknowledgment of receipt from the agency itself.” Id.

at 172-73. The mere mailing of a claim will not satisfy an FTCA plaintiff's burden of

demonstrating that the claim has been presented to the appropriate agency. See Lightfoot,

564 F.3d at 627-28 (“We now join these sister Courts in rejecting the mailbox rule and

holding that a plaintiff must demonstrate that the Federal agency was in actual receipt of the

claim[.]” (emphasis added)); Medina, 219 F. App’x at 172-74 (affirming dismissal of FTCA

claim for lack of subject matter jurisdiction where federal agency's employees certified that

agency had no record of administrative claim submitted by plaintiff, despite sworn affidavit

of plaintiffs counsel stating claim had been sent).

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Washington has not submitted proof of receipt of the June 12,2022 administrative

tort claim and has not submitted proof that the administrative tort claim was actually

received by the federal agency. (See Doc. 52-2, at 1-9). Washington's failure to provide

oroof of the federal agency's receipt of the claim purportedly sent on June 12, 2022,

prevents him from carrying the burden of fulfilling the presentment and exhaustion

requirements of the FTCA prior to filing suit as required by 28 U.S.C. § 2675(a). See

Medina, 219 F. App’x at 172-74. Therefore, this Court lacks subject matter jurisdiction over

the FTCA claim, and it will be dismissed. See Roma v. United States, 344 F.3d 352, 363

(3d Cir. 2003) (noting “the requirement that the appropriate federal agency act on a claim

before suit can be brought is jurisdictional and cannot be waived.”); Wills v. USP Canaan,

635 F. App’x 5, 8 (3d Cir. 2015) (plaintiff bears the burden of showing the Court that it has

subject matter jurisdiction over the action).

IV. Leave to Amend

Having determined that Washington’s official capacity claims for monetary damages,

his claim for compensatory damages, and his FTCA claim, are subject to dismissal, the

Court must determine whether to grant him leave to file an amended complaint. Courts

should generally give leave to amend but may dismiss a complaint with prejudice where

6 The Court further notes that the exhaustion procedure for the FTCA pursuant to 28 U.S.C. §

2675, et seq., is a procedure separate and distinct from the exhaustion of prison remedies under 28 C.F.R.

§ 542.10, et seg. Although Washington has submitted administrative remedy filings related to his efforts to

exhaust prison grievances (see Doc. 1-1, at 3-16; Doc. 52-1, at 5-6), the exhaustion of prison grievances

simply does not satisfy Washington’s separate administrative exhaustion obligations under the FTCA.

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leave to amend would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 047 252 (3d Cir. 2007) (“[I]n civil rights cases district courts

must offer amendment—irrespective of whether it is requested—when dismissing a case for

failure to state a claim unless doing so would be inequitable or futile.”); see also Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff does not seek

leave to amend a deficient complaint after a defendant moves to dismiss it, the court must

inform the plaintiff that [they have] leave to amend within a set period of time, unless

amendment would be inequitable or futile.”). In determining whether amendment would be

futile, “the district court applies the same standard of legal sufficiency as [it] applies under

Rule 12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.

1997).

Based on the analysis above, the Court finds that granting Washington leave to

amend his official capacity claims for monetary damages asserted against the Defendants,

his claim for compensatory damages, and his FTCA claim would be futile.

V. Conclusion

Consistent with the foregoing, the Court will grant Defendants’ motion (Doc. 36) to

dismiss and for summary judgment as follows. The official capacity claims for monetary

damages against the Defendants and the claim for compensatory damages will be

dismissed. The FTCA claim will be dismissed for lack of subject matter jurisdiction. The

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motion for summary judgment with respect to the Bivens claim will be granted, and

judgment will be entered in favor of Defendants.

A separate Order shall issue.

f oN -

Oe °

TA NN MAME

Robert DSMariani

United States District Judge

Dated: September , 2025

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